Public rights on rivers in EVERY state

[Bodofish]

gfakkema -

Upon further research I have found that yes, the Samish was used for purposes of commerce, way upstream from the areas we're talking about. I'm going to get more, but this supreme court case from 1904 directly references using the river to float logs for timber, the state has achieved statehood in 1889, it is logical to assume that they were floating logs on it before then.

http://courts.mrsc.org/mc/courts/zwashr ... rt0662.htm" onclick="window.open(this.href);return false;

This means, even by the more stringent state definition of navigability, that the waters and beds of the Samish river posses an easement allowing public access, therefore everything that I have said previously applies to it.

Toxicavenger - a good place to start is the foot notes provided on the poster. Google each case and read it. Links are also provided on the NOR website to many of these sources. As for navigable to the headwaters like I said before, no where does it mention that, it's just implied by the ability of a kayak to float these stretches in the upper most reaches of the rivers, and the practice of using these streams to float logs off the mountainside. The nature of the headwaters of many of our rivers is such that they are navigable all the way up to the glacier by a federal standard. Google kayaking the "Upper Upper Cispus Video" to see how awesome it is to kayak headwaters.

I am a little disappointed, I meant do you have recent court decisions? <SNIP>
State Soveriegnty is recognized by the Federal government to set these laws and only in some cases will the Feds actually step in. I guess that means they really don't want to triffle with nit picky cases, they will leave it to the state to rule and set precedence.
I am not saying this issue nit picky just that the state laws are recognized first and if you have the money you can argue as far as you can go if you like to change it!

I will add that I believe we should all have equal and free access to our waterways and at the same time respect the rights of life liberty and the pursuit also. We may call it a public waterway but it goes through and "over" a lot of private property.
I don't think our right to recreate automatically trumps a landowners rights but I think we should be able to find a resolution beneficial to both sides where both interest are protected .

Also the sidewalk comment is quite laughable actually, (Apples and Oranges)I guess that means I can do all the things that people do on the river outside of someones front yard when I am on the sidewalk.... I can pee on the fence, pitch a tent, drink beer, litter and yell obcenities to name a few, and if you come out and say anything to me I can cry to the police that the owner is harrassing me. I mean it's the same thing Right? lol

Toxic, I wish you all the best in your quest. You are missing one big point. If you aren't seeing any new rulings the courts are leaning pretty heavily on the old cases, courts being rather conservative (in the classical sense) They don't like to change their minds so any new cases being brought forth are probably getting dismissed before they get started. If you're certain that your legal advice is worth more than you paid, I would suggest you push the issue and see where it gets you. Mind you, you're going at it from a real estate contract and I suspect you're Pro Bono is pretty much reading your contract and going by what is written. As I've said before the devil is in the details and the federal statutes are also maritime law which again is going to trump everything where water is concerned. I'd bet a dollar for a donut that at some point a log has been floated down that river for commerce. Unless your Pro Bono is in fact a Maritime Lawyer I'd say you got what you paid for.
Again best of luck, let us know how it goes when you catch those guys peeing in the river.

[natetreat]

Nobody is arguing that we have the right to go piss on some ones front porch. People litter, toss cigarette butts, get drunk and rowdy on the streets everywhere. That's not legal there, and it's not on the river.

In the legal system there is something known as "precedent". It is how our system answers the "big questions" about legal issues involving civil rights. The ability of black people to vote and live as equals is only possible because of this precedent. Your right to keep and bear arms is only possible because of "outdated" court cases. In any event, landowners and everyone involved should be glad for any court case that comes with a judgement that protects personal liberties.

If the folks who owned land along rivers were the only ones who had access to our resources on those rivers, can you imagine how our industry would look? We're talking corporations buying up and bullying landowners into selling, because river front property would be more than simply a pretty view. It would be a commodity with a huge price tag. Private river would become the norm, you'd have to buy access to each stretch of river you wanted to use individually. You'd need a separate fishing license to fish the green from Sooes Creek to Metzler...

Just because you have a right to walk on the side walk, but that doesn't give you the right to do anything that you wouldn't do on the sidewalk. Land owners have the right to call police when they see illegal activity, and those responsible for that activity are responsible for their illegal behavior.

If public opinion dictated public policy, can you imagine what the country would look like? The importance of federalism cannot be overstated. If the federal government didn't have the power of jurisprudence, the Confederated States of America would have been harvesting cotton with slaves well into the 1970's. Women wouldn't be voting, getting equal pay, the Jim Crow laws would still be dictating policy, gay people would be ostracized like lepers and you wouldn't be fishing anywhere.

That's the slippery slope you tread with the ideas that minimize or discount the importance of precedent. I'm not simply being hyperbolic. These are the concepts that our navigability doctrine is based on. I think Issac Newton said it best -

"If I have seen further it is by standing on the shoulders of giants."

