EFFORTS TO PRIVATIZE WATERS ARE ON THE RISE AROUND THE
U.S. HERE ARE NINE STATES WHERE FIGHTS HAVE BEEN WON, BATTLES LOST, AND WHERE SKIRMISHES CONTINUE IN THE EFFORT TO MAINTAIN ACCESS TO AMERICA’S SPORTING TRADITIONS
• The Arizona Navigable Stream Adjudication Commission (ANSAC) has determined that the Colorado River is the only navigable river on which the public can float through private land without the landowner’s permission. Decisions from ANSAC have determined that the Gila, Upper Salt, and Verde rivers are all nonnavigable, and more determinations are forthcoming.
• You can be cited for trespassing in Colorado if you float over a streambed adjacent to private property, because the state has never declared what constitutes a navigable stream. A court case is currently underway between an angler and a landowner on the Arkansas River, but the state of Colorado has moved to dismiss the case, citing it doesn’t have standing.
• A state law, effective July 1, 2018, has barred the public from the drysand beach above the high-tide line in certain counties, setting up a publicwaters-access fight. The law held that any county that had on the books by January 2016 a “customary use law” allowing pubic access to the beach could keep it, but elsewhere private landowners could close the beaches.
The law is widely viewed as targeting the Panhandle’s Walton County, particularly, where 4 million tourists a year aren’t appreciated by wealthy beachfront landowners.
• Here, a colonial-era law guarantees public ownership and access to the state’s 2,600 “great ponds”— any freshwater lake larger than 10 acres—as long as you walk in over “unimproved land.” But increasing lakeshore development is shutting out more and more anglers as the lands around the lakes are being snapped up by private buyers.
• Upheld by the state supreme court in 1984, Montana’s Stream Access Law is considered the pinnacle of publicwaters-access rules: It allows the public to wade any navigable streambed and walk on the adjacent shore of private land as long as they stay below the ordinary high-water mark.
• Anglers in New Mexico applauded in 2014 when the state attorney general issued an opinion that all state fishing streams are public-domain waters and open to fishing and walking, even when flowing through private property. But that was an opinion, not a law. And in the closing days of 2017, the New Mexico Game and Fish Commission adopted a rule that allows private landowners to apply for certification that their streams are nonnavigable and off-limits to the public.
• In December 2016, the state supreme court let stand an appeal of a lower ruling that upheld the public’s use of the state’s beaches between the high-tide line and front edge of the dunes. A New Jersey couple had sued the town of Emerald Isle in a case that could have created a domino effect of beachfront owners
barring access to surf anglers, surfers, and beachcombers.
• In an unusual twist, South Dakota is struggling with how to manage surface waters that have appeared only over the last few decades. Increased rainfall in the 1990s created “nonmeandered lakes” in the northeast part of the state as low basins filled with water. Many of these developed prize perch and walleye fisheries due to stocking by the state and were long accessed by the public. But a law passed in a 2017 special legislative session allows landowners to petition the state to close nonmeandered lakes on their private property, resulting in a lockout of anglers who helped pay for the fish and improved water access in the first place.
• The Utah Stream Access Coalition has sued to challenge a law that makes it illegal for the public to touch the bottom of privately held streams and would eliminate wading access to more than 2,700 miles—43 percent— of state waters. Another court case is being tried that could formally recognize which streams and rivers are designated as “navigable” and therefore open to public access. —T.E.N.