Last week a friend and I had an email chat (I was clearly principally listening) about the Montana Stream Access law in reference to a fairly new public campaign launched recently.
Management of public lands and access has the attention of Westerners in the county, and many others; there are a plethora of groups rightly and wrongly wielding the access issue in particular trying to gain political leverage and fund raise as the election season gains momentum.
From the pen (keyboard) of a very intelligent, privacy-minded (hence no name shared), fly fishing compadre; this was simply too good not to share –
It’s very important to know the Montana Stream Access Law of 1985. Access to Montana’s natural water ways is guaranteed by the law. The 1984 law, (act,) allowed recreational access to any water capable of supporting recreation.
HB-265 (also introduced in the legislature in 1981 and 1983) says: “The public may use rivers and streams for recreation up to the ordinary high-water mark, without regard of the ownership of the land underlying the waters.”
There is nothing in these laws about “navigable” waters. This is a bit of folklore that has been perpetrated by word of mouth, and ill informed lawyers, and major power companies. It does not belong in any discussion about the public’s right to access. It obfuscates a wonderfully clear and simple law about our rights.
“Ownership” of the water and waterways was defined in 1889 by the U.S. Supreme Court under the federal Equal Footing Act granted to states ownership of the beds of navigable streams, lakes, islands and accumulations of land up to the average high-water flow line.
There is a big difference between ownership and access. Our access is total despite ownership. This is important to remember when discussing our waterways.
Montana River Action (MRA) has a page in simple straight forward language that details this here. There is no need to discuss navigable waters in Montana in the same breath as access. Other states have indeed, confused the issue and based different legal definitions and access laws on the confusion of the two concepts. Once it becomes case law it is a damn nuisance to have a sensible discussion and an amenable resolution of conflicts.
Limiting the definition of access to the “navigable waters,” actually reduces the amount of water that we have access to!
We should not allow this to happen in Montana. By keeping the concepts separated access and ownership discussions will become much more clear and understandable.
And later, to emphasize the point –
By introducing ownership into the discussion of access we, in fact, limit the water that we are talking about. Navigability is a commercial concept, (including pay to fish,) The navigable rivers are far fewer than the “Waters of Montana.”
It’s important to defend the current access law – it is broad and inclusive and rather simple — thankfully. Many fishers in our state have been hoodwinked into believing that access and navigability are somehow linked. Nothing could be further from the truth.
Access is access regardless of ownership, navigability, or other spurious concepts. Folklore, myth, connoisseurship, and other interpersonal and social relationships destroy the rationality of fishers.
Just because you are good at patting fanny or tying a good fly does not make you an expert on the law – especially if it’s a “FEEL GOOD” campaign that you are pursuing. Most fishers that I’ve talked to, (including the very famous icons around town,) haven’t read the laws and are busy pushing emotive and emotional arguments: usually in the promotion of self interest. Critical thinking is almost absent in the fly fishing fraternity and sorority…
…Vigilance demands information.
