# Michigan Stream; Navigability vs. Non-navigability with Hunting & Fishing



## peaker power

boehr said:


> State Law. No court case has ever ruled different.
> 
> MCL 324.48701 Definitions.
> (g) "Inland waters of this state" means the waters within the jurisdiction of the state except Saginaw river, Lakes Michigan, Superior, Huron, and Erie, and the bays and the connecting waters. The connecting waters between Lake Superior and Lake Huron are that part of the Straits of St. Mary in this state extending from a line drawn from Birch Point Range front light to the most westerly point of Round Island, thence following the shore of Round Island to the most northerly point thereof, thence from the most northerly point of Round Island to Point Aux Pins light, Ontario, to a line drawn due east and west from the most southerly point of Little Lime Island. The connecting waters of Lake Huron and Lake Erie are all of the St. Clair river, all of Lake St. Clair, and all of the Detroit river extending from Fort Gratiot light in Lake Huron to a line extending due east and west of the most southerly point of Celeron Island in the Detroit river.


 Applies only to state issuse's game laws is a good example. no court in the state of michigan may be. I have posted many federal case's and the "forever Free" law reveiw that do not agree. As well as the NWO, does not support this for determination for public trust purposes.


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## boehr

peaker power said:


> For 26yrs of dealing with this you do not seem to have gotten as indepth as I have in the last 9 mounths. Maybe the diffirence between trying to understand the law in many places and just trying to "tow the party line" in one.


Take it easy there peak, some of us do have a life outside of this site. I will respond but sometimes I have other things to do, some things I have to do and sometimes I recreate too.


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## casscityalum

boehr said:


> Likey by the same reasons that Gatski lost and I highlighted in bold on post #23; "pose a significant risk to safety and life". Now, I not real familiar with the dam you are referring too but it sounds like it would be a good chance that your right to portage around the obstruction (dam) and back into the water would be plausible. As far as going on the dam like Gatski did is what cooked his goose.
> 
> I would add here also that in this case it is not the feds that determined the Cass River to be navigable but local acts made that determination.


So ok yes power company did own it at one time. Then as far as I know, they sold it to a private lady or family that owns a campground next to the river. She claims she owned it and we were not allowed to be resting against it. No claim to state owning it at all. 

So my issue here is there is no signs, no buoys, nothing on the wall or before the dam. There was no way whatsoever at the time(have not been back since) to tell the dam was privatly or stateowned, you can motor up to it and never cross a line or anything...Do I need to get a CO to take a ride with me to show him/her the proplems? 

Also far as I know the gates or whatnot canot even be opened and I don't know if it was even a power dam. I think its just a cement dam that created a impoundment above the river. Now to portage it..Cant the owners have a five foot tall chain/wire fence on shore and no place to get out..So I would have to pull the boat or canoe out way up stream and cross two or three properties to get around it. Party on other side has no trespassing signs and kicks anybody off trying to get around dam to fish below it


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## boehr

casscityalum said:


> So ok yes power company did own it at one time. Then as far as I know, they sold it to a private lady or family that owns a campground next to the river. She claims she owned it and we were not allowed to be resting against it. No claim to state owning it at all.
> 
> So my issue here is there is no signs, no buoys, nothing on the wall or before the dam. There was no way whatsoever at the time(have not been back since) to tell the dam was privatly or stateowned, you can motor up to it and never cross a line or anything...Do I need to get a CO to take a ride with me to show him/her the proplems?
> 
> Also far as I know the gates or whatnot canot even be opened and I don't know if it was even a power dam. I think its just a cement dam that created a impoundment above the river. Now to portage it..Cant the owners have a five foot tall chain/wire fence on shore and no place to get out..So I would have to pull the boat or canoe out way up stream and cross two or three properties to get around it. Party on other side has no trespassing signs and kicks anybody off trying to get around dam to fish below it


cass...As I stated I am not familar with the specific situation you have. It would be best to take my advice in post #2 in this thread http://www.michigan-sportsman.com/forum/showthread.php?t=290888 to find out the proper answer to be safe in all aspects.


