THE PUBLIC’S RIGHT TO NAVIGATE WATERWAYS IN CALIFORNIA

 

© 2003 Ronald W. Rogers, printed with permission by American Whitewater

 

The purpose of this summary is to inform the readers, especially boaters, riparian landowners, and government officials, about the public’s right to legally navigate, use, and enjoy the creeks and rivers of California, as is guaranteed by Federal and State law.  It is also the intent of this summary to prevent misunderstandings of the law and to reduce conflict, animosity, and expensive legal proceedings relating to the interrelated issues of riparian private property trespass, restrictive municipal regulation, and recreational small-craft navigation on California’s inland waterways.

 

CONTENTS

Introduction

I.    Federal And California Standards For Defining Navigability

Federal Standard:  Equal Footing Doctrine and the Navigability for Title Test

Federal Standard:  U.S. Constitution’s Commerce Clause Test

California Standard:  State Constitutional Right, Recreational Standard, and Public Trust Easements

II.    High Watermark Defined

III.   Access To and Trespass Along Waterways

IV.  Mexican Land Grants:  A Partial Exception to Public Navigation Rights in California

IV.  California’s Interest in Retention and Regulation of its Navigable Waterways

V.   California’s Interest in Increasing Public Access to Navigable Waterways

VI.  Legal Remedies to Unlawful Obstruction of Navigation

 

 

Introduction

 

Outdoor recreation is an important aspect in the lives of most Californians and of many vacationing visitors to the state.  The sport of floating and paddling streams and rivers in small watercraft such as rafts, canoes, and kayaks is extremely popular and rapidly growing due to California’s large population, diverse tourism industry, and an abundance of scenic and challenging waterways.  These waterways vary from the gentle, slow-moving, large-volume Sacramento and San Joaquin Rivers of the Central Valley, to the many steep, rocky, fast-flowing creeks of the Sierra Nevada mountains.  Many of these waterways have been vital to the historic settlement and the ongoing economic development of the state.  Navigable waterways in California are legally considered public highways of transportation, as many of them have been used as such since the Gold Rush days of the mid-1800s.  A California appellate court has stated, “the interest of the public in the waters and bed of a navigable river is analogous to that of the public in a public road.  It has the right of passage over the stream as it had over the road.” (Bohn v. Albertson (1951) 107 Cal.App.2d 738, 756 [238 P.2d 128].)

 

Just as the owners of lands that are crossed by public highways could expect the public to freely use said roads, so should riparian land owners, who live next to navigable waterways, expect the public to lawfully use those waterways.

 

The United State Supreme Court has ruled:  “Whether a stream is navigable in law depends upon whether it is navigable in fact.” (State of Arizona v. State of California (1931) 283 U.S. 423, 452 [75 L.Ed. 1154, 51 S.Ct. 522].)  Navigability depends on actual use, or the mere susceptibility of use, of a particular waterway for transportation or commerce.  In California, such uses have evolved over time to now legally include transportation solely by small water craft used for recreational purposes, either for commercial profit or for personal pleasure.

 

Seven aspects of the law of inland waterway navigability in California will be discussed in this summary.  Section I summarizes the different, but closely interrelated, Federal and State standards for determining navigability.  Section II discusses the concept of “high water mark” and how it can be variously defined.  Section III discusses public access to and trespass along navigable waterways.  Section IV analyzes a common partial exception to the right of navigation in California due to a pre-statehood international treaty.  Section V describes the State of California’s interest in the retention of these waterways and the limits of government regulation.  Section VI describes California’s interest in increasing public access to navigable waterways.  Finally, Section VII briefly identifies some different avenues of legal recourse available to the public in the event that they are illegally prevented from lawfully using navigable waterways.

