Stream Access Law

[Outside Bend]

I've thought about this quite a bit the last few weeks, and I guess this is how I've come to think of it:

-The water is property of the state.

- The fish are property of the state.

- State funds are used to manage both the water and the fish. All anglers pay for that management, not just the ones who own property adjacent to streams. I don't care if an MDC or DNR employee has ever stepped foot on your property, the fisheries running through your land have probably benefitted from publicly-funded activities elsewhere in the watershed.

Looking at it that way, it seems to me anglers have a right to access the fisheries they pay to manage, and that those publicly-managed fisheries shouldn't be exclusive to one person or group. It's like saying we're going to build a public school using everyone's tax dollars, but the students whose families own property adjacent to the new school are the only ones allowed to attend.

Frankly, I can't think of a compelling reason why anglers, who pay for the management of those resources, shouldn't be able to access them via the high water mark.

[fishinwrench]

I've thought about this quite a bit the last few weeks, and I guess this is how I've come to think of it:

-The water is property of the state.

- The fish are property of the state.

- State funds are used to manage both the water and the fish. All anglers pay for that management, not just the ones who own property adjacent to streams. I don't care if an MDC or DNR employee has ever stepped foot on your property, the fisheries running through your land have probably benefitted from publicly-funded activities elsewhere in the watershed.

Looking at it that way, it seems to me anglers have a right to access the fisheries they pay to manage, and that those publicly-managed fisheries shouldn't be exclusive to one person or group. It's like saying we're going to build a public school using everyone's tax dollars, but the students whose families own property adjacent to the new school are the only ones allowed to attend.

Frankly, I can't think of a compelling reason why anglers, who pay for the management of those resources, shouldn't be able to access them via the high water mark.

I'm behind that, and I don't see why that arguement wouldn't carry weight in a proposed amendment.

Looking at it that way, it seems to me anglers have a right to access the fisheries they pay to manage, and that those publicly-managed fisheries shouldn't be exclusive to one person or group.

I might be blinded by my own preferences,... but is there any OTHER way to look at it ?

[Al Agnew]

Just to play devil's advocate here a bit...

On the small streams we are actually talking about, it could be argued that the state has very little to do with managing them, other than general fishery regulations. In other words, you can't keep more than your limit, whether or not it's your land. General anti-pollution laws also apply as well, I suppose. But MDC doesn't stock these streams (other than a few "private" sections of the trout creeks) and any help they give with habitat on private land is strictly voluntary. And as for that voluntary help, if the landowner knew that a requirement for receiving assistance was that he had to open the stream to the public, I doubt if many would take the assistance.

A better point is the generally accepted fact that the fish belong to the public. Therefore, the public should have access to those fish. That's kind of an interesting question. Do the fish in your private POND belong to the public? I think a good case could be made that pond and private lake fish do NOT belong to the public, because they are completely "enclosed" by the private land. Streams are another matter. Fish in streams routinely migrate for spawning and for winter refuge, and there are no barriers (or there shouldn't be) keeping them from moving from one person's land to somewhere else. But in the case of private lakes, unless the lake is on a stream that is big enough above it for fish to run up out of the lake and into the stream above where somebody else owns the land, the fish in that lake are completely controlled by the owner of the lake.

But there you run into another can of worms. There is a private lake development close to where I live, where access is strictly controlled...gated entrance, must be a landowner in the development to fish the lakes. And yet two streams, both big enough to furnish some fishing, run into the lakes from other landowners' holdings. Therefore, under my reasoning above, those fish are "public" fish, and therefore the lakes should also be open to the public. The little pond in front of my house, however, is not connected to any place where the fish can normally get into and out of it, so those fish are mine.

But maybe there's another consideration...those private lakes weren't natural lakes. They were built by the original landowner. Maybe if it's a man-made body of water, the owners of that body of water have the right to restrict the public from using it, while landowners along a "natural" stream do not.

You can see, though, where a bunch of sharp attorneys could really twist things in a lot of different directions. Public fish, private fish, public waters, private waters, natural waters, man-made waters.

[Outside Bend]

On the small streams we are actually talking about, it could be argued that the state has very little to do with managing them, other than general fishery regulations. In other words, you can't keep more than your limit, whether or not it's your land. General anti-pollution laws also apply as well, I suppose. But MDC doesn't stock these streams (other than a few "private" sections of the trout creeks) and any help they give with habitat on private land is strictly voluntary. And as for that voluntary help, if the landowner knew that a requirement for receiving assistance was that he had to open the stream to the public, I doubt if many would take the assistance.

I guess my response would be that whether MDC stocks the fish or not is a moot point-they're still managed by the state, using public funds. And state-funded management projects tend to have far-reaching, additive effects to fisheries and watersheds. Modifying or removing a low-water bridge, for example, benefits miles of stream habitat across many property lines. Stream revetments, nutrient and wastewater management, buffer strips, etc- even if those aquatic management practices aren't occurring on your property, you're still benefitting.

[fishinwrench]

Seems to me it would be in the states best interest to have as much publicly accessable water as possible. If they wanted to push it I'm sure they could.

If push came to shove they could find an endangered pecker-gnat, tadpole, tree or fern living along any given ditch in the state and declare it the property of the people, with a brief swipe of a pen.

[id10t]

Just to play devil's advocate here a bit...

On the small streams we are actually talking about, it could be argued that the state has very little to do with managing them, other than general fishery regulations. In other words, you can't keep more than your limit, whether or not it's your land. General anti-pollution laws also apply as well, I suppose. But MDC doesn't stock these streams (other than a few "private" sections of the trout creeks) and any help they give with habitat on private land is strictly voluntary. And as for that voluntary help, if the landowner knew that a requirement for receiving assistance was that he had to open the stream to the public, I doubt if many would take the assistance.

A better point is the generally accepted fact that the fish belong to the public. Therefore, the public should have access to those fish. That's kind of an interesting question. Do the fish in your private POND belong to the public? I think a good case could be made that pond and private lake fish do NOT belong to the public, because they are completely "enclosed" by the private land. Streams are another matter. Fish in streams routinely migrate for spawning and for winter refuge, and there are no barriers (or there shouldn't be) keeping them from moving from one person's land to somewhere else. But in the case of private lakes, unless the lake is on a stream that is big enough above it for fish to run up out of the lake and into the stream above where somebody else owns the land, the fish in that lake are completely controlled by the owner of the lake.

But there you run into another can of worms. There is a private lake development close to where I live, where access is strictly controlled...gated entrance, must be a landowner in the development to fish the lakes. And yet two streams, both big enough to furnish some fishing, run into the lakes from other landowners' holdings. Therefore, under my reasoning above, those fish are "public" fish, and therefore the lakes should also be open to the public. The little pond in front of my house, however, is not connected to any place where the fish can normally get into and out of it, so those fish are mine.

But maybe there's another consideration...those private lakes weren't natural lakes. They were built by the original landowner. Maybe if it's a man-made body of water, the owners of that body of water have the right to restrict the public from using it, while landowners along a "natural" stream do not.

You can see, though, where a bunch of sharp attorneys could really twist things in a lot of different directions. Public fish, private fish, public waters, private waters, natural waters, man-made waters.

Some of what you are talking about is happening in a lawsuit filed in the Adirandacks.

Thread from Adirondack Board

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