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## toto

This question may seem off topic, but reading this got me to thinking. Since there seems to be some confusion who controls the waters, feds or states. What happens if a state votes for its own soverignity such as Texas always has been, and suppossedly Oklahoma just did? Would that then give complete power of the waters to the state in question? I know this seems a little like some conspiracy question, but its not intended to be, but an honest question as to who would then have jurisdiction???


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## peaker power

toto said:


> This question may seem off topic, but reading this got me to thinking. Since there seems to be some confusion who controls the waters, feds or states. What happens if a state votes for its own soverignity such as Texas always has been, and suppossedly Oklahoma just did? Would that then give complete power of the waters to the state in question? I know this seems a little like some conspiracy question, but its not intended to be, but an honest question as to who would then have jurisdiction???


If a state voted to be soverign, then it would have total control over its territory. although then it would be its own cuontry and its citezens would not be citezens of the USA. There is no state of the us that is not subject to federal law and the US Constitution as those are interperted by the US Supreme Court.


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## peaker power

boehr said:


> cass...As I stated I am not familar with the specific situation you have. It would be best to take my advice in post #2 in this thread http://www.michigan-sportsman.com/forum/showthread.php?t=290888 to find out the proper answer to be safe in all aspects.


 
I have been to the dam, been awhile though. First the Cass River is "Navigable for Title purposes" just as the Grand River is so I suggest you read the MSC case People v Gatski, although he was convicted the court ruling explains why and what the exemptions are for fisherman. This is a place were both federal and state laws agree on tresspasing and allowed exemptions.A second good referance would just be the actuall state law on recreational trespass on www.michigan.gov . 
This should not be an issue unless you want to try and stand on the dam (possible safty concerns then).
If after reading the law you are not sure call an attorny or le they can clarify for you. As for the fence not sure under state law, although federal would have a problem with the possible infringement of public trust issue. 
Also until you have your ducks in a row, you have been asked to "stay out" so to you it is considered posted.

Good Luck
PP


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## boehr

peaker power said:


> If a state voted to be soverign, then it would have total control over its territory. although then it would be its own cuontry and its citezens would not be citezens of the USA. There is no state of the us that is not subject to federal law and the US Constitution as those are interperted by the US Supreme Court.


What peak states is true but what he didn't say is also just as important. The citizens within a state must also obey and be subject to state laws and the state constitution also. Which is why states do have a say in navigability.


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## peaker power

boehr said:


> What peak states is true but what he didn't say is also just as important. The citizens within a state must also obey and be subject to state laws and the state constitution also. Which is why states do have a say in navigability.


I have not stated that states do not "have a say", just that the "say" is goverened by federal law. The issue we have between Boehr and myself is , who has the last"say", in public trust law pertaining to all waters of the US.

Boehr I understand that the web is not your whole life. Just thought that since you said "with 26 years of dealing with these issue"s it would be easy for you and it would have been on the tip of your tounge.
Although if it were that easy I would have posted the "Bott" case's myself. I did enjoy the history lesson though and look for ward to you finishing it when you have a chance to find and post the "controlling legal decision" of "bott". I think when you do we can quickly find some common ground.


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## boehr

> Just thought that since you said "with 26 years of dealing with these issue"s it would be easy for you and it would have been on the tip of your tounge.


 With all the research you say you have done within the last year, all the reading and such you don&#8217;t have it on the tip of your tongue?



> All I asked for was the "bott"case's, since acording to your PROMW this is the controling case.


 Bott v Natural Resources Commission, 415 Mich. 45; 327 NW2d 838 (1982) (A Michigan case, not federal) is a case which emphatically re-affirmed the log-flotation test for determining navigability, which was first set forth over 100 years earlier in Moore v Sanborne which is still is a major influencing case. But as Bott recognized, the public trust doctrine does not apply to all waters of the state, but only to navigable waters.

Now I know that you say you don&#8217;t trust the Michigan governments PROMS booklet but you can find the synopsis above in this case; http://courts.michigan.gov/plc/curriculum/Appellee_Brief.pdf
As you stated yourself earlier, not all cases can be found on the internet which is why I provide a synopsis. Can we agree on the synopsis? You can always dispute it and provide your own.

