Navigable Waters

This might create some trapping access.

I hope they Win their case.

Nice

Hmmmmmmm empower DC Bureaucrats to set access regulations nationwide? Hmmmmm.

For this, yes. States shouldn't monopolize anything

I live only a few miles from the Marais Des Cygne river. Its pretty easy to document it was used by trappers and Indians both to transport fur to the Missouri river and on to St Louis when this part of the world was still claimed by France. Trade goods in the other direction. Yet here in KS it has been declared Non Navigable. Would be worth going to court over if the supremes declare people have access.

Can in Missouri Luckily! Interesting Danny. My late Grandmother grew up fishing the Marais Des Cygne river. Always liked that part of Se Ks.

Well 330 states can and do monopolise non migratory fish and game management in large part for example. Except in Alaska they don't because the feds do too. Can of worms. I'm not stating it would be bad outright but there are a LOT of variables here and there are ALWAYS unintended consequences. It would surely get messy so one may need to be very careful what they wish for. For example if the feds control all navigable waters then can they now set seasons up to the high water line? Could they then decide beaver, otter, muskrat regulations for example? Fishing regulations? I don't know and I doubt anyone else can claim to know.

Almost on cue, here is an article re fed management https://www.foxbusiness.com/politics/trump-vetoes-calif-fishing-bill-over-seafood-trade-deficit

I used to guide on a huge spring creek in NE California, (Fall River). For years it was considered non navigable and ranchers put barbed wire fences across the river, and fishing clubs claimed their banks as well. There was no way for a regular guy to put a boat in the river and move up or down.... until one day. IN the late 60's a fisherman who lived an hour away put his john boat in the river next to a county road bridge and started to fish. A rancher drove by and read him the riot act and he calmly said, "...call the sheriff, I'll be here when he comes...". He had legal easement off a county road bridge, but he had bigger plans.

Long story short, he proved that before the war they had floated pine and cedar logs down the river to the mill in town... end of story. The fences came down and to this day it is a world class trout stream, the cattlemen are happy as there is no bank fishing and no trespassing issues, and money for local hotels and fishing guides like me. But the most upstream point of entry for timber is still the upper limit of boat traffic on the river. There is still a log and chain barrier there.

I remember as well a change in the Montana law about high water marks, but I don't know the long term inpacts of that.

Pete

I don't know about the eastern States, but in most western States when the US Government granted Statehood the Feds recognized the navigable waters as being Federal (before Statehood). When the Feds granted Statehood they expressly specified that the navigable waters where to remain as such; useable by everyone.

Washington State where this case is taking place has ruled many decades ago that a water is navigable if you can float (and transport) a cedar shake bolt in the particular water.

This is an extremely important case, I sure hope the SCOTUS takes it up and rules in these brothers favor.

In Nebraska the State determines which waters are navigable and which aren't. Used to be guys would kayak down the Snake river but now since it's leased for trout fishing by rich priks it has been determined un-navigable. Imagine that.

Back in about 1982.......after Jimmy Carter created the ANILCA mess.............I was asked to go to Anchorage and be questioned by a small panel of people working on the federal navigability issue. I believe they were state employees. Anyway, if I had a history of using any waterway, they considered that 'navigable'. This included using it on foot or with a snowmachine or dog team when frozen. I thought that was a pretty novel interpretation of the word

“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I'm sure there are lots of points on both sides. And both sides could take it too far from my point of view. The EPA has tried to abuse the term " navigable waters " for a power grab in recent years.

I believe the right to use navigable waters is a much better established legal right in most western States since they were established in a different manner and at a more recent time than many eastern States.
When the Federal Government granted Statehood the rights of people to use navigable waters was enshrined in the granting documents. The States cannot then later preempt those rights even though they continually try to.

I really think what is actually at play here is that Washington State has by far the nations largest State run ferry system (https://www.arlis.org/docs/vol1/69415913/wsflargest.pdf) on salt water which is definitely federal navigable waters. It is a corrupt and extremely inefficiently run operation. People in the past have tried to open up their own private ferry operations only to be stopped by the State. The Sate does not want any competition.

The laws are murky in Oregon. 12 of the biggest rivers have been declared navigable. Lakes are I think all navigable.

But even if private landowners own the stream bank and land under the water.... the water itself is state owned. So you can float it and not be trespassing. If you start to attach a stake to the stream bottom you might be trespassing though.

So do I

I didn’t hear the entire recording but I think if someone carries customers for hire, they may need a Coast Guard captains license and their vessel is required to be inspected annually. Lots of other CG refs could apply, even on internal waters and lakes.

A lakeside restaurant cannot provide free pontoon boat rides to patrons. A coastal wedding venue cannot provide water born entertainment for wedding guests, without CG licensed operators. Not sure when a fishing guide requires licensing, probably on coastal waters for sure. More than six passengers requires a different license.

Navigable waters equals six pac here. I'm Captain Dirt on my little river boat.

What do you guide for out of the boat, Dirt?

