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Who Owns The River?

By Joe Cornwall

 

Row, row, row your boat, gently down the stream. Until you get to a steel cable suspended across the flow, that is. It's hard to imagine the gargantuan hubris that would lead anyone to believe they can actually "own" a stream or river. Certainly it must evident to even the most self-absorbed narcissist that water flowed along the stream bed long before the land was "purchased." Evidently a certain Johnson family of Utah was conceited enough to believe they owned a river, though. The Johnson's, Donny Beaver, and many others like them have purchased land along both sides of a river or creek and suddenly believed and acted like those flowing waters are a personal playground. To that end they construct fences, string cables or otherwise take actions to prevent anyone from “trespassing” on “their” river.


We can not and do not create rivers, land or sea. We are only allowed the privilege of holding them in trust for future generations. Living waters belong to no one person even as they are the responsibility of every person. I think Paul Brooks said it best in his 1971 book The Pursuit of Wilderness; "We shall never understand the natural environment until we see it as a living organism. Land can be healthy or sick, fertile or barren, rich or poor, lovingly nurtured or bled white. Our present attitudes and laws governing the ownership and use of land represent an abuse of the concept of private property.... Today you can murder land for private profit. You can leave the corpse for all to see and nobody calls the cops."


The Conaster family, also of Utah, must have felt the same way. When the Conaster’s demonstrated the temerity of thinking they could float a raft upon wholly-owned waters, they were charged with criminal trespass by the river-owning Johnson's. The Conaster’s fought back and the case, recently decided by the Supreme Court of the State of Utah, will have ramifications nationwide. Those of us who fish moving waters should send a big “Thank You” to the Conaster family for taking on such a draconian riparian access law!  Their strength, commitment and willingness to fight for common sense are what makes America strong.


The battle for access isn't universal.  In enlightened states like Michigan and Minnesota there are very few impediments to accessing flowing water. So long as you stay below the historic high-water line you are in the public domain. In those states the citizens all agree that no one can own a river.


In less evolved states, like Ohio and Pennsylvania, if a stream is considered navigable it is considered public water. Of course this leaves open the question of what is navigable. Donny Beaver would have us believe that Pennsylvania’s Little Juniata is not navigable, despite a century or more of its use to carry logs and boats. He used his fortune to limit access to the river and charge a fee to fish there.  That is, until a determined group of anglers demanded this claim be tested in court. Fortunately the Huntingdon County Common Pleas Court judge, Stewart Kurtz, ruled that the river is navigable and therefore public property. So much for usurping public property to make a private profit… and good riddance to the Spring Ridge Club, its arrogant owner and its elitist members.


Ohio, too, has this problem. Beaver (again) and a host of others believe flowing water should be “protected” from the vast, unwashed masses of taxpayers. It’s okay if our tax and license fee dollars pay to stock the creeks with steelhead and trout, though. That makes private access worth so much more. It’s not just Donny Beaver, though. A substantial percentage of the twenty-nine thousand miles of flowing rivers and creeks in Ohio are closed to public access. For a while there was even an effort, with Ohio House Bill 218, to give away thousands of acres of valuable Lake Erie shoreline to adjoining private property owners -- giving them new rights to fill in and build in shallow lakelands, physically alter the existing shore, and charge with trespassing any citizen who tries to walk or fish from shore along the “common ground” of Lake Erie’s Public Trust lands.  That bill was barely (barely) stopped by a concerted effort of several Ohio conservation and angling organizations.  Private money talks and the tax paying citizens have to fish somewhere else.


Even where we have the right to float a creek, and when we access it from the public easement that is part of every bridge crossing in the state, some vain landowners insist that touching the bottom of the creek constitutes trespass. We can float, but we can’t wade. We can paddle, but we can’t let the paddle touch the creek bed. We can pass through, but we can’t slow down and enjoy. A timid political machine, motivated by the flow of dollars from a privileged few, refuses to allow this legal concept to be tested in a court of law in the Buckeye state.


Fortunately for all of us the Utah decision puts all this perturbing selfishness where it can best be dealt with. In the words of Justice Louis Brandeis, “Sunlight is the best disinfectant.” There exists a guaranteed public right to use the waters for navigation and related recreational use, even though the banks on both sides, and the land beneath the flowing stream are under private ownership. Where water flows, there lies pubic interest. It will be a great day in Ohio and Pennsylvania when our court systems adopt the perspective set forth by the clear thinking Justices of Utah who said; ""We hold that the scope of the easement provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water. We further hold that the public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement, so long as they do so reasonably and cause no unnecessary injury to the landowner."

 

You can read the entire Supreme Court of Utah decision here.

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