Public Stream Access in Arkansas: Balancing the Right of Access with the Imperative of Conservation

My friend and I had only waded about a hundred yards upstream from the bridge where we parked the truck when the stranger motored down to the water’s edge in his UTV to politely run us off. It was a good smallmouth spot, and we fished it often under the assumption that the creek was accessible to the public, but the man in the UTV believed the creek was his private property because he owned the land on both banks. In his view, we were trespassing. Standing in the cool, waist-deep current in swim trunks and old sneakers and facing opposing coun-sel on the cut bank above us, it didn’t feel like the time or place—and we didn’t feel appropriately dressed—to litigate the contours of his right to exclude the public from the stream and our right to fish it.  Disappointed, we reeled in, apologized and headed back downstream.  It had been a good spot, but it was a probably a little too accessible to the burgeoning ranks of fishermen in Bentonville and Rogers to stay good much longer.

Arkansas’s renown as a destination for outdoor recreation has surged in recent years. Many of these opportunities center on the state’s rivers and streams. Riverfront and creekside property in our state is becoming increasingly coveted and valuable, with more and more homes cropping up near these waterways. People long for a private slice of an Arkansas stream, but many of these property owners are unaware of the relatively public-friendly stream access law that protects the public’s right to use these streams in Arkansas. As a result, confrontations like the one that I experienced are becoming more frequent, and they do not always end so civilly. In this fight over access, we must be careful not to throw out the baby with the bath water.

Public Stream Access: The Navigational Servitude

The determination of whether an inland waterway is public hinges on the question of navigability.1 Generally speaking, the public has the right to use navigable waterways for recreation and navigation, but riparian landowners may exclude the public from nonnavigable waterways.2 Long-settled case law stipulates that the determination of navigability for purposes of local property rights is left to the several states.3 Therefore, unless a dispute implicates federal maritime jurisdiction, the federal government’s power to regulate waterways pursuant to the Commerce Clause, or a title dispute between a state and the federal government, a state may formulate and apply its own definition of navigability for waters within its borders.4

But the inquiry cannot stop there. To deem a river navigable, and therefore public, raises more questions than it answers. Is public access restricted to the water, or does the public also have the right to use some portion of the bank? If the public can go on the bank, where is the line between public and private property?5 May the public wade the river and tread on the riverbed, or must it stay in watercraft? Having determined that the public can use a given stream for recreation, what sorts of recreation are permitted?6 The answers to these questions vary from state to state.

The classic test for navigability looks only to a river’s commercial utility. Known as “navigation in fact,” Arkansas courts applied this rule until 1980:

The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable, although the annual time may not be very long.7

Within the last century, a growing number of states have expanded the definition of navigability to consider a river’s recreational usefulness.  Arkansas joined this number in 1980.

In State v. McIlroy, the Supreme Court of Arkansas considered for the first time an access dispute involving a stream “which has recreational value but lacks commercial adaptability in the traditional sense”—the Mulberry River.8 The plaintiffs, W.L. McIlroy and his late brother’s estate, owned land along the Mulberry in Franklin County.9 They sought a declaration that the river was not a navigable river and that their rights as riparian landowners were therefore superior to the rights of the public.10 The defendants included two canoe liveries, Neil Compton’s Ozark Society and the State of Arkansas, as intervenor.11 They argued that the stream was navigable, and the Court agreed:

Arkansas, as most states in their infancy, was mostly concerned with river traffic by steamboats or barges when cases like Lutesville, supra, were decided. We have had no case regarding recreational use of waters such as the Mulberry. It may be that our decisions did or did not anticipate such use of streams which are suitable, as the Mulberry is, for recreational use. Such use would include flatbottomed boats for fishing and canoes for floating or both. There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.12

Arkansas courts have considered access disputes similar to the one at the center of McIlroy only a handful of times since it was decided 44 years ago.13 Their commitment to the McIlroy rule has been steadfast. An Arkansas waterway is legally navigable, and therefore held in trust by the state for public use, if it is susceptible to use by the public for a substantial portion of the year in small recreational craft (e.g., canoes, kayaks and small jonboats). As for scope, under McIlroy, the public is entitled to ‘all the incidental rights’ of the determination of navigability. It is a broad standard, and Arkansas courts have not had occasion to refine it since 1980.14

