Access State Land via River

[Hersbird]

I guess I have to post here as the corner crossing topic although the same in nature is different in application. I don't see how this is settled. Why can't you fish back down the stream again exactly?

Ps worring about weaking the stream access is a straw dog. They already fought that fight and lost completely. They tried to take away even the Missouri for public use and now you want to baby them on the smaller streams? The law says what the law says, the stream laws only apply to what you do on the stream not before or after what you do on the stream.

 

[AvidIndoorsman]

I guess I have to post here as the corner crossing topic although the same in nature is different in application. I don't see how this is settled. Why can't you fish back down the stream again exactly?

Ps worring about weaking the stream access is a straw dog. They already fought that fight and lost completely. They tried to take away even the Missouri for public use and now you want to baby them on the smaller streams? The law says what the law says, the stream laws only apply to what you do on the stream not before or after what you do on the stream.

Not so much that you can't... just that it's pretty disingenuous to be huffing and puffing down the middle of a stream with 12 inches of water in it, with an elk hindquarter + head on your back, and then argue to the warden that you were just out there fishing. Especially on the subsequent pack out trips... oh yeah officer I just happened to want to rapidly fish up and down the stream 5 times in 24 hours.

I think if what your doing passes the smell test then go for it... but if you're being a idiot you deserve to get your ticket.

Now... say your duck spot is below the high water maker, but on private. You hunt the morning, then as you're walking down the river you cross into some state, a whitetail buck jumps out you put in some slugs and kill it. You then bone it out and pack it out in one trip with your ducks from the morning down through some more private... I think that's pretty legit. You didn't go up the river specifically to hunt the deer... it just kinda happened, and you didn't walk back up the river just to get the deer. You legitimately were walking up and down the river to hunt ducks, and in the regular course of that activity got a deer.

 

[Straight Arrow]

I caution against "fishing" up a small stream only to access through private property for hunting as a stream access ruse. If you "ponder" the access provision and merely fish as a means to engage in "water based recreation" with your rifle or bow on your back, intending to hunt up the stream upon reaching public land then you are intentionally illegitimately employing the valuable stream access law and potentially creating a situation which the property rights fanatics may try to address legislatively in a way that might then weaken the stream access law.

 

[Straight Arrow]

... worring(sic) about weaking(sic) the stream access is a straw dog. They already fought that fight and lost completely.

Not exactly. I encourage you to review water access related bills proposed during the past few legislative sessions and consider the political make-up of the Montana Legislature of late. It is only due to folks like Tony Schoonen and other strong advocates and influential groups that the access has not been watered down (pun intended). Trying to "game" the rules so hard fought for is ill-advised, especially if just for a personal ploy for hunting access just for you.

 

[Hersbird]

Let's talk about the spirt of the law and where the rights have come from. First it's the stream access law not the limits of stream access law. Second the rights come from the traditions in place before we were even a country. The rivers and streams are the highways, the access to the land. Those using them were hunters and trappers along with miners and just plain explorers (hikers). It wasn't just "water based recreation". So "regrettably" lawyers added language to a law to unnecessarily make grey areas, go figure. My argument is that language is only there to prevent big game hunting in the actual stream bed. Without that, there would be people shooting elk right on the gravel bar which is like shooting an elk right on the highway. Some people seem to think this law somehow prevents doing something otherwise completely legal at a later time because of what you have done earlier that day. Stop reading in to what the law says.

 

[joelweb]

I guess I have to post here as the corner crossing topic although the same in nature is different in application. I don't see how this is settled. Why can't you fish back down the stream again exactly?

Ps worring about weaking the stream access is a straw dog. They already fought that fight and lost completely. They tried to take away even the Missouri for public use and now you want to baby them on the smaller streams? The law says what the law says, the stream laws only apply to what you do on the stream not before or after what you do on the stream.

I'm no lawyer, but I've been told by FWP that as long as you are doing the below while traveling below the high-water mark it is legal:

Recreational use" is defined as: 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."

 

[Straight Arrow]

Recreational use" is defined as: 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."

Good quote, however there are some nuances regarding "big game hunting". Go to the Montana FWP website, bring up Stream Access, then download the Stream Access brochure and read the fine print. It's only two pages, but gets very specific.
No lawyer myself, but the language seems pretty clear ... if you read it all, not just what you may think supports your opinion.

