# River access



## Bubbagon (Mar 8, 2010)

I always think this is an interesting dilemma. Both sides have valid points. 
I, of course, root for the guys in the water. I subscribe to the Federal statutes in place that keep navigable waters in the public trust. BUT, these landowners have also been sold, and pay taxes on something I believe they cannot own.

Tough situation. And one I'd like to see challenged in Ohio. Ohio has many "water trail" initiatives, yet the trespassing laws on those trails are not settled.
I wouldn't mind having my picture taken, getting arrested for trespassing, as I enjoy one of Ohio's newly designated water trails with my family.
http://www.washingtonpost.com/local...84d0-e25c-11e1-98e7-89d659f9c106_story_1.html


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## Salmonid (Apr 14, 2004)

Off the record, the laws will never change, first the State of Ohio will never give up tax dollars on the bottom of all those streams, second the state has fought for a hundred years to make the farmers think they are on there sides, if they make this change the farmers/landowners would revolt in ways unimaginable, third, while there are federal statutes that define a streams navagability and ownership, the state of Ohio chooses ( a loong time ago) to use its own definition which many states have chosen to do so, mostly because the states had to choose how it was defined long before the federal definitions were introduced. 

I agree that Id love to see some more access available but Im saying that nothing you do will or would ever change the way it is now. The stakes are just too big. 

Salmonid


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## Snakecharmer (Apr 9, 2008)

Msybe using taxes to pay each landowner $1000 per foot of frontage would loosen them up. Of course to be fair there should be a user tax, so how much would you be willing to pay?


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## Huz-yak (Jun 3, 2011)

This should not be much of an issue. Navigable waters have always been treated the same as airspace; I can fly over your house but I cannot land in your yard. It is also best to leave all of the bank and river bottom in private hands. Why should taxpayers pay money in order to allow relatively few people access a river? Why should you not pay to use something you do not own? Why should some hardworking person, with no interest in a particular river, have to pay extra taxes so that you can access a river for "free"? These landowners have a valid point. They are trying to protect a resource, one that you get to enjoy AT NO COST! Making all of this property accessible to the public will have the same result as always, the tragedy of commons.

If you want to fish a navigable river, have at it. If the land owner sues you for touching his bank or river bottom, good for him, shame on you.

As for these snobs complaining about having to hear or see river traffic, they can go pound sand. They bought the property knowing very well that the river was navigable. They are no less ridiculous than I would be to by a house next to an international airport and asking a judge to tell the airlines to stop making noise and flying over my yard.


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## crittergitter (Jun 9, 2005)

This article leaves out some details. It seems the central figure is being a jerk about things. It seems he is being obnoxious about it and antagonizing the landowners. Though, that might just be the slant of the writer. The article is not clear on if he gets out of his kayak and wades or not. If he does, then he is probably guilty of trespassing. Though, I am not exact on VA laws. Though, it seems as though they mirror our laws here in Ohio. If he is just floating by and fishing then there is no argument. He is not "on" the property. 

I do feel that this is something that should be determined by the states especially since they had to long before the Federal government decided to voice an opinion on such matters.


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## tanker593 (Jul 28, 2008)

I appreciate what these landowners are saying but I don't agree with them. I have an easement with a sidewalk which I must maintain by code. (I live on a corner lot) Can I kick people off my sidewalk? Can I set up a toll booth to charge people to walk on my sidewalk? No. Landowners must realize that there may be certain parts of their land that may be used by the public especially if the areas may benefit the community. 

We also don't want to get into a situation where a land owner believes they have the right to modify their land that affects the ecosystem because it's on their land. I understand there are rules against this but we all know there will be some guy who will push that at some point.


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## Bubbagon (Mar 8, 2010)

Huz-yak said:


> Why should taxpayers pay money in order to allow relatively few people access a river? Why should you not pay to use something you do not own? Why should some hardworking person, with no interest in a particular river, have to pay extra taxes so that you can access a river for "free"?


