When are waterways private or public?

Well we aren’t wanting him to
re present his WHOLE thesis.



Maine waterways are all public. Access to them is not always.

Yes, fighting for thousands of years

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I began my thesis with an exhaustive study of Roman law on the subject, then Spanish and French law -- which are called "civil law" countries, in which the laws are mainly codified by legislatures rather than invented and proclaimed by judges. I then moved into a long analysis of supposed English law from the 14th-19th centuries, and finally into and in-depth survey of American federal law and an overview of general categories of state law, explaining the proper interplay of federal and state laws.

My academic conclusion was that navigability has been a confused hodge-podge since Roman times, both in theory and even more so in practical application. I further found that the entire public trust doctrine was based on an incorrect understanding of English legal history by American judges and treatise writers in the 19th century, especially a wildly creative New Jersey judge in a key case.

The article was 105 pages long with 553 footnotes, and it seems to be too old to be archived in full text on the free internet, but here's the table of contents of the legal journal:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/flsulr3&div=6&id=&page=

I should add that when I was in law school at FSU I clerked for the state agency that owns all non-navigable waters in Florida, and assisted in the litigation of many navigability cases against real estate developers and private land owners. After I graduated, my first job was to work for a law firm representing the developers and private landowners in navigability litigation against the state. Then I got my fellowship for an advanced law degree at Harvard, where I decided to investigate the murky historical sources for modern doctrines. After that, my career went in other directions.

In Arizona
ANY navigable waterway is public!



And a group of paddlers here test this regularly by floating down a seasonal river on a log or such… they win.



BUT, just because the law does allow you to use the water flowing through private land (you still need owners permission to beach on their land) the Law doesn’t really do anythingwhern the landowner decides to run a barbed wire fence across that river or stream!



Also a lot of rivers flow through indian Reservations which cause legal problems as the are a sort of ‘soverign nation’ status and the reservation can require you to buy a pass.



Also, although the Coilorado River through the Grand Canyon is public, the State can regulate howmany people are on that river at any one tine.



It’s like driving a car…

You have the right to drive a car on any road, BUT, the state can require you to buy a Drivers license and take a drivers course and charge a ‘repair fee’ so if the state wants to stop people from driving, they simply raise the DL fees and over-insure the driving schools until they all close which means you go to a yearly drivers school run bythe state at $500 a year plus $500 a year for your DL and a $500 repair fee per year.

It hasn’t been done yet, but it is legal and can be applied to anythingthe govt wants to regulate but cannot actually stop.



So, the state cannot actually stop people from running the Colorado River, but they can overregulate it to make it too expensive to run.



And to get back to your question, in arizona, the state cannot stop you from runnign a river through private property, but they can also be too “busy” to cut all those barbed wire fences the owners run across those ‘free access’ rivers.

Priviledge vs. Rights vs. Entitlement
Keeping a low profile, being respectful, quiet, descent,

pleasant and non-argumentative go a long, long way.

absolutely

LOOK HERE:
http://www.adventuresports.com/river/nors/us-law-menu.htm

Which court case is that?
Because I don’t believe a state court could trump SCOTUS decisions which state a stream which is navigable in fact is navigable in law.

You have the Spanish grant issue wrong

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The preexisting Spanish and Mexican land grants on some property actually make MORE streams publicly accessible than would otherwise be.

The law of Spain and Mexico did not distinguish public and private streams on the basis of navigability. This makes sense, since Spain has only one navigable river, located far in the south, so river navigation rights weren't important. Streams were valued primarily as a source of water for household use and for irrigation, rather than a way to move people and goods. So when the sovereign granted land, perennial streams were retained for public use, regardless of navigability, so as to make as much land as possible capable of settlement. A stream is perennial if it flows most or all of the year. In determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. So in counties that contain Spanish or Mexican land grants, there are an unknown number of perennial streams which are public streams, even though they may not be navigable.

So in Texas freshwater streams and rivers are open to the public if they meet anyone of three tests: (1) "Navigable by statute" ("'Navigable stream' means a stream which retains an average width of 30 feet from the mouth up"); (2) "Navigable in fact"; (3) or recognition as a perennial stream under a Spanish land grant issued prior to December 14, 1837.

The issues with Devils and Frio were not

– Last Updated: Apr-22-13 6:03 PM EST –

actual private ownership of the rivers, but perceived ownership by adjacent property owners coupled with very limited public access points to the rivers. The stream beds of the rivers are public property.

The law vs law enforcement knowledge
Well in my state any permanently flowing body of water that does not start and end on the same property is by definition a public waterway, but the average cop is probably not going to know that unless he(or she) is in the boat unit so if you have a cop in a car you are probably gonna be given a citation(written warning unless you have previous offenses) for trespassing, you can probably get a lawyer and beat the citation in court, but the average beat cop would be ignorant of this law.

Yes
And above all DON’T LITTER! I know most of us are dedicated “leave no trace” folks, but there are sure many paddlers who aren’t. It even behooves us to pick up after them if only to improve paddler relations with landowners. Fire scars are pretty bad form also.



