Legal or not?

[jdmidwest]

Unfortunately there is no such list that I am aware of. I consider any stream that is called a river to be navigable, of course the upper portions would be shallow. I own a kayak that runs in less than 6" of water which makes most creeks navigable. I have seen farmers fence across major streams like Castor River, Big River, St. Francois River, and many other streams in water deep enough to run a prop jon boat, restricting the navigable stream.

I float and wade most streams undetected by anyone most of the time. If approached, I am always friendly, respectful, and cautious. Some people claim to own land that they don't, and some are up to no good out in the woods making meth. I too own several miles of creek banks that people use all of the time. I don't confront anyone on the water unless they are doing something to cause a problem, ie, littering, or shooting around the stock. I have approached hunters on my land and asked them to leave as they were clearly trespassing, crossing a fence to do it, a physical property line. In that case they are creating a safety hazard to myself or my stock. I approached one on opening day of deer season wearing leafy wear camo, no orange, hunting one of our fields with a deer decoy. Dangerous to him, I would not have seen him if the decoy had not been there.

[Crippled Caddis]

Al wrote:

<the court said that, for the purposes of recreational navigability, the stream is usable by the public if it was ever used in the past for commerce, which the court further went on to say that if it had ever been used in the past to float logs to market, among other uses.>

A lot of marginal streams were used to float logs to market, especially by tie choppers. Logs or finished ties were stockpiled on the bank to await Spring floodwaters; at that time they were rolled in and followed downstream to markets. There were a LOT of one and two man operations that had only marginal streams to use so it's just possible that far more small streams have been used for commercial purposes than at first appears likely.

[fishinwrench]

By definition, "used for commerce" should include streams that are (or ever were)...dredged for gravel, and said gravel "sold".

Should you ever have to go to court over such a matter, I think that argument would clear you.....although it will cost more in lawyer fees than the trespassing fine would have cost.

But it's a principle matter, or should be. You, your kids, and everyone else looses rights to a stream forever if you pay the fine. Once it goes on county record that a person got convicted for Trespass, for being at a "certain place"... then it becomes "THE LAW"...in that county, so from that day forward access to that "certain place", and all "similar places" are lost forever. That's kind of a huge deal to me.

Besides, when landowners are allowed to "claim as their own" a section of river/stream....they will routinely do things to harm areas downstream of them. Keeping the rivers/streams public keeps those activitys in check.

[SilverMallard]

If you think you have trouble carrying a fishing rod or floating along in a kayak, try setting up before dawn to hunt ducks and 2-4 guys opening up 30 minutes before sunrise on a flock of Wood Ducks! Landowners tend to be in better spirits in the mid-afternoon than they are when they are roused from slumber before dawn by a dozen quick shotgun blasts. LOL

Some states use the federal navigable water standard (commercial navigation). Some use the recreational navigation standard like MO. In some states, landowners only own to the high water mark on any water. In others, they own the stream bed as well. In some states, landowners have the right to refuse trespass if they own the land along both banks of a stream that is not federal navigable water. But those states are few and mostly out West.

Each jurisdiction is different, down to the municipal level in many cases. Just like with game laws and traffic laws, ignorance is no excuse. If you travel to various areas to take part in outdoor recreation, it is YOUR responsibility to research and learn and abide by ALL applicaple municipal and county ordinances, and state and federal laws.

I have found that if I have questions about the law in these regards in a new area, a call to the county sheriff's office/local game warden will clear it all up for me. I may or may not like what they tell me. But the idea is to have fun and relax. The LAST things I want are a shootout, fight, or legal battle. I don't hunt/fish/float/camp to save the world. I don't do it to prove a point. I do it for ME. I can joust windmills and slay dragons the REST of the time.

[Terry Beeson]

One huge problem with all of this for many streams is the fact that the laws that stand on the books are very old and need to be reviewed to see if they are even applicable in today's society. Many of the streams have never been declared navigable or not and you can not just decide if it is or not based on individual thoughts or beliefs. "Commercial purposes" might even include a cow drinking from a stream and then sold for profit, or even a deer drinking from it then being harvested in a "pay to hunt" situation. So the question is, what do the courts consider "commercial purposes?"

I'm not positive, but I think that if AGFC or other entity have established accesses to water, it is known to be declared "navigable" and the laws apply to THAT waterway (not necessarily its tributaries.) But if there are no "public" established accesses, it is a coin toss and a prayer.

My family owns property on which about 80% of a watershed lake (built in the 60s by COE for flood control) is located. This little lake at one time was a pretty prime fishing hole. BUT it was surrounded by private property. This is how it was explained to my dad. A person on the lake was not tresspassing as long as he attained permission from my dad or the person who owned the property surrounding the other 20% of the lake. A person could be charged with trespassing if they did not have that permission unless they dropped in by helicopter or some other means of getting on the water without crossing the private property. The "idea" was that as long as they were on the water, they were not trespassing, but once they crossed the private land, they were. Now, nobody was ever charged with that and many people enjoyed the fishing there, but it was "handy" if there was any abuse of the property. And, yes, trash, cut fences, and other problems were evident, but for the most part, people did not abuse the privilege.

