Stream Access

UPOM has released a Stream Access Guide for Landowners. Click here to download.

PhotographThe 2009 legislature updated Montana’s stream access law to reflect recent court decisions that helped clarify the rights landowners have at bridges; most importantly it stated landowners may continue to attach fences to bridge abutments. During the legislature landowner groups asked for and received a trio of amendments to set in statute property-rights protections, including exempting landowners from most liability at bridge access sites, specifying that access is not created at bridges on prescriptive roads, and helping to define the types of fences that provide adequate access and do not need to be replaced.

With nearly-unanimous support for the 2009 legislation, we're cautiously optimistic that this issue is largely put to rest. However, we're going to continue to monitor stream access and help any landowners who find themselves party to an access dispute at a bridge site.



How the new bridge access process works

A landowner may continue to attach a fence to a bridge abutment for “livestock control or property management,” however a fence may not present an impediment to public access to the waterway via the road right-of-way (typically extending 30 feet from the center of the road). The public does not have a right to trespass beyond the road right-of-way, so in the case of most prescriptive roads (which typically have rights-of-way restricted to the width of the roadway) access is not allowed.

The new law allows any member of the public to file a complaint with the Department of Fish, Wildlife, and Parks over disputed access. The Department then initiates a negotiation with the landowner regarding access improvements. If after 60 days from the initial contact an agreement is not reached, the Department will then offer a series of options to install an access feature. If after an additional 30 days the landowner does not accept one of these access options, the Department may choose and install one of them without the landowner’s permission.

The types of access features the law specifies are a wood rail fence, a stile, a gate, a rollover, and a walkover, though other access features may be utilized as well as long as agreed on by the Department and the landowner. In all cases, the Department, or any third-party group, is responsible for paying for the access changes, though a landowner may install the changes himself as well. Only one access feature on each side of the stream is required.



Know Your Landowner Rights

  • Landowners are not required to install gates at bridge sites. As long as a fence allows reasonable access for the public it does not need to be replaced. The law specifies that typical wood-rail fences are acceptable as long as they do not inhibit access. The law also spells out other non-gate access features that are acceptable at a bridge site.

  • Landowners may fence across a waterway at a bridge site. Landowners may fence across waterways as long as the public has portage access on both sides of the bridge. The public may cross private land to portage around man-made obstructions, but must do so in the least obtrusive manner possible.

  • The public may not dictate the type of access feature installed at a bridge site. The law is clear that decisions about any modifications to fences attached to bridges are to be made in negotiations between the landowner and the Department of Fish, Wildlife, and Parks only. The landowner has the right to select the type of access modification that works best for him, though if this decision is not made in the specified time frame, the Department may select an access feature and install it without the landowner’s permission.

  • Access from bridges does not apply for most prescriptive roads. The stream access law allows the public to utilize the rights-of-way of county roads to access the water. The rights-of-way for most normal county roads are 30 feet on each side from the center of the road. However, the right-of-way width for most prescriptive roads is only the width of the roadway itself, so there is no room for the public to gain access to the waterway without trespassing on private land. The Department of Fish, Wildlife, and Parks cannot require a landowner to modify a fence at a bridge unless there is definitive proof that the 30-foot right-of-way exists.

  • Landowners are not responsible for paying for modifications to fences at bridges. The Department of Fish, Wildlife, and Parks, or a private third-party group, is responsible for paying for any modifications at a bridge site. The landowner may opt to pay for modifications himself as well.

  • Only water-related recreation activities are allowed. The stream access law does not include trapping, big-game hunting, hiking, or overnight camping (with special exceptions). The public has access only between the normal high water marks of the waterway and only for water-related activites. Operating an all-terrain vehicle or other motorized vehicle not intended for use on the water is prohibited.

  • Landowners should continue to post their property. The stream access law does not prohibit landowners from posting their private property, in fact landowers should always post thier property at bridge sites to prevent trespassing. If an access point is not posted, the public has no way of knowing the property is private.


Download UPOM's Stream Access Guide for Landowners



Where is stream access allowed?

Montana law differentiates between Class I and Class II waters for recreational purposes. Class I waters are those capable of recreational use and specifically designated as navigable for recreational purposes. A list of designated Class I waters is below. Class II waters are those capable of recreational use that are not Class I waters; in other words, they're rivers and streams that could be used for recreation but have not been specifically designated by FWP as navigable for recreation purposes. The public is not allowed to use stock ponds or private impoundments fed by intermittent streams. The public is also not allowed to recreate on water diverted away from a stream, such as an irrigation canal or drainage ditch. Dry streambeds cannot be used for access under any circumstances.

There are a couple of differences between Class I and Class II waters that landowners should know about:

  • Commercial activity, such as outfitting with multiperson watercraft, is only permissible on Class I waters.
  • Overnight camping may be permissible on on Class I waters, but only when necessitated by a water-based recreational activity and only when done more than 500 yards from any occupied dwelling. Overnight camping is not permitted on Class II waters.
  • The placement of a temporary, seasonal object used in connection with water-based recreation, such as a duck blind or boat moorage, is permissible on Class I waters; however, such objects are not permissible on Class II waters. The placement of any permanent object is prohibited on both Class I and Class II waters.

Designated Class I waters:

Kootenai River Drainage

  • Kootenai River from Libby Dam to Idaho border
  • Lake Creek from the Chase cutoff road to the Kootenai River
  • Yaak River from the Yaak Falls to the Kootenai River

Flathead River Drainage

  • South Fork of the Flathead from Youngs Creek to Hungry Horse Reservoir
  • Middle Fork of the Flathead from Schaffer Creek to the mainstem of the Flathead
  • Flatead River mainstem to its confluence with the Clark Fork River

Clark Fork of the Columbia River Drainage

  • Clark Fork River from Warm Spring Creek to the Idaho border
  • North Fork of the Blackfoot from Highway 200 east of Ovando to the mainstem of the Blackfoot River
  • Blackfoot River from the Cedar Meadow fishing access site west of Helmville to the Clark Fork confluence
  • Bitterroot River from the confluence of the east and west forks to its confluence with the Clark Fork
  • Rock Creek from the confluence of the West Fork to its confluence with the Clark Fork

Missouri River Drainage

  • Missouri River from Three Forks to the North Dakota Border
  • Beaverhead River from Clark Canyon Dam to its confluence with the Jefferson
  • Big Hole River from Fishtrap fishing access site at Wisdom to its confluence with the Jefferson
  • Gallatin River from Taylors Fork to its confluence with the Missouri
  • Jefferson River to its confluence with the Missouri
  • Madison River from Quake Lake to its confluence with the Missouri
  • Dearborn River from the Highway 434 bridge to its confluence with the Missouri
  • Sun River from Gibson Dam to its confluence with the Missouri
  • Smith River from Camp Baker fishing access site near Fort Logan to its confluence with the Missouri
  • Marias River from Tiber Dam to its confluence with the Missouri
  • Judith River from the confluence of Big Spring Creek to its confluence with the Missouri

Yellowstone River Drainage

  • Yellowstone River from Yellowstone National Park to the North Dakota border
  • Bighorn River from Yellowtail Dam to its confluence with the Yellowstone
  • Tongue River from Tongue River Dam to its confluence with the Yellowstone

Note: this list is subject to change.