Just to stay clear on this discussion, this is what the states says:
A *navigable inland lake is* any lake which is accessible to the public via publicly-owned lands, waters or highways contiguous thereto, or via the bed of a navigable stream, and which is reasonably capable of supporting a beneficial public interest, such as navigation, fishing, hunting, swimming or other lawful purposes inherently belonging to the people.

A *navigable inland stream is* (1) any stream declared navigable by the Michigan
Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring
seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's.

Also so that we may stay on track, let us be clear on our disagreement. I say that the State and state courts make the determination of what is navigable and what is not navigable. All water is not automatically navigable. There is a big difference in jurisdiction between inland waters and the Great Lakes. Now obviously cases, after going through the steps can be advanced to the federal level but to date I don&#8217;t know of one single case that the states opinion or law of navigability was reversed. Please correct me if I&#8217;m wrong.

You say that only the feds can make a determination on navigability. The state has no say. You also say that the feds have jurisdiction over all waterways within the state and that there is no difference between inland waters and the Great Lakes.

Getting back to a major case in Michigan and has been for approximately 120 years is Moore v Sanborne, 2 Mich. 520 (1853).

The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability. The Court affirmed a trial court's judgment enjoining landowners from interfering with the passage of boaters and waders on the St. Joseph River. The question before the court was whether the St. Joseph River is navigable where it flows through defendant's property. The landowners argued that, since no evidence was submitted that the river section in question was ever used for commercial transportation or log floating, the river was not navigable at that point. The State contended that recreational uses alone can support a finding of navigability. The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra.

Some synopsis&#8217;s that may be revealent;

http://www.cobar.org/docs/Handout1.pdf?ID=1980
The above link from a law firm specifically with the observation, quoted from the document _&#8220;Federal Law. It is possible that some streams in Colorado may be navigable under federal law although there are, to date, no court decisions holding any stream navigable.&#8221;_

As for hunting, which seems we are in disagreement here too. I say you must have permission, you say on the waters you can hunt.

MCL 311.1; MSA 13.1321, as amended, reaffirms the common law and supporting Supreme Court ruling, St. Helen Shooting Club v Carter, 248 Mich. 376; 227 NW 746 (1929) that the owners of land and their lessees or licensees have the exclusive right of hunting waterfowl over the land. This right is vested solely in the landowner whether the land be upland or covered with water, or whether on navigable (public) or non-navigable (private) water.

Now as for links, I will use your own quote;


> As far as posting links to the many case's I have cited you must realize by now that is impossible, they are not "online". To scan hard copy and post the entire case would make this thred to large to read.


Unfortunately I have more information, copies of many of the actual cases and many more case synopsis but not with me in Florida. Much of it is at my house in Michigan.

Now, I have some more things to do but I'll be back.


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## pescadero

boehr said:


> You can't be convicted of a federal law in a state court. There is no jurisdiction from a state court to hear a federal case.


Somewhat true, somewhat false. 

State courts can rule state laws unConstitutional under the US Constitution. This amounts to state courts ruling on issues of federal Constitutionality.

See the California Supreme Court ruling in Perez v. Sharp (1948) for an example.

-- 
lp


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## boehr

pescadero said:


> Somewhat true, somewhat false.
> 
> State courts can rule state laws unConstitutional under the US Constitution. This amounts to state courts ruling on issues of federal Constitutionality.
> 
> See the California Supreme Court ruling in Perez v. Sharp (1948) for an example.
> 
> --
> lp


If a state court rules that a state law is unconstitutional then there still is no conviction. So my statement is still true even under your definition. But I don't believe I've ever seen a person charged with violating a state or federal constitution. They are charged under a law found to be valid under the constitution if a conviction happens. So, state courts still have no jurisdiction to hear federal "law charges", hence why they have Federal Courts


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## pescadero

boehr said:


> If a state court rules that a state law is unconstitutional then there still is no conviction. So my statement is still true even under your definition. But I don't believe I've ever seen a person charged with violating a state or federal constitution. They are charged under a law found to be valid under the constitution if a conviction happens. So, state courts still have no jurisdiction to hear federal "law charges", hence why they have Federal Courts


The Constitution *is* federal law - so any hearing by a state court of matters relating to the US Constitution is a case of a state court ruling on federal law.

...and in the case I mentioned the state of California is charged with violating a federal law (the Constitution) by passing laws against miscegenation.

