Navigability Primer

By Jason Robertson

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 (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 convincing 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 entirely 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 one of those widely used terms that is often misused or misunderstood. This 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.

Though this handbook was constructed with properly cited authority and clarifies the public's rights in navigable and non-navigable rivers, it is not a definitive source for many reasons. One is that the “law” is always changing, and therefore all of this information will need to be reconfirmed prior to going to any court. Additionally, this handbook does not 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 would include relationships with the court system, police, and possibly politicians who may be able to have an impact on a pending situation.

Another aspect to consider is tact. When confronted with a landowner or public officer (police/park service) it can at times be frustrating at best to try to explain the laws of navigability and the right to float through someone's property once legally on a navigable river. However, having an understanding about where it is and is not appropriate to assert navigability rights may save a bit of hassle in the future.

Most importantly, though, the impact one case can have on subsequent cases is great, and therefore it is important not to create a restrictive legal precedent. A case should be looked at not only from the perspective of the party going to trial, but also with foresight as to its possible effects on boaters, fishermen, and other recreationists that may desire access to the same area in the future. Most of the time it is therefore helpful to have capable legal counsel when addressing any issue in a court of law.

American Whitewater and local paddling clubs will help boaters find adequate 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 AW'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. 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. However, the natural & ordinary condition of the body of water at statehood determines navigability for title; whereas, the turning issue for commerce clause and congressional management purposes is determined by whether the body of water could be made navigable by reasonable artificial improvements.

Unfortunately, the federal definition of navigability does not apply to every tributary. And 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. If you're lucky you live or boat in one of those states.

Navigability is defined legally by the Federal Commerce Clause and is determined under a streambed title “test”. This test can be made in state or federal courts, and 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 Ball¹⁾). 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. The courts are clear that commerce inherently includes the right of navigation. There is little debate that 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. You have the right to boat these streams.

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 anachronistic 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 are enlightened about 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.” 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.

For instance, South Carolina courts have recognized a “tendency of modern judicial thought that water is navigable which is of such character as to be of general use by the public for pleasure boating”.

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 Act. Commerce is understood to include navigation. As highways of commerce In Escanaba & Lake Michigan Transp. Co, v. City of Chicago²⁾ 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 Ball³⁾. Such is the case with the Chicago river and its branches…

Power to keep rivers open and free from obstruction for navigation (including fees?)

Justice Lurton in U. S. v. Chandler-Dunbar Water Power Co.⁴⁾, quoting Gilman v. Philadelphia⁵⁾:

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 S⁶⁾, 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.

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. Hagan⁷⁾, 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.”⁸⁾

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.⁹⁾ 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.¹⁰⁾

As the legal system has proven insufficient for providing adequate access to rivers and other natural resources, federal and some state governments have slowly enlarged the public's access to America's waterways under the public trust doctrine.

Roman Emperor Justinian established the basis of the modern public trust doctrine. Justinian recognized that communities shared certain rights in natural resources, and declared that by “natural law, these things are common property of all - air, running water, the sea, and with it the shores of the sea.”¹¹⁾ This philosophy later served as the basis for English Common Law, which in turn provided the foundation for colonial America's legal system and Constitution.

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 lands¹²⁾.

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.¹³⁾ 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 unexplored¹⁴⁾.

Use of public lands is protected under the public trust doctrine

In Trampealeau Drainage Dist. Merwin v. Houghton,¹⁵⁾ 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-Sea¹⁶⁾, 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'n¹⁷⁾ 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-Sea¹⁸⁾, 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 sea 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.¹⁹⁾) 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.²⁰⁾

The court's finding of state ownership of the streambeds was ratified and explicitly passed into law under the Submerged Lands Act²¹⁾.

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 regulations²²⁾ 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. Justice Shiras in Eldridge v. Trezevant²³⁾:

In Packer v. Bird²⁴⁾… 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 language of Barney v. Keokuk²⁵⁾ was cited with approval, and the conclusion reached was that the law of the state, as construed by its supreme court, was decisive of the controversy. The question was again presented in Hardin v. Jordan²⁶⁾, 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 Philadelphia Co. v. Stimson²⁷⁾:

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 States²⁸⁾.

