I believe this subject, which developed in another thread, merits its own topic on this board. The issue is whether private landowners should be allowed to block access to the shores of rivers and lakes. Below is my opinion - I am interested in what others think.

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I have become increasingly dismayed at the difficulty of reaching the shores of Washington State rivers and lakes. The story is the same over and over - on the Sauk, the Stilly, the Sky, the Green, the Skagit. Private landowners, stretched one next to the other, systematically block what should be my right to access the water based on their right to own land. No trespassing signs and barbed wire are standard – for the more fashionable farmers and weekend residents, shotguns and attack dogs save the day. Now, that’s what I call civilized!

I believe that landowners should be required to make the shores of rivers and lakes accessible to the responsible public. I understand that these landowners have problems with trespassers littering their land and damaging their property. Unfortunately, it is the respectful anglers who are deterred by the fences and no trespassing signs. People with malicious intent and lack of manners won’t be deterred. The result: trespassers fish where they want – law abiding citizens are corralled into a few crowded places where they can reach the water legally.

Although it's sometimes hard to tell, we no longer live in Wild West. The rules and attitudes that reigned 100 years ago are no longer appropriate. We should look to other rich, developed countries for possible solutions.

For example, in Switzerland, where most of the non-alpine land has been developed, private property owners cannot block public access to the shores of rivers and lakes. These areas are considered to be public resources for all to enjoy.

In theory, it is possible to walk the entire length of the populated shores of Lake Geneva on the Swiss side. True, some large private estates outside Geneva do not provide this access, but they do ensure a way around. I often used to walk, bike and swim along the 20 mile boardwalk that stretches from Lausanne to Montreux . This is something wonderful for the whole world to enjoy, including gun-toting farmers from Washington and Bill Gates, whose residence there provides public shore access just like everybody else fortunate enough to own property on this enormous and beautiful alpine lake.

Some might label me as an idealist. Well, I don't think that is the case. As a Seattle native having lived and worked in Asia, Europe and North America for the past 12 years, I have an inkling of what can and cannot be achieved realistically. Certainly, we are sufficiently wealthy, populous and educated here to understand that the wholesale privatization of river and lake shores cannot continue without depriving most people from enjoying some of our most precious natural resources. Where will we teach our children to fish and respect nature? This will become something available only to the rich – left unchecked, the consequences will affect us all.

Using another Swiss example, farmers there are required to provide access to hikers over their fields in the mountains. Thank goodness for that - humanity would be worse off with the Swiss Alps were blocked off for public enjoyment by private landowners and their lazily grazing cows. Yet, in Washington, a similarly rich area, this is exactly what is happening. Private landowners are allowed, even encouraged, to make our natural treasures inaccessible.

Some hard-working people on this board have argued on other threads that walking over farmland to reach the water’s edge is equivalent to walking across somebody’s fenced backyard in the suburbs. That is simply not the case – my backyard does not block access to what should be a publicly accessible natural resource. Others have complained about their cows being shot by trespassers. For this I am sorry, but this problem is not unique or isolated to rural areas. Dogs in the suburbs are regularly shot or poisoned. Worse yet, children and innocent people are shot on a daily basis in our cities.

So, if you are a landowner, I ask you to consider taking the first step by providing controlled (even paid) access to the rivers and lakes that border your land. I am certain that appreciative and responsible anglers will help keep your property clean and protect it from vandals.

To wrap it up and at the sake of repeating myself - private landowners who block access to lake and river shores (whether they like it or not) are preventing the general public from demonstrating that they can enjoy responsibly something that they should have the right to enjoy responsibly. I believe this is wrong and I would be delighted to see a change in the attitude of all involved. Mutual respect and courtesy would go a long way to solving the problem, but I won’t hold my breath.

