# Navigable/Public Waterways



## troutguy26

Robert Holmes said:


> And you think that is only an issue in SE Michigan. I run into people all year long who think because they paid $4 to cross a bridge that they own the bridge and everything north of it. And yes they bring their other issues with them as well. I am all for the 51st state, mabey we would be tax free too.


You guys wouldnt even have enough money to keep the roads plowed.
Nothing against you but its one of the more terrible ideas out there.


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## troutguy26

If anyone is interested in reading the forever free book it is available for kindle at a discount. Im sure amazon books probaly has it to


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## DReihl9896

troutguy26 said:


> If anyone is interested in reading the forever free book it is available for kindle at a discount. Im sure amazon books probaly has it to


Is there a link to where it is discounted? On Amazon last time I checked, it said it wasn't available in the US due to copyright.


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## troutguy26

DReihl9896 said:


> Is there a link to where it is discounted? On Amazon last time I checked, it said it wasn't available in the US due to copyright.


I just checked and it also says that? I downloaded it a long time ago so something must have changed. I do know it was alot cheaper to download it than buy the book itself. Hes a member here i believe and might be able to answer this question as to what happened.


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## slowpaya

as far as not accessing a lake from the roadway,had a conversation with a c.o. last year about this and he told me it was ok.talking about a particular lake,its prob about 2-3 steps from the roadway,the site is posted"no trespasssing".he assured me it was ok,and i realize that interpetation is open to each diff officer also.


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## toto

On the issue of "floatable" I read somewhere that that was upgraded to include canoes and the like. Wish I could remember where I saw that, so I'm just going by memory, and with my memory..............


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## DReihl9896

toto said:


> On the issue of "floatable" I read somewhere that that was upgraded to include canoes and the like. Wish I could remember where I saw that, so I'm just going by memory, and with my memory..............


It seems that you also would stand to benefit from a concise simplified definition. I know you've done a lot of homework on this. My feeling is that the average fisherman that buys a license, should be able to read a couple short bullet points or paragraphs in the fishing guide and have a much better idea about what is in play. A link to an online map of water that is public and water that is not public like with the inland trout regs would clarify things further. To me, even for streams on the navigable list, I wonder if it includes smaller branches or creeks that feed them and where the upstream limit of what is considered public is. Shouldn't have to be a lawyer to figure this out.


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## toto

Again, the only waterways that you may not enter are those that have been adjucated as such by the courts. Therefore, IF a smaller creek entered a river, and that creek isn't on the list, have at it.

I found this, I don't know if it will help, but it's pretty much on point I think:

http://www.nationalaglawcenter.org/assets/articles/looney_streams.pdf


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## YZman

For reference to a 1991 case, (recent, in comparison to most), that shows how the current court system looked at it:
------------------------------------------------
Planning & Zoning News, November, 1991

A stretch of the Sturgeon River was deemed to be non-navigable because it had no commercial value for log floatage due to its hydro-logical characteristics, the natural objects in the river, and the sharp bending and winding of the river, and was thus closed to the public. Machga Anstalt v. Michigan Department of Natural Resources, Case No. 124804, September 9, 1991, unpublished.
The defendants appealed from a circuit court order which determined that a section of the Sturgeon River was non-navigable and enjoined public use of that stretch of the river that ran through plaintiff's property.
The title of a riparian owner includes the bed of a ... navigable
inland stream or lake to the midpoint of the water, subject to a servitude for the commercial flotation of logs, and for fishing ... If a waterway is navigable, the public has a right to utilize the navigational servitude for the navigation of vessels, flotation of logs, and, as an incident to the servitude, fishing.

A waterway is navigable if it may be used for the commercial flotation of logs. The circuit court found that the stretch was not navigable because it had no commercial value for log floatage due to its hydrological characteristics, the natural objects in the river, and the sharp bending and winding of the river.
The court affirmed.
-----------------------------------------------


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## toto

That is absolutely correct. I believe a part of the Pine River is considered such as well, but I could be wrong about that, if I am correct however, I can't remember the third one, and frankly too lazy to look it up right now, stayed up too late watching the BB game.


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## METTLEFISH

Hey Chrome Crazy... let me know where you park your boat. Because if it's in a public right of way... it's mine!....

Put you on ignore!...huhhuhuhu.. your an i t!...


DREIHL There are clear definitions as to what is or isn't a navigable water way. In days of old the standard was if it floated or could float a log.

The Courts changed that and now if it has an entrance or exit of water it is navigable. If a body of water is more than 4 acres it is navigable. 

A lake can not be private (non-navigable) however a pond can. That is how Winans is ruled non-navigable even though it has both an exit and entrance. It is Adjudicated a pond, though it is 168 Acres.

P.S. I wonder if Edwin B. Winans being Governor had anything to do with the Courts rulings......


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## Chrome Crazy

METTLEFISH said:


> Hey Chrome Crazy... let me know where you park your boat. Because if it's in a public right of way... it's mine!....
> 
> Put you on ignore!...huhhuhuhu.. your an i t!...
> 
> Have at the boat. Its insured and I'll have the parts for a new one on order before the pavement dries at the boat launch from you driving away with it.
> _Posted via Mobile Device_


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## YZman

> DREIHL There are clear definitions as to what is or isn't a navigable water way. In days of old the standard was if it floated or could float a log.
> 
> The Courts changed that and now if it has an entrance or exit of water it is navigable. If a body of water is more than 4 acres it is navigable.
> 
> A lake can not be private (non-navigable) however a pond can. That is how Winans is ruled non-navigable even though it has both an exit and entrance. It is Adjudicated a pond, though it is 168 Acres.


INCORRECT.
Please cite your legal references for this.


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## YZman

> P.S. I wonder if Edwin B. Winans being Governor had anything to do with the Courts rulings......


I assume you were being humorous, but some might not realize this.


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## METTLEFISH

No... that would be serious, Edwin B. Winans was Governor of Michigan. He also had a homestead on what was Pleasant lake, re named after him to Winans Lk. (pond) I do believe he had appointed one or more of the MI. Supreme Court Justices too....

The definition is found in use widely. Perhaps GOOGLE could help you .


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## YZman

You should inform the all Michigan courts and DNR of this new standard. Then you could have all previous court rulings, including circuit courts overturned. Then the courts could concentrate on 'takings' from some of the previous rulings. :lol:


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## METTLEFISH

YZman said:


> You should inform the all Michigan courts and DNR of this new standard. Then you could have all previous court rulings, including circuit courts overturned. Then the courts could concentrate on 'takings' from some of the previous rulings. :lol:


Perhaps a lil talk with most any Real Estate Lawyer or reading the State Constitution could enlighten you . It appears as though it is needed.


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## YZman

> Perhaps a lil talk with most any Real Estate Lawyer or reading the State Constitution could enlighten you . It appears as though it is needed.


Most Real Estate attorney's will have no experience in littoral/riparian rulings/law. There are some who have/do. State Constitution has been in existence since first court rulings, just like PTD, so any affect they had was reflected in rulings.

Bottom line is you "should" use common sense when deciding what to do. Your at the discretion of the local LEO and/or riparian owner. Followed by the local court, then, if needed, any appeals.

There are a lot of little creeks/streams that are more than obvious on their state of navigability. Any larger rivers, if problematic issues, the NRC will/has take to court.


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## toto

Slow down guys, there may be a rough definition of navigable water, however, that doesn't make it so, either way. Only the courts can make the final determination, period. These definitions are just a guideline to help determine it. As an example, let's say you want to trade in your car/truck for a new one, you go to the dealer, he tells you it's worth $5000, you say "but Kelly blue book say's it's' worth $8000. Well in this case the dealers are the courts and they will determine what it's really worth. I know, dumb analogy but I think you get my point. In other words, it ain't either unless the courts determine it so, either way.


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## YZman

> Only the courts can make the final determination, period.


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## DReihl9896

toto said:


> Slow down guys, there may be a rough definition of navigable water, however, that doesn't make it so, either way. Only the courts can make the final determination, period. These definitions are just a guideline to help determine it.


Does anybody know if there has been any attempt since the 1969 bill that dies in committee to create a more uniform and reasonable standard? These threads come up every year or so on this forum and there is a lot of uncertainty. The reason I brought it up wasn't so much to rehash what's navigable and what's not. I pretty much know there are individuals that feel certain about their rights on both sides of the issue and then a lot of people that are as confused as I am. New information to consider is great, including the various strong opinions of differing but equally black and white interpretations, but most of the information I've looked at so far all points to a lot of gray area that could us some legislative clarification as well as some simplification. 

