Stream Access Law

Navigable Rivers Defined

Since statehood in 1889, under the Federal Equal Footing Law, Montana has owned the beds of navigable rivers that have sustained commercial use. The Federal Test for commercial use legally defines “navigability” and includes activities such as floating logs, fur trade, mail routes, transportation of goods, float-fishing, outfitting and guiding, float-boat rentals, adventure floating, guiding and all commercial uses.

The US Supreme Court said that states held ownership of navigable river beds and that all new states would enter the Union under equal footing and would own the lands beneath the navigable streams, lakes, islands and accumulations of land formed in the beds of navigable streams up to the average water flow line. The Montana Constitution of 1972 also said that the citizens of Montana own the waters in the state. However, it took until 1985 to make public access part of that legal equation when the Montana State Legislature passed House Bill 265, the Stream Access Law (SAL). The SAL is a landmark piece of Legislation that is widely believed to be the “best” and most permissive of such statues in the West. The Montana SAL allows the use of the public rivers to the ordinary high water line for recreational purposes.

We can thank PLWA/PLAAI stalwarts Jerry Manley, Tom Bugni and Tony Schoonen (fishermen and advocates from Butte) whose hard work and abiding belief in the public trust enabled the legislature to pass the Stream Access Law! Widely considered to be the most controversial bill of the 1985 Legislative Session, the SAL was a bipartisan effort that eventually included support from both the agriculture industry and MT conservation and outfitting coalitions. It is truly a piece of Legislation that Montanans can be proud of!

The law differentiates between larger rivers with publicly owned stream beds, and smaller rivers with privately owned stream beds, by categorizing them as either Class I or Class II, respectively. Recreational access is allowed for both, but significant restrictions apply to the smaller streams.

The Stream Access Law law defines “Class I”, “navigable” waters as those that are or have been capable of supporting the commercial activities such as log floating, transportation of furs and skins, shipping, commercial guiding using multiperson watercraft, public transportation, or the transportation of merchandise. This definition is different from that used by the Montana Department of Natural Resources and Conservation – DNRC – for other legal purposes. The federal definition is also different .

Class II waters are defined in Montana statute as all surface waters capable of recreational use that are not Class I waters, except lakes. There may be times during the year when flow and physical condition of these waters may not permit their use for certain kinds of recreation (for example, when a section of stream runs dry).

Challenges

Some disgruntled landowners made dire predictions of trespass damage and a fund was set up to reimburse landowners for any damages. The Stream Access Law has been in place for about 32 years with no requests for reimbursement from landowners.

The Colorado-based Mountain States Legal Foundation (MSLF) solicited disgruntled Montana landowners wishing to sue the state in Federal Court to dismantle the Stream Access Law on the grounds that it is a “taking”. The MSLF was created by the Coors Brewing Company with James Watt – Reagan’s Secretary of Interior- as the founding president. The MSLF Board of Directors consists of owners of extractive corporations, mining, oil and gas, cattle, construction and agricultural businesses. A listing of MSLF donors includes Amoco, Chevron, Texaco, Coors, El Pomar Foundation, Ford and Phillips Petroleum. The suit was filed, and the claim rejected by the federal courts all the way to the U. S. Supreme court dismissed it.

In 2009 the public won another access issue when the Montana legislature ruled that public recreational access to streams at county road bridges was legal and could not be denied.

Accessing Spring Creeks for Recreation

Spring creeks are natural water bodies just like any other stream or river and therefore fall under the Montana stream access law. The only thing that makes them at all different is the nature of spring creeks themselves. Many springs creek originate on private land, are of fairly short length, and flow entirely though private land until their confluence with a main stem stream or river. As a result the only public access may be by entering the spring creek at its confluence with a river or stream by someone who is legally on that stream or river.

Also a typical spring creek has a constant flow, at least until there is a tributary entering the spring creek. As a result the ordinary high water mark, which is the upper limit for stream access, is the same as the low water mark.

As a consequence, anglers must wade in the spring creek to stay below the high water mark and avoid trespassing on private land.

Access is also possible at county and state road crossings, from riparian public land, or from private land where the angler has the permission of the private land owner. Once the angler has legally accessed a spring creek, he or she can wade up or down the spring creek to fish just like on any other stream.

Montana Stream Access Law-Direct Montana Code

Montana Fish Wildlife and Parks-Stream Access in Montana

PLWA’s Montana Stream Access History and Overview

A Partial ‘Preliminary’ List of Navigable Class 1 Rivers

  • Beaverhead River— from Clark Canyon Dam to its confluence with the Jefferson River

  • Big Hole River— from Fishtrap FAS to its confluence with the Jefferson River

  • Bighorn River— from Yellowtail Dam to its confluence with the Yellowstone River

  • Bitterroot River— from the confluence of the East and West Forks to its confluence with the Clark Fork River

  • Blackfoot River— from the Cedar Meadows FAS to its confluence with the Clark Fork River

  • Blackfoot River (North Fork)—from highway 200 east of Ovando to its confluence with the Blackfoot River

  • Clark Fork River—from Warm Springs Creek to the Idaho border

  • Dearborn River— from Highway 431 bridge to its confluence with the Missouri River

  • Flathead River (mainstem)— to its confluence with the Clark Fork River

  • Flathead River Middle Fork— from Shaffer Creek to its confluence with the Flathead River

  • Flathead River South Fork— from Youngs Creek to Hungry Horse Reservoir

  • Gallatin River— from Taylors Fork to its confluence with the Missouri River

  • Judith River— from the confluence of Big Spring Creek to its confluence with the Missouri River

  • Jefferson River— to its confluence with the Missouri River

  • Kootenai River— from Libby Dam to the Idaho Border

  • Lake Creek (Kootenai)— from the Chase cut-off road to its confluence with the Kootenai River

  • Madison River— from Quake Lake to its confluence with the Missouri River

  • Marias River— from Tiber Dam to its confluence with the Missouri River

  • Missouri River— from Three Forks to the North Dakota border

  • Rock Creek of the Clark Fork— from the confluence of the West Fork to its confluence with the Clark Fork River

  • Smith River— from Camp Baker FAS to to its confluence with the Missouri River

  • Sun River— from Gibson Dam to its confluence with the Missouri River

  • Tongue River— from Tounge River Dam to its confluence with the Yellowstone River

  • Yaak River— from Yaak Falls to its confluence with the Kootenai River

  • Yellowstone River— from Yellowstone National Park to the North Dakota border

Read the Stream Access Law in full here:

Montana’s Stream Access Law – MCA 23-2-3

Even though the 1985 SAL did not take away the right of a landowner to fence across the river, or from putting a fence part way into the river, it did state that a recreationist using a river, can portage around the fence obstruction using the “least intrusive manner”. The 2009 Bridge Access Law did not change that.