New Utah Law May Devastate The Fishing Industry

[ozark trout fisher]

Actually I don't think that wild animals belong to anyone. only when you come into possession of a wild animal are you deemed to own an animal. How/Why can they charge for the fishing, because according to the State of Colorado he owns the stream of the bed. Agian, I'm not trying to get into an argument about ethics, I don't think that people should be charged for fishing outside of permits. But, MO charges for daily tags on publicly owned property, where's is the cry about this? Isn't this double taxation? I pay for my fishing permit, a portion of this goes to stocking trout, then I am charged again to fish for these trout if I choose to fish at Bennett or Roaring. How is this more acceptable than what this person in Colorado is doing?

I like seeing your thinking Ozark Trout Fisher and I respect your opinions.

I respect you're opinion also.

I guess it strikes me as a little different when the state, who stocks the fish and enforces the regulations charges a small fee of $3 for a day of fishing, than a ranch owner in Colorado who charges say, $100 a day for an access fee (which is what the ranch in question charges). The difference;just about anyone can afford a $3 fee, while only a few can afford to pay $100 a day on anything like a regular basis.

[troutfiend1985]

And I agree, to a point. This is why I'm glad that we have a state who is fairly active about getting access. Yes, I rip on MDC because of the enforcement issues. But, the goods must come with the bad as there will never be a perfect system.

To be honest about this whole Colorado thing, I just can't see a good solution coming from it. You have a murky(at best) law, two different sides claiming they have rights to the same stream, and two different sides using the same stream to generate commerce. WOW. This will be interesting to see how it plays out. I think that it seems the law is probably going to favor the land owner.

Yes, I understand how no one can own the water or the fish, but it seems that Colorado says you can own the access rights. I pray, and hope that we will never have anything like this in Missouri, Arkansas or Kansas. It is a stupid situation to be in and a total failure by that states legislative and judicial branch.

Neither side will be happy until they take this to court, hopefully stating that some form of access can be found.

As for this law creeping into MO, I think its doubtful. It seems that their rules have no to little bearing on MO and Arkansas. Now Kansas, that might be different as they are both in the 10th Circuit and I beleive a person can own the streambed in Kansas(I could be wrong, but my property class has talked about this).

Now about this Finley 160 hgwy(forgive me if I'm wrong about the location) situation where they are closing access points. Two things could be done. I wonder if anyone would like to call their local representatives, MDC and MODOT. I would, but I have a really busy schedule and finding time to do pro bono legal work just is not going to happen. Second, It would seem that there might be a constructive Easment on that land, as people have been using it legally to access the river. It might take a co-op to get to a middle ground where both sides are happy. I would want to know why the access was removed, i.e. was there vandalism, trash, traffic problems. If trash was the problem, perhaps a stream team, or another form of community initiative. Just my thought. I can't practice law(yet) but in a couple of years I will. Maybe I need to re-think this whole enviromental law idea.

Tight lines.

[flytyer57]

As for this law creeping into MO, I think its doubtful. It seems that their rules have no to little bearing on MO and Arkansas.

I don't live in MO and I haven't been here in AR long enough to know the laws of either state very well, or the history behind them.

What I do know is that unless the state constitution provides for access to the waters of the state to the people of the state, then the law makers can change the laws regarding access at any time. If the property rights people get enough votes to go their way, and the courts uphold it, you may no longer have the access that you are used to.

In WI where I am originally from, the state constitution clearly states that the waters (and the lake/stream bottoms) belong to the people. No lawmaker can take that away unless a bill is written and then it has to pass both houses and something like 2 consecutive terms (years) whatever. I ain't no lawyerin' type, but I do know that to get the state constitution changed, it would be one hell of an uphill struggle.

[troutfiend1985]

I ain't no lawyerin' type, but I do know that to get the state constitution changed, it would be one hell of an uphill struggle.

Yes, the law could change. But it is important to know that it would most likely take a super majority of the house and senate in order to pass a law like this. Also, it was not just any court in Missouri, but the Supreme Court of Missouri that ruled on this issue. Which means most likely a court in Missouri would not be able to go out on a whim and overrule this case, it has stood for 56 years without being overruled, I don't know about you but it seems fairly well settled. Finally, what I was trying to say is that the rulings on issues in the 10 Circuit do not have any direct bearing on Missouri as they are different districts. I know this seems arbitrary in nature but it is how our system works.

