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Fossil hunting legal question


jkjoller

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Hi all-

I would think this has been answered but after searching I couldn't quite find an answer.

I live in Dallas near White Rock Lake. There are a lot of creeks that branch off all through the Dallas area. I like to explore these on occasion (when I just want to get out on a Saturday) and for the most part I've been left alone (and had some success!). Does anyone have any "jurisdiction" over these creeks? I ask because I was exploring one that had houses on each side. OR actually their backyards that led to the house. Anyway, I was no where near someone's property (basically in the middle of the creek and on the sides) but a guy came down and said I wasn't allowed to look through there. I told him I was searching for fossils and he said he didn't care and he would call the cops. I was respectful and left but can homeowners actually do anything? As I stated I was not searching or messing with any homeowner property unless they are legally able to claim the creek.

As a fossil hunter, I always want to be respectful but I also know people can be jerks sometimes.

 

thanks for advice!

Jeff

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Can't speak for Texas, but here in California it is my understanding that unless the waterway is navigable ( with boat ), it can be part of the private property that it runs through.

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These are not navigable by boat (these are creeks with a small amount of running water). Also, to clarify, these are not creeks that cut through someone's property. Rather there are houses on the right and left of the creeks. I see a lot of run off from yards that go into the creeks.

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I think that if it is not navigable it is private property in Texas. Our Texan members would know better.

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Scylla- Not sure what you mean. It is navigable....JUST NOT BY BOAT. I could walk the creek for miles and miles...all the way to White Rock Lake (or whatever lake it feeds into). So I would think that makes it not private property. Is a homeowner allowed to own just the section of a creek that sites behind their home? That's what I'm trying to find out. I'm enclosing a shot from Google Maps to better explain. I've highlighted the homes that are on the right and left and the creek that runs in between. It goes on for miles and runs into White Rock Lake.

creek-view.jpg

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19 minutes ago, jkjoller said:

Scylla- Not sure what you mean. It is navigable. JUST NOT BY BOAT. I could walk the creek for miles and miles...all the way to White Rock Lake (or whatever lake it feeds into). So I would think that makes it not private property. Is a homeowne allowed to own just the section of a creek that sites behind their home? That's what I'm trying to find out.

He means "Navigable by boat". 

 

You should really check with local authorities on the legality of collecting in the creeks. 

Trusting advice from the internet is a dodgy practice.  :unsure:

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Check the actual property records to see who owns the land.  From there you can determine what trespass laws to research.

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hadrosauridae

What John said.

 

The problem is that property owner rights and riparian rights vary from state to state.  Even the definition of "navigable" changes and there are waterways with barely a trickle that meet the meaning.  To complicate it more, the access can change with intent.  While a riparian area may be legally entered for hunting and/or fishing, the physical ground and rock are still owned as private property.

 

Its a confusing and complicated giant grey area and you have to do your homework and research on the exact spots you want to collect from.

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1 hour ago, Fossildude19 said:

He means "Navigable by boat". 

 

You should really check with local authorities on the legality of collecting in the creeks. 

Trusting advice from the internet is a dodgy practice.  :unsure:

Tim is correct. Read @uncle siphuncle post on site prospecting Here 

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Hi. I have walked about every creeks in the DFW area looking for fossils.  Most of these creeks are owned by the city or the state so anyone can access.  Cities maintain these creeks for flooding control and recreational activities.  There are no trespassing signs anywhere  Also nobody is going to tell you to get off.  Only creeks that are not permissible are those that have no trespassing signs or fenced off like outside the DFW area.   I have found numerous fossils in these creeks.   Just be careful when it rains hard, because it can be raging rivers. During the summer there are lots of spiders, mosquitos, slimy rocks that can bite you, or trip and fall.   I usually cover my self with bug spray on the face, arms and legs before venture out. 

 

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1 hour ago, Creek - Don said:

... Most of these creeks are owned by the city or the state so anyone can access.  Cities maintain these creeks for flooding control and recreational activities.  There are no trespassing signs anywhere  ...

