# Utah river access clarified



## COUNT (Jul 5, 2005)

Very cool. Are there any Utah runs that this will affect?


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## Canada (Oct 24, 2006)

Big deal for creeking if you want first D's of manky water. The bigger issue is fishing. A ton of ranchers prohibit access to their land and then rent it out as private. This will open that up. The LDS church has a massive tracts of land that have incredible fishing. Parties will be working up those up those creek beds for miles into mountain lakes that have huge fish. Two years ago I puled a 26" 8.5# rainbow from one such lake. The boating will be interesting. When you could actually hike up the stream bed, is it running at a level that is boatable. I know I'll be looking at some TOPO's.


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## COUNT (Jul 5, 2005)

Yeah, definitely. For paddling, a lot of it depends on how you interpret what the streambed is. If you are allowed to hike up next to the river or in the shallows as long as you stay within the natural high-water mark, it will most certainly be beneficial.


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## DurangoSteve (Jun 2, 2006)

I'm a whitewater enthusiast and fly fisherman who finds this a really touchy subject: I own frontage on the Florida River. I could care less if boaters need to step out to scout a particular piece of water on my "property." That is safe and prudent, and Colorado law should specify that as an allowable "trespass." There are obviously unreasonable land owners who don't share my view. My BIG problem is anglers. I have a section of water that is an amazingly healthy trout habitat BECAUSE it is private. Public access decimates wild fish populations. Hardware and bait slinging morons hurt and kill fish, the evidence is clear and compelling. Allowing any person, no matter what their fishing "ethics" are to damage or destroy fish habitat on private property is craziness in my view. Boaters do NOTHING to compromise my chunk of river. Fishermen do.


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## COUNT (Jul 5, 2005)

Hmmm, this is interesting. So what would you propose we do about that? (Hypothetical, because this is not a Colorado law)

Limit recreational access to boaters? Anyone but fisherman? Catch and release only? Flies only? I could see allowing access to anyone but not allowing fishing on stretches within private property (but allowing people to hike/paddle the river through to public places where it is legal to fish).

Some of these seem better than others but I don't think I'm happy with any of them.

Thoughts?

COUNT


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## Canada (Oct 24, 2006)

It is touchy and big $$'s are at stake. I know a membership at one premier fishing resort here starts at $75K. Now, anyone can hike into that same property in the stream bed. In Colorado I was constantly angered by the bait fishermen in quality waters. I've seen guys walking out of the Conejos with full stringers. I understand and sympanthize with your concern. This is a win for boaters. It is a win for public access anglers. It is a loss for private property owners.


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## caspermike (Mar 9, 2007)

Last time i heard, bait fishermen kill less fish compared to fly fishermen. and plus we don't stand in the middle of the river scaring them out of there natural habitat


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## freexbiker (Jul 18, 2005)

Although I'm a fly fishing elitist myself, I don't think hardware and bait fisherman do any more harm than a fly...either way your tricking fish to eat something and dragging it in on a winch. Considering I'm from Wyoming I actually believe public water access would help fisheries. In Casper we have the Grey Reef section of the North Platte, where it isn't uncommon to see 70-80 boats in a single area because when the water isn't clear there is only one section of river that fishes well.That area is the only place you can anchor, get out and wade fish...Its also one of the best holes on the river. If Wyoming had the same access as Montana or now Utah. I think the cable hole would have much less pressure and the river in general would be a better fishery... 
My .02


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## billcat (Jun 3, 2008)

As someone who doesn't fish or understand what motivates fishermen, I'm lost. 

You seem ok with people who fish one way but not another? "In Colorado I was constantly angered by the bait fishermen in quality waters." So fishing with flys is cool but using bait is bad? How does using bait cause anger and name calling?

I'll admit I'm really lost here, but this seems like an over specific NIMBY argument.


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## DurangoSteve (Jun 2, 2006)

I'm a fly fishing "elitist" who practices catch and release exclusively. I haven't killed a fish for years. I wish more people fished "my way," but I'm not naive enough to believe that's gonna happen.

Under current Colorado law, a person could float thru my stretch of river and fish any way that is allowable by law... which is pretty much using any method except dynamite. The thing that prevents that, at least in my backyard, is the nature of the river: it's narrow and ledgy and there's no place a fisherperson in a boat could eddy out and cast.

I think codifying the right of boaters to scout rapids on private water is the answer. 

I recognize that I'm a real selfish NIMBY when it comes to stream access... when it means angler access. I've got a slice of dry fly heaven and I share it with my pals, but not the general public. That's why it continues to be dry fly heaven. Powerbaiters would decimate my little fishy friends.




COUNT said:


> Hmmm, this is interesting. So what would you propose we do about that? (Hypothetical, because this is not a Colorado law)
> 
> Limit recreational access to boaters? Anyone but fisherman? Catch and release only? Flies only? I could see allowing access to anyone but not allowing fishing on stretches within private property (but allowing people to hike/paddle the river through to public places where it is legal to fish).
> 
> ...


