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03-10-2010, 11:32 AM #1
Question in regards to river rights
I know if a river in on private property you can float the river but not touch the bottom, at least in Colorado. If you touch the bottom, you can get nabbed for trespassing.
So, if there is ice on the river, can you walk along it on the ice to open water areas and not get nabbed for trespassing?
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03-10-2010, 02:37 PM #2
Good question. I don't know for sure but I'd test it out or call the local governing office.
BTW - it is sort of a myth that you can't touch bottom on private waters in CO and WY. If there is something deemed dangerous to you or your craft you can. In those cases, although the line is fuzzy, the floater/angler also has the right to use a landowners banks to get around a hazard safely. Hazards are defined loosely and in favor of the river user. Unfortuately, that doesn't do much for stopping and fishing but if you find yourself in the situation....
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03-11-2010, 09:40 AM #3
I need to look into this as well, for Wyoming. I am starting to explore a new (new to me) public access on the Little Laramie River, but it is bookended by private land. I want to know if, as long as I am wading IN the river, can I enter their land?
Do you know any more details about Wyoming, Schwerty?"Have fun, get a flyrod, and give the worm dunkers the finger when you start double hauling." ~Lumpy
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03-11-2010, 10:12 AM #4
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03-11-2010, 11:45 AM #5
Seems a lot of states should follow Montana's lead.
As a snowboarder... i fucking hate snowboarders in general. -advres
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03-11-2010, 01:29 PM #6
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03-11-2010, 02:03 PM #7
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03-11-2010, 02:09 PM #8
Buddy of mine told me about a guy he knew who would boat in Colorado with a pair of small bolt cutters in his vest in case he came across one of those sweet fences across the river. (Personally, I like to blame Texans for the "let's fence in the river" mentality)
Kudos to Montana for properly managing its waterways. Although a few million additional thirsty souls might tip the balance up there.As a snowboarder... i fucking hate snowboarders in general. -advres
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03-11-2010, 02:24 PM #9
No one's mentioned it yet, so I will. The generalized term for this is Riparian Rights, do some searching. They vary by state, and in the older, east coast states are long established with lots of court decisions to back them up..
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03-11-2010, 02:47 PM #10
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03-11-2010, 04:27 PM #11
ok, so when I fish the Little Laramie and it is only about 1.5 to 2 feet deep, and I sit on my Walmart floaty pool toy, I can fish the private sections?
"Have fun, get a flyrod, and give the worm dunkers the finger when you start double hauling." ~Lumpy
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03-11-2010, 04:38 PM #12
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03-11-2010, 04:40 PM #13
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03-11-2010, 10:06 PM #14Not in Wyoming any more
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Every state is slightly different based on the rule crafted by the respective state's supreme court. All states guarantee the public the right to use navigable waters for recreational purposes, and most states retain ownership of navigable streambeds for the public's benefit such that wade fishing in navigable streams is possible even if both stream banks are privately owned.
As far as I know, Wyoming is the least protective of public rights. Montana is one of the most protective.
Wyoming allows private individuals to own the beds beneath public waters--which means that you may only touch the streambed if doing so is necessary for your use of the water for recreational purposes. For example, in Wyoming, you may drag your boat across shallow riffles, move logs or other obstructions that make floating/recreating impossible, and you may even get out of the river onto the bank in unique instances where portages are required. However, you may not drop anchor just because you think it will make the fishing better if dropping anchor is not necessary.
Of course, if you test the limits--wherever you are--you may end up at the mercy of the state supreme court, as happened recently in Utah.
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03-12-2010, 06:50 AM #15
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03-12-2010, 08:21 AM #16
"Navigability" is a key definition in this matter because if a stream isn't navigable then you cannot touch the bottom period. In WY, if a stream is navigable, then the incidental touching of gravel bars and other obstacles is deemed part of navigating the waterway and it is legal. Anchoring or wading to fish is not necessary to navigating the stream so that touching is a trespass. I do not know what the WY or CO definitions of navigable consist of as I live in ID. Most generous river laws in the nation plus 75% of the land in the state is public anyway.
In Idaho law. the minimal standard of navigability is determined by whether a stream can move buckrail sized fence posts downstream during high water (the "Silver Creek test" established by the Idaho Supreme Court). If it can, then the stream is navigable for a commercial purpose, logging, and thus the land below the high water mark belongs to the state and is open to public access at any road easement. In ID and MT, a navigable stream is essentially a public road, whether on foot or floating, and there is a concurrent right of reasonable, minimal trespass onto private property to bypass manmade obstacles blocking the stream.Last edited by neckdeep; 03-12-2010 at 09:06 AM.
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03-12-2010, 08:36 AM #17
On a side note, they just opened up some new public access on the North Platte River below Gray Reef Dam.
"Have fun, get a flyrod, and give the worm dunkers the finger when you start double hauling." ~Lumpy
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03-12-2010, 09:46 AM #18
^great info neckdeep, thank you.
As a snowboarder... i fucking hate snowboarders in general. -advres
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03-12-2010, 09:50 AM #19
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03-12-2010, 09:28 PM #20Not in Wyoming any more
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True, although I cannot imagine a single scenario where an individual would want to fish or otherwise recreate on a waterbody that did not meet any given state's navigability test. Navigability determines whether or not there are public rights to the water, but the state's supreme court interpretation of the public trust determines what rights private landowners may have to navigable waters (and, in turn, what non-landowners may or may not do on navigable waters bordered/surrounded by private land).
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03-16-2010, 10:32 AM #21
Well, imagine this scenario. In ID and MT, "navigable" carries with it the concommitant year-round right to walk the waterway below the high water mark. Last year, I caught 125 trout/6hrs in one mile of creek that, only at peak runoff, can float a steep creek kayak or the "Silver Creek test" fence posts. This feat was nearly repeated twice (but with two anglers) on another creek of similar dimensions. These creeks barely meet the ID test during peak flows and, of course, I wait till that has subsided. Given their rapids and log jams, they might not actually be navigable, though I know some folks who have kayaked both streams. If this was WY or CO, I'd be fenced/posted out of seasonal gems like these.
Last edited by neckdeep; 03-17-2010 at 08:21 AM.
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03-19-2010, 07:48 PM #22Not in Wyoming any more
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Sorry I'm so slow to get back on this--and I warn that we might entering a theoretical discussion. I'd argue that your scenario should be navigable in any state. Navigability--and the accompanying public trust obligations of the state--were established at the U.S. Supreme Court (which is superior to any state court). Although the federal is supreme to the states, some states (WY) actively try to narrow the scope of the public trust. Other states (CA/MT) retain the original broad interpretation of navigability and the public trust. Yet other states (UT) continue to struggle with these questions. Because the U.S. Supreme Court is supreme, states can expand public rights but arguably cannot restrict them. I would argue that any state restricting the definition of navigability or limiting the states' obligations under the public trust beyond the rules established at the U.S. Supreme Court is in violation of the U.S. Constitution and federal common law. Of course, because the U.S. Supreme Court currently sucks on public rights issues, I would recommend suffering through a given state's shitty rule and not risk an appeal beyond state court.
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