# Criteria for a stream to be considered public or navigable?



## djreihl (Feb 14, 2009)

I'm getting excited about the upcoming trout season and hoping to discover some new water this year. However, I'm having trouble finding out what the letter of the law is when it comes to what streams are considered public. On the DNR wedsite this was all I could fiind.

[SIZE=+1]*Angler Rights On Public Streams*[/SIZE] [SIZE=-1]On fenced or posted property or farm property, a fisherman wading or floating a navigable public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or, without damaging farm products, walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, deep hole, or a fence or other exercise of ownership by the riparian owner.[/SIZE]


[SIZE=-1]I pretty much understood all of that before searching, however I can't find anyway a definition of what constitutes a navigable public stream. There is on small stream in the middle of the state that I would like to try, but it is small enough to cause me to doubt whether or not it would be trespassing to wade in it. The other one I'm worried about concerns a river that I know is public that I have a cabin on. I know I can get in at the cabin and fish upstream to a bridge. However, to fish the downstream stretch, involves a small feeder creek that crosses a road and private property for just a short distance to get to the river. When I was younger, I just used that creek for access without giving it much thought. Now the legality of it concerns me and I would like some clarification as to whether or not it using that creek is in fact a legal means of entering the main river. 
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[SIZE=-1]If anybody out there has knowledge of such things or knows where I can find a list of all of the public waterways, I'd really like to know.
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## PunyTrout (Mar 23, 2007)

I hope that I'm wrong here, but I think the non-navigable rivers are what the DNR classifies as "Type 1" streams. They are printed in green on the stream angling regulations map. I know that seems like it would exclude a lot of rivers from public access but, I think that is the case.


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## Fishslayer5789 (Mar 1, 2007)

At first I was thinking the same thing about TYPE 1 streams but I canoe a few TYPE 1 streams in the summer time and one of them is through a canoe rental service that drops you off and picks you up and in order to run a business like that, it would have to be legal to navigate the whole river as long as you were in the water. The upper stretches of the Boardman in Traverse City are all TYPE 1 and I canoe and wade them a decent amount. The banks all along the river are all private but as long as you stay in the water, you are doing nothing wrong. As far as creeks go, I would believe that if it is a designated trout stream of ANY TYPE (by the DNR) then you should be able to wade it without breaking any laws. If the creek is a little feeder creek that IS NOT designated as a trout stream, then I would think that it would be illegal to navigate through that to get to a bigger stream or river. There is always the moral issue of it to say enough is enough when it comes to walking down tiny creeks that are "designated" trout streams but are only a few feet across. If I lived on a tiny little creek, I would be bothered by seeing people walk right down the middle of it scaring all the trout even though they were not breaking any laws. JMO


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## Fox (Nov 21, 2007)

Type I is strictly for fishing regulations and has nothing to do with navigable or not. To determine that it gets rather complicated. Basically, I tend to look at it like this; if the water doesn't look like it could have been used to float logs or if others aren't actively using it to canoe I won't wade it through private land. May not be the most correct method, but it's worked for me.
F


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## Linda G. (Mar 28, 2002)

But I think that for a river or stream to be considered navigable by the DNR, there must be proof that the stream has been navigated...by a canoe, boat, whatever...don't hold to me that, but that's what I think I remember...and the DNR has a list of navigable streams. 

I'd dig into their website and read some of the documents they've got posted on this.


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## Whit1 (Apr 27, 2001)

This is an ongoing question in this and other sites and even among some DNR folks.

During the 1920s landowners along the Pine R. in Lake County, the Ne-bo-shone area, tried to fence off the river to prevent anglers from using it. The case wound up in court and resulted in the famous Ne-bo-shone Decision. In short it said that if a stream was used for navigation then it was considered to be open for public use. That would be the stream bottom and not the bordering property.

If the stream was used for obvious navigation of commercial boats it fit into the decision, but so to did streams that, during the lumbering era, floated logs. Therein lies the problem. While some streams may have been (and are) large enough to float logs there needs to be some verification of this and there are many streams where this has not been done. (The Pine R. is not one of those).

A wader may get out of the stream and walk the banks in order to get around obstacles in the water (log jams for instance) that prevent wading.

Most "creeks" do not fit into that realm so are not considered to be navigatable. However there are many medium sized streams that could have floated logs, but the history of such activity is not readily available.

The DNR doesn't have a list of streams that once floated logs, thus making them "navigatable".

