American Whitewater
Wyoming Navigability Report
Summary
Wyoming allows the public to boat any non-navigable streams that can be floated by any craft, even for pleasure, including a kayak. The right to float the stream is accompanied by a right to portage around and over obstructions, including riffles, rapids, and dams. A limited right to access useable waters over private property may exist in Wyoming.
State Test of Navigability
Wyoming common law has adopted a test for public use of streams that is independent of the test of navigability. The test of navigability is the federal commerce test, where rivers that are susceptible or were used for commerce are navigable. But this is of limited consequence to boaters. In the seminal case Day v. Armstrong, the court stated, “the actual usability of the waters is alone the limit of the public's right to so employ them.”1) Actual usability includes use by small craft for pleasure.2) A stream is not unusable even if it has areas that must be portaged over or around, such as rapids or riffles.3) In summary, the test of usability, as opposed to the test for navigability, determines whether boating is permissible. Thus, the stream can legally be used if it can be boated.
Extent of Public Rights in Navigable & Non-navigable Rivers
The water of all streams within Wyoming is property of the state, including non-navigable waters.4) As discussed above, the right to use the water of non-navigable streams exists wherever the water is capable of use for purposes that include boating and fishing. Landowners may not interfere with this right and, therefore, cannot fence boatable streams.5)
A right of portage exists in Wyoming. The right to use the water does not include the right to walk or wade in the stream.6) However, contact with the bottom incident to the use of the water is permissible.7) Furthermore, persons in craft may, when necessary, disembark and walk, or wade upon submerged lands in order to pull, push, or carry craft across shallows, riffles, rapids, or obstructions.8)
The Day court even discussed in dicta the right to gain access to streams over private land. Because the water is property of the state, the state should have a right of “ingress and egress across adjacent lands to a stream where no other access is available, as well as a restrainable right of nuisance use of adjacent lands.”9) Therefore, it appears that the public may have an easement to access useable waters over private property.
Miscellaneous
Trespass upon posted property is a misdemeanor with penalties of up to $750 and six months in jail.10)