What are you getting when buy riverfront property?

Discussion in 'Hunters Rights Forum' started by National Rivers, Feb 4, 2014.

  1. National Rivers

    National Rivers New Member

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    If navigable rivers are legally open to the public (under federal law), what are you getting when you buy riverfront property? This was a question that came up in another thread, so we made a blog to discuss this in more detail for those who are interested. Enjoy!
    http://www.nationalrivers.org/what-are-you-buying-when-you-buy-riverfront-property.html
     
  2. gadwall52

    gadwall52 Elite Refuge Member

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    good article Vanessa, unfortunately too many landowners assume they own the river. here in Kansas near dodge city the river has gone dry due to excessive irrigation. the river actually flows underground and comes up where the bedrock rises near the surface. the underground stream causes lots of second story growth which makes fine deer habitat. the landowners along the river see this as an opportunity for leasing hunting rights thus they try to keep everyone out of the river bed. they try to argue that since it is now dry it is not navigable. the state though still maintains that it owns the bed and banks. rightfully so as per the submerged lands act of 1953 and court cases stretching back to the founding of our country. I was duck hunting a stretch of the river a couple of weeks ago when a landowners son came down the river checking traps. he remarked that if we could just keep the 4 wheelers out we could have this all to ourselves. I replied but we can't it's state property. he didn't like that much. thought I would be an ally for him.
     
  3. gadwall52

    gadwall52 Elite Refuge Member

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    www.usace.army.mil/.../2/.../rgl05-05.pd...
    here is the guidance the corps uses to determine the OHWM. the OHWM is the OHWM, there are not different OHWMs for different agencies.
    apparently the link I copied is not complete but if you google definition of OHWM and click on this link it will work.
     
  4. gadwall52

    gadwall52 Elite Refuge Member

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    Why is the OHWM important? Because it determines the breath of state ownership of the bed and banks of navigable waters. State ownership is what gives the public rights to use the bed and banks for recreational use. While in 1982 SCOTUS ruled ( Loving v Alexander) that the public has the right of navigation on waters that flow over private land in 2006 Judge James in US District court ruled that the public has no federal right to hunt or fish where navigable waters overflow private land (Normal Parm, Jr., et al. v. Mark Shumate). This was upheld in United States Court of Appeals for the Fifth Circuit in 2008. SCOTUS denied hearing the appeal in 2011 letting this ruling stand. Only some state laws allow hunting or fishing when navigable waters overflow private land ie; KY allows gigging and bowfishing in the flood waters of navigable streams. So unless NORs is aware of some SCOTUS ruling prior to this that Judge James ignored we do not have a right to hunt or fish waters that flow over private property even though we have the right to navigate on them. However most waters that are navigable meet the federal test of navigability and are therefore held by the state.
     
  5. National Rivers

    National Rivers New Member

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    Yes, NOR is well aware of the U.S. Supreme Court decisions confirming that navigable rivers are held in trust for the public, for navigation, fishing, and fowling, not just navigation. These decisions are discussed in detail, in chronological order, in the book Public Rights on Rivers, which is available now to new NOR members at nationalrivers.org, as an e-book or printed book, and on amazon.com as an e-book (using the Kindle app if you don?t have a Kindle.)

    In Parm v. Shumate, No. 06-31045, 513 F.3d 135 (Fifth Circuit 2007), the court denied public rights to navigate on a man-made ditch to an area of private land, over three miles from the river, to fish in a backwater that was dry except during high water. This is similar to Kaiser Aetna v. United States, 444 U.S. 164 (1979), in which the court denied public rights to navigate through a man-made channel from the ocean to a shallow pond on private land (which real estate developers had artificially deepened so as to create a man-made marina.) These situations are similar to a ?gated community,? in which residents drive from the public streets of a city to the private streets in their community, built at private expense, and the general public is excluded.

    U.S. Supreme Court decisions confirm public rights to navigate, fish, and fowl on the natural navigable rivers of the nation, but not necessarily to navigate through man-made ditches or channels to get to man-made marinas or temporary backwaters on private land. Public rights to navigate to those sorts of places can vary state by state. In Parm v. Shumate, the sheriff said that navigating to that temporary backwater on private land, in that state, was trespassing, and the court agreed, so that the men would have been trespassing even if they were just sitting in their boats without fishing. The fishermen?s lawyer claimed that federal law confirms a public right to navigate to such locations, and fish once you get there. The court rejected that claim, saying that there is not a ?federal right to fish? in such locations, which is true, since there is no public right to navigate to them anyway (whether for fishing or just sitting.) However, the case did not involve public rights to fish on waters that you can legally navigate to, so the decision can't extend to those sorts of waters. In addition, Supreme Court decisions confirm public rights to fish on waters you can legally navigate to, so a circuit court decision can't deny those rights. (Note that internet and media comments have misconstrued the decision, saying that it denies public rights to fish on waters that you can legally navigate to, which it doesn?t.)

    More importantly, the state attorney general, and the district attorney, were not prosecuting the fishermen, even after the sheriff arrested them. The fishermen were very close to achieving a ?stalemate? in the matter--the only remaining step would have been to apply political pressure to convince the sheriff to stop wasting taxpayer dollars by arresting fishermen that the district attorney would not prosecute anyway. This would have been a de facto victory for the fishermen. It is very important for boaters, fishermen, and fowlers to understand how to work toward this ?stalemate,? rather than litigating, in most river circumstances. This ?stalemate? approach (as opposed to the litigation approach) is discussed in detail in the new River Strategy Guide (available now to new NOR members, at nationalrivers.org, as issues 64, 65, and 66 of CURRENTS e-magazine.)

    Regarding the bed of the Arkansas River near Dodge City, Kansas, this strip of land is permanently owned by the state of Kansas, held in trust for the public, at its original natural width of about 300 feet or more, not at its current width of about 30 feet. This strip of permanent public land does not shrink to a narrower width just because upstream irrigators are presently diverting excessive amounts of water. (Kansas won a lawsuit against Colorado for allowing excessive diversions.) NOR is working with a lawyer and riverbed users in Dodge City to confirm public rights to use the full natural width of the bed, hopefully without litigation, despite current objections from adjacent landowners and the sheriff, and landowner fences that currently unlawfully extend into the riverbed. Your NOR membership, or your purchase of NOR books and materials, will help fund continuing work to confirm public rights on rivers (and riverbeds) nationwide. Thank you.

    P.S.?It?s good that you are quoting a ?navigable in fact? passage in your signature, but since ?commerce? sounds like ships and barges to many people, it would also be good to add that federal court decisions confirm that ?commerce,? for these purposes, includes small-scale commerce in the 1800s, such as fur trade canoes on small, shallow streams with logjams and portages, and transporting pre-cut sections of logs, as little as four feet long, down steep creeks with waterfalls, and it also includes modern commercial recreational navigation, such as raft trips or canoe or kayak classes. With that clarification, the term ?public navigable rivers? includes almost all the small rivers that people would actually use.
     

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