Public Stream Laws - Navigability

[Poke 'Em]

After being run off for "trespassing" last week, when I was in the streambed of a navigable river and had accessed the river legally, I decided I needed to be even more informed of my legal rights to navigable streams (and what defines a navigable stream).

This law review by Richard Frank is the best synopsis of US water law as it relates to navigability and public use that I could find.

If you regularly fish public waters that flow through private lands, you definitely will want to read this law review (at least the first half - the latter half deals specifically with California law). As for me, I'll be putting a copy of it in a Ziploc baggie (along with a copy of a particular Arkansas court case) and carrying it in my fishing pack at all times.

http://lawreview.law.ucdavis.edu/iss...6No3_Frank.pdf

Just some highlights for those who don't or won't read the whole thing...

The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances at all times. -- United States v. Appalachian Power Co. 311 US 377, 404

In other words, there isn't a hard and fast definition of navigability. There isn't a certain flow rate, a particular depth or width, or a particular grade which must be met for a stream to be considered navigable.

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. -- The Daniel Ball, 77 US (10 Wall.) 557, 563

I have heard it said many times that a river must be "declared" or "deemed" navigable before it is considered navigable. This is not the case. Beginning with The Daniel Ball, the US Supreme Court has repeatedly stated that rivers which are navigable in fact are navigable in law. This means that any river which is physically navigable (more on what that means in a bit) is navigable by law. It is not necessary or prudent for the courts to go through and designate as navigable or non-navigable each stream on a stream-by-stream basis.

Navigability does not depend on the particular mode in which such use is or may be had... nor on the absence of occasional difficulties in navigation, but on the fact... that the stream in its natural and ordinary condition affords a channel for useful commerce. -- United States v. Holt State Bank 270 US 49, 55-56

I've often heard it said that a river is only navigable if it is navigable by large, powered crafts, such as steamboats or motorboats. Also, many people will say that a stream must be navigable along its length, that if there are any obstructions (shoals, riffles, treefalls, etc) that inhibit navigation then the stream as a whole is not navigable. This is not the case. As long as the stream, in general, under normal circumstances allows a vessel to float for useful commerce, then it is a navigable stream.

In North Dakota v. Andrus the Little Missouri River was deemed navigable, even though it is impassible at certain times of the year, due to freezing, flooding and low summer flow. In fact, the opinion noted that though the river was only 2.5 feet at its deepest, because there were historic cases of isolated canoe use, the river was sufficient for travel and therefore for commercial purposes.

Additionally, the decision explicitly relied upon evidence of private recreational use (canoeing) as evidence of the river's susceptibility to commercial use.

Furthermore, in Alaska's Appeal of Doyon, Ltd. (86 Interior Dec. 692) the courts again concluded that susceptibility to use by small, recreational craft is sufficient evidence for navigability. That is, the stream need not to have been historically used for recreational craft, but simply that the stream is capable of supporting such activity, in order to be considered navigable.

[ozark trout fisher]

After being run off for "trespassing" last week, when I was in the streambed of a navigable river and had accessed the river legally, I decided I needed to be even more informed of my legal rights to navigable streams (and what defines a navigable stream).

This law review by Richard Frank is the best synopsis of US water law as it relates to navigability and public use that I could find.

If you regularly fish public waters that flow through private lands, you definitely will want to read this law review (at least the first half - the latter half deals specifically with California law). As for me, I'll be putting a copy of it in a Ziploc baggie (along with a copy of a particular Arkansas court case) and carrying it in my fishing pack at all times.

http://lawreview.law.ucdavis.edu/iss...6No3_Frank.pdf

Just some highlights for those who don't or won't read the whole thing...

In other words, there isn't a hard and fast definition of navigability. There isn't a certain flow rate, a particular depth or width, or a particular grade which must be met for a stream to be considered navigable.

I have heard it said many times that a river must be "declared" or "deemed" navigable before it is considered navigable. This is not the case. Beginning with The Daniel Ball, the US Supreme Court has repeatedly stated that rivers which are navigable in fact are navigable in law. This means that any river which is physically navigable (more on what that means in a bit) is navigable by law. It is not necessary or prudent for the courts to go through and designate as navigable or non-navigable each stream on a stream-by-stream basis.

