Public Ownership of Rivers in the United States

[Ken G]

This is a long one. Sorry about that, but it's also just a small portion of all that is available about river access and ownership. Go to this link to really drive yourself crazy.

http://www.nationalrivers.org/

I had to laugh a couple of weeks ago when the DuPage County Forest Preserve voted to "allow" fishermen to wade in F.P. property.

Considering that not allowing wading was illegal. Gee thanks for giving me my rights back.

Needless to say, I ignored that law.
______________

This article is about public ownership of rivers, public rights to use rivers, and river conservation. If you are faced with a river access or conservation dispute, do not try to “settle” it with confrontations or threats of violence, which can lead to criminal charges, fines, and jail time, without settling anything. Instead, follow the steps outlined at the end of this folder. By reading this article and related materials, you can educate yourself and other people about river law, and avoid costly and frustrating problems.

What are the origins of public ownership of rivers, and public rights to use rivers? The U.S. Supreme Court has held that rivers have been public since ancient times, in all civilized societies. Classical Roman law held that “running water” is “common to mankind.” It held that “all rivers and ports are public, hence the right of fishing in a port, or in rivers, is common to all men.” It held that this is one of the “Laws of Nature,” which are “established by divine providence,” and which “remain forever fixed and immutable.” It recognized public rights to use the banks as well as the surface of the water, on non-navigable as well as navigable rivers. This was based in turn on the laws of Greece and other ancient civilizations.

These principles continued into the law of the emerging European nations. In England, some rivers and their banks were fenced off by the medieval Saxon and Norman kings, for private use by the kings and noblemen, but public rights to fish and boat were reaffirmed by Magna Charta in 1215. A major legal treatise in 1250, again citing the Laws of Nature, said that “running water” is “common to all,” and “all rivers and ports are public, hence, the right of fishing in a port or in rivers is common. The use of the banks also is as public as the rivers.” Spanish law at the time also reflected the law of earlier civilizations, holding that “every man has a right to use the rivers for commerce and fisheries,” on both navigable and non-navigable rivers, including the river banks. French law also held that rivers and riverbanks are “public things, the use of which is common to all.” Institutes of Justinian, 2.1.1; Digest, 43, 12, 1, 1. On the Laws and Customs of England, Henry de Bracton, 1250. Las Siete Partidas, Alfonso X, 1265. French Civil Law, Jean Domat, 1694.

In America, public fishing rights were codified shortly after the colonies were founded. In the 1640s, the city of Boston established laws to protect public rights to fishing waters, and the Massachusetts Bay Colony declared public rights to fish in the “great ponds,” and to cross private property, if not cultivated, to get to the water. People tend to assume that fishing at that time was just for sustenance, but the sport of fly fishing was already popular in Europe before America was colonized, and in Philadelphia there were at least five different fishing clubs before the Revolution. The Treatyse of Fysshynge wyth an Angle, Juliana Berners, 1496. The Little Treatise on Fishing, Fernando Basurto, 1539 (Spain.) The Art of Angling, William Samuel, 1577. Massachusetts Declaration of Fundamental Liberties, 1641-1648. The Compleat Angler, Izaak Walton, 1676. The Art of Angling, Richard Brookes, 1740.

After the American Revolution, state and federal courts upheld public fishing rights, as well as state authority to regulate fishing to conserve fisheries. In Arnold v. Mundy, the owner of land next to a river claimed private ownership of the fishing rights, but the court said this amounted to claiming that “Magna Charta was a farce.” The court relied on “the law of nature, which is the only true foundation of all the social rights,” and said Magna Charta was “nothing but a restoration of common rights,” then held that the state “cannot make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right,” adding that such a grant “never could be long borne by a free people.” In Martin v. Waddell, the U.S. Supreme Court held that in America, as in England, the public has a “liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary.” (Fishing place.) In subsequent cases, the U.S. Supreme Court held that states hold surface waters “in trust” for the people, so that the people will have “liberty of fishing therein freed from the obstruction or interferences of private parties.” It held that a state cannot “abdicate its trust over property in which the whole people are interested,” and that rivers “shall not be disposed of piecemeal to individuals as private property.” These principles are now known as the Public Trust Doctrine. Arnold v. Mundy, 6 N.J.L. 1 (1821). Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.ed 997 (1842). Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.ed 1018 (1892). Shively v. Bowlby, 152 U.S. 1, 38 L.ed 331 (1894).

