California creeks, levees may be next battleground for public access

Sacramento BeeMarch 25, 2012 

It was January 2010 when Shawn O'Brien visited her favorite paddling spot on Cache Creek, in Yolo County's scenic Capay Valley, and noticed something wasn't right.

The path to the water alongside Rumsey Bridge, which she had used for a decade to launch her canoe, was obstructed. Tree limbs, stumps and brush had been piled against the bridge, blocking the popular path.

In subsequent visits over the next few months, the debris pile grew larger and the message became clear: The public wasn't welcome.

"I was so disappointed," said O'Brien, who lives in Ukiah. "It made me crazy, and so I kind of went to work."

O'Brien thus became another agitator in the loose cadre of citizens fighting to protect access to creeks and rivers.

Public access to coastal beaches has been a high-profile struggle for decades. The same battle on inland waterways, however, has received far less attention. The public has similar legal rights in both situations, but the legal thicket seems to get bigger as the waterway in question gets smaller.

"Even as an experienced attorney and kayaker, it's hard to know what to do to approach this problem," said Walter Schmelter, a Sacramento attorney and longtime kayaker who teamed with O'Brien to fight for access to Cache Creek. "It's a daunting task for an individual of any stripe."

One of the biggest fronts in the battle may become the Sacramento-San Joaquin Delta, where 1,000 miles of levees have provided public fishing access for more than a century. In recent years many of those levees have sprouted forbidding "No Trespassing" signs.

The California Constitution since 1879 has guaranteed the public the right to access waters of the state. In addition, the water itself and the fish that swim in it are legally owned by the public.

Yet ensuring that citizens can reach the water and its fish is not always simple.

In the Delta, where all waterways are considered "navigable" under the law, the public has a legal right to use the shore as far up as the "mean high water mark."

But it turns out most levees are privately owned by the same person who owns the farm or house on the other side. Many of those property owners have not hesitated in recent years to post their levees off-limits to anglers and others who want to be near the water – even when a county road runs along the top of the levee.

On both sides of the Sacramento River from Sacramento to Walnut Grove, and many other Delta areas, large signs now prohibit fishing, parking, trespassing and other activities on the riverbanks. Visitors are essentially commanded not to walk from a public road to the public water a stone's toss away.

Property owners posted these signs because some visitors leave piles of trash, light campfires, dump appliances and shift rocks intended to prevent erosion.

"More and more places are getting posted, and less and less places are accessible," said Bill Wells, executive director of the California Delta Chambers and Visitors Bureau. "But honest to God, I sympathize with the farmers and landowners that get their property trashed."

Another concern is that thieves may use levee access to plan their next heist. On Tyler Island, farmer Steve Mello has suffered repeated losses of valuable farm equipment by thieves seeking metal for its salvage value.

"Depending upon the situation, sometimes I'll step out with a shotgun," he said. "But most of the time I'll just stop and talk to them."

Mello is a board member of the island's levee maintenance district. He objected when the district moved to post no trespassing signs, but was outvoted.

"Basically, the rivers are everybody's," he said. "Ninety-five percent of people that come out here are great, and clean up after themselves. And 5 percent are slobs and leave their trash around. And that's what upsets people."

Right of access hard to prove

It remains unclear whether it is legal to block access to levees. The public has used them for decades to reach the water, whether for fishing, sightseeing or boating. An established right of access – known as a prescriptive easement – may exist. But this is difficult to prove.

Given that the Delta is flood-prone, it may be that the "mean high water mark" reaches the county road right of way, providing broad public access to the water.

Scott Shapiro, a Sacramento attorney who represents Mello's levee district and others, agreed there may be merit in these theories. But no court cases have emerged to test them, and he maintains the districts are on firm legal ground.

"We're not preventing people from getting to the water," Shapiro said. "We're simply telling them to use the appropriate pathway. That doesn't mean you can choose any path you want."

Historically, anglers have done just that. Wherever there is room to pull off the pavement, they park and walk down the levee slope to the water.

