Navigability Primer

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

- The Daniel Ball, 77 U.S. 557, 558 (1870)

American Whitewater advocates for the public right and privilege of floating on rivers that flow through public and private lands. We work to make this policy a reality by encouraging state governments, federal agencies, and courts to recognize recreational use as the legal standard for commerce and navigation.

The Access Program defends and protects the public right to travel in canoes, kayaks, and rafts on the waters of all rivers and streams reasonably susceptible of passage. This includes rivers where either a public or private entity owns the shorelines and the streambed. This policy is consistent with commonly held ideas of the “public trust.” However, the legal standard for establishing navigability under the public trust vary on a state-by-state basis, which is why our staff developed this American Whitewater Navigability Primer.

In general, if a stream is “navigable,” the public has the right to float on it. However, navigability is a widely used terms frequently misunderstood. Confusion arises from the fact that many people improperly refer to “navigability” when they are actually describing “floatability.” There is further confusion because every state has its own legal standard for determining navigability, and state laws may differentiate between navigable waters, non-navigable waters, tidewaters or water-based uses, portage and scouting rights, and bank use.

This handbook is not a definitive source for many reasons. One is that the law is always changing, and therefore the information in this handbook will need to be reconfirmed prior to going to any court updated and reviewed in connection with any particular dispute in any given state. This handbook does not and cannot replace proper legal representation because a local attorney, besides having a background in the local law, will have an understanding of how the local community applies and reacts to navigability issues. This handbook provides and introduction to and an overview of the law of navigability. Although it can assist in identifying issues for further research or in helping to frame questions to pursue with local counsel, this handbook should not be construed as, and it does not constitute, legal advice on any specific matter. Distribution of this handbook does not create an attorney-client relationship between American Whitewater or any employee, officer, director or member thereof and any recipient of this handbook.

American Whitewater and local paddling clubs will help boaters locate potential legal counsel regarding navigability questions. American Whitewater has a network of attorneys throughout most of the country. If you are interested in volunteering your legal assistance or donating to American Whitewater’s Access & Legal Defense Fund, we would appreciate your assistance.

The legal basis for federal public trust navigability was determined under The Daniel Ball and the equal footing doctrine of the Constitution. The equal footing doctrine established that when new states entered the Union they were placed on an equal footing with the original thirteen colonies. ¹⁾. In regard to navigability, the original colonies joined the Union owning the beds of navigable waters within their boundaries, except where particular parcels were deeded to a private owner by the King of England. By entering the Union, each state agreed to federal oversight of commerce under the Constitution, and hence federal oversight of navigation.

The Daniel Ball ruling established that a river is navigable if the bed of the river belongs to the state and the river is capable of supporting travel. In essence, this ruling established that states serve as trustees or stewards of the rivers for the public. This stewardship carries the public right to boat on the water above the state-owned river bottom.

In summary, The Daniel Ball set precedent in three major areas:

1. A river is regarded as a “public navigable river” if it is susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of travel and trade on water.

2. A river that is navigable in fact is navigable in law.

3. The test of navigability, as applied to “navigable waters,” is the capability of being used for useful purposes of navigation, of trade and travel in the usual & ordinary modes, and not the extent and manner of such use.

The federal tests of navigability for determining title and defining Congress's power differ slightly. Both determine whether the body of water was navigable in fact as of the date a state came into the Union, not the time the determination was made. ²⁾ However, the natural & ordinary condition of the body of water at statehood determines navigability for title; whereas, the decisive issue for commerce clause and congressional management purposes is determined by whether the body of water could be made navigable by reasonable artificial improvements. ³⁾

The federal definition of navigability does not apply to every tributary. There are difficult problems in establishing what uses a river was susceptible to when it entered the Union. The first question is whether the state has to prove the river was actually used for trade or travel before the state entered the Union, or whether it was merely capable of use. The second question is what constitutes the usual and ordinary mode of travel and whether the state courts acknowledge that recreational use by a canoe or kayak is the customary mode of travel.

The beds of streams that are non-navigable under the federal title test are generally owned by streamside landowners. However, if a river does not meet the federal test for navigability (and most whitewater streams do not) they may still meet the navigability requirements under state law. State cases regarding public rights of passage and state concepts of navigability often expand on the federal test dramatically. In some states, the Public Trust Doctrine is a key factor. In those states and a few others, the State may hold a public “easement” or right of passage on behalf of the public at large. This allows the public to pass over private lands on the bottom of streams, which may not be considered navigable under Federal or state law.

Navigability is defined legally by the Federal Commerce Clause and is determined under a streambed title “test”. This test is used to determine whether private landowners or the state owns the bed and banks of the river.

The test is based on whether the river was “susceptible” of use for “commerce” in the “usual and ordinary mode” at the time the state entered the Union. This standard definition of navigability was the result of a federal court decision called The Daniel Ball⁴⁾). This case acknowledged that though America's laws were based on English Common Law, America needed a different standard for determining navigability from England. Justice Field observed:

The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length.

Justice Field then provided the basis for all future federal decisions regarding navigability, when he wrote:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

Susceptibility for Use

The courts have generally accepted either of two standards for proving susceptibility of commerce: historic evidence or capability of use.

Most courts have based rulings on whether there is evidence that the river was in fact used for commerce prior to statehood. However, proving whether a river meets The Daniel Ball navigability criteria at the time of the state's admission to the Union is an evidentiary nightmare, which depends upon proving historical use of the stream (e.g. log drives, barging, etc.). If the river has ever been demonstrably been used for commerce, then it can readily be found navigable under federal law.

However, many states have also accepted demonstrations that the waterway is merely capable of commerce as proof of susceptibility.

Commerce

Commerce refers to the ability to transport goods to or from market, or for sale. Commerce inherently includes the right of navigation. Commerce and therefore navigation includes transportation of timber, as well as transport by barge traffic or oceangoing ships. Some states have also accepted evidence of use by a commercial raft company, or kayak or canoe school as evidence of commercial navigability.

