Thoughts on River Access Rights
River usage laws
River Access is an ongoing concern for paddlers the world over, and it’s a perennial issue when the desires of landowners conflict with the recreational desire of paddlers. Water rights and river usage laws vary from jurisdiction to jurisdiction and these have a profound effect on what privileges and rights we as paddlers have with regard to the water we seek.
By and large, the law involved revolves around property rights and is tilted generally in favor of the local property owner. The notable exception in most cases is where a body of water is designated ‘in the public trust’- that is, like a public road, the body of water is held by the state for public use- but generally, in order for a public trust designation to be assigned to a body of water, it needs to have a history of use for commerce- think running logs downstream to a mill or barges carrying grain to market and the like. Generally, these rivers aren’t the most desirable whitewater for our purposes- and what this means is that very few of your choice stretches of whitewater are actually designated ‘public’ water.
“…but it’s NAVIGABLE,” you say. Navigability has historically been the test for public trust designation of bodies of water, true, but this sort of challenge has been repudiated in many courts- specifically, a person’s ability to “navigate a body of water in a canoe” (in the words of at least one legal decision) does not make it ‘navigable’ in the legal sense. This limitation is on the books to protect the property rights of landowners, whose interests are seen as more weighty than those of other users, such as fishermen and boaters. After all, if the state designates the river to be a public trust resource, it generally claims the property up to the high water mark… effectively taking their property from them. Most states don’t want to do this.
When all is said and done, the recreational boater enjoys very few ‘rights’ on rivers bounded by private property, but this isn’t the end of the world. Remember, we fall back on our rights as a last resort, folks. What we really want as a first priority is good relations and good understanding with our land-owning neighbors- the idea being that if they don’t mind, they won’t bother with you.
Because much of the law around rivers is rooted in property law, you need to be familiar with the mechanisms landowners will use, once motivated, to get rid of you:
Trespass- a person’s driveway and front door constitute, in legal terms, an *implied* invitation for you to go to their door for a legitimate reason- say, to collect canned goods for a good cause or to canvass for political purposes. This invitation is implied until the landowner has made their wishes explicit- this means that a fence or a ‘no trespassing’ or ‘private property-keep out’ sign (or a verbal directive from the landowner) makes the difference between wandering onto private property and trespassing.
However, if you enter someone’s property in flight of dire peril or in the course of conducting a rescue, trespass doesn’t apply- you’ve got the right to come ashore if the alternative is immediate danger. As a rule, you should never cross private property to get to or from a river unless you’ve obtained permission to do so, implied invitation or not- landowners who might otherwise be happy to grant you explicit permission can get testy if you take them for granted and all it takes is one bad experience to convince many landowners to post signs and build fences.
The reason landowners have the right to control their land, aside from that it’s theirs, is that with ownership and the privileges that accompany it come responsibilities- and another way to express that is in one word- “liability”. One major reason landowners tend to cite for wanting to keep people off their property is their fear of liability for whatever may happen there. Their perception is that if someone trespasses across their property and drowns in the river, they could be sued and lose their property. This perception may motivate them to regard anyone, even you, as a threat to their way of life.
After all, who can say whether your heirs would come and sue them if you died? Do some research to see what liability laws are in your area- in Washington State, the landowner has no duty to see to the safety of people who enter his/her property unless a) they have paid to use the property, or b) there is something hidden, artificial, and dangerous on the property that a reasonable person might not notice. If you know what their duties are, you’ll be able to responsibly discuss land use with the owner. You can get more ideas for paddles at beach pliz.
“Nuisance” statutes- these are the local laws that many jurisdictions invoke in order to keep ‘undesirables’ (who may be just anyone that gets complained about) moving, hopefully away from wherever it is you are. These ordinances vary from locale to locale, but they’ve become effective, if unpleasant for all, methods by which local law enforcement can more or less legally discriminate. So, if you… have a beer after boating (open container violation), change clothes outdoors or pee in the bushes (public indecency) spit, (no spitting ordinances), you may be subject to harassment by the local law enforcement people. 99% of the time the officer involved has something better to do and wouldn’t be there unless someone called in and complained.
What to do in damage control mode
In this sort of legal climate, where the landowner has the upper hand, it’s important that if ever we choose a battle for access rights that we pick the battle carefully and well. This means that if Joe Landowner or the local deputy comes out and challenges you, you’re already in damage control mode, yes?
Here’s what you do.
1) Be polite and respectful, numero uno. Your job is to turn his frown upside-down in a hurry. If you suck at this, your best bet is to do as little harm as possible and return with diplomats later, maybe.
2) Know the law in your state. If possible, know the legal designation of your stretch of water. usually, ‘public right of passage’ is a doctrine valid only on waterways that enjoy a public trust designation, and usually the legal derivation of public right of way is that the public should have right of way for reasons of commerce. If you talk smack because you think it’s your RIGHT and are wrong, you may have motivated a previously disinterested landowner against not only you but other paddlers.
One very keen bit of law in my state, (Washington, USA) is this: landowners are not liable for accidents on their property if they let the public use it for free, unless the accident was caused by something the landowner has a reasonable duty to warn you about (like a hidden tiger trap or something that’s unnatural, latent, and hazardous). This is a good thing to tell landowners here- they enjoy significant immunity from liability and often that’s what motivates them to exclude people.
3) NEVER argue with someone who’s already mad. Discuss if they’re receptive to it, but if you’re ordered to leave their property, do your best to comply immediately, even if you think you’re right. Remember, the only way to win on this is to pick your battles, don’t ever let them be thrust upon you.
4) If you meet a landowner on or near your take-out/put-in, make that friendly contact. Be a good ambassador. Do ask if where you’re parked is cool, but if they don’t bring up your right to do the river, you probably don’t need to bring it up either. Make sure your contact is a positive one, and the subject may never come up.
5) In places where you have an impact or presence, like where you park or change, be invisible. Park up the road a ways. Don’t block driveways. Don’t pee in their prize flowers or get naked in front of their daughters. These are common sense things, and the bottom line is to be courteous. Remember, it’s complaints that lead to rules, arguments, the calling of cops, the sorting out of ‘rights’, and the like.
6) If it’s marked ‘no trespassing’, don’t… unless in the legal opinion of the local law enforcement folks (who will be the ones you’ll talk to if there’s a complaint) it’s okay.
Above all, don’t be an idiot, be a diplomat. We have very few iron-clad rights in the world of whitewater kayaking- much of our choice water is not subject to ‘right of way’ as a doctrine and as often as not, it’s idiots that mistakenly try to assert their ‘rights’ that screw things up for the rest of us. Until we own put-ins and take-outs and all the river frontage in between, diplomacy is our finest tool.
After all, we’re incredibly low-impact users of the river. If we park considerately, choose where we walk around on shore responsibly and considerately, and aren’t a major pain to have around, we’re not a burden and there’s no reason to worry about us floating by. If we’re pleasant or at least not irritating to have around, the question of what our rights are should never come up. If we’re strident, inconsiderate, or annoying… you may see motivated landowners doing what they can to keep you away… and people, even though our interests are legitimate, the laws of this land strongly protect the interests of land owners.