As an aside, and a tangential, but interesting, issue that has been brought to my attention lately… stream-wide strainers.

We’d all, I think I’m safe in saying, prefer not to trespass on private lands to get around these even when state’s laws expressly allow it. So you take a small handsaw to clear a path - no more - through the small branches of a fallen tree. Wouldn’t you do the same on a road or sidewalk following a storm if the road crews hadn’t gotten there yet? I think of it as neighborly cooperation and almost a civic duty in that situation. And the situation on a navigable waterway is very similar if travel is allowed on it, wouldn’t you think?

From what I’m hearing here in this state, that’s apparently not so. The tree, dead or alive, is the property of the landowner who’s roots its on and he doesn’t have to clear it up if he doesn’t want to, even if it is blocking a public right-of-way like a stream. And we have no right to make a cut on his tree even if it is down and blocking a public waterway. We could be considered vandals and charged for doing so.



Seems like a pretty Draconian way for a modern government to address an ancient and common travel situation. Apparently liveries and other businesses can cut downed trees if it can be argued that it affects their business in some way, but we as simple travelers on a public right of way aren’t allowed to.

Now isn’t that an odd twist in a country with a history of pioneering and regard for the rights of the individual such as ours?



Water laws, as I understand it, are some of the first laws on record anywhere. Again, as I understand it (and like most of us my understanding is decidedly limited), one of the main reasons China first consolidated a formal government, one of the earliest, was to regulate water usage and travel on it. Water laws made a nation out of a bunch of tribes.

Yet here we are, thousands of years later, with “gray areas” in water laws that a truck could be driven through.

If not water travel rights, can anything ever be really decided legally?

That’s the way it is in most states

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I would favor private citizens being allowed to remove any obstruction to navigation by cutting the parts in the waterway, whether its roots were still on private property or not, but I don't see not being able to as such a big deal. Just quickly portage around it (which you would have the right to do in this situation, so what if an ill-informed landowner calls the cops, youll be long gone by then and would prevail in court anyway), it'll be quicker than cutting through it, then report it to the local fish and wildlife service or local river authority or flood control district. They are going to have an interest in removing any potential logjams that could lead to flooding, and they have the authority to remove it.

If it is on a public water body that you use regularly, and for some reason the local authority never gets around to removing it, send the landowner a polite and friendly (but certified) letter telling him that you want to inform him of the tree that is blocking the publicly navigable waterway running through his land. Ask him nicely if he could please remove it. Your tone should be as though you assume he had no idea the tree had fallen, and you're sure had he known he would have already removed it. Offer to help him out, maybe even to split the costs of a tree removal service with him. If he doesn't comply send him two or three more certified letters first stressing the flood risk the tree poses to him, the safety risk it poses to water users, how it necessitates walking on his land which is your legal right in this case but something you would rather not do if you could help it, and then later stressing his duty to remove the tree. Once you have this paper trail indicating he is aware of the obstruction to navigation but has refused to do anything about it, file a purpresture complaint with the proper authorities.

For help in figuring out who the landowner is, using topo maps and county property maps together are very useful, and then using the county appraisal district website to get contact information.

I don't think this is a matter of "gray areas" in the laws, but merely having the patience to avail yourself of the law by following the proper procedures.

Government agencies and tree removal?

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Your comment about reporting a blockage to some government agency, and your expectation that somebody there would actually do something, seems like quite a stretch. I honestly can't imagine a scenario where anyone in any branch of public service would care or even have such a responsibility. I don't see flooding as an issue at all, since the biggest, densest, nastiest log jams I've seen don't raise the river enough to notice (in fact, as soon as a tree falls and obstructs flow, the river simply scours a hole underneath it), but in any case, the very idea of "improving flow" has, for decades now, been seen as old-fashioned and counter-productive on any river small enough for logjams to be a consideration. What I have seen is that on any river with more than sporadic boat traffic (whether motorboats or paddle craft), someone will clear a path, and if there's no traffic to speak of but the river is narrow enough to be blocked by one or two trees, there will be not just those but dozens or even hundreds of others along any stretch long enough to be considered a daytrip. Maybe trees are scarce in Texas, but here, I think one probably falls across a river, somewhere in the state, about every five seconds :)

Here in Texas
river blockages are handled by the “chainsaw fairies”. Although I have never seen one myself, every time I pass hrough a john-boat size opening with freshly sawed cuts on each side I say a little thank you to them.



I hear a few paddlers have even taken to carrying an extra Shiner(beer) or two as an offer of appreciation in case they happen upon these delightful creatures.



Mark

Woody Debris Removal

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Volunteer groups are stewards of the river and
keep some smaller rivers navigable for recreation
in Michigan. They work closely with the state agencies
and are up-to-date on what constitutes trespassing.

