Mont. Code Ann. » TITLE 23. PARKS, RECREATION, SPORTS, AND GAMBLING · CHAPTER 2. RECREATION · Part 3. Recreational Use of Streams
Montana Code Annotated

Mont. Code Ann. § 23-2-302 (2026)

Recreational Use Permitted -- Limitations -- Exceptions

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 23
  3. CHAPTER 2
  4. Part 3
  5. 23-2-302 Recreational use permitted -- limitations -- exceptions

TITLE 23. PARKS, RECREATION, SPORTS, AND GAMBLING

CHAPTER 2. RECREATION

Part 3. Recreational Use of Streams

Recreational Use Permitted -- Limitations -- Exceptions

23-2-302. Recreational use permitted -- limitations -- exceptions. (1) Except as provided in subsections (2) through (5), 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.

(2) The right of the public to make recreational use of surface waters does not include, without permission or contractual arrangement with the landowner:

(a) the operation of all-terrain vehicles or other motorized vehicles not primarily designed for operation upon the water;

(b) the recreational use of surface waters in a stock pond or other private impoundment fed by an intermittently flowing natural watercourse;

(c) the recreational use of waters while diverted away from a natural water body for beneficial use pursuant to Title 85, chapter 2, part 2 or 3, except for impoundments or diverted waters to which the owner has provided public access;

(d) big game hunting;

(e) overnight camping unless it is necessary for the enjoyment of the surface water and the campsite is not within sight of any occupied dwelling or the campsite is more than 500 yards from any occupied dwelling, whichever is less;

(f) the placement or creation of any permanent duck blind, boat moorage, or any other permanent object;

(g) the placement or creation of any seasonal object, such as a duck blind or boat moorage, unless necessary for the enjoyment of that particular surface water and unless the seasonal objects are placed out of sight of any occupied dwelling or more than 500 yards from any occupied dwelling, whichever is less;

(h) use of a streambed as a right-of-way for any purpose when water is not flowing in the streambed.

(3) The right of the public to make recreational use of class II waters does not include, without permission of the landowner:

(a) big game hunting;

(b) overnight camping;

(c) the placement or creation of any seasonal object; or

(d) other activities that are not primarily water-related pleasure activities as defined in 23-2-301(10).

(4) The right of the public to make recreational use of surface waters does not grant any easement or right to the public to enter onto or cross private property in order to use those waters for recreational purposes.

(5) The commission shall adopt rules pursuant to 87-1-303, in the interest of public health, public safety, or the protection of public and private property, governing recreational use of class I and class II waters. These rules must include the following:

(a) the establishment of procedures by which any person may request an order from the commission:

(i) limiting, restricting, or prohibiting the type, incidence, or extent of recreational use of a surface water; or

(ii) altering limitations, restrictions, or prohibitions on recreational use of a surface water imposed by the commission;

(b) provisions requiring the issuance of written findings and a decision whenever a request is made pursuant to the rules adopted under subsection (5)(a); and

(c) a procedure for the identification of streams within class II waters that are not capable of recreational use or are capable of limited recreational use, and a procedure to restrict the recreational use to the actual capacity of the water.

(6) The provisions of this section do not affect any rights of the public with respect to state-owned lands that are school trust lands or any rights of lessees of those lands.

History: En. Sec. 1, Ch. 429, L. 1985, and Sec. 2, Ch. 556, L. 1985; amd. Sec. 1, Ch. 327, L. 2015.

