Fly fishing’s supposed to be a gentle sport, where you revel in the solitude of nature, telling life’s everyday hassles they can kiss your ass while you’re on the river.
Sadly, you might not have much access to that river if the Siskiyou County Board of Supervisors’s proposed Natural Resources Plan declares the Upper Sacramento, McCloud, Shasta and Scott Rivers as “Non-Navigable.”
That means you’ll have no right to wade or fish those rivers between the high water marks — rights you’ve enjoyed (until now). (The adjacent landowner owns the streambed on non-navigable rivers).
Will you lose the right to wade the Upper Sacramento and McCloud Rivers?
Of course, one of the tests of “navigability” is whether the waterway has been used for commerce in the past, and the Upper Sacramento has definitely been used for commerce.
In other words, the Sisikiyou County Board of Supervisors wants to limit your legal right to access the Upper Sacramento between the high water marks.
Wow. Stream access issues finally come home to the Trout Underground.
Feeling gentle and relaxed? I’m not. I’m pissed.
The Cuckoo’s Nest
Politics up here are byzantine, and while the south end of the county is where all the growth is occurring — especially in sustainable industries — the power rests up north. Controlled largely by ranchers, agriculture, timber, mining interests, etc, the concept is they’re willing to manage natural resources for the good of those few constituencies while the rest of us — including fly fishermen — can basically kiss their ass.
If you think that’s an overreaction, then read these selected paragraphs from the draft version of the County’s Proposed Natural Resources Plan:
- Siskiyou County opposes any additional designations of Wild and Scenic Rivers in the County;
- All rivers in Siskiyou County with the exception of the Klamath River, are recognized as non-navigable streams, with bed and banks owned as private property by adjacent landowners. The Klamath River has been declared as ?navigable,? however, private property rights in mineral claims in the bed and banks are recognized;
They also want to classify in-stream suction dredge mining as an entirely “benign” activity, and get a load of these gifts to cattle ranchers:
- Current grazing allotments shall be continued and principally managed to produce forage to support maximum carrying capacity by domestic livestock;
- Traditional use of grazing allotments for livestock grazing will take precedence over other competing uses;
And if you think “competing uses” includes fisheries, you’re right.
There is nothing good for fishermen or the environment in this crazy document, which is bascially an anti-environmental manifesto from the early 90’s “Wise Use” movement — one filled with gifts to extractive industries (mining & timber), cattle interests, agriculture, etc.
(Can anyone explain why the rights of suction dredge miners are so carefully protected when fishermen receive no significant mention?)
It’s a divisive screed, and even the timber guys think it’s too restrictive. It also ignores all the progress that’s been made in recent years by ranchers and environmental groups working together.
Finally, it’s attempting to control things which this county has absolutely no jurisdiction over — a state of affairs which guarantees gridlock and lawsuits.
Sound good yet? No, not to me either.
Protect Public Access on the Upper Sac and McCloud
Contact the County Supervisors (e-mail or call — contact information below) and let them know you don’t support the Environmental Resources Plan, and that if enacted, it will harm the sustainable tourist economy in Siskiyou County.
The first two Supervisors actually sit on the committee (Armstrong is driving this policy), and if you only contact two people, they’re the two. (My advice? Send e-mails to everyone, but call Kobseff and Armstrong.)
Michael Kobseff
mkobseff@co.siskiyou.ca.us
(530) 918-9128
Marcia Armstrong
marmstrong@co.siskiyou.ca.us
(530) 468-2824
LaVada Erickson (she’s on our side, but isolated politically)
erickson5031@sbcglobal.net
(530) 926-1285
Jim Cook (McCloud representative — let him know how much the town stands to lose)
jimcook@snowcrest.net
(530) 459-0459
Bill Overman
bandm@nctv.com
(530) 842-5389
I know you guys get a dozen e-mails a day asking you to take action, but for anyone who fishes the Upper Sacramento, McCloud, Scott, Shasta Rivers, this one’s worth a few minutes.
Even if the “non-navigable” designation is thrown out, the other provisions are ridiculous, wholly unbalanced, and will ultimately damage our fisheries.
This is only the tip of this very messy, messy thing, with lots more to come. See you in the political arena, Tom Chandler.
