Landowner run in on a stream near Pineville

[snagged in outlet 3]

3 hours ago, Flysmallie said:

I never understood the intelligence of doing donuts on gravel. Must be the same people that show off by spinning their tires when the pavement is wet. 

Besides that, you can see where they "hooked up".  That's tough on any vehicle.  

[Flysmallie]

The best be careful or they will launch their truck nuts out into the trees. 

[Al Agnew]

On 3/10/2025 at 11:57 AM, tjm said:

So no real belief that the popular interpretation of Elder  is legally correct. 

No, that's not at all what we're saying.  It's not easy to delineate the characteristics of a stream that makes it fall under Elder v Delcour.  Many of these smaller streams don't even have gauging stations on them, so you can't use the median or normal flow as a measurement.  Some are floated less than others because of poor access.  So basically, there is no really objective way of figuring out a minimum size of flow that would be the cut-off point.  Nor is it easy to just say, well, I'm able to float it in normal spring water level, so it should be open to the public.  Define "floating".  What kind of boat?  How heavily loaded?  Does it mean floating it without frequently touching the bottom, or float-hiking it?  

And again...you would be fighting it in a county court, with (since the sheriff's department arrested you for trespass) county prosecutor and other county officials including probably the judge of the mind that you WERE trespassing.  You would almost certainly lose if it went that far.  Then you'd have to appeal.  No guarantee that you'd win there, either.  (Note: Elder v Delcour was brought by mutual consent of the parties involved, specifically to test the idea of stream access.  Any court case now would probably not be the same.)  

It isn't a matter of the popular interpretation of Elder being legally correct.  As we've seen with recent high profile cases in the U.S Supreme Court, precedent doesn't mean much if the court is ideologically of a different mind.  ANY case that made it to the MO Supreme Court, given their recent history of decisions, could actually ignore Elder and come up with a different decision, one that would make us lose stream access.  We are fortunate in MO and AR to have rather permissive stream access.  In a whole lot of states, the public has far fewer rights (or no rights) to public access to streams.  Be careful what you wish for.

[fishinwrench]

1 hour ago, Al Agnew said:

We are fortunate in MO and AR to have rather permissive stream access.  In a whole lot of states, the public has far fewer rights (or no rights) to public access to streams.  Be careful what you wish for.

Allowing land owners to privately own sections of streams..... would be a terrible decision for any state to stand behind.   

That stream leaves the property eventually.  So by doing so the state would carry the burden of investigating, issuing warrants, and potentially holding that landowner liable for any future water quality issues downstream. 

Keeping streams open to the public, and standing behind that as a state law, helps ensure that landowner practices don't cross the environmental line.  

[tjm]

As I said, no belief that all those streams claimed to fit Elder really do.

 

9 hours ago, fishinwrench said:

Keeping streams open to the public, and standing behind that as a state law, helps ensure that landowner practices don't cross the environmental line.  

How? do you do water samples and lab work on the streams you fish?  

Mo has no laws keeping  streams open to the public, just a presumption that most streams would fit a case law precedent  if so tested; and as outlined above it is thought that many would not pass that test in court. If there is enough  doubt that the courts would rule a stream  to fit the Elder standards that we don't want such cases;  then it can be presumed that those streams are not legally public thoroughfares.  What is fact is that no stream is a public thoroughfare in Mo. until it is tested in court, with the exception of the federally navigable rivers. 

A number of smaller streams have been tested in court and now are legally public thoroughfares, but on the rest we are there at the landowners pleasure, mostly because they too fear the outcome of a court test.  A coalition of anglers and floaters could raise the funds to take one stream at a time through the court process. So what if the county court rules adversely, that is what appeals courts are for.

[fishinwrench]

3 hours ago, tjm said:

How? do you do water samples and lab work on the streams you fish?

 

It doesn't require "lab work" to notice what some landowners will allow to be thrown into a creekbed.  Especially as they age, are lacking anyone to help them, and they assume that nobody can see it. 

Personally I've reported an abandoned tractor & bobcat that was leaking hydraulic fluid, oil, and fuel, causing an oil-slick that was easily noticable just shy of 2 miles downstream of his property line.   DNR busted him and revoked his ability to sell gravel.     

BTW, dredging a creek for gravel and SELLING IT is legally considered "commerce".       

[drew03cmc]

On 3/12/2025 at 12:25 PM, fishinwrench said:

     

BTW, dredging a creek for gravel and SELLING IT is legally considered "commerce".       

This might be the best statement on this entire issue. It might give enough reason for a court to rule in the outdoorsman's favor.

[jdmidwest]

But my local County Highway Department has been permitted to mine gravel out of my creek at several locations.  They have applied for the Corps permits and met the requirements of the Dept of Nat. Resources. We have never received monetary benefits from it.  It just pools up where the current slows down.

Gravel mining in some locations is not bad, it offsets the poor land management from others upstream that allow the runoff to come down stream and settle.

A nice buffer zone from fields and pastures to the creek with trees and other land holding structures are needed in all waterways.  Clear cuts on hillsides seem to cause the most issues with gravel in streams, disturbing the delicate cover of the thin soils in the Ozarks..

[fishinwrench]

1 hour ago, drew03cmc said:

This might be the best statement on this entire issue. It might give enough reason for a court to rule in the outdoorsman's favor.

Yeah.....But it will still cost you plenty (more than a trespassing fine) because a lawyer representing you is required.     

[fishinwrench]

1 hour ago, jdmidwest said:

But my local County Highway Department has been permitted to mine gravel out of my creek at several locations.  They have applied for the Corps permits and met the requirements of the Dept of Nat. Resources. We have never received monetary benefits from it. 

Taxpayer dollars paid for it.      

I'm sure the guys operating the loaders and dump trucks got paid.