 

This is somewhat confusing.  Do you mean there are no no trespassing signs? 

 

Don

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40 minutes ago, FossilDAWG said:

This is somewhat confusing.  Do you mean there are no no trespassing signs? 

 

Don

Exactly, no trespass signs.  Normally you would see those signs posted next to the creek entrance.

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On 2/20/2020 at 1:15 PM, jkjoller said:

These are not navigable by boat (these are creeks with a small amount of running water). Also, to clarify, these are not creeks that cut through someone's property. Rather there are houses on the right and left of the creeks. I see a lot of run off from yards that go into the creeks.

 

On 2/20/2020 at 1:40 PM, jkjoller said:

Scylla- Not sure what you mean. It is navigable....JUST NOT BY BOAT. I could walk the creek for miles and miles...all the way to White Rock Lake (or whatever lake it feeds into). So I would think that makes it not private property. Is a homeowner allowed to own just the section of a creek that sites behind their home? That's what I'm trying to find out. I'm enclosing a shot from Google Maps to better explain. I've highlighted the homes that are on the right and left and the creek that runs in between. It goes on for miles and runs into White Rock Lake.

creek-view.jpg

Though new to TFF, at last, here’s a topic that I can actually speak knowledgeably about!

 

I am an environmental planner (not a lawyer so—caveat emperor—free Internet advice is worth what you paid for it!) who’s worked in California and, now, Texas. The “water law of the West” is crazy complicated but the basics are pretty straightforward. Let me lay out some basic land use (urban planning) info. that will hopefully be of interest to TFF members. Just some notes as they occur to me. I suppose I should check other forums and maybe post there if there’s enough member interest in these topics? By the end, I’ll work my way around the the water law part, honest, so bear with me.

 

First of all, though it’s not always obvious, remember that ALL land in the US is “owned” by “someone.” What we think of as “public lands” are really just those owned by a government entity. Such lands may be managed by the same entity that owns them (states’ “School lands” in land grant states, are common in central & western US, for example). For lands “owned” by the federal government, a variety of agencies are tasked with their management. For example, US Bureau of Land Management, BLM, manages probably the bulk of the public lands in the US and thus, such lands are colloquially known as “BLM lands.” National Park Service & National Forest Service manage their self-evident resources (X Y or Z “National Park” or “National Forest,” etc.) The US Fish & Wildlife Service manages most federal Wildlife Refuges and Reserves, etc.) A State fish & game service will manage (& possibly own) a State Game Preserve or State Recreational Area (often along lakes or reservoirs, for example). A city may own a public park within city limits. And so on and on and on.

 

Note, however, it is possible for there to be privately-owned (or leased) parcels within a large public land area—especially on federal lands. Such parcels of land may or may not have a house or other structure on them, or may just be grazing lands (super common on BLM lands) or even mineral or mining leases. In such cases, however, it’s generally up to the landowner (or controller) to POST their property. This is where you should see the “Posted No Trespassing” signs — but! remember! lack of signage doesn’t guarantee anything either. Might just make it harder to enforce a trespassing claim (this is where a lawyer might be able to explain...) But still: a parcel could be private property even with NO signs of ANY development or use on it to distinguish it from the surrounding public lands! (This will be a common recurring theme....)

 

So! If you’re interested in fossil hunting (or any other type of collecting for that matter), your safest bet is to find out (ie, Google!) the NAME of the public land/region and which agency manages it. There will be a publicly available (online!) MANAGEMENT PLAN for it. Generally speaking, ALL public lands should have a plan of this sort with specifics on allowed uses, prohibited activities, and so on.  IF there’s no specific plan, then the rules dictating the land’s management will likely fall under the state (or US) Code of Regulations for that agency. (More tedious to research, but still find-able. Google is a real life-saver!) So: once you find the guiding document, you can look up the rules.

