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Why are public rights on rivers an issue?

March 15, 2014
Why are public rights on rivers an issue?

A wire fence across the Musselshell River in Montana. Even in a state like Montana, where state law strongly supports public rights to use rivers, illegal fences are sometimes found, in spite of the law. The river shown here is large enough for canoes or kayaks to go down, and is therefore navigable for Commerce Clause purposes, so it should remain unhindered for public use. Photo courtesy of BigSkyFishing.com

Why the issue exists

Public rights to fish, canoe, kayak, raft, hunt, and walk along the banks of rivers are an issue in modern times because of several recent movements (mainly since the 1970s) to deny the public’s use of rivers.

First, there has been a movement to privatize rivers, so that only the landowner can use the section of river flowing through his or her property. This has involved individual property owners, as well as places where groups have set up private fishing clubs (or other exclusive clubs) on sections of rivers. Many people who grew up fishing, boating, or otherwise enjoying rivers in their area with their families now arrive at the same spot on the river and find barbed wire fences, “No Trespassing” signs, or even a landowner who threatens them with firearms. Numerous small to medium-size rivers that were regularly enjoyed by the public a generation ago are now closed, or “closed by intimidation.”

There are some landowners who agree with public rights on the river that runs through their property (such as Pete), but have neighbors along the same river who oppose public rights. Some landowners buy a riverfront property expecting to be able to walk along the banks of the river beyond their property line, yet they get hassled by their own neighbors when trying to do so.

Second, some states have passed laws that restrict or deny public uses of rivers. Many people believe their state has the final word on the law, which is a false assumption. State law does not apply to the extent that it conflicts with federal law, because of the Supremacy Clause of the U.S. Constitution. The parallel governing system between state law and federal law creates tension between state and federal jurisdiction, particularly regarding river rights. It is often controversial to say that a state government needs to follow federal law regarding public rights on rivers and streams in their state, especially when state law denies public access, but that is what the U.S. Constitution requires.

In most places the federal government does not patrol rivers to confirm public rights under federal law. Instead they leave it up to each state’s law enforcement agencies. State law enforcement agencies do not study river law. Instead they tend to enforce what’s expected by politicians and riverfront landowners. Yet, states can never lawfully “abdicate” their “general control” over “lands under navigable waters,” because “such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public.” (1)

Third, some river groups advocate for river usage for only their particular river user group. This has created rules that allow only one type of use on a section of river, and keep other users out. Examples include allowing only fishing on the upper Chattooga River in the southeast, and only canoeing on the Jackson River in Virginia. Such policies do not add up legally, because for centuries courts have consistently confirmed public rights as a whole package, including navigation, fishing, and hunting (such as duck hunting.) This is why NOR works for all river users, instead of one particular type. It is much better for river users to remain united in support of long-established law, so as to keep all rivers open to the public, rather than supporting theories of exclusive rights for one type of use.

What you can do about it

In the end, these three factors are the main reasons why river access and usage issues exist. Arguments, violence, and even death occur over heated river debates. NOR believes that if both sides understood the law, these confrontations could be stopped. It’s an exciting and attainable goal, because the law not only exists, but has been summarized and compiled for you by NOR staff. All that’s left is spreading the message. You can do this by becoming a NOR member, donating, or sending an information packet to the government agency or person of your choice. You can download, email, post, or share your existing rights under federal law with local law enforcement and others.

As the late Nelson Mandela put it, “Education is the most powerful tool which you can use to change the world.” NOR materials work, and it’s time to use them in getting river rights acknowledged in your area!

Help your rivers, our nation’s rivers, and the rivers of future generations be “forever free.”

Footnote: (1) States can never “abdicate” the public trust: Illinois Central v. Illinois, 146 U.S. 387 (1892). Arizona Center for Law v. Hassell, 837 P.2d 138 (Ariz. App. 1991)

river with american flag forever free

Comments (3)

  1. Dave Morris:
    Mar 20, 2014 at 08:36 PM

    I discussed this problem with the city of Dallas with you folks briefly on the Texas Fishing Forum but never got a reply after I posted the code. The ordinance is used to stop people from swimming at Whiterock Lake, as well as use a float tube to fish from. The police will and do write citations for this. So how can they get away with such code?

    From Dallas City code.

    (a) A person commits an offense if, with the intent to swim, bathe, wade, or go in the water, he enters the water of a river, stream, pond, or watercourse within the city, either natural or artificial, whether public or private.
    (b) It is an exception to the application of this section if the body of water is a public, semi-public, or private swimming pool which meets the standards of the laws of the state and Chapter 43A of this code.
    (c) It is a defense to prosecution under this section that:
    (1) the person was engaged in the performance of his official duties as an officer or employee of the city;
    (2) the person was engaged in a bona fide effort to rescue or recover a human being or property from the water;
    (3) the person was engaged in dredging or other water improvement or construction work authorized by the city council or the park and recreation department; or
    (4) the water was designated by official signs showing that wading or going into the water in the specific designated area is authorized by the rules and regulations of the park and recreation department of the city. (Ord. 14971)

  2. AdminNOR:
    Mar 25, 2014 at 08:58 PM

    Hi Dave, sorry we missed your question. Thanks for posting it. Working on getting an answer posted soon!

  3. NOR:
    Mar 25, 2014 at 09:24 PM

    Dear Dave,
    We focus on public rights to navigate, fish, and swim on rivers that are physically navigable, to go from one place to another, and therefore legally navigable under federal law. It doesn't sound like Whiterock Lake would qualify. Would any rivers flowing through Dallas qualify?Numerous cities around the country have similar bans on swimming in lakes and ponds and rivers within the city, which is unfortunate, particularly during hot weather, but they seem to see it as a public safety problem. It seems that the only recourse would be to ask city council members to change the law so as to allow the public to wade and swim in the waters within the city.

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