Who Owns the River, with Beau Beasley

Tom: Hi, and welcome to the "Orvis Fly Fishing Podcast." This is your host, Tom Rosenbauer. And my guest this week for the podcast is my friend Beau Beasley. For many years, Beau has been digging into and studying the issue of access on [00:00:30] North American rivers, on United States rivers, actually, and the various laws that are in place. It's a complicated issue, for sure, but it's an important issue for all of us that care about being able to fish on certain rivers, both public and private.
So I asked Beau to come on the podcast to talk about the various ways that states define [00:01:00] navigability and how the states decide where you can fish and where you can't fish, and where you can cross somebody's land and where you can't cross somebody's land, who owns the river bottom, who owns the water. All of these questions are important to us, and Beau knows this probably as well as anyone I know, at least in a broad sense in various parts of the country. You may not like everything Beau says because [00:01:30] sometimes Beau comes down on the side of the landowner. He looks at the facts, and in some places, the private landowner does own the bottom of the river and can keep you from walking up the center of the river.
So anyway, I think this will be a controversial but interesting podcast, and it will educate us all on who owns the river. But first, before we talk to Beau, let's do the Fly Box. Fly Box is where you [00:02:00] ask me questions or you share tips with other listeners, and I try to answer your questions on the air or if I think your tip is valuable, I'll read it on the air. Lately, I've been getting, I think, a lot more tips than questions, and I actually prefer to have questions. A lot of times, I'll get a tip that we've already mentioned on the podcast or that we've discussed with a guest. And I think the questions [00:02:30] are the most interesting to people listening to the podcast.
As far as a good question goes, try to remember a time on the river or on the water, in general, when you were struggling with a particular technique or the fish weren't cooperating, and ask a question about what you could have done or why someone thinks the fish behaved the way they did. Those are, [00:03:00] I think, the most interesting questions to most of the listeners. So if you can, I'd love to have some more of those questions so that I can try to answer them on the podcast.
Also, I really like it when I read an answer on the podcast or I have a guest and you have an issue with my answer or something the guest says. This can be an open discussion, and I really like to hear about ways to improve the podcast. You are the reason that [00:03:30] this podcast is so popular because you're the critics. You're the people who vet this podcast for other people. So if you disagree with something, I'd love to hear about that too. And I'll read it out in the air if you're nice and polite. All right. Let's start out with an email from Al from Ontario, Canada.
"Thank you for the podcast and for everything you do for fly fishing. You are very down-to-earth and real when it comes to advice. I was [00:04:00] a very hardcore steelhead on the swing guy for many years. After a few years away from it, I'm back in action. It's getting close to steelhead season here in Southern Ontario, and I have been out with my 6-weight spey rod on my local river, just working out kinks in my cast and experimenting with tips and leaders, etc.
My first question is, while I'm working through runs and pools, I'm catching resident rainbows. The larger ones, seven to nine inches, are taking a swung fly [00:04:30] with enthusiasm. Will these same runs hold the steelhead when they come upriver? Are they looking for the same attributes in a run or riffle as the resident fish?
Second question has to deal with methods of working a run. I've always been a run-and-gun fly swinger. I always thought, if there's no player fish in the pool, it's time to move on. How much time do you personally spend in a run when fishing on the swing before moving on? Thanks again, and looking forward to each and every podcast."
So, Al, those are good questions. [00:05:00] I think that, yeah, the resident rainbows are probably going to be in similar, at least, water speed as steelhead when they come up through. But on the other hand, they may be in shallower water. So I think you can judge the speed that the steelhead will be lying in based on those resident rainbows. However, they could be in much [00:05:30] shallower water. So you want to look for the deeper slots and mainly close to the main channel of the river, because a lot of times, these steelhead are migrating. Well, they are migrating, and they need a path to move through a pool, and they need a place to rest, but they still want to be in some current.
So look for places where it has the same type of speed as where you've been catching those resident fish but probably with a little more depth and maybe close to cover, [00:06:00] because steelhead do have predators, and they do like to be close to some sort of protection. Protection could be broken in riffled water. It could be a rock or a log. But again, it's going to be close to the main current threads and usually just off to the side of the main current threads.
Regarding working a run, I'm pretty much like you. I think I'm a run-and-gun steelhead angler. [00:06:30] But the one time when you may want to stay put is...well, there are a couple of times when you might want to stay put. One is when maybe a river is really crowded, and you can't get into another pool without bumping somebody out. In that case, you may actually have to rotate a pool and let other anglers work through the pool, and then you get out and wait your turn and get back out at the head of the run. And [00:07:00] sometimes that works, and sometimes a fly change or a fly depth change will work or fly color change might work where you have to work the same run. But generally, I like to look for the players, as you do. I like to look for the fish that are aggressive and are going to come to the fly.
Now, there's one other time when you may want to stay put, as long as there's not a lot of people waiting to get in a pool or something, and that's when you actually see the fish moving. [00:07:30] If you see fish moving up through a pool or you see fish kind of slashing through the riffles below a pool when they're actively on the move, then in five minutes, there could be some fresh fish in the pool. So look for moving fish. In that case, it's not a bad idea to stay put if you're in a good place to swing a fly because you know there's going to be some fresh fish coming by. So the players may come to you instead of you going to the players. Here's an email [00:08:00] from Jacob.
"Here's my tip/comment. For anyone hesitant to book a guided day because of the cost, I think they should consider how much knowledge they'll gain from a day on the water with an expert. If you went to college, for a single one-hour class, your cost was probably a few hundred dollars, and I can guarantee almost everyone skipped at least one class a semester. If you think about a guided day of fishing as a one-to-one or one-on-two teacher-to-student ratio [00:08:30] for four to eight hours, the value you're getting for that class is actually very inexpensive, especially compared to what it would cost to get a one-on-one lesson for eight hours from an industry expert in any industry or topic. The ROI of spending a day with a guide will lead to so many more fish during your DIY trips and increase the fun you have when you're out there alone. As someone who's fished with both Orvis-endorsed guides who've been on the podcast, like Steve Hollensed, for example, [00:09:00] and non-Orvis-endorsed guides, I can promise that spending the day with an expert is going to help you with your future fishing on top of being a whole lot of fun."
Well, thank you, Jacob. That's a great comment, and I wholeheartedly agree with what you're saying. We can't all afford to fish with a guide all the time, but it's certainly worth saving up for or worth doing once or twice a year. Here's an email from Michael.
"Just writing a thanks [00:09:30] for your podcast and advice. My wife and I just got back from a road trip to Montana. I stopped in at Big Sky Anglers for some info on where to fish. I've been to West Yellowstone a couple of times in the past and had some success on my own. You often say to stop at a local fly shop and spend a little and receive a lot. I did just that. They gave me some great info on what was working and directed me to a different area than I intended on fishing. Thanks, Big Sky Anglers. We then went to Glacier [00:10:00] National Park, and I did the same thing at Bigfork Anglers. Spent a little and received a lot. Both shops are Orvis-sponsored and terrific for everything you need. Love the podcast. Tight lines."
Well, thank you, Michael. That's very nice, and I'm so glad you had a great time with those two Orvis-endorsed operations.
Ed: Hi, Tom. Ed from the Lakes Region of New Hampshire here. Thanks for all you and Orvis do for our sport. I've asked a few questions in the past by email that you were kind enough [00:10:30] to answer, but you recently mentioned you needed some voice files. So here we go.
Earlier this year, you told a humorous story about how the 7'9" 5-weight Far & Fine came to be. That was my first real fly rod, and I can still see the print catalog copy today about how it was the finest roll casting taper Orvis sold. For our younger listeners, we used to pull out these pieces of paper from the middle of catalogs and fill them out with part numbers and quantities and/or [00:11:00] call an 800 number before this whole internet thing. That being said, if you were writing that copy today, what would you call the finest roll casting rod that Orvis makes today? I own a few, and I won't prejudice any decisions by telling you what they are. I'm just curious.
Second, I'm a pretty avid flytier, and over the last year or so, I've really fallen in love with traditional old-school streamer patterns like the New England Bucktails [00:11:30] or the Carrie Stevens flies that came out of the Rangeley area. My wife has been crushing it with Gray Ghost this year with the glued-up wing sets that I've been tying from the original description. I had the luxury last winter of attending a Scott Biron session, and I was wondering if you could do a podcast about the history and success of those old flies that still work well today. Thanks for everything, Tom. I hope you get an opportunity to answer this. And yeah, tight lines.
