# Smallie fishing Saturday



## hoffman24 (Jan 26, 2011)

Thinking about going out for some smallies Saturday morning! It will be a little chilly but mostly sunny all day. Figured I would see if I can hook up with one of these pigs! Let me know if you are interested or shoot me a pm. Any tips are much appreciated


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## BigFish614 (Jan 27, 2011)

I was also thinking about going after some smallies on Saturday. I want to try some spots on tangy. Let me know if you wanna meet up and swap spit. 

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## MDBuckeye (Sep 29, 2009)

Just FYI, the Tangy was up and muddy yesterday afternoon.


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## streamstalker (Jul 8, 2005)

Only at 386 cfs in Worthington right now, but that is likely to shoot up after today: http://waterdata.usgs.gov/oh/nwis/uv?site_no=03226800


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## debard (Nov 9, 2011)

Has anyone seen what the darby looks like? I'm probably going to head that way on Saturday


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## hoffman24 (Jan 26, 2011)

MDBuckeye said:


> Just FYI, the Tangy was up and muddy yesterday afternoon.


Thanks for the update! I might have to look some where else then. Any recommendations??


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## hoffman24 (Jan 26, 2011)

debard said:


> Has anyone seen what the darby looks like? I'm probably going to head that way on Saturday


What area of the Darby do you fish? I have never been on the creek


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## Deazl666 (Mar 30, 2012)

hoffman24 said:


> What area of the Darby do you fish? I have never been on the creek


If the water level doesn't rise too much today I might hit it on Sunday and forgo the Mad since I'll be out there the following weekend with a group. I'm not going to get my hopes up though; I might just call it casting practice. 

There isn't a bad spot on the creek. The thing about the Darby, and this might be true of any smallie stream, but my experience is limited, is that it doesn't fish well this time of year, especially when it's been cold like it has been. There is only one impoundment and it's surrounded by private land, and owner won't let you near it, or, if you're on a kayak, he won't let you anchor up and fish it. 

That being said, I have spoken with guys on the stream who claim to catch some fish late fall to early spring. Personally, I'd like to low-jack some of these fish and see where they go during the winter. It's possible that a lot of them head for the Scioto where it's deeper. Apparently, smallies will travel up to 50 miles during the season.


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## MuskieDan (Nov 8, 2012)

I might be wrong, but I am pretty sure that if you're in a kayak and on the water, you can anchor wherever you please. He doesn't own the river, as long as you dont touch shore I think you would be legal. 


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## PARK92 (Apr 21, 2012)

in ohio the landowners own the land underneath the stream so therefore you cannot anchor or it is considered tresspassing


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## Bubbagon (Mar 8, 2010)

PARK92 said:


> in ohio the landowners own the land underneath the stream so therefore you cannot anchor or it is considered tresspassing


Show me where you read that.


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## PARK92 (Apr 21, 2012)

look it up on the dnr site. the owners of the land beside the stream own the land under the water, therefore, anchoring on it or walking through it is illegal. if there are 2 different landowners on either side of the stream they own the land to the center of the stream.


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## hoffman24 (Jan 26, 2011)

Deazl666 said:


> If the water level doesn't rise too much today I might hit it on Sunday and forgo the Mad since I'll be out there the following weekend with a group. I'm not going to get my hopes up though; I might just call it casting practice.
> 
> There isn't a bad spot on the creek. The thing about the Darby, and this might be true of any smallie stream, but my experience is limited, is that it doesn't fish well this time of year, especially when it's been cold like it has been. There is only one impoundment and it's surrounded by private land, and owner won't let you near it, or, if you're on a kayak, he won't let you anchor up and fish it.
> 
> That being said, I have spoken with guys on the stream who claim to catch some fish late fall to early spring. Personally, I'd like to low-jack some of these fish and see where they go during the winter. It's possible that a lot of them head for the Scioto where it's deeper. Apparently, smallies will travel up to 50 miles during the season.


Thanks I might just get out there and do some exploring. That's really the only way I am going to find them anyways.


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## Bubbagon (Mar 8, 2010)

PARK92 said:


> look it up on the dnr site. the owners of the land beside the stream own the land under the water, therefore, anchoring on it or walking through it is illegal. if there are 2 different landowners on either side of the stream they own the land to the center of the stream.


I have looked it up; and studied it ad nauseum.
That's not what it says.


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## acklac7 (May 31, 2004)




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## edlovereze (Mar 7, 2012)

To settle this. Point 1


https://ohiodnr.com/watercraft/laws/tabid/2726/default.aspx

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## Bubbagon (Mar 8, 2010)

Well, AJ, I have a fairly good idea of where your wading boots walk. Do you feel like you are tresspassing when you fish/wade?


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## PARK92 (Apr 21, 2012)

just called dnr division of watercraft. and the lady that answered told me i was spot on. IF the stream has private property on both sides you ARE NOT ALLOWED TO ANCHOR. call this number if you really want to hear it from someone that absolutely knows
614-265-6480, theyll tell you what i already know.


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## acklac7 (May 31, 2004)

Bubbagon said:


> Well, AJ, I have a fairly good idea of where your wading boots walk. Do you feel like you are tresspassing when you fish/wade?


Common now, I wasn't challenging your statement, just anticipating the obvious drama involved when it comes to debating Ohio's trespassing laws. Im pretty sure you know where I stand


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## acklac7 (May 31, 2004)

PARK92 said:


> just called dnr division of watercraft. and the lady that answered told me i was spot on. IF the stream has private property on both sides you ARE NOT ALLOWED TO ANCHOR. call this number if you really want to hear it from someone that absolutely knows
> 614-265-6480, theyll tell you what i already know.


I could care less what a random clerk @ the DNR says about the issue; you want my attention cite a Statue/Court Decision on the matter...


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## Bubbagon (Mar 8, 2010)

PARK92 said:


> just called dnr division of watercraft. and the lady that answered told me i was spot on. IF the stream has private property on both sides you ARE NOT ALLOWED TO ANCHOR. call this number if you really want to hear it from someone that absolutely knows
> 614-265-6480, theyll tell you what i already know.


Well first of all, that's not quite what you originally posted.
And I'm not interested in the phone lady's interpretation of land owner laws. I asked for you to show me where it states in Ohio law that:

" the owners of the land beside the stream own the land under the water, therefore, anchoring on it or walking through it is illegal. if there are 2 different landowners on either side of the stream they own the land to the center of the stream."

I'll give you a hint. It says this very clearly in the duck hunting regulations. As it pertains to duck hunting and placement of decoys on privately owned stream bottoms.
Anywhere else?


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## hoffman24 (Jan 26, 2011)

This is a thread about fishing. Not arguing about whats considered trespassing. Just wanted to see if anyone wanted to get out on the water saturday. Let's keep it friendly


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## Bubbagon (Mar 8, 2010)

This is just as much about fishing.

You started the thread looking for people to come along, now you're asking about locations. So you "went with the conversation". That's what tends to happen during something called a conversation.


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## acklac7 (May 31, 2004)

FYI the Scioto within Columbus City Limits (and possibly beyond) has a 10ft easement on either side of the bank. Property lines end at that easement. They do not extend into the River. I believe this goes for Alum/Blacklick/BigWalnut Creeks as well.


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## hoffman24 (Jan 26, 2011)

Bubbagon said:


> This is just as much about fishing.
> 
> You started the thread looking for people to come along, now you're asking about locations. So you "went with the conversation". That's what tends to happen during something called a conversation.


He also replied by saying the whole creek has good fishing. That is all I wanted to know. I didn't continue to ask for specific locations. I don't want anyones spot just a general idea of the creek. I have no problem with exploring a new river. Just wanted to see if anyone was interested in joining.


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## PARK92 (Apr 21, 2012)

ok so theres a spot of land with a stream right down the center of it thats max 3 ft deep. and theres a guy in a canoe anchored in the middle of the stream. thats illegal. someone said theres one good spot surrounded by private property.


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## hoffman24 (Jan 26, 2011)

acklac7 said:


> FYI the Scioto within Columbus City Limits (and possibly beyond) has a 10ft easement on either side of the bank. Property lines end at that easement. They do not extend into the River. I believe this goes for Alum/Blacklick/BigWalnut Creeks as well.


I have waded parts of Big Walnut & rocky fork that are private. And no one has ever gave me an issue. So I agree


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## acklac7 (May 31, 2004)

PARK92 said:


> ok so theres a spot of land with a stream right down the center of it thats max 3 ft deep. and theres a guy in a canoe anchored in the middle of the stream. thats illegal.