 

Check whether fossil hunting is allowed or not, where it is allowed (if allowed) and any limits or restrictions (very common to see rules like “no mechanized excavation allowed” or limits of “20 lbs per person for non-commercial purposes” for minerals, including fossil materials [or whatever]). Also, even when fossil (paleo) hunting IS allowed, it’s extremely common to see collecting of archeological finds (human cultural artifacts) forbidden (though incredibly hard to enforce, at least the laws are on the books! Which at least gives law enforcement a tool against pot hunters and other destructive trespassers doing genuine harm to the scientific and cultural resources and values that are an important public asset!)

 

So, in terms of WATERS (ie, “drainages” — rivers, creeks, streams, etc., but also lakes, ponds, reservoirs, and so on. Any fresh water. — salt water, ie, marine areas, get trickier so I’m going to skip that here!): To the extent that the water feature is on/in a PUBLIC LAND, everything in the prior paragraphs also apply to it. In that regard, public lands are relatively simple. Though, note: It is the ownership of the water feature, NOT the “jurisdiction” that dictates whether you’re trespassing or not (and whether it’s legal to collect fossils from a drainage feature or not!)

 

Side note:  For waters, the term “jurisdiction” really just means who over sees the LAWS that govern what can & cannot be done IN or TO a water. For example, any feature meeting the definition of a “Water of the US” — which is supposed to be “just” “navigable waters” — meaning a ship of sufficient size for (interstate?) commerce can traverse it — is subject to the rules of the federal Clean Water Act (CWA). But, until very recently, these rules ALSO applied to “tributeries” to navigable waters. They changed (were loosened considerably) under Trump, but given the history of environmental regulations, will likely go back to being more tightly controlled the next time a Democrat is president — it’s getting hard to even keep track of all the changes lately! Also, as a rule of thumb, the more “environmental minded” (aka “liberal”) the state, the more likely it is for waters protections to be more broadly applied & thus tightly regulated. At any rate, the CWA provisions say things like: you can’t fill (put dirt into) or dredge (remove dirt from) a Water of the US without a permit issued by the US Army Corps of Engineers (ACOE). The ACOE also builds and maintains a lot of the country’s major flood control infrastructure (dams, reservoirs, dikes, levees, etc.) So, you’ll often hear about a waterbody being “under Army Corps jurisdiction” for this reason. But! Remember! That’s NOT synonymous with ownership! This seems to be the MAIN POINT OF CONFUSION in the above comments. So, I help this info helps!

 

So, what about PRIVATE LANDS? Yes, a water body or drainage CAN absolutely be private property! For lakes, even when the water body itself is owned by, say, a water district that uses the water to supply a nearby town, the SHORES of that lake may very well be private property of the surrounding land owners! So, while it may be ok to canoe around a public lake, you may be trespassing as soon as you step onto a part of its shore! Again, look for a “no trespassing” sign as a hint — though again, absence of signage doesn’t necessarily make it legal to trespass! (Sound familiar?!)

 

So, as for RIVERS AND CREEKS, (at last - wow, thank you for sticking with me here - I didn’t mean to be so long-winded, but this is what I do professionally & I am kind of passionate about a topic I’ve spent the last 20 years studying!!) Again, they absolutely CAN be private property! EVEN if “navigable” and a “water of the US” — remember, that just dictates what laws apply if you try to alter or build in/on the drainage or water feature! Again, “jurisdiction” does not equal “ownership.” (Think about it like this, if you live in a town, you might be under the “jurisdiction” (ie, legal authority) of the local police. But, that just means it is them, not the State troopers or the FBI, that will come investigate a crime, say, if your house (your PRIVATE PROPERTY) was robbed. Make sense?)

 

So, as a RULE OF THUMB for creeks and rivers:  You’ll often see that drainages run right through a variety of individual properties (and owners!) for OLDER parcels (pre-1980s, say) and for large lots (an acre or larger), particularly in the Midwestern US and in most rural areas. For these, even in a creek, if you’re on private property, it is private property! Get permission first to avoid trespassing! (Old news to the TFF members who also metal detect, I’ll bet!) 

