Current Status of "Navigable Waters" in Arizona

[Honest Abe]

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

[PaysonLazerLiner]

Abe, your suggestion to simply fish the opposite stream bank is excellent. So simple yet so easily overlooked. Can you suggest any way to determine which streams were running thru federal land at the time of statehood? This could be a huge lever for all of us anglers. To be clear, I am totally supportive of private property owners rights-All of Them! However, we citizens also have rights and, as a committed angler, I'm not willing to give up my rights to access our limited fishable waterways without a definitive legal conclusion to the contrary. Any direction that could help in clarifying the above million dollar question would be greatly appreciated.

[Honest Abe]

Unfortunately, there is no easy way to determine which streams ran through federal lands in 1912. However, any streambed abutted on one or both banks by federal or state land is not private property. Since approximately 85% of all land in Arizona is publicly owned, there's a good chance that the streambed you're fishing on is not private property. In addition, long-term public use of a stream may create a "prescriptive use easement" for public access. Finally, unless the land owner holds title to both sides of the stream, he cannot prevent you from wading on the side he does not own.

Most of the streams i've fished in Arizona fit into one or more of the circumstances described above. Conclusion: Fish more; worry less !!! David