Use Of Public Waterways Includes Streambeds - Even On Private Land

[flyfishmaster]

I thought this would be a good topic to post. The article below indicates the ruling that allow the public to set foot down on streambed, even if it is on private ground.

This is great news for fishermen that have always wanted to get out of the boat and fish a specific hole for an hour or two. But I know the current land owners will not be happy. What are your thoughts?

Here is the article: Utah court ruling

Utah Supreme Court: Use of public waterways includes streambeds - even on private land

By Stephen Hunt and Brett Prettyman

The Salt Lake Tribune

Article Last Updated: 07/18/2008 07:19:00 PM MDT

Posted: 7:18 PM- Fishing enthusiasts are giddy over a Utah Supreme Court decision that allows the public onto streams that flow through private property.

"This is something that will just make the angling community do back flips," said Ed Kent, chair of the Utah Anglers Coalition, said of Friday's ruling. "This is going to open corridors of extremely productive waters to anglers that have only been accessible to individuals who gained permission from friends to fish private land," Kent said.

The court decision stems from an incident eight years ago, when a rafter was cited for trespassing after walking in the bed of the Weber River owned by a handful of Morgan County ranchers. But Friday's unanimous ruling allows Utahns to walk on the beds of all streams and rivers, no matter who owns the land beneath them. The high court said that without the ability to touch stream bottoms, members of the public cannot effectively enjoy their right to recreational activities on state waters, all of which are owned by the public. The only caveat is that water users must behave "reasonably," "cause no unnecessary injury to the landowner," and "engage only in lawful recreational activities," according to the ruling.

"It's an exciting decision," said attorney Robert H. Hughes, who successfully argued the case before the high court in April. "I'd call it a landmark decision in the body of law on public waters."

But attorney Ronald Russell, who represents a number of ranchers with land adjacent to the Weber River, said the high court has opened a nasty can of worms that will create new legal issues. "What are reasonable and unreasonable uses?" asked Russell, quoting from the court decision. "What is necessary and unnecessary injury to the landowner?"

"What is the 'stream bed,' and where does it begin and end? At different times of the year you have high water and low water."

Other states have defined the streambed as everything within the high water marks. Russell noted that until now, Utah law governing recreation on public waters pertained only to floating and boating. "Once you take away the floating requirement," Russell said, "it opens up streams never opened in the past." Even streams as small as a trickle will be fair game for people who want to fish or wade, he said. "If you can lawfully get to the water, you can walk up and down it as long as you like," Russell said. "If I had a stream in my backyard, I'd be concerned."

Russell predicted the newly created problems will be solved case-by-case by more litigation, legislation that overrules the high-court's decision or a combination of the two.

The ruling resolves a long-standing dispute between a Roy couple, Kevin and Jodi Conatser, who regularly float and fish on the Weber River, and landowners along a five-mile stretch of the river beginning near the town of Peterson.

"Right on! Sweet! How great!" Kevin Conatser exclaimed Friday after learning the court had ruled in his favor. "Fishermen are going to love me!" Conatser said that during past trips down the river, landowners have shadowed him on ATVs, offered to fight him and one even threatened to kill him. "Now we can float down that river without being worried about getting shot by that farmer," he said, adding that he might raft the river this weekend.

"A good float on Sunday," he mused. "That's a good idea."

Attorney Hughes cautioned that the ruling does not allow people to walk the banks of streams that are adjacent to private land. And streams crossing private land may only be accessed from locations that are open to the public.

Landowners named in the lawsuit include Wayne Johnson, Duane Johnson, Randy Sessions, Clark Sessions, Michael McMillan, Lynn Brown, Gerald Stout and Shane E. Matthews. Calls to several were not answered or returned on Friday.

Russell said his clients merely want to protect their property. He said trespassers had damaged fences, barns and irrigation structures.

The Conatsers' legal battle began in June 2000, when they were cited for trespassing by the sheriff after Kevin Conatser intentionally left his raft to walk in the Weber River and fish, and to move fencing strung across the river by a landowner, according to Friday's ruling.

The Morgan County Justice Court found the Conatsers guilty of trespassing. But when the Conatsers appealed to the district court, prosecutors dismissed the charge, citing "uncertainty" regarding the couple's status as trespassers.

Meanwhile, the Conatsers filed a civil suit against the landowners, seeking a judicial answer to whether they had a right to walk in the river.

Second District Judge Michael Lyon ruled against the Conatsers, finding they had the right to touch the river bed only to assist in floating, such as freeing a raft that was stuck.

A 1982 Utah Supreme Court ruling established the public's right to use any surface water for recreation, so long as legal access exists. "State policy recognizes an interest of the public in the use of state waters for recreational purposes," according to the 1982 ruling.

Later,

FFM

[Project Healing Waters]

This ONLY establishes legal precedent in Utah. It has no bearing on MO or AR law other than an attorney could cite it to support his argument. But that isn't very persuasive in a MO court. Trespass on private property is a STATE issue. Thus, if you are cited for trespassing, you will face MO courts using MO law and legal precedent. However, the Freedom of Navigation Act addresses this issue on navigable waterways with well-established federal case law. Thus, if someone (private party OR government entity) denies you freedom of movement on a navigable waterway, YOU can sue THEM for a violation of your civil liberties in FEDERAL court. Furthermore, most attempts to deny such movement include an assault, terroristic threats, hunter/angler harassment, or even unlawful restraint. And most of these are higher crimes than trespassing. But...in MO and AR...if you are NOT on a known navigable waterway, you CANNOT legally set foot on the stream bed without landowner consent. Property in MO is owned to the "center of the stream bed." Look at some legal property descriptions on deeds. If the stream is a navigable waterway (meaning it was ever used for commercial navigation...including recreational activities for hire, floating logs or rafts of goods to market, or commercial trapping/fishing) then you have a right to walk/stand/wade on the stream bed below the MEAN (average) HIGH WATER MARK.

