Shoal Creek Tresspass Closure!

[Buzz]

I think something like this needs to be some kind of class action, certainly including the canoe rental that is supposed to be running trips on that section, along with any other floaters or potential floaters you can get to participate.

I've been thinking about this statement that Al made early on.

#1 Prater has been harrassing people from the bank for a couple of years now.

#2 How many people has he plolitely told not to set foot on "HIS" land, with a gun toting hillbilly by his side?

#3 Does this constitute harrassment under the current laws?

#4 What If instead of one massive "Occupy Float" you had several people who were harrassed make complaints or file suit against him?

This may be a bigger challenge to set up, but if floaters from the Undercliff rental were polled and it could be proven that this is happening on a consistant basis the prosecuting attorney would see just how big a problem this really is.

I'm game to make a float through there again.

[drew03cmc]

You know I am in for donation as well Chief.

[fishinwrench]

For you guys badmouthing the lawyer, you're really shooting your mouths off with very

little ammunition.

Really? You don't see the leading nature in which that letter was composed? Who would describe the options in that manner?

A. Someone committed to representing their clients constitutional rights .

Or

B. Someone looking to satisfy a prosecutor and pass on a case where he would actually have to do some work.

Or

C. A true saint of a lawyer who knows the probable outcome, yet chooses not to take some easy cash from a middle class individual, out of the goodness of his heart.

[grizwilson]

Maybe I missed it but Chief have you contacted Missouri Attorney General Cris Koster? County prosuecutors have been removed from office for failing to enforce the law.

http://ago.mo.gov/

At mininum I would file the complaint form.

[Justin Spencer]

I never like to hear second hand (through your lawyer) what someone (in this case the prosecutor) has to say. You might consider setting up an appt. with the prosecutor yourself Chief, and see first hand what he has to say about this case and discuss your position. You might find that he knows this Prater and is also trying to avoid confrontation with this nut if it can be easily dismissed.

[denjac]

How many access points does the MDC provide on Shoal ? Maybe a conservation agent needs to make the float too? Its his job to protect the fisherman/floater. Judge Dally in Jasper county ruled against my son in the Jenkins creek thing. Dally used to be a big time floater with my Step Dad, thats why I was shocked at his rulling. If MDC puts in Public access points thats a clear cut understanding in my view. I Newton County Public Fishing Access

Allen Bridge Access

This area offers 0.3 miles of public fishing access to Shoal Creek in Newton County, Missouri. The fishing at this access run by the MDC is good for bass and rock bass and is fair for catfish.

Driving Directions

Two miles east of Neosho on Bus. Hwy 60, turn north onto the blacktop road marked with an MDC sign to Shoal Creek.

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Capps Creek Conservation Area

This conservation area owned and operated by the MDC has approximately 2 miles of access to Capps Creek and 2/10 of a mile of access to Shoal Creek. This area has some good fishing for trout which are periodically stocked in Capps Creek by the MDC. There is fair fishing for bass in Shoal and Capps Creek. Shoal Creek has some decent sunfish populations.

Driving Directions

Seven and one-half miles west of Monett on Hwy 60, then 1.75 miles south on Wallaby Rd to its junction with Jolly Mill Rd.

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Cherry Corner Access

This area offers MDC run access for fishing in Shoal Creek. The fishing is good for bass and rock bass. The fishing is fair for catfish.

Driving Directions

Three and one-half miles south of Diamond, east on Greenbriar Dr., then south on Otter Dr. to Shoal Creek.

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Lime Kiln Access

This access offers about 1/2 a mile of access to Shoal Creek. The fishing is good for bass, catfish, and rock bass. The fishing is fair for crappie.

Driving Directions

Lime Kiln Access is .50 mile east of Neosho on Business Highway 60, then .25 mile north at the water treatment plant on Lime Kiln Drive.

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Morse Park

This little area in Neosho, Missouri offers good fishing for trout in Hickory Creek. Also, there is fair fishing for bass, suckers, and goggle-eye.

Driving Directions

Morse Park is located in Neosho, a few blocks from the town square on Coler or Spring streets. Facilities are located along Hickory Creek between Highway 86 and College Street.

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Smack-Out Access

This area offers public fishing access to Shoal Creek. The fishing is good for bass and rock bass as well as fair fishing for catfish.