No, it is not. Read the Trespassing laws, then check the property lines on the Franklin County Auditors website.


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## Deazl666 (Mar 30, 2012)

I've always understood it to be that in Ohio the adjacent property owners own the stream bed in unnavigable streams, which means you can't legally anchor or wade. One of the guides at Mad River Outfitters told me that almost all the rivers and streams in Ohio are considered to be unnavigable, in the legal sense, not the common-sense sense. There was a recent article in either Bassmaster or In-Fisherman that addressed this very issue. It said Ohio was one of a handful of states that was behind the times on this. There are states in which the streams are clearly public. One of my Darby spots is definitely private, but that doesn't dissuade me in the least...


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## PARK92 (Apr 21, 2012)

yup^^^^^^^^


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## BigFish614 (Jan 27, 2011)

I believe he was more interested in the general quality of the stream and less interested in arguing about property laws. When he says "lets keep it friendly", it would take a pretty primative person to respond to that negatively. This is why I avoid Facebook. 
Mathew 5:18
"Blessed are the peacemakers, for they shall be called sons of God"


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## acklac7 (May 31, 2004)

Deazl666 said:


> I've always understood it to be that in Ohio the adjacent property owners own the stream bed in unnavigable streams, which means you can't legally anchor or wade. One of the guides at Mad River Outfitters told me that almost all the rivers and streams in Ohio are considered to be unnavigable, in the legal sense, not the common-sense sense. There was a recent article in either Bassmaster or In-Fisherman that addressed this very issue. It said Ohio was one of a handful of states that was behind the times on this. There are states in which the streams are clearly public. One of my Darby spots is definitely private, but that doesn't dissuade me in the least...


For the most part this is accurate. However, in order to be "trespassing" you must be informed, in some fashion, that you are actually on private property. It isn't just a cut-and-dry/open-and-shut case. Dropping an anchor/getting out of your yak and wading on a random stretch of the Scioto IS NOT ILLEGAL. It is only considered such when you have been fully _*notified*_ that you are on someone else land. Read the Trespassing statue.

Also note how the Franklin County Auditors website shows the property lines along the Scioto ending at the River, while the property lines along Alum Creek clearly extend to the middle of the stream (guess I was wrong about Alum having an easement). Again, it's not just an open-and-shut case when it comes to anchoring/wading, there's much more to it (City laws/ordinances/easements etc)

*Alum*











*Scioto*


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## imalt (Apr 17, 2008)

I thought you were also allowed to portage around any obstructions in a creek or river without it being tressapssing. I have waded a lot of private property and have never had a problem. I have always wondered when the river is high and floods into private ponds if it is legal to fish those areas if you never touch bottom. Mainly gravel pits.


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## OnTheFly (Jul 30, 2010)

Lol, I was wondering why there were 32 replies on a thread about smallie fishing this weekend. As for Ohio's laws I don't agree with them, so I wouldn't say i follow them to a T. So sue me!!! Also, few people actually have no trespassing signs so you can get away with it until they yell at you. I normally pick up trash as I go anyways and tell em ok, i'll just leave the trash I found here too. Gets em to lighten up a bit most of the time. 

Then again some people just suck, as a little kid learning to fly-fish I used to constantly get kicked out of this pond that is my parents neighborhood that a whole bunch of terrible mean old people live around. Let's just say I gave a few of them some payback in my more mischievous years, and still go on quick 5 minute missions too steal some gills for catfish bait during the summer. I love seein them look out their windows at me and then I just hope in the car and take off. BTW I am not even on any of these people's property there is a part of the road where there are no houses and I get em there, so please skip the lecture. Anyways I just plain don't care.


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## Bubbagon (Mar 8, 2010)

AJ's in the wheelhouse.

Think about it for a second. IF the law was really enforced the way it's being described in this thread, then every canoe livery in the state is going to have to shut down because their canoes are going to scrape bottom, paddles are going to hit rocks, kids are going to have to get out and pee. In fact, fishing rivers in general would be tresspassing. If an anchor hitting bottom is tresspassing, then so is a jig on the end of your fishing line.


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## hoffman24 (Jan 26, 2011)

OnTheFly said:


> Lol, I was wondering why there were 32 replies on a thread about smallie fishing this weekend. As for Ohio's laws I don't agree with them, so I wouldn't say i follow them to a T. So sue me!!! Also, few people actually have no trespassing signs so you can get away with it until they yell at you. I normally pick up trash as I go anyways and tell em ok, i'll just leave the trash I found here too. Gets em to lighten up a bit most of the time.
> 
> Then again some people just suck, as a little kid learning to fly-fish I used to constantly get kicked out of this pond that is my parents neighborhood that a whole bunch of terrible mean old people live around. Let's just say I gave a few of them some payback in my more mischievous years, and still go on quick 5 minute missions too steal some gills for catfish bait during the summer. I love seein them look out their windows at me and then I just hope in the car and take off. BTW I am not even on any of these people's property there is a part of the road where there are no houses and I get em there, so please skip the lecture. Anyways I just plain don't care.


I have a pond I fish back home that is private in a neighborhood. But instead of bluegills, there is 6 pound LMB . The man who runs the neighborhood knows me but still tends to kick me out... I go back anyways


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## acklac7 (May 31, 2004)

Bubbagon said:


> AJ's in the wheelhouse.


Got too much sun yesterday, has me all psyched up for Spring


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## Deazl666 (Mar 30, 2012)

acklac7 said:


> For the most part this is accurate. However, in order to be "trespassing" you must be informed, in some fashion, that you are actually on private property. It isn't just a cut-and-dry/open-and-shut case. Dropping an anchor/getting out of your yak and wading on a random stretch of the Scioto IS NOT ILLEGAL. It is only considered such when you have been fully _*notified*_ that you are on someone else land. Read the Trespassing statue.
> 
> Also note how the Franklin County Auditors website shows the property lines along the Scioto ending at the River, while the property lines along Alum Creek clearly extend to the middle of the stream (guess I was wrong about Alum having an easement). Again, it's not just an open-and-shut case when it comes to anchoring/wading, there's much more to it (City laws/ordinances/easements etc)
> 
> ...


I think this is because the Scioto is considered "navigable." That's why it gets an exemption. The article in the magazine was the result of a prominent angler who got in trouble because he did not heed repeated warnings. The owner took pictures and sent them to authorities. Also, I think you could contribute to the angler's legal fund, too.


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## Bubbagon (Mar 8, 2010)

You guys know I've beaten this drum for years. I've checked into just about every way to go about affecting a change in the "law".
Essentially, at the end of the day the only way to get anything to happen would be to go ahead and get arrested for tresspassing and simply keep challenging it higher and higher.
I'm pretty close to being ready to do that.


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## imalt (Apr 17, 2008)

Has anyone on here ever actually received a tresspass ticket for wading in a river or creek? It seems like the only way you could get a ticket would be if there was a sign posted or the landowner told you it was private property and you ignored them.


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## acklac7 (May 31, 2004)

imalt said:


> Has anyone on here ever actually received a tresspass ticket for wading in a river or creek?


Fishintechnician got hit with one, complete BS too, ended up getting it dropped to "fishing without permission" WHICH ISN'T EVEN A VALID OFFENSE (Thread was locked before I (nor anyone else) could bring that point up...


A good read none the less.

http://www.ohiogamefishing.com/community/showthread.php?t=147899



imalt said:


> seems like the only way you could get a ticket would be if there was a sign posted or the landowner told you it was private property and you ignored them.


You have to be somehow _notified_ the land you are on is private. Notification can take many different forms (verbal warning, posted sings, fencing, etc). Read fishintechnician's trespassing/ticket thread, the full trespassing statue is posted on the second or third page by your's truly , i'll go ahead and post it again here.

§ 2911.21. Criminal trespass.

(A) No person, without privilege to do so, shall do any of the following:

(1) *Knowingly* enter or remain on the land or premises of another;

(2) *Knowingly* enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard;

(3) Recklessly enter or remain on the land or premises of another,* as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;*
(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either. (B) It is no defense to a charge under this section that the land or premises involved was owned, controlled, or in custody of a public agency.
(C) It is no defense to a charge under this section that the offender was authorized to enter or remain on the land or premises involved, when such authorization was secured by deception.
(D) Whoever violates this section is guilty of criminal trespass, a misdemeanor of the fourth degree.
(E) As used in this section, "land or premises" includes any land, building, structure, or place belonging to, controlled by, or in custody of another, and any separate enclosure or room, or portion thereof.