As stated by Chief Justice Taft in Brewer-Elliott Oil & Gas v. U.S.²⁹⁾:

We said in Oklahoma v. Texas³⁰⁾:

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. Mr. Justice Bradley, speaking for the court in Hardin v. Jordan³¹⁾, said:

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.

Treatment of ambiguities in private ownership of streambeds

Mindful of the public trust, 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. ³²⁾

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.³³⁾ 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 can't 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. Lattig³⁴⁾:

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 subject³⁵⁾, 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. Schurmeir³⁶⁾, '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.³⁷⁾

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. Shedd³⁸⁾. '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.³⁹⁾, 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.⁴⁰⁾

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.”

The worst applications of the public trust

Two states, Georgia and Colorado, make the worst 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.⁴¹⁾

While a Colorado court in People v. Emmert⁴²⁾ 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 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, as open 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

The notion of private land ownership and the associated right to do what you want with your land is a central tenet of American government and society.

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, 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.

American private property rights are generally very broad; they are adopted from English Law, which is a strain of Roman Law. The Fifth Amendment states that no private property can be “taken” without just compensation.

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.

The court, 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.”

XXX-Puente de Reynosa, S.A. v. McAllen, 357 F. 2d 43, 51 (5th Cir. 1966).⁵⁹⁾

XXX-Connecticut Power & Light Co. v. Federal Power Comm., 557 F.2d 349, 354-357 (1st Cir. 1977).⁶⁰⁾

XXX-Nickel Enterprises v. State of California, Kern Co. Sup.Ct. No. 199557.⁶¹⁾

XXX-In National Audubon Society v. Superior Court,⁶²⁾ 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. Whereas 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.

Natural obstructions

The presence of waterfalls or other natural obstructions do not limit navigability.

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 City⁶³⁾:

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 continued⁶⁴⁾.'…

…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.⁶⁵⁾ 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.⁶⁶⁾ 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…

Stated Justice Hughes, in Philadelphia Co. v. Stimson⁶⁷⁾:

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 stream⁶⁸⁾, and the authority of Congress goes with it.”

…In Gibson v. United States⁶⁹⁾, 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…⁷⁰⁾ 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. Wheeler⁷¹⁾, 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 in its opinion:

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 Park⁷²⁾ stated:

…“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. Chicago⁷³⁾, 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.

Second. 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 States⁷⁴⁾) 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…⁷⁵⁾ Thus, in United States v. Chandler-Dunbar Co.⁷⁶⁾, 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.⁷⁷⁾:

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. Bowlby⁷⁸⁾, 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. The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore, Foreshore, (3d Ed.) 318, 370, 413.”

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.⁷⁹⁾ reminded the court that Oklahoma v. Texas⁸⁰⁾ the court stated:

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.

If you live in a state that has recognized the right for recreational use of streams, consider yourself lucky. And if you don't, be careful. While we state in our Access Policy that every stream reasonably susceptible of being navigated by kayaks and canoes should be open to the public, this is not a reality. As illustrated above, some states like Georgia still rely on anachronistic definitions of navigability.

Judicial Approach

Which brings us back to July 3, 1976 and People v. Emmert. As stated above, Emmert contested his trespass charge. Thanks to a hostile judicial environment, Emmert lost and this flawed decision has cast a long shadow over Colorado boating since 1979.

Like Emmert, we need to push for stronger rights for downstream recreation, but we need to choose our battles very wisely. One lost trespass case like People v. Emmert can have ripple effects that harm boater's rights for decades. In Georgia, a similarly hostile judicial environment has resulted in a losing effort on Armuchee Creek.

Boaters should only go to court if they are well-funded and very well-researched about both the law and the procedure. And to be successful, you must have a strategy. Getting arrested and backed into a legal corner is not an advisable way to start your effort. It puts you on the defensive from the beginning.

