If a property owner owns both sides of the land bordering a stream that is so shallow as to NOT be navigible (even in an inner tube you would touch the bottom), can he legally deny access to those who wish to fish–even if they can enter the stream from National Forest above and below his property?
I know there was controversy about access laws in CO. a few years back and figured someone here would have the latest information.
Thanks in advance.
Colorado and access laws are very tough. In your example, I believe he CAN deny access. I know when I float one certain river in Colorado, my driftboat or raft cannot touch shore or the bottom(including an anchor) or I am trespassing. I think in CO the land owner owns the river bed also, not just the land on both sides of the river. I’m only in CO about 6 times per year though. I’m sure someone from CO can clear this up more.
If the state has stocked the water, no. If not, yes. That is my understanding. On private property, you cannot touch bottom if you float through it. No anchoring, no wading…
In Colorado the land owner controls the property rights and access to both sides of the river and the stream bed below. On navigatable waters a person can drift through private lands, but cannot touch the bottom, stop or wade. This includes using an anchor or other device that would touch the bottom.
The definition of navigatable water is murky at best. One school of legal thought makes the arguement that the ‘navigatable’ clause was meant for commercial river traffic and does not apply to recreational boats like kayaks. (which can navigate very shallow waterways!) There are many conflicts between boaters and land owners over this definition, some are only resolved in the courts.
Land owners sometimes string barbed wires across sections of the river to keep out trespassing boaters. The legal system has supported this practice, inspite of the danger it poses to boaters.
The no trespass rules are inforced on a regular basis. There is a section of the Blue River near Winter Park where a private land owner has installed closed circuit tv cameras that are monitored by a private security team, if you touch bottom you are met by the sheriff at the takeout. I have even heard of one fisherman arrested for trespass when he reached down to retrieve a rod and reel that he had dropped over board.
As far as I know it makes no difference where the boater enters the water, from private or public land. I am also unaware of any distinction made for streams that are stocked.
There are many streams that run through private lands where the land owners are not troubled by fisherman. There are other land owners that have take a hostile position and will enforce their land rights aggresivly, sometime using guns.
If you are in doubt about the legal access to a particular stream section I would get some input from the local fly shops. In some places it’s no big deal on others you could get arrested, or even shot.
Local whitewater and rafting groups have organized to fight for legal access to rivers. Here is a link that discusses some of the current issues…
http://www.adventuresports.com/river/nors/states/co-news.htm
The case used to justify access to state-stocked waters is Hartman v. Tresise, 1906. I don’t know how it is applied across the state, as there have been other cases since that challenged this, but at least around here, the DOW is adamant that if they stock fish in it, you can fish it.
On the other hand, it is much easier to avoid the conflict and fish on public waters and public lands. I have to live in this town, I am not about to get into a feud with a rancher just so I can fish his crick. If I ask and he says no, that is the end of it as far as I am concerned.
Both Colorado and Wyoming have similar access laws on their streams and rivers. In both states, the landowners? property rights include the river bed. If a particular landowner has property bordering only one side of the river/stream, their property extends to the middle. You may float over the property, but you cannot touch the bottom.
In Colorado in the last few years there has been an attempt by landowners to have legislation passed that would restrict the right to float through any private water, and I expect them to continue their efforts.
As kengore stated, “Land owners sometimes string barbed wires across sections of the river to keep out trespassing boaters. The legal system has supported this practice, inspite of the danger it poses to boaters,” and there are currently a couple of cases pending where a national alliance of commercial rafters have brought suit on behalf of rafters that have been arrested for trespass. If things go as normal in the state, the suits wil never get to court, as the landowners do not want a review of river access by the states high court. Instead they will drag the suit out over a long period of time forcing the accused to spend time and money on lawyers, etc. Just before the case goes to court, the trespass charge will be dropped.
In Colorado (not sure about Wyoming) a landowner does not have to post their property; it’s your responsibility to know what is private and what is public.
There’s an old saying in Colorado and Wyoming, “Whiskies for drinking, waters for fighting.”
FYI
http://www.sltrib.com/ci_9923629
07/18/2008 article where Utah now recognizes the right to wade streambeds and rivers.
Ask the land owner for permission. In my opinion floating onto a persons property is just like walking. Doesn’t mater where you came from, just where you are. Always respect a landowners rights. Always pick up trash, and offer to be their eyes and ears when you are on their land. You are a guest, it is never your “right” to fish just because water is there. It is always better to be polite, and if you do wonder onto someones land, be apologetic. If you befriend one land owner, often they will back your word to others.
