Pete Zimowsky: Barbed wire across streams can cause serious harm

Idaho laws say rivers should remain navigable for floaters.

pzimowsky@idahostatesman.comJuly 18, 2013 

Nothing makes you scramble more than coming around the bend on a mellow canoeing stream and seeing a barbed-wire fence clear across the water.

It's a terrible hazard, and why landowners would stretch wire across a waterway is beyond belief. It's life-threatening if you hit the fence and flip. You can get snagged on the wire and held down in the river.

I had an encounter with barbed wire a few years ago running solo in a canoe on Valley Creek near Stanley.

Luckily, I was able to paddle backward fast enough and get to shore, despite having two retrievers in the canoe. If the current would have been faster and the flow higher, I might not have been so lucky.

All of these thoughts about barbed wire across streams and rivers came up again a couple of weeks ago from comments by readers about barbed wire across the Malheur River near Juntura, Ore.

I answered questions about floating the river and got warnings about barbed wire from readers.

The issue also struck a chord with Ketchum attorney John Seiller, who emailed me concerns about blocking streams with wire.

He dumped a canoe on Valley Creek a couple of summers ago.

"I didn't see it until the last minute, and it was late spring, so the water was really up," and cold, of course, he said. "Even though we were prepared for a possible dump, it ended the day right there, and we were fortunate not to be hurt."

After reading my column about the Malheur, Seiller offered some information about river laws.

"Idaho has a law that's very generous to boaters and all river users," he said.

"I think it stands to be mentioned, essentially as fair warning to those that fence off or would fence rivers."

Here are some highlights of the law, according to Seiller:

In Idaho, if a river can float a log at least 6 inches in diameter, or it can be paddled or oared (essentially floating a canoe), it is considered a public highway for any recreational purpose below that mean high-water mark.

In certain instances, for portage of obstructions, a user can go above the mean high-water mark and it's not trespassing.

There's another little wrinkle that ranchers need to realize if they fence over a river. If a river can float a 6-inch diameter log or canoe, then to fence over it is considered a public nuisance.

As a result, Idaho law also gives the public not only the ability to sue the landowner, but also the ability to abate a nuisance (cut the fence), if it can be done without disturbing the peace.

In other words, if the rancher is not there.

If no one is around, you can get out of your canoe or raft and have at it with your multitool.

Seiller also brings up the point that it is dangerous and potentially life-threatening for a boater to encounter a fence. And he doesn't believe any landowner really wants to be the source of a death or even serious injury.

About the barbed wire on the Malheur River and Oregon law. The Oregon law mirrors a federal law, which has a commercial standard of navigability.

In Oregon, if a river was used for commercial purposes when the territory became a state, then it's navigable.

Idaho's law addresses the commercial aspect, but also the recreational aspect, which is good for boaters.

Anyway, barbed-wire fences on rivers really freak me out, and that was one of the points from readers that gave me second thoughts about even trying to float the Malheur in Oregon.

The best thing to combat fences across rivers is for boaters to report them to the county sheriff and pursue the matter from there.

And boaters should also warn other boaters about the hazards.

Good paddling.

© 2013 Idaho Statesman

Pete Zimowsky: 377-6445, Twitter: @Zimosoutdoors

Statesman outdoor writers Pete Zimowsky and Roger Phillips alternate columns on Thursday. Look for Roger next week.

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