 

For NEWER developments, particularly for what are known as “planned subdivisions” or “planned communities”— common in suburbs and cities (espec. on East & West coasts— California, Florida, Texas, Arizona, etc.) typically with SMALLER lots and all the homes built at one time or by the same developer (as a clue), it is EXTREMELY COMMON to see the drainage feature (natural or even man-made, such as a pond or lake, for example) to be placed on its own individual lot (parcel), with the individual homes or other lots delineated as SEPARATE parcels which are owned by the master developer of the subdivision or (very commonly, espec in California) owned by the Homeowners Association (HOA) that “governs” the subdivision— again, this is STILL private property, even tho owned by a “corporation”of sorts, not an individual property owner.

 

THIS IS LIKELY THE CASE FOR THE EXAMPLE FOR THE DALLAS PHOTO YOU POSTED. (I didn’t research it specifically—I’m just guessing based on professional experience. You can look it up simply for yourself via Google maps, which are often pretty good about showing property lines. But! You’d have to look at the city or county property records —almost always available online these days!—to know for sure, ie, the actual legal property boundaries.)  THUS, BOTTOM LINE IS: Even if it’s not posted as “private property” and/or “no trespassing,” it may very well be private property!

 

SIDE NOTE: The reason this is so common in modern subdivisions is because the drainage often has to be “managed” for proper flood control functionality, water quality protections and other legal reasons (laws that didn’t exist much or were rarely enforced before the environmental movement really kicked off in the early 1970s).  IF the drainage were to pass thru 40 different property owners’ backyards, the necessary maintenance (cutting back vegetation once or twice a year before the rainy season, for example) would be a NIGHTMARE to enforce and ensure. So, the jurisdictional agencies (city, county, ACOE even) like to see it all held as a “COMMON AREA” by one entity. Though called “common” this mostly just means it is held “in common ownership” by the master land-holding entity that built the subdivision—not that any “common” person can go in it! Often, the owner will be the master builder or original landowner and then these parcels (which will often also include any “community amenities” provided within the subdivision, such as swimming pool, gym, rec facilities, parking lots and all landscaped “common” areas, parks and picnic or bbq areas, etc) will have ownership transferred to the governing Homeowners Association (HOA) which get set up and run similar to how a corporation is run, with each property owner within the subdivision having a vote and self-governing their community with an elected board and so on. (Again, a whole ‘nother messy ball of property law that I won’t get into here!)

 

But, still, REMEMBER: a creek or river or any waterbody on a parcel owned by an HOA is STILL PRIVATE PROPERTY! (So, bottom line: that guy who yelled at you to leave was *probably* correct—whether he truly knew it or not!) So, it kinda SUCKS for us eager and generally innocuous fossil hunters, I know, but as they always say, “ignorance of the law does not obviate guilt.” Darn it! So, let’s all be respectful and responsible out there as we hunt, ok?

 

Good luck and happy hunting!! 

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In Texas it is correct that any land not owned by a government entity is owned by private citizens but that does not mean that the public cannot access it. Certain waterways are open to public use as long as they can be accessed at a point that is also public like a road or other waterway available to the public. Certain areas owned by the state or local governments have their own rules but private land considered a navigable waterway is open to the public.

 

It does not have to have sufficient water to actually navigate it by boat. If any waterway is an average of 30 feet or more bank-to-bank it is public even if it is dry at the time. Many landowners do not know and some do not like or agree with this but it is the law. When I am out I carry a copy of this document as proof of my right to be there just in case. You are allowed to do anything that is otherwise legal, hunt(in season), fish, swim and according to court rulings, collect fossils.

 

http://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/navigability.phtml

 

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All that being said and done, it would be much easier for us to help you identify the fossil if you post some photos of it. :D

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19 hours ago, BobWill said:

It does not have to have sufficient water to actually navigate it by boat. If any waterway is an average of 30 feet or more bank-to-bank it is public even if it is dry at the time. Many landowners do not know and some do not like or agree with this but it is the law. When I am out I carry a copy of this document as proof of my right to be there just in case. You are allowed to do anything that is otherwise legal, hunt(in season), fish, swim and according to court rulings, collect fossils.