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## Mushijobah (May 4, 2004)

Ignore this, especially acklack


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## acklac7 (May 31, 2004)

Mushijobah said:


> There was a guy who received one at prospect dam. I forget his username. The case was dismissed for one reason or another.
> 
> posted using Outdoor Hub Campfire


beat you to the punch my friend.


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## Mushijobah (May 4, 2004)

Actually the hunting without permission acts as the fishing without permission. Kinda odd but the language includes fish. Thanks for remembering who it was!!

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## Mushijobah (May 4, 2004)

acklac7 said:


> beat you to the punch my friend.


I never made that post....libel!!!! Lololol

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## acklac7 (May 31, 2004)

Mushijobah said:


> Actually the hunting without permission acts as the fishing without permission. Kinda odd but the language includes fish. Thanks for remembering who it was!!
> 
> posted using Outdoor Hub Campfire


This is news to me, I saw nothing pertaining to fishing last time I checked the statue, it's been a few years since i've checked though.


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## acklac7 (May 31, 2004)

No mention of fish/fishing, although there may be some case law im missing?

*1533.17 Hunting without permission.*
(A) No person shall hunt or trap upon any lands, pond, lake, or private waters of another, except water claimed by riparian right of ownership in adjacent lands, or shoot, shoot at, catch, kill, injure, or pursue a *wild bird*, *wild waterfowl*, or *wild animal* thereon without obtaining written permission from the owner or the owner&#8217;s authorized agent.

(B) Except as otherwise provided in this division, the owner, lessee, renter, or occupant of any lands, pond, lake, or private waters upon which a person violates division (A) of this section is not liable in damages to any person in a civil action for injury, death, or loss to person or property that arises during or incidental to the violation. For the purposes of this division, a finding that a person violated division (A) of this section is not dependent upon the person being charged with or convicted of a violation of division (A) of this section. This division does not apply to civil claims based upon alleged willful or wanton misconduct or intentionally tortious conduct of the owner, lessee, renter, or occupant. This division does not create a new cause of action or a substantive legal right against the owner, lessee, renter, or occupant, and does not affect any immunities from civil liability or defenses established by another section of the Revised Code or available at common law, to which the owner, lessee, renter, or occupant may be entitled under circumstances not covered by this section.

(C) A person who obtains the permission required under division (A) of this section shall carry it with the person at all times during which the person is engaged in an activity for which the permission is required and shall exhibit it upon request of a wildlife officer, constable, sheriff, deputy sheriff, police officer, other law enforcement officer, or the owner of the lands, pond, lake, or private waters on which the person is hunting or trapping or the owner&#8217;s authorized agent.
Effective Date: 06-01-1998


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## Mushijobah (May 4, 2004)

acklac7 said:


> No mention of fish/fishing, although there may be some case law im missing?
> 
> *1533.17 Hunting without permission.*
> (A) No person shall hunt or trap upon any lands, pond, lake, or private waters of another, except water claimed by riparian right of ownership in adjacent lands, or shoot, shoot at, catch, kill, injure, or pursue a *wild bird*, *wild waterfowl*, or *wild animal* thereon without obtaining written permission from the owner or the owner&#8217;s authorized agent.
> ...


Catching a wild animal

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## MuskieDan (Nov 8, 2012)

If this section of stream has such good fishing, and you can't "legally" anchor to the bottom, you just get yourself 1000 feet of paracord and attach it to your anchor line ([ame="http://www.amazon.com/Rothco-550lb-Type-Nylon-Paracord/dp/B00664KXGA"]Amazon.com: Rothco 550lb. Type III Nylon Paracord: Sports & [email protected]@[email protected]@http://ecx.images-amazon.com/images/I/[email protected]@[email protected]@41CKOVg-Q2L[/ame]), anchor upstream outside this prick's property, and let him watch you slowly drift down to your spot with both middle fingers out. That'll really make him happy, that and you ripping a 4 pound smallie off of "his property" while he yells at you for trespassing. 
Realistically I doubt this would work, but in my head-movies it pans out wonderfully. Please record it if you try.


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## acklac7 (May 31, 2004)

Mushijobah said:


> Catching a wild animal


This isn't directed towards you, but thats a bunch of crap.







Read the law, it's blatantly obvious whom ever drafted it intentionally left out fishing, nor any mention of fish (After all it is a _hunting_ law). How many times have you heard of a fish being referred to as an "Animal"?.







Read the last few sentences of the statue, note how they specifically reference those who are "hunting or trapping". I'd love to see some case history of past charges involving anglers.


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## Mushijobah (May 4, 2004)

acklac7 said:


> This isn't directed towards you, but thats a bunch of crap.
> 
> 
> 
> ...


I don't much understand it either, but ODNR gonna do what they gonna do. One would think they'd ammend it and make it more clear.

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## gerb (Apr 13, 2010)

question: say you arent anchored, but you are using a jig or bottom bait of some sort, something that rests on the bottom of the creek...would that somehow be considered an "anchor"?


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## Deazl666 (Mar 30, 2012)

gerb said:


> question: say you arent anchored, but you are using a jig or bottom bait of some sort, something that rests on the bottom of the creek...would that somehow be considered an "anchor"?


Only if you're snagged.


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## MuskieDan (Nov 8, 2012)

gerb said:


> question: say you arent anchored, but you are using a jig or bottom bait of some sort, something that rests on the bottom of the creek...would that somehow be considered an "anchor"?


Perhaps if you carry a muskie rod and a 16oz bull dawg and just drag that along the bottom while you cast, you could anchor yourself and get away with saying you're muskie fishing. Just spitballing here.


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## Fish Slayer (Mar 6, 2007)

So much for smallies on Saturday, or something interesting like how far does a smallie travel for wintering if there's no really deep parts in a stream. I never knew of anyone fishing for smallies in the winter in central Ohio, or if they do much good if they do fish for them. I've always fished for saugeye/crappie outside the warm months. I have friends who catch a largemouth here and there when it's cold out, but I've never tried that either. I have caught a really nice cat up through December though!


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## Bubbagon (Mar 8, 2010)

gerb said:


> question: say you arent anchored, but you are using a jig or bottom bait of some sort, something that rests on the bottom of the creek...would that somehow be considered an "anchor"?


It's not considered to be an "anchor", but the landowner could press the matter and you're bottom bait would be legally looked at just as if it was your anchor, paddle, foot, etc...

And Fish Slayer, plenty of us chase smallies all year. Like many fish, way low numbers this time of year, but the ones you catch are typically memorable.
We have thread going right now on Winter Fishing in the Kayak forum.


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## Fish Slayer (Mar 6, 2007)

Thanks bubbagon, I might try it, as I am an avid smallie addict the rest of the year.


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## StuckAtHome (Apr 29, 2004)

Ok, I'll bite

Ohio law goes back to English common law,riparian rights. Basically the landowners have all the rights

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## StuckAtHome (Apr 29, 2004)

Problem is as I understand is we have certain commerce rights to waterways that can be used to transport goods, the rivers themselves need to be tagged as navigable by the Ohio lawmakers, which none have. A few cases have won court
Cases that recreation use can be the same right as commerce. What we really need is a high profile case and win, which will take years and much $$$$. 

