Stream Access Law

[Terry Beeson]

Exactly, my friend... Both posts... VERY WELL put...

As for the "filing the papers..." I would never put that on your back alone. But I can't believe the ACLU or other entity has not already done this... or maybe they see it as a waste of time and effort.

[troutfiend1985]

Exactly, my friend... Both posts... VERY WELL put...

As for the "filing the papers..." I would never put that on your back alone. But I can't believe the ACLU or other entity has not already done this... or maybe they see it as a waste of time and effort.

I don't know what the ACLU agenda is, I know that they are very involved with 1st Amendment suits and US constitutional issues. Here we really don't have too much of a constitutional issue, and in fact I have a hard time thinking of one. Most likely they ignore these issues as the constitution does not address access rights, only that no deprevation of property without due process of law. At least that's how I see it.

[ozark trout fisher]

Your statement of "That's wrong" is rather strong as well. YOU THINK it is wrong. That's your opinion. Is it wrong for these people to form the exclusive club? Is it wrong for Dogwood Canyon, Rockbridge, Spavinaw Creek in Arkansas and others to do the same? You say "If we don't have a stream access law, this guy can have his way." Why is it your opinion that this is wrong? I'm not saying it is RIGHT, but I'm not seeing a reason it's wrong.

Let me explain the "Spring Ridge Club" game plan to you in case you are not familiar. A person decides that he could make a boatload of money buying land off of struggling landowners that live on trout streams. After he acquires the land, he closes it off to all the locals that have been fishing the water for many years. Then he forms a club, and members only can access this water. The initial membership fee in the case of the Spring Ridge Club is in the $70,000 range. Only the filthy rich can afford to fish these waters anymore. To heck with everyone else. If that doesn't seem wrong to you, then I'd venture to say we are on a different wavelength entirely.

I worry about that happening in Missouri. Donny Beaver (the man behind the Spring Ridge Club) has already extended his influence in other states besides Pennsylvania, including Colorado and the steelhead streams of Ohio. And others are seeing his success, and no doubt will try it elsewhere. There are some trout streams in Misssouri that are currently open to fishing to anyone who asks, but could have long stretches closed off to everyone if some unscrupulous landowner saw that he could stock a bunch of trout, build some posh cabins, and charge a hefty membership fee, leaving just a very short stretch of public water to everyone who is not filthy stinking rich. Our lack of a stream access law would allow this to happen on any non-navigable stream. That seems unnacceptable to me.

[eric1978]

Water has a special quality to it, and I think that is why we are fisherman in one sense or the other. But land is no different, tell me that the redwoods in California or the Flint Hills in KS aren't any more special than a small creek in Missouri, can you?

Oops...you're making the wrong person's point.

The two ecosystems you just named are PUBLIC, at least the portions of them that still remain in their original state (Redwood National Park and Tallgrass Prarie National Preserve). The parts of those regions that are private have been in large part logged and deforested, or turned to farmland in the case of the Flint Hills. So your argument leads us to the conclusion that if a small creek in Missouri is as special as the Redwoods in California and the sprawling Kansas Prarie, we should make the creek public as well to guarantee its survival.

The prosecution would love you for that mistake.

However, I'm just waiting for the right situation. But, I Something like Shoal creek is different, in that it appears to be floatable and probably capable of transporting commerce.

But a stream the size of Crane or Hickory is not what I think should be open. We haven't ever used those streams to transport commerce, and to me there is no reason today to say differently.

I want to make the floatable streams and the streams that are capable of transporting commerce open. Terry, to me it sounds like your stream and those like it are in a different category.

I know you can get a canoe down Crane or Hickory, so do you tell the trapper that his furs are not commerce?

The law doesn't state that a stream has to have been used for commerce, it states that a stream must be susceptible for being used for commerce.

Define commerce...if it can be done with a canoe, it's a navigable stream, and therefore public.

[Terry Beeson]

Let me explain the "Spring Ridge Club" game plan to you in case you are not familiar. A person decides that he could make a boatload of money buying land off of struggling landowners that live on trout streams. After he acquires the land, he closes it off to all the locals that have been fishing the water for many years. Then he forms a club, and members only can access this water. The initial membership fee in the case of the Spring Ridge Club is in the $70,000 range. Only the filthy rich can afford to fish these waters anymore. To heck with everyone else. If that doesn't seem wrong to you, then I'd venture to say we are on a different wavelength entirely.

