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Thread: Kenai - pontooning middle river - legal questions

  1. #1
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    Default Kenai - pontooning middle river - legal questions

    My friends and I own sevaral single person pontoon/catarafts. We enjoy floating the kenai and fishing for reds. As you know the majority of the middle and lower Kenai is "private property". I'm trying to figure out what the law is on the kenai regarding anchoring my boat infront of someone's property, getting out and fishing - without ever leaving the water. Is this legal to do if I never remove myself from the water? Can I stop a foot from shore, anchor my boat, walk up and down the river (never leaving the water) and fish infront of someone's private property? If so, can someone point me to where (paragraph/section) of law covers this topic? If this is legal I'd like to carry a laminated copy of the law on my boat with me at all times.

    Granted, I know that even if it is legal - it's not always smart to push the point with some land-owners. And I understand why. But at the same time if I am abiding by the law - I want to be able to exercise my rights, as well. And if this is not legal then I want to know that as well. I'm trying to be an informed pontooner. Anyways - I'm looking for some guidance on this issue...I actually asked an F&G Warden that I floated by last year this question...and he shrugged his shoulders and gave me a lame answer that he really didn't know...that that question wasn't part of his jurisdiction...more of a State Trooper problem. So, I didn't get any clarification out of him.



    Thanks in advance for any serious replies to this question.

    Sockeye Pete

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    Yes it's legal. You can even walk along the shore line as long as you stay below the high water mark.

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    I thought this was an informative legal opinion by the attorney general regarding property rights...

    http://204.89.222.126/mlw/nav/pdfs/2...rtoAPC-RKL.pdf

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    I appreciate the referenced material...that was exactly what I was looking for. I will explore the referenced statutes further.
    I'd like to laminate some copies and carry them with me on my next float. I'm not looking for confrontation by any means - just want everyone to be informed....

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    Here's the one page abstract I pulled from the referenced material that I'm going to laminate and carry with me on all future floats:


    The Alaska Constitution
    Article 8, Section 14. Access to Navigable Waters:
    Free access to the navigable or public waters of the State, as defined by the legislature, shall not be denied any citizen of the United States or resident of the State, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes.

    This section adopts the public trust doctrine regarding navigable rivers and other public waterways, whereby citizens of the state have the right to travel on and otherwise use these bodies of water. The government may not deny this use except by a general law that protects a public interest. For example, a state law may keep people away from a lake that supplies drinking water to a town, or impair navigation on a river by building a dam; but it may not prevent the public from using a navigable river to protect the interests of private fishing lodges. When the state sells or leases public land next to a navigable waterway or other public body of water, it must, because of this section, reserve a public access easement (AS 38.05.127) see also CWC Fisheries, Incorporated v. Bunker, 755 P.2d 1115, 1988, in which the court said that a sale of tidelands contained an implicit public access easement, by virtue of the public trust doctrine, even though such an easement was not mentioned in the patent). This section does not authorize trespass across private land to reach a navigable body of water.

    The Alaska Legislature defines “navigable water” as any water body of the state, including a stream, creek or lake that is suitable for any useful public purpose including hunting, fishing, boating, or other recreational activities. “Public Water” as defined in state statute, includes navigable water and all other water “that is reasonably suitable for public use and utility,” including habitat for fish and wildlife or the migration and spawning of fish. The Alaska statutes reiterate that “the people of the state have a constitutional right to free access to and use of the navigable or public water of the state” and that “the state has full power and control of all of the navigable or public water of the state, both meandered and unmeandered, and the state holds and controls all navigable or public water in trust for the use of the people of the state. The Alaska statutes also provide:

    Ownership of land bordering navigable or public water does not grant an exclusive right to the use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the public trust.

    Accordingly, under the constitution and statutes public use of the water and land below the ordinary high water mark is not considered trespassing. In fact, as reflected in AS 38.05.128(a) and (f), it is a criminal offense (Class B misdemeanor) for someone to “obstruct or interfere with the free passage or use by a person of any navigable water”. In addition to the criminal penalties set forth in AS 38.05.128, Alaska Statute 11.76.110, makes interference with the constitutional rights a crime, as well.

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    You may want to note that public easements in some stretches of the river are closed to the public during red season. Some of these are located on private land with a 25 foot public easement granted to the Feds when the native Corp participated in a land swap. These easements are the ones that I am referencing. Although the easements exist the land is still privately owned thus the need to protect the owners Interests by closing the easement to excessive wear by heavy traffic.

    You may also want to consider that many landowners have permitted required walkways for the purpose protection. I would not recommend anchoring to or in front of any walkway or dock situated on private property. This would interfere with owners access to the river. It may or may not be legal but it is inconsiderate. Yes I know this is touchy subject. Do your homework, be respectful and use common sense. Most of all have a good time!

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