Are You Trespassing?

Discussion in 'Fly Fishing Forum' started by LCnSac, Oct 15, 2013.

  1. LCnSac

    LCnSac John or "LC"

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    One of our local clubs posted a link to a property rights lobby, National Organization For Rivers, that maintains there's Federal law and overlay that allows anyone to use any river for recreational use. I questioned the right to use banks at will, and the webmaster responded with a list of several court cases that allegedly give us those rights.

    As one who has to deal with contractual language and legal language daily, I'm not afraid to go to the source, and did. As i posted in the comments which you can see, I do not believe these cases are applicable. Further, a brief survey of the topic shows many states cases unresolved.

    I do think it can vary by state. Here in California the pre-disposition is public use, but not access. I know some Montana riverbank owners fiercely try to restrict any bank access on private property.

    It's hard to find anything that prohibits floating a river, but beyond that I am skeptical of any overlay that gives us rights to use banks, and maybe even the riverbed (wading).

    What do you think? Here's the link where the discussion has started, along with the article.

    http://www.nationalrivers.org/is-it...lic-to-use-rivers.html?quip_approved=1#qcom55
     
  2. Peyton00

    Peyton00 Active Member

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    OH man what a line to try and draw... its a battle for the ages....
    i would rather face the music.... the sweet sweet music.;) I dont have time for politics and squabbles over the water i am going to fish, with or without 'permission'.
     
  3. Joe Goodfellow

    Joe Goodfellow Active Member

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    Your on my ancestors land so I don't care.
     
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  4. Lugan

    Lugan Joe Streamer

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    That's too nuanced a discussion to have with a hillbilly property owner who is pointing a gun at your head.
     
  5. Bert

    Bert Registered Potamophile

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    The Jackson River in Virginia is a tailwater that was managed by the state for trout fishing until the local landowners filed suit. Based on precedent from English law (colonial land grants), they prevailed in the state supreme court and now it is illegal to drop your anchor while floating the river.

    http://www.beaubeasley.com/jacksonriver.html
     
  6. Steve Saville

    Steve Saville Active Member

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    That's because the government owns most of the water. Ownership is of the land beneath the water so anchoring ones craft on someone's land is undesireable regardless of the amount of water above. It reminds me of an incident many years ago when I was a Scout Leader. The Scout Executive wanted trout planted at a lake at one of the camps. He asked and the State refused, citing costs.
    "Who owns the water?'" inquired the Scout Exec.
    "The State", replied the fisheries rep.
    "Well then, who owns the land under the water?' "
    "I suppose the camp does.", replied the fisheries rep.
    "Good" was the retort, "I'll give you twenty-four hours to get your water off the camp's land."

    Needless to say, the fish were stocked. TRUE STORY.
     
  7. PETI

    PETI Member

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  8. Drifter

    Drifter Active Member

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    This subject was adressed in Oregon some years back, I don't know who started it - land owners, or public use rights but it was taken to courts and the land owners lost.

    Many of the property owners after that had to move their "NO TRESPASSING" signs above the high water mark. just giving the sandy river as an example many of the holes were opened up for public walk-ins that had never had access before. Now people could walk into big bend below stark street bridge because they could access the bank on public land and walk "below the high water mark" The no trespassing signs from the land owners were moved to basically the grass in their yards and they could do nothing about it!

    Many land owners at the coast range (wilson-trask I know mostly) thought they could keep people from anchoring in the river bed - thinking they owned the bed and could say how it was used! they were wrong! Like mentioned than the land owners threatened to put a fence up across the rivers and found they could not!

    It was interesting to read that they state you can walk "ABOVE HIGH WATER MARK" to access the river. this is not how us fisherman understood how the law was - how would you say - "EXPLAINED TO THE SPORTSMAN OF OREGON" It was explained that as long as you were "BELOW" the high water mark you were not trespassing!

    From what I have always followed was the "navigational waters" many of the small coastal rivers have pillars driven into the river beds from logging, running logs down all the rivers using the beds and the banks as need be.

    Now the information was given to the public with warnings of - if a land owner forces you off the river, or what they think is their land report them and do not argue or confront them. Report to proper authorities so land owners could be notified and dealt with by law enforcement.

    It made a huge change in the state of Oregon and it's waterways. I can see with all the new single person pontoons being able to walk in anywhere and launch in the smallest of streams land owners could be - well, pissed off!

    It used to be drift-boats and canoes putting in at public boat ramps and floating the normal rivers and areas. kayaks used the upper rivers and barely had to use the river banks or not at all. now everyone has the one man pontoon and pushing the limits where land owners never had to deal with the public. I can see why the outrage.

    Well now I see someone posted an Oregon link - thank-you!!!
     
  9. Bert

    Bert Registered Potamophile

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  10. GAT

    GAT Dumbfounded

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    The States can come up with whatever they'd like but there is a federal issue. These are your federal river rights.... they are a Public Trust Doctrine.


     
  11. GAT

    GAT Dumbfounded

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    Mark, it came to a head when a State Representative from John Day attempted to push through a bill that would have removed all river rights from river users in Oregon.

