Navigable vs Non-Navigable

[jchilders]

I own property on the South Sylamore Creek and have paddled down to the White several times. There are multiple landowners who declare ownership of the creek, and at times can become hostile. Does anyone know if that stream has been officially declared navigable v non-navigable? If not, does anyone have suggestions as to the process to establish legal 'navigability'? I'd like to enhance access if possible.

[Gordon Kumpuris]

That is a question with an answer subject to considerable debate. In the 1980 State v McIlroy case, the state ultimately was able to prove that the Mulberry River in NW Arkansas was in fact a "navigable stream" and not private property. The stream bank on the other hand, down to a point, (also subject to some debate) can be private property. Some interpretation suggests that this consideration only applies to this particular stream. Others feel this now applies to other similar streams. To answer your question directly, I feel very confident that S. Sylamore in particular has NOT been declared navigable. The fact that it has been paddled certainly suggests it is navigable though. The process of declaring this particular stream navigable would likely include a legal challenge that would not come without both individual and collective risk. I'd suggest that your best bet would be to politely share the 1980 State vs McIlroy case with the landowner(s), explain any attorney worth his or her salt would say that it is clear precedent and hope that the landowners acquiesce. We've found that many landowner issues can be solved if we as a club and we as individual paddlers show that our presence does more good than harm. I.e. we pick up litter on and around the stream etc. If a landowner does in fact bar access, i.e. put up a fence, threaten actual violence etc., the ACC would like to know about this asap. We see these access impediments as potentially precedent setting and we have challenged these types of things in the past successfully. Hope this helps.

[jchilders]

Very helpful. Thank you!