A lot of land I fish is posted. I try and ask the landowner but the signs rarely are marked with a phone number. The times when I have been confronted I am always apologetic and talk with the landowner for a bit. Show him or her the bag of trash I have already picked up and it has always resulted in permission for future visits.
In New York recreational users usually have rights to the average high water mark on rivers, but not always. Some landownership has predated right of way easments. It is always hard to know where property starts and ends and who owns what. It is always best to ask when in doubt.
You are a guest, it is never your “right” to fish just because water is there.
I researched this topic many years ago, and as far as I can remember, it was a condition of statehood that a State hold the streams and rivers within its borders in trust for the public. In other words, the public was given a constitutional right to fish or boat in any stream or river.
However, landowners in the West did not like that state of affairs, so they tried to usurp the publics right to use the waterways. In that effort, landowners bribed politicians to pass laws that gave landowners ownership of the stream beds. Using those laws and other legal tricks, the landowners managed to wrestle partial control of the streams and rivers away from the public. Courts held that since the stream beds were private property, the public had a right to be on the water, but not on the stream bed, i.e. wading was trespassing.
Coupled with aggressive tactics like stringing barbed wire across a river and assaulting people who used the rivers that ran through their property, the landowners managed to privatize sections of streams. In other words, through legal wrangling and intimidation, the landowners stole public property.
Last week, the Utah Supreme Court decided enough was enough. The Court held that if the landowners owned the stream beds, then the public had an easement to use the stream beds while recreating in the water, and therefore a fisherman could walk anywhere on the stream bed that he/she damned well pleased.
As a follow up, I would like to see TU sue various landowners in a class action lawsuit for damages for illegally appropriating public property, and then possibly settle the suit by accepting parcels of land along the river to act as a buffer zone. As with all legal decisions, someone loses, and unfortunately sometimes the losers are innocent parties. In my experience, the public degrades/pollutes/ruins anything it touches, and the following is an especially poignant view of what the likely effects of the Utah Supreme Court’s decision will be on one landowner:
I?m a fisherman and a private property owner.
For 35 years, I?ve been an avid Utah fly fisherman and bird hunter. Many years ago, I was able to scratch enough money together and purchase a very rural piece in Summit County that has a freestone river running through it. Since then, we have been fixing up the house, the property, the wetlands and restoring the river as we can afford. We grow cattle and vegetables for our own consumption on the land. I have teamed with adjacent landowners to include their stretches of the river to restore and improve as well. All on our dime. The fish, waterfowl, deer, songbird, shorebird, mammal and raptor population has increased each year. We pay a property tax that also increases each year. I am not an elitist, rich newcomer to Utah. I go to work every day and have earned every penny I have.
Whenever I fish or hunt another person?s place, I always ask permission and will always show my appreciation for that privilege with a dinner, a bottle of booze, gift certificate, a turkey, homemade salami, etc. Always. I was raised that it?s the right thing to do. This has forged some long and special relationships for me and my family. Over the last 5 years, corn fields that would once cost a Thanksgiving turkey or a Christmas goose as appreciation now cost us money due to increased demand. In turn, whenever I fish or hunt public lands I pay all necessary permits, fees and licenses. In other words, I always pay my way, and like it or not, those ways may change over time.
Until Friday, the river that runs through my property could not be accessed without permission from the landowner. Since we?ve been here, I don?t think I?ve been asked more than 3 times. At each of those instances, permission was granted.
During this same period, each time we see people on our place or our neighbors that are trespassing, we ask them politely to leave?. maybe 300 instances? 500 ? Often we?ve been threatened, cussed at, ignored and just plain treated like **** by these people breaking the law. A few times the situation got so ugly, we would just walk away, avoid the confrontation and call the sheriff and let him do his job. Other times, they?re sitting on a small deck on our property, refusing to leave. As you can imagine, all these confrontations would rattle my wife, also an avid fly fisher. We never pressed charges.
Again, this same period, we have picked up bags and bags of garbage, repaired twisted, stretched wire fences, found shot for dead suckers, whities tossed on the bank, rounded up horses from a left open gate, seen ducks and geese shot, magpies shot. We?re not on a blue ribbon section so I?ve also witnessed worm fisherman with stringers of large, dead browns way over any possession limit.
This all happened when our Utah waters were NOT open to public access.
