Beds, Banks and Big Money

George Hunker, well-seasoned river guide and fly fishing instructor extraordinaire, once told me, “For all the discussion of equipment, fly selection and casting technique, I’ve found nothing is as important to my fishing success as being where the fish are.” His point is so obvious that, like the proverbial forest hidden among the trees, it’s often overlooked.

The same basic principal is true of fishing as an institution. Perhaps no other factor is as important to participation in, and thus the perpetuation of, our beloved pastime as access to fishable water. Yet, as anglers, we regularly invest more time, energy and financial resources into tips, tricks and tackle than we do ensuring our right to use them. That’s an oversight we can no longer afford to make. In fact, given the financial strength and legal sophistication of those seeking to privatize our rivers– i.e. exclude us from wading, dropping anchor, portaging or otherwise utilizing stream-beds and banks – it’s a small miracle that workaday sportsmen and -women have places left to fish at all.

This threat to our fishing opportunity is as complex as it is persistent – a fact that makes it difficult for Joe and Jane Q. Public to hold the line. But a little background information can go a long way…

Access to flowing water – the right to use the waterway, independent of, and wholly separate from any claim to the water itself – is, and always has been, extremely valuable. Moving water powers cities, grows food, extracts minerals, enables manufacturing, sells pricey real estate, and transports the produce of the world’s largest economy. The A-list of critical industries has had a lot of skin in the moving water game, since colonial time.

It is a testament than to the democratic ideals of our founders that control of such priceless resources weren’t simply divvied up at the outset and doled out to the rich and powerful, per the European model. Instead navigable waterways were, by and large, reserved in our federal model as part of the public domain, to be used by anyone.

But sharing, as any preschooler can tell you, is sometimes difficult, and the wisdom of this arrangement hasn’t exactly been universally appreciated. As a result, access rights to America’s streambeds and banks have been hotly contested since before the ink dried on our constitution.

Most of that squabbling happens in state legislatures and courts where, aside from those pieces of water managed for interstate commerce, each state determines their own regulations. And, just like on the playground, there are bullies in the backrooms, trying to take what’s yours.

These particular bullies aren’t interested in your lunch money. They want your river rights. And instead of sticks and stones, they mostly use two legal levers to pry you off the water. Through litigation in the courts, and lobbying in state legislatures, they take aim at the definition of “navigable”, and try to rewrite what rights navigability affords the public.

Utah is a perfect, if unfortunate, example of the heavy-handed use of both mechanisms; and it serves as a stark reminder of just what’s at stake.

In June 2000, Kevin and Jodi Conatser dropped their raft into the Weber River and headed downstream for a day on the water. They’d put in at a public access point, and were floating a public river. But when Kevin stepped from the raft to wade fish a stretch of the Weber that crosses a private ranch, he and Jodi were slapped with criminal trespass charges. A drawn out, and expensive, series of legal challenges ultimately found the charges to be baseless, but the 8 year judicial ordeal served to intimidate other would be anglers from waters statewide; and emboldened public access opponents. It also gave special interests time to fuel-up the lobbying machine.

In 2010 that machine was set in motion. Utah House Bill 141 – passed with vocal and well-organized support from the realtor association, farm bureau and assorted resort ranch operations – was sold to the public as simply a clarification of the Utah Supreme Court’s unanimous ruling “… that the scope of the [navigable stream] easement provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water.” Sure, the public absolutely has the right to use the streambed of any navigable waterway, agreed the legislation. But, just to clarify, from here on, only the Jordan, Green, Colorado, Bear and parts of the White River, qualify as navigable.

With the final “Aye”, and a quick stroke of Governor Herbert’s pen, HB 141 removed 2700 miles of previously fishable water from the public domain.

2700 miles… gone, just like that.

The bald-faced land grab rests on the shakiest of legal foundations. In fact arguments in the “Provo River Case” that the 2010 legislation amounts to both a give-away of public resources, and thus a violation of the legislature’s public trust obligation; and that it violates Article XVII of the Utah State Constitution which states “…the use of any of the waters in this State for any useful or beneficial purpose, are hereby recognized and confirmed,” have been well received. The fourth and final hearing is scheduled for August 26^th, 2015.

Meanwhile, lock-outs on individual stretches of Utah water are being challenged on a case by case basis. A landmark victory this April restored public use to part of the Weber River, and set a precedent by overturning the state’s non-navigable designation on the grounds of historic use. In theory, the “Weber River case” could be used to reassert the public’s rights to any state stream that ever supported a log drive, or floated a jug of milk to market.

It’s an encouraging win, but until the legal wrangling is done, the burden, and expense of reclaiming rights will rest on hunters, anglers and other river enthusiasts… and many a favorite fishing hole will remain off-limits.

Wade fishing remains off-limits in much of Wyoming too, where adjacent landowners own to the midpoint of the riverbed. Dropping anchor is considered trespassing wherever a river or stream crosses private property. Don’t even think about getting out of the boat. Boaters are allowed to touch bottom for the purposes of safe navigation – pushing your craft from the shallows say, or portaging a canoe through a dangerous rapid – which is scant consolation, until one considers Wyoming’s neighbor to the south.