[tags]siskiyou county, stream access, upper sac, upper sacramento river, mccloud river[/tags]
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Tom,
I have not noticed anything in the press about this “taking” of Public Trust Rights. Aren’t the paddlers concerned? Aren’t the local residents concerned that access to their rivers will be given over to a few landowners, if Ms. Armstrong has her way?
Ms. Armstrong is a great advocate of the irrigators. The irrigators use powerful pesticides and herbicides which can, and do, leach into the rivers; requiring taxpayers to pay for expensive cleanup – if the rivers are deemed non-navigable. As Ms. Armstrong knows, if those same rivers are navigable, they, and their tribs, are covered by the CWA – and her irrigator friends would have to clean up their act.
Tom, please keep us informed of developments. Loss of any Public Trust rights is a loss to all Americans. Thanks.
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More to come on this one. The “takings” language is sure to cause a coronary among the Wise Use crowd.
I have more news coming soon (dialup is cramping my style).
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The U.S. Supreme Court has held that the beds and banks of rivers and streams that are navigable for title purposes are owned by the states. (“Title” means ownership.) The court has held that when the original thirteen states took sovereignty of their land from the British after the American Revolution, they became the owners of the land underlying waters that were navigable for title purposes. The states that later entered the union also own the land under such waters, under the Equal Footing Doctrine. The beds and banks of these rivers and streams are a strip of public land, to be conserved for public benefit, even where the river or stream passes through private land. This strip of land is often called the “submerged and submersible land,” as opposed to the “upland.” Pollard v. Hagan, 44 U.S. (3 How.) 212, 11 L.ed 565 (1845). Economy Light & Power Co. v. United States, 256 U.S. 113, 65 L.ed 847 (1921). Sawczyk v. U.S. Coast Guard, 499 F.Supp. 1034 (W.D.N.Y. 1980). Montana v. United States, 450 U.S. 544, 452 U.S. 911 (1981). State of Oregon v. Riverfront Protective Association, 672 F.2d 792 (9th Cir. 1982). Alaska v. Ahtna, Inc., 891 F.2d 1401, (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990).
Who determines which rivers are navigable? As the U.S. Supreme Court has repeatedly said, “rivers that are navigable in fact are navigable in law.” If the river is physically navigable, for whatever purpose is in question, it is legally navigable. No official designation is necessary. Note that navigability for title purposes is a matter of federal law, even though it determines state ownership. State governments can make factual determinations of title navigability based on the weight of the evidence, and they can affirm that various rivers are navigable. But where they have not yet done so, the rivers that are “navigable in fact” are still “navigable in law,” and are still public. (They are not private until the state government gets around to designating them as public.) Also, note that state courts and legislatures cannot establish their own more restrictive standards of navigability; they must abide by the national standards. If they say a particular river is not navigable for title purposes, but the river is physically navigable in fact, their opinion is not determinative. Brewer-Elliott Oil and Gas Company v. United States, 260 U.S. 77, 43 S.Ct. 60, L.Ed 140 (1922). United States v. Utah, 283 U.S. 64, 75 L.Ed. 844 (1931). Utah v. United States, 403 U.S. 9, 29 L.Ed.2d 279 (1971). State v. Corvallis Sand and Gravel Co., 429 U.S. 363, 50 L.ed 2d 550 (1977).
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.)
Government agencies cannot sell or give away rivers to private ownership or control, because rivers are held “in trust” for the public under the Public Trust Doctrine. They must allow the public to fish, boat, and recreate as described above. They must conserve the strip of public land along navigable rivers, including its wildlife habitat and wetlands. They can manage recreation to conserve resources of public interest, but not simply to reduce or eliminate recreation. They can prohibit camping in particular areas, but not exclude it entirely from long stretches of river They must prevent adjacent landowners from bulldozing and landfilling along the banks of rivers. They must manage water appropriations so as to leave enough water in rivers for fisheries and navigation.
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Alex,
I don’t know the source of your comment above, but it is dangerously flawed in many of its assertions. The Public Trust Doctrine, which is the basis for most of our access to navigable waters, does not, for example, include widespread use of the banks. Camping is definitely not a public right.
Whether the beds and banks are private or state owned differs by state; what is common is the right of navigation and fishing (but not necessarily wading). CA owns the beds and banks (to the highwater mark) of navigable streams. These are administered by the CA State Land Commission and you should read their policy statement and detect the disjoint from yours.