 

I.  Federal And California Standards For Defining Navigability

 

There are three different, interrelated, and partially overlapping legal standards for determining use of navigable waterways by the public in California.  These are:  the Federal standard defining navigable waterways for the purpose of establishing state title to the riverbed under the “equal footing” doctrine; the Federal standard defining navigable waters of the United States subject to the Commerce Clause of the United States Constitution; and California’s more liberal State Constitutional standard establishing public trust easements and navigation servitude along its waterways.  The evolution of these standards, and their applicability in California, have been previously reviewed in great depth 18 years ago (See:  Frank, Richard M., Forever Free: Navigability, Inland Waterways, And The Expanding Public Interest (1983) 16 U.C. Davis L.Rev. 579).  If any of these three legal standards are met, a waterway is in fact navigable and can be legally floated by small watercraft, including kayaks, canoes, and rafts, and the public may use the underlying river bed below the mean high watermark for navigation related purposes.

 

Federal Standard:  Equal Footing Doctrine and the Navigability for Title Test

 

The federal navigability for title test is most often used to determine a state’s ownership of the bed of a waterway and is based on the “equal footing doctrine.”  State ownership of land underlying navigable waters per the equal footing doctrine has recently been summarized in the case of Idaho et al. v. Coeur D’Alene Tribe of Idaho et al., (1996) 521 U.S. 261 [38 L.Ed.2d 438, 117 S.Ct. 2028].  Therein it states that lands underlying navigable waters have historically been considered “sovereign lands” and that State ownership of them has been “considered an essential attribute of sovereignty.” (Utah Div. of State Lands v. United States, (1987) 482 U.S. 193, 195 [96 L.Ed.2d 162, 107 S.Ct. 2318].)  Each of the original Thirteen Colonies, at the time of their independence, “became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use” (Martin v. Lessee of Waddell (1842) 41 U.S.(16 Pet.) 367, 410 [10 L.Ed. 997].)  Then, in Lessee of Pollard v. Hagan, (1845) 44 U.S. (3 How.) 212, 228-229 [11 L.Ed. 565], the Court concluded that states entering the union after 1789 did so on an “equal footing” with the original States and so have similar ownership over these “sovereign lands.” Id., at 228-229.  A State’s title to these sovereign lands arises from the equal footing doctrine and is “conferred  not by Congress but by the Constitution itself.” (Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., (1977) 429 U.S. 363, 374 [50 L.Ed.2d 550, 97 S.Ct. 582]; Idaho et al. v. Coeur D’Alene Tribe of Idaho, 521 U.S. at 283.)  In 1953, Congress confirmed States’ equal footing rights to submerged lands beneath inland navigable waters when it enacted the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §1301 et seq. which “confirmed” and “established” States’ title to and interest in “lands beneath navigable waters within the boundaries of the respective States. § 1311(a)” (United States v. Alaska (1996) 521 U.S. 1, 5-6 [138 L.Ed.2d 231, 117 S.Ct. 1888].)

 

