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FAQs about federal law regarding public ownership, use, and conservation of rivers
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NOR is the organization that focuses on achieving public-trust ownership of rivers, conserving rivers through public-trust ownership, and ensuring the public's legal rights to enjoy rivers
What are you buying when you buy riverfront property?
A log home with riverfront property, where people are rafting, kayaking, and walking along the banks of the river that flows by the home.
Some riverfront landowners bring an urban mindset to owning property on a river: The notion that everything within the perimeter of a property is private, and any use of it by outsiders would be trespassing.
However, it is important to keep in mind that various easements apply to private property, such as utility easements and road easements. Along rivers that are navigable, even if only in small craft such as canoes or kayaks, or for transporting unmanned logs, a navigational easement applies, allowing the public to boat, fish, and walk along the banks of the river. (See handouts and book for more information).
Before there were cars and roads everywhere, rivers were one of the best options for getting from point A to point B. Take the fur trade, for example. Trappers would fill their canoes with furs, and then navigate small mountain creeks and rivers that eventually led to places like Saint Louis, where they could sell their goods.
Why were rivers so commonly used? Because back then it was easier to transport lots of cargo down the natural free-flowing path of a river, than to transport it hundreds of miles over rough terrain in wagons of some sort.
Novels and movies typically dramatize the role of covered wagons in the settlement of the Midwest and the West, but historians estimate that in reality, more settlers came west on steamboats, and other smaller boats, than in covered wagons. (1)
Two fur traders during the 1800s line their canoe through rapids with a rope, and hack through a logjam with an axe, in the course of their journey down a river.
So what is a navigable river?
Although there are several definitions of “navigable,” the type of navigability that applies to recreation on smaller rivers is navigable for Commerce Clause purposes. Commerce has been happening on rivers for centuries, even before the fur trade, and has been protected by federal law since our nation’s founding. If logs or canoes could be transported down a river, then it is navigable for Commerce Clause purposes and should be open for the public to kayak, canoe, fish, raft, duck hunt, and walk along the banks of the river, in all states.
What do you get when you purchase riverfront property?
You get a “front-row seat” for viewing the river, and easy access to the river. Think about an ocean-front home in California or Florida, or a ski lodge along the ski slopes. You get a prime location, with nature’s beauty and daily outdoor sports opportunities right in your back yard. You don’t have to drive through traffic to get to the beautiful spot. These sorts of homes and ranches have high values for being along a river.
However, the beach, the ski slope, and the river, are still open to public use. Even if local property law says that private property extends to the middle of the river, or all the way across the river, federal law still says that private ownership of the bed and banks of a navigable river is “a bare technical title,” always subject to public rights to use the river and its banks. (2)
So what’s the right attitude to have as a riverfront landowner? Pete from North Carolina is a great example. Pete purchased a few acres on the Little Tennessee River in Macon County last year. He’s been an avid fisherman and kayaker for as long as he can remember. He especially enjoys the solitude that comes with fishing mountain streams. He’s enjoyed rivers in Alaska, Wyoming, Tennessee, Virginia, West Virginia, and North Carolina. Pete’s so fond of traveling to fish and kayak he invented his own folding boat and started The Folding Boat Company to build them.
Pete says he has no problem with people walking, portaging or fishing from the banks of the river on his property as long as they respect it.
He’s had a few instances encountering other landowners who have tried to prevent access to their stream banks. One example was on the Little River in North Carolina, which flows through nice duck habitat. When Pete arrived at a bridge crossing to put in, the land around the bridge was marked with “No Trespassing” signs. Pete asked permission from the landowner and was told "No, the river isn't navigable.” Pete went and found another crossing about a mile away, then navigated his folding kayak all the way back up to where he had first stopped.
When he returned, there were two game wardens waiting for him. They checked him out and then told him that as long as he didn't step out of his boat he was okay. This notion is common in many states, where local law enforcement officials say that you can float but not touch the bottom. Putting federal law aside for the moment, is it realistic in practice to float and not touch the bottom at all? You hit rocks, portage around dangerous obstacles, take a rest break, etc., and you touch the ground naturally in the course of doing these things. It just doesn't make sense in actual practice to only be allowed to "float" and not touch the bottom. In Pete's experience, he agrees. He says, “I often have to use my paddle or my hands to clear an obstacle in the water. This happens on large and small streams alike.”
The hope to get on the same page
Pete wishes that other landowners would treat river users the same way he does: No problem with anyone using the river and the bank as long as they clean up behind themselves. This is NOR’s hope as well. It requires respect on all sides. River users need to respect the landowner and the river by using the river in nondestructive ways and NEVER leave trash, and landowners need to respect the law by allowing the public to use navigable streams and rivers without interference. Rivers are a natural treasure, created for all to enjoy respectfully.
Special thanks to Pete for sharing his story and photos.
(1) Settlers coming west by steamboat and other smaller boats: The Rivermen, by Paul O’Neill, Time-Life Books 1975.
(2) Bare technical title, always subject to public rights to use the river: U.S. Supreme Court decisions in the cases of Scranton v. Wheeler, 179 U.S. 141 (1900), West Chicago Railroad Company v. Illinois, 201 U.S. 506 (1906), and United States v. Cress, 243 U.S. 316 (1917).
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