Your statement:
“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.”
is particularly dangerous as it is completely false in many states (e.g., PA). Non-navigable rivers in many states can be private and historically private clubs have bought and managed many miles of river, excluding, legally, the public.
Your third point is also false in many particulars. Most states do not hold that the Public Trust Doctrine provides more than the right to “fish, fowl, and navigate” and, as previously mentioned, in those states where the beds of navigable rivers are privately owned, e.g., Maine, the question of wading has not yet been determined by law. In Maine you may walk the banks (which are all private except where the surrounding property is public) to portage or drive logs, but only for those purposes. What many states HAVE decided regarding recreation is that recreational navigation (e.g., kayaking) is a valid test for navigability rather than the more stringent test of commercial use.
You might wish to look at the great variability the states show in interpretation of the public’s rights to navigable water – the American Whitewater page ( http://www.americanwhitewater.org/content/Wiki/access:start ) is an excellent starting point.
Best regards,
Reed
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Hey guys — I’m making an update post soon, and writing an e-mail to all the supervisors laying out everything we’ve uncovered (and cc’ing a lot of interested organizations).
As a quick update, I’ll relate what I’ve been told.
First Marcia Armstrong — who is leading the charge — isn’t budging. She’s taking it very personally, but then again, so are the fishermen who stand to lose access.
Michael Kobseff — who I identified as a potential swing vote — is hardening his position, and my sources suggest he’s not going to change his stance.
As far as our end of the fight, the law is clearly on our side, and no amount of thinly veiled threats about the Upper Sac and McCloud will change that.
The local opposition is picking up speed, and wiht the topic set to be discussed at the November 6 meeting, I expect to be there. Should be lively.
All your good work will certainly be put to use.
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I promise, no more posts from me on this offpissing topic, at least until the call for contributors or snipers is issued. But I wonder if those who are fortunate enough to own riverfront or near-river property, such as the rock-thrower in Dunsmuir, realize that they would have no right to fish any section of the Upper Sac other than that which Marcia would regard as their property. There are lots of spots that border the river but have little, if any, truly fishable waters. And there are lots of near-river properties which, unless a neighborhood agreement exists, would confer absolutely no right to fish. I’m not buying a double-wide (sorry, “manufactured home”) in Dunsmuir until the good folk of the county rid themselves of these supervisors.
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Here is what I sent them:
I have been monitoring the ongoing efforts by the BOS to impliment the “Statement of Policies on Natural Resources” plan
and have some comments on it and it’s draft.
My Grandfather, Ed Van Wormer, was the assistant engineer who surveyed and planned much of the railroad from Redding
North when Shasta lake was installed. As well he was influential in the building and surveying and engeneering of Shasta Dam
and Trinity Lake.
Our family has been involved in Dunsmuir and Mt. Shasta life for over a hundred years. My great great grandfather, Sam Fisk, was
the first sherrif of Siskiyou County when it was created.
I have read the Statement of Policies on Natural Resources and find it appaling. It trashes the rights of the general citizen of Siskiyou County
to enjoy and steward the wonderful Rivers placed at our feet, not by some corporation, but by GOD for the enjoyment of all.
The introduction of the “Dredge Mining” allowance is beyond attrocious. This can ONLY Be sponsored secretly by some major mining
interest ( or cattle interest perhaps ) and those relationships will be made public eventually.
I will attend the Meeting on November 6th with the following questions:
1. Considering that Dunsmuir and McCloud really only exist now because of the Tourist industry, most notably fishing,
How will those communities survive when their ONLY natural resource is no longer accessable because of a rash of new fences
and barracades on the rivers, not to speak of the pollution caused by DREDGE MINING?
2. Considering that WATER is Siskiyou County’s only real resource, why would you be privatizing and thus risking it’s quality, accesssability
and free nature of the resource to residents? Did Coca Cola buy you? Pepsi?
3. Will you all open your BOS pocketbooks and encourage a full accounting of your personal finance both before and after this measure, to make
bloody sure none of you are on the take from a major exploitive interest? (Because that’s sure what it seems like here)
4. Will you subsidize Dunsmir and McCloud when their one and only marketable resource is gone, the fishermen stop coming and the money they
spend at local fly shops, for food and lodging disappears? ( I spend about $400 a month to come to Dunsmuir to fish and enjoy the River )
Sincerely I hope this errant, misdirected plan falls flat on it’s face. The environmental impact alone could destroy the beauty and purity of the area
not to mention causing incalculable health threats to the public and setting us back dozens of years environmentally.