Nobody is totally sure of the law, it's very vague, and the law will back the landowners, which means bad news for us.
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## StuckAtHome (Apr 29, 2004)

Definition of &#8220;Navigable Waters&#8221;: Ohio law treats rivers and Lake Erie differently.
Early Ohio cases construed the England-derived common law strictly, as to give the state title only to tidal
waters &#8211; those influenced by the ebb and flow of the tide. Gavit&#8217;s Adm&#8217;rs v. Chambers, 3 Ohio 495, 496-97 (Ohio
1828); Blanchard&#8217;s Lessee v. Porter, 11 Ohio 138, 142-43 (Ohio 1841). Nevertheless, for purposes of the public
trust doctrine in streams and rivers, Ohio courts adopted the &#8220;navigable in fact&#8221; test fairly early. Hickok v. Hine, 23
Ohio 523, 527-28 (Ohio 1872).
While the courts&#8217; interpretation of &#8220;navigable in fact&#8221; initially tracked the federal navigation test, id., the
Ohio courts have also been comfortable with a &#8220;gradually changing concept of navigability. Coleman v. Schaeffer,
126 N.E.2d 444, 445 (Ohio 1955). As a result, since at least 1955 the Ohio courts have progressively expanded that
test so that now, any river or stream that supports recreational uses will be considered navigable. Id. at 445-47
(indicating that recreational boating makes a river navigable); Mentor Harbor Yachting Club v. Mentor Lagoons,
Inc., 163 N.E.2d 373, 375 (Ohio 1959) (noting that &#8220;naturally navigable&#8221; waters are public waters and that boating
for recreation and pleasure count); State ex rel. Brown v. Newport Concrete Co., 336 N.E.2d 453, 455-457 (Ohio
App. 1975) (tracing the evolution of the test from federal law and determining that because the Little Miami River
was in fact used for recreational purposes, &#8220;the state of Ohio holds the waters of the Little Miami River in trust for
the people of Ohio.&#8221. Moreover, rivers made navigable by human effort and declared to be navigable by the
legislature will be treated as &#8220;navigable&#8221; rivers. Guthrie v. McConnell, 1859 WL 4442, at *2-*3 (Ohio Com. Pleas
1859); Mentor Harbor, 163 N.E.2d at 375.
In contrast, Lake Erie is treated as though it were a tidal water. East Bay Sporting Club v. Miller, 161 N.E.
12, 13 (1928); Winous Point Shooting Club v. Slaughterbeck, 117 N.E. 162, 164 (Ohio 1917); Bodi v. Winous Point
Shooting Club, 48 N.E. 944, 944 (Ohio 1897). The establishment of the public trust doctrine in Lake Erie followed
naturally from the Supreme Court&#8217;s decision in Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892). State v.
Cleveland & Pittsburgh R. Co., 113 N.E. 677, 680-81 (Ohio 1916). &#8220;It is clear that the trust doctrine of state control
over the submerged lands of Lake Erie and its bays from the beneficial ownership of the public, which originated in
England and has been reinforced in this country by judicial decision, has existed in this state since Ohio was
admitted to the Union in 1803.&#8221; Thomas v. Sanders, 413 N.E.2d 1224, 1228 (Ohio App. 1979).

Rights in the &#8220;Navigable Waters&#8221;: Because inland &#8220;western&#8221; rivers were not affected by the ebb and flow of the
tide, riparian landowners hold title to the middle of navigable rivers. Gavit&#8217;s Adm&#8217;rs, 3 Ohio at 497-98; Blanchard&#8217;s
Lessee, 11 Ohio at 143-44; Lamb v. Rickets, 11 Ohio 311, 315 (Ohio 1842); Walker v. Board of Public Works, 16
Ohio 540, 543-44 (Ohio 1847); Day v. Pittsburgh, Youngstown & Chicago R.R. Co., 7 N.E. 528, 534-35 (Ohio
1886); State ex rel. Anderson v. Preston, 207 N.E.2d 664, 666 (Ohio App. 1963); State ex rel. Brown v. Newport
Concrete Co., 336 N.E.2d 453, 455 (Ohio App. 1975).
Nevertheless, the public has rights in navigable rivers and lakes even though the beds are privately owned.

State ex rel. Brown, 336 N.E.2d at 455-457 (noting that even though beds f navigable rivers are privately owned, the
public has a right of navigation in the waters). Moreover, the public trust doctrine applies to &#8220;all legitimate uses, be
they commercial, transportational, or recreational.&#8221; Id. at 457-58; see also Thomas v. Sanders, 413 N.E.2d 1224,
1231 (Ohio App. 1979) (holding that the public has the traditional rights, including fishing and navigation, in
navigable lakes). The riparian owner&#8217;s title to the subaqueous soil under a navigable stream is subject to these
public uses. State ex rel. Brown v. Newport Concrete Co., 336 N.E.2d 453. 455 (Ohio App. 1975). However, the
public is not entitled to access the water over private land. Pollock v. Cleveland Ship Building Co., 47 N.E. 582,
583-84 (Ohio 1897). Moreover, the public has no rights to boat upon or fish in nonnavigable lakes and rivers.

Akron Canal & Hydraulic Co. v. Fontaine, 50 N.E.2d 897, 901 (Ohio App. 1943) (citing Lembeck v. Nye, 24 N.E.

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## StuckAtHome (Apr 29, 2004)

From odnr

http://www.dnr.state.oh.us/water/pubs/fs_st/stfs02/tabid/4158/Default.aspx

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## StuckAtHome (Apr 29, 2004)

http://www.nationalrivers.org/us-law-who-owns.htm

This is excellent reading, good source.



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## StuckAtHome (Apr 29, 2004)

Going by the last link, there is a high water mark that is federal land regardless of what deeds show, not sure what if any uses we can use or walk on such lands. States cannot overrule federal laws, and kayak and fishing allowed, with court cases. Also reading all the material, no guidelines to judge navigable, if you can reasonably float it, it is navigable by that means. Now wading not sure, but if you go by federal"easement" I don't see why not, unless fair use is by navigation by some craft.

Think I'll bookmark these links and if I ever get called out on the river I might sound a little legal dangerous to talk my way out of it.lol

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## StuckAtHome (Apr 29, 2004)

I love this topic, can't you tell.

Might float later this week, sort of back on topic...

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## Atwood (Sep 6, 2005)

If you don't own the land your on then you are probably trespassing. I've went through this problem for years on a couple local creeks because there's always one Dbag who thinks he owns the world. On the other hand, if idiots would quit littering and acting like they own the spots they're fishing, then we wouldnt have so many Dbag landowners.


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## shanewolfe02 (Dec 7, 2012)

i was under the understanding if it was navigable by boat/canoe no one owned it?seems like a lot of tributaries would no longer be available to all of us.


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## StuckAtHome (Apr 29, 2004)

If that was true, how do canoe liveries operate legally? They surely don't own the land the entire length of the floats they offer, just have rights do the access points. Another point is the water trails, like kokosing, the state owns several access points along the river, but private land owns the rest, but we have the right to float on the private part, even though reading the law it's very hard to make out. 



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## Deazl666 (Mar 30, 2012)

I "trespassed" yesterday on a thousand yard stretch of river (both sides), and felt great about it. 

I want a law in Ohio that establishes a public easement on either side of any creek, stream, or river that is fishable, or meets an average minimum width, and that said easement will be proportional with the size of the creek, stream, or river, ranging from a minimum of five to a maximum of twenty feet. I also want the law to establish that access directly to and from a creek, stream, or river can not be prevented or otherwise prohibited on property that abuts a creek, stream, or river, and that said owners shall maintain access to said creek, stream, or river at all times, by, at a minimum, provision of a footpath. Finally, I want the law to establish that the easement notwithstanding, the creek beds, stream beds, and river beds shall be forever and henceforth considered "public."


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## imalt (Apr 17, 2008)

Deazl666 said:


> I "trespassed" yesterday on a thousand yard stretch of river (both sides), and felt great about it.
> 
> I want a law in Ohio that establishes a public easement on either side of any creek, stream, or river that is fishable, or meets an average minimum width, and that said easement will be proportional with the size of the creek, stream, or river, ranging from a minimum of five to a maximum of twenty feet. I also want the law to establish that access directly to and from a creek, stream, or river can not be prevented or otherwise prohibited on property that abuts a creek, stream, or river, and that said owners shall maintain access to said creek, stream, or river at all times, by, at a minimum, provision of a footpath. Finally, I want the law to establish that the easement notwithstanding, the creek beds, stream beds, and river beds shall be forever and henceforth considered "public."


I was with you until you said that land owners should build a footpath for me to tresspass thru their property. If I am wading in the creek or river and gained access to it thru a public spot then I think I should be ok. But I don't expect anyone to cut me a trail to cut thru their backyard. That might be a little over the top.


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## StuckAtHome (Apr 29, 2004)

I did the wading thing for years, always tried to stay off private property, stay in the river so hard to dislike your liking trespassing. Always entered and exit on public, don't think we should have any right on someone's else's property. It would be nice to use the river and stay off their land, but I doubt it will ever happen here. Utah passed some great laws concerning stream use, we could use a complete rewrite here.

