River Law:

How to apply river law
to actual river access and conservation issues

If you have read the section titled Who owns the rivers? Answers to frequently-asked questions, you know that river law protects public rights to navigate, recreate, and fish along rivers that are navigable, even in canoes, kayaks and rafts. It also requires government agencies to hold rivers "in trust" for the public, conserving them in a somewhat natural condition, subject to certain exceptions as discussed below.

You also know that despite this legal protection on paper, river users and conservationists often encounter problems with the court system. This section explains how to apply the law to get rivers re-opened and to save rivers, without going to court. First we will talk about applying the law to river access issues, and then about applying it to river conservation issues. The two subjects are intertwined.

River access issues:

To better understand your options, first consider the problems involved in taking river access issues to court. The major court decisions about navigability law did not involve river recreationists, but rather were disputes between the federal and state governments, or between government agencies and large companies, about government control and use of valuable resources in or near waterways. They took years to go through the appeals process, and were litigated by full-time government attorneys.

Courts usually require the facts in a river dispute to be formally proven, which can take a lot of time and can cost thousands of dollars. Local courts may be primarily concerned about keeping the peace, which can translate into maintaining the local status quo. So they may convict recreationists of trespassing, or uphold river closures, restrictions, or abuses promulgated by various government agencies, regardless of navigability law and the Public Trust Doctrine. It will probably turn out that if you want to address the real legal issues, you have to appeal to a higher court--which will in turn take even more time and money, way beyond what you can afford.

Another problem with going to court is that sheriffs, landowners, government agencies, and reporters tend to assume that if you are going to court, that must mean that at present you do not have the legal right in question. They tend to think that if the law were on your side, why would you need to go to court? So going to court creates the wrong impression. Instead of going to court and thereby focusing attention on controversy about river law, you want to focus people's attention on the cases that have already been decided in your favor by the U.S. Supreme Court, and you want to emphasize that the local landowner or sheriff or government agency is violating those court decisions.

Courts usually have a backlog of urgent criminal and civil cases. The District Attorney may suspect that river users have valid legal rights, but may feel that it is not worth dealing with. He may offer alleged river "trespassers" a plea bargain in which they pay a token fine and promise to not return to the river in question. This costs the river users far less than it would to take the issue to court. But the net result is that they do pay a fine. In this way, a river closure or restriction can be enforced for many years even though it is unlawful.

In sum, even though the law is on your side, going to court over an unlawful river situation is usually a poor use of your time and money. Your time is better spent advertising the favorable court decisions that we already have. You do have legal rights to visit rivers and to insist that river resources be conserved as part of the public trust, but actually claiming and making use of these legal rights can be done better through public education than through a court procedure.

So instead of going to court, use your time and energy to contact all the local "powers that be:" Government agencies, politicians, landowners, and journalists. Give them a copy of the Answers to Frequently Asked Questions, and anything related that you can obtain from the State Lands Office, or the State Attorney General's Office. Notify them of the legal issues involved and the legal rights that are being violated, and emphasize that the problem needs to be corrected.

Then follow up as necessary to make sure that it is. As with anything, at first you will be met with skepticism. You may need to arrange for the State Lands Office or the State Attorney General's office to phone or write directly to the local sheriff, landowners, or government agency. If you have "three way calling" on your telephone that may help. Going in person may be necessary.

If you can get an attorney to help you, (either at regular rates or in a less costly public interest capacity,) so much the better. But the process remains the same: You work with the attorney to notify people of what the law is, not to go to court. You make notes or outlines about what the problem is, what government agencies are involved, and what your understanding of the law is, and then the attorney uses your notes to write letters on his letterhead to the offending parties, urging them to correct the problem. The attorney may tell them that he will take the issue to court if necessary, but plenty of educating and conferencing should take place first.

Again, don't expect overnight success. The law is on your side, but few people know that, so you need to get as many people as possible to understand it. You can start doing that right now. It takes time for people to shift their beliefs. The chances of a court making a future ruling in your favor will be greatly enhanced if you start laying the educational and political groundwork now.

River conservation issues:

When applying river law to river conservation problems, the first step is to emphasize that the river is navigable and is therefore owned by the public, up to the ordinary high water mark. Otherwise the landowners or government agencies through whose land the river flows will tend to think the river belongs to them, and local agencies such as the irrigation district will tend to think that the water itself is dedicated to irrigation and power generation.

Having established that the river is public, not private, the second step is to emphasize that it is "held in trust for the public" by the state, subject to the "Public Trust Doctrine." This does not mean that all dams or diversions are unlawful, of course, but it does mean that only those structures that serve valid, important public purposes are lawful.

There are many types of river conservation issues, and your approach should vary to fit the circumstances. But again, use the law as much as possible in an educational way, rather than going to court. If you can get an attorney to help you, so much the better, but with the attorney you still work to get as many people as possible to understand that rivers are held in trust for the public, for navigation, recreation, and fisheries. It takes time for people to shift their beliefs, and again, the chances of a court making a future ruling in your favor will be greatly enhanced if you start laying the educational and political groundwork now.

Now is the time to get started.

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