Okay Nate, I’ll bite. Here are some excerpts from the link provided above by Gonefishing.
The state has the right to use, regulate, and control public trust rivers as common highways for commerce, trade, and intercourse. In contrast, where a river is classified as not navigable-in-fact, riparian property owners enjoy fee-simple ownership of the riverbed to the midpoint of the channel.
So, we can see that there are two types of rivers/waters. The first would be “navigable-in-fact” and the other would be considered “non navigable-in-fact”. Do we know for sure if the Samish is considered either one of these? No. We do not. The only data that I could find states that it is navigable up to 4 miles upstream of the mouth. As I stated previously, the property in question is more than 4 miles upstream of the mouth.
Washington’s laws of public trust and navigability, which were established more than one hundred years ago, are inadequate for resolving these modern conflicts.
According to the above statement, the laws that we currently have on the books are not adequate to resolve these conflicts. What this means is that we need more clearly defined laws because the ones that we currently have do not (and will not) solve these land dispute issues. The only way that we can be sure is going to be future court cases.
Subsequently, the Court provided a test for distinguishing those rivers that passed to the states and those that remain in private hands. In The Daniel Ball, the Court held that all rivers that are navigable-in-fact are public rivers, and thus are owned by the states. Rivers 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 the water.” Furthermore, a waterway is navigable within the meaning of acts of Congress only when the waterway “form[s] in [its] ordinary condition by [itself], or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water”
The Supreme Court has liberally defined the concept of navigability-in-fact by adopting a test that measures capacity for commercial use. A river becomes a public highway “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.” In The Montello, the Court held that a stream or river is navigable-in-fact when it is “generally and commonly useful to some purpose of trade or agriculture.” However, the Court was unwilling to stretch the rule to include “every small creek in which a fishing skiff or gunning canoe can be made to float in high water.” Despite the Court’s apparent distinction based on the type of boat used, the concept of navigability is actually less concerned with the type of boats used or the presence of occasional difficulties, such as logjams, rapids, and waterfalls. Instead, the navigability-for-title test focuses on the question of whether the stream, in its natural and ordinary condition, affords a channel for useful commerce. In other words, a river’s capacity for commercial use determines whether the river is navigable.
The navigability-for-title test is a backwards looking test that has the potential to create disparate classifications of rivers with regard to recreational boating. To determine whether a river is navigable, courts will look at the condition of the waterway at the time of statehood, meaning that the river was capable of supporting commercial use.
The above statement is a fairly important one. To begin, we should look at the sentence regarding boat size. The concept of navigability is actually less concerned with the type of boats used or the presence of occasional difficulties. Instead, the navigablility-for-title test focuses on the question of whether the stream in its natural and ordinary condition, affords a channel for useful commerce. So, the real question becomes how they define the river in its natural condition. With the erection of dikes pre and post statehood, how are the courts going to decide what is “natural”. Mostly, the courts will look at the capacity of the river when it became a state. It is not hard to understand that the river was not always a river at all, but more of a delta. One cannot use how the river appears today, but rather the way it appeared and was used pre-statehood. With the advent of dikes and farmland, it is not hard to see that the river is not currently in its “natural” state.
After determining that the river was capable of supporting commerce at the time of statehood, courts generally also require that the type of commerce that the river could have supported be a “legitimate” form of commerce. This concept is illustrated by the fact that in The Montello, the Supreme Court was unwilling to classify as navigable any small stream that could float a gunning canoe or raft at high tide on the ground that such a stream could not support a legitimate form of commerce. Nonetheless, federal courts deciding cases in states that obtained statehood in the nineteenth century, such as Washington, almost uniformly refused to hold that recreational use alone is sufficient to qualify a river as navigable-in-fact.
Hmm, according to the Supreme Court, recreational use alone is not sufficient to qualify a river as navigable-in-fact. Based on this sentence and others above, one must prove that the river was capable of supporting (legitimate) commerce at the time of statehood AND that the ability to float a gunning canoe or raft at high tide does not qualify the river as navigable-in-fact.
Instead, the classification of navigable-in-fact seems to depend on the historical and social context that existed at the time of statehood.
An individual claiming a right of access has the burden of proving that the stream is navigable-in-fact.
This is quite important. It is not the land owners responsibility to prove that the stream is not navigable, the burden of proof lies on the individual claiming right of access. This tells me that the land owner is correct in assuming that he owns the property to the middle line of the river UNTIL AN INDIVIDUAL HAS PROVED THAT THEY HAVE RIGHT OF ACCESS. Of course, since there is no already defined guide that says that the Samish is navigable, one must go to court to PROVE that the river is in fact navigable.
Some Washington courts have not, however, consistently applied the capacity for valuable floatage test. Instead, they have determined that certain flows of water are not navigable by relying upon an “actual use” test rather than a “capacity-for-use” test. In Griffith v. Holman, the Washington Supreme court denied recreational access to the Little Spokane River. The river averaged forty feet wide and four feet deep at high water, but the court classified the river as non-navigable because it had only been “used to a limited extent for the purposes of pleasure by the running of rowboats up and down said river by persons desiring to fish for pleasure.” The court relied on the Little Spokane’s actual use, rather than its capacity for useful (commercial) navigation.
So, people used the river for recreation for decades for recreation, but the court ruled that this is not alone a condition satisfactory of “navigable”. The Samish is/was not historically used for “legitimate” commerce that I have found. The one thing that the Samish does have going for it is a history of hatcheries and angling. According to the above ruling though, recreational activity alone does not give the public right of access.
In Griffith v. Holman, the court erroneously applied the capacity-for-use test established in Monroe Mill Co. and held that prior use by recreational watercraft was insufficient to create a public right of access to a non navigable-for-title stream.
Again, just because you can float a raft or canoe down the river, it still may not necessarily mean that the public has right of access.
The rationale in Monroe, Watkins and other early stream access cases was predicated upon an antiquated definition of “commerce.” Because the Griffith court was unwilling to endow a right of access upon streams floatable by recreational boats, it follows that the Griffith court was unable to conceive of recreation as a commercial activity.
However, the capacity for “valuable commercial floatage” test has been interpreted unrealistically; thus, recreational access is still limited in Washington.
From the link that you supplied Nate:
Note that this is a general discussion, and is not a substitute for legal counsel on a specific river issue! State law in a particular state may modify some of the following.
So, basically Nate, we are both right, and both wrong. The main problem lies in the fact that the laws are so vague and there are many precedents that could reaffirm both of our positions. My biggest problem with the whole issue is that until there is a court case that decides whether the river is navigable or not, it will be next to impossible for either one of us to determine if the river is in public or private domain.
I am all for having access to and using waters that have been listed “navigable”. The problem is that this particular case lies in the realm of the unknown. I would hate to see anglers using the information that you gave to have a sense of entitlement to waters that may or may not be considered public. Someday (with the work of people like you Nate), we will have a list of waters that are public (i.e. Oregon) or a ruling that declares almost all waterways public (i.e. Montana). Until then though, I don’t think that it is right to declare that any and all waters are public and that we have access rights when you don’t know with certainty that they are in fact navigable in the eyes of the courts.
Founding member of P.I.N.K. (Pink Idiots Need Killing), for the prevention of IDIOT pink salmon "anglers" everywhere!
![[thumbup]](./images/smilies/msp_thumbup.gif "ThumpUp"){kind=small}
![[scared]](./images/smilies/msp_scared.gif "Scared"){kind=small}
lol