Stream Access in Montana

by Brent Zundel for PLWA (2017)

Montana’s Stream Access Law is widely considered “the best in the west,” arguably the strongest law in the nation in terms of ensuring public access. In short, the public can access any river or stream capable of being used for recreation between the high-water marks, regardless of the navigability of the river or the ownership of the streambed and adjacent property, as long as the user avoids trespass in order to reach the stream.

This document provides a history of stream access in Montana, beginning with the original conflicts on the Dearborn and Beaverhead Rivers and continuing to the recently decided battles over access at bridges and the most recent challenge to the Stream Access Law.

Early conflicts in the late 1970s and early 1980s led to the groundbreaking Curran and Hildreth cases in the Montana Supreme Court. These cases laid the foundation for the groundbreaking 1985 Stream Access Law, which codifies the strong public access rights enjoyed by all Montanans today. Immediately upon passage of the law, it was challenged in district courts, the state supreme court, and even appealed to the federal level. It has withstood all challenges.

In the past decade, those fighting against public access have shifted to focus on stream access at bridges, with much of the controversy centering on the iconic Ruby River. In 2000, then Attorney General Joseph Mazurek issued an Opinion clarifying the public’s right to access streams at public bridges and road rights-of-way.

In the meantime, Atlanta billionaire James Cox Kennedy began blocking off access to the Ruby River, installing well-reinforced barriers and electric fences. The Public Land/Water Access Association (PLWA) took the case to court, where it has undergone a series of decisions and appeals. In 2009, the Montana Legislature passed the Bridge Access Law, stating that the public may access streams from county or public bridges.

Eventually, the Ruby River case made it all the way to the Montana Supreme Court, where Kennedy challenged not only the specifics of the case, but also the entire Stream Access Law. The Supreme Court rebuked Kennedy, ruling overwhelmingly in favor of public access and telling Kennedy that his “argument does not hold water.” In the same decision, Montana’s highest court also provided guidance on prescriptive easements, again ruling strongly in favor of the public trust.

While Kennedy’s deadline to appeal this decision has passed downstream — like water under a bridge — the only defense against future challenges is the tireless fight of individuals and organizations like PLWA. The price for the world-class recreational opportunities that Montanans enjoy is one of constant vigilance. Stream access is here to stay in Montana, but we’ll have to fight to keep it that way.

Read the full history here.