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STREAM ACCESS LAWS

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 Tests for commercial use include floating logs, fur trade, mail routes, transportation of goods, float-fishing, outfitting and guiding, float-boat rentals, adventure floating and guiding and all commercial uses.

The Federal 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 public owns the waters in the state. However, It took until 1985 to make this access policy when the Montana State Legislature passed House Bill 265, the stream Access Law . It 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 Schoonan, public fishermen from Butte, whose hard work and abiding belief in the public trust enabled the legislature to pass the stream access law .

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 over 24 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 - Reaganís 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.

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. (HB190 - see articles on other sections of this website. )

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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. (See link below. )

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 .)

A partial "preliminary" (as per FWP) list includes:

Beaverhead
Big Hole River
Big Horn River
Bitterroot River
Blackfoot River
Clark Fork River
Dearborn River
Flathead River
Flathead River Middle Fork
Flathead River North Fork
Flathead River South Fork
Gallatin River
Judith River
Jefferson River
Kootenai River
Lake Creek - Kootenai
Madison River
Marias River
Milk River
Missouri River
Rock Creek of the Clark Fork
Smith River
Sun River
Swan River
Tongue River
Yaak River
Yellowstone River

For details see the FWP brochure on stream access linked below. They caution that it will change as the legal criteria is applied.

Even though the 1985 stream access law 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.






related articles

Ruby River Stream Access Victory
( 07/01/2016 )   7/1/2016PLWA, once again, has been victorious in the battle for the public's stream access on the Ruby River, from the Seyler Lane Bridge, likely the original stagecoach route from Salt Lake City, north to Virginia City and Helena.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a public prescriptive easement right-of-way in Madison County.

"Dark Money" Brought to Light
( 07/01/2016 )   The June-July, Newscasts section of Fly Fisherman reported on the recent investigation by Montana's Commissioner of Political Practices, Jonathan Motl, into a dark money campaign that could overturn Montana's Stream Access.Fly Fisherman recounted the Montana Growth Network's campaign contributions to District Judge Laurie McKinnon's run for our Montana Supreme Court.

public land issues

Seyler Lane Update
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing.

Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.


    18 more public land issues



Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

TERMS OF USE
Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
     
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