Navigable Waterways

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Navigable Waterways

Postby LukeSwampWalker » Sun Jan 13, 2013 8:28 pm

I am really trying to get a legitimate legal answer here. I lease a piece of land with a 100 acre rice field and also about a 10 acre pond. Across from the pond (public road in between) is a slough. The slough has a large drainage pipe under the road into the pond. The slough winds all over property in the area for several miles. We can always see ducks landing on part of it from our field when we are hunting. We have always wanted to hunt it and now have an amphibious argo, and are hoping it is legal and considered a "navigable waterway". Most of the slough is about 15 feet wide and probably 6 feet deep. Can we legally go hunt this slough if we never set foot on anyone's land besides are own? Or is it iffy? Or is it just flat out illegal? Any comments are welcome. Thank you. :thumbsup:
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Re: Navigable Waterways

Postby cannon » Sun Jan 13, 2013 8:56 pm

Unequivocally NO. You can NOT legally hunt it

That is a legitimate, legal response. I'm a lawyer with a master of laws in agriculture, specializing in water use law. It ain't a grey area. If you get caught you'll be cited for criminal trespass.


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Re: Navigable Waterways

Postby LukeSwampWalker » Mon Jan 14, 2013 8:58 pm

I appreciate your stern answer. Do you care t elaborate on why it is not a "navigable waterway"?
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Re: Navigable Waterways

Postby cannon » Mon Jan 14, 2013 9:49 pm

LukeSwampWalker wrote:I appreciate your stern answer. Do you care t elaborate on why it is not a "navigable waterway"?


Because it lies within the borders of the state of Arkansas and is not specifically identified as a navigable waterway by the regional office of the Corps of Engineers in Memphis, Tennessee, which is the sole criteria for what is or is not a navigable waterway in this state.
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Re: Navigable Waterways

Postby cannon » Mon Jan 14, 2013 9:54 pm

And, for what it's worth, unless a public easement by prescription has been established upon the waterway, the factor considered by the corps for determining navigability is whether the stream is used in commerce, and barge traffic is usually the trigger for that factor. Sloughs generally won't support sustained barge traffic at low levels. Even did they would, they typically don't lead to commercial hubs. Think Mississippi, White, Black, and Arkansas Rivers, but not the Cache. Has to be a significant waterway.
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Re: Navigable Waterways

Postby LukeSwampWalker » Tue Jan 15, 2013 2:23 pm

Thanks for all the replies. That is what sounds right, but I had someone trying to convince me otherwise. I think they just had a case of wishful thinking! I really do appreciate you explaining it!
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Re: Navigable Waterways

Postby greenster » Tue Jan 15, 2013 4:27 pm

Cannon are you saying the Cache inst considered navigable waterway? IS there somewhere I can see a complete list of Navigable waterway's in Arkansas?
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Re: Navigable Waterways

Postby cannon » Tue Jan 15, 2013 5:01 pm

greenster wrote:Cannon are you saying the Cache inst considered navigable waterway? IS there somewhere I can see a complete list of Navigable waterway's in Arkansas?


Ironically, the Cache is the ONLY body of water in the state that is specifically designated as a NON-navigable waterway. Apparently, the corps was trying to make a point. You can see that list in the Memphis COE's office. Dunno exactly how you get your hands on it, as the one I reviewed was a reproduction handed out as part of a water law course many moons ago, but I do know that it is available there. If you are interested in the controversies that have arisen, read up on the Mulberry and the public's interest in recreational use on that stream.
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Re: Navigable Waterways

Postby greenster » Tue Jan 15, 2013 6:38 pm

Yeh the mulberry is public use..Good Times. But all the land is private owned.

The way I look at it. If It can be navigated year around for transportation in any sort of boat it is navigable. But I guess i'm the only one who thinks this way. Here is the list I have that should be navigable.

• Arkansas River • Bayou Bartholomew • Bayou LaGrue • Blackfish Bayou • Black River • L’Anguille River • Little Missouri River • Ouachita River • Saline River • St. Francis River • Sulphur River • Tyronza River • White River ..

But You will be Shot on Bayou Bartholomew Because people Think it's "THEIR" land. and all the associated SWAMPS on it. Worlds longest bayou It was once a MAJOR transportation avenue and the OLD OLD OLD Arkansas river. Now it's full of log jam's and household appliances. but still the most Diverse freshwater fish stream in NA
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Re: Navigable Waterways

Postby ducktrooper1 » Wed Jan 16, 2013 4:36 pm

If the Cache isn't navigable, then how come guides and everyone else use to access federal WMA's at Clarendon and below?
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Re: Navigable Waterways

Postby cannon » Wed Jan 16, 2013 6:27 pm

Couldn't say. I can tell you what law says regarding the property owners rights, but I dunno why people do what they do.