In contrast to the Colorado effort, New York boaters successfully litigated a trespass case last year on the South Branch of the Moose River in the Adirondacks. One of the keys to their success was that the boaters were supported by the Sierra Club Legal Defense Fund and chose to get arrested as a “test case.” The result: a progressive ruling that New York's navigability standard (that a stream had to show evidence of log drives) was an anachronism and that recreational use was a sufficient test for navigability. An identical approach was successful in Montana.

Legislative Approach

Of course, if a judicial approach is not feasible or wise, there is always the legislature. The state of the law in Colorado is such that legislation is the most effective and direct solution to counter the flawed and anachronistic string of judicial decisions that discourage boating. New legislation is the best solution to what otherwise would be haphazard litigation.

American Whitewater and the Colorado White Water Association are pursuing a legislative approach in Colorado right now. Our effort strikes an acceptable balance between landowners and boaters and to provide benefits to each group. By clarifying the existing confusion, legislation would provide a fair and consistent alternative to continued litigation by recognizing the right of boaters to make incidental contact with streambeds and banks. In addition, legislation could strengthen liability concerns of landowners. We have started our effort by approaching the two largest private property groups in the state and listening to their suggestions.

Diplomatic Approach

When you're face to face with an irate landowner or sheriff, diplomacy is the best strategy. Especially if they're armed. Avoiding conflict is always better than inciting it. As illustrated by the losing efforts above, it's better to pay the trespass fee and be on your way than to be backed into fighting a losing battle.

And maybe the time isn't right for either a judicial challenge or a legislative effort. Time then to tend to your grassroots. With help from AW, Georgia has turned towards building a statewide river group that both highlights the incredible river resources of the state and builds a larger constituency for future efforts. In September, Georgia hosted a very successful statewide rivers conference.

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.

Roman Emperor Justinian established the basis of the modern public trust doctrine. Justinian recognized that communities shared certain rights in natural resources, and declared that by “natural law, these things are common property of all - air, running water, the sea, and with it the shores of the sea.”⁸¹⁾ This philosophy later served as the basis for English Common Law, which in turn provided the foundation for the colonial American system.

English Common Law served as the basis of American public law, where the Constitution did not apply or was silent on matters of law as with the question of navigability.

In England, the monarch owned all the waters and beds of rivers within the kingdom; however the public retained a right to navigate, fish, and hunt under the public trust. In pre-revolutionary America, the title to rivers and waterways was passed on by the king to his representatives and the colonies.⁸²⁾

Initially, the colonial American courts held that sovereign ownership of the “sea and its arms” only included tidal rivers as in England where virtually all waters were in fact tidal. However, recognizing that the tidal “fall-line” was terribly close to the ocean, the American courts quickly expanded the concept of “navigable rivers” to include commercially navigable rivers beyond the direct ebb and flow of the tides.

Justice Gray in Shively v. Bowlby, 152 U.S. 1 (1894), described the historical shift from English Common Law to the American standard:

By the law of England, Scotland, and Ireland, the owners of the banks prima facio own the beds of all fresh-water rivers above the ebb and flow of the tide, even if actually navigable, to the thread [middle] of the stream, usque ad filum aquae⁸³⁾.

The rule of the common law on this point appears to have been followed in all the original states,-except in Pennsylvania, Virginia, and North Carolina, and except as to great rivers, such as the Hudson, the Mohawk, and the St. Lawrence in New York,- as well as in Ohio, Illinois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia, and North Carolina, and in most of the new states. For a full collection and careful analysis of the cases, see Gould, Waters, (2d Ed.) 56-78.

The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna river, in which Chief Justice Tilghman, in 1807, after observing that the rule of the common law upon the subject had not been adopted in Pennsylvania, said:

The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation which has not a flow of the tide, but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.' Carson v. Blazer, 2 Bin. 475, 477, 478.

Article III, Section 2, Clause 1 of the Constitution of the United States declares that “The judicial power shall extend… to all cases of admiralty and maritime jurisdiction…”

“Maritime” meaning cases arising on the high seas, whereas “admiralty” meaning those arising upon rivers or other tidal “arms” of the sea.

Judicial authority over the rivers was given to by the founding fathers under the Constitution, but the roots of the admiralty and maritime laws came from England.

