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Friday, May 21, 2010

Law - Fencing off trout streams

This article today in the South Bend Tribune, by Lou Mumford, caught my eye because I have read similar stories over the year. Mumford writes:

BUCHANAN MICHIGAN —Why does the fence cross the creek? More to the point, is it legal? In Buchanan, the spin-off on the chicken-crossing-the-road riddle is asked often, says Scott King. An avid fisherman and member of Friends of McCoy Creek — it was founded to assist what some might call "the reel McCoy,'' based on the creek's stature as a designated trout stream — King said more than a few Buchanan residents view restrictions on a public waterway as a contradiction.

Apparently, when it comes to the fence crossing the creek, they don't consider getting, or not getting, to the other side an acceptable answer.

It was only recently, King said, that he received a response from the Michigan Department of Natural Resources and Environment regarding the chain-link fence that straddles the creek a foot or two above the water near Centennial Park and the McCoy Creek Recreation Area.

King said a DNRE fisheries biologist informed him the owner of the property featuring the fence — R. McKinley Elliott, the Berrien County corporate counsel and a candidate for the county commissioners seat currently held by retiring Don Ryman — had every right to erect it.

"He explained McCoy Creek is a non-navigable stream. ... If a property owner owns property on both sides, he can fence off over the water," King said.

That position was confirmed Thursday by DNRE spokeswoman Mary Dettloff. As long as Elliott owns property on both sides of the creek — he does — and the fence doesn't impede fish — it doesn't — the fence can stand, she said.

For his part, Elliott said there's been a fence in place on the property, and over the creek, since before his family purchased it in 1958. The fence has been replaced on three occasions, most recently in 1986, for the sole purpose of family privacy, he said.

As King was reportedly told — efforts to contact the official he spoke with were unsuccessful — the creek's status as a non-navigable stream makes such a fence legal, Elliott said.

"In Michigan, navigable means it needs to be deep and wide enough for commercial logging. It goes back to the days of commercial sawmills," he said.

Dettloff agreed the log-flotation test — if logs can be floated on a body of water, the state terms the water navigable — was the rule until jurists determined the best course was to allow local courts to make such calls. Although that opened the door for roaming fishermen, or whomever, to challenge fences like Elliott's, Dettloff said ownership of property on both sides of a stream most likely would result in rulings favorable to property owners.

Here are some quotes from a 1997 story in the NY Times:
SHERIDAN, Mont., May 28— As wealthy out-of-staters buy ranches along prime trout streams in Montana, a battle is erupting over access to publicly owned rivers that flow through private land.

The fight is most heated along the Ruby River, a small waterway with a good trout population flowing through a valley of landowners who have put up fences to keep people off most of the river's lower stretch.

''People who grew up fishing this river can't get on it,'' said Tom Harman, a local fishing guide who contends that the Ruby has become an elite reserve. ''I haven't wet a boot in the Ruby in three years.''

Trout fishing was once an important part of life in this small ranching community. * * *

The conflict comes because the Montana Stream Access Law says the public owns the rivers. For recreation, including hunting and fishing, everyone has a right to get access to virtually any waterway that flows through private land. But many landowners have put up fences to keep people away from the streams. The matter is being reviewed by state officials. * * *

There have been a number of complaints from fishermen who have been yelled at and photographed and who have even heard warning shots fired as they fished prized trout streams flowing through private land, which is legal as long as they stay within the high-water marks.

Some landowners ''erroneously are trying to lay claim to a public resource,'' said Dick Oswald, a fisheries biologist for the Montana Department of Fish, Wildlife and Parks in nearby Dillon. ''I suspect they didn't do their homework before they bought land. This is America, not feudal Europe.''

Now from a 2008 NY Times story:
HELENA, Mont. — A group of landowners, including several wealthy out-of-staters, are none too happy that their exclusive use of a scenic trout-rich stream in the Bitterroot Valley is coming to an end.

The Montana Supreme Court ruled here recently that the 16-mile-long stream, Mitchell Slough, is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries.

Montana law is firm in allowing the public access to streams and rivers that flow through private land, up to the high-water mark. The law states that fishermen can walk in a stream or along the bank up to the high-water mark if they enter the waterway from public land like a bridge. They may not cross or walk on private land above the mark without permission.

In this case, though, two dozen landowners — including the rock singer Huey Lewis and Charles R. Schwab, founder of the brokerage firm that bears his name — argued that irrigation diversions had so thoroughly altered Mitchell Slough that it was no longer a natural waterway and that therefore the stream access law should not apply. To reinforce that belief, they began calling it Mitchell Ditch.

Another NY Times story, from 2006, begins:
PITTSBURGH - Pristine trout streams are the pride of central Pennsylvania, but a legal battle over public access to one of its finest - the Little Juniata, known to many as the Little J - has created concerns among landowners and anglers nationwide.

The Commonwealth of Pennsylvania, the state's department of environmental protection, the state's department of conservation and natural resources, and the Pennsylvania Fish and Boat Commission are suing a landowner and a private fishing club for prohibiting the public from angling on a 1.3-mile stretch of the Little Juniata in Huntingdon County. Defendants in the suit include the Spring Ridge Club and its operator, Donny Beaver, and Connie L. Espy, the property owner who leases the stream to the club.

The plaintiffs assert that the waterway is navigable, and therefore public property. They filed suit, scheduled for a nonjury trial in Huntingdon County common pleas court on June 12, after more than a decade of confrontations over access to the river, which club members have paid tens of thousands of dollars to fish.

"If you go back and read our founding fathers, they didn't say life, liberty and the pursuit of happiness; they said life, liberty and the right to own and control property," Beaver said. "Our goal is to save these trout streams from being sprawled into another shopping mall, like the one that got built near the headwaters of the Little J. They're better off in our hands."

But Stan Stein, a lawyer representing a tackle shop owner, Allan Bright, in a separate suit against Beaver and his club, said landowner motives were seldom altruistic, and he expressed alarm over the privatization trend. "If you fish out West, as I do," said Stein, who is also working with the Commonwealth on its case, "you've got the wealthy Hollywood crowd building these 20,000-square-foot ranch houses and trying to limit access to what Beaver would call 'the free-lunch bunch.' We need to send them a message."

How such messages are heard varies widely from state to state, as do laws about water and submerged-land rights. Waterways are considered public property if they are federally designated as navigable, or large enough to carry commercial traffic. But when it comes to smaller rivers, even those that states consider navigable, there is no uniformity in how they are allowed to be used, and decisions are often made on a case-by-case basis. About the only things states share, according to Leon Szeptycki, general counsel of the coldwater conservation group Trout Unlimited, "is a steady diet of disputes between landowners and folks who want to fish."

Posted by Marcia Oddi on May 21, 2010 03:09 PM
Posted to General Law Related