SFR -- Access Below Ordinary High Water Mark

David Dalan

69°19'15.35" N 18°44'22.74" E
#1
Question came up, and I thought I would share the short answer. Keep in mind I am not an Attorney, and I don't want to hear about your ticket. But I boldly go where I believe I legally can.

1. The Federal law/common law regulates the use of Navigable waterways.

2. Supreme's ruled (in 1870), that any water that is navigable in practice, is navigable in law. That (specifically noted in the ruling I believe) includes floating a log down the river. Raft, boat whatever. Includes having to ford short distances across land to avoid obstructions. This does NOT mean you can trespass to get around an obstruction, only that the water remains navigable. In Idaho for example, the law allows you to cross private property to get around an obstruction. In WA and OR, the law does not allow this, generally.

3. Supremes affirmed that navigable waters, up to the Ordinary High Water Mark, are held in trust by states for the people. The state cannot sell or transfer these rights. It is irrelevant whom has property title to land under a navigable water way. The 1870 ruling, and later one in 1996 simply affirmed that (flowing from common law) the property was never transferrable, not since the formation of the United States.

In short, if you can float down it in any kind of boat (toon, raft, log, etc.) the water is navigable, by federal law. If it is navigable, then you have access up to the OHWM. You must legally access the channel (where public land intersects the access).
 

Jim Darden

Active Member
#5
Yea...I know what it says but the states still successfully prosecute anglers floating the river. Reference people floating the Colorado River in Colorado or folks floating the Little Spokane River in Washington. It has always been an enigma to me. I guess the folks with the biggest bankroll for lawyers are the winners and get to float the rivers......how big is your wallet?
 
#6
Yea...I know what it says but the states still successfully prosecute anglers floating the river. Reference people floating the Colorado River in Colorado or folks floating the Little Spokane River in Washington. It has always been an enigma to me. I guess the folks with the biggest bankroll for lawyers are the winners and get to float the rivers......how big is your wallet?
Come on Jim... you know that the Little Spokane is a "different duck". You may be right about others, but I've never seen anything like the Little Spokane. Those landowners are just plain mean folk. :eek:

Too bad .... 'cause there are some absolute HUGE browns in there! I had the chance to see one under a private walk bridge once, in about a foot and a half of water. That thing was nothing short of 10 lbs at least. I think they were hand feeding it rib-eye steaks, or something crazy like that.
 
#7
Come on Jim... you know that the Little Spokane is a "different duck". You may be right about others, but I've never seen anything like the Little Spokane. Those landowners are just plain mean folk. :eek:

Too bad .... 'cause there are some absolute HUGE browns in there! I had the chance to see one under a private walk bridge once, in about a foot and a half of water. That thing was nothing short of 10 lbs at least. I think they were hand feeding it rib-eye steaks, or something crazy like that.
Betting that was in the Fall.. Long Lake spawner.

Fall?
 

David Dalan

69°19'15.35" N 18°44'22.74" E
#8
And there really is the rub. Legal or not, I'm not getting shot at to prove a point. And, if you get cited, you will have to spend time to fight any citation.

One "horror" story...

In eastern Oregon, on the Wallowa I think, a guy would boat in and anchor to fish. The land owner owned the stream bed. He complained, and the boater was cited. He appealed and a judge tossed the ticket. I'm fuzzy on the details, but the judge said that he was legit (essentially) because the use was on a navigable river. Tells the prosecutor to go away.

Guy comes back at some point later. Land owner calls, boater get cited again. Prosecutor files and judge tosses.

So even with a judge ruling your in the clear, you could still have to fight about it. And that's some bullshit.
 
#9
And there really is the rub. Legal or not, I'm not getting shot at to prove a point. And, if you get cited, you will have to spend time to fight any citation.

One "horror" story...

In eastern Oregon, on the Wallowa I think, a guy would boat in and anchor to fish. The land owner owned the stream bed. He complained, and the boater was cited. He appealed and a judge tossed the ticket. I'm fuzzy on the details, but the judge said that he was legit (essentially) because the use was on a navigable river. Tells the prosecutor to go away.

Guy comes back at some point later. Land owner calls, boater get cited again. Prosecutor files and judge tosses.

So even with a judge ruling your in the clear, you could still have to fight about it. And that's some bullshit.
Total jackass landowner.
 

David Dalan

69°19'15.35" N 18°44'22.74" E
#10
And FWIW, where floating is concerned. Waters of the state (the liquid) are ALL the property of the state. You can get a right to appropriate it (water right permit or Certificate) but that only allows you to move the states water form one place to another. You could make an argument about touching the river bottom, but there really is no legal basis to cite anyone for floating on any body of water in WA.

You can be required to get a permit, to adhere to a schedule, etc, but not unilaterally denied access. But if you get the ticket, you'll have to fight about it :)
 
#12
I think "yes and no". I doubt he knew the law, and they did cite the boater the first time. And he clearly did not want the boat there.

But even more so the Prosecutor who knew it was meritless, and went back after the guy a second time.
My point is: you buy riverfront property, expect to see people / boats. Don't be some elitist jackass that thinks he owns the river.
 
#13
Some tard on upper rock creek MT had barbed wire across the river about 1/2 mile below the forks one year I waded down it. My buddy and I ducked the wire and continued, but with a wary eye for the F that strung it. Great brown fishing, if you knew where they sat.
 

Old Man

Just an Old Man
#14
I look at fishing skinny water this way, with all the public access. Why go where your not wanted or allowed. When I fish I like to be alone. Fishing with a buddy is nice for somebody to talk to. But I really like it alone. You get to come and go as you like/want. Don't have to wait on anybody.
 

KerryS

Ignored Member
#15
Who has the power; land owner standing in front of you with a twelve gauge shotgun or supreme court justice hanging out in Washington DC?
 

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