Can I Fish This Stream?

River and stream access regulations involve a confounding tangle of legalese with a heaping helping of misinterpretation. Can’t we just go fishing?

Perhaps, if you had time enough to conjure such things, you’d see it in your mind’s eye: An impossibly clear river journeying through idyllic valleys and lush meadows. Deep undercuts running along willow-choked banks. Boulders, fallen timber, riffles, pools, and back eddies hiding trout—not ignorant fresh-off-the-hatchery-truck fish, but wild browns, rainbows, cutthroats, and brookies.

And you’d be welcome to fish its entire length—it says so right in the regulations. Don’t like one river? Fish another—more than 1,500 miles of accessible stream lie at your feet. Pure fantasy? Not in the least.

Thanks to the most permissive stream access law in the country, fantasy is reality in at least one place: Big Sky Country. The 1985 Montana Stream Access Law states: “The public may use rivers and streams for recreation up to the ordinary high-water mark, without regard of the ownership of the land underlying the waters.” Anglers in other states should be so fortunate.

For the rest of the country, it might be easier to solve the riddle of the Sphinx than to assess whether or not you’ve got a legal right to fish a particular stream. Your right to fish is tangled in state history, embedded in private domain rights, and obscured in public use and access laws for lakes and streams. And make no mistake—access is every bit as big an issue in the fishing community as it is for hunters. Indeed, 20 percent of fishermen responding to a recent online poll by AnglerSurvey.com cited access as the biggest impediment to their sport. Today, merely understanding access law is mired in a morass of ownership and trespass rights and navigability interpretations—all essentially regulated by individual states.

My fishing buddy, Joe, provides a classic anecdote.

“One day I was slowly working my way downstream on my trout fishing club property and I saw a dude fishing in a kayak that he had back-paddled and wedged onto this sandy spot on the bank,” he said. “I told him that he was trespassing, but he told me that because he was fishing from a boat and was on a ‘navigable’ waterway, he was legal. Except for the beached boat part, he was right and I was sort of wrong. Why can’t every place be like Montana? At least they’re clear.”

The simple answer is that individual states get to make up their own laws regarding stream and river access. And although Montanans were able to ward off impingement of their access rights last fall, it’s not likely that assaults on stream and river accessibility are over.

From the May issue of Outdoor Life magazine.