Stream Bottom Laws
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I am a new member of this forum so if this subject has come up before, my apologies. I did a search and did not have any hits. I have been more than befuddled over the lack of consistency of the stream bottom laws, especially considering these issues have been addressed in the US constitution.
My fishing partner and I are planning an extensive trip out west this summer but have decided to avoid Wyoming and Colorado. This is because in those states you can be arrested and your equipment confiscated for wading in the river if the shore belongs to a private land owner. You are even trespassing when you drop an anchor or slide up on a rock to fish out of a boat.
I’m sure the fact that we are not fishing their streams does not bother any citizens of these states. It seems that the fact that they are also restricted from the freedom to fish their own waters is not an issue? It seems that many of these laws are not related to old water rights issues but the fact that many of these areas have become Californicated in recent years, with huge country retreats whose owners do not appreciate sharing “their” resource with the general populace.
Here is a website that portends to defend those rights, but it seems in fact that all they do is mollify the issues and refuse to put together the concerted effort to challenge these laws in court; http://www.nationalrivers.org/us-law-menu.htm
I’m concerned that similar legislation may come to pass in Montana, Idaho etc. How do you guys out west feel about this or is it just the way things are?
Dan Curran
better not let your oar touch the rocks in the river in colorado either. That’s tresspassing. There is a stretch of river in my area where i’ve been told there are surveillance cameras on a stretch of private water
I must admit every time Ive read thread about this issue (theres quite a few here) for “you” guys Im both somewhat mistified and saddened things are getting to that point.
We have navigable water laws, and no doubt some land owners who are “prickly” as well. And while we too are losing access due to development its nowhere near the same scale, nor as much a flash point the issue seems to be becoming South of the border.
Adam,
You talking about Jones’ stretch of the lower Blue?
-Tim
Thats the one. They are even trting to make it harder to access the area than it is already. there are some pigs in that section i hear.
Adam,
I’ve heard a lot about that stretch… 25lb bows….huge browns…and horse mounted off-duty sheriffs.
I am a new member of this forum so if this subject has come up before, my apologies. I did a search and did not have any hits. I have been more than befuddled over the lack of consistency of the stream bottom laws, especially considering these issues have been addressed in the US constitution.
How are stream bottom laws addressed in the US Constitution?
bd
Brian: I tried to confirm that statement and found that I could not. From the link above, the best I could find was this reference to federal laws enacted in 1796;
“What about navigable rivers? While all running waters are held in trust for the public, rivers and streams that are navigable have additional legal status. Public navigation rights, like fishing rights, have been recognized since ancient times. After the American Revolution, the founding fathers moved quickly to ensure public rights to navigate on all navigable rivers and streams. In discussing rivers and their tributaries, the very first law passed by the United States Congress said these “navigable waters,” as well as “the carrying places between the same, shall be common highways, and forever free” to the public, “without any tax, impost, or duty therefor.” An additional federal law in 1796 confirmed public rights to “all navigable waters.” Note the reference to portable watercraft such as canoes, and the right to carry them from one stretch of river to another. River navigation at the time was in canoes and small boats, using oars and paddles. Canoes and kayaks are thousands of years old. (“Canoe” was an Indian word, and the Eskimo word “kayak” is related to the ancient Greek word for a small boat.) From 1804 to 1806 the Lewis and Clark expedition, sponsored by Congress and President Thomas Jefferson, canoed from St. Louis to the Pacific Ocean and back, carrying their canoes where necessary. (Steamboats were not developed until later in the 1800s.) Also note that government agencies cannot charge fees for river access, and that public rights to rivers are “forever,” not just until landowners try to block them. In 1954, courts held that a canoeist was not trespassing when he pulled his canoe over a landowner’s fence across a stream (pushing down the fence in the process,) continued canoeing on the stream through private land, pulled the canoe up on the bank to get around a log jam, then waded on the streambed to fish, before getting back in the canoe and continuing downstream, leaving the private land. Courts have recognized “a public right of access for fishing and navigation to the point of the high water mark,” adding that the public can “cross private property in order to portage around barriers in the water,” but holding that “the right to portage must be accomplished in the least intrusive manner possible.” In addition, federal courts have held that “all navigable rivers” are subject to the federal navigation servitude, and are therefore open to navigation by the public, regardless of state or private ownership of the beds and banks. For example, the Jackson River in Virginia is navigable because, as the court ruled, “canoes can navigate the upper river without trouble except during the late summer, and canoeing experts consider the Jackson to be a very fine canoeing stream, except for troubles with landowners along the river.” Northwest Ordinance of 1787, 1 Stat. 50. Act of May 18, 1796, 1 Stat. 464. The Journals of Lewis and Clark, 1804-1806. Gibbons v. Ogden, 22 U.S. 1, 6 L.ed 23 (1824). Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17 (1954.) Loving v. Alexander, 548 F.Supp. 1079 (1982).”
Almost constitutional????
Not constitutional, but don’t let Brian (who is a lawyer) drag you into a debate on it.
Controlling authority on navigable waterways is actually pretty scant, because it arose separately in each state.
Not constitutional, but don’t let Brian (who is a lawyer) drag you into a debate on it.
Curse you!!! Next time we fish together, I’m going to scare away all your trout just before you get them on the line! ;D
Seriously, I have researched this issue, and my official legal opinion is as follows:
Stream access laws are best defined by a word that starts with “cluster” and ends with something I can’t say here. Ask half a dozen people, and you’ll get half a dozen answers – most of them self-serving and based on almost comical leaps of interpretation. Beware of anyone who tells you they can give you an authoritative answer on the subject.
The most legally accurate summation I can give you is that on “navigable” waterways, the landowner can’t “unreasonably interfere” with “commerce,” and people passing through in “commerce” can’t “unreasonably interfere” with the landowner.
Every term above that I put into quotes is subject to interpretation and debate based on badly-written court opinions from 1805 that nobody in the modern world can read without developing a migraine.
Does “navigable” include a stream which is only floatable in a canoe, or one that is only floatable at high water part of the year, or do you have to be able to drive a barge down it? Does “commerce” mean the stream had to actually be historically used to move goods and transport people, or does it just mean that it’s possible to do so? If a stream is navigable, does that give you the right to fish along the way, or just paddle your boat on through?
The anwers to all these questions vary from state to state and are often subject to debate. That’s my take on it, anyway.
bd
high water mark
Zach
I have been in meetings that have lasted HOURS just talking about these three words.
So what I’m hearing from the legal authorities is that the states where we have lost access we are not likely to get it back.
What can we do to maintain access in the states where we still have it. Montana, Idaho, Washington to name a few could easily go the way of Colorado and Wyoming. When I was in Wyoming last, I was talking to a local who told me that these laws have come about in recent history. I had always figured they were reminants of the historic water rights issues of the west, but he said that they had been craftily worded to make the local populations believe that it was to keep out those “damn tourist” and wouldn’t have much of an effect on them. They found out differently after it was too late. It was the “damn tourist” that wanted to keep out the local riff raff.
Before long the only fishing is going to be in national parks and private stocked waters fishing for pet hogs. Not my idea of wandering around chasing wild fish.
Thanks for the legal advice guys. I get my Don Quixote complex every once in awhile.
Dan Curran
Dan –
You are correct that these are very stable laws that aren’t likely to see-saw one way or another.
I think there’s a tendency among many anglers, and probably landowners and resource agencies, to lump various laws.
A couple recent reports from Tennessee Wildlife Resources have made passing mention about looking into different types of easements to improve angler access to trout streams (maybe smallmouth as well).
This could TREMENDOUSLY improve access here, and I hope it’s not just talk.
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