Can anyone clarify MO's stream access laws?

[camburgersoup]

 I have been doing research to figure out when I am legally allowed to access a creek. I am hoping someone can help clarify. Maybe I feel lost because it was so simple where I used to live (Montana).

I found this very informative (maybe outdated) post, but it really doesn't give me any definitive answers that I can regurgitate to a landower that stops me on a creek. Seems like the consensus is that it's a grey area and pretty much up to the local district attorney... and it's "MORE OKAY" but still not definitive if the river was used for commerce sometime in state history. If that is the litmus test for access, I have no problem digging up information and starting a collection of historical facts about commercial uses of MO small streams (maybe even start a website about it).

It seems like the articles I have read online keep bringing up whether or not a stream is NAVIGABLE. It appears it is definitely legal to walk up and down a streambed if the stream is considered NAVIGABLE. The problem is that each state can define what is NAVIGABLE and I can't find (or understand) Missouri's definition. The closest I've found is where it's mentioned on pg 138 in "A Summary of Missouri Water Laws"  by the DNR (2000). I'm not a lawyer, so it is hard for me to understand. It says:

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Navigability

Of all instream water uses, navigation is the only one provided for and protected by the U.S. Constitution (the Commerce Clause). All navigable rivers are subject to public use for navigation. The legal term for this is “navigational servitude.” Determination of navigability may be made several ways.If a stream is navigable under federal determination, then the national government or the state government holds title to the streambed. State navigability is discussed in the following cases: 

In State ex rel. Applegate v. Taylor, 224 Mo. 393, 123 S.W. 892 (En Banc 1909) the court ruled that “the determination of whether a stream is navigable is the province of judicial determination rather than the legislature, unless the stream is navigable in fact.”

The case of Slovensky v. O’Reilly, 233 S.W. 478 (Mo. 1921) concerned navigation and navigability of a stream. The court held that the test of navigability of a river, as stated by the Supreme Court of the United States, is that those rivers are navigable in law when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Another test is whether, in its ordinary state, a stream or body of water has capacity and suitability for the usual purpose of navigation, ascending or descending, by vessels such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels.

Two years later, in Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393 (1923) a Wisconsin court held that navigability of a stream, for easement of public travel, extends to the water’s edge and expands and contracts as stream level rises and falls. Wilbour v. Gallagher, 77 Wash. 2d 306, 462 P.2d 232 (1969), restated the holding of Doemel, and applied it in the State of Washington.

Non-navigability was addressed in Hobart-Lee Tie Co. v. Grabner, 206 Mo. App. 96, 219 S.W. 975 (1920). The court held “if a stream is non-navigable in the sense that the state or government has not the title to the river bed, then the adjoining landowners’ property ownership runs to the thread of the stream and such ownership is subservient only to the rights of the public to use the stream as a highway upon which to float logs, ties, and such other merchandise as the volume of water will carry, and to tie up to the banks for repairs and to do anything thereon incidental to travel. The right to use a stream as a highway for floating logs, did not include the right to use or trespass onto the land of a riparian owner.”

 

Adding to my confusion... this website says even if the stream is not NAVIGABLE I can still walk up and down the streambed? (as long as I legally access it)

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"The land under the creek belongs to the person named as the owner in the recorded deed. However, the land under navigable streams (such as the Missouri and Mississippi Rivers, the Osage River, the White River and only a few others) is owned by the government.

The landowner controls the right to access the creek from the bank, but any person has a right to move upstream or downstream in the water, according to the Missouri Supreme Court in the 1954 case Elder v. Delcour,  even if the creek is non-navigable.  In some cases, the federal government has obtained an easement to allow recreational users the right to be on the streambanks, such as in the Ozark National Scenic Riverways (parts of the Jacks Fork and Current) and the National Wild and Scenic Rivers system (part of the Eleven Point)."

 

So then the question is, how can I legally access these streams from a public road? I know I cannot go through private land to access the bank.

In Montana most roads have a "right of way" that is 30ft or 60ft. Is it the same in Missouri? If so, wouldn't any public bridge have 30ft of publicly accessible shoreline? This reasoning was recently used in Montana to deny a wealthy landowner from shutting out the public from a bridge access.

 

I have tried to research this, but have came up at a dead end. I have found this 1997 MDC article that says:

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"Most anglers consider low water bridges public access to streams and fish accordingly. But some landowners don't. Be sure to contact the landowner before fishing."

 

Pretty confusing I think. Can I only use fishing access points and "known" fishing spots if I want to stay 100% legal? That would be a bummer... In my opinion, half the fun is exploring and finding new spots. 

[snagged in outlet 3]

Good luck.  Post some pictures if you go.  

[fishinwrench]

Well here's the way I'm rolling with it from here on out.....On most places I go I am certain that I am legal. I got busted on one before where I was actually within my rights, but after considering what it was going to cost in lawyer fees I just went ahead and paid the fine.  But if I ever get cited again I think I have studied court proceedure enough that I now believe I can tackle it Pro-se....so I'll fight it tooth & nail. 

The county prosecutor is the only one who you'll have to outsmart.....and in most cases that shouldn't be too hard to do IF you're diligent in your interpretations and actions from the beginning.   