Have you ever heard of State Parks...Metro Parks...Lake Erie? You don't think taxes go towards maintaining those? What do you think the percentage of Ohioans who actually use them?

"_Why should you not pay to use something you do not own?_"....ummmm, we do own it. There's a Federal statute that holds ALL navigable waters in public trust.

Let's try a different scenario: 
I'm out on the Kokosing Water Trail with my family; just canoeing and enjoying a nice day....like the State of Ohio wants me to.
Technically, each time my 9 year old daughter's kayak scrapes the bottom, she's breaking the law. And I sure hope she never has to get out and pee...or she'd be breaking the law. And I sure hope there are no obstructions in the river the she needs to portage...or again, she's a law breaker.

There is virtually NO way for a law abiding citizen to enjoy ANY of Ohio's "Water Trails" (which BTW, they are already spending MILLIONS of dollars on) without breaking the law.
Period.

There is PLENTY of room for a law that would allow "normal" usage of the river, while removing the threat of trespassing and respecting the landowners.
So the argument I hear against that is that "normal usage" would be too difficult to police.
But the laws RIGHT now are nearly impossible to police. By the time any law enforcement shows up, the incident is long over and typically the trespasser gone.
Plus, right now river trespassing laws are more of a township to township thing, and are FAR from universal or consistent across the state.

A good, fair, consistent and statewide law would be WAY better than what we have now, and I believe would help alleviate landowner/trespasser disputes.


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## Bubbagon (Mar 8, 2010)

tanker593 said:


> We also don't want to get into a situation where a land owner believes they have the right to modify their land that affects the ecosystem because it's on their land. I understand there are rules against this but we all know there will be some guy who will push that at some point.


Great point. 
I participated in a river clean up this past weekend. Let me tell you, what the landowners do to the river trumps anything a fisherman could do to it.
Take a float down the Darby from above Plain City to just below. HOLY CRAP!!! The landowners have no concept of maintaining a riparian corridor. They feel free to pump out or in the river whatever they feel like. They'll string barbed wire across the river, as part of their cow pasture. 

We report plenty of illegal dumping from landowners throughout the year. And if no one was floating down those rivers, most of it would go unnoticed.


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## Huz-yak (Jun 3, 2011)

Bubbagon said:


> Have you ever heard of State Parks...Metro Parks...Lake Erie? You don't think taxes go towards maintaining those? What do you think the percentage of Ohioans who actually use them?


I use them all the time. I don't think it is right that the state owns or controls them with the use of taxes. You are confused when you say "we" own something. If it is controlled by the state, then there is no owner. If "we" own it, then I would be very interested in selling my stake. But until I find my title I will continue to use them.


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## Wow (May 17, 2010)

Some thoughts to ponder................

The owner of the mountain top from which the water emanates, Does he own the water that passes from stream to stream forming the waterways? Should the landowners pay him a fee to keep it flowing? 

I imagine, in the 18th and 19th centuries, agreements were made and laws were passed to keep water flowing, for the obvious benefit to all towns and homesteads downstream. As a water source for human consumption, livestock and irrigation, as well as a mode of transportation. To stop the flow anywhere along the way, would constitute an act of war between clans or communities. This defines community as a sharing of rights and resposibilities. Doesn't it?

And in the current debate............

If I, or a member of my family is capsized by a tree fallen from a landowners property and death or injury occurs, Is the landowner liable for negligence? With rights come resposibilities, don't they?

I'm an avid yaker/canoeist, you know where I stand. --Tim


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## Huz-yak (Jun 3, 2011)

Wow said:


> Some thoughts to ponder................
> 
> The owner of the mountain top from which the water emanates, Does he own the water that passes from stream to stream forming the waterways? Should the landowners pay him a fee to keep it flowing?
> 
> ...


