Skyler
06-25-2009, 07:27 PM
I've had a few problems recently on certain posted stretches of river. Namely a posted stretch of Lytle creek, and the Weesha Club-owned section of the Santa Ana river. The weeshaw clubactually claims they own the streambed!!! The altercations all involve the same argument (whether I can fish there or not), and I'd like to post this info I've compiled so my fellow stream fishers know their rights. Print it and keep it on you! WE DO have the right to fish any navigable stream in the state, or any waters stocked by the state, whether posted or not. Read on...
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
Section 25. The people shall have the right to fish upon and from
the public lands of the State and in the waters thereof, excepting
upon lands set aside for fish hatcheries, and no land owned by the
State shall ever be sold or transferred without reserving in the
people the absolute right to fish thereupon; and no law shall ever be
passed making it a crime for the people to enter upon the public
lands within this State for the purpose of fishing in any water
containing fish that have been planted therein by the State;
provided, that the legislature may by statute, provide for the season
when and the conditions under which the different species of fish
may be taken.
-------------------------------------------
The following is a review of what individual state governments can and cannot lawfully do with the rivers within their borders:
1. The U.S. Supreme Court has ruled that rivers that are navigable, for title purposes, are owned by the states, and are "held in trust" for the public. This applies in all fifty states, under the "Equal Footing Doctrine." Rivers that meet the federal test are automatically navigable, and therefore owned by the state. No court or government agency has to designate them as such.
2. The federal test of navigability is not a technical test. There are no measurements of river width, depth, flow, or steepness involved. The test is simply whether the river is usable as a route by the public, even in small craft such as canoes, kayaks, and rafts. Such a river is legally navigable even if it contains big rapids, waterfalls, and other obstructions at which boaters get out, walk around, then re-enter the water.
3. The states own these rivers up to the "ordinary high water mark." This is the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits. States cannot sell or give away these rivers and lands up to the ordinary high water mark. Under the "Public Trust Doctrine," they must hold them in perpetuity for public use.
4. The three public uses that the courts have traditionally mentioned are navigation, FISHING, and commerce. But the courts have ruled that any and ALL non-destructive activities on these lands are legally protected, including picnics, camping, walking, and other activities. The public can fish, from the river or from the shore below the "ordinary high water mark." (Note that the fish and wildlife are owned by the state in any case.) The public can walk, roll a baby carriage, and other activities, according to court decisions, below the high water line.
5. States do have authority and latitude in the way they manage rivers, but their management must protect the public uses mentioned above. They can (and must) prohibit or restrict activities that conflict with the Public Trust Doctrine. "Responsible recreation" must be allowed, but activities that could be harmful, such as building fires, leaving trash, and making noise, can legally be limited, or prohibited, in various areas. Motorized trips and commercial trips can legally be limited or prohibited by state governments.
6. State and local restrictions on use of navigable rivers have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed TO APPEASE ADJACENT LANDOWNERS or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies.
7. State governments (through state courts and legislatures) cannot reduce public rights to navigate and visit navigable rivers within their borders, but they can expand those rights, and some states have done so. They can create a floatage easement, a public right to navigate even on rivers that might not qualify for state ownership for some reason, even if it is assumed that the bed and banks of the river are private land. Note that this floatage easement is a matter of state law that varies from state to state, but the question of whether a river is navigable, for title purposes, and therefore owned by the state, is a matter of federal law, and does not vary from state to state (CALIFORNIA HAS A FLOATAGE EASEMENT). Note that a state floatage easement is something that comes and goes with the water: When the water is there, people have a right to be there on it, and when it dries up, people have no right to be there. But rivers that are navigable for title purposes are public land up to the ordinary high water mark, so that even when the river runs dry, people still have the right to walk along the bed of the river.
8. ONLY FEDERAL COURTS can modify the test of standards that make a river navigable for title purposes. States and local governments cannot create their own standards, either narrower or wider in scope. They cannot make definitive rulings about which rivers are navigable for title purposes, only a federal court can.
9. The situation gets confusing when a state agency or commission holds hearings about navigability and public use of rivers. Landowners, sheriffs, and other people tend to think that such an agency or commission can create state standards that determine which rivers are public and which are private. BUT THESE ARE MATTERS OF FEDERAL LAW, which state agencies cannot change.
10. State (not local) agencies must make provisional determinations that various rivers meet the federal test of navigability for title purposes. These provisional determinations should be based simply on the rivers' useability by canoes, kayaks, and rafts. They should then proceed to the question of how to manage navigation and other public uses of the river. In these days of government cut-backs, the agency should look for solutions that use existing enforcement agencies rather than setting up new ones. Littering, illegal fires, offensive behavior, trespassing on private land, and numerous other offenses are all covered by existing laws, and offenders can be cited by the local police, sheriff's office or state police.
