By Jo Schaper
First of all, I’m not a lawyer. My background is a degree in geology, with a couple of classes in hydrology and a general familiarity with water law, and paddler’s law in Missouri. This is a personal and not a legal opinion. I’ve been paddling since 1974. I’d be interested in hearing what others think. (If you want a primer on Missouri water law, I recommend take a look at Harry Styron’s blog, Ozark Law and Economy, Missouri water law primer.)
Missouri House Bill 955, titled “Changes the laws regarding natural resources,” has some people upset as they wonder what effect this bill, if passed, would have on the iconic Missouri pastime of enjoying our rivers in canoes, kayaks, johnboats, jetboats, rafts and all manner of floatation devices.
Representative Robert Ross, (R- Dist. 142) the author of the bill, is a land surveyor by trade. A land surveyor must be familiar with both the craft of surveying, and survey law in order to do his job, which is measuring land parcels to define ownership of tracts of land. Many Missouri tracts have water on it or defining its boundaries.
Water law is a mix of statutory law (law enacted as statues) and case law (legal guidance issued as a result of court cases.) Statutory law is usually written generally to apply in all cases. Case law may be either specific to a situation to settle a dispute or it may, after going through several levels of courts, be applied generally to all such situations. One may turn into the other.
One example of case law turned into statute is the number of specific discrimination court cases in the 1950s and early 1960s which turned into the federal Civil Rights Act of 1964. Ross’ law is one such attempt to put case law into statute law.
Common water law and rights persist from English law. These are such rules as “you can’t divert the entire flow of a stream, leaving your neighbor high and dry, or divert a stream for your own good, but flooding your neighbor’s land without negotiation and compensation.” This sort of law was “commonly” in effect at the time the U.S. was formed.
On top of that are federal, state and local laws having to do with navigation rights, boundary rights, diversion rights and most lately, pollution law. What sorts of laws are enacted depends if water is plentiful or scarce. Most Missouri law proceed from assumptions of abundant, renewable water.
Missouri Statue 644.026, the statutes which Ross’ bill replaces, addresses only pollution rules and regulations. HB 955 retains those pollution rules and regulations, but precedes them with 8 new sections talking about navigation, boundary, ownership and diversion rights. In general, statute law, while also subject to court approval, is considered stronger than case law, and it is on case law that the general right to traverse a river for pleasure is based.
Missouri, being home to tens of dozens of mid-sized streams, has been at the forefront of deciding such law. Putting aside the boundary, ownership, and diversion portions of these statutes for the moment leaves the fight over over what is a navigable stream.
For federal purposes, navigable means large enough to sustain vessels engaged in interstate commerce, moving goods or people from one place to another. Traditionally, that would mean tows, barges, freight and work boats. The laws were written before the days of paddlesport or small motored boat rentals, where the commerce involves anglers and outdoor enthusiasts.
Previously people have argued that local or state commerce, including tie-rafting on the Current, sand and gravel mining and barging on the Meramec and similar activities, moving goods up and down river, have never defined a river as navigable by federal standards, despite the fact that they are navigable by some sort of craft engaged in commerce. Even rivers large enough for federal dams are often considered non-navigable.
Ross’ bill does not define the term “navigable” only “navigable watercourse.” Elder vs Delcour (1954) on the upper Meramec defined the river there as non-navigable, at the same time it established the right of fishermen to briefly leave the canoe, and traverse the riverbed and area to the bank or high watermark in the course of wade fishing or for temporary respite from the small boat. Ross’ bill does not specifically incorporate that right. This is called the right of passage as high as a fishing boat can go. The right of passage means you have to quit going upstream when you run out of floatable water.
HB 955 defines in Section 60.700 four classes of watercourses: a) a public navigable watercourse which is or may be used for interstate commerce; b) a watercourse deemed navigable by a Missouri court; c) a non-navigable watercourse, as deemed by a Missouri court; and d) a natural watercourse, with bed, sides and a bank, but not including hollows ravines or sloughs, and then goes on to say, “a channel does not, of itself, establish the existence of a natural watercourse.”
Generally, the only rivers considered federally navigable in Missouri are the Mississippi, Missouri and mid to lower reaches of the Osage.
In section 60.702, HB 955 says: “3. A riparian owner has the right of access to the water from the riparian owner’s frontage including the right to wharf out, provided the riparian owner does not interfere with the public’s right of navigation and floatage.”
Ross does not define either “wharf out “ or “floatage” in his bill. What is “navigation”? Only federally defined interstate navigation? The “right of passage” under Elder vs. Delcour? Something else? Most canoe liveries are not interstate, but they most assuredly are commerce dependent on the river. Could the right of recreational passage be codified in the bill to officially apply to all rivers without the need for court cases on every federally non-navigable float stream in Missouri to retain the right for canoe liveries to do business and people to float both in commercial boats or private craft? Should it?
Representative Ross apparently intended to eliminate confusion in survey-related case law, but created many more questions by omission, and alarming the Missouri paddlesport and small powered water craft communities involving one of Missouri’s most popular summertime activities. Conservation and environmental groups wonder how this bill, as it is, would affect their activities.
Currently, a public hearing was held on March 9, with about 75 people in attendance, most objecting to the bill. It is not yet on a House calendar for further action.
What do you think?