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  1. #3
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    Re: Can somebody install a water gate to block a slough?

    Not sure, but the CA Department of Boating and Waterways can probably answer. I've worked on projects they've conditioned, and they had authority over navigation.

  2. #2
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    Re: Can somebody install a water gate to block a slough?

    If you are in a boat you are probably within your legal rights to access almost any waters of the state. If boaters don't push back, we will slowly lose access over time. That said, I think landowners will fight back (never argue with loaded gun)-- but if you can float it you are probably legal:

    California Navigability Report
    Summary:
    In California, if a stream can be floated for most of the year the public has the right to use the stream. The public may use the stream for recreational boating, fishing, swimming, hunting, etc. up to the high water mark.
    NOTE: For a more detailed review of Navigability in California see the article on California's Public Right to Float by Ronald W. Rogers on our website.
    State Test of Navigability
    California has adopted a state test for determining which streams are subject to a public easement for navigation. The waters subject to the easement include those waters that are navigable in fact at the present time by any watercraft propelled by oar, including a kayak. A number of cases have applied the test.[1] The stream need not be navigable for the entire year. The stream must be suitable for public use, which is determined on an ad hoc basis.[2] A stream navigable in fact for most of the year should suffice.[3] In addition, the stream does not need to be navigable in fact in its ordinary state; improvements can make an otherwise non- navigable stream navigable.[4]
    Extent of Public Rights in Navigable & Non-navigable Rivers
    California’s constitution allows the public to use all navigable waters in the state, and further directs the legislature give the provision the most liberal construction.[5] Regardless of whether the stream bed of a river which is navigable in fact is public or privately owned, there is an easement for public navigation and the incidents of navigation, i.e. boating, fishing, swimming, hunting and other recreational uses.[6] The easement exists up to the high water mark.[7]
    Courts are especially sensitive to infringements upon the public’s constitutional rights under the guise of police power.[8] The Attorney General found such an infringement when the state sought to prohibit the right to use navigable waters that flowed over inundated privately owned land adjacent to the navigable waterway.[9] In a landmark case, the same constitutional provision defeated a county ordinance that forbade rafting on a river because of the litter, pollution and noise generated by the rafters.[10] However, the public easement does not include the right to use a private pier in navigable water, unless there is an emergency.[11]
    Whether portaging and scouting above the high water mark is permissible has not been definitively ruled upon. However, the Mack case does state that the easement for using navigable waters, including the incidents of navigation, exists below the high water mark.
    Miscellaneous
    Article I, section 25 of the California Constitution forbids the state from alienating land without reserving fishing rights in the public.
    A case of interest to boaters is People v. Sweetser, 72 Cal. App. 3d 178 (1977), in which a kayaker was found innocent of trespass where the kayaker was carrying his boat on a road across private land to gain access to a navigable waterway. The county had an easement in the road for a public highway, and the use of the road by the kayaker was reasonable.

    [1] Bohn v. Albertson, 238 P.2d 128 (Cal. App. 1951); People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1045-1051 (1971); Hitchings v. Del Rio Woods Recreation and Park District, 55 Cal. App. 3d 560 (1976); Younger v. County of El Dorado, 96 Cal. App. 3d 403, 406 (1979); Kern River Public Access Committee v. City of Bakersfield, 170 Cal. App. 3d 1205 (1985). Additional cases, California Attorney General opinions, and related law reviews are listed in a letter from the Cal. Att’y Gen. to AWA, dated June 16, 1997 (on file with AWA).
    [2] Hitchings, 55 Cal. App. 3d at 570.
    [3] Id.
    [4] Hitchings, 55 Cal. App. 3d at 567.
    [5] Cal. Const. art. X 4.
    [6] Mack, 19 Cal. App. 3d at 1045-1051.
    [7] Id. at 1050.
    [8] Younger, 96 Cal. App. 3d at 406.
    [9] Op. Cal. Att’y Gen. 85-602 (October 10, 1985).
    [10] Younger, 96 Cal. App. 3d at 406.
    [11] Op. Cal. Att’y Gen. SO 77-42 (February 1, 1978).

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  4. #1
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    Can somebody install a water gate to block a slough?

    Hi all, there is a slough up in the grizzly island area that a homeowner has installed a water gate that can block entry for boats into a slough. Is this legal? I didn’t know if the landowner can block access to a waterway. If they put one up and it’s open can you enter? Homeowner that lives on the water screams when you do.

    Thanks in advance!

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