October 28, 2020
By Dan Anderson
There is in my county a small river known for great catfishing. The river is passable by V-hull and flat-bottom boats during spring rains. Kayaks easily negotiate it during mid- and late summer, which is my favorite time to wade on foot from hole to hole. One section of the river flows through the property of a landowner who declares the river his property and confronts anyone fishing (either from a boat or wading).
Whether he is within his rights is debatable. The United States Supreme Court has consistently ruled that the public owns the water in rivers, and therefore the public has the right to use that water for commerce and recreation. Boating on publicly owned water seems to be universally legally acceptable, even though some landowners maintain they have authority over water as it flows across their property. The big discussion is over the legality for the public to wade in or walk alongside rivers, because in many states owners of property adjacent to rivers also own the bottom of the rivers.
The issue of riverine rights is complicated because individual states and our federal government frequently disagree about who has the final say. State laws regarding river rights often conflict with longstanding United States Supreme Court rulings based on principles that can be traced to the Roman Emperors.
In his “Institutes of Justinian,” published in 534 A.D., Roman Emperor Justinian stated that the public’s rights to rivers were, “established by divine providence” and therefore, “forever fixed and immutable.” Laws in Great Britain dating from the era of the Magna Carta elaborated and extended those principles. In the United States, Congress stated in the Northwest Ordinance of 1787 that “navigable waters…shall be common highways and forever free.” The Commerce Clause to the U.S. Constitution, established in the 1820s, later gave to the federal government comprehensive powers over all “navigable waters.” If a stream or river is navigable, federal regulations and rulings apply. If it’s not navigable, control is in the hands of state or local authorities.
And there’s the rub. What is the definition of “navigable?” The current legal definition of navigability supported by the U.S. Supreme Court is straightforward. Since logging was a large-scale commercial enterprise in the early days of our country, the Supreme Court ruled in the 1820s that any waterway that could float a commercially valuable log during any part of the year was considered “navigable.” So, in general, the federal rule of thumb is that if you can float a log down a stream or river during periods of high water, the waterway is navigable.
But federal and state governments argue over who has authority to define and regulate navigability and therefore riverine rights. States sometimes resent federal intrusion into “local” issues, and battle to maintain autonomy in the face of what they consider infringing federal regulations. The federal government, constitutionally limited to national or interstate issues, insists it has final say over issues of riverine rights because if you trace the smallest navigable creek through its union with every larger river, at some point those waters cross state boundaries, making those waters interstate issues and therefore a federal responsibility. There have been, and will continue to be, federal and local court actions that wrestle with the definition of navigability. The long-term trend has been for the U.S. Supreme Court to uphold the public’s right to access and use navigable streams and rivers for recreational purposes.
Yet just because a waterway is deemed legally navigable doesn’t mean anglers and recreational boaters always have total access. As noted earlier, it is widely accepted, except in a few contentious western states where irrigation rights complicate issues, that the water in streams and rivers belongs to the public. The sticking point in various states is, “Who owns the banks and bottom?”
Some states declare that the banks and bottom belong to whomever owns the adjacent land. If the landowner owns both sides, he owns the entire bottom. If adjacent property is a public park or conservation area, the same rules apply—the banks and bottom are public property as well.
Beyond those basics, things get murky. Most states use the term “navigable” in relation to riverine rights. A few states, like Iowa, define rivers as either “meandered” or “non-meandered” and base public accessibility on those legal definitions.
“Way back when, our rivers were surveyed and designated either meandered or non-meandered,” says Aaron Arthur, Iowa Department of Natural Resources conservation officer. “Meandered means the banks and bottom are the property of the state held in trust for public use. Non-meandered means the water is owned by the state, but the banks and bottom are owned by adjacent landowners and therefore private property.”
Since the banks and bottoms of non-meandered rivers are legally private property, the legal tradition has been that permission is needed from landowners to walk on the banks or bottoms of those waterways. With that in mind, there is legal precedent that even though it’s legal for anglers to float on the surface of the river’s public water, it would be trespassing if they allowed their boat’s anchor, or even the weight on the end of their fishing line, to touch the privately owned bottom.
“I don’t know that we’ve ever had to deal with the legality of dropping anchor on private property (in a non-meandered river), let alone the legality of letting a fishing weight touch bottom,” Arthur says. “But technically, you’d be putting the anchor or weight on private property. We advise whenever there’s doubt, to ask permission.”
Daryl Bauer, Nebraska Game and Parks fisheries outreach program manager, says catfish anglers who use setlines in Nebraska especially need to understand riverine rights. “You can’t float down a river and put out setlines on private property,” he says. “Our rules require that setlines be attached to shore. That means on rivers where landowners own the banks and bottom, they’re contacting private property, so you need permission from each landowner along the river where you’re fishing.”
Each State Is Different
Each state has its own variation on riverine rights. Authorities note it is the responsibility of anglers to know the rules and regulations unique to their state or the state where they’re fishing. A sampling from various states indicates numerous similarities with subtle variations:
Arkansas: A 1980 ruling by the Arkansas Supreme Court states that its definition of navigability includes recreational use of streams and rivers. Rivers that are used for recreational purposes for even part of the year, during normal flow, are considered navigable. In addition, the beds and banks of navigable streams and rivers that pass through private property in Arkansas are open to the public up to their normal high-water marks.
Georgia: Georgia’s definition of “commercial navigation” gives private landowners more rights than boaters or anglers. In Bosworth v. Nelson in 1930, Georgian courts ruled, “If the . . . owner owns upon both sides of the stream, no one but himself may come within the limits of his land and take fish there and . . . his rights to the fishery are sole and exclusive.” Translation: unless you have permission, no boating, no swimming, no wading, and no fishing on rivers and streams in Georgia even if they are considered navigable.