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## DurangoSteve (Jun 2, 2006)

I disagree completely about the hardware/bait impact on fish. Trout take a fly pretty lightly. If you don't set up at the right time, the fish is gone. They realize it's feathers and fur and NOT the buggy protein wad they were after. Even the smartest trout will INHALE a worm. They KNOW it's a juicy protein wad immediately and they gulp. 

I've waded Grey Reef and it's pretty awesome. Haven't floated it. They big difference with that water vs. small mtn rivers like I live on is the biomass. Tailwater fisheries like Grey Reef are loaded with midges and scuds. The San Juan river near Aztec, NM is a similar kinda fishery. Mountain rivers just don't have that kind of food supply, and deep holes, which grow lots of big fish.



freexbiker said:


> Although I'm a fly fishing elitist myself, I don't think hardware and bait fisherman do any more harm than a fly...either way your tricking fish to eat something and dragging it in on a winch. Considering I'm from Wyoming I actually believe public water access would help fisheries. In Casper we have the Grey Reef section of the North Platte, where it isn't uncommon to see 70-80 boats in a single area because when the water isn't clear there is only one section of river that fishes well.That area is the only place you can anchor, get out and wade fish...Its also one of the best holes on the river. If Wyoming had the same access as Montana or now Utah. I think the cable hole would have much less pressure and the river in general would be a better fishery...
> My .02


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## caspermike (Mar 9, 2007)

DurangoSteve said:


> I'm a fly fishing "elitist" who practices catch and release exclusively. I haven't killed a fish for years. I wish more people fished "my way," but I'm not naive enough to believe that's gonna happen.
> 
> .


 
i guess you never seen them belly up after you rip there stomach back out? don't tell me this has never happened to you or you have never caught fish. its a lie to say you havan't killed a fish in years when you don't know if that fish lives or dies after release. you are lost man.


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## jbarnow (Sep 10, 2007)

There are many other states that have this same policy. Oregon is a good example and I used to camp on a section of the Umpqua that we would float. You would maybe see 1-2 other boats during an entire weekend if that. The fishing was great and the impact was minimal but the land owner would harass us anyway. We weren't breaking the law but they would still threaten us on their four wheelers with guns in hand and we would remain. 

I can see how a land owner would like to perserve their privacy and not allow people to fish on their land but as a fisherman who has spent a lot of time trying to catch fish this law is unjust. It is greedy for you to say that I am the only person with the right to use this section of river. The state as is has few enough legitmate good fishing spots and I believe that the impact to your land would be minimal as long as access isn't easy. The law does state you cannot cross the property to access the river. For a lot of land owners they will never see an increase in pressure.

As for fishing ethics bait fishing will always be tougher on the fish for the fact that the fish will stomach bait much more often where as fly or lure fishing almost always hooks the fish in the lip. Once released it is hard to say whether the fish will live or not but I believe I have read statisics that say 30% of released fish die in a river habitat. Salmon in the ocean are more fragile if released I believe the stat is 50%.

I have also caught fish a week after losing a fish to find my fly in the fishes lip. Fish are more resilient than most people think so long as they are revived before released.


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## Canada (Oct 24, 2006)

*bait versus fly*

Fish swallow bait, and thus fish are often killed removing the hook from deep in their throat. Flies hook around the mouth, and are much easier to remove and fish mortality is greatly reduced. This summer I've caught several hundred fish, and all have been returned to the water. I have not killed a fish (to my knowledge). Catch and release increases fish size and in my mind the quality of the experience. Parties who harvest large numbers of fish from areas that are catch and release only and fly only, (quality waters) angers me. Illegal harvesting of any game angers me. There are guides who post here who could give alot better responses than me. (RMPEDIE) This is a difficult process to manage. Too many fish in a river result in stunted growth and smaller fish size.

This is far from the original topic. Acces to the river is something we can all agree on. On several fantastic runs in colorado, access is tennable at best. Clarity would benefit boaters. This ruling would proivide clarity on the following Colorado runs off the top of my head:

Gunnison tail waters below Tailor.
Sportsman Paradise
Blue river (I've heard of rafters being ticketed for boats dragging on the bottom, to have the tickets later thrown out in court)
The run up in steamboat (Elk or fish?)
cottonwood (although why would you want to flaot the dude ranch section?)

I bet you all could list thirty more without much effort. I didn't want my personal fishing thoughts to derail this thread. I was just supporting Durango Steve in that if I owned a beautiful creek, I wouldn't want some dude walking up it and harvesting out all of the fish.


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## caspermike (Mar 9, 2007)

that doesn't even make sense. that fish see worms, flies, water bugs, leechas as food, they are not going to swallow something differently because its smaller. that fish is gong to catch food and swallow automatically he not going to try and chew the fly with his lips. seriously people are you retarded? this knowledge is coming from the profisherman sitting right next to me in my office. guided around jackson for over 20+years and does it all.

setting your fly or hook is what sticks it through the lips because it is sitting in his mouth. more than likely about to be swallowed.


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## jbarnow (Sep 10, 2007)

Mike, Fish strike for different reasons. Worms and eggs are to eat, things like streamers which imitate minnows can be out of aggression and territory. I've caught fish before who's mouths were full of eggs, nymphs, etc that had not been stomached. Often times if you look into the back of a fishes throat you can easily figure out what they are eating.

