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Discussion in 'Hunters Rights Forum' started by National Rivers, Jan 15, 2014.
?l am talking about who owns the bank and the bottom. not apples.. not oranges.
Vanessa, having only read this post i dont know what critera makes a river classify for this highwater mark you speak of. I do know there has been many lawsuits over private and public duckblind use on the st francis river in eastern arkansas. The private duckclubs have won everytime. Now the game and fish has decided to take away blinds on public areas of river leaving only private owners use of permanent blinds anymore. too me this is a very navigable river that is rarely not navigable without touch sandbars most year round. permanent duck blinds have been a way of life for decades for anybody... but those days are over as of this year. what gets me is there starting to post up runs off main channel as well that has water year around. I think we are getting the shaft
timber runner, the definition of a navigable river was determined in the Daniel ball case, see my sig line. it has evolved by court decisions to this
A water body
qualifies as a ?navigable water of the United
States? if it meets any of the tests
set forth in 33 C.F.R. Part 329 (e.g.
, the water body is
(a) subject to the ebb and flow of the tide, and/
or (b) the water body is presently used,
or has been used in the past, or may be suscept
ible for use (with or without reasonable
improvements) to transport interstate or fo
basically if you can navigate by small craft from point a to point b the stream is navigable. navigability has been determined by use of fur trappers in the past. you can move a lot of products in a canoe. there has been much argued over navigability in Arkansas and on this site ( see village creek thread). the problem is states bow to local pressure and change the definition of navigability to satisfy local interest. this is unlawful. whether or not a waterbody is navigable can only be determined by the federal courts. if a state says a water is nonnavigable yet it is navigable in fact it is legally navigable. every state that has challenged this has lost.
What about runs or chutes off main channel that is well within high water mark and navigable . You see the ST FRANCIS is about half public and half private with it swiching back and forth as you proceed down stream and now landowners are trying to prevent access to public areas just because run or chute is not the main channel. And game and fish seems to be siding with landowners with no one pushing issue
anything below the OHWM would be actually owned by the state and subject to the public trust. the SCOTUS has ruled that waters that were navigable at statehood were owned by the state despite what deeds say. a deed can only transfer what is actually owned. again you have brought up an example of local government bowing to pressure of local landowners.
Thank you for that story! Yes, the Kansas Supreme Court said there are only 3 navigable rivers in Kansas, the Ark being one of them. However, there are many more than just 3 navigable rivers in Kansas, in fact (whether you can paddle down them) and under federal law. We get many calls from Kansas, where a navigable river under federal law was being used, like the Republican River, but there were conflicts because landowners and state law. The NOR November issue of Currents magazine includes a story about the Republican River in Kansas. Similar principles apply to other states, so it's worth a read! Looks like only pictures can be attached on this forum, so if you'd like the pdf shoot me an email (firstname.lastname@example.org) and I'll email you a copy.
P.S. Replies to the questions above are still coming
The ordinary high water mark is the highest the river gets under "ordinary" conditions, i.e., when it's not flooding. Generating electricity would not typically create a flood, but rather would simply replicate the high water flows that existed on the river before the dam and electrical facilities were built. Therefore the high water mark would typically be the highest the river gets during generation, not when the flow is turned off or turned down.
Rivers have been used as property boundaries since ancient times, and many property deeds says that the private land extends to the middle of the river. That way, as the river moves, the property boundary moves with it. However, the public easement on rivers is a separate legal matter. It is an easement to use the privately-owned beds and banks of navigable rivers in the process of navigating, fishing, and fowling. When the river is at a low flow, the public would typically walk along the edge of the river below the ordinary high water mark, on the exposed gravel and sand. When the river is at a high level, the public easement includes the right to walk above the high water mark as needed to walk alongside the river without having to walk in the water. In other words, the public easement to walk along the bank of the river does not disappear when the river is at an ordinary high level, then reappear when the river is at a lower level.
m r too ducks,
The law says that rivers in their "ordinary and natural condition" passed to the states at the time of statehood. The publicly-owned strip of land is the bed of the river in its natural and ordinary condition, up to the "ordinary high water mark." (The highest the water "ordinarily" gets, not during floods.)
Levees and other man-made changes alter the riverbed, but the general principle is that the public still has rights to use what is left of the natural riverbed, or what would be the natural riverbed without the man-made changes superimposed on top of it. Exactly how that applies, along a particular stretch of river with levees and other man-made changes, can be more of an art than a science, but the general principle is to preserve public access to the water, and public use rights on the water and along the edge of the water.
Rivers shift their route across the landscape, gradually due to erosion or suddenly in a big flood. The publicly-owned strip of land moves as the river moves, but it does not shrink to some narrow strip just because man-made diversions are now taking most of the water out of the river--it continues to be as wide as it would be if there were little or no water being diverted from the river.
So since local gov is getting there pockets lined and siding with them, how do I as a US citizen try to fight that ?
Do we picket ? I know plenty folk that would ? Do we send them packets ? How do we get our rights back ?