Steam access

[fowl_minded]

I am sure this has been touched upon but I have heard it both ways. Can a hunter access a public land area by use of the water. I asked the Fwp about it once and they said that I couldn't access a state piece by using the high water mark for big game hunting. The first thing that came to my mind was well about 95 percent of hunters in the breaks are accessing it illegally then ( which made no sense), I thought that can't be right so I asked again and got the same answer. In the regs however there is nothing that says that. The regs only say that you cant hunt the islands between the high water mark without permission granted by the adjacent landowner. Well what if that island is state or blm, or the high water mark of the river touches blm or state? Can you legally access it?

 

[Big Fin]

If there is a part of the MT regulations that need clarification, it is your example, especially where it concerns state trust land. I was told by a warden that I could not access land (it was state trust land and I was not aware enough to ask if that made a difference) by using the stream access law and staying within the high water mark. I was told another time that I could use the stream access law to do just that for big game hunting (this time it was central MT and it was BLM land). That warden said they look at stream access as being the equivalent of floating - you are using a state asset, the river bed, for your access. He did not see how any distinction could be made between floating to the BLM land or walking within the high water mark.

I think MT would do us all a favor by making the answer to that question better known. I am not smart enough to answer it, so when in doubt, I usually call the local warden who would be dispatched to the scene of this heinous crime if a trespass claim were made by an adjacent landowner.

 

[Straight Arrow]

Generally, the Montana Stream Access law, as described in annotated code, allows for "water recreation" activities and actually excludes "big game hunting", so it would be prudent not to attempt to "nit-pick" the valuable stream access law as an "armchair" lawyer to try to find create ways to access those places otherwise inaccessible for your hunting plans. It potentially could lead to further access restrictions.

On the other hand, my interpretation regarding the use of boats on the Missouri River to access areas in the Breaks, is just that ... use of boats, thus a "water recreation" activity. After the boat is parked and you hike into the BLM land, then you are hunting with recognized access. Hunting islands on the river with private land on the adjacent banks is probably a bad idea, but I really don't have any information regarding the legality.

One misinterpretation that I know concerns FWP is the idea of hiking up a stream through private property to access a public hunting area. That is clearly interpreted as stream access for "big game hunting" not for "water recreation" and is not allowed by statute.

Having said that, I agree and think that both the FWP access information and the statute itself need clarification with regard to hiking and hunting access.

 

[jbm]

this is just another area that should not have a gray area to it . a hunter planning to big game hunt in mt should not need a lawyer on retainer just to find out where and where not he can hunt.. anybody i ran into a gray area kinda like this when i did a subdivision on some land i own . 1 -5 lots is a minor subdivision and 5 -? is a major subdivision
i am no lawyer but from the very first meeting i could see a huge problem . the number 5 is in both minor and major and this leads to real problems if you are doing a subdivision that will have 5 lots. the requirements are a lot less for minor over a major but with 5 in both just leads to a lot of problems. these are all things that should be black and white. gray areas lead to huge headaches and it can hard to see that line in the sand and makes it to easy to cross . the game warden handing out the ticket will always say he is right and the hunter will always say he is right . its a no win for both sides and needs to be fixed.
right now the state has no reason to fix it as long as they keep handing out tickets and most hunters giving in and just paying the ticket.

 

[mdunc8]

I've been told by a warden that you can't access by walking within the high water mark; you need to be in a boat and it needs to be a "navigable river." As of others have said, it could probably use some clarification at a state level so you're not relying on opinions.

From PLWA - [Navigable rivers] have been researched and are specifically enumerated in 2008 DNRC regs as : the Big Hole, Big Horn, Bitterroot, Blackfoot, Boulder (Yellowstone drainage. ) , Bull River, Clark Fork , Clearwater, Dearborn, Dupuyer Creek, Flathead River including Middle, North, and South forks, Fortine Creek, Gallatin river, Graves Creek, Jefferson , Kootenai, Lolo Creek, Madison, Marias, Milk, Missouri, Nine Mile Creek, Rock Creek (Yellowstone Drainage.) , Sheep Creek, Smith River, Stillwater River (Flathead drainage.) , Sun River, Swan, Teton, Tobacco, Tongue, Whitefish, Yaak, and Yellowstone. (The smaller streams or rivers on the state list may or may not be recognized as navigable by the Federal agencies. They recognize navigability only if it has gone to federal court and so adjudicated. )

Hunting islands on the river with private land on the adjacent banks is probably a bad idea, but I really don't have any information regarding the legality.

Established islands (i.e., not simply a newly deposited gravel bar, but a chunk of land that exists above the high water mark within the river) are either private or public. The adjacent land has nothing to do with whether it's one or the other. Where I've worked in eastern Montana, most are private, but there are some that are public.