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## Govbarney (Jan 3, 2011)

Deazl666 said:


> I "trespassed" yesterday on a thousand yard stretch of river (both sides), and felt great about it.
> 
> I want a law in Ohio that establishes a public easement on either side of any creek, stream, or river that is fishable, or meets an average minimum width, and that said easement will be proportional with the size of the creek, stream, or river, ranging from a minimum of five to a maximum of twenty feet. I also want the law to establish that access directly to and from a creek, stream, or river can not be prevented or otherwise prohibited on property that abuts a creek, stream, or river, and that said owners shall maintain access to said creek, stream, or river at all times, by, at a minimum, provision of a footpath. Finally, I want the law to establish that the easement notwithstanding, the creek beds, stream beds, and river beds shall be forever and henceforth considered "public."


 I love the idea of a public easement on all waterways because it would help to prevent phosphate run off into Lake Erie by preventing farmers from growing their crops right up to the stream bed., and allowing the natural phosphate absorbing plants to grow alongside the stream. 

The part about foot-ways and allowing john Q public to trample over peoples private property to get to a stream I would not support however.


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## Bubbagon (Mar 8, 2010)

Deazl666 said:


> I "trespassed" yesterday on a thousand yard stretch of river (both sides), and felt great about it.
> 
> I want a law in Ohio that establishes a public easement on either side of any creek, stream, or river that is fishable, or meets an average minimum width, and that said easement will be proportional with the size of the creek, stream, or river, ranging from a minimum of five to a maximum of twenty feet. I also want the law to establish that access directly to and from a creek, stream, or river can not be prevented or otherwise prohibited on property that abuts a creek, stream, or river, and that said owners shall maintain access to said creek, stream, or river at all times, by, at a minimum, provision of a footpath. Finally, I want the law to establish that the easement notwithstanding, the creek beds, stream beds, and river beds shall be forever and henceforth considered "public."


Saying "henceforth" and "said owners" and a bunch of legal speak isn't going to make it happen.
This is my pet project. I've studied this a BUNCH, bunch, bunch. I spoke to the state supervisor of enforcement about this last week for an hour.

Here's the deal. The ONLY way this law even gets looked at, not just changed but even looked at seriously, would be if one of us gets arrested for tresspassing and then challenges it all the way to the state supreme court.
Period.
What a person needs is a bucket full of pees and vinegar, and the support of an environmental group with a legal fund. Anything short of that is just a bunch of dudes on a message board waxing poetic.
Frustrating.


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## Deazl666 (Mar 30, 2012)

imalt said:


> I was with you until you said that land owners should build a footpath for me to tresspass thru their property. If I am wading in the creek or river and gained access to it thru a public spot then I think I should be ok. But I don't expect anyone to cut me a trail to cut thru their backyard. That might be a little over the top.


I wouldn't be trespassing, it would be a passthrough and you could exempt rural homesteads (i.e. your typical house with a huge front yard on a country road). The whole point would be to provide some access to a river that is otherwise inaccessible. Think about it, what's the point of making the rivers public if you can't reach them. You can also strictly regulate use of the footpaths to protect property owners rights. I really don't think it's that off the wall...


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## imalt (Apr 17, 2008)

Deazl666 said:


> I wouldn't be trespassing, it would be a passthrough and you could exempt rural homesteads (i.e. your typical house with a huge front yard on a country road). The whole point would be to provide some access to a river that is otherwise inaccessible. Think about it, what's the point of making the rivers public if you can't reach them. You can also strictly regulate use of the footpaths to protect property owners rights. I really don't think it's that off the wall...


I see what you are saying. But having to walk or float a good distance is what makes some spots special. If there was a path every 50 yards or whatever the distance between access points would be to get to the river every worm dunker would be out there and the river would be trashed. Most ponds are no tresspassing for this reason I would hate to see the rivers and creeks turn into the same garbage pile some of the ponds I used to fish turned into.


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## claytonhaske (Apr 16, 2010)

imalt said:


> I see what you are saying. But having to walk or float a good distance is what makes some spots special. If there was a path every 50 yards or whatever the distance between access points would be to get to the river every worm dunker would be out there and the river would be trashed. Most ponds are no tresspassing for this reason I would hate to see the rivers and creeks turn into the same garbage pile some of the ponds I used to fish turned into.


Nailed it!!!!!


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## Deazl666 (Mar 30, 2012)

imalt said:


> I see what you are saying. But having to walk or float a good distance is what makes some spots special. If there was a path every 50 yards or whatever the distance between access points would be to get to the river every worm dunker would be out there and the river would be trashed. Most ponds are no tresspassing for this reason I would hate to see the rivers and creeks turn into the same garbage pile some of the ponds I used to fish turned into.


I agree with that. Still, I walk through a sliver of front yard to get to my spot on the Clearfork. I've knocked on the owner's door five times in the last few years to ask them for permission. But they never answer the door. I'm always uneasy when I cut through, but there is no other way nearby to get into the river.


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## Deazl666 (Mar 30, 2012)

Bubbagon said:


> Saying "henceforth" and "said owners" and a bunch of legal speak isn't going to make it happen.
> This is my pet project. I've studied this a BUNCH, bunch, bunch. I spoke to the state supervisor of enforcement about this last week for an hour.
> 
> Here's the deal. The ONLY way this law even gets looked at, not just changed but even looked at seriously, would be if one of us gets arrested for tresspassing and then challenges it all the way to the state supreme court.
> ...


Did you ever meet with a state legislator? Another route is to create group (or identify an existing group that would support your initiative) and work with a sympathetic member of the House or Senate of the majority party to see if they would be willing to carry the bill. (This is my line of work so I know it can be effective. I personally witnessed what remains of Ohio's commercial fishing industry have a direct impact on administrative rule regarding walleye limits during Senate hearings back in 1999. The officials at the Statehouse tend to react when people actually show up and testify.)


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## Mr. A (Apr 23, 2012)

Deazl666 said:


> I agree with that. Still, I walk through a sliver of front yard to get to my spot on the Clearfork. I've knocked on the owner's door five times in the last few years to ask them for permission. But they never answer the door. I'm always uneasy when I cut through, but there is no other way nearby to get into the river.


You minimized and mislabeled your past few posts. Say it like it is. For instance, I'll transcribe the piece above:

[Whatever. I tresspass to get to my spot. I've failed to get proper permission. I feel kinda guilty breaking the law but hey, I want what I want, know what I mean. Besides, if I didn't trespass I'd have to do some work to respect other peoples property like the rest of you schmucks.]

Seriously, it's mentalities like what you've shown here that give the rest of us a bum reputation. The fact that you defend it looking for someone here to validate your actions at least let's me know that while you don't care you at least know it's not right.....

Mr. A

(2013)
SMB: 0 LMB: 0 
Catfish: 0 Bluegill: 0 
Other: 0


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## Deazl666 (Mar 30, 2012)

Your personal attack is uncalled for and way out of line. I did not call you or anyone else here a schmuck (nor did I think it) and was only trying to partake in a conversation on a topic that interests me. I respect private property 95 percent of the time. And like I said, I knocked on the owner's door several times. Put yourself in my shoes: Would you turn your car around and drive back to Columbus, go fish the spots where there are a hundred other guys, or would you tiptoe through twenty yards of grass to get to the river? (This spot was easily accessible 15 years ago but has since been overrun by poison ivy on all sides.) Besides, I merely used that as an example of how stream access can be unreasonably restricted to the public. Trust me, if there was any other way to get into this stretch of the Clearfork I would take it, but there's not. 

My personal opinion is that restricting access to bodies of water through private ownership of the land surrounding it is an elitist, antiquated notion, and the sooner its gone the better. There are better ways of protecting streams like the Darby than to hide it from public view. 

And what about you? Have you ever snuck into a private pond? Waded a stretch of river or stream that was not on public land?


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## Bubbagon (Mar 8, 2010)

Deazl666 said:


> Did you ever meet with a state legislator? Another route is to create group (or identify an existing group that would support your initiative) and work with a sympathetic member of the House or Senate of the majority party to see if they would be willing to carry the bill. (This is my line of work so I know it can be effective. I personally witnessed what remains of Ohio's commercial fishing industry have a direct impact on administrative rule regarding walleye limits during Senate hearings back in 1999. The officials at the Statehouse tend to react when people actually show up and testify.)


Legislators won't touch it with a 10 foot pole. It's just not that important of an issue for them to risk peesing off their base of landowners and agricultural community. Farmers would, rightfully so, give these kinds of changes a big thumbs down. And we're (the people who would want river laws expanded) a very small minority.


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## Deazl666 (Mar 30, 2012)

Bubbagon said:


> Legislators won't touch it with a 10 foot pole. It's just not that important of an issue for them to risk peesing off their base of landowners and agricultural community. Farmers would, rightfully so, give these kinds of changes a big thumbs down. And we're (the people who would want river laws expanded) a very small minority.


