Driftless Trout Anglers

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falseantidote  
#41 Posted : Wednesday, March 20, 2013 8:23:28 PM(UTC)
falseantidote
Rank: Stone Fly

Joined: 7/15/2012(UTC)
Posts: 66
Location: Menomonie

Thanks for the info Len. Really appreciate it. I kept doing more research on this topic anyway because I am very interested in knowing my access laws and I stumbled upon a Wisconsin Water Law guide and read some interesting stuff about the "Public Trust." I'll paste some of what I found relevant and want to see what everyone's interpretation is of it compared to mine.

Wisconsin Water Law
A Guide to Water Rights
and Regulations

SCOPE OF THE PUBLIC TRUST
The scope of the public trust doctrine extends to the ordinary high
water mark (OHWM) of all natural navigable waterbodies.
It does not apply to diffused surface water, groundwater or wetlands located
above the OHWM. Similarly, the public trust does not apply to
artificial navigable waters unless they are “directly and inseparably
connected with natural navigable waters.” Nevertheless, because of
the importance of public trust, the courts have used the public trust
doctrine as a justification for regulation of shoreland and wetland
areas adjacent to natural navigable waters on the theory that such
regulation is necessary to protect public trust waters and to ensure
the right of the public to access those waters
.


The trust doctrine not only extends to all natural navigable waters,
but to “the beds underlying navigable waters.”
However, this aspect of the trust is qualified because riparian owners hold title to streambeds
to the center of the stream. Thus, the state has unqualified title only
to lake beds. For streams, the public trust primarily relates to the
water, not the streambed.

PUBLIC ACCESS LIMITATIONS
As noted above, the public trust is designed to provide broad public
access to and use of navigable waters for fishing, swimming, boating
and other recreational uses. However, it does not guarantee access
to all navigable waters nor does it afford the public a right to use the
banks of navigable waters. Contrary to popular belief, there is no
general right of public access along navigable stream banks and
lakeshores.


In Doemel v. Jantz,
the Wisconsin Supreme Court held that persons
who own the land adjacent to a stream or lake, known as riparians,
have “the exclusive privileges of the shore for purposes of access to
his land and water.” The court concluded that public rights extend
only to the water’s edge and that walking on the shoreland between
the ordinary high and low water marks constitutes a trespass.

One common characterization of this test is: “If your feet are wet you are
not trespassing.”

In 1999, legislation was passed which carved out an exception to this
long standing common law rule. Under Wis. Stat. § 30.134 a member
of the public has a right to use the exposed shore area along
navigable streams and rivers without the permission of the riparian
when the individual is engaged in a water-related recreational activity.

Under the law a “water-related recreational activity” is an activity that
requires water such as fishing, swimming and boating. This exception
does not apply to lakes, ditches, channels and other bodies of water
that are not characterized by flowing water.


So my understanding is that there was a bunch of laws and regulations and court rulings and in the end, under the Wis. Stat. 30.134, I can use the shore area for fishing, and therefore use it to enter and exit the stream. Right? Anyone get a different understanding?
LenH  
#42 Posted : Thursday, March 21, 2013 3:30:47 AM(UTC)
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i believe you are mixing old law and new. FEET WET to fish.
dcarcher  
#43 Posted : Thursday, March 21, 2013 8:14:40 PM(UTC)
dcarcher
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Joined: 3/11/2013(UTC)
Posts: 41
Location: dcarcher

How far does the the "navigable" label apply? If a stream has a relatively short navigable area, does that make the whole stream navigable?


William Schlafer wrote:
And here's the Wisconsin statue that allows wading of navigable streams:


Fishing Wisconsin - Stream Access Laws

State anglers, canoeists and others who frequent Wisconsin's rivers and streams need to be aware of changes to rules pertaining to access along waterways that were enacted in the 2001 Wisconsin state budget bill (2001 Wisconsin Act 16).

Navigability determines whether a water is public or private. Navigable streams are public waters. Because navigable waters are public, they may be used for fishing, provided public access is available, or you have permission of the landowner to cross their property to reach the water.

Effective September 1, 2001, people using these waterways will, for the most part, have to return to the old "keep your feet wet" test, as created by the Wisconsin Supreme Court.

Members of the public may use any exposed shore area of a stream without the permission of the riparian (i.e., landowner) only if it is necessary to exit the body of water to bypass an obstruction. In addition, a member of the public may not enter the exposed shore area except:

- from the water,
- from a point of public access on the stream, or
- with the permission of the riparian (i.e., landowner).

Obstructions could consist of trees or rocks, shallow water for boaters or deep water for wading trout anglers. The bypass should be by the shortest possible route.

Under this law, using the exposed shoreline for purposes such as picnicing and sunbathing is not allowed.

