The public’s right to access streams and other flowing waters is different in every state, depending on each jurisdiction’s particular combination of constitutional, statutory, and judicial public trust rules. These laws impact not only public use, but also the private property rights of riparian owners, and they can have far-reaching effects on conservation measures and economic development related to recreational tourism. To illustrate the breadth of these rules, consider the very different stream access laws in New York and Montana.
Stream access in New York State is governed by a few basic rules:
- All tidal rivers and streams are deemed “navigable-in-law” and are open to the public for fishing and navigation.
- The beds and banks of freshwater rivers and streams are owned by the adjacent property owners, and they retain the exclusive right to fishing in those waters. If the banks of the river are owned by separate property owners, their rights extend to the river’s center line.
- Freshwater rivers that are “navigable-in-fact” are considered public highways and are impressed with an easement for public passage, regardless of private ownership of the streambed and banks.
- If a freshwater stream isn’t “navigable-in-fact,” then it is the private property of the adjacent landowners, and the public can be completely excluded, for passage as well as fishing.
These rules are based on centuries-old common law principles. One of the earliest New York cases was Hooker v. Cummings, decided in 1822, although the courts relied on much older British jurisprudence throughout the nineteenth century. In Hooker, the court explained that tidal rivers are considered navigable and are “devoted to the public use, for all purposes, as well for navigation as for fishing.” The owners of land adjoining nontidal rivers and streams, however, “have an exclusive right of fishing opposite to their land, to the middle of the river; and the public have an easement in the river, as a highway, for passing and repassing with every kind of water craft.”
This position was reaffirmed 175 years later in Douglaston Manor v. Bahrakis, where the state high court held that the plaintiffs, commercial fishing guides, were liable for trespassing on a portion of the nontidal Salmon River that crossed property owned by a private sport fishery. As the court explained, “the long-standing easement of navigation in navigable-in-fact rivers does not sweep away or displace other rights accompanying the private ownership of the bed of a navigable-in-fact river, including that of exclusive fishery.”
Matter of the Delaware River at Stilesville, an appellate court decision from 1909, involved a somewhat different aspect of the public’s interest in stream access. The question in the case was whether the state fish and game commissioner could order an electric company to install a working fish ladder on its dam, and the court answered that it could. While a streambed can be privately owned, the court explained, and the owner can prohibit others from fishing there, its owner has only a usufructory right in the stream’s water and aquatic life, which ultimately belong to the state. “The people of the State have certain easements,” the court continued, “one of which is the right to transport thereon…. The people of the State have also as an easement in this stream the right to have fish inhabit its waters and freely pass to their spawning beds and multiply….”
The New York Court of Appeals most recently discussed stream access in the 1998 case Adirondack League Club v. Sierra Club, which addressed, in particular, the factors that go into determining whether a freshwater river is non-navigable, or whether it is navigable-in-fact. The suit was brought by the Adirondack League Club, which claimed that the 12 miles of the Moose River that crossed its property were non-naviagble and thus were not subject to an easement for public passage. The defendants included the Sierra Club, which had organized a canoeing trip on the river, as well as the five Sierra Club members who had participated, and while the Adirondack League argued that navigability depends on a river’s ability to transport goods for commercial purposes, the Sierra Club contended that recreational uses could also establish navigability.
Emphasizing that rivers are no longer used primarily for commercial transportation, but are instead valued for their recreational uses and their importance as environmental resources, the court agreed with the Sierra Club and held that “while the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel.” The court then remanded the case for an evaluation of the evidence, suggesting that relevant facts could be supplied by “experts in geology, hydrology, economics, fluvial geomorphology, and even expert canoers and river guides….” Issues to be considered, the court said, included the river’s historical use for commercial logging and its ability to accommodate recreational travel throughout the year. But the question of navigability is one of degree, and is not disproved by the fact that the river is periodically impassible or that travel could require portage around obstacles in the water.
In Montana, the public’s right to access streams and rivers was first defined in a 1984 state supreme court decision, Montana Coalition for Stream Access v. Curran. The plaintiff in the case, Michael Curran, claimed title to the banks and streambed of a stretch of the Dearborn River that flowed though his property, and he also claimed a legal right to prohibit people from using that stretch of river.
The court disagreed. To begin with, Curran didn’t own the streambed, as title to the bed of the Dearborn River had passed from the federal government to the state of Montana upon its admission to the Union in 1889. Regardless, however, the issue wasn’t really ownership of the streambed, but rather the extent of the public’s right to use and access the waters of the river. And this determination was controlled by the public trust clause in the state constitution, which vests ownership of Montana’s surface waters in the state, to be held in trust for the public.
While the stream access rules in New York and other states still rely on the common law requirement of navigability—the requirement, in other words, that a waterway be capable of some commercial or economic use—the Montana court found little use for this distinction. The concept, for one thing, had become obscured over the years, to the point that even small streams could qualify as “navigable” based on their ability to float logs and other smaller items. The distinction between commercial and non-commercial uses, moreover, doesn’t reflect the way that people actually use public waters. In this regard, the court quoted a Minnesota Supreme Court case from 1893, Lamprey v. State:
Many, if not the most, of the meandered lakes of this state are not adapted to, and probably will never be used to any great extent for commercial navigation; but they are 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 any 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….
Acknowledging that other state courts have adopted the reasoning in Lamprey, the court declared that the test for public access to Montana’s waters is not based on ownership of the streambed or navigability. Rather, public access extends to all streams and channels that can be used for public recreation, and includes access to their banks up to the high water line.
In response to the expansive ruling in Curran, the legislature enacted the Montana Stream Access Law in 1985. (Available here, as amended.) The law curtailed the recreational use standard established by the court and provided instead that members of the public had access to all “natural water bodies.”