Gerard W.
Seattle, WA

I understand where you are comming from but my Aunt has land in eastern wash. She use to let people have a right a way to get to the river and always cleaning up after them. They work hard for there land and should not be the ones to clean it up. Three years ago she had someone go to the river and fell on her land busting there leg. Do you know who got stuck with the bill. Yes it was her. The say she had farm equip where people could get hurt. Come on it is her land. If the State could come up with a way of covering the land owner then fine but till then if you want land go buy it.

sorry to repeat myself from the other thread but hear goes anyway

There are public lands set aside for use by all individuals. the federal government has set aside the National Parks, the state has set aside the State Parks. the forest service also has set aside public land in some of the national forests. this is the land the the public can access and enjoy. However, We are guaranteed in the amendments to the constitution the right to own our own land for our own private use.

http://encarta.msn.com/find/concise.asp?mod=1&ti=04491000&page=7


Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Comment: The Fifth Amendment provides five important protections against arbitrary government actions. First, no one may be prosecuted for a federal crime without first being indicted (formally accused) by a grand jury. Second, a criminal suspect may be prosecuted only once for each crime. If a jury acquits the accused person, there can be no retrial. Third, a person cannot be forced to testify against himself or herself in any criminal case. This is the right against self-incrimination. Fourth, the due process Clause bars the government from arbitrarily depriving anyone of life, liberty, or property. Fifth, the government may not take anyone's private property unless it is necessary for a public purpose and unless the government pays a fair price for it.

as private property owners we are guaranteed not to have to open it up for public use unless the government is willing to pay a fair price for it. I am glad that I live in the United State and am able to own my own piece of property. I am also thankful for the land owners that allow public access for fishing and hunting even though they don't have to.



If I was to open my property up to the public, I would definitely charge admission to help pay the property taxes


The access that you are looking for is there in most lakes and rivers. It is at the public boat launches and public access areas. property owners paid for the land that they own as well as the taxes for that property and have the right to limit access.

I understand that liability is a problem.

On the other hand, you are telling me that if I want access to the shore of a river that I should go buy land on it - that's ridiculous. I don't want to have to stand on the same 100 ft. stretch of river every time I go fishing.

I think that the shore of rivers and lakes should not be privatized and blocked off in a developed and civilized society... access should be ensured to the responsible public.

Gerard W.
Seattle, WA

Bremalo,

Perhaps you are a lawyer and can, therefore, clarify something for me. I was under the impression that the water's edge of a river is public property. Am I wrong that standing in a foot of water off the edge of your private land is not trespassing?

If this is so, then it there is a contradiction in the law - the river is public, but private landowners are blocking my access to it.

Also, you cite the Constitution. Perhaps you can remind me whether the pursuit of happiness (which I consider fishing to be) is enshrined in our Consitution or in the Declaration of Independence.

Gerard W.
Seattle, WA

I am by no means a lawyer!!! but I am a waterfront land owner. I have no problem with people fishing from the beach in front of our house. I do however have a problem with people parking in my driveway and using my land as a trail to get to the beach. I do own the shellfish rights to the property and will stop anyone from gathering them. except during red tide

The local government I believe, is the one that has blocked the access by not allowing an easement between each parcel of land for access to the shoreline. the private property owners are just exercising there right of owning the land.

I sounds like you have a great deal of respect for the property of others and if you were to come and ask for permission to access the beach on my land I would without hesitation give you access.

G-Spot:

This should help, http://www.adventuresports.com/river/nors/states/wa-law.htm

I pulled this link off the board a while back, it well help answer some of your access questions when it comes to Lakes and Rivers. Doesn't discuss access to saltwater beaches though.

I have researched the problems with access to our inner Puget Sound beaches and have concluded that as long as you use a public access point to reach the beach and only walk or fish on sand/water below the ordinary high water mark (OHWM) or driftwood line, your on public property.

Beach property owners will strongly disagree. Who's right?, niether party, because to my knowledge there has never been a trespass case taken to the Washington State Shorelines Hearings Board that has issued a decision on the access issue.

Some of the worst anti-fishermen property owners are the one's at Bush Pt. out on Whidbey Is. Last summer I got into it with a lady who lived just south of the public access. I was coho fishing with my boots in the water and at least 20 feet waterward of the OHWM. She came out and told me to get off her beach and I politely said "no". I said that lands waterward of the OHWM were held in trust by the State of Washington for the enjoyement and use of its citizens, and furthermore, asked her to show me where in the language on her property title that says that the use of tidelands waterward the OHWM belonged exclusively to her family. This serious of statements left her flabergasted, and she continued to asked me to leave. I just turned a deaf ear on her and continued to fish and expressed my rights to be there. Fishing was slow so I left about a half hour later to try for another spot, and while driving back up the hill I passed a speeding Island Co. Sherriff's car, it didn't take me long to figure out who called the sherriff. If that sherriff would of wrote me a ticket, I would of appealled it all the way to the state shorelines board.

