ON JULY 20TH, 2013 Paul Dart, Jr., 48, and a group of family members rented canoes and paddled a stretch of Missouri’s Meramec River. Five hours into their trip, Dart and three others pulled ashore on a gravel bar. Believing Dart and the other men were trespassing, riverfront property owner James Crocker confronted the group with a 9mm pistol. An argument ensued, tempers escalated, and Crocker shot Dart in the face at point-blank range. Dart died en route to the hospital. The riverside tragedy was a violent boiling-over of a conflict between river users and


property owners that had been simmering for years—and not just on the Meramec. Due to unclear laws, poor communication and cultural divides, waterway conflicts


have festered across the nation. If you paddle outside public lands, you’ve likely experi- enced access issues in some form: a no trespassing sign along the water’s edge, a chain across a portage route, or a creek choked with barbed wire. In North America, hundreds of thousands of miles of river flow through private


lands. Many of those miles are contested. The Meramec murder was shocking for its violence, but not for the nature of the debate. Crocker believed he was defending his property rights. “It’s my property and I was


going to protect it,” Crocker told police. Last spring Crocker was sentenced to 25 years in prison for second-degree murder. According to the Missouri Conservation Department, Crocker owned the land extend-


ing to the center of the riverbed. However, in Missouri, navigable waterways come with an easement that allows the public to use the river, much like a public road or a sidewalk on private property. This easement includes the right to go ashore below the high-water mark, including the gravel bar where Dart was shot. These legal nuances vary state by state and can be hard to grasp by paddlers, property


owners and even law enforcement. Just look at the evidence. In New York, a lawsuit is resolved after five years in court. At the center of the debate


was a canoeist paddling on a creek through private property that connects two parts of a state forest preserve. In North Carolina, landowners stretched a cattle fence topped with razor wire across


the North Fork of the Chattooga, a designated National Wild and Scenic River. The right to float the South Fork of the Saluda River in South Carolina continues to


work its way through the courts. Paddlers have received trespassing citations on New York’s famed Au Sable River, only to have the charges dropped. Disputes have also led to the arrests of fishermen on both the classic John Day and Trask rivers in Oregon. When streams flow through public land, the situation is simple. Unfortunately, most


rivers in North America flow through some private property, where they can become tangled in a legal netherworld, awaiting clear rulings or the settlement of lawsuits.


LEGAL EDDIES The public’s right to use rivers rests on a legal concept called navigability. In the legal sense of the word, the principle is that navigable rivers are akin to roads. Even if the riverbed is privately owned, the water is owned by the state, and the public has a right to use navigable rivers. If that seems simple, it’s not. “There are four types of navigability, and different tests, laws and lots of confusion


[when applying the concept],” says Kevin Colburn, stewardship director of American Whitewater, a national body that promotes conservation and river access. In Oregon, for example, the Division of State Lands asserts that a navigable river is


“a river that was or could have been used to transport people or goods” at the time of Oregon’s statehood in 1859. If that evokes visions of barges plying the Columbia, Mississippi and St. Lawrence,


that’s not the case, says Eric Leaper of the National Association for Rivers. “A small steep river or creek, where a canoe could carry beaver pelts or small sections of logs, is navigable. It could be ankle deep and might not even be kayakable in today’s world. The Supreme Court has said that counts.” Bureaucracy has dragged far behind the upward trend of river use across North Amer-


ica. Of Oregon’s 236 rivers and creeks, navigability rulings have been made on just 12 since statehood. The other 200-plus disputable rivers await navigability studies at an expected cost of over $10 million.


“It’s a terrible, time-consuming and conflict-based way to resolve the is- sue, with personal costs to people.”


46 | Canoeroots


WHO’S IN CHARGE Confusion arises because whether state or federal law applies is open to debate. Leaper contends that a federally-established right of the public to use rivers stems from Supreme Court rulings ranging from 1789 to 1981. “Landowners and their lawyers want you to believe that it’s a


state-by-state issue because they think they have decent chance to win in state court,” says Leaper. Other river advocate groups read the legal landscape in different ways. Since trespassing charges generally fall under local jurisdictions


and navigability rulings are done by states, state courts have end- ed up handling most river access cases. “A state court typically won’t get into federal law unless the river users say that is what their right is based on,” Leaper says. State laws and courts tend to mirror their state’s political culture. Politically conservative states tend to treat property rights as sacrosanct, while states with pro- gressive voters and strong outdoor recreation culture tend to be more sympathetic to paddlers, fishermen and public use. In Canada, the right to access waterways through private land is also complicated. “Anyone can paddle on the waterways. There


FIVE -YEAR-LONG RIVER ACCESS LAWSUIT. PHOTO: SUSAN BIBEAU


PHIL BROWN RECENTLY RESOLVED A


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