If you want a PERFECT example
of what private water rights will yield simply drive to upper Soda road in Dunsmuir, to the fountain which watered and delighted passers by for hundreds,
hell THOUSANDS of years, now bull dozed and polluted with garbage by the NATIVE BORN DUNSMUIR Owner. This will become the norm if your plan
becomes law.
It’s like George Bush landed in Siskiyou County and has been given the reigns of the water rights!
MY God what myopia.
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Oh baby. Get em boys.
“Flush em out — git em runnin”.
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HOOOOOOWWWWLLLL !!!!
One more comment… I am literally the last person alive in California to have seen a native Timber wolf, up by Mumbo Lake in the Siskiyous.
It was in 1958, I was 5. We were car camping, my grandpa and dad were “rubber boating” the lake and Mom, Grandma and I were sitting eating lunch on the tailgate of our Station Wagon…
Our dog, “Tuffy” who was 1/2 coyote, suddenly stood up, slunk under the car and commenced whining… we looked up and there was the most beautiful wolf in spring coat, kinda scruffy, but fully chest high and just magnificent. He had entered the clearing and was sniffing our roast beef sandwiches.
He stood maybe 40 feet from us totally at ease, for maybe 5 minutes, just watching and sniffing.
Dad and Grandpa had now seen him too and were paddling like hell for the shore to get a gun… unnecessary as he just turned and slowly walked back into the forest.
So the part about not re-introducing Wolves or Grizzlies back into the ecosystem just PISSES ME OFF GRANDLY. The bears couldn’t survive anyway as they needed the SALMON to get good and fat, just like the INDIANS which are also now gone as hell.
Let’s see… First the Salmon were killed by the Miners, then the Bears all killed by trappers and hunters, the Indians anihilated almost completely by the miners and trappers, then Shasta Dam and Red Bluff Dam literally presenting an insurmountable obstacle to the anadromous waves of Life and PROTEIN coming up the river each fall, rendering those populations effectively like the Indians, all but gone. (Unless you count Casinos and/or Farmed Salmon) …
Now they simply want the whole bloody rest of it. That’s all, What’s the big deal? What do we expect from the Sons and Daughters of Miners?
In some ways, we are like the Indians, and we’d damn well better wise up like the few remaining tribes have done or we’ll suffer the same fate as the rest of them, and be fishing in paid ponds owned by the FLY SHOP instead of walking freely up freestone western creeks and rivers, imagining watching eyes and canine howls from the forest in the dusk.
Bring back the Bears AND Wolves, and may they raid the MacMansions being built all over Mt. Shasta and that 1st. St. Debacle and drive the invaders OUT !!
HOWWWWLLLLLL !
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The HOWL echos from the Upper Columbia.
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There’s a lot to dislike in this “Natural Resources Plan” – not just the navigability issue I’ve focused on here.
Protection for suction dredge mining?? Provisos against the reintroduction of wolves?
It’s interesting that while the supervisors are trying to kill every vestige of a sustainable, fisheries-based economy, others are spending their time figuring out that salmon and steelhead caught by sport anglers on the Klamath (the Supervisors oppose the Klamath dam removals too) are worth about $200 each to the local economy — and that those “resources” don’t ravage the landscape, overgraze, overcut or otherwise mutilate everything in sight.
Howl away, Undergrounders. There’s still much to do.
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CLOSE THE RIVERS—dredge for minerals, and log the hell out the forest–no people on the river, nobody sees a thing, then no harm,right? add to this no water due to dewatering of the river. might as well be the mojave desert…..we don’t live here to stay in our homes and be hermits. we are here to experience the outdoors. we give in here and who knows were they will stop(they won’t stop anyways)——wasn’t the scott used for fur trading to connect with the mighty klamath-COMMERCE–this is just stupid, I heard that local farmers int scott vally are mad due to seeing surveyours/fisherman snooping around “private property”—just hearsay
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Here’s what I sent to each of these guys:
I live in Virginia and visit the Redding / Dunsmuir area two or three times a year to fly fish for trout in your great rivers and streams. I was shocked to read about the current initiative under consideration that would designate many of your great rivers as non-navigable.
