"Navigable waters" access through private land

[FreeRange]

An area I used to hunt when I lived nearby has now had the road access shut down by the owner of a 20,000+ acre ranch that portions of the road travel through. I haven't been around there for a few years and am wanting to go back. Mostly out of spite for the people who gated the road I'm wondering if such a tactic might work and specifically if anyone knows of any test cases where something similar has been done.

At a number of points you could access landlocked public land by going up a seasonal creekbed from a legal road access point. I don't have any illusions that just because the map says "creek" that creekbed would legally be considered a navigable waterway by default.

If I could prove it is a navigable water by floating it in a packraft and documenting it would that suffice? I realize this may land me with a trespassing ticket but if there is a precedent of other cases I would be very curious to hear. My hope would be to hike back up those same streambeds in the dry season to access the public land. Pulling off the packraft would involve an arduous hike around from existing legal access points to make it completely legal, but I'd be willing to do that if the end result would be legal access.

This is in California and from my initial research our laws here are generally favorable to stream access, I know some other states are much more restrictive in their interpretation of such laws.

 

[tipsntails7]

An area I used to hunt when I lived nearby has now had the road access shut down by the owner of a 20,000+ acre ranch that portions of the road travel through. I haven't been around there for a few years and am wanting to go back. Mostly out of spite for the people who gated the road I'm wondering if such a tactic might work and specifically if anyone knows of any test cases where something similar has been done.

At a number of points you could access landlocked public land by going up a seasonal creekbed from a legal road access point. I don't have any illusions that just because the map says "creek" that creekbed would legally be considered a navigable waterway by default.

If I could prove it is a navigable water by floating it in a packraft and documenting it would that suffice? I realize this may land me with a trespassing ticket but if there is a precedent of other cases I would be very curious to hear. My hope would be to hike back up those same streambeds in the dry season to access the public land. Pulling off the packraft would involve an arduous hike around from existing legal access points to make it completely legal, but I'd be willing to do that if the end result would be legal access.

This is in California and from my initial research our laws here are generally favorable to stream access, I know some other states are much more restrictive in their interpretation of such laws.

best bet would be to get in touch with your local warden and run it by him as that who is going to be getting these phone calls. If it doesn't hold water year round I am not sure it qualifies as navigable the entire year. but again asking the guy who may be doling out the tickets would be the best advice.

i have heard of the opposite, where a person has used a boat to get to areas during a flood, and as long as they or their boat didn't touch land it was not considered trespassing, but again, this could just be bar room talk.

 

[FreeRange]

I hear ya. I know the mindset of "that guy didn't get caught so it's legal" doesn't hold water. I put a call in to the warden last week but haven't heard back, sadly typical in this state as the wardens are spread pretty thin.

 

[elkguide]

Don't know about Cali but around here "navigable waters" means waters which are boatable from natural ponds or lakes.

You definitely need to get that clarified before you find out that you are trespassing and if you are trespassing with a weapon, you could lose your hunting/fishing/trapping rights as part of your fine and penalty.

 

[Russp17]

An area I used to hunt when I lived nearby has now had the road access shut down by the owner of a 20,000+ acre ranch that portions of the road travel through. I haven't been around there for a few years and am wanting to go back. Mostly out of spite for the people who gated the road I'm wondering if such a tactic might work and specifically if anyone knows of any test cases where something similar has been done.

At a number of points you could access landlocked public land by going up a seasonal creekbed from a legal road access point. I don't have any illusions that just because the map says "creek" that creekbed would legally be considered a navigable waterway by default.

If I could prove it is a navigable water by floating it in a packraft and documenting it would that suffice? I realize this may land me with a trespassing ticket but if there is a precedent of other cases I would be very curious to hear. My hope would be to hike back up those same streambeds in the dry season to access the public land. Pulling off the packraft would involve an arduous hike around from existing legal access points to make it completely legal, but I'd be willing to do that if the end result would be legal access.

This is in California and from my initial research our laws here are generally favorable to stream access, I know some other states are much more restrictive in their interpretation of such laws.

Honestly I wouldn't call a warden I would call your department of natural resource or who ever handles easements/right of ways etc. for the state. They will have a much better level of understanding of the rules etc for right of ways and public land.

 

[flyinsquirel]

Check the State Lands commission website, they are the holder of the underlying fee for all designated water ways. The Army Corps also has jurisdiction of all water ways within the US, so they may be a good source as well.

Your suggested method of determining navigability would not.....er.....hold water so to say. I would definitely not do that myself.

Edit: there are a ton of designated waterways within CA that you could not get a float tube down today.

 

[Northernpiker]

In Wisconsin navigable means you can float it about once a year, but creek beds are privately owned. Lake beds are owned by the state.

 

[Flashmo]

Find out your state's SPECIFIC trespass laws. If the landowner owns the stream bed but the public owns the water, your scenario would not work. If the state owns the stream bed to the high water mark, your plan would work. Both scenarios are common in the west.

