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. 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 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 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.
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 .
A partial “preliminary” (as per FWP) list includes:
Big Hole River
Big Horn River
Clark Fork River
Flathead River Middle Fork
Flathead River North Fork
Flathead River South Fork
Lake Creek – Kootenai
Rock Creek of the Clark Fork
For details see the FWP’s Stream Access in Montana brochure. They caution that it will change as the legal criteria is applied.
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.