# Information on rules for river crossing



## Jfish

I'm looking for the rules on river access. 

Can we walk on the 'flood plane' and be legal? I thought this was 6 feet from the bank.

Looking for the actual link from the dnr.

TIA


----------



## Jfish

I think that I found the information I was looking for.


----------



## kzoofisher

Good luck navigating such a complex subject. The only blanket statement about access that I believe is, "and the attorney's fees to prove it". You probably already saw the various threads on the subject and all the conflicting links to support different points of view. 

It seems like the kind of subject that most user groups would want to get behind and clarify but I think they are far too concerned with getting mired in lawsuits if they try. The Legislature has been ignoring the issue for 50 years or more. One of these days somebody will string a wire across a river that enough people use and we 'll see some action. Very possibly just on that river, though.


----------



## o_mykiss

the flood plain is probably not below the ordinary high water mark, given that if a river is out of its banks, it is generally above that point...


----------



## Jfish

From what I read, we're allowed to walk on a landowners property in order to get around a deep hole or obstruction.

We're allowed to stand and fish below the high water mark even if it is on a landowners property above the bank.

Landowners are NOT allowed to put up fences.


----------



## Boardman Brookies

Jfish said:


> From what I read, we're allowed to walk on a landowners property in order to get around a deep hole or obstruction.
> 
> We're allowed to stand and fish below the high water mark even if it is on a landowners property above the bank.
> 
> Landowners are NOT allowed to put up fences.


From my understanding that it is ok to place a face for the preventing livestock from excaping. But again this is just from various things I have read. 

Is there a fence on a river/stream that you fish?


----------



## toto

This is one of those questions that is tough to answer, it all depends on what is considered the high water mark, if you are below that, you should be good to go. If you are talking about a fence across the river, that would be a no no, ad evidenced here: http://www.seacoastonline.com/article/20100207/Sports/2070341

If you are talking about a fence parallel to the river to keep cattle in, than I would think that fence would need to be above the high water mark, but I'm guessing a bit there. You would be correct also in that you are allowed to walk on land to get around an obstruction such as a log jam or a hole that is just too deep to wade through, however you need to re-enter the water at the earliest point after getting around the obstruction. You may not just walk helter skelter on private land. If, however, you had an emergency situation that required immediate attention, then you would be allowed to cut through private land for that purpose, but that would be a pretty rare circumstance. I think it best to just stay out, until such time it can be determined to be below the high water mark.


----------



## Jfish

I did come across an old barb wire fence that was so old the tree was growing around it.

As far as walking around a hole or logjam on land my understanding is that as long as I'm below the high water mark when I pass those things I'm still allowed to be on the land.

This irritates me when I see a guide on the river who is using a drift boat and says to me that I can't walk on the bank below the high water mark "in Michigan." I think that he was just ticked that I reeled in a fish just above his clients.


----------



## fishinDon

Jfish said:


> I did come across an old barb wire fence that was so old the tree was growing around it.
> 
> As far as walking around a hole or logjam on land my understanding is that as long as I'm below the high water mark when I pass those things I'm still allowed to be on the land.
> 
> This irritates me when I see a guide on the river who is using a drift boat and says to me that I can't walk on the bank below the high water mark "in Michigan." I think that he was just ticked that I reeled in a fish just above his clients.


HaHaHa! Nice work! 

You are legal to pass an obstruction (deep hole, down tree, fence, etc) in any navigable river above or below the high water mark. You are legal to fish continually below the high water mark. Have fun!

Don


----------



## Jfish

fishinDon said:


> HaHaHa! Nice work!
> 
> You are legal to pass an obstruction (deep hole, down tree, fence, etc) in any navigable river above or below the high water mark. You are legal to fish continually below the high water mark. Have fun!
> 
> Don


Yes I love it!


----------



## UplandnWaterfowl

Jfish said:


> I did come across an old barb wire fence that was so old the tree was growing around it.
> 
> As far as walking around a hole or logjam on land my understanding is that as long as I'm below the high water mark when I pass those things I'm still allowed to be on the land.
> 
> This irritates me when I see a guide on the river who is using a drift boat and says to me that I can't walk on the bank below the high water mark "in Michigan." I think that he was just ticked that I reeled in a fish just above his clients.


High water mark only applies to the Great Lakes shore, it does not apply to rivers, the guides using drift boats are 100% correct, you can't walk on the bank, you always have to be "in" the water while fishing.

Here is the law "On a navigable (public) stream, the public has the right to float the stream, to wade on the submerged soil and to fish therein, but this right does not extend to trespass upon the private uplands of abutting landowners. Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides an exception to this general rule; a wading fisherman may enter upon the upland to avoid a hazard or other impediment obstructing passage within the stream." and "fisherman wading or floating a navigable, public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, fence"

Here is the whole document http://www.michigan.gov/documents/Water97e_142928_7.pdf

As for the OP's original question, you have to enter and exit the stream on Public land, must remain in the water in front of private land and can only enter private property if there is an obstruction, then must walk around the obstruction at the very edge of the bank and immediately re-enter the river (not stand and fish). 

