Montana Stream Access Law

One of the many unique recreational benefits Montana offers is the Montana Stream Access Law. Under the Montana Stream Access Law, the public may use rivers and streams for recreational purposes up to the ordinary high-water mark. Although the law gives recreationists the right to use rivers and streams for water-related recreation, it does not allow them to enter posted lands bordering those streams or to cross private lands to gain access to streams.

History Of Montana Stream Access Law

In 1984, the Montana Supreme Court ruled that the public may use rivers or streams with recreation capability, for activities such as fishing and floating, regardless of whether the river is navigable or who the streambed property owner is. This ruling allowed anglers and floaters to have full use of most rivers in Montana for fishing, floating, swimming and other river related activities.

Following this ruling, in 1985 the Montana legislature created regulations to better help define the public’s right to access Montana’s rivers and streams. In particular, the legislature had to determine what constituted a river. It was determined that a river is anything between a rivers ordinary high water mark.

“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, anglers can fish and float with non-motorized craft, provided they follow the restrictions listed in the latest 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.

House Bill 190, passed during the 2009 Legislative Session, confirmed that the public has access to surface waters by public bridge or county road right-of-way. The Department, in cooperation with the affected landowner and county, is responsible for providing public passage around or through a fence preventing such access. A typical access feature would be a stile, gate, roller, walkover, or wooden rail fence.

On January 16, 2014, the Montana Supreme Court, in a lawsuit filed by the Public Land/Water Access Association over access via county bridges on the Ruby river in Madison County, Montana reaffirmed the Montana Stream Access Law and the public’s right to access rivers in Montana from public easements.

Thus, Montana has a very liberal stream access that allows the public to have full use of most rivers and streams in Montana for recreational purposes.

Advocates For Montana Stream Access Law

• Public Land/Water Access Association – The mission of the association is to maintain, restore, and perpetuate public access to the boundaries of all Montana public land and waters.
• Montana River Action – The clean flowing waters of Montana belong to the people and are held in trust by the State for a pollution-free healthful environment guaranteed by our Montana Constitution. Montana River Action’s mission is to protect and restore rivers, streams and other water bodies.
• Montana Wildlife Federation – Dedicated to conservation and preservation of Montana’s wildlife, lands, waters and Montana fair-chase hunting and fishing heritage; Prioritizing public access to public wildlife and public lands.