If that happens, I’ll go to Montana instead. I imagine you get a lot of tourist traffic headed to Northern California that would go elsewhere – probably a bigger impact on your economy if you consider the folks that drive up to the Mt Shasta area from other locations in California.
I don’t know how much your region depends on sportsmen for economic health – but passing this resolution will certainly cut off a chunk of the money that flows into the economy and the associated taxes from folks like me. In my case, you lose the hotel, guide and meals revenue. In addition, I always stop at the local fly shops and purchase the latest top producing lures and other equipment. That will be gone as well.
I just do not see an upside to this decision… and urge you to vote it down.
thanks,
Steve Moore
Woodbridge, VA
Trout and Bass Blog: http://www.switchfisher.com
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Tim – I just updated my blog with a call for my readers (I’m not as popular as you, but I do get around 9,000 visits a month) to band together to help.
Here in Virginia, something similar happened with the King’s Grant issue on the great Jackson River. As a result of the King’s Grant to the landowners in the 1600’s, they own the fish in the river and the birds in the sky – NO access for anyone else.
This is similar. Hope we can beat this back.
Here’s a link to the post:
http://www.switchfisher.com/articles/Urgent-KeeptheJacksonfrom.html
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Tom,
I put a link to this article on “The Contemplative Angler”. I hope you don’t mind.
Warmest regards,
Reed
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Well, another thing to think about: When I was a child, my Father and Grandfather were consummate Klamath Steelhead experts. They fished the river from opening week through the season, and as my Grandfather was a SP Surveyor and Dad a Phone man, they had keys to gates everywhere, and fished the entire river.
Neither ever fished the Klamath in those days however, without a Sidearm. There were many confrontations with my Indian Brothers about the rights of White People to fish or even Be There, and the sidearm usually carried more weight than rocks and bravado.
Will we see a return to the “good ole’ days” if this passes? There are fishermen who deem any body of water theirs by right of intent, and property owners who fence every possible corner of their holdings. Neither is right, but the confrontations will escalate and become violent if this passes.
My 2ç worth.
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Siskiyou County Supervisors November 11, 2007
Subject: Draft Environmental Plan: Statement of Policies on Natural Resources
I am a writer and business consultant with a home on a hundred foot riverfront lot in Dunsmuir, Butterfly Avenue. I am very opposed to many of the ideas in your recent “Statement of Policies on Natural Resources.”
First, defining the County rivers (except for the Klamath) as “non-navigable” destroys fishermen’s, kayakers’, rafters’, and inner tubers’ access. In the United States with a great history of public ownership of parks, rivers, lakes and streams, this designation would deny these citizens’ right to recreate and enjoy many of our beautiful northern California rivers. It is fun and exciting to watch kids tube down and watch fishermen catch a trout in the river behind our home. If this policy were to be adopted, then, like much of Colorado, the corporate, the wealthy, and the private clubs would own and control huge amounts of river access for the benefit of the few.
Second, the policy supports mining which is environmentally destructive, an eyesore. Why are the rights of suction dredge miners so carefully protected when fishermen and rafters receive no support? In-stream suction dredge mining, an entirely “benign” activity? Ridiculous. This advocates mining monetary profit over ecology and environmental concerns. Is that your mission? It certainly does not represent the concept of stewardship. Reviewing the policy statement, I am wondering what motivates some of the commissioners to support such a disaster.
Further, limiting fishing/rafting/kayaking access decreases tourist dollars to an area like Dunsmuir that drastically needs them. The lawsuits this policy will generate would have a negative impact on county officials’ resources, and a negative impact on property values as riverfront will increase in value but the other town properties will correspondingly decrease with the limiting of recreational opportunity. As a riverfront property owner this policy would benefit me personally but would harm the community as a whole. It is your responsibility to protect the public against self-serving business interests and protect everyone’s property values. The proposed policy would be detrimental to the Dunsmuir, McCloud and Mt. Shasta economies.
So, whom does this policy serve? Mining Companys, big agriculture, ranchers, and the timber industry. Hmmm. I urge you to reconsider your responsibility to the majority of people in this county and remove the “non-navigable” language from the plan or scrap the plan altogether.
