River users should know their rights

[NationalRivers]

[FONT=Times New Roman, serif]River users should know their rights[/FONT]
[FONT=Times New Roman, serif]Canoeists, kayakers, rafters, fishermen, and other river users should know their rights to use rivers in all fifty states, under federal law. Many lawyers and state government officials claim that public rights on rivers have to be decided by state legislatures or state supreme courts. However, under the Commerce Clause and the Supremacy Clause of the U.S. Constitution, federal law is the supreme law of the land, and all the states are bound thereby. The most recent federal court decision on the subject is [/FONT][FONT=Times New Roman, serif]Atlanta School of Kayaking v. Douglasville County[/FONT][FONT=Times New Roman, serif] (981 F.Supp. 1469, N.D.Ga.1997). Citing previous U.S. Supreme Court decisions, it confirms that public rights on small, shallow rivers that are navigable in kayaks are constitutional rights, and are a matter of federal law, not state law. The decision is now 17 years old, yet it has not been contradicted by any federal or state court.[/FONT]
[FONT=Times New Roman, serif]River users who want to help spread the word about these rights can download a new free one-page poster or handout, [/FONT][FONT=Times New Roman, serif]Public Rights on Rivers in Every State,[/FONT][FONT=Times New Roman, serif] at nationalrivers.org, and post it on bulletin boards in coffee houses, college campuses, community centers, outdoor equipment stores, and other public places.[/FONT]
[FONT=Times New Roman, serif]The poster-handout is backed up by the new short book, [/FONT][FONT=Times New Roman, serif]Public Rights on Rivers in Every State and through Federal Lands,[/FONT][FONT=Times New Roman, serif] which explains the subject in 72 concise pages, with over 200 footnotes citing federal statutes and court decisions. River users can get an inexpensive batch of 5, 10, or 20 copies for holiday gift giving. Sample pages are available at nationalrivers.org.[/FONT]
[FONT=Times New Roman, serif]People who doubt the message of the book can attempt to find federal law that contradicts it, although they will find that there is no such federal law or court decision. Because of the financial and political stakes involved, numerous lawyers and state government officials will continue to claim that public rights on rivers in their state are restricted to only certain large rivers, but such claims are politics, not law. From the time the states ratified the Constitution in 1788, to today, federal law has confirmed that rivers navigable in canoes and similar craft must remain “forever free” to public use, including walking along the beds and banks of rivers through private land while boating or fishing.[/FONT]
[FONT=Times New Roman, serif]---------[/FONT]
[FONT=Times New Roman, serif]Regarding rivers through federal lands such as the Grand Canyon and the Middle Fork of the Salmon, the new book explains why the present noncommercial permit situation on these rivers is unlawful, and how river users can work through local offices of their Congressmen to obtain the permits to which they are lawfully entitled. People who pay to enter the Park Service lottery for Grand Canyon permits year after year, without contacting their Congressman’s local office, are literally funding and supporting the continuation of the present wrongful situation. Rather than persistently applying to the lottery, it would be better for people to persistently work through a constituent caseworker at their Congressman’s local office. Nobody should be paying to enter the lottery, year after year, without also working with their Congressman’s office, to obtain space for their own trip and to help get the present situation corrected.[/FONT]

 

[Robin]

Someday I hope that Canoetripping gets 1st link to another site, or first cut and paste and PNett gets second, then I'll know all the time and crap was worth it...haha

http://www.paddling.net/message/showThread.html?fid=chat&tid=1762133

 

[Alan Gage]

Well there was this one time.....oh....nevermind.

Alan

 

[oldie moldy]

About "river rights" ...........it may be just me but I'd put a whole lot more stock in it if the author had also listed what the user responsibilities were. I do know some friends who own tide-water property here and are really fed up with kayakers, who put in to take a crap and leave the poop and toilet paper for the property owner to clean up. Or picnicking on the lawn and leave all the garbage behind.
Not everyone to be sure, but it happens often enough to make a person realize there are at least two sides to the problem.