I'll see if I can track down that article I read about the guy that got busted and sued by the landowner...


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## Deazl666 (Mar 30, 2012)

Here is the story. It's covered by a bunch of media outlets...

http://www.readthehook.com/102634/river-law-local-angler-fights-fishing-rights


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## StuckAtHome (Apr 29, 2004)

That's Virginia, Ohio,pa, have different laws. That's the problem.

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## StuckAtHome (Apr 29, 2004)

It that case in Virginia is much worse, they can't even float the section of river because of some king of England decision deeding the landowners the river and water itself, ouch! Several of these fights are going on around the country. It's going to get worse I'd bet due to the vast amount of kayaks being sold, ten years ago not many choices, now even Wal-Mart sells boats, as more people look for places to float, I'd wager we will see many more lawsuits...

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## Deazl666 (Mar 30, 2012)

StuckAtHome said:


> That's Virginia, Ohio,pa, have different laws. That's the problem.
> 
> posted using Outdoor Hub Campfire


I think the case shows the extent to which wealthy landowners will go to restrict access to fishing. Imagine if by some miracle Ohio passed laws that gave anglers the right to anchor and wade and then some d-bag discovers that his property was granted by royal decree before Ohio even existed as a state...


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## StuckAtHome (Apr 29, 2004)

Well in Ohio the landowner does own the land under the water, not the water itself. If you float over it no problem, grey area is touching the bottom, and wading in my opinion is trespassing,I don't like it, but believe the current laws support this. Our law deals with it being navigable by some sort of boat, not by foot. Unless the laws allow a public easement to high water line that trumps state law wading along private lands is illegal

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## imalt (Apr 17, 2008)

Deazl666 said:


> I think the case shows the extent to which wealthy landowners will go to restrict access to fishing. Imagine if by some miracle Ohio passed laws that gave anglers the right to anchor and wade and then some d-bag discovers that his property was granted by royal decree before Ohio even existed as a state...


I still don't think you are looking at this the correct way. What if you were one of those landowners and say your house backed up to a great stream. Would you want every clown with a zebco setting up their lawn chair in your backyard to fish? Floating should always be legal and I believe the law should be changed to make wading as long as you are in the stream legal. But I would never expect anyone to let me to cut thru their property to get to a stream. To be honest I wouldn't even ask to do so because if I was lucky enough to ever have property that was on a stream I wouldn't want people knocking on my door every five minutes asking to cut thru my yard to fish. I think it is about respect of what others have. Not being jealous because they have something I don't. I guess this is where I don't fit into todays society I believe you should earn things yourself and that some wealthy person shouldn't have to share with me.


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## StuckAtHome (Apr 29, 2004)

Just got off the phone with the chief law officer with the odnr. He is waiting on legal opinion from the Ohio attorney General on this issue, expects answer in the next six months.

This is the law from the attorney General in use now.

Wading where you are not in public land is illegal, period. Doesn't matter how you got there.

If you can float the stream, it's legal, you have right to portage in timely manner.

Touching bottom with anchor, fishing lure illegal as of now, that's one of the points they are waiting for the attorney General to clarify.

He gave me two landmark cases to review.

Brown vs Newport concrete

Bodi vs wynous shooting club.


The person I talked to was after I was transferred five times, he is the top guy for legal at odnr, very well versed in the current law, he said its a mess and has needed clarification, this was his number one priority. He said when he gets the ruling won't be a problem finding it it will be in every outdoor source.


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## Bubbagon (Mar 8, 2010)

Deazl666 said:


> Here is the story. It's covered by a bunch of media outlets...
> 
> http://www.readthehook.com/102634/river-law-local-angler-fights-fishing-rights


Yeah, we've been watching that for a while now. Completely different type of situation. You should see some of the stories out West...holy moly.

I'm in imalt's camp. I just want to se the laws expanded enough so I can float with my kids, dog, friends and not have to worry about anchoring, and wading, and hitting rocks with paddles.
I'm not interested in accessing the river through someone's private property at all.


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## StuckAtHome (Apr 29, 2004)

Forgot to mention in the brown case you'll read the little Miami river is held in trust for the people of Ohio, that sounds great but it's one of the very few rivers in Ohio that is held in trust, the Darby, kokosing ect are not.

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## imalt (Apr 17, 2008)

Brown vs newport concrete is an interesting case. And why I don't believe the law will ever be changed. All of the gravel companies would be put out of business that rape the rivers. I have been on creeks where farmers have run fences across the creek I guess to keep their livestock in but I guess that is where the navigable vs unnavigable question comes into play. If nothing else they need to make the law clear. I plan on floating a very private creek this spring when the water is up that has basically no public access for miles. So I guess I will be testing out the law.


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## StuckAtHome (Apr 29, 2004)

I asked about a small small Creek with live stock fences. Navigable vs non navigable is non issue, if you can float it with your craft your fine, perfectly legal, he said too many people get hung up on that(me included). Fences are obstructions the same as logjam,riffle, you may portage around on private property, can't linger and has to be within reason. When it comes to fishing he told me the landowner must prove you were touching bottom, and unless landowner pushed the issue with it very hard to prove.

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## Deazl666 (Mar 30, 2012)

imalt said:


> I still don't think you are looking at this the correct way. What if you were one of those landowners and say your house backed up to a great stream. Would you want every clown with a zebco setting up their lawn chair in your backyard to fish? Floating should always be legal and I believe the law should be changed to make wading as long as you are in the stream legal. But I would never expect anyone to let me to cut thru their property to get to a stream. To be honest I wouldn't even ask to do so because if I was lucky enough to ever have property that was on a stream I wouldn't want people knocking on my door every five minutes asking to cut thru my yard to fish. I think it is about respect of what others have. Not being jealous because they have something I don't. I guess this is where I don't fit into todays society I believe you should earn things yourself and that some wealthy person shouldn't have to share with me.


But we're not talking about sneaking onto someone's acreage and fishing a private lake. I'm specifically concerned with having little-to-no access to miles of streams because the land surrounding the public body of water is private. Also, you're using extreme examples to make your point, when in reality, what I'm envisioning is a very narrow easement on huge chunks of land (not yards, per se), where its practicable to have them, that would allow an individual to walk from the road to the stream. You wouldn't even be permitted to stop let alone fish from the bank. 

Also, my family is part owner of a private beach up in N. Michigan. I'm well aware that non-owners use the beach all the time, and it does not in any way shape or form bother me, as long as they clean up after themselves. Like I said before, I'm of the mind that certain things in this world represent the "common good" and I think lakes, rivers, streams, oceans, seas, great lakes, et. al. qualify.


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## Deazl666 (Mar 30, 2012)

StuckAtHome said:


> I asked about a small small Creek with live stock fences. Navigable vs non navigable is non issue, if you can float it with your craft your fine, perfectly legal, he said too many people get hung up on that(me included). Fences are obstructions the same as logjam,riffle, you may portage around on private property, can't linger and has to be within reason. When it comes to fishing he told me the landowner must prove you were touching bottom, and unless landowner pushed the issue with it very hard to prove.
> 
> posted using Outdoor Hub Campfire


My kayak is arriving this afternoon (yea!); it will be nice to know my rights on the water. A metropark ranger told me there is fencing near the impoundment on the section of the BD that is owned by Darby Dan's and that DD can get pretty uptight when it comes to what they perceive to be trespassing. He recommended not fishing the impoundment for that reason.


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## StuckAtHome (Apr 29, 2004)

We talked about that as well, you can float it all you want, touching bottom no. And since the dam is there you are legally afforded the right to portage it in a safe manner including walking on the private land within reason. He said they have had several several complaints from the landowners, but as long as you minimize you time going around the dam you're perfectly legal and within your rights.

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## Deazl666 (Mar 30, 2012)

StuckAtHome said:


> We talked about that as well, you can float it all you want, touching bottom no. And since the dam is there you are legally afforded the right to portage it in a safe manner including walking on the private land within reason. He said they have had several several complaints from the landowners, but as long as you minimize you time going around the dam you're perfectly legal and within your rights.
> 
> posted using Outdoor Hub Campfire


That's probably where all the smallies are hiding out; they've figured out that's generally a safe spot. I'll try to get in as many casts as possible as I float on by. 

