Right to fish in marina from own boat (not on docks)

[ranger395vs]

I enjoy fishing in marinas occasionally when tournament rules allow this or often when just fun fishing from my boat. I have been told on at least four occasions by marina employees that I can't fish in various marinas. I am certain that I have the right to fish in there as long as I stay off their docks and don't interfere with their ops. . Recently I was told by a concessionaire that I was not allowed to fish in the marina at Oak Bottom marina on Whiskytown. I told her I had a right to be in there and that the water is public. She called the park Ranger who came down and verified that I did have a right to fish in there and I continued to do so.
While this verifies my thinking that I am correct, I would like to know the exact legal law so I could make a copy of it and carry it with me so the next time I am told "no fishing in here" by a marina I can cite the exact law (code) which backs me (and other fishermen) up.
Any help will be greatly appreciated and I will pass it on to others.

[Dan McKenzie]

Here is a link to the state site.

http://www.waterrights.ca.gov/applicati ... fobook.htm

[DeltaDan]

Ranger- This has all our legal rights explained and broken down.

You can print out both pages on a single piece of paper by printing page two on the back.


I have about 15 printed out and in a ziplock bag in my boat for this reason.


http://www.norcalwaterfowl.com/forummis ... erLaws.pdf

[ranger395vs]

Thanks Dan. I,m not certain that both Delta Dan and Dan McKenz.ie are the same person but I do thank you both for the information I was seeking. I,ve printed it out and will keep it in my boat for the next time I am confronted.

I feel it is important to exercise our rights and not be told where we are allowed to fish. They own the docks but not the water and need to be informed of this.


Thanks again,
Paul Kinney

[DeltaDan]

My pleasure in sharing it with you and everyone else paul.

Basically a few duck hunters on the Fefuge Forum are some legals.

They had an original sit down for a pow-wow of objectives to cover in slices -- then comprised/composed the rest alone till they had a final draft that is undisputable of our rights in any cout of law

-- And they shared it with us all !!!



Cheers to them !!

[JRock]

How about those little ropes and log booms dock owners sometimes put to keep other boats from navigating?

[DeltaDan]

(Just taliing about the delta here)


It Depends where you are fishing--- Yes--- Some have the right for the houses at Bethel Island for sure... and mabey some other older places on the delta as well ..... because the land polt lines for the houses on the lots actually go out into the water when they were set up in the 40's-50's -- They actually hove ownership up to about 50' on average of the delta waters and some way past.




Different story in DBay where they have no water rights for property lines. They tie up to a mutually agreeing neighbor -- What you gona do? cut the rope or just fish in more friendly waters? You can freely fish over that rope with a weedless lure.


I imagine that what turned those property off in the first place was the fishers hitting their boats with plugs and sinkers....... Lido Bay has quite docks that are like that.


--- Or they have planted last years crop of used Christmas trees before the boy souts picked them up.

[troutnut]

Freedom of Navigation in California

[circa 2003-08-13]

For tips on approaching landowners to ask for access permission, please read linked article by Jason Robertson on the AWA website.

Navigability can be generally defined three different ways:

State Title test: the state owns the bed of a waterway.
Federal Commerce Clause: the waterway is susceptible to interstate or foreign commerce.
State-specific tests for navigation. Some states (CA, MT, NY) have liberal standards giving the public a right to travel on waterways which may not be legally navigable under either of the first two tests. This is usually done by public trust doctrine, navigational servitude, recreational standard, or other state-specific arrangements. Some states (CO) have very limited or uncertain rights to navigate under state law.
First let's remember Article X Section 4 of the California Constitution:

CALIFORNIA CONSTITUTION ARTICLE 10 WATER

SEC. 4. No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.

Obstruction of the free passage or use of a navigable waterway is a civil offense:

CIVIL CODE SECTION 3479-3484

3479. Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Obstruction of the free passage or use of a navigable waterway is also a criminal offense:

PENAL CODE SECTION 369a-402c

(370.) Section Three Hundred and Seventy. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance.

The following is part of the code concerning the creation of parcel subdivisions adjoining navigable waterways, and it provides clear legislative intent.

CALIFORNIA CODES GOVERNMENT CODE SECTION 66478.1-66478.14

66478.1. It is the intent of the Legislature, by the provisions of Sections 66478.1 through 66478.10 of this article to implement Section 4 of Article X of the California Constitution insofar as Sections 66478.1 through 66478.10 are applicable to navigable waters.

