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| Sometimes you have to combine skiing and kayaking to get where you want to go. Stumps in the distance are below the high water line of Grant Lake Reservoir. |
As much as I like the article, I don't approve of how the author went about exercising his rights. It made for a good article, but there needs to be some etiquette when exercising the right to use prescriptive easements and navigability easements and sovereign lands:
1. Be courteous - respect wildlife, other recreationists, the privacy of adjacent property owners, and avoid dwellings
2. Leave no trace
3. Be invisible, if possible - if they don't know you are there you won't get hassled
4. Contact property owners and agencies when the public is being bullied, and bring wire cutters (e.g. look up the East Walker River from the Hwy 395 bridge--if you wanted to float it, you would need them).
Essentially, behave like you are in a campground. Respect the campers in the campsites you are next to (or you are taking a shortcut through if no one is home).
Special Cases
The problem is that the Russian River situation is rare. Where the public's rights are clear, and the property owners are clearly violating them, that is a good place to write an article to raise awareness. But those situations (in California) are the exception. Here grey areas are the rule. The following are categories of grey areas I've encountered.
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| Dana Fork of the Tuolumne River: Navigation Prohibited |
- I kayaked the Dana Fork of the Tuolumne River. Only later did I learn the NPS had a prohibition on boating upstream of Pothole Dome. How would one know? There are no signs--and you wouldn't want signs. You'd want the entrance station rangers to tell anyone with a kayak about Yosemite's boating policies.
- The Pyramid Lake Paiute Tribe has a prohibition on boating the Truckee River.
- People are prohibited on the McWay Cove beach in Julia Pfeiffer Burns State Park, ostensibly to keep the bluff from eroding--but what if you boated there?
- The Los Angeles Department of Water and Power (LADWP) prohibits camping on its land, however below the high water mark on the Owens River I've camped on the public sand bars many times.
- When I kayaked down Hot Creek one spring, I didn't feel bad about ducking under foot bridges in the private fishing club, or maneuvering past tourists enjoying the warm water in the geothermal section. But when I got to the reach below the geothermal area, I flushed so many ducks that I felt really bad, and swore I'd never do it again (at least in the spring). People are far more adaptable than wildlife in reacting to changing conditions. There should have been a legal prohibition there--but legal prohibitions usually only occur in response to a problem, and the level of use there is nonexistent. Fortunately, at Mono Lake and many other places, there are closures to navigation to protect nesting birds.
Constructed waters
- Reservoirs are technically privately-owned (even though they often have drowned public navigable waters--shouldn't the public still have the right to pass through the reservoir?), therefore reservoir operators can exclude boats and public access. One more reason, in a long list of reasons, why we don't need more dams.
- Rush Creek upstream of Silver Lake had a pond constructed adjacent to it--not knowing it was constructed, I violated the no trespassing sign, and wrote letters complaining to agencies when it was closed off with rock gabions. How was I to know it was constructed? In Lundy Canyon, I've kayaked on a beaver pond--but that was constructed too, just not by people.
- The LA River is another well-known example of a navigable water that was reconstructed and removed from public access (although access has been restored, although on a limited basis).
- And what about ditches--I've kayaked Wilson Creek in the Mono Basin in its lower reaches, which is an 80-year-old drainage ditch in a gully created with imported water that now looks like a stream. How would you exercise your navigation rights in these situations without doing research? I argue that the test shouldn't just be navigability in fact, but also navigability is assumed when the conditions on the ground appear to allow it. If someone wants to post a sign with the reasons why access is excluded (just like signs are usually posted to educate the public when there are legal prohibitions), that would be a good approach. But in absence of a sign with reasons, the grey areas have to tilt towards the public. You can't expect people to have done the local research in advance of encountering a "No Trespassing" sign with questionable legal standing.
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| SCE began hydropeaking in 2014 on Mono Basin streams, threatening not just stream ecology but also navigation and recreation. |
The last example, of Wilson Creek, is also an example of a flow change causing a grey area. If water had never been imported (or if pipes and ditches were shut off by their operators), that creek-like ditch would not exist. Conversely, many streams draining the White Mountains are completely diverted at the head of their alluvial fans. The dry channels below the diversion, if once navigable (this is doubtful for most), could still be considered public access easements. The San Joaquin River is another large example of flow changes causing problems for public access to riverine recreation (read about John Sutter's epic trip down the San Joaquin River in 2014). And Southern California Edison recently posted signs warning people to stay out of Rush Creek above Silver Lake due to new hydropeaking operations.
