OutdoorsMarch 7, 2014

Access rules for a portion of the Little Salmon River.
Access rules for a portion of the Little Salmon River.Tribune/Eric Barker

RIGGINS - Landowners and fisheries managers are tying to keep private property and public access rights from colliding on a popular stretch of the Little Salmon River here.

Right now the river is quiet and relatively calm, with only a few steelhead anglers plying its waters. But in a few months, when spring chinook surge upstream on their way to Rapid River Hatchery, anglers will flock to its banks, sometimes standing shoulder to shoulder to cast into the rushing water. They will jockey, jostle and crowd each other while trying to hook the powerful and beautiful fish.

But before they reach the river, many of them will encounter fencing and signage that is new to them. It will inform them they must cross private property to reach the river and access is conditional.

Most of the conditions, like picking up and packing out trash, are reasonable. But a few them will surely rankle some anglers. For example, crossing the river is not allowed, essentially making its east side off limits.

Can they do that?

The short answer is yes. But it's complicated.

There has always been some tension between private property and river access rights in Idaho. It's fueled by a pair of statutes with wording no more clear than the water that surges down the state's river during high spring flows.

"This stuff is goofier than heck," said Dale Allen, regional fish manager for the Idaho Department of Fish and Game at McCall.

Most anglers can tell you that the area between a navigable water body's ordinary high-water marks is essentially public ground. But few know it can also be private property.

There are two definitions of navigable found in Idaho Code. The first arises in Title 58 and has to do with the beds of lakes and rivers that were conferred to Idaho by the federal government at the time of statehood. Only bodies of water that were used for commerce-based navigation at that time qualify. The beds of such water bodies are owned by the state, whether they run through private property or not. The Idaho Department of Lands maintains a list of these water bodies and the Little Salmon River is not on it.

The second definition arises in Title 36 and says any stream that will float a log that is 6 inches in diameter at high water is navigable for recreational purposes. But just because a body of water is considered navigable under Title 36 doesn't make it public property. If it isn't on the Title 58 list and runs through private property, it is private. But Title 36 allows people to trespass between the ordinary high-water marks and only for recreational purposes. That includes fishing, Allen said.

"You can wade and fish and be below the high-water mark," he said.

So anglers can do that on the Little Salmon, right?

Daily headlines, straight to your inboxRead it online first and stay up-to-date, delivered daily at 7 AM

Yes and no. About three miles of the bed and banks of the Little Salmon River are owned by Ralph Sletager of Sandpoint, through R & S Properties. Based on Title 36, people can fish between the high-water marks. But first they have to get there, and Sletager controls access. Most anglers reach the Little Salmon from U.S. Highway 95, which runs along the river's west side. To get to the water's edge, they have to cross his property.

Sletager is allowing anglers to cross, but only if they agree to certain conditions, one of which is that they stay out of certain areas. Essentially, those anglers who don't agree to stay on the west side and out of areas he has posted are not allowed to cross.

If anglers didn't have to cross private property to reach the area between the ordinary high-water marks, they would be able move freely within the streambed, so long as they stayed between the high-water marks.

So where is that?

That's another tough one. Marshall Haynes, district conservation officer for the Fish and Game department at McCall, said he and others have asked for a clear definition and even a map they can consult. There isn't one. Sletager said it's simple: The high-water mark is essentially the spot where water covers the bank enough to prevent plants from growing. Based on that definition, seasonally high flows would frequently be above the ordinary high-water mark.

Sletager has a narrower view of what people are allowed to do between the ordinary high-water marks on Title 36 rivers than officials at the Idaho Department of Fish and Game. But they both agree that difference of interpretation doesn't really apply in this case.

The two sides are working on an access agreement that would formalize something similar to the present condition-based access. Sletager said his intention is to allow people to fish, but he also wants them to respect his land and that of his neighbors, many of whom own homes on the river's east side.

"It's a tremendous resource we need to have reasonable access to. I'm working and the Fish and Game is working to do that," he said. "At the same time, peaceful enjoyment of your home is something we have a right to also. So how do we do that? It's always balance."

Allen said any agreement reached between the two parties is likely to include conditions similar to those some landowners place on properties that are leased to the state through the Access Yes! program.

In the meantime, it will be left to law enforcement to settle any disputes that might arise. That's a difficult task, according to Haynes. He said anglers who trespass can be prosecuted, but so too can people who interfere with lawful fishing. Neither is likely to happen in the absence of overwhelming evidence.

"We are not going to write a ticket to a sportsman or a landowner or anybody else that we know is going to be dismissed," he said. "If it's a clear-cut case where we believe a crime has been committed, then yes."

---

Barker may be contacted at ebarker@lmtribune.com or at (208) 848-2273. Follow him on Twitter @ezebarker.

Daily headlines, straight to your inboxRead it online first and stay up-to-date, delivered daily at 7 AM