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water rights- court decision


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It will be interesting to see what they rule. A year or two ago I looked up the laws concerning waterway ownership and found some great stuff, but it was discouraging at the same time. In a nutshell, all navigable streams,(defined as anything that trappers could float a canoe or raft on, including the banks up to the normal flood level,) were publicly owned under federal law. Individual States were tasked to manage the streams and hold them in the public trust. They could not be owned. That was the good news.

 

The discouraging part is that is that nobody told the local landowners and law enforcement that. Now you get situations where a farmer may chase you off of "his" river as you are wading, or a company with a business on both banks may rule the river "closed" in "their" section. We've seen the former on the Kishwaukee and the latter on the Vermillion. Local police and rangers often don't know the law and so they side with the landowner. It's totally possible to bring a challenge before the courts, but what has happened in every instance is that the individual suing for access hasn't had the funds to proceed with the case, so no ruling has ever been made.

 

Perhaps this will force the issue.

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It will be interesting to see what they rule. A year or two ago I looked up the laws concerning waterway ownership and found some great stuff, but it was discouraging at the same time. In a nutshell, all navigable streams,(defined as anything that trappers could float a canoe or raft on, including the banks up to the normal flood level,) were publicly owned under federal law. Individual States were tasked to manage the streams and hold them in the public trust. They could not be owned. That was the good news.

 

The discouraging part is that is that nobody told the local landowners and law enforcement that. Now you get situations where a farmer may chase you off of "his" river as you are wading, or a company with a business on both banks may rule the river "closed" in "their" section. We've seen the former on the Kishwaukee and the latter on the Vermillion. Local police and rangers often don't know the law and so they side with the landowner. It's totally possible to bring a challenge before the courts, but what has happened in every instance is that the individual suing for access hasn't had the funds to proceed with the case, so no ruling has ever been made.

 

Perhaps this will force the issue.

You're right. There was a long discussion on this site about a year ago which concluded that if this could ever be brought all the way to conclusion the courts would likely hold that the federal law trumps all the individual states laws & there'd no longer be any private ownership of navigable waters the definition of which include just about anything but the tiniest streams.

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It will be interesting to see what they rule. A year or two ago I looked up the laws concerning waterway ownership and found some great stuff, but it was discouraging at the same time. In a nutshell, all navigable streams,(defined as anything that trappers could float a canoe or raft on, including the banks up to the normal flood level,) were publicly owned under federal law. Individual States were tasked to manage the streams and hold them in the public trust. They could not be owned. That was the good news.

 

The discouraging part is that is that nobody told the local landowners and law enforcement that. Now you get situations where a farmer may chase you off of "his" river as you are wading, or a company with a business on both banks may rule the river "closed" in "their" section. We've seen the former on the Kishwaukee and the latter on the Vermillion. Local police and rangers often don't know the law and so they side with the landowner. It's totally possible to bring a challenge before the courts, but what has happened in every instance is that the individual suing for access hasn't had the funds to proceed with the case, so no ruling has ever been made.

 

Perhaps this will force the issue.

 

Just to be clear - in Illinois, unlike Pennsylvania or Wisconsin, the stream/ streambed does belong to the landowner, right?

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Wrong.

 

Landowners don't know the law or assume YOU do not. Local law enforcement seldom does either.

 

In Indiana there is a list of Navigable streams. Everything else has not been ruled on. Leaving the federal law. Landowners of course will claim they are non- navigable. These rivers are far from non-navigable.

 

In short, no the landowners do not own the creekbed, but may think they do.

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There's a list in IL too. Oops I shouldn't admit to knowing that ;)

 

Dale Bowman has a blurb in his column today saying they have come to an agreement on the Vermillion and people will be able to raft there again once they complete whatever work they need to do.

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According to what is posted on the NORS web site, landowners in Illinois should not be able to own the land under the rivers but, many Illinois landowners have legal deeds that say they do own the land under the rivers. You aren't going to get them to give up that land without a court fight that makes their deeds invalid. That's the problem. Who has the money to take theses landowners to court to prove what we believe to be right?

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AS I understand it under the original federal law established in the nation's early years there cannot be private ownership of any navigable stream which per the definition applied by the federal law includes all but the tiniest streams that typically are too small to be of recreational consequence.The problem is that the feds did not defend that law as the states instituted their own individual statutes allowing private ownership which in some states is confined to only the streambed often to midriver unless property is private on both sides of the stream & in other states, most of which I believe are in the West, also includes ownership of the water flowing over the streambed.I've seen electrified fences strung across a river in Wyoming.In other more public friendly states such as Michigan private ownership stops at the high water mark of a stream requiring that once legally accessed the public need only stay to the stream.Even though fed law invalidates state law as a practical matter state law continues to hold sway in the absence of successfull challenge at the federal level.Therefore we are all bound by it.

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  • 2 weeks later...

So what would you say IS clear with respect to access in Illinois and what would be a practical rule of thumb for accessing water/ moving up and downstream once legal access is made?

In Illinois ownership includes the streambed not the water itself. Most owners won't object if you stay in the stream. On big rivers like the Fox or the Kank trespass won't be an issue if you do.On smaller streams stay to the undeveloped side of the stream if one exists as ownership will often stop at midstream.

