What are your legal rights to visit rivers?
The courts have consistently ruled that rivers that are physically navigable are "navigable" for purposes of state ownership ("state title"). On all such rivers, in any state, the riverbed and banks, up to the ordinary high water mark, are state land, held in trust for the public for navigation, fishing, and other non-destructive visits.
Landowners often point out that their property deed, which is a legal document, makes no mention of the river running through their property being state land. The courts have repeatedly ruled that this makes no difference--a deed can only convey things that were owned by the seller, and if the river was navigable, the seller didn't own it. It was public property all along, since the beginnings of our country and our legal system. Consequently, a navigability claim or finding is not a "taking" of private property--the river and the land along it were public all along.
Where is the ordinary high water mark?
The ordinary high water mark is the highest that the water gets in an average year--but not the highest it gets during extreme flooding. For purposes of river recreation, it's simply a matter of where the vegetation and soil show the effects of the water. On most rivers it's pretty obvious--below the ordinary high water mark you see water-dependent vegetation like green grass, small green bushes, tamarisk, or other plants that you don't see up on the surrounding hillsides. And you see sand, gravel, and rock that have been washed over by water, while above the ordinary high water mark you see more dirt and soil.
Wherever the land along the river is fairly flat, the ordinary high water mark can be quite some distance from the edge of the water, when the river is at medium levels. So there can be plenty of room for picnics, camping, walking, and other activities. The courts have ruled that any and all non-destructive activities on this land ar elegally protected. Public use of the land is not part of an "easement," rather it's a case of actual public ownership of the land.
The courts have also ruled that this land below the ordinary high water mark is not simply "state land," subject to use, abuse, or closure by state agencies. Since it is "held in trust for the public," the state, as holder of the trust, cannot do things with the land that conflict with public navigation and recreation.
The state's public trust ownership of a river is not diminished where a river flows through a National Forest, National Park, Wild and Scenic river, or other federal land-- the river is still "held in trust" for public navigation and recreation by the state. Federal agencies can regulate the development of and beside the river, and they can regulate commercial trips (because they are commerce not navigation). They can also prohibit certain types of navigation, such as motors, where motors would conflict with the public-trust enjoyment of the river. But regulations on non-commercial, non-motorized trips are subject to the subject's paramount right to navigate and visit the land along the river up to the ordinary high water mark. Limits on such navigation-- such as a river "permit system" on a river flowing through federal land-- must be at a level that is supported by the majority of those requested spaces within the limits. And the federal courts have repeatedly ruled that limits must be administered so that space is no less available noncommercially than it is commercially.
Who decides which rivers qualify?
Nobody, on any regular basis, and therein lies the problem. Only the courts can decide, and it's a lengthy, expensive process. The courts only consider a river when a legal case arises-- they don't go around rafting rivers just to help get things organized. Only a few rivers in the entire nation have had court determinations. All the rest of the rivers which are physically navigable are public land, but do not have official designation as such. Government agencies can make provisional decisions on whether or not a river qualifies, but they can't make definitive rulings. If a government agency tells you a certain river isn't legally navigable, it's only their opinion, it's not the law (except in the very few cases where there actually has been a court ruling). Note that a government agency that is acting lawfully cannot simultaneously allow some navigation while also restricting it and claiming that the river is not legally navigable, because of the inherent contradiction in such a claim.
Are there other forms of legal rights to rivers?
Yes. Many state courts have ruled in favor of a floatage easement, a public right to navigate even on rivers that do not qualify for state ownership for some reason. This floatage easement is a legal right to run a river even when it is agreed that the bed and banks of the river are private land. It is important to note that this floatoage easement varies from state to state (on rivers that are not navigable for state ownership purposes) but the question of of whether a river is navigable for purposes of state ownership does not vary by state--it's a matter of federal law, not state law.
Courts have also ruled that the public trust applies to natural water resources regardless of the navigability--flowing water is a public resource in any case. Thsi public trust extends to even very small streams. As with the floatage easement, this public trust can include the right to run a river even where it is agreed that the bed and banks of the river are private land. So there are two different types of public trust which apply to rivers: Navigable rivers are held in trust for the public because of their navigability, while small streams and other water resources are held in trust for the public because of their natural resource value.
The bottom line is that you do have a legal right, under one or more of the above, to visit virtually any river that can be canoed, kayaked, or rafted. You also have a legal right to require government agencies to protect the navigability and public enjoyment of rivers. But again, avoid confrontations on a river that is closed, restricted, or mismanaged in some way. It's simply not worth going to court-- your time is better spent advertising the favorable court descisions that we alread have. So instead, leave the river, and proceed to contact the local powers that be, notifying them that your legal rights are being violated, and that you would like the problem to be corrected. Then follow up as necessary to make sure that it is.
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For more information on your legal rights to canoe, kayak, raft, fish, picnic, camp, walk along, and otherwise visit rivers, see the other items on the River Law menu.
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