The Buffalo River, crown jewel among Arkansas’s float streams, was the subject of a public access dispute in 1977 just five years after it became our nation’s first national river.15 In the park’s enabling legislation, Congress approved the acquisition of 95,730 acres along the Buffalo.16 By 1977, the National Park Service had acquired roughly 60% of this acreage before running out of appropriations, creating a checkerboard pattern of acquired (public) land and non-acquired (private) land.17 Despite conspicuous no-trespassing signs, public users trespassed on the non-acquired land, cut fences, left gates open and littered.18 The Buffalo River Conservation & Recreation Council, a body composed of the owners of the non-acquired land, filed suit against the Park Service.19 The single cause of action that survived dismissal and went to trial contemplated the right of the public to float the Buffalo through private land.20 The trial court determined that the public had acquired a “prescriptive public easement over the course of the stream and its bed” by virtue of the long history of open and heavy canoe traffic on the Buffalo.21 Trial testimony indicated that approximately 1,200 canoes passed the Pruitt ranger station on a single day. The Eighth Circuit agreed, opining that “a prescriptive right [had] been obtained by the public to travel over the non-navigable stream and its bed.”22

This case clarifies the line between the old and new navigability rules.  Under the McIlroy rule, which would not become law for another three years, the Buffalo River would be the quintessential example of a river that is navigable by virtue of its recreational utility. It is one of the premier canoe streams in the United States. In 1977, though, the legal navigability of an Arkansas stream was only a question of commercial usefulness. Without evidence of commercial utility, the Court instead relied on a more familiar servitude—prescriptive easement. Reasoning that public usage of the Buffalo and its bed had been open and adverse for more than seven years, the Court determined that the public had established a prescriptive easement; therefore, riparian landowners had no right to exclude the public from the river. Today, of course, the Buffalo’s legal navigability is largely a moot question. Its banks are publicly owned for its entire floatable length from Boxley to Buffalo City.

A Responsibility to Keep it as God Made It

My Grandpa spent his boyhood summers visiting family in the small Newton County town of Mount Judea.23 The community is situated on Big Creek, which runs into the Buffalo River about four-and-a-half miles north of town (a fact much more widely known now than it was before the hog farm kerfuffle). Cave Creek is over the ridge in the next valley to the east, and Richland Creek drains the next valley east of Cave Creek. All three creeks flow north into the Buffalo River. It was Eden for a boy who loved to fish and hunt in the 1940s. My Grandpa’s favorite pastime was wade fishing the Buffalo and these three tributaries for smallmouth bass with his cousins. In the 1940s, the land along the length of each of these streams was privately owned—primarily by subsistence farmers. These streams were also assuredly nonnavigable under Arkansas law in 1940. Nonetheless, over the years and the hundreds of river miles they waded together, not once were my Grandpa and his cousins told they were trespassing and asked to leave.

When wading these Ozark streams, a large part of the experience is the smallness of the water. Compared to trout fishing the Bull Shoals tailwater in a 20-foot flatbottom or trolling for stripers on Lake Ouachita, it is an intimate experience to wade the upper reaches of Crooked Creek in search of the indigenous smallmouth bass that have occupied the pools and eddies since time immemorial. Nobody questions the public’s right to use the White River or Lake Ouachita, but the streams that feed these larger bodies of water, and the streams that feed those streams, are a closer question. Legal professionals are uniquely positioned to clarify this question and the applicable legal standard for the broader public.

In the Newton County of my Grandpa’s youth, everybody knew everybody, and nobody was suspicious of a few boys wade fishing in the creek. Under those circumstances, the legal standard governing public stream access was largely irrelevant—the community had developed its own informal code of access rights, and it worked. Circumstances have changed. Today, the region’s pristine rivers, and other opportunities for outdoor recreation, attract droves of visitors from around the country. A knowable legal standard governing stream access is essential to the protection and the safe enjoyment of our rivers, but it is not the whole answer.

The State alone does not have all the tools necessary to guard the private property rights of riparian landowners, protect public river access rights and also preserve the wild beauty of our waterways. In McIlroy, Justice Hickman concluded his opinion with these poignant words:

We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others…while there are law prohibiting such conduct, every branch of Arkansas’s government should be more aware of its duty to keep Arkansas, which is a beautiful state, a good place to live. No doubt the state cannot alone solve such a problem, it requires some individual effort of the people. Nonetheless, we can no more close a public waterway because some of those who use it annoy nearby property owners, than we could close a public highway for similar reasons.

