There are many ways to go fishing in California. You can stroll along a beach, take a leisurely ride in a drift boat, or walk a meandering National Park meadow stream listening to the dawn swallow song to name a few. I have the best time fishing when I’m stumbling around in the bushes and mud, barking my shins and swearing loudly, deliriously hot, and having drunk more beer than water. In my experience, a little bit of struggle makes for an even more memorable day.
Unfortunately, if you enjoy fishing of the bushwhacking variety, you have increased odds of ending up somewhere you didn’t intend to be. You’re not lost, of course—just exploring. It could be ranchland or a mining claim, or some venture capitalist’s sprawling backyard. And if you inadvertently end up on or near private land, it’s possible that the property owner will appear and tell you to hit the bricks. If this happens, it’s important to know the basic rules of access so you can determine whether you are, in fact, trespassing or if you’re clear to stick around. Where are you allowed to be? How are you allowed to get there?
These questions are especially significant given recent events on some of Northern California’s most iconic trout streams, where private landowners have been making concerted efforts to restrict public access to the water, in some cases through threats and intimidation. Private landowners are required to follow the law, just like anglers. My goal with this article is to provide an overview of the relevant law in the hopes that it will help you protect our collective right to continue enjoying California’s incredible waterways.
I’m duty-bound to make a couple of caveats. First, I’m not your lawyer, and this isn’t legal advice, just information. If you end up in a situation where you need legal help in connection with an access issue, you should seek your own counsel. Second, when talking about law, it is difficult to speak in absolutes—the answer is almost always “it depends.” How the law will apply depends on the facts, such as the nature of the waterbody and the private property at issue. Finally, California property and water laws are famously complex, but George Revel tells me I can’t write a 400-page manifesto, so this article will stay relatively high-level and specific to freshwater. If you want more detail, I recommend you consult the California State Lands Commission’s Legal Guide to the Public’s Rights to Access and Use California’s Navigable Waters, which provides a wealth of information and technical legal jargon, if you’re into that kind of thing.
THE PUBLIC TRUST DOCTRINE & CALIFORNIA CONSTITUTION
When California joined the Union in 1850, Congress required it to maintain its navigable waterways as “common highways, and forever free.” As a result, Article X, Section 4 of the California Constitution protects the public’s right to access and enjoy navigable waters in the State and prohibits private landowners from obstructing the free navigation of those waters. Californians also have an explicit constitutional right to go fishing on public lands, embodied in Article I, Section 25.
These constitutional provisions are rooted in a legal principle known as the public trust doctrine, under which the citizenry has an inherent right to access and enjoy public lands and waters, which are held in trust by the government for their benefit. The U.S. Supreme Court confirmed that premise way back in 1892, holding that individual states are obligated to hold their navigable waters in trust for the people so that they “may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein, freed from the obstruction or interference of private parties.”
California courts have repeatedly affirmed that “the streams of California are a vital recreational resource of the state.” Accordingly, under California law the public has a general legal right to recreate in California’s navigable waterways at any point below the high-water mark. That’s the basic rule, and should be your mantra if confronted with an access question. But what does “navigable” mean, where the hell is the high-water mark, and how do you actually get down to the water if it is bordered by private property?
WHAT DOES NAVIGABILITY MEAN?
As a legal term, navigability has different meanings in different contexts. For purposes of fishing access under California law, the public can recreate in a waterbody if it is “capable of being navigated by oar or motor-propelled small craft.” So, if you can row, you’re good to go—at least in theory.
Importantly, the government doesn’t need to designate a waterway as navigable. What matters is whether the waterway is navigable by small craft in fact. This means that in the event of a legal dispute over navigability, a California court would look to factual evidence of whether your average boater could float the water. It’s a determination that must be made on a case-by-case basis, taking into account the specific nature of the waterbody in question. Navigable waters can include rivers, streams, sloughs, lakes, and artificial waterways. Think about your favorite creek or pond—if you dropped a kayak in there, could you paddle around?
To be clear, this doesn’t mean you can only access navigable waters by boat. It’s just the threshold test for the public’s right of use and enjoyment. If a river is navigable, you are generally free to wade, swim, fall over, or catch six-inch rainbows in it as much as you like.
WHERE IS THE HIGH WATER MARK?
Wikipedia will tell you that the high-water mark is a point that represents the maximum rise of a body of water over land. You can visualize this in the context of a Sierra stream at the end of a hot summer—the flows are low, but you can still see how high the water was during the spring runoff in the form of bleached stones and lack of vegetation. If you’re standing in that zone, odds are you are below the high-water mark. The state retains a public trust easement over the land lying between the high and low water marks on the waterway, and members of the public are free to access them.
