I'm not sure what the law is in Washington and the Oregon law is somewhat vague in identifying what streams are navigable but be aware that there are some selfish landowners in both states.
In the Tillamook, Oregon area there are several landowners that think they own all the river and you would be trespassing by merely drifting over it in your drift boat.
The usual means of defining bank access is the right to access a streambank up to the high water mark. However there are some landowners that feel differantly and WILL call the county sheriff if you are fishing on "their" river. Bear in mind that river access does not allow trespassing across privately owned land to get to the river.
The Association of North West Steelheaders is lobbying hard in the Oregon legislature to get more and more rivers designated navigable and we are making progress but we all need to be responsible and not trespass and litter.

I've had the same problem with landowners up here in WA. I usually try the courteous approach, but if that doesn't work I usually just tell them to lick my bag and to fell free to call the cops if they want.....Just a little word to the wise, if you're gonna do this (the whole lick my bag thing) make sure that you're in the right first. There are a couple of rivers up here in WA where the landowners really do own the land under the river and all the "High Water Mark" stuff doesn't matter.

I guess I should ask a question here, since I mostly bank fish. How do I know where the property line is on certain rivers or certain stretches? Is there a website I can check, or would I have to call some official building? Anyways, I was walking the EF Lewis once, and some guy came out and told me I was trespassing, but I didn't know if I was or wasn't, so I left. Bummer too, because I thought it was a good hole. So, how do I know where the "high water" mark is? I didn't see any type of labeled posts or anything.

Matt

I'm not an attorney, nor am I an expert on property laws. I do however, know the laws on the rivers that I fish most of the time."Below the mean highwater mark" means exactly what it says. If you stay below the "mean" or "normal highwater mark, you're usually OK. Just to be safe, I tend to wade whenever possible. If I'm up to my ankles in water, then I know I'm below the high water mark. Again, you want to exercize a bit of caution when doing this. Make sure you know your rights on whatever river you're fishing on, or you could wind up looking an idiot. Also, Sometimes if you just find the land owner and ask, they will let you on. Save using a loophole in the system as your last resort when it comes to accessing a stretch of river. In general, I will treat the landowners as well as they treat me. I've wnet to landowners in the past and they've told me "NO" and even though I knew that I could legally fish through their section of land, I didn't because they were halfway cool in the way they treated me. To the same token, I've had landowners threaten to kill me for simply hiking down the river..... Needless to say, I make it a point to fish their property every chance I get, just to spite them. But seriously, try asking first, you'd be surprized at how many landowners will let you access their property for fishing purposes..... A nice fish or two once in a while never hurts either.

Check this site out first, and then make up your own mind! http://www.adventuresports.com/river/nors/us-law-menu.htm

A false arrest charge will make a fool out of any arresting officer. Do your homework first, and then make your move! Most river property owners don't even know or understand the laws when it comes to public access to our rivers. You may have to take your issue to court to make your point. Remember this; if you are right, then you are entitled to ask for both the courts costs and your attorney fees if you were falsely charged with a trespass charge. Explain this to both the officer and the land owner before you make your stand!

Cowlitzfisherman

Is the taste of the bait worth the sting of the hook????

[ 11-23-2001: Message edited by: cowlitzfisherman ]

[ 11-23-2001: Message edited by: cowlitzfisherman ]

Okay, these are a few pharagraphs that I have copied and pasted from the website cowlitz posted. There is much more info than what is here, so I would suggest for you to check it out. I think these are the major questions most people have.

"So what are the public’s rights to fish and boat on various rivers?

As explained above, there are three levels of public rights to rivers and streams:

First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land.

Second, on streams that are temporarily physically navigable by small craft, (even if they are not navigable for title purposes,) the public has the right to navigate, and to scout and portage around rapids, falls, or other obstacles, in the manner least intrusive to private land.

Third, on rivers and streams that are, in fact, navigable for title purposes, (because they fit the description given earlier, with or without official designation,) the beds and banks are public land, up to the ordinary high water line. Courts have held that the public can engage in other responsible recreation (in addition to fishing and boating) within this zone, such as picnics, camping, walking, resting, reading, photography, and painting. When walking along the river, the public can walk above the high water line where necessary to get around obstacles, in the manner least intrusive to private land. The public can use the banks of these rivers year round, even if the water has dried up. (On rivers that are not navigable for title purposes, the public can only use the banks as necessary to make use of the water, and the right to use the banks comes and goes with the water.)”


“What does navigable, for title purposes, mean?

Through various court cases, federal courts have articulated the following test, which is known as the federal test of navigability for title purposes:
1. The waterway must be capable of or susceptible to use as a highway for the transportation of people or goods;
2. The waterway must be usable for transportation conducted in customary modes of trade and travel on water;
3. Waters must be navigable in their natural and ordinary condition; and
4. Navigability is determined as of the date of statehood.
The courts have determined that the use or potential for use by almost any type of watercraft is sufficient to determine this type of navigability. The use did not have to occur at the time of statehood; it is enough that it could have occurred (i.e., susceptibility.) Modern-day usefulness of a river that has not been artificially modified helps prove navigability for purposes of state title, as do historical uses that no longer exist, such as log drives.
Note that this "federal test" is not found in any one Supreme Court document or other government publication; it is just the sum of the relevant passages and phrases in various court decisions. Congress has never passed legislation defining navigability for title purposes, so the court decisions are the applicable law on the subject.”