That's the conclusion the DNR arrived at in the late 60s as well. The first attempt at legislation stalled and it doesn't seem like much has changed since then. It seems to have been placed on the backburner and forgotten about (If somebody knows otherwise, please correct me on this). Why not more of a push for this? So many people on these boards are so motivated and digging their heels in over miles of stream on which the type of gear that is used has been restricted, yet most seem comfortable that many other stream sections could be deemed private on a case by case and judge by judge basis without a real clear standard. Maybe it's less of an issue because so few streams have been ruled private to date (I'll point out that many were also comfortable in the knowledge that the PM was likely safe from further gear restrictions). Maybe there is just worry over where the benchmark would be set at and feel more comfortable with things left ambiguous. I'm sure there are some potential pitfalls that I haven't considered. I just assumed that this suggestion would meet with at least some agreement from sportsmen here (especially with the threads that seem to pop up yearly from people confused about the rules and the debates that follow that seem to leave most still confused), but that doesn't seem to be the case and whether people are just indifferent or opposed, I'm just not sure. 

I understand that there wouldn't be total agreement on what the standard should be either. Riparian property owners have a stake in this as well and a subset of that population would probably like to see a more strict standard applied. I'm sure there are some here that share that point of view. One individual in another thread remarked that the idea of the waterways being public amounted to socialism. However, shouldn't a clear reasonable standard based on the PTD be worked out though so that both riparian property owners and the public both benefit from clarity that would enable them to be more confident of their rights?


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## METTLEFISH

I have both heard and read the newer definition in many articles and documents. The newer standard is used as there is not a whole lot of logging (log floating) going on these days. I also am sure that no one is going out and hence forthing any new waters as Non-nav. . What is - is and any changes would have to be taken on by the Court.(s)


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## DReihl9896

METTLEFISH said:


> I have both heard and read the newer definition in many articles and documents. The newer standard is used as there is not a whole lot of logging (log floating) going on these days. I also am sure that no one is going out and hence forthing any new waters as Non-nav. . What is - is and any changes would have to be taken on by the Court.(s)


Okay, so maybe I'm envisioning a doomsday scenario that won't come to pass. Maybe the newer standard that considers recreation as opposed to simply a history of logging or an arbitrary float test is on fact the definitive standard that will be applied universally whenever questions of navigability come up in the courts. It does seem like that in the ruling referenced above, that the older standard was applied, so call me crazy, but I' d be more comfortable with the newer standard in writing and in the books. Declarations on borderline waterways would be nice too. 

posted using Outdoor Hub Campfire


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## toto

The standard is set by the federal government, and cannot be set by anyone else. It can be determined in court only, it could be argued that it would be the U.S. Federal court or a state court. The bottom line is this, if it can be proven to have floated logs, or has the ability to do so, then it's considered navigable. Secondly, the new recreational standard is for canoes, or even the new float boats, so, if you can float down a stream with either of those, or a jon boat, then it's navigable and no court can change that. This really isn't that complicated, if it isn't on the list of non-nav, than it is considered navigable for fishing or public purposes as long as it was entered in a legal fashion, in other words as long as you didn't trespass, and a bridge right of way is not considered trespassing as the rights have been secured through a prescriptive easement.


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## METTLEFISH

toto said:


> The standard is set by the federal government, and cannot be set by anyone else. It can be determined in court only, it could be argued that it would be the U.S. Federal court or a state court. The bottom line is this, if it can be proven to have floated logs, or has the ability to do so, then it's considered navigable. Secondly, the new recreational standard is for canoes, or even the new float boats, so, if you can float down a stream with either of those, or a jon boat, then it's navigable and no court can change that. This really isn't that complicated, if it isn't on the list of non-nav, than it is considered navigable for fishing or public purposes as long as it was entered in a legal fashion, in other words as long as you didn't trespass, and a bridge right of way is not considered trespassing as the rights have been secured through a prescriptive easement.


 
Try as you may that simply is not true. Can I park on your lawn because it is a right of way? NO. Property ownership gives right of use to the title holder and no one else. All one must due is look up the definition of Right of Way.


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## YZman

> if it isn't on the list of non-nav, than it is considered navigable for fishing or public purposes as long as it was entered in a legal fashion, in other words as long as you didn't trespass, and a bridge right of way is not considered trespassing as the rights have been secured through a prescriptive easement.


No such statute or ruling. LEO may issue trespass ticket, riparian owner can definitely take you to court.


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## troutguy26

I havent seen anyone mention about proving it has been an access. If you can prove it has been an access and used to access the river than it is legal. Kind of grandfathers it in if you will.


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## kzoofisher

DR,
I think that the subject of access has way more downside than upside for politicians. It would be very easy for any opponent to paint their stand as a land grab, either for the state of for landowners, so the pols have no desire to stir up a hornets nest that is very far away from the general publics attention. I do think that ballot initiative could work. If the language were based on the 1960s bill you pasted and funding for a petition drive raised from access advocacy groups something might get done, either a conversation started or maybe even action in the legislature. Something to think about


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## DReihl9896

kzoofisher said:


> DR,
> I do think that ballot initiative could work. If the language were based on the 1960s bill you pasted and funding for a petition drive raised from access advocacy groups something might get done, either a conversation started or maybe even action in the legislature. Something to think about


Kzoo, that would probably require a few additional people to think that this is even an issue. I evidently misjudged the amount of support for the status quo on this one.


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## Splitshot

Drheihl,

Excellent thread. In your first post you listed how the U.S. Supreme Court defines a navigable stream. My question is why doesnt the DNR use that information to clarify the navigability of all of our streams and list them and still leave the streams in the grey area off that list? They dont need a new law to do that because those definitions you listed are based on settled law.

I believe it is political and because the bill was not passed into law gives the DNR cover and justification for not taking a strong stand that they know will have many people upset.

Last year I had a conversation with a high ranking DNR official about the 1969 bill and even though it was a liberal interpretation of The Public Trust Doctrine. As written many streams private riparian land owners claim are not navigable would be clearly accessible by the proposed 1969 bill.

Most people arent willing to take the chance of breaking the law and as you can see by some of the answers here there is much confusion. Confusion and doubt are enough in most cases for people not to challenge a landowner or question a DNR CO.

This public access issue is a very important one to us for the same reason gear restrictions are important. Because we have limited resources, we will continue to concentrate on gear restrictions, but dont think that our inaction doesnt mean we dont care about it. 

A few years ago many of our citizens believed they could not walk on beaches surrounding the Great Lakes because landowners threatened action against them. I dont blame the DNR for not protecting citizens rights because there was little support for them from the public and lots of opposition from riparian landowners.

Im not sure who took the case to court, only that the U.S Supreme Court ruled that the public had the right to use the shoreline up to the ordinary high water line as long as they accessed the lakeshore legally and they used the Public Trust Doctrine as a basis for that ruling.



DReihl9896 said:


> However, shouldn't a clear reasonable standard based on the PTD be worked out though so that both riparian property owners and the public both benefit from clarity that would enable them to be more confident of their rights?


The more we learn the more we understand about our rights and from that clarity we see compromise as a loss for the public and all of us fishermen, women and kids. By the way I am a riparian landowner and many individuals dont understand my position on these issues. I tell them all the same thing. My rights end at the high water mark where the public rights begin. How can I fight to keep the public off something I dont own.

Back in the early days of this country, waterways were our roads and they still are. Unless there is some safety issues any citizen is allowed to access any river from any public road crossing. Also you can park on any public road unless your vehicle creates a safety hazard. If you live in a sub-division for example and the government maintains the road in front of your house any citizen can park there because you dont own the road. Why would it be any different on a public road in a rural area?

I understand why people think they own the river or stream and even why many Cos buy into the idea that if he thinks it cant float a log, it is not navigable but they are not the final decision maker and just because they issue someone a trespass citation doesnt either.

We are learning more and more every day about court decisions regarding the Public Trust Doctrine and as we do it becomes clearer and clearer that many of our public rights have been lost and we plan on reversing that process. You seem to be a reasonable person and are asking many of the same questions I started asking over a decade ago. We realize this wont be easy and it wont happen overnight, but we think we are gaining ground. You should consider joining us. In the next 6 months we plan on having a professional web-site and a more formal organization with ties to other organizations with similar interests.

Public access issues are different although related to our fight against gear restrictions. I think you can tell from reading some of the threads that we have been vilified by some people. Even though we sometimes dont respond perfectly to every attack, our position on gear restrictions is to support the professional scientific recommendations of our DNR. Overall they have done a fantastic job managing our fisheries and not so good sometimes managing the political maze. That is partly our fault for not providing enough public support for their efforts. We believe they want to uphold their simple but elegant mission statement; The mission of Fisheries Division is to protect and enhance fish environments, habitat, populations and other forms of aquatic life and to promote the optimum use of these resources for the benefit of the people of Michigan.

Below I have posted part of the rational behind the Resource Stewards. Most of them are retired DMR professionals who are out from under the political pressure common when they were employed and I post as something to ponder by the readers that dont believe in the back room pressure on our over worked, understaffed, under appreciated professionals in the DNR. We want the DNR to make professional biological decisions free from political influence and will work toward that end.