Reliction
- A subset of flow changes is reliction, or the gradual recession of a shoreline. Tulare Lake is California's largest example of the public's loss of navigation rights--the largest body of fresh water west of the Mississippi is absent only because of dams and diversions. Turn off those dams and diversions, and the lake would fill back up during the next wet winter. Mono Lake and Owens Lake beds are clearly public, but why not Tulare? The only reason is that the land was claimed by private owners under other laws (laws which arguably violated the Public Trust Doctrine).
- In Nevada, relicted lands are not public, and at Walker Lake, NV people are building structures in the floodway.
- Even at Mono Lake, where the law is very clear, there are encroachments--if you try to walk around the lake below the 1941 shoreline, you run into fences, grazing horses, and other private uses of public land.
Hazardous situations
Just because the extreme kayakers haven't arrived yet, does that mean a creek (or even a waterfall) is not navigable? I walk past No Trespassing signs on San Geronimo Creek, but I haven't yet kayaked down it because it would be a bit risky during winter floods. I could probably do it under certain flow conditions, so I assume it is navigable, but why should my ability to access the creek depend on whether someone has taken that risk? Or for a dry creek that I'm visiting for the first time in summer, why should my access depend on whether I have navigated it in winter? In these situations, you have to assume it is navigable based on size and hydrology. And, as we will see in the next section, whether it is tributary to a navigable water.
Tributaries to navigable waters
California has many of these grey areas due to many small and intermittent streams that are tributary to navigable waters. Where does navigability end? And if waters of the United States are protected from dredging and filling under the Clean Water Act, wouldn't that nexus to navigability also extend to public access to those protected waters? How else can the public keep an eye on its clean water easements if it can't access them? Usually this comes up during stream and fish monitoring activities. Also, invasive plants and trash travel down streams and managing them with volunteers depends on public access. In California, just like waters of the US are protected from dredging and filling, those same waters should be protected for public access.
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| Does wearing two PFDs (one through the legs) count as a "small recreational craft"? |
When I was a Mono Lake Committee intern in 1995, there was a concern that LADWP was going to try to prove the creeks tributary to Mono Lake weren't navigable. In order to prove them wrong, Geoff McQuilkin photographed me kayaking and floating in an inner tube down various sections of Lee Vining Creek. Many times I've looked at Lee Vining Creek's spring flood and thought about boogie boarding with knee pads, elbow pads, helmet, and flippers. I've floated down Walker Creek many times in a PFD. Float tubes clearly count as navigation, and probably boogie boards, but I'm sure the PFD float would have its critics that it doesn't meet the "small recreational craft" test of navigability.
Desert springs
If you can float in it, does that mean it is public? Just based on the immense life-sustaining value of these water sources in the desert, that alone should make them public. And for the same reasons, floating in them might not be a good idea.
Within but above the high water line
If you are navigating a river during a flood, you may be above the high water line, and it may be hard to know where the high water line is. This is also true for frozen lakes and streams, especially when covered in snow. Does cross country skiing (or ice skating) count as navigation by small recreational craft?
Ever since I took a water law class in college, I've tried to exercise my rights to access navigable waters. Even (especially?) where there are grey areas. Here is a map of a few of my adventures that pushed the boundaries of navigation. I do not recommend trying these without scouting and carefully weighing risks--I wouldn't describe any of them as dangerous, but most of them were arduous. But the bumps, bruises, scratches, hypothermia, capsizes, and temporarily lost companions were worth the fun.
Selected Navigable-in-fact Waters of the Eastern Sierra and the largest craft used:
1. East Walker River - Float tube
2. Lundy Beaver Ponds - Kiwi kayak
3. Wilson Arroyo - Kiwi kayak
4. Bridgeport Creek - Kiwi kayak
5. Dana Fork of the Tuolumne River - Kiwi kayak
6. Lee Vining Creek upstream of Glacier Creek - Kiwi kayak
7. Lee Vining Creek through Aspen Meadow - Canoe
8. Lee Vining Creek through diversion pond to Ranger Station - Kiwi kayak
9. Lee Vining Creek below County Road - Kiwi kayak
10. Rush Creek above Silver Lake - Canoe
11. Rush Creek to Grant Lake Reservoir Marina - Kiwi kayak
12. Mono Gate One Return Ditch - Float tube
13. Walker Creek - PFD
14. Rush Creek Bottomlands - Kiwi kayak
15. Hot Creek - Kiwi kayak
16. Owens River from Pleasant Valley Dam to Big Pine Canal - Canoe (not shown on map)
17. Truckee River from Reno to Pyramid Lake - Kayak (not shown on map)
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