Notes of Decisions
Cited in 11 cases, 1987–2019 · leading case: Galt v. State Dept. of Fish, Wildlife, 731 P.2d 912 (Mont. 1987).
Sort: Relevance Newest Treatment
Galt v. State Dept. of Fish, Wildlife, 731 P.2d 912 (Mont. 1987). · cites it 30× “Section 23-2-302, MCA, has provided for a public right to build duck blinds, boat moorages, and camp overnight, so long as not within sight of or within 500 yards of an occupied dwelling, whichever is less.”
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). · cites it 4× “neficial uses); § 85-1-101, MCA (water resources must be protected and conserved to assure adequate supply for recreation and for the conservation of wildlife and aquatic life); § 85-2-101, MCA (any use of water is a public use and the water within the state is the property of…”
Pub. Lands Access Ass'n v. Bd. of Cnty. Commissioners, 2014 MT 10 (Mont. 2014). · cites it 4× “In Curran, codified at § 23-2-302, MCA, we held that “any surface waters that are capable of 30 recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes.”
Bitterroot River Prot. Ass'n v. Bitterroot Conservation Dist., 2008 MT 377 (Mont. 2008). · cites it 9× “” Section 23-2-302(1), MCA. The Act defines “surface waters” as “a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Skyline Sportsmen's Ass'n v. Bd. of Land Commissioners, 951 P.2d 29 (Mont. 1997). · cites it 4× “In their brief and at oral argument, the Defendants pointed out that under Montana's stream access law at § 23-2-302(1), MCA, the effect of the proposed land exchange on the availability of Cherry Creek and Spanish Creek to recreationists will merely be fewer points of access;…”
Bitterroot River Prot. Ass'n Inc. v. Bitterroot Cons. Dist., 2008 MT 377 (Mont. 2008). · cites it 9× “" Section 23-2-302(1), MCA. The Act defines "surface waters" as "a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Madison v. Graham, 126 F. Supp. 2d 1320 (D. Mont. 2001). · cites it 2× “” Mont.Code Ann. § 23-2-302(1). 2 . Mont.Code Ann.”
Ash v. Merlette, 2017 MT 305 (Mont. 2017). “IX, § 3; §§ 23-2-302(1), 70-1-202(1), and 87-2-305, MCA; Galt v.”
Galt v. State, 749 P.2d 1089 (Mont. 1988). “103 , partially reversed the District Court and found Sections 23-2-302(2)(d), (e), (f), and portions of Section 23-2-311(3)(e), MCA (1985), unconstitutional.”
Bugli v. Ravalli Cnty., 444 P.3d 399 (Mont. 2019). · cites it 2× “¶27 Significantly, the board may not abandon a county road or right of way used to provide existing legal access to public land or waters, including access for public recreational use as defined in § 23-2-301(10), MCA, and as permitted in § 23-2-302, MCA, unless another public…”
Ryan v. Harrison Harrison, 2001 MT 128N (Mont. 2001). · cites it 5× “¶22 Accordingly, we hold that based on § 23-2-302, MCA, and this Court's holdings in Curran and Hildreth, the District Court was correct in concluding that Ryan does not have a right to enter and cross private property to use the water in Lois Lake for recreational purposes.”
— Mont. Code Ann. § 23-2-302(1) — 5 cases
Skyline Sportsmen's Ass'n v. Bd. of Land Commissioners, 951 P.2d 29 (Mont. 1997). “In their brief and at oral argument, the Defendants pointed out that under Montana's stream access law at § 23-2-302(1), MCA, the effect of the proposed land exchange on the availability of Cherry Creek and Spanish Creek to recreationists will merely be fewer points of access;…”
Bitterroot River Prot. Ass'n v. Bitterroot Conservation Dist., 2008 MT 377 (Mont. 2008). “” Section 23-2-302(1), MCA. The Act defines “surface waters” as “a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Madison v. Graham, 126 F. Supp. 2d 1320 (D. Mont. 2001). “” Mont.Code Ann. § 23-2-302(1). 2 . Mont.Code Ann.”
Ash v. Merlette, 2017 MT 305 (Mont. 2017). “IX, § 3; §§ 23-2-302(1), 70-1-202(1), and 87-2-305, MCA; Galt v.”
Bitterroot River Prot. Ass'n Inc. v. Bitterroot Cons. Dist., 2008 MT 377 (Mont. 2008). “" Section 23-2-302(1), MCA. The Act defines "surface waters" as "a natural water body, its bed, and its banks up to the ordinary high-water mark.”
— Mont. Code Ann. § 23-2-302(2) — 1 case
Galt v. State Dept. of Fish, Wildlife, 731 P.2d 912 (Mont. 1987). “Section 23-2-302, MCA, has provided for a public right to build duck blinds, boat moorages, and camp overnight, so long as not within sight of or within 500 yards of an occupied dwelling, whichever is less.”
— Mont. Code Ann. § 23-2-302(2)(c) — 2 cases
Bitterroot River Prot. Ass'n v. Bitterroot Conservation Dist., 2008 MT 377 (Mont. 2008). “” Section 23-2-302(1), MCA. The Act defines “surface waters” as “a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Bitterroot River Prot. Ass'n Inc. v. Bitterroot Cons. Dist., 2008 MT 377 (Mont. 2008). “" Section 23-2-302(1), MCA. The Act defines "surface waters" as "a natural water body, its bed, and its banks up to the ordinary high-water mark.”
— Mont. Code Ann. § 23-2-302(2)(d) — 2 cases
Galt v. State Dept. of Fish, Wildlife, 731 P.2d 912 (Mont. 1987). “Section 23-2-302, MCA, has provided for a public right to build duck blinds, boat moorages, and camp overnight, so long as not within sight of or within 500 yards of an occupied dwelling, whichever is less.”
Galt v. State, 749 P.2d 1089 (Mont. 1988). “103 , partially reversed the District Court and found Sections 23-2-302(2)(d), (e), (f), and portions of Section 23-2-311(3)(e), MCA (1985), unconstitutional.”
— Mont. Code Ann. § 23-2-302(4) — 3 cases
Bitterroot River Prot. Ass'n v. Bitterroot Conservation Dist., 2008 MT 377 (Mont. 2008). “” Section 23-2-302(1), MCA. The Act defines “surface waters” as “a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Bitterroot River Prot. Ass'n Inc. v. Bitterroot Cons. Dist., 2008 MT 377 (Mont. 2008). “" Section 23-2-302(1), MCA. The Act defines "surface waters" as "a natural water body, its bed, and its banks up to the ordinary high-water mark.”
Ryan v. Harrison Harrison, 2001 MT 128N (Mont. 2001). “¶22 Accordingly, we hold that based on § 23-2-302, MCA, and this Court's holdings in Curran and Hildreth, the District Court was correct in concluding that Ryan does not have a right to enter and cross private property to use the water in Lois Lake for recreational purposes.”
— Mont. Code Ann. § 23-2-302(d) — 1 case
Galt v. State Dept. of Fish, Wildlife, 731 P.2d 912 (Mont. 1987). “Section 23-2-302, MCA, has provided for a public right to build duck blinds, boat moorages, and camp overnight, so long as not within sight of or within 500 yards of an occupied dwelling, whichever is less.”
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