Also, this is just for Fishing, hunting and trapping is not allowed in front of private property (see Section G/H in attached document).


----------



## Jfish

UplandnWaterfowl said:


> High water mark only applies to the Great Lakes shore, it does not apply to rivers, the guides using drift boats are 100% correct, you can't walk on the bank, you always have to be "in" the water while fishing.
> 
> Here is the law "On a navigable (public) stream, the public has the right to float the stream, to wade on the submerged soil and to fish therein, but this right does not extend to trespass upon the private uplands of abutting landowners. Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides an exception to this general rule; a wading fisherman may enter upon the upland to avoid a hazard or other impediment obstructing passage within the stream." and "fisherman wading or floating a navigable, public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, fence"
> 
> Here is the whole document http://www.michigan.gov/documents/Water97e_142928_7.pdf
> 
> As for the OP's original question, you have to enter and exit the stream on Public land, must remain in the water in front of private land and can only enter private property if there is an obstruction, then must walk around the obstruction at the very edge of the bank and immediately re-enter the river (not stand and fish).
> 
> Also, this is just for Fishing, hunting and trapping is not allowed in front of private property (see Section G/H in attached document).


Yeah that document is what states the rules about the high water mark. Section D starting on page 21.


----------



## toto

Um, don't know what to say except that is incorrect. You may wade a river anywhere below the high water mark. You may not go on a persons uplands, which is land above the high water mark. In other words, even though there may not be water there presently, if it is below the established high water mark you may walk this area.

[MCL 324.30101(h)]. In Opinion No. 90, dated April 27, 1964; by Circuit Judge Allen C. Miller, for the County of Iosco, in Constan v Richter, the court discussed that testimony in this case disclosed the river varied as much as three feet, and stated that a decision on the foregoing points would seem to require evidence on the status of the vegetation; the angle of the river bank, whether gradual or sheer; the periods of time in which the adjacent uplands are submerged, and the like. Judge Miller stated: But it is clear that insofar as the clear riverbank extends, and within the banks of the river, a fisherman has the right to boat, to portage, wade and walk, even though at the particular minute there may not be water over the bed of the stream.


----------



## ma1979

This is EXACTLY why I don't fish for trout!!! Gotta be a lawyer to understand the rules n regs!!!!!


----------



## Boardman Brookies

ma1979 said:


> This is EXACTLY why I don't fish for trout!!! Gotta be a lawyer to understand the rules n regs!!!!!



You are missing out then!


Sent from my iPhone using Ohub Campfire


----------



## ma1979

I would LOVE to get into it but not knowing anybody that does it seriously makes it difficult. I've been to the Onekema area a few times and ditch fished a few spots where the creeks cross the roads but never anymore than that.


----------



## UplandnWaterfowl

Convenient that you left off Judge Miller's next sentence.

"But it is clear that insofar as the clear riverbank extends, and within the banks of the river, a fisherman has the right to boat, to portage, wade and
walk, even though at the particular minute there may not be water over the bed of the stream. *The bed of the stream, of course, does not refer to the situation at flood stage, but to the definite bed of the stream as may be physically determined at the particular location by the vegetation and soil conditions then and there existing.*"

He clarified that the bed of the stream is not flood stage (high water mark) but the normal banks of the river, which besides a couple of weeks in the spring is the waters edge. He further clarified that the current vegetation (today, not last month, year or I remember when) delineate the banks.

I was replying to JFish's post where he wrote "says to me that I can't walk on the bank below the high water mark". I replied the guide was correct, you can't walk on the bank, the ruling states "within the banks of the river". So if JFish is standing on a riverbank and there is vegetation under his feet, he is trespassing. I would assume that was the case or why would a guide even bother trying to educate him.


----------



## Boardman Brookies

ma1979 said:


> I would LOVE to get into it but not knowing anybody that does it seriously makes it difficult. I've been to the Onekema area a few times and ditch fished a few spots where the creeks cross the roads but never anymore than that.



If you head up that way again check out Bear Creek. Also no need to stress about private property. There is tons of public access/land to trout fish. 


Sent from my iPhone using Ohub Campfire


----------



## ma1979

Boardman Brookies said:


> If you head up that way again check out Bear Creek. Also no need to stress about private property. There is tons of public access/land to trout fish.
> 
> 
> Sent from my iPhone using Ohub Campfire


Will do!! Thanks for the info! I'm a fishing NUT but have always been scared of trout fishing because the regs seem difficult to understand. Just like this thread is talking about.


----------



## toto

That would be correct under that scenario, it is the vegetation that pretty much determines the high water mark. So yes, if you are standing on vegetation you most likely are trespassing. On the other hand, if you are standing between the obvious vegetation, and the water, most likely you aren't trespassing, even though you are standing on dry land.


----------



## Boardman Brookies

Thanks for the link. I am buying this.


