New Utah Law May Devastate The Fishing Industry

[Chief Grey Bear]

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.

I would think they would have to accept the canoe as a form of tranportation due to the fact that the MDC activly promotes their use.

Of course it goes without saying that we should hook up in a couple of years to test this. You will work pro bono on this right??? I mean it is for all of us??????

[Al Agnew]

There has been a lot of questioning of whether the opinion reached in Elder v Delcour was bad law. It really does keep things somewhat murky, and its reasoning is a little odd. According to just about everybody, if you can establish that a stream section is substantially similar to the facts agreed upon in Elder v Delcour, you have a legal right to float and fish it. Here are the "facts established", quoting from the published opinion:

"...at the point where the river crosses the defendant's property, 'this river is navigable in fact by canoes, rowboats, and other small floating craft of similar size and nature, but that it is not navigable in fact by larger boats and vessels.'

'

"It is further admitted that 'through that period of time in the past when logs and timber were customarily transported by floating' (which we understand to mean prior to the construction of hard surfaced roads and the use of automotive transportation): this stream was used for for the purpose of floating logs and timber at the point of its crossing of the Delcour land and for many miles up the stream from this point. It is further agreed that the stream is well stocked with fish; and that, at many points above and below defendant's farm, 'the stream is heavily fished by sportsmen both by wading, floating, and from the bank.' Whether the stream as it passes through defendant's farm has been so fished by sportsmen in the manner stated does not appear from the stipulation, nor does the stipulation fix the duration of time during which the stream has been so 'heavily fished' by sportsmen. We take judicial notice of the fact that the Meramec River has long been known as a very popular fishing stream."

An excerpt from "The Riparian Right as Property", which was published a couple years after the case, notes:

"In the Elder Case, the issue was whether a public right of fishing existed in a small stream whose bed was privately owned, and which had no other public utility than for fishing. The question had not been previously adjudicated in the state of Missouri, and due to the importance of recreational fishing in the Ozark region's many streams, the case was watched with much interest. The court concluded that a public fishing right existed upon Missouri's small, floatable streams:

"'Respondent...was not a trespasser and he was fishing where he had a lawful right to be wading in or floating upon public waters, which were flowing down a public highway.

"'Since the ownership of the fish in the streams belonged to the state and since respondent was not a trespasser in passing down the stream by boat or by wading, he had the right to fish and to take fish from the streams in a lawful manner.'

"In short, fishing was an incident of the right of navigation. The most interesting facet of the Elder case, however, is the fact that it was only because the stream was usable for fishing that the public had any real concern with it; it might almost be said that because the spot was a good place to fish, the public acquired a right to fish there."

So, you can see the murkiness of the ruling. Did it mean that any stream that had fishing possibilities is legal for the public to fish? Is the test one of commerce (floating logs to market)? Is it a test of the navigability in fact of the stream for canoes, rowboats, and other small craft? According to which way you read it, it could mean that you have the right to fish any wadeable stream, or just any stream that you can take a canoe down, or any stream that you can prove was used to float logs to market at some point in the distant past.

Various county prosecutors have ruled on various streams in their counties since then, but the rulings are not generally publicized. It's almost as if a lot of county prosecutors are willing to let landowners try to keep floaters off the creeks until such time as a floater complains about it, and then the prosecutor has to make a decision based upon Elder v Delcour. And generally nobody is willing to go the route of saying that the public has an absolute right to fish small, wadeable but not floatable creeks.