Anyway, I'm not encouraging everyone to get in the face of beach home owners, god knows I'm sure there are some real fishing slobs that they must contend with, but the beach homeowners are not always right on the access issue.

Bobber Down

Keep your hooks sharp!

I don't have much input on this subject,but I know a spot on the nooch which has been in this guys family for several generations,he has it posted and owns both sides of the river and the river too.I know what you're thinking "how can he own the river...he does just asked the people he has escorted off by the Sheriff,including those anchored in "His Drift" .
If I owned property on a River I would not allow pubic access either....people just don't respect other people's property.my.02....Os

The "Public Trust Doctrine" essentially states that the State of Washinton holds title to its waterways in trust for the benefit of the people.

While there are some instances of riverbeds being sold, the vast majority of rivers and riverbeds are public property, at least the areas below the normal high water mark.

This applies to river and to beaches. As long as you hit the beach or river at a legal access, via permission or via public access, you should be able to walk up and down the river all you want, so long as you stay on the river bank near the water.

Adjacent landowners may own the rights to the shellfish in the tidelands adjacent to their property, and they may have water rights in the river adjacent to their property.

You are not trespassing if you are in the river. I've actually heard landowners claim that you can boat the river, but if your anchor or feet touch the river bottom then you are trespassing. Pure hogwash.

The Public Trust Doctrine should be an easily researched topic. I just did a quick search of "Public Trust Doctrine Washington" on google.com and came up with over 59,000 responses. I'm sure a few of them would be worthwhile. There are also books and treatises available, but you'd probably have to go to a county law library to find them.

I think that there are people at DNR or DFW who could tell you if a certain river or beach has been sold en toto to the landowner, if you want specifics about a certain spot.

All that said, it is always wise to keep the land as clean as possible to avoid conflicts with landowners, or other fishermen who would prefer to see you pick up your trash.

If you own waterfront or riverfront property, I'd recommend finding out how far your property goes.

Fish on...

Todd.

Here is a quote from the case regarding jet skis in the San Juans, and a few links to more info. about the PTD.

John Weden et al. vs. San Juan County
SUPREME COURT OF WASHINGTON
135 Wn.2d 678; 958 P.2d 273; 1998 Wash.
July 9, 1998, Filed

…

Since as early as 1821, the public trust doctrine has been applied throughout the
United States "as a flexible method for judicial protection of public interests in coastal lands and waters." Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. 521, 524 (1992). The doctrine protects "public ownership interests in certain uses of navigable waters and underlying lands, including [*27] navigation, commerce, fisheries, recreation, and environmental quality." Johnson, supra, at 524. The doctrine reserves a public property interest, the jus publicum, in tidelands and the waters flowing over them, despite the sale of these lands into private ownership. Johnson, supra, at 524. "The state can no more convey or give away this jus publicum interest than it can 'abdicate its police powers in the administration of government and the preservation of the peace.'" Caminiti v. Boyle, 107 Wash. 2d 662, 669, 732 P.2d 989 (1987) (quoting Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 453, 13 S. Ct. 110, 36 L. Ed. 1018 (1892), aff'd, 154 U.S. 225, 14 S. Ct. 1015, 38 L. Ed. 971 (1894)). Due to the "universally recognized need to protect public access to and use of such unique resources as navigable waters, beds, and adjacent lands," courts review legislation under the public trust doctrine with a heightened degree of judicial scrutiny, "as if they were measuring that legislation against constitutional protections." Johnson, supra, at 525, 526-27.
This court did not expressly adopt the public trust doctrine until 1987, but indicated then that the doctrine has always existed [*28] in Washington law. See Caminiti, 107 Wash. 2d at 669-70. The doctrine in Washington "prohibits the State from disposing of its interest in the waters of the state in such a way that the public's right of access is substantially impaired, unless the action promotes the overall interests of the public." Rettkowski v. Department of Ecology, 122 Wash. 2d 219, 232, 858 P.2d 232 (1993).
The test of whether or not an exercise of legislative power with respect to tidelands and shorelands violates the 'public trust doctrine' is found in the following language of the United States Supreme Court:
The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.

