SFR -- Access Below Ordinary High Water Mark

Discussion in 'Fly Fishing Forum' started by David Dalan, Jun 27, 2013.

  1. David Dalan

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

    Lol...i'm just sharing what I belive the law says. Remind me not to fish where any of you fish...nobody has ever pointed a gun at me...

    But if they do, I'll be back to press charges, not to fish :)
     
  2. GAT

    GAT Active Member

    Actually, in Oregon you can cross above the high water mark to get around an obstruction on shore that does not allow you to pass without doing so.... like a fallen tree.

    However, you can not cross private property to gain entrance to a river .... I was heavily involved in the great River Rights Wars a few years ago and had to explain how the rights work time and time again.

    We were careful to never use the word "access" when it came to river rights because those rights DO NOT grant you access to a river. Your rights only kick in when you legally entire the waterway.

    All the navigable rivers (which means if it was ever used for commerce) in the US are held in trust as per federal law so how some State's are circumventing the rights by honoring illegal land deeds is amazing to me.

    You may have a deed that indicates you own the hwy next to your land but that doesn't mean you really own it.... you were just dumb enough to pay for it. Same goes for those who believe they bought sections of rivers.
     
  3. GAT

    GAT Active Member

    If you have a good lawyer, it may ultimately be the land owner who gets the short end of the stick. If you are not actually trespassing, I'd say the land owner was threatening you with a weapon and that is illegal.

    A similar case occurred on the John Day in Oregon and the land owner lost. I don't know if he was fined or what but I know he no longer threatens anyone with a weapon who is floating legally down the John Day.

    Like I mentioned above, you may have an errant deed that indicates you own the public street in front of your house, what do you suppose would happen if you started stopping traffic with a shotgun and telling them they are trespassing?

    If I'm in the right... I will fight for it and I don't give a damn if someone is holding a gun.... it will come back to haunt the SOB. I do hold a grudge.
     
  4. dryflylarry

    dryflylarry "Chasing Riseforms"

  5. Thanks, Larry. That document should answer most folk's questions. It points out that for lakes and small streams, the State does NOT have rights to the bottom, and the landowner does. However, for navigable streams and salt-water coastlines the State does have rights, although they may cede them to the landowner, and have done so in many cases in the past, especially on our coastline, hence the patchwork of public and private access along our beaches.

    However, the question of how "navigable waters" is defined remains uncertain in a legal sense. There's no doubt about the Snake or Columbia, but what about the North Fork of the Snoqualmie, for example?

    It is easy to say, as some have on this thread, what "navigable" means, but until a court makes that ruling, it is just someone's interpretation. A lawyer, who worked for a county here in Washington, explained to me that the definition of "navigable water" has never been tested in court, or at least not in a way that rendered any significant concluding test as to what it means. The reason is pretty simple, neither side - landowners and public users - are willing to risk losing in a decision that could have far-reaching impacts on the losing side. So, we continue to navigate the legal gray areas regarding this on a case by case basis. It's great that the judge threw out the case in the example cited above, but if the landowner had challenged this to the Supreme Court, it isn't clear how it would have been resolved.

    Montana has much more explicit state laws about stream 'rights' (thanks, Gene, for being careful in use of 'access'), but wealthy landowners there have tried a few times in recent years to challenge those rights, and have pockets deep enough to take it to the Supreme Court, if they could, but fortunately for the public, courts have consistently ruled that the Montana state laws are clear and on the side of the public. That might not be the case if a challenge is taken up in Washington or some other state.

    D
     
  6. tkww

    tkww Member

  7. David Dalan

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

    Very cool read, thanks DFL! Certainly a "risk adverse" interpretation (insurance company...go figure).

    In regards to rivers (I've never researched anything in regards to lakes or tidal areas);

    Document states how floating logs (a completely commercial activity) is said to not determine navigability (on page 8 item #3) but in the first paragraph of page 9, "Commercial Activity" is (again incorrectly) noted as the determining factor of Navigability.

    I think this is less of an issue when it comes to lakes (unless you need to anchor). If you can legally access a lake, I'm confortable with the interpretation that you can float it. All liquid H2O (in WA) is the property of the state. I am also certain there is probably a court ruling out there somewhere that limits that right on some body of water in WA. While I would put on my tinfoil hat and argue that it is wrong, I would not float the body as (in it's current state) it would be unlawful to do so.

    Generally, states must determine what rivers meet the definition of Navigable (commerical use is used by many courts including SCOTUS). I stumbled along a preliminary map the USGS created regarding navigability and I think it was at the behest of the WADNR. If such classifications were adopted by WAC, it could settle the matter...until someone takes it to court, of course :)

    Here is a link to the study by the USGS. http://pubs.usgs.gov/sir/2009/5122/ but if your looking for a "ah ha! see it says this river is navigable"...you will be disappointed.
     
  8. David Dalan

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


    Truer words have never been spoken. States could define "Navigability" but even if they did (and I think they are), someone could argue it infringes on private or public rights and drag it to SCOTUS anyway.

    And I want to fish, not pay lawyers.
     
  9. Bill Aubrey

    Bill Aubrey Active Member

    And total jackass, and owned prosecutor.
     
  10. Bill Aubrey

    Bill Aubrey Active Member

    My buddy, Howard, moved to Thompson Falls, MT, in October and just attended a meeting in opposition to a move by the Flathead Tribe to control pretty much all water in western MT, including Flathead Lake and the river and it's tribs. The governor is on their side. Wonder how much that cost? The people are incensed.
     
  11. David Dalan

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


    Haa the tribe announced plans for use/access should they succeed? Some places its easy for wasi'chu like myself to get access (Nez P sections of the Clearwater for example). Some places not. Could be a good thing for western MT...but I sure don't know.
     
  12. Bill Aubrey

    Bill Aubrey Active Member

    I don't think so. How on earth could it be a good thing? I mean, why would they want the control?
     
  13. David Dalan

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


    Is there a reason to think something bad will happen? As to why, I could make stuff up, but I have no idea at all.
     
  14. Bill Aubrey

    Bill Aubrey Active Member

    I have a problem with any person or group, no matter who they are, wanting to control something. We have way to much of that already. And, it usually, or at least often enough, doesn't turn out all that well.
     
  15. KerryS

    KerryS Ignored Member

    My statement was somewhat tongue in cheek still, a good lawyer won't help you recover from a shotgun blast to the chest. Depending on the load not even a good doctor will be able to help you. Point being; becareful with whom and when you verture into confrontation.
     
    David Dalan likes this.
  16. Kaiserman

    Kaiserman content

    Geez, that's no lie! People are just so angry nowadays... about anything or everything anymore. Why can't we all just get along? :rolleyes: