Use Of Public Waterways Includes Streambeds - Even On Private Land

[ozark trout fisher]

Okay, we've hashed this out before but here goes again...I guarantee you my "facts" are pretty straight.

The NORS stuff has been publicized for a number of years, but I guarantee you that it has made NO difference whatsoever in how states decide which streams are usable by the public and which aren't. And it makes absolutely no difference whether the waterway is named "creek", "river", "fork", "prong", and any other possible name. You'd be hard-pressed to convince anyone that the upper end of any river in the state except Current River is "navigable". And you'd be hard-pressed to convince anyone in power that Huzzah Creek, Courtois Creek, Beaver Creek, and a number of others are NOT "navigable", given that there are canoe rentals of long standing on all of them.

The "rulings" that NORS cites are simply NOT the rulings that are used in determining whether the public can use a stream. Each state DOES have its own set of rulings, and none of them go by the NORS stuff. While it may actually be a true ruling, in order to make it apply to any state or any stream, you're going to have to go to the U.S. Supreme Court and get it to declare it so. While it would certainly be nice if there WAS one ruling that everybody goes by, it ain't reality. You have states like Wyoming and Colorado that routinely rule that some streams and stream sections are private, and nobody can fish them or even get on them without permission from the landowners. You have Illinois, which just allowed one big landowner to close a long section of the Vermillion River, a floatable stream. You have Virginia, which has ruled that land grants originally granted by the King of England when the state was a colony are still in effect, and the people that hold them can close their section of floatable stream to everybody. On the other hand, you have a state like Montana that has ruled that if you can legally gain access to any fishing stream at public land (bridge crossings and public accesses) or by permission from ONE private landowner through his land, you can go ANYWHERE on that stream...UNLESS it's a spring creek.

The REALITY is that Missouri and Arkansas go by their own legal precedents, and no prosecutor, sheriff, or court will pay the LEAST bit of attention to the NORS cited ruling. Period. Missouri goes by the Elder vs. Delcour ruling by the MO Supreme Court, which leaves a lot of gray areas on smaller streams. Arkansas goes by a ruling based upon a case on the Mulberry River a few decades ago. Both are pretty similar, and basically give the public the right to float and fish and camp within the high water banks of streams that are big enough to have been used for commercial purposes in the past, including floating logs to market. Where the MDC agent was right is that unless the stream is big enough (and well known enough) to be a "float stream", with a long tradition of floating and canoe renting, if a landowner decides to try to run you off it, you are at the mercy of the sheriff and county prosecutor. If they wish to prosecute you for it, you will have to fight it in court. Only if you then WIN will a precedent have been set, and the precedent will serve the purpose of "listing" the stream as usable by the public. Some counties and county officials are NOT friendly to landowners trying to run people off streams that have been used by the public in the past, and will, like the Franklin County officials in regard to Indian Creek, say that the stream IS legally usable by the public (even though several landowners continue to run people off it, and the county people are not too diligent about making them stop). However, money talks, and some county officials are quite willing to take the side of the rich landowner over the poor angler, maybe figuring that he'll have enough money to hire better lawyers. And as far as streams that are too small for floating and have never been floated, the county officials will almost always take the side of the landowner. The only reason there are still a lot of wadeable streams that are more or less open to the public is that the landowners don't care one way or another. Which means that if you frequent such a stream, you had BETTER be on your best behavior AND pick up after others who haven't been.

And one other thing...Missouri and Arkansas real estate law is direct opposition to the NORS stuff. The landowner DOES own the stream bed on all but the commercially navigable rivers (mostly the Missouri and Mississippi...those rivers used by barge traffic). The only thing they don't own on all other streams is the water and the organisms that live in it. The Elder vs. Delcour ruling thus gave the public an "easement" to use private land, in effect.

Wow, this is really interesting.... It makes you wonder why a hard and fast rule wasn't made on this before everything got so complitcated.

[Al Agnew]

Thing is, it didn't used to be complicated. Back in the old days, there weren't that many people using streams, the smaller streams that are barely big enough for canoes weren't big enough for wooden johnboats and other boats like most people used back then, the majority of people using the streams didn't trash them, and landowners were usually tolerant of people using streams that flowed across their lands. There were few conflicts between landowners and stream users. But as floating and using the rivers got more popular, canoes and canoe rentals began to take the place of johnboats, and the litter problems started getting worse, a lot of landowners decided to try to limit the "damage". Elder vs. Delcour was actually a "friendly" case where two people got together and decided to bring suit against each other in order to get the courts to clarify. The MO Supreme Court ruled on it based upon whatever they could come up with that found precedents in public stream use in the past. Floating logs to market and other "traditional" uses were the easiest things to hit upon, rather than just coming flat out and saying that the public does or doesn't have the right to use waterways flowing across private land.

