Access State Land via River

[Straight Arrow]

This thread popped into my mind while having a roadside chat with a game warden here in Montana a couple weeks ago. I asked him "Would it be legal for me to hike up the side of a river going through private land, but always staying below the high-water mark, to access public land to hunt for deer or elk?" His response was that as long as I started on public or private that I had permission to be on, and stayed within the public stream access while traversing the private, I was good to go. I asked a few follow up questions, but as far as he was concerned it would be perfectly legal and he would not write a ticket for it.

Typically the "rivers" in Montana are navigable and that scenario does not seem to be the point of contention. A typical legal hunting scenario involves boating on the Missouri River through private property to access public BLM land for hunting the Breaks.

The issue arises when the scenario involves Class II smaller streams or creeks someone wants to wade up to access public land beyond private property. An example of that would be wading between high water marks of Rock Creek through the Crazy Mountain Ranch to gain access to the west slope USFS public land of the Crazy Mountains. Methinks your warden acquaintance just might write you up for that one. (Especially after receiving photos and your license plate number from the CMR Marlboro wranglers.)

 

[theat]

Typically the "rivers" in Montana are navigable and that scenario does not seem to be the point of contention. A typical legal hunting scenario involves boating on the Missouri River through private property to access public BLM land for hunting the Breaks.

The issue arises when the scenario involves Class II smaller streams or creeks someone wants to wade up to access public land beyond private property. An example of that would be wading between high water marks of Rock Creek through the Crazy Mountain Ranch to gain access to the west slope USFS public land of the Crazy Mountains. Methinks your warden acquaintance just might write you up for that one. (Especially after receiving photos and your license plate number from the CMR Marlboro wranglers.)

I should have elaborated a bit on my follow up questions, but I did ask about creeks as well and the answer was the same. I never broke it down to what "class" of waterway, but I did ask about a couple of specific creeks where this situation would apply. Those creeks are floatable in the spring/early summer, but would be mostly dragging over shallow riffles this time of year. He also said that I would in no way have to be using a watercraft or fishing. I could staight up say to him that I was only using the stream for access to hunt deer, elk etc and he would not write a ticket. Of course, that is just one of many wardens in Montana and I am sure that you are probably right about your example as law enforcement in certain areas of the state can be overly biased towards certain landowners. Particularly when they are related to each other or are family friends.

 

[Straight Arrow]

I should have elaborated a bit on my follow up questions, but I did ask about creeks as well and the answer was the same. I never broke it down to what "class" of waterway, but I did ask about a couple of specific creeks where this situation would apply. Those creeks are floatable in the spring/early summer, but would be mostly dragging over shallow riffles this time of year. He also said that I would in no way have to be using a watercraft or fishing. I could staight up say to him that I was only using the stream for access to hunt deer, elk etc and he would not write a ticket. Of course, that is just one of many wardens in Montana and I am sure that you are probably right about your example as law enforcement in certain areas of the state can be overly biased towards certain landowners. Particularly when they are related to each other or are family friends.

At the risk of jeopardizing some of your hunting access plans, it seems the resolution to this issue which has generated over eighty posts may have to be an opinion or firm legal response from the FWP legal department. I think you are likely correct in expecting that different wardens and even county law enforcement officers from different areas would have different perspectives. Furthermore, even the phone calls to different FWP regional offices would likely garner different responses, depending on how your scenario was described, what waterway was involved, and what public land was desired to be accessed.

 

[Sytes]

This thread popped into my mind while having a roadside chat with a game warden here in Montana a couple weeks ago. I asked him "Would it be legal for me to hike up the side of a river going through private land, but always staying below the high-water mark, to access public land to hunt for deer or elk?" His response was that as long as I started on public or private that I had permission to be on, and stayed within the public stream access while traversing the private, I was good to go. I asked a few follow up questions, but as far as he was concerned it would be perfectly legal and he would not write a ticket for it.

On the other hand, I couldn't get a straight answer on corner crossing.

Exact same answer I received when I called FWP and spoke with the LEO present at the regional office. I stayed away from the corner crossing deal...

 

[Dakotakid]

I posted the navigable stream statute because I think that is the analysis a court would look to, not the stream access laws. The decision will be specific to the specific stream, whether it is navigable or historically used as a waterway. It would be a discussion for PLWA and historic research. Did the trappers float furs down the stream or anyone else use the waterway for travel.