66478.2. The Legislature finds and declares that the public natural resources of this state are limited in quantity and that the population of this state has grown at a rapid rate and will continue to do so, thus increasing the need for utilization of public natural resources. The increase in population has also increased demand for private property adjacent to public natural resources through real estate subdivision developments which resulted in diminishing public access to public natural resources.

66478.3. The Legislature further finds and declares that it is essential to the health and well-being of all citizens of this state that public access to public natural resources be increased. It is the intent of the Legislature to increase public access to public natural resources.

The following from the CA Recreational Trails Act shows more good intent:

CALIFORNIA CODES HARBORS AND NAVIGATION CODE SECTION 68-68.2

68. The director shall cause to be prepared, and continuously maintained, a comprehensive plan for the development and operation of a statewide system of recreational boating trails. The plan shall be the boating trails element of the California Recreational Trails System Plan as required pursuant to the California Recreational Trails Act (commencing with Section 5070 of the Public Resources Code). The plan shall be prepared and continually maintained in accordance with provisions of the California Recreational Trails Act and shall, to the maximum extent practicable, be compatible with other elements of the California Recreational Trails System Plan.

68.2. In conformance with the California Recreational Trails Act, the Legislature hereby finds and declares that there is a statewide and continuing interest in the public's use of the state's inland waterways for recreational purposes. The Legislature further finds and declares that there exists a need to provide for recreational resource planning of the waterways in a manner that provides access and utilization for recreational purposes, consistent with the provisions of the California Recreational Trails Act.

This shows legislative intent to provide access to navigable waterways from new state highway/bridge construction:

STREETS AND HIGHWAYS CODE SECTION 70-86

84.5. During the design hearing process relating to state highway projects that include the construction by the department of a new bridge across a navigable river, there shall be included full consideration of, and a report on, the feasibility of providing a means of public access to the navigable river for public recreational purposes.

This shows legislative intent to provide access to navigable waterways from new county bridge construction:

STREETS AND HIGHWAYS CODE SECTION 940-991

991. Before any bridge on a county highway is constructed over any navigable river, the board of supervisors, after a study and public hearing on the question, shall determine and shall prepare a report on the feasibility of providing public access to the river for recreational purposes and a determination as to whether such public access shall be provided.

This shows legislative intent to provide access to navigable waterways from new city bridge construction:

STREETS AND HIGHWAYS CODE SECTION 1800-1813

1809. Before any bridge on a city street is constructed over any navigable river, the legislative body of the city, after a study and public hearing on the question, shall determine and shall prepare a report on the feasibility of providing public access to the river for recreational purposes and a determination as to whether such public access shall be provided.

Thanks to Ron Rogers for compiling these quotes.


Source: http://americanwhitewater.org/archive/article/325/

[Cooch]

How about those little ropes and log booms dock owners sometimes put to keep other boats from navigating?

Those water front home owners that put up the lil ropes and booms from dock to dock or shed to shed, are mostly doing so to keep the Water Hyacynth and Perrywinkle out! Granted, some of them put up the booms to keep boaters away from their dolks and personal property, simply because of vandalism or neglagent boaters, (can ya blame em?) but that is more the exception than the rule.

[Andy Giannini]

Dan you are mistaken here, about the property lines extending underneath the water. Not that some titles may show that, but that the owners can rope it off.

Even if they own the underlying property, underneath the river, they do not have the right to restrict boat traffic. Nor can they shoot at airplanes overhead to defend thier own airspace.

The one thing to note about these tresspass issues and the waterway, you may not tresspass to get to that river. You must enter at a public access or your own private one. That's why private launch ramps can charge for launching, its private property. Also I may not tresspass with fishing rod in hand, crossing other people's waterfront on foot declaring,

"Its my constitutional right!"

(Well, I could walk around under the mean high water mark, if I entered at a public point, or from my boat. I just can't cut through Cooch's side yard from the street to do so. That would be tresspass.)

One more thing about docks or marinas, they actually encroach upon public waters, and must have permits to do so. The river, lake or whatever was there and a public access BEFORE an adjacent property owner applied for a permit to build something out there. Just because they applied for a permit and built the structure, does not make the waters surrounding it private. It is still a public access. Many people get the notion, that because they built a dock they are in fact the owners of that space out there. They just own the dock, not the river around it, or the fish underneath.

.02 A.G.