-- 
lp


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## casscityalum

peaker power said:


> A second good reference would just be the actuall state law on recreational trespass on www.michigan.gov .
> This should not be an issue unless you want to try and stand on the dam (possible safty concerns then).
> As for the fence not sure under state law, although federal would have a problem with the possible infringement of public trust issue.
> Good Luck
> PP


Thanks and I have read the case you mentioned. Now that the dam is unused and no posting signs or anything, I feel that I would not get charged with resting the boat against the wall. Its just like a log in the river. Now if I climbed out and walked the top then yes, charge me with trespass because its a long hurtful fall 

I will have to ask our CO and take a trip down the river this week and post pictures of what we see to post here. Then people can see what we are dealing with. Its been a year but I doubt its changed since i was last there. 

When the lady yelled at us, she used the "The DNR and Police are waiting at the dock for you guys". We yelled back and one bud exchanged some harsh words back to her..Then we mover the boat about 6" back and anchored right there to fish and provoke her more...:evilsmile Young punks we were :lol:...needless to say never ever did we see a uniform or another person when we got there  

Thanks boehr too, I will take pics and then use your information you gave me from there.


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## peaker power

boehr said:


> With all the research you say you have done within the last year, all the reading and such you dont have it on the tip of your tongue?
> 
> Bott v Natural Resources Commission, 415 Mich. 45; 327 NW2d 838 (1982) (A Michigan case, not federal) is a case which emphatically re-affirmed the log-flotation test for determining navigability, which was first set forth over 100 years earlier in Moore v Sanborne which is still is a major influencing case. But as Bott recognized, the public trust doctrine does not apply to all waters of the state, but only to navigable waters.
> 
> Now I know that you say you dont trust the Michigan governments PROMS booklet but you can find the synopsis above in this case; http://courts.michigan.gov/plc/curriculum/Appellee_Brief.pdf
> As you stated yourself earlier, not all cases can be found on the internet which is why I provide a synopsis. Can we agree on the synopsis? You can always dispute it and provide your own.
> 
> Just to stay clear on this discussion, this is what the states says:
> A *navigable inland lake is* any lake which is accessible to the public via publicly-owned lands, waters or highways contiguous thereto, or via the bed of a navigable stream, and which is reasonably capable of supporting a beneficial public interest, such as navigation, fishing, hunting, swimming or other lawful purposes inherently belonging to the people.
> 
> A *navigable inland stream is* (1) any stream declared navigable by the Michigan
> Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring
> seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's.
> 
> Also so that we may stay on track, let us be clear on our disagreement. I say that the State and state courts make the determination of what is navigable and what is not navigable. All water is not automatically navigable. There is a big difference in jurisdiction between inland waters and the Great Lakes. Now obviously cases, after going through the steps can be advanced to the federal level but to date I dont know of one single case that the states opinion or law of navigability was reversed. Please correct me if Im wrong.
> 
> You say that only the feds can make a determination on navigability. The state has no say. You also say that the feds have jurisdiction over all waterways within the state and that there is no difference between inland waters and the Great Lakes.
> 
> Getting back to a major case in Michigan and has been for approximately 120 years is Moore v Sanborne, 2 Mich. 520 (1853).
> 
> The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability. The Court affirmed a trial court's judgment enjoining landowners from interfering with the passage of boaters and waders on the St. Joseph River. The question before the court was whether the St. Joseph River is navigable where it flows through defendant's property. The landowners argued that, since no evidence was submitted that the river section in question was ever used for commercial transportation or log floating, the river was not navigable at that point. The State contended that recreational uses alone can support a finding of navigability. The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra.
> 
> Some synopsiss that may be revealent;
> 
> http://www.cobar.org/docs/Handout1.pdf?ID=1980
> The above link from a law firm specifically with the observation, quoted from the document _Federal Law. It is possible that some streams in Colorado may be navigable under federal law although there are, to date, no court decisions holding any stream navigable._
> 
> As for hunting, which seems we are in disagreement here too. I say you must have permission, you say on the waters you can hunt.
> 
> MCL 311.1; MSA 13.1321, as amended, reaffirms the common law and supporting Supreme Court ruling, St. Helen Shooting Club v Carter, 248 Mich. 376; 227 NW 746 (1929) that the owners of land and their lessees or licensees have the exclusive right of hunting waterfowl over the land. This right is vested solely in the landowner whether the land be upland or covered with water, or whether on navigable (public) or non-navigable (private) water.
> 
> Now as for links, I will use your own quote;
> 
> 
> Unfortunately I have more information, copies of many of the actual cases and many more case synopsis but not with me in Florida. Much of it is at my house in Michigan.
> 
> Now, I have some more things to do but I'll be back.


