good luck OAF, everyone else can suck it.. Eh?

[tjm]

I thought Elder v Delcour made it clear that the decision applied only to that stretch of that river, thought it referred to a SCOTUS ruling that essentially required individual assessment  for each stream. But I'm not a lawyer and there were so many "if this"  "maybe that" and "judicial notices" that I'm probably mistaken. 

Did  the Supreme Court of Mo write into their decision that it applied to all waters of the state? Is that decision actually a law or is it the reference to which a court might look for guidance?

[fishinwrench]

I believe it is "case law".  Therefore it can be referred to, and expected to be followed in all similar cases.

[Al Agnew]

Wrench is right, it's the case law that pretty much governs all other streams if there is a dispute.  The big gray area is in what constitutes a stream big enough to be considered to have the public easement?  Obviously any stream the size of that stretch of the Meramec and larger would qualify, but what about streams that are perhaps slightly smaller?  

As for the loss of access,  Flysmallie is right.  Too much partying with all that entails, too much litter.  So the surrounding landowners complain, the county gets tired of the complaints, and closes it down.  Thus we all suffer for the stupidity of a few.  And that really ticks me off, because if the county sheriff's department was doing their job, they could make some arrests, write some citations, and pretty much scare the party crowd off.  

The other way we're losing access is when a new bridge is built.  Whether they mean to or not, seems like every new bridge is constructed so that there is no place left to park and get to the river.

[tjm]

Got any ideas for a solution to the access problem?

I think the elimination of parking is deliberate, small enforcement budgets and lots of complaints (not just the few idiots, the many idiots) brings a county to the point where economics play a part. "No parking" signs didn't work so they remove the possibility. I know a couple places where the state road row is wide enough that you could in the past drive down the ditch bank to the stream under the bridge that the state removed the access. (I assumed at county request.)

Case law is (in my understanding) only applied in the courts, in this case it would be a guide for the prosecutor to press trespass charges or not to and to the court in deciding the charge.  But it would not prevent a landowner from filing charges, if a charge is filed I believe the sheriff is obliged to make an arrest, isn't he?

Navigability does play a large part, not because of the obvious reasons though, navigability at time of state hood determined who owns the stream bed and thus has bearing on land adjacent. Then fifty eleven prior decisions both at federal level and in similar state cases are compared with the facts . As to whether a stream meets requirements as an easement, in an A.G. opinion in 1971 John Danforth suggested the prosecuting attorney for the given county was "in the best position to make such determination" then lists a number of rivers in Mo. that had been judged as navigable or as to easement for the prosecutor to use as comparison. Danforth said that in Elder it says "Each case involving a river must be decided with reference to it's own facts".

I don't think size of stream bed or discharge rate is necessarily the determining factor.  

[Chief Grey Bear]

I know in my case I mentioned it and was told it didn't apply. But the case was later dropped too. 

[fishinwrench]

5 hours ago, Chief Grey Bear said:

I know in my case I mentioned it and was told it didn't apply. But the case was later dropped too. 

Who said it didn't apply ?    

Typical small town court crap.  "Doesn't apply".  No reason given as to how/why or anything.  That's how you play tennis without the net.

[tjm]

On the subject of access, I heard rumor a number of years ago that the canoe rental people were behind the closing of row access, guy told me that they wanted all floats to go through them, money involved he said. Suppose that might be true? 

[tjm]

7 hours ago, Chief Grey Bear said:

I know in my case I mentioned it and was told it didn't apply. But the case was later dropped too. 

This how I would expect it to work from the study I did. Prosecutor has to look at the facts and at all those precedents then determine if the case is valid or not. Next instance will be treated the same way, just as the Scotus has directed. 

Actually I think very few trespass cases go to court, I saw numbers somewhere once and iirc it was only couple hundred statewide in that year and total fines were like $7000. Given size of the state and number of incidents I hear of I was surprised. That may been just number fish and wildlife related.

 

[Harps]

On 12/1/2017 at 3:03 PM, Al Agnew said:

....So share if you want, but expect me to jump all over you if you share spots where fish are particularly vulnerable, or if you share a specific spot that I fish. And don't expect me to EVER privately share a spot with you, because you have already broken the unwritten rule among anglers that we don't broadcast each others' spots.....

And just to clarify, I don't and probably will never fish those smallies in Bennett. It ain't one of MY spots.....

This spot is your spot, this spot is my spot
From the River Headwater to the Confluence Island
From the Ozark Forest, to the gulf stream waters
This spot was made for you and me

 

 

[fishinwrench]

A pair of High school level bass competitors posted a couple YT videos of themselves tearing up the Smallies in Bennett using a shakey head worm and a drop shot rigged worm.   Totally illegal. 

  "A fly is defined as an artificial lure constructed on a single point hook, using any material except 
soft plastic bait and natural and scented bait, which is tied, glued or otherwise permanently 
attached."