navigable rivers

Jon Noble jon_p_noble at yahoo.com
Tue Feb 17 19:16:50 EST 2004


--- Irina Rempt (or maybe someone else) wrote:
> > > And what 
> > is the proper definition of navigable, how big a
> boat/ship does that
> > mean?  How does it relate to tidal?  Oh, please! 
> Give!  Give!  You
> > *can't* not tell us now, that's really cruel!

>From http://www.nors.org/us-law-who-owns.htm

The following is the confusing situation that applies
in the US. I suspect that countries with longer
histories have developed even more confusing
definitions of what is and isn't navigable.

"3. What does navigable, for title purposes, mean?

Through various court cases, federal courts have
articulated the following test, which is known as the
federal test of navigability for title purposes:

The waterway must be capable of or susceptible to use
as a highway for the transportation of people or
goods; 
The waterway must be usable for transportation
conducted in customary modes of trade and travel on
water; 
Waters must be navigable in their natural and ordinary
condition; and 
Navigability is determined as of the date of
statehood. 
The courts have determined that the use or potential
for use by almost any type of watercraft is sufficient
to determine this type of navigability. The use did
not have to occur at the time of statehood; it is
enough that it could have occurred (i.e.,
susceptibility.) Modern-day usefulness of a river that
has not been artificially modified helps prove
navigability for purposes of state title, as do
historical uses that no longer exist, such as log
drives.

Note that this "federal test" is not found in any one
Supreme Court document or other government
publication; it is just the sum of the relevant
passages and phrases in various court decisions.
Congress has never passed legislation defining
navigability for title purposes, so the court
decisions are the applicable law on the subject.

4. Are there other legal definitions of the word
navigable, and other legal tests of navigability?

Yes! The U.S. Army Corps of Engineers uses the term
"navigable waters" which stems from the Rivers and
Harbors Act of 1899. This Act, along with associated
federal regulations, determines the Corps'
jurisdiction over the alteration of waterways. Similar
regulations direct the U.S. Coast Guard. "Navigable
waters" are also defined in the Clean Water Act as
areas subject to the Corps' regulatory authority over
filling in waterways. State government agencies also
use the term "navigable waters" in regulations
relating to boating safety. Federal courts use the
term "navigable" in cases involving Admiralty Law and
the Commerce Clause of the U.S. Constitution.

None of these other definitions of navigable is the
same as the definition federal courts use to determine
navigability for title purposes. They may include a
narrower range of waterways in some cases and a
broader range in others. This has caused much
confusion, such as the common misconception that only
a few particularly large rivers are legally navigable.
The fact is that even rivers and streams that can be
navigated only by small watercraft and logs are still
navigable for title purposes, even if they are not
navigable for other legal purposes.

5. How can you measure or scientifically evaluate a
river to know if it is navigable for title purposes,
and therefore publicly owned?

You can't. The federal test of navigability for title
purposes does not include any measurements or minimum
requirements regarding the width, depth, or gradient
of the river, or the amount of water in the river, or
the size of watercraft that can navigate the river.
There are no scientific criteria involved. It is just
a usability test, derived from various court
decisions, as described above. It rests on the
question of whether people can use the river for
transportation in ordinary watercraft, even small
watercraft, and the related question of whether people
did use it or could have used it at the time of
statehood.

6. What size of watercraft must be able to navigate a
river to make it navigable for title purposes?

Federal courts have held that even those rivers that
are navigable only by small, non-motorized watercraft
are still navigable for title purposes. (Remember that
other requirements may apply to navigability for other
legal matters, such as cases involving the "commerce
clause" of the U.S. Constitution.)

Navigability for title purposes originated with early
American court decisions that predate the invention of
motors. These decisions in turn refer to public use of
rivers under earlier British law and under the laws of
ancient civilizations. Title navigability depends on a
river's physical navigability at the time of
statehood. In frontier America rivers were frequented
by fur trappers in canoes. Lewis and Clark, the famous
explorers, traveled by canoe, as did thousands of
other settlers and frontier traders.

As areas of the country became more populated with
settlers, another common use for rivers was to float
logs downstream from forests to lumber mills. This was
often done through major rapids and waterfalls that
still challenge expert canoeists and kayakers today.

