In March of last year, I wrote a pretty hot thread called "Is "Fishing" a "privilege" or it a "natural born right"?"

I got something like 93 replies to that thread. Surprisingly, a lot of the board members though that "fishing" was not a "right" but was in their minds, a "Privilege". A lot of opinions were voiced for both sides, but almost no one could support their opinions with any real legal facts or case laws that supported their position.

Well most of you know by now that I almost never give up!

Since that time, I have continued doing my research, and now feel even more competent that what I had said was right when I stated that fishing is truly a "right" and not a privilege! The guys that had opposing views will still hate it, but the guys who agreed with me will absolutely love what comes next. This is really good stuff if you like to see someone eat a "little" crow!!

Make sure that you take special note; nowhere in any of this wording is the word "privilege" used. It's 100% "rights"! Some of you may recognize where this information came from and some may not.

"In America, public fishing rights were codified shortly after the colonies were founded. In the 1640s, the city of Boston established laws to protect public rights to fishing waters, and the Massachusetts Bay Colony declared public rights to fish in the "great ponds," and to cross private property, if not cultivated, to get to the water. People tend to assume that fishing at that time was just for sustenance, but the sport of fly fishing was already popular in Europe before America was colonized, and in Philadelphia there were at least five different fishing clubs before the Revolution. The Treatyse of ysshynge wyth an Angle, Juliana Berners, 1496. The Little Treatise on Fishing, Fernando Basurto, 1539 (Spain.) The Art of Angling, William Samuel, 1577. Massachusetts Declaration of Fundamental Liberties, 1641-1648. The Compleat Angler, Izaak Walton, 1676. The Art of Angling, Richard Brookes, 1740.

After the American Revolution, state and federal courts upheld public fishing "rights," as well as state authority to "regulate" fishing to conserve fisheries. In Arnold v. Mundy, the owner of land next to a river claimed private ownership of the fishing rights, but the court said this amounted to claiming that "Magna Charta was a farce." The court relied on "the law of nature, which is the only true foundation of all the social rights," and said Magna Charta was "nothing but a restoration of common rights," then held that the state "cannot make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right," adding that such a grant "never could be long borne by a free people." In Martin v. Waddell, the U.S. Supreme Court held that in America, as in England, the public has a "liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary." (Fishing place.) In subsequent cases, the U.S. Supreme Court held that states hold surface waters "in trust" for the people, so that the people will have "liberty of fishing therein freed from the obstruction or interferences of private parties." It held that a state cannot "abdicate its trust over property in which the whole people are interested," and that rivers "shall not be disposed of piecemeal to individuals as private property." These principles are now known as the Public Trust Doctrine. Arnold v. Mundy, 6 N.J.L. 1 (1821). Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.ed 997 (1842). Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.ed 1018 (1892). Shively v. Bowlby, 152 U.S. 1, 38 L.ed 331 (1894)."

Now for you guys that are still are not convinced that fishing is NOT a "right" ... we have a little crow pie for you!

Ok, lets hear from the expert "privilege" spin doctors on this one!

Cowlitzfisherman

It is your right to fish. Just like it is your right to remain SILENT!

Next time you poach an ESA- listed fish and find law enforcement taking away your license, try giving them the colonial history talk and see if they agree that fishing is your right, and not a privilege.

Please try to say focus on this issue only!

There will be plenty of time for you later to ask all of those "other" questions

Cowlitzfisherman

Wait a minute guys!

The right to fish does not give anybody the right to "brake our laws" on "how" we fish!


Cowlitzfisherman

I always thought my "right" was covered under the "pursuit of happiness" phrase :p

In all fairness, whether it is a right or not, we all have a responsibility associated with that right. Further, since some government bureaucrats codified our "responsibilites" into laws, we now get to pay big $$ and live with the restrictions we all endure.

If we dont like the current situation, wait for the next election, better yet act now with your lobbying, your $$, and your time to make it better. I still believe we all have the ability to make positive change.

Until that time I will continue to live with the "law" and try to figure out that book of regulations that seems to get larger and more confusing every year.

I think the thing that bothers me most right now is the fact that our sports related $$ is going into govt general funds and we are losing the benefit of having it directed towards fishing. With the huge deficits now facing the politicos, Im afraid it's only going to get worse.

My $0.02.

You may be correct that fishing is a right.

You also realize that restrictions can be and are placed upon all the rights granted to us. i.e. Yelling "fire" in a theater isn't protected speech.

So, fishing is a right. Is there a point you're making?

Cowlitzfisherman,

Here's what I wrote last March...it's just as much the law now as it was then.

In spite of your comment above...

"Surprisingly, a lot of the board members though that "fishing" was not a "right" but was in their minds, a "Privilege". A lot of opinions were voiced for both sides, but almost no one could support their opinions with any real legal facts or case laws that supported their position. "

...here are real legal facts, with real case law. Case law that went through the Supreme Court several times...and is indisputably the law of the United States of America. It's not about feelings, or opinions, or what you or I want...it is what it is, and here it is...again.

...

Here's the legal scoop. Remember, this issue is not about opinions, or belief systems, or wild fish, or natural born GGR's, or anything else. This is about the specific legal status of sportfishing in the state of Washington. If you don't like it, so be it.

"...fishing by other citizens and residents of the state [non-Indians] is not a right but merely a privelege which may be granted, limited or withdrawn by the state as the interests of the state or the exercise of treaty fishing rights may require." U.S. v. Washington, 384 F. Supp. 312, 332 (W.D. Wash, 1974).