The standard for English admiralty and maritime laws was described in the Year Book, 8 Edw. 4. 19, a. S. C., cited 5 Co. Rep. 107, which outlined how the admiral was given jurisdiction over “every thing done on the water” between the tidal low water marks at all times, and on the water when the lower lands were covered by high tides. Under common law, authority for actions on land and ownership over land exposed at low tide was reserved for the county. In Sir Henry Constable's case, 5 Co. Rep. 106, 107 it was clarified that 'Below the low water mark the admiral hath the sole and absolute jurisdiction; between the high water mark and low water mark, the common law and the admiral share jurisdiction (under divisum imperium).'

Spelman, in the Admiralty Jurisdiction, Works, 226. Ed. 1727 wrote:

The place absolutely subject to the jurisdiction of the admiralty is the sea, which seemeth to comprehend public rivers, fresh waters, creeks and surrounded places whatsoever, within the ebbing and flowing of the sea at the highest water, the shores or banks adjoining, from all the first bridges sea ward, for in these the admiralty hath full jurisdiction in all causes criminal and civil, except treasons and right of wreck.

At the United States' founding, Congress initially described “navigable waters of the United States” as those which could be approached from the sea by ships carrying 10 or more tons. The Judiciary Act of 1789, 1 Stat.77, ch. 20, s. 11, stated that Federal judiciary were given oversight for:

…all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen [sic], within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it;…

However, from the first years of the new nation⁸⁴⁾), the American courts began broadening interpretations of admiralty and maritime jurisdiction from English law to maritime law. The courts sought to raise the federal jurisdiction to the standards of the Law of Nations⁸⁵⁾, which was respected by maritime courts around the world. By 1848, the Court had observed the broader role of admiralty and maritime jurisdiction. In New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 334, 386 (1848) the court stated:

…whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.⁸⁶⁾)

The courts continued preserving admiralty and maritime jurisdiction for the federal government, rather than letting those authorities devolve to the states. Federal authority came from the admiralty grant as supplemented by the “second prong” of the necessary and proper clause, which empowered the government to act.⁸⁷⁾ In Butler v. Boston & S.S. Co., 130 U.S. 527 (1889), the courts stated:

…as the Constitution extends the judicial power of the United States to 'all cases of admiralty and maritime jurisdiction,' and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.

It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.

Federal authority over maritime and admiralty law was recently reaffirmed in Kaiser Aetna v. US, 444 U.S. 164 (1979):

Congress, pursuant to its authority under the Necessary and Proper Clause of Article 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).

Returning to the English common law premise that county retains authority over acts made on land within the high water mark, in US v. Bevans, 16 U.S. 336 (Wheat) (1818,) the court found that a murder on a ship at anchor in Boston Harbor was not under the umbrella of admiralty law by the federal district court. Instead, Chief Justice Marshall described how the responsibility for the case lay with the state, which had jurisdiction for the bay:

Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise.

This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 2d article, we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.

It is observable, that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.

It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction, is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts….if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of a state, and the circuit court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which had been committed.

The third section enacts, 'that if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death.'

Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed, is, it has been said, 'a place within the sole and exclusive jurisdiction of the United States,' whose courts may consequently take cognizance of the offence.”

The objects with which the word 'place' is associated, are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are all of this character. When the sentence proceeds with the words, 'or in any other place or district of country under the sole and exclusive jurisdiction of the United States,' the construction seems irresistible that, by the words 'other place' was intended another place of a similar character with those previously enumerated, and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction which was not comprehended by any of the terms employed to which some other name might be given; and, therefore, the words 'other place,' or 'district of country,' were added; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character.

…Upon these reasons the court is of opinion, that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the circuit court for the district of Massachusetts; which opinion is to be certified to that court.

The Commerce clause of the Constitution gives the responsibility for regulating commerce between the states to Congress, article 1, 8, cl. 3. This clause 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.