If the landowner upstream can economize the use of the flowing water, then he absolutely should have the right to stop it and use it. But what will he do with water? He cannot stop it forever and it is a rare case where someone would build a damn and release water in a way to intentionally harm his neighbors downstream. Someone will post an empirical case (Aswan comes to mind), but this is the exception. And there are cases where people up stream can be ruined (3 Gorges Dam) but I think these people have a legitimate tort claim as their land has been flooded. The same is the case where a damn is built and fails and floods/kills downstream(South Fork Dam, Johnstown, PA).

If I drive past your house and the wind blows your tree over on me as I pass, are you liable? Is the case of the river any different? If I trespass on your yard and the same thing happens, are you liable? If your tree falls over my fence and kills me as I am guzzling beer in my back yard, are you liable? I think only in the last case is there a legitimate claim although most would not agree.


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## Bubbagon (Mar 8, 2010)

Huz-yak said:


> If the landowner upstream can economize the use of the flowing water, then he absolutely should have the right to stop it and use it.


You are so far out of bounds..I don't even know where to start. 
I can't even IMAGINE the devastation if that mindset were allowed to flourish.
How about we just let the mega farms, CAFOs, and gas frackers use whatever river water they want? Let's just start with that and get back to me in about three weeks. (I really needed a sarcastic font for this last paragraph.)

I'll just say that I'm pleased that your opinions will never become law. I mean....it's just water. It's not like it's the foundation of all life or anything...


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## Huz-yak (Jun 3, 2011)

No one should use anything that they want, just what they own.

If a farm or gas company is using their own property which luckily has a flow, then this sounds like cheap and plentiful food and energy. If someone else has a better use for the resource, they will be able to simply buy it from the farmer or fracker. What are some examples of what it is that you fear would happen if someone were to utilize the water flowing on their own property? Power plants line our rivers and lakes. I know they produce thermal pollution, but it is not devastating. Without them we would revert to candles and wood furnaces.


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## Bubbagon (Mar 8, 2010)

Huz-yak said:


> If a farm or gas company is using their own property which luckily has a flow, then this sounds like cheap and plentiful food and energy. If someone else has a better use for the resource, they will be able to simply buy it from the farmer or fracker. What are some examples of what it is that you fear would happen if someone were to utilize the water flowing on their own property?


Wow...I assure you there are very specific laws around this. I was going to do a bunch of Goggling, but quite honestly, you're so far off the mark I'm not really interested in pasting a bunch of links no one will read.
Do your own research. Try Googling words like "fracking" "Drought" "Fort Worth" "Pennsylvania"
You'll see how the gas frackers are literally drying out wells, rivers, everything in sight...all the while in the midst of the worst drought in a very very long time.
In PA, frackers pull out 9.48 billion gallons of water every day...EVERY DAY!!! And they pull CLEAN drinking water. It got so bad in PA that they started "Recycling" the waste water from fracking and putting it "back". 
Ummmm....no thanks. Or at least not until you tell us your secret potion.

Try Googling anything about rivers in Cali, Arizona, Colorado, Wyoming...you'll find that there's a VERY delicate balance in who can "take" what water, and when. If everything was just a free for all, Arizona basically would have to move north.

The concept of letting anyone and everyone take whatever water they want, in whatever method they want is reckless to say the least. And heaven forbid they even TRY to put it back without oversight....God help us all.


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## Huz-yak (Jun 3, 2011)

Im not really talking about specific cases. Talking about wells running dry during a drought and blaming fracking is quite a unique example. The question is who owns the water? Taking the stance that we like pristine rivers and people need drinking water does not answer the question. These are lofty ideals that lead only to further conflict.


Outdoor Hub mobile, the outdoor information engine


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## Snakecharmer (Apr 9, 2008)

Huz-yak said:


> If the landowner *upstream can economize the use of the flowing water, then he absolutely should have the right to stop it and use it. * But what will he do with water? He cannot stop it forever and it is a rare case where someone would build a damn and release water in a way to intentionally harm his neighbors downstream. Someone will post an empirical case (Aswan comes to mind), but this is the exception. And there are cases where people up stream can be ruined (3 Gorges Dam) but I think these people have a legitimate tort claim as their land has been flooded. The same is the case where a damn is built and fails and floods/kills downstream(South Fork Dam, Johnstown, PA).