    Some of us, on another web site, go together and created a group to fight the bill. We were successful. During the battle, the Attorney General of Oregon wrote an opinion that pretty much pointed out the original Oregon and Federal river rights. Most counties used the opinion as the reason to ignore land owners who yelled trespass when a river user was within their Oregon and Federal rights.

    A case went to court in Wallowa County. A land owner on the Grand Rhonde was pressing for trespass when some anglers stopped on his land but were below the normal high water mark.

    The judge in Wallowa County sited the AG's opinion as the word of law and the land owner lost the case. Which set a recent precedent.

    However, it will crop up again. It continues to do so every decade or so.
     
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  12. Lugan

    Lugan Joe Streamer

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    Wasn't there a similar issue making its way through the MT state legislation? I recall something about Huey Lewis being involved. I already hated him for that shitty corporate music product he churned out in the 1980's, but what he was trying to do to restrict water access moved him from the "lame" column to "enemy".

    BTW, looks like Huey lost: http://www.hcn.org/issues/43.12/montanas-stream-access-law-stays-strong . The article also mentions a few other states like UT and CO.

    BTW x2, I hope this state legislator cited in the article loses his next election. He was the sponsor of that failed law: "Rep. Jeffrey Welborn, a Republican from Dillon..."
     
  13. David Dalan

    David Dalan 69°19'15.35" N 18°44'22.74" E

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    You have to legally get below the mean high water mark, but once you're there its public as long as the river is navigable. Supreme court rule if it is navigable in practice, it is navigable in law, but states do have some discretion to determine navigability. That can be challenged, but requires lawers and $.

    Idaho and Oregon are more cut and dry (ish) than WA, imo. Idaho even statutorally allows crossing above hwm to get aroud barriers in the channel.
     
  14. GAT

    GAT Dumbfounded

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    You can also cross above the normal high water mark to clear barriers on the waters edge in Oregon.

    I learned much about our federal and state river rights during what we called The Great River Rights War.

    At one point in the recent past, the State Legislature hired a professor at OSU to determine just how many waterways in Oregon were "navigable" according to the original definition.

    It took him years of study and included testimony from Native Americans and those related to some of the first pioneers in Oregon.

    The findings created a huge book. What he found was the vast majority of waterways in Oregon fit the navigable definition. This is not what the Oregon Legislature, at the time, wanted to hear. They expected the results to be just the opposite and on the side of the land owners. So... they tossed the study.

    Those with the big money and power who own the politicians do not like river rights. So, when things don't turn out like they expect, they tend to hide the results.

    For 8 years in a row, there was an attack on the Oregon river rights in the State Legislature. It only stopped when the AG wrote an opinion favoring the river users.

    But those who want to blow away the river rights will be back.

    Of that I have no doubt.
     
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  15. Lugan

    Lugan Joe Streamer

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    Interesting, GAT. And we're learning yet another way unlimited money in politics warps laws.
     
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  16. Nooksack Mac

    Nooksack Mac Active Member

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    If it seems that the laws, legal precedents, precedents, and beliefs regarding access to streams in the U.S. are confusing, contradictory, and in some cases irrational and unjust, it's because they are. Making public policy on these issues uniform and understandable is an ongoing process.

    It reminds me of Jim Crow law in the Southern states, a time and place in which I grew up. Institutionalized racial prejudice didn't disappear with the passage of major civil rights bills and constitutional amendments in the 1960's. The bigots kept on being bigots, and prejudice had to be beaten into submission, one court decision at a time. In places like Montana and Utah, a few troglodites are still trying to turn back the clock. Or as an old Western saying had it: "Whiskey is for drinking; water is for fighting."
     
  17. Old Man

    Old Man Just an Old Man

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    This word is the clincher "navigable" A lot of streams aren't that.

    I don't worry about stepping on others toes when I fish. Where I fish is usually in the National Forests in the small skinny water. There is so much water here in Montana that is free access that you don't have to step on private land to fish.
     
  18. GAT

    GAT Dumbfounded

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    More than you'd think. The waterways were the original highways. Goods and services depended on the waterways so if a trapper could carry pelts down or upstream to sell or trade them, the waterway was considered navigable.

    It doesn't take much water to negotiate with a canoe. This is what the OSU researcher found when he was checking the rivers in Oregon for historic navigability. Plus, if you can navigate the waterway no matter the time of year, this made the river navigable for the entire year. ...thus the reason for the high water mark notation.
     
  19. Steve Slater

    Steve Slater Member

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    Do you know if the OSU study ever published? If so, do you have the reference?

    Also, it might be cool to overlay the navigability data on to the massive new map of rivers that was just generated. http://www.somebits.com/rivers/rivers-leaflet.html That would create a communal understanding of what is navigable.

    Anybody have a few years to commit to the project?

    Thanks,

    Steve
     
  20. Brett Angel

    Brett Angel Member

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    If you're serious I'd be willing to donate some time. If you get the list of rivers I can do the rest. This could be done a lot quicker than you think. It would be a fun project with some real benefits.
     

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