That's it period. Federal law that cannot be usurped or abridged by state laws to the contrary, or by the opinions of those who hold the privilege.

...

As I said last March, that is absolutely the final word on the subject. In the state of Washington sportfishing is a privilege.

The Public Trust Doctrine is an incredibly complex and wonderfully useful doctrine. It keeps the states from selling away public lands and waterways if there is not some corresponding benefit to the public that it owns those properties in trust for.

However, it does not give you any rights other than access to public lands and waters...and prohibits the government from giving a private entity the right to exclude you from those public lands and waterways. It does not give you a right to fish any river whenever you want...it gives you access to exercise your privilege when a river is open and you are using legal gear to target legal fish and retain them up to your daily or yearly limit.

Your logic is faulty in using it to make your privilege a right. It's exactly the same as saying that since the federal government owns Olympic National Park that you should be able to hunt elk there.

You can't. It's been closed for decades. In spite of the doctrine.

In some states, the state constitution provides that fishing and hunting is a right held by that state's citizens.

Ours does not...and even if it did, it wouldn't matter. Just as I wrote in March, states cannot pass laws that are contrary to federal laws, unless they have specifically been granted the right to do so from the federal government.

Fish on...

Todd.

CFM,

I like your spirit, but that does not make you "right." As Todd pointed out last year and again in this thread, the federal court, the 9th U.S. Circuit Court of Appeals, and the U.S. Supreme Court have held that non-treaty fishing in the State of Washington is a privilege, not a right. Opinions are like belly buttons on this subject; everyone has one. However, our opinions are irrelevant under the law. I'm not sure that a re-run discussion of this topic even makes the grade of entertainment any longer.

Sincerely,

Salmo g.

Todd, Salmo

Am I surprised at your replies?

Not at all!

In fact, I pretty much expected that you both would be one of the first ones to jump on me about this post! I am still not clear about your background Todd. So let's establish that now. Are you a licensed attorney in Washington State? If not, are you a Par legal in this state? Or are you just a legal adviser with some kind of degree in law? Which one are you? Have you ever represented anyone legally in the state of Washington? Or do you just interpolate your own opinions on state and federal law? This is not a pesonal attack, Its only fair to kown who I am up against in this debate! Your profile does not reveal that, an you have never made it clear to me.

Salmo, I know who you are, and I also know your "back ground", so I also know where you are at on this issue. (nothing personal salmo) and know how all of this could affect you in the future if things changed. It would totally blow both of you guys away if the tribes were not the "only ones" to hold "fishing rights!

I am certainly not an attorney, nor am I a legal aid, or advisor, but I do have pretty good common sense! After all, isn't that what out laws is based on . . . two persons" with common sense?

I understand why both of you (Todd, and Salmo G) continually try to attempt to "Cloud" this issue with the rights of the Indians. The simple fact remains that they ( the indians) have their rights, and we have our "rights". So why do you guys always attempt to cloud this issue with that? Are you guys just scared that maybe "we all" may someday join together and change the things that both of you preach that are so dearly to your hearts? Times are indeed a changing, and it sounds like it isn't changing in the way that either of you guys want it to!

It could just happen; if you guys keep knocking other peoples views who oppose your own views or positions!

Both of you guys are missing the point!

Round 2?

PS; I have a roten cold and I am not going to stay up much longer tonight!


Cowlitzfisherman

Uggghh, Not again! Has a single person's opinion changed? I think I hear my wife calling................

Probably not!

But you know there are a whole lot of new members out there now that still have open minds and can still think for themselves!


Cowlitzfisherman

CFM, I try to stay out of these, but in this case not sure if Todd will tell you but he is in fact an attouney. Afraid you lost this one.

CFM,

I'm surprised that you'd misunderstand me. I don't have any personal stake in the interpretation of the law. It doesn't matter to me personally that some tribes have treaty fishing rights, and I only have a privilege. If it did, I'd lean more toward your opinion, prefering that I posessed a right, rather than privilege, to fish. And I'm not arguing or debating you on this either. Just reminding you of what you've already heard. Your opinion is just that, your opinion. Same with mine, but the difference is that I'm not going to devote my energy debating that which the U.S. Supreme Court has already decided. Their decision is the law of the land. Doesn't matter if your or my opinions or everyone else's opinion is different. It's the law, and will remain so until and unless the Supreme Court reverses itself. That's not impossible, just improbable. If you have time for this issue, you've got a lot of free time on your hands. I'm done with it.

Sincerely,

Salmo g.

Very, very well said. Can't argue with your reasoning or conclusion! I agree 100%!

Do you need to be an attorney to understand the law?

CFM

Are you one of those guys who likes to hang the bait in front of a fish even if it has already been played out, just to piss it off some more?

You have some great posts but your argument on this one is played out, spawned out and at this point deserves to be bonked. (you could release it but that doesn't seem to be your style)

Your obviously a smart guy, if you are going to bait people at least treat them with respect.

Go fishing, relax a little, quit drinking coffee whatever it takes.

Rights, privilages......don't abuse either one.....lots of user groups the only situation is to find some balance

since this is bobs board he gives us the privilege to come here and post, isnt that true ? but if this site was owned by the wdfg would it be a right or privilege to post here since the tax payers would be paying for it ?

also, since the citizens pay for hatchery fish for us to catch, how can anyone say its a privilige to catch them since we paid for them ?

there are millions upon millions of government programs that I pay for yet never get the privelage to use...or have the right to use for that matter!