Flowing Navigable Stream Access

[Brownie Whisperer]

Do any of you have any knowledge of any one actually going to court / pursuing the issue of access on and use of navagible streams in Arkansas?

We got jumped by a landowner the other day about fishing in a creek where we entered legally. She was very mouthy and was calling the SD so rather than having a confrontation we left....Which burns my hide...

I see that as hunter/fisherman harrassment... which is illegal.... But what actual recourse do we have?

We don't litter... not even a little bit.. we try to be as trackless as we can.. and make concious efforts to be good stewards of the land...

This particular stream is a tributary of a defined navigable waterway by the USCOE. Therefore it is by definition a Navigable water way, falling under the juristicion of the USCOE, and public use is allowed.
And we were within the normal high water mark of the stream.

USCOE Publication 40CFR 230.3(S) Waters of the United States Defined is clear...
Specifically Line 5 .....which encompases just about anything they want it to apply to... Try to mine gravel or build a bridge... You'll find out pretty quickly where the juristiction lies..


What is the definition of “Waters of the United States” & “Navigable Waters of the United States”?

Waters of the United States
40 CFR 230.3(s)
The term waters of the United States means:
1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
(I) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii)(From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under this definition;
5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
6. The territorial sea;
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
Navigable Waters of the United States
This term includes the oceans and navigable coastal and inland waters, lakes, rivers, and streams. Corps jurisdiction extends shoreward to the mean high water line.
The Corps general definition of navigable waters of the United States is “those waters subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.”

[fishinwrench]

This particular stream is a tributary of a defined navigable waterway

Aren't they all?

I've had similar confrontations and I think the best way to handle it is to politely agree to go back to your truck and await the deputy or MDC agent. On 2 occasions that I know of the person attempting to run people off wasn't even a landowner/caretaker at all.

If you feel that you're in the right, but leave because "someone unofficial" tells you to then you have pretty much agreed that you are in the wrong and therefore can NEVER come back. Stick around and deal with it, and if nobody from the county shows up in a reasonable amount of time then go back to fishing or call the county yourself and corner someone into making an official decision.

If small river anglers just keep tucking their tails and allowing themelves to be shooed away all the time then they might as well just stay in the big lakes/rivers and crowded trout parks..... or take up golf.

[Old plug]

This is a very complicated definition of the federal law. I imagine it was written by some government agency lawyer. It appears to have a lot more to do with commerce than with recreation. Geeeezzzz it has been 25 yrs since I had to mess with this kind of gobbly goot. This is the second post this morning and I already have a headache. You younger people take the ball and run. This federal definition cannot be understood until you read each and every one of those sections that are quoted here.

Well Wrench this is how I got the way i am this is deep fishing here too.

[mic]

As I understand it, the federal law you are quoting only applies to big water that in navigable by large commerical shipping. Anything smallers falls under the laws of the state.

[Flysmallie]

Yeah I'm not sure why if you thought you were perfectly legal you would leave. I would wait it out and get the "official" answer from the local law enforcement. There is nothing you can do about it now.

[Feathers and Fins]

“Navigability” Under Arkansas State Law

“Navigability” for purposes of state law has been defined by the Arkansas Supreme Court. The definition has evolved over the years as cases concerning navigability have come before the court. That series of cases culminated with State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), in which the court enunciated the definition of “navigability” as it is currently constituted.

The McIlroy court derived a portion of its definition from the language of an earlier line of navigability cases, an example of which is Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W.2d 892 (1930). In that case, the court defined “navigability” as follows:

“The true criterion [of navigability] is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round.”

Lutesville Sand & Gravel, 181 Ark. at 576-77, quoting Little Rock, Mississippi River and Texas R.R. Co. v. Brooks, 39 Ark. 403, 409 (1882).

The McIlroy court summarized the above-quoted definition of “navigability” as follows: “[A] river is legally navigable if actually navigable and actually navigable if commercially valuable.” McIlroy, 268 Ark. at 235. The McIlroy court then went on to expand the criteria for “navigability” to include the suitability of the body of water in question for recreational purposes such as fishing in flat-bottomed boats, canoeing, and floating. McIlroy, 268 Ark. at 237.

http://ag.arkansas.gov/opinions/docs/97-047.html

That should answer the question. You will want to read the entire ruling but basically if it is "useful" it is high-water to high-water in Arkansas. You just cannot cross private property to access. This unlike Mo law is very clear and defined.

[Quillback]

Yeah I'm not sure why if you thought you were perfectly legal you would leave. I would wait it out and get the "official" answer from the local law enforcement. There is nothing you can do about it now.

Just be careful if you do the "wait it out" thing. Things could escalate.

[Feathers and Fins]

Just be careful if you do the "wait it out" thing. Things could escalate.

Didn't see that.

Best thing to do is return to your vehicle, Contact AGFC and wait for a Warden to show up. Explain the situation and show him the above ruling ( I keep it on my phone ) and let the Warden go speak to the home owner. If after that the person continues then make the call again and inform the officer you are being harassed by the person after law enforcement contact was previously made regarding the law.

Let the authorities deal with the person so you have it on record.

[Terrierman]

Here is a link to an organization that deals with these issues. VERY informative.

http://www.nationalrivers.org/

[Al Agnew]

Here is a link to an organization that deals with these issues. VERY informative.

http://www.nationalrivers.org/

NOR continues to work to make the federal "law" that they continually quote be followed, but most if not all states still ignore it. Arkansas and Missouri included. Actually the situation in AR is pretty similar to MO in that a court case, the State v. McIlroy decision, is the "final" arbiter. That case was brought, I believe, on the Mulberry River, and is a lot more recent than the MO decision of Elder v. Delcour, but basically what it ended up saying is if a stream is floatable and has been floated regularly, it's considered "navigable" by the state. That's kind of what the MO decision said as well...the public has a right to use it because it's floatable and fishable.

Unfortunately, I don't think either state's defining decision covers wadeable streams that are too small to float. That's still a real gray area that, in Missouri at least, usually goes the landowner's way in any conflict. I don't know for sure about AR, but if it was a stream too small to float, I suspect the sheriff's department would side with the landowner.