Stream Access

On another forum there is a fierce debate about fee for fishing, or posted waters. We all really appreciate landowners allowing access to our waters, at the same time the landowners have a right to know who is on their water, too many of us do not really like to bother the landowner and ask permission even though that is the right thing to do. Here is a suggestion for the review of the forum members. Place boxes, (provided by local clubs or the fish commission people) by each access area, let each angler "sign in" and deposit his slip in the boxes, that way two things could happen, if the guy puts his name down, he may be more consious of his actions, If enforcement officers on the stream stop and check an angler and he has not signed in he will be automatically be sited for trespass. GOOD BAD OR TOSS THE IDEA?? Thanks for any and all input

[This message has been edited by Little Juniata33 (edited 08 April 2005).]

This, indeed, is a subject that will come up more and more in the future.

A couple of things about your thoughts:

"the landowners have a right to know who is on their water"

They may have a right to know who is on their land but, it is not their water. Navigable waters belong to the public. That right is guaranteed by Federal law.

"enforcement officers on the stream stop and check an angler and he has not signed in he will be automatically be sited for trespass"

It is my understanding that it is not the job of enforcement officers to police for trespassers on private land. Our fishing tax dollars are not intended to aid landowners in keeping people off their land.

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Joe

Whether it is a right or not, I like to see it as a priviledge and act accordingly.

LJ- sounds like a good idea to me. There are numerous campgrounds and parks that use that system.

Isn't there a $3 Lot on the Henry's Fork (help me out here - I've heard of it, but never actually been there) where the land owner doesn't care if you use his property as long as you put a ticket in your window, and a ticket and $3 into a box? If you don't pay there is no legal recourse, but something might happen to your car.

That seems to be the best idea - I mean, you would be willing to skip paying the $3 if it was policed by the DOW, but as soon as it is policed by the fear of something much worse than a fine, everyone pays up. Plus, I think EVERYONE is willing to pay $3 to fish prime water like that.

I have a question on this subject. What consitutes 'navigable water'? We have a great little trout/smallie creek here (in Virginia), that is big enough to use a portable poontoon or canoe on. Would that be considered navigable? Some of my friends have been ran out while canoeing and wading the stretch I'm thinking of.

[This message has been edited by MIKE_24701 (edited 08 April 2005).]

[This message has been edited by MIKE_24701 (edited 08 April 2005).]

The old standard on 'navigable' was if you could float a log down it. Perhaps someone with a more legal phrase could comment?

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LadyFisher, Publisher of
FAOL

Do a search on "Riparian Rights" for your particular state or waterway. The laws in this area are very diverse and complicated.

Hi Folks,

You need to check the navigable waters
regulations by state. They vary considerably. In SC, the waters are held in
trust by the state for our use. It pretty
much follows the Federal Statute. However
some states have written their own laws
contrary to the Federal Statutes, in some
cases giving ownership to individuals. It
is my understanding that a federal appeal
would return ownership to the citizens of
those states should it ever come before
them. But it's a long expensive process.
Warm regards, Jim

Dear Little Juniata,

What you propose is a horrible idea. If the property is not posted it's implicit that you have permission to fish. I have always been respectful and courteous to landowners. I have thanked them, when they are available, and often picked up trash or admonished people who were acting disrepectfully on someones land.

I will not be subject to registering to fish someone's property. What's next? Tallying the number of trips and subjecting frequent visitors to a tax of some sort?

If your idea comes about I will give up fishing privately owned water altogether. I probably only make 5 to 10 fishing trips a year on land that isn't owned by the State anyway. I'd gladly forego those trips.

Regards,
Tim Murphy

SInce you don't have "No Trespassing Signs" in your front yard, I am gling to get about 25 friends, 2 kegs, some wood build a fire, and have a blast on your property starting at midnight tonight. You have shown your approval

At my fishing hole you have to wade into it, and its right in the middle of private property. They call the area a cooperative fishing area. You can fish but you cannot leave the water and walk onto the property. Its enforced by a 4-5' brick/lumber wall that keeps you out. Since the water is at the head of a tidal river if you get stuck at high tide the owners are not very sympathetic to your misfortune. But so far it works ok, or from what I've heard.

Her in Florida all the waters are considered navigable. A few weeks ago I was in Georgia for the opening day of trout season. I was amazed by all the posted signs. When I asked a fellow at Unicoi Outfitters how this could be he said that in Georgia if you own the property on both sides of the waterway, you own the waterway. According to the state, since all the rivers and streams have dams on them there are no navagable waters anywhere in the state.

Rusty <><

Dear Little Juniata,

Quietly fishing in the creek behind someone's house is vastly different than having a campout kegger and you know that. You are taking things to the extreme to prove a bad premise. There will always be jerks, those are the kind of people I yell at when I see them acting that way.

I'm not going to register to fish approved trout waters and other warmwater streams that are not posted, that is what I meant when I said fishing is an implied use. If I'm fishing and someone wants me to leave then I will, and they will get no argument or insult from me. It's called common courtesy.

I often have to laugh when the "country" people blame all the litter and bad behavior on "city" folks. Like the average guy from Philly or Pittsburgh is going to load his old refrigerator and his worn out carpet into his truck and drive 200 miles to dump it in Huntingdon County?

More often than not, the litter, keg parties, and bad behavior is the result of locals. They know the area and know all the side lanes and back roads to get to those places. They cause most of the problems, not the visiting fishermen.

