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Why does Montana have such strong stream access laws?

The Blackfoot River in western Montana flows past a stretch of private land with a cabin near the riverbank.
Josh Burnham
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The Blackfoot River in western Montana flows past a stretch of private land with a cabin near the riverbank.

Austin Amestoy Welcome to The Big Why, a series from Montana Public Radio where we find out what we can discover together. I'm your host, Austin Amestoy. This is a show about listener-powered reporting. We'll answer questions, large or small, about anything under the Big Sky by Montanans. For Montana, this is the Big Why. This week's question comes to us from a listener.

Joice Franzen My name's Joice Franzen. I live in Helena and I am an elementary librarian.

Austin Amestoy When she was in her 20s, Franzen traveled to Kansas with some friends and they made some plans to go tubing. To her surprise, they had to get permission to float through private land.

Joice Franzen And it just blew my brain. Like, what? Why would you have to do that?

Austin Amestoy She was so blown away because back home in Montana, she was used to just hitting the water and going wherever the river takes her, no permission necessary. And that's because in Montana, we have this very particular law. It says that anybody can fish or recreate on streams and rivers in the state below the high-water mark, regardless of who owns the land beneath them.

Joice Franzen And I learned the Montana Stream Access Law that allows us to float and fish is actually quite unique in our country.

Austin Amestoy In fact, when it passed in 1985, Montana's law became arguably one of the strongest for public access in the nation. So the more she learned, the more she got to wondering ...

Joice Franzen What inspired Montana's stream access laws?

Austin Amestoy Joining me to get to the bottom of Franzen's question is MTPR producer Nick Mott.

Nick Mott Thanks, Austin. It's good to be here. So one thing I'm wondering, right off the bat, you said the stream access law passed in 1985. So what was the situation before that law was on the books?

Austin Amestoy Yeah. For more on that, I turned to Jim Goetz. He's 80 years old and has spent much of his life working as a lawyer in the state.

Jim Goetz Montana's law was pretty murky and somewhat hostile to a citizen's right to use the rivers.

Austin Amestoy Goetz says some public land proponents at the time wanted to strengthen and clarify those rules. After all, access was a big deal in Montana even back then. So they looked for test cases, basically lawsuits that would force the courts to clarify things one way or the other. With Goetz as the lawyer, they filed two lawsuits, and the stakes were high.

Jim Goetz As a lawyer, you, you know, you're taking risks. You may lose a case, but this was a case I just always felt we could not afford to lose.

Austin Amestoy If Goetz had lost the cases stream access could have been limited in Montana, rather than expanded.

Nick Mott But sounds like he didn't lose.

Austin Amestoy He didn't. Goetz won big; twice in the same year. In both cases, Goetz and his client, the Montana Coalition for Stream Access, successfully argued that the 1972 Montana Constitution protects the public's right to enjoy the state's waterways. Article nine section three says the state owns all surface, underground, flood and atmospheric waters for the use of its people. The state stream access law that passed in 1985 came out of those two lawsuits.

Nick Mott So just like so many of these Big Why episodes, it all comes back to 1972.

Austin Amestoy Yeah, the constitutional convention created the foundation that Montana law and our rights as citizens in the state are based on. The stream access law does have a couple of guardrails though. For one, recreationists must stay within the stream's normal high-water mark. Straying outside that on private land means you're trespassing if you don't have permission. Second, people have to be fishing, floating or using the stream for a recreational purpose related to the water. That means you can't be using the stream to access a different location or hike within the stream bed.

Nick Mott Gotcha. So with anglers and floaters floating and waiting around private property, I got to imagine this law was controversial. Did the story of stream access end there in 1985 when that law got passed?

Austin Amestoy It most certainly did not. And to dig into that, I'm going to take you to one specific river.

Our question this week comes from a listener in Helena named Bob Flipovich, who wants to know who owns the most water rights in Montana. Water rights determine who can take water out of our lakes and streams, and how much they can take.

Michael Howell This is the Bitterroot River sometimes called Mitchell Slough.

Austin Amestoy That's Michael Howell. He's the former editor of The Bitterroot Star, a paper that serves communities in the Bitterroot Valley. Howell lives in Stevensville and his house is a short drive from Mitchell Slough. The stream is a branch of the Bitterroot River, and it inspired one of the most consequential legal battles in the history of the stream access law.

Nick Mott Ooh, that sounds juicy. What do you mean?

Austin Amestoy Well, this is a pretty complicated story, so let me set the scene first. The stream runs for more than 10 miles through a patchwork of private property in the Bitterroot Valley.

Michael Howell All of this that we're standing on is private property.

