Stream access has a significant impact on the value of a ranch investment in the western U.S., especially for fly-fishing properties. The rights largely are governed at the state level, and not all states treat it the same way. So let’s take a look at recent developments on the issue in various states and evaluate court rulings as they apply to current or aspiring landowners.
The History of Stream Access in the West
Stream access issues date to when the West was being settled. At that time public stream access was more a concern of commercial fur trappers and timber harvesters, as creeks and rivers were primarily used to access beaver habitat and float logs down the river, rather than by fly-fishermen or whitewater rafters.
The ability to send logs or watercraft down a stream became the foundation of delineating stream access via “navigability.” That term is still widely used today by states to dictate whether a stream is open for public access or privately controlled by property owners. Some states determined that if a stream is “navigable” then it is deemed a public resource; if it is not navigable, ownership and control of a streambed remains in the hands of an underlying landowner.
Over time some states have determined that all streams, including the streambed beneath them, are a public resource open to all. In this case, individuals have the right to occupy the stream up to the ordinary high-water mark and may access the stream so long as they entered from a public access point or with permission of the adjoining private landowner. (See our separate breakdown on stream access laws in western states.)
Current Stream Access in Western States
| COLORADO & WYOMING |
| Streambeds are owned by the landowner and water is considered a public resource. The general public may float upon navigable streams but are considered to be trespassing if they touch private land underneath without permission from the landowner. |
| MONTANA & IDAHO |
| Streams and rivers, including the streambed, are all accessible up to the high water mark and considered a public recreational resource. |
| NEW MEXICO |
| Natural streams and their streambeds are a public resource and generally accessible. Private landowners can own the streambed but may not block public access. Conversely, no person shall trespass on privately-owned land to access a stream. |
| UTAH |
| Similar to Colorado or Wyoming stream law, but float access is made by public easement. The law does not allow recreational water users to walk on the private bed of a public waterbody without landowner permission. Utah’s laws do allow for incidental touching while floating a recreational water vessel and for portage of an obstruction. |
| OREGON |
| Most streams are considered to be a public recreational resource and are accessible up to the high water mark, although some streams are deemed non-navigable where property owners may own the streambed and control property rights. |
Recent Developments
Colorado Appeal
A 2018 case filed by a fly-fisherman, who claims he has a right to wade on a stretch of the Arkansas River, has worked its way through state courts. Initially rejected in lower courts, the case was appealed and the Colorado Attorney General has asked the state Supreme Court to hear the case. The fisherman claims the right to walk and fish a section of the Arkansas River that flows through private land because it is a navigable waterway that at one time was used for floating logs and railroad ties to build the Union Pacific Railroad near Canon City. The core issue: Who owns the natural beds of rivers and streams in Colorado — the state or private landowners? The fisherman argues that the river was ‘navigable’ when Colorado became a state, and therefore the state owns the riverbed and the public has legal access to wade the river. The issue with that claim is that no stream within Colorado was declared navigable at statehood, so title to all riverbeds remained with the United States when Colorado became a state. And since then, the federal government has granted title to its non-navigable riverbeds to streamside landowners.
The district court and the Colorado Court of Appeals subsequently ruled that the fisherman had no claim to title and failed to show a legally protected right. However, the Appeals Court did rule that the fisherman could continue with his lawsuit to seek a court order preventing the private landowners from denying public access to the river. The case, if accepted by the high court, would enable an individual to make a decision on behalf of the state. If allowed, it would force courts to determine navigability for every river and stream in Colorado, a major shift in state stream access law with significant implications. As a result, this case is definitely one to watch.
References: Denver Gazette, Pagosa Daily, Colorado Sun
New Mexico Policy Change
The New Mexico Supreme Court on March 1 unanimously struck down a regulation approved by the state legislature in 2015 granting the State Game Commission the authority to declare state waters navigable or non-navigable. The rule allowed the Game Commission to accept applications from streamside landowners seeking a certificate deeming the stream on their property “non-navigable.” Once approved, landowners could block access by means of barricade, barbed wire, fence, etc. In 2017 the first round of five applications were approved. In 2019 the incoming Governor appointed a new game commission that immediately began work to repeal or replace those non-navigable certifications. Eventually, the case made it to the state Supreme Court, which declared the 2015 legislation unconstitutional, removed the navigability law in its entirety, and reversed the previous closure of streams. Now stream access relies upon the state constitution and its declaration that “all waters belong to the public and are subject to appropriation for beneficial use.”
References: BHA, Free Range American, Meat Eater
Utah’s Public Water
Two cases recently challenged Utah’s HB141: Recreational Use of Public Water on Private Property. Passed by the state legislature in 2010, the law does not allow recreational water users (including anglers, kayakers, tubers, hunters and others) to walk on the private bed of a public waterbody without obtaining the adjoining landowner’s permission. One of the cases was heard in 2019 by the Utah Supreme Court and the law was upheld. A subsequent district court decision was also issued in support of the 2010 law.
Utah still enables fishing and recreational boating on public waterways and allows for “incidental touching” of a private streambed if required for safe passage and continued movement of a water vessel. It also allows for the portage around dangerous obstacles in the water. Stopping in a boat is prohibited, however, as is access to any excluded water such as a wetland, ditch or shallow body of water. The one exception to this came in 2017 when the state Supreme Court issued a decision that opened up public recreational access along a segment of the Weber River in Summit County that was deemed public because of its historic proof of navigability.
References: HB 141, Utah Division of Wildlife
Montana Push for Privatization
The Montana constitution established state ownership of waters within its boundaries. This was further clarified by two state Supreme Court cases in 1984, leading to the passage of the definitive stream access law in 1985 that states: “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.”
Over the past decade this law has been challenged by politicians, prominent landowners, and organizations with agendas to privatize public lands and other government-controlled environmental resources. The issue remains controversial among landowners and public anglers. The effort to privatize rivers in Montana is often framed as a free-enterprise solution to environmental issues. And the claims to keep water in public control often are rooted in economic sustainability, tourism, and viability of ongoing commerce that depends on public recreation. While no real legal progress has been made to privatize Montana streams, this is a topic to keep an eye on.
References: Outside Magazine, Outdoor life, Montana FWP
Ultimately, it’s essential for current and potential landowners to stay abreast of stream access laws from state to state. Landowners should have a reliable advisor to guide them on these issues as it relates to their property and home region, just as investors need to determine how stream access impacts their search for the right ranch. At Mirr Ranch Group, we possess the expertise and experience to guide an informed decision and are available to assist on these issues.