Driving Directions

Smack-out Access is 6.5 miles east of Granby on Highway 60, then south on Ivy Drive to end of road.

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Tipton Ford Access

This area offers public fishing access to Shoal Creek and has good fishing for bass, catfish, suckers, and rock bass.

Driving Directions

Six and one-half miles west of Diamond on Route V, then one mile south on Old Highway 71.

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Wildcat Access

This area offers public fioshing access to Shoal Creek. The fishing here is fair for bass and catfish. The fishing is good for rock bass.

Driving Directions

Wildcat Access is one mile south of I-44 on Highway 86 through the entrance to Wildcat Glade Nature Center

[drew03cmc]

I would say that the MDC has accesses and Prater is nothing more than a prick. His act might go over in Kansas or Texas, but in Missouri, he is in the wrong everytime he harasses a floater. Undercliff could file suit against him for tampering with their business.

[Al Agnew]

The thing I'm concerned with as far as Chief's situation is that Prater most definitely owns the gravel bar and the bottom of the stream to the middle of the channel (or if he owns on both sides of the river he owns the entire riverbed). Therefore, that's why I said that Chief needs to get it clarified what the prosecutor thinks he can do. Can he float the stream but just not get out on Prater's gravel bar? Or is Prater going to harass him if he even sees him floating the stream?

As far as contacting the state attorney general, that's been done before. If you Google Elder v Delcour, one of the things that will come up is a letter from then attorney general John Danforth to somebody who was asking for clarification on the Little St. Francis at to whether it was legal to float and wade it. Danforth basically said that it was a gray area, same as every politician and every MDC employee seems to say when they are asked. And yet, the Elder v Delcour case makes it pretty darned clear in the case of a stream the size of Shoal Creek, or the size of the Little St. Francis, which is in the MDC float book and has MDC accesses on it. I would almost be willing to bet that the present attorney general would say the same thing, because they don't have enough gumption to take a stand. It looks like the only way to get a definitive answer is to take another case to the state supreme court.

Ness, as for the Little Piney case, as I understand it the lady there basically tried to run off anglers who were getting ready to wade it. Whether or not you talked to her, and whether or not she was the one who "allowed" you to wade it and fish it, is kinda immaterial. She does not have the right to keep ANYBODY off it, and if she tried to do so as she did with whoever it was that she ran off, she's in the wrong and needs to know it.

[Al Agnew]

Just to clarify something a bit...in my opinion, the only gray area when it comes to this issue is in how small the stream can be and still be considered a "public highway" under Elder v Delcour. As I wrote in the thread about that case, the section of the Meramec that was in question is well above Maramec Spring and above Crooked Creek, the upper Meramec's biggest tributary. A look at the USGS river gauge for the upper Meramec shows it to be in or near the area that was at issue in Elder v Delcour. That section of the Meramec gets too low for easy floating by early summer, and can get down to where it's only floating 10-15 cubic feet per second by late summer. Another case cited in Elder v Delcour decided the Indian Creek, a tributary of the Meramec, also qualified as a "public highway". Indian creek has about 15-20 miles of barely floatable water, and most certainly gets too low to float easily by early summer as well. It probably gets down to 10 cfs or so by late summer. If you take those two stream sections as being the standard by which a stream becomes big enough to ge a "public highway", it would most certainly include all streams in the MDC float book, and a bunch of other streams as well. For instance, if you take just the Meramec River system, it would include the Meramec from about ten miles upstream of the Short Bend MDC access, which is the highest put-in in the float book. It would include the Bourbeuse from the Mint Springs MDC access, which is also above the highest put-in in the float book. It would include Big River from the mouth of Cedar Creek, which is a good 30 miles or more above the highest put-in in the book. It would include Courtois Creek from up around Courtois, well above the highest put-in in the book, and Huzzah from Dillard Mill down, which is about where the highest put-in the book is. It would definitely include the 20 or so miles of Indian Creek that are floatable, even though Indian Creek is not in the book. It would include the Mineral Fork from where the two upper forks come together, which is a mile or two above the highest put-in in the book, and that would bring up a question...I've floated MIneral Fork from the Hwy. 181 bridge on the Fourche a Renault fork, down about three miles to where the forks come together to form MIneral Fork, but I wouldn't consider that three miles as easily floatable except in pretty high spring water levels. It's mostly a "float-walk". Would it be legal or not? I've also floated Dry Creek, coming out of the Westover Spring trout place. It's barely floatable in good spring water levels, and it would certainly be considered a gray area. And then there's Dry Fork, the very long but often mostly dry stream that enters the Meramec just below Maramec Spring. This stream drains a huge watershed, bigger than the watershed of the Meramec itself above where the two come together, but most of its water sinks underground and comes out as Maramec Spring. However, there are sections of it that almost always keep a little bit of flow and which have some big, permanent pools. Locals sometimes float it when there's enough water to easily drag a canoe through the riffles in order to fish those pools. Yet as far as permanent flow is concerned, it would most definitely be a gray area at best.