If the river was used for transporting goods for sale prior to statehood, then the river is clearly navigable by federal definition. As such, the bed and the bank up to the mean high water mark are owned by the state and held in trust for the public.

Travel

Travel is used as a broad standard. According to The Daniel Ball, the ability to travel in the ordinary mode should constitute commerce.

Mean High Water Mark

The mean high water mark or ordinary high water line is broadly defined as a line visible on the ground, being the division between land and vegetation that are affected by submersion during high water, and land and vegetation that are not affected.

Usual and Ordinary Mode

The Daniel Ball references commerce in the usual and ordinary mode. The standard for defining what is usual and ordinary varies on a state-by-state basis. However these definitions tend to follow one of three standards: transport of commerce by barge, floating timber, or floating of small oar-powered craft.

Some states like Georgia have narrowly defined the usual mode of commerce by the ability of a river to convey barges. In Georgia, the courts have relied on an 1863 statute to conclude that “a navigable stream must be capable of transporting boats loaded with freight. The mere rafting of timber or transportation of wood in small boats shall not make a stream navigable.” Georgia's courts have even defined the width, length, and draft of the barges required under the state's streambed title test.

Virginia and Michigan have used historical records of log drives as evidence of commerce and navigability.

Courts in other states have taken a different approach to the validity of recreational rights. For instance California and North Carolina have defined navigability as the ability to float an oared craft such as a kayak or canoe under a broad recreational use test. In the California court case of People v. Mack, the ruling stated, “The public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft.” ⁵⁾). In other words, the definition of navigability in California rests on whether the river is capable of floating a canoe or kayak. American Whitewater strongly advocates this test of navigability.

Transport

Until recently, the standard definition of transportation for navigability purposes meant carrying goods to or from market. Over the last century this definition has evolved to include the transportation of people too.

Highways of Commerce

Article I, Section 8 of the Constitution gives Congress the authority to “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”

Article III, Section 2 of the Constitution gives the Supreme Court judicial powers over “all cases of admiralty and maritime jurisdiction.”

If a river is useful as a highway of commerce between states or foreign countries, then it falls under federal jurisdiction and is navigable under the Commerce Clause.

Federal authority to regulate rivers is protected under the Commerce Clause. Commerce is understood to include navigation. In Escanaba & Lake Michigan Transp. Co, v. City of Chicago⁶⁾ Justice Field stated:

The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries. The Daniel Ball⁷⁾. Such is the case with the Chicago river and its branches…

Justice Lurton stated in U. S. v. Chandler-Dunbar Water Power Co.⁸⁾, quoting Gilman v. Philadelphia⁹⁾:

Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders [admiralty law]…

In Economy Light & Power Co. v. U S¹⁰⁾, Justice Pitney stated:

We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions… Improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them again important avenues of commerce among the states….

The Submerged Lands Act holds that each State owned the land beneath the navigable waters of that State. (43 U.S.C. §§ 1301-15 (2002))).

The equal footing doctrine says that each state enters the Union on an equal footing with the original 13 colonies. Those colonies joined the Union owning the beds of navigable waters within their boundaries (except where particular parcels were deeded to a private owner by the King of England). When each state entered the Union, they agreed to the federal government's constitutional right to oversee commerce.

In Pollard's Lessee v. Hagan¹¹⁾, the court related the equal footing doctrine to navigability:

The Supreme Court has grounded the states' watercourse sovereignty in the Constitution, observing that '[t]he shores of navigable water, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively.'

The public trust doctrine withholds for all citizens certain resources such as air, wildlife, water and the lands beneath navigable waters from private ownership. This philosophical doctrine establishes the legal context under which the public has the right to use, protect and enjoy these resources, for fishing, boating, and other incidental purposes. In New York v. New Jersey, Justice Holmes expressed the public trust doctrine when he made the simple observation that, “A river is more than an amenity; it is a treasure.”¹²⁾

Riparian or waterside landowners have property rights weighted with the public trust, and the public has certain recreational rights on those properties. In California, the courts have found that a public trust in the waters flowing through private lands is an encumbrance on the property. This encumbrance authorizes a number and variety of public uses.¹³⁾ A public trust easement or right-of-way incapable of private ownership exists in these waters and authorizes the public to make limited use of the waters for fishing, hunting, and boating.¹⁴⁾

Federal and some state governments have slowly enlarged the public's access to America's waterways under the public trust doctrine.

The idea of the public trust was first expressed in American law in the 1800's. By the end of the 19^th Century the doctrine had been applied in a number of cases and it was apparent that the doctrine applied to rivers flowing through both public and private lands¹⁵⁾.

The beds of rivers flowing through public lands are usually owned by either the federal or state government. These rivers are open for public use, and subject only to regulation by the agency managing the adjacent lands.¹⁶⁾ As described below, several cases have established the fundamental understanding that the management of public trust natural resources must avoid substantial impairment of natural resources, the appearance of discrimination between competing uses, and implementation of discriminating fees. The application of these cases remains largely unexplored¹⁷⁾.

Use of public lands is protected under the public trust doctrine

In Trampealeau Drainage Dist. Merwin v. Houghton,¹⁸⁾ the courts found that the administration of public trust natural resources must avoid substantial impairment of public uses. In other words, public agencies are required to allow citizens use of public lands.

Fees must be fair

In Neptune City v. Avon-by-the-Sea¹⁹⁾, the court established that under the public trust, government agencies must not impose discriminatory fees on one segment of the public.

Government agencies must balance competing uses

In State v. Public Serv. Comm'n²⁰⁾ the court ruled that the government agency must achieve a fair balance among competing uses under the public trust doctrine.

The public trust includes recreation

Cases such as Neptune City v. Avon-by-the-Sea²¹⁾, have made it relatively clear that the public trust doctrine includes protections for public outdoor recreation, as well as traditional uses of navigation such as commercial navigation and fishing.

A complex set of state and federal navigability laws regulates access to rivers flowing through private lands.

Federal law determines who owns the streambeds of federally navigable rivers and also determines the right to use the surface of those waterways.

