what would happen in California if common people asserted their rights under the navigable easement, public trust doctrine and constitutional right to fish, rather than waiting for the government to assert these rights for them?
in California each member of the public has the right to be on the navigable waters of the state including the temporarily dry beds and banks below ordinary annual high water mark and lands subject to their annual overflow; and, there engage in fishing and other recreational activity. Navigable waters are waters that can be navigated even if only in an unmotorized small craft and only for recreation, including artificial reservoirs and canals. California v. Superior Court ( Lyon, Clear Lake) 29 Cal. 3d 210; California v. Superior Court (Fogerty, Lake Tahoe) 29 Cal. 3d 240.
Each member of the public also has the right to fish on state-owned lands excepting only those lands being used by the government for a governmental purpose incompatible with public fishing -for example a prison or mental hospital; and, since November 8, 1910, no land owned by the state can be sold or transferred out of state-ownership without reserving in the people the absolute right to fish thereupon. Sec. 25 art. I Cal. Const.; California v. San Luis Obispo Sportsman's Assc. (1978) 22 Cal. 3d 440)
So, what if members of the public entered privately-owned lands which would be subject to annual flooding from the overflow of a navigable river but for levees an drains, or lands now owned by the state or owned by the state on November 8, 1910 and later transferred out, and there engaged in otherwise legal fishing, hunting or other recreational activity?
Would the assertion of the public trust doctrine to protect recreational activity contribute to the assertion of the public trust doctrine for open space and conservation?
Or do we sit on our hands waiting for public agencies to tell private landowners that they own their lands, but merely the bare title, subject to an easement in favor of the public for fishing and other recreational activity?