Boehr you thought you were setting me up, kept ignoring federal case's I posted and siteing state law. I am sure you were just waiting for me to say "prove it " and when I did you were ready. 

Except I already knew the answer to the question. Hence just one reseaon I do not trust the PROMW or the DNR LED on this issue. In short the "bott" case's have NEVER been giving an offical opinion. Any thing you can quote come from a MSC statement and shuold not stand up in any court, if I understand the difference between statements and opinions correctly.

I had found the statement once online but thought it had no bearing on the issue, then I read the PROMW and they cited it as the Controlling case, never been able to find it agian, was hoping you would. Anyway what I remember from the "bott" and how the PROMW qoutes it seemed to be opposite.

If anyone would like to take the PROMW and go paragragh at a time and reasearch each point of law as they come up I would be happy to. Boehr and I seem to be stuck in a rut on state v fed so maybe this would be a good way to continue and see if we can find a definitive answer. At least Boehr should not have a problem with the idea, if he wants to particapte or not, PROMW is the states document.

Also I went to the library today, had herd I may be able to get court rulings from there or aleast find out were a law library is. All they have is acsess to a web site called "west law", I spent just enough time on there to get dizzy. I will be back but to find more on "bott" and some of the older case's if possible is now going to be very slow.


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## boehr

I was trying to set you up? Ok if you say so but again that is what you think and I don't understand that but......

Ok if the feds control everything and you live in the Caro area, what federal agency are you going to call to check if a stream is navigable or not? Or in the case of the dam on the Cass talked about, what federal agency would you refer the person too?

On one of your local inland navigable lakes in your area you witness a serious violation, any serious vioulation, you would you report it too?


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## boehr

pescadero said:


> The Constitution *is* federal law - so any hearing by a state court of matters relating to the US Constitution is a case of a state court ruling on federal law.
> 
> ...and in the case I mentioned the state of California is charged with violating a federal law (the Constitution) by passing laws against miscegenation.
> 
> --
> lp


Sorry but you are way off on that. The US Constitution is not a federal law. The branch of government that makes laws is completely different than those who wrote the constitution. If the constitution is federal law then why is it a lot more difficult to change or add too verses laws passed by congress. In California it would be found that the law passed is unconstitutional, not a violation of federal law.

If state courts have jurisdiction over federal law as you wish to believe, then what federal laws other than the consitution do the state courts have jurisdiction over? Easy answer none.


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## pescadero

boehr said:


> Sorry but you are way off on that. The US Constitution is not a federal law. The branch of government that makes laws is completely different than those who wrote the constitution. If the constitution is federal law then why is it a lot more difficult to change or add too verses laws passed by congress. In California it would be found that the law passed is unconstitutional, not a violation of federal law.


The Constitution is, by definition, federal law.



boehr said:


> If state courts have jurisdiction over federal law as you wish to believe, then what federal laws other than the consitution do the state courts have jurisdiction over? Easy answer none.


State courts have the right (and requirement in some cases) to rule on the state as well as federal Constitutionality of laws.

-- 
lp


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## peaker power

Boehr
Since you responded I assume you would like to examin the PROMW's in depth.

So here it is agian http://www.michigan.gov/documents/Water97e_142928_7.pdf

Page iv title and MC art IV, as far as it goes no problem for me (have never said "no" state control).

Page v Authors Mr. Frank Opolka f the DNR LED (no job title giving) Supriviser or summer intern? For me a small credablity issue.

Second author Mr. John F. Leon Law Student (did become AAG for SoM) You are taking the word of a student, hmmmm. Agian a credablity issue for me.

The 1st researchable piont of law is on page 5 (pargraph 5) would you like to start there? If you can agree on the facts on pages iv and v.


