Rivers Shall Be "Forever Free"...Kayak and Canoe Paddler Rights on Navigable Waterways.
Visit National Organization for Rivers website for more detailed information about your legal rights on national waterways http://www.nationalrivers.org
The U.S. Supreme Court (and other federal and state courts) has repeatedly affirmed that the public owns rivers which are physically capable of being run, even if only in small watercraft such as canoes, kayaks, and rafts. They have also ruled that government agencies hold navigable rivers "in trust" for the public, so they are obligated to preserve rivers for navigation and recreation.
In practice, however, most government agencies, and most owners of land along rivers, think that only a few exceptionally large rivers, frequented by barges and ships, are "navigable," and that all other rivers are privately owned. The result is that literally thousands of miles of rivers throughout the U.S. are in an ambiguous state of ownership or public easement.
FACT OR FICTION?
A court, or government agency, designates rivers as legally navigable. If a river isn't officially designated, it isn't legally navigable..
Only certain large rivers, capable of navigation by motorized ships carrying commercial freight, are legally navigable. Other rivers, where they flow through private land, belong to the surrounding landowners. The public may be allowed to run such rivers in some cases, but may not touch the banks.
If a landowner's property deed includes the land around a river, and makes no mention of the river being public, then the river is private.
Rivers that flow through federal land (National Parks, National Forests, etc.) belong to federal agencies, whose "river management plans" can determine when, and if, navigation and recreation will be allowed.
Since the state "owns" the river and the land up to the ordinary high water mark, the state can sell or give away the river to private owners for various projects or private uses.
Public ownership of physically navigable rivers varies from state to state, as do the public's rights to canoe, kayak, raft, walk along, and otherwise visit such rivers.
The U.S. Supreme Court has repeatedly ruled that "rivers that are navigable in fact are navigable in law." If a river is physically navigable, it is legally navigable. No court or agency has to designate it as such.
Even rivers that are physically navigable only by canoe, kayak, and raft are still legally navigable. (The courts have also ruled that commercial recreational river trips qualify as commerce). Because they are legally navigable, such rivers are held in trust for the public by the states, for navigation, recreation, and fisheries. The land along them is public land up to the ordinary high water mark (which can be quite a distance from the water--it's the land where the vegetation and soil show the effects of water.) The public can use this land for walking, fishing, resting, camping, and other non-destructive visits.
Public ownership of physically navigable rivers, including the land up to the ordinary high water mark, pre-dates property deeds. What the property deed says or doesn't say about the river is irrelevant.
Physically navigable rivers that flow through federal lands are still held in trust for the public by the states. River management plans must preserve the public's paramount rights to navigate and recreate on these rivers.
The state does not actually own the river, but holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits.
Public ownership of physically navigable rivers is the same in all states. It's a U.S. Supreme Court standard, and it includes those rivers that are physically navigable by canoe, kayak, and raft. The public's right to visit additional non-navigable streams (those too small for even canoes, kayaks, and rafts) does vary from state to state, but this variation only applies to those small streams.
Federal Law & Landowners
It is a violation of federal law for landowners to erect fences, cables, “No Trespassing” signs, or other obstacles to public use of the water surface, beds, or banks of rivers that are navigable in canoes, kayaks, or rafts.
Rivers that are navigable in canoes, kayaks, or rafts are legally navigable under federal law, with no official designation needed. Federal law confirms public rights to navigate these rivers through private land, and walk on privately-owned gravel bars and riverbanks to scout rapids, portage, fish, or simply to enjoy the river.
In a number of places, state and local officials deny public rights on rivers, but such policies violate federal law. Under the U.S. Constitution, state and local laws cannot deny public rights to use navigable rivers. Federal law requires state governments to hold rivers “as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery,” “freed from the obstruction or interference of private parties.”
River users should avoid riverbank confrontations with landowners. Instead, they should report landowner crimes to the sheriff, district attorney, and their state legislators.
A printable handout poster illustrating your river access rights is available free of charge from the National Rivers org website.
Examples of River Law Court Decisions:
Rivers are legally navigable if usable for canoeing: Economy Light v. United States, 256 U.S. 113 (1921). If usable for kayaking: Atlanta School of Kayaking v. Douglasville County, 981 F.Supp. 1469 (N.D.Ga.1997). For rafting: Alaska v. Ahtna, 891 F.2d 1401 (9th Cir.1989).
For log drives: United States v. Appalachian Electric, 311 U.S. 377 (1940). For lumber drives: Puget Sound Power v. FERC, 644 F.2d 785 (9th Cir.1981).
Public right to navigate and walk along beds and banks through private land: Scranton v. Wheeler, 179 U.S. 141 (1900) (private ownership of the beds and banks of rivers is “always subject to public rights to use the stream.”) United States v. Cress, 243 U.S. 316 (1917) (“the right of the public to use a waterway supersedes any claim of private ownership.”) Montana v. United States, 450 U.S. 544 (1981) (it is unlawful to block the public easement for “sports fishing and duck hunting.”).
State laws cannot deny public rights to use navigable rivers: Gibbons v. Ogden, 22 U.S. 1 (1824) (state laws cannot deny public rights on the navigable rivers of the nation, due to the Commerce Clause and the Supremacy Clause of the U.S. Constitution.) Atlanta School of Kayaking (cited above) (public rights to use rivers navigable in kayaks “are determined by federal law,” not state law.) Public trust: Martin v. Waddell, 41 U.S. 367 (1842). Freed from obstruction: Illinois Central v. Illinois, 146 U.S. 387 (1892).
Crime to block public use of navigable rivers: 33 U.S. Code 403. For further documentation, and information about what river users can do to restore public rights, see Public Rights on Rivers, available at nationalrivers.org and amazon.com.