Stream Access Law

[Terry Beeson]

Why do you keep brining up land only scenarios? We are talking about streams. I think that is where a lot of your confusion stems from. There is no comparison.

I beg to differ. The comparison comes from the definition of what is private streambed and what is public. I contend that the streambed on my property would be considered private land due to my contention that it is not a navigable stream under the US Supreme Court ruling. You differ in the interpretation. If I am confused, you are as well.

Sweet. We agree. That is all I have been saying. But what is a public/float stream. I don't know of any city, county, or state owned streams.

In general, what you have said is that YOU define a public/float stream as ANY stream that has flowing water. If you read the US Supreme Court's rulings, this is not the way it is defined. However, I do agree with you that there is much confusion over this.

Would you agree that there are Federally owned streams? Do you consider ANY streambed to be private?

http://webcache.googleusercontent.com/search?q=cache:besiZ5XQKfIJ:www.dnr.mo.gov/env/wpp/vmqmp/vwqm-intro05.pdf+missouri+waterway+tresspass+laws&cd=2&hl=en&ct=clnk&gl=us page 8.

Thank you sir. In all honesty, both the DNR and MDC, and the MO and US Supreme Courts for that matter, have made sure to keep this issue at arm's length. Otherwise, there would not be any confusion. In order to keep from any blame, the documentation both of us used is blatantly "politically correct" to keep them from having either party object to what they say. It's just vague enough to keep us arguing while they sit back and say "you're both right..."

Well,let me clear it up for you. I don't think there needs to be a law. I never signed up saying that. The law has, in my opinion and that of the MDC and MoDNR via the Missouri Supreme Court, already said that it is open. Have you read the court ruling? But hey, by all means since you all the land in, on, and around the stream, build a dam and make yourself a lake. And you will soon find out just what you own.

I would agree that I did not see anything saying you individually voted "yes" on this issue. However, your statements certainly make it appear that way. I think the only disagreement we have, sir, is the definition of a float stream, and as Troutfiend indicated, that issue is NOT settled and in all honesty, neither of us can claim we are absolutely correct. Both out opinions are just that... opinions.

As for building a dam, I addressed that earlier in stating that what I do to the stream, be it public or private, is subject to how it affects others upstream and downstream, so building a dam would not be in my best interest as it would probably be illegal due to these effects.

I did notice you quietly tip toed by this question: And the final sentence of this quote says it all. It states that because there is a SBBMA on that stream, you do not have the right to trespass on STREAM FRONTANGE. Now, if the stream was private, why whould there be a SBBMA on that stream????

Using your own logic, I would have to say that there is nothing in that statement that says it is NOT private. As to why there would be an SBBMA on that stream if it were private, there are many public programs that are on private land. Wildlife habitat programs helping farmers provide habitat is just one. But not being familiar with SBBMA streams, I can't say that there are any on what I would consider private streambeds.

But, my friend, that last sentence certainly does NOT "say it all." As far as I know, not EVERY stream has a SBBMA...

Has anyone gained legal access above or below these places and tried it??

I would invite you to enter the stream via the highway bridge at Dogwood Canyon and then wade down to fish for the trout there. Don't just sneak in. Make it plain what you are doing. Be sure to tell them that you are not a paying guest and you walked in from the bridge. I'm sure there would be some clarification forthcoming that would settle this matter for us both.

[Al Agnew]

Here is what I posted after doing some research when we were discussing stream access a while back...

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.

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.

Now...

Note that the critique of the case said that it seems to say that because the stream is good fishing, the public has the right to fish it.

Note also that the stream is considered "a public highway". THIS is precisely what is different about stream access from all the analogies some of you are using with ponds and land. The public owns the water, and the water is flowing downstream.

Note also that the case was DECIDED that the public had a right to FLOAT and fish in small watercraft. It did not decide that the public had a right to WADE, except as an adjunct to floating. BUT, it also did not say how easy the floating should be. Therefore, it COULD be interpreted to mean that "if you can take a canoe down it, you have the right to be on it." Which COULD mean that you might not be able to legally wade that little creek, but if you are willing to drag a canoe down it you'd be okay.

Like I said above, it's a murky law in that it does not exactly designate where you draw the line between navigable and non-navigable. And it's in those marginal streams that the most conflict comes. Most reasonable people can look at a very small creek and consider it non-floatable, and they can look at a good sized stream and consider it floatable. But it's those streams that you can "float" if you're willing to get out and drag most of the riffles that are the gray areas.