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## boehr

pescadero said:


> The Constitution is, by definition, federal law.
> 
> State courts have the right (and requirement in some cases) to rule on the state as well as federal Constitutionality of laws.
> 
> lp


Show me where it states that the United States Constitution is defined as a federal law. Show me one case where anyone was criminally charged for a violation of the consititution.


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## boehr

peaker power said:


> http://supreme.justia.com/us/146/387/index.html PROMW's cites this one


Yep, kind of like hunting, you don't have any special rights to the bottomlands if you are not the riparian owner.


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## boehr

peaker power said:


> http://supreme.justia.com/us/140/371/case.html PROMW's cites this one too


Another that protects riparian rights.

Gosh, thanks for proving what I have stated all along. No wonder they are in the Michigan booklet because they support what Michigan states.


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## peaker power

boehr said:


> Another that protects riparian rights.
> 
> Gosh, thanks for proving what I have stated all along. No wonder they are in the Michigan booklet because they support what Michigan states.


 
the west and south sides of a small lake in Cook County, Illinois, situate about a dozen miles south of Chicago and two or three miles from Lake Michigan, 

You said no federal jurisdiction on inland waters so how can this be.


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## peaker power

boehr said:


> Yep, kind of like hunting, you don't have any special rights to the bottomlands if you are not the riparian owner.


 
Great Lakes case, so I can not hunt the Greak Lakes?


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## peaker power

boehr said:


> Again, doesn't involve navagability.


 
As in _First Iowa Hydro-Electric Coop. v. Federal Power Commission,_ 328 U. S. 152, this case illustrates the integration of the federal and state jurisdictions in licensing water power projects under the Federal Power Act. [Footnote 1] In the _First Iowa_ case, we sustained the authority of the Commission to license a power project to use navigable waters of the United States located in Iowa. Here, without finding that the waters are navigable, the Commission has issued a comparable license for a power project to use waters on lands constituting reservations of the United States located in Oregon. The State of Oregon questions the authority of the Commission to do this and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish. [Footnote 2] For the reasons hereafter stated, we sustain the Commission

Agian federal jurisdiction on inland waters navigable or not.


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## boehr

peaker power said:


> the west and south sides of a small lake in Cook County, Illinois, situate about a dozen miles south of Chicago and two or three miles from Lake Michigan,
> 
> You said no federal jurisdiction on inland waters so how can this be.


And where did the ruling change the ruling from the state's. Riparian rights where still protected which is what Michigan does and why it is trespass if you hunt on someone else's riparian bottomlands without their permission. Again, thanks for proving my case.


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## boehr

peaker power said:


> Great Lakes case, so I can not hunt the Greak Lakes?


Now you know what I have already stated about the Great Lakes. Are you trying to twist things again. The state owns the bottomlands of the Great Lakes and one has permission to hunt the Great Lakes. Nice try though.


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## boehr

peaker power said:


> As in _First Iowa Hydro-Electric Coop. v. Federal Power Commission,_ 328 U. S. 152, this case illustrates the integration of the federal and state jurisdictions in licensing water power projects under the Federal Power Act. [Footnote 1] In the _First Iowa_ case, we sustained the authority of the Commission to license a power project to use navigable waters of the United States located in Iowa. Here, without finding that the waters are navigable, the Commission has issued a comparable license for a power project to use waters on lands constituting reservations of the United States located in Oregon. The State of Oregon questions the authority of the Commission to do this and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish. [Footnote 2] For the reasons hereafter stated, we sustain the Commission
> 
> Agian federal jurisdiction on inland waters navigable or not.


Read the post. You don't seem to be reading them or maybe that is why you interpet all the ruling like you do. That case doesn't involve the issue of navigability.


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## pescadero

peaker power said:


> Seems to be a case of A private land owner (the feds) wanting to have more control over submegred lands by declaring the water as non-navigable. Whos test of navagablity was used? I know the state submitted it, but did not see who's standard was used.


I think this case should be interesting to you not because of it's findings (because it basically only finds that the statute of limitations has run out on the states claim) - but because of it's reference to the equal-footing doctrine of _Pollard's Lessee v. Hagan, 3 How. 212 (1845)_ - which deals with all states owning the beds of navigable rivers upon admission to the Union.