The Montana Supreme Court struck down portions of the Stream Access Law in Galt v. State, decided in 1987, but mostly upheld the legislation. The invalidated provisions had to do with the public’s right, under the legislation, to use the lands adjacent to public waters for the construction of duck blinds and boat moorages and for overnight camping, as well as the responsibility of adjoining land owners to facilitate access. The court emphasized that the public’s right to use private land adjacent to streams and rivers exists only insofar as necessary to facilitate access to those waters, and as the court explained, duck blinds, permanent moorages and overnight camping aren’t always necessary for such access. The requirement that adjoining property owners construct portage routes around artificial barriers in the water was also struck down. Landowners receive no benefit from these portage routes, the court explained, and so could not be forced to pay for them.
The real conflict under the Stream Access Law—just how much it restricted Curran’s holding that public access exists to all waters capable of recreational use—wasn’t addressed until the court’s 2008 decision Bitterroot River Protective Association v. Bitterroot Conservation District. At issue was the Mitchell Slough, a 16-mile channel branching off from the Bitterroot River that had been extensively engineered. Property owners along the slough, including billionaire Charles Schwab and former pop star Huey Lewis, wanted a declaration that it was a private ditch, not a “natural water body” open to access by the general public. They based their position on the Stream Access Law’s exemption for artificial drainage and irrigation ditches, and the district court held in their favor, finding that decades of alterations and improvements had rendered the slough an artifical water body.
But the Montana Supreme Court reversed, explaining that the term “natural” couldn’t be defined so narrowly as to include only pristine water systems unaffected by human engineering or alterations; other factors had to be taken into account as well. The slough, the court found, was created by natural forces and remained an essentially natural feature. The engineering systems that had been installed on the slough had never fundamentally changed the flow of water through the channel, but merely altered those flows to enhance the slough’s irrigation and drainage functions. Additionally, only a small portion of the slough was confined to a canal, and the slough received a significant portion of its waters from unregulated inputs such as run-off and groundwater. As the court concluded, the slough may have been “man-improved,” but it wasn’t “man-made.”
Although it didn’t pass, legislation was proposed this year in reaction to the Mitchell Slough decision that would have dramatically limited public access to streams and channels. According to one of the attorneys who helped draft the bill, it was merely intended to restore the original intention of the Stream Access Law, which was to limit the scope of the Curran decision. But opponents claimed that the bill was excessive and primarily served the interests of private property owners who wanted their own private waterways. It was so restrictive, said the chief legal counsel for the Montana Department of Fish, Wildlife and Parks, that “almost all rivers and streams in Montana, except those in wilderness areas and the headwaters of streams on Forest Service land, could no longer be used by the public.”
But property rights aren’t the only thing at stake in the debate over stream access. By some accounts, allowing public access reduces the incentive for private landowners to invest in conservation and habitat management measures. Huey Lewis, for one, predicts that the Mitchell Slough decision will halt private conservation measures along the channel and kill its chances for becoming a healthy spawning area. On the other hand restricting access to streambeds could have negative economic consequences for tourism and the fishing industry.
If you’re curious about the stream access laws in other states, here are some resources on the subject:
- Alaska Department of Natural Resources, Navigable Rivers and Lakes (Apr. 2005)
- Tracey Dickman Zobenica, Note: The Public Trust Doctrine in Arizona’s Streambeds, 38 Ariz. L. Rev. 1053 (Fall 1996)
- John R. Hill, Jr., The “Right” to Float Through Private Property in Colorado: Dispelling the Myth, 4 U. Denv. Water L. Rev. 331 (Spring 2001)
- Monica K. Reimer, The Public Trust Doctrine: Historic Protection for Florida’s Navigable Rivers and Lakes, 75 Fla. Bar J. 10 (2001)
- Kansas Attorney General Opinion No. 2000-51
- Louisiana v. Barras, 602 So.2d 301 (La. 1992)
- Michael Lowry, Court: Manmade Ditch Is A Navigable Waterway, Carolina Journal Online, Jun. 3, 2010
- Matthew Preusch, Oregon river rights still in question as Montana governor signs stream access bill, The Oregonian, Apr. 15, 2009
- Deborah Weisberg, Fishing club can’t cast public off river, Pittsburgh Post-Gazette, Jan. 31, 2007
- Janice Holmes, Casenote: Followng the Crowd: The Supreme Court of South Dakota Expands the Scope of the Public Trust Doctrine to Non-Navigable, Non-Meandered Bodies of Water in Parks v. Cooper, 38 Creighton L. Rev. 1317 (2005)
- Texas Parks and Wildlife, Public Access to Navigable Streams
- John Mukum Mbaku, The Public Right to Float Through Private Property in Utah: Conatser v. Johnson, 29 J. of Land, Resources & Envtl. L. 201 (2009)
- Dustin Trowbridge Till, Comment: The Right to Float on By: Why the Washington Legislature Should Expand Recreational Access to Washington’s Rivers and Streams, 28 Seattle Univ. L. R. 1093 (Summer 2005)
- Ravis H. Burns, Floating On Uncharted Headwaters: A Look at the Laws Governing Recreational Access on Waters of the Intermountain West, 5 Wyo. L. Rev. 561 (2005)
- Commonwealth v. Morgan, 225 Va. 517 (1983)
- Willow River Club v. Wade, 100 Wis. 86 (1898)
- Diana Shooting Club v. Husting, 156 Wis. 261 (1914)
- De Gayner & Co. v. Department of Natural Resources, 70 Wis. 2d 936 (1975)