I can?t help but conclude from my experiences that the above issues will only continue and increase with this new case law passed by our Supreme Court. I don?t understand how this law can be changed over night without any study, discussion or notification to the public and the Game Management sector prior. I can?t see how our undermanned and under financed Sheriff and Fish and Game Department can come close to properly managing all this new public access property, most of it in remote and out of the way places . This isn?t just about fly fishing. Think of all the other user groups such as boaters, floaters, deer hunters, waterfowl hunters, bait fisherman, raccoon hunters, ice fisherman, etc.
For a movement, consider that the public river access in Montana and other Western States just might work successfully due to the fact it?s in a less populated area than Utah and the Wasatch Front. I have been in those states and used numerous public access points, CRP fields, hunting units, etc of which either I paid the state a fee or the landowners receive compensation. As a Utah landowner, I feel unfairly burdened to provide recreational and habitat access to the public. I think it unfair to demand private landowners to solve what is a government access and management issue.
Generally I see a lessening of respect for others, the land and our prized resources. Please try and understand the enormity of this situation. I fear waters that were once permission only will be fished and shot out at an alarming rate. Quality will diminish. I fear that confrontations between public and landowners will only intensify. We can?t even begin to think of the general hassles and trash that we will be dealing with now. Consider what the ranching, dairy and oil industries will say?.and the Uinta Basin and the Ute Reservation.
Since yesterday, I witnessed people walking our banks, crossing our pastures, stretching our fences by climbing over them. I just got back from the bridge crossing a ? mile from our home. The small pull off area was gagged with 8 trucks/ cars spilling into the state highway. I witnessed beer and pop cans, paper plates, a bag of trash and diapers I know all thrown there since Friday because that?s our trash day and we clean up the highway litter each week.
A little communication from our government would have gone a long way. Had we known of this ruling pushing its way through the courts and the potential outcome, we certainly wouldn?t have privately invested in improving what?s now public habitat. We would have maybe pushed for Sate involvement; a blue ribbon classification and any other measure that might help maintain this fishery.
I understand change and the increase demand on our resources. I have always paid for my access in one way or another, understanding this was required to be a user. What I don?t understand is how our Supreme Court, in one unheard of before Friday ruling, has opened up all rivers in the entire state to unlimited public use and access without landowners being notified nor heard from and not considering the aftermath or the obvious increase in efforts needed to keep up with the preserving, maintaining and managing of these exact lands, our private lands.
Funny how those that preach “diversity” come to streams, buy land and put up barbed wire…
DG, your answer about the state stocking refers to allowing fishing by permission only in order to have your property stocked. It doesn’t really mean public access, as you must still ask for permission, but I guess the owner can’t refuse.
When I made the original post of this thread this summer, I was in CO. and in the high country without regular access to internet so didn’t do a good search.
Just turned up this interesting site and thought to share it.
I believe that in Virginia, the landowner also owns the streambed. Given that VA was one of the original thirteen, I’d say that application there was spotty at best right from the beginning.
Also, wasn’t it just two years ago that TU tried to make it their official position to be neutral on access rights disputes? That set off an uproar in the membership, and I believe they softened that to something like being sympathetic to the access people but to not be directly involved.
Thankfully here in MN and IA most TU projects partner up with the DNR, which only funds projects on water with public access easements, so the question becomes mostly moot. The access laws are also pretty open, so there’s plenty of water to fish.
Court rulings are remarkably inefficient at stopping a pattern of buckshot flying your way. So far the laws of physics overrule the laws of the land. Are those big trout REALLY “to die for”? That situation has been reported by fly fishers in Tennessee.
Ed
damn that must suck, i hope that crappy law doesn’t get enforced in Australia. All streams are crown land which means public access.
I understand both sides of the issue as I own private waterfront property on a beautiful Arkansas lake. From Memorial day to labor day (all summer) I clean up all manner of trash from the lake shore (left by campers and picknickers) soda and beer cans dirty baby diapers candy wrappers and bait containers etc). I can’t understand why people come to a beautiful spot to enjoy and then leave it in such a mess. That just shows bad manners and upbringing. On the other hand I often drift fish through waters with private land on one or either shore. If people would just respect nature and other peoples property, most of the problems would disappear
HCR -
Thanks for providing the link. It is a long discussion and rather tedious, but plowing through it is well worth the effort for anyone interested in how the law works at the federal and state levels when it comes to the boating aspects of using public water flowing through privately owned land.
If you happen to run across the article on fishing that is mentioned in the boating discussion ( linked above ) please post it promptly.
Thanks again.
John