If you catch a fish that swallows the hook and you want to or are required to release it cut the line as close to the hook as you can and let it go. Believe it or not fish can pass a hook and live. Probably not oftenly but that's what the gov't tells you to do if you catch say a protected steelhead that swallowed the hook.


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## Canada (Oct 24, 2006)

caspermike said:


> seriously people are you retarded?


Thank you for once again personalizing this. The strength of your position is inarguable, and is matched only by the class you demontrate with your restraint in comments like this. I will turn to trout unlimited and the division of wildlife for my guidance on these issues.

The thread was about access.


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## DurangoSteve (Jun 2, 2006)

Whoa, calm down! Calling people liars is pretty strong stuff.

I am extremely careful catching and releasing. I try very hard NOT to touch the fish or net it, but if I must, I wet my hands and/or use a soft bag net. If a fish takes my fly too deeply, I cut the fly off. The hook will dissolve on its own and the fish will dislodge it.

Research indicates that 90% of fish caught on flies will survive after being released. Fish caught on bait typically suffer a much higher mortality rate. About one third (33%) of fish caught on bait will die after being released and over 60% of deep hooked fish die. In general if the fish is bleeding it will not survive.




caspermike said:


> i guess you never seen them belly up after you rip there stomach back out? don't tell me this has never happened to you or you have never caught fish. its a lie to say you havan't killed a fish in years when you don't know if that fish lives or dies after release. you are lost man.


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## COUNT (Jul 5, 2005)

Sorry if I derailed the thread. I thought the access and type of recreation discussion was one that could be further examined. I have certainly learned and further developed my opinion on the matter.

COUNT


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## DurangoSteve (Jun 2, 2006)

Yep, the thread was about access. That Colorado law doesn't allow boaters to step out of their boats on private stretches of water is craziness and dangerous. 




COUNT said:


> Sorry if I derailed the thread. I thought the access and type of recreation discussion was one that could be further examined. I have certainly learned and further developed my opinion on the matter.
> 
> COUNT


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## Canada (Oct 24, 2006)

Count, you're cool.

The competing interest here are huge. Would I want a bunch of fisherman or hunters going over my property? No. Would I mind if kayakers stopped to scout? no. Would I mind if hundreds of commercial boats floated through my property? probably. Would I mind if rafters harvested fish out of water through my property? It would depend? This ruling will be clarified when an assault occurs. I would anticipate that won't take long, although it will take years for it to go through the courts.

Earlier everyone called for a mass float on a creek. I responded saying involve AWA. The competing interests here are very divergent and the consequences of any ruling are big.


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## DurangoSteve (Jun 2, 2006)

There are some pretty powerful moneyed interests who will (and have) battled any changes to the stream access law. 

Last night several kayakers floated past our house while my wife and I were out on our deck. Everyone was smiles. We love seeing folks enjoying the river. I contrast that with a situation that developed several years ago. My wife and I came home from a picnic up in the mountains with my folks. I was stowing the cooler on the deck and there were two guys standing directly below my deck (which is 20 ft. above the river on a bluff) and they both had stringers hanging from their belts with EASILY 20 fish each... that they had killed in my backyard. I explained that they were trespassing and that they had to leave. They wanted to argue the finer points of the law... they didn't understand. I suggested they could discuss it with the Sheriff. Grudgingly they left, telling me to "fuck off" as they stomped away. Silly twits.

Strangers who knock on my door and ASK if they can fish always get the thumbs-up if they're catch-and-release fly fishermen who use barbless hooks and understand how to gently and safely release fish. I'm really not a *completely* greedy prick.

Our river has a self-sustaining, naturally reproducing population of fish. Because it is private water, it isn't stocked by the state. At least on our little stretch, there are no predators other than eagles, osprey and herons. I don't kill fish and neither do our neighbors across the river. Predation from humans would totally screw up the beautiful natural balance that exists.

Boaters cause no harm to the trout and this delicate natural balance. My selfish NIMBYness says there's a big difference between safe boating access (and the legal right to step on "my" streambed) and unfettered public fishing access. Beer-can-dropping, trout-killing, powerbait-slinging yahoos would not only mess with my personal space, they would damage a riparian environment that I work very hard to preserve. If that's selfish, so be it. I can live with that.

Ultimately, "little guys" like me who were lucky enough to buy river frontage and a dinky fixer upper 16 years ago won't decide this issue. It's the rich guy clubs with high-powered attorneys who are muddying the waters.




Canada said:


> Count, you're cool.
> 
> The competing interest here are huge. Would I want a bunch of fisherman or hunters going over my property? No. Would I mind if kayakers stopped to scout? no. Would I mind if hundreds of commercial boats floated through my property? probably. Would I mind if rafters harvested fish out of water through my property? It would depend? This ruling will be clarified when an assault occurs. I would anticipate that won't take long, although it will take years for it to go through the courts.
> 
> Earlier everyone called for a mass float on a creek. I responded saying involve AWA. The competing interests here are very divergent and the consequences of any ruling are big.


