Remember, Tom Chandler-imitation is the most sincere form of flattery!

But on the actual subject at hand, I have been doing a lot of research on navigable waterways: it seems the root of the issue is the broad authority of the Public Trust Doctrine that provides public rights but issues few specific limitations: i.e. is fishing by boat O.K.?; hiking below the high water mark?; ATV (four-wheeler) use?…

I’m just going to eat a slaw dog and forget the whole thing.

Water access laws, that’s truly arcane and inexplicable. Probably comparable to Hindu mythology or something…

Perhaps the US intel community’s rules/regs covering interrogation of detainees and prisoners.

Other than that, riparian rights law is about as arcane as it gets. Many cases are settled more based upon the best judgment of a judge or jury than upon legal precedent and statutes. Say “riparian rights” in a room full of attorneys and watch them scatter! LOL

If the waterway was ever used for commerce traffic of any type, it is covered by the Freedom of Navigation Act. Essentially, it is a public roadway, and can be used to the traditional high water mark.

The differences in state law mostly apply to waterways NOT covered by the Freedom of Navigation Act, ie. waterways that have never been used for commercial traffic of any kind. In these cases, some states say a landowner does NOT own the stream bed, some say that if he owns both banks then he does, and others say he he cannot prevent boat traffic but ANY touching of the stream bed below the traditional high water mark or boating above the traditional high water mark during flood conditions is trespassing.

The issue out West that allows a lot of privatization of flowing streams is that there are gazillions of miles of streams that have never been used commercially. This becomes especially true in high mountain streams, headwaters, etc. And in CO, as many other western states, if the landowner owns both banks of such a stream, he/she CAN deny all terrestrial access (wading, for example). However, they cannot impede the flow of the water or the game moving in the water.

Where Donny Beaver has…apparently repeatedly…gotten himself in trouble is by posting and fencing and advertising private property rights on waters that ARE covered by the Freedom of Navigation Act and even fencing and posting property he does not own…as in this railroad case.

Montana’s stream access law is even better for fishermen, and I find myself assuming that Colorado’s laws are probably similar to California’s. If it’s navigable, you get to the high water mark.

Still, original access is often difficult, especially when the likes of Donny Beaver feel no remorse in illegally posting/fencing off water.

Down here in Louisiana, we have sort of a different twist on the same problem. People are putting up dams, weirs, etc in the marsh, claiming private property over water that is clearly navigable today; the typical claim made to justify this is that at one time there was no water there – we’ve had so much coastal erosion, little duck ponds are now big bays and small bayous are now as wide as the Mississippi in places. I certainly respect property rights, but how can someone claim open water that looks like any other section of marsh? They can’t claim that they owned the bottom, because the bottom didn’t exist originally.