----------------------------------------
CALIFORNIA FLOATAGE RIGHTS
1. Basic Description
In California, if a stream can be floated at any point for most of the year the public has the right to use the stream. The public may use the stream for recreational boating, fishing, swimming, hunting, etc. up to the high water mark.
2. State Test of Navigability
The State of California has adopted a state test for determining which streams are subject to a public easement for navigation. The waters subject to the easement include those waters that are navigable "in fact" at the present time by any watercraft propelled by oar, including a kayak or other small craft. A number of cases have applied the test. The stream need not be navigable for the entire year. The stream must be suitable for public use, which is determined on an ad hoc basis. A stream navigable "in fact" for most of the year should suffice. In addition, the stream does not need to be navigable in fact in its ordinary state; improvements can make an otherwise non-navigable stream navigable.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
California's constitution allows the public to use all navigable waters in the state, and further directs the legislature give the provision the most liberal construction. Regardless of whether the stream bed of a river which is navigable in fact is public or privately owned, there is an easement for public navigation and the incidents of navigation, i.e. boating, fishing, swimming, hunting and other recreational uses. The easement exists up to the high water mark.
Courts are especially sensitive to infringements upon the public's constitutional rights under the guise of police power. The Attorney General found such an infringement when the state sought to prohibit the right to use navigable waters that flowed over inundated privately owned land adjacent to the navigable waterway. In a landmark case, the same constitutional provision defeated a county ordinance that forbade rafting on a river because of the litter, pollution and noise generated by the rafters. However, the public easement does not include the right to use a private pier in navigable water, unless there is an emergency.
Whether portaging and scouting above the high water mark is permissible has not been definitively ruled upon. However, the Mack case does state that the easement for using navigable waters, including the incidents of navigation, exists below the high water mark.
4. Statutes Governing Landowner Liability
California's recreational use statute (Govt. § 846) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner's land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
California's tort claims act, which defines the scope of the government's liability, is detailed in the California Tort Claims Act, Cal. Gov. Code § 810-996.6 (Deering) et seq.
5. Miscellaneous
Article I, section 25 of the California Constitution forbids the state from alienating land without reserving fishing rights in the public.
A case of interest to boaters is People v. Sweetser, 72 Cal. App. 3d 178 (1977), in which a kayaker was found innocent of trespass where the kayaker was carrying his boat on a road across private land to gain access to a navigable waterway. The county had an easement in the road for a public highway, and the use of the road by the kayaker was reasonable.
Don't let pushy landowners step on your freedoms. KNOW YOUR RIVER, KNOW YOUR RIGHTS!!! Tight lines!
-Skyler
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
Section 25. The people shall have the right to fish upon and from
the public lands of the State and in the waters thereof, excepting
upon lands set aside for fish hatcheries, and no land owned by the
State shall ever be sold or transferred without reserving in the
people the absolute right to fish thereupon; and no law shall ever be
passed making it a crime for the people to enter upon the public
lands within this State for the purpose of fishing in any water
containing fish that have been planted therein by the State;
provided, that the legislature may by statute, provide for the season
when and the conditions under which the different species of fish
may be taken.
-------------------------------------------
The following is a review of what individual state governments can and cannot lawfully do with the rivers within their borders:
1. The U.S. Supreme Court has ruled that rivers that are navigable, for title purposes, are owned by the states, and are "held in trust" for the public. This applies in all fifty states, under the "Equal Footing Doctrine." Rivers that meet the federal test are automatically navigable, and therefore owned by the state. No court or government agency has to designate them as such.
2. The federal test of navigability is not a technical test. There are no measurements of river width, depth, flow, or steepness involved. The test is simply whether the river is usable as a route by the public, even in small craft such as canoes, kayaks, and rafts. Such a river is legally navigable even if it contains big rapids, waterfalls, and other obstructions at which boaters get out, walk around, then re-enter the water.
3. The states own these rivers up to the "ordinary high water mark." This is the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits. States cannot sell or give away these rivers and lands up to the ordinary high water mark. Under the "Public Trust Doctrine," they must hold them in perpetuity for public use.
4. The three public uses that the courts have traditionally mentioned are navigation, FISHING, and commerce. But the courts have ruled that any and ALL non-destructive activities on these lands are legally protected, including picnics, camping, walking, and other activities. The public can fish, from the river or from the shore below the "ordinary high water mark." (Note that the fish and wildlife are owned by the state in any case.) The public can walk, roll a baby carriage, and other activities, according to court decisions, below the high water line.
5. States do have authority and latitude in the way they manage rivers, but their management must protect the public uses mentioned above. They can (and must) prohibit or restrict activities that conflict with the Public Trust Doctrine. "Responsible recreation" must be allowed, but activities that could be harmful, such as building fires, leaving trash, and making noise, can legally be limited, or prohibited, in various areas. Motorized trips and commercial trips can legally be limited or prohibited by state governments.