[Guest kevinkirk]

In Kansas, the navigatable waterway comes into play whereby you can walk along the river inside the high banks. The Arkansas River is one of those even tho its dry west of Larned Kansas to the State Line. Well mostly dry.

[Chief Grey Bear]

Hey Buzz

Can you post that pic I sent you?

[creek wader]

This has been a long debated subject. I can see both sides of it. I'm a former land owner that had problems with tresspasers, fishing my ponds and hunting deer, on my property. I can see why landowners wouldn't want people on thier property. Not everybody who uses the outdoors obeys the laws. Those are the ones that usually litter. Then again, even though I try to fish on public propety. I don't always, though. I'm a wade fisherman and I fish a lot of the smaller streams. But after I leave, there is no sign that I was ever there. I don't litter and I practice C&R. Then again, I have tresspassed according to the law. Fortunately, I've never had any confrontations. If I ever do, I'd be polite and apoligetic and respect the landowners wishes and leave. It's a sticky wicket, for sure.

[Buzz]

I think this is what you were asking for. I'm not sure but, I would think that almost any Supreme Court ruling sets a precident that can be used in any state. Of course a ruling from the United States Supreme court would be the most powerful. Chief sent me this picture about a month ago and actually showed me where one was still posted. It looks to me to be very real with all of the different agencies listed on it.

[jdmidwest]

Where or what stream was it posted? Mo. has the navigable stream rule, but where do you draw the line on navigable? I can float a kayak in 3-4 inches of water. I have not found many problems thru the years. Public access on private lands locally usually end up as swimming holes and party places. Drugs and drinking, roads blocked, other problems, then fences and signs go up. Purple paint flows freely around here now. Several accesses on the Little Black River have been closed because private landowners have taken over sections of what used to be county roads to make access impossible. Threats have been made and they will run you off if you try to launch a boat or wade the stream from these roads and as far as I can tell, the law is on their side. No way they can stop you from floating thru as long as you access from above and float thru. They will not give permission to access from the bridges either. Low water bridges have been replaced by several tall bridges and accesses have been shut down that way. State road right of ways have been posted with signs stating no trespassing in places where you used to drive down to the rivers. Railways post no trespassing in places where you used to walk down tracks to access rivers.

Most of it boils down to a few people making someone mad and ruining it for all.

[Buzz]

Most of it boils down to a few people making someone mad and ruining it for all.

Unfortunately you are right. The many are always punished because of the few bad apples that don't care about anything but having fun. Thankfully there are still plenty of low water bridges left in our part of the state and lots of places where the creek flows beside the road or the state has provided access. I park near a house on Shoal Creek when I float my favorite stretch and have never had any problems with them. They know that we will launch and be back in 8 or 10 hours to pick up the truck. We are always careful not to leave any sign that we had ever been there and my truck has never been molested. We used to launch upstream about 1200 yards but the current land owner fenced it off and posted it. It used to be a party place, so I do know what you mean. The part that bothers me is the rich guys that patrol thier little piece of paradise just hoping to run someone off or threaten them with the law. That happened to Chief and I a couple of weeks back. While we were wading upstream we saw an older gentleman who notified us that we were on private property. We stated that we entered the water from the road and not gotten onto the banks. He told us that he owned all of the land on both sides and through the creek. We did leave the area only because we did not want a confrontation with the law, which he threatened to call. I really think that Missouri needs to redefine navigable waterways. I know I could easily have gotten my canoe through that creek. (Although I might not have been able to haul a truckload of product to the local Wal-Mart.) Sorry about the sarcasm, but old laws that don't match the current situation really tick me off.

[Chief Grey Bear]

That is posted on Shoal Creek in Newton County. There where more posted along the creek but a local land owner ripped them all down. I guess he couldn't reach this one.

At bridges, the county, or state, still owns the right of way and though it may be harder to do, you can still put in. I have noticed that some farmers have strung fence to the edge of bridges in an attempt to deny access to the river. But they do not own the ROW. It is public.

And now for a little food for thought. I have a book, written by Marvin VanGilder, that chronicles the history of Jasper County. In that book, along in the 1830s or so, a family moved into the area of what was to become Carthage along the banks of the Spring River. He started a service as where goods and patrons were floated up and down the river. This I am sure was done in numerous areas of the state.

Years ago, mostly in eastern Missouri but in some other areas on a smaller scale, railroad ties were floated down many waterways. Also fur trappers and traders navigated the creeks and rivers of this state in the name of commerce.

So, where to go from here?

[jdmidwest]

In that case, I would have waited for the law and called his bluff. You probably would have won that one unless the law was his brother or friend. Then, you would have proved to him that it was legal and he could not harass you. There is a new law on the books that could be enforced in your favor also, it is unlawful to harass a sportsman in pursuit of game in Mo. now. Guy on the bank might be fined. Worse case, you could be found trespassing and asked to leave, you should not be arrested unless you start a fight with someone.

You are right, almost all streams in Mo. are "navigable". If you get down to the nut cutting, only the Missouri and the Mississippi are used for commercial commerce anymore. Almost all streams that contain fish in Mo. have been used at one time or another for logging, hunting, fishing, transport, commerce, etc. I have been lucky over here, most areas have good access and landowners are great to get along with. Butler, Ripley, Carter counties are different, purple paint and signs.