|"The Fish Journal"
Issaquah Press, Published September / December 2010
By Dallas Cross
Do I have a right to fish there? That is a question recently proposed to me by a reader. This was after he was asked to leave the stream by the owner of property next to the upper Raging River. He was wading upstream and fly fishing after gaining access to the stream with permission of an adjacent property owner.
The answer, Vern, is theoretically "yes" and in practicality "no." Your right to fish there is tangled in state history, imbedded in private domain rights, and obscured in public use and access laws for lakes and streams.
The fish and water in the Raging River are public, but in this case the land underneath it is not. Theoretically you could float and fish but in the shallow Raging River it is impossible not to touch the bottom or shore and thereby trespass.
The right for the public to fish has been handed down to us from classical Roman times and through the Magna Charta of 1215. The right of the American public to fish lakes and rivers was of such importance that it was affirmed in the first laws passed by the U.S. Congress.
The key to the right of the public to use lands below lakes and streams is linked to the navigability of the overlying water. In order to freely fish and tread on the bottom, the body of overlying water must be recognized by the state as navigable for purposes of commerce. Consequently the beds are recognized as public domain.
How are Washington fresh waters determined to be navigable and therefore available to the public for recreation? If before statehood in 1889 they were surveyed and designated navigable on a map, they usually remain so now. Both these waters and their beds may be used to recreate within the ordinary high water mark on the shore once legal access has been gained.
After statehood Washington granted or sold its public land with the understanding that this included the land under non-navigable waters. Other states have not been so generous and some now apply simple tests which reserve more of their stream and lake beds as public domain.
For land under water not designated navigable at Washington statehood, it falls to citizens to argue before the courts of the state that overlying waters have historically been used or are now usable for commerce. If the court finds them navigable, their beds are thereby eligible for public use, including recreation.
In Washington the State Department of Natural Resources keeps track of public domains in waterways but does not designate them, the courts do; and the Fish and Wildlife Department is out of the loop.
Bolt judges fishing rights:
Washington State courts have deemed one stream to be navigable because a shingle bolt could be transported down it to supply a shake mill. A shingle bolt is a length of cedar log approximately four and a half-feet long. Some states use the simple Federal navigability criterion of the passage of a canoe or kayak. Idaho uses a general rule - the ability to float a 6-inch diameter log. Kansas, not having logs, must use other measures.
Hook but do not touch:
Another example of a Washington court determination regards a lake in Eastern Washington. The lake was found not to be historically navigable for commercial purposes despite early trappers transporting furs over it. The lands under the public waters of this lake were deemed to be private and owned by the surrounding landlords. Although there is public access to the lake for recreational fishing, it was found that trespassing included walking within the high water mark, dropping an anchor or even having a sinker on a fishing line touch the bottom.
Knowing that you have a right to both fish and walk on the bottom within the ordinary high water mark does not necessarily mean you may access public waters. Here is where the state is getting more helpful. They are providing more public accesses and barrier free sites. These are marked on fishing maps and will grant you legal access to fishable waters, even though they may be surrounded by private property.
Although unmarked as public access sites on maps, legal entry to all waters may be gained from publicly owned property adjacent to lakes and streams. This includes roads, bridges, parks and other government owned land. The government may restrict use of these lands for public interest or safety. Of course, permission of the property owner is always a legal way to access the water.
Often adjacent property owners mistakenly think they own the stream or lake beds of waters that run over public domain and will ask you to leave. Simply moving on and later offering the owner relevant information is the best response. Relying on the Sheriff's deputy, who has been called after a confrontation, is usually unfruitful as they may be unfamiliar with pubic domain laws and usually side with the owner.
In summary, the waters and fish in them in Washington State are yours to fish according to rules laid down by the Fish and Wildlife Department, but to also use the bottoms and banks of these waters you must know whether they are public or private before wading, launching a boat, or even bouncing your worm on the bottom.