To this day, state constitutions affirm public ownership of all running waters. They typically say that “every natural stream” or “all surface waters” are owned by the state, for use by the public. Various state courts have upheld public access to running waters, calling it an “easement,” and saying, for example, “The capability of use of the waters for recreational purposes determines their availability for recreational use by the public. Streambed ownership by a private party is irrelevant. If the waters are owned by the State and held in trust for the people by the State, no private party may bar the use of those waters by the people.” Public access to streams, and trails along streams, is further supported by the legal doctrines of custom and prescription. Willow River Club v. Wade, 100 Wis. 86, 76 N.W. 273 (1898). Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 102 Am.St.Rep. 865 (1904). Day v. Armstrong, 362 P.2d 187 (Wyo. 1961). People v. Mack, 97 Cal. Rptr. 448, 19 Cal. App. 3d 1040 (1971). Montana Coalition for Stream Access v. Curran, 210 Mont. 38 (1984).

What about navigable rivers? While all running waters are held in trust for the public, rivers and streams that are navigable have additional legal status. Public navigation rights, like fishing rights, have been recognized since ancient times. After the American Revolution, the founding fathers moved quickly to ensure public rights to navigate on all navigable rivers and streams. In discussing rivers and their tributaries, the very first law passed by the United States Congress said these “navigable waters,” as well as “the carrying places between the same, shall be common highways, and forever free” to the public, “without any tax, impost, or duty therefor.” An additional federal law in 1796 confirmed public rights to “all navigable waters.” Note the reference to portable watercraft such as canoes, and the right to carry them from one stretch of river to another. River navigation at the time was in canoes and small boats, using oars and paddles. Canoes and kayaks are thousands of years old. (“Canoe” was an Indian word, and the Eskimo word “kayak” is related to the ancient Greek word for a small boat.) From 1804 to 1806 the Lewis and Clark expedition, sponsored by Congress and President Thomas Jefferson, canoed from St. Louis to the Pacific Ocean and back, carrying their canoes where necessary. (Steamboats were not developed until later in the 1800s.) Also note that government agencies cannot charge fees for river access, and that public rights to rivers are “forever,” not just until landowners try to block them. In 1954, courts held that a canoeist was not trespassing when he pulled his canoe over a landowner’s fence across a stream (pushing down the fence in the process,) continued canoeing on the stream through private land, pulled the canoe up on the bank to get around a log jam, then waded on the streambed to fish, before getting back in the canoe and continuing downstream, leaving the private land. Courts have recognized “a public right of access for fishing and navigation to the point of the high water mark,” adding that the public can “cross private property in order to portage around barriers in the water,” but holding that “the right to portage must be accomplished in the least intrusive manner possible.” In addition, federal courts have held that “all navigable rivers” are subject to the federal navigation servitude, and are therefore open to navigation by the public, regardless of state or private ownership of the beds and banks. For example, the Jackson River in Virginia is navigable because, as the court ruled, “canoes can navigate the upper river without trouble except during the late summer, and canoeing experts consider the Jackson to be a very fine canoeing stream, except for troubles with landowners along the river.” Northwest Ordinance of 1787, 1 Stat. 50. Act of May 18, 1796, 1 Stat. 464. The Journals of Lewis and Clark, 1804-1806. Gibbons v. Ogden, 22 U.S. 1, 6 L.ed 23 (1824). Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17 (1954.) Loving v. Alexander, 548 F.Supp. 1079 (1982).

What about navigability for various legal purposes? While all running waters are held in trust for the public, and all rivers and streams that are physically navigable are open to public navigation, rivers and streams that are navigable for title purposes have a third level of legal status. Federal courts have held that those rivers that are used (or capable of being used) in their natural condition, for the transportation of people or goods, using customary watercraft, are navigable for title purposes. (Other qualifications determine navigability for Commerce Clause purposes, or navigability for Admiralty Law purposes.) For title purposes, a river that is useable for tourism definitely qualifies, as does a river historically used, or capable of being used, by fur trappers in canoes, or by lumbermen floating logs downstream to mills. For example, federal courts held that the McKenzie River in Oregon is navigable for title purposes due to historical use to float logs to mills, and current use by guided fishing trips in rowboats. The Gulkana River in Alaska is navigable for title purposes due to current use by guided raft trips for sightseeing and fishing. Note that occasional shallow spots, blockages, waterfalls, or unrunnable rapids do not prevent a river from being navigable for title purposes. Courts even held that the Niagara River in New York is navigable (assuming you portage around Niagara Falls!) Also note that a waterway can be navigable even if it is called a “stream” or “creek” on maps and signs, and even if it is only physically navigable during the boating season, not all year.

The U.S. Supreme Court has held that the beds and banks of rivers and streams that are navigable for title purposes are owned by the states. (“Title” means ownership.) The court has held that when the original thirteen states took sovereignty of their land from the British after the American Revolution, they became the owners of the land underlying waters that were navigable for title purposes. The states that later entered the union also own the land under such waters, under the Equal Footing Doctrine. The beds and banks of these rivers and streams are a strip of public land, to be conserved for public benefit, even where the river or stream passes through private land. This strip of land is often called the “submerged and submersible land,” as opposed to the “upland.” Pollard v. Hagan, 44 U.S. (3 How.) 212, 11 L.ed 565 (1845). Economy Light & Power Co. v. United States, 256 U.S. 113, 65 L.ed 847 (1921). Sawczyk v. U.S. Coast Guard, 499 F.Supp. 1034 (W.D.N.Y. 1980). Montana v. United States, 450 U.S. 544, 452 U.S. 911 (1981). State of Oregon v. Riverfront Protective Association, 672 F.2d 792 (9th Cir. 1982). Alaska v. Ahtna, Inc., 891 F.2d 1401, (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990).

Where is the boundary between public land and private land along a river that is navigable for title purposes? Until the early 1800s the boundary was at the highest level the water reached during floods. Since then courts have set the boundary at the ordinary high water line, although the government still has public trust authority over the zone between the ordinary high water line and the highest level, for purposes such as conserving wetlands and preventing pollutants from washing into rivers. The ordinary high water line is the visible line on the ground between land that is affected by the water and land that is not. (It is not a theoretical line requiring hydrologic records and surveying to locate.) Below the line, the surface of the ground is sand, gravel, and rocks, and the vegetation is plants that only grow near water. Above the line, the surface is dirt and soil, and the vegetation is “upland vegetation,” of a type that is found even well away from the river in that area. Gravel bars and sandy beaches along rivers, since they are formed by frequent depositing of sand by the river, are below the ordinary high water line. On rivers that are navigable for title purposes, the beds and banks are public trust land up to the ordinary high water line, (not just a public easement,) and the adjacent private lands (or other types of government lands) begin at the ordinary high water line. Landowner fences and “No Trespassing” signs should be located above the ordinary high water line. Small dams, used to divert water from the river to irrigation ditches, should be located so as to not block navigation. (See previous case citations.)