Tom: Boy, Ed, [00:12:00] as far as the best roll casting rod Orvis makes, I really don't know because they're using rods for different purposes, and there are some areas where you need to roll cast more often than others. Definitely, the two-handed rods are going to be the best roll casting rods, and in my opinion, the F versions or the Finesse versions [00:12:30] of the Orvis rods, I think, are the best roll casting rods. They bend a little bit more down into the butt when you load them, and I think they do a better job at roll casting. But as far as picking out one particular model, I would have a tough time.
It's often said that longer rods are better than shorter rods at roll casting, [00:13:00] but I have been using that short, I think it's 8'5" 7-weight Helios rod, and I find that thing as a roll casting machine. Maybe that is the best roll casting rod Orvis makes. I don't know. It kind of flies against conventional wisdom because longer rods should be better roll cast rods, but I find that short 8'5" 7 to be an amazing roll casting rod. I was very surprised [00:13:30] when I was using it streamer fishing and saw how good it was as a roll casting rod. I guess I don't have a really good answer for you on that one. As far as a podcast on old-style traditional streamers, yeah, that's a good idea. I'll have to think about that and think about getting a guest on for that podcast. Here's an email from Ernie.
"I have a question and one interesting comment on fly line prices. A few weeks ago, I caught the biggest trout of my life, about [00:14:00] 25 inches long. It towed my outcast float tube and spun it around a couple of times. During the fight, the fish went deep and bent my 5-weight rod into an upside-down U. The rod handle was pointed up and the tip was almost level to the rod handle. I quickly determined this was not good and pointed the rod handle horizontally to relieve the stress on the rod.
My question is, how much can a rod bend before breaking? I've heard of rods breaking when people are fishing for large saltwater fish. Can this happen with [00:14:30] large trout? I was looking for a new fly line and thought they were expensive at about $100 when the lines were $50 in the past. I used an online inflation calculator that said what would cost $50 in 1990 would now cost about $100. So maybe they aren't that expensive considering the new lines are much better than the older lines."
Well, Ernie, I have to agree with you. The new lines are so good, so much better, float better, shoot better, and [00:15:00] require less cleaning than the older rod. So I think they're worth it as well. Regarding how much stress a rod can take, you never want to push it to that point. We do it in our rod shop on purpose, and most of the newer rods you can bend into a U the way you did without breaking them, [00:15:30] but you don't want to do that. The point here is that you never want to high-stick a fish. So high-sticking a fish is when a fish goes deep, particularly when it's very close to a boat. When a fish goes deep and you hold the rod straight up, as you did, and put it into that U, rods just aren't meant to bend that much. Depending on the rod model and the manufacturer and the material it's made, [00:16:00] you can stress a rod to the point where it'll break.
It's tough to break a fly rod in a trout, even a trout that big. It's pretty tough to do. You'd have to be working pretty hard to break a rod in a trout. Now, in salt water, you have a different story. You have more powerful fish, you have deeper water, and you have fish that might lunge very quickly. And sometimes that quick lunge, if the rod is being held upright or [00:16:30] in the high-sticking position, and a fish dives under the boat, that can put undue stress on a rod and can occasionally break one. Rods just keep getting better and better, and we can push them a lot harder than we do most of the time. But again, I wouldn't push it too hard. You did the right thing, and I think you should continue to do that. Here's an email from James.
"I'm really enjoying listening to your podcast. Great tips and comments [00:17:00] in the Fly Box, and your guests are very knowledgeable. I have been fly fishing regularly for a few years now, and I very much enjoyed my experiences. My question is about colors. As I understand it, size and shape are the most key aspects to matching a hatch. But what about color?
I live and fish in Utah and occasionally Wyoming and Idaho, and I seem to have the best luck with purple perdigons and purple midges. I also do well with black perdigons with a red splash. Perdigons also have become my favorite [00:17:30] as they get down so quickly. In certain waters, I do well with blonde midges, but I can actually see them in a stomach pump. For sure, I'm going to try to see what's hatching and match it, but do trout seem to have an affinity to one color or the other, or does it depend on time of year, water, etc.? For reference, I fish mostly small water in the Utah Mountains.
One other question about flash. I have been fishing more this summer with chubbies. What is the purpose of the flash? Is it to get them [00:18:00] to look up, or is there another reason? And a shameless plug for my friends at Fly Fish Food. Love fishing Spencer's SOS patterns. Great patterns and a great guy. Thanks for taking my questions."
Well, James, color in subsurface flies is an interesting question, and I certainly don't have the answer. You would think that matching the color of the bugs that are on the bottom of the river would be [00:18:30] the most effective way of fishing. But in practice, it often doesn't work out that way. As far as I know, there are no purple nymphs. I mean, the Isonychia nymphs, if you squint, they're kind of purplish. It's a big swimming mayfly. But they're not really that purple. We don't know exactly how fish see color. We think they see color about in the same wavelengths we do. So they probably see it about the same way.
But [00:19:00] sometimes a color may just attract the fish from a distance and make them move farther for a fly. Maybe it has the right shape and the right size, and the color is not what the naturals are, but it may stand out more. That's probably going to vary on water clarity and water color and the bottom color. In certain rivers, certain colored nymphs seem to work better than others. [00:19:30] If I were you, here's what I do. I'll tell you, what I do is I go with the color that I've been told works best on a river, the pattern or the color that works best on a particular river. If that doesn't work, then I'll just experiment, because I've put on some weird-colored nymphs at times, and they work. I don't know why.
I'm just going to accept it as empirical evidence, and [00:20:00] I'm going to use that color nymph next time I go to the same river. Now, the conditions might change and the color might be different. So I don't have a great answer. I have talked to a lot of really good nymph anglers, and I've never gotten a really good guideline on what color nymph to pick when. Even the bead color. Some nymph anglers will favor silver beads in certain water [00:20:30] and gold beads in other water and black beads in other water, but I don't think there's a good answer on this one. My advice would be to just experiment, play around, and see what you find out. That's part of fishing.
Regarding the flash on a chubby, I think that, perhaps, the flash on a chubby may imitate the appearance of the wing from underwater. The wing [00:21:00] on a stonefly, not so much a grasshopper, the wing on a stonefly or a big caddis fly is kind of transparent and may flash in the sun. So that flash may make the fish think that your bug is an insect with that kind of wing. But it could also be, again, just an attractor. Maybe the flash picks up light and attracts the fish's attention. Again, we don't know. [00:21:30] Until we can talk to fish, we won't know.
I usually leave the flash off my chubbies. I'm not a big fan of flash in most cases. I use it sparingly on certain flies. My own chubby is actually the Rosenhopper, which is just my version of a chubby. I don't put any flash on there. So whether it helps or not, I have no idea. And maybe some [00:22:00] days it might and some days it might not. Again, just experiment and see what works for you. Here's an email from Joe from Greenville, South Carolina.
"I am new to your podcast so I have been going back and picking topics to learn more about fly fishing. I just listened to the July 22nd episode on what trout hear and smell. Despite my best efforts, I will still sometimes stumble around and spook fish in a section of small streams. So my question is, how long does a spooked fish [00:22:30] stay spooked? Relatedly, does the tendency to be spooked differ between wild and stock trout or between species? Also, related to this issue, if you have fished a section of a small stream and caught some fish, how long do you think you or the next angler should wait before fishing that area again?"
Well, Joe, no, there's no solid answer on that. But I would say, in the case of trout species, from what [00:23:00] I have seen, brook trout, rainbow trout, and cutthroats seem to become unspooked or go back to feeding and, you know, actively maybe moving out in the open more quickly than brown trout. Brown trout, when they are spooked, seem to really be put off for quite a while. They'll go and hide, and I would think [00:23:30] it may be four or five hours. It could be a full day. I think the bigger the fish, the longer it is going to stay spooked.
Small fish, sometimes, you can just about stand on top of them and they won't spook. If you walk away, they'll sometimes almost instantly start feeding again. Whereas a bigger fish, it's going to stay spooked for longer. How long that is, [00:24:00] I don't know, but I would say at least a couple of hours. If you go through a pool, I would give it at least a couple of hours before trying to go back through that pool. And know that any larger fish in that pool probably may still be spooked. That's the best answer I can give you.
I think there is a difference between wild and stock trout. Definitely, stock trout, especially if they're freshly stocked, have been used to having people throwing food to them. [00:24:30] They're used to people, and they're not going to stay spooked for very long. In fact, in some stock trout, it's nearly impossible to scare them unless you step on top of them. Wild fish have grown up in an environment where stuff is trying to eat them all day long and there's a lot of predators around. And stockfish didn't grow up in that environment. They didn't learn to avoid predators. They still have some degree of caution because [00:25:00] it's innate. It's genetic. But wild fish have learned, and I'm pretty sure that stockfish are not going to stay spooked as long as wild fish. Here's an email from Ron.