Austin Amestoy Some segments are owned by celebrities like singer Huey Lewis and Finance Corporation founder Charles Schwab. In the early '90s, Howell was present for a test of the stream access law on the Mitchell when two brothers fished in the Slough and were arrested for trespassing.

Nick Mott Wait, why were they arrested? Doesn't the law say anybody can recreate on state streams?

Austin Amestoy It does. And the brothers were acquitted under the law. But that was just the start of the Mitchell Slough story. Howell documents the play-by-play in a book he published in 2021 called "Saving the Mitchell." Through the '90s, Howelll says landowners along the stream made attempts to reduce or eliminate public access. The heart of the debate over Mitchell Slough soon boiled down to one question: Is it a stream or a ditch?

Nick Mott So why was that one question so important?

Austin Amestoy Well, Nick, a ditch is a manmade waterway, and Montana's stream access law only covers natural features. The landowners around the Slough argued they'd altered it so much over time, installing head gates and diversions that it was no longer a natural stream. And the local conservation district initially agreed. But not everyone was on board with the idea here. Howell describes the reaction from a retired forester to that decision.

Michael Howell He said to him, 'You know you guys, I've been everywhere on this thing that you're calling Mitchell Slough, and there is no Mitchell Slough. It's the Bitterroot River.'

Austin Amestoy Howl and others formed the Bitterroot River Protection Association at the turn of the millennium, and the group sued the conservation district in 2003 to stop it from listing the slough as a ditch.

Nick Mott So how did that case shake out?

Austin Amestoy Ultimately, it all came down to a Montana Supreme Court decision in 2008. The judges ruled in favor of those who said Mitchell Slough was natural in origin, and that made it a stream and not a ditch. But Howell says the court's decision revealed the debate over the Mitchell wasn't about whether it was a ditch or a stream at all.

Michael Howell It's really about who owns the water. Who owns the water answers the whole question. It's the public's water, is what the Supreme Court decided unanimously.

Austin Amestoy The case in the Bitterroot reaffirmed this big legal idea behind the stream access law and that section of the Constitution, the public trust doctrine.

Nick Mott Ooh, new legal lingo.

Austin Amestoy Yeah, you got to love lingo. But this bit is pretty simple. Basically, the doctrine says that governments can hold certain portions of navigable water in the public trust, regardless of who owns the land around those areas. This, to me, is the real answer to Joice Franzen's question. It's what inspired Montana's stream access law. Public trust has its roots about 1,500 years ago, way back during the Byzantine Empire, where Emperor Justinian first ruled that the sea shore and all running water belonged to the people. And that legal ground has proven to be pretty solid. With some clarifications and updates from time to time, courts have refused to overturn the idea that Montana's streams and rivers belong to the public.

For this episode of The Big Why, we’re talking about salmon. They can travel hundreds of miles from the Pacific Ocean up the Columbia River to spawning grounds in Washington, Oregon and Idaho, but did they ever make it to Montana? That’s what fly fisherman and Anaconda resident Rob Murray wants to know.

Nick Mott So I've got to imagine this law is still evolving, at least in some ways. Is there still pushback today?

Austin Amestoy Yeah, there definitely are some folks who aren't too happy with it. Most of the suits brought against the law have come from landowners, so I called up Chuck Denowh. He's the executive director of United Property Owners of Montana. Denowh told me some Montana landowners still feel their property was unjustly taken from them with the passing of the stream access law. He says there are legal processes for the public to gain easement on or obtain property.

Chuck Denowh Stream access wasn't done that way. There were definite winners and losers in that case.

Austin Amestoy Denowh said that while there aren't any major lawsuits underway now, he can still see the potential for future challenges to the access law.

Chuck Denowh There's a lot of waterways in Montana that are accessible through the Stream Access Law, where private, individual or a corporation holds titles of that property and pays taxes on that property. So that's that's a misconception that I think is important for people to realize, that that is still somebody's property that they're there recreating upon.

Nick Mott All told, though, it doesn't sound like that law is going anywhere, at least not anytime soon.

Austin Amestoy I'd say that's a good assessment, Nick.

Now we want to know what makes you curious about Montana. This show is all about answering your questions, so send them to us below or at www.mtpr.org/bigwhy. Find us wherever you listen to podcasts and help others find the show by sharing it and leaving us a review.

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Austin graduated from the University of Montana’s journalism program in May 2022. He came to MTPR as an evening newscast intern that summer, and jumped at the chance to join full-time as the station’s morning voice in Fall 2022.
Nick Mott is a reporter and podcast producer who focuses on wildlife, natural resources, and the environment. He was editor on the podcasts Shared State and Fireline, and producer on the podcasts Threshold and Richest Hill.