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## 14kayaking2 (Jul 10, 2008)

*River access*

I agree with you Count... this is about the river access. Period. Federal supercedes state law, hence all the landowner conflicts in Colorado where landowners think they own it. However, if that river, or stream(even if intermittent) is navigable(IE we can get a kayak, raft...inner tube down it), then it becomes a public right of way. That means anyone can go down it...the big issue here isn't the riverbed, it is scouting/portaging on the sides of the river. Sorry to any of you who own river land, but that doesn't mean you have a bunch of pet fish in that river. Your true boundaries lie at the rivers edge, where it become public land. Colorado State law has made this a debatable issue (they claim you can own the river bed), however NONE of the lawsuits have held up in court as it eventually becomes a federal matter, and federal always has authority over state laws. I think that Utah did right in owning up to that, and preventing many more landowner/boater/fisherman conflicts that result in some expensive, time consuming frivolous lawsuit. Frankly I think America should adopt more of a European view of landowning in general. Then we wouldn't have any problems like Oprah owning so much land around Telluride that locals have no public forest access...thereby gaining her a few million extra acres taken care of by the US forest service.


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## caspermike (Mar 9, 2007)

14kayaking2 said:


> I agree with you Count... this is about the river access. Period. Federal supercedes state law, hence all the landowner conflicts in Colorado where landowners think they own it. However, if that river, or stream(even if intermittent) is navigable(IE we can get a kayak, raft...inner tube down it), then it becomes a public right of way. That means anyone can go down it...the big issue here isn't the riverbed, it is scouting/portaging on the sides of the river. Sorry to any of you who own river land, but that doesn't mean you have a bunch of pet fish in that river. Your true boundaries lie at the rivers edge, where it become public land. Colorado State law has made this a debatable issue (they claim you can own the river bed), however NONE of the lawsuits have held up in court as it eventually becomes a federal matter, and federal always has authority over state laws. I think that Utah did right in owning up to that, and preventing many more landowner/boater/fisherman conflicts that result in some expensive, time consuming frivolous lawsuit. Frankly I think America should adopt more of a European view of landowning in general. Then we wouldn't have any problems like Oprah owning so much land around Telluride that locals have no public forest access...thereby gaining her a few million extra acres taken care of by the US forest service.


 
OHH Slam, same opinion hear those trout don't look like this
View attachment brook.bmp


tattoo and everything


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## jbarnow (Sep 10, 2007)

14kayak2 thanks for that piece of info. I was not aware that a true fight would take it to a federal court which would rule not guilty. I would assume people have paid plenty of trepassing tickets though.

Personally I would like to own every single stretch of river and stream in the country and that way I would always have top notch fishing for me and my friends. I would also like to own all of the land and surrounding land around every peak in the country so I can be the only person to enjoy them. It'd be like totally cool and everyone else could just go screw themselves. Unfortunately this is basically how it works here in Colorado and a couple people get to enjoy the finer places in the state while everyone else gets screwed. That is wrong. Land owners can use every excuse in the book to justify why other people shouldn't be able to access our rivers, streams, and mountains. They are a limited resources and people regardless of who or what style should have the right to enjoy these areas regardless of ownership.


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## billcat (Jun 3, 2008)

jbarnow said:


> Personally I would like to own every single stretch of river and stream in the country and that way I would always have top notch fishing for me and my friends. I would also like to own all of the land and surrounding land around every peak in the country so I can be the only person to enjoy them. It'd be like totally cool and everyone else could just go screw themselves.


While I realize you are being sarcastic, this is exactly the basis for all NIMBY arguments. It's just sad to see people making them in the name of saving the river for boaters.. If people are going to NIMBY, please just own up to the ass you are being and NIMBY yourself onto the little island you think you live on. (This happens all over the metro area too, not to pick on just people who own rural land.)

Federal, state laws and local should still apply but the way NIMBY landowners talk that's not the case in their little world.


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## DurangoSteve (Jun 2, 2006)

Actually, this is one of my "pet fish." Mr. Brown tells me often how he enjoys our aquatic adventures!


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## caspermike (Mar 9, 2007)

good stuff steve. don't take my shinanigins serious. have a good time with those pet fish down there.


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## 14kayaking2 (Jul 10, 2008)

I must say that that is a very nice pet fish. I agree with both sides... i personally would love to own so much property to lock up everything... and I also see why people should have a right to be on those rivers. the big depressing thing is that so many people have to bicker in the first place. I mean I understand if someone comes in and takes a bunch of apples from your apple orchard...or posts a hunting camp right in your backyard. However I also think that no one person can truly own land. The indians didn't believe in it (course we pushed them off of all the land they were inhabiting). kinda a crappy situation for some either way. However I would love to catch some of yer pet fish. Hope you all realize I wasn't trying to slam anyone, just inform on true water rights law. I got a degree in Forestry, and water rights is one of the biggest topics as far as western forest systems go.


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## DurangoSteve (Jun 2, 2006)

Mr. Brown is a good pal. It is, however, a pretty one-sided "relationship."