Section 1255j of 2001 Wisconsin Act 16 amended Chapter 30.134 of the Wisconsin Statutes to make this change. You can view Wisconsin Act 16 on the Wisconsin Legislature's Web site. (You can also find the language on page 247 of 2001 Wisconsin Act 16.)

Wisconsin Act 16



I'm thinking about printing this out and laminating it onto a small card to carry when I fish. Might help settle confusion with land owners or law enforcement, should it come up.

I generally avoid the trespassing issue by sticking to public access lands and streams with published easements.


-Bill

spindler26  
#44 Posted : Tuesday, April 9, 2013 1:29:05 AM(UTC)
spindler26
Rank: Caddis Fly

Joined: 4/9/2013(UTC)
Posts: 13
Location: Cadott, WI

It is my understanding that a waterway is considered a navigable waterway if you can navigate any part of the waterway at some time during the year. So if a small stream gets really high every spring and I am able to take my shallow draft kayak down, it is a navigable waterway and therefore open to the public.

From what I'm reading about the stream obstacle rule it sounds like if you are kayaking the stream at some part and it gets too shallow it is legal to portage on private land?
salvelinus fontinalis  
#45 Posted : Tuesday, April 9, 2013 3:57:09 AM(UTC)
salvelinus fontinalis
Rank: Dragon Fly

Joined: 4/1/2010(UTC)
Posts: 402

spindler26 wrote:
From what I'm reading about the stream obstacle rule it sounds like if you are kayaking the stream at some part and it gets too shallow it is legal to portage on private land?



Yes.
salvelinus fontinalis  
#46 Posted : Tuesday, April 9, 2013 4:08:19 AM(UTC)
salvelinus fontinalis
Rank: Dragon Fly

Joined: 4/1/2010(UTC)
Posts: 402

LenH wrote:
33 feet both direction of the center line on a public bridge is eased.



Len, maybe you can clarify -- I'm not sure township roads have a public right-of-way per se since the landowner owns the property to the centerline of the road. Is that something you can verify?

Thanks.
LenH  
#47 Posted : Tuesday, April 9, 2013 5:05:29 AM(UTC)
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Posts: 4,883

salvelinus fontinalis wrote:
LenH wrote:
33 feet both direction of the center line on a public bridge is eased.



Len, maybe you can clarify -- I'm not sure township roads have a public right-of-way per se since the landowner owns the property to the centerline of the road. Is that something you can verify?

Thanks.


Just repeating what the Warden told me. Don't claim to have special knowledge.
salvelinus fontinalis  
#48 Posted : Tuesday, April 9, 2013 6:11:47 AM(UTC)
salvelinus fontinalis
Rank: Dragon Fly

Joined: 4/1/2010(UTC)
Posts: 402

LenH wrote:
salvelinus fontinalis wrote:
LenH wrote:
33 feet both direction of the center line on a public bridge is eased.



Len, maybe you can clarify -- I'm not sure township roads have a public right-of-way per se since the landowner owns the property to the centerline of the road. Is that something you can verify?

Thanks.


Just repeating what the Warden told me. Don't claim to have special knowledge.



Okay, I'll check into it and report back...thank you.


Brntrthnter  
#49 Posted : Tuesday, March 11, 2014 3:16:40 PM(UTC)
Brntrthnter
Rank: Midge

Joined: 3/2/2014(UTC)
Posts: 9
Location: Decorah Ia

Great discussion guys & loaded with info. Will be making my first trip up to Wisconsin this year to see if i can catch some steel head & helped me knowing legally where i can fish. Just for people fishing Iowa the land owners own the land under the water so you have to be in some sort of watercraft when fishing non public land. I also remember seeing a article on meandered vs non meandered as to who own the water. I believe it is the meandered stream you can legally float. Don't quote me but i'm pretty sure to be meandered you have to be able to float the river/stream at least one month of the year without touching bottem. I have yet to get a definitive answer from the dnr on this though. Better to just ask permission first though most don't have issues with you fishing
Mark Dahlquist  
#50 Posted : Tuesday, March 11, 2014 5:29:52 PM(UTC)
Mark Dahlquist
Rank: Administration

Joined: 2/27/2010(UTC)
Posts: 4,842
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Location: Minnesota

Thanks: 4 times
Was thanked: 6 time(s) in 4 post(s)
Glad to hear you found the post helpful. Interesting I met up with Marty Engel last Thursday who presented at MN Waterdogs fishing club at Pier 500 in Hudson. Shatner brought me along as a guest. You know how it is said if an obstruction or deep water you can get out. I asked about a very deep pool for some distance. There lies a grey area. Up to the CO.

In MN you have to swim. You cannot even touch land.
-Mark
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