Commentary - July 13th, 2014
11:57 am
Fri July 11, 2014

Stream Access Primer

Fly Fisherman on the Yellowstone River.
Credit Flikr user: Mirrur Image (CC-BY-NC)

Now that the rivers have fallen, summer is heating up and recreationists are hitting the state’s streams and rivers in force, it’s not a bad time to review exactly what is legal and what isn’t regarding recreational access to the state’s waters. When the public hews to the law it better ensures that inevitable and tiresome attacks on Montana’s stream access laws by legislators, non-resident landowners and so-called free-market think tanks will continue to fail miserably.

Here’s how the law works. The public is allowed to recreate on any natural stream or river in Montana that is capable of supporting recreation, irrespective of size or who owns the bed and banks. But you must stay within the normal high-water mark if the banks are privately owned. Physical navigability, as well as legal navigability related to streambed ownership, does not affect your basic right to stream access. Therefore it’s legal to recreate on large rivers where the state owns the bed of the river, as well as on small streams when the bed is owned by adjoining landowners. You just have to be engaged in a recreational activity, and, the water must support activities such as swimming, fishing or floating.  

Importantly, the law doesn’t allow you to recreate in human-constructed conveyances such as canals and ditches without landowner permission. On the other hand, if a channel is clearly natural but has been modified for other purposes, such as being straightened, armored or, a headgate modifies its flows, you are allowed to recreate on it. This is the case in places where natural side-channels have been modified for irrigation use. Avoid recreating in any channel that is difficult to tell if it is human-constructed or natural. It helps to be cautious and avoid potential dustups with landowners.

There is one narrow exception in the law that allows the public to step beyond the high-water mark – and that is when a human-caused obstruction, such as fence or in-stream diversion prevents safely moving up or down the channel. In that case, you can legally portage above the high-water mark to get around the obstruction, as long as you take the shortest route possible. You are not allowed to go above the high-water mark to portage around natural obstructions, such as waterfalls.

Stream access law allows camping within the high-water mark only on large rivers where the state owns the streambed, and only where you are at least 500 yards from an occupied dwelling. Waterfowl hunting is allowed under the same circumstances. Big game hunting is completely prohibited, unless the adjoining land is public and that activity is legal there.

So, if you aren’t allowed to cross private land to get to the stream, how do you enter it? Several ways: Get permission from the owner of the streamside property, enter at public access sites or from public riparian lands, or, use rights-of-ways at county bridges. The Montana Supreme Court has affirmed strongly that recreational access to streams is a legitimate use of public rights-of-ways for county bridges on private land. You just have to enter the stream next to the bridge within a zone that county maintenance workers would need when doing repairs. Landowners can fence these spots to keep livestock off roads, but they cannot construct fences or other barriers designed to keep the public out. You are not trespassing, despite signs and orange paint that might indicate otherwise, as long as you enter the stream within the right-of-way. In any case, do not trash fences or park illegally. Counties can close access at some bridges, however, if there is a serious and demonstrable safety problem.

If there is any question about the legality of access in a particular stream or access point, don’t use the site. And in all cases, being polite to private landowners pays off. Montana’s best in the nation stream access and bridge rights-of-way laws have survived numerous court challenges, and they will endure only as long as the public understands the law and is respectful. Be assured, there are still a few landowners and attorneys who would love to undermine public access. Don’t help them. Be polite, don’t litter, don’t trespass, follow the laws. Don’t be a knucklehead when enjoying our rivers and streams.

This is Bruce Farling from Montana Trout Unlimited. Contact us www.montanatu.org.