...
http://www.ecy.wa.gov/pubs/93054.pdf
http://hometown.aol.com/rnwhiteley/trust2.htm http://law.utoledo.edu/LIGL/public_trust_doctrine.htm

A few years back I ran into a problem on the Methow river with a local land owner who chased me down after he spotted me crossing above a rapid from fishing on HIS SIDE of the river. He is Indian, this was non treaty land, I was parked in and fishing a public fishing area and, I was below high water mark on HIS SIDE at all times in fact I never was out of the water, yet he insisted I was on his property and his deed went to the middle of the river, and he was calling tribal cops, by the way he had a large buck knife on his side and a rifle in his hands that he kept pointing at me. No cops showed, and after an hour of his crap he left. I went to town and talked to the State Patrol, who called the OLY office. The responce was that there were only TWO NON-TREATY DEEDS in the state on Navigable waters. and his was not one of them. And by the way I was told I had the right to defend myself if this happened again, and I will do just that. I pose no threat to people or thier property, only fish. So don't go pointing guns at fisherman, it's not worth it. In some land owners minds they might think they own to the middle of a Navigable river, in fact only two in the State of Washington really do, Is that you? you better find out before you get yourselves in trouble.

when I own river front property (and I will)I will not allow strangers to park or cross on my land, but those who drift by will be welcom to anchor up, or walk the bank. If there observed littering they will be turned in. Its their right to do so.

On the upper Tolt River in Carnation, there is a public parking area near the river and a trail that runs up and downstream. However, you can only go about 50feet upstream because some guy who owns property built a chainlink fence across the trail. The river is too deep and fast to wade around it, so that one person basically cuts off all access to upstream fishing.

Wow yet another touchy subject on this board. I won't get into the heavy legal quotes, but it just doesnt seem right that private property owners should "fess up" access rights simply because their property borders a river, beach, etc. I never have and probably never will be fortunate enough to own such a piece of land, and have experienced the frustration of finding a nice spot to get a line wet only to be confronted with no tresspassing signs. Yeah it sucks but not much you can do about it. I totally sympathize with the landowners, as there is no way I would want my backyard to resemble many of the public access sites, and you know its just a matter of time before it does if every Joe is allowed access.
Most of the property in question here doesnt exactly come dirt cheap, and if the owner pays the price to own it, then its their right to deny the access. However I dont see how they can legally run off a boat that is anchored in the river off there property (did that really happen?).
On the other hand, I also believe if you do the leg work, there are still plenty of spots on many rivers that are off the beaten path and dont interfer with others rights of ownership
Just my opinion
Chris

To all of you who would like to have access to someone else's river property - where were you when the state was essentially taking our land without compensating us for it. The new rules imposed by the Dept. of Ecology seriously restrict what landowners can do or where they can build on their own property, with no thought of any compensation for the loss of use. Maybe if the fishing public would stand up against this unreasonable seizure, landowners would be more likely to be friendly to the fisherman. Comments?

hey Long, I usually do not put my .o2 into these type of conversations( I am being polite). Those laws you are talking about are for the best. People have been destroying streem banks and leveling trees and habitat to look at the water. The fact is they are destroying more then they can think of. I not going to preach here. Lets just leave something for our kids. I am sure there will be some debate on this comment, oh well, thats why this is a forum.

Fish On!

Here we go again!!
G-Spot lots of good thoughts here and very well thought out. I can agree with much of what you said but unfortunately its the few that ruin it for the many. Respect for private land has gone to hell. Case and Point; I live up on the Sauk and Skagit and my neigbor owns over a hundred acres on the Sauk. It is an old homestead property passed on to him by his father. Years ago he never had a problem with anglers crossing his land to fish the river, in fact he enjoyed getting fish from them and talkin with them. Over the years though more and more people started disrespecting his land and even the homestead he grew up in, even stealing things from the house that were there since he was a kid. Anglers started leaving garbage out all over the gravel bar and worse yet cutting his fences to access the river. Fences put up to keep his cattle in and off the river bank. Last year was the straw that broke the camels back for him. Some Angler went in cut one fence and left a gate wide open and also left garbage all over the bank. Some of his cattle were out on the river bar and a few wandered out on to HWY 530 resulting in a $200.00 dollar fine per cow out on the road. If someone were to hit one of the cows on the road he would have been not only liable for the driver but would have also been out the $ for the cow. After this incedent he posted his entire property and has recently even had trespassers vehicles towed away and called the State Patrol on them. "All it takes is the few to ruin it for the many." So before passing judgment on the land owners,...put yourself in their shoes for a minute.

