(1984) , the Montana Supreme Court distinguished this 

 holding, saying: 



This holding is irrelevant for at least three 

 reasons: (1) Fall Creek is a nonnavigable 

 stream, at least according to Curran, and 

 therefore has no application to this case; 

 (2) the holding is purely dicta, has no 

 precedential value and may be disregarded; 

 and (3) the holding is contrary to the public 

 trust doctrine and the 1972 Montana 

 Constitution. 



Curran, however, dealt solely with the recreational use 

 of and access to public water, which pursuant to 

 Article IX, Section 3 of the 1972 Montana Constitution 

 includes all surface water. The holding of Herrin 

 relating to hunting on private land should not be 

 affected by Curran, because in Montana Coalition for 



Stream Access, Inc. v. Hildreth , M , 684 P. 2d 



1088 (1984) , the court held that the public has no 

 right to trespass over private property in order to 

 reach the state-owned waters. Because there is no 

 similar constitutional provision relating to land as 

 the provision claiming ownership of surface waters in 

 the state for the use of the people, landowners have 

 the ability to regulate who enters upon their land for 

 recreational purposes. The Legislature has determined, 

 however, that hunting is a permissible recreational use 

 of surface water. 23-2-301(10), MCA. This does not 

 include big game hunting except with a long bow or 

 shotgun on Class I waters or any big game hunting on 

 Class II waters. 23-2-302, MCA. Hunting access with 

 respect to surface water will be disregarded for the 

 remaining purposes of this paper. The state has 

 recognized the right to create private shooting 

 preserves with respect to game birds. Title 87, Chapter 