What is needed is a concerted effort by individuals and/or a group to research the history of logging in Michigan and find proof............word of mouth is not "proof".........that was used for logging. Such "proof" might be found in local libraries, historical societies, etc. Documentation of such proof, that would hold up in court, is vital in any effort to maintain the spirit of the Ne-bo-shone Decision.

For more information do a search using "Ne-bo-shone" as a keyword.

This is an issue that politicians and the DNR avoid like the plague. It pits the publics rights against landowner rights and that is a snakepit of holes, venom, and nasty bites.

Forget the stream classification system used by the DNR. That has no bearing on this issue in any sense, but is merely a habitat method of setting trout stream regulations.

You can often forget the oft repeated myth that, "No matter what size the river is I can get into it at a bridge and as long as I remain in the water I'm legal."

Another myth goes, "If the stream could have floated logs it is considered navigatable." This is not true in a legal sense.


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## sb_troutsman (Dec 7, 2004)

This should make everything crystal clear! From michigan.gov:

http://www.michigan.gov/documents/Water97e_142928_7.pdf

I have my own personal definition - I know it when I see it - of what is navigable. I'm sure there are landowners who would argue it (so far so good). There are a couple of upper stretches of rivers in Northern Michigan that are no more than 10-15 feet wide that I know for a fact were used to float logs. Many small streams were dammed and then drained to create enough flow to float a log. I figure that if a stream flows a considerable distance and drains directly into a river, lake or harbor, it was more than likely used for logging.

On the other hand, use a little common sense, you won't find me standing in a 4' wide stream flowing through somebodies front yard even if I can prove that it is navigable.

When in doubt, bring an 8 foot by 24" diameter log along when you go fishing and throw it in the river and see what happens.


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## djreihl (Feb 14, 2009)

sb_troutsman said:


> When in doubt, bring an 8 foot by 24" diameter log along when you go fishing and throw it in the river and see what happens.


At least if I'm carrying one of those, the property owner may be a little more hesitant to approach me and raise a stink.:evilsmile
Actually, I originally posted the question because I want to make sure I;m not violating property rights. The one stretch in question, was one that as a kid, I just just worked under the assumption that all rivers and streams were open to the public so long as there was some sort of public access point like a bridge to get in at. I'm pretty sure though that this little feeder creek is a little too tight and narrow to pass the log test. The other that I mentioned in the middle of the mitten isn't quite so tight though, so I'm not sure if it would pass the log test or not. However, I did find that it receives plants ever year, so I'm not sure why the DNR would stock a stream that isn't considered public. 

Anyway, thanks for the responses. I did actually find a thread that is actually pretty recent in a different part of this forum (the hunting/fishing law section which is probably a more appropriate place to ask) about this very subject with some good information as well. I would post the url, but I don't yet have enough posts under my belt. Unfortunately, there apparently isn't a real clear definition of what constitutes a public or navigable stream and court decisions seem to lack consistency. In fact the log test has been ignored in some instances in favor of a recreational value test of sorts. I wish DNR would just catalog exactly what water is public and what is not for the sake of clarity.


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## Whit1 (Apr 27, 2001)

sb_troutsman said:


> This should make everything crystal clear! From michigan.gov:
> 
> http://www.michigan.gov/documents/Water97e_142928_7.pdf
> 
> I have my own personal definition - I know it when I see it - of what is navigable. I'm sure there are landowners who would argue it (so far so good). There are a couple of upper stretches of rivers in Northern Michigan that are no more than 10-15 feet wide that I know for a fact were used to float logs. *Many small streams were dammed and then drained to create enough flow to float a log.* I figure that if a stream flows a considerable distance and drains directly into a river, lake or harbor, it was more than likely used for logging.


 
Thanks for saving me the time to look up that document.

Keep in mind that one's "own personal definition" as to what constitutes a navigatable stream would hold no water in a court of law. Also, the damming of a stream in order to create enough water to float logs is, according to what is found on p. 6 of the DNR document regarding public rights on lakes and streams states:

Public and private rights are controversial issues that have historically been determined by the courts. Michigan courts have repeatedly held that the public has rights in navigable water. *These waters have been defined as any water which in its natural state is capable of and has been used for the purposes of commerce, travel and trade by the customary and ordinary modes of navigation. *The floating of logs during the lumbering days was held to be an act of commerce. Consequently, any lake or stream used for this purpose would be considered navigable within the meaning of this term. Thus, the log floatation test has largely become the yardstick in Michigan to determine the "navigability" of a waterbody, that is, whether public or private.

