American Whitewater
Nevada Navigability Report
Summary
In Nevada, navigable streams are those capable of being used or that have been used for commerce, such as floating logs to market. These streams can be floated, and probably fished, recreationally. The right to portage obstructions is undecided in Nevada.
State Test of Navigability
Nevada courts have held that streams are navigable if used or susceptible to being used at regularly-occurring times as highways for commerce over which trade and travel are or may be conducted in customary modes of travel on water.1) Nevada courts have applied the federal title test and found that streams that were historically used to drive logs to market satisfy the federal title test.2) This test vests title to the beds underlying these waters in the state.3) Navigability is not destroyed if the waterway is interrupted by occasional natural obstructions or portages, and a stream need not be open all year to be considered navigable.4) Neither the courts nor the statutes in Nevada have addressed the issue of whether the public trust exists in streams that are too small to pass the federal title or commerce test.
Extent of Public Rights in Navigable and Non-Navigable Rivers
Although the public trust applies at least to streams navigable under the federal title test and the navigation servitude to streams navigable under the federal commerce test, Nevada law has not defined the extent of the public trust or the navigation servitude. Navigable streams may be boated, and most likely waded and fished, but rights regarding portaging obstruction have not been decided.
Trespass is a misdemeanor that occurs when a person enters or remains upon the land of another after receiving a sufficient warning not to trespass.5) A landowner may provide “sufficient warning” by fencing the property or by following certain posting procedures set out in the trespass statute.6) While the term “fence” is defined in the statute to include “a wall, hedge, or chain link or wire mesh fence,” the statute was amended in June 2007 to make clear that the term “fence” does not include a barbed wire barrier.7) It is prima facie evidence of trespass for anyone to be found on property which is posted or fenced in the manner described in the trespass statute “without lawful business with the owner or occupant of the property.”8)
Miscellaneous
Several rivers in Nevada, including the Colorado River, the Virgin River, and the Carson River, have been declared to be navigable to some degree by statute or by case law.9). Nevada courts have held that the list of navigable waters in the statutes is not exclusive, and that the issue of navigability is a “judicial question.”10)
In the opinion of the Attorney General of Nevada, the State Engineer, irrigation districts, the Division of State Lands, local counties through their district attorneys, and the United States have the authority to seek removal of structures that may encroach upon the natural channel of a navigable river.11) Further, cities, counties, public districts such as irrigation districts and flood control districts, and the United States have the authority to improve a navigable river to maintain its water capacity or to avoid flood damage to adjoining property.12)