----------



## Robert Holmes

I don't think that you can claim the easement of a public highway as a public access point. Over the years they have posted the Rifle River (no Parking) to discourage this.


----------



## jimbofish

MERGANZER said:


> Make sure its a navigable stream and you enter at an access site. A bridge surrounded by private land is not an access site.
> 
> Ganzer





MERGANZER said:


> The rules on this issue have always been fuzzy at best. The C.O. told us that the right of way is not for parking so technically if we called they could get ticketed for that. We have never called by the way. We are not that way and welcome fishermen.
> 
> Ganzer





Robert Holmes said:


> I don't think that you can claim the easement of a public highway as a public access point. Over the years they have posted the Rifle River (no Parking) to discourage this.


I just received a reply from a DNR LEO Supervisor about this. I don't know if it;s appropriate to paste his reply without permission, but this is the gist of what it says...

They recently had a legal update on this subject. Roadways and easements are not the same.
It is lawful to access a stream at a county or state roadway bridge on navigable waters. A roadway is 33 feet from center line. The restriction on using the banks only to get around obstacles applies.

An easement for a road on private property does not afford the same right of access to the waterway. Example, road open to access private cottages along the river.

He also says that it's possible local prosecutors might interpret this differently but that is the guidance they use statewide.
End of gist.


----------



## Robert Holmes

jimbofish said:


> I just received a reply from a DNR LEO Supervisor about this. I don't know if it;s appropriate to paste his reply without permission, but this is the gist of what it says...
> 
> They recently had a legal update on this subject. Roadways and easements are not the same.
> It is lawful to access a stream at a county or state roadway bridge on navigable waters. A roadway is 33 feet from center line. The restriction on using the banks only to get around obstacles applies.
> 
> An easement for a road on private property does not afford the same right of access to the waterway. Example, road open to access private cottages along the river.
> 
> He also says that it's possible local prosecutors might interpret this differently but that is the guidance they use statewide.
> End of gist.


I guess that is cleared up


----------



## METTLEFISH

MERGANZER said:


> Make sure its a navigable stream and you enter at an access site. A bridge surrounded by private land is not an access site.
> 
> Ganzer


Absolutely correct. The State of Michigan Supreme Ct. has ruled public right of ways are NOT public acceses. However on public lands it is allowed. The public has the right only to ingress/egress within the established roadway (pavement/graded road) hence tickets for leaving the established roadway.


----------



## MERGANZER

METTLEFISH said:


> Absolutely correct. The State of Michigan Supreme Ct. has ruled public right of ways are NOT public acceses. However on public lands it is allowed. The public has the right only to ingress/egress within the established roadway (pavement/graded road) hence tickets for leaving the established roadway.



In certain circumstances the C.O. also said you can be cited as a hazzard for parking and fishing from a bridge depending on the interpretation by the LEO on how busy the road may be etc.

Ganzer


----------



## Boardman Brookies

There is not set definition of the law. Just this weekend I asked my local CO about a getting in at a bridge that has private property on all 4 sides. He told me no problem, just be respectful. A different CO might have a different answer.


----------



## METTLEFISH

Boardman Brookies said:


> There is not set definition of the law. Just this weekend I asked my local CO about a getting in at a bridge that has private property on all 4 sides. He told me no problem, just be respectful. A different CO might have a different answer.


I believe possibly the answer can be found in a Supreme Ct. (MI.) ruling on the Access/Right of Way issue, it may of been utilized as precedent though , I am not sure. I do know it has been decided.
Perhaps this may help:

https://www.google.com/search?q=Dew...=UTF-8&sourceid=ie7&rlz=1I7GGLL_en&gws_rd=ssl

A Right of Way is very specific in its use. It does not surrender the right of the owner outside it's demensions and specified use. As an Access it would need to comply with specifications for public safety I would think.


----------



## Robert Holmes

Boardman Brookies said:


> There is not set definition of the law. Just this weekend I asked my local CO about a getting in at a bridge that has private property on all 4 sides. He told me no problem, just be respectful. A different CO might have a different answer.


Believe me I have asked 8 different Conservation Officers what defined the mouth of a specific river and I have been given 8 different answers. I don't know if their opinion warrants a ticket or not so far I have not been given one because I have not opted to follow the lake regulations. A good question to ask a conservation officer is what determines where the St Mary's River ends. You are allowed to keep 5 additional pink salmon but nobody seems to know.


----------



## Big Frank 25

Robert Holmes said:


> Believe me I have asked 8 different Conservation Officers what defined the mouth of a specific river and I have been given 8 different answers. I don't know if their opinion warrants a ticket or not so far I have not been given one because I have not opted to follow the lake regulations. A good question to ask a conservation officer is what determines where the St Mary's River ends. You are allowed to keep 5 additional pink salmon but nobody seems to know.


Best I see;
http://www.epa.gov/greatlakes/aoc/stmarys/pdfs/StMarys_Final_State-Approved.pdf


----------