The beautiful mountain river that I have the good fortune to enjoy every day is in reality a beautiful irrigation ditch. All that crystal clear snowmelt belongs to the City of Durango and a bunch of alfalfa farmers downstream. I just get to live there. Philosophically I agree with your definition of land "ownership." I like to think of myself more as a "caretaker" than an "owner." The selfish, self-righteous me says I'm a better caretaker of an awesome riparian habitat than some guy who wants to mindlessly kill the wild trout that swim in my backyard, and throw that beautiful balance out of whack.

A person paddling through has ZERO impact on that amazing environment. And a person scouting or portaging has ZERO impact on that environment. 

Would I feel differently if I wasn't so lucky to buy a piece of mountain river frontage in 1992 when it was still within the reach of a working stiff? Sure. I recognize that we all see the world through our own self-focused lens.




14kayaking2 said:


> I must say that that is a very nice pet fish. I agree with both sides... i personally would love to own so much property to lock up everything... and I also see why people should have a right to be on those rivers. the big depressing thing is that so many people have to bicker in the first place. I mean I understand if someone comes in and takes a bunch of apples from your apple orchard...or posts a hunting camp right in your backyard. However I also think that no one person can truly own land. The indians didn't believe in it (course we pushed them off of all the land they were inhabiting). kinda a crappy situation for some either way. However I would love to catch some of yer pet fish. Hope you all realize I wasn't trying to slam anyone, just inform on true water rights law. I got a degree in Forestry, and water rights is one of the biggest topics as far as western forest systems go.


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## Andy H. (Oct 13, 2003)

> if that river, or stream(even if intermittent) is navigable(IE we can get a kayak, raft...inner tube down it), then it becomes a public right of way.


Unfortunately I've heard that there are some stipulations about the term "Navigable" that rule out most, if not all rivers in Colorado. Primarily that the waterway has to have been used for commercial purposes for a certain length of time (longer than commercial rafting's been around). Its a bummer but the boating community needs to get that straight or else we'll continue pissing in the wind (or getting arrested) using that argument.

Can someone with more legal smarts than I have please clarify?

-AH


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## bob marshall (Jun 7, 2006)

*in MT*

the state claims ownership of navigable waterways as state highways. Not all rivers are considered navigable, they must have been used commercially at some time. Often that use goes back to fur trading and log floating when waterways were the highways. Smaller creeks not on the states navigable list can and have been shutdown by private landowners.

Our access laws are better then most states, but just because you can float a boat doesn't make it legal.

As to the fishing, barbs kill fish. When's the last time you saw a worm jerker or metal chucker fishing barbless?


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## caspermike (Mar 9, 2007)

navigatablility should be able to be proved through numerous decents and shouldn't be limited to what has happened in the past. nobody has a right to say what is and what isn't navigatable because we have people like Ben Stooksberry, Pat Keller, and Tyler Bradt boating super insane shit.

*nav·i·gate*







 //  _verb, _*-gat·ed, -gat·ing. *
_–verb (used with object) _1.to move on, over, or through (water, air, or land) in a ship or aircraft: _to navigate a river. _2.to direct or manage (a ship, aircraft, or guided missile) on its course. 3.to ascertain or plot and control the course or position of (a ship, aircraft, etc.). 4.to pass over (the sea or other body of water), as a ship does. 5.to walk or find one's way on, in, or across: _It was difficult to navigate the stairs in the dark. __–verb (used without object) _6.to direct or manage a ship, aircraft, or guided missile on its course. 7.to pass over the water, as a ship does. 8.to walk or find one's way. 9.to travel by ship or boat; sail.


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## 14kayaking2 (Jul 10, 2008)

*water rights*

Actually...it never has to be commercial, and can be an intermittent stream. 

