The Wheelhouse Scoop
BY MERIT McCREA
When SoCal surf angler Jim Payne posted on the West Coast Surf Fishing page a beautiful photo of a strikingly patterned halibut he’d pulled from the waters near the Santa Ana River Jetties, it drew a firestorm of commentary. He said, “Well the Police came down and kicked me out of the Santa Ana River Jetties. This might be the last fish out of there, as they were putting up ‘No Trespassing’ signs. One of my favorite spots along the coast. What happened to being allowed to fish below the high tide line? Unbelievable!”
What followed was a series of accolades, plus a few similar stories of surf eviction. Jimmy Amador said, “I was there bro, and I got a ticket and kicked out. Glad someone had a good day.”
It was page moderator Trifecta Surf who came up with the most likely scenario, posting a link to a page on coastal.ca.gov – the web page for the California Coastal Commission or CCC.
It appeared by this Staff Report, a record of decision for signage down there forbidding “trespass” was really about off-leash dogs and dated June of last year.
The crux was a concern that professional dog walkers were letting dogs off leash there, turning the area into an impromptu dog beach and this was interfering with the foraging of the threatened western snowy plover.
The Sierra Club, Audubon Society and Surfrider Foundation had addressed the CCC on the situation and the Sierra Club wanted the CCC to take enforcement action against the County and City.
Ultimately the County petitioned the CCC for the ability to post “no trespassing” signs on the beach. Apparently there were already provisions in county code against public access into the river mouth – regs which previously had gone largely unenforced.
Posting the signs constitutes a “first warning,” which under California Penal Code Section 602 is required before a citation can be issued for trespass. Posting makes the prohibition “enforceable,” as in, you could get a ticket, not just a first warning.
Yet, as is often the case, local regulations regarding prohibition of public access for fishing on the state’s public trust tidelands and waterways goes against existing state and federal law and the State Constitution, which declares the following:
“ARTICLE I DECLARATION OF RIGHTS [SECTION 1 – SEC. 32] ( Article 1 adopted 1879. )
The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken.
(Sec. 25 added Nov. 8, 1910, by A.C.A. 14. Res.Ch. 44, 1909.)”
Regarding waterways, the following is excerpted from the California State Lands Commission’s Public Access Guide at https://www.slc.ca.gov/…/11/2017-PublicAccessGuide.pdf.
III. NAVIGABLE WATERS
Under California law, the public has a general legal right to access and enjoy California’s navigable waterways at any point below the high water mark. 161 While there are several navigability tests under state and federal laws, a waterway is “navigable” for purposes of the California public right of navigation if it is “capable of being navigated by oar or motorpropelled small craft.”
162 Tidelands, whether or not they can support small craft, and submerged lands, collectively sometimes referred to as sovereign or public trust lands, are also regarded as navigable.
163 Generally, the public has a legal right to access and use such waters for commerce, navigation, fishing and water-related uses including recreation.
The State Test for Navigability speaks to lands existing between the high water marks of a waterway and provides for public access between them irrespective of where property lines fall. The legalese becomes quite detailed around this issue, having been litigated and tested time and again.
In the end, it’s the Fish and Game Commission which has authority to prevent public access for fishing within the public trust and “navigable waters.”
This is especially so for named rivers, navigable at the time California was admitted to statehood. Apparently, under federal law, public access to those riverbeds remains within their then high-water marks even if after they’ve been tapped dry for decades.
Under state law, new watercourses meeting the state’s definition of navigability become publicly accessible and access is allowed using the road easement where bridges cross. Yet, this kind of access is frequently fenced off at the local level anyway.
Today the Coastal Conservation Association of California or CCA-Cal has noticed and Executive Director Wayne Kotow is already on the move to fix this local authority issue. The Santa Ana Rivermouth is one of the best loved surf fishing hot spots in SoCal.
CCA-Cal wants anglers to be able to fish here without being harassed or ticketed in an effort to fix an entirely different problem – dogs off leash where plovers play – which is already illegal.
For the time being, any anglers wanting to fish here would be well advised to hit the high water mark along the PCH bridge and make their way to and from their fishing spot while staying below the high water mark.
Trespassing on the way to and from legal waters is still trespassing. Actually, the CCC’s primary charge is to assure reasonable public access where private property would otherwise blockade it, not facilitate the prevention of public access.
In addition, the case for being above the high water mark while on the jetty itself might be made. Either way, be ready to state your case to the local law.
Yet you’ll have to keep in mind, it’s not an officer’s duty to delve deeply into legal nuance. That’s a judge’s job, and an officer may insist on providing you the opportunity to state your case before one. “Sign here, press hard, 7 copies sir.”
Hopefully local representatives/agencies can be persuaded to fix their oversight.
This kind of thing is almost always an unintended result of local commissions or councils being unaware of these protections of the public trust and in the face of zealously persuasive paid professionals on the staffs of environmental organizations.
Fight fire with fire. Step up and join CCA-Cal in support of fisheries conservation and your public access to fish.
Merit McCrea is saltwater editor for Western Outdoor News. A veteran Southern California partyboat captain, he is a marine research scientist with the Dr. Milton Love Lab at the University of California at Santa Barbara’s Marine Science Institute. He serves on the Groundfish Advisory sub-Panel of the Pacific Fisheries Management Council, the Santa Barbara Harbor Commission, The Channel Islands National Marine Sanctuary Advisory Council and the CCA-Cal State Board. He can be reached at: firstname.lastname@example.org.