Update Jones And Jenkins Creek

[ozark trout fisher]

Son went and talked to Conservation agent today in Joplin over the trespass deal on Jenkins. He said by definition Jones and Jenkins are public waterways as they can float a log or canoe,,But Have not been deemed so by the conservation dept or by any other State enity. And it has never been tested in court as a public waterway. He said in most cases Judges side with the land owner on trespass with these two creeks. County bridges and right of ways grant acsess to rivers and streams for the public waterways that are deemed public. So its sounds like they are going to have to pay the piper. Bummer

Such landowners are selfish in my opinion. Enjoy what you have, but don't cut off a navigable waterway to the public.

Personally, I would challenge this..............................

Good luck

[Buzz]

used for commerce, hmmmm. Wouldnt the new resort on Jenkins creek fall under that?

I just got caught up on this subject. I think you might have something there denjac. The website also mentions guides for pay. Sounds like commerce to me. I'm not sure if they have made any money yet but, it does fit the bill. And as for taking gravel from the creek, I'm sure that has and probably does still happen somewhere on the creek.

I spoke your son the other day, he said that only your oldest son had been served so far. Any changes there?

Good luck to your boys.

Buzz

[denjac]

So far only the eldest has to go to court, and the younger one was the one mouthing the land owner. Imagine that!!

[ollie]

I missed this one. Just the other day my UPS driver was telling me about the new resort there. Have you seen their website? You got to be rich to fish there! I think everyone is right on this one. Challenge it.

[Al Agnew]

It needs to be challenged, but will take a good lawyer to do so. If you have a friend who is a good lawyer, or deep pockets, go for it.

As you are finding out, all these cases are dependent upon the county courts and county prosecutor. The county courts WILL rule according to county precedent, and since the county has already convicted people of trespass on that creek, it will continue to do so until somebody appeals it to a higher court. Many counties that have floatable streams running through them have ruled according to the state supreme court finding in Elder vs. Delcour, but apparently this county is ignoring that case, and will continue to ignore it until somebody takes a case on THIS creek to a higher court and wins. That's what the Conservation Agent apparently meant when he said that Jenkins Creek has not been "classified" as floatable. As far as I know, there is no list of streams or stream sections that are considered "navigable" under Elder vs. Delcour. Thus, ANY stream could possibly be found by lower courts to be non-navigable. That's the scary thing about this whole situation. Get a court that is not "friendly" to the concept of floatable streams and we could LOSE ground in a big court case instead of gaining ground.

We also need to be aware of the legal definitions of the word "navigable". The only truly navigable streams in Missouri are the Missouri, Mississippi, and short sections of the lower ends of the Gasconade and Osage. These are navigable under federal navigability law, and the public owns the riverbed to the "mean high water mark" on these streams. All other streams in Missouri are "navigable" only in so much as the state has ruled that the public has a right to use them up to the high water mark for recreational purposes, but the landowner owns the bed of these streams. It would be nice if there was a hard and fast list of stream sections that fall under this ruling, but there isn't, and if such a list was ever compiled, it could very well cover fewer streams than we'd like, depending upon who compiled it and what kinds of "commercial" purposes they used as criteria. The usual one so far has been whether it was ever used to float logs to market, which would be a true test of "commercial navigability". The fact that a stream has canoe rentals on it would also qualify. I rather doubt that a resort on the creek would qualify, however, because a resort does not necessarily use the "navigability" feature of the stream--the resort does not move products or services up or down stream. And the simple fact that it WILL float a canoe does not imply COMMERCIAL navigability, since I'm not using the stream for commercial purposes when I put my canoe on it and float it. It's pretty convoluted, but I think that's the usual reading of the law in MO. So to win a state court case on Jenkins Creek, you'd have to be able to prove that it was used in the past to float logs to market or some other commercial purpose that involved moving something downstream.

[Chief Grey Bear]

I don't know of of any streams rivers or creeks in Missouri that were not used by trappers for the fur trade. In fact many of them continued to be trapped well into the 80's before the prices tumbled.

