On Little Piney Creek, locals conflict over entry to a beloved native swimming spot

For round two years, now, a beloved swimming gap on the Little Piney Creek close to Clarksville has been fenced off from the general public by a landowner. But a small group of recreation advocates and locals are doing every little thing they will to make the creek public once more, whereas navigating a authorized system that doesn’t all the time make it clear who has rights to entry waterways.

The Little Piney is a tributary of the better-known Big Piney Creek, a well-liked recreation stream that flows from the Ozark Mountains into the Arkansas River within the Clarksville space. Stephen Dollar is a longtime resident of Hagarville, a small group north of Clarksville in Johnson County. Growing up, Dollar would all the time swim and kayak within the Little Piney with family and friends. Now he brews for Point Remove in Morrilton, whereas nonetheless dwelling within the Hagarville space along with his household. 

Regardless of how dry the summer time will get, a deep water gap within the creek simply outdoors of Hagarville stays full all year long. Dollar has spent numerous hours on that a part of the creek, an space locals know as “The Narrows.” The finest entry level to The Narrows is true the place the creek intersects with Johnson County Road 3780.

Now with younger youngsters of his personal, he desires to have the ability to share that have along with his family and move down the custom of kayaking and swimming by way of The Narrows within the scorching Arkansas summer time.

There’s one little downside. A low wire, promoting the world as non-public property, has been strung up throughout the creek from financial institution to financial institution, chopping off kayakers and swimmers from The Narrows. The makeshift fence is on a parcel of land owned by Joe Fritz and Linda George, based on Johnson County property information. Dollar doesn’t know whether or not the landowners or another person — resembling a tenant — are those chargeable for the barrier, but it surely’s been successfully dissuading members of the general public from getting into the creek at that spot for about two years, he says.

Dollar’s good friend Jeff Rion, a college trainer and graduate scholar primarily based in Pottsville, is main an effort to safe public entry to The Narrows once more. It’s not nearly dropping their native swimming gap; as skilled paddlers, Rion and Dollar are involved that the fencing might pose a security hazard. In the summer time months, that portion of the Little Piney is usually too low to drift, however when the water is larger, a kayaker coming upstream may run into the wire. Rion stated he’s frightened that in fast-moving water, a paddler might get caught on the fencing and probably drown.

Whoever put up the fence is “bullying people into thinking they can’t use the creek,” Rion stated. 

“Piney Creek is always going to be a special place in my heart …I don’t care who you are, you don’t own the water. The state and the federal government own the water, and the government is not giving up their water rights,” Rion stated. “That’s something we all have to take care of and keep clean.”

He acknowledged there may very well be professional issues about individuals “trashing” the Narrows. “And if the landowners would work with me and remove their obstructions, then we could not allow people to trash it up,” Rion stated. “But I don’t want to risk my life or injury or other people because you have something that is illegal on the creek.”

Rion says quite a few locals have informed him they’ve been informed to depart that space of the creek by George herself, who works as a county code enforcement officer for the Clarksville Police Department.

The Arkansas Times reached out to George by way of the police division and wasn’t capable of come up with her. Dollar and Rion have had little luck getting in contact along with her, both.

Rion has reached out to state and federal officers, together with the Arkansas Game and Fish Commission and the U.S. Army Corps of Engineers, who’ve all stated the fence shouldn’t be strung throughout the stream. But it nonetheless is.

“I have black and white pictures of grandma being down here when she was still younger, generations of us … but people are scared because of the signage and the landowners,” Dollar stated just lately whereas looking on the creek. “I have mostly kayaked through here, but until this is legally opened, I’m not going to swim there.”

John Fletcher, a lawyer with the Little Rock agency KutakRock, has been the conservation chair for the Arkansas Canoe Club for a few years. He says he’s seen points like what is occurring on the Little Piney Creek come up time and time once more.

“It’s not uncommon and it probably goes underreported, but I’d say every two to three years we have a significant issue … on an access road with someone putting a gate up, or a farmer or someone putting some barbed wire across the stream. Or maybe there are encounters on the stream side,” Fletcher stated. He stated disputes usually tend to come up on smaller streams just like the Little Piney, which don’t see as a lot use as bigger waterways and usually tend to run by way of the center of privately owned land. 

The core of the general public entry challenge, based on Fletcher, is whether or not or not the Little Piney is a “navigable waterway,” a authorized designation. If a waterway is navigable, then landowners will not be allowed to impede entry to it from public entry areas like county roads. 

The Commissioner of State Lands, a lesser recognized constitutional workplace in Arkansas, is responsible for removing debris on navigable waterways within the state. The workplace of Land Commissioner Tommy Land didn’t return a request for remark about the issue on the Little Piney or how they implement navigability on state waterways normally.

Statewide rights for entry to public waterways had been established in an Arkansas Supreme Court case called State v. McIlroy in 1980. The justices determined {that a} river’s leisure usefulness can be included within the standards for deciding if a waterway is navigable. That case got here from a dispute over the Mulberry River, a well-liked canoeing stream that additionally flows from the Ozarks to the Arkansas River, again within the late Nineteen Seventies. Fletcher says that as a result of McIlroy ruling, the Little Piney Creek is probably going navigable and the fence obstructing entry is probably going unlawful.

In the McIlroy determination, the justices famous the strain between sustaining public entry to recreation whereas additionally balancing the accountability of outside fanatics to maintain public areas and adjoining non-public lands clear. The majority opinion, written by Justice Darrell Hickman, says that “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.”

But the Little Piney has not but been declared navigable by a court docket, not less than in any paperwork that Dollar, Rion or Fletcher have been capable of finding. That places it in a authorized grey zone. 

Rion has gone forwards and backwards between native, state, and federal officers, just like the Johnson County Sheriff’s Office, Arkansas Game and Fish, and the U.S. Army Corps of Engineers for months, however the fence has nonetheless stayed up as a result of officers aren’t certain whether or not or not the river is navigable or who ought to implement the navigability. Fletcher stated that in circumstances like this, it’s usually on residents to get entry restored by suing a landowner. 

Spokespeople for each the U.S. Army Corps of Engineers and the Arkansas Game and Fish Commission confirmed that they don’t have enforcement authority over a small-scale navigability challenge and stated these public entry points are usually resolved on the native stage. The Army Corps of Engineers solely offers with business waterways just like the Arkansas River, whereas the Arkansas Game and Fish Commission solely enforces water entry and guidelines in wildlife administration areas.

For now, Rion remains to be making an attempt to get in contact with the elusive Linda George and Joe Fritz to attempt to discover a option to negotiate the removing of the barrier. If they will’t work it out, Rion is ready to convey a lawsuit towards the landowners in Johnson County Circuit Court.

“If the landowner is not willing to work with us, that is what my motion will be there for, to declare navigability. With it being in the legal gray zone it is almost pushing our hand for us to have to sue them to get it going,” Rion stated.