They State; The Michigan Resource Stewards is an organization founded by natural resource and environmental professionals who spent years working or volunteering in the public or private sector managing and protecting our natural resources and environment. The organization was formed in 1997 to continue the fight for protection of our environment and natural resources by the same people who had dedicated their working lives to this noble objective

Since its inception the Michigan Resource Stewards has earned a strong reputation as an organization that uses sound science in arriving at positions on a wide variety of issues, ranging from ensuring that Chronic Wasting Disease does not infect our wild deer herd to wise management of our public forest lands. Individual members have testified before various commissions, boards and legislative committees, and serve on a variety of work groups to share the expertise and experience they have accumulated over decades of hands-on involvement. The Stewards strongly oppose at every turn the politicization of resource management, or decisions based on unscientific principles, and are a respected and outspoken voice on behalf of the long-term use and conservation of Michigan's natural resources.


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## METTLEFISH

Splitshot, in Eppinger V. Pleasant Lk. Hills Corp. the Michigan Supreme Court found that a public right of way is not a public access.


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## METTLEFISH

Also you can use the below link to navigate to river crossings. Note that the property is contiguous to the parcel - not seperate as an access would be. No Court can remove the rights of the property owner, the owner has no obligation to allow people access to their property.

http://www.hamburg.mi.us/mapping/GIS_parcel_map.html


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## Splitshot

METTLEFISH said:


> Splitshot, in Eppinger V. Pleasant Lk. Hills Corp. the Michigan Supreme Court found that a public right of way is not a public access.


 Eppinger V. Pleasant Lk. Hills Corp. was a case involving easement on a private lake given to a person living on a lot not on the lake and has nothing to do with what I was talking about and it had nothing to do with deciding a public right of way.

I dont believe a person can trespass to gain access to public water but I stand behind what I said. 

Below is a statement posted on the National Rivers web-site.

Misconception: If a landowner's property deed includes the land around a river, and makes no mention of the river being public, then the river is private.

Fact: Public ownership of physically navigable rivers, including the land up to the ordinary high water mark, pre-dates property deeds. What the property deed says or doesn't say about the river is irrelevant.

This is based on U.S. Supreme Court decisions which supercede any state court decisions. 

We are compiling a list of precedent setting court cases that will be available to members of GLFSA in the near future. But I have read other sources that confirm the above statement. Whoever includes a statement on a deed that the owner owns land say to the middle of the river even if it is the state of MI doesnt give the owner land because under the PTD the state never had the authority to sell it in the first place making it irrelevant.

Just a few years ago the MI attorney general determined that the public had the legal right to access rivers and streams on state owned waterways (bridges, road endings, etc.) but left those decisions to individual counties, townships, cities etc regarding non state owned bridges. This determination was changed by the current MI attorney general who made the determination that the public had the right to access all rivers and streams on any public bridge unless it created a safety issue. The attorney general did not make any new law as you previously stated Mettlefish, but did his job in interpreting the intent of existing law and in this case federal law.

If the intention of The Public Trust Doctrine is to protect the public interests and public rights on public waters why would a stream determination start out as not navigable as some of you insist leaving the burden on the public and not private interests to prove navigability? 

I have been kicked off more than my share of public waters in my lifetime by private land owners and have searched for answers to these very questions on many occasions. The answers I now realize can be found in The Public Trust Doctrine and in supporting case law. I realize that after years of confusion and misinformation accepting this reality will cause much consternation from people who thought they were right denying the public access based on the false assumption that they held ownership. 

Over the years, conservation officers, state and county police have confirmed those assumptions by writing trespass tickets for what they believed were trespass on non navigable waterways. I dont blame them for not understanding the law and like everyone else I expect it will be difficult for many of them to admit that they may have been mistaken in their understanding of the law. 

On the other hand if there is a Public Trust Doctrine and it has standing and it does protect the public right to public resources then it is in our best interest to demand that our elected officials step up and do the right thing. Every time we lose access to a lake or stream, hunting area, hiking trail the pressure on the remaining open lands is increased. Currently we have lost thousands of miles of access roads, lake, river and stream access rights often because of a complaint from some private landowner who believes that he actually owns something that belongs to the public.

In his original post Dreihl found some definitions the MI DNR directed him to in answer to his query of what determines navigability. I found the same definitions a couple of years ago researching the PTD. At first I found it difficult to believe too but when I asked our DNR what the public rights were on public waters, they sent me the same document as they sent Dreihl.

Dreihl also asked the question why havent they tried again to pass a law since the one in 1969 that clarifies navigability? My question is why didnt they use the information they have to clarify many of these questions? Take the clear definition listed; All streams meandered (surveyed) by the General Land Office Survey in the mid 1800's are by definition navigable.

All of that information is available and the DNR could easily do the research and provide a list of those streams to law enforcement and publish them for all to see. Any stream on the list is public water and the public has the legal right to access them from any public bridge and float or walk along the shore up to the ordinary high water mark.

Next they could apply the 41 cubic foot per second test. For example, the PM is currently at 2,190 cfs. Any doubts there? Currently the Platte at Honor is 280 cfs, pretty clear? The Jordan is at 400 cfs, 10 times the required flow and the Red Cedar is currently at 926 cfs. Is it navigable? MSU has not allowed fishing on the Red Cedar on campus until recently. My question is what was their rational for not allowing fishing before then?

The fact is the DNR doesnt need a state law to clarify what determines navigability on all the waters the public has a right to access they already have much of what they need for clarification, and the fact that they send it to anyone who asks should be more than adequate proof it is true. Sure some smaller waterways will be more difficult to determine based on their own accepted explanation. but just because they dont have the perfect document to answer every case is no excuse for doing nothing.

I understand why the fly guys want us to believe the rules that give them exclusive access to public waters dont violate the PTD, and I understand why private landowners casually believe ownership of property on a navigable waterway extends past the ordinary high water mark and gives them the authority to keep the public off those waters.

We know it wont be easy changing the status quo and we realize it will take time and effort but as more people realize and see how the system has been rigged against them, and the more they get involved the quicker it will happen.


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## YZman

www.Nationalrivers.org is also www.adventuresports.com registered to an individual Colorado home (same IP address). They are not a legal reference. 
Here's one from Oceana with the road commission. Sorry that it's not linked in its original PDF form. There are others that deal with navigability when working around streams. This is from December 2001.

STATE OF MICHIGAN
COURT OF APPEALS
OCEANA COUNTY BOARD OF ROAD
COMMISSIONERS,
Petitioner-Appellee,
v
DEPARTMENT OF ENVIRONMENTAL
QUALITY,
Respondent-Appellant.
UNPUBLISHED
December 11, 2001
No. 221673
Oceana Circuit Court
LC No. 99-000974-AA
Before: Gage, P.J., and Jansen and OConnell, JJ.
PER CURIAM.
Respondent appeals by leave granted from the circuit courts August 2, 1999, order
granting petitioners motion for peremptory reversal of respondents decision denying
petitioners applications to replace existing bridges with culverts at two locations in Oceana
County. We affirm.
In 1996, petitioner filed an application proposing to replace a bridge crossing the south
branch of the Pentwater River at 136th Avenue in Elbridge Township in Oceana County.
Petitioner later filed a separate application to replace the existing bridge crossing Carlton Creek
at 92nd Avenue in Grant Township in Oceana County. After respondent denied both permit
applications, petitioner contested the denials and a three-day administrative hearing followed.
Following the hearing, the administrative hearing referee entered his proposals for
decision in January 1999. The proposals found, as a matter of fact based on the record, that
neither the south branch of the Pentwater River nor Carlton Creek had ever been capable of
floating logs, therefore, neither was navigable.(1) Also as a matter of fact, the proposals concluded
that riparian rights, agriculture, commerce and industry, and wildlife would not be affected.
Moreover, the proposals also found that installation of twin arch culverts would not materially

(1)
The test for determining the navigability of a stream is whether the waterway is capable of
floating logs. Bott v Natural Resources Comm, 415 Mich 45, 60-61; 327 NW2d 838 (1982);
Moore v Sanborne, 2 Mich 519, 526 (1853).