This ws done all the time in the 1800's .....I know two different places within 5 miles of my house that diverted / used the water for miils to grind grain and to power lumber mills. Google Gates Mills and Fowler's Mill.


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## Bubbagon (Mar 8, 2010)

If you guys can't understand the difference between the environmental impacts of using river water to turn a paddle wheel in the 1800s and pumping BILLIONS of gallons of water, then poisoning it...well, you're on your own. 
Do your research.


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## Huz-yak (Jun 3, 2011)

Taking water and using it or even releasing it in a re-usable form is one thing. Injection wells and releasing pollution into a flow are 100% illegitimate from a private property standpoint. In these cases, the polluter is contaminating the landowners property via the river or groundwater. I believe there is certainly a tort in this case. The frackers who frack at too shallow a depth or too aggressively, resulting in methane and oil in rural wells have committed crime and should be held responsible to make the landowners whole again; provide an alternate source of water for the landowner that meets or exceeds the quality of the well until the damage can be reversed, if ever.


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## Bubbagon (Mar 8, 2010)

You're difficult to follow, bro. You said:


Huz-yak said:


> What are some examples of what it is that you fear would happen if someone were to utilize the water flowing on their own property?


Then I pointed you towards DOZENS of specific examples of how frackers are pumping billions of gallons a day out of rivers.
But now you "don't" want examples?



Huz-yak said:


> Im not really talking about specific cases. Talking about wells running dry during a drought and blaming fracking is quite a unique example.


I did not suggest in any way that fracking was causing wells to dry up. We have a major league drought going on all over the country. 
So DUE to that drought, farmers, home owners, businesses...all have water restrictions placed on them so the drinking water can be assured. (Even guys with their own wells....as it's not like the well is self contained...it's just access to the water table.)
However, gas frackers are using SO much water out of rivers, that towns downstream are suffering...as they use that river water for their public drinking water.
And like I said, NO right minded person wants them "putting it back" when they're done.

Try this article to help illustrate my point:
http://www.motherjones.com/environment/2011/09/texas-drought-fracking-water


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## Bubbagon (Mar 8, 2010)

I'll gladly talk fracking all day with you, man....on anther thread.

This one is about laws around river access for outdoors men.


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## StuckAtHome (Apr 29, 2004)

What the frack you guys taking about ?lol

Sent from my DROID RAZR using Tapatalk 2


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## Huz-yak (Jun 3, 2011)

StuckAtHome said:


> What the frack you guys taking about ?lol
> 
> Sent from my DROID RAZR using Tapatalk 2


I think we got way off topic. I had to go back to the op to remember.


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## JamesT (Jul 22, 2005)

Huz-yak said:


> If the landowner upstream can economize the use of the flowing water, then he absolutely should have the right to stop it and use it. But what will he do with water? He cannot stop it forever and it is a rare case where someone would build a damn and release water in a way to intentionally harm his neighbors downstream.


Forgetting the "and release water in a way......" part....

Does anyone know of any tiny (definitely not navigable) creeks on private property that were dammed up years ago and are now honey holes?


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## Mushijobah (May 4, 2004)

It is legal (according to Ohio AG in 1980) to portage around areas where boat traffic is inpassable. That would mean (in my non lawyer opinion ) scraping of the bottom with a kayak is not trespassing, but is an allowable means of travel on a navigable stream. The AG opinion also gave the OK to fishing. So in this case, Bubba, your daughter is no criminal!

Also, it is stated that all stream bottoms in Ohio (minus Ohio, Erie, Muskingum) are owned by the adjacent landowner....except (yeah, I said it!!!) when a deed states otherwise. This is the case on many large rivers in Ohio, check it on your auditor's site and look up some deeds if any of you guys are curious about your favorite spots.