As for legally navigable streams, those that are navigable by larger commercial craft and on which the banks and bottom are in fact owned by the public, I found where the War Department, in 1929, listed the following Missouri rivers as navigable waters of the United States:

Grand River upstream to Brunswick (3 miles)

Missouri River

Niangua River upstream to Ha Ha Tonka (18 miles)

Osage River upstream to 1.5 miles below Warsaw (170 miles) (This, and the Niangua, was before Lake of the Ozarks was completed)

Gasconade River upstream to Arlington (which is close to Jerome, this is interesting)

Salt River (about 5 miles above its mouth)

Meramec River (about 21 miles above its mouth)

Lamine River (14 miles above its mouth)

Blackwater River (about 9.5 miles above its mouth)

Black River (up to Poplar Bluff)

Current River (up to Van Buren) (another interesting ruling)

White River (up to Branson...of course, this was well before any of the big lakes were built on the White)

St. Francis River (up to Wappapello, about where Wappapello Dam is now)

Edited to add that I didn't mean that county prosecutors actually "ruled" on the streams in their counties, since that is the province of the courts, not the prosecutors. But prosecutors "decide" whether or not to prosecute people for trespass on a given stream. In effect, if a county prosecutor decides to prosecute a trespass case, they are saying that the public does not have a right to float or fish it, since most trespass cases don't end up in court--the defendant pays the fine rather than spending the money to fight it in court.

[drew03cmc]

Already like this in Kansas. Finding public access to creeks and rivers is hell.

[redbud]

Well I guess its time for me to chime in on this issue of public access. Nobody on this post has said that they are a property owner on any of these navigable streams.I am. I can tell you that I have never denied access to ANYONE that has come to my door and asked permission to wade my section of the creek.The problem occurs when people trespass on my property to get to the creek. I have a real nice spot,with a picnic area that is well above the high water mark on the creek bed.When the water is up and people are floating very often they stop and eat,drink,smoke,leave their trash,dirty diapers and eventually leave with my lawn chairs after they have carved the names of their favorite bands into my table.On one occasion I was cussed out for driving my truck down to my own spot because I was ruining the mans good time with his buddies.I have been threatened and verbally abused by people that I have asked politely to move on.My dog has been attacked by a pitbull[luckily my wife is a vet].I have found hypodermic needles in the gravel near my table.How about a used condom every once in a while.I can go on and on.I know what you will say, call the sheriff ,I have they take hours to respond and never has anyone been arrested. The problem isnt as bad as it used to be here because of my .357.I dont mess with these meth heads anymore.When I ask them to leave I make sure that they can see my side arm.I have only had to fire it once,in the air, to let about 15 guys on four wheelers I am serious .I have never seen them again. Things are different now than they were years ago.Maybe the laws need to change.I am not an activist and not out to change any laws ,but I can tell you this,the people that have no respect get no respect from me,period.I have never had a problem with a fisherman or floaters that respect my land and privacy.I have made several close friend that I have met on the river .Two of my best employees initially came to my door to ask if they could fish,turns out they are both fine young men,raised with respect.Im am starting to rant here but I will conclude with this ,I believe that the people on this board are respectful and in the past I have extended an open invitation to anyone who wants to access the Big Sugar on my place,just PM me ,I will get back to you

[Al Agnew]

Redbud, I think all of us are sympathetic to your problems, and you're right, things ain't like they used to be. It seems there are a lot more people with no respect whatsoever for either the landowner or the land and streams. This is a big reason why landowners and county officials are shutting off access in a lot of places. It's simply too difficult, time-consuming, and discouraging to have to continue to deal with the many pinheads and rotten apples, so the access gets closed.

And I don't see any real answer that will cure it, because people seem to be getting worse all the time. The only thing I think MIGHT help is for all of us who really care about the rivers and streams to band together into true "riverkeepers". The Stream Teams are a start, but we need a cadre of people on each stretch of stream that work volutarily with the landowners to actually patrol the streams looking for any kind of abuses, reporting them, and cleaning up after the bad people on a regular basis, not just once a year. I wonder how many of us would be willing to dedicate one weekend a month, or a couple of evenings a month, to insure access for us and our children.

Also, we need to make our voices heard with the county sheriff and other officials that we consider this to be an important priority. As you pointed out, a lot of this activity is criminal in more ways than just trespassing and littering. A little more serious patrolling, something that is, after all, part of the JOB of law enforcement, might just curtail a lot of this. I know that in my county there are certain river and creek accesses that are a hotbed of this kind of activity. It isn't like there are a hundred such places, just a few, that are by definition easy to get to. It seems to me that a county cop dropping by those few places on a semi-regular basis would discourage a lot of it, instead of waiting for somebody to call and complain. That's another reason to band together, so that we can speak with one voice.