Who determines which rivers are navigable? As the U.S. Supreme Court has repeatedly said, “rivers that are navigable in fact are navigable in law.” If the river is physically navigable, for whatever purpose is in question, it is legally navigable. No official designation is necessary. Note that navigability for title purposes is a matter of federal law, even though it determines state ownership. State governments can make factual determinations of title navigability based on the weight of the evidence, and they can affirm that various rivers are navigable. But where they have not yet done so, the rivers that are “navigable in fact” are still “navigable in law,” and are still public. (They are not private until the state government gets around to designating them as public.) Also, note that state courts and legislatures cannot establish their own more restrictive standards of navigability; they must abide by the national standards. If they say a particular river is not navigable for title purposes, but the river is physically navigable in fact, their opinion is not determinative. Brewer-Elliott Oil and Gas Company v. United States, 260 U.S. 77, 43 S.Ct. 60, L.Ed 140 (1922). United States v. Utah, 283 U.S. 64, 75 L.Ed. 844 (1931). Utah v. United States, 403 U.S. 9, 29 L.Ed.2d 279 (1971). State v. Corvallis Sand and Gravel Co., 429 U.S. 363, 50 L.ed 2d 550 (1977).

So what are the public’s rights to fish and boat on various rivers? As explained above, there are three levels of public rights to rivers and streams:

First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land.

Second, on streams that are temporarily physically navigable by small craft, (even if they are not navigable for title purposes,) the public has the right to navigate, and to scout and portage around rapids, falls, or other obstacles, in the manner least intrusive to private land.

Third, on rivers and streams that are, in fact, navigable for title purposes, (because they fit the description given earlier, with or without official designation,) the beds and banks are public land, up to the ordinary high water line. Courts have held that the public can engage in other responsible recreation (in addition to fishing and boating) within this zone, such as picnics, camping, walking, resting, reading, photography, and painting. When walking along the river, the public can walk above the high water line where necessary to get around obstacles, in the manner least intrusive to private land. The public can use the banks of these rivers year round, even if the water has dried up. (On rivers that are not navigable for title purposes, the public can only use the banks as necessary to make use of the water, and the right to use the banks comes and goes with the water.)

Government agencies cannot sell or give away rivers to private ownership or control, because rivers are held “in trust” for the public under the Public Trust Doctrine. They must allow the public to fish, boat, and recreate as described above. They must conserve the strip of public land along navigable rivers, including its wildlife habitat and wetlands. They can manage recreation to conserve resources of public interest, but not simply to reduce or eliminate recreation. They can prohibit camping in particular areas, but not exclude it entirely from long stretches of river.

On the other hand, they can (and must) prohibit activities that harm public resources, such as leaving trash or tearing up the beds or banks of a river with vehicles. They must limit mining, and the taking of sand and gravel, to certain areas. They must prevent the discharge of sewage and pollution into rivers, and prevent toxins and livestock dung from accumulating on lands along rivers and washing into rivers during floods. They must prevent adjacent landowners from bulldozing and landfilling along the banks of rivers. They must manage water appropriations so as to leave enough water in rivers for fisheries and navigation.

Note that navigability law developed before the invention of motors, and it does not confer motorboating rights. In keeping with the Public Trust Doctrine, government agencies must only allow motorboats at times and places where they are not a major impact on other river users. They can also require motors to be of the quieter types made possible by new technology.

Also note that navigability law does not confer commercial operating rights. In keeping with the Public Trust Doctrine, as well as other authority to regulate commerce, government agencies must limit commercial river trips to certain places, times, and volumes, so as to avoid major impacts to other users. They can also limit activities on commercial trips, such as lunch stops, to certain areas. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.ed 1018 (1892). Swan Island Club v. Yarbrough, 209 F.2d 698 (1954). Hitchings v. Del Rio Woods Recreation & Parks District, 55 Cal. App. 3d 560, 127 Cal. Rptr. 830 (1st Dist. 1976). People v. El Dorado County, 96 Cal. App. 3rd 403, 157 Cal. Rptr. 815 (3d Dist. 1980). National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983).

