Forty years ago, the Montana Supreme Court affirmed that the public may use rivers or streams – regardless of who owns the streambed or adjacent land – for recreation purposes. This is now known as Montana’s Stream Access Law, and it’s a beautiful thing. But we can’t take it for granted, as it continues to be challenged and threatened.
First, what exactly is the Stream Access Law? What constitutes recreation? And how are rivers and streams defined?
Following the Supreme Court’s establishment of the right, the 1985 Legislature determined that the public has a recreational easement over and across any land or water between a river’s “ordinary high water mark,” which is defined as “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.”
And “recreational use” is defined in law as “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.”
And while the public cannot cross private property to reach rivers, a law passed in 2009 cemented the public’s right to access streams and rivers using state or county roads or bridges. A beautiful thing indeed.
Our celebrated stream access hasn’t been without challenges, though. Here are a few examples of efforts to strip Montanans of their right to access our public water:
In 1987, Martinsdale rancher and landowner Jack Galt challenged stream access, all the way to Montana Supreme Court. Interestingly, Jack Galt is the uncle of Lieutenant Governor Kristen Juras, and the grandfather of former Speaker of the House Wylie Galt (R-Martinsdale). Thankfully, the Supreme Court upheld the public’s right to stream access, and Mr. Galt lost his case.
Then again in 2000, led by President Donald Trump’s acting – and then failed nominee for – Director of the BLM, William Perry Pendley, the Mountain States Legal Foundation sued to challenge Montana’s stream access. They too lost.
In 2009, seeking to block public access to the East Gallatin River where he lives, now Governor Greg Gianforte sued Montana FWP; the case was settled out of court and, thankfully, public access was restored and remains to this day.
A few years later, in 2014, the Montana Supreme Court again ruled in favor of the public, this time reaffirming the public’s use of state or county roads or bridges to access our waterways, defeating a long, well-funded challenge by billionaire out-of-state landowner James Cox Kennedy.
Most recently, in 2023, Senate Majority Leader Fitzpatrick (R-Great Falls) introduced a bill – SB 497 – that sought to change the laws under the section, “Recreational Use of Streams.” The bill passed committee on party lines, but then swift and unforgiving public outcry killed the bill on the Senate floor.
There are other examples as well, but the clear takeaway is this: Montana’s stream access law is deeply cherished and celebrated by Montanans and those who visit, but it is in no way safe.
To protect our access to water, we need to understand where the legislative and legal threats are coming from and recognize how crucial the Montana Supreme Court and its elected justices are in these decisions. And then we need to keep fighting like hell to defend it. Only then can we and our families keep enjoying it.
Graham Coppes is a water-rights attorney living in Missoula with his family. A former fishing guide, he volunteers on the board of the Montana Chapter of Backcountry Hunters & Anglers.