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Re: Navigable Waterways

Postby bcdavids » Sun Nov 10, 2013 6:30 pm

According to the case State v. McIlroy in 1980, streams used for recreation and not commerce are also considered Navigable. I think the master of law who posted must have missed that one.
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Re: Navigable Waterways

Postby cannon » Sun Nov 10, 2013 7:28 pm

bcdavids wrote:According to the case State v. McIlroy in 1980, streams used for recreation and not commerce are also considered Navigable. I think the master of law who posted must have missed that one.


Umm . . . No, he didn't. You'll note that the justices writing the majority opinion for that case were very careful to point out that it's holding was applicable ONLY to the mulberry river and the parties to that action. That would be why I mentioned it above, and that would be the case I was referring to. Arkansas continues to adhere to the federal test for navigability, with the singular exception of that specific case. Ultimately, the court has made it clear that they were leaving the matter to the legislature, which has failed to act on the matter.

Mcilroy was crafted intentionally to curtail a very real risk of injury to users on that river as a result of malicious actions on the part of landowners. It was not crafted to expand the rights of the public comprehensively across the state.
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Re: Navigable Waterways

Postby jdr » Mon Nov 11, 2013 10:40 am

And boom goes the dynamite.
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Re: Navigable Waterways

Postby greenster » Mon Nov 11, 2013 12:11 pm

kicks pow wow
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Re: Navigable Waterways

Postby steve-o » Mon Nov 11, 2013 6:54 pm

jdr wrote:And boom goes the cannon.


FIFY
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Re: Navigable Waterways

Postby jdr » Tue Nov 12, 2013 7:39 am

hah thank you sir. So.....how about this cool front?
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Re: Navigable Waterways

Postby cannon » Tue Nov 12, 2013 8:16 am

jdr wrote:hah thank you sir. So.....how about this cool front?



Brrrrrrrrrr!

Gonna make mechanic'n on the thrasher a tad miserable today.
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Re: Navigable Waterways

Postby jdr » Tue Nov 12, 2013 9:37 am

Put it off for couple days, it'll warm backup.
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Re: Navigable Waterways

Postby ByersFarm » Tue Nov 12, 2013 11:44 am

I enjoyed that so much that I showed to the wife Cannon.
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Re: Navigable Waterways

Postby cannon » Tue Nov 12, 2013 6:33 pm

ByersFarm wrote:I enjoyed that so much that I showed to the wife Cannon.


I'll be here all week.


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Re: Navigable Waterways

Postby nware14 » Sun Nov 17, 2013 11:55 am

[quote="greenster"] Here is the list I have.

• Saline River

Are you saying the Saline is Navigable? I talked to game and fish and they said it was not and that the land owners owned the bottom of the river bed so you couldn't put into an access and go down the river and hunt it. That's just what I was told though
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Re: Navigable Waterways

Postby greenster » Sun Nov 17, 2013 3:03 pm

nware14 wrote:
greenster wrote: Here is the list I have.

• Saline River

Are you saying the Saline is Navigable? I talked to game and fish and they said it was not and that the land owners owned the bottom of the river bed so you couldn't put into an access and go down the river and hunt it. That's just what I was told though



No it's not... Sorry I was just listing what I thought SHOULD be. Hell you can hop on the saleen river in Benton and travel all the way to the gulf. I'll fix my post.
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Re: Navigable Waterways

Postby rabbitdundied » Sun Mar 09, 2014 1:43 pm

You guys should take into account that one attorney's opinion does not equal fact or even mean he has an accurate interpretation of a law. In all cases I recommend being respectful and talking to land owners. You would be shocked at how many people never call a landowner to even ask for access. I did that very thing this year and the landowner advised me I was the first person to ever ask. You also need to understand the atty in this thread is a large landowner and has an extremely biased opinion on the subject which makes his council questionable at best.


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Re: Navigable Waterways

Postby cannon » Sun Mar 09, 2014 2:57 pm

rabbitdundied wrote:You guys should take into account that one attorney's opinion does not equal fact or even mean he has an accurate interpretation of a law. In all cases I recommend being respectful and talking to land owners. You would be shocked at how many people never call a landowner to even ask for access. I did that very thing this year and the landowner advised me I was the first person to ever ask. You also need to understand the atty in this thread is a large landowner and has an extremely biased opinion on the subject which makes his council questionable at best.


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Yeah, they know who I am. Most of em also know that I don't have any waterways, whether navigable or non-navigable, running through that land you mentioned. I don't have a dog in that fight, and I don't think anyone asked whether it was legal to jump a purple fence. Had they asked that, I certainly would have been biased. Not questionably, mind you, but biased, nonetheless.

I'm sorry that you're butthurt, Rabbit. Really, I'm so sorry.
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