Montana’s Wide-Open Stream Access Law Under Assault by Landowners

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Confluence of Ruby and Beaverhead Rivers.

Confluence of Ruby and Beaverhead Rivers.

For people who think heaven must be a lot like fishing and floating Montana’s beautiful rivers, access to them is once again at the top of our agenda. For many of us, it’s always been our first concern. Montana has probably the best and most egalitarian access laws in the country — at least when it comes to rivers: We can travel them unimpeded within the high-water marks on either side.

But because some folks with almost unlimited amounts of money will go as far as possible to protect their privacy and block public access, it looks like we’ll have to keep fighting to retain our river rights.

When I moved to Montana 21 years ago, the locals spoke of the state’s Stream Access Law in the kind of reverential tones usually reserved for secret fishing holes. Everyone had the mindset back then that stream access was a settled matter.

“We have it, and we’ll enjoy it until we’re too old to wade between the high-water marks,” was the attitude.

Montanans cherish the law as something that makes living here far better than living in states such as Wyoming.

Montanans cherish the law as something that makes living here far better than living in states such as Wyoming, where a dude can be cited for trespass for dropping an anchor in the wrong place. Most Wyomingites readily concede that when it comes to stream access, Montana has it all over the Equality State. And generally speaking, Wyomingites will more readily join the Grizzly Bear Artificial-Insemination Team than admit that Montana’s better at anything.

There have been a few bumps on the road to stream-access nirvana since the halcyon days before A River Runs Through It. One of them was the 15-year battle for access on a branch of the Bitterroot River called Mitchell Slough. There, a group of wealthy landowners essentially argued that they’d done plenty of work fixing up their spreads after they bought them from the native Bitterrooters who’d trashed the joint, so they should be exempt from the Stream Access Law. They then proceeded to hang “No Trespassing” signs on the river and defied anyone to make them take them down.

Some Montanans were slow to realize that the Mitchell Slough landowners were trying to do in the courts what could be impossible at the polls: Overturn the access law.

For years, the fight was carried on by a ragtag band of radical Bitterrooters — radical because they were fighting for the notion that the law applies to everyone, including landowners with ridiculous amounts of disposable income to pay attorneys. It took some time, but most of the bigwigs in Montana trout circles eventually grasped how serious that fight was. Finally, when the Montana Supreme Court became involved in the Mitchell Slough case, it overturned a lower court ruling with a unanimous opinion that made clear that if the landowners had gotten their way, the state’s Stream Access Law could eventually be dismantled.

But even though people didn’t realize it then, it is clear now that Mitchell Slough was just an early skirmish. In late April, the Montana Supreme Court took testimony on the appeal of another lower court ruling designed to deprive Montana anglers of their access rights. The case comes from the Ruby River, where another man with deep pockets — media mogul James Cox Kennedy — found a judge willing to go along with his move to curtail river access. The lower court judge had agreed that a 60-foot road easement narrows to the width of a bridge whenever the road crosses a river upstream from a wealthy landowner’s trophy ranch — thus keeping the riffraff out.

Kennedy’s interests extend beyond the easement dispute, as his attorney made clear at the court hearing on the campus of Montana State University. The state, Kennedy’s attorney argued, had been wrong all along in allowing any access on the Ruby. That’s an argument unlikely to gain much purchase with the Montana Supreme Court, but its intended audience is more likely the Roberts’ U.S. Supreme Court and its increasing obedience to the desires of the wealthy.

Meanwhile, the Montana-based Public Land/Water Access Association has taken up the fight, and we can only hope it will prevail. In the meantime, we need to understand that Montana’s Stream Access Law, which seemed a settled matter just a few decades ago has become the cause célèbre for several radical property-rights groups. They won’t be satisfied until they’ve gutted the law and replaced it with a feudal system, where the only folks able to float Montana rivers will be guides who have paid dearly for the privilege. Then, local people will also be forced to pay to do what generations of Montanans have always done: Float rivers and catch trout.

We’ve got our work cut out to keep that from happening.


Environmental coverage made possible in part by support from Patagonia. For information on Patagonia and its environmental efforts, visit www.patagonia.com. In affiliation with High Country News.


Rob Breeding is a contributor to Writers on the Range, a service of High Country News (hcn.org). He teaches journalism at Northwest College in Powell, Wyoming, writes an outdoors column for the Flathead Beacon newspaper in Kalispell. Photo by Wikimedia Commons


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{ 4 comments…read them below or write one }

  • Austin

    Ahh…. the sweet, sweet Jefferson. I grew up floating this river nearly every weekend. It’s one of my top priorities to go with my Dad every time I come home from Utah. In the next few years, I plan to pass along the tradition to my son. I, for one, would be devastated to see the access law overhauled.

  • Chase

    Great article Rob and keep fighting the good fight! I can’t image living in a place where touching the bottom of a free running stream is considered trespassing.

  • MarkG2

    My father has some friends who live in Montana. They live on a stream and are folks of substantial wealth. They knew of the laws before they bought. They have however commented that while most floaters are respectful of their privacy and property some aren’t. They have had folks peeing on the banks, leaving trash. They go out on a regular basis to pick up beer cans, cigarette butts and snack wrappers.

    It seems like some are taking this access for granted and feel that they do as they please and that can possibly ruin it for everyone. But isn;t that how it goes. The few F it up for everyone else.

  • nymphermaniac

    This will some day end with the golden rule: “Those with the gold make the rules.” Last fall, we (3), flew from Florida, to Missoula. We rented a cabin, car, etc., spending copious amounts.
    When fishing the Blackfoot at an access point, we saw landowners riding 4 wheelers, w/dogs and rifles. We didn’t know if they were looking for trespassers, but didn’t take any chances.
    We also saw loads of floaters (tubers) putting in for a day’s ride. Those people are the main trashers here on our Florida rivers. The bottom where they take out is coated with beer cans. We loved Ovando, MT., and the great cutthroat trout fishing, but we don’t be back.

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