"Getting to the Bottom"
As discussed above, folks may recreate in Washington rivers and streams that are officially navigable. This right includes treading on their bottoms but only after access from public property or by permission from the landowner. Recreationists may not use the bottoms of streams and rivers that are not navigable and held in private ownership without landowner permission.
The problem is that navigability was determined by survey before statehood in 1889, drawn on maps as meander lines, and is essentially unchanged. After statehood, Washington sold or granted lands to private interests including the underwater beds. Many such streams have fishing and other recreational opportunities in public water, but with no legal means to enjoy them without owner consent.
Most Western states have a standard to determine if flowing waters are navigable. Washington State does not. To get a stream designated as navigable, and hence available for recreational use, the courts of Washington State must be petitioned. Opposing lobbies from commercial and private land owners plus the legal costs of a court battle have all but prevented any changes from the 1889 determination of navigability.
What have surrounding states done? Recognizing the decision of the U.S. Supreme Court that states must hold in trust all surface waters for the people so that the people will have liberty of fishing therein freed from the obstruction or interferences of private parties; several states have updated their laws and regulations to allow more recreation in public waters.
Idaho law: Any stream which, in its natural state during normal high water, can float cut timber having a diameter in excess of 6 inches or any other commercial or floatable commodity or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes is navigable.
Most of the riparian land surrounding Silver Creek, a classic fly fishing stream in Idaho, was owned in the 1950's by Union Pacific who also owned the Sun Valley Resort. Traditionally, Silver Creek had been open for fishing, but my family could only gain access after restricted parking, difficult crossing of fences and a slog across swampy surrounding private property.
Sun Valley Resort announced it had decided to deny public access to the legendary rainbow trout fly fishing waters and reserve it solely for its clients and guests.
Local fishermen floated a log down the stream to demonstrate navigability and confirm that the waters were indeed public according to Idaho state law. They were still denied access through the property. The only public access was via a county bridge with no downstream egress opportunity.
An appeal by a State Senator to the Idaho Fish and Game Department resulted in a notice being sent to Sun Valley Resort. It stated that the Fish and Game Department was preparing to declare that Silver Creek would be classified as trout spawning refuge from which no fish could be caught.
Faced with loss of a major attraction to guests the resort asked what they could do to prevent the closing of Silver Creek. The Fish and Game Department replied: Allow the public to cross Sun Valley properties, put in entrance stiles approximately every half mile along the road and create public parking areas on the property.
Sun Valley Resort balked but eventually complied. Afterwards my friends and family took delight in using the improved facilities, especially because our elderly companions, including the State Senator, could now easily get to the creek to fish with us.
Silver Creek Ranch property was purchased by The Nature Conservancy in 1966. The now renamed Silver Creek Preserve has been expanded from its original 479 acres to 883 acres. It is open to public fishing after registration at the conservancy headquarters on the creek, and an optional donation.
Silver Creek Preserve from just above the Conservancy headquarters
Oregon Law: The Oregon Supreme Court changed the Public Use Doctrine after statehood. Oregon river rights now state that if the bed of a waterway is privately owned, the waterway may be used for public recreation and other purposes if it meets the state test of "floatability." A waterway is "floatable" if its length, width and depth allows boats-even small boats or canoes-to make successful progress through its waters
Montana Law: With an even broader standard, the more recent 1985 Montana law says that in general, all rivers and streams capable of recreational use may be used by the pubic without regard to the ownership of the land underlying the waters. The caveat is that public access must be obtained legally.
Washington State has been reluctant to respond to the increasing demand for recreational use of its public streams. Legislation is now needed that creates a uniform standard to determine navigability, or that defines the right for pubic use such as our sister states have done. The law should be fashioned and administered such that it allows public recreation in streams and rivers while protecting the rights of adjacent property owners.
State officials now simply point to the absence of meander lines drawn on ancient maps by pioneer surveyors when denying our right to fish or recreate in streams over private lands. This state practice, supported by outdated laws, does not hold in trust the right of its citizens to freely use public waters as promised by U.S. law.
Montana Stream Access Laws