A travesty is a burlesque imitation of a work, or distortion, or a parody. The July killing of an individual floating on the Meramec River in Missouri by a landowner is a tragic example of the vulgar distortion and ludicrous interpretation of federal and state water laws.
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| Both federal and state laws provide provisions so that floaters and fishermen can access and enjoy Missouri rivers and streams. |
The battles over use of streams, access and rights in Missouri is rampant and have become more prevalent with the advent of the floating and canoeing industry in the last four decades. Landowners and floaters and fishermen often disagree over rights, while public servants and officials stir the boiling pot with prejudicial and inaccurate information.
From decades of floating, fishing and enjoying Ozark streams and studying water laws I have garnered a considerable amount of information and opinions about the subject. An enormous problem continues to exist because regulating agencies do not share a common consensus about what is actual law regarding water and access rights.
I visited a local sheriff's office a few years back to investigate problems between floaters and landowners. The sheriff quickly pointed to the corner of his desk where a pile of complaints, approaching two feet high, sat. "We get tons of these every summer from both landowners complaining about trespassing floaters and floaters complaining about landowners running them off of gravel bars. Then we have the citations issued by Conservation Agents or Water Patrolmen. No one seems to agree about what is right and wrong in these issues."
On top of that, the sheriff and his officers had their own opinion about the legalities or water law. Therefore, many complaints were never investigated. Many of those cases that were investigated were then tossed out by the prosecuting attorney, who had another opinion. The bottom line is that county prosecutors interpret and administer water rights laws, often distorting actual law further. The result of all these misinterpretations of the law is mass confusion which produces hard feelings, huge costs to counties and individuals, and in some cases, confrontations between landowners and rivers users, which recently ended in murder on the Meramec River.
Harry Styron, an attorney in Branson, Mo., is very experienced in water law. Styron produced a 300-page document concerning water law a few years ago. Following is an excerpt from his paper.
"The law of streams is not just about water, but the things in it, the use of the water itself, the right to withdraw the water and discharge into it, the use of streambanks, and rights of access."
"The legal rules regarding running water must be drawn from a mess of federal and state statutes and the common law."
Basic Principles
- The water in streams belongs to the people of the state.
- The wildlife in streams belongs to the people of the state. 22.030 RSMo. State and federal agencies regulate if, how and when wildlife may be taken from streams.
- The concept of navigability is historically important in understanding statuses and case law, but is now of limited use in explaining rights, which are mostly governed by administrative regulations adopted under modern statutes.
- Historically, if a stream was navigable it was a public highway, with the state owning the streambed.
- Historically, if a stream was not navigable, real estate titles from adjacent land extended from the meander line to the middle thread of the stream, subject to the police power of the state.
- No court or government agency determines points of navigability under state or federal law in advance of disputes. (Source of many arguments)
- Riparian owners have rights of access to the adjacent stream and rights to take (but not to own) water and gravel from the stream for use on the riparian property.
- Federal and state administrative law governs most legal issues regarding streams and their uses, at least, in part, except for disputes between neighbors, which a matter for state courts.
Recreational Use of Streams
A 1954 Missouri Supreme Court case, Elder vs. Delcour, 269 SW2d 17 (Mo. 1954), made possible the growth of the recreational canoeing industry, giving the public the right to wade and boat on floatable streams, "for business of pleasure." Id. 26. The case also affirmed the right of anyone to with a fishing license to fish in a stream, but no to trespass on adjacent lands.
The opinion holds that the Meramec River at the point in question is non-navigable, but a public highway. Thus, the public has an easement to travel its waters and submerged streambed and pursue fish. "Since the ownership of the fish in the stream belonged to the state and since respondent was not a trespasser in passing down the stream by boat or wading, he had the right to fish and to take fish from the stream in a lawful manner."
Discussions about who owns the rivers abound. The U.S. Supreme Court has ruled that the bed and banks of all rivers are owned by the state, to be held in trust for the use of the public. These precedents are collectively known as the Public Trust Doctrine and they apply equally to all of the states of the Union. Under these precedents, rivers are public, including the dry banks up to the ordinary high water mark. In laymen's terms, the ordinary high water mark is the clearly defined line where the vegetation and grasses die of and the gravel banks begin.
There is not a a hard and fast definition of navigability. there is not a certain flow rte, a particular depth or width, or a particular grade which must be met for a stream to be considered navigable.
The U.S. Supreme Court has repeatedly stated that any river which is physically navigable is navigable by law. Too, a stream does not have to be navigable along its entire length. Shoals, riffles, treefalls, etc. that inhibit navigation on a part of the stream do not deem the stream unnavigable.
Canoes, kayaks and tubes float in very little water and the uses generate commercial dollars. If useful commerce takes place, a stream is deemed navigable under federal law.
Federal cases to check concerning these matters include: North Dakota v. Andrus, United States v. Holt State Park, United States v. Appalachian Power Co. and the Daniel Ball, 77 US (10Wall.) 557, 563.
The bottom line is that the state agencies who claim authority over conflicts regarding river and stream usage need to get their collective heads together and form a unified front which follows the law. These agencies break the law, through their illicit interpretations, as often as true offenders.
Landowners in counties where rivers and streams produce heavy usage by floaters and fishermen also need to educate themselves. I can't imagine landowners being so adamant to push their personal agendas to the point of destroying a multi-million dollar industry which depends on the rivers and streams in their area.
Very few landowners push their complaints against floaters and fishermen all the way to court. If more landowners pursued lawsuits against true trespassers (under the definition of the law) trespassing problems along our rivers and streams would diminish drastically. If floaters and fishermen would do likewise against landowners infringing on their legal rights, landowners would get the message as well.
In 40 years of floating hundreds of miles on most of our Ozark streams, I have never encountered a problem with a landowner. I have had several approach me while on a gravel bar and ask about my intentions. None have ever become belligerent or aggressive. Anytime I sensed a bit of tension, I simply moved on downstream. Should someone threaten my legal rights, I would turn it over to the appropriate authorities. Gross abuses of the law are constant from both landowners and river users. However, no float, picnic or fish is worth a confrontation which could lead to the horrible tragedy like the loss of life which occurred on the Meramec River recently. The foolishness needs to stop.
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