-- 
lp


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## peaker power

Found this in Harding v. jordan


> The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered, and that the waters themselves constitute the real boundary


Seems to mean that the bottom lands are not owned by the upland owner. 
How could you own land that has not been paid for?


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## boehr

peaker power said:


> Found this in Harding v. jordan
> 
> 
> Seems to mean that the bottom lands are not owned by the upland owner.
> How could you own land that has not been paid for?


Much is dependant on the particular water course being referred to but I normally refer to such issues as riparian anyway and not owner. Two different meanings for sure


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## peaker power

boehr said:


> Much is dependant on the particular water course being referred to but I normally refer to such issues as riparian anyway and not owner. Two different meanings for sure


Yes, I understand that (such as the Great Lakes in MI owned by the state and not in dispute here). My issue is that this seems to be federal law and all navigable for title purpose/commerce cluase waters in the US are to be treated the same for public trust reasons. Hence the word "title" in the federal name for these waters. 
Have we yet seen a federal case that seperates navigable waters into classes for public trust protection? 

Although non-navigable waters have less puplic trust protection, which is not really the topic of this thread. Title/commerce cluase and admarality waters have a different method to become protected but once protected then the public rights seem to be the same.

If this conclusion is not correct then where have we seen or can see the correct answer?


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## boehr

peaker power said:


> Although non-navigable waters have less puplic trust protection, *which is not really the topic of this thread.* Title/commerce cluase and admarality waters have a different method to become protected but once protected then the public rights seem to be the same.


Really? You better check again, re-read the posts.



> If you want to go step by step in navagability issues





> As far as hunting being a right or a privilege I understand the difference, but if we get to discussing federal court rulings they call it a right subject to restrictions.





> The main point of disagreement Boehr and I have is federal preemotion or not.





> I uderstand it is better stated as a privalege, but when high federal courts say I have a right to exersize that privalege in a certain place and word it as such then when discusng their ruluing I normaly use their terms.





> Second, you will find, since you bring up specifically waterfowl hunting, both federal waterfowl hunting laws and state waterfowl hunting laws mirror each other in Michigan. And yes, on the Great Lakes and connecting waters you may hunt waterfowl with respect to safety zones etc., but on inland waters you must have the riparian owners permission to hunt regardless if the inland water is navigable or not. Fishing of course, as I have stated many times is different from hunting.


Now those are just a few quotes from the first two pages of this thread. If you want more I will be happy to re-post more quotes from this thread but find it not really needed because I assume everyone can go back and read the posts for themselves.

You seem to always talk in circles, again. The purpose of this thread is in the threads title, *Michigan Stream; Navigability vs. Non-navigability with Hunting & Fishing*. Now if you wish to get into another topic about ownership of bottomlands then start another thread.


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## boehr

peaker power said:


> My issue is that this seems to be federal law and all navigable for title purpose/commerce cluase waters in the US are to be treated the same for public trust reasons.


 As to public trust reasons you are correct as to commerce on navigable waters. Commerce doesn't apply to and is not part of hunting which does require permission of a riparian owner be it navigable or non-navigable.


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## peaker power

[quote 
You seem to always talk in circles, again. The purpose of this thread is in the threads title, *Michigan Stream; Navigability vs. Non-navigability with Hunting & Fishing*. Now if you wish to get into another topic about ownership of bottomlands then start another thread.[/quote]

Does ownership not pertain to hunting rights? Do the federal laws and courts not say navigable waters and thier bottom lands are owned by the states?

You say I talk in circles but I think you keep changing the rules of what you want to look at. 

I do not beleive that we can discusse "hunting on navigable streams" and disregard land ownership of the bottom lands.

Unless all you want to discusse is hunting and fishing on non-navigable streams? If this is the case the discussion will be short.


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## tommy-n

Why don't you guys exchange phone numbers maybe you can hook up for a date


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## peaker power

boehr said:


> As to public trust reasons you are correct as to commerce on navigable waters. Commerce doesn't apply to and is not part of hunting which does require permission of a riparian owner be it navigable or non-navigable.


 Agian I use federal law and court terms. "Navigable fot title" or "commerce" are 2 terms for the same level of protection. 