In reality, there are almost no designated public pathways on Delta levees. Even public parks are few and far between. In Sacramento County, there are only nine public fishing points within the legal confines of the Delta.

When California became a state on Sept. 9, 1850, it was required to preserve public access to all waterways then considered navigable.

"It's a very powerful right," said Curtis Fossum, executive officer of the State Lands Commission, which polices the access laws.

Courts have generally defined navigation to include virtually anything that will float. On the other hand, Fossum explained, it is not always easy to determine which waterways are considered navigable, and the law does not permit trespassing across private land to reach a navigable waterway.

Courts have also interpreted public access to include so-called "incidents of navigation."

"What is an incident of navigation? Fishing? Water quality?" Fossum said. "Basically, there's not a lot of cases that have gone to trial or to appeal that have described what those incidences are."

Protest float planned

In Shasta County, Marily Woodhouse has been testing water quality in Battle Creek for two years. She uses county roads to reach places where the creek crosses under in a culvert, then takes a water sample by reaching into the creek from the road with a container on the end of a pole.

She did it this way to avoid trespassing on adjacent land owned by logging company Sierra Pacific Industries.

"Now they're saying, on one site, I can't even reach off the side of the road because it would be trespassing," Woodhouse said.

On Feb. 25, a sheriff's deputy knocked on her door and said she would be arrested if she continued sampling at that location, saying she had trespassed on SPI land.

"She's legal to be on that road and to use it for travel or whatever she sees fit," said Sgt. Eric Magrini. "However, once she leaves the threshold of that roadway, now she's on private property."

At issue is the width of the road easement and what activities are legally permitted therein. Magrini said SPI obtained photographic evidence of Woodhouse trespassing. However, he said the Sheriff's Office did not review that evidence.

On the Scott River in Siskiyou County, farmers assert the river is not navigable. They claim their deeds include the riverbed, and there is no historical evidence of navigation on the river, partly because it often goes dry.

The issue is a flash point for conflict. Environmental groups assert that the river is navigable, and argue that it goes dry because farmers withdraw too much irrigation water.

The nonprofit group Klamath Riverkeeper is helping organize a protest float down the river June 2.

"It's any citizen's right to navigate the riverbed," said Riverkeeper Erica Terrence. "I think it will lead to better accountability by many of these property owners, who are subject to environmental regulations and laws that protect a resource that really belongs to all of us."

Farmers fret about irrigation

Farmers worry the law will be twisted to deprive them of irrigation water – and thus their livelihoods.

"Navigability is an issue that probably will be drug into court. It's almost a certainty," said Mark Baird, a local rancher and vice president of Scott Valley Save Our Water. "We will not operate under threat. That is what's happening here, and it won't work."

Siskiyou County Sheriff Jon Lopey originally agreed, stating in September the Scott River was not navigable. But after consulting the county counsel, he reversed himself in January and said it is navigable.

"What we've asked people to do is use common sense and respect private property rights and not use that as an excuse to gain unlawful access to private lands," Lopey said.

The issues were similar on Cache Creek, and ended up in an amicable resolution.

O'Brien and Schmelter, with help from the Lands Commission and Yolo County, spent two years researching and organizing support. They ended up negotiating with the property owner.

There was an existing 3-foot-wide county road easement on each side of the Rumsey Bridge, which paddlers and swimmers had used for decades to reach the creek. The adjacent property owner apparently was not aware of the easement and piled brush to block trespassers.

The property owner ultimately agreed to grant a 10-foot-wide easement on one side of the bridge, providing adequate room to move boats. He even donated railroad ties for new steps down to the river, which were completed in late February.

The battle brought together creek lovers, Schmelter said, who now have even more respect for the site and will look after it.

"One thing I took away was that property owners can benefit too," Schmelter said. "They don't have to fear public access. If they work with the public they can be heroes and not lose anything."

To read more, visit www.sacbee.com.

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