*To this day, state constitutions affirm public ownership of all running waters.* They typically say that “every natural stream” or “all surface waters” are owned by the state, for use by the public. Various state courts have upheld public access to running waters, calling it an “easement,” and saying, for example, “The capability of use of the waters for recreational purposes determines their availability for recreational use by the public. Streambed ownership by a private party is irrelevant. If the waters are owned by the State and held in trust for the people by the State, no private party may bar the use of those waters by the people.” Public access to streams, and trails along streams, is further supported by the legal doctrines of custom and prescription. _Willow River Club v. Wade_, 100 Wis. 86, 76 N.W. 273 (1898). _Taylor v. Commonwealth_, 102 Va. 759, 47 S.E. 875, 102 Am.St.Rep. 865 (1904). _Day v. Armstrong_, 362 P.2d 187 (Wyo. 1961). _People v. Mack_, 97 Cal. Rptr. 448, 19 Cal. App. 3d 1040 (1971). _Montana Coalition for Stream Access v. Curran_, 210 Mont. 38 (1984).
*What about navigable rivers?* While all running waters are held in trust for the public, rivers and streams that are _navigable_ have additional legal status. Public navigation rights, like fishing rights, have been recognized since ancient times. After the American Revolution, the founding fathers moved quickly to ensure public rights to navigate on all navigable rivers and streams. In discussing rivers and their tributaries, the very first law passed by the United States Congress said these “navigable waters,” as well as “the carrying places between the same, shall be common highways, and forever free” to the public, “without any tax, impost, or duty therefor.” An additional federal law in 1796 confirmed public rights to “all navigable waters.” Note the reference to portable watercraft such as canoes, and the right to carry them from one stretch of river to another. River navigation at the time was in canoes and small boats, using oars and paddles. Canoes and kayaks are thousands of years old. (“Canoe” was an Indian word, and the Eskimo word “kayak” is related to the ancient Greek word for a small boat.) From 1804 to 1806 the Lewis and Clark expedition, sponsored by Congress and President Thomas Jefferson, canoed from St. Louis to the Pacific Ocean and back, carrying their canoes where necessary. (Steamboats were not developed until later in the 1800s.) Also note that government agencies cannot charge fees for river access, and that public rights to rivers are “forever,” not just until landowners try to block them. In 1954, courts held that a canoeist was not trespassing when he pulled his canoe over a landowner’s fence across a stream (pushing down the fence in the process,) continued canoeing on the stream through private land, pulled the canoe up on the bank to get around a log jam, then waded on the streambed to fish, before getting back in the canoe and continuing downstream, leaving the private land. Courts have recognized “a public right of access for fishing and navigation to the point of the high water mark,” adding that the public can “cross private property in order to portage around barriers in the water,” but holding that “the right to portage must be accomplished in the least intrusive manner possible.” In addition, federal courts have held that “all navigable rivers” are subject to the _federal navigation servitude_, and are therefore open to navigation by the public, regardless of state or private ownership of the beds and banks. For example, the Jackson River in Virginia is navigable because, as the court ruled, “canoes can navigate the upper river without trouble except during the late summer, and canoeing experts consider the Jackson to be a very fine canoeing stream, except for troubles with landowners along the river.” _Northwest Ordinance of 1787_, 1 Stat. 50. _Act of May 18, 1796_, 1 Stat. 464. _The Journals of Lewis and Clark, 1804-1806_. _Gibbons v. Ogden_, 22 U.S. 1, 6 L.ed 23 (1824). _Elder v. Delcour_, 364 Mo. 835, 269 S.W.2d 17 (1954.) _Loving v. Alexander_, 548 F.Supp. 1079 (1982).



just look up water rights issues....


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## Canada (Oct 24, 2006)

For boating access, this is pretty fantastic. If I owned property that had an intermittent stream bed and it bacame a path of access to the wilderness, I think that would annoy me. This is probably as good as it gets for boaters, and as bad as it gets for property owners. 

Great commentary on Telluride access (oprah ranch). A ruling like this in Colorado would open alot of previously difficult to reach terrain.

Any ideas on streams this could effect other than those I listed?


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## slavetotheflyrod (Sep 2, 2009)

I thought I'd dig this one up and re-kindle the fire. 

DurangoSteve - It seems like you're one of those guys that would buy a house by the highway and then complain about all the traffic and noise. You make the case to deny access based entirely upon the misconception that if "your" little slice of heaven were open to the public to fish that the public would be carrying "your" fish out on stringers. It would appear your gripe is not with access but with fishing regs. If you don't want "your" fish killed for the table, then petition the DOW to change the regs to catch and release, flies and lures only. As you'll notice, I've placed quotations around the term "your" as neither the river nor the fish belong to you. You may also noticed I specifically used the analogy of a house on the highway, as I find it particularly appropriate in this instance. Historically speaking, rivers were and still are highways. Before motorized transportation and improved roads humans used rivers to move goods and services from point A to point B. Human Civilization as we know it grew up on rivers. Every wonder why Durango was built right on the Animas? The idea of rivers as public thoroughfares is as old as human civilization itself, while the idea of private ownership of streambeds is a rather new concept (born in 1983 as far as Colorado is concerned). If you think private ownership is the key to resource preservation, you've got a lot of reading to do, and a bit of travelling as well. Just fly 'cross the pond to merry old England and you'll get a good taste of the end product of your convoluted logic. Fact is if you want access to flowing water anywhere in the U.K. you'll have to pay for it. On my last trip I shelled out close to a grand (U.S. dollars) for three days of un-guided access to streams where the fish were by and large stocked, and the rivers were far from wild and untouched by the hand of man. If this is truly your vision of an ideal world, I'll just go ahead and put you on the same list as Paul Jones, Huey Lewis, and Bruce Wills, all of whom are of the firm belief that their millions have bought them the right to have and keep a PUBLIC resource all to themselves. Furthermore, if you bother to carefully read the title to your land, I highly doubt it includes any specific ownership of the streambed, as most in this state do not. 

If any of you should find yourselves faced with a trespassing charge for a trespass alleged to have occurred between the natural high water marks you'd be stupid not to research the title to the land on which you were alleged to have trespassed. In my 9 (and counting) trespass citations, not one of the D.A.'s were able to prove private ownership of the streambed and the case was dismissed. Full disclousure: in 5 of the 9 the charge was dropped the very moment I entered a not guilty plea. In 2 of the 9 I prevailed in motions for dismissal. In the remaining 1 I was found guilty by a judge that didn't bother to consider any of the evidence I presented, only to have his verdict overturned by the Colorado Court of Appeals.

The point I'm trying to make is that the only way landowners can take access away is if you refuse to stand up for your rights, don't know the law, and don't bother to apply it. 