"Where is the boundary between public land and private land along a river that is navigable for title purposes?

Until the early 1800s the boundary was at the highest level the water reached during floods. Since then courts have set the boundary at the ordinary high water line, although the government still has public trust authority over the zone between the ordinary high water line and the highest level, for purposes such as conserving wetlands and preventing pollutants from washing into rivers. The ordinary high water line is the visible line on the ground between land that is affected by the water and land that is not. (It is not a theoretical line requiring hydrologic records and surveying to locate.) Below the line, the surface of the ground is sand, gravel, and rocks, and the vegetation is plants that only grow near water. Above the line, the surface is dirt and soil, and the vegetation is “upland vegetation,” of a type that is found even well away from the river in that area. Gravel bars and sandy beaches along rivers, since they are formed by frequent depositing of sand by the river, are below the ordinary high water line. On rivers that are navigable for title purposes, the beds and banks are public trust land up to the ordinary high water line, (not just a public easement,) and the adjacent private lands (or other types of government lands) begin at the ordinary high water line. Landowner fences and “No Trespassing” signs should be located above the ordinary high water line."

“Where is the ordinary high water mark?

The ordinary high water mark is the highest that the water gets in an average year--but not the highest it gets during extreme flooding. For purposes of river recreation, it's simply a matter of where the vegetation and soil show the effects of the water. On most rivers it's pretty obvious--below the ordinary high water mark you see water-dependent vegetation like green grass, small green bushes, tamarisk, or other plants that you don't see up on the surrounding hillsides. And you see sand, gravel, and rock that have been washed over by water, while above the ordinary high water mark you see more dirt and soil.

Wherever the land along the river is fairly flat, the ordinary high water mark can be quite some distance from the edge of the water, when the river is at medium levels. So there can be plenty of room for picnics, camping, walking, and other activities. The courts have ruled that any and all non-destructive activities on this land are legally protected. Public use of the land is not part of an "easement," rather it's a case of actual public ownership of the land.

The courts have also ruled that this land below the ordinary high water mark is not simply "state land," subject to use, abuse, or closure by state agencies. Since it is "held in trust for the public," the state, as holder of the trust, cannot do things with the land that conflict with public navigation and recreation.”


“What about navigability for various legal purposes?

While all running waters are held in trust for the public, and all rivers and streams that are physically navigable are open to public navigation, rivers and streams that are navigable for title purposes have a third level of legal status. Federal courts have held that those rivers that are used (or capable of being used) in their natural condition, for the transportation of people or goods, using customary watercraft, are navigable for title purposes. (Other qualifications determine navigability for Commerce Clause purposes, or navigability for Admiralty Law purposes.) For title purposes, a river that is useable for tourism definitely qualifies, as does a river historically used, or capable of being used, by fur trappers in canoes, or by lumbermen floating logs downstream to mills. For example, federal courts held that the McKenzie River in Oregon is navigable for title purposes due to historical use to float logs to mills, and current use by guided fishing trips in rowboats. The Gulkana River in Alaska is navigable for title purposes due to current use by guided raft trips for sightseeing and fishing. Note that occasional shallow spots, blockages, waterfalls, or unrunnable rapids do not prevent a river from being navigable for title purposes. Courts even held that the Niagara River in New York is navigable (assuming you portage around Niagara Falls!) Also note that a waterway can be navigable even if it is called a “stream” or “creek” on maps and signs, and even if it is only physically navigable during the boating season, not all year.”


“What if the river is only physically navigable during the wet season of the year?

It still qualifies as navigable for title purposes. But a normally dry creek bed or "wash" that is only temporarily navigable during extreme weather does not qualify. (If it's normally dry because of upstream dams, then it does qualify. The legal test is based on the river's natural condition.)”


“What if a property owner’s deed says he owns the river?

First, it’s important to examine the deed and other local documents. A landowner may believe that he owns the river, but public rights to rivers are “prior existing rights” and are frequently mentioned as such on deeds. Even if they aren’t mentioned, by law a deed can only convey things that were actually owned by the seller. In some cases early property surveyors mentioned public rights to rivers, and in other cases they neglected to do so, but either way their actions are not the deciding factor. Public rights to rivers are a matter of law, dating back to the founding of our nation and earlier. They are not decided by local deeds.
Deeds often say that the boundary between two farms runs down the middle of a river. That boundary arbitrates the competing claims to the river between the two farms, not the competing public and private claims to the river. It is incorrect to rely on such a deed to deny public ownership or use rights on a river.”


“What about getting to and from the river?