Regards,
Tim Murphy

As to "navigable waters" issues, it is a confusing mess because both the federal and state courts are involved, and the state legislatures.

The textbook by Sax, Leshy et all state that there are 5 different navigability doctrines test. The treatise by Wilinson, Coggins, Glicksman et al agrees.

The federal test for nav. is from the seminal admiralty case of In re The Daniel Ball, and it is referred to as "The Daniel Ball Test." In that case, the question was about admiralty jurisdiction, but the test applies outside of admiralty. That test is not as extreme as that which the state legislatres have made under "navigability for title" and the application of the courts has not been consistent. There is such thing as a federal navigational servitude and a state floatage easement (in some). Just because there is a servitude or floatage easment does not mean that you can walk around or drop an anchor.

The basis of it all is that in Roman civil law, the empire owned the streambed of all navigable waters and streams, and held it in trust for the use of all the citizens of the empire. The Romans spread that doctrine throughout Europe through conquest, and it stuck after the fall of the empire. It made its way into the English common law, and was the law of the land here in the original 13 colonies before there was a nation or constitution. That is known as the "public trust doctrine." The commentators who are experts on the subject, i.e. Leshy, Sax, Wilkinson, Coggins, Glicksman, state that the PTD is a federal commonlaw doctrine. It is important to note and somewhat problematic that others contend it to be a state common law doctrine. Among them is Scalia, who in dicta in the Coer d'Alene case in 1996 which decided a case in favor of the State of Idaho on 11th Amend sovereing immunity grounds argued that it was a state law doctrine. That is problematic, and coupled with sovereign immunity issues and the prospects of Scalia's future position on the SCOTUS, could spell real problems for the future of the PTD. For the record, there are a bunch of SCOTUS cases addressing the EFD and the PTD. The SCOTUS has limited jurisdiction, and most of it is optional via certiorari; there is little mandatory appellate jurisdiction. Morevoer, the SCOTUS does not have the general power to decide whether issues of state law are correct. The typical instances in which cases involving state law get there is when there is a federal constnl question (i.e. conflict with US constn) or a preemption question i.e. preemption by federal law.

There is another misunderstood and misapplied doctrine called the equal footing doctrine. The EFD, in essence, is a mirror image rule. Under it, all later- admitted states had to have the same rights, privileges, etc. as the original states. Some have remarked that the EFD is a constnl doctrine, but it does not appear anywhere in the constn, and in fact, the first time that it appeared was in the Ohio Statehood Act. Therefore, there are those who argued that it was Congressional policy rather than a constnl doctrine.

The relevance of the EFD to the PTD is that, if the original colonies (and by extension the origianl states) were vested with ownership of streambeds of navigable streams under the PTD, then under the EFD, the later admitted states had to won them too. Pollard v. Hagan enunciated the rule that upon statehood, new states acquired title to beds of waters that were subject to the tides or were navigable AT THE MOMENT OF STATEHOOD. (An important point here.) The state acuired the bed and banks up to the high water mark. SCOTUS decided in Phillips Petroleum v. Missippi that states succeed to the title of submerged lands subject to the ebb and flow of the tide whether the water was navigable or not. There was no explicit grant by the fed govt, the title passed automatically at statehood. It was possible for the fed govt to reserve ownership of such lands to itself when creating the state, but the reservation has to be expclicit and specific.

Under the SCOTUS decision in Illinois Central R.R. v. Illinois, the court held that the states can make adjustments to the scope somewhat, but can not abandon it altogether. The court nullified the conveyance of the property in the bed of the great lake to the railroad because the transfer would violate the PTD. The court clearly exercised jurisdiction and made the decision, which raises the question of how it could have donse such a thing if the PTD were a creature of state law.

The eastern states in essence passed restrictive navigability for title statutes to allow farmers to build fences across streams to contain livestock. If the stream were navigable, the farmers would have to leave it open for navigation and could not build fences. Some eastern states have said that there is no land is public trust, which is nuts, in light of the Illinois Central case. Moreover, if the PTD did not exist in those eastern states, and the EFD was a mechanism for extending the characteristics, rights etc. to the later-admitted states, how is it that the western states ended up with the PTD? It could only have gotten there by extension from the east.

That part about Georgia above is not quite right. We have a very restrictive test for whether water is navigable, you essentially have to show that barges can operate in it.

I look forward to the day that someone calls me with the chance to challenge the Georgia statute.

Tim Murphy -

Quote:

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If the property is not posted it's implicit that you have permission to fish.

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I can see you haven't spent much time in the West. Out here, the responsibility for determining if property is private or public is the individuals, not the property owner. Ignorance of ownership is not a legal defense.

http://www.myfishingpictures.com/img/053906.gif

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Dan S
The poster formerly known as Outrider

Dear Grizzly Wulff,

I've spent enough time fishing out West to know that I get really mad when I see cattle wallowing in a stream that I own and a gate across the lane that denies me access to my property. I guess that is the price we pay for cheap beef.

It's different in Pennsylvania, which is the home state of both Little Juniata and myself.

In PA trout fishing is often done over stocked fish. If the water is approved trout water and it is stocked it is because the landowner's along the stream have already agreed to open it to fishing. If they hadn't, or if they change their minds, then the stream is no longer stocked. It's not rocket science.

Regards,
Tim Murphy