So no matter what the criteria used to classify a given stream section, there would probably still be some gray areas.

[hoglaw]

Really? You don't see the leading nature in which that letter was composed? Who would describe the options in that manner?

A. Someone committed to representing their clients constitutional rights .

Or

B. Someone looking to satisfy a prosecutor and pass on a case where he would actually have to do some work.

Or

C. A true saint of a lawyer who knows the probable outcome, yet chooses not to take some easy cash from a middle class individual, out of the goodness of his heart.

There's nothing leading about it whatsoever. If I were representing Chief, I would have told him the exact same thing. This is where I've got you so far, and this is what it will take for the charges to get kicked. If you want to go forward and have your day in court, that's fine with me. This is how much it will cost for me to prepare for trial and go to court with you.

That's all he said.

Whoever suggested that Chief have a meeting with the prosecutor without the lawyer, the prosecutor cannot ethically communicate with a person he knows to be represented by counsel regarding the subject matter of the representation.

For what it's worth Chief, I wouldn't tell you anything different. The email from your attorney is completely normal, and is certainly not cause for others on here to tell you you need a new lawyer. If you don't think he's earning your money and doing a good job for you, then by all means fire him, but there is NOTHING in that email that would indicate to me that he's not doing a good job.

I do a very good job for my clients. You will not find one person in the world who will tell you that I'm greedy, lazy, don't work hard, or don't care about my clients. I give very good advice, and part of that is clearly explaining to the client the situation and the costs and benefits of various alternatives. All of this spouting off about constitutional rights and whatnot is severly misplaced. If you want to look at it from a "greed" perspective, the lawyer is explaining the costs involved and he doesn't make any money if Chief doesn't pay him fees.

To put this into perspective, this case is in clown court. It's a misdemeanor and traffic court. No proceedings are on record. There is no appeal to a Missouri appellate court. If you want to "make law", that has to be done on appeal. The case first has to be appealed to the general jurisdiction level and tried again from scratch...a "de novo" appeal. From there, it can be taken to an appellate court that makes reported law. It seems what most of you want is for Chief to lose twice - once in clown court and once in general jurisdiction criminal court. That assumes that two judges will disagree and find Chief guilty, and a prosecutor doesn't say "this is stupid" and just dismiss the case. If Chief actually wins at either of those levels, no law is made. It's not an opinion anyone else can rely on. It's the finding of a clown court judge, and/or a general jurisdiction judge/jury.

I can't give anyone advice on Missouri law of course, but I know what I would do if I were in Chief's situation. I would ask my lawyer to set up a conference call with the prosecutor. I would explain clearly to the prosecutor exactly where I want to float and where I want to step foot. If he's agreeable to that, then I'd call it a day and walk away knowing I was right and saving a good deal of money. If he says I can't float where I want to float and I can't set foot where I want to set foot, then I'd want a trial. I'd want Mr. Prater to come to court as a witness and for him to hear the judge's decision.

There are no "countersuits" or "counterclaims" in criminal court. Those are civil issues. It may be that you, or anyone else who has been run off by Mr. Prater could file a lawsuit against him to establish an easement by perscription for the general public relying on the recent Missouri cases, but that would certainly require the opinion and representation of a lawyer who knows how to handle those kind of issues.

I guess the bottom line is to the extent folks are getting worked up about your lawyer based only on that email, it's my opinion that his position is typical for a professional who understands the situation. If you don't trust your lawyer or don't feel like he's earning his fee, there are LOTS of us in the world. If you trust him, then rely on his opinion and communicate with him so his opinion will be an informed one. If you aren't going to rely on a lawyer's advice, then why would you pay one in the first place?

Whatever you decide to do Chief, good luck. I hope it all works out well for you.