 

[Hersbird]

The language applies only to what you are doing between the high water marks, not what you do before or after.

 

[AvidIndoorsman]

The language applies only to what you are doing between the high water Mark's, not what you do before or after.

Agreed.

But the law defines legal activities as recreational use and those activities are defined.

(10) "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.

Hiking and or packing meat are not included in the list. You are not allowed to hike up streams, and I doubt anyone would constitute hiking as a water-related pleasure activity.

If you read my example you will see the nuance and what is not permissible and what is likely permissible.

Removing your animal from the field, needs to be done as part of one of the enumerated recreational uses. That's why it's 100% legal to use a boat to pack out an animal, boating is enumerated. It's also probably legal to pack out a deer, in one trip, after duck hunting, as it is unavoidable use tied to waterfowl hunting which is a permissible activity. You aren't arguing that you are hunting your way down the river with a 80lb pack, your arguing that you used the river to access a hunting spot, now your hiking, but that hiking is necessary to do a legal protected activity within the stream.

 

[Sytes]

Less one deems the other to be in violation - here, you have the law as it applies in Montana.

 

[Sytes]

I just spoke with MT FWP - They said you may use a stream below the high water mark to transition from / to public land for the purpose of hunting. You may not hunt from the stream.

 

[joelweb]

And I've discussed this with a game warden as well as FWP in Helena. Not trying to debate, just restating the agency's interpretation as communicated to me that you can participate in an allowed activity while below the high-water mark and then switch to hunting while on public land. If you're packing meat back to your rig, you'd better be fishing or participating in another allowed activity then too...

I think this provision in the stream access guide captures the same line of thinking for hiking. The difference being that you always need permission to hunt on private land in Montana even if a property isn't posted:

 

[Schaaf]

 

[AvidIndoorsman]

Bill Galt whining about stream access

I will always thank Anthony Bourdain for airing the Galt family crying about stream access on national television.

Also: I used to be able to embed youtube videos, how do I do that now?

 

[Schaaf]

Wllm, you could have sent that in a PM and not expose me so hard. damn.

 

[AvidIndoorsman]

Wllm, you could have sent that in a PM and not expose me so hard. damn.

My bad, yeah Dennis Leary wrote a song about me a while back... but you know hard to change...

 

[Sytes]

Dang @wllm1313 , Have a little respect for your fellow HT members...
For sake of those complicating the simple, K.I.S.S., all you need to do is copy / paste the YouTube link onto your post.

Not Safe For most Work and family settings (hereinafter NSFW):
Y'er such an a-hole... Before the usual HT members assume their little noggins worth of brain power - t'is humor.

 

[AvidIndoorsman]

Dang @wllm1313 , Have a little respect for your fellow HT members...
For sake of those complicating the simple, K.I.S.S., all you need to do is copy / paste the YouTube link onto your post.

Not Safe For most Work and family settings (hereinafter NSFW):
Y'er such an a-hole... Before the usual HT members assume their little noggins worth of brain power - t'is humor.

When I see a lifted Raptor in the rear view coming up fast with Texas plates...

"I drive really slow in the ultra fast lane
While people behind me are going insane"

So satisfying.

 

[NEWHunter]

This thread brings back memories of Topgun , Buzz, interstates, and dumpster fires.

 

[Elkwhisper]

Maybe you didn't ask or recieve a nuanced answer or there was a miscommunication somewhere.

Question: Is it legal to access state land by boat?

From the stream access brochure: What types of activities between the ordinary high-water marks require landowner permission?
Type II Waters
... "Big-game Hunting"
... using a streambed as a right-of-way for any purpose when no water is
flowing.

If you float and embark from a road easement or other public access point on a type II river you my float to a piece of state land or any other BLM land and hunt that property. You may hunt waterfowl or fish while in transit on that type II waterway but can't big game hunt until you are on the state lands.

The law also states that you must have permission for
• any other pleasure activities not primarily water related.

This would include hiking, so you cannot hunt for deer within the high-water mark of a stream, but you can fish with a rifle on your pack while walking up a type II stream that has water in it until you are on public land and then hunt said property, and this fish your way back. You could substitute waterfowl for fish and also be legal.

http://fwp.mt.gov/fwpDoc.html?id=24929

So if I am archery hunting waterfowl (which is a legal means of take) while wading / walking within the high water marks.... I am good to go... right? No need to haul a fishing rod if I am already archery hunting from what I can see.