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The Montana Stream Access Law

Montana Stream Access Law

Montana is unique among other Western states and most states in general. In 1984, the Montana Supreme Court held that any river or stream that has the capability to be used for recreation, such as fishing and floating, can be used by the public regardless of whether or not the river is navigable and who the owner of the streambed property is. The result is that anglers and floaters have full use of most of the rivers in Montana for fishing and floating, along with swimming and other river related activities. This is known as the Montana Stream Access Law.

Photo Use Guidelines

A number of restrictions and regulations better defining the publics right to access the rivers and streams in Montana were provided by the Montana legislature in 1985. In particular, the legislature had to figure out what constituted a river. It was determined that a river is anything between a rivers ordinary high water mark. The legislature defines the ordinary high water mark as:

  • "Ordinary high-water mark" means the line that water impresses on land by covering it for sufficient periods to cause physical characteristics that distinguish the area below the line from the area above it. Characteristics of the area below the line include, when appropriate, but are not limited to deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural vegetative value. A flood plain adjacent to surface waters is not considered to lie within the surface waters' high-water marks.

Thus, an angler or a floater has full recreational use of a river below the rivers ordinary high-water mark. For clarification, recreational use is considered to be:

  • "Recreational use" means with respect to surface waters: fishing, hunting, swimming, floating in small craft or other flotation devices, boating in motorized craft unless otherwise prohibited or regulated by law, or craft propelled by oar or paddle, other water-related pleasure activities, and related unavoidable or incidental uses.

In other words, you can fish and float with non-motorized craft with only a handful of specific restrictions that are listed in the most recent fishing regulations. Motorized watercraft have further restrictions on their use (these restrictions are there to prevent conflicts between motorized boats and floaters/wade anglers/float anglers.

Photo Use Guidelines

Since the Montana stream access law applies to virtually all rivers and streams in Montana that are found on private property, many of these rivers are quite small and have various man made and natural obstructions in the river. A floater or angler who encounters these obstructions may also climb above the high water mark to get around these obstructions in the least intrusive way possible (some landowners don't like it, but it says...explicitly...that you can do this in the statute.).

Thus, Montana has a very liberal stream access law allowing the public virtually full use of most of the rivers and streams found in Montana for recreational purposes. However, it is important to realize that this law does not give the public right to cross private property to reach the rivers.

A person may cross private property to reach a river if:

  1. The land is not fenced, and
  2. The land is not posted with no trespassing signs or is not marked by orange paint markings (orange paint markings on trees, posts and various other things signify private property in Montana and essentially say "Stay Out")
  3. The landowner has not specifically told the person to stay out.

If all three of these conditions are met, a person may cross land that is private property to reach a river to fish or float. Not surprisingly, most private property in Montana is marked with lots of orange paint markings and "No Trespassing" signs, limiting the ability to cross private property without permission.

As a result, anglers and floaters will instead often end up using bridge crossings to access the rivers where either a road does not follow the river, a designated fishing access site does not exist or where the river does not pass through federal/state lands (such as National Forest, BLM and State Forest property). A floater or angler has full right to use a bridge as an access point to a river.

Additionally, all of that orange paint and "no tresspassing" signs does not mean an angler can't cross that land to reach the river to float or fish. Instead, to gain access to property that is posted, all that is usually required is a polite request to the landowner. In most areas of Montana (there are some exceptions, mainly in the Ruby River area, which is home to most of the states "pay to fish" areas), most landowners don't have a problem in granting access to private property for fishing and floating purposes.

For the complete legal language of the Montana Stream Access law, you can read the law from the Montana Code Annotated by Clicking Here.

Additional Information : The Montana FWP has posted a rather long brocure about the Stream Access Law on their site (in PDF format). You can read it by following this link.


 

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