As far as hunting rights on navigable for commerce I read this quote from people v gatski to be federal law. 



> 729; 664 NW2d 728 (2003).
> In this case, defendant argued that Consumers Energy, as a riparian owner of the stream waters, improperly restricted his right to fish. The prosecutor presented evidence indicating that Webber Dam was constructed pursuant to a federal license issued by the Federal Energy Regulatory Commission, which regulates interstate commerce on navigable waters. While the district court agreed with the prosecution's argument that federal licensing preempts state control over public navigable waters, the circuit court held that the right to build a dam does not include the right to regulate fishing in the river.
> The record indicates that defendant did not dispute the fact that Consumers Energy was allowed to construct the dam. It is also undisputed that the Grand River was a public navigable river.1 Because the Grand River is a navigable river, it is the public property of the nation and subject to all requisite legislation by Congress. _Peterman v Dep't of Natural Resources_, 446 Mich 177, 196; 521 NW2d 499 (1994). As our Supreme Court held, our state's power of navigation "'is limited by the superior power of the general Government to secure the uninterrupted navigation of all navigable streams within the limits of the United States.'" _Id_., quoting _McMorran Milling Co v C H Little Co, _201 Mich 301, 308; 167 NW2d 990 (1918). Congress has delegated to the Federal Energy Regulatory Commission (FERC) the authority to license the construction and operations of dams. 16 USC 808. Article 18 of the terms and
> conditions for obtaining a FERC license to construct a project on the navigable waters of the United States provides: So far as is consistent with proper operation of the project, the Licensee shall allow the public free access, to a reasonable extent, to project waters and adjacent project lands owned by the Licensee for the purpose of full public utilization of such lands and waters for navigation and for outdoor recreational purposes, including fishing and hunting; _Provided_, That the Licensee may reserve from public access such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property.


Unless allowing public hunting is just a requirment of having a federal license for elcetric dams.


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## boehr

peaker power said:


> Does ownership not pertain to hunting rights? Do the federal laws and courts not say navigable waters and thier bottom lands are owned by the states?
> 
> No it does NOT! Great Lakes and inland waters are different even though some inland waters have been ruled navigable the bottomlands of those inland waters are not necessarily owned by the state.
> 
> 
> 
> 
> You say I talk in circles but I think you keep changing the rules of what you want to look at.
> 
> 
> 
> Again, the name of the thread.
> 
> 
> 
> 
> I do not beleive that we can discusse "hunting on navigable streams" and disregard land ownership of the bottom lands.
> 
> Click to expand...
> 
> Right, who the owner is matters.
> 
> 
> 
> 
> Unless all you want to discusse is hunting and fishing on non-navigable streams? If this is the case the discussion will be short.
> 
> Click to expand...
> 
> Again, the discussion is what the title of the thread states, both types, navigable and non-navigable.
> 
> You continuously confuse Great Lakes and connecting waters with inland waters, navigable v. non-navigable, and jurisdiction on different types. Maybe that's why you fail to anser my questions directly.
Click to expand...


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## boehr

peaker power said:


> Agian I use federal law and court terms. "Navigable fot title" or "commerce" are 2 terms for the same level of protection.
> 
> As far as hunting rights on navigable for commerce I read this quote from people v gatski to be federal law.
> 
> 
> Unless allowing public hunting is just a requirment of having a federal license for elcetric dams.


This post makes no sense at all.

All your going to do is get someone in trouble or yourself.


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## peaker power

> Does ownership not pertain to hunting rights? Do the federal laws and courts not say navigable waters and thier bottom lands are owned by the states?
> 
> [/QUOTE
> 
> 
> 
> 
> 
> No it does NOT! Great Lakes and inland waters are different even though some inland waters have been ruled navigablethe bottomlands of those inland waters are not necessarily owned by the state.
> 
> 
> 
> So how do you see the NWO of 1787 as far as what waters are in the public trust, just the named ones or all US waters? Also the several USSC rulings that have been posted on the subject. As well as MSC rulings on the 2 case's that we have posted. the MSC saying in a foot note their ruling "may" not applie to me means, The court is not ruling but common understandings are most likley in error.
Click to expand...


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