 

[Straight Arrow]

jbm, Forgive me for assuming you're referring to Missoula County, and not meaning to be argumentative, I agree with you regarding the ambiguity of county and state regulations and rules generally.
But it seems to me the subdivision rules in your county are much more clear than the access rules for stream access or for hunting access.

Right out of the Missoula County Subdivision regulations definitions:
A.Major Subdivision:A subdivision of land in which 6or more lots are created.
B.Minor Subdivision:A subdivision of land in which 5or fewer lots are created.

 

[jbm]

yes you would think so but they are not with the number 5 in both minor and major
it is up to the county to rule your subdivision if it is 5 lots as minor or major
and yes this was in missoula county. they should have 1-5 as a minor and 6-? as a major
but they have 5 in both

 

[Poke 'Em]

The way I've always interpreted it is that you cannot big game hunt below the high water mark adjacent to private lands (you can fish or hunt small game though). I don't see how they could say you couldn't float through to hunt a piece of public land though.

 

[James Riley]

Strange. I would think "below the ordinary high water mark" States would allow that use for access to public land otherwise open to big game hunting. But I guess each state gets to parse a hair any way they want. To say you could access via stream bed for land that you could also access by road, but you can't access via stream bed for land that you could otherwise not get to (except by air) is pretty stupid, in my opinion.

The island issue is unique. Usually the law on avulsion/accretion inures to the detriment/benefit of the adjacent land owner(s) and an island above the ordinary high water mark would be included. But an island below that mark, in those states, I would think would be open to big game hunting. But if the state wants to say no, I reckon they can.

In Colorado you can float through but not walk (it's not an ordinary high water mark state like ID and, I assume from your discussion, MT). Hell, in WY, it is my understanding, you can't even float through!

There is a possibility of conflict between state and federal law on these issues. Some folks would like to see it resolved in favor of the feds. Me (a land owner in Colorado) not so much. A body might want to think about it before pursuing it since "waters of the United States" can be (and has been) read so broadly as to include anything, even if it's not navigable in the traditional sense. Then EPA can come in, as well as other regulatory agencies, and untended consequences might bite you on the ass.

An alternative would be paying for, or barring that, condemnation of easements for access. Ask the Donald.

And, you know, deer ain't all that big. Maybe classify them as small game. (Tongue/cheek).

 

[Wasurveyor]

How about accessing national forest from a navigatable river, but where you launch from the river is not defined as navigable by the state. You have to float using stream access to access the navigable river. I have Been told by LE that stream access law does not grant access to adjoining public land unless you can access the land from a public trail or road. Then it can also be accessed from the stream

 

[wytex]

Navigable waters are floatable in Wyoming with access for portage around fences and obstructions allowed. Unless this has changed recently.

 

[Wasurveyor]

I should have mentioned I'm referring to montana

 

[Straight Arrow]

The Montana Stream Access Law does distinguish between access for fishing and access for hunting using Montana streams. It is wise to research that aspect.

 

[phutch30]

The Montana Stream Access Law does distinguish between access for fishing and access for hunting using Montana streams. It is wise to research that aspect.

It makes a distinction about "HUNTING" big game WITHIN the high water access, it does not state that it cant be used as a travel lane.

23-2-302. Recreational use permitted -- limitations -- exceptions. (1) Except as provided in subsections (2) through (5), all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters.
(2) The right of the public to make recreational use of surface waters does not include, without permission or contractual arrangement with the landowner:
(a) the operation of all-terrain vehicles or other motorized vehicles not primarily designed for operation upon the water;
(b) the recreational use of surface waters in a stock pond or other private impoundment fed by an intermittently flowing natural watercourse;
(c) the recreational use of waters while diverted away from a natural water body for beneficial use pursuant to Title 85, chapter 2, part 2 or 3, except for impoundments or diverted waters to which the owner has provided public access;
(d) big game hunting;
(e) overnight camping unless it is necessary for the enjoyment of the surface water and the campsite is not within sight of any occupied dwelling or the campsite is more than 500 yards from any occupied dwelling, whichever is less;
(f) the placement or creation of any permanent duck blind, boat moorage, or any other permanent object;
(g) the placement or creation of any seasonal object, such as a duck blind or boat moorage, unless necessary for the enjoyment of that particular surface water and unless the seasonal objects are placed out of sight of any occupied dwelling or more than 500 yards from any occupied dwelling, whichever is less;
(h) use of a streambed as a right-of-way for any purpose when water is not flowing in the streambed.
(3) The right of the public to make recreational use of class II waters does not include, without permission of the landowner:
(a) big game hunting;
(b) overnight camping;
(c) the placement or creation of any seasonal object; or
(d) other activities that are not primarily water-related pleasure activities as defined in 23-2-301(10).
(4) The right of the public to make recreational use of surface waters does not grant any easement or right to the public to enter onto or cross private property in order to use those waters for recreational purposes.
(5) The commission shall adopt rules pursuant to 87-1-303, in the interest of public health, public safety, or the protection of public and private property, governing recreational use of class I and class II waters. These rules must include the following:
(a) the establishment of procedures by which any person may request an order from the commission:
(i) limiting, restricting, or prohibiting the type, incidence, or extent of recreational use of a surface water; or
(ii) altering limitations, restrictions, or prohibitions on recreational use of a surface water imposed by the commission;
(b) provisions requiring the issuance of written findings and a decision whenever a request is made pursuant to the rules adopted under subsection (5)(a); and
(c) a procedure for the identification of streams within class II waters that are not capable of recreational use or are capable of limited recreational use, and a procedure to restrict the recreational use to the actual capacity of the water.
(6) The provisions of this section do not affect any rights of the public with respect to state-owned lands that are school trust lands or any rights of lessees of those lands.