I feel the real "takings" is not just the fact that development was allowed in the first place but also the fact that people are not only given low cost loans, ala the tax payer, when they are flooded out but are also allowed to re-build right on the same flood plain piece of land.
Another "takings" is rip rap banks and bulk heads designed to channel water away from properties that just cause problems else where.
The "it's my property and I'll do what I want" just doesn't wash. Each of us are only here for a very short period of time but some of us feel that they can leave a lasting nasty legacy for many generations to come under the guise of private property rights.
In my opinion a new law is necessary. No shoring up banks or shore lines of any kind. If the water takes your home you will be compensated assessed value and you will move.

For the property owners who are complaining about the damage and litter from trespassers, here are a few ideas to consider.

Why not place in your fences a gate that can be opened and closed by responsible anglers? Long stretches of closed barbed wire only keep out respectful fisherman not trespassers with wire cutters! The presence of responsible anglers can even dissuade no-gooders.

Concerning no trespassing signs, why not instead place a sign that lays out the rules you expect anglers to follow while crossing your land? As seen from the posts above, we are not talking about inviting people to hang out on your land, but rather allowing them to cross your property in order to reach the public shore that lays below the ordinary high water mark.

There is a farmer on the Sky who provides paid access to the public shore adjacent to his property. This access is only available during the fishing season because anglers respect his land. During the closed season, he restricts access because the teenagers like to go out there to party and wreck things (do you remember being a teenager?). I think this is an excellent example that responsible anglers and landowners make natural allies.

Concerning garbage, I almost always come back from fishing with at least some plastic or old fishing line that I picked up. Would it not be sensible for property owners to place 1 or 2 barrels for trash around the places where littering is a problem. I realize this entails some work, but property owners must accept that (whether they like it or not) their land borders a public area that will attract anglers as long as fishing is legal there.

Property owners would do well to understand that they are the only ones who can make the first step at reconciliation by taking steps along the lines described above. If the private lands continue to block access (and fishing stays legal), then the inevitable outcome will be a loss of public support for the landowners and changes in the law concerning shore access. It may take a long time, but it will happen.

Steelhead, it sounds like you and I are on the same page here. I am surprised not more anglers have expressed their frustrations at having access to their fishing waters systematically blocked off by private landowners who act as if they own the river and its shores.

Gerard W.
Seattle, WA

I'm glad someone finally brought up two bit. Things seem to work pretty good up there but I could understand that closing up if what happened to Koenig's friend up on the Sauk ever happened to the friendly Skykomish farmer.

I grew up fishing small rural rivers for smallmouth in southern Indiana and Kentucky. Most of the land around these rivers was farmed for corn, soybeans and tobacco. Very few of the landowners where we fished had any problem with fishermen crossing their fields to get to the river as long as you kept your vehicle out of the field and didn't block access for them to work the land.

This is a little like comparing apples to oranges because the places we fished were never crowded and it was rare to run into other fishermen. Most folks would rather take the johnboat out to the lake for largemouth or catfish.

Anyway, I think two-bit is a good example of how granting some public access can work. Having said that, if I owned some riverfront property that bordered a good steelhead run I'd have a hard time opening it up to general walk-in access for purely selfish reasons that have nothing to do with liability or trash pickup.

Bruce

btw - those farmers back in Indiana and Kentucky didn't have many laws that I know of regarding cutting close to rivers but most left big borders of hardwoods buffering their fields from the water.

As far as takings go, it obviously depends on whose ox is being gored. How would you like it if the govt. restricted and took away your use of 1/2 of your yard, that you had paid for, because they believed you used fertilizer and that it was washing into the drains. They don't ask you to stop using fertilizer, they just assume you do. The worst part is they don't expect to pay you anything for this taking. Why is this fair? When somebody's house is taken to make way for a road, the land owner is compensated for fair market value. If the govt. wants to restrict my use of the land I own for the greater good of the environment, then pay me for my loss of value. I might not like it, but at least I would be made whole. That's only fair. Always look at both sides of an issue before you make rash statements - or someday it will be your ox being gored.