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Freedom to use rivers
Photo by David Sterge
In this Fourth of July season, it is good to consider what freedom means regarding your rights on rivers. The first Act of the first Congress of the United States declared that the navigable rivers of the nation, and the “carrying places” between the navigable stretches, “shall be common highways, and forever free.” The “carrying places” were the portages around major rapids, waterfalls, and other obstructions (and even from one river to another river nearby.) At that time, the fur trade was an important industry, and furs brought from American forests sold well in New York, London, and Paris. These furs were transported by river, in canoes. Canoes and similar craft are about the heaviest watercraft that can be portaged, so this Act of Congress referred to navigation in canoes and similar craft, not in larger boats that cannot be portaged, such as steamboats (which were not yet in use.)
The U.S. Supreme Court subsequently confirmed that state governments cannot deny public rights to boat and fish on the waters within a state, “divesting all the citizens of a common right. It would be a grievance which never could be long borne by a free people.” The Court held that state governments must maintain the public’s “common liberty” to boat and fish in shallow rivers, including stretches adjacent to private land. The Court said that these waters must be “held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery.” (Google Martin v. Waddell 1842 to see the decision.)
The Court cited the Laws of Nature as the original source for these public rights to boat and fish on rivers. The Declaration of Independence echoes these ancient legal principles, saying that people “are endowed by their Creator with certain unalienable rights.” This reflects the ancient view that basic public rights are granted by God, and therefore cannot be revoked by national or state governments.
Nevertheless, lawyers for certain private landowners in various states still argue against public rights to canoe, kayak, raft, and fish on rivers flowing through private land. They typically claim that rivers that are only navigable in small craft such as canoes, kayaks, and rafts are not legally navigable. The U.S. Supreme Court has consistently rejected this view, holding that navigation includes canoes and “the floating out of logs” from “the sparsely settled regions of the Western mountains,” on rivers with “natural barriers, such as rapids and sand-bars,” and other “obstructions” and “carrying-places.” Federal appeals courts have confirmed the legal navigability of small whitewater rivers, used in the past by Indians in canoes, and by lumberjacks for transporting shingle bolts, which are sections of logs, about four feet long, floated downstream to mills to be cut up into wood shingles. When lawyers argued that small rivers usable only to transport “wood the size of shingle bolts” are not navigable, the court replied that this argument “rests upon a misconception of the law. It is not the size of articles transported in commerce that establishes the navigable character of a waterway.” (See Puget Sound Power v. FERC, 644 F.2d 785, Ninth Circuit 1981.)
The U.S. Supreme Court has repeatedly confirmed that “rivers that are navigable in fact are navigable in law.” In other words, rivers that are physically navigable in the ways just mentioned are legally navigable, with no official designation needed by government agencies, courts, or legislatures. The Court has confirmed that there is a public easement to use these rivers, “regardless of who owns the riverbed” in various stretches. The Court has confirmed your rights to raft, kayak, and canoe on these rivers, and to portage, walk along the beds and banks, and fish and fowl, “freed from the obstruction or interference of private parties.” It is not a crime, in any state, for the public to navigate or walk along the privately-owned banks of rivers and creeks that are physically navigable in these ways. On the other hand, it is a crime, in all states, for landowners to block this public easement, either on the water or along the banks, with fences, signs, obstructions,
or verbal threats. Even so, you cannot fight back when confronted, because that can lead to criminal charges against you, even if you are correct about the public easement. Instead, you need to report the landowner’s crime afterward, to the sheriff and district attorney, and other elected officials, asking them to alert the landowner that interfering with the public easement is indeed a crime. In circumstances where you fear retaliation of some sort, you can report landowner crimes anonymously, through organizations such as Crime Stoppers, TIP411, and wetip.com.
You can give the sheriff and district attorney copies of the book Public Rights on Rivers, or, in Colorado, the new short book Public Rights on Rivers in Colorado, which is available in fly fishing shops, rafting companies, sporting goods stores, and other river-related businesses. Both books are also available online, individually or in wholesale batches, at http://www.nationalrivers.org/products-and-resources/. Upcoming books in the series will cover public rights in Utah, Kansas, Georgia, Virginia, and other states.
May you have a happy Fourth of July and a great summer, enjoying your legal rights to use the physically navigable rivers of the nation.
– Team NOR
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