It's like a lot of things when it comes to conflicting recreational uses...nobody ever has the foresight to see a problem coming before it becomes full-blown. Like jetboat/non-motorized river use...if somebody would have said, back in the early 1980s when jetboats first began to appear, "Hey, wait a minute...this is going to become a problem if these things get popular, so we better establish some guidelines right now," a lot of grief could have been avoided. Now, you've got powerful interests on all sides that will kick and scream if ANY limits or guidelines are instituted, and rightly so, because if you've invested in a $20,000 jetboat, you expect to be able to use it most anywhere you please, and if you have invested hundreds of thousands in a business selling jetboats, you've got even more of an incentive to fight any controls on them.

It's not quite the same with stream access laws, but the fact is that a lot of people on both sides like the gray areas because if it was ruled in black and white, they might just end up on the wrong side of the ruling. A Supreme Court could just as easily rule that all streams everywhere that are not big enough for barge traffic are private, or at least, as it is in a couple of western states, you can float on the water but you cannot touch banks OR bottom of the river, because that's privately owned. And we river users would be in a world of hut. Or they could rule that the public has the right to use every little trickle of running water, and a lot of landowners would be just as hurt. So, a lot of people take the attutude of "be careful what you wish for". Wishing for a simple law that applies to everybody could result in a simple law that kept you off a lot more water than the present situation.

[ozark trout fisher]

Thing is, it didn't used to be complicated. Back in the old days, there weren't that many people using streams, the smaller streams that are barely big enough for canoes weren't big enough for wooden johnboats and other boats like most people used back then, the majority of people using the streams didn't trash them, and landowners were usually tolerant of people using streams that flowed across their lands. There were few conflicts between landowners and stream users. But as floating and using the rivers got more popular, canoes and canoe rentals began to take the place of johnboats, and the litter problems started getting worse, a lot of landowners decided to try to limit the "damage". Elder vs. Delcour was actually a "friendly" case where two people got together and decided to bring suit against each other in order to get the courts to clarify. The MO Supreme Court ruled on it based upon whatever they could come up with that found precedents in public stream use in the past. Floating logs to market and other "traditional" uses were the easiest things to hit upon, rather than just coming flat out and saying that the public does or doesn't have the right to use waterways flowing across private land.

It's like a lot of things when it comes to conflicting recreational uses...nobody ever has the foresight to see a problem coming before it becomes full-blown. Like jetboat/non-motorized river use...if somebody would have said, back in the early 1980s when jetboats first began to appear, "Hey, wait a minute...this is going to become a problem if these things get popular, so we better establish some guidelines right now," a lot of grief could have been avoided. Now, you've got powerful interests on all sides that will kick and scream if ANY limits or guidelines are instituted, and rightly so, because if you've invested in a $20,000 jetboat, you expect to be able to use it most anywhere you please, and if you have invested hundreds of thousands in a business selling jetboats, you've got even more of an incentive to fight any controls on them.

It's not quite the same with stream access laws, but the fact is that a lot of people on both sides like the gray areas because if it was ruled in black and white, they might just end up on the wrong side of the ruling. A Supreme Court could just as easily rule that all streams everywhere that are not big enough for barge traffic are private, or at least, as it is in a couple of western states, you can float on the water but you cannot touch banks OR bottom of the river, because that's privately owned. And we river users would be in a world of hut. Or they could rule that the public has the right to use every little trickle of running water, and a lot of landowners would be just as hurt. So, a lot of people take the attutude of "be careful what you wish for". Wishing for a simple law that applies to everybody could result in a simple law that kept you off a lot more water than the present situation.

It sort of makes me wonder if a law could be passed through congress, that states that all rivers that can be normally floated with a canoe or kayak at normal high water would open to the public. It seems like that would be a good compromise if that would be at all possible. That would eliminate the gray area, but I can't really imagine that backfiring to actually hurt fisherman. I could be dead wrong of course.

Frankly, I don't know if passing such a law would be politically feasible or even legal, so this may not even be a valid idea.

[OzarksRiverman]

I used to wade up swan creek by chadwick, it was great fishing. But some land changed hands and the new owners put up a barbed-wire fence across the creek! It sucks.

[Buzz]

It sort of makes me wonder if a law could be passed through congress, that states that all rivers that can be normally floated with a canoe or kayak at normal high water would open to the public. It seems like that would be a good compromise if that would be at all possible. That would eliminate the gray area, but I can't really imagine that backfiring to actually hurt fisherman. I could be dead wrong of course.

Frankly, I don't know if passing such a law would be politically feasible or even legal, so this may not even be a valid idea.

Or.................An application process that allows you to apply for an evaluation of a certain stream or stretch of stream to determine if it fits the criteria of a navigable stream ( Yeah I know, who is going to make that determination? ). I'm not talking about the old standbys, but something that actually fits the times that we live in NOW, TODAY. Most of the creeks and streams we are talking about are not ever going to turn into the party streams like the Elk, Jacks Fork, Current, and far too many others to mention.

