Access State Land via River

[mdunc8]

I just had a lengthy discussion with the Region 7 captain. He also said no.

Keep in mind that a sheriff or district attorney might have a different opinion than a warden especially if you show up with six plates like I’ll be sporting out east in a few weeks.

 

[Deleted member 28227]

I just had a lengthy discussion with the Region 7 captain. He also said no.

Keep in mind that a sheriff or district attorney might have a different opinion than a warden especially if you show up with six plates like I’ll be sporting out east in a few weeks.

Not to be a jerk... but "He said no" is pretty laconic response to a slightly complex access issue,what did he say specifically. Also I had a warden take my picture at a river take out, with a deer, killed on land locked state land that we access by boat via a type II river... and the rig had out of state plates...

So... I guess...He said yes

Also this spot isn't a secret, there are always a couple of boats on the river bank with guys hunting this piece of state every weekend all season.

 

[mdunc8]

I’m sorry his response is not satisfactory for you. Feel free to give him a call or rely on the interactions you’ve had. Shoot another big one if you try it again!

 

[Deleted member 28227]

I’m sorry his response is not satisfactory for you. Feel free to give him a call or rely on the interactions you’ve had. Shoot another big one if you try it again!

Public land access is important to me as well as many on this site, disseminating false information only hurts hunters and the hunting community. In my mind misleading other about river access is akin to telling people a trail with historical use is private and not to use it.

Provide me with the number of the specific warden you talked to and I will write him an email asking for clarification and will post it to the thread.

 

[Sytes]

...Provide me with the number of the specific warden you talked to and I will write him an email asking for clarification and will post it to the thread.

Seems he did share the specific person... Region 7 Captain of FWP LEO... To save you time, here is the info you ask for: http://fwp.mt.gov/regions/r7/directory.html?lastName=&fwpRegion=7&fwpDivision=ANY

 

[The Hedgehog]

people do it here.
all
the
time..

 

[mdunc8]

Google “Region 7 FWP office”. Ask for the warden captain.

 

[Dan O]

These restrictions apply on streams flowing through privately owned land. Of course, if the landowner grants permission for any of the activities mentioned, they would be permitted. Recreation on public lands may take place in accordance with the regulations of the agencies managing these lands.

The FW&P section quoted on post #20 above had this paragraph in it. The last sentence I believe answers the question. You can use the river " Class 1 or 2" to reach public land and hunt according to the reg's for that unit. So if you use a water way to get to the public land you can hunt it.

Dan

 

[joelweb]

If you're utilizing the stream access law in a legal way - such as fishing or boating - you are legal to start big game hunting when you arrive at public land. You cannot use the stream access law for the sole purpose of crossing private land to access public land for big game hunting.

The way to do this legally is to fish your way downstream until you reach public land. Once you are there you can begin hunting.

 

[Deleted member 28227]

I emailed both the captains of both region 3 and 7, provided the specific section of river I have hunted and asked if I could post their response publicly.

Response from Captain Pankratz of Region 3

"It is legal to use a vessel to access public land from a water way to hunt big game. "

 

[mdunc8]

Thanks

 

[Deleted member 28227]

Captain Austin on Region 7 got back to me via phone and left a voicemail, I'm not going to post the audio file but here is a transcript adjust a bit to make it more readable.

Hello Mr.(omitted) his is Captain Austin at fish wildlife and parks I'm just returning your call to talk to you about the stream access law, um the question was posed to me before your email was whether or not someone could float down the
(omitted) to access public land and the difference between (omitted)river and the (omitted) river is that the (omitted) river is not really navigable this time year um it would be more of a hike and so if you read the stream access law closely one would be hiking down the river channel, really for the purpose of hunting. He continues to explain that the access law is more about water related actives and hiking isn't one of them.

Basically the Region 3 and Region 7 wardens said the same thing, you can access public lands via a river or stream with a boat as long as you are entering the river from legal access points, the law doesn't apply to dry stream beds and the law doesn't give you the ability to hunt big game in the manner it does waterfowl.

Fishing up a river on foot to hunt deer is an activity that falls into a grey area. If you caught a couple of fish on your way in and had pictures and then encountered a warden at your truck, I think they would be unlikely to ticket you, unless you had a really ticked of landowner and then things might get interesting.

For reference you can float into public land in CO and a number of other states as well, but you definitely can't wade onto public to fish or hunt in CO.

This is a good summary of various rules by state.
https://howtoflyfish.orvis.com/images/Stream Access Report email.pdf

 

[Yellowstoner]

I'd like to hear a warden's response to fishing up a small creek and whether that would be deemed legal to hunt afterwards. I'll try to make a call later to clarify and post up the results here. It sounds like most of the conversation has been around boats, which is pretty cut and dry. I'm more interested in the "gray area" of fishing to hunt.

 

[Straight Arrow]

I'd like to hear a warden's response to fishing up a small creek and whether that would be deemed legal to hunt afterwards. I'll try to make a call later to clarify and post up the results here. It sounds like most of the conversation has been around boats, which is pretty cut and dry. I'm more interested in the "gray area" of fishing to hunt.

