# Wading in river



## Bloopie

This seems really odd. If you're on a small stream, legally, how often do you think the bank owners see this? I don't think many people are trudging up feeder streams.


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## toto

Well, first of all you can't walk on anyone's property regardless of the size of the stream. The exception, of course, is it owned by the State of Michigan, Federal Government, or any such entity, then you aren't trespassing. The next, or maybe first part of that is, is the stream adjudicated navigable or not. If it has been adjudicated as non-navigable, then you can't be there at all, in or out of the water. Now I will tell you, I rather doubt that the stream you may be talking about has been determined either way, so therefore you are considered to be perfectly fine to wade within the water, but remember what was said earlier about walking on private property, only to avoid a deep hole or obstruction, period.


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## YZman

There is NO Michigan statute or Court ruling stating that any stream that has not been declared navigable by a Court, Statute, Army Corp of Engineers or meets the U.S. legal definition of “navigable in-fact” is navigable until proven otherwise. To do so would violate Const 1963, art 10, Sec. 2 which provides that '[p]rivate property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.’

United States Compiled law, in fact, states that on non-tidal streams (inland streams), the burden of proof falls on the party claiming navigable servitude through civil action. This was most recently upheld by the U.S. Supreme Court in 2014, when EPA attempted to expand their control.

If property is posted or fenced, you are trespassing. The MCL Recreational Trespass act only allows for access to a “navigable public stream”. So unless it’s declared navigable as stated above, you may be cited for trespassing. It’s the same as saying every beaten path across someone property is a public trail by prescriptive easement and until the landowner proves otherwise, the public is free to use it.

If a landowner presses charges, it costs him nothing as it is handled by the County prosecutor, you, on the other hand, will have to go to Court to be arraigned, some Courts require another date to enter your plea, and then your actual Court date.

If a landowner is denying access to a stream, you must either file a civil suit proving a stream is navigable, or convince the NRC to do so. Some people would have you believe, that every stream, no matter how small, is automatically open to the public, however, that is NOT how Federal or Michigan law sees it.

Also, there is NO statute or ruling that states any stream stocked by DNR is automatically navigable or that riparian would not be allowed to fish if he refused access to said non-navigable stream. In fact, it would be in conflict with “Bott vs NRC” ruling in which the Court ruled that the DNR does not have authority to determine navigability.

Furthermore, note that on DNR list of navigable streams, some have upstream limits.


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## kzoofisher

Why hasn't someone brought a case to settle this once and for all? Simple. Because the law is unclear and no one knows how it's going to turn out. The risk of bringing a case is just too high; you might end up with your stream adjudicated the opposite of what you want and still not have a standard that's worth a darn. No one wants to be the Steve Bartman of their stream. 

There are plenty of people and corporations with pockets deep enough to take a case all the way to the SCOTUS. That couple in Indiana just did it and lost. Environmental/public advocacy groups could do it, too. But they don't either. Too many unknowns, too many variables. Not the least of the variables is judges. I know that some of you think that the law or the Constitution say something so that settles it, but you're wrong. The Constitution doesn't say anything except what five people in black robes agree it says. And they've been known to reverse themselves pretty quickly, quicker than a case can make its way from Kalamazoo County to Washington DC.

The DNR, public advocacy groups, business groups, private advocacy groups, all would love to see this settled in their favor and none of them are pushing it. That tells you all you need to know about how clear cut your rights are. Decide for yourself the risk of fishing a stream and act accordingly. Did a property owner give you access, public land, a bridge crossing, an unmarked patch of woods? Your call. And if someone threatens to call the cops on you, decide whether you want to be Rosa Parks or Dred Scott.


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## Trout King

Pretty simple decision for me, if I can float a kayak in it I believe it to lean navigable (probably not too hard to prove, especially during spring melt flows). It's easier to just ask permission if there is a nearby house, rarely will anyone say no and if they do it usually's the, "my grandkids fish here" excuse, which the catch to that is; if the state ever stocked the stream and access is denied, the property owner may not fish either. Most brookies in the LP are not native, and none of the browns or rainbows. Early in the 20th century the state was dumping trout in nearly every ditch that looked like it may hold trout.


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## toto

So YZ you telling me I can put up a fence wherever I like and suddenly that could create trespass? Huh, who knew. The simple fact is, if a stream is neither, it is impossible to be breaking the law, what about that do you not understand.

You and I have been going on about this for years now, how about this, you tell me where your little stream is and I'll do one of two things, or both: 1) I'll find out if it's ever been planted and if so I'm fishing it, and if 2) if it's been deemed non-nav, neither are you, would that work for you?

BTW, how about a link to this article 10 you speak of, I can't find what your getting at. Also the NRC has zero to do with navigability determination.


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## toto

Another BTW, those upstream limits you are referring to are Corps of Engineer statutes nothing else, I proved to you before you wrong on that also. The Corps only has jurisdiction over certain waters.


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## FISHMANMARK

toto said:


> you tell me where your little stream is


If I recall correctly, he was asked for his address a few years back. He declined. There was going to be a Michigan Sportsman gathering in the stream in front of his house.


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## B.Jarvinen

the 19th century loggers used to build dams to hold logs all winter ... then they opened the dam in the spring and the logs "navigated" the stream. just sayin'


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## fish2much

These endless argument about having the courts decide, totally sidesteps the State legislature’s responsibility to modify or create laws which are applicable to the 21st century. This could easily be cleared up.


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## Trout King

fish2much said:


> These endless argument about having the courts decide, totally sidesteps the State legislature’s responsibility to modify or create laws which are applicable to the 21st century. This could easily be cleared up.


They are up to much more important things like figuring out how to get the legal weed money in their own pockets, lol.


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