The most frequent type of cattle pass encountered by paddlers is at bridges. At most navigable streams, you can drive under the bridge and fish or launch your paddle craft. But at some bridges a fence is extended from the bridge across the highway right of way to the fence on either side of the right of way. It permits cattle to pass from the pasture on one side of the road to the pasture on the other. In those situations, public access to navigable streams is lost or at least impaired.
A landowner can legitimately need a cattle pass, and the law ought to allow for that. But in so doing, the law ought not to disregard the interests of the public in accessing public streams. All cattle passes should be designed to permit public ingress and egress by means of turnstiles, steps over the fence, or other reasonable means satisfactory to the landowner and TxDOT.
The reason for TxDOT’s existence is to facilitate people getting from one place to another.
Navigable streams are among the places people need to get. The cattle pass is an
accommodation to the landowner. It ought not to preempt entirely the rights of
Gib Hafernick encountered a cattle pass at the intersection of Highway 87 and the Llano River, south of Mason. He wrote an article about it and gave contacts for protest. There are numerous other such situations throughout the state.
TxDOT has regulations relating to cattle passes that do not address public access. Those regulations should be changed to do so. The additional burden on the land owner of permitting the public to access the stream is less than the burden on the public of being excluded from the stream.
Open Records Request:
We have sent an open records request to the Texas Department of Transportation, requesting records relating to cattle passes. TxDOT has objected that the request violates attorney-client communications and, as is required in such cases, has asked the Attorney General to opine whether its objections are valid. TxDOT's letter to the AG is here.
Necessity of TxDOT Permission
Cattle passes cannot exist without the permission of TxDOT. There is an old case on point. A man named Cornelison built a cattle pass without permission. He was prosecuted and convicted of blocking a public right of way. This makes even clearer that, when TxDOT authorizes a cattle pass, it is authorizing blockage of a public right of way. TxDOT needs to take that into account and, when permitting cattle passes, assure continued public access to the stream.
Update as of July 9, 2003
Success! TxDOT replied to Gib Hafernick, acknowledging that, except for reasons such as safety and maintenance, it "cannot deny public access to a navigable waterway where it crosses state highway right of way." This is good news for paddlers across the State of Texas.
We cannot guarantee what a landowner, a law enforcement officer, a judge, or even TxDOT will say in the future, but we now have an official TxDOT acknowledgment that the public is entitled to cross fences at cattle passes to access a navigable stream. If you do so, you must be careful to stay within the highway right of way. We cannot guarantee anything, but we hope this letter will be useful to paddlers who are questioned at cattle passes.
Pass along the news to other paddlers and save a link to the letter.