-1-

affect fish or fisheries. As a matter of law, the administrative hearing referee further concluded
that because the streams were not navigable, they were not impressed with the public trust, and
therefore the proposed project would not adversely impact the public trust. The administrative
hearing referee also found that the proposed projects would not have an adverse impact on
riparian rights, recreation, fish or wildlife, aesthetics, local government, commerce, or industry.
On February 11, 1999, respondents attorney requested, by way of letter to the Acting
Deputy Director of the Department of Environmental Quality (DEQ), that the Director of the
DEQ render the final decision in each of the contested cases because of their policy significance.
That request was granted, and on April 9, 1999, Director Russell J. Harding heard oral argument
regarding objections to the proposed decision. In a decision entered April 15, 1999, Director
Harding issued the agencys final determination and order. Specifically, Director Harding
adopted petitioners proposed findings of fact that neither stream was navigable, and neither
proposed project affected riparian rights, agriculture, commerce or wildlife. Director Harding
also concluded as a matter of law that because neither stream was navigable, they were not
impressed with the public trust, and therefore the public trust was not adversely affected.
Director Harding also concluded as a matter of law that riparian rights would not be adversely
affected by the proposed projects. Director Harding went on to express his concerns that the
proposed projects would result in a significant adverse impact to the high quality fish and fish
habitat present in the Carlton Creek and the south branch of the Pentwater River. Noting that
clear span bridges provided a reasonable alternative to the installation of twin arch culverts, the
Director denied petitioners applications to install the culverts.
Petitioner subsequently petitioned for review in the Oceana Circuit Court on May 26,
1999, arguing that the DEQ did not have discretion to deny the permits where it expressly
concluded that the proposed projects did not adversely affect riparian rights or the public trust.
Petitioner subsequently moved for peremptory reversal on June 21, 1999. Respondent
challenged petitioners motion for peremptory reversal, arguing that petitioners interpretation of
MCL 324.30106 was flawed. The circuit court granted petitioners motion for peremptory
reversal in an order entered August 2, 1999. In a subsequent amended order entered August 30,
1999, the court included specific findings of fact and conclusions of law. Notably, the court
found that neither stream was navigable, and that neither project would adversely affect riparian
rights or the public trust. In the circuit courts view, the plain language of MCL 324.30106
required the DEQ to issue the requested permits where riparian rights and the public trust were
not adversely affected. We granted respondents application for leave to appeal in an order
entered September 17, 1999.
In Barak v Oakland Co Drain Commr, 246 Mich App 591, 597; 633 NW2d 489 (2001),
this Court recently set forth the applicable standard of review for claims arising from
administrative proceedings.
An administrative agency decision is reviewed by the circuit court to
determine whether the decision was authorized by law and supported by
competent, material, and substantial evidence on the whole record. Const 1963,
art 6, § 28; Ansell v Dept of Commerce (On Remand), 222 Mich App 347, 354;
564 NW2d 519 (1997). Substantial evidence is any evidence that reasonable

-2-

minds would accept as adequate to support the decision; it is more than a mere
scintilla of evidence but may be less than a preponderance of the evidence. See
Korzowski v Pollack Industries, 213 Mich App 223, 228; 539 NW2d 741 (1995).
This Courts review of the circuit courts decision is limited to determining
whether the circuit court applied correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the
agencys factual findings. Boyd v Civil Service Comm, 220 Mich App 226, 234;
559 NW2d 342 (1996). In other words, this Court reviews the circuit courts
decision for clear error. Id. A decision is clearly erroneous when, on review of
the whole record, this Court is left with the definite and firm conviction that a
mistake has been made. [Barak, supra at 597, quoting Michigan Ed Assn
Political Action Committee (MEAPAC) v Secretary of State, 241 Mich App 432,
443-444; 616 NW2d 234 (2000).]
On appeal, respondent contends that the circuit court erred in its interpretation of § 30106
of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.,
which governs the DEQs issuance of permits regulating inland lakes and streams. MCL
324.30102 mandates that permits be acquired for certain activities concerning inland lakes and
streams. MCL 324.30106 sets forth the procedure for granting a permit, and provides in
pertinent part as follows:
The department shall issue a permit if it finds that the structure or project
will not adversely affect the public trust or riparian rights. In passing upon an
application, the department shall consider the possible effects of the proposed
action upon the inland lake or stream and upon waters from which or into which
its waters flow and the uses of all such waters, including uses for recreation, fish
and wildlife, aesthetics, local government, agriculture, commerce, and industry.
The department shall not grant a permit if the proposed project or structure will
unlawfully impair or destroy any of the waters or other natural resources of the
state.
After reviewing the above statutory language, the circuit court determined that the DEQ
was required to issue the requested permits where the department expressly found that neither
proposed project would affect riparian rights or the public trust. On this record, we are not
persuaded that the circuit court applied erroneous legal principles or grossly misapplied the
substantial evidence test to the departments factual determinations. Barak, supra at 597. We
may only reverse the circuit courts decision where we are left with a definite and firm
conviction that the circuit court made a mistake. Id. In the instant case, we are not left with such
a conviction.
Director Harding, in his decision entered April 15, 1999, concluded that riparian rights
and the public trust were not adversely affected by the proposed projects. The circuit court
found these factual determinations to be supported by competent, material, and substantial
evidence on the whole record. Consequently, the circuit court determined that respondent was
required to issue a permit according to the plain language of § 30106. On the record before us,

-3-

we are satisfied that the circuit court applied correct legal principles and that its decision was not
clearly erroneous.
Affirmed.
/s/ Hilda R. Gage
/s/ Kathleen Jansen
/s/ Peter D. OConnell


----------



## Splitshot

Yzman

I am not surprised at your response and your attempt to disparage my source but I dont rely on any one source. If you read what you posted, you would probably see the same thing I did and nothing stated in your post disproves anything I said. What is it about public access rights dont you like? Nice try though!


----------



## toto

I'm curious as I didn't see it in the post, but what stream are we talking about here? I'm asking as if it isn't on the court adjudicated list of non nav streams, an administrator of the courts can't make that decision. The test of navigability is whether or not it could, or ever has floated logs. The test of navagability would have to be determined by the courts, as I said, therefore, if this particular stream is not on an official list, his assessment would be in error.


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## troutguy26

Hmm 30 seconds on google debunked that court case real quick. 
http://books.google.com/books?id=IJ...X&ei=OlRnUa61DMaAygGYmIGYDA&ved=0CDcQ6AEwBTgK


----------



## troutguy26

I agree with splitshot, nice try. 

So through logging, and we can even use prescriptive easement, i guess that stream IS navigable. I wont waste my time on the other stream mentioned in that court case, people can do their own research.


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## Ranger Ray

YZman, you that river property owner that someone posted the video on last year? Something about videotaping people and harassing them. That you?


----------



## troutguy26

Ranger Ray said:


> YZman, you that river property owner that someone posted the video on last year? Something about videotaping people and harassing them. That you?


Lol. I think that guy rode a Kawasaki not a Yamaha. But they could be kin. All in good fun don't take offence.


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## salmo'dog

landrover said:


> This has to be a political no brainer, a slam dunk.


Far from a "slam dunk" due to river banks throughout the state that are misused time and time again by people leaving trash behind. If all anglers practiced conservation of keeping the states river banks clean by respect of the resource then you might have a case.




Posted using Outdoor Hub Campfire


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## wintrrun

salmo'dog said:


> Far from a "slam dunk" due to river banks throughout the state that are misused time and time again by people leaving trash behind. If all anglers practiced conservation of keeping the states river banks clean by respect of the resource then you might have a case.
> 
> 
> 
> 
> Posted using Outdoor Hub Campfire


Amen.
Most arguments from land owners versus fisherman is the ongoing battle of slobs who ruin it for all of us.
The laws are pretty cut and dry as it is. You find opposition to access, in most instances, because of the lack of respect some choose to show a landowner and there property.
Its why i carry at all times two 12' stringers in the hopes they make littering on a river or stream a hangable offense.:evil:
Lets just fix stupid.


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## REG

wintrrun said:


> Amen.
> Most arguments from land owners versus fisherman is the ongoing battle of slobs who ruin it for all of us.
> The laws are pretty cut and dry as it is. You find opposition to access, in most instances, because of the lack of respect some choose to show a landowner and there property.
> Its why i carry at all times two 12' stringers in the hopes they make littering on a river or stream a hangable offense.:evil:
> Lets just fix stupid.


Do you stab the pointy end of the stringer through the bottom jaw only or do you go through both jaws and come out the nose before hanging?:yikes::xzicon_sm:tdo12::lol:


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## dead short

They could just say all waterways are navigable until determined non-navigable. 


Posted using Outdoor Hub Campfire


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## landrover

dead short said:


> They could just say all waterways are navigable until determined non-navigable.


They already say that. The overwhelming majority of streams are presumed navigable until a court decides differently. The confusion is about access, not navigability.

If the law is murky then the legislature should clarify it. The statute could read. "The public shall have the right to access any stream where it is crossed by a public road, via the road right of way, except streams that have been determined by judicial ruling to be non navigable." 

Fishermen and the DNR would be strongly in support of that.


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## wintrrun

landrover said:


> If the law is murky then the legislature should clarify it. The statute could read. "The public shall have the right to access any stream where it is crossed by a public road, via the road right of way, except streams that have been determined by judicial ruling to be non navigable.".


 

If legislature went about clarifying wording and making laws and statutes bullet proof about 80% of the lawyers in the country would be out of a job.
Knowing the country is run by lawyers its not gonna happen.:evil:


----------



## Splitshot

landrover said:


> Invite Michigan sportsmen to sign a petition asking State government to pass a law saying the public has the right to access the water where ever it's crossed by a public road. MUCC and similar sportsmen groups could lead the effort. Hundreds of thousands of people would sign. With huge popular support the legislature would pass a law and the governor would sign it.
> 
> This has to be a political no brainer, a slam dunk.