I worry about that happening in Missouri. Donny Beaver (the man behind the Spring Ridge Club) has already extended his influence in other states besides Pennsylvania, including Colorado and the steelhead streams of Ohio. And others are seeing his success, and no doubt will try it elsewhere. There are some trout streams in Misssouri that are currently open to fishing to anyone who asks, but could have long stretches closed off to everyone if some unscrupulous landowner saw that he could stock a bunch of trout, build some posh cabins, and charge a hefty membership fee, leaving just a very short stretch of public water to everyone who is not filthy stinking rich. Our lack of a stream access law would allow this to happen on any non-navigable stream. That seems unnacceptable to me.

The same thing can be said for hunting and otherwise recreation oriented land. As I see it, the court rulings, especially the US Supreme Court ruling, would not allow this sort of thing on these waters you describe. Therefore, it could be challenged in court. In all honesty, I would like to see this challenge just to clarify things. But what organization is willing to do this? Certainly not TU.

However, if this is legal, and I'm not saying it is, then I find nothing wrong with it. To me it's no different from a person buying up land to open an exclusive hunting ranch. I might not like it. I might have hunted on that land for years, but, as we all know, things change. Is this not a part of what makes America what it is? Is not private ownership and the American Dream still something we like to cling to? I guess I could argue that this law would be one step toward socialism, but I'll refrain from spouting that bubble... Plain and simple, there is a very small minority that are affluent enough to afford this luxury, but if I remember right, they have that constitutional right.

My fear is much the same in the opposite direction. If this law were to be enacted, I fear it would soon negate any rights the landowner does have. Would I have to keep my cattle from drinking the water? Would I have to allow hunting and swimming as long as you stay in the stream? Don't just up and say "no" because the point is the law would have to be very specific to disallow a lot of things.

The answer is NOT to enact a law in my opinion. I think the better answer is for the government to purchase more public accessibility. However, that would mean more taxes and higher permit fees. So I assume most would be against this. Of course the BEST answer would be to specifically label each and every stretch of stream bed as navigable/floatable/public and enact a law that says if it's not so labeled, then it is private. Good luck on that one as well...

And Eric... Please add the phrase "in my opinion" to your last sentence. Again, you appear to be making conclusions you can't back up. The "defense" would love YOU for that one. In MY opinion, that does NOT define navigability. Define commerce? Look back at Troutfiend's comment on that one. Again, ambiguity... I will let TF answer your mistakes on the redwoods and Flint Hills. But here's a hint... ever see a home or farm in the middle of a National Forest?

[troutfiend1985]

Oops...you're making the wrong person's point.

The two ecosystems you just named are PUBLIC, at least the portions of them that still remain in their original state (Redwood National Park and Tallgrass Prarie National Preserve). The parts of those regions that are private have been in large part logged and deforested, or turned to farmland in the case of the Flint Hills. So your argument leads us to the conclusion that if a small creek in Missouri is as special as the Redwoods in California and the sprawling Kansas Prarie, we should make the creek public as well to guarantee its survival.

The prosecution would love you for that mistake.

I know you can get a canoe down Crane or Hickory, so do you tell the trapper that his furs are not commerce?

The law doesn't state that a stream has to have been used for commerce, it states that a stream must be susceptible for being used for commerce.

Define commerce...if it can be done with a canoe, it's a navigable stream, and therefore public.

Ah, I'm glad you brought up the point that redwoods and flint hills have public access. I think this makes my point even stronger, as both the streams in missouri and the redwoods in California(and the flint hills) have public access lands, but both have areas where there are private areas as well. Showing that you can own these properties and have public access in the parks. However, you cannot access the persons redwoods in her backyard(legally) just because there is public land that borders the persons yard. The difference with streams is that water runs through the lands. You cannot own the water, but you can own the land beneath the water. So as long as you don't touch the bottom of the stream you wouldn't be tresspassing.

Crane starts bringing in the gray area of law. I would think the amount of time that you would have to be dragging a canoe on crane would outweigh the capability of floating the stream. I'm not sure why I put hickory in there(you got me there ) But the main thing is how much of the water is capable of being waded v. the amount water that is capability of being floated. But Eric you are right, in this is my opinion. However I think Crane is going to be a stretch to even the most open minded judge. Just my opinion.

