A new way to tackle river access issues

Discussion in 'Hunters Rights Forum' started by National Rivers, Jan 15, 2014.

  1. gadwall52

    gadwall52 Elite Refuge Member

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    Vanessa, thank you for joining this forum and bringing National Rivers research and expertise to this site. Guys I have been studying river law for 20 some years and have personally vetted NORs findings with lawyer friends and by researching court cases myself. M r, The OHWM is determined by the highest the water gets save for excessive floods. The highest the water gets during full generation would not be considered flood level as it occurs on a regular basis. The corps site for your river gage should give you the gage height at which the river is considered to be in flood. Anything below that level should safely be below the OHWM.
     
  2. National Rivers

    National Rivers New Member

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    Thanks for your question m r too ducks. I'll pass on your question as well for a more detailed answer, but here's a reply for starters.

    In many places, rivers can serve as property boundaries, so private landowners may own to the middle of the river, or all the way across the river. However, these rivers are subject to the federal navigational servitude, including the federal navigational easement for ?the benefit of the public, regardless of who owns the riverbed.?(1) This easement is similar to a utility easement or a rural road easement passing through private land. It includes public rights to portage around obstacles, rapids, or waterfalls, to engage in ?sport fishing and duck hunting,?(2) to walk on the gravel bars and beaches, and to walk above the high water line as needed when walking along the banks of these rivers.(3)
    It sounds like the river you are talking about is big enough to be navigated by boat (kayak, canoe, etc.), which makes it navigable for Commerce Clause purposes (federal law), and should be open to the public. The Supremacy Clause explains that when federal law and state law (or lower law) conflict, federal law trumps. Maybe this landowner is someone that should receive a packet with this info?
    Citations:
    (1) Public easement: Montana v. United States, 450 U.S. 544 (1981).
    (2) Sport fishing and duck hunting: Martin v. Waddell, 41 U.S. 367 (1842). Montana v. United States, 450 U.S. 544 (1981).
    (3) Walking along the banks: The Montello, 87 U.S. 430 (1874).
     
  3. National Rivers

    National Rivers New Member

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    Thanks for the additional info gadwall52! Glad you've checked out NOR materials over the years and checked them out for yourself too! Nice choice on your signature :)
     
  4. gadwall52

    gadwall52 Elite Refuge Member

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    Nice to have an ally on here.
     
  5. ALLSTAR 1

    ALLSTAR 1 Elite Refuge Member

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    come pick mushrooms on our place and you will get a ticket! You can take all that high water mark and shove it. We own it, we pay the taxes, we maintain it.
    If you can pick em from a boat have at it. If you are on foot.. no way!:fp
     
  6. gadwall52

    gadwall52 Elite Refuge Member

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    find oil on it and see what happens
     
  7. mister gadwall

    mister gadwall Senior Refuge Member

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    some TVA lakes sit over lands where the landowners prior to flooding own the bottom of the lake all the way to the center of the original river channel. thus hunting or trespassing on a mud flat on lake bottom in the drawdown is only with landowner consent, lease, or other property conveyance.. Douglass lake in east tenn is a notable example. Some areas of Douglass shore and lake bottom have been leased for waterfowl hunting rights for decades. fwiw
     
  8. gadwall52

    gadwall52 Elite Refuge Member

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    then what was all that comp money for when the lakes where built.
     
  9. gadwall52

    gadwall52 Elite Refuge Member

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    Vanessa asked for a story of how I applied river law so here is one of my early incidents. Brother in law and I were dove hunting along a stretch of the Arkansas River west of Wichita. We were confronted by a son of the riparian landowner who was bow hunting a little ways back in the trees. We apologized for messing up his hunt and said we would move up river so as not to disturb his hunt. At this point he went off and said he was calling the sheriff as we were trespassing no matter where we went on the river. I informed him that the ark had been declared a navigable river by the courts and we were within our legal rights to be there. His father showed up and made the same claim. His response to the navigable claim was that we had to be in a boat to use the river. During this discussion some doves flew over and I took a totally safe shot at them. The shot was straight up but he claimed I shot over his head. We were confronted by four sheriff?s deputies at our vehicle. After explaining to them we had every right to be there and giving them our info we left. The landowner tried to push it a couple of months later but after I explained to the county attorney that we were on the Arkansas River and that even Kansas had declared it a navigable river in 1912, he agreed with me and said the complainant had been calling and just wanted to clear it up. We never were ticketed for trespassing. There is a lot of twisting of the facts about navigable law out there by people that want to keep rivers to themselves. For instance the claim that if you touch the bottom of a river you are trespassing. This is false, lots of forms of navigation require touching the bottom of the river. The keel boats that used to ply the Ohio and Mississippi where propelled by poling witch meant touching the river bottom. Toad Suck Arkansas got its name from the fact that flat boat pilots would hang up on the sand bars there during low water. They would supposedly suck on their wine bottles till they swelled up like toads thus the name for the town.
     
  10. mister gadwall

    mister gadwall Senior Refuge Member

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    "Then what was all that comp money for when the lakes where built."

    Douglas Lake was built by TVA in an emergency condemnation in WW II to create additional electricity to run the atom bomb development at oak ridge Tennessee. To get it built quickly there was not time to litigate with landowners over condemnations, prices, etc, so many farms were sold with flow age easements and flooding easements but all farms themselves were not taken in fee title. Some landowners still own what they did pre war and pre -lake, subject to an easement to TVA. Those farms were not condemned for full value. Thus the basis for my earlier post. Don't suggest you try your river rights stances in some areas of Douglas Lake. TWRA and local law enforcement enforce trespassing for illegal use of lake front or lake bottom without owners consent. Every state law is different, as for example the Jackson River in Virginia where the river was granted to landowners by a decree of the King of England pre revolution which survives to today.
     

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