There already is a federal law that gives the public the right to access the water from a public road unless there is some safety reason like those on expressways. It is called The Public Trust Doctrine. 



salmo'dog said:


> Far from a "slam dunk" due to river banks throughout the state that are misused time and time again by people leaving trash behind. If all anglers practiced conservation of keeping the states river banks clean by respect of the resource then you might have a case.
> 
> Posted using Outdoor Hub Campfire


Sorry, but the argument that all the public can be denied access because some of the public litters doesn&#8217;t hold water. Littering is one of the lame reasons TU and other groups use as an excuse for flies only. You never see any blue bait containers on the flies only.

We already have laws against littering and lots of fishermen I know pick up litter left and some of them even bait fish.


----------



## salmo'dog

Splitshot said:


> There already is a federal law that gives the public the right to access the water from a public road unless there is some safety reason like those on expressways. It is called The Public Trust Doctrine.
> 
> 
> 
> Sorry, but the argument that all the public can be denied access because some of the public litters doesnt hold water. Littering is one of the lame reasons TU and other groups use as an excuse for flies only. You never see any blue bait containers on the flies only.
> 
> We already have laws against littering and lots of fishermen I know pick up litter left and some of them even bait fish.


I'm far from being a TU member and your statement holds no water as I'm pretty positive that all the anglers you know isn't even a minuscule fraction of the total anglers in the state.




Posted using Outdoor Hub Campfire


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## YZman

> There already is a federal law that gives the public the right to access the water from a public road unless there is some safety reason like those on expressways. It is called The Public Trust Doctrine.


Does not cover all lakes/streams, all streams are NOT considered navigable by default. This is the Federal Code:

Navigable in Fact Law & Legal Definition

Streams or lakes are referred to as navigable in fact when they are used in their ordinary condition as highways for commerce. In order to qualify as navigable in fact, a waterway must provide practical utility to the public. It must serve as a means of transportation.

Rivers that are navigable in fact are considered public navigable rivers. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. [Daniel Ball, 77 U.S. 557, 563 (U.S. 1871)].


----------



## landrover

Splitshot said:


> There already is a federal law that gives the public the right to access the water from a public road unless there is some safety reason like those on expressways. It is called The Public Trust Doctrine.


This quote from a Michigan law journal. "The public has certain rights of use in public trust waters once lawful access to the water has been gained." Some are saying its lawful to access the water at bridges, others say it's not. Even CO's disagree. Why not a statue to clarify the issue?


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## toto

When speaking of Navigable in Fact, those waters are usually controlled by the Army Corps of Engineers, I say mostly but not entirely. As for having a clearer definition of access from a bridge, or road right of way, perhaps it could be made clearer as there sure does seem to be confusion about this. I could be wrong, but wouldn't bridge access be more or less left to the particular counties discretion?? The only problem I can see with access from a road right of way would most likely be parking, not the actual act of access.

Just for clairfication, the county cannot determine access to the river, only whether or not you can park along the roadside, and for further clarification they cannot determine whether or not that water body is navigable or not.


----------



## Splitshot

Salmodog

I wasnt inferring you were a TU member just that groups like TU, Anglers of the Au Sable, Friends of the Au Sable, The Federation of Fly Fishers, etc. etc, have used littering as one of the ways to justify the exclusion on bait fishermen from some of the best waters in our state.

In 1969 the DNR asked the legislature to consider a bill that provided a much more clear definition of what constituted a navigable stream. It passed the house with flying colors, but the committee chairman in the senate killed it by not allowing consideration of the bill.

Many dont realize that the chairman and majority of committee members on each house and senate committee is decided by the party with most elected house or senate members. The chairman of any committee decides which bills will or will not be considered and when they get on the calendar. By simply not allowing a bill on the schedule means it will die in committee and no vote will be taken.

We know it was killed in committee because of influential special interest and we can reasonably assume it for the same reasons law enforcement hasnt looked at the federal case law regarding the Public Trust Doctrine closely enough to clarify many public access and navigability issues.

There are thousands of miles of public navigable waters that the public is kept from legally using because of the confusion regarding the law. From reading just a few posts here you can see it for yourself. Some people will tell you that you cant access a river or stream from a public bridge. They will say that unless the courts rule it is navigable, that it is not navigable and I dont think they are lying about it because that is what they have believed all their lives.

They present court cases regarding an access issue regarding a lake where all the land around it is privately owned to support the contention that access at a public bridge is not allowed. The provide one definition of navigability to support their contention that only those rivers are navigable. The provide cases or people replacing bridges with culverts to defend not allowing public access and every time we accept those contentions, we all lose.

I am not a lawyer, but I have been doing much research and I have discussed public trust issues with two of the most respected legal minds regarding Public Trust issues and they have agreed that I make a strong argument based on their understanding of the PTD. 

For more information, go to http://www.nationalrivers.org/us-law-menu.htm and do more research on what is said there. I have read many of the federal court cases and my opinions are based on all that research. 

The courts have found that fishing along with navigation and commerce identified rights under the PTD conclude the public has the right to fish and access even non-navigable rivers up to the ordinary high water mark. 

MUCC is supporting a bill that would make it a right to hunt and fish in Michigan and we should support their efforts, even though fishing is already a right on all citizens and is defined as such in the PTD.

As we start to understand what our public rights are, we believe the best way to overcome the years of confusion and abuse of our rights is to educate our state officials by asking them to examine the settled case law and begin to clarify and make the hard decisions that protect our public interests.


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## DReihl9896

Splitshot said:


> There already is a federal law that gives the public the right to access the water from a public road unless there is some safety reason like those on expressways. It is called The Public Trust Doctrine.


I understand this and agree in theory. Prior to the implementation of all the Flies Only and GR water, one probably could have also said, the PTD covers this so there is no need to concern oneself with the matter. In theory I would presume that you would also think that to be true. How has that worked out in practice? The same goes for what you are sure the PTD means in regards to a definition of navigability. In practice, has that standard been applied universally every time issues of that nature are adjudicated? No, it gets interpreted and not always the same way. Burn me once, shame on you. Burn me twice...well, I'd still feel better with a clearer definition of such things on the books that leaves less wiggle room for interpretation when such things are decided in the future. I'd look at it as calling in some additional backup and support for the PTD and public rights on public streams.


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## DReihl9896

Splitshot said:


> MUCC is supporting a bill that would make it a right to hunt and fish in Michigan and *we should support their efforts, even though* fishing *is already a right* on all citizens and is defined as such in the PTD.
> 
> As we start to understand what our public rights are, we believe the *best way to overcome the years of confusion and abuse of our rights* is to educate our state officials by asking them to examine the settled case law and *begin to clarify and make the hard decisions that protect our public interests*.


Splitshot, this sums up my original premise for starting this thread almost perfectly. I was never trying to argue whether it wasn't already a right according to the PDT (though I guess I admittedly don't share the same level of certainly and clarity in regards to that as you do). My feeling has been, it's still confusing (as evidenced by all the contradictory opinions in this thread and other similar threads), so it'd be worth the risk of maybe being a little redundant in reaffirming rights that are already there if clarity can be gained in the process.


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## YZman

Internet reference: wikipedia, Public Trust Doctrine: Court case cited at end.

Navigable waters

The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among the fifty states but in general limits the rights of ocean front property below the mean high tide line. Massachusetts and Maine (which share a common legal heritage) allow private ownership as far as the mean low water line but allow for public rights to fishing, fowling and navigation (with the necessary permits). These two states are the most restrictive of public rights and represent the exception. Most states allow free access to the intertidal zone for walking, swimming, sunbathing, etc. This does not always include the right to cross private land to reach the shore but prevents private owners from excluding the public below the mean high tide line. This line is calculated as the average high tide line of a 14.1 year cycle which means in practical terms that neither property owners nor the public are likely to be able to identify its precise location. On tidal waters the burden of proof therefore falls to the property owner as it would be trespassing for the public to willfully cross above the mean high tide line but not to miscalculate its location.* On smaller creeks and streams the burden of proof falls on the party claiming the navigable servitude, Harrison v. Fite, 148 F. 781 (1906) .*


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## dead short

toto said:


> Just for clarification, the county cannot determine access to the river, only whether or not you can park along the roadside, and for further clarification they cannot determine whether or not that water body is navigable or not.


This I would agree with. If there were county ordinances in place restricting parking a person would have to find another legal parking place and walk along the right-of-way until they reached the location where the stream and roadway intersected. 


Posted using Outdoor Hub Campfire


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## dead short

In Michigan it would fall in the lap of the property owner to show that the water was non-navigable in order to be successful in prosecution. 

Since it effectively is a private property issue, it is not the govt's responsibility to try to determine if it is navigable or not. If it is untested, the private property owner could petition it through the proper channels (court) to be classified one way or the other. 




Posted using Outdoor Hub Campfire


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## YZman

It would be the party claiming navigability, in some cases it has been State.