[Al Agnew]

Also...Montana's law came about when their state supreme court ruled in 1984 that the public had the right to recreation on all streams big enough for that recreation, AND that the public could access those streams ACROSS PRIVATE LAND AS LONG AS THE LAND WASN'T POSTED. If there were no "no trespassing" signs, no orange paint (Montana uses orange, Missouri uses purple), and the landowner hadn't specifically told that person to stay off, he could traipse across the range to get to the creek. The state legislature then passed laws the next year that, among other things, removed liability for the landowners for any damages, unless the landowner did something willful and malicious. Something like setting a bear trap in the creek, maybe?

And...the Montana law covers not just floating and fishing, but also any hunting or other forms of recreation where the water is necessary for such recreation. Which means you can duck hunt on the creek, swim in it, take a tube down it, etc. But you can't do any kind of hunting that doesn't "require" the creek to do so, therefore you can't walk up the creek and shoot an elk.

There are several areas in Montana where there are streams that ARE more or less closed to the public, and so far I haven't been able to figure out exactly why. For instance, the famous spring creeks near Livingston are private pay to fish streams. For the most part they can only be accessed through the private ranches that own sections of them, but they COULD also be accessed by somebody wading up the Yellowstone River, and one of them enters the river right next to the highway where there is a well-established parking area. The person wanting to get up into that creek, however, would have to either climb a fence full of keep out signs, or crawl through a culvert half full of fast-flowing water. I have a book about one of those spring creeks, written by the owners, that only mentions that they got around the access laws because of something having to do with the creek being a critical habitat for spawning native cutthroat.

[Chief Grey Bear]

I beg to differ. The comparison comes from the definition of what is private streambed and what is public. I contend that the streambed on my property would be considered private land due to my contention that it is not a navigable stream under the US Supreme Court ruling. You differ in the interpretation. If I am confused, you are as well.

http://legal-dictionary.thefreedictionary.com/Navigable+Waters

The vast body of federal regulation concerning navigable waters frequently gives rise to litigation, and in many cases the courts have the difficult job of determining whether particular bodies of water are navigable (and thus subject to the law or regulation in question). Lakes and rivers are generally considered navigable waters, but smaller bodies of water may also be navigable. Attempting to address years of problematic litigation, the U.S. Supreme Court in 1979 created four tests for determining what constitutes navigable waters. Established in Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have held that bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that are traversable only by canoe have met the test.

In general, what you have said is that YOU define a public/float stream as ANY stream that has flowing water. If you read the US Supreme Court's rulings, this is not the way it is defined. However, I do agree with you that there is much confusion over this.

Would you agree that there are Federally owned streams? Do you consider ANY streambed to be private?

Federally owned?? Not sure. I do consider the Feds to be the controlling authority. Much like airspace over the US. Does the US really OWN it? Or just control it??

Thank you sir. In all honesty, both the DNR and MDC, and the MO and US Supreme Courts for that matter, have made sure to keep this issue at arm's length. Otherwise, there would not be any confusion. In order to keep from any blame, the documentation both of us used is blatantly "politically correct" to keep them from having either party object to what they say. It's just vague enough to keep us arguing while they sit back and say "you're both right..."

I don't doubt that for a minute!!!! I guess it really just boils down to how each fisherman-landowner wants to comprehend it.

I would agree that I did not see anything saying you individually voted "yes" on this issue. However, your statements certainly make it appear that way. I think the only disagreement we have, sir, is the definition of a float stream, and as Troutfiend indicated, that issue is NOT settled and in all honesty, neither of us can claim we are absolutely correct. Both out opinions are just that... opinions.

In the book published by the MDC, Paddlers Guide to Missouri, there are over 50 streams promoted for floating. Now there is no doubt that these must going through private land. If that is true then, is the MDC promoting trespassing? Or does the public have the right to use the streams of Missouri for fishing and recreation???

As for building a dam, I addressed that earlier in stating that what I do to the stream, be it public or private, is subject to how it affects others upstream and downstream, so building a dam would not be in my best interest as it would probably be illegal due to these effects.

It wouldn't matter if it only effected only what you owned, you are not allowed to change, alter or impede the flow of any stream. Without proper authority anyway. But if that land is yours and you claim the stream as yours, why can't you? I say you and yours in a generic way. I don't mean you personally.