JMO

Thanks for the idea OTF.

Buzz

[Buzz]

I used to wade up swan creek by chadwick, it was great fishing. But some land changed hands and the new owners put up a barbed-wire fence across the creek! It sucks.

That reminds me of a story...........

Kansas has different laws than Missouri, so this really blew my mind, and then I LMAO.

There is a wealthy landowner, not too far across the state line of Missouri and Kansas on Shoal Creek, who has always harrassed floaters and fishermen. He has strung barbedwire and the whole nine yards. He has even reportedly fired shots over the heads of floaters passing his property. The last time he tried that stunt, the guys in the canoe picked up a .22 and fired a few back at him. I haven't heard of anymore stupidity out of him lately.

[Al Agnew]

Or.................An application process that allows you to apply for an evaluation of a certain stream or stretch of stream to determine if it fits the criteria of a navigable stream ( Yeah I know, who is going to make that determination? ). I'm not talking about the old standbys, but something that actually fits the times that we live in NOW, TODAY. Most of the creeks and streams we are talking about are not ever going to turn into the party streams like the Elk, Jacks Fork, Current, and far too many others to mention.

JMO

Thanks for the idea OTF.

Buzz

It would seem like such a thing would make a lot of sense and solve the problem, alright. Unfortunately, I think you can see the difficulty in getting it done. Everybody from local chambers of commerce to property rights groups would be involved, all pushing for their own interpretation of what streams are big enough to qualify for public use. And...I'm afraid that such a rule would end up giving us less access to wading size streams than we have now, because once you set up a criterion for which size of stream qualified, it would mean that EVERY stream that is smaller than the cut-off point would be for sure off-limits to the public. It's a can of worms no matter how you look at it.

[ozark trout fisher]

It would seem like such a thing would make a lot of sense and solve the problem, alright. Unfortunately, I think you can see the difficulty in getting it done. Everybody from local chambers of commerce to property rights groups would be involved, all pushing for their own interpretation of what streams are big enough to qualify for public use. And...I'm afraid that such a rule would end up giving us less access to wading size streams than we have now, because once you set up a criterion for which size of stream qualified, it would mean that EVERY stream that is smaller than the cut-off point would be for sure off-limits to the public. It's a can of worms no matter how you look at it.

That is definitely a concern.

Honestly, I'm not exactly sure what the solution. But something has to be done about this ambiguous gray area. To be totally unsure, and with no way to find out if you are breaking the law is a bad feeling. As a matter of fact, my favorite stream for trout and smallies (Little Piney) fits right into this gray area, as a stream just big enough to float a kayak, at least most of the time. For example, when I wade upstream from the Vida Slab Access, I never really know whether I'm legal. But the fact is, its my favorite stream, and I'm not gonna stop fishing it just because there may be some confusion as to whether the stream is owned by the public. It makes me feel pretty uneasy.

[fiveweight]

That is definitely a concern.

Honestly, I'm not exactly sure what the solution. But something has to be done about this ambiguous gray area. To be totally unsure, and with no way to find out if you are breaking the law is a bad feeling. As a matter of fact, my favorite stream for trout and smallies (Little Piney) fits right into this gray area, as a stream just big enough to float a kayak, at least most of the time. For example, when I wade upstream from the Vida Slab Access, I never really know whether I'm legal. But the fact is, its my favorite stream, and I'm not gonna stop fishing it just because there may be some confusion as to whether the stream is owned by the public. It makes me feel pretty uneasy.

Some great points brought up. I really hate that the law is so ambiguous and interperited differently in different states. I would have to think that if anything kayakable under normal conditions is considered navigable, that would include the section you mentioned, especially with the "obstacles" clause described in NORS. Maybe it's just my point of view, but it sure seems a lot of kayakable stream is considered private by the landowners and fishermen tend to access water relatively conservatively. I would imagine it would only open up water to clarify by the navigability test, but either way I would prefer to know strict limits rather than worry about conflict. And though I'm not yet a landowner on a stream, some day when I am in the market for a piece of streamside property I would prefer that the law be clarified at that point so I can accurately assess the situation with those considerations and not have to worry about potential conflicts. So it would ultimately be beneficial to everyone for this whole mess to get cleared up.

Regarding the use of "river", "creek", or "fork" to name waterways, those are arbitrarially assigned. There is no strict definition of what is a river or a creek. Point and case, go to northern Wisconsin and regionally most streams I would think of as creeks are called rivers by name. It's probably a regional thing and as Al mentioned, the stream doesn't change names just because you venture farther up. Also, a lot of "rivers" start with shorter and smaller streams than some of the feeder creeks - the main branch is sometimes simply identified because it was the most familiar or geographically significant when the first map was drawn.