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## toto

YZ, I think you have it backwards there. If the river/stream in question is not adjudicated either way, it's considered on the side of navigable, and it would be up the property owners to prove otherwise. This can be a costly maneuver for a property owner, as going to court isn't cheap, but I guess if you want something bad enough, that's what you do.


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## YZman

> If the river/stream in question is not adjudicated either way, it's considered on the side of navigable, and it would be up the property owners to prove otherwise.


Where's that statute?


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## DReihl9896

YZman said:


> We'll always have commercial logs, in fact they're actually lighter than years past (and weaker). Heck, it technically would be possible to run a computer simulation based on actual laser scans of actual stream with flow data. And software will only get better and cheaper.


Great. Let's come up with a reasonable standardized log along with a standard method for performing the test and start determining the public and private nature of the rest of the undeclared water. That would be at least be a uniformly applied standard as opposed to the way it's been done with things being decided case by case and by umpires who don't all call the same strike zone. Some cases seem to have been decided not on whether a stream could pass a log test, but whether or not the stream historically floated logs in the past. That standard may be tougher to prove definitively on some streams.


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## johnnysmallgame

Should deer hunters have the same access to hunt easements between a road and stream?

At what point is illegal activity justifed, if enough people want the illegal activity and use the internet to justify it? If illegal tresspass is ok for a vocal group of angry fishermen who don't understand legal history, how about an angry group of deer hunters who demand to hunt powerline easements or driveways? 

At what point is the taking of private land ok because some want to simply take it over?

Does private ownership mean anything anymore, in the new obama world?

Notice, there is virtually no court cases allowing anything suggested here, as far as taking the lands.

Here's an idea, maybe gfys should gather some of their own funds and buy their own acre for public access and pay some taxes on it instead of expecting the real owners to pay the freight and for them to freeload and complain about access paid for by others.

I hear crickets. The problem with socialism is when you run out of others land to steal.


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## bowhunter42

So whats the legality of leasing a trout stream?? The stream is stocked by the dnr and is navigable. But i was kicked off at gunpoint... 

Poppin tags!


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## kzoofisher

bowhunter42 said:


> So whats the legality of leasing a trout stream?? The stream is stocked by the dnr and is navigable. But i was kicked off at gunpoint...
> 
> Poppin tags!


What stream? I'm sure several of us, including Dead Short or one of his co-workers will be happy to fish it in a couple of weeks.


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## toto

I'm with you on that one Kzoo, would love to know where that is????

I must say this has been a rather interesting discussion, and some of the stuff is like cutting fine hairs, if you know what I mean. 

Now, as most of you know I have studied the Public Trust Doctrine, and the Northwest Ordinance as well, and both of these documents cover just this discussion. One thing to realize is this: According to the NO, ALL waters are deemed public unless, and until the courts say otherwise. That is in article 4 of that document. To say a property owner owns the bottom soil of said stream/river, would be correct however they may not restrict use of the water by public because of it. That is why the decision was made to use the high water mark, and in most cases that mark is denoted by vegetation etc on the bank of the rivers, as it was always thought to be fairly obvious. Now, for me, I don't think it's quite that easy to see, but that's what we have to live with for now. 

As for wildlife such as duck hunting, or deer hunting from the river, if it's private property in that part of the river, than you may not hunt wildlife there. Can't remember the logic there, except for the obvious trespass issues, but there was more to it than that if memory serves me well enough. One thing we have established here is the fact this is a very mis understood concept of water usage, and water law. I'm not an attorney, nor did I play one anywhere, but the law does interest me very much. My wife, although she works for TSA, is a certified paralegal and perhaps that period of time peaked my interest. This isn't to say I'm always right, I'm not, never will be, but I have learned to study issues a little further, and seek out the reasonable answers. Apparantly water law, and natural resource law would be the most interesting to me, it's fascinating really. Here in this thread alone the complex issues that come up.

Sorry for the drifting away for a minute there, but the floating log test is the standard by which waters are deemed navigable or not, and in fact, some of the newest standards use the capability to float a canoe, kayak, or even the newer float boats. In other words, if you can float any of these vessels on this body of water, it is deemed navigable. As for floating logs, I've read somewhere that the logs needed to be 6" or 8" logs can't remember,furthermore, I think the 41cfs rule wouldn't really hold up either as who is to say I couldn't walk the logs down river if there wasn't enough current? Anyways, the bottom line, TO ME is if I can't find the river or stream in question on the list of non nav streams in Michigan, and as long as I can access it without trespassing on private property, I'm gonna fish it. As for bridge access, one of the things to remember is the likelihood that whoever has the property with the right of way running through it would know that. It would be noted on his deed for sure.


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## DReihl9896

toto said:


> I must say this has been a rather interesting discussion, and some of the stuff is like cutting fine hairs, if you know what I mean.
> 
> ...
> 
> One thing to realize is this: According to the NO, *ALL* waters are deemed public unless, and until the courts say otherwise. That is in article 4 of that document.


Does it say "ALL" waters or, does it say "navigable" waters and leave the term navigable undefined? 



> The *navigable* waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.


 And where does it clearly state that water is presumed public until a court declares otherwise? If it's in there in plain English, I would think at least a portion of this debate would be put to rest. I agree, it is kind of like splitting hairs, but isn't that what happens when these issues are adjudicated? 



toto said:


> * I'm with you on that one Kzoo*, would love to know where that is????


Me thinks toto's account must have been hacked. Then again, I originally thought there would be a little more unity among the community here on this particular issue.


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## bowhunter42

I never said i stopped fishin it! Nice try

Poppin tags!


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## toto

Maybe this will help, it pretty much covers all the questions asked in this thread. As to who determines navigability in the end, rests with the federal courts. Read part 13 for clarification on that.

http://www.adventuresports.com/river/nors/us-law-who-owns.htm


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## DReihl9896

toto said:


> Maybe this will help, it pretty much covers all the questions asked in this thread. As to who determines navigability in the end, rests with the federal courts. Read part 13 for clarification on that.
> 
> http://www.adventuresports.com/river/nors/us-law-who-owns.htm


I presume you linked the national rivers document, because the NO doesn't explicitly spell it out. BTW, I'm not arguing whether or not the document is correct in it's interpretation or not. It just doesn't work as a legal proof and says as much in the disclaimer at the top.

_



Following are answers to frequently-asked questions about federal law regarding public ownership, use, and conservation of rivers. *Note that this is a general discussion, and is not a substitute for legal counsel on a specific river issue!* State law in a particular state may modify some of the following. Questions and answers are now in preparation for various states, and will be posted in the River Registry department of this web site as soon as they are ready. The following information, which is part of a continuing project of research and publishing about river law, is made possible by the generosity of the members of the National Organization for Rivers.

Click to expand...

_


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## toto

Which document are you speaking of?? As the disclaimer states, nothing is perfect, or pretty much says that, but it's also a statement that this is only a research project, and therefore isn't the ultimate end all of river use questions. Or at least that's sorta the way I interpret it. Anyways, I think it pretty much sums up just how river law works, and basically answered the above question as to ultimately answers the questions of navigability, it's the federal courts in the end, should you want to spend the money to do so. Yes, if the state legislature says it's fairly obvious that it's non nav, than the high courts will most likely go along with it, but it has to be pretty obvious. In one part of the above link, it states that if the water in question is a rocky river, and the is some sort of channel through the rocks, and one could conceivable float it, it's navigable, on the other hand, it the water flows over the rocks, and no viable channel between the rocks, it may well be non nav.

 No my account wasn't hacked, just trying to show that even though we may disagree on some things, there are still others that we can agree on, call it the spirit of cooperation I guess.


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## landrover

The DEQ says there are 36,000 miles of streams in michigan. A safe bet is less than 1,000 miles of those have been determined non navigable by a court. So 35,000 miles of navigable streams x 2 = 70,000 miles of stream banks which works out to 185 ft. for each of 2 million fishermen. That's a lot of room to spread out. There isn't an access problem because there are thousands of bridges crossing those streams and a CO is saying bridges are legal access sites.


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## YZman

> That's a lot of room to spread out. There isn't an access problem because there are thousands of bridges crossing those streams and a CO is saying bridges are legal access sites.


Only to navigable water.

Harrison v. Fite, 148 F. 781 (1906):
On smaller creeks and streams the burden of proof falls on the party claiming the navigable servitude.


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## troutguy26

Do you guys argue with CO's in person to?


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## Splitshot

toto said:


> .......I can also walk, bicycle, have a picnic, or roll a baby carriage on the river bank, as long as it is below the high water mark. ....


Bill, I agree with you with this exception. Navigation, fishing and commerce are three defined rights under the PTD. While the scope of rights cannot be narrowed, they can be expanded. Some states have expanded those rights under the PTD to include other non destructive activities like biking, allowing picnics and strolling with baby carriages, but Im not sure that Michigan has.

