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Freedom To Use Rivers

Post By:nationalrivers on 7/3/2014 10:52amicon
Replies:2, Views: 963

In this Fourth of July season, it is good to consider what freedom means regarding your rights on rivers. The first Act of the first Congress of the United States declared that the navigable rivers of the nation, and the “carrying places” between the navigable stretches, “shall be common highways, and forever free.” The “carrying places” were the portages around major rapids, waterfalls, and other obstructions (and even from one river to another river nearby.) At that time, the fur trade was an important industry, and furs brought from American forests sold well in New York, London, and Paris. These furs were transported by river, in canoes. Canoes and similar craft are about the heaviest watercraft that can be portaged, so this Act of Congress referred to navigation in canoes and similar craft, not in larger boats that cannot be portaged, such as steamboats (which were not yet in use.)

The U.S. Supreme Court subsequently confirmed that state governments cannot deny public rights to boat and fish on the waters within a state, “divesting all the citizens of a common right. It would be a grievance which never could be long borne by a free people.” The Court held that state governments must maintain the public’s “common liberty” to boat and fish in shallow rivers, including stretches adjacent to private land. The Court said that these waters must be “held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery.”

Nevertheless, lawyers for certain private landowners in various states still argue against public rights to canoe, kayak, raft, and fish on rivers flowing through private land. They typically claim that rivers that are only navigable in small craft such as canoes, kayaks, and rafts are not legally navigable. The U.S. Supreme Court has consistently rejected this view, holding that navigation includes canoes and “the floating out of logs” from “the sparsely settled regions of the Western mountains,” on rivers with “natural barriers, such as rapids and sand-bars,” and other “obstructions” and “carrying-places.” The Court has also repeatedly confirmed that “rivers that are navigable in fact are navigable in law.” In other words, rivers that are physically navigable in the ways just mentioned are legally navigable, with no official designation needed by government agencies, courts, or legislatures. The Court has confirmed that there is a public easement to use these rivers, “regardless of who owns the riverbed” in various stretches. The Court has confirmed your rights to raft, kayak, and canoe on these rivers, and to portage, walk along the beds and banks, and fish and fowl, “freed from the obstruction or interference of private parties.” It is not a crime, in any state, for the public to navigate or walk along the privately-owned banks of rivers and creeks that are physically navigable in these ways. On the other hand, it is a crime, in all states, for landowners to block this public easement, either on the water or along the banks, with fences, signs, obstructions, or verbal threats. Even so, you cannot fight back when confronted, because that can lead to criminal charges. It’s better to avoid confrontations, and instead give sheriffs and district attorneys copies of the book Public Rights on Rivers, or, in Colorado, the new short book Public Rights on Rivers in Colorado, which is available in fly fishing shops, rafting companies, sporting goods stores, and other river-related businesses. Both books are also available online, individually or in wholesale batches, at Upcoming books in the series will cover public rights in Utah, Kansas, Georgia, Virginia, and other states.

May you have a happy Fourth of July and a great summer, enjoying your legal rights to use the physically navigable rivers of the nation. – Team NOR.

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 Reply #1   
RE: Freedom To Use Riversicon
Post By: nate on 7/6/2014 7:16am

So, this tells me that I can paddle all the way up the Wakulla River to Wakulla Springs.............if I have the money to carry it all the way to the U.S. Supreme Court.

I remember when you could go by boat all the way to the Springs, but couldn't fish above 'Upper Bridge".

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 Reply #2   
RE: Freedom To Use Riversicon
Post By: paddlesolo on 7/20/2014 12:12pm

That is an eye-opening post. In George, owners have been given (by the state of Georgia) the right to own spring runs either to the middle of the stream if owners own land on only one side, or the entire stream if they own land on both sides. When I posted photos of springs feeding into Spring Creek (Georgia) which goes into Lake Seminole I was reminded in writing of this Georgia law. A paddling friend of mine wrote the Georgia version of Fish and Game and they confirmed that land and the waters were private.

Not only that, many land owners post no trespassing signs along livery streams such as Econfina near Youngstown. Knowing how bad the general public can trash and damage creek banks I am not sure I blame the land owners.

I am not sure a book or papers to hand land owners would help.

Even though the post mentions that the original laws were made for canoes, they were primarily made for canoes doing commerce, not recreational paddling.

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