State law determines who owns the streambeds of rivers which are not navigable under federal law. More importantly, state law determines what rights the public has to use those surface waters for boating, fishing, swimming, and other recreation.

The public trust doctrine influences the public's rights to use both types of rivers.

States own streambeds of rivers navigable under federal law

Federal law determines who owns the streambeds of federally navigable rivers and also determines the right to use the surface of those waterways.

The streambeds of rivers that are navigable under federal law are owned by the state. The limited exceptions to this rule are the streambeds of rivers that, prior to statehood, were granted into private ownership by the King of England or in even rarer circumstances the United States.

In 1842, the Supreme Court established state ownership of these federally navigable streambeds in Martin v. Waddell.²²⁾) Chief Justice Roger Taney declared “dominion and property in navigable waters, and in the lands under them, [were] held by the king as a public trust.” This public trust was a property right which passed to the people of each state “when the Revolution took place.”

Though Martin v. Waddell only applied to the original 13 colonies, the principle set forth by Taney was later conveyed to the remaining states under the equal footing doctrine.²³⁾

The court's finding of state ownership of the streambeds was ratified and explicitly passed into law under the Submerged Lands Act²⁴⁾.

The public right of navigation is secure on rivers where the streambed is owned by the state. These rights are limited only by federal or state regulations²⁵⁾ and administration of these public trust natural resources must avoid substantial impairment of public uses or discrimination between uses.

States will determine limits of private ownership of the beds and banks of state-held navigable waters.

The rights of streamside landowners, where the waters are above the influence of the tide, will be limited according to the law of the state. State laws vary on whether private landowners property lines extend to the low or high water mark, or even to the middle of the stream. ²⁶⁾:

In Packer v. Bird²⁷⁾… it was claimed that… the title was derived by a grant from the United States afforded a reason for decision, Mr. Justice Fields states the question as follows:

The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever rights or incidents attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. As an incident of such ownership, the rights of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the state, either to low or high water mark, or will extend to the middle of the stream.

The question was again presented in Hardin v. Jordan²⁸⁾, and, after a review of the cases, Mr. Justice Bradley stated the conclusion as follows:

We do not think it necessary to discuss this point further. In our judgment, the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.

Justice Hughes stated in Philadelphia Co. v. Stimson²⁹⁾:

The established doctrine is invoked that the title to the soil under navigable waters within their territorial limits, and the extent of riparian rights, are governed by the laws of the several states, subject to the authority of Congress under the Constitution of the United States³⁰⁾.

Treatment of ambiguities in private ownership of streambeds

Congress rarely granted private title to waters or streambeds prior to statehood. The courts have been similarly cautious and have demonstrated an unwillingness to interpret ambiguous pre-statehood deeds as transferring streambed lands out of government ownership. ³¹⁾

Applying the Federal Streambed Title Test

Determination of stream navigability under the federal streambed title test can only be decided on a case by case basis, and only after conflict occurs and the question of navigability is raised to the courts. Furthermore, the federal definition relies on historical evidence, which can be hard to verify.

Establishing whether a river is navigable under federal law

Under the federal title navigability test, any river on which, in its natural and ordinary condition, small craft could transport people or goods in commerce at the time of statehood is deemed navigable. Even the floating of timber has led courts to determine navigability under federal law.

Rivers not navigable under federal law

If a river is not navigable under the federal title test, then the streamside or riparian landowners generally own the stream bed.³²⁾ However, generalizations in this area are dangerous. For non-navigable rivers, streambed ownership and the public rights to float, swim, fish and wade are determined under state law and the resolution of disputes concerning ownership and public rights varies widely from state to state.

States formed from the original 13 colonies may have also retained ownership of streambeds on lands gifted to the state prior to the Revolution under a King's Grant even though the river may not be navigable under the federal title test. Under the public trust, these state-owned rivers are also available for public uses such as boating, fishing, swimming, and wading.

King's Grants

In a few states from the original 13 colonies, such as Virginia and Connecticut, the British monarchy gave some large land grants to private individuals before the Revolution. Following the Revolution, ownership of these lands was grandfathered over to the new states as the King's successors at the time of the revolution. The state may still own the riverbed of a stream which is not navigable under federal law. Some of these grants conveyed ownership of the air, water, wildlife, and mineral rights to private owners. These gifts were called King's Grants.

Some landowners claim that these grants give them ownership of navigable rivers and allow them to control commerce and traffic. However, the courts have generally held that moving waters cannot be owned. Therefore conflicts have arisen on rivers like John's Creek in Virginia over the ability of an individual to own a public resource: water.

If a river fails to meet the federal title test, what are the state tests?

If a river fails the federal title test, the bed and the banks are privately owned and state law defines boating rights. State law varies wildly on these rights, therefore it is important to research these rights individually. American Whitewater has surveyed navigability case law and legislation in all 50 states and has posted this information at www.awa.org/navigability/states.

The doctrine of equal footing establishes that a navigable water body at the time of statehood is sovereign land. Most states have adopted the English common law interpretation that the beds and banks of tidal water bodies are navigable, and that beds and banks of non-tidal navigable streams were owned by the state and held as a public trust.

As stated by Justice Van DeVanter in Scott v. Lattig³³⁾:

Coming to the effect to be given to the admission of Idaho as a state and to the disposal of the fractional subdivisions on the east bank, it is well to repeat that Snake river is a navigable stream, for there is an important difference between navigable and non-navigable waters in such a connection. Thus, Rev. Stat. 2476, U. S. Comp. Stat. 1901, p. 1567, which is but a continuation of early statutes on the subject³⁴⁾, declares: 'All navigable rivers within the territory occupied by the public lands shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both;' and of this provision it was said in St. Paul & P. R. Co. v. Schurmeir³⁵⁾, 'the court does not hesitate to decide that Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'

Besides, it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and state governments under the Constitution, that lands underlying navigable waters within the several states belong to the respective states in virtue of their sovereignty, and may be used and disposed of as they may direct, subject always to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, and that each new state, upon its admission to the Union, becomes endowed with the same rights and powers in this regard as the older ones.³⁶⁾