"I really enjoy your show, kind of like listening to a baseball game on the radio. Have you ever found that if you're running a two-nymph rig and the point fly is barbless, sometimes you'll lose the trailing fly as the knot slips off the bend of the point fly? Any suggestions to alleviate that? Good fishing." [00:25:30]
Yeah, Ron, that happens to me regularly. And the solution to that is to, instead of tying to the bend of the upper fly, tie to the eye of the upper fly. That way, it's not going to slide off. The other way to do it is to tie a separate dropper on your leader, and that'll keep it from slipping off. I've seen people that put a little drop of epoxy on the hook bend, but I'm not sure [00:26:00] if that is going to hold, and that, in essence, gives you a little bit of a barb anyway. So I'm not sure that that's an effective way. But if you want to eliminate it for sure, just tie both flies to the eye of the top fly. Here's an email from Kyle.
"Hi, Tom. Thank you for reading this email and putting it on the podcast. I've enjoyed listening to you for two years now. Fairly new to fly fishing and have been visiting one of Missouri's four trout parks to practice dry fly and nymphing. And I'm learning that the fishing [00:26:30] can be technical even if it seems like an aquarium. Now, for my question. Streamers, I've been watching videos and reading, but I don't have anyone to show me or teach me in person. So I'm wondering, in an oversimplified way, is fishing a streamer comparable to the same way you would fish a lure with spin gear cast out and retrieve concept?"
Well, yeah, Kyle. You know, in fact, in the UK, they often refer to streamers as lures. [00:27:00] Streamer flies, they call them lures. So yes, it can be fished that way, cast out and strip it back, but the beauty of a fly rod is that you can manipulate your streamer even more than you can a spinning lure. So you can dead drift a streamer. You can put some mends into your line so that your streamer changes direction. You can vary your retrieve from very fast to very slow, [00:27:30] something you can't always do in a spinning lure.
So yes, it is, in essence, casting out and retrieving, but there's so much more you can do with a streamer. And I would advise you to try all different ways of fishing a streamer. And you know, streamer fishing, you really want the conditions to be right. Streamers are far more effective in low-light periods. So early in the morning, just before dark, on a rainy day when the water gets a little cloudy, [00:28:00] anytime that visibility is poor, the trout will go on the hunt and be a lot more aggressive toward a streamer fly.
Fishing a streamer fly on a bright sunny day, in the middle of the day, doesn't often work that well. And you'll see big brown trout in the pool. And there will be little blacknose dace and sculpins and things swimming all around them, behind them, in front of them, and the fish [00:28:30] don't pay any attention to those yet. The water goes up, it gets a little dirty, or rainstorm comes in, all of a sudden, that brown trout is going to wheel on those baitfish and try to attack them. Or if you hook a smaller fish, you may see this at times, you hook a small fish and a big trout comes and tries to eat it. That fish is showing signs of distress. The trout know it. They really have trouble catching baitfish [00:29:00] in bright sunlight. They're not as maneuverable as a small baitfish, and they can't really get them. But as soon as that baitfish shows sign of trouble, boom, they're on it. So you know, it's probably more important, I think more important than how you fish a streamer is when you fish a streamer. Here's an email from Bob from Southern California.
"I learned to fly fish when stationed out on the Olympic Peninsula [00:29:30] in Washington. I know, tough gig, right? I recently fished the Kern River for the first time and found this watershed to be humbling. While I did find success and was fortunate enough to land a true Kern River rainbow, I struggled a lot during the first day or two outing on the river. Many of the pockets were much deeper than I was used to, and I had a heck of a time getting the fly down the water column holding the fish. I couldn't add enough split shot to overcome the current, and the smaller nymphs I was using just [00:30:00] wouldn't make it to the bottom.
For reference, I was fishing two nymphs under an indicator on a 9-foot 4-weight. I spoke with a rep at a fly shop and mentioned adding about 12 feet of 4X to my leader to try to get down there and received a look like I said something pretty impractical. Aside from succumbing to the peer pressure of joining the euro-nymphing masses, what can you recommend? Ultimately, I just moved upstream to more suitable water that was three to six feet deep and had a great second day of fishing." [00:30:30]
Bob, I think you did the right thing, and certainly, I don't know why you got a strange look on putting a long tippet below your indicator because that's a good way to get down deep quickly with smaller flies. But I think you're right to look for water three to six feet deep. Trout prefer to feed in water that's two to four feet deep. And yes, they'll feed in deeper water, but often, they're just resting down there and getting out of the way of predators. [00:31:00] I wouldn't worry so much about not being able to get down into those really deep sections because those fish may not have been actively feeding.
However, I think what you did was as good as you could do. In fact, I would have gone to 5X or even 6X because we all know that the thinner the tippet, the quicker you're going to get your flies down to the bottom. Sometimes, going to a longer, [00:31:30] lighter tippet below your indicator is a great way to get your flies down without adding a lot of split shot. So I think you did the right thing, and I don't know why they looked at you funny. I, probably, if I had been in that situation, would have passed on those fish myself, because there are certain fish that are in deep fast water that are just going to be almost impossible to catch and I think more trouble than it's worth. Anyway, again, [00:32:00] I think you did the best thing about moving on to find more suitable water, but you could have gotten down maybe with a longer, lighter tippet.
Josh: Hey, Tom. Josh Billings here from Davis County, Utah. Thanks for this podcast. I've really enjoyed listening and have learned a ton. I actually lived in Rochester, New York until about a year ago, was there for nursing school, and missed a seminar you did at my local Orvis Rochester store by a day. [00:32:30] I was very bummed not to get to meet you in person, but I really appreciate your podcast. Like I said, I've learned a ton.
My question is about hook setting on fish downstream from me when I'm in an upstream position. On some of my local streams, with the way the brush and everything is set up, the only way to get a fly down to some of these fish is to stand at the top, the head of a pool, or run and float the fly down into [00:33:00] the line. And I've had a couple of occasions where the fish had come up and taken the fly, but because I'm upstream, as I set my rod, set the hook, I ended up just pulling it out of the fish's mouth. It's happened enough to where it's becoming a bit of a nuisance, and I really like to fix it so I can get a couple more fish to hand. Any tips in these situations on how I can set my hook? I've tried [00:33:30] sideways, but that seems to kind of produce the same result. So here, I'd go to a pretty wise fly fisherman and see if you have any answers. Thanks.
Tom: Well, Josh, I'm sorry, I miss seeing you in Rochester as well. I got some bad news for you, you're going to miss more fishing straight downstream. You know, no matter what you do, you're going to pull that fly straight out of a fish's mouth. And as you found, setting the hook sideways, [00:34:00] unless you're really close to the fish, isn't going to do you any good because no matter whether you move the rod to the right or to the left, your fly is still going to jump straight upstream just because of all that line out there and the way the tension on the line works.
The one thing that I do recommend, which is what Atlantic salmon and steelhead anglers who are usually fishing downstream do is they don't set the hook. They just wait until [00:34:30] they feel the pressure of the fish, and that's because the fish has taken the fly and turned sideways. And then you have a better hook setting angle because you're not pulling that fly straight upstream. So I would try not setting the hook and wait till you feel the pressure of the fish. It's hard to do. And yes, you're still going to miss a lot of fish casting straight downstream. It's just going to happen, which is why most of us try to get at somewhat of an angle [00:35:00] to the fish, and better yet, fish at an upstream angle because that's a much better hooking situation than fishing downstream. But don't set the hook, be a little patient, and don't worry about moving your rod to one side or the other.
All right, that is the Fly Box for this week. Let's go talk to Beau Beasley about who owns the river. Well, my guest today is Beau Beasley, author and [00:35:30] someone you've probably heard of or heard from because Beau is the founder and the director of the Virginia Wine & Fly Fishing Festival, which is an event I look forward to every year, and also an author of three books now. One of them is called, what is it, The Fly Fishing Guide to Virginia? Is that the one, Beau?
Beau: Yes, "A No Nonsense Guide to Fly Fishing Virginia."
Tom: And then a recent... [00:36:00]
Beau: "A No Nonsense Guide to Fly Fishing the Mid-Atlantic."
Tom: Right. And then a recent book on Project Healing Waters, on stories from Project Healing Waters, and the title of that one, you'll have to help me with that.