Of course demanding rights is a whole bunch more popular than living up to responsibilities.


Rob

 

[memaquay]

Truer words have never been spoken, Rob. I deal daily with a generation that is very well schooled in every "right" in the book, and quite a few for which there is no book. These gems of politically correct righteous indignation wouldn't know what a responsibility was if they were clubbed over the head with it. In fact, the only responsibility they know is the one that tells them to quickly point out when someone else hasn't received their rights.

Good thing I've still got kids who will trek through the muck to heck and back for me and their companions, without whining about rights or worrying about whether someones misguided feelings got hurt. It restores my faith in humanity. OK, end of rant.

Good thing you pointed out that the poop depositors were kayakers. Sheesh, if they were canoeists, I would have poured a stiff one and watched re-runs of I Dream Of Jeanie until early morning.

 

[Odyssey]

I'm on the same wave length as west coast Rob. The first thing that sprang to mind wasn't concern for roving riparian travellers seeking a little r&r, but land owners wondering who might be dropping in disturbing their own r&r. Don't get me wrong, I'm proud that river rights are there in black and white (similarly both sides of our border, but like river banks, rights can get eroded); I just get a little worked up about the inevitable confrontations. Like many things in life, the situation can be complicated but the solutions can be simple. The r&r can stand for rest and recreation; it can also stand for responsibility and respect.

 

[Marten]

I have tried to look into these water rights for paddlers here in Illinois. My research has turned up a lot of grey areas with no real consensus. Streams listed as navigable by the Feds have their own rules. Smaller waters are harder to deal with. Advice from one group was to leave sleeping dogs lie. When you are kicked off or a fence is put across your favorite stream is the time to take action.

 

[Alan Gage]

I have tried to look into these water rights for paddlers here in Illinois. My research has turned up a lot of grey areas with no real consensus. Streams listed as navigable by the Feds have their own rules. Smaller waters are harder to deal with. Advice from one group was to leave sleeping dogs lie. When you are kicked off or a fence is put across your favorite stream is the time to take action.

Probably similar to what we have here in Iowa. Rivers are classified as meandered and non-meandered. These were classified as such when the state was first surveyed and I haven't heard a good explanation to exactly what they mean or how they were determined. Non-meandered are the bigger rivers (not many) and those have what most would consider more traditional rights for paddlers. Up to the normal high water mark is considered public.

But the meandered rivers, which the majority of rivers in Iowa are, even though they're plenty big enough to paddle and even take small motor boats on, have privately owned river bottoms. The courts have decided that as long as you're standing in water it's ok to wade the river (like carrying a boat over riffles), but it's technically illegal to set foot on any dry land, including a sandbar in the middle of the river. As far as I know it's legal to run fence across the river but it's not really done anymore.

This is farmland. There are no homes along our local river, or most similar rivers in Iowa. It's fields and pastures. Thankfully it's rarely an issue as there aren't many paddlers, most don't cause a problem, and most land owners don't seem to mind if someone stops on their sandbar for a while. But this spring when the county announced they were going to try and turn our section of river into a state approved water trail, the landowners were up in arms and voiced many grave concerns. Things have calmed back down now to where they've always been but it was enough to see that things might be a bit tenuous.

Alan

 

[Holmes375]

Well there was this one time.....oh....nevermind.

Alan

 

[Rippy]

Allot of good food for thought here.

 

[snapper]

Right now in NYS there is a pending lawsuit regarding this very topic. The court found originally for the defendant that he had the right to travel on a small stream through private property because he was able to enter/leave from public lands and the stream was in fact navigable. The landowner is appealing the decision but until the appeal is heard, this section of waterway is considered open. For those who haven't heard of this case, being able to paddle this section of water shortens a lengthy portage in the Adirondacks between Lake Lila and the Little Tupper Lake area. Prior to this, years ago, there was a similar case down near Old Forge, NY where again, the defendants were found "not guilty" of paddling a section of the Moose through property owned by the Adirondack League. From what I understand in NYS, if the river is considered navigable, folks have the right to leave the waterway but only to get around an obstacle (i.e. dam, log, etc.) but they are not allowed to camp, picnic, fish, etc. The problem comes in when the term "navigable" is defined. Confuse that with navigability that is either recreational or commercial, and the waters can become even muddier. For many paddlers I think we're all hoping this latest case will settle the matter once and for all.