[troutfiend1985]

Define commerce...if it can be done with a canoe, it's a navigable stream, and therefore public.

Commerce is just about anything, but it does not have a definition. In law, it is a term of art. However, I think that the court will start to use a balancing test when creeks like Crane are being used for an illustrative point. Meaning, how much do the interests in private property weigh on hand, and how much does public rights weigh on the other, again, just my opinion.

[ozark trout fisher]

However, if this is legal, and I'm not saying it is, then I find nothing wrong with it. To me it's no different from a person buying up land to open an exclusive hunting ranch. I might not like it. I might have hunted on that land for years, but, as we all know, things change. Is this not a part of what makes America what it is? Is not private ownership and the American Dream still something we like to cling to? I guess I could argue that this law would be one step toward socialism, but I'll refrain from spouting that bubble... Plain and simple, there is a very small minority that are affluent enough to afford this luxury, but if I remember right, they have that constitutional right.

My fear is much the same in the opposite direction. If this law were to be enacted, I fear it would soon negate any rights the landowner does have. Would I have to keep my cattle from drinking the water? Would I have to allow hunting and swimming as long as you stay in the stream? Don't just up and say "no" because the point is the law would have to be very specific to disallow a lot of things.

As for the cattle drinking from the stream, and negating the landowner's rights.... I don't see that happening. The law would be worded very specifically, simply stating that so long as a fisherman accesses the stream at a legal access point and stays below the high water mark, he can fish areas where the stream flows through private land. How in the heck would that restrict your right to allow cattle to drink from the stream?

When I said I knew I had a right to be on these streams, I did not necessarily mean in a legal since. I means that I know that streams are too valuable to be controlled by a single person, and I believe that I have every right to be there.

Also the law, at least the way I would like to see it written, would not include the right to hunt in the stream. The discharge of firearms would add a safety element that fishing does not. As for swimming-I don't know about that.

You've made the complaint several times that I do not say "in my opinion" after each statement. I'm not a lawyer here, just a fisherman who is concerned about being able to fish the streams that I love, and it should be obvious that everything that I say is my opinion. You complain about my opinion being "to heck with the landowner" while your opinion seems dangerously close to "to heck with the bums that can't afford to own a stream." In the final analysis, neither one of probably has as extreme of an opinion as the other suspects.

[eric1978]

And Eric... Please add the phrase "in my opinion" to your last sentence. Again, you appear to be making conclusions you can't back up.

Well, then let's play a couple games of deductive reasoning, shall we? I hated this class in college, but I'll make an exception just for you, Terry, and do one more set.

Wiki states that "commerce is the exchange of goods and services from the point of production to the point of consumption to satisfy human wants," and we'll use trapping as our example of commerce.

A canoe is used for trapping.

Trapping is commerce.

----------------------------------------------

Therefore, a canoe is used for commerce.

The MO Supreme Court states that a navigable stream is "one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in customary fashion."

A stream used for commerce is navigable.

A canoe is used for commerce.

------------------------------------------------------------

Therefore, a stream on which a canoe is used is navigable.

In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing right exists upon Missouri's small, floatable streams. The court ruled that since the ownership of the fish in 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 controlling authority concerning public use of Missouri rivers and streams. Continued lawful and ethical use of Missouri's waterways will help ensure that right for future Missourians.

The public has a right to fish a navigable stream.

A stream on which a canoe is used is navigable.

---------------------------------------------------------------------------------

Therefore, the public has a right to fish a stream on which a canoe is used.

The argument is sound and valid. You might not like the conclusion, but it necessarily follows the premises based on simple logic.

[Chief Grey Bear]

Commerce is just about anything, but it does not have a definition. In law, it is a term of art. However, I think that the court will start to use a balancing test when creeks like Crane are being used for an illustrative point. Meaning, how much do the interests in private property weigh on hand, and how much does public rights weigh on the other, again, just my opinion.

Lets take a different look at commerce. How much do fishermen contribute monetarily to the economy of Missouri? Isn't that commerce? They buy snacks, meals, gas, lodgeing, tackle, line, license, canoe rentals, shuttles.... You can a lot to that list. That all contributes to the commerce produced in this state. And it all comes from the waterways of this state.