As far as fixing this problem, there could be an introduction of statutory law that would allow boaters more freedom on a river. Mooring, coming ashore to hunt, wading, could all be allowed.

I took a Water Law class at OSU for my graduate degree this past winter, it was great.

I have a good PDF to read in regards to water law in Ohio, but it exceeds the allowable attachment size.


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## Bubbagon (Mar 8, 2010)

montagc said:


> Mushijobah, can you read this and summarize for us? I found it while searching for something else, but it pertains to the river in this article.
> 
> http://scholar.google.com/scholar_c...Supp.+1079+(1982).&hl=en&as_sdt=2,18&as_vis=1


LOL!! Now there's homework?

In summary, the landowners challenged the navigability of the Jackson River....and lost. Fishermen and paddlers are PERFECTLY legal to use the river as it was meant to be used; despite the bickering from some wealthy DEVELOPERS and landowners.

Read the article carefully....the words aren't big, there are just many of them. I know I learned something.


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## Snakecharmer (Apr 9, 2008)

Bubbagon said:


> LOL!! Now there's homework?
> 
> In summary, the landowners challenged the navigability of the Jackson River....and lost. Fishermen and paddlers are PERFECTLY legal to use the river as it was meant to be used; despite the bickering from some wealthy DEVELOPERS and landowners.
> 
> Read the article carefully....the words aren't big, there are just many of them. I know I learned something.


Of course that's Virginia law which isn't applicable to Ohio....May as well look at a law case in Germany or France....


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## Bubbagon (Mar 8, 2010)

Snakecharmer said:


> Of course that's Virginia law which isn't applicable to Ohio....May as well look at a law case in Germany or France....


Ummmm, no it's not "Virginia Law".

A. I didn't post the link
B. This actual thread is about a case in Virginia, and how it may someday apply in Ohio.
C. You obviously didn't "read" the article...maybe a cursory glance? If you had you'd see all of the Federal case examples, probably 50+ examples ....
And here's the biggy:

D. Maybe Google what a "United States District Court" is, which is where this case was debated.
What the heck...I'll save you the trouble:

_The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters._

I feel dumber for even answering you....


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## streamstalker (Jul 8, 2005)

montagc said:


> He's the one who went and got all smarted up at OSU!


I haven't seen his degree...


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## Bubbagon (Mar 8, 2010)

montagc said:


> Here is a question that's been on my mind a while. From what I can find, the ACE recognizes GMR as a navigable water from its mouth on the Ohio River to 117 miles up. The way I understand it, that gives recreational users the right to use the riverbed and banks up to the seasonal water line. Is that the case?


You are now up to speed with my point.

If you were in a Federal court, you'd be perfectly legal to exercise those rights.
HOWEVER, each state, each county, each township looks at trespassing and river ownership rights differently.
SO, you'd probably get a trespassing ticket if you ended up in front of the wrong landowner. You could get a lawyer and fight it. Problem is, you'd have to challenge it all the way to a US District Court to win.

US law says you are fine.
State and local laws disagree with that.


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## backlashed (Mar 19, 2011)

Bubbagon said:


> This one is about laws around river access for outdoors men.


I'm one of those landowners. For me, it's never about access, it's about what you do and what you leave behind. Careless, thoughtless people ruin it for everyone. I've had people come up our creek and cut down trees, take stone from the banks and creek bottom for their stone walls and leave their garbage behind. Last winter some jerk decided it was a good idea to ride his ATV in the creek and into our yard. Imagine looking out your back door and someone you don't know has decided to have a pitch a tent in your back yard. 

The law is there to protect the landowner. Just ask, chances are, with a good introduction and a polite request the answer will be yes.

BTW Bubba I understand how you feel. I often see great looking creeks to fish and wade and wonder what's there. I have some research to do on a stream in Brown County to find who the landowners are so I can go out and ask if I can wade out there.


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