What if a property owner’s deed says he owns the river? First, it’s important to examine the deed and other local documents. A landowner may believe that he owns the river, but public rights to rivers are “prior existing rights” and are frequently mentioned as such on deeds. Even if they aren’t mentioned, by law a deed can only convey things that were actually owned by the seller. In some cases early property surveyors mentioned public rights to rivers, and in other cases they neglected to do so, but either way their actions are not the deciding factor. Public rights to rivers are a matter of law, dating back to the founding of our nation and earlier. They are not decided by local deeds.

Deeds often say that the boundary between two farms runs down the middle of a river. That boundary arbitrates the competing claims to the river between the two farms, not the competing public and private claims to the river. It is incorrect to rely on such a deed to deny public ownership or use rights on a river.

If a court or agency declares that a river is open to public use, wouldn’t that be a “taking” under the Fifth Amendment, entitling the landowner to “just compensation?” No, because rivers were public before the original property deeds were prepared. When a court holds that a certain river is open to public use, it is saying that it was public all along, not that it was previously private and is now public. It is sad that some attorneys still suggest to landowners that they could receive money if “their” river is opened to public use. Courts have affirmed public rights on thousands of miles of rivers, and never paid opposing landowners anything. In addition, courts have made opposing landowners pay the attorney’s fees of nonprofit organizations working to confirm public rights to rivers. Gibson v. United States, 166 U.S. 269, 41 L.ed 996 (1897). Loving v. Alexander, 548 F.Supp. 1079 (1982). Arizona Center for Law in the Public Interest v. Hassell, 837 P.2d 158 (Ariz. App. Div. 1 1991).

What about public access to and from rivers? As explained earlier, the law is that the rivers and the carrying places between them shall be forever free. The public does not have a general right to cross private land to get to and from rivers, but such a right exists at traditional access routes, under the above law and the legal doctrines of custom and prescription. States have an affirmative duty to maintain traditional access routes to rivers, and acquire additional access where needed and available. Where public roads cross over rivers, the public has the right to get from the bridge down to the river itself, so landowners cannot connect fences to bridge abutments in a way that blocks public access to the river. 39 Am.Jur. 2d (1968) Highways, Streets & Bridges, section 256, p. 644. State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969). Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P.2d 50 (1970). People v. Sweetser, 72 Cal. App. 3d 278 (1977).

How are river ownership and access rights affected by state law? As explained earlier, public rights to rivers are primarily a matter of federal law, based on law recognized since ancient times in all civilized societies. State governments can manage river resources, but in ways that do not conflict with federal law. Since state governments hold river resources “in trust” for the public, they cannot sell or give them away to private ownership or control. However, some states are better trustees of rivers than others. (See the separate folder for specifics about your state. Separate folders have been prepared for some states, and are still being prepared for others.)

Important! What to do in case of river disputes: First, do not try to “settle” river disputes by confrontations or threats of violence, which lead to irrelevant criminal charges that can cost you a fine and land you in jail, without settling anything. Instead, leave the river and avoid a confrontation.

Second, it could be very unwise to sue anybody or try to initiate a “test case.” The pertinent facts in any river dispute must be legally proven and admitted in court, which takes a lot of time and costs thousands of dollars. The landmark river law cases took years to go through the appeals process, and were litigated by specialized attorneys working full time for months. If you seek justice for a river issue in local courts, the costs and frustration will be enormous, and in the end the court is very likely to rule on narrow, technical grounds that don’t solve the real issue anyway. Even if you win a case, it won’t significantly change either law or practice. People will revert to their usual assumptions.

So what do you do? The way to make progress toward resolving disputes is through discussion and education among river users, adjacent landowners, sheriffs, district attorneys, private attorneys, and government agencies. If the issue involves environmental damage or construction near a river, distribute this folder to all of these people, perhaps with copies of the law journal articles listed below. Talk especially with government agencies that manage natural resources, and consult environmental law attorneys who have experience with river law.

