Stream Access
The Montana Legislature passed the Montana Stream Access Law in 1985, allowing the public to use rivers and streams for recreational use up to the ordinary high-water mark, as regulated by the Montana Fish, Wildlife and Parks Department. The law has a solid foundation, built on the Montana Constitution which says: “All surface, underground and atmospheric waters within the boundaries of the state are the property of the state for the use of its people.” The legislature’s action followed a 1984 Montana Supreme Court decision that upheld the public’s right to walk, float, fish and recreate on Montana’s waterways. The court found that: “All water capable of recreational use could be so used regardless of streambed ownership.”
The law provides exemptions for landowners only in cases where the health of fisheries, wildlife habitat, or landowner rights are compromised. While it allows the public to access streams within the right-of-way of public roads and bridges across streams, it does not allow recreationists to otherwise cross private lands to gain access to streams.
The Stream Access Law has survived several court challenges, but Montana citizens remain concerned about continuing attacks on their right to use, and ability to access, the beds and banks of rivers throughout Montana for recreation.
Background
At one time, floaters and fishermen would sometimes encounter fences, including barbed wire, strung across streams. The 1985 Montana Stream Access Law answered that problem, and provided recreationists not only with the ability to use Montana’s rivers and streams but with greater security in the safety of their fishing and floating.
In 1987, a landowner challenged the Montana Stream Access Law, claiming that because he owned the streambed beneath the water flowing through his land, he had the right to control all access and recreational use of that water. The Montana Supreme Court, however, recognized and upheld public ownership of the waters flowing within the normal highwater mark, reaffirming the Public Trust Doctrine which recognizes that water is a public resource held in trust by each individual state for the benefit of all the people.
A more recent challenge to Montana’s Stream Access Law was a 2000 lawsuit filed in Federal District Court in Montana by the Colorado-based Mountain States Legal Foundation on behalf of three landowners against the Montana Department of Fish, Wildlife and Parks. Mountain States Legal Foundation alleged the 1985 legislation deprives landowners “of their privacy, denies them income for the use of their property, while enriching others who use their property, and subjects their property to abuse and misuse…” The lawsuit cited the Fourteenth Amendment of the U.S. Constitution, stating the Montana Stream Access Law cannot “deprive any person of life, liberty, or property, without due process of law” and was based on the premise that the Stream Access Law was an unconstitutional “taking” of private property rights. The Montana Attorney General’s office, joined by the Montana Chapter of Trout Unlimited, Montana Wildlife Federation, Montana Coalition for Stream Access, and the Fishing Outfitters Association of Montana, defended the law. U. S. District Court Judge Charles Lovell dismissed the claims of Mountain States Legal Foundation, a decision appealed by the plaintiffs to the 9th U. S. Circuit Court of Appeals in San Francisco. The Appeals Court upheld the District Court order in December 2002. The case ended when the United States Supreme Court refused to hear a further appeal in May 2003. The Stream Access Law passed in 1985 has survived all court challenges to date.
Current Stream Access Issue: Bridges
Most private property in Montana has limited public access, leading many anglers and floaters to use bridge crossings with public rights of way to access rivers. After a request from the Montana Department of Fish, Wildlife and Parks, Montana Attorney General Joe Mazurek issued an opinion in 2000 clarifying that road bridges were the intersection of two rights of way and access must be allowed within the road or bridge easement.
More recently, construction of new bridges has caused conflicts relating to stream access because the Montana Department of Transportation (MDOT) has contended that maintaining access increases the cost of building the new bridges. One proposed solution is legislative action that would require MDOT to provide legal access on replacement bridges where it already exists, and to allow the use of some fishing license funds for construction of access structures such as stiles.
The conflict over access to streams using bridge easements has resurfaced in Madison County where an out-of-state landowner and sportsmen are separately suing the county. The county passed an ordinance authorizing access along bridge rights of way, and allowing the county to remove orange no trespassing signs and electric fencing that have been hooked to county bridges to block public right of way. The ordinance allows landowners to apply for an encroachment’ permit to keep fences connected, but the fence must allow access to the river. The landowner contends his rights are being infringed when access is allowed to the Ruby River from bridges adjacent to his property. Montana Attorney General Mike McGrath intervened in the lawsuit, filed in May 2004, on behalf of the county, saying his office sees the lawsuit as an effort to chip away at Montana’s Stream Access Law.
A few weeks later, members of the Public Lands Access Association, an affiliate of the Montana Wildlife Federation, also filed suit against the county, saying the county’s policy of giving permits to property owners to attach fences to county bridges, and requiring sportsmen to pay for gates and stiles to make fence crossings, violates the Montana Stream Access Law and puts an unfair financial burden on sportsmen.
Recommendations for the Future
• The Montana Stream Access Law, supported by Montana’s Cons t i tut ion, mus t be maint ained. The 2005 Legislature nixed a bill that would have guaranteed the public’s right to gain access to streams at public bridges, its right-of-way or its abutments. It wo u l d h a v e a l l owe d recreationists to portage around barriers on private land and gave authority to Department of Fish, Wildlife & Parks to investigate whether a fence, barrier or obstruction across a stream constituted a public safety violation and to direct the landowner to remove the barrier.
• As many bridges are replaced over the next decades, continued access to streams from the road right of way must be assured. The Montana Department of Transportation should provide legal access at replacement bridges where it already exists.
