Stream Access Law of Montana Stays Strong
On 07.08.11, In Legal Industry, by Blake Houser
As the melting La Niña-fed snowpack shoved rivers in western Montana over their banks in late May, the state started to close access to fishing sites. This included a couple of sites on the swollen Bitterroot River. In a sense, the floodwaters were able to accomplish what some state legislators, earlier this year, could not, and that is, to remove anglers from Bitterroot and other streams.
With bills that choked social programs and weakened fundamental environmental laws, the state Legislature, which was dominated by Republicans, was very ambitious but ultimately it shied away at debilitating the Stream Access Law of Montana, the most tolerant of such laws in the West.
Despite being legally challenged in court and by conservative lawmakers for many years, this 1985 law in Montana remained to be the high-water mark in the West. It was also the object of envy of some recreationists in various states such as Colorado and Utah, where more prohibitory stream-access laws are in effect. On the other hand, there are also some angry landowners who believe that Montana’s liberal public access laws violate private-property rights.
This law was passed as an offshoot of a state Supreme Court ruling in 1984 that granted access to the public all surface waters “capable of recreational use,” no matter who owns the streambed, since surface waters are considered state property, held in public trust.
Montana’s stream-access law simplified than ruling, permitting recreational access to “natural water bodies” but not including private irrigation ditches. The law’s intent was confirmed by the court when it was legally challenged in 1987.