I've often heard it said that a river is only navigable if it is navigable by large, powered crafts, such as steamboats or motorboats. Also, many people will say that a stream must be navigable along its length, that if there are any obstructions (shoals, riffles, treefalls, etc) that inhibit navigation then the stream as a whole is not navigable. This is not the case. As long as the stream, in general, under normal circumstances allows a vessel to float for useful commerce, then it is a navigable stream.

In North Dakota v. Andrus the Little Missouri River was deemed navigable, even though it is impassible at certain times of the year, due to freezing, flooding and low summer flow. In fact, the opinion noted that though the river was only 2.5 feet at its deepest, because there were historic cases of isolated canoe use, the river was sufficient for travel and therefore for commercial purposes.

Additionally, the decision explicitly relied upon evidence of private recreational use (canoeing) as evidence of the river's susceptibility to commercial use.

Furthermore, in Alaska's Appeal of Doyon, Ltd. (86 Interior Dec. 692) the courts again concluded that susceptibility to use by small, recreational craft is sufficient evidence for navigability. That is, the stream need not to have been historically used for recreational craft, but simply that the stream is capable of supporting such activity, in order to be considered navigable.

Interesting... I like what I'm hearing.

[Al Agnew]

I hate to say this, but you might as well forget all that stuff UNTIL somebody takes a state trespass case all the way to the U.S. Supreme Court. Nearly all states, including Missouri and Arkansas, insist that their navigability laws supercede those particular federal rulings. The ONLY law that matters in the state of Missouri at this time is the Elder vs. Delcour case, which ruled that if a stream can be established as having been used in the past for commercial purposes (floating logs to market was specifically mentioned), the public has the right to use it for recreational purposes, including the gravel bars and anywhere else within its normal banks, to float it, camp on it, and get out to carry a boat around obstructions. Technically, this case ONLY concerns the Meramec River in the area well above Maramec Spring, but other cases have found that other streams do indeed apply using the Elder vs. Delcour qualifications.

You can kick and scream all you want, but if the county sheriff and prosecutor wish to prosecute a trespass case on ANY stream in the county, there's a pretty good chance that, unless a prior case ON THAT STREAM has ruled it navigable, you'll lose. Most counties in the Ozarks now pretty well know which streams are definitely navigable, but may still prosecute on smaller and lesser known streams. And if a landowner is prominent enough in the county and has enough pull, there's a good chance he'll be able to get the prosecutor on his side. Those federal rulings really sound nice, but I guarantee you they won't mean a thing if you're in a county court in Missouri being accused of trespass.

[FishinCricket]

Thanks for the post, glad to get any info that I can. I would kindly remind you of one thing that I am sure you already know:

There is sometimes a disparagement between the "applicable law" and the "it's just you, me, and this here shotgun"-type law, which tends to rule the immediate roost when situations like this arise.

IE, that ziploc baggie full of "legal documentation" is only gonna be good for one thing when the old boy comes down and tells you to get the hell off his land.. And it ain't gonna do jack (in the immidiate) for protecting your rights, or for your health..

Just thought it worth mentioning. Doesn't mean you can't come back later with a Sheriff, I spose..

(note: I am not a land owner, but I have had enough encounters with local land owners to see that they don't give a darn about the "Applicable Law")

[shadman]

Thanks for the post, glad to get any info that I can. I would kindly remind you of one thing that I am sure you already know:

There is sometimes a disparagement between the "applicable law" and the "it's just you, me, and this here shotgun"-type law, which tends to rule the immediate roost when situations like this arise.

IE, that ziploc baggie full of "legal documentation" is only gonna be good for one thing when the old boy comes down and tells you to get the hell off his land.. And it ain't gonna do jack (in the immidiate) for protecting your rights, or for your health..

Just thought it worth mentioning. Doesn't mean you can't come back later with a Sheriff, I spose..