A river is a trail - just like the ones used for
cycling, jogging, hiking and equestrian groups.
Maintenance is required and expected for navigability.

http://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Shiawassee_Heritage_Water_Trail.jpg/800px-Shiawassee_Heritage_Water_Trail.jpg

Woody Debris Removal Manual :
http://www.rochesterhills.org/documentcenter/view/255

I’m of…
two minds when it comes to removal of blockages. If it’s on a well-used waterway, especially one that has canoe liveries, any tree soon gets cut, either by the canoe livery or by whoever is using it. If I’m on such a waterway, that’s pretty much what I expect to happen and I’m fine with it. But on a wild, little used river, I ain’t gonna cut it myself and I DON’T want anybody else to do so. That’s just part of the risk and the experience of being on a wild stream.

Ecological Considerations
I just skimmed a little bit of that last article, and I wish to read it in its entirety later. Thanks for posting that. That article recognizes the value of woody debris, something that the old ideas of “flood control” and “lets get this river flowing faster” failed to recognize, to the great detriment of many rivers. Thankfully, at least around here, government agencies involved in such things have long abandoned such ideas.



Some folks in our local paddling club made a big project of opening a path through deadfall obstacles on a creek near here, and they got approval from the DNR to do so, but with the stipulation that removal of material be kept to a minimum. “Clearing” the creek, even at particular locations, would not have been permitted. An earlier post here about government agencies being interested in maintaining clear flow makes me think some backward states are clinging to ancient ideas about “improving” the natural condition of things. Thank goodness that’s becoming less and less common.



On that topic, I heard a talk at Canoecopia addressing this very thing, but in regard to developed lake shores. It’s been found that even the small amounts of brush laying in the water along a lake shore (the amount of brush is infinitely small relative to the volume of water when compared to most rivers) is critical habitat for lots of life, things on which everything else ultimately depends. When every landowner removes that little bit of brush from the water in front of their house, just to make it look nice, the negative consequences are pretty severe.

Absolutely true
Though during the years when I was working at a farm down the road from me we did pretty much “clear” a section of the creek that flowed through after having found that if we didn’t during times of flood a good deal of water would be diverted from the creek course through our fields. And it did damage. There was current when the creek was obstructed, standing water only when it wasn’t. But that was just in one section where we had problems, we left the rest pretty much be.



I’d never suggest clearing a stream of all woody debris - but cutting a path - three or four feet wide and something that a paddler might have to duck to get under seems like a “good deed” done for all involved, paddlers, land owners, the DNR (since they don’t have to listen to complaints about something they would never do anything about, at least in this state, anyway).

There is a safety aspect, though admittedly usually pretty minor, to this also. It isn’t always perfectly safe clambering up a muddy undercut bank, hauling a boat, upstream of a strainer. Often that’s the only way around, and it could contribute to erosion if enough people follow the same route around or if its in unstable condition due to the weather. Beating a path through what’s often deep, soft mud on the inside of a bend isn’t without consequences either.



The fellow who brought this to my attention (while I was manning a booth at Canoecopia for a volunteer river protection group) was speaking of a part of a creek just outside of our county that another local volunteer group was working to clean up. They encountered an obstinate landowner who claimed that if he let them cut a path through the downed trees his property would be over run with drunken canoeists and he would have to clean up after them. (Not likely…) He flatly refused to let them cut a path through the downed trees on his land and his stated reason is that he wants to discourage folks from paddling the stream. He continues to do so. Alas, having seen what some, especially the rental paddlers, often do out on the river proper, I can see where those fears might come from.



Of course for most of my life, I’ve just portaged around such things, quickly, quietly, almost covertly. Or if I felt in a generous mood toward future paddlers or thought I might be back often myself, I’d cut a path quickly, quietly, and almost covertly.

I feel no guilt about it either way. And I totally agree with reefmonkey, it is no big deal either way, as I see it.

But until I met this fellow it never occurred to me that there was ever anything potentially criminal about clearing a small opening for a canoe while on the water. It was just something one did to get rid of an annoyance, like swatting mosquitoes or removing a stone from one’s boot. Who questions who’s stone that is in your boot or if those mosquitoes are “live stock” and the property of the owner of the land they fly over? (Perhaps raised on site to discourage drunken paddlers?)



So I mentioned it here because it seems related to the topic of “who owns the river; is it public or private”.

that’s wise advice
Add to that, that some watershed organizations prefer that deadfall be left in place for habitat. I know a river where they’d hang you for clearing it!

Garbage collection

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Those woody debris strainer messes make wonderful
garbage collectors for all those styrofoam worm cups
and lids the fishermen seem to "loose" along with their
plastic water bottles, bobbers, and beer cans.

Nothing like decorating a natural debris pile with garbage
for that outdoor experience while paddling.

Everyone lives downstream from somebody else.
Some clean it up, others are apathetic and turn a blind eye

Fishing license fees don't exactly fund clean-up efforts
-at least not in Michigan, because the state does ZERO

http://picasaweb.google.com/108590711667865641354/KayakingShiawasseeRiverArgentineToCorruna#


This work was done by 501-3c NonProfits
to open the river via "slots" for navigability.

Maybe other states are different