Beau: Yeah, it's "Healing Waters: Veterans' Stories of Recovery in Their Own Words."
Tom: Right. And you may have read, there was an excerpt in the latest issue of "Fly Fisherman" magazine.
Beau: Yes, it was.
Tom: It was a great story.
Beau: Yeah, I sent [00:36:30] a section to Ross Purnell, the editor, and I said, "Hey, I'd like you to consider me for a review, if you would, please." He wrote back the very next day saying, "Heck no, I'm not going to do a review. I want to run an excerpt of this. This is great." So I was really pleased to have had him do that. And the response has been very warm. It's a narrative or narratives of 32 real-life, either veterans or volunteers and their story of why they went into the service, [00:37:00] how they got injured, and how fly fishing and being a part of Project Healing Waters has helped them in their recovery. It was a hard project, it was pretty intense, but I'm really proud of it. And I'm very glad that it's out, you know, available at multiple Orvis stores near where I live in Virginia, and of course, Amazon and my website. But I'm very fortunate. I worked on it for about eight years, believe it or not, off and on. But I'm very happy that it's out, and a portion [00:37:30] of each sale goes towards helping Project Healing Waters.
Tom: And then you have a book that is coming out. It's not out yet, right?
Beau: No, it just was recently released, The Healing Waters.
Tom: No, no, no, no. The book that I've been urging you to write for years.
Beau: And which one is that?
Tom: The one on access.
Beau: Well, I don't know. I think, you know, I hadn't really [00:38:00] thought about that. It probably could be a section or it could be a book someone could write. As you well know, access is a difficult issue. I'm probably known more for that than just about anything else, because several years ago, I started writing about a court case in Virginia where an angler contacted me asking me for help because he was being sued for trespassing [00:38:30] while fishing in public water. And that's probably what I've become best known for, because I started writing about Crown Grants and King's Grants and access and use issues.
And the long and the short of it is I covered that story off and on for two years, and eventually, the landowner who never granted anyone an interview called me and granted me an interview. [00:39:00] And I asked him, I said, "Why are you allowing me to interview you? And you're not allowing anybody else." And he said, "Well, I've been reading your work for almost two years." I'll never forget this. He said, "I've been reading your work almost for two years, and you're the only person in the outdoor industry not making me out to be Genghis Khan."
Tom: Yeah. What I admire about you, Beau, and something that I wish we'd see more in journalism these days is that [00:39:30] you take a very balanced view of the issue. And there are a lot of us that tend to come down hard on private landowners regarding public access. And you do, in cases, certainly, but you also listen to the other side, which is how you're going to resolve these disputes, right? You're never going to resolve them by just looking at one side.
Beau: Well, I try to be as objective as I possibly can. People [00:40:00] like me listen to your podcast because they see you as an authority, and they know they're going to get good information. If they didn't think they were going to get good information, they wouldn't bother listening. Now, it's ironic for me that I'm being interviewed by Tom Rosenbauer when I listen to the show myself, right? So it's kind of cool to get interviewed from the person that you listen to, other people interview as a podcast listener. But I am ruthlessly objective. [00:40:30] I get contacted regularly from across the country. When I started doing this research on this Crown Grant on the Jackson River of Virginia, I had no idea that it would lead me to write about and investigate cases all over the country. And I'm pretty regularly contacted.
Somebody read my article about Virginia, and then they wanted me to do research on the South Holston. I wrote about access [00:41:00] issues on the South Holston. Then the people in New York read about my article that I did on the South Holston in Tennessee, and they're like, "Hey, will you come up here in New York and help talk about the issues on the Delaware River in New York?" But my claim to fame, for lack of a better choice of words, is, and I tell everybody this, I get contacted by landowners and I get contacted by owners, landowners, and I actually get contacted by [00:41:30] nonprofits too, organizations.
And I tell them all the same thing, "Look, I'll look into this issue if I think it's compelling enough, but you need to understand that I'm not going to take your side. My job is not to advocate for the angler. My job is not to advocate for the landowner. My job is to advocate for the truth. And unlike most media today, I don't think my readers are so dumb, they need me [00:42:00] to tell them what to believe." And I think everybody has a certain amount of bias, and I think you people tend to listen to the media that they think they're going to hear what they want to hear. But that's not my job, Tom.
My job as an investigative outdoor writer is, best I can, to find out what the truth is, and for me, it's what is legal. So I try to find out [00:42:30] what's legal and what's illegal. And what do the laws say? Because one of the most common problems I find with anglers is they think that if they're from, we'll just make it up, they're from Wisconsin, and then they go fish in a different state, they think that the state that they're going to has the same laws that Wisconsin has.
Tom: Yeah.
Beau: Or I'm from Virginia, so I kind of know Virginia law pretty, pretty well. Matter of fact, [00:43:00] I knew my work was being read diligently, it's kind of a sidebar, when I had a Virginia game warden call me on my cell phone number and say, "Hey, I know you're writing about this. You might want to look at this issue and that issue. Click." That was cool, right? When the law enforcement people are calling you to give you tips, that's a good sign that they see you as being credible. And quite frankly, you know, [00:43:30] I've made a lot of anglers angry because I'll tell them what they don't want to hear. But if you're fishing on private property, and it is private property, then I'm going to tell you, "You're on private property, and they don't like it," right? Sometimes you'll have somebody say, "Well, I've always fished here. My grandfather and I have always done this." Well, you've always broken the law. You just didn't know it.
Tom: All right.
Beau: And you know, I just think [00:44:00] you need to try to be accurate. And these issues can often become complicated because there's so many different jurisdictions, right, or different authorities, whether it's the game department has one piece, the Army Corps of Engineers has a different piece, the tax authority has a different piece, the sheriff's office has a different piece. And you've got to stitch all of that together to try to kind of make a full puzzle. And often, people just get different parts, and [00:44:30] their personal belief system and what they believe is what drives them rather than the facts.
And when I get called from people in California or New York or whatever, here's what generally happens, Tom. An angler will send me an email and say, hi, "I'm Tom Rosenbauer, and I live in Vermont. And I fished this river for 30 years, and now I'm being told I can't go here, here, and here. And I call [00:45:00] the game department and they just kind of blow me off. And I don't know what to do. Will you help me?" That's 99% of the emails I get. And then I have to investigate them, and I tell them, "Look, you need to understand that if I look into this," I just sent this email, I sent an email this morning to someone with very similar language, "Here are seven or eight questions I have for you. And you need to understand that if I write about this and make it public, I'm going to go with [00:45:30] what is legal as best as I can understand. And that may not be what you want the public to know."
I've had people call me up and say, "Well, I need you to look into this." And I started investigating. I called him up, and I go, "Hey, you're in the wrong," right? And then they don't want you to write about it anymore, right? They don't want you to. But I try, you know, I've become kind of a de facto expert on access, river access, and the emphasis is on de facto and not expert, right? [00:46:00] In the land of the blind, the one-eyed troglodyte is king. And most people don't know the law or they don't know more than how they feel. They feel strongly, but your feeling strongly about something doesn't make it right.
Tom: Right. And there are some people that feel the law needs to be changed, right? But let's rewind a little bit, Beau, and talk about how [00:46:30] we got here. Now, it's interesting. I read a lot about...I don't read fishing books very often, but I read a lot about water, and I'm reading about water and water management and mismanagement throughout the world. And I'm reading a book now called "Rivers of Power" by Laurence Smith, and what I didn't realize is that, historically, going back probably thousands of years, [00:47:00] the water in rivers has always been considered a public resource. So the water itself, the flowing water, has always been considered a public resource in nearly every civilization that I've looked at.
But the problem arises when you talk about ownership of [00:47:30] the surrounding land, the river bottom, and different states treat the river bottom differently. In some states, you know, I mean, the title of this really is who owns the river, right?
Beau: Right, who owns the river?
Tom: And nobody owns the water, but you have to get on that river somehow. [00:48:00] Let's talk a little bit about what various types of river bottom ownership there can be.
Beau: Okay. So when you're talking about...and this is another reason why it gets confusing because you use the same word, and the word is navigability, you use the same word but it often has different meanings. The first time somebody contacts me and says, you know, [00:48:30] such and such river, I ask them, and often, they don't know. Sometimes they do. I say, "Is the river navigable or not?" And when I say a river is navigable, it means that the Army Corps of Engineers has deemed it a navigable river according to the federal government. And we'll have to back up some.