(Fishing place.) In subsequent cases, the U.S. Supreme Court held that states hold surface waters in trust for the people, so that the people will have liberty of fishing therein freed from the obstruction or interferences of private parties. It held that a state cannot abdicate its trust over property in which the whole people are interested, and that rivers shall not be disposed of piecemeal to individuals as private property.

The above paragraph discusses fishing specifically as a right of the people an states that the state must protect the rights of the people. You can find this and much more at http://www.nationalrivers.org/us-law-menu.htm

The U.S. Supreme Court has held that rivers that are physically navigable are "navigable" for purposes of state ownership ("state title"). On all such rivers, in any state, the riverbed and banks, up to the ordinary high water mark, are state land, held in trust for the public for navigation, fishing, and other non-destructive visits. 

We dont need a log test because if one can navigate narrowest canoe at normal springtime conditions no other test is needed.

Yzman and Johnnysmallgame,

I live on the LM river and when I purchased my place, I believed I owned the land to the middle of the river. Under the state trespass law I was aware that fishermen could walk on my land to get around a deep hole or other obstructions but they had to keep moving until they could safely re-enter the river. I now know that I only own the land up to the ordinary high water mark because even if the state sold me the land to the middle of the river, they had no authority to sell it in the first place under the PTD making my claim of ownership invalid.

I believe that a hunter may travel along a navigable stream or river but he is not allowed to shoot game on private property or in the river as the rules for fishing are much different than those for hunting. He is allowed to hunt on public land and the stream may be used to access public land just like he could gain access from a public road.

If it were not for the PTD, states could sell sections of our rivers or lands to private parties. If that were possible public opportunities would soon be limited or gone all together. In my situation, no one took my property from me because I never owned that property in the first place. Takings the way I understand it means the state cannot sell our interest (publics) to any public or private entity unless there is a larger benefit to the public. For example the state might allow a city to build a public marina on a public waterway because it provides a benefit to the public. It also means that the public must be allowed to fish from those docks because it still belongs to the public.

One of the U.S. Supreme Court cases I read involved a municipality who decided to build a municipal building on a piece of property that citizens has used for fishing for years. Some citizens hired a lawyer and threatened legal action if they went away with their plans. The elected officials ignored the threat and began building believing that even if they lost once the building was finished, what could they do.

The Supreme Court ruled in favor of the citizens and the municipality was given two options. One was to tear down the building or provide the public equal or a better way to access the fishery. They ended up building a pier that extended around the building which materially increased the fishing opportunities for the public. The ruling was based on the fact that historically the area in question was used as a public fishing access and it violated the PTD. Once a public access has been established it cannot be taken away. That means public roads cannot be blocked, public buildings cannot block access, or any other action that would limit the public use of that access site. Im aware of hundreds of miles of roads the state or the federal government has closed off in the last 40 years that violate the PTD. 

Some areas are to difficult to patrol, mudder trucks tear up the areas, the state cant afford to maintain them, to prevent illegal camping, to prevent back woods parties are just a few of the reasons I have been given for closing access, but those reasons are not good enough for Public Trust violations. Even if those explanations are true, it doesnt justify punishing the majority of citizens you dont get involved in illegal activities.

Finally a few years ago the MI Supreme Court ruled the public has the right to use the shores of all the Great Lakes up to the ordinary high water mark as long as they reached to the shoreline legally. The Public Trust Doctrine was the basis for that decision. That ruling could still be overturned as the plaintiff(s) still have the option to take it to the federal courts but that is unlikely based on other federal court decisions.

It has been over 50 years ago that the state of MI changed the trespass law so that fishermen could get out of the river to get around an obstruction. Before that, landowners physically put obstructions in the river so fishermen could not access other parts of the river. The federal courts have ruled consistently that the public holds ownership up to the high water mark on rivers and streams just like they have on the oceans and the Michigan Supreme Court in their recent ruling on our Great Lakes.

In view of these facts, perhaps the MDNR should review their policy regarding the ordinary high water mark on rivers and streams. On many small streams, walking in the water is not conducive for good fishing. Given the fact that the public owns the land up to the ordinary high water mark, it only makes sense that they be allowed to use it without fear of receiving a ticket. 

I also realize there will me much consternation from riparian owners that believe they own the land up to the bank or even beyond. Some landowner will surely go to the courts, and it may take years to work its way through the courts, but since the MI Supreme Court has set a precedent perhaps may never happen.

This may be a good time to explain that we (Great Lakes Fishing and Sporting Alliance) of which I am a member do not relish the idea of using the courts to settle differences. We started GLFSA because we believed our public rights were being eroded. We dont feel that we are greedy, selfish or that working to restore public rights defines us as a special interest group. 

We understand that certain groups and individuals are and will be upset because they stand to lose assumed rights or other privileges they now enjoy, but we feel they only enjoy them at the expense of reduced rights to the rest of us


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## DReihl9896

troutguy26 said:


> Do you guys argue with CO's in person to?


 I wouldn't if they'd just agree with me.


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## YZman

> I now know that I only own the land up to the ordinary high water mark because even if the state sold me the land to the middle of the river, they had no authority to sell it in the first place under the PTD making my claim of ownership invalid.


Legally incorrect. If you own land on 1/2 of river, bottomlands to middle (unless stated otherwise in deed) is in your ownership. Just like a lake is divided pie slice to center of lake, with bottomlands belonging to shore line owner. Great Lakes differ in fact that State maintained ownership of bottomlands and beach walking case was "Where do bottomlands end".
Claiming otherwise is similiar to people who attempt not to pay income taxes, claiming it's against original Constitution. Good luck in court on that.


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## troutguy26

YZman said:


> Legally incorrect. If you own land on 1/2 of river, bottomlands to middle (unless stated otherwise in deed) is in your ownership. Just like a lake is divided pie slice to center of lake, with bottomlands belonging to shore line owner. Great Lakes differ in fact that State maintained ownership of bottomlands and beach walking case was "Where do bottomlands end".
> Claiming otherwise is similiar to people who attempt not to pay income taxes, claiming it's against original Constitution. Good luck in court on that.


I will agree with that.


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## Splitshot

YZman said:


> Legally incorrect. If you own land on 1/2 of river, bottomlands to middle (unless stated otherwise in deed) is in your ownership. Just like a lake is divided pie slice to center of lake, with bottomlands belonging to shore line owner. Great Lakes differ in fact that State maintained ownership of bottomlands and beach walking case was "Where do bottomlands end".
> Claiming otherwise is similiar to people who attempt not to pay income taxes, claiming it's against original Constitution. Good luck in court on that.


I dont know what else to tell you YZman. The U.S. Supreme Court states: Public ownership of physically navigable rivers, including the land up to the ordinary high water mark, pre-dates property deeds. What the property deed says or doesn't say about the river is irrelevant.

Unlike your example or those claiming not paying income tax is against the original Constitution, what I stated has been upheld by the highest court in the land. Luck has nothing to do with it. Just because someone prints something on a deed doesnt make it legal and the state cannot sell something they dont have the authority to sell no more than the state can pass a law would take away our right to free speech.

Your comparison of a navigable river to a private lake is also irrelevant just like the Alabama example comparing a case involving tidal flows was to the last discussion. I know there are thousands of people that believe because they own a piece of land adjacent to a river they own the river and can keep the public from using it. Using a state court decision to disprove a U.S. Supreme Court decision might convince some people, but it doesnt change the facts.


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## YZman

So your asserting all Michigan Court rulings, precedents and real estate law pertaining to water is in violation of the U. S. Supreme Court and possibly the PTD and N.O. And, therefore, all inland lake and stream dock owners are placing their docks on public property. This of course would also be illegal.

Also, that would mean trapping and hunting on said bottomlands would also be then legal as property then would be States.


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## Splitshot

No.


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## YZman

If, as you stated, you don't own bottomlands, then any dock is placed on public property. Also, if State own bottomlands, then, just like Great Lakes and Lake St. Clair, public could duck hunt anywhere on inland lakes.


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## Splitshot

No!


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## toto

In answer to your question as to whether or not real estate law is incorrect? The answer actually is yes. If, when speaking of rivers, a river has not been adjudicated either way, then the deed doesn't matter. It matters not if the deed says to the middle of the river or not. Yes you may technically own the bottom soil, however, for public law purposes you cannot stop somebody from wading past your place, IF they entered the water legally from some other place. As for lakes, it's pretty much the same. I can anchor (not to be confused with mooring), swim, fish, or any other use of the waterway without worry of trespass. I can enter the water from a legal point and wade and fish in front of your house, just like on the river scenario above. Maybe I'm missing something here, but if I were a betting man, I would bet that someone has a particular reason to fight against what the law says.

In further answer to your question about docks, that would be okay for the land owner to do so, as it is considered an extension of the property in question. Having said that, you couldn't run a dock out to the middle of the lake, assuming the lake in question is navigable, that would create a possible safety hazard.


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## YZman

Let's take a hypothetical River X, further, we'll assume a flow rate half of what's printed in DNR document, so 20.5 cfs. Small stream.