-Rant off-


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## DurangoSteve (Jun 2, 2006)

Slave, you're entitled to your opinions. If you enjoy spending time in courtrooms and money on lawyers, go wild! I'm sure your lawyers love the business. 

As I have stated many times in many threads, I think the AG's opinion regarding boaters is silly and dangerous. Boaters should have the right to portage and scout on private land. 

My opinion about wading fishermen is obviously quite different. As a fisherman, surely you know the difference in fish health and population on private stretches of river vs. public stretches. Interestingly, the DOW stocks public water and doesn't stock private water. Stocking is funded by license fees, and fishermen can't access private water, therefore no stocking. It seems that the DOW recognizes ownership of riverbeds, and structures their stocking accordingly.

Also, I suggest you read the DOW's "Angler Ethics" page. Angler Ethics - Colorado Division of Wildlife Bullet Item #1: "Be aware of, and respect, the rights of others—anglers and property owners."

Did I change your mind? Probably not.


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## slavetotheflyrod (Sep 2, 2009)

First, let me appoligize, Steve. I re-read my response and realized it came across a bit personal. I in know way intended to attack you personally, though I realize that's how it came across.

Second, they're not my opinions, I'm using written opinions from the U.S. Supreme Court as the basis for my arguments. 

Suprisingly, I've spent a grand total of maybee 20 minutes inside courtrooms, and not a single red cent on legal fees, much to the dismay of my lawyers. I should mention that my lawyers are all friends and family. Like I wrote in another thread - It's a charmed life I lead.

You're a bit mis-informed about what the DOW does and doesn't stock. Just two weeks ago the DOW stocked three ponds on the (private) ranch I guide(deer and elk hunters) for, free of charge. In addition they've worked with us on a fisheries improvement plan for the two creeks that flow through the property which includes stocking to be done next summer. We do, and always have allowed public access to the streams, however, due to the remote location have never (to my knowledge) had any takers. Once the stream improvements are completed we plan to post signs at the property line allowing public access to the streams, and asking the anglers to keep to the stream bed, pack out all trash, fish with only barbless flies and lures, and release all fish they catch. Another part of the plan includes constructing handicapped access to the ponds and for hunting. 

Like you, I'm also a bit of a fly fishing elitist, and also take offense to the comments from the likes of Casper Mike to the effect that fly fishing is just as harmful as bait fishing. I've personally never seen a gut hooked fish in my 14+ years of fly fishing and guiding. I have fished and guided both public and private water and would disagree with your statement regarding fish health and populations on public vs. private water. Take for example the Fryingpan, Taylor, Blue, Green, Yampa, South Platte, North Platte, Eagle, Roaring Fork, Colorado and a few others. The fishing is as good if not better in the public water on those rivers. In the areas of those rivers where the private water is better it has more to do with costly improvements and stocking on the part of the landowners. In the case of the lower Blue, which is one of my favorites, the monster fish are a result of private stocking and pellet feeding by the owners of Blue Valley Ranch. I have no problem with landowners wanting to improve fisheries at their own expense so long as they realize that they're improving the public resource (in Colorado the fish become property of the state the minute they hit the water, regardless of who stocked them, in rivers anyway). I do have a major problem with landowners like Paul Jones, who owns Blue Valley Ranch, who try to use those improvements as justification to attempt to deny public access to a public resource. 

For the record, I do also oppose the pending application for wild and scenic river designation on the Lower Blue. If you've ever been down that stretch I'm sure you'd agree that yes it is scenic, but wild? Not when you've spent 37 million on artificial habitat structures, "Irrigation Dams", non-native genetic mutant fish, fish pellets, waterslides, tennis courts, a paintball course, an office, a 14,000 sq foot house, bridges, ATV trails, a little indian village and so on. All of the above done right on the river, in the riparian zone, and smack dab in the middle of the prime wildlife habitat. I do understand the land is his to do with as he sees fit, I just won't allow him to accuse myself and the other boaters who lawfully float through and fish the river through his property to be characterized as the threat to the resources. 

The fact of the matter is, that a few exceptions notwithstanding, boaters, anglers, hunters and other outdoor recreationalists are respectful of the resources. In the rare instances when I come across those that aren't I first try to educate them, and if that fails, I report them to the proper authorities. 

Judging by some of the posts you've made in the past I would assume you're the kind of guy I could sit down with over a cold beer and carry on an intelligent conversation about this issue and others, I'd even buy. Casper Mike, not so much.

While you haven't changed my mind, you have intelligently made your case, and for that you've earned my respect. I'm not the type that feels we all have to agree in order to get along. I honestly believe the world would be a much better place if more people learned to argue intelligently (as you have) rather than emotionally.

That's all I've got


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## DurangoSteve (Jun 2, 2006)

I stand corrected on the DOW stocking claim I made. I based that statement on a conversation I had with a DOW employee in Durango who was in charge of stocking the Florida River with Colorado River cutts after the Missionary Ridge Fire (and subsequent floods) decimated the trout in my neighborhood river. I was told that this stocking of private water was an exception to standard DOW practice, as they were trying to reestablish native fish in a piece of river... all private... that they determined to be devoid of fish. Turns out they were wrong. Way more rainbows and browns these days than cutts. Turns out there were some hardy survivors. 

