Public Stream Laws - Navigability

[hoglaw]

shadman -

What ever happened with your trespass charge?

[fiveweight]

This has been a topic of interest for me for years. What I have learned, boiled down to a couple sentences, is that all navigable waterways are protected by a federal act and held in trust by the states. That means that while each state is required to respect public right of use for navigable waterways, the test of what is "navigable" is ambiguous and interperited differently by each state. Additionally, certain states have laws which restrict access to streambed and shoreline up to the high water mark for the landowner, and though these laws are enforced at a state level, their legitimacy is controversial. Fortunately in Missouri and Arkansas, I believe anything considered navigable is accessible up to the high water mark.

In Wisconsin, for example, a navigable waterway is more clearly defined as any stream capable of floating a small craft like a kayak just one day per year. Recreational tourism is a form of commerce that fulfills the requirement, and that includes kayaks and canoes. That means any dranage ditch which gets flooded and runs into a river is fair game all year long. Basically, everything capable of holding fish in Wisconsin is fair game so long as you keep your feet wet and access the water from a public access. Some states take different interperitations, but most Missouri trout streams would likely fit the definition of navigable if tested, in my opinion.

By my understanding, in Missouri, the waterway is not unnavigable de facto - it is simply untested. It is still either navigable or not whether it has been tested through a judicial decision though. This does not mean an ignorant landowner cannot try to have you arrested, and it does not mean an enforcement officer would not necessarially follow through (after all, they probably don't know for sure either). It just means that until a judge who looks at the federal act and the state definition of navigability decides one way or another on any particular waterway, it is left undefined. Furthermore, the judge is not designating the stream navigable or not, it is simply their job to determine whether a stream meets the test of navigability. This should be an objective decision based solely on the state test of navigability.

Having said that, any waterway capable of being canoed should meet the test of navigability in Missouri if it came before a judge and that includes just about anywhere you'd be likely to fish for trout.

I strongly recommend visiting the site nors.org. Particularly the links from this page: http://www.nors.org/us-law-menu.htm

They used to have a section describing how the law is tested in each state, but the site seems to be missing that information currently.

Here is an interesting tidbit from that site suggesting you don't necessarially need thousands of dollars to fight a tresspassing offense on navigable water:

"The Chicago Whitewater Association (www.izarea.org/cwa) reports that a man was ticketed for fishing on a section of river running through private property. Although the absent property owner had not complained about the activity, a Department of Natural Resources official ticketed the man anyway.

The fisherman took his complain to court, where the judge found him not guilty because the state had not shown beyond a reasonable doubt that he had violated any law. His defense was based on sections 18 and 26 of the Illinois statutes protecting the right of the people to have access to all navigable waterways, regardless of the ownership of the adjoining banks."