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According to what is posted on the NORS web site, landowners in Illinois should not be able to own the land under the rivers but, many Illinois landowners have legal deeds that say they do own the land under the rivers. You aren't going to get them to give up that land without a court fight that makes their deeds invalid. That's the problem. Who has the money to take theses landowners to court to prove what we believe to be right?

 

Here's a link to the NORS site that Scott mentioned. Take the time to read the whole page, it's very well research and includes references to the specific laws and court cases from before the American Revolution all the way up to the mid-1980's.

 

Bottom line, in spite of what one's deed may or may not say or what State or local law(s) are on the books; no private party can own any stretch of running water, deemed Navigable by Title or not. This includes the stream-bed and portions of the banks. Also, no one can can deny the public's use of adjacent private property if the public right-of-way (waterway) is blocked. Federal Law trumps the State/ Local Law in this matter.

 

HOWEVER, the time and place to point this out is not while you're out on/ in the water. It's not worth a butt-full of bird-shot to argue with the person claiming ownership. The NORS article gives very helpful suggestions on how to address the situation.

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Maybe a wild idea....

 

I have almost never had an issue wading.

 

If I lived near a river I wanted to fish regularly and there was a a strong possibility of being shagged off, I would go to my local police stations with copies of that statement. Not on that day but a month or so before. I would ask the desk sergeant to pass along copies to their municipality attorneys and to any force that works that area.

 

I would explain I'm a stream fisherman and will be wading in the upcoming summer months and and if any compliant arise, that information will be helpful to the responding police.

 

I know this might sound weird but heading off any problems is way better than a stream confrontation where the officer has no idea of the law.

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"Federal law trumps the state law". I have heard the same thing, but I am not sure you would get a law enforcement agency to buy it here in IL. Brendan brought up a good point about landowners and law agencies not knowing the law. I would agree wholeheartedly with that point. I think there are alot of landowners who allow people to wade on their property because they figure if you are in the water you are not trespassing........which, of course, you really aren't, except by Illinois definition. If you think game wardens know the real law, (which they should) they don't.

 

I like Jim's idea, but I am afraid, while it might help a little, if a landowner wants you out and is willing to call authorities, I think you will be screwed unless you have deep pockets to take it to court, or you are a lawyer.

 

I know one lawyer that is a member of the ISA. I would love to have the ISA address these laws someday. Would we win..........maybe, but I am fairly sure no other parties have really pushed to have the law changed.

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Article in Arkansas Democrat Gazette, Sunday 12/12/2010

Landowners, Fisherman at odds on Little Red River.

Trout fisherman and several landowners are squabbling over access rights on the Little Red River at Cow shoals just outside Heber Springs, Arkansas.

Col. Mike Knoedl, chief of law enforcement for Arkansas Game & Fish, confirmed these conflicts have occurred.

He said the sourice of conflict is a dispute over wether that portion of the Little Red is navigable. He said it is, according to the AGFC's legal division.

"It's been deemed navigable, and thats the way we are enforcing it, That's our offical stance, Knoedl said.

Anglers are quite within their rights as long as they remain in the water, Knoedl said.

One recurring problem is when anglers enter or leave the river on private property, even if they are stranded by rising water, they can be cited for trepassing if they tread on private property.

Property owners are going to court over this particular stretch of water, until then te state of Arkansas recognizes it as a navigable by way of a 1980 decision on iudentical situation by way the Mulberry River, Arkansas Supreme Court ruled against another property owner who claimed exclusive rights to teh river by his property.

One precedent for the 1980 decision was a 1915 case, it held that the state would be compelled to respect evolving definitions of navigability, including recreation.

 

If anyone wants a copy of this article I will gladly mail it to one of our nembers who can share it with other members.

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I know one lawyer that is a member of the ISA. I would love to have the ISA address these laws someday. Would we win..........maybe, but I am fairly sure no other parties have really pushed to have the law changed.

That's an interesting statement.

My primary focus of the moment is working with Openlands on a Resolution to get HB6072 passed.

For more than 40 years, Illinois protected landowners who opened up their property to the public against legal liability. The Recreational Use of Land and Water Areas Act defended landowners, land trusts, companies, and public agencies that allowed people onto their property to hike, bike, fish, bird-watch, conduct restoration efforts, hold nature classes, and participate in numerous other activities. Since less than 4% of the natural areas in Illinois are held in public trust, the law created tremendous opportunities for recreation and natural resource protection throughout the state. Unfortunately, the law was changed in 2005 to cover landowners who made their land available for hunting and recreational shooting only, eliminating protection for all other activities.

 

Illinois is the only state in the nation to adopt such a ludicrous Act.

 

Regardless of what people think is their legal right, if we aren't telling landowners that their backs are covered in ANY case, we're not covering the whole playing field.

Landowner perceptions, real or imagined, are paramount in establishing more access opportunities.

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I agree. Landowners have legitimate and numerous concerns. There are people who have little respect for land they are allowed to use. They just use. Access rights should be put into place, but landowners concerns must also be taken care of. On a selfish note, it would be nice to see these things ironed out in my lifetime.

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