Dear Editor:My name is Miles Davis C*leman and I was born in a pink, single-wide trailer just outside of Frenchtown, Montana. My dad bought me because I was the first one of the entire Labrador litter to inspect and eventually nibble on the head of the drake mallard that was hung in the pen by a bungee cord. I am not a big fan of intelligent design, but the first smell and then taste of that mallard was a little bit of heaven that I’m not sure Darwin could explain.
I am now 11 years old (77 in dog years), epileptic, slightly incontinent, mostly blind, mostly deaf, my dad will tell you that I have a squeaking problem and I have had six months to live for the last seven years. This is my favorite time of year. It is waterfowl hunting season. My dad told me last hunting season that it was my last, so I bit him. I can still hear the blast of the gun go off, I can still see the enticing splash in the water, and I live for retrieving birds.
The reason why I now feel the need to express some disdain is because a few weekends ago we were waterfowl hunting on the Missouri River. My dad was in the process of picking up the decoys when he was approached by an individual in a white cowboy hat and Wranglers. The cowboy told us we were trespassing, that the land we were hunting on was leased to an outfitter, and people had to pay to hunt there. My dad, with a sharp tinge of angst in his voice, told the individual that we were hunting below the ordinary high water mark, therefore were not trespassing, and we certainly did not have to pay anyone to hunt on the Missouri River. Then my dad asked the individual if he had ever heard of the Montana Stream Access Law or the Montana Constitution.
After a bit of discussion and disagreement, the individual said that he was going to call the game warden. My dad’s response was that he would love to speak with a game warden. In the end, my dad called the game warden who verified that it was completely legal for us to be waterfowl hunting within the ordinary high water marks of the river. I found it a bit disparaging that a hunting outfitter did not have a working knowledge of hunting laws. He must have been taught hunting laws by the same instructor that teaches river and fishing etiquette to outfitters.
Considering the increase in trophy homes along Montana rivers and the prison like fences that are getting constructed across them, I believe hunters, fisherman, and all people who recreate on rivers should be informed of the Montana Constitution and the Montana Stream Access Laws.The Montana Fish Wildlife and Parks website provides the following summary: “Under the Montana Stream Access Law, the public may use rivers and streams for recreational purposes up to the ordinary high-water marks. Although the law gives recreationists the right to use rivers and streams for water-related recreation, it does not allow them to enter posted lands bordering those streams or to cross private lands to gain access to streams.”
The Montana Constitution provides the basis for the Stream Access Law. Article IX, Section 3 of the Constitution states, “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.”
Although the following section was not added to the Montana Constitution until 2004, I believe it is applicable to and strengthens the Stream Access Law. Article IX, Section 7 of the Constitution states, “The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”
The Montana Stream Access Law, which is located in Section 23-2-302(1), Montana Code Annotated, provides that 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.
There is a lot more to the Stream Access Law than what is stated above and there are a lot of exceptions, so before you flex your legal rights, I strongly recommend you get on the internet or go to the library and read the entire law. Interestingly enough, you can’t find it on the FWP website. Here is one link to it: http://data.opi.state.mt.us/bills/mca_toc/23_2.htm
Please keep in mind that residents of Montana have to keep a close watch to ensure that the politicians are working for all Montanan’s recreational access needs and not catering to the whims or should I say whines of the wealthy nonresident landowners or the outfitters who are trying to cash in on our resources. In the last legislative session, Republican legislators tried to pass two Bills that would have impeded or revoked Montanan’s ability/right to recreate on state waters. Thankfully, Democrats were able to kill these two Bills before they became law.
House Bill 129 was sponsored by Joan Anderson, a Republican from Fromberg, which would have provided landowners the ability to petition FWP to enforce no shooting zones around their trophy, river front homes. What were you really trying to do here Representative Anderson? There are currently laws in place that prohibit hunters from shooting in an unsafe manner around houses. I don’t mean to sound cynical, but it’s my understanding that people have been hunting, fishing and trapping on Montana Rivers and streams long before there were homes along them. If people do not like hunting near their property, then maybe they should not have moved out of city limits.
House Bill 260 was sponsored by William Jones, a Republican from Bigfork, which would have made all non-motorized boat owners that use state owned river accesses pay an annual fee to license each one of their watercraft. Why don’t you tell us how you really feel about all those kayakers on the Mad Mile, Representative Jones? Considering we had to wait for three different outfitter groups to launch their rafts on the Clark Fork River this summer and had an outfitter race past our boat to get to a prime fishing hole on the Missouri, it would seem that Montanans should not be the ones to incur extra costs to use a river access. Maybe the people that are causing the overcrowding and making money off of these state owned sites should be the ones to pay the fees.
It certainly appears from these two Republican sponsored and supported Bills that Republicans are not working for the average Montanan. I know that my dad can’t afford a house on a river and, even without having to pay annual per boat licensing fee, has to save up money to recreate on rivers on the weekend. I just hope that the Democrat Legislators continue to fight for recreational access so that my dad, people like him and other retrievers will know the joy that comes from recreating on Montana Rivers and streams.
