A look at Montana’s Stream Access Law

In trying to better understand what other states have done with river rights and how that might compare to Oregon, here’s a bit about Montana.

In 1985 Montana passed their famous Stream Access Law. That law has been regularly suggested as potential goal for Oregon, yet little analysis has been done on the actual success of that law for Montana. And also is Oregon’s situation of population (almost at 4 million now) and landownership similar to Montana (still less than 1 million in population) enough to think that a similar law would fix our problems of contention on the rivers.

So first off, lets look at Montana’s navigable rivers. These rivers are waterways that at the time of statehood, the federal government charged the state to protect them for the public. The same as Oregon, they were not individually named, but the definition of federal navigability is the same in Oregon as it is in all states.

A NAVIGABLE WATERWAY- A body of water that at the time of statehood was big enough in it’s ordinary condition for a boat to make successful progress through the waters.  The boat can be a boat typical of the time including a canoe or raft. (drafting 4-6″ of water generally)

The state of Montana acknowledges that 42 rivers are navigable.  They did their acknowledgment in 1972 in their state constitution.   (The legislature did it  in one fell swoop of legislation and did not do the expensive Oregon Navigability Determination Process, invented by the Oregon legislature in the 1980s)  Montana’s Constitution now also clearly states that if more information becomes available on other waterways, those waters will also be recognized as state owned. This has nothing to do with the famed “Montana Stream Access Law”.

As a comparison to Oregon, Oregon which has the exact same federal requirement to protect all the navigable rivers for the people, Oregon has waffled around on actually identifying those rivers. Oregon has done some of the studies and in the past had which found up to 31 rivers as navigable. But unlike Montana, the Oregon legislature has done nothing with those studies (they did not give up public ownership, nor is the state actively enforcing public ownership) .  Instead the state land board has recognized 12 rivers as navigable, and the Department of State Lands manages those 12 rivers as public property.

Okay so in Montana there are some rivers that they have not formerly determined to meet that legal definition of navigable. A movement began in the late 1970’s to ensure that the state protected the public interest in recreational and scientific interest of being on the rivers.  It was deemed to be in the best interest of the public to protect rivers.  So In 1981 and 1983 bills were introduced to make all rivers below the ordinary high water mark, open to the public for recreation. In 1985 they passed the law and the rivers regardless of private ownership, the public has a right to utilize the river if they access it at public property and then travel below the ordinary high water mark.

In Oregon, the courts have protected this right for Oregonians to travel below the ordinary high water mark on rivers, but the legislature has not turned this into state law.  Law enforcement throughout the state varies by jurisdiction on if they have training in this law, or if they will enforce it.  Local District Attorneys vary in their thoughts on this as well.  The end result is that the public is left wondering what’s the deal at spot X?

An organization called Montana River Action provides a short look at the challenges to their public access laws that have been defeated, and those that are still threatening their public river rights on their “stream access law” page. What is revealed is that a minority of the population is still challenging their stream access laws in court.  There is still “conflict” in the paradise of Montana, but to date the state has defended river rights for the people.

In Oregon, there seems to be some utopian ideal that a “no conflict” situation exists.   But how will it be no conflict if nearly 4 million Oregonians trade away river rights to a small minority of people that own river front land?   There is no garantee there will be no conflict, and it’s likely the conflict may in fact escalate.

What is the conflict in Oregon?  If you get out and talk to landowners, their number one issue is littering.    Littering is already illegal in this state.   Has anyone checked on the enforcement of littering laws, fines, and improvement of education also?

Given that currently river rights are based on a concept of freedom of travel, (see the “common highways” referrence in the Oregon Admission Act) lets compare the issue of littering to a highway.   If littering, trespass, and camping were taking place along one of our state highways, in no way whatsoever would we the people consider it a sensical solution to give up access to the highway, or ownership of the highway.  That highway has huge benefits of travel, of commerce, of economy, of social value for all the people.  No, we would not bend, but we would probably take a very strong look at enforcing the laws that are on the books, in patrolling the area, and in educating people.  The rivers are no different.   Why would 4 million Oregonians give up their river rights in part, or in whole, to assuage issues that have other much simpler solutions?

We didn’t give up our beaches, so why would we give up our rivers?

Montana didn’t give up it’s rivers, and it still has to manage them and actively safeguard them for the good of the people.    Oregon will have to do the same.