(note: I am not a land owner, but I have had enough encounters with local land owners to see that they don't give a darn about the "Applicable Law")

hate to tell u this but very few missouri streams have gone to court to be declared navigable.. loop hole is that if it hasnt been classified then it reverts to being private... im going to court july 20 over a tresspasing charge on for wading jenkins creek. most streams we wade are private even though the law says diff, crazy, but if u have 100k to take it to the state court then u would win im sure

[FishinCricket]

hate to tell u this but very few missouri streams have gone to court to be declared navigable.. loop hole is that if it hasnt been classified then it reverts to being private... im going to court july 20 over a tresspasing charge on for wading jenkins creek. most streams we wade are private even though the law says diff, crazy, but if u have 100k to take it to the state court then u would win im sure

that's sorta my point. Even if you are wading a stream that has been legally deemed navigable and you have all the necessary documents to prove that you are on legal footing, there still ain't no immediate arguing with the "Its just you, me, those papers, and this shotgun" approach to settling the dispute.

Maybe this needs to be adressed so that people like you (who utterly respect the property and river on which you tread) donthabe to go to court on tresspassing charges? I don't have a bunch of money, but I do have a voice.. Assuming that still counts for something in the court systems..

[Bman]

Thanks for the post, glad to get any info that I can. I would kindly remind you of one thing that I am sure you already know:

There is sometimes a disparagement between the "applicable law" and the "it's just you, me, and this here shotgun"-type law, which tends to rule the immediate roost when situations like this arise.

IE, that ziploc baggie full of "legal documentation" is only gonna be good for one thing when the old boy comes down and tells you to get the hell off his land.. And it ain't gonna do jack (in the immidiate) for protecting your rights, or for your health..

Just thought it worth mentioning. Doesn't mean you can't come back later with a Sheriff, I spose..

(note: I am not a land owner, but I have had enough encounters with local land owners to see that they don't give a darn about the "Applicable Law")

A good arguement for "packing heat" on the river. Missouri is a consealed carry state now.

[Chief Grey Bear]

A little more research turned up this little tidbit. Read it for what it is worth.

http://74.125.47.132/search?q=cache:Zdwtwn...us&ie=UTF-8

TRESPASSThe sportsman’s nemesis.Private landowners have the right to prosecute trespassers, but they must sign a complaint. Conservation agents cannot simply arrest someone for trespassing.By Tim D. RippergerAssistant Regional SupervisorClintonRESPASS is one of the worst blemishes on the sportsman’s image. What is trespass? Doesproperty have to be fenced or posted? What can be done to alleviate the problems? All good questions. Here are the answers.What is trespass?The most basic form of trespass simply is “when someone physically enters upon another’s property.” Under the 1979 Missouri Criminal Code, there are two possible trespass violations in Missouri.Trespass in the first degree (569.140):1. A person commits the crime of trespass in the first degree if he knowingly enters unlawfullyor knowingly remains unlawfully in a building or inhabitable structure or upon real property.2. The person does not commit the crime of trespass in the first degree by entering or remainingupon real property unless the real property is fenced or otherwise enclosed in a mannerdesigned to exclude intruders or as to which notice against trespass is given by:1) Actual communication to the actor; or2) Posting in a manner reasonably likely to come to the attention of intruders.A person must knowingly enter another’s property to be guilty of first-degree trespass. Knowinglymeans “intentionally” in legal terms. To be guilty of first-degree trespass, a person must knowinglyenter the property, the property must be fenced or enclosed, or the property must be posted at frequentintervals. Trespass in the first degree is a class B misdemeanor; the penalty is a maximum of six months in the county jail and a $500 fine.Trespass in the second degree (569.150):1. A person commits the offense of trespass in the second degree if he enters unlawfully upon real property of another. This is an offense of absolute liability.If you unlawfully enter on anyone else’s property, you could be guilty of second-degree trespass. Trespass in the second degree is an infraction. It’s punishable by a maximum $200 fine. Since it is a law of “absolute liability,” land does not have to be posted or fenced. One doesn’t even have to be aware that he is on someone else’s property. Trespass in the second degree becomes trespass in the first degree when a property-owner asks the trespasser to leave the property and the trespasser refuses to do so.What is the “open field” doctrine?T