Missouri has ruled directly on this issue, and that is of great consideration and should ease your fears. I will post the pertinent parts on a separate forum. It is important to note that I am not licensed to practice law in the state of Missouri, and anyone who relies on this information does so at their own risk not subject to my interpretation of the case. I would be glad to ask one of my professors if questions from this ruling comes up, but from what I took the court states a person in Missouri can own the stream bed of non-navigable streams. What is navigable according to Missouri, the ability to transport commerce. This is where it gets fuzzy, Commerce today is not what it was 56 years ago. Commerce is a big concept that is hard to define other than saying almost anything today is commerce, however I am not sure that the Court had this in mind. With a ruling this strong on this issue, I would have a hard time believing that Missouri would shift away from this ruling, unless it was to expand on the public access. Just my opinion, not legal advice. . .

[flytyer57]

I would be glad to ask one of my professors if questions from this ruling comes up, but from what I took the court states a person in Missouri can own the stream bed of non-navigable streams. What is navigable according to Missouri, the ability to transport commerce. This is where it gets fuzzy, Commerce today is not what it was 56 years ago. Commerce is a big concept that is hard to define other than saying almost anything today is commerce, however I am not sure that the Court had this in mind.

From what I have read over the years regarding this topic usually ends up with the courts deciding on what the founders of each state had in mind when it comes to our access rights. There was the commerce rulings as you have stated and then there was what they called "navigability." Those two usually went hand in hand. If a river was navigable to commerce, then it was open to access for all.

Now the question that alway comes up is; "What is navigable?" Most states have decided that back in the days, if a trapper could float a canoe down the stream, then it was considered "navigable." These days we see court battles saying that a stream is not "navigable" because there's no way in hell a supertanker could navigate the stream. It's totally rediculous of course, but some land owners try to close streams for just that purpose, saying that it is no longer navigable by todays standards. That is why we have the court system to decide what is navigable. And since the courts are not allowed to write law, only interperet them, they usually use the old trapper and his canoe theory.

But that may and can change if we are not vigilent. We as anglers must always be aware of what is happening when it comes to access rights and we must fight for them or some day we will no longer have them.

[Al Agnew]

Just a few clarifications on MO law...

There are actually two classes of "navigability" in MO. The first is something called federal navigability...the navigability was ruled as such federally. Very few streams in MO are federally navigable--as I remember, the Missouri, Mississippi, Osage below Bagnell Dam, and maybe the lower ends of a couple other rivers. These were designated as such back in the steamboat days, and were basically the only streams where steamboats could run a good part of the year. In these streams, the public owns both the water and the river bed and banks up to the normal high water mark (which is considered the top of the high bank closest to the water). The only controversy surrounding such rivers is whether or not the public has the right to navigate the flooded portions of the rivers during high water...in other words, can you legally go out into a flooded farm field or up a small tributary when the river is high enough to take a boat into such places?

The second class of navigability was the one ruled upon by the state supreme court in Elder vs. Delcour, which established that the public has the right to float, fish, and swim in rivers that were once used for some sort of commerce, and to get out onto the banks within the normal high water mark in order to do anything from picnic to portage around obstructions. I believe the test that the court cited was whether or not the stream had ever been used to float logs to market.

However, on these streams, the public actually only owns the water and the denizens in it. The stream banks AND THE STREAM BOTTOM is owned by the adjacent landowner, and if one landowner owns one side of the stream and another landowner owns the other side, each owns the stream bottom to the center of the stream bed. That's why a landowner can sell the gravel on his section of stream, even the gravel underwater within the stream bed if other laws don't stop him from doing so.

The court not only ruled in Elder vs. Delcour that the public had the right to float the stream with the reasoning of the stream once being used to float logs to market, but they also acknowledged that Missouri streams had traditionally been used for floating and fishing and used that as a further rationale for the ruling. In other words, it had been done for so long in the past that the tradition itself basically set a precedent.

[flytyer57]

Just a few clarifications on MO law...

Thanks for that clarification Al.

Now, what does anyone know about Arknasas access laws?????????