It is wise to ask yourself why you are fishing up the small creek and if it's just a ruse to access through private property for hunting, then consider the potential negative impacts. Montana as a red state has placed many ultra conservative property rights fanatics in our legislature and in public office. Your ruse could backfire in the form of legislation which may adversely effect Montana's benefits of the stream access law. I encourage you to instead get involved and support legitimate efforts to increase hunting and other recreational access to public lands.

 

[Yellowstoner]

It is wise to ask yourself why you are fishing up the small creek and if it's just a ruse to access through private property for hunting, then consider the potential negative impacts. Montana as a red state has placed many ultra conservative property rights fanatics in our legislature and in public office. Your ruse could backfire in the form of legislation which may adversely effect Montana's benefits of the stream access law. I encourage you to instead get involved and support legitimate efforts to increase hunting and other recreational access to public lands.

I'm not sure I entirely agree with this sentiment - I believe that laws such as these should be well-defined, so there is little room for interpretation. I don't think I should be to blame for pondering a poorly defined law.

That being said, I talked with a game warden in the Bozeman office about this issue. His answer was that to access via stream law would be fine while fishing, but once an animal was harvested the pack out would be the primary activity (not fishing at that point), which is not "water based recreation" as defined in the law. Therefore, accessing public land via private stretches below the high water mark via this method would be considered trespassing.

He was also explicit in endorsing canoe or other boat access as protected under law, since even if you have the animal in the canoe, your primary activity (canoeing) is protected as water-based recreation. I thought I'd share what I learned - my intention with this was to keep people out of trouble, not encourage people to skirt around the law. Hope that helps!

 

[Straight Arrow]

I'm not sure I entirely agree with this sentiment - I believe that laws such as these should be well-defined, so there is little room for interpretation. I don't think I should be to blame for pondering a poorly defined law.

That being said, I talked with a game warden in the Bozeman office about this issue. His answer was that to access via stream law would be fine while fishing, but once an animal was harvested the pack out would be the primary activity (not fishing at that point), which is not "water based recreation" as defined in the law. Therefore, accessing public land via private stretches below the high water mark via this method would be considered trespassing.

He was also explicit in endorsing canoe or other boat access as protected under law, since even if you have the animal in the canoe, your primary activity (canoeing) is protected as water-based recreation. I thought I'd share what I learned - my intention with this was to keep people out of trouble, not encourage people to skirt around the law. Hope that helps!

The game warden's answer is consistent with what I am saying and further illustrates that the law is well-defined. So again, 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 potentially creating a situation which the property rights fanatics may try to address in a way that might inadvertently weaken the stream access law. Similarly, if you drag your canoe up a small stream that is not really a viable canoeing waterway due to limited flow, then again it is a ruse to use the stream access law erroneously.

 

[RobG]

I'm not sure I entirely agree with this sentiment - I believe that laws such as these should be well-defined, so there is little room for interpretation. I don't think I should be to blame for pondering a poorly defined law.

That being said, I talked with a game warden in the Bozeman office about this issue. His answer was that to access via stream law would be fine while fishing, but once an animal was harvested the pack out would be the primary activity (not fishing at that point), which is not "water based recreation" as defined in the law. Therefore, accessing public land via private stretches below the high water mark via this method would be considered trespassing.

He was also explicit in endorsing canoe or other boat access as protected under law, since even if you have the animal in the canoe, your primary activity (canoeing) is protected as water-based recreation. I thought I'd share what I learned - my intention with this was to keep people out of trouble, not encourage people to skirt around the law. Hope that helps!

That's good info... I didn't really think about the trip back. Maybe if you donned snorkle gear for the pack out...

 

[Yellowstoner]

The game warden's answer is consistent with what I am saying and further illustrates that the law is well-defined. So again, 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 potentially creating a situation which the property rights fanatics may try to address in a way that might inadvertently weaken the stream access law. Similarly, if you drag your canoe up a small stream that is not really a viable canoeing waterway due to limited flow, then again it is a ruse to use the stream access law erroneously.

I'm not disagreeing with you, but I don't think I should be vilified for asking for clarification. I feel as though this post will prevent the issue more than it will press it, which is why I posted it in the first place. I'm not the first person to ask this question or wonder the legality surrounding it. In fact, what drew me to it was both a Meateater and a Wired to Hunt podcast talking about accessing a state land section via wading down or across a larger river. Not everything is as cut and dry as you're trying to make it out to be. It seems weird that someone can take a canoe down to a state section and be fine, while someone on foot wading down the middle of a river would be illegal.

For the record, I'm not doing any of the above either way. I'm merely asking the question, which is valid. If that's what you garnered from reading the law for yourself, good for you - some of us simple-minded folk were clearly confused by the verbiage. Not sure why you find it necessary to attack me - I'm as law abiding as they come.

 

[Straight Arrow]

Roger; out.

 

[Dakotakid]

These restrictions apply on streams flowing through privately owned land. Of course, if the landowner grants permission for any of the activities mentioned, they would be permitted. Recreation on public lands may take place in accordance with the regulations of the agencies managing these lands.

The FW&P section quoted on post #20 above had this paragraph in it. The last sentence I believe answers the question. You can use the river " Class 1 or 2" to reach public land and hunt according to the reg's for that unit. So if you use a water way to get to the public land you can hunt it.

Dan

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.