In any event, the state sought a decision that would protect its right to this stream. With that right, which we now recognize, goes a responsibility to keep it as God made it.24

Justice Hickman was right to admonish the public, and his admonition is just as appropriate today as it was in 1980, perhaps more so.25 The plaintiffs in McIlroy filed their lawsuit in part because they had grown tired of the litter that river users left behind and the general annoyance they caused. Some of them were very evidently abusing the resource. The plaintiffs in Buffalo River Conservation and Recreation Council adduced strikingly similar evidence. These abuses still occur today. Fishermen, canoeists, kayakers, campers and hikers who exercise their right to use Arkansas’s navigable streams and rivers must shoulder some part of the responsibility to conserve these waterways. The outdoor recreation industry is booming in Arkansas, but to love our streams to death in the name of economic growth would be a shame on us all.

Silas Heffley Rose Law Firm
Written by Silas Heffley, tax associate at Rose Law Firm.


  1.  State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980).
  2. The public has no right to trespass through privately-owned riparian land to access a waterway by mere virtue of the waterway’s status as a navigable river or stream. “It is not disputed that riparian landowners on a navigable stream have a right to prohibit the public from crossing their property to reach such a stream.” McIlroy, 268 Ark. at 238, 595 S.W.2d at 665.
  3. Donnelly v. United States, 228 U.S. 243, 262 (1913).
  4. McIlroy, 268 Ark. at 234, 595 S.W.2d at 663.
  5. See Southern Idaho Fish and Game Ass’n v. Picabo Livestock Inc., 528 P.2d 1295, 1296–97 (Idaho 1974) (holding that the public use right on a navigable river extends to the high-water line). But see Day v. Armstrong, 362 P.2d 137, 145–46 (Wyo. 1961) (holding that wading the riverbed and walking on the banks, except to the extent necessary to navigate the stream in a boat, constitutes an unlawful trespass on property belonging to the riparian landowner).
  6. See Galt v. State Dept. of Fish & Wildlife, 731 P.2d 912, 915 (Mont. 1987) (holding that camping is permitted on some, but not all, navigable rivers, and that big game hunting is prohibited on all Montana rivers). But see Munninghoff v. Wisconsin Conservation Comm’n, 38 N.W.2d 712, 715–16 (Wis. 1949) (holding the public use right embraces boating, bathing, fishing, hunting, and recreation; however, it does not include muskrat trapping where a navigable river flows through private land).
  7. Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W.2d 892, 893 (1930).
  8. McIlroy, 268 Ark. at 226, 595 S.W.2d at 664.
  9. McIlroy, 268 Ark. at 229, 595 S.W.2d at 660.
  10. Id.
  11. Id.
  12. McIlroy, 268 Ark. at 237, 595 S.W.2d at 664–65.
  13. See, e.g., State v. Hatchie Coon Hunting & Fishing Club, Inc., 372 Ark. 547, 279 S.W.3d 56 (2011); see also Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark. App. 276, 126 S.W.3d 738 (2003); see also Nichols v. Culotches Bay Navigation Rights Committee, LLC, 2011 Ark. App. 730, 387 S.W.3d 199; see also Five Forks Hunting Club v. Nixon Family Partnership, 2019 Ark. App. 371, 584 S.W.3d 371.
  14. McIlroy, 268 Ark. at 237, 595 S.W.2d at 664–65.
  15. Buffalo River Conservation and Recreation Council v. National Park Service, 558 F.2d 1342 (8th Cir. 1977).
  16. Id. at 1343.
  17. Id.
  18. Id.
  19. Id.
  20. Buffalo River, 558 F.2d at 1343–44.
  21. Id. at 1344–45.
  22. Id. at 1344 (emphasis added).
  23. The author thanks his Grandpa, Dr. Billy Frank Hefley, for instilling in him a deep love for the people, the culture and the streams of the Ozarks. I love you, Grandpa.
  24. McIlroy, 268 Ark. at 238, 595 S.W.2d at 665.
  25. Id. (“We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others. Their conduct is a shame on us all.”).