Trapping is commerce is it not?

[ozarkgunner]

I don't know of of any streams rivers or creeks in Missouri that were not used by trappers for the fur trade. In fact many of them continued to be trapped well into the 80's before the prices tumbled.

Trapping is commerce is it not?

You guys are confusing the definition of waters subject to the Clean Water Act "navigable waters of the US" See Rapanos v. United States, 547 U.S. 715 (2006) with waters subject to The Rivers and Harbors Act (Waters that are in FACT navigable) and then further trying to apply all of this to Missouri trespassing law. Remember, Federal admiralty co-current jurisdiction applies on truly navigable waters (In Missouri this is only the Mississippi, Missouri, and Grand Rivers). This is a simple state criminal law case and the rule of lenity (if the statute is ambiguous, it is read in the light most favorable to the defendant) is applicable to defendant. This area of the law appears very complicated at first glance, but this is only because of the apparent over lap of federal and state laws to the creek for a lay person. In reality, this case is rather simple.

[Buzz]

You guys are confusing the definition of waters subject to the Clean Water Act "navigable waters of the US" See Rapanos v. United States, 547 U.S. 715 (2006) with waters subject to The Rivers and Harbors Act (Waters that are in FACT navigable) and then further trying to apply all of this to Missouri trespassing law. Remember, Federal admiralty co-current jurisdiction applies on truly navigable waters (In Missouri this is only the Mississippi, Missouri, and Grand Rivers). This is a simple state criminal law case and the rule of lenity (if the statute is ambiguous, it is read in the light most favorable to the defendant) is applicable to defendant. This area of the law appears very complicated at first glance, but this is only because of the apparent over lap of federal and state laws to the creek for a lay person. In reality, this case is rather simple.

So, tie goes to the runner??????

That with what Al said is not too encouraging. What about Center Creek? It appears that is has been deemed a navigable stream. Not sure what that cost!!!

I'm not sure, but I will check Newton County to see if Shoal Creek has been tagged as a navigable stream. I assume it has since the MDC has so many access's available.

Point is, this whole subject is just ridiculous. Why do we as citizens have to pay as much as $100,000 ( in lawyer fees ) to go all of the way to the State Supreme court to get a stream deemed navigable? It is absolutely unbelievable that an obviously float able Missouri waterway can be held to such antiquated and untested rulings. ( By untested I mean that I and most people can't afford to do it. )

We have only to pay the fines and find another place to fish.

By the way, what would have happened if they had been in a canoe and never touched the bottom of the creek? Most of the complaints seem to come from people touching the bottom of the creek. Granted, this is what happened in this instance. This property owner probably wouldn't even have seen them float through.

Anyway, I tend to lean to fighting the establishment. Just me.

Good luck. If I had the cash to take it on I definitely would throw it their way.

Buzz

[hank franklin]

Sheriff also stated that its only trespassing if u refuse to leave.

This to me seems a reasonable statement.

Your right to be there is questionable under the law. I'm on your side, but it's questionable.

The landowner has a claim but it's also questionable. So the thing could be litigated. One day one of these cases will be and I'm concerned that the "custom" or "tradition" of right of passage and gravel bar camping etc will be eroded under scrutiny of law.

Someone else in the thread said the system is lazy. It is. If you can reconcile without a fight the system will say fine, go for it.

I personally prefer the gray area of Elder v. Delcour. Like I say, I fear that a case litigated to the Supreme Court would tend to find for the landowner, especially on these smaller streams.

[Poke 'Em]

In no way, shape or form does a stream have to been "declared" or "deemed" a navigable stream for it to be navigable. The US Supreme Court has stated, on numerous occasions, that any stream "which is navigable in fact is navigable in law." This means that if a stream CAN be navigated, then it is LEGALLY navigable.

Check out this link to the most extensive law review of water rights / navigability that I have found.

http://lawreview.law.ucdavis.edu/issues/Vo...16No3_Frank.pdf