 

[airlocksniffer]

Yep state specific. In MT anything below the high water mark is legal access. Wealthy landowners don't like it when the great unwashed recreate on "their" river.

 

[530Chukar]

I did some research on California stream access laws recently and was directed to some articles on the California water Board website. Can't seem to find what I looked at a few weeks ago. From what I read, a navigable waterway in California is any waterway that was previously used for commerce (logging, travel of persons.) I thinks a seasonal creek is going to be a bit of a stretch.

 

[GibsonKuenzi]

Take a look at the tax lot maps, you should be able to tell where the property line is and if there is a Right of way or easement for the creek/stream

 

[maninthemaze]

This picture came straight out of Wyoming Public Land Access guide that Wyoming Fish and Game sent me with their regulations book. It was published by the U.S. Department of the Interior for the BLM. I thought about trying to access public land this way as well. Good luck! Hope this helps

Sent from my SCH-I545 using Tapatalk

 

[ben h]

This issue is being heard at the Utah supreme court right now. Utah's law currently mirrors that of WY posted above and that is being challenged. I'm personally in favor of a law like MT, but I don't own river front property either.

 

[Brendan]

Remember that the law can be different for every state. I would contact your local BHA chapter and see if they have any insight on California specifically.

 

[mtwarden]

I'm pretty sure Montana is one of the few states that had the foresight to craft the "Stream Access" law- it's very specific and doesn't apply to all waters and all recreation, but is probably the best law on the books US wide.

The US defines and lists all navigable waters- you can easily look this up. It's possible states could add additional waters.

In Montana, ephemeral streams do not fall under our Stream Access law, wether they can floated in some seasons or not. The scenario you describe would certainly land you in hot water here.

Definitely call your local warden or local f&g office; if they can't answer your question (unlikely imo) they will be able to steer you to someone who can.

 

[ChrisS]

Different for every state and and sometimes even the properties themselves. Legal battles over the NY Salmon River have been ongoing for decades. The largest landowner fought a court battle in the late 80s where he claimed he had legal ownership of the streambed and all the fish who swam in the river based on the original deed his great-great-great-great (etc)-grandfather received from King George. What that lead to (in addition to it costing $75/day to fish that stretch of the river) is finding out there isn't any consistency and that some properties in NY have boundaries at the highwater mark and others are in the middle of the stream bed.

There's a new court case making its way through the NY supreme court regarding paddling canoes through a winding stream that crosses through private property and connects two large tracts of public. Before, paddlers would have to exit the stream and carry 0.75 miles to skirt around the private property.

 

[twall13]

Steven Rinella and the Meateater crew did a great podcast on this issue a couple months ago. As others have mentioned it varies by state but the podcast gives a good history and explains what navigable waters means for most of the US. It may not answer your specific question but is still worth the listen.

 

[KJH]

I'd check out the National Organization of Rivers website... I've used their information several times (varying degrees of success).

Either way, they have good stuff. Highly recommend you take a look. Home - National Organization for Rivers

 

[FreeRange]

The below info seems to be pretty clear that a waterway is navigable if you can float it for "most of the year" but to me that only speaks to the legal right to float it. In california I know for a fact of a number of larger "navigable waterways" that are dry 75% of the year and the river bed is considered public land and gets torn up by dirt bikes and ATV's. I'll keep digging, thanks for all the good suggestions I'm looking into those too.

From this link: American Whitewater - access:ca

"California courts have adopted a state test for determining which streams are subject to a public right of navigation. The waters subject to this right or “easement” include those waters that are navigable in fact at the present time by any watercraft, including small recreational or pleasure craft propelled by motor or by oar, such as canoes, rafts or kayaks. A number of cases have applied this test.[SUP]2)[/SUP] California has rejected the common law rule that navigability is determined by whether the tide ebbs and flows.[SUP]3)[/SUP]To be considered navigable, the stream must be suitable for public use, which is determined on a case-by-case basis.[SUP]4)[/SUP] The stream need not be navigable in fact for the entire year. A stream navigable in fact for most of the year should suffice.[SUP]5)[/SUP]

 

[FreeRange]

Another interesting finding. I feel that California is pretty liberal in their interpretation of these rules. One of the waterways I'm looking to utilize has water in it 9 months a year and would be easily floatable for probably 3 months, not storm dependent, so not just navigable in times of flood. I think this one more than any other would be pretty undeniably legal to use. The below reference to "even at times of low water" and "not confined to the waters alone" make it pretty clear to me.

State v.Superior Court (Lyon) (1981) 29 Cal.3d 210, 226-233 [625 P.2d 239, 172 Cal.Rptr. 696], cert. denied, 454 U.S. 865). The public clearly has the right touse the bed of a waterway navigable under State standards to its high mark even at times of low water. The permissible range of public uses is broaderthan navigation, commerce, and fishing from the water and includes the right to hunt, bathe or swim from the shore below the mean high water mark.The public’s rights are not confined to the waters alone. Lyon, at 229-230.