Bearing in mind, then, that Snake river is a navigable stream, it is apparent, first, that on the admission of Idaho to statehood the ownership of the bed of the river on the Idaho side of the thread of the stream-the thread being the true boundary of the state-passed from the United States to the state, subject to the limitations just indicated, and, second, that the subsequent disposal by the former of the fractional subdivisions on the east bank carried with, it no right to the bed of the river, save as the law of Idaho may have attached such a right to private riparian ownership. This is illustrated by the statement in Hardin v. Shedd³⁷⁾. 'When land is conveyed by the United States, bounded on a non-navigable lake belonging to it, the grounds for the decision must be quite different from the considerations affecting a conveyance of land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the state by its admission to the Union… When land under navigable water passes to the riparian proprietor, along with the grant of the shore by the United States, it does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the state which does own it that it is attached to the shore.' United States v. Chandler-Dunbar Water Power Co.³⁸⁾, is to the same effect…

How do state constitutions affect navigability?

Several states, including California and Montana have state constitutions that hold the river and streams in the public trust, meaning that the state owns all waters and waterways.

Non-navigable rivers in which the streambed is privately owned

Non-navigable rivers where states authorized private ownership of the streambeds have created muddy legal waters regarding the public trust and the public's recreation rights. However, under the public trust doctrine, private ownership of land does not extinguish the public trust in associated natural resources. The public trust applies to all natural resources, wherever located.³⁹⁾

Former American Whitewater board member Pope Barrow explained that “This is a critical issue for whitewater boaters seeking smaller creeks since many of these may not be navigable under the federal navigability test, and under the original land grant the government may not have retained streambed title. Yet these are often streams which offer outstanding recreational opportunities, especially for experts who favor steep and challenging whitewater.”

Problematic applications of the public trust

Two states, Georgia and Colorado, make the most problematic applications of the public trust for their citizens.

In Georgia, the state legislature gave streamside or riparian landowners the exclusive right to use the waters of all non-navigable streams.⁴⁰⁾

While a Colorado court in People v. Emmert⁴¹⁾ prohibited customary recreational uses of rivers flowing through private lands where the streamside landowner also owns the streambed. This controversial decision has been cast in doubt by a subsequent opinion written by the Colorado Attorney General ⁴²⁾ and by uniformly critical scholarly review, however it continues to serve as the basis for state interpretations of navigability.

Moderate applications of the public trust

Most state courts have applied a variety of statutes and legal doctrines in developing a body of case law supporting public rights of passage on many streams which flow through private lands. Some states like Wyoming, have relied on provisions in the state constitution to assert a public right of navigation on these streams.⁴³⁾ Others, like Maine, have relied on state statutes ⁴⁴⁾ or on common law and expansive state law concepts of public navigational easements.⁴⁵⁾

The strongest applications of the public trust

The public trust is deeply entrenched in California, Wisconsin, and Montana's constitutional provisions and case law. The doctrine could be used to sustain public river access rights to streams flowing through private lands and over privately owned streambeds.⁴⁶⁾

In Wisconsin, the courts found a direct link between the public trust doctrine and public rights of access to small inland streams. In one case, the courts found that Four Mile Creek, a stream floatable by logs and small boats, wasopen to public recreational use as a public highway. This right of access was held in trust for the public by the state irrespective of the private ownership of the streambed. As a result, there was no need for the court to determine streambed title.⁴⁷⁾ In this case the judge noted, “navigable waters, in contrast with non-navigable waters, is but one way of expressing the idea of public waters, in contrast with private waters.”

Takings

Some riverside landowners have expressed concern that navigability laws and public recreation on waters bordering or crossing their property have resulted in limiting their exercise of private property rights and that this limitation represent an unreimbursed “taking” of their property. While landowners' concerns, such as protecting their property free from damage or litter, should be recognized, American Whitewater believes the “takings” claim is unfounded. The public trust doctrine is impressed in state and federal law as well property rights, and the public has the right to access public resources.

Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) explained that the federal government's authority extends to the entire bed of any navigable stream, including the lands below the ordinary high water mark. Roberts stated “The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.”

Using recreation to demonstrate navigability

Over the last 20 years, the federal courts have generally begun recognizing recreational use as a test of navigability. The area of greatest progress has been in the arena of hydropower relicensing. The Federal Energy Regulatory Commission (FERC) has issued several important precedent-setting decisions recognizing recreation as the ordinary and common mode of commerce and transportation. The premise of this test is that the purchase and sale of kayaks and canoes represents commerce, and that these watercraft are intended for transportation and use on even the smallest rivers and streams.

In Alaska v. Ahtna, Inc.,⁴⁸⁾ the court found the Gulkana legally navigable on the basis of rafting, floating in aluminum power boats, and guided fishing activities, and therefore found the bed and banks of the river to be public land up to the ordinary high water mark. The court observed that to “deny that this use of the river is commercial because it relates to the recreation industry is to employ too narrow a view of commercial activity.”

In two non-title cases, the courts also found that evidence of contemporary, commercial recreational use can satisfy navigability. In the first, State ex. rel New York State Dept. of Conservation v. Federal Energy Regulatory Comm.,⁴⁹⁾) the court found that New York's Salmon River navigable for Commerce Clause purposes, based in part on evidence of contemporary drift boat use by commercial fishing guides. In the second, Sawczyk v. US Coast Guard,⁵⁰⁾ the court found the Lower Niagara navigable for admiralty law purposes based in part on evidence of intermittent, commercial whitewater rafting.

In another case, Goodman v. City of Crystal City,⁵¹⁾ the court found that Florida's Three Sisters Springs was navigable for Commerce Clause purposes based solely on small craft use, including commercial fishing and sightseeing.

FERC, in Swan Falls Corp.,⁵²⁾ found Maine's Saco River navigable under the federal Commerce Clause test based mostly on extensive, contemporary canoe use including some commercial use. Likewise, Indiana's Fawn River was determined navigable under the Commerce Clause in David Zinkie.⁵³⁾ This case was particularly interesting because the decision was based solely on the river's potential for commercial recreation though no evidence was presented of any actual commercial recreation.