The only way any of of what you say about the limits of the right of the public to access and use river banks will be true is if the supreme court of the United States over rules centuries of established precedent, or the state ratify a constitutional amendment redifing navigable rivers and the right of the public to access them.

Is it a shame that we have those folks that abuse their rights? Absolutely. Is it understandable why landowners would perceive river users as a nuisance? Absolutely. That's why responsible anglers bring garbage bags, it's why we organized a trash pick up last year and will be doing it again this year. It's why we call enforcement on poachers. It's why we have these website where we educate uninformed anglers on the rules and regulations responsible for the conservation of our natural resources.

That being said, the law is crystal clear. It's not hard to understand. We don't need any more court decisions to address the issue. We simply need to educate everyone about the law.

1. A river is navigable if it can float a kayak down it.
2. a navigable river is held in trust for the public, no one can deny access to it, whether is be walking, wading, floating, anchoring, fishing, photographing or any other use that the public can envision.
3. No matter what a landowner's deed says about the bottom of the river, the public possesses an easement to use that river to the mark of ordinary high water. The landowner cannot limit this right in any way. This includes wading on the banks of the river, walking picnicking to the mark of ordinary high water. The right to portage around obstacles above the mark of ordinary high water in the least invasive way possible.

These principles are necessary to afford equal access to our natural resources to all, not simply to a privileged few. This is the the situation that a landowner must accept when he purchases waterfront property. If you don't like it, don't buy waterfront property. Simple as that.

[natetreat]

I can't emphasize enough, and can't argue with your anymore on the subject if you refuse to understand it. I have given you recent court cases already. Federal law trumps state law on this issue, and federal law is established by precedent. Even the decisions in our state favor public access. If you can't accept this, than I can't help you.

[4n6fisher]

Well said Nate. These laws are "old and antiquated" because they have many years of legal precedence and have beaten many arguments against them it does not make them any less valid, probably the opposite.

I wish you had stuck around a few more minutes before heading up river, being better informed I would have called the cops on that guy after he said he would get his gun and start shooting in the river.
If I ever venture down to that part of the river again I will be sure to have my cell phone handy to record his threats.

This guy probably knows he has no legal rights, but if he screams loud enough and yells enough obscenities most people will just leave as many of us enjoy the peaceful rivers as much as fishing. It is also hard to argue with a guy threatening you with a gun when he is standing 15' up on the bank and you have no cover. If he does anything like this to anyone else hopefully he will at least get a good lecture from the cops if not thrown in jail.

[natetreat]

That's getting back to the point of this thread. I'm in the process of putting together a letter to distribute to law enforcement documenting the incidents that have arisen at this place, and the laws that ensure our access to it. I want to distribute it to law enforcement and prosecutors in the jurisdiction of Skagit county. I'd like to do this for all the areas where anglers have experienced harassment on navigable rivers. If anyone has a story or experience, if you could document it in a statement that I could attach to this information it would be very helpful.

Until this is settled, I discourage anyone from fishing these spots. I don't want anyone to get hurt over it. The danger is real, and the guy in question has an anger problem that could potentially be very dangerous. Until we get the deputies to go out there and explain to him the law it is safer to stay away, even though we have the right to be there.

[machewbacca]

You say the courts have held time and time again, but do you have any recent cases/decisions? You keep bringing up Federal Law but law enforcement in this state follows State Law hence I-502. Unless you plan on calling the Feds the law is against your side.

No recent cases needed because precedent has already been established and validated. To challenge this law would take a lot of time and money (to lawyers).

Comparing I502 to this is way more apples to oranges than the bill of rights comparison... which in my opinion, was on point.

For Toxic, while I get your point, you cannot infringe on this right... if you really want to understand how much legalities can get in the way of your home owning experience, try living in an HOA....

[machewbacca]

Also the sidewalk comment is quite laughable actually, (Apples and Oranges)I guess that means I can do all the things that people do on the river outside of someones front yard when I am on the sidewalk.... I can pee on the fence, pitch a tent, drink beer, litter and yell obcenities to name a few, and if you come out and say anything to me I can cry to the police that the owner is harrassing me. I mean it's the same thing Right? lol

You're within your rights to call the police, however I think the point of this thread is that you can't force them out on your terms... calling the police is well within your rights, if that type of activity was taking place outside your home on a sidewalk or a river. Going out there with a gun and telling them to get off your property because they're trespassing is not.

[machewbacca]

Nate you aren't transporting timber or mining, those laws, if true, are beyond out dated and any law enforcement officer is likely to take to the landowners side. And rightfully so I might add.

The point is that he could, and that is one of the conditions for establishing which waterways are protected...

Maybe they aren't outdated, maybe they have just withstood the test of time...

[Mike Carey]

Never fails, I'm out of town fishing and another thread degrades to name calling. Thread locked, one member banned. Second hand name-calling not tolerated.