The woman in the green and khaki uniform reached across the counter and patted my arm.
“Bless your heart,” she said. “You’re from Texas, aren’t you?”
I nodded mutely, praying the tears filling my eyes would not spill out.
What had started as a simple expression of gratitude quickly gained steam and had become a full-on, impassioned soliloquy: I was so grateful for the public lands. I was amazed that I could camp, just about anywhere, for free. The wildlife! The streams! The trout!
I got a little choked-up just thinking about it.
I was at the headquarters of the 2.7 million-acre Gila National Forest southwestern New Mexico. Nearly 30 percent of the state’s land area is public. More than half of neighboring Arizona, where I had just spent three days camped in the Apache-Sitgreaves National Forest and fishing in the Mount Baldy Wilderness Area is managed by either the federal or state governments.
Texas ranks 47th among the states in public land ownership, with only about 4 percent of lands in public hands, just ahead of New York, Rhode Island, and Connecticut. This is an anomaly not just because Texas is, geographically and at least in part, a western state, but also because Texas shares a cultural and legal heritage with other southwestern states.
Private lands do enter the public domain here; The Nature Conservancy, notably, has purchased some key tracts to protect fragile environments or threatened species. Ranchers sometimes donate or sell their lands to state or county governments so they may be preserved for future generations. But the time is long past when there is any possibility of you and I holding title to vast swathes of the Texas landscape.
Much of the roughly 4 percent of Texas that is in the public domain is submerged lands – the seabed out to the 9-mile mark and the beds of navigable streams. And while state agencies – particularly the General Land Office – are energetic in their defense of public ownership of the hydrocarbon-rich tidelands, they often leave adjudication of disputes on streams to landowners and stream users to battle out in local courts.
I write about this in greater depth, and provide a list of opinions and decisions about Central Texas streams, in Fly Fishing Austin & Central Texas. But, in a nutshell, here’s what anglers need to know.
1. Whether a waterway can be considered public depends on something called “navigability.” A stream can be navigable in fact – canoes, steamboats, ships, or even logs have been or are floated down (or up) it; think Buffalo Bayou, the Sabine River, or the Brazos. But, in 1917, in Welder v. State, the Austin Appeals Court wrote that navigability “in fact” should consider public utility, not commercial use, and that “… hunting and fishing, and even pleasure boating, has been held to be proper public uses.”
A stream also can be navigable by statute. In 1837, the Republic of Texas passed a law (now enshrined, virtually unchanged, in the Texas Natural Resources Code, Section 21.001(3)) – that said streams with an average width of 30 feet are navigable.
Here’s a simplified example from the law:
Little Creek is 45 ft. wide where it joins Big River. It maintains a width of 45 feet for five miles above the confluence. For the next 10 miles, above that, Little Creek maintains a width of 30 feet. For the next five miles above that, 15 ft. (For reference, if you are paddling a 12-foot kayak, 30 feet is two-and-a-half boat lengths. Or a little more than three 9-foot fly rod lengths, or five or six body lengths, depending on how tall you are.) So, going by the letter of the law, Little Creek is navigable by statute to mile 20 above Big River.
2. The width of a stream really depends on the width of the stream bed. Practically speaking, this means that it doesn’t matter whether the creek is bank-full, has a trickle in a channel in some portion of the bed, or even if the water has gone underground for some distance. The depth of the water – whether it is ankle-deep or over your head – is utterly unimportant. A stream doesn’t need to have water in it to be considered navigable. Appeals court rulings (Tex. River Barges v. City of San Antonio, 2000) and Attorney General opinions (S-208, 1956) affirm that even dry stream beds remain open to the public.
3. There is an implied (but not legally tested) right to scout and portage hazards (including low-head dams) in the stream bed. It is generally assumed that one may enter adjacent private property to look ahead and to go around obstacles. If you do that, the foray onto private property should be limited – just enough to accomplish your objective, and then back into the water you go. Convenience is not a good reason to leave the river bed.
4. Access to public waters must be through landowner consent or from a public park or right-of-way. In practice, in Texas this most often means a public road crossing. We do not have the right to hop (or cut) fences or take shortcuts through someone’s yard to reach a public waterway.
5. If the stream is otherwise navigable, ownership of the stream bed is immaterial. Landowners sometimes will insist that they own the stream bed and therefore you are trespassing, even if you are in the water. They may, but you probably are not. A 1929 law commonly known as “The Small Bill,” recognized that even in the (rare) cases in which the state does not hold title to the bed of an otherwise navigable stream, it retains a right-of-way over it and the public may use it as if it is public property.
In Texas, we take care on most streams to stay in the stream beds in order to avoid trespassing. In Colorado, Arizona, and New Mexico last week I discovered a surprising feeling of freedom in being able to follow trails along the streams, picking the pools and runs I wished to fish.
Granted, I had to step around bear poop (there’s your answer to that old question) frequently, but that only added to the excitement.
I was envious of those who live closer to such grand reserves. I also was reminded of how important it is to preserve the access we do have in Texas.