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Frequently Asked Questions »
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 does navigable, for title purposes, mean?
Through various court cases, federal courts have articulated the following test, which is known as the federal test of navigability for title purposes:
- The waterway must be capable of or susceptible to use as a highway for the transportation of people or goods
- The waterway must be usable for transportation conducted in customary modes of trade and travel on water
- Waters must be navigable in their natural and ordinary condition
- Navigability is determined as of the date of statehood
The courts have determined that the use or potential for use by almost any type of watercraft is sufficient to determine this type of navigability. The use did not have to occur at the time of statehood; it is enough that it could have occurred (i.e., susceptibility.) Modern-day usefulness of a river that has not been artificially modified helps prove navigability for purposes of state title, as do historical uses that no longer exist, such as log drives.
Note that this "federal test" is not found in any one Supreme Court document or other government publication; it is just the sum of the relevant passages and phrases in various court decisions. Congress has never passed legislation defining navigability for title purposes, so the court decisions are the applicable law on the subject.
- Which rivers are owned by the public?
- How did the public come to own these rivers and lands?
- What does navigable, for title purposes, mean?
- Are there other legal definitions of the word navigable, and other legal tests of navigability?
- How can you measure or scientifically evaluate a river to know if it is navigable for title purposes, and therefore publicly owned?
- What size of watercraft must be able to navigate a river to make it navigable for title purposes?
- Do shallows, rapids, and other obstacles make a river non-navigable for title purposes?
- But don't really big waterfalls, or really big rapids, make a river non-navigable for title purposes?
- What if the river is only physically navigable during the wet season of the year?
- Does it matter whether the waterway is called a "river" or a "creek" on maps and signs?
- So how do you tell the difference between a navigable river and a non-navigable river, for title purposes?
- What if the current property owner's deed reads to the middle of a river, or seems to surround and include the river?
- Who decides which rivers are navigable for title purposes?
- Can states create their own definition of navigability for title purposes?
- Can states sell or give away rivers, or riverside land?
- Where is the ordinary high water line?
- What can the public do on rivers that are navigable for title purposes?
- What public activities can government agencies lawfully restrict?
- Can state governments expand public rights to visit rivers?
- What about walking briefly on private land while in the process of navigating a river?
- What about waterfalls? Can boaters run them? Can they walk around them?
- What about getting to and from the river?
- What about motors on rivers?
- What about commercial river trips?
- What about mining in river beds, for gold, gravel, etc.?
- What about construction and bulldozing along a river?
- What about river pollution?
- What about ownership of the water itself?
- How do I determine if a certain river is public, and what public uses should be allowed on it?
- What about river navigability committees and commissions?
- What happens when riverside landowners go to court?
- What happens when river recreationists go to court?