Illinois: Only certain rivers that meet Illinois’ definition for navigability are classified as “public waters.” Citizens can boat, float, and wade public rivers, but cannot trespass on the banks when those banks are private property. The majority of streams and rivers in Illinois are classified as “non-public,” and the public may not boat, swim, or wade the bottoms or banks without the permission of adjacent landowners.
Kansas: Only three rivers in Kansas are considered public waterways: the Arkansas, Kansas, and Missouri rivers. Ron Kauffman, director of information services for the Kansas DNR, says the public can boat, float, swim, wade and walk the banks of those rivers between the normal high-water marks. Boaters can technically float non-public waters, but cannot legally touch the bottom or banks without permission of landowners adjacent to the river.
Michigan: Navigability is again the baseline for riverine regulations in Michigan, and the “log rule” is the guideline. Statutes allow users to touch the shores and bottoms of navigable streams, lakes, and rivers, though proximity to the water’s edge is required to protect landowners.
Minnesota: Joe Albert, Minnesota Department of Natural Resources communications coordinator cites regulations in that state that permit the public to walk in the water of rivers and streams “regardless of who owns the land beneath the surface of the water.” He notes that streams, rivers, or lakes are open to recreational use over their entire surface if they are capable of recreational use. In Minnesota, a rule of thumb is any water that will float a canoe is capable of recreational use.
Missouri: Officials with the Missouri Department of Natural Resources point to the case of Missouri court case of Elder v. Decour as a guideline for riverine rights. That case states that the waters of navigable streams in Missouri are “public highways” and the submerged area of a stream channel that crosses private property may be accessed by the public for purposes of travel by, “. . . floating or wading, for business or pleasure.” This suggests that it is legal to float and wade the submerged areas, but illegal to trespass on the banks.
Montana: Western states are known to be fussy about riverine rights. Montana is perhaps the most friendly to anglers and boaters. Rafters can float and anglers can wade in rivers that flow through private land in Montana so long as they enter from public property or with permission from landowners. They can even leave the water and walk between the normal high-water marks.
Ohio: Ohio decides the navigability of streams and rivers on a case-by-case basis. Unless a lawsuit is filed and adjudicated, the status of a specific waterway is legally “undefined.” The traditional “commercial” definition of navigability was recently broadened in Ohio by a lawsuit involving the Mentor Harbor Yachting Club, to include a stream’s capacity for recreational navigability recognizing modern views that “recreational activity is as important in the eyes of the law as navigation for commercial purposes.”
Oklahoma: Courts in Oklahoma are unanimous that waters in navigable and non-navigable waterways belong to the public, and that the public therefore has the right to boat on those waters even when the waters pass through private property. It has yet to be decided if those rights include swimming, wading, and walking on the banks. The only clarification is a reference to the Missouri court case of Elder v. Decour, where the Oklahoma court “cited with approval” that permissible uses include “. . . uses incident to travel on the river, including floating, fishing, and wading, for business and pleasure.”
Texas: The definition of “navigable” in Texas falls into two categories: “navigable by statute” or “navigable by fact.” A stream is navigable by statute if it retains an average width of 30 feet from the mouth up. Navigable by fact is defined by whether a stream can carry boat traffic at some point during a year. One court ruling in Texas concluded that “a dry creek bed may still be part of a navigable waterway” if boats can travel on it during flooding.
A Texan twist to riverine laws is that the Texas Supreme Court has held that navigable streams are, as summarized by the Texas A&M University Real Estate Center, “public highways, and lands underlying them are held in trust by the state for the use and benefit of all the people.” Their interpretation is that the public may therefore use waterways for boating, fishing, swimming, wading, and walking.
Wisconsin: Riverine regulations in Wisconsin are easily summarized: “Keep your feet wet.” The public can use any navigable stream or river for fishing or boating, with “navigable” defined as “a river or stream that has a bed or bank and it is possible to float a canoe or small craft on it at some time of the year, even if only during spring floods.” Once on a navigable waterway, citizens may walk, fish, hunt, swim, or boat as long as they remain in the water between the ordinary high-water marks on the banks. Hence, “Keep your feet wet.”
Ultimately, as it is the responsibility of each angler to know fishing regulations in their state; each angler is responsible to understand their state’s policies about riverine rights. But in general:
• The U.S. Supreme Court has consistently affirmed the position that the waters of streams and rivers in the U.S. are public waters, and the public has the right to boat on those waters.
• While various states have repeatedly contested the right of the public to boat on public waters where those waters pass through private property, the U.S. Supreme Court has consistently ruled in favor of the public and against landowners who deny public use of streams and rivers flowing through their land.
• Even though the U.S. Supreme Court has consistently held that flowing waters are public waters, states hold sway when deciding public access to the banks and bottoms of streams and rivers, because states have control over local property rights. It is the responsibility of each boater or angler to know the trespass laws in their state.
• Since water-rights laws in some jurisdictions seem ambiguous, an angler and landowner may not agree on what is legal access or not. If unclear and a conversation ensues, work to find an answer from the authorities. A better understanding of water rights by both parties and a pleasant conversation trumps confrontation any time. Does the landowner like to eat fish? We’ve seen where sharing a fish or two with a landowner can go along way to building cooperation and more pleasant trips to the river.
*Dan Anderson, Bouton, Iowa, is a frequent contributor to In-Fisherman publications.