There were also two conflicting cases in North Dakota on using a recreational standard for using recreation to determine navigability. The first, State of North Dakota v. Hoge,⁵⁴⁾ found that Painted Woods Lake navigable for title purposes based on evidence showing that the lake had been used for recreational boating, hunting, and fishing since the early 1900's. In contrast, the second, State of North Dakota v. US,⁵⁵⁾ found that modern recreational canoeing on the Little Missouri River was not a reliable indicator of the river's navigability for title purposes at statehood.

In US v. Utah,⁵⁶⁾ the court wrote:

”[A]s the title of a State depends upon the issue [of navigability], the possibilities of growth and future profitable use are not to be ignored… The question remains one of fact as to the capacity of the rivers in their ordinary condition to meet the needs of commerce as these may arise in connection with the growth of the population, the multiplication of activities and the development of natural resources.”

In Bohn v. Albertson,⁵⁷⁾ the court wrote:

Many, if not most, of the meandered lakes of this state, are not adapted to, and probably never will be used to any great extent for, commercial navigation; but they are used - and as population increases and towns and cities are built up in their vicinity, will be still more used - by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under and old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated.

In another case testing Commerce Clause jurisdiction, US v. Appalachian Electric Power Co.,⁵⁸⁾ the court stated “Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial traffic.”

In National Audubon Society v. Superior Court,⁵⁹⁾ the court states “A waterway usable only for pleasure boating is nevertheless a navigable waterway and protected by the public trust.”

“Floatability” v. “Navigability”

Floatability refers to the purely physical ability to float a craft on a stream or waterway. Navigability refers to the unquestioned legal ability to float a craft on a stream or waterway. In many states it is legal to float a non-navigable river if you can get to it without trespassing. However, it is generally illegal to use the beds and banks of the river for fishing or wading on these non-navigable streams. Navigability generally conveys other incidental public rights such as fishing, wading, swimming, and camping within the mean high water mark.

Are infrequently floatable streams and steep creeks navigable?

Whether an infrequently floatable stream is navigable varies on a state by state basis.

Man-made obstructions

The presence of dams or other man-made obstructions do not limit navigability.

In Shively v. Bowlby, Justice Gray writing for the majority on the Supreme Court quotes Lord Chief Justice Hale favorably. In describing English Common Law in De Jure Maris, Hale wrote:

That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances… for the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the king's subjects, as the soil of an highway is, which though in point of property it may be a private man's freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified.

This in essence, states that private landowners may not obstruct the public privilege of using the navigable waterway, beds, or banks below the mean high water mark.

Can a landowner own the water in a navigable river?

No. However the landowner may own the beds and banks; thereby limiting terrestrial contact. The water flows freely across property lines in the same way as game animals. As established under English common law, the game is the property of the state. Likewise, the water is the property of the state. The exception is for Kings Grant properties, which affects some land, principally in the original 13 colonies.

Can a landowner restrict navigation if the property line is in the middle of the river?

A landowner that only owns the streambed to the middle of the river cannot obstruct or restrict navigation.

Landowner Streambed Rights Subordinate to Public

In navigable streams, landowner's rights are clearly secondary to the public rights of navigation.

Justice Harlan in West Chicago St. R. Co. v. People of State of Illinois Ex Rel City⁶⁰⁾:

Great stress is placed by the railroad company on the fact that it is the owner in fee of the bed of the river at the point where the tunnel was constructed. But that fact is not vital in the present discussion; for it was adjudged by the state court-in harmony with settled doctrines, as will presently appear-that 'the title to land under a navigable river is not the same as the title to the shore land:' that 'in a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must be free and unobstructed;' that 'the title to the upland is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation;' and that 'the city could not, if it would, grant the right to obstruct the navigation of the river, or bind itself to permit anything which has become an obstruction to be continued⁶¹⁾.'…

…The principle is thus declared by a leading text writer: 'The privilege of navigation upon all waters which are capable of such use in their natural condition, and are accessible without trespassing upon private lands, is a common and paramount right. . . . At common law the right of navigating a public stream is paramount to the right of passage across the stream by means of a bridge.' Gould, Waters, 86, 88.

…The state court has well said that to maintain the navigable character of the stream in a lawful way is not, within the meaning of the law, the taking of private property or any property right of the owner of the soil under the river, such ownership being subject to the right of free and unobstructed navigation.⁶²⁾ What the city asks, and all that it asks, is that the railroad company be required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds, to exist. This is not an arbitrary or unreasonable demand. It does not, in any legal sense, take or appropriate the company's property for the public benefit, but only insists that the company shall not use its property so as to interrupt navigation.

Justice Harlan in Union Bridge Co. v. U.S.⁶³⁾ stated:

Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited and upon principle, not only that the company, when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the states, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions…

In Philadelphia Co. v. StimsonJustice Hughes wrote ⁶⁴⁾:

Nor is the authority of Congress limited to so much of the water of the river as flows over the bed of forty years ago. The alterations produced in the course of years by the action of the water do not restrict the exercise of Federal control in the regulation of commerce. Its bed may vary and its banks may change, but the Federal power remains paramount over the stream, and this control may not be defeated by the action of the state in restricting the public right of navigation within the river's ancient lines. The public right of navigation follows the stream⁶⁵⁾, and the authority of Congress goes with it.”

…In Gibson v. United States⁶⁶⁾, the construction of a dyke in the Ohio river under the authority of the Secretary of War had substantially destroyed the landing on and in front of a farm owned by Mrs. Gibson 'by preventing the free egress and ingress to and from said landing' to 'the main or navigable channel' of the river. The court said (pp. 271, 272, 275 ): 'All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution…⁶⁷⁾ The 5th Amendment to the Constitution of the United States provides that private property shall not 'be taken for public use without just compensation.' Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.'

Again, in Scranton v. Wheeler⁶⁸⁾, the question arose with respect to the riparian owner whose access from his land to navigability was permanently lost by reason of the construction by the United States of a pier resting on submerged lands in front of his upland. The court said

The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.