Jim

Here in the great state of Nebraska, nobody own the water on navigable rivers. How a body of water is determined to be navigable, I don't know. Landowners own the land under that water, to the middle of the channel if the river divides properties. So I can put in at a public access point, and paddle down to where the river goes through private property. If I fish using a bobber, I'm not trespassing, because I'm not using he land. But if I fish using a sinker, I'm trespassing because my sinker is on the private property under water. If one side of the river is public land, I can only fish with a sinker on that half of the river. Kinda silly. Also, portaging around an obstruction is an affirmative defense to trespassing, as long as the water is navigable. So I can get out on walk on your land if you put barbed wire across a navigable river. Never done it, though. Never had to, and it just doesn't seem right, even if it's legal.

The point though is that even if the potential boat operators meet all the Federal requirements (Coast Guard licenses, etc) the State of Washington still won't allow them to operate since the State has created a monopoly on who can operate on that large lake; they allow only one operator. Tell me that is fair.

Be careful what you wish for.

I can see the Feds taking control and using it to control all the land that the water flows thru.

I was looking at buy some land that had a VERY small flow of water thru it. You could easily step across it and it was less than 6" deep for its full length.

The town had no issue with putting a culvert in it to access the rest of the property. In fact there was already a culvert in it upstream on the neighbors property that he used to get to the farm fields.

I looked into what the state might say.

State said I might want to get OK from Army Corp of Engineers. I looked into that. Seems that if they determine that a body of water is navigable there is all kinds or red tape needed to build a bridge over it.
They viewed a culvert and driveway as a bridge.

Gave me cold feet. I told seller about possible issues.

The seller decided to avoid the issue and hired a excavator and had them put a culvert in with no formal OK from anyone. That was about 5 years ago, the culvert is still there and the new owner of the place uses it everyday.

The feds aren't a party to the lawsuit. The federal government has no regulatory authority regarding commerce over intrastate navigable waters.

I argued this point when the Feds made me get a six pac and the ole TWIC card. I believe this has something to do with maritime law?

The US supreme court has already made decisions concerning navigable waters. It has already ruled that on navigable waters, the state owns the land to the ordinary high water mark. The test for navigability is this: can it be navigated with commercial-type watercraft such as were common when the state began, including canoe-type watercraft. The supremes specifically said that there should be no strange or unusual test for navigability- if it is navigable, it is navigable. Once it is determined to be navigable, it does not fall under federal jurisdiction, but state jurisdiction where it held in trust for the people. Until sportsmen rise up and force the issue, lots of opportunities for water use will be under lock and key, designated as a private waterway when the supreme court has already ruled in our favor. We need to make the state recognize the property rights we already have been given.

^^^^^
The Coast Guard license is for safety reasons, so we can legally carry paying customers whether it's in conjunction with our guide business or just for ferrying.
The need for the TWIC card is just part of the CG licensing process whether you are operating a canoe or a thousand ton ship.
Really dumb requirements, but it is bureaucrats who dream up this stuff, so it's not surprising.

Every waterway out here is undetermined except for one and the State owns the waterways up to the high water mark as far as I know for both. Maybe not in the Park?

Most if not all of our rivers and alot of our bigger cricks are considered navigable which means we have the right to be anywhere up to the high bank or as in the books, "the high water line". We can walk, trap and fish anywhere along them.

If the state offers public transportation do they have a right to deny a hotel from operating an airport shuttle on public highways.

What about when its iced over?

If your asking me, doesn't matter. Landowners don't own anything below the high water mark.

I have to ask. Is it the high water line, high water bank, or high water mark? Lol

All the above! lol

Its arbitrary, but in actuality with some common sense its easy to see.

the Marias des Cygne routinely floods. Almost annually. There are a lot of places where the normal high water line is a mile from the water.

Same deal at least here in Maine.

I usually ask permission...depends on the flow age!

The high water mark is defined as the location along the stream where the high water leaves a permanent change in appearance or vegetation. The bank may be all sand and then weeds start or something similar. Obviously water vegetation such as cattails can be some distance from the waterline. There is nothing absolutely set in stone, but a warden or landowner should be understanding as the boundary cannot be narrowed down to an inch or two. As of now, Montana, my home state, only recognizes to the low water mark. Ie, no traps above waterline. Can anyone show me a low water mark? ? Funny, as it doesn't exist. I wonder why the sportsman's alliance and sportsmen's groups are not suing states where our water rights are protected?

Persons using navigable waterways also have the right to incidental contact with the bottom up to the high water mark. As the waterways were held in trust by the states some states on intrastate waterways held the navigable waterways as the federal intent was if in facts they are indeed navigable, they are navigable. KY you have the right to navigate navigable waterways intrastate and Illinois you do not. I have been to the lower court and was upheld by a district judge for anchoring decoys. Our conservation officers can’t stand it and have cited and fought the public for some of their chronies who own land around the river and it’s tributaries. “You have the right to navigate and recreate including incidental contact with the stream bed up to the ordinary high water mark” the high water mark varies but is usually recognized by the point where the bank transitions its vegetative growth and in some places may be close to the riverbank and others very far from the riverbank.