TroutUnderground Battles for Your River Access

November 9, 2007 8:57 AM

The U.S. Supreme Court has held that the bed and banks under all rivers, lakes, and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Mineral extraction interests and other parties often challenge this 'public use' designation by using/abusing the navigabilty designation to keep out fisherman and other recreational users in order to exploit the rivers for private gain. The Upper Sacramento River and McCloud Rivers of Northern California are the latest battleground in recreational river access. In what has become all too common, an ugly fight pitting sportsmen and nature enthusiasts against private interests is unfolding. One blogger has led the good fight to keep the rivers public. He could use your help... but it doesn't look good, and there is not much time!
posted by james_cpi (10 comments total)

There's been a related battle in the Southeast to open up public access to the uppermost section of the Chattooga River, which runs all the way from North Carolina down to Georgia. It's a gorgeous river and has been quite popular with whitewater boaters, particularly after it was featured in an infamous banjo music themed movie. Boating on the uppermost section was banned in 1985 by the Forest Service, leading to a protracted battle involving whitewater enthusiasts and conservationists alike. The final public meeting on this matter occurred on the 29th of September, after which the Forest Service will hand down its decision, leaving the future of this upper section uncertain. Of course, there's not a lot of water in the Chattooga right now.
posted by Mercaptan at 9:19 AM on November 9, 2007

So, if I'm understanding right, if rivers get designated "non-navigable," that keeps out the public? Lame. Here's a link for the mineral extraction interests mentioned in the post.
posted by salvia at 9:24 AM on November 9, 2007

Merc- your comment is far better than my original post... well done!


Salvia, yes, you are correct, and yes it is lame.
posted by james_cpi at 9:33 AM on November 9, 2007

I sent a (polite) email as suggested.

Question on water law--I live in Missouri a few miles from the Kansas border. In Missouri if you stick to the water you can legally go anywhere. But over in Kansas there are some very nice rivers that you cannot float. Apparently Kansas law is that the stream bed belongs to the property owner, and any use of the river is trespassing. The farmers run barbed wire across the rivers to keep out canoeists.

How can they do that if federal law demands that navigable waters be publicly accessible?
posted by LarryC at 10:20 AM on November 9, 2007

i drove through siskyou county this summer and swore i'd be back.

i've emailed them, too.
posted by klanawa at 10:58 AM on November 9, 2007

I don't see how this would get past the Water Board, Dept of Water Resources, and Fish and Game.

I'll get involved though.

Question on water law--I live in Missouri a few miles from the Kansas border. In Missouri if you stick to the water you can legally go anywhere. But over in Kansas there are some very nice rivers that you cannot float. Apparently Kansas law is that the stream bed belongs to the property owner, and any use of the river is trespassing. The farmers run barbed wire across the rivers to keep out canoeists.

How can they do that if federal law demands that navigable waters be publicly accessible?

It would seem like that is the point - County declares waters non-navigable, therefore no longer public property.
posted by Big_B at 11:15 AM on November 9, 2007

I don't see how this would get past the Water Board, Dept of Water Resources, and Fish and Game

Ha ha. Doesn't take much. (1, 2, 3, 4). Sigh. I'll take my environmental bitterness elsewhere now.
posted by salvia at 11:41 AM on November 9, 2007

There are several organizations that are asking people to contact their federal congressfolk and ask them to support the "Clean Water Restoration Act of 2007." This bill would remove "navigable" from the original Clean Water Act.

Find your friendly congressperson here, and ask him/her where he/she stands on the bill.
posted by potsmokinghippieoverlord at 11:48 AM on November 9, 2007

In a 100-year storm event even a dry riverbed can be navigable. It seems like a river/stream that isn't navigable would be a difficult point to prove.
posted by JJ86 at 1:51 PM on November 9, 2007

In Missouri if you stick to the water you can legally go anywhere.

I'm not sure about that. I also live in Missouri, and have a mile of a navigable stream running through the middle of my property. I hired an attorney to give me advice on my rights and the public rights to access and use.

One key issue here is whether a stream is classified as "navigable." I won't go into all the tests (historical and current) used to determine navigability, but I'm pretty sure it's the Corps of Engineers that makes the determination in Missouri.

If a waterway isn't listed as navigable (at least in Missouri), you're trespassing if you're on it, regardless of whether the water is high enough at the time. If it's listed as navigable (as is my stream), the public has access to the water and also the land up to the high-water mark.

I support folks traveling down the navigable creek through my property. I do not support their access up my tributary feeder spring (which is not listed by the Corps as navigable).
posted by F Mackenzie at 3:08 PM on November 9, 2007