6. State and local restrictions on use of navigable rivers have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed TO APPEASE ADJACENT LANDOWNERS or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies.
7. State governments (through state courts and legislatures) cannot reduce public rights to navigate and visit navigable rivers within their borders, but they can expand those rights, and some states have done so. They can create a floatage easement, a public right to navigate even on rivers that might not qualify for state ownership for some reason, even if it is assumed that the bed and banks of the river are private land. Note that this floatage easement is a matter of state law that varies from state to state, but the question of whether a river is navigable, for title purposes, and therefore owned by the state, is a matter of federal law, and does not vary from state to state (CALIFORNIA HAS A FLOATAGE EASEMENT). Note that a state floatage easement is something that comes and goes with the water: When the water is there, people have a right to be there on it, and when it dries up, people have no right to be there. But rivers that are navigable for title purposes are public land up to the ordinary high water mark, so that even when the river runs dry, people still have the right to walk along the bed of the river.
8. ONLY FEDERAL COURTS can modify the test of standards that make a river navigable for title purposes. States and local governments cannot create their own standards, either narrower or wider in scope. They cannot make definitive rulings about which rivers are navigable for title purposes, only a federal court can.
9. The situation gets confusing when a state agency or commission holds hearings about navigability and public use of rivers. Landowners, sheriffs, and other people tend to think that such an agency or commission can create state standards that determine which rivers are public and which are private. BUT THESE ARE MATTERS OF FEDERAL LAW, which state agencies cannot change.
10. State (not local) agencies must make provisional determinations that various rivers meet the federal test of navigability for title purposes. These provisional determinations should be based simply on the rivers' useability by canoes, kayaks, and rafts. They should then proceed to the question of how to manage navigation and other public uses of the river. In these days of government cut-backs, the agency should look for solutions that use existing enforcement agencies rather than setting up new ones. Littering, illegal fires, offensive behavior, trespassing on private land, and numerous other offenses are all covered by existing laws, and offenders can be cited by the local police, sheriff's office or state police.
----------------------------------------
CALIFORNIA FLOATAGE RIGHTS
1. Basic Description
In California, if a stream can be floated at any point for most of the year the public has the right to use the stream. The public may use the stream for recreational boating, fishing, swimming, hunting, etc. up to the high water mark.
2. State Test of Navigability
The State of California has adopted a state test for determining which streams are subject to a public easement for navigation. The waters subject to the easement include those waters that are navigable "in fact" at the present time by any watercraft propelled by oar, including a kayak or other small craft. A number of cases have applied the test. The stream need not be navigable for the entire year. The stream must be suitable for public use, which is determined on an ad hoc basis. A stream navigable "in fact" for most of the year should suffice. In addition, the stream does not need to be navigable in fact in its ordinary state; improvements can make an otherwise non-navigable stream navigable.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
California's constitution allows the public to use all navigable waters in the state, and further directs the legislature give the provision the most liberal construction. Regardless of whether the stream bed of a river which is navigable in fact is public or privately owned, there is an easement for public navigation and the incidents of navigation, i.e. boating, fishing, swimming, hunting and other recreational uses. The easement exists up to the high water mark.
Courts are especially sensitive to infringements upon the public's constitutional rights under the guise of police power. The Attorney General found such an infringement when the state sought to prohibit the right to use navigable waters that flowed over inundated privately owned land adjacent to the navigable waterway. In a landmark case, the same constitutional provision defeated a county ordinance that forbade rafting on a river because of the litter, pollution and noise generated by the rafters. However, the public easement does not include the right to use a private pier in navigable water, unless there is an emergency.
Whether portaging and scouting above the high water mark is permissible has not been definitively ruled upon. However, the Mack case does state that the easement for using navigable waters, including the incidents of navigation, exists below the high water mark.
4. Statutes Governing Landowner Liability
California's recreational use statute (Govt. § 846) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner's land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
California's tort claims act, which defines the scope of the government's liability, is detailed in the California Tort Claims Act, Cal. Gov. Code § 810-996.6 (Deering) et seq.
5. Miscellaneous
Article I, section 25 of the California Constitution forbids the state from alienating land without reserving fishing rights in the public.
A case of interest to boaters is People v. Sweetser, 72 Cal. App. 3d 178 (1977), in which a kayaker was found innocent of trespass where the kayaker was carrying his boat on a road across private land to gain access to a navigable waterway. The county had an easement in the road for a public highway, and the use of the road by the kayaker was reasonable.
Don't let pushy landowners step on your freedoms. KNOW YOUR RIVER, KNOW YOUR RIGHTS!!! Tight lines!
-Skyler