And we talk about, as far as the United States goes, because I don't write about international waters [00:49:00] other than in the ocean, as far as America goes, we're unique in that we have the 13 original colonies, and those colonies all fell under British control. And then, when the country came about, then we had English law is what we subsumed because we're British colonies, and then we became [00:49:30] our own country. Well, you defer to what you know. So, of course, British law or English common law became the law of the United States.
Okay. So, why does that matter? Why does that have anything to do with what we're talking about? The reason that matters is because, in 1899, the federal government decided, "Look, we've got to come up with a system that [00:50:00] easily determines what is navigable and what's not. So in 1899, they passed a law called the Rivers and Harbors Act, and in Section 10 is what gives the Army Corps of Engineers the authority to deem something navigable. What does that mean?
What navigable means by the Army Corps of Engineers standard means it is subject to or has been subject to commercial traffic. And when I mean commercial traffic, [00:50:30] I mean moving cows up and down the river, moving horses up and down the river, moving tobacco and corn and that sort of thing. And you think, "Well, what difference does that make?
Tom: Floating logs down the river.
Beau: Floating logs, right, correct.
Tom: Now, does building a mill on a river, does that constitute navigability?
Beau: Yeah, it could.
Tom: Yeah, okay. Okay.
Beau: It very could. So you're thinking, "Well, Beau, [00:51:00] I don't understand. Why does this matter?" Here's why it matters. The first interstates in the colonies were not roads. The first interstates were rivers. And people moved all of their goods up and down the river, and that's how things went from the farmer to the field or from the field to the farmer to the store, right? But the Army Corps of Engineers, the reason this [00:51:30] Rivers and Harbors Act came about was because people who owned land on both sides of the river would put up a rope or some kind of barrier, and they had their own private toll.
Well, let's say the river was 100 miles long from where your farm was to the city where you were going to sell your corn, well, if you went through 10 tolls, by the time you got to the city, there may not be any money left. So the federal government said, "Look, we can't have these private tolls. We're not [00:52:00] going to tell all these states what to do. But what we are going to say is we, the federal government, own the surface of these rivers if that's got commercial use." Well, as soon as the feds said they own the surface, then almost every state that I'm aware of said, "Well, if the feds own the surface, then the state," we'll use Virginia, "owns the riverbed."
Tom: Okay.
Beau: Once the feds own the surface, the state owns [00:52:30] the riverbed. Well, who cares? Because then it falls underneath the public trust doctrine. And just like you might own the dirt out in front of your house, you don't own the land under the sidewalk. You can't keep anybody from walking up and down the sidewalk any more than you can keep them driving up and down the road if it's a public road. So the first interstates in our country were rivers. And once the surface became owned by the federal government, the states then said, "Well, then we own the riverbed." [00:53:00]
Once the state owned the riverbed, then the public trust doctrine kicked in. And that meant anybody could walk up and down the river and use it for personal use. Just like when you go to the grocery store, you don't have to pay a toll every time you go to the grocery store. It's just part of normal daily life. Now, obviously, there are certain exceptions, and occasionally, people put up tolls. But that's why [00:53:30] it matters. And since we have 50 different states, they're not all uniform. So that's why people get confused. But the one continuous thing is, I don't care if you're in California or you're in Virginia, if it carries a navigable rating by the Army Corps of Engineers, then the bottom of that river is owned by the state. And almost every single case, there's only one case I know of that [00:54:00] doesn't supersede that.
But I only know of one variation, and that is in New York, on the Salmon River up in Pulaski. And that's because, when the state sold the property to the landowner, and then it's a case called, I can't think of it, Douglas Salmon Run versus Bahrakis, I think, and the state said, "Well, this is public." And the landowner said, "No, this is private property." And the state [00:54:30] insisted, "No, you don't own it. We own it." And the landowner who'd been in the family for about seven generations said, "Well, here's my deed, and it specifically says I own the river bottom." Well, they went to court because the state kept inviting anglers on private property, according to the landowner. They sued one of the anglers, which is what happened in Virginia. That's how I got involved in the Virginia case because the angler contacted me. [00:55:00]
It went through court, and basically, the court in New York said to the state of New York, "You claim to own the river bottom and to control the fishing rights." Yes, we do. And the court said, "Is there a provision in here where you have retained the mineral rights?" And they said, "Yes, it's written right here. Here it is in writing that we own the mineral rights in the river, even after we sell it [00:55:30] to the landowner." And the court said, "Do you have anything in writing, state of New York, saying that you retained your fishing rights?" Well, now they're done because they had already admitted that they retained their mineral rights because they put it in writing, and it's in the deed. They did not retain their fishing rights. And the court said, "Well, state of New York, you've done it to yourself. You didn't reserve your fishing rights in this particular deed."
So it's different in every state, [00:56:00] and it's different in every parcel. That's why it gets confusing. So you have to be very specific. But there are a couple of broad brushes things. Number one, if it's navigable, in almost every single case, the state owns the bottom of the river, which usually means anglers can wade there and fish there. There's some exceptions, but they're extremely rare.
Tom: Now, you know, how about, [00:56:30] I've heard of rivers in Wyoming and Colorado where...
Beau: Right, right, right. Why are they different than us? Great question.
Tom: Yeah, because, does the state own the river bottom there? Because I've heard of people even being prosecuted for anchoring, right?
Beau: Yeah, yeah, yes. So it's different in every state. So in some cases, there's called the equal footing doctrine, which means, when a state gets added, [00:57:00] let's say the 14th state from our original 13 colonies, we add a 14th state, that 14th state has the same ownership rights as the original 13. But here's where it gets different. Each state is like its own little kingdom, its own little government. And as long as they don't have laws that contradict the overreaching federal law, they can pretty much do whatever they want. Here's some good cases, [00:57:30] some examples for you.
In Montana, everything under water is owned by the state. Same thing in New Mexico. There was a recent case where anglers were kept out of all kinds of thousands of river miles because the game department had a regulation saying, "Well, if it's navigable, the landowner can keep you out of it." Well, it made for a great agency rule, except the agency rule [00:58:00] wasn't rooted in law. And somebody said, "Hey, just because you wrote it in the game department rules doesn't make it legal." So anglers got access to all kinds of water. Then the state legislature came back and wrote a law, which we can do. That's why people need to be educated, so we can go to our legislators and change a law if we don't like it.
So they did. They turned around and wrote the law. And the New Mexico legislature put [00:58:30] thousands of miles off-access or denied access to thousands of river miles in New Mexico. But they had one problem. An angler took them to court and said, "It's not the state constitution," well, not an angler but a body of petitioners. The state constitution says that the state owns the bottom of all the rivers in this state. Therefore, the state legislature cannot [00:59:00] write a law that contradicts the constitution of the state of New Mexico. And the New Mexico Supreme Court said, "Yep, you're exactly right." So then it went back to being open to the public.
But it often takes years of wrangling and legal maneuvering to bring clarity, because, you know, gray is where attorneys live. If it was black and white, we wouldn't need an attorney, right? Gray is where attorneys live. [00:59:30] So often, these issues are gray, and it's not an easy, you know, one, two, three thing to determine. But some of them are. And in some cases, like Utah and places like Colorado, once the state determines a river is navigable, then the bottom is owned by the state, but in places like Utah, the state hasn't made a determination of what's navigable. Same thing in Colorado. [01:00:00] Well, if it doesn't carry a navigable rating, then it can be privately owned. Or it's ambiguous.
So it's different from state to state. That's why it can be confusing, and that's why anglers need to kind of, you know, know the law. And I get approached, you know, people ask me, "Well, what do I do if I'm out somewhere fishing and the game warden comes up to me or the deputy comes up to me and tells me to leave?" Well, you got a decision to make. What I would do is I would leave... [01:00:30]
Tom: Yeah, for sure.
Beau: ...even if you think you're in the right, you know, if you're absolutely sure, "No, I know I'm in the right." Now, I've had cases where I've investigated where the law enforcement officers were wrong, they just didn't know it, right? But not everybody knows everything. So if you get approached by law enforcement, just be polite and ask them, you know, "Officer Rosenbauer, can I have your card so I can call you later on and find out, you know, what's going on?" [01:01:00] Because I can tell you, if you're an angler, 95% of the time, if a landowner calls law enforcement, 95% of the time, that might be an overstatement, but it's close, you're going to get some rural deputy, right? Some guy is going to show up or some gal is going to show up wearing a brown outfit and their five-pointed star because they're a county law enforcement, sheriff's office.