History: En. Sec. 1, Ch. 429, L. 1985, and Sec. 2, Ch. 556, L. 1985; amd. Sec. 1, Ch. 327, L. 2015.

23-2-301. Definitions. For purposes of this part, the following definitions apply:
(1) "Barrier" means an artificial obstruction located in or over a water body, restricting passage on or through the water, that totally or effectively obstructs the recreational use of the surface water at the time of use. A barrier may include but is not limited to a bridge or fence or any other artificial obstacle to the natural flow of water.
(2) "Class I waters" means surface waters, other than lakes, that:
(a) lie within the officially recorded federal government survey meander lines of the waters;
(b) flow over lands that have been judicially determined to be owned by the state by reason of application of the federal navigability test for state streambed ownership;
(c) are or have been capable of supporting the following commercial activities: log floating, transportation of furs and skins, shipping, commercial guiding using multiperson watercraft, public transportation, or the transportation of merchandise, as these activities have been defined by published judicial opinion as of April 19, 1985; or
(d) are or have been capable of supporting commercial activity within the meaning of the federal navigability test for state streambed ownership.
(3) "Class II waters" means all surface waters that are not class I waters, except lakes.
(4) "Commission" means the fish and wildlife commission provided for in 2-15-3402.
(5) "Department" means the department of fish, wildlife, and parks provided for in 2-15-3401.
(6) "Diverted away from a natural water body" means a diversion of surface water through a constructed water conveyance system, including but not limited to:
(a) an irrigation or drainage canal or ditch;
(b) an industrial, municipal, or domestic water system, excluding the lake, stream, or reservoir from which the system obtains water;
(c) a flood control channel; or
(d) a hydropower inlet and discharge facility.
(7) "Lake" means a body of water where the surface water is retained by either natural or artificial means and the natural flow of water is substantially impeded.
(8) "Occupied dwelling" means a building used for a human dwelling at least once a year.
(9) "Ordinary high-water mark" means 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. Characteristics of the area below the line include, when appropriate, but are not limited to deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural vegetative value. A flood plain adjacent to surface waters is not considered to lie within the surface waters' high-water marks.
(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.
(11) "Supervisors" means the board of supervisors of a soil conservation district, the directors of a grazing district, or the board of county commissioners if a request pursuant to 23-2-311(3)(b) is not within the boundaries of a conservation district or if the request is refused by the board of supervisors of a soil conservation district or the directors of a grazing district.
(12) "Surface water" means, for the purpose of determining the public's access for recreational use, a natural water body, its bed, and its banks up to the ordinary high-water mark.

History: En. Sec. 1, Ch. 429, L. 1985, and Sec. 1, Ch. 556, L. 1985; amd. Sec. 2, Ch. 28, L. 1991; amd. Sec. 360, Ch. 56, L. 2009; amd. Sec. 15, Ch. 235, L. 2013.


I have on several occasions been told by law enforcement that it was not legal and have always told them feel free to write a ticket. I haven't been ticketed yet.

 

[Straight Arrow]

... t does not state that it cant be used as a travel lane.

Agreed, but then again it does not state that it can, so "travel lane" use is an assumption. I don't know what the legal precedent may be, if there is one. It would seem that retrieval may be an issue precluding extensive "travel lane" use of the stream access law. The "travel lane" stream access to public land for hunting would be an interesting question for FWP legal department or the Goetz Law Firm.

If anyone has some solid legal precedence or recognized legal opinion to cite, please chime in.

 

[Wasurveyor]

The instance I'm referring to is, from a public boat launch on a "my" river. I have to float about 500' then the river is considered navigable by Montana state law. Is it then legal to access public land from the navigable river even though I accessed the river through stream access.

 

[Wasurveyor]

You could technically access it from all navigable water but you would have to travel upstream. So technically it does have public easement, the navigable river, connecting it to public land

 

[Coyotes-R-Us]

I had one FWP officer define " navigable " as any waters used for commerce , including, old time trappers...
BUT the Steam/river have to have water apposed to dry.
SOOOO like an air boat can't run up a dry river and get access unless there is at least SOME pools , you can't drive an ATV or snowmobile on it anyway .