Justice Black, in U. S. v. Commodore Park⁶⁹⁾ found

…“The only land for which compensation was awarded because of mud and silt deposits was that part of the creek's bed between high and low water mark. That Virginia recognizes respondent's title to such land cannot give respondent a right to compensation if its market value is impaired as a result of work done by the United States in the interest of improvement of navigation. United States v. Chicago⁷⁰⁾, set at rest any remaining doubt concerning the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold 'technical' legal title (as between himself and others than the government) to a part of the navigable stream's bed.

Nor does a riparian owner acquire a unique private right distinct from that held by all others, to have access to and enjoyment of navigable waters and to recover compensation from the government because deprived of that privilege by an authorized governmental change in a stream. Respondent's property was always subject to a dominant servitude; it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands. Whatever market value of riparian lands may be attributable to their closeness to navigable waters, does not detract from the government's 'absolute' power in the interests of commerce, to make necessary changes in a stream. In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as 'fishing and boating and the like', for which rights the government must pay. Riparian rights of access to navigable waters, cannot, as against the government's power to control commerce, be bought and sold.

Justice Rehnquist in Kaiser Aetna v. United States⁷¹⁾) stated:

The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters]] that in their natural condition are in fact capable of supporting public navigation…⁷²⁾ Thus, in United States v. Chandler-Dunbar Co.⁷³⁾, this Court stated that “the running water in a great navigable stream is [incapable] of private ownership. . . .”

The nature of the navigational servitude when invoked by the Government in condemnation cases is summarized as well as anywhere in United States v. Willow River Co.⁷⁴⁾:

It is clear, of course, that a head of water has value and that the Company has an economic interest in keeping the St. Croix at the lower level. But not all economic interests are `property rights'; only those economic advantages are `rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion.

If a portion of a river is navigable, is the whole river navigable?

With few exceptions, if a stream is navigable, then it is navigable in whole.

The oceans are obviously navigable waters. Likewise all tidal waterways are navigable, including: estuaries, sounds, and bays. Furthermore, all rivers or “arms of the sea” where the tide ebbs and flows are navigable.

In reviewing the English Common Law, which serves as the basis for America's legal system, regarding the “sea and its arms,” Justice Gray, in Shively v. Bowlby⁷⁵⁾, stated:

“By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the representative of the nation and for the public benefit.”

Streambed and ownership of waters flowing through tribal lands or reservations is determined via individual treaties. In some circumstances these rivers are reserved as sovereign lands for the tribes, in other cases the government reserved ownership. Chief Justice Taft in Brewer-Elliott Oil & Gas v. U.S.⁷⁶⁾ held: Where the United States owns the bed of a nonnavigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what is intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies. Where it is disposing of tribal land of the Indians under its guardianship the same rules apply.' In government patents containing no words showing purpose to define riparian rights, the intention to abide the state law is inferred.

Public Trust Approach

We would also like to advocate for a stronger recognition of the public trust doctrine in the law. In the landmark case of National Audubon Society v. Superior Court of Alpine County, the courts stated “The very purposes of the Public Trust Doctrine have evolved in tandem with the changing public perception of the values and uses of waterways.” If this doctrine were incorporated more fully into modern law, we wouldn't face the current risk of being excluded from public resources.

Historical Research and Litigation

Proving navigability can be extremely difficult. Therefore it is important to gather a solid team to work on the issues including a historian, commercial boater or guide, hydrologist, surveyor, as well as an attorney and someone to research titles and deeds.

A century ago, in a review of early cases relating to navigable waters of the United States, Justice Shiras in Levoy v. U S, 177 U.S. 621 (1900) found that a river which was navigable in fact was navigable in law. Citing The Montello, 20 Wall. 441, sub nom. United States v. The Montello, 22 L. ed. 394, Justice Shiras wrote:

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are, or may become, the mode by which a vast commerce can be conducted, and it would be a mischievous rule that would exclude either in determining the navigability of a river. {emphasis added}

Justice Brewer in US v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899) found that navigational use of minor commercial value to trade and agriculture would not necessarily qualify a river as being “navigable in fact”:

…Examining the affidavits and other evidence introduced in this case, it is clear to us that the Rio Grande is not navigable within the limits of the territory of New Mexico. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. It was said in The Montello, 20 Wall. 430, 439, 'that those rivers must be regarded as public navigable rivers in law which are navigable in fact; and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' And again (page 442): 'It is not, however, as Chief Justice Shaw said ([Rowe v. Bridge Corp.] 21 Pick. 344), 'every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture. {emphasis added}

Again in Levoy v. US, Justice Shiras cited the decision in Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300, that shallow seasonal water bodies without channels were categorized non-navigable, even though they could be artificially modified to become navigable:

The [Louisiana] trial judge, as to the contention that Bayou Pierre was a navigable stream, said:

'From Grande Ecore, where it (Bayou Pierre) enters Red river, to a point some miles below its junction with Tonre's Bayou,-a stream flowing out of the river,-Bayou Pierre has been frequently navigated by steamboats. But from the point of junction to the dam in question it has never been navigated, and is unnavigable. Between these two points it is nothing but a highwater outlet, going dry every summer at many places, choked with rafts, and filled with sand, reefs, etc. It has no channel; in various localities it spreads out into shallow lakes and over a wide expanse of country, and is susceptible of being made navigable just as a ditch could be if it were dug deep and wide enough and kept supplied with a sufficiency of water.'

And accordingly it was found by the trial court that Bayou Pierre was not a navigable water of the United States. Its judgment was affirmed by the supreme court of Louisiana, and the case was brought to this court and the judgment of the court below affirmed. Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300.

In US v. Cress, 243 U.S. 316 (1917), Justice Pitney explained that for a river to be determined a “public navigable river,” the river must be “navigable in fact” in its natural state or “ordinary condition”:

In Kentucky, and in other states that have rejected the common-law test of tidal flow and adopted the test of navigability in fact…numerous cases have arisen where it has been necessary to draw the line between public and private right in waters alleged to be navigable; and by an unbroken current of authorities it has become well established that the test of navigability in fact is to be applied to the stream in its natural condition, not as artificially raised by dams or similar structures; that the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right….We have found no case to the contrary….