The Appendie at the end of the document is helpful to an extent, but even then there are questions and not it is not crystal clear. For instance the Manistee R. (Big) is listed as navigatable inlcuding it's "tributaries". Of course the Pine R. is a tributary and has been shown (the Ne-Bo-Shone Decision) to be navigatable, but what about Slagle Cr., Peterson Cr. and other small tributaries to the Big Manistee R. Are they considered to be "navigatable" because the document says "Manistee River and it's tributaries"?? I think not.

Another question arises concerning streams that are navigatable. How far upstream does navigatability apply. Are the N. and E. branches of the Pine R. (Osceola County) considered to fall under the realm of navagatability even though they are quite small? I don't think it does.

There are still a lot of unanswered questions that only legislative action and/or additional court rulings can bring out. Both of these offer scary prospects indeed.​


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## sb_troutsman (Dec 7, 2004)

So who has the burden of proof? Do I have to prove that it was used for logging or do "they" have to prove that it wasn't?

I realize that my personal definition has no bearing in a court of law, but in my humble opinion, if all legal questions in this state (especially those that pertain to me) were refered to me for a binding decision, this state would be a much better place (for me) to live! 

Seriously though, the point I was trying to make is that since the law is ambiguous at best, all you can do is develop a personal comfort level and hope for the best. Personally, I hope the issue is NOT addressed by the State! If it is, the land owners of waterfront property will fight for as much restriction as possible (see Save our Shoreline, and the fight over great lakes access) and they tend to have the deep pockets necessary to win. 

In the meantime, I've got my log ready to go for next Saturday! I'll be on public land anyway so it won't matter how big the stream is. Let's not suck all the fun out of fishing - good luck everybody, hope you catch one almost as big as the one I'm dreaming about catching!

Matt


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## Whit1 (Apr 27, 2001)

Where are you in the NW Lower Matt?

I agree with what you say about the state not getting involved. That battle over the public's use of the Great Lakes shoreline sends shivers down my spine.


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## sb_troutsman (Dec 7, 2004)

I live in Suttons Bay.


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## unclecbass (Sep 29, 2005)

Log float test. Dont let iddoits who hang private property signs over streams and rivers keep you out. I have seen people hang signs over both the cedar and jordan river claiming it was private property:lol:


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## YZman (Mar 4, 2004)

Actually upper stretches of Jordan and its tributaries are considered non-navigable by DNR fisheries division; suggest you read 2004 report by DNR fisheries biologists Hayes and Merriweather, pg21 or pg22 I believe. Upper stretches of Jordan were never used for logging. In fact they point out it was incapable and no signs of 'check dams'. You'll have to prove that it was and is. Fortunately, most of upper Jordan flows through public land.


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## PunyTrout (Mar 23, 2007)

Maybe Hayes and Merriweather are buddies with the dude that has the giant sign with 1 foot letters spanning from bank to bank on that creek near the confluence of the Jordan and the Green that says, "NON NAVIGABLE"


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## ethan.winchester (Dec 15, 2008)

It looks like this has been answered pretty fairly, but I'll give my .02 from my experience working in marine law enforcement. 

Disclaimer: What I say in this forum has no legal jurisdiction and all decisions are made solely and held liable by the individual.

With that...

Riparian rights is an issue that we deal with on a common basis...."I own it, the state doesn't....bla bla bla." Like is stated above, the state uses the commerce test for most waters....logging is the most common act of commerce in this state's history that is used to determine this for rivers. 
On navigable waters, the bottomlands AKA, any soil under the waterline (on the *Great Lakes* in Michigan, this extends to the high water mark......see court case Glass v. Goeckel), is considered public domain and the public has rights to enter upon it (public trust doctrine). When an individual is faced with, as stated in the manual, a dam, deep-hole, or act of riparian ownership (ie. fence..yes this does happen) then the individual may get out and walk around the obstruction as closely to the water, and entering immediatly following the obstruction. This does not mean if you come to a deep hole, that you can get out and cut the bend on the river and walk across the property and jump back in.

For lakes, the navigable waters is a subject that is a little more touchy and is in the courts often. Currently, the law states.....navigable lakes in the state of Michigan are determined by the same criteria that rivers are, but also, if a lake has a public access (DNR launch) the bottom lands are owned by the state. This is why on most inland lakes you have to aquire permits to put docks or other permanent structures on your adjacent 'riparian property.' This also means that individuals may anchor anywhere in the lake (as long as the anchor is underwater), and may leave the boat and enter onto a *submerged* sandbar by foot on a navigable lake. You are considered to be criminally trespassing once you enter onto dry land from the water (if private property).