Colorado anglers have even fewer rights, in practice. The basic legal regime is the same as in Wyoming, with the streambed and banks considered private property. But Coloradans’ access is further challenged by severely restricted navigability designations. The Colorado Supreme court has twice declared that the Colorado River between Grand Junction and the Utah state line is the only navigable water in the state. The courts and legislature have otherwise failed to take a stance. That leaves local law enforcement to interpret as best they can. It also leaves boaters bumping boulders elsewhere at risk of being criminally charged.

New Mexico law was long believed to be similarly restrictive. In a rare bright spot for access trends though, New Mexico Attorney General Gary King issued an April 2014 opinion stating that “No, a private landowner can not prevent persons from fishing in a public stream that flows across the landowner’s property…” Such a straightforward declaration by the State’s ranking law officer– accompanied as it was by six pages of supporting legal citations – is a clear cut, slam dunk, victory for anglers right? One can be forgiven for assuming so. But thus far, the New Mexico Game and fish Commission has continued to enforce the status quo, and conspicuously ignore all requests to the contrary. Worse yet some landowners and special interest groups have doubled down on efforts to limit access, in some cases going so far as to string barbed wire across public water.

The New Mexico Wildlife Federation’s Joel Gay sums up the situation nicely. “We don’t have a lot of water here in NM. It would be really nice to be able to fish the resources that our supreme court says we have a right to fish.”

Joel’s frustration owes in part to the fact that it doesn’t have to be this way. There are better solutions. Idaho, for example, recognized the potential for conflict that lurked in legal uncertainty, and in a laudable bit of legislative forethought, set the gold standard for western stream access laws back in 1970’s. To head off future argument, they defined as “navigable” any stream that could float a log six-feet long and six-inches in diameter– effectively adopting the federal standard. The same law explicitly opened the beds of all navigable streams to public use. If navigability is ever in question, the good people of Idaho just drop in a log and see if she floats. That seems simple and fair enough to me.

Montana adopted similar legislation in the 1980’s. Today the right of Montanans and visitors to wade or float nearly every stream that can be reached without trespassing enjoys widespread public support. That hasn’t deterred a long line of land-grabbers in the least though. Bad access bills appear in the state legislature almost every year. “We had to beat back one bill in 2014 that would have disqualified [as navigable] any stream with an irrigation structure” explained BHA Executive Director and life-long Montanan Land Tawney.

Quick question: Can you name a river in Montana without an irrigation structure?

Some private sector access opponents, like cable magnate James Cox Kennedy, don’t bother trying to rewrite the law. Mr. Kennedy, it seems, is content instead to violate the laws we’ve already got by barring use of public entry points, like roads and bridges. Such strategies may be galling in their arrogance, but that doesn’t mean they’re ineffective, and they’re not unique to the Ruby River. By placing the onus on the public – deeming us trespassers until proven innocent – the fence ‘em out approach effectively gives the sporting community two choices: duke it out with a well funded team of lawyers and lobbyists, or tuck tail and forfeit our rights.

In January 2014 the Montana Supreme Court ruled in favor of access in the “Ruby River case”, but not before that public spent untold time, energy and money fighting to regain what was already ours.

I’m encouraged that many of the best American access laws are found where private land ownership has the longest history, and public land is the scarcest – in the East. In North Carolina, for example, if a stream can float a boat, it’s navigable. And if it’s navigable, it’s explicitly open to recreational activities like boating, swimming, fishing and wading.

Of course, most eastern states’ laws date to an era when hunting and fishing weren’t considered “recreational activities”, or pursued by a passionate few. Outdoor sport was, instead, an inviolable right, a fundamental aspect of our culture and a staple of our ways of life. The idea that one citizen could exclude another from the river was nearly unimaginable.

Our traditions, and the opportunities on which they depend, have persisted thanks to the vigilance, dedication, and sacrifice of the sportsmen and –women conservationists who came before us. Today, the continued survival of hunting and fishing depends on you and me. Exclusion is no longer unimaginable. It’s happening wholesale, all over the country, and it won’t stop of it’s own accord.

Do you know the letter of the stream access laws where you live, or travel to fish? Do you know who’s working behind the scenes to write you out of them? For most of us, the honest answer to both questions is no. The folks who’d rather not see us on the river are counting on it staying that way.

For my part, I can’t help but think back to a conversation I had with my dad twenty-four years ago. An older, bigger, stronger kid on my football team was making locker-room life unbearable. Dad offered to intervene, if I wanted, but he also made it clear that I couldn’t expect the situation to actually improve until I stood up and dealt with it myself.

It was a tough lesson, and hard learned, but I’m grateful for it. Because as the father of a preschooler, I’m also looking forward to what I hope is an entirely different conversation. Someday, when my little guy comes looking for fishing help, I plan to give him the best advice I’ve ever heard.

I’ll tell him to go where the fish are.

And I’ll be damned if anyone is going to stop him.

*** UPDATE: On November 4th 2015 Derek Pullan, Judge of Utah’s 4th District Court threw out the the state’s restrictive stream access law, reopening access to thousands of miles of streams and rivers for the state’s anglers. ***

*** This article originally appeared in the Summer 2015 issue of Backcountry Journal, the membership magazine of Backcountry Hunters and Anglers, one of our favorite sportsmen and -women’s conservation outfits. Learn more about the work they do protecting the places you hunt and fish here.