This court has followed the same line of distinction. That the test of navigability in fact should be applied to streams in their natural condition was in effect held in The Daniel Ball, 10 Wall. 557, 19 L. ed. 999…The point was set forth more clearly in The Montello, 20 Wall. 430, 22 L. ed. 391, where the question was whether Fox river, in the state of Wisconsin, was a navigable water of the United States within the meaning of the acts of Congress. There were rapids and falls in the river, but the obstructions caused by them had been removed by artificial means so as to furnish uninterrupted water communication for steam vessels of considerable capacity. It was argued (p. 440) that although the river might now be considered a highway for commerce conducted in the ordinary modes, it was not so in its natural state, and therefore was not a navigable water of the United States within the purview of The Daniel Ball decision. The court, accepting navigability in the natural state of the river as the proper test, proceeded to show that, even before the improvements resulting in an unbroken navigation were undertaken, a large and successful interstate commerce had been carried on through this river by means of Durham boats, which were vessels from 70 to 100 feet in length, with 12 feet beam, and drawing, when loaded, from 2 to 2 1/2 feet of water. The court, by Mr. Justice Davis, declared (p. 441) that it would be a narrow rule to hold that, in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. 'The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway….'

Justice Pitney in U S v. Cress , 243 U.S. 316 (1917) continued:

Many state courts, including the court of appeals of Kentucky, have held, also, that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensation⁷⁷⁾.

Justice Van Devanter in the State of Oklahoma v. State of Texas, 258 U.S. 574 (1922,) clarified that “exceptional” use for navigation confined to “irregular and short periods of temporary high water” did not meet the requirements for designation as “navigable”:

While the evidence relating to the part of the river in the eastern half of the state is not so conclusive against navigability as that relating to the western section, we think it establishes that trade and travel neither do nor can move over that part of the river, in its natural and ordinary condition, according to the modes of trade and travel customary on water; in other words, that it is neither used, nor susceptible of being used, in its natural and ordinary condition as a highway for commerce. Its characteristics are such that its use for transportation has been and must be exceptional, and confined to the irregular and short periods of temporary high water. A greater capacity for practical and beneficial use in commerce is essential to establish navigability…

Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. US, 260 U.S. 77 (1922) summarized navigability:

A navigable river in this country is one which is used, or is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade, and travel on water. It does not depend upon the mode by which commerce is conducted upon it, whether by steamers, sailing vessels or flat boats, nor upon the difficulties attending navigation, but upon the fact whether the river in its natural state is such that it affords a channel for useful commerce⁷⁸⁾.

Justice Hughes in US v. State of Utah, 283 U.S. 64 (1931,) provides a comprehensive summary of “navigable in fact” as defined by the Court:

…The test of navigability has frequently been stated by this Court. In The Daniel Ball, 10 Wall. 557, 563, the Court said: 'Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' In The Montello, 20 Wall. 430, 441, 442, it was pointed out that 'the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation,' and that 'it would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway.' The principles thus laid down have recently been restated in United States v. Holt State Bank, 270 U.S. 49, 56, 46 S. Ct. 197, 199, where the Court said:

The rule long since approved by this court in applying the Constitution and laws of the United States is that streams or lakes which are navigable in fact must be regarded as navigable in law; that they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability does not depend on the particular mode in which such use is or may be had-whether by steamboats, sailing vessels or flatboats-nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce.

“The question of that susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question. The government insists that the uses of the rivers have been more of a private nature than of a public, commercial sort. But, assuming this to be the fact, it cannot be regarded as controlling when the rivers are shown to be capable of commercial use. The extent of existing commerce is not the test. The evidence of the actual use of streams, and especially of extensive and continued use for commercial purposes may be most persuasive, but, where conditions of exploration and settlement explain the infrequency or limited nature of such use, the susceptibility to use as a highway of commerce may still be satisfactorily proved. As the Court said, in Packer v. Bird, 137 U.S. 661, 667, 11 S. Ct. 210, 211: 'It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon them, and consequently to the exclusion of private ownership, either of the waters or the soils under them.' In Economy Light & Power Company v. United States, 256 U.S. 113, 122, 123 S., 41 S. Ct. 409, 412, the Court quoted with approval the statement in The Montello, supra, that 'the capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use.'

This English common law principle of granting lands riparian to any river not affected by the ebb and flow of the tide (as a “fishery” or as incidental to the “right of the soil”) was brought to the American colonies and applied to land patents later issued by the United States. As stated in Shively v. Bowlby, 152 U.S. 1 (1894):

By the acts of congress for the sale of the public lands…it is provided 'that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to both⁷⁹⁾.'

…The court [Railroad Co. v. Schurmeir] also expressed an unhesitating opinion that 'congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'

[As further clarified in Shively]…The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high - water mark of navigable waters are governed by the local laws of the several states, subject, of course, to the rights granted to the United States by the constitution.

The rights of the riparian landowner and state are subordinate to the dominant power of the federal Government in respect to navigation. Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) explained:

The respondents assert that the power of the Government to take private lands for the improvement of navigation is confined to the natural widths, levels, and flows of the river and that if more is taken compensation must be made. Their position is that the embankment can be injured without compensation only if it constitutes an encroachment and thus a hindrance or obstruction to actual navigation. The Government, on the other hand, insists that its power is not confined to the mere making or clearing of channels and removing hindrances and obstructions to their navigation, but embraces the exercise of every appropriate means for the improvement of navigable capacity and that, in the provision of any such means, it is entitled to deal with and alter the level of the stream to any extent up to ordinary high water mark without being answerable to riparian owners for injury to structures lying below that line.

Commerce, the regulation of which between the states is committed by the Constitution to Congress, article 1, 8, cl. 3, includes navigation. 'The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.' And the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone. Whether, under local law, the title to the bed of the stream is retained by the State or the title of the riparian owner extends to the thread of the stream, or, as in this case, to low water mark, the rights of the title holder are subordinate to the dominant power of the federal Government in respect of navigation.