Normally there is no right to cross private land to get to or from a river (except perhaps in extreme cases as mentioned above.) For example, there is no right to walk across a farmer's field to get from a public highway to a river.
However, the state has a duty to maintain public access routes to rivers under certain conditions, as part of its public trust duties. Courts have found it unlawful for a state to close off an existing public access route when there are not other public access routes nearby.
A common problem involves highway bridges over rivers. The river, if navigable for title purposes, is public land up to the ordinary high water mark, and the highway is public out to the edge of its right-of-way. Usually there is enough space to legally park next to the highway near the bridge. But the adjacent landowner may build an impassable fence up to the bridge abutments and post "No Trespassing" signs on the fence, so people can't get from the highway down to the river. This is unlawful; there is a right of passage from the highway to the river. Courts have ruled that when one public route meets or crosses another, there is a right to proceed between the two.”

I still have a few questions that maybe all of you can put in lamens terms for me... I fish the EF Lewis a lot, and always fish it from the bank. This river would classify as "title purpose" because it has and had guided trips and what-not on the river, right? It has also been grandfathered in by historical river runners, correct? So, during the summer I can walk anywhere I want up to the water mark, but during the winter I would have to be standing in the water.

What about rivers that are not "title purpose"? I must be stupid, but can I still fish those type of rivers, or not? What about the rivers that are not "title purpose" and not navigable? How would it work then? Help me out, as I'm sure this applies to others as well.

Matt

Again.... I'm not an attorney, but my interpretation of what you just wrote is that regardless of a stream's navigability, you would have the right to fish it (even on private land) provided you were using the path least intrusive to private land. For instants, say you're fishing the Whishka or some little river like that. You want to go fish a stretch of the river that runs right through someone's field. Can you just march right across the field? No! But if you were to go downstream to the next public access, or down to where the next bridge crosses the river, well I'd think you'd be just fine as long as you hiked in or along the river, using the path that is least intrusive to private land. I dont know, Its just my theory.

RipDatLip,

Just join the crowd at blue creek. You will be safe.

Thanks for the good info. After eating the left over thanksgiving food, reading it almost put me right to sleep. I am going to reread it tomorrow.

Hey I control access on about 2000 feet ofthe lower Dosewallips. Stop in and ask for access. I'll give you a simple set of rules. Simple courtesy. Don't ask for access then I'll give you another set of rules to live by...not as courteous. Just loved the jerk who drove in pass multipe "No Tespassing" and By Permission
Only" signs parked his and his buddies rigs on my property. Asked him if he was aware he was parked and fishng on private property? Received a s@!tty reply..."well we've been coming here for years!" Asked him if he frickin understood what I just told him and recieved the same crappy reply!Simple solution stupid dude...sheriff on the way. Nice tickets for him and his buddy for trespass. Funny thing is that if he had been couteous and civil he'd have a permiision letter for his windshield so he could park on my property. Hey guys just take the time to ask.

Gooose

This is THE USA... no person owns the river you are floating on.... have them spend all the money they want to prove otherwise.

Hey Gooose, that's what I was saying with the whole "Asking First" thing. People would be surprized at how good some of the land owners can be if they just stop in and ask first

This is an ongoing issue here in Oregon.On the Trask river there is a guy who think he can stop you from anchoring in the river and has posted signs to that extent. He owns Tillamook Sporting Goods also and once he drove his Mercedes up to the edge of the river and tried to make some guys anchored there leave. My impression is the high water mark is state owned and anglers can use that but you cannot cross private property to access it without permission.

Good thread Stew--
From my undrestanding the above information is correct but is missing an important part. I believe you can have access to "navigable" streams and rivers, so long as you stay below the median of high water. I believe that you can walk along the river bank but are not allowed to stop on the landowners property. Anchoring???I dont know about, but I have heard you can walk through as long as you dont stop. There is a part of the lower wilson river that is posted down to the low water area by fencing and posts and wire. I hope a boat doesn't get hung up in it .........Might be a lawsuit . I am with zozo & gooose, Ask and you might recieve. I am in complete agreement that the public should not be able to be kept from accessing rivers, I believe that the people who litter and destroy property are a major reason that property is posted. We all need to be good stuards of the land, Take out more than you took in is a good rule to live by. ~~~~~~~~John

Back when my dad was in charge of us brothers duck hunting expeditions he always made sure those special landowners got a fifth or half gallon of McNaughton's on Christmas....depending on the amount we used the property. Gaining access is one step maintaining it is the next.
Been volunteered to help bale hay a time or two also.

Gooose

Can I throw a curve in this discussion and ask how this works on saltwater beaches.There is a section of beach here in B town that I grew up fishing that now I can't now.A lady from seattle bought the house and is addiment about people not fishing there.The truth is that there is only a couple of people still alive that know its secrets.Nobody around her care's just her.She is far from polite.I am the type that turns around when I run into private propperty, but I would LOVE to make her eat this one.I have been told that people own down to mean low tide,does any body know if that is true.Is there any where I could look to find what she does own.I guess this discussion solves problem on one of my favorite streams though.Unfortunatly the problem is people that can't pick up after themselves.