They're not going to know the law. But I can tell you what they do know. They do know what the sheriff wants. And you know what sheriff wants? [01:01:30] Whatever sheriff wants, quiet, right? He wants the problem to go away. So they're going to diffuse the situation by telling the landowner or telling the anger they have to go. That doesn't mean that the angler isn't right. You just need to follow up and call the sheriff's office and say, "Hey, are you sure? Is this absolutely private property?" Because the officer may have to make a call, you know, spur of the moment, [01:02:00] and he or she is just trying to diffuse the situation.
Call your local game warden. You know, if you're unsure, call your local game warden and say, "Hey, I'm going to go fishing on... I'm going to go to," I'm making this up. I'm going to go to Botetourt County in Western Virginia near Roanoke, and you call the game office and you say, "What's the phone number for the game warden for Botetourt County?" They'll give it to you or leave a message and tell them that you want [01:02:30] the game warden to call you and say, "Hey, I'm going to go fish Cripple Creek. Is that public or private?" They'll tell you to the best of their knowledge, and they might say, "Well, you know, it is public property, but we've had an issue with this one particular landowner who comes out and says something to you."
The thing to keep in mind is if you're an angler, you have rights to...if you have a fishing license and you're there legally, you have the right not to be harassed. But you need to be polite and professional. [01:03:00] And you know, if you get out of the river, all bets are off. Once you step out of the river onto upland property or dry land, that's a totally different animal. So you just need to make sure that you enter the area legally, you know? But I've had cases where, you know, landowners get really nasty or whatever, or call the police, but you've got a camera. Take a picture. Take a picture of the person [01:03:30] that's harassing you. I mean, they're on public property, you can take their picture.
And you would be surprised if you know your rights. The landowner comes out and says, "Well, I'm going to call the cops." I'll tell them, "Well, go ahead. I have a legal right to be here." But you just have to, you know, use common sense. The problem is most people don't want any kind of confrontation. And I've got an issue that I'm dealing with right now in the Delaware, in New York, [01:04:00] where people are posting property as private property, and it's not. It's public property. It's clearly public property. But New York DEC isn't interested in, you know, defending the public's right to fish. And we'll find out whether the people in New York are going to stand for that or not, right?
Tom: So exactly what is the issue there? Is it a place where the state has purchased public easements [01:04:30] and landowners are posting it?
Beau: Yeah. So this section of the Delaware that I'm talking about is on the East Branch, on the Long Flats Pool section. And there's a public fishing rights there. Now, public fishing rights is property that the state has purchased from a willing landowner. You park in the parking lot, you walk down a trail, and usually, the public fishing rights aren't wider than 33 feet, which is pretty wide if you think about it.
Tom: Thirty-three feet from the high water mark?
Beau: Yes.
Tom: Okay.
Beau: Correct, upland, [01:05:00] which is, that's significant. That's the widest one I've ever heard of. There might be wider ones, but I've not heard of it. And the only thing you can do on a PFR, public fishing rights, is fish. You can't camp. You can't build anything. You can't stay there overnight. But this set of landowners has put up a sign saying, "No, no trespassing." And they go on to say that they own to the center of the river and that you can't walk on it. [01:05:30] Once you get to that public fishing rights land, obviously, you can't walk past the sign because that's out of the PFR, but you can clearly go on the river. But what those landowners, that HOA is trying to say is they own to the center of the river because they have a claim to an old land patent. But I've done the research, and they have a deed that goes to the center of the river, but it's because they redrew it themselves. [01:06:00]
Tom: They redrew it themselves?
Beau: Yeah. And filed it with the court in one case.
Tom: And the state has legal records of having purchased an easement on this same river bank?
Beau: Yes. Well, the landowners aren't contesting that you can't stand on the river. They're contesting that once you get to that point, if you enter the river and start wading downstream, that you're on their property because they own to the center of the river. [01:06:30] But it's a navigable river. And according to New York law, the state owns the bottom. But not only is the sign up there, it uses the state's name right on the sign. It says, "Don't contact us, contact New York DEC." Well, I don't know about you, but that sounds pretty official to me. So most anglers, they're all, "Okay, well, it's got DEC's name on it, so it must be legal." But New York DEC didn't put the sign up. [01:07:00]
And when I contacted them, they're like, "No, we don't have any private ownership of that section of the river." But most anglers don't know that. And, you know, New York DEC has taken public comment about wading in the river, but they don't appear to be interested in taking any action. And I don't know what action can be taken other than they could say, you know, [01:07:30] the river bottom is free for people to walk on.
Tom: So I'm confused here. The state purchased or leased a fishing access, right? Thirty-three feet.
Beau: Yes.
Tom: And so legally...
Beau: What we're specifically talking about is in the river itself. We're not talking about the bank.
Tom: Okay. So I could legally stand on the riverbank and fish.
Beau: Correct.
Tom: Once I step in the water, the state didn't also...oh, the state [01:08:00] probably figured it didn't have to lease the riverbed because it was state-owned, right?
Beau: According to state law, they already own it.
Tom: Yeah.
Beau: The bottom of the river falls underneath the public trust doctrine in New York. It's a navigable river, deemed navigable by the Army Corps of Engineers, and New York code says that they own the bottom of the river. The problem is people are putting up signs posting sections of the river, and New York DEC [01:08:30] doesn't appear to be interested in telling them to take the signs down or educating the public that they can fish there. So I'm not advocating that you get angry or nasty with the landowner.
Tom: No.
Beau: I'm just saying, once you get in the river, if it's a navigable river and the bottom is owned by the state of New York, you have every right to be there. The problem is, in this particular case, my sources are telling me that New York DEC [01:09:00] isn't doing anything and that they're not going to do anything. They're averse to getting involved with landowners and anglers. And my position is that's your job. That'd be like you telling Orvis, "Look, I'm interested in working for Orvis, but I really don't want to talk about flies." But that's what you do, right? And maybe it's not...and I'm not trying to throw New York DEC under the bus. [01:09:30] Maybe the state legislators won't allow them to do anything. I don't know.
I just know that if you want change, then you have to contact your legislator and say, "Madam Legislator or Mr. Legislator, why should I buy a New York fishing license if I can't go fishing on New York property? Can you explain that to me? Can you explain why?" Because I can tell you, [01:10:00] if the landowner put up a sign that said, "I've decided I'm not going to pay taxes anymore," that wouldn't fly. Now, it could be that maybe they say, "Well, they have a right to free speech." Well, you can put up a sign that said, "George Washington lived here." It doesn't mean that he lived there by putting a sign up. So that's why people get confused.
Tom: Would this be the case where, like it's happened in Colorado, on the Arkansas, where an angler needs [01:10:30] to get arrested and then make it become a court case so that there's precedent? Is that the way to resolve it?
Beau: I never encourage people to get arrested. But in some cases, legal action is what has to happen before action takes place. Well, that's what makes the case in this particular section of the Delaware difficult, because Colorado [01:11:00] recently ruled that an individual angler can't bring a case. They don't have any standing. It would have to be the state. So if the state refuses to get involved and they're the ones who were supposed to advocate for it, then you've got a right but no way to exercise it, because your advocate isn't advocating for you. And it's just like anything else. That's what makes America great is that you can go and complain. [01:11:30] Somebody has a boss. Because here's the deal, somebody at DEC has got a boss.
The commissioner has a boss. The governor of New York has a boss. It's called the voters. And people just need to decide if they're going to be...and they need to be respectful and they need to be right. But in this case, it would appear that anglers have every right to be there as long as they have a fishing license, they legally entered [01:12:00] in a legal way, and they're on the river bottom, right? If you're on the Delaware, in the river, underwater, under a navigable section, that bottom of the river is owned by the state of New York according to New York code. But if the state of New York doesn't want to advocate for their anglers, to whom do they go?
But that's the truth. That's true for any jurisdiction. But here's what I know about politics, is the squeaky wheel [01:12:30] gets the grease. And people need to advocate for their position, but they need to make sure that it's legal, and they're right. And in this particular case, I've done a fair amount of research. And everybody is allowed to have an opinion, but your opinion is just that. It doesn't make it a fact. It doesn't make it right. And I don't believe in...you know, I don't want to demonize people [01:13:00] that I have a disagreement with. But looking at the law, it would appear that New York DEC is just not interested in advocating for their anglers, at least in this particular case. So I don't know.