It sounds simple enough, but determining where the high-water mark is as a matter of law can be complicated. For rivers and streams, courts typically define it as the place where the riverbed ends and the riverbank begins (not particularly helpful), which involves examining the riverbank to find the highest point where the water’s flows have prevented the growth of vegetation. California courts have taken a different approach to lakes, instead using the lowest annual high level reached during a given five-year period.
As with the navigability question, it depends on the nature of the waterbody. On some rivers, it may be obvious; in others, it might be unclear. If you need an exact determination, you will have better luck talking to a hydrologist than a lawyer, and—if needed—the State Lands Commission can get involved to settle the question. Still, as a general matter, you are legally entitled to wade, row, or fish anywhere below the high-water mark of a navigable waterway.
HOW DO YOU GET TO THE WATER?
Say you are driving alongside a big, beautiful river, more than capable of supporting a kayak or drift boat, with a nice dry zone between the edge of the water and an obvious high-water mark if you feel like taking a break from wading. Under California law, it’s yours to enjoy, except it’s bordered on all sides by private land. You’re allowed to be in the river, but you’re not necessarily allowed to walk through someone’s house or yard to get to it—the right to navigate public water does not include the right to trespass on private land. Setting the question of parking aside, how do you get from the car to the water?
First, prioritize an easy public access point. You don’t need to worry about any of the suggestions below if you can enter the water from a public park or boat ramp a few miles down the road. If you enter the water from public land, you are free to traverse up and down it, by foot or on boat, so long as you remain below the high-water mark.
If an obvious public access point is not an option, consider an easement. An easement is the right to use or benefit from the real property of another person without owning that property. They typically run with the land, meaning they continue to exist even if the property changes hands. One of the most common forms of easement is the right-of-way, which is the right to cross private property. Right-of-ways can be created in a number of ways. In the context of river access, the most straightforward method is by express dedication, which is when a landowner intentionally offers up the right to cross their land to the public. So, in the above hypothetical, imagine there is a friendly rancher who loves seeing people catch hogs in the river running across her property and works with the county to create a trail from the road down to the river. That trail would be an expressly dedicated right-of-way.
Unfortunately, not all property owners are as friendly as the hypothetical rancher and won’t go out of their way to expressly dedicate an easement for adventurous anglers. But maybe they aren’t particularly bothered by people crossing their property or have never tried to kick people out in the past—if so, it’s possible that their failure to object gave rise to an implied easement. An implied easement occurs where there is continued public use of private land for more than five years without asking or receiving permission, with full knowledge of the owner, and without the owner’s objection. However, determining whether an implied easement exists typically requires a court to weigh in, and the legislature has enacted various methods by which property owners can avoid their creation.
If you want to avoid dealing with landowners altogether, a public bridge is going to be your best bet. A public right-of-way is inherent in every public road, including bridges. The public right-of-way typically extends about 50 to 60 feet from the center of the road, often over the edges of the road or bridge itself to create a reserve. So long as members of the public stay within the limits of the public right-of-way, they are free to use it for any reasonable form of travel, including getting down to a navigable river. Back in 1977, a kayaker named John Sweetser was convicted of criminal trespass after he accessed the Kern River by hopping a fence put up by a rancher. On appeal the conviction was thrown out, because John had entered through the public right-of-way alongside a bridge. The court found that if anybody had trespassed, it was the rancher, because he had fenced off the public right-of-way. Go John!
FINAL THOUGHTS & PRACTICAL CONSIDERATIONS
Californians are legally entitled to fish in any waterbody that can be navigated by oar or motor-propelled small craft, so long as they stay below the highest point where the water’s flows have prevented the growth of vegetation.
Californians are legally entitled to access those waterbodies via any designated public access point, through a confirmed easement over private land, or where a public right-of-way intersects the waterway.
That said, I mentioned at the beginning that it’s tough to talk about the law in absolute terms. Opinions may vary as to where the high-water mark lies, different bridges might have different sized right-of-ways, and property lines may be ambiguous. And while you have a right to fish in California’s navigable waterways, that right can be subject to reasonable restrictions. Classic examples include seasonal fishing closures, or a prohibition on fishing from a bridge. It’s important you familiarize yourself with the specific rules and customs for the water you plan on visiting before you go.
Finally, if an angry property owner confronts you, keep a cool head and think about the most effective strategy for defending your right to fish. Sometimes, that means walking away—better to spend your day fishing another beat than waste your time in an argument that will go nowhere. But if you are confident you were in the right, and you think the issue is likely to recur, consider organizing with anglers in your community and taking a stand. People who care about California’s lands, waters, and wildlife can do powerful things when they work together to protect them.