[troutfiend1985]

Hey, I'm not trying to beat this horse to death and I know that this topic has been discussed many times here. First off, courts do set law, there role is not only to interpret but they do create precedents and "case law" if you will.

Delcour talked about the use of logs on the Meramec as a sign that commerce was able to be transported on that stream. However, that is not the test nor the holding the court relied on. I know that reasonable people may differ on interpretations of case law, but the courts in Missouri who have followed Delcour seem to indicate that navigability is whether a stream can support the transportation of commerce.

Let me just post how Delcour has been interpreted.

A river is "navigable", with title to its bed in the State, if, in its ordinary condition, it is or may be used as a "highway for commerce". Elder v. Delcour, 364 Mo. 835 v. Delcour, 364 Mo. 835, * 269 S.W.2d 17, 22 (Mo. banc 1954). Stated otherwise, a river is navigable if, in its ordinary condition, it "has [the] capacity and suitability for the usual purpose of navigation, ascending or descending, by vessels such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels." Id.

This definition of "navigable" does not include, as it does in some other states, rivers which may only be floatable by small crafts like rowboats and canoes. Elder, supra at 23; 78 Am. Jur. 2d, Waters, § 382 (1975).

Skinner v. Osage County, 822 S.W.2d 437, 444 (Mo. Ct. App. 1991)

Again, not trying to argue, but just wanted to put out there that Delcour holds the test for navigability is whether commerce may be transported on that stream. As far as the flooding concerns, I would think that the test indicates that you can not in the state of Missouri go on a stream when it is flooded. The test states, "ordinary condition" and flooding would probably not fall into that category. Also, wouldn't you then be on that persons actual property and not the stream/river itself when boating? The old heaven to hell theory?

Tight lines.

[Chief Grey Bear]

I believe that law also gave the right to camp, picnic and portage around obstacles. With limitations.

As I see it, trapping is commerce. Canoes are used in trapping. I can get a canoe up and down a lot of creeks.

Not arguing either. I always enjoy hearing someones take on this law.

[troutfiend1985]

As I see it, trapping is commerce. Canoes are used in trapping. I can get a canoe up and down a lot of creeks.

Not arguing either. I always enjoy hearing someones take on this law.

Chief I agree with you. But I want to make sure that you understand I am not saying to go randomly picking out streams and testing navigability laws, nor am I licensed to practice law so this is not legal advice(that will be two years from now.) My conservative take on the law, stick to streams that are only considered to navigable right now. Maybe one day I will try to test this argument and intentionally go down a stream that is questionably navigable, but until then play it safe.

However, I think that trapping would be commerce, the supreme court has held a lot less to be commerce(illegally selling marijuana, and I am not joking). While there is a case that states MO does not recognize canoes as a vehicle of transportation, I think there is a good argument according to Delcour that the court was saying that transportation of commerce is what defines a navigable river, not the ship that is used. I can't tell you that this is a winning argument, but it seems that other areas have said this is commerce. How can one say that today, with all the broad definitions of commerce and all the avenues of commerce, that a stream whose flow is strong enough to consistently support that transport is not commerce? Seems very hypocritical. If anything I think someone could argue that this interpretation leaves the door open to expand the rivers that are considered navigable. The beautiful thing about this case is, 1. it sets a test and 2. it doesn't list which rivers are navigable. Which means this issue is open for interpretation. I think I am going to talk to my property teacher this summer and see what he thinks of this case.

The logging thing, and I have heard a lot of people talking about this being a test. I think the court was trying to illustrate how commerce has been transported on this river in the past. This does not mean that this is the only thing that can be described as commerce, but just one avenue of explaining a concept. The most interesting thing about this case, at least to me, is the court finds the part of the river in question was non-navigable but the court rules for the plaintiff. This is where I see it getting murky. What did the court mean by this? Did they mean you can not own any part of a river that is navigable even though the part in question is non-navigable? It seems to be what the court is stating. . . Interesting.

My take on the case. The test is straight forward, however the fact that the area in question of this case is non-navigable is interesting. Chief, I'm not sure if this is the case that allows for camping, I'll definitely get back with you in three weeks(when my finals are over) and tell you about the camping. I'll also look for Arkansas access laws. Tight lines. Three more weeks and I'm done being a 1L.