Using your own logic, I would have to say that there is nothing in that statement that says it is NOT private. As to why there would be an SBBMA on that stream if it were private, there are many public programs that are on private land. Wildlife habitat programs helping farmers provide habitat is just one. But not being familiar with SBBMA streams, I can't say that there are any on what I would consider private streambeds.

But, my friend, that last sentence certainly does NOT "say it all." As far as I know, not EVERY stream has a SBBMA...

How can you not be familiar with SBBMA streams and in the next sentence state that as far as you know not every stream has a SBBMA on it????

The point being that SBBMA's were created for fishermen. They are really of no use to a landowner. The vast majority of landowners do little fishing on there own property. And doesn't that term have an auspicious ring to it. Landowner. Not streamowner.

Sorry, it just popped into my head. You may disregard that comment.

I would invite you to enter the stream via the highway bridge at Dogwood Canyon and then wade down to fish for the trout there. Don't just sneak in. Make it plain what you are doing. Be sure to tell them that you are not a paying guest and you walked in from the bridge. I'm sure there would be some clarification forthcoming that would settle this matter for us both.

SWEET! When do you want to meet up!!

[Chief Grey Bear]

Here is what I posted after doing some research when we were discussing stream access a while back...

Just a few clarifications on MO law...

Like I said above, it's a murky law in that it does not exactly designate where you draw the line between navigable and non-navigable. And it's in those marginal streams that the most conflict comes. Most reasonable people can look at a very small creek and consider it non-floatable, and they can look at a good sized stream and consider it floatable. But it's those streams that you can "float" if you're willing to get out and drag most of the riffles that are the gray areas.

Thanks for taking the time and effort to research and post that information. It does take a lot of time and dedication. I too have spent a lot of time reseaching this for some clarification. And to me, it seems very cut and dried that we do in fact have a right to fish and float these waters. But that may be because that is what I want it to say because I want to fish these waters.

I certainly believe that I have no right to walk on to some ones land and fish their pond or lake. Even if the MDC stocked their waters. Or even access the creek from their land without their premission. And I do draw the line at the smaller creeks. If I can still pee across it at my age, then I probably better not fish it.

But one other thing to remember, and I will have to look it up to see how it goes exctally, but, in the Wildlife Code Book it does state that any stream stocked with fish is open to fishing. So now all of these creeks that were at one time stocked with trout......ehhh, this could turn into another 8 page discussion. May not want to go there.

[Terry Beeson]

You know, looking back at this thread, I started realizing one thing... We strayed away from my original intent... yes, me included. My actual "fight" is not with fishing or the court rulings. My objection is with making a law that opens up public access to these smaller streams.

This came to light while reading Al's post (thank you Al and Chief both for devoting time to research.)

The court ruling is very murky as are the interpretations quoted by all of us. But it is clear to me that if there is some confusion and need for the murk, then there must be something to the idea that some streams are private.

My fear is that this law would bring about a presidence that will be detrimental to these small streams and the adjoining land. You want it simply for fishing. You are a good steward. But it would open up the stream to everyone, and that's where the problem comes in. Not the 90%, the 10%. And, yes, that's the sad truth.

By the way... Your own your own going to Dogwood Canyon... Good luck...

[duckydoty]

By the way... Your own your own going to Dogwood Canyon... Good luck...

Chicken!

[eric1978]

My fear is that this law would bring about a presidence that will be detrimental to these small streams and the adjoining land. You want it simply for fishing. You are a good steward. But it would open up the stream to everyone, and that's where the problem comes in. Not the 90%, the 10%. And, yes, that's the sad truth.

Why would someone float or wade from a public access through private property if they weren't fishing or just floating? The partiers need liveries, and most of the local drunks and poachers do not currently, nor would they ever (for any reason I can think of), stray far from the accesses. The majority of (the few) people you would see passing through your property would be devoted floaters and fishermen, who stereotypically don't pose many problems to landowners.

As Al pointed out, the essence of this question is boiled down to the interpretation of "floatable." Between a trickle of a creek, and the mighty Mississippi, streams come in a million different sizes, depending on CFS, gradient, and other geological factors. So the problem is where do we draw the line between floatable and not floatable? This stream is floatable but this one is not...by which standards do we decide? "Floatability" remains vulnerable to subjectivity within the decision in Elder v. Delcour, so by whose standards do we decide? The landowner's or the angler's? It is still debatable, because the precedent left a gray area open to interpretation.