Something that occurred to me walking to lunch: What about the Mad River? Looking at the map posted on ODNR's site, almost the entire stretch from the headwaters to I-70 is described as being open to public fishing. I wade it all the time, as do a million other guys. Clearly that's private property on either side of the river. Is there a specific exemption in law for the Mad?


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## StuckAtHome (Apr 29, 2004)

Don't know for a fact, but I highly doubt the mad is held in trust, solely on its size. Little Miami I guess had been used for commerce from the beginning and is a larger river, that's just a guess mind you. The odnr guy was very clear, wading in most of our river streams where private land is on both sides is illegal, we have the right to use the water and the fish but have zero right to the land underneath.

Another interesting information is say a land owner dam's a creek for a pond solely within private property, if the creek is floatable, and you can access it on public land, you can legally float the pond, can't touch bottom or the private land around the lake. This is what is found at Darby, the landowners cannot force you out, it's a public waterway, they have no right to the water, just the land underneath. It would be interesting to bring up Brown vs Newport concrete to the owners of Darby dans, they were ordered to remove the dam because it hampered the public use of the river. I could be wrong but that dam doesn't serve any meaningful service besides making a deep pool for the owners sole use.

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## imalt (Apr 17, 2008)

I can't remember where I saw it but a couple weeks ago there was a open letter posted by a dnr guy warning of guys cutting thru property to get to their spot on the mad. I think as far as the mad goes the property owners are ok with people wading so they never push the issue. But I guess technically they could push the trespass issue. The letter basically states as much saying the landowner could shut down a section of the mad to wading if he chose. It might of been on mad river outfitters facebook page I can't remember. The lmr being in trust is still interesting. Does that mean that there is no private riverbed on the little miami? Since it belongs to the people of ohio.


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## imalt (Apr 17, 2008)

Deazl666 said:


> But we're not talking about sneaking onto someone's acreage and fishing a private lake. I'm specifically concerned with having little-to-no access to miles of streams because the land surrounding the public body of water is private. Also, you're using extreme examples to make your point, when in reality, what I'm envisioning is a very narrow easement on huge chunks of land (not yards, per se), where its practicable to have them, that would allow an individual to walk from the road to the stream. You wouldn't even be permitted to stop let alone fish from the bank.
> 
> Also, my family is part owner of a private beach up in N. Michigan. I'm well aware that non-owners use the beach all the time, and it does not in any way shape or form bother me, as long as they clean up after themselves. Like I said before, I'm of the mind that certain things in this world represent the "common good" and I think lakes, rivers, streams, oceans, seas, great lakes, et. al. qualify.


I still think the problem would be liability. With all the ambulance chasing lawyers out there. What if a land owner makes a path thru their farm or whatever and that path ices over and someone slips and falls and breaks a leg. Is the land owner responsible for not maintaining the walking path the same as a sidewalk in front of their house. Or worse what if someone is screwing around and drowns in the stream that the landowner provided access to. Would they be liable? I am not really disagreeing with your beliefs. I think it would be awesome to have access to more water but I understand why I don't.


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## StuckAtHome (Apr 29, 2004)

http://www.nationalrivers.org/us-law-public.htm

This is interesting and confusing at the same time. This talks about the federal trumps state law, all flowing waters are in the public trust, regardless of private ownership, it says you can wade, fish up to normal water levels, meaning where the vegetation starts roughly. Quote

It held that this is one of the &#8220;Laws of Nature,&#8221; which are &#8220;established by divine providence,&#8221; and which &#8220;remain forever fixed and immutable.&#8221; It recognized public rights to use the banks as well as the surface of the water, on non-navigable as well as navigable rivers. 

Give it a read



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## imalt (Apr 17, 2008)

So basically the state laws are illegal if they are not the same as federal laws. And there is no such thing as private stream bed according to federal law. Am I reading that correctly? So I guess somewhere along the line people that were sold property saying they owned the riverbed were lied to.


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## StuckAtHome (Apr 29, 2004)

That's what I thought as well. Bet the state's don't want federal telling them anything. Not sure what to think, wish I took the name of the guy I talked to at odnr to ask him this. This is more than likely why everything is messed up, landowners site state law, we want federal.

Don't know who to contact now to get more info on this, might have to dig into federal law more than just this one site, they might be just picking and choosing what work's for them.

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## StuckAtHome (Apr 29, 2004)

http://legal-dictionary.thefreedictionary.com/_/dict.aspx?word=Navigable+Waters

Here's one saying federal has control of all navigable waters, even small flows with canoe's.

The more I read, I think the odnr is wrong. Reading several different sources, federal law put down by the constitution is the top law, period. I'm not a lawyer by any means so bear with me. Federal law says all flowing water's are the public's, we have the right to walk along the river to the high water mark, use it by any non destructive means, regardless if deed goes to center of flow, and the state's cannot infringe on this right. The state can expand our access but cannot close any of it off. This goes for water you can float and water you cannot. It goes as far as saying if their is a dry creek bed, when there is no water, we have no right to be there, but when water is present, we do even though it's private property, the flow's are all put in trust for the public for all time! 

Might call the state or federal office, doubt anyone will answer my question though.

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## Deazl666 (Mar 30, 2012)

Sounds like an area the courts should step into to get clarification once and for all. Best case scenario is that a federal appeals court issues a wide ruling that favors our position and the SCOTUS upholds the ruling. State law would need to be brought into compliance with the ruling. Anyone have a spare fortune laying around to make this happen?


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## Deazl666 (Mar 30, 2012)

imalt said:


> So basically the state laws are illegal if they are not the same as federal laws. And there is no such thing as private stream bed according to federal law. Am I reading that correctly? So I guess somewhere along the line people that were sold property saying they owned the riverbed were lied to.


Would federal law apply to rivers that don't cross state lines like the Darby or the Mad? This is a bit fantastical, but I'm wondering if the State of Ohio could use its imminent domain authority to compensate the owners of stream beds, but limit it to popular rivers like the BD, Mad, steelhead alley, Hocking, etc. The property owners would lose nothing, but would get a nice check courtesy of Josh Mandel. For streams that cross state lines, the feds could do the same thing.


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## StuckAtHome (Apr 29, 2004)

By the constitution all navigable rivers and their tribs are federal, just confirmed this with army Corp engineers. So this includes by definition ever small flow down to a trickle. She couldn't answer why odnr thinks it's a state issue, she gave me a few numbers to try, federal attorney General in Columbus, and Corp engineers federal in wva...

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## StuckAtHome (Apr 29, 2004)

Just talked to my state rep's office, sent them a detailed email of the basic questions, not holding my breath, expecting generic response.

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## Deazl666 (Mar 30, 2012)

StuckAtHome said:


> Just talked to my state rep's office, sent them a detailed email of the basic questions, not holding my breath, expecting generic response.
> 
> posted using Outdoor Hub Campfire


Either the Legislative Aid or Administrative Aid will do the research and answer the question. Chances are, the LA or AA will call ODNR for information.


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## StuckAtHome (Apr 29, 2004)

I hope not, explained to them what I've researched, cited court cases, the agency's I've contacted, gave them several link's to what I've found. They asked if I was a lawyer, lol, don't know if that was a compliment or not.

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## bassyakker (Feb 12, 2013)

hey guys. new to the forum... ive always been the typical lake largemouth fisherman until late last year i went river fishing with my brother in the Tusc river in Stark co. with very little expectations... well after hooking into two really nice pike and a huge smallie ihave the fever. a week later we floated 9 miles down the river and caught 3 more smallmouth and 7 pike. deer season started and i hung up the yak for winter for my bow. now i cant get these smallies out of my head. i notice you guys are on the right track and i need some pointers on where to find these bronze backs... i know very little about the cuyahoga river but it seems like there is much better smallmouth fishing up there. can you fellas fill me in? much appreciated.


