Laws governing recreational access to waters of the Columbia Basin: a survey and analysis.

• Author: Osborne, Stephen D.

1. INTRODUCTION

   IS floating down a stream the archetypal American experience of freedom, as in Huckleberry Finn, or an un-American violation of private property rights? It depends on which stream--and on which side you stand of the growing chasm between boaters and owners of land adjacent to recreational waters. In recent years boaters on waters adjacent to private property have been threatened with rifles or warning shots; others have had to contend with barbed wire strung across streams, trespass law suits, and police helicopter buzzings. (4) Meanwhile, landowners face increasing problems with trespass, litter, and vandalism. (5) Fueling the controversy is the burgeoning property rights movement. (6) In Oregon, the passage of Measure 7 (7) and the furor over water rights in the Klamath Basin (8) make clear that many people are fed up with government interference with property rights. In this context, perceived encroachment by private boaters and fishers will be even less warmly received.

   Much of this discord stems from confusion regarding the legal rights possessed by both sides, with landowners fearing trespass, the creation of public easements on their land, and liability to recreationists. People on both sides of the conflict often operate under mistaken assumptions. In Oregon, for example, a recent survey revealed that recreational users misunderstand the rights they possess vis-a-vis landowners along waterways. For example, most recreational users believe that riparian lands are publicly owned, thus giving a legal right to portage, anchor, walk, and fish on the beds and banks of the state's streams and rivers. (9) Actually, the majority of the riparian lands in Oregon are privately owned, fueling the potential for future conflicts. (10) The discrepancy between actual and perceived ownership may help explain many of the problems and conflicts occurring between users and landowners along the rivers.

   Landowners, for their part, may not be aware of laws vesting in the state title to the beds of navigable streams and lakes of the state, despite what their deeds may say. (11) And even when private title does extend to the bed of the waterway, the landowner's right to exclude others is often not absolute, contrary to what many believe. (12) This confusion suggests that better information should be available concerning land ownership and recreational use rights along waterways of the Columbia River Basin. An understanding of current river access laws in the four Basin states could help alleviate tension and reduce conflicts between users and landowners.

   Recreational access laws in the Columbia River Basin states--Washington, Oregon, Idaho, and Montana--have evolved over the past century and a half in response to social and economic developments, and may be expected to continue evolving in response to the growing demand for recreational opportunities. This Article surveys current laws and traces their origins in an attempt to discern the trajectory of future developments in the field. This Article also provides a state-by-state overview of recreational access laws in the four Columbia River Basin states. Each state has a different approach to water access, providing recreational users with varying degrees of access, floatage, and portage rights. Section II of this Article provides background information on federal navigability laws, the doctrine of custom and the public trust doctrine, all of which were essential in shaping state doctrines and have the potential to reshape them further. Section III surveys the laws of each state, analyzing key legislation and court cases in three areas of state law: public access, the public trust doctrine, and recreational use laws limiting landowners' liability. The Article concludes with comments and recommendations to improve access and liability laws in Washington and Oregon, and to provide users and landowners with more certainty about their respective rights.

2. SUMMARY OF KEY CONCEPTS IN DETERMINING RECREATIONAL ACCESS

   1. Navigable Water Bodies and Property Rights

      The common law of property draws a distinction, for title purposes, between lands under navigable water bodies and lands under nonnavigable water bodies. Title to submerged and submersible lands (13) under navigable water bodies vests in each particular state, and thus these lands are known as "sovereign lands." Title to lands under nonnavigable water bodies, however, may be vested in private ownership. (14) The test to determine navigability for title purposes is based on federal law. (15) This test does not, however, preclude a more liberal state navigability test establishing a right of public passage whenever a water body is useful for commerce or recreation, or is "navigable in fact" by small craft. (16) In other words, title navigability under federal law establishes the minimum number of waterways open to public access, but typically not the maximum.

      In the case of a water body navigable under the federal test, submerged and submersible lands belong to the state in trust for common usage. (17) That is, ownership of the beds and banks up to the high water mark remains with the state. The public, then, can pass freely over these waters and use them to boat, fish, and bathe. Although there may still be conflict with adjacent landowners, the law is clear regarding ownership of the beds and banks of such waters and the public's right of access. States may, of course, regulate or restrict access to these water bodies for various other reasons such as public health and welfare.

      As determined by the federal test, title to nonnavigable water bodies did not pass to a state upon entering the union, but remained with the private grantee or the federal government. (18) Land ownership extends to the center, or "thread," of the water body for each landowner adjacent to a stream. (19) Thus, a landowner maintains a bundle of rights in the bed and banks of a nonnavigable river. Normally, private property ownership includes the right to exclude others. (20) However, this right of exclusion is limited in the context of waterway ownership, because the state--not the landowner--owns the water that flows above such lands. (21) In other words, the property rights of such landowners are subject to the state's right to use and control the public's waters as it sees fit. (22)

      One way states provide for public use of water is by allowing a public floatage easement over waters navigable-in-fact but not meeting the federal title navigability test. In some states, a right to disembark and pull, push, or carry over shoals and rapids accompanies this right of flotation as a necessary incident to the full enjoyment of the public easement. (23) In most states, however, wading in privately owned beds or walking on private banks is trespassing. (24)

      In sum, if a water body is navigable under the federal test, then submerged lands belong to the state in trust for common usage. Thus, these water bodies provide the broadest access rights for recreational users. If a water body does not meet the federal title navigability test, the submerged lands can be held by private riparian or littoral owners. However, if these water bodies are navigable-in-fact under state law, there is usually a more limited public access right for surface usage. Regardless of whether a water body is designated "navigable" under a federal or state test, the public may not trespass over private property to gain access to such water bodies. (25) This includes, in some states, allowance for incidental contact with the beds and banks, and for portage around obstructions. If a water body does not meet either navigability test, title to the bed and banks lies in riparian or littoral owners and there is no surface easement for public access.

   2. The Federal Test of Navigability for Title

      The concept of navigability arises in various areas of American water law. Under federal law, navigability of a particular waterway determines, for example: the ownership of submerged lands; the extent of the navigational servitude; (26) regulatory jurisdiction under the Commerce Clause; (27) and the extent of admiralty jurisdiction. The navigability tests developed by the Supreme Court in each area are similar, but not identical. This Article addresses only the federal navigability test for determining the ownership of submerged and submersible lands, or navigability-for-title. Classification of a water body as navigable under this test vests title of the bed and banks of that water body in the state. State ownership of submerged lands, in turn, affects the access rights held by the public as well as the rights held by private riparian or littoral owners.

      1. Navigability-for-Title

         The concept of navigability-for-title evolved from Roman law, and later English common law, to distinguish submerged lands held in public trust by the sovereign from those submerged lands capable of private ownership. (28) In the United States, the federal definition of "navigable" waters determines title to the submerged land underlying rivers and lakes in each of the states. On the date a state enters the union, title to all beds and banks--up to the high-water mark--of navigable water bodies within that state become the sovereign lands of the state. (29) The state's title is subject only to the power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. (30) Acquiring title to such lands likewise binds the state to the public trust doctrine, which limits the state's ability to dispose of such lands. (31)

         The navigability-for-title test is exclusively a question of federal law. (32) Under the federal test, a water body is navigable in law if it is navigable in fact. (33) Water bodies 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...