As for the Jordan river. The Jordan river (bottomlands) is public domain from Pinney Bridge downstream to the mouth, as well as various locations upstream due to being owned by state land. As for the far upper reaches, some of it is considered private, however most of the main branch is public. The Green river...a major trib to the Jordan is only considered public immediatly upstream from the confluence. A little further up (such at Pinney Bridge road) the stream is private and the signs stating 'No Tresspassing' are LEGAL. 

If you are in doubt...one of the best ways to find out if a stream is public is to call the regional DNR office and they will be able to tell you or point you in the right direction to an individual that can tell you. (word of advise...don't wait to call until you are at the stream....as the biologist may not be available.....make the call a few days in advance).


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## unclecbass (Sep 29, 2005)

Yeah, Im pretty much not going to be fishing in non navigable water. If I am fishing in it then I guarantee its got to have enough water volume to folat a log. These jokers marking the river as private are nothing but a-holes. If you dont want to see people walking through the water then dont buy riverfront property, PERIOD. When is the last time one of your fishing buddies was arrested or ticketed for fly fishing/tresspassing in a non navigable river stretch?


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## FINNyooper (Jan 16, 2009)

I believe that if you are truly concerned with the letter of the law, the best thing to do is call the land owner and introduce yourself. Ask if you can meet them and then ask for permission to gain access. You will be surprised how many people believe it is their right to tramp all over someones land. This is the reason people post their properties. However, asking for permission is always the best way, and it usually works. I have seen people running from posted land, I have found empty cans, empty worm holders etc. All from people who were not nice enough to ask. 


Code of Federal Regulations TITLE 33 SEC. 329 
TITLE 33--NAVIGATION AND NAVIGABLE WATERS

CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 
DEFENSE

PART 329_DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES--Table of 

Sec. 329.4 General definition.

Navigable waters of the United States are those waters that are 
subject to the ebb and flow of the tide and/or are presently used, or 
have been used in the past, or may be susceptible for use to transport 
interstate or foreign commerce. A determination of navigability, once 
made, applies laterally over the entire surface of the waterbody, and is 
not extinguished by later actions or events which impede or destroy 
navigable capacity.


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## LakeCountySteve (Dec 22, 2006)

I own a considerable piece of property that encompasses both sides of the Pine River not far from the above mentioned Ne-bo-shone. I also spent many of my summers as a younger man exploring and fishing most of the well known rivers of northern Michigan and the U.P. I have experienced both sides of this issue. It is amazing how one's perspective changes when one's position changes. Here however are my observations.

First off if all river users were as conscientious as djreihl there would be few problems from landowners. Unfortunately those of us lucky enough to live on a river are subject (at least on July and August weekends) to drunken hoards of tubers and canoers with little or no respect for any private property rights. Imagine how you would react to drunken parties on the sidewalk or road in front of your house every weekend. Imagine this crowd using your yard for a urinal, your driveway for a wastebasket, and your flowerbeds as the best route to the next section of sidewalk. Imagine then, if you would, asking this drunken crowd to please stay off your yard only to know you are going to be verbally assaulted at the very least and physically threatened in all likelihood. Imagine it being so bad that you won't allow your children to go outside into your own front yard for fear of what behaviors and dangers they may be subjected to. 

So unclebass saying if you don't want people walking in the river don't buy river property is like me sayng to you if you don't want people walking down the sidewalk or driving down your road don't buy a house on a road or with a sidewalk. It is not the polite, quiet, nonlittering, law abiding, side walkusing jogger (fisherman or canoer) we are reacting to. It is the guy driving by your house doing 100 miles per hour and throwing beer cans in your yard, or the four drunks walking down the sidewalk swearing loudly, puking and passing out in your front yard. After years of enduring this even you might lose patience and put up a sign saying - Private Property stay out.

Think of navigable rivers as roads and sidewalks. Think of nonnavigable rivers as paths across your private property. You have no more right to walk down the middle of the nonnaviagble river that passes through my property than I have to walk on the path you have meandering through yours.

If you happen to be fishing on a navigable river such as the Pine then treat the adjacent property and landowner as you would like to be treated in your front yard by someone using the sidewalk or road. I have never hassled a polite fisherman using the river that runs through my property. It is especially nice when one approaches me and asks if it is okay if he uses my property to get around me as quickly as he can. Maybe he even asks how far upstream do I own and is he likely to run into other family members and how many times will he encounter a nonwadable stretch. 

Most riverfront owners I know don't want to fence off rivers from the headwaters to the Great lakes they just want to be treated with some degree of respect by those passing though their front yard.