And I'm doing research right now, excuse me, on the Truckee River in California. I've been approached by anglers out there and also on the Flint River in Georgia. [01:13:30] In Georgia, it's exactly the opposite. In Georgia, in the Flint River, clearly, the landowner owned the bottom of the river. It's the only time in all the years I've been doing research where I've ever read a deed that specifically said how much land was underwater. To me, as a just Joe Blow citizen, because I'm not an attorney, reading the law, it was clear that these landowners were right. But the state of Georgia [01:14:00] continued to tell the public they could go there until the landowners brought a case. And guess what, the landowners were right. And it was the Yellow Jacket Shoals section. But that was a non-navigable river.
Tom: It was non-navigable.
Beau: It was non-navigable.
Tom: Now, tell me that the Flint River was never used for commerce.
Beau: Well, it's never been deemed navigable in that section for commerce in the state of Georgia. There's no historical use [01:14:30] of commerce in that section. Well, it depends on how you want to define commerce. But you know, some people want to say, "Oh, well, if I float down it with my raft and I'm guiding somebody, that's commerce." Or you know, back in the day, some Indians took a couple of beaver pelts down the river, that's commerce. That's not going to pass muster for commerce.
Tom: It won't?
Beau: No, [01:15:00] it will not. It has to be, like you said, something like, usually, the standard is floating logs. And not just any logs, it's very interesting, they had to be logs of a certain type. Now, here's your Trivial Pursuit for the day, do you know how big the logs had to be to be considered commercial?
Tom: No.
Beau: They had to be big enough to make a railroad crosstie out of. Because that's why they were floated down the river. [01:15:30]
Tom: Isn't that most trees that were logged would be that big?
Beau: Well, it could be, but it would have to be an organized, you know, system. It's just not, like, two or three logs went down the river. It would have to show a historical use of commerce over multiple years. So it's not easy, it's not a one-time thing that, "Oh, well, Joe Blow floated a log or floated some logs," and that's going to be enough. Usually, it takes a good deal of [01:16:00] historical research to prove that, you know, logging was done there and the commercial movement of those trees constituted commercial commerce.
Interestingly enough, that's why a river, let's say the river is 100 miles, and this is theoretically now, the river is 100 miles and it's as deep as it is the entire length, but the river is only half navigable. You know why? Because at that [01:16:30] 50th-mile mark, there was a sawmill, and they took the logs out of the river there at that point and they cut them up. Therefore, there was no commercial traffic beyond there. So even though the river is big enough, it hadn't been deemed navigable because there's no historical use.
So you know, it's a fascinating topic, and it applies to maritime law too. Most people don't know the coast...here's a factoid, [01:17:00] the coast of Virginia, the state of Virginia owns from the coastline to three miles out. But you get down to Florida, the state of Florida owns from the coast to seven miles out. Excuse me, nine miles out. You know why? Because British cannons could fire accurately for three miles. Spanish cannons could fire accurately for nine miles.
Tom: Nine miles, wow. That's a good cannon.
Beau: So it's literally called the cannon law. [01:17:30] So you can claim whatever you want, but if you can't defend it, it's not yours, right? And some people might say that are historians, "Well, wait a minute, Spanish cannons were really, really accurate, and the British cannons were only accurate for, like, three miles. How come the British constantly whipped everybody's butt?" Because they got up really close to them and they could fire more rounds. That's what made the British Navy so fearful, was because they could fire [01:18:00] so much faster than the surrounding navies, and they would get right on top of them and go broadside to broadside.
So anyhow, my point is our history is what often determines a lot of our laws. And here's the hardest part. I have to try to convince people or not convince, explain. When you talk about a legal case with the water or whatever, it's a river case or [01:18:30] it's property rights case, what's right or wrong is immaterial. It doesn't matter. The court could care less about what's right or wrong. A good judge and a good court is interested in one thing. Is it legal? It's either legal or illegal. It has nothing to do with right or wrong. It's very hard to have us wrap our heads around that. It's the same thing with rivers. Each state will determine, [01:19:00] because the only people that can determine navigability is the Army Corps of Engineers or if a state legislature deems it. Judges are very, very, very reluctant to deem something navigable or not. They usually like to let the state legislature determine what's navigable or not, and that's not an easy thing.
Tom: Okay. So it brings up a good question. I live in a state, let's say [01:19:30] it's Pennsylvania, and I want to know if a particular river is navigable, either federally or deemed by the state. Is there a way to look that up?
Beau: The easiest way to do that is to go to the Army Corps of Engineers website and find your state, and it should give a listing of navigable rivers. And there's usually three categories, three broad categories. Navigable, which means the Army Corps of Engineers has said, [01:20:00] without a doubt, this is navigable. Assumed navigable, which means nobody's ever really brought a case, but the river is so big it just seems like nobody really has contested it. And then there's navigable, non-navigable, and assumed navigable. And assumed just means people are making the assumption until you actually go to court.
Pennsylvania has had some interesting cases. [01:20:30] You know, there was a case there on Spring Creek where, you know, landowners stretched a cable across and said, "Well, this is private property." And the state said, "No, this is owned by the state." And they ended up going to court. In this case, the state of Pennsylvania entered on behalf of the anglers and proved that it was a navigable river, brought in historical documents, and said, "Hey, our claim is this is a navigable river." [01:21:00] And they won.
Tom: So it wasn't deemed navigable by the Army Corps of Engineers, I assume, at this point, right?
Beau: Prior to that, correct. That's my understanding.
Tom: So now, if I'm looking at a river, trying to decide if it's navigable and it's not listed in the Army Corps website...
Beau: Then it's probably non-navigable. Most streams...
Tom: Is there a way to find out if the state has deemed it navigable? [01:21:30]
Beau: Their office of conservation or game department might be able to tell you. But in most cases, they're just going to defer to the Army Corps of Engineers. And most states, here's a shock, most people don't know, most states don't have a comprehensive list of the rivers they claim ownership of. Like, in my own state of Virginia, if you contact the state of Virginia and say, "Hey, I want a list of [01:22:00] every river that I can fish on that Virginia claims to have ownership of," they don't have a comprehensive list.
Tom: Well, isn't it assumed that they own the river bottom of every stream?
Beau: Not in Virginia, because non-navigable rivers can be privately owned in the state of Virginia.
Tom: Right, okay.
Beau: They absolutely can be. And the thing is, some people...here's what...don't do this. [01:22:30] Don't just go to the internet and listen to what people are posting on an access website, because you're going to meet all kinds of keyboard experts that will tell you, "Well, because of this and because of that." You need to call the local law enforcement agency and ask them, "What is your position?" And I have had really good response when I investigate an issue, because [01:23:00] all I'm trying to do is find out what's legal. I'm not interested in taking a side, and I just want clarity, because that's what anglers want, that's what landowners want. They want clarity. The average landowner, all they're looking to do is to protect their investment and to enjoy their property. They're not looking to deny other people's access. They're not doing that.
Tom: Well, some of them are. Some of them are. Some of them are, Beau.
Beau: Well, that's true, some of them are. [01:23:30] Some of them are. And when I run across those cases, and it's few and far between, but I just think people need to err on the side of giving people the benefit of the doubt. But very few anglers want to trespass. But I have met some anglers, they don't care, right? I had an angler I was talking to, and he was, specifically... [01:24:00] When I was talking about the Flint River in Georgia, for a while there was some talk years ago, many years ago, talk of building a dam, and the landowners down there took Jimmy Carter, who was then the governor, out on the river and explained to him why they didn't want to build a dam here. And there was a lot of talk about it. But the public didn't want it. And eventually, [01:24:30] Carter said no and talked to the president and all the powers that be, and they decided not to build a dam.
And as a result, Flint is a free-flowing river, it's one of the longest ones, I think, in Georgia, but this one angler, when I was talking to him about this, and I said, "You know, I think the landowners have a pretty legitimate case here, right? It's a non-navigable river. They own both sides. They got a deed that clearly says they own to the bottom of the river or the land that's underwater. [01:25:00] And state code, the plain reading of the Georgia state code, it seems to me these landowners got a pretty good case." And his response was, "Well, if I can't fish there, I don't care whether they build a dam or not. They can do whatever they want." As soon as that angler found out he couldn't fish there, he didn't care what happened to the river.
I think that's a rarity, but we need to be advocates for the river, and we need to be advocates for clean water, [01:25:30] and we need to be advocates for property rights. And the reason I say that is because most of the water in this country, fresh water, runs over private property. That's why you're seeing so many organizations like PERC, which is out west, working with landowners to try to get private landowners to help with the management of wild game. Because the elk, [01:26:00] they don't read a sign, right? There are no signs in the river. When you cross a property line underwater, that salmon or rainbow trout doesn't know when it's crossed into private property or not. Same thing with the game.