 

http://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/navigability.phtml

 

 

 

Wow!  I wish Georgia had such a law.  Here a waterway must be able to accomodate a commercial barge to be considered a navigable waterway.  There are no navigable waterways above the fall line, the topographic feature that marks the inland edge of the coastal plain.  This means that all the rivers and streams in the north Georgia mountains, and everywhere on the Piedmont, are not navigable waterways, even if they are hundreds of feet wide, because they are not consistently deep enough.  Owners of land along the rivers/streams here own to the middle of the waterway.  If they happen to own both sides of the river they can legally block kayaks and canoes from passing through.

 

Don

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Sounds like you need to move to Texas. :D

 

I would say a vast majority of rivers, creeks, etc in Texas are without water for at least one part of the year.

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  • 6 months later...
On 2/23/2020 at 3:07 PM, CAT B said:

 

Though new to TFF, at last, here’s a topic that I can actually speak knowledgeably about!

[large chunk snipped to save space since the original can be consulted above]

Quote

 

Good luck and happy hunting!! 

Sorry for the very belated response to this very excellent post above.  I work in City government and I deal with many of the same issues you discuss.  I just wanted to expand on a few things based on my own experiences.  
 

As noted and especially in western states where rain tends to be a feast or famine thing and good drainage is the only way to avoid flooding when, as we did in my back yard earlier this week, have an anomalous 6” of rain overnight, proper management of creeks and streams is an absolute necessity.  As a result and as a condition for development approval, builders are usually required to keep streams as part of common grounds that are deeded to the HOA.  
 

HOWEVER, just because an urban or suburban homeowner almost never legally owns the stream running through his backyard, that does not mean he doesn’t believe in his heart that  he DOES own it. I’ve had situations where we purchased an easement from the HOA to run utilities along the stream corridor within that HOA commonly owned property and still had homeowners calling the police and stopping construction or patrolling “their” land with a gun and not letting us enter.  In extreme cases, showing them legal documents didn’t change their opinion in the least. In one case, the property owner’s own lawyer calmly explained that the land was not his and the property owner still refused to believe it.  We literally had to file for a restraining order in that case to finish construction.  
 

In another case, we purchased easements from the HOA and discovered that several homeowners had extended their perimeter fences deep into HOA property.  Our easement agreement gave us the right  to remove obstructions and required us to restore everything we touched to equal or better condition than existed before we arrived AT THE DISCRETION OF THE PROPERTY OWNER.  In this case, the HOA approved us removing the fence and advised that they did not want it reinstalled.  The property owners complained bitterly and for months afterwards.  Finally, one of them with more money than brains sued us because, per her lawsuit,  by removing the fence we interrupted her attempt to take adverse possession of the land.  
 

Adverse possession is a legal term meaning a person can essentially steal land simply by acting like they own it and doing it in an “open and notorious” manner and doing so continuously for a proscribed period of time.  If they do all of that and never get challenged by the current owner, eventually, they can have the land declared theirs.  In other words, this woman sued us because we stopped her attempt to steal land.  Imagine if a bank robber sued the security guard who shot him for interrupting his attempt to take adverse possession of money from the bank’s vault!   Shockingly, at least to date, a judge has refused to throw the case out of court.  
 

My convoluted point here is that, while the law is important, as a collector discretion is even more important.  Even on land you know to be public and open to collectors. If somebody tells you it’s their property and you have to leave, your best choice in almost all cases is to apologize and leave as quick as you can.  There is a pretty good chance that person believes in his heart that he owns that land, and, thus, may be willing to escalate to get you out of there.  If you believe the person has “crossed the line” and threatened you, filing a police report wouldn’t be a bad idea, but again, first  leave the area of confrontation immediately.   You can always go back another day. 

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