Early American court decisions concluded that
navigable rivers were those rivers that could be used
"as highways for commerce, over which trade and travel
are or may be conducted in the customary modes of
trade and travel on water." Subsequent decisions
confirmed that navigation by small watercraft such as
those used by fur trappers and explorers, as well as
floating logs downstream, qualified as commerce,
trade, and travel, for purposes of title navigability.

In recent decades, interests opposed to public
ownership of rivers have argued that guided
recreational trips on rivers should not qualify as
commerce for title navigability purposes. Again, the
courts have specifically rejected this. Today,
commercial river trips for recreation are a major
economic activity for numerous smaller towns around
the nation. Trips using inflated rafts are perhaps the
best known, but commercial trips using individual
canoes and kayaks are also common. Modern plastic
canoes and kayaks require less care and maintenance
than those used in the past by fur trappers and
Eskimos, but otherwise they are about the same. This
type of navigation, although newly popular, is
essentially hundreds, or thousands, of years old.

Interests opposed to public ownership of rivers have
also tried other arguments to narrow the definition of
"commerce" for title navigability purposes. The courts
have consistently rejected these "narrow definitions
of commerce," and have instead opted for a broad
definition. Outside of the courtroom, the word
"commerce" refers to the exchange of goods, but it
also refers to traffic of any kind, including
communication and social interaction between
individuals, as in "the commerce of ideas." With a
broad definition, river "commerce" would include any
traffic on a river, including an individual canoeist
paddling down a river to admire the scenery. The
courts have not supported a narrower definition
relating to title navigability.

7. Do shallows, rapids, and other obstacles make a
river non-navigable for title purposes?

No. The courts make no requirements that a river be
uniformly deep, or flat, or that navigation be
practical going upstream as well as downstream. As
already mentioned in the previous paragraphs, the
presence of rapids, even numerous rapids and
waterfalls, does not disqualify a river.

Recall that the courts view navigability and
public-trust ownership as having originated in ancient
civilizations and in America prior to the twentieth
century. In their natural condition, all rivers have
shallow areas and obstacles, such as gravel bars, sand
bars, rocks, logjams, etc. People unfamiliar with
river navigation tend to assume that a river's depth
is fairly uniform, but in fact flowing water
inherently removes sand, gravel, and debris from some
areas and deposits it in others, resulting in great
fluctuations in depth, from very shallow to very deep.
Even the mighty Mississippi, perhaps America's
best-known navigable river, was historically full of
hazards and shallows, requiring flat-bottomed boats
and constant checking for depth. The pen name of the
famous American author, Mark Twain, was originally a
frequent expression from one riverboat crewman to
another, to report a depth of two fathoms. (Twelve
feet.) Even with such checking, riverboats frequently
ran aground on submerged sand and gravel bars.

One of the most famous navigable rivers of the world,
the Nile, is also full of shallow areas in its natural
condition. Historically it was the key resource of the
ancient civilization of Egypt. Today it is navigated
by small ships that carry overnight passengers and
have dining rooms, sleeping rooms, etc. Some of these
small ships are two stories high but are cleverly
designed to only extend nine inches below the surface
of the water. Nevertheless, they still occasionally
run aground on the shifting sand and gravel bars.
Freeing them can take many hours. Such is the inherent
nature of river navigation.

People who navigate rivers, as well as people who
discuss navigability law, wish that rivers were
uniformly deep, but nature refuses to cooperate.
Riverside landowners, government agencies, and other
people affected by navigability law often assume that
to qualify as "navigable" a river would have to be
reasonably deep, so they keep looking for some
objective criteria for navigability, such as a certain
depth measurement. Unfortunately the federal test of
title navigability contains no such criteria. In
effect it is not a river test as much as it is a
people test: It rests on the question of whether
members of the public find the river--in its natural,
cantankerous condition, as it was at the time of
statehood--useful for navigation, despite having to
push their boats off of its sand bars and carry them
around its waterfalls. If the answer is yes, the river
is navigable for title purposes and is public land up
to the ordinary high water line.