For most fishermen it just isn't worth it.....but ME?   I LOVE a challenging argument. 😊

[camburgersoup]

I have found out a little more by reading this article by American Whitewater.

It sounds like if you can prove the river or stream is navigable under Federal law, then the streambed is definitely owned by the state. To determine if it's navigable under Federal Law you'd use the "federal streambed title test". The article says: 

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Determination of stream navigability under the federal streambed title test can only be decided on a case by case basis, and only after conflict occurs and the question of navigability is raised to the courts. Furthermore, the federal definition relies on historical evidence, which can be hard to verify.

Under the federal title navigability test, any river on which, in its natural and ordinary condition, small craft could transport people or goods in commerce at the time of statehood is deemed navigable. Even the floating of timber has led courts to determine navigability under federal law.

So if this info is correct, one way to definitively prove you can access a particular stream is to find verified historical proof of it being used to transport people or goods for commerce at the time of statehood. Technically many streams would qualify because they "COULD" have been used for this purpose at the time of statehood, but if it requires historical evidence it would be hard to find records of it.

[tjm]

The case law says every stream has to judged on it's own facts, so wrench's way is the correct approach to determining if you can be there or not; first you must be cited with trespass, then you must fight that charge in court and when you lose  you must appeal it to a higher court until you win. And you have to do this over for each stream.

Elder vs Delcour went to the Mo. Supreme Court, but a similar case was decided at Mo. Appeals Court in Dennig v. Graham.  Delcour went to the fisherman and the other case went to the landowner.  This is key ' "the federal streambed title test can only be decided on a case by case basis, and only after conflict occurs and the question of navigability is raised to the courts".  It is also a fact that when Mo. became a state the Federal test only showed  the Mississippi, Missouri and iirc, the Grande Rivers as being navigable, therefore all others are non-navigable - test over, the Feds kept the title to the other streams  and transferred that title to Patent holders at later dates. (these cases were both about use of non-navigable streams that were "navigable in fact". )

FWIW, neither the DNR nor the MDC know  a lot about law and both agencies have published wrong information on the subject.

You can read what one Mo.Attorney General said http://ago.mo.gov/docs/default-source/opinions/1971/264_1971.pdf?sfvrsn=2  and this might help http://www.brydonlaw.com/wp-content/uploads/2015/07/Water-Law-Article.pdf   or this  https://styronblog.com/law/harry-styrons-missouri-stream-law/

[camburgersoup]

Thanks for the clarification, that is some good info. Do you know if there are any plans or bills in the works to address this issue? I imagine it's touchy with landowners on one side and sportsmen on the other.

I don't necessarily think MO should have the same stream access laws as Montana. I would just like for it to be decided one way or the other so I definitely know if I'm trespassing. 

I feel like I have to be sneaky at any access point other than a marked fishing access. I don't exactly hide, but I try not to be seen. I worry about my truck being vandalized and trouble with landowners. I don't think anyone wants to feel uneasy while they are supposed to be relaxing and fishing. Knowing you are 100% legally fishing in that spot would be a huge relief.

 

[fishinwrench]

1 hour ago, camburgersoup said:

one way to definitively prove you can access a particular stream is to find verified historical proof of it being used to transport people or goods for commerce at the time of statehood.

The actual wording is "used for commerce".   And in the case of the streams around Lake O they ALL HAVE BEEN.  It doesn't have to mean that logs or people were transported through the area.

Gravel has been removed and sold for many years, and still is being removed and sold.  That definitely falls under the definition of a stream "used for commerce"....at least as far as any county prosecutor is prepared to argue.  And I'm sure that covers a good number of Ozark streams.....but proving it may be difficult in some areas.  Here around LO it happens to be very easy to prove both commercial gravel mining, and gravel mining done by the state road districts for maintenance....an act paid for through our taxes.

[fishinwrench]

16 minutes ago, camburgersoup said:

 I would just like for it to be decided one way or the other so I definitely know if I'm trespassing.

Pushing for a final definite ruling is a slippery slope, because it's very VERY likely not to go in our favor.  😏 

We're almost better off skating around in the gray zone.  At least this way we can pretend confusion and ignorance and keep things at the misdemeanor level.

[tjm]

I don't think it can  be addressed by  the legislature, unless  they want to buy all the stream beds  from all the various land owners. It falls to the Courts and to dedicated trespassers willing to go all the way. Wrench, I wish you luck with  that but I believe you will find that mining is not commercial use in terms of navigation in fact.  The Delcour decision is based on dozens of other cases dating back  a century or three and any new case would have to be examined in respect to all those cases and by now probably a hundred more cases in other states that affect or interpret the old cases.

And you are correct we may not want things clarified, we can still wade and I read that in some other states you can't touch the bottom at all, not even to pole a skiff.

[fishinwrench]

11 minutes ago, tjm said:

Wrench, I wish you luck with  that but I believe you will find that mining is not commercial use in terms of navigation

I don't believe that commercial "navigation" is required to determine the public's right to be there.  

The goal from my standpoint would be to simply avoid a conviction.....not to attempt to make case law.   Once charges are defeated YOU (and only you) will be able to access the stream the same way again....100% Legally !