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## 9Left (Jun 23, 2012)

bassyakker said:


> hey guys. new to the forum... ive always been the typical lake largemouth fisherman until late last year i went river fishing with my brother in the Tusc river in Stark co. with very little expectations... well after hooking into two really nice pike and a huge smallie ihave the fever. a week later we floated 9 miles down the river and caught 3 more smallmouth and 7 pike. deer season started and i hung up the yak for winter for my bow. now i cant get these smallies out of my head. i notice you guys are on the right track and i need some pointers on where to find these bronze backs... i know very little about the cuyahoga river but it seems like there is much better smallmouth fishing up there. can you fellas fill me in? much appreciated.


not tryin to sound rude but you might have better replies and info if you put this question in the NE section


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## Mr. A (Apr 23, 2012)

Deazl666 said:


> Your personal attack is uncalled for and way out of line. I did not call you or anyone else here a schmuck (nor did I think it) and was only trying to partake in a conversation on a topic that interests me. I respect private property 95 percent of the time. And like I said, I knocked on the owner's door several times. Put yourself in my shoes: Would you turn your car around and drive back to Columbus, go fish the spots where there are a hundred other guys, or would you tiptoe through twenty yards of grass to get to the river? (This spot was easily accessible 15 years ago but has since been overrun by poison ivy on all sides.) Besides, I merely used that as an example of how stream access can be unreasonably restricted to the public. Trust me, if there was any other way to get into this stretch of the Clearfork I would take it, but there's not.
> 
> My personal opinion is that restricting access to bodies of water through private ownership of the land surrounding it is an elitist, antiquated notion, and the sooner its gone the better. There are better ways of protecting streams like the Darby than to hide it from public view.
> 
> And what about you? Have you ever snuck into a private pond? Waded a stretch of river or stream that was not on public land?


I was using my interpretation of your comments when I used the word schmuck, so I appologise for that.

To answer your question, no, I don't sneak in anywhere to fish and sure don't fish anywhere private unless I have a signed permission slip to do so. I don't understand why you would think trespassing and breaking the law is so common anyway. Sneaking implies that you know you're doing something you shouldn't be, so no, I don't sneak.

I don't think your personal opinion regarding restricting access is too far off the mark but I don't think it's as intentional as some may believe. I don't think people are targeting fisherman for the most part anyway.

Honestly, are you unable to see the problem with "I respect private property 95% of the time."? You're probably a decent fellow, and I don't know you, but seriously, you have to see that your mentality toward other peoples private property is troublesome if you don't respect it 100% of the time. 

Mr. A

(2013)
SMB: 0 LMB: 0 
Catfish: 0 Bluegill: 0 
Other: 0


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## gerb (Apr 13, 2010)

NE or central ohio....the guy is asking about winter smallies. somebody here can give him good advice. perhaps this "zoning" laws conversation can make its own debate in another thread pertaining to it. but i dont think the one guy posting about the original topic should be turned away.


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## FishDoctor (Aug 9, 2012)

Interesting discussion. The question of whether this whole bit about fed law is true and if true would trump state law has piqued my interest!

I emailed the layout of StuckAtHome's argument and research on the subject to my best friend. Who also happens to be a lawyer (and my lawyer ). Who also happens to work for the state of OH. It would be interesting to hear his thoughts on it, he is way, way better at understanding and researching legalese stuff than me.

Since I mostly fish the OH, LMR or private lakes/ponds I've been granted permission to fish I'm not worried I'll have a problem with this in the foreseeable future (coupled with being in medicine means I also have little time as of now to pursue new streams to fish in ). I'd still like an answer just in case such a situation ever arose. 

I'll let you all know his thoughts when he gets back to me.


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## bassyakker (Feb 12, 2013)

my apologies. i thought i was in the NE section. ill pay more attention. thanks


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## Deazl666 (Mar 30, 2012)

Mr. A said:


> I was using my interpretation of your comments when I used the word schmuck, so I appologise for that.
> 
> To answer your question, no, I don't sneak in anywhere to fish and sure don't fish anywhere private unless I have a signed permission slip to do so. I don't understand why you would think trespassing and breaking the law is so common anyway. Sneaking implies that you know you're doing something you shouldn't be, so no, I don't sneak.
> 
> ...


I accept your apology. The five percent of time I don't respect private property is when I fish the holes I fished on Sunday. The thing is, however, is that A LOT of guys fish those holes as well. It's a popular spot and a good guess is that the owners of the land don't care - because if they did, they would post signs. I've spoken to guys who've fished this spot for 20 years. Also, I have tagged along several times over the years with anglers (guys on this forum) who sneak into a few ponds in the area. Knowing that being asked to leave is probably the worst outcome, I go along with it; however, I don't do it on my own because it makes me uncomfortable. Fortunately, for the sake of my nerves, my pond-sneaking buddy moved out of state last year.


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## StuckAtHome (Apr 29, 2004)

Did some reading while drinking my coffee, and think I found out the state vs federal question.

The federal government has control over navigable rivers in all fifty states and their tributaries, but the state's own the beds of the rivers. That's been confirmed by several sites and many court cases I've read.

Since Ohio follows English common law,riparian rights, the landowners have most of not all rights to the land, we just have limited rights to access the water. 

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## Bubbagon (Mar 8, 2010)

We've been beating this drum for 10 years over on RS, Stucky. You found most of the good stuff.
Here's the rub. The Federal interpretation keeps all navigable rivers in public trust "up to the high water mark". Which clearly means the banks...hard land.
Again, the Federal and State laws are at odds. Heck man, if Colorado can sell weed when it's still illegal under Federal laws, this is nothing.
Not only do most states contradict the Federal interpretation, each county, city, township has their own set of guidelines and interpretations.

Again, somebody has to get arrested, have some stick-to-itness and the support of an organization with a legal fund, and challenge it all the way to the State Courthouse.


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## Deazl666 (Mar 30, 2012)

Bubbagon said:


> We've been beating this drum for 10 years over on RS, Stucky. You found most of the good stuff.
> Here's the rub. The Federal interpretation keeps all navigable rivers in public trust "up to the high water mark". Which clearly means the banks...hard land.
> Again, the Federal and State laws are at odds. Heck man, if Colorado can sell weed when it's still illegal under Federal laws, this is nothing.
> Not only do most states contradict the Federal interpretation, each county, city, township has their own set of guidelines and interpretations.
> ...


We need the angling equivalent of the person who lives in an old-growth hardwood to keep it from being cut down by a logging company...


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## StuckAtHome (Apr 29, 2004)

Yea,I watched that each time it pops up, which seems every winter, lol.

I'm hoping the Ohio attorney General's reply to odnr is favorable to us, highly doubt my representative will give me any clear answers.

The regional Corp of engineers rep in west Virginia seemed very interested in my question state vs federal, said he would pass this on to a couple different agency's since he paddled as well, he has my number.

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## glasseyes (Jan 28, 2012)

I just spent my lunch time here at work in my office reading this entire conversation , and I must say I'm impressed. I don't wade much but when I do it's always been on public land but the federal and state laws and the court battles are very interesting.


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## Deazl666 (Mar 30, 2012)

This just occurred to me: Private ownership of a streambed infringes on the public's right to use the stream. Even if the stream is navigable, to be given a reasonable opportunity to utilize the water for angling (one of the obvious public purposes), one needs to be able to anchor and wade. In other words, private ownership of the streambed negatively impacts the public's ability to effectively use the water to take fish. In a lake setting that might have one public boat landing but is otherwise surrounded by private lots, one doesn't necessarily need to anchor or wade to enjoy fishing around docks, embankments, etc.

Edit to add that my whole point is that this public policy solution in Ohio is flawed.


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## StuckAtHome (Apr 29, 2004)

We have the right to use the river as a waterway, lake 's are different, when they impound them they get the title of the land one way or another.

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## imalt (Apr 17, 2008)

I hope you get a definitive answer but I am thinking we will be having this discussion again next winter.


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## Bubbagon (Mar 8, 2010)

imalt said:


> I hope you get a definitive answer but I am thinking we will be having this discussion again next winter.


Having this discussion again next year is the only definitive absolute.


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## Deazl666 (Mar 30, 2012)

As of yesterday afternoon, my new yak is parked in the living room, so I'm ready to enter fray once the water warms a tad...


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## JamesT (Jul 22, 2005)

Just sayin hi fellas. Long winter so far, but spring is just around the corner. Hope everyone is doing well. Good luck smallie fishing if you go.


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## Bubbagon (Mar 8, 2010)

Sup, Pete?


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## StuckAtHome (Apr 29, 2004)

Think I'll wait another week or so , calling for fifty today, right, next warmest day is Monday, like 44, not good for me yet

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## Deazl666 (Mar 30, 2012)

StuckAtHome said:


> Think I'll wait another week or so , calling for fifty today, right, next warmest day is Monday, like 44, not good for me yet
> 
> posted using Outdoor Hub Campfire


Yeah, it'd probably be a waste of a few good hours. I might try to hit some ponds instead. I'm supposed to go to the Mad on Monday with a friend from work...

What temperature does water need to reach in order for smallies to become active? I used to know, but I forget. I doubt we're anywhere near it...


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