That's all for now. Take care and until next time...Be well.

snapper

 

[oldschool]

Access to paddle waters passing through private property is an on going issue in the Adirondacks since over half of the park is private property. While I would love to have access to all waters, anywhere, I also acknowledge that land owners and lessees have very legitimate concerns, reservations, and rights. It seems like access to certain streams and rivers is determined by how the courts defines "navigable-in-fact". This determination needs to be made river by river and far too often, the only time it happens is when someone with sufficient funds is willing to incur the costs of a trespass lawsuit to force a court to make a determination.

I certainly don't understand how state laws interface with federal law. But I do understand this: before I exercise my rights to access a river or stream that a land owner is denying access to, I need to have deeper pockets than I currently have.

 

[Guest]

Where to start? First of all, the federal navigational servitude is very limited, and mostly to ensure that navigation is not obstructed by silting in, piers that are too far out into the channel, etc. Otherwise, the bottoms and beds under waters are generally granted to the states at statehood. In relatively uncommon instances, a state may have conveyed the bottom or bed to private interests.

As a practical matter, the legal access/travel issues that paddlers face are matters of state, not federal law, unless you are dealing with federal works projects or are on federal land. It is a matter of trespass, which is a tort, which is governed by state law. The OP misunderstands the case he cites because he or she obviously does not (or choses not to) understand the vast and interconnect areas of law underlying the decision. Just to scratch the surface of this, for one thing, federalism does not mean that federal law controls everything. The jurisdictional divide is complex. As a paddler, in some ways I wish the OP was correct, but it is not so.

The state laws on public use of waterways by vessel in the east are often different than in the west. In most if not all states, the issue is uncertain, at least in part.

If you are in tidal waters, you generally have a right of use of the waters in a vessel. Most private owners abutting tidal waters own to the mean high tide line, which is usually a 17 year rolling average. No one knows exactly where that is without lots of research and calculation, but it is safe to just stay below the strandline. Under the public trust doctrine, you probably have a right to stop in the intertidal zone below the strandline, and on spits or islands that are covered at mean high tide. Recreational rights under the public trust doctrine are not as settled as fishing rights and other traditional rights under the public trust doctrine and rights to stop for safety purposes.

Non-tidal waters are a different story. Rights to use of non-tidal waters in a vessel are not as developed. Carries around obstructions can be problematic. If there are no trespassing signs or verbal warnings, it is best to steer clear and report it to the local environmental agency, unless you are certain of your rights, you like getting shot at, you like paying lawyers, or all of the above.

Obviously, no one has rights to leave garbage, damage things, or otherwise act like a total jerk, on public, or someone else’s private, property.

Many people are quick these days to trumpet private real property rights, but there never was a time in English/American history where private real property was not subject to reasonable restrictions by the King or the government. For example, under common law nuisance dating back centuries, one cannot engage in unreasonable or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, or with the public.The society has settled rights too, but under-regulated capitalism puts those public rights at a distinct disadvantage.

Bottom line, no matter how well-intentioned, if anyone tells you there is a simple, one-size-fits-all answer to the question of whether, in the U.S., you can legally travel over bodies of water in a vessel, that person is misinformed. This is with the rare exception like the pending case in which the New York courts may soon give us a relatively clear answer for certain water bodies located in New York state.

The foregoing is just one person’s informed opinion, given in hopes that it may be of some service to our paddling community, FWIW. Please note that I am not inclined to argue about it. Any failure to respond should not be taken as my acquiescence to your position or critique.

 

[Alan Gage]

Thanks, Dave!

Alan