Steve


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## 2PawsRiver (Aug 4, 2002)

I own a pretty good stretch along the Paw Paw and people pass within 25 feet of my back door. Luckily most are fishermen or hunters and are quiet and respectfull. Get the drunk dummy from time to time, and once had a Canoe stolen from my back yard, though I recovered it.


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## Whit1 (Apr 27, 2001)

2PawsRiver said:


> I once had a Canoe stolen from my back yard, though I recovered it.


I take it with that grin you've inserted there may be a story behind the recovery?? :lol:


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## MERGANZER (Aug 24, 2006)

The stream has to be "designated" as Navigable it has nothing to do with the log thing it has to be listed. We are on the PM and our stretch is "non-navigable" and you can float a log in that for sure. We have researched it and found what is navigable and what is not. Its complicated for sure. But there are other laws as well the CO told us like it technically not being legal to parl on the shoulder if there is not a "parking area open to public". Its complicated when people get territorial about the trout.

Ganzer


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## phishhed (Feb 8, 2006)

I have spoken with numerous COs and lawyers on this subject. The only way to get a stream classified as navigable that is not already deemed as such is to get a ticket and go fight it in court. Even on streams where there is no doubt logs were floated for decades, COs will give you a ticket either way if a land owner complains (personal experience!) and then tell you to take it to court and fight it. One particuliar stretch above the dam on the Boyne is one of many examples.


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## toto (Feb 16, 2000)

This is a very confusing issue, and in fact, it seems no one can agree on exactly what it means. In the past it was the floating log test, but not sure if that holds true today. All I know for sure is, its best to have some sort of atlas, or list of where and where you can't do any wading. I believe the Pine can be pretty confusing based on what I've read, but it probably isn't as bad as first blush says it is.


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## Whit1 (Apr 27, 2001)

phishhed said:


> I have spoken with numerous COs and lawyers on this subject. The only way to get a stream classified as navigable that is not already deemed as such is to get a ticket and go fight it in court. Even on streams where there is no doubt logs were floated for decades, COs will give you a ticket either way if a land owner complains (personal experience!) and then tell you to take it to court and fight it. One particuliar stretch above the dam on the Boyne is one of many examples.


There is some truth to the taking it to court scenario. As I found in some research a few years ago this could be done and one would have to prove the stream was once used to float logs "in its natural state". The old time loggers, who would have made excellent witnesses, are long gone. One would need solid evidence of other types in order to proof the point that River X was indeed used as a logging stream "in its natural state" in the distant past.


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## FISHMANMARK (Jun 11, 2007)

LakeCountySteve said:


> I own a considerable piece of property that encompasses both sides of the Pine River not far from the above mentioned Ne-bo-shone. I also spent many of my summers as a younger man exploring and fishing most of the well known rivers of northern Michigan and the U.P. I have experienced both sides of this issue. It is amazing how one's perspective changes when one's position changes. Here however are my observations.
> 
> First off if all river users were as conscientious as djreihl there would be few problems from landowners. Unfortunately those of us lucky enough to live on a river are subject (at least on July and August weekends) to drunken hoards of tubers and canoers with little or no respect for any private property rights. Imagine how you would react to drunken parties on the sidewalk or road in front of your house every weekend. Imagine this crowd using your yard for a urinal, your driveway for a wastebasket, and your flowerbeds as the best route to the next section of sidewalk. Imagine then, if you would, asking this drunken crowd to please stay off your yard only to know you are going to be verbally assaulted at the very least and physically threatened in all likelihood. Imagine it being so bad that you won't allow your children to go outside into your own front yard for fear of what behaviors and dangers they may be subjected to.
> 
> ...


 


This is worthy of a re-read.... especially the last paragraph.

Alittle respect, and don't throw trash in my front yard.


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## R_T (Feb 20, 2009)

Just wanted to throw out my experiences; COs aren't always right. I know one told a family member if they could float in it, in their kayak then they could legally paddle it. I wasn't having any luck fishing so i decided to float along the bank in my canoe. I picked a few lures out of the trees, fished out 1/2 bag of trash including fishing line, was working on getting a rusty can off the bottom when the wind took the front of my canoe and i bumped into a guy's dock. Guy came running out of his house, had his panties way up his crack, had lot of four words to say to me and threaten to go get his gun if i didn't leave. I bumped his dock with a canoe while picking trash out of the water, jfc. I was half tempted to throw all the trash i had collected on his dock, ungrateful prick. No i don't expect anyone to give me a pat on the back for picking trash out of the water. Just remember respect is a two way street, show a little, get a little. To the guys that own property a long the water ways, thanks for letting us fish and don't judge us all by the aholes that are out there.


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