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-   -   Beginner Question - Private Land? (http://www.azflyandtie.com/flyforum/showthread.php?t=15668)

salmo clarkii 10-14-2017 09:43 AM

My understanding of this issue is that in AZ, and in most other western states the only legal way that you can fish a stream that runs thru private land is to float it. If you're touching the ground, even under the water you're trespassing. Like someone else said: Montana and Idaho are exceptions to this, you can walk the creek below the high water mark as long as you access it via public land.

COLOFLY 10-14-2017 11:49 AM

if I am not mistaken, Wisconsin has a great access rule.

When I fished in the lower sw corner of the state you were allowed to cross fence lines and walk directly to the water way and as long as you stayed inside the high water mark you were free to fish up and down the stream. When you had enough, you walked directly from the stream back across the fence with no problem. they even had the steps/ladder to assist you over the fence. Great access law. Is it still that way? not sure. was it just that water way I fished? not sure.. But I wish more states were like that, especially CO and its neighboring states.

I hear land owners in CO say the reason they are against such access is because they pay tax on the land under the water....well I would be willing to vote that the state lower their taxes "x"% (x=the amount of land under high water mark) to compensate for that land...

But i am sure no land owner would be willing to do that. It would cut into their income from stream access fees(rod fees, guide fees, ect...) that definitely earn them more income than the tax they pay for said land.

M Lopez 10-16-2017 10:44 PM

Arizona is a little different than most other western states, in that if both sides of a stream are privately owned, the streambed that runs through that property is privately owned, and can be shut off from all access (including floating thru), with the exception of navigable waterways. That is the key, navigable waterways as explained by PaysonLaserLiner. The Colorado River was the only legal navigable waterway initially, but I understand that the Verde River and Salt River were added in relatively recent court cases. Beyond that, nothing is legally navigable, and thus the public does not have a right to float through private property that is signed closed to tresspassing.

I've not heard of the federally owned land at statehood thing, which would be interesting to learn more about. I get the feeling that very little federal land has changed hands since statehood, and even less that contains a permanent stream.

timjd 10-17-2017 02:23 PM

Montana has the right idea on this stuff, but even there it's a constant battle. It can get dicey, and I've had encounters with armed landowners.

I've also been on the other side of the battle, and had people push well past high water mark to try and steal artifacts off our family property.

Public land access is a huge issue out west right and sportsman would be wise to really pay attention to who is looking out for their interests - or not.

Honest Abe 10-23-2017 10:15 PM

Current Status of "Navigable Waters" In Arizona
 
Hi To Everyone: I was born in Arizona (1948) and have practiced Environmental Law for many years. As a fisherman and attorney, the right to fish streams passing through private land has long been of interest to me.

In 1992, Arizona established a Commission to determine which waters in the state are "navigable." In the subsequent 25 years, the issue has gone through extensive hearings, lititgation, and court rulings. A summary of where things currently stand as of July 2017 can be found at this link: www.azleg.gov/jlbc/psnav.pdf The homepage for the Navigable Waters Commission is at this link: http://www.ansac.az.gov/

The bad news: Arizona seems determined to conclude that virtually every streambed in the state is private property. The good news??? Any streams running through federal land at the time of statehood (1912) may be exempt from the "navigable waters" test. This will require careful research and documentation on a "stretch-by-stretch" basis. Undoubtedly, it will also end up in lititgation.

In the meantime, I will continue to fish below the highwater mark as most adjacent land-owners are unlikely to object. (Remember too, that a property owner only has a right across the entire stream bottom if he/she owns the property on both sides of the creek. So, in the case of a grumpy homeowner on one side of the creek, just fish from the other side.) Honest Abe

97redz3 11-06-2017 04:47 PM

Here's an excerpt from the AGAFD 2017/2018 fishing regulations (see p.50, ARS 17-304):

"Landowners or lessees of private land who desire to prohibit hunting, fishing or trapping on their lands without their written permission shall post such lands closed to hunting, fishing or trapping using notice or signboards."

The complete regulation goes on to describe the posting requirements etc. and is clear that if posted, the water is off limits and it is criminal trespassing to fish there.

Shame ... I think Idaho has this right ... you can enter/exit any stream from a public access point and fish it as it runs through private land as long as you stay below the high water mark.

herefishy 11-07-2017 07:04 AM

I wish that reg continued by saying "otherwise, the public may cross the property"

Silver Creek 11-07-2017 08:51 AM

Quote:

Originally Posted by COLOFLY (Post 170974)
if I am not mistaken, Wisconsin has a great access rule.

When I fished in the lower sw corner of the state you were allowed to cross fence lines and walk directly to the water way and as long as you stayed inside the high water mark you were free to fish up and down the stream. When you had enough, you walked directly from the stream back across the fence with no problem. they even had the steps/ladder to assist you over the fence. Great access law. Is it still that way? not sure. was it just that water way I fished? not sure.. But I wish more states were like that, especially CO and its neighboring states.

Both Montana and Wisconsin have high water mark rules BUT they differ.

In Montana the high water mark is where terrestrial vegetation is present. So even if the the water is BELOW the high water mark, you can walk on dry stream bed as long as you are below the high water mark.

In Wisconsin, you must keep your feet wet. That is, as long as you are walking in water, you are OK. The law used to be like Montana's but it was chaneged to keep your feet wet.

In both states you can exit the stream/river to go around an obstruction to navigation. For example, a bridge to low to go under, or a log jam, or barbed wire across the stream to prevent cattle from migration up or down stream can be avoided. You must take the most direct way around the obstruction.

You cannot cross private land to get to the stream in either state. BUT most county roads have public road easements (I think it is 16 feet from the center line of the road) so at a 2 lane bridge, the easements includes land at the bridge that allows you to get to the river. The land owner CANNOT fence off land to the bridge without providing angler access to the public easement.

In Montana, the landowner does NOT have to post a no trespassing sign. Fence posts that have red or orange paint on the fence posts at a gate means the land is private with no trespassing. If there is no red paint, then ask the landowner.

http://codes.findlaw.com/mt/title-45...-45-6-201.html

"(2) To provide for effective posting of private land through which the public has no right-of-way, the notice provided for in subsection (1) must satisfy the following requirements:

(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fenceposts are used, the entire post must be painted;  and

(b) the notice described in subsection (2)(a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line."


Laws for all states here: https://www.signs.com/blog/state-by-...-laws-signage/

COLOFLY 11-08-2017 09:53 PM

Thanks Silver for clarification.


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