First, the trespass act states "navigable public stream". It does not state "undeclared" or "non-navigable". Access from bridges and roads is to navigable lakes and streams. In law, grammar and punctuation is EVERYTHING. I've seen cases argued over the placement of a comma. An undeclared stream is exactly that: undeclared. Entering an undeclared streams is not covered.

Second, we can go by Federal definition of tidal or navigable-in-fact. So any stream used for boating will pretty much fit and no court ruling needed. Plenty of streams were used for logging and are documented as such, actually documentation and archiving is getting better. Old documents and photographs are getting scanned and archived. Again, these streams need no ruling, especially with old news articles.

So now were down to streams that have no boating, no documented logging or Federal navigable-in-fact, therefore are undeclared.

Now a fisherman decides he's going to fish River X. Let's assume landowner calls LEO and he/she choses do nothing (contrary statute, as it states "navigable"). So landowners recourse is civil trespass. He's not suing the LEO for trespass, technically he's an invited guest if landowner called him. He's suing the fisherman, he's the one the claim is against. Now, if the landowner wins, fisherman can be responsible for landowners legal fees that are "reasonable". Fisherman will have to retain an attorney and, unless its his cousin Vinny, may run at least $300 an hour. Fisherman better have done his/her research because he/she have to show why stream is navigable, while landowner shows why stream is non-navigable.

Legally, if stream access is being denied, someone has to challenge that access in court. If you examine cases, you'll see most cases are between private individuals/companies, not the State.


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## Phoolish

this is a pic of the hersey river. in the back ground you can see a metal gate/fence it goes all the way across.can they have that there legally. i want to kayak/fish this stretch between reed city and hersey but there is this fence and i believe (if i remember right) others that cross the river.

Hersey River was a logging rives. didnt want to start another thread on this


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## DReihl9896

YZman said:


> So now were down to streams that have no boating, no documented logging or Federal navigable-in-fact, therefore are undeclared.
> 
> Now a fisherman decides he's going to fish River X. Let's assume landowner calls LEO and he/she choses do nothing (contrary statute, as it states "navigable"). So landowners recourse is civil trespass. He's not suing the LEO for trespass, technically he's an invited guest if landowner called him. He's suing the fisherman, he's the one the claim is against. Now, if the landowner wins, fisherman can be responsible for landowners legal fees that are "reasonable". Fisherman will have to retain an attorney and, unless its his cousin Vinny, may run at least $300 an hour. Fisherman better have done his/her research because he/she have to show why stream is navigable, while landowner shows why stream is non-navigable.
> 
> Legally, if stream access is being denied, someone has to challenge that access in court. If you examine cases, you'll see most cases are between private individuals/companies, not the State.


Plus, it seems that even if the fisherman or property owner feel they have solid arguments based on previous presidents, PTD or N.O., there is no guarantee that those particular arguments will be the one's applied when the issue is adjudicated, hence my appeal for a uniform easily applicable standard. Declarations on undeclared water would also be a public service that though I'm sure there would be a wave of challenges from both sides over certain declarations, once settled, property owners and wading anglers would both could be more sure of where they stand in regards to the law.


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## DReihl9896

Phoolish said:


> View attachment 36398
> this is a pic of the hersey river. in the back ground you can see a metal gate/fence it goes all the way across.can they have that there legally. i want to kayak/fish this stretch between reed city and hersey but there is this fence and i believe (if i remember right) others that cross the river.
> 
> Hersey River was a logging rives. didnt want to start another thread on this


From seeing that particular river from where it crosses 10, *I would presume* that it definitely has sufficient flow to be comfortably placed in the navigable category. It should be a slam dunk if it did in fact float logs. Is the only purpose for the fence to keep people from navigating the river? Is it a private owner that placed it there? I 'm not sure exactly where this fence is and the character of the river where it is. Scratching my head, but maybe if there were some sort of public hazard present in that stretch or something like that, maybe it could be considered necessary for safety purposes, but I'm not even sure on that.


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## toto

If you read Gerhardt v Collins you will see a case that is on point about the fence accross the river. Seeing as how you can float down the river in a floatable device, I would assume the Hersey River to be naviagable.

I think in this thread some are cutting hairs, it has been shown over and over again that the only ones who can ascertain whether or not a river is navigable is the federal courts. If it isn't on the list, how could you possibly get a ticket for trespassing, assuming you are in the water??


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## Phoolish

DReihl9896 said:


> From seeing that particular river from where it crosses 10. *I would presume* that it definitely has sufficient flow to be comfortably placed in the navigable category. It should be a slam dunk if it did in fact float logs. Is the only purpose for the fence to keep people from navigating the river? Is it a private owner that placed it there?



the fence is like 6-10 feet up river from a bridge. i know they sent log by train from reed city to the old saw mill hersey and then from there they sent the logs down river. the river is pretty identical from reed city to Hersey and Hersey to The Muskegon River_. _Im not 100% but im pretty sure before the train they would send logs from reed city to Hersey by river


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## Phoolish

i just found habitat evaluation from August 91 that was taken in reed city: ave depth: 1.266 Ave. width 45 feet Ave. flow 74.6 cfs

from dnr web site 

B. Navigable Inland Stream:

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; 

i average form 5 different test sites in reed city and its one of the slower shallower parts of the river


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## Splitshot

Phoolish said:


> View attachment 36398
> this is a pic of the hersey river. in the back ground you can see a metal gate/fence it goes all the way across.can they have that there legally. i want to kayak/fish this stretch between reed city and hersey but there is this fence and i believe (if i remember right) others that cross the river.
> 
> Hersey River was a logging rives. didnt want to start another thread on this


Call the DNR in Cadillac. They can only get away with it if no one complains. 

YZman,

Your claims are almost always based on straw man arguments so why not send me a PM with the name and location of the stream or river you are trying to protect and perhaps we will put it to the test.


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## mondrella

Phoolish said:


> View attachment 36398
> this is a pic of the hersey river. in the back ground you can see a metal gate/fence it goes all the way across.can they have that there legally. i want to kayak/fish this stretch between reed city and hersey but there is this fence and i believe (if i remember right) others that cross the river.
> 
> Hersey River was a logging rives. didnt want to start another thread on this


That fence is completely legal. Those are there to keep livestock in the property owners land. Without this the landowners cattle and horses can get out. You just have to deal with it.


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## YZman

> If it isn't on the list, how could you possibly get a ticket for trespassing, assuming you are in the water??


You may be issued a ticket, or taken to court for civil trespass, because it IS NOT on list of navigable streams, (that is not an all inclusive list). Michigan trespass statute clearly states "navigable", it does not state "undeclared", furthermore, there is no statute that states an "undeclared" is navigable. You have to fall back to navigable-in-fact definition on larger streams.

By your logic, a stream 5 foot wide, flowing 10 cfs, is a navigable public stream. And if said stream flows to a farmers pond, and out again, you have the right to fish it.

These issues are typically resolved via State Courts, not Federal. I know some feel this makes State rulings irrelevant.

Again, as I stated in previous post, unless you convince State to take it to court, it's going to be between the fisherman and landowner. Someone has to take the stance, and prove (finding of fact), it's navigable.


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## toto

Wrong again!


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## Phoolish

mondrella said:


> That fence is completely legal. Those are there to keep livestock in the property owners land. Without this the landowners cattle and horses can get out. You just have to deal with it.


if it service a purpose it service a purpose. i just want to make sure i can go around it. i would like to talk to the owner first anyway so they know what ill be, doing any ways


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## Phoolish

i guess ignore what i said they took out the fencing just before winter


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## Splitshot

That's what I heard as well Poolish. Actually it was designed so you could swing it open but it was heavy. Had it not been removed, you would have every right to go around the obstruction without asking permission according to MI law and the PTD.

We had a problem on a little feeder creek that runs into the LM a few years ago and the land owner refused to fence the creek even if someone agreed to pay for it. He had been there many years but DEQ said the cattle caused erosion and the cattle added fecal coliforms to the river causing risks to humans so they could force him to meet current regulations.

I don't know the final outcome, but suffice to say cattle is not an excuse to block a navigable waterway.


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## kzoofisher

Access is being addressed in the DNR's Land Management Strategy. It doesn't mention navigability but the Department clearly has a desire to increase access. Might be a good time for a push to reintroduce that 1968 bill. Relevant stuff is on page 12 but it is all worth reading 

http://michigan.gov/documents/dnr/Draft_DNR_Public_Land_Management_Strategy_april_1_416415_7.pdf


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## DReihl9896

kzoofisher said:


> Access is being addressed in the DNR's Land Management Strategy. It doesn't mention navigability but the Department clearly has a desire to increase access. Might be a good time for a push to reintroduce that 1968 bill. Relevant stuff is on page 12 but it is all worth reading
> 
> http://michigan.gov/documents/dnr/Draft_DNR_Public_Land_Management_Strategy_april_1_416415_7.pdf


Speaking of which, the deadline for public comment is April 30. Send emails to [email protected].


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