Anyhow, I took no offense at your post. I admit that I'm a NIMBY when it comes to wading access to my backyard. 

You're buying? Cool. I could use a beer right about now.

Oh, and I like Willie Nelson too...


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## ZGjethro (Apr 10, 2008)

The article in the first post is not available now. What were the specifics of the proposed law and did it pass?


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## slavetotheflyrod (Sep 2, 2009)

Next time I'm down that way beers are on me. El Rancho or Steamworks, you decide. Of course this is contingent upon the continued existence of Durango Diner. I can't bring myself to tie one on down there without knowing the cure awaits my hangover in the morning.


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## DurangoSteve (Jun 2, 2006)

slavetotheflyrod said:


> Next time I'm down that way beers are on me. El Rancho or Steamworks, you decide. Of course this is contingent upon the continued existence of Durango Diner. I can't bring myself to tie one on down there without knowing the cure awaits my hangover in the morning.


We probably should drink those beers on the Florida River, catching wild trout... before the local osprey scoops 'em up! And don't get me started on that great blue heron that's hanging out this summer. I've been shooting him repeatedly... with my camera. Bastard's a more vicious predator than a PowerBaiter, eating the little guys and tearing up the big guys. My neighbor, whose pond has taken the brunt of its efforts, wishes I was using a rifle...


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## slavetotheflyrod (Sep 2, 2009)

Wow, those guys usually fly off when you get within a mile of them. Just be glad you don't have a family of cormorants, those greasy bastards can clean out a pond in no time flat.


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## DurangoSteve (Jun 2, 2006)

Well, it was about a 100 yds away. And the neighbor was at work. It was free to feed.


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## slavetotheflyrod (Sep 2, 2009)

Maybee try one of those plastic Owl decoys, or a pack of wild dogs.


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## Ole Rivers (Jul 7, 2005)

ZGjethro said:


> The article in the first post is not available now. What were the specifics of the proposed law and did it pass?


The article likely was about the July 18, 2008 Utah State Supreme Court Conatser v Johnson appeals ruling that found that the coexisting right, easement and estate of use of water beds, incidental to recreational activities, dominate over the coexisting right/estate of ownership of water beds, whether private or public.

So, yes, it "passed", unanimously, I would add. Further, the ruling was tested by way of a poorly written and off point Utah legislature House Bill 187 "Recreational Access to Public Waters On Private Streambeds" in the last Utah legislative session and was narrowly defeated after a massive effort to defeat it was successfully made by water users of many types, including boaters and fishermen.

I was centrally involved in that effort and am, again, centrally involved in the upcoming recreational access to/from and use of waters' beds Utah legislation (although I'm a Coloradan- "Access knows no boundaries"). At a July 7, 2009 Water Law meeting, held by the upcoming bill's sponsoring legislator, Representative Lorie Fowlke, I presented for consideration a bill proposal based on Montana's newly enacted (April 13, 2009) Public Bridge Access law (Google "Montana public bridge access"), which is a law supported by both the public and private interests in 96-3 and 48-2 Montana legislature votes. My further hope is to bring it here to Colorado either in the form of legislation or as part of a CDOW/CDOT cooperative program. After all, all a public bridge access is is using the right of way on either side of public bridge's 60' width. There's 15 feet of right of way on either side of the physical bridge, right?

For an example, ZGjethro, or anyone, check out the Wingo Junction bridge put in/take out on the Roaring Fork between Basalt and Aspen. Since it has been done there, it is reasonable to figure that it can be done to create new access at any public bridge right of way in Colorado, wouldn't you agree?

Any of you can actively participate in gaining recreational access to/from and use of publicly owned waters over water beds, regardless of ownership, by contacting me, CDOW, CDOT, your local County Open Space dept., your legislator and/or etc.


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## Ever_Cat (Jan 20, 2009)

*DOW catch & release fatality statistics*

Sorry to bring this back to the fish debate, but I figured some of you would be interested in this. This was published in the latest newsletter from Front Range Anglers in Boulder. Frankly, as a catch & release practitioner I sure hope that I am not killing even 3-5% of the fish that I release. I actually would have thought that the fatality statistics would have been lower than this as long as great care is taken to revive the fish before releasing it. Live and learn.


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## ZGjethro (Apr 10, 2008)

Ole Rivers said:


> The article likely was about the July 18, 2008 Utah State Supreme Court Conatser v Johnson appeals ruling that found that the coexisting right, easement and estate of use of water beds, incidental to recreational activities, dominate over the coexisting right/estate of ownership of water beds, whether private or public.
> 
> So, yes, it "passed", unanimously, I would add. Further, the ruling was tested by way of a poorly written and off point Utah legislature House Bill 187 "Recreational Access to Public Waters On Private Streambeds" in the last Utah legislative session and was narrowly defeated after a massive effort to defeat it was successfully made by water users of many types, including boaters and fishermen.
> 
> ...


Thanks Ole rivers for clarifying that and for the access work. It would be great if bridge access was established every where a public road crossed a river. The big one would be getting wading rights to the highwater mark. Hopefully in time....


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