Public access and the ethics of fishing trespass

Public access is the greatest gift fishing enthusiasts enjoy from the State, and it comes with many conditions attached. It grants equal ability to enjoy the world’s most prized environments to anyone with a fishing license and means to arrive. But it’s always under fire, and comes with increasingly murky definitions of exactly what’s at stake, and where you can or can’t go.

The fishing world, in its advocacy and activism for the environment, is continuously stretching out to thwart the interests of those with money and power as they seek to keep everyday folks from using public waterways. The idea that real, unfettered wilderness land use expands our citizenry’s notion of its stewardship better than visits to safari parks is very compelling. But powerful interests continue to try and keep lands for themselves.

Last year, Montana’s HB 309 tried to re-classify many rivers as ditches to keep people off them. It was ultimately defeated in March after major public outcry. In Virginia, developers are drawing back to regulations from the state’s time as a British colony to sue anglers for trespass, even after after the state would not prosecute them. Michigan’s government is currently attempting to stop the its Department of Natural Resources from acquiring more land, which would ultimately limit fishermen. There are any number of other cases in waterways near you, and you’d be wise to join those following their progress.

But for all the earnest, above-the-board activity keeping bureaucrats and developers in their offices honest, reminding them there’s a whole lot of citizens out there who love to fish, it may be time to rethink what exactly is at stake, morally and ethically speaking, with river trespass.

Lots of opinions in this area stretch back to our antiquated notion of poaching. Of course, taking game illegally is a major issue, and should be condemned and frowned upon.

There’s still mystique around the gentleman poacher, the throwback hallowed in books like Danny, Champion of the World, where a put-upon village conspires to relieve a wicked landowner of his pheasants. This warm idea of a kindly fella with a flat cap persists, despite the overpowering reality that most American sporting poaching consists of deer hastily-gutted and de-loined in the dead of night. Poaching is an ancient-feeling thing, and certainly not what catch-and-release fishermen ever practice, by definition. So, abandon the idea of poaching, of sneaking around and furtive theft. If you’re not keeping fish, you’re not stealing.

And trespass, especially one leaving no trace, is not environmental crime. A fisherman practicing catch-and-release with barbless hooks is nowhere near as damaging as a trawler hauling a miles-long tuna line. It’s a crime against private ownership, not against a fishery or a community. It’s unlikely minor disturbances of river bottom has any lasting consequence to fish, to their homes, or to anglers who’re coming afterwards. In fact, given the amount of movement we know fish do along rivers during their life cycle, taking fish from anywhere on the river is likely to be just as detrimental to landowners along that stretch.

It’s better to think of open access as going out-of-bounds in the backcountry skiing sense than poaching or environmental crime. You’re not really harming anything, but it’s a liability issue, an issue of legal documentation, and one of personal conduct.

If you want access, you learn every letter of your state’s law, you stretch it to every applicable angle, as a lawyer would. But don’t be a jerk. Even if you have the right to be in the water, wading through an area surrounded by private property, don’t walk through water others are fishing, or float through and fish directly in front of someone’s picnic. Try to be invisible to other people using the water.

If that won’t get you where you want to be, find the landowner and ask. Maybe they’ll say OK. Maybe you can let them know about the group of volunteers stewarding that river’s good health, and let them know instituting a flies-only, catch-and-release section would buy them good favor and status as a patron of the sport. Maybe they’ve been thinking about developing a conservation easement but don’t know how.

If you’re truly shut out and run out of other river to enjoy, at least develop a system and priorities. One group of Iowa rafters has written its ‘Ninja Camping‘ guide to work with potentially dangerous laws about where and when you can stop for the night on the river. Their conclusions? Avoiding nuisance, damage, destruction and the like can help keep the spirit of the law when the letter gets a bit obscured by necessity.

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