The federal title test depends on a waterway being susceptible to navigation as a highway for public passage or commerce in its ordinary and natural condition at the time of statehood.  “Those rivers must be regarded as public navigable rivers in law which are navigable in fact.  And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”  (Oregon v. Riverfront Protection Ass’n (9^th Cir.1982) 672 F.2d 792, 794; The Daniel Ball (1871) 77 U.S. (10 Wall.) 557, 563 [19 L.Ed. 999].)  Although the river must be navigable at the time of statehood, this only means that, at the time of statehood, regardless of the actual use or lack of use of the river, the river must have been susceptible to use as a highway for transportation and commerce. (United States v. Utah (1931) 283 U.S. 64, 83 [51 S.Ct. 438, 440, 75 L.Ed. 844]; In re: The Montello (1874) 87 U.S. (20 Wall.) 430 [22 L.Ed. 391].)  The present commercial use of a waterway by canoes or small rafts for guided fishing and sightseeing provides conclusive evidence of a waterway’s susceptibility for commerce at statehood.  (State of Alaska v. Ahtna, Inc. (9^th Cir. 1989) 891 F.2d 1401, 1405, cert. denied 110 U.S. 1949).  However, even a “lack of commercial traffic is not a bar to navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.” (United States v. Appalachian Electric Power Co. (1940) 311 U.S. 377, 416 [85 L.Ed. 243, 257].)  Commerce, or making money from the transportation on the waterway, is not required for the federal title test.  The “gist” of this federal test is that the waterway is or can be used as a “highway” and “it is that feature that distinguishes between navigability and non-navigability.” (Utah v. United States (1971) 403 U.S. 9, 11 [29 L.Ed.2d 279, 91 S.Ct. 1775].)  A river’s use need not be without difficulty, extensive, or long and continuous. (Oregon v. Riverfront Protection Ass’n, supra, 672 F.2d at 795; United States v. Utah, supra, 283 U.S. at 82 [51 S.Ct. at 440].)  The presence of rapids, waterfalls and sandbars which may require portaging around does not preclude navigability because the fact that navigation may be difficult and at places interrupted does not render a stream un-navigable.  The character of a river as a public highway is not determined by the frequency of its use, but by its capacity for being used.  Nor is it essential that the stream should be capable of being navigated at all seasons of the year.  (Economy Light & Power Co. v. U.S. (1921) 256 U.S. 113, 122 [65 L.Ed. 847, 850].)

 

As stated above, the use of a river for commerce at the time of statehood is not required, only its susceptibility for use as a highway in its ordinary condition is relevant.  New commercial uses or uses as a highway for transportation which have been developed after statehood can also establish this susceptibility.  A state “is not to be denied title to the beds of such of its rivers as were navigable in fact at the time of the admission of the state either because the location of the rivers and the circumstances of the exploration and settlement of the country through which they flowed had made recourse to navigation a late adventure or because commercial utilization on a large scale awaits future demands.  The question remains one of fact as to the capacity of the rivers in their ordinary condition to meet the needs of commerce as these may arise in connection with the growth of the population, the multiplication of activities and the development of natural resources.  And this capacity may be shown by physical characteristics and experimentation as well as by the uses to which the streams have been put.” (United States v. Utah (1931) 283 U.S. 64, 83 [75 L.Ed. 844, 853].)  Thus stated, a court need not have to even consider the types of watercraft used customary at statehood, since experimentation and later uses can show commerce at some later date, using watercraft customary in use at that later time.  Only the ordinary condition of the waterway at statehood must be considered.  Even if the actual use has only been more of a private nature than of a public, commercial sort, this cannot be regarded as controlling when the rivers are shown at some time to be capable of commercial use.  (United States v. Utah at 82, L.Ed at 853.)

 

Two separate arguments can be made for the case of navigability for state title based exclusively on the use of whitewater canoes, kayaks or inflatable rafts.  The first is that watercraft customarily used at the time of statehood included wood and animal skin canoes that were used throughout many parts of the United States in the 1600s through the mid 1800s. (Economy Light & Power Co. v. U.S. (1921) 256 U.S. 113, 117 [65 L.Ed. 847, 852]; In re: The Montello (1874) 87 U.S. (20 Wall.) 430 [22 L.Ed. 391, 392].)  These watercraft may or may not have been used on the particular river in question at the time of statehood, but their use has developed later in the form of modern fiberglass or plastic boats used for transportation as per United States v. Utah (1931). 

 

