Who Has the Right to Use the Truckee River? What California Law Says

There has been significant discussion about the public’s rights along the Truckee River, yet there has been little clear and consistent guidance from government officials about exactly where the public may legally stand, fish, recreate, and access the river and its riverbed.

We are now seeing different interpretations from different agencies regarding the public’s rights on a navigable river.

That creates an important question:

What does California law actually say?

One California Court of Appeal decision provides significant guidance.

The Bess Case

In Bess v. County of Humboldt (1992), 3 Cal. App. 4th 1544, the California Court of Appeal addressed the public’s rights on the navigable Van Duzen River.

Read the full Bess v. County of Humboldt decision⁠

The case involved property owners who argued that members of the public were trespassing when they used portions of the river and riverbed.

The court rejected that argument with respect to the public’s established rights on a navigable river.

The court explained that the State holds fee title, in trust for the public, to the portion of a navigable river below the ordinary low-water mark. It also explained an important distinction concerning the land between the ordinary low- and high-water marks.

The landowner may own the land — but that ownership is subject to the public trust.

The court stated that although abutting landowners own the land between the high- and low-water marks, their ownership is subject to a public trust for purposes including navigation, fishing, and recreation.

The court then made the public’s right very clear:

“The public, therefore, has the right to use the river, and the river-bed up to the high-water mark, for navigational, fishing, recreational, and other permitted purposes.”

This is a critical distinction.

The issue is not simply whether the ground beneath someone’s feet is technically owned by a private landowner.

The question is whether that portion of the riverbed lies within the area protected by the public trust.

The Water’s Edge Is Not Automatically the High-Water Mark

This becomes particularly important when river levels drop.

The Truckee River can have substantially different flows throughout the year. During low-flow periods, large portions of the riverbed can become exposed.

Under Bess, the ordinary high-water mark does not simply move with the current water level or change with the seasons.

The court specifically explained:

“The high-water mark does not vary with the season.”

Instead, the court described the high-water mark as the place “where the riverbed ends and the riverbank begins.”

The court further referenced determining that boundary by examining the riverbank and identifying the highest point where the river’s flows have prevented the growth of vegetation.

That means the water’s edge on a low-flow day is not automatically the legal high-water mark.

There can be exposed riverbed between the current waterline and the ordinary high-water mark.

Why This Matters on the Truckee River

Imagine the Truckee River is running at a relatively low summer flow.

The water may be several feet away from the ordinary high-water mark, leaving an exposed gravel bar or portion of riverbed.

The fact that the water has receded does not necessarily mean that the public’s right to use the riverbed has receded with it.

Under the principle described in Bess, the public’s right to use the riverbed of a navigable river extends up to the ordinary high-water mark for lawful purposes such as fishing, navigation, and recreation.

That can include standing on exposed riverbed below the ordinary high-water mark.

What About Private Property?

This is where the distinction in Bess is especially important.

A private landowner may have title to land between the ordinary low- and high-water marks. But that ownership is subject to the public trust.

In other words, private ownership does not automatically give a landowner the right to exclude the public from using that portion of the riverbed for the public-trust purposes recognized by California law.

The court specifically rejected the argument that the public could not use the riverbed up to the high-water mark for navigation, fishing, and recreation.

This is not the same thing as saying that the public can walk anywhere on private property.

The location of the ordinary high-water mark matters.

So does the particular use being made of the property.

But when dealing with a navigable river, private ownership and public use rights can exist at the same time.

We Need Clear Instructions From Government Agencies

This is where clear guidance from state and local agencies is essential.

People who fish, wade, float, or recreate on the Truckee River should not have to risk receiving a trespassing citation simply because government agencies have not provided consistent guidance about where the public’s legal access ends.

If the public has a legal right to use the riverbed up to the ordinary high-water mark, the agencies responsible for enforcing trespass, fishing, and public-access laws should clearly identify where that boundary is and what conduct is permitted there.

Likewise, if an agency believes that members of the public are prohibited from standing on a particular portion of exposed riverbed, the public deserves to know the specific legal authority supporting that restriction.

Clear, written, publicly available guidance would protect everyone — the public, private landowners, law-enforcement officers, and the agencies themselves.

No one should have to stand on the bank wondering whether stepping onto exposed riverbed to fish or recreate could result in a trespassing ticket because different agencies have different interpretations of the law.

We are asking our government agencies to provide clear, consistent instructions so that the public can understand and follow the law — and so that no one is unnecessarily subjected to a trespassing citation for exercising a right that California law protects.

A Question for Public Officials

This brings us back to the questions being raised on the Truckee River.

If a member of the public is standing on exposed riverbed below the ordinary high-water mark while fishing or recreating, what California law prohibits that person from doing so?

And if an official tells someone that they must keep their feet physically in the water, what statute, regulation, or controlling court decision establishes that requirement?

Those are reasonable questions.

The public deserves answers that are based on California law rather than conflicting interpretations from individual agencies or officials.

Protecting Public Access

Our organization believes that public access to California’s navigable waterways is an important public right that should be clearly understood and consistently protected.

We also believe private property rights should be respected.

Those principles are not necessarily in conflict.

The law recognizes both.

The important thing is understanding where the legal boundaries actually are.

Bess v. County of Humboldt provides an important piece of that framework: on a navigable river, the public has the right to use the river and riverbed up to the ordinary high-water mark for navigation, fishing, recreation, and other permitted purposes, even though portions of the land between the low- and high-water marks may be privately owned.

As the Truckee River community continues to discuss public access, we believe the conversation should begin with the law and with clear, consistent information from the agencies responsible for enforcing it.

The question should not be whether the public is entitled to use the river. The question should be where California law says that public right ends — and the public deserves a clear answer.