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Page 8

Safety & Trespass 1/09Introductory Level Notebook 8Law-enforcement officers may enter private lands such as fields and woods while performingcertain public duties-which include enforcing fish, game and forestry laws-without being guilty oftrespass.The recent U.S. Supreme Court case of Oliver v. U.S., 4/17/84, reaffirmed and strengthened Hester v. U.S., 265 U.S. 57(1924), which says it is proper for police officers to enter and search open fields without a warrant or probable cause.What about fishing Missouri’s rivers and streams?Public use of Missouri’s float streams often causes conflict with private landowners. Public access to Missouri’s streams has been controlled since 1954 by Elder v. Delcour, a case decided bythe Missouri Supreme Court. Navigable rivers and streams are open to all legal use by the public andfall under the control and jurisdiction of the federal government. Case law defines a navigable riveras “one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway forcommerce over which trade and travel are or may be conducted in customary fashion.” (Sneed v. Weber, 307 S. W.2d68, and Elder v. Delcour, 269 S. W.2d17).In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing rightexists upon Missouri’s small, floatable streams. The court ruled that since the ownership of the fishin the stream is vested in the public, the public has a right to fish and to take fish from the streams in a legal manner. The court ruling held that persons floating or wading in the upper Meramec River, following legal entry into that stream, were not trespassing.The Elder case has been accepted as precedent throughout the state and represents the controllingauthority concerning public use of Missouri rivers and streams. Continued lawful and ethical use ofMissouri’s waterways will help ensure that right for future Missourians.

[Al Agnew]

The part of the Meramec on which the Elder vs. Delcour case concerned was pretty far above Maramec Spring...I'm not sure exactly which stretch, but I'm pretty sure it was above Cook Station. That part of the river is floatable in the spring, but gets too low for anything but walk and drag the riffles type floating in the summer. So it would stand to reason that any other stream in the state that was the same size or bigger would be subject to the ruling. I don't know Jenkins Creek, but would suspect it is of similar size. I do know that Indian Creek, a Meramec tributary that is actually smaller than the Meramec around Cook Station, has been established as navigable, even though there are a bunch of jealous landowners and one in particular that continues to try to run people off it. The one guy has supposedly been warned repeatedly about harassing floaters by the county sheriff, and the county prosecutor continues to say that he has no right to do so, but I guess until somebody with pockets deep enough to afford an attorney that can stand up to his deep pockets and attorney sues the pants off him or the sheriff and prosecutor arrest him for harassing sportsmen or something, the problem will continue. It's a perfect example of what FishinCricket noted.

[shadman]

The part of the Meramec on which the Elder vs. Delcour case concerned was pretty far above Maramec Spring...I'm not sure exactly which stretch, but I'm pretty sure it was above Cook Station. That part of the river is floatable in the spring, but gets too low for anything but walk and drag the riffles type floating in the summer. So it would stand to reason that any other stream in the state that was the same size or bigger would be subject to the ruling. I don't know Jenkins Creek, but would suspect it is of similar size. I do know that Indian Creek, a Meramec tributary that is actually smaller than the Meramec around Cook Station, has been established as navigable, even though there are a bunch of jealous landowners and one in particular that continues to try to run people off it. The one guy has supposedly been warned repeatedly about harassing floaters by the county sheriff, and the county prosecutor continues to say that he has no right to do so, but I guess until somebody with pockets deep enough to afford an attorney that can stand up to his deep pockets and attorney sues the pants off him or the sheriff and prosecutor arrest him for harassing sportsmen or something, the problem will continue. It's a perfect example of what FishinCricket noted.

thats exactly right, what it boils down too is having the money. we all know we are right, and we all know that the law is with us and against them few jerkwad landowners, but untill someone steps up to take this to a higher court, we are without our rights,, i know if a group existed, like a coalition, i would be in and donate as much money as i could, like i said, we all know we are right, but how are we gonna pay the MAN to prove it?