Sincerely, Charlie Price 6027 Butterfly, Dunsmuir CA
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This is truly a step backwards for environmental protection. Any type of dredging activity is destructive to the environment. This is simply a fact. it seems to me that the local politicians were easily convinced about the necessity of their decision. That is very unfortunate. I hope they did not actually follow through with the declarations you have outlined here.
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Reels: Ultimately, the Land Use Policy was killed. Read about it here.
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While the federal Government is the determining body for whether a river is navigable it’s really local jurisdiction who determines the issue for the most part. If a county judge determines you are trespassing, the cost of trying to overturn the decision escalates dramatically and not worth fighting because appealing judges do not like overruling other judges without clear evidence of misinterpretation.
Most people think that the high water mark is the highest level that the water has risen. In actuality it is the normal high water flow, not including flood or storm related runoff. Many streams have charts of what is the normal flow so it’s pretty easy to determine the high water mark by looking at the chart. Throw out the storms and unusually high peak flows and that is what the legal high water mark is determined to be by the state of California. For the most part people trespass when fishing because it’s pretty hard to get to or stay in the river when fishing a stretch.
There are also exceptions to the high water mark on navigable rivers. The two most prominent are Mexican Land Grants and Federally Deeded Mining Claims. Property that was a Federally Deeded mining claims in the mid 1800, or are part of the original Mexican Land Grants parcels are not subject to the high water mark determination. Many of these deeds state that while the water is passing through the property it is owned by the land owner. When it leaves the private property ownership goes back to the state.
On the dredging issue, not all dredging is bad for the fishery. If done properly it actually can improve the spawning areas for fish to lay eggs. If large holes are left that trap fish that is against the law and certainly something that should be reported. There is a sizable fine for do this.
lastly, while it would be great to have all rivers and stream open to the public, private property should be respected. If you have ever gone to fish public areas where garbage is spewed around the rivers edge you may understand why private land owners do not want people coming on to their property and leaving their garbage for them to clean up.
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Thomas: I disagree on several points. The local judge doesn’t get to reinterpret the law, and overruling incorrect decisions is actually the job of appeal judges.
It’s possible not all dredging is bad for a fishery, but it’s also true that most dredging isn’t very good, and done at the wrong time of year, it can be extremely damaging. It relocates benthics downstream; integrates toxic heavy metals from the bottom back into the water flow, and can seriously damage spawning redds (of all species), decimate fry populations, etc.
And while private property should be respected, the point of this battle was that the public’s legal right to access rivers wasn’t being respected, and yes, there is still a great deal of public access being improperly denied on the Scott and Shasta Rivers.
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Mr Chandler,
I do not know your legal background, but I and several attorney’s I have hired have done extensive research on the high water mark issue in California. The unfortunate truth is the local jurisdiction determines the trespass laws when it comes to high water mark. The defendant would be responsible for proving that the river was navigable and that he stayed below the high water mark. That alone is a very difficult to prove. Just what is the high water mark on any river requires a considerable effort in showing the history of the flows and surveying the property. Who is going to spend tens of thousands of dollars for a survey in order to prove a judge was wrong.
I have been involved in thousands of lawsuits over the last 40 years and know something of appeals as I have been through hundreds. The burden of presenting a preponderance of evidence that the hearing judge misinterpreted the law is upon the appealing party. Judges like doctors give the benefit of any question to the judge that heard the case. Overturning a decision is pretty rare. In the case of high water mark there are differing pinions all over the state. The most often used opinion is that from the Jan Stevens retired Ca Attorney General “Public Trust Document” Unfortunately, this is an opinion that was made after Mr Steven retired and has no legal standing. The title is misleading and was added after it was written for the purpose editorial purpose.
There are thousands if not millions of opinions on what constituent the high water mark throughout the state and the country. Unless someone is going to take the issue to the US Supreme Court it will most likely be decided locally. In California alone there are thousands of local decisions that conflict with each other. So yes, the determination of trespass and high water mark are local decisions.
The biggest obstacle in this matter who be showing how you got to the water without trespassing and staying below the high water mark at all times. I have fished many rivers and it is just about impossible to stay below the high water mark at all times. It is just too easy to step out of the river to go around a deep pocket or large obstruction.
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