The Right to Float on By: Why the Washington Legislature Should Expand Recreational Access to Washington's Rivers and Streams

• Publication year: 2005

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 4SUMMER 2005

The Right to Float on By: Why the Washington Legislature Should Expand Recreational Access to Washington's Rivers and Streams

Dustin Trowbridge Till(fn*)

I. Introduction

"Violators will be shot. Survivors will be shot again." So reads the no trespassing sign pinned to the wall of Harold Honeycutt's shop.(fn1) Honeycutt's property sits on the banks of the Kettle River, in the northeastern corner of Washington State. The Kettle River originates in the Okanogan Highlands of British Columbia, crosses into the United States near Ferry, Washington, and eventually drains into the Columbia River at Kettle Falls.(fn2) Like many landowners in this sparsely populated part of the state, Honeycutt purchased his property for its remote characteristic.(fn3)

While Honeycutt and other property owners in the Kettle River watershed value the privacy afforded by the region's remoteness, the region is also popular with river-based recreationalists. During spring and early summer, when the Kettle's waters are high due to snow melt-off, white-water kayakers paddle the challenging Kettle River Gorge, which is characterized by a section of technical Class V rapids.(fn4) Later in the summer, when water levels are lower, flocks of rafts, canoes, and inner tubes float down the Kettle's generally placid waters.(fn5)

Recreational use of the Kettle River has long resulted in conflicts between recreational river users and riparian landowners.(fn6) In 1971, rafters on a church-sponsored float trip were shot at while floating down the Kettle River by a riparian property owner who was enraged by what he saw as a constant violation of his property rights.(fn7) Patricia Stambor, a participant in that trip, was hit in the thigh by a ricocheted bullet.(fn8) The man who shot Stambor claimed he was firing at rocks to scare away the rafters.(fn9)

More recently, rafters have accused Honeycutt of firing weapons at them and blocking the Kettle River with logs and other obstructions.(fn10) Honeycutt believes that he owns the beds underlying the Kettle to mid-channel and hence, the right to exclude boaters from his property. Honeycutt told reporters, "It's been known ever since we lived here that we own to the center of the river."(fn11) Honeycutt and other properly owners argue that rafters trespass on their property, have wild drunken parties on sandbars, and disrupt the isolated sanctity of their property. Rafters see Honeycutt, whose garage is decorated with Confederate flags and anti-immigrant literature, as a backwoods crank whose values do not comport with present times.(fn12) The Ferry County prosecutor issued an opinion in 2003 stating that "[t]he Kettle River is open for use to the public below the high water marks for boating, rafting, tubing, canoeing, kayaking, fishing or other permissible recreational activity."(fn13) In 2004, this same prosecutor filed criminal coercion charges against Honeycutt, alleging that he "tried to force the floaters not to do something they had a right to do."(fn14)

The concepts of navigability and public trust are at the center of conflicts between river users and riparian landowners. In Washington, the beds of all rivers that are "navigable-in-fact" are owned by the state as public trust lands.(fn15) The state has the right to use, regulate, and control public trust rivers as common highways for commerce, trade, and intercourse.(fn16) 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.(fn17)

Property owners like Honeycutt base their claim to ownership of the riverbed on an unpublished 1925 ruling from a neighboring county that designated the Kettle River as non-navigable.(fn18) Many landowners in the Kettle River watershed, including Honeycutt, purchased property on the Kettle in reliance upon its classification as a non-navigable river and the corresponding alleged right to exclude others.(fn19) Nevertheless, the Kettle River remains a popular destination for river rafters, canoeists, and kayakers. Consequently, conflicts between riparian property owners and recreational river users have plagued the region more than thirty years.(fn20)

The conflicts on the Kettle River mirror conflicts that are occurring with increasing frequency throughout the country.(fn21) American Whitewater, a nonprofit boater advocacy group that provides river reports and access information, logs between eighty and two hundred reports of conflicts between landowners and river recreationalists each year.(fn22) Kayak-ers in Colorado have been harassed by police helicopters for floating public rivers, and landowners in New York and other states have strung barbed wire across public rivers to prevent river access.(fn23) A Colorado landowner brought a civil trespass suit against a river outfitting company, seeking an injunction to stop floating on the Lake Fork of the Gunnison River.(fn24) Musician and actor Huey Lewis, who owns riparian property in Montana, has fenced his property to deter fly fishers from legally accessing a traditionally fished tributary of the Bitterroot River.(fn25) Montana has one of the nation's most liberal public access laws,(fn26) and Lewis' attempts to block access to Mitchell Slough have been met by protests from local anglers, including attorneys and state representatives.(fn27)

Conflicts between recreationalists and riparian property owners also play out in state politics. For example, in 2000, Oregon voters passed Measure 7, which required governments to pay private property owners for any reduction in property value resulting from government regulation, such as expanded recreational river access.(fn28) Although Measure 7 was held unconstitutional by the Oregon Supreme Court, its supporters reintroduced an amended version called "Son of 7"(fn29) that was approved by sixty-one percent of Oregon voters in 2004.(fn30)

Shifting cultural values seem to lie at the heart of these conflicts. As more people measure the value of remaining wild lands using an aesthetic and recreational calculus instead of an extractive and isolationist calculus, traditional user groups and residents of remote areas of the American West are challenged and displaced by newcomers who bring different and sometimes competing values.(fn31)

As recreational use of Washington's rivers increases, conflicts between river users and riparian property owners will surely continue, if not increase. Washington's laws of public trust and navigability, which were established more than one hundred years ago, are inadequate for resolving these modern conflicts. Other states, notably Montana, have resolved similar conflicts by enacting legislation that provides for broad public access to the state's rivers while protecting basic property rights.(fn32) Washington should follow suit by establishing a broad public right of recreational access to Washington's inland waters. Such an enactment would not be a radical departure from current common law jurisprudence. By enacting legislation similar to Montana's Stream Access Law, the Washington Legislature would recognize the importance of water-based recreation to the state's population and economy while respecting property rights. Additionally, legislation that expanded public recreational access would echo formal state policy.

This Comment surveys the contemporary status of Washington's navigability doctrine and public trust laws and proposes a solution to the increased conflicts between riparian property owners and recreational river users. Part II addresses the federal navigability jurisprudence that establishes the minimum standards for determining whether a river is navigable. Part III surveys the law of navigability and the public trust doctrine in Washington. Part IV highlights the importance of recreation to Washington residents. Part V analyzes how other jurisdictions, particularly Montana, have resolved conflicts between recreationalists and riparian property owners. Part VI argues that Washington should adopt a recreational boat test to determine a river's navigability and demonstrates that riparian landowners will not be exposed to increased liability if Washington adopts such a test. Part VII concludes by discussing the likely implications for landowners and recreationalists if Washington adopts a modern stream access law based on a recreational boat test.

II. Federal Navigability Jurisprudence

The federal navigability-for-title test provides the foundation for determining whether property in a waterway is owned by the state or owned privately.(fn33) Navigability-for-title is exclusively a question of law.(fn34) In Martin v. Waddell, the United States Supreme Court established the basic framework of federal navigability in the United States.(fn35) The Court looked to English common law, which recognized that the King held title to all coastlines and that the public had a right of fishing in navigable arms (streams) that flowed off of the ocean, unless the King or some other person had gained exclusive ownership in the bed of the river.(fn36) After examining English common law, the Court held that, at the time of the American Revolution, "the people of each state became themselves sovereign; and in that character held the absolute right to all their navigable waters, and...