Until a court labels every stream on the map public or private, there is going to be bickering among landowners and anglers, and I will continue to interpret the law liberally, and roll the dice if the "floatability" question seems reasonably ambiguous.

[Terry Beeson]

...The majority of (the few) people you would see passing through your property would be devoted floaters and fishermen, who stereotypically don't pose many problems to landowners...

...I will continue to interpret the law liberally, and roll the dice if the "floatability" question seems reasonably ambiguous.

You can't guarantee the first part. As you state it, the "majority" will be fine. But that is is not the 100% mark.

Eric, I can't tell you why some people leave their trash in the stream, or go over the legal limit, or shoot deer from the road at night, or rob liquor stores, or commit murder, or bungee jump. But some people do. And your next statement is "well, they are breaking the law." And you would be right.

But if you are so keen on fishing a stream such as this, what is wrong with going and asking the landowner for permission? (Given that it IS private or even as you put it, "ambiguous.") It would appear that you don't want to ask permission as suggested by the MDC. If it is "ambiguous," and you roll those dice, and you are arrested for trespassing, would you then stop? While I've indicated an invitation to come and ask and I will show you where the best fishing is on the creek running through my place, you have exuded an attitude of "I don't care about the land owner, I'm going to fish there if it's right or wrong, because I 'think' I'm in the right. Screw the land owner." That type of attitude, my friend, is exactly why land owners are against such a policy.

Now, as for the Meremac or countless other streams in Missouri that are OBVIOUSLY floatable and accessible to the public, the owner of the property through which it runs has an understanding (or should have. I know there are a few who will throw rocks at you on the Little Red in Arkansas if you are fishing behind their house.) that there will be floaters and wading anglers coming down the stream.

As for me, I will continue to act conservatively and respect what I don't KNOW is mine.

Hey Duane... I'll meet you and Chief down there, but I'm staying up on the highway and watching.

[ozark trout fisher]

You can't guarantee the first part. As you state it, the "majority" will be fine. But that is is not the 100% mark.

Eric, I can't tell you why some people leave their trash in the stream, or go over the legal limit, or shoot deer from the road at night, or rob liquor stores, or commit murder, or bungee jump. But some people do. And your next statement is "well, they are breaking the law." And you would be right.

But if you are so keen on fishing a stream such as this, what is wrong with going and asking the landowner for permission? (Given that it IS private or even as you put it, "ambiguous.") It would appear that you don't want to ask permission as suggested by the MDC. If it is "ambiguous," and you roll those dice, and you are arrested for trespassing, would you then stop? While I've indicated an invitation to come and ask and I will show you where the best fishing is on the creek running through my place, you have exuded an attitude of "I don't care about the land owner, I'm going to fish there if it's right or wrong, because I 'think' I'm in the right. Screw the land owner." That type of attitude, my friend, is exactly why land owners are against such a policy.

I've stayed mostly out of this, but this post really shows me that you don't seem to know what it't like to be the fisherman that doesn't own property on a stream.

Why not ask the landowner? Good question, but one you would probably know the answer to if you'd spent much time as a normal, run of the mill angler that is just looking for a place to fish. I'll ask if that's an option, but much, maybe even most of the time, it's not. The landowner isn't home, he doesn't even live there, or the landowner is some self-righteous person who believes that no one else should be on "his" stream, and says no.

I am of the opinion that streams are too precious to be owned by any one person. I will access the stream at a legal point, stay in the stream, and act like a perfect gentleman. My attitude is never "to hell with the landowner". I'll treat the stream running through his land better than I'd treat my front yard. I will leave absolutely no trace whatsoever. And frankly, the landowner would have no reason whatsoever to try to kick me off, and if he does, he is a jerk, no matter what the letter of the law is this week. I know I have the right to be there. I guess you could call a subtle, non-confrontational form of civil disobedience with the laws as they are now. I'm not saying to hell with doing what's right. I feel I am doing the right thing, even if it is looked down upon by some. In the years to come, I want my children and my grandchildren to be able to fish these streams. So the least I can do is to make a little stand on this now. Not being a lawyer I'm honestly not sure if these streams are navigable or not, but they are very precious to me. Can landowner types not understand where I'm coming from here?