If the issue is public recreational access, leave the river and avoid a confrontation, then distribute this folder and related materials to all of the above people. Meet with them in person when possible, or if not, communicate in writing and by phone. Explain the problem clearly and simply, and ask them to correct it, in compliance with existing law. If you have an attorney, take him with you to meet with these other people, but try to make progress through this process of meetings and education, before proceeding with legal action. If a local court previously convicted a river recreationist of trespassing, that is not determinative of current rights, because public rights to rivers are primarily a matter of federal law. However, a new court case is usually not necessary or helpful, for the above reasons. New state legislation is usually not necessary or helpful either, for similar reasons.

Since having a truly private river could be of real value, some people will never admit that “their” river is actually public. Whenever a court confirms that the public does have certain rights on rivers, they try to say that the public has only those rights, no others. Instead of recognizing the public’s right of access to “all running waters” and “every natural stream,” these people try to limit it to only navigable streams, then only to rivers that are navigable in larger watercraft, then only to rivers that have been officially designated as navigable. Or they try to limit public rights to only the surface of the water, or only to touching the beds and banks while boating, not while fishing. All of this is simply a stalling tactic to avoid complying with the law. It is also an enormous waste of time.

However, most people are willing to look at the law. Therefore you can make a tremendous difference by educating more people about public ownership of rivers, river conservation, and public rights to use rivers for responsible recreation, using this folder and other relevant materials.

Do not expect immediate success. The wheels of government turn slowly, and it takes time for people to shift their beliefs. When you work on river issues like these, you are working for the long term, not for immediate results.

References: The court decisions cited herein are available at any law library, or from regular libraries through interlibrary loan. Most state constitutions, many U.S. Supreme Court decisions, and other legal materials are available on the Internet. For further discussion of river law, see the following law journal articles: Forever Free: Navigability, Inland Waterways, and the Expanding Public Interest, by Richard M. Frank. 16 U.C. Davis Law Review 579 (1983). The Public Trust: A Sovereign’s Ancient Prerogative Becomes the People’s Environmental Right, by Jan S. Stevens, 14 U.C. Davis Law Review 195 (1980). Public Trust Rights, by Helen F. Althaus et al., U.S. Department of the Interior, Office of the Solicitor (1978). (Available from the Oregon Division of State Lands.)

[MattC]

Ken i got a quetion for you. I dont know if you a familiar with the DesPlaines river downstream of the Hoffman dam at the bend also called "swans pond". The town of Riverside has made it illegal to bank fish on there side of the river at the bend, its been this way since i can remember. There are some concrete steps that line the entire bend in the river.

My question is, according the the article you wrote, you should be able to bank fish up to the normal high water mark. I have been fishing the river there for a while and i would have to guesstimate that the normal high water mark would be just covering the steps.

Today i was fishing in that area and some jogger came by saw me fishing there told me i cant fish there and then ran over to the police station and soon after a police officer drove over and kicked me out.

I was just wondering what your thaughts are on this, if it is illegal for me to be fishing there.

[Ken G]

Matt,
I remember this issue coming up over 10 years ago. Technically it's illegal to keep you from the water. Especially if it's public land up to that point. Problem is, you would have to go up against them to prove your point. There is a good chance you would win, but it would be a lot of work. From a river rights stand point you have every right to be there. No different than someone that wanted to just sit there and stare at the river. If they ban you, I would think they have to ban the sitters. I have a feeling this comes from the fact that the average fisherman is a slob and leaves garbage everywhere. I would make some calls and ask lots of questions. It can't hurt and you may get things changed.

I would contact the Riverside Fishing Club. There has to be a contact name and number over on Chitown. Maybe they can clarify more, but fishing clubs tend not to want to make waves.

Years ago DuPage County banned wading in rivers through forest preserves. A year or two ago Brent Manning changed that. My initial comment was . . . gee thanks for giving back what was illegal for you to take away.

It is the one area that I agree with the ISA. Education can change things. I tend to first try to educate, and when that fails, just do what I know is legal.