I'm not usually a joiner. But as long as we're all sitting here at the computer complaining, very little will get done.

[eric1978]

Nobody on this post has said that they are a property owner on any of these navigable streams.I am.

We were up to about 3 years ago. My family had a house atop a bluff overlooking the Huzzah. I could literally bend over the rail of our back deck and see little smallies darting around 50 feet below. We had a gate about a mile up our driveway, so anyone looking for access must have always turned around. We never had trespassers. We were fortunate enough to be higher upstream than the liveries serviced, but we did have occasional floaters that put in at Hwy V, Red Bluff, or the low-water bridge just below, and floated down to Hwy Z. Almost all the folks that floated past us we would wave to and say howdy-do, and they'd move on without a trace. We had far more problems with meth-head locals who broke into barns and rode their 4 wheelers all over town, including through the river at all hours of day and night. There was a gravel bar opposite the bluff our house was perched on, and never had campers...don't know if they decided it was a bad spot because our home was there, or because it wasn't really a stretch long enough for overnights. But we really didn't have many problems. I sure miss that place.

I can understand your frustration though, Redbud. That would piss me off, too. Another example of a few bad apples spoiling the batch. Makes it harder for guys like me to get access to streams even though I leave them cleaner than I found them and never make a sound.

Maybe you should get rid of the picnic table and plant some blackberry bushes. You shouldn't have to sacrifice your comfort or enjoyment on your private property, but it might help curb the amount of visitors and trouble you're attracting.

[RSBreth]

This topic kind of went sideways, but I'm there with the idea of taking care of (and looking out for) your local stretch of river. I've been doing this for, well, it seems like forever although it's only a little over twelve years here on the Finley. You have to not only pick up litter, but call either the police (or sheriff) and also get with either the local Conservation Agent, or Operation Game Thief. Put the numbers in your cell phone, and use them.

I know the local CA's (Conservation Agents) are sick of hearing from me, but that's their problem:

IT'S THEIR JOB!

So call them. At the drop of a hat. Take cell phone pictures, get license plate numbers, "drop the dime" as the old saying goes.

For meth heads or other obviously "off their rocker" types, stay clear, but put the call in anyway, as soon as you can.

Another thing: DO NOT fire a shot into the air, you don't know where that thing went. Fire into the ground.

Actually, you shouldn't ever brandish a firearm, but that's a different topic, for another time.

[redbud]

Eric1978 all the people that are landowners in this area are good people,the kind you would enjoy visiting with at a cookout.All of us in this area feel the same way.Permission is always granted to those who ask,by all of us.If I grant access you also have permission to be on their places This gives you several miles of creek to wade.Give it a try,you might be surprised.When I get home from a long day I dont think I should have to ask someone to vacate my table on my land so I can have a cold one and throw some sticks to my dogs. I dont think I should have to stay inside because some punks have a mean dog.Trust me the cops know about this place plenty.Several beatings, drug use and sex crimes have happened here before my time.Im not saying that firing my gun was the smartest thing I have ever done ,but it sure wasnt the dumbest either.I will not be intimidated by a bunch of losers. They never called the cops on me,I suspect all the ATVs were stolen.The local drug heads dont come around anymore and we havent had anything stolen since.My neighbors commend me for it.Unless you live out here,you dont know what its like,the meth head types think the police are a joke.Sometimes I have considered selling this place because of all the hassles,but the creek is awesome,I love it here.If you are a fine upstanding person,here to fish or float, you are welcome here.If you are a disrespectful thief here to party and leave your mark on nature,you are not.Wait until you encounter some of these thugs down in the creek when you are by yourself,hopefully you wont be robbed. Vehicles are routinely broken into when left by the creek.These are the reasons the laws are changing,again the actions of a few affect so many others.