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.

Your Rights & Responsibilties

In the last three years, the state of Oregon has begun to publish more river rights information.   They are making some progress that helps people and agencies understand the laws.   It’s not been fast, but it’s good to see the evolution.

Here’s the latest Oregon Department of State Lands (also referred to as the DSL) information on river rights.

State-Owned “Navigable” Waterways

The rules controlling public use of the submerged and submersible land underlying state-owned waterways are simple. The Public Trust Doctrine gives you the right to use state-owned (or what are also termed “navigable”) waterways (including submerged and submersible lands) for a wide variety of authorized uses including navigation, fisheries, recreation and commerce.

However, this doctrine is not a license to trespass on private land. Anyone crossing private land to reach state-owned public land and waterways must have permission from the landowner. The landowner is under no obligation to grant this permission.

Waterways for Which a Navigability Study Hasn’t Been Conducted

In April 2005, the Oregon Attorney General issued an opinion which addressed the public rights associated both with waterways determined to be navigable and those for which the question of ownership of their submerged and submersible lands has not been addressed.

Full opinion

The opinion also examines the impacts of numerous Oregon Supreme Court rulings between 1869 and 1936 that established common law regarding public use of waterways. Based on this extensive review, the opinion concludes that the common law doctrine continues to authorize some public use of navigable-for-public-use waterways. Both the public and landowners along such waterways must allow the other to enjoy the waterway without undue interference, the opinion states.

A waterway is navigable-for-public-use if it has the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters. In addition to allowing use of waterways up to the line of ordinary high water for boating, the opinion means that the doctrine authorizes other water-dependent uses. Such uses include swimming, fishing on foot, hunting from a boat and other similar activities requiring the use of the water.

The opinion further means that the public may use the land above the line of ordinary high water only if the use is “necessary” for a water-dependent or incidental use of the waterway. For example, boaters may move cargo, people and boats over upland to go around a set of falls, but they must return to the area below the line of ordinary high water as soon as reasonably possible.
According to the opinion, the public must exercise reasonable and prudent care. Public users will have to pay for damage they cause if they act negligently.

The opinion concludes that under current statutes, only the board may speak for the state when state ownership of a non-tidal waterway is at issue, and the board may determine ownership of a non-tidal waterway on behalf of the state—either as a result of litigation or a formal navigability study.

Nevertheless, as discussed above, a person may use a state-owned waterway that has not yet been determined to be state-owned, according to the opinion. In addition, a person may use waterways that are subject to the public use doctrine. However, the opinion warns that in these situations, such a person risks incurring liability for trespass in the event that the waterway turns out not to be state-owned and not subject to the public use doctrine.

Be a Responsible User

Recreational use of state-owned waterways is a privilege enjoyed by many Oregonians and visitors. However, misuse and abuse of this privilege can lead to restrictions. The Department of State Lands and the State Land Board urge you to be a responsible user of public lands and waterways, obey all authorized closures, restrictions and postings, and exercise basic common sense, courtesy and consideration for others.

When using Oregon´s waterways:

  • Always get the landowner’s permission to cross private land to get to the waterway.
  • Be sure to launch and take out your boat at public launches or parks.
  • Avoid conflicts with landowners.
  • If you see trash, pick it up and carry it out, but avoid trespass to do so.
  • Obey laws and common rules of decency at all times.
Offensive littering ORS 164.805 Class C Misdemeanor
(30 days; $1000)
Littering in or within 100 yards of state waters ORS 164.775 Class B Misdemeanor
(6 months; $2000)
Trespass on private land ORS 164.245 Class C Misdemeanor
(30 days; $1000)
Possession, use of a controlled substance ORS Chapter 475 Varies
Interference with property ORS 164.345 Class C Misdemeanor
(30 days; $1000)
Damaging property, less than $500 ORS 164.354 Class A Misdemeanor
(1 year; $5000)
Damaging property, more than $500 ORS 164.354 Class C Felony
(5 years; $100,000)
Damaging livestock ORS 164.365 Class C Felony
(5 years; $100,000)
Pointing firearm at another ORS 166.190 6 months; $500
Firing at person or building within range of weapon ORS 166.220 Class C Felony
(5 years; $100,000)
Reckless burning ORS 164.335 Class A Misdemeanor
(1 year; $5000)

In addition to that information on their website, as of 2008, they have a handy publication on river rights.

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CLICK HERE to download the full copy.