8. But don't really big waterfalls, or really big
rapids, make a river non-navigable for title purposes?

No, they don't. Many thousands of people have admired
and felt the power of America's most famous waterfall,
Niagara Falls, from the pool of water at the base of
the falls, on board the Maid of the Mist, a tour boat.
The entire excursion took place within this single
pool of water, confined by the falls on the upstream
side and large rapids on the downstream side. Yet the
boat operated for many years, charging passengers for
the trip in a plainly commercial fashion. The Maid of
the Mist is an outstanding example of navigation on a
very limited stretch of river.

Few people attempt to run the actual falls of Niagara
Falls, and local authorities prohibit this (the
offender is often dead by the time he is apprehended.)
The rapids located just downstream from the falls and
the pool of water are perhaps the largest in North
America. The river in this section often flows at over
100,000 cubic feet per second, more than most rivers
ever reach. Courts found this section navigable for
title purposes as well.

9. What if the river is only physically navigable
during the wet season of the year?

It still qualifies as navigable for title purposes.
But a normally dry creek bed or "wash" that is only
temporarily navigable during extreme weather does not
qualify. (If it's normally dry because of upstream
dams, then it does qualify. The legal test is based on
the river's natural condition.)

10. Does it matter whether the waterway is called a
"river" or a "creek" on maps and signs?

No. Some "rivers" are not physically navigable in even
the smallest watercraft, and some "creeks" are large
enough for fair-sized boats carrying several
passengers. The name of the waterway has no legal
significance.

11. So how do you tell the difference between a
navigable river and a non-navigable river, for title
purposes?

In ancient civilizations, as well as in early America,
navigability has never been a technical concept. As
the U.S. Supreme Court says, "Rivers that are
navigable in fact are navigable in law." The intent of
the courts has been that the difference between
navigable and non-navigable rivers should be a
practical matter that can be understood by ordinary
people such as settlers, fur trappers, and riverside
landowners. The courts have confirmed that even logs
and small boats such as canoes, kayaks, and rafts
qualify as navigation for title purposes. Therefore a
navigable river is one on which you can use a small
boat, and a non-navigable river is one on which you
can't.

This difference between the two has not been discussed
in detail in court decisions, but it is apparent to
anyone who will take the time to look carefully. A
river that is small yet navigable may contain many
rocks and shallow spots, but there is still a route
down it, a small channel that is passable in small
boats. This route may be left, right, or center, and
it may occasionally be interrupted altogether, but on
most of the section of river there is a route.

The bed of a non-navigable river or creek, on the
other hand, is an undifferentiated jumble of rocks. In
steeper terrain, the water is spilling over the rocks
in a sort of cascade, while in flatter terrain, the
water is threading its way between the rocks. In
either case, there is no route down it; it is equally
impassable on the left, right, or center. A key
difference between the two is that higher water flows
on a navigable river or creek make it easier to
navigate, by making the route down it wider and
deeper. (Although very high flows may make it
dangerous to navigate.) But higher flows on a
non-navigable river or creek do not help navigation
much--they just bring more water spilling over or
around the rocks, making more noise and spray, but
still not creating any distinguishable route. On a
non-navigable river or creek, even a skilled boater
using a good canoe or kayak would be continuously
blocked by some combination of rocks, logs, and
overhanging brush from the banks. (This combination of
blockages varies depending on the local terrain and
vegetation.) In other words, it is simply not worth it
from the boater's point of view. It may be nice to
walk along and admire, but not to boat. It may have
occasional pools where fish hide under the ledges, and
you could cast a line. If you own the land through
which it flows, (or you are a guest of the landowner,)
you can walk along it, admire it, or cast a line into
it, in a state of privacy. It is, simply stated, "not
navigable in fact."

Not all rivers are readily categorized--there are some
rivers that are in a "gray area" between navigable and
non-navigable. However, river disputes seldom involve
those rivers. Instead, they usually involve rivers
that are obviously navigable by small boats, and are
in fact regularly navigated. For example, a farmer or
rancher may erect a fence across a river and expect
boaters coming down the river to terminate their trip
at that point and leave the river, even though the
river is every bit as navigable downstream from the
fence as it is upstream. So, in actual practice, the
"gray area" between navigable and non-navigable rivers
is seldom the problem."


Jon


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