So we as conservationists need to help landowners with good environmental work, good conservation work, like the farm bill where people [01:26:30] like to go out and help fence the cattle out of the river. That's a great public-private intersect where we can agree on common ground to try to do what's best for the river and what's best for the fish. And we take care of the fish, the fish will take care of itself. We just need to kind of de-escalate from an emotional standpoint and try to find where we can. Where can we recreate locally? Where can we [01:27:00] go fishing and make sure the people whose job it is to ensure that we go there, that they do their job? That's why we're buying the fishing license. That's why we're paying the taxes.
So we just need to have a circumspect look at it and try to come to things with a level head. And if we find out that a certain law is detrimental to our position, whatever [01:27:30] our position is, insert favorite topic here, then we collaborate with other like-minded people, maybe it's Backcountry Hunters & Anglers, maybe it's Trout Unlimited, maybe it's a property owners organization, to try to find out, to get some clarity. I don't think it's unreasonable for landowners to get clarity on what they can do with their property nor do I think [01:28:00] it's unreasonable for anglers and hunters to get clarity on where they can go. And sometimes private landowners and public interest collide, and that's why we have a court system and why we need to talk to our legislators and government officials to try to find out what to do.
Here's the best analogy I can give you. You well know that I was in the fire department for many years. I spent 30 years working with [01:28:30] Fairfax County Fire Department. If you wreck your car and you're hurt and you're pinned in that car, you just want people to show up. You don't care who they are. But imagine how bad it would be if the state police got there and the fire department got there and emergency services medical people got there, and they started fighting over who's in charge. The question is not who's in charge. The question is who's in charge of what. [01:29:00] As a paramedic, I'm in charge of trying to save this person's life. The firefighter's job is to protect me and that citizen. And the police officer's job is to maintain security for the entire road. Well, we work together as a team.
Well, when we have a conflict with an angler and a landowner and natural resources, we need to find out who's in charge of what and who controls what. That's what we need to do by trying to [01:29:30] identify access and how the public can legally access fisheries and use them. Because if we don't, if we discourage people from fishing, who's going to advocate for the outdoors? You know as well as I do that anglers are one of the only people that ever asked to be taxed, right? We pay excise tax on our fishing gear, and that excise tax helps provide access and boat ramps [01:30:00] and educational opportunities for people to fish. Well, you know, ironically, I live beside the very first Pittman-Robertson Lake ever built in Virginia, and Pittman-Robertson money was used to create the lake right beside my house, like, within two miles.
Tom: Yeah, for those of you who don't know what Pittman-Robertson is, every time someone manufactures [01:30:30] a piece of fishing gear or visor, whoever, they pay an excise tax to the federal government, and that money is specifically used for fishing access, easements, boat launches, and so on.
Beau: Correct.
Tom: In fact, legally, people should not be able to launch a jet ski at a fishing access site, but they do it all the time, right? We won't go there. [01:31:00]
Beau: Well, there are other overland issues, right? We're seeing issues with public trails, with people using ATVs on them where they shouldn't.
Tom: So, before I let you go, I want to just state something here. You had talked about, if you're fishing in a river and the landowner confronts you, you know, you might want to call the game warden or the state police [01:31:30] or take a picture of them. I'm going to give people a different bit of advice, which is what I follow. If I'm fishing water and a landowner asks me to leave, I don't argue. I leave. It doesn't matter whether I think I'm in the right or not, I leave because I don't want to fish somewhere where somebody's going to be watching me. It's not going to be enjoyable, right? I don't care [01:32:00] if I have a right to be there or not.
Later, I may go back and use onX or similar or the state records to find out who the property owner is, and then research the law and find out if I was legal, and then perhaps write a polite letter to the landowner saying, "I don't think you're legally entitled to kick people off the land because," and then cite the law. But I would urge people not to even take a picture of something. [01:32:30] Don't start an issue because we're out there to have fun when we go fishing. We're out there to relax. We don't want to create any kind of confrontation on the water.
Beau: I want to clarify that I was very clumsy in the way I described that. What I meant to say was, if you're fishing and you're being verbally harassed, people are throwing rocks at you, they're being really nasty, you might want to consider taking a picture, and then leave. [01:33:00] The reason I said that is, I agree with you 100%, Tom. 100%, if someone comes up and says, "Hey, you're on private property, you need to leave," you need to leave. That's different than someone harassing you and cussing at you and swearing at you or threatening you, because then you have a record of it. But I agree with you. When I go fishing, the only thing I want to fight with is a largemouth bass or a smallmouth bass, or the only thing angry I want to see when I'm out there [01:33:30] is some big brown trout that I'm tussling with. I'm not interested in having a confrontation.
Most times, if you say to the landowner, "Hey, I'm so sorry. I didn't know. I didn't see any signs. I was unaware. I'll leave right away."
Tom: Yeah, that's the way to handle it. That's the way to handle it.
Beau: I have had times where people go, "Oh, well, you know what, since you were so nice, go ahead and stay." Just be nice, be respectful. If you see trash, [01:34:00] pick it up. I learned that from my good friend, King Montgomery, kind of one of my outdoor writer mentors. Whenever he went out fishing, he carried a trash bag with him. If he saw small amounts of trash, he'd just pick it up wherever he was and took it out with him, which I think is a great thing to do. We need to be thinking about paying it forward and being aware and being respectful. I want to be able to fish as much as I can, as long as I can. [01:34:30] Same thing with my kids. I mentioned to you earlier, I recently had my first grandchild, and I want my grandson to be able to go fishing and use our public resources in a responsible way. We just need to make sure we do it respectfully and do it the right way.
Tom: Yep. Good philosophy, Beau. Well, thank you, Beau. I'm sure that [01:35:00] we both raised more questions than we've answered, but that's part of the thinking process. And part of the process of getting involved and becoming educated in issues like public access is you need to know the law. If you don't like the law, then you need to try to change it.
Beau: Right. That's exactly right. You're exactly right. We just need to be aware of what's going on around us and to be informed. [01:35:30] If I can be so bold, I almost never do this, but I want to give a shout-out to Trout Unlimited's effort now to pass some Good Samaritan laws for mining. I think that would be a great thing. It just passed the Senate, and I'm hoping that it passes the House and gets signed. Basically, this Good Samaritan law says, if there is a mine that has been damaged and somebody tries to come in and repair the mine [01:36:00] or repair the water, and they cause further damage, unintentionally, that they can't be sued. Because right now, if somebody comes in and tries to repair a stream and something goes sideways, then they're legally liable. So as a result, nobody wants to get involved. So I just wanted to kind of say that.
And as a shameless plug, if you want to learn more about access or about fly fishing in and around the great state of Virginia [01:36:30] and the mid-Atlantic region, come on out to the Virginia Fly Fishing & Wine Festival. That'll be January 10th and 11th in 2025. And I'm going to have a variety of well-known speakers there, not the least of which is a guy from Vermont named Tom Rosenbauer.
Tom: I'm looking forward to it, as usual.
Beau: We're looking forward to having you, Tom.
Tom: All right, Beau. Well, thank you so much for sharing your knowledge and all the research you've done. And thank you [01:37:00] for digging into this issue. You know, I've been urging you for many years to become the expert on this subject. And in my opinion, you have become that person. So I hope you write that book.
Beau: Thank you. I appreciate that. I'll tell you one quick story before we go as a side note. I was doing research on an article, and again, I try to be ruthlessly objective because if the landowner is right, I'm going to defend the landowner, and if the angler [01:37:30] is right, I'm going to try to advocate for that. Well, I got a phone call one day while I was doing research, and it was a Commonwealth's Attorney who called me to answer some legal questions I had about a river in Tennessee. And we chatted for a few minutes. He'd read my articles. He recognized my name, which made me feel good. And we chatted for a few minutes. He answered my question, and he said, "Well, Beau, I got to go. I got to go back to court." I said, "Oh, you have a case?" And he said, "Well, yeah, actually, I had a 15-minute break [01:38:00] during a murder trial, but I wanted to return your call because it was important." And I'm like, I cannot believe a judge took a break from a murder trial to answer my questions about access.
Tom: Well, it's probably a little more pleasant to answer your questions than a murder trial.
Beau: Yeah, well, he was a fly angler. Like I said, I'm a fly angler, and we like clarity too. So thank you so much, Tom, for having me on today to talk about who owns the river. And I look forward [01:38:30] to seeing you again soon.
Tom: Okay, Beau, I look forward to seeing you. Thanks so much.
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