The power of Congress extends not only to keeping clear the channels of interstate navigation by the prohibition or removal of actual obstructions located by the riparian owner, or others, but comprehends as well the power to improve and enlarge their navigability.

The bed of a river is 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.'

The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.

Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) stated:

The bed of a river is 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.'

As stated by the Army Corps of Engineers⁸⁰⁾, the Federal navigation servitude is the sovereign power of the “Government to use lands under navigable waters for navigation related purposes without payment under the Fifth Amendment. The power includes the right to remove any structures within the servitude.” The Corps continues:

The navigation servitude is derived from rights recognized under Roman civil law and English common law for the public to use navigable waterways without payment, despite the private ownership of the bed or bank. The navigation servitude was incorporated into United States law as part of the Commerce Power under the U.S. Constitution. Hence, in exercise of Congress' power over navigation stemming from the Commerce clause of the Constitution, no further Federal real estate interest is required for navigation projects in navigable waters below the ordinary high water mark. Further, the courts have also generally held that, under the navigation servitude, claims of consequential damages arising from Federal development for navigation, with respect to property values or otherwise, are not compensable. However, Congress has, to a degree, foregone that advantage through what some may view as a definition of compensation for Federal real property acquisitions (Section 111, Public Law 91-611, 31 December 1970)and the definition of non-Federal sponsor cost-sharing requirements (Title I of Public Law 99-662, 17 November 1986).

In Vaughn v. Vermilion Corp., post, p. 206 the Louisiana Court of Appeal held that privately constructed canals, connected to navigable waters of the United States, navigable in fact, and used for commerce, are not subject to the federal navigational servitude. 356 So.2d 551, writ denied, 357 So.2d 558 (1978).⁸¹⁾

In a footnote to Kaiser Aetna v. US, 444 U.S. 164 (1979), the court found that artificially navigable waters having become navigable in fact where under the jurisdiction of federal admiralty and maritime laws:

Footnote 7: 'Navigable water' subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1852)⁸²⁾. And in Ex parte Boyer, 109 U.S. 629 (1884), this Court held that such jurisdiction extended to artificial bodies of water:

Navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of collision on a voyage from one place in the State of Illinois to another place in that State.' Id., at 632.

Congress, pursuant to its authority under the Necessary and Proper Clause of Art. I to enact laws carrying into execution the powers vested in other departments of the Federal Government, has also been recognized as having the power to legislate with regard to matters concerning admiralty and maritime cases. Butler v. Boston S. S. Co., 130 U.S. 527, 557 (1889). See also, e. g., In re Garnett, 141 U.S. 1, 12 (1891).

States may not cede, sell or in any way convey the streambed under navigable waters unless it promotes a clear public purpose.⁸³⁾

The Submerged Lands Act of 1953⁸⁴⁾ was passed by Congress with the intent of returning to the states, title to submerged lands for the exploration, development, and production of petroleum and mineral resources in coastal waters.

American Whitewater publishes the Navigability Toolkit. This toolkit provides concise analyses for every state's navigability legislation and case law. This is one of the best introductory resources for learning about navigability for your home state.

If you would like copies of any of the above case law, please contact American Whitewater's Main office at 828-293-9791.

Following the terrible events of 9/11, many rivers have been closed or threatened with closure by officials citing “security” concerns. A realistic appraisal of these closures reveals that few have actually increased public safety, though they have been successful in limiting public recreation opportunities. The objectives of these closures need to be defined and the security concerns need to be examined to determine whether the closures really satisfy America's security needs and are truly in the public's interest. American Whitewater is working to develop access solutions that simultaneously balance identified security concerns and protect existing public access, privileges, traditions, and freedoms of use on America's rivers.

A partial list of closures and boater restrictions made in the wake of 9/11 includes:

Mongaup River, NY is closed below Rio Dam.

Sultan River, WA is closed below Spada Lake.

New River, VA was threatened with closure through the Radford Army Munitions Plant. New rules that AW advocated for allow continued opportunities for fishing and boating access.

Ausable River, NY is threatened with closure.

South Fork of the Flathead, MT is closed below Hungry Horse Dam.

Lower Blue River, CO below Green Mountain Reservoir was closed but re-opened in July following pressure from AW volunteers. The success of the AW volunteers in convincing the Bureau of Reclamation to re-open the Blue River provides a model for future cooperation and action between the public and dam managers.

Statewide boater registration requirements proposed, temporarily blocked in Connecticut.

Green River, WA is closed for the first mile of the Headworks run to create a security buffer for the new water treatment plant.

There is no evidence that recreational canoe and kayak access downstream of America's dams poses a security risk. In fact, the evidence indicates that canoe and kayak access does not pose a threat. For example:

In June 2002, the Washington Post quoted Assistant Attorney General Michael Chertoff, when he remarked that “to destroy a dam physically would require 'tons of explosives.'” Such a volume of explosives is far in excess of the volume or carrying capacity of a canoe, kayak, or fishing bag.

In response to questions about the Sultan River closure, Dave Harris, a spokesman for the U.S. Army Corp of Engineers in Seattle, affirmed for HeraldNet.com that there have been no confirmed incidents of any security breaches regarding any dams or water sources under the Corps' jurisdiction.

In response to President Bush's plea to continue supporting the economy and protecting core American values, AW is committed to safeguarding the special places that make this country such a wonderful land.

It is our civic responsibility to rise and support both our war efforts and the way of life we had before 9/11. We are fighting a war to protect our security, freedoms, public services, and a way of life that we value. Whenever we sacrifice any of those freedoms, then in the words of President Bush “We are letting the terrorists win.” That is not an acceptable outcome.

Please join American Whitewater in protecting and restoring access to the country's rivers, which have long traditions of public use and heritage.

References/Hyperlinks Chapter 7

Chapter 7.1. Volunteering your legal assistance http://www.americanwhitewater.org/volunteer/

Chapter 7.1. Donating to AW's Access & Legal Defense Fund http://www.americanwhitewater.org/donate/