The Northern California Fly Fishing Board

Below is a post I put on this board about a year ago. It's long as hell, but I think it pretty well covers the whole area of stream rights in California.

"In California there is no one statute that lays out the law of public access rights versus private property rights. You must look at the State Constitution, numerous court decisions, and a mish mash of state and local ordinances which are scattered all over the place. To make matters worse, public access rights usually are determined by the courts on a case by case basis for each fishery involved – and there is no way of telling whether the Court will agree with you if get arrested for trespassing. You also might need to examine the public title records to determine what rights a particular private landowner actually has. It’s a mess.

Below are points I gathered from my research:

1. Under the Public Trust Doctrine, as stated in the California Constitution and interpreted by the courts, the State owns the land underneath “navigable” water and holds it in trust for public recreational use and other appropriate use.

2. Court decisions hold that water is “Navigable”, as applied to non-tidal water like lakes and mountain streams, if the water can be navigated by small recreational or pleasure boats (kayaks, row boats, electric prams, rafts).

3. If you can legally gain access to “navigable” water without trespassing over private property, you have a constitutional right to wade and fish the river or lake, in addition to floating it.

4. You can wade and walk the banks of legally accessed “navigable” water up to the high water mark. The State has a public easement to the high water mark for non-tidal waters and owns the land under tidal water up to the high water mark. (Sometimes “high water mark” is a technical legal question. Usually, “high water mark” refers to the normal high water mark, not some unusual flood situation. For rivers, high water mark usually means “the line at which permanent vegetation begins”. For lakes, it is the normal high water mark, not the high water mark from unusual flooding.)

5. Tidal waters or waters affected by tidal influence are automatically subject to the public trust doctrine, whether they are navigable in fact or not. Streams which impact any navigable waters also are subject to the public trust doctrine whether these streams are navigable in fact or not. In addition, the legislature lists several rivers and waters which are declared to be “navigable” as a matter of law (e.g., Lower Sacramento River). Other rivers and lakes are held to be navigable by court decision (e.g., Fall River, American River, parts of the Russian River).

6. If a private owner obstructs the lawful recreational use of navigable water, he/she is legally liable for having created a nuisance. It is also a crime.

7. By court decision, you may access navigable rivers from state bridge crossings, on the basis that such use of the State’s highway easement is not unreasonable. However, it is possible in any specific situation that State or County regulations, or the Easement grant, might prohibit such use. Generally, unless the State says otherwise, you do not automatically have a right of access to a river from the State’s highway easement from a road which runs along side of a river on private property; it is only when the highway crosses the river (i.e., a bridge) that there is a right of access from the state’s highway easement for repairs.

8. You also can access navigable rivers through public easements provided for that purpose, or by permission of the owner of private land abutting the water. Municipalities must provide unobstructed access to navigable waters in or adjacent to its boundaries, and neither the city nor private landowners can interfere with public access.

9. There are Fish and Game Code provisions which require the owner of a dam to accord to the public for the purpose of fishing, the right of access to the waters impounded by the dam during the fishing season of the stream or river feeding the dam. This right is subject to regulations of the Fish and Game Commission.

10. As to non-navigable water on private land, the public generally does not have a right to access these waters. The Public Trust Doctrine does not apply to non-navigable water (i.e., water too small or shallow for a boat), except where a) the non-navigable water affects tide water, such as tributary streams which pour into a river which is affected by tides, or b) where the non-navigable water impacts navigable water. (You still cannot trespass on private land to access such water.)

11. The private landowner owns to the midpoint of a non-navigable stream, or he/she can own the land under an entire non-navigable lake or river that is situated entirely on his/her property.

12. By logical conclusion, if the landower on the East side of a non-navigable river objects to you fishing it, but the West side land owner says it is O.K. to fish, then you can fish and wade the river from the West side up to the mid-point of river.

13. It is possible that the public may have a right to fish non-navigable waters on private land, if the landowner’s deed reserves a public access, or if the public has obtained prescriptive fishing rights due to long time custom and usage. You would need to do some homework, here, like examining the public title records to see if there are any reserved public fishing rights.

It would seem, then, that the public has the right to fish most waters in this state, as a general proposition. The problem with all of this is that you cannot be absolutely sure of the private landowner’s rights, even where the water is navigable or appears to be navigable. The question of what is "navigable” is decided by the courts on a case by case basis, depending on the needs of the particular water resource involved. So unless there is a court case or legislative enactment declaring the water “navigable”, you can never know whether the court will agree with your determination of “navigable” in the event that you are arrested for trespassing. The water may appear to the eye to be navigable, but a court might say no, for example, because fishing access may harm the habitat or may be unsafe. Finally, there may be valid State, County, or local regulations which restrict or prevent fishing, and so you would need to know these laws as well.

The legislature needs to enact a comprehensive statute defining public recreation rights versus private property rights. I believe it is always best to respect the private landowner’s rights unless you are absolutely sure of your ground –- or water.

Hope somebody finds this of some use.

-- Rich P.