Email from Sheriff Joey Kyle:
The Finley River at Linden Lure is a non-navigable river, not my opinion, its determined by several factors that I wont get into here. However, the general public has the right to access the river, done. They can access the river, the Sheriff's Office has never been in the business of doing anything contrary. However, the general public does not have the right to trespass. Any activity by others than the private property owner, or with their permission is violating tresspassing laws. Look up the statute for details. You may cross (portage) the dam, but the general public cannot loiter on, fish from, sit on, or any other activity from the dam. All other state statutes involving Missouri waterways apply and will be enforced. Had anyone bothered to call and ask for these answers quite a few misconceptions could have been prevented. The Sheriff's Office is here to protect the rights of all of its citizens, property owners and citizens accessing Missouri waterways alike. Tell everyone to help police the area, prevent lude and lascivious behavior, drup abuse, and generally promote the best environment for all to enjoy.
Thank you for taking the time to write us. I apologize, but before I respond there are several inaccuracies in your statement that I need to correct.
Firstly, we did "bother" to call your office. We've spoken to your office several times over the last six months or so in regards to this issue. Perhaps the officers we spoke to haven't been relaying that to you and keeping you in the loop, but we most certainly did contact your office several times about this issue with no success.
Secondly, you are mistaken about the Finley River being legally non-navigable. The U.S. Supreme court has said that rivers which are not federally designated as navigable already (and the Finley is not federally designated either way), that the test of the navigability for those rivers is simply if they are "navigable in fact, then they are navigable in law," unless a state court has specifically designated that river as non-navigable. What that means is that if a river is physically navigable--if you can float it, even with simply a canoe--that river is legally navigable unless a state court has ruled that the river is non-navigable. No state court has ever ruled that the Finley River is non-navigable. And I am sure that you are aware that the river is physically navigable. We have floated it ourselves from well above Linden to downstream of it. And it is not at all uncommon to see people floating it every weekend in the summer from well above Linden all the way down to Riverside. The river is physically navigable, making it legally navigable until such time as a court designates it non-navigable.
Thirdly, although the dam has never been the main issue here, you are also partially mistaken about this. The only part of the dam where it would be illegal and trespassing to loiter are the dry raised areas on either side that are above the high water mark. Even those areas, however, as you mentioned, are legal to walk across while portaging from one section of the river to the other because there is simply no way to portage the river without crossing the dam. As for the submerged part of the dam that has the water flowing over it, you are incorrect that it is trespassing to be loitering on that. People may stand, sit, swim, fish, etc., on any part of the submerged dam as long as that part of the dam is below the high water mark (and anything under the water, obviously, would be below the high water mark). If what you were saying was correct, property owners could simply restrict the public from any section of the river they owned by covering the bed of the river with some kind of private construction. For example, if you were correct, a property owner could cover the bed of the river along their property with cinderblocks or concrete, and then claim that fishermen could not fish that section of the river because they happened to be standing on cinderblocks or concrete that belonged to the property owner. If you were correct, people could close off entire sections of the river to the public by layering them with privately-owned debris under the surface. The law does not allow this. The fact that there is a privately-owned structure underneath the water does not in any way, shape or form affect the public's legal right to use that section of the river as they would any other section of the river. Under federal and state law it is not legal for your department restrict people from sitting, fishing, swimming or loitering on the submerged sections of the dam. Just as people should be aware that when they buy riverfront property that by law they have to share certain rights to that river with the public, the same is true of any privately-built constructions they decide to position under the river. Building a structure under the surface of the river doesn't suddenly invalidate the public's rights to their normal use of that section of the river. It simply does not work that way.
The main issue, however, has never been the dam but the dry banks, which brings me to my fourth point. You claimed that your department has never done anything contrary to the public's legal access to the river. This is untrue. When this whole situation began several months ago, your department started out insisting that EVERYTHING north of the bridge--including the waterway itself--was private property. Boulders smeared with purple paint were even placed in the waterway itself to illustrate this point. And for that matter, we heard your own deputies telling dozens of people during the first warm weekend of May that "everything north of the bridge is trespassing." So yes, your department did in fact take actions contrary to the law down at Linden. And it continued after that. Shortly after that, your department started allowing people north of the bridge as long as they remained in the water. While this was an improvement, it was still not legal for you to restrict the public to the waterway only. Even if you were correct and the Finley River was non-navigable, this would not have been legal for your department to do as public non-navigable rivers are still public up to and including the dry banks to the ordinary high water mark. But because the Finley River is legally navigable, this is even more egregious. Your department was still acting in opposition to established federal and state law at this point by escorting people off the dry banks. And we know from speaking to the local water patrol and the local conservation department that they also told your department that the dry banks were public to the ordinary high water mark.
However, it appeared last weekend that your department may have finally conceded this issue about the dry banks. Although there were at least a dozen officers present by my count, it appeared the people on the dry banks north of the bridge were being allowed to remain.
We hope that this is the case. We would certainly love for this issue to be resolved and done with and for people to be able to go back to enjoying their legal use of the Finley River without fear. But at this point, until we hear something official from your department that recognizes that nobody is trespassing by being on the dry banks around the dam (or we consistently see that nobody is being escorted away), we intend to keep reporting on what is and has been going on down there and making the public aware any way we can.
Thank you for your time.