THEN comes the issue of someone who is injured while getting to the lake or even on the lake. I have dreaded the day when my dad, now my mom, and eventually my sister or I get a summons to appear in court in response to a lawsuit suing the property owners for neglect because someone trying to get to the lake stepped in a hole or ran their ATV into a terrace and broke a bone or whatever. If you do not think that is a valid fear, you better read the papers closer.

Honestly, there are way too many "smoke and mirrors" in reference to the laws as they stand - local, state, and federal.

In a recent court case, some guys (I think it was in Louisiana if not mistaken) took advantage of vast flood waters and motored their boat some 3 or more miles from the Mississippi River channel to get to some exclusive duck hunting property. That case was in the courts over trespassing charges and I don't really remember the outcome or even if there WAS an outcome, but it had many fishermen upset because it might take away boating and wading rights. I disagree because the case seemed very obvious that these guys blatently schemed to get to the remote area of private land using the excuse of being in the waters of the Mississippi River. Remember - they were over 3 MILES from the channel in EXTREME flood waters. To me it would be like me walking into a home with an inch of flood waters and claiming you can't get me for tresspassing because I'm in the river. Horse hockey...

But then again, I'm not a judge, and they are the ones with the "final" say-so.

My point to all of this is there are two sides to the story. Owning property on the Norfork tail waters and owning land that "No Name" Creek runs through may have very different guidelines when it comes to access to the fishing.

In other words, just be careful where you decide you want to fish. If you can find the landowner, you might just find he'll give you access and even tell you where the best fishing is...

[Crippled Caddis]

Terry wrote:

<So the question is, what do the courts consider "commercial purposes?">

I feel it a safe bet that the intent was to denote use as a public thoroughfare for commerce since it is a 'navagability' issue. Another, broader interpretation would transgress the rule of 'original intent'.

Of course we've seen it amply demonstrated by SCOTUS that the doctrine of 'original intent' in the case of the 1st & 2nd Amendments can be perverted or ignored with impunity by a complicit court intent on rewriting the Constitution by judicial fiat. CC

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"There is no danger I apprehend so much as the consolidation of our government by the noiseless and therefore unalarming instrumentality of the Supreme Court." --Thomas Jefferson

[hornyheadchub]

Charlie is no longer with us and alas the shooting range is closed. As a Vietnam Vet the hair on the back of my neck would stand up every time he popped off a few. I don't mind gunshots as long as I know they are coming. With Charlie, you never knew.

I actually half-liked the overzealous river dweller image that he displayed, but he was a crazy SOB there's no question. I always enjoyed watching some green-horn get too close to his spread and the reaction it solicited from him. I even had a friend who was ballsy enough to stand on his little dock when the water came up By the same token I could feel his stare buning a hole in me if I caught a porker near his pad and didn't land or relaese it quick enough for him. His 'Riparian Rights River' sign is still up.

What happened to him?

[BEvERage]

I received this reply to my question from Oklahoma fish and game.

You must have the landowner's permission to wade in the river or to be

on the banks. The landowner owns the riverbed. You may float in a boat

on the water if it navigatable waters only. There are no riparian

rights.

Capt. David Deckard

Law Enforcement Division

Oklahoma Department of Wildlife Conservation

[SilverMallard]

The more you get into western ranch country, Beverage, you will find this to be the case. You will also find more and longer stretches of streams that bisect a single property owner's land instead of having separate owners on each bank. This is why angler access is generally a bigger deal the further West you go in the US.

[Crippled Caddis]

<The more you get into western ranch country, Beverage, you will find this to be the case. You will also find more and longer stretches of streams that bisect a single property owner's land instead of having separate owners on each bank. This is why angler access is generally a bigger deal the further West you go in the US.>

To open the can of worms a bit wider Texas grandfathers Spanish Land Grant properties that are still in the original family. That means that the property owner through whose Land Grant the river flows owns the river in its entirety. State or federal navigability laws do NOT apply. While I don't KNOW it to be the case I would suspect the same may well apply in N.M., Ariz., & Calif. as well.

In short the only thing you can generalize about in regard to public rights to flowing waters is that there is NO consistency nor firm body of national law. As SM pointed out in an earlier post anything or everything can apply or not apply from federal to local jurisdiction. Don't make the mistake of betting your life on the information you recieved from Okla. That is the opinion of ONE person in the Dept. of Wildlife and represents ONLY his understanding of state law which may or may not be honored by local jurisdictions. When in any doubt whatsoever (and there is ALWAYS doubt) remember the right of way metaphor posted above by another correspondant. CC