The Supreme Court found in Gibbons v. Ogden, 9 Wheaton 1; 6 L. Ed. 23 (1824) and 22 U.S. 1 (1824), that the state could not grant exclusive rights for navigating its waters to an individual. This was the first time that a navigability case had gone to the Court under the Commerce clause. The case was in response to a decision by the state of New York giving exclusive navigation rights within the jurisdiction of the state of New York to a couple of individuals. In the decision, Chief Justice Marshall explained that Congressional power to regulate commerce is un-limited, other than by the Constitution, and that federal law was supreme to state law:

The subject to be regulated is commerce…Commerce, undoubtedly, is traffic [buying, selling or the interchange of commodities,] but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter.

If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word 'commerce,' to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late.

…The word used in the constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation, is as expressly granted, as if that term had been added to the word 'commerce.'

To what commerce does this power extend? The constitution informs us, to commerce 'with foreign nations, and among the several States, and with the Indian tribes.'

It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be between this country and any other, to which this power does not extend. It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term.

If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.

The subject to which the power is next applied, is to commerce 'among the several States.' The word 'among' means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.

This principle is, if possible, still more clear, when applied to commerce 'among the several States.' They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other States lie between them. What is commerce 'among' them; and how is it to be conducted? Can a trading expedition between two adjoining States, commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States. The sense of the nation on this subject, is unequivocally manifested by the provisions made in the laws for transporting goods, by land, between Baltimore and Providence, between New- York and Philadelphia, and between Philadelphia and Baltimore.

We are now arrived at the inquiry-What is this power?

It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution….

The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States, or with the Indian tribes.' It may, of consequence, pass the jurisdictional line of New-York, and act upon the very waters to which the prohibition now under consideration applies.

The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, established that the tidal test, which was used in England for determining navigability, is not universally applicable to this country. Further the case affirmed that “the admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States is not limited to tide-waters, but extends to all public navigable lakes and rivers”.⁸⁸⁾

Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228, established the state's rights to determine ownership of navigable waters within their borders and the riparian lands adjacent thereto⁸⁹⁾. Speaking for the court, Mr. Justice Bradley observed (94 U.S. 338):

The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many states of doctrines with regard to the ownership of the soil in navigable waters above tide water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; and Goodtitle ex dem. Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220. These cases related to tide water, it is true, but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the states in which the lands were situated.

In Donnelly v. US, 228 U.S. 243 (1913,) Justice Pitney stated:

The question of the navigability in fact of nontidal streams is sometimes a doubtful one. It has been held in effect that what are navigable waters of the United States, within the meaning of the act of Congress, in contradistinction to the navigable waters of the states, depends upon whether the stream in its ordinary condition affords a channel for useful commerce⁹⁰⁾.

But it results from the principles already referred to that what shall be deemed a navigable water within the meaning of the local rules of property is for the determination of the several states.

On the question of states retroactively changing the navigable status of a river, Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. US, 260 U.S. 77 (1922) observed:

…It is not for a state by courts or legislature, in dealing with the general subject of beds of streams to adopt a retroactive rule for determining navigability which would destroy a title already accrued under federal law and grant or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked.

In 1868, an unlicensed ship called the “Daniel Ball” was caught on the Grand River in Michigan carrying unregistered goods between Grand Rapids and Grand Haven. The Court was asked to review the questions of whether the “Daniel Ball” was operating on a navigable river, and whether it was engaged in interstate commerce? The Supreme Court found that both parts of the answer were “yes,” and that the ship's owners had violated the Commerce Clause.

In the Supreme Court's decision on the case, Justice Field found in The Daniel Ball, 77 U.S. 557 (1870) that:

…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. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. 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… {emphasis added}

This decision redefined the role of the federal government in managing commerce on non-tidal interstate rivers and the scope of navigation in the United States.

Shively v. Bowlby (1894)

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 compensation⁹¹⁾.

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 commerce⁹²⁾.

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 both⁹³⁾.'

…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 Engineers⁹⁴⁾, 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).⁹⁵⁾

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)⁹⁶⁾. 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.⁹⁷⁾

The Submerged Lands Act of 1953⁹⁸⁾ 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 National Navigability Handbook. This handbook provides concise one to two page 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/