CALIFORNIA'S CONSTITUTIONAL RIGHT TO FISH.

• Author: Coats, Francis

1. INTRODUCTION 1087 II. PUBLIC TRUST FISHING RIGHTS 1094 III. HISTORY OF THE FISHING RIGHT AMENDMENT 1097 A. Why a Right to Fish? 1098 1. Protect Traditional American Public Access 1099 2. Progressive Era Influences 1102 3. State Ownership of Wildlife 1105 4. Summing up the Setting 1106 B. Creating the Constitutional Right to Fish 1108 1. Writing the Amendment 1108 2. Adoption by the Public 1110 IV. IMPLEMENTATION 1112 A. Contours of the Right 1112 B. California Land Law 1115 1. The Fishing Access Right 1117 a. In re Quinn 1119 b. California v. San Luis Obispo Sportsman's 1120 Association (SLOSA) c. Posf-California v. SLOSA Conflicts 1122 2. The Reservation Requirement 1123 a. Early Reservations and the CSLC 1124 b. "Public Land" or "Land Owned by the State?" 1126 c. The Leslie Salt Opinion 1128 d. Grants to Municipalities 1130 V. PROTECTING THE PUBLIC USE RIGHT TO FISH 1131 A. The Right that Got Away: Diminution of the Right to Fish 1131 1. Exclusion of Many Public Lands from Right of Access 1131 2. Exclusion of Many State Lands from Reservation 1137 Requirement B. Lessons from the Right to Fish 1140 1. Public Trust or Public Use? Confusion Leads to 1140 Reduced Protections 2. Incentives for Agency Action 1142 C. Pursuing the Public Right to Fish 1144 VI. CONCLUSION 1147 I. INTRODUCTION

   On November 8, 1910, the people of the State of California added section 25 of article I to the California constitution:

   The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the legislature may by statute, provide for the season when and the conditions under which the different species offish may be taken. (1) This right, added over 100 years ago, remains of interest for two primary reasons. First, it creates a public right to fish on a huge expanse of land, much of which is now privately owned. Conflicting law and piecemeal recordkeeping make it difficult to determine precisely how much private land is at issue here, but our estimate puts it at 1,134,636 acres of privately owned land, roughly 2.27% of private land in California. (2) Including additional state-owned lands currently closed to fishing and closed lands owned by municipal or other sub-state entities raises the total even higher, likely into the millions of acres. (3) Absent precise mapping, it is impossible to know how much of the land matters for fishing, in the sense that fishing access is only important if there is water to fish, but the point is clear: this right covers a lot of land. Broader recognition of this right would increase fishing opportunities, with attendant health, justice, and environmental benefits.

   Second, understanding how California institutions have protected or failed to protect this right offers insight into state public use rights. Although unappreciated in the literature, many states recognize public rights to use both public and private land. (4) Use rights are often lumped in with state public trust doctrines, but considering them in that light weakens public use rights. This confusion, coupled with other challenges to public rights, allowed California institutions to dramatically weaken the constitutional right to fish, stymying the broad access promised by the amendment. This introduction briefly explains these two aspects of the fishing rights analysis before laying out the structure of the Article.

   Fishing is important in California, and access to fishing locations can be a challenge. In any given year, 2.23 million Californians fish, (5) roughly 6% of the state's population. (6) These anglers spend a total of almost 24 million days fishing per year, (7) pumping roughly $2.3 billion into the state's economy. (8) Fishing is the thirteenth most popular outdoor activity in California. (9) California even recognizes the importance of fishing in its Children's Outdoor Bill of Rights, which includes the right to catch a fish. (10) Sportfishing holds special cultural significance in many of California's immigrant communities, (11) and non-commercial fishing provides an important source of food for many Californians. Most of the data on fish consumption comes from studies of women's health; just under 20% of women in the state eat non-commercially caught fish, and the percentage among poor women is much higher. (12) A study of women who received services at a Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) clinic in Stockton, California, found that 32% of women reported eating non-commercially caught fish, and 16% reported eating it in the prior thirty days. (13) Asian and African-American women had the highest consumption of sport fish, although the small sample size made it difficult to achieve statistical significance. (14) It is clear, then, that fishing is a big deal. But is access to fishing in California really a problem?

   At first glance, access to the outdoors, generally, and to fishing locations, in particular, seems like a non-issue in California. Almost 48 million acres of California open space land are open to the public, (15) roughly 46% of the state. (16) But this open land is concentrated in the Sierra Nevada, the Coast Range mountains, and the deserts, leaving large portions of the state with relatively little legal access to open spaces. (17) The Central Valley, home to a large and increasing percentage of the state's population, (18) is particularly underserved. (19) More than half of Californians live in areas with little public open space, (20) and this same pattern carries over to fishing access. The California Department of Fish and Wildlife (CDFW) publishes a map of fish stocking and fishing locations based on historical fishing access, but most identified fishing locations are in the Sierra, the foothills, or along the coast, with far fewer opportunities in the Central Valley. (21) Large portions of the more accessible rivers in the valley, like the Sacramento and the San Joaquin, are off-limits to shore anglers, leaving broad swaths of the state with limited access to fishing opportunities. (22)

   California state agencies also recognize the challenge of access to outdoor recreation areas. The state's official Outdoor Recreation Plan places a high priority on ensuring adequate access near populated areas, especially in underserved communities, but many Californians still face limited access. (23) The plan identifies "Lack of Access to Public Park and Recreation Resources" as a major barrier to outdoor activities (24) and prioritizes "acquisition opportunities to provide open space and public access to water features such as the ocean, lakes, rivers, streams and creeks," (25) particularly in the Central Valley. (26) In spite of these challenges, California agencies have not used the state's public-use right to fish to increase the public's access to the state's aquatic resources.

   The lack of accessible shore fishing areas in the Central Valley is particularly troubling given the Central Valley's demographics, which tend toward lower per capita income and higher unemployment and poverty rates than the rest of the state. (27) The Central Valley is also home to many historically marginalized communities, including three of the nation's top ten most ethnically diverse cities. (28) That marginalized communities face outsized pollution risks is well documented, but less attention has been given to the fact that such communities have restricted access to nature. (29) Anglers from historically marginalized communities may be less able to travel to fishing locations (30) and are more likely to require shore access, as opposed to access from a boat. (31) Anglers in communities like this need accessible shore-fishing, particularly given the importance of subsistence fishing in poorer communities. Moreover, fishing opportunities offer physical and psychological benefits to disadvantaged communities, not just access to fish as food. (32)

   Increased angling opportunities can also have broad environmental impacts, leading to a populace that is "better informed, more ethical, more conservation-oriented and, therefore, more likely, to respect and wisely use finite fisheries resources." (33) Assuming that increased access leads to an increase in the number of people who fish, there is some evidence that those people will come to care more about environmental protection; increasing knowledge about fishing and fishery resources is tied to increasing concern about environmental protection. (34) In sum then, for many reasons, in many places across the state, California needs increased fishing opportunities. By providing a history of the development and interpretation of California's constitutional right to fish, this Article aims to improve the implementation of this right.

   Turning to the second point, the analysis of the amendment also serves a broader purpose by demonstrating the challenges in constitutional protection of a public use right. Although federal courts treat fishing as merely a privilege and not a constitutional right, (35) many states beyond California have constitutional protection for hunting and fishing. (36) More broadly, many states protect public use rights for fishing, navigation, and recreation, through constitutional, statutory, and common law means. (37) In many cases, these laws explicitly concern access to and use of waterways on private land. Few states, however, have constitutional language addressing access for fishing; only four state constitutions protect fishing access: California, under article...