MOGA Bozeman MT January 11, 2019 Stream Access MOGA Bozeman MT January 11, 2019 William Schenk Agency Legal Counsel

HISTORY Equal Footing Doctrine. Ownership of riverbeds. Martin v. Waddel, 41 U.S. 234 (1842): title to submerged lands in navigable tidal waters vested in state at time of statehood. Pollard’s Lessee v. Hagen, 44 U.S. 212 (1845): same principle applicable to all states subsequently admitted to the US so as to be on “equal footing”. Barney v. Keokuk, 94 U.S. 324 (1877): same principle of state ownership extended to non-tidal waters.

HISTORY US v. Holt State Bank, 270 U.S. 49 (1926): whether river navigable a question of federal law. The Danial Ball, 77 U.S. 557 (1870): Federal test for navigability: Navigable in law = navigable in fact. They are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

MONTANA Montana admitted to union on November 8, 1889. Principle accepted by MT legislature: 70-1-202, MCA. state is owner of 1) all land below the water of a navigable lake or stream; 70-16-201, MCA: Except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.

MONTANA 87-2-305, MCA: Navigable waters subject to fishing rights. Navigable rivers, sloughs, or streams between the lines of ordinary high water thereof of the state of Montana and all rivers, sloughs, and streams flowing through any public lands of the state shall hereafter be public waters for the purpose of angling, and any rights of title to such streams or the land between the high water flow lines or within the meander lines of navigable streams shall be subject to the right of any person owning an angler's license of this state who desires to angle therein or along their banks to go upon the same for such purpose. (Originally Enacted in 1933.)

Public Trust Doctrine Ill. Cent. R.R. v. Illinois, 146 U.S. 387 (1892). Public Trust Doctrine. Supreme Court voided a state grant of submerged lands because the conveyance was inconsistent with the public trust. Tarlock, Law of Water Rights and Resource, §8:18 (2010): “The public trust is a doctrine that asserts that states do not have unlimited discretion to decide how the beds of tidal and navigable waters and shoreland formed by accretion are used. The core idea is that such beds are held as trust for the benefit of the public and this requires that state decisions to alienate, lease, or use submerged lands must be consistent with trust purposes.”

Montana Stream Access Cases Montana Coalition for Stream Access v. Curran (May 15, 1984): Dearborn River. Coalition asserted that the public had a right to float, fish and recreate between the high-water marks of the Dearborn as it flows through the property of landowner Dennis Michael Curran. In sum, we hold that, under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for recreational purposes. Curran 682 P.2d 163, at 171.

MT Constitution: All surface, underground, flood, and atmospheric waters within the boundaries of the state are property of the state for the use of its people and are subject to appropriation for beneficial uses as provided in law. Art. IX, § 3(3) 1972 Mont. Const. Cited: Ill. Cent. R.R. v. Illinois, 146 U.S. 387 (1892). “States hold title to navigable waterways in trust for public benefit.” Under the MT Constitution, all waters of the state “are owned by the state and are held in trust for the people.”

Curran: “the public has the right to use the state-owned water to the point of the high water mark” except for barriers which the public could portage around “in the least intrusive way” while “avoiding damage to private property.” No right “to enter upon or cross over private property to reach state owned waters hereby held available for recreational purposes.”

Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1008 (1984) “The capability of the use of the waters for recreational purposes determines whether the waters can be so used. The Montana Constitution clearly provides that the state owns the waters for the benefit of its people. The Constitution does not limit the waters’ use. Consequently, this Court cannot limit their use by inventing some restrictive test.” “The only possible limitation of use can be the characteristics of the waters themselves. …. The public has the right to use the waters and the bed and banks up to the ordinary high-water mark.”

The Current Montana Stream Access Law What Does It Do? 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. 23-2-301 (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.

(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.

What Does the Steam Access Law NOT Do? 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.

23-2-311. Right to portage -- establishment of portage route 23-2-311. Right to portage -- establishment of portage route. (1) A member of the public making recreational use of surface waters may, above the ordinary high-water mark, portage around barriers in the least intrusive manner possible, avoiding damage to the landowner's land and violation of the landowner's rights. (2) A landowner may create barriers across streams for purposes of land or water management or to establish land ownership as otherwise provided by law. If a landowner erects a structure that does not interfere with the public's use of the surface waters, the public may not go above the ordinary high-water mark to portage around the structure. . . . . .

23-2-313. Fencing for livestock control and public passage -- negotiation -- costs. (1) At county road bridges for which public access is authorized pursuant to 23-2-312, each fence attached to or abutting a county road bridge edge, guardrail, or abutment for livestock control or for property management pursuant to 7-14-2134(4) must provide for public passage to surface waters for recreational use pursuant to this section.

(2) (a) If a dispute arises regarding public passage pursuant to subsection (1), the department, pursuant to the department's policy in 87-1-229 to work with private land managers to resolve and reduce user conflicts, shall negotiate with the affected landowner regarding the characteristics of an access feature of a legal fence for public passage and livestock control or property management. Examples of an access feature of a legal fence that provides public passage and livestock control or property management may include: (i) a stile; (ii) a gate; (iii) a roller; (iv) a walkover; (v) a wooden rail fence that provides for passage; or (vi) any other method designed for public passage and livestock control or property management.

23-2-321. Restriction on liability of landowner and supervisor 23-2-321. Restriction on liability of landowner and supervisor. (1) A person who makes recreational use of surface waters flowing over or through land in the possession or under the control of another, pursuant to 23-2-302, or land while portaging around or over barriers or while portaging or using portage routes, pursuant to 23-2-311, is owed no duty by a landowner, the landowner's agent, or the landowner's tenant other than that provided in subsection (2). (2) A landowner, the landowner's agent, or tenant is liable to a person making recreational use of waters or land described in subsection (1) only for an act or omission that constitutes willful or wanton misconduct. . . . .