The second argument is that United States v. Utah (1931) does not require one to look at the watercraft customarily used at statehood but rather those in use at the time that the question of navigability arises because “experimentation” denotes uses not yet invented or developed at the time of statehood.  Thus, even if a waterway was not used for commercial rafting purposes at the time of statehood, this later contemporary use, or even later private rafting use showing the capacity for this type of commercial use, could establish navigability because it shows a “future demand” and the “development of natural resources” (demand of the public to use the recreational resource of the waterway) using a new method or “experimentation” of commerce (e.g. commercial rafting).  The Ahtna court clearly stated this interpretation in defining modern-day commercial rafting as commercial navigation on the Gulkana River in Alaska.  Pre-Statehood use of the Gulkana was by fiberglass and aluminum watercraft, carrying loads up to 1,000 lbs.  Contemporary use is with the same types of crafts, along with motorized canoes, double ended paddle canoes, and inflatable rafts with load capacity of up to 2,000 lbs.  “The watercraft customary at statehood could have at least supported commercial activity of the type carried today, with minor modifications due to a more limited load capacity and rudimentary technology.” (State of Alaska v. Ahtna, Inc. (9^th Cir. 1989) 891 F.2d 1401, 1405,  cert. denied 110 U.S. 1949)   The “experimentation as well as by the uses to which the streams have been put” mentioned in United States v. Utah (1931) indicates that future forms of transportation, that did not exist at the time of statehood, can be considered as showing that the waterway was nevertheless susceptible to navigation.  Thus, the use of animal skin canoes, flat bottom, wooden skiffs, and dories for transportation of people and goods for commerce and exploration during the 1700s and 1800s have been replaced by today’s plastic, whitewater canoes and inflatable rubber rafts used to transport people for commercial and non-commercial recreation.

 

Federal Standard:  U.S. Constitution’s Commerce Clause Test

 

The federal commerce clause test for navigability arises from the commerce clause of the United States Constitution:  “The Congress shall have power ..... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (U.S. Const. art. I sec. 8, cl. 3).  Navigation across state lines was first deemed an implicit concern of the commerce clause by the case of Gibbons v. Ogden (1824) 22 U.S. (9 Wheat.) 1.  Federal jurisdiction over navigable waterways has been asserted through various statutes, such as the Rivers and Harbors Act of 1899 (33 U.S.C. 401-406) and the Federal Power Act (16 U.S.C. 791 et seq.)  The primary case defining the standards for determining navigability under the commerce clause test is United States v. Appalachian Electric Power Co. (1940) 311 U.S. 377 [61 S.Ct. 291, 85 L.Ed. 243].  Therein, the Supreme Court described three ways that navigability may be established:  (1) present use or suitability for use; (2) suitability for future use with reasonable improvements; or (3) past use or suitability for past use. (Gollatte v. Harrell (1989) 731 F.Supp. 453, 458; Appalachian Electric Power, supra, 311 U.S. at 405-408.)

 

The commerce clause test of navigability roughly parallels the federal title test, with the following important distinctions.  First, reasonable improvements to the waterway to facilitate travel may be considered (In re: The Montello (1874) 87 U.S. (20 Wall.)  430, 415 [22 L.Ed. 391].); and second, navigability for commerce clause purposes can develop after statehood with waterway improvements.  (Appalachian Electric Power, supra, 311 U.S. at 408).  Lastly, unlike the state title test, under the commerce clause test a waterway must serve as a link in interstate or foreign commerce.  (Oregon v. Riverfront Protection Ass’n (9^th Cir.1982) 672 F.2d 792, 794 n.1); Utah v. United States (1971) 403 U.S. 9, 10 [91 S.Ct. 1775, 29 L.Ed.2d. 279].)  This link to other states and countries may be via uniting with other connecting waterways.  (Consolidated Hydro. Inc. v. Federal Energy Regulatory Commission (D.C. Cir. 1992) 968 F.2d 1258,1262; The Montello (1871) 78 U.S. (11 Wall.) 411, 415, [20 L.Ed. 191].)  Navigation may include the necessity to portage around interruptions such as sand bars, rapids, 100-foot waterfalls, and artificial obstructions such as hydroelectric projects (Consolidated Hydro at 1262; State of New York v. Federal Energy Regulatory Commission (2^nd Cir.1992) 954 F.2d 56, 60; Sawczyk v. United States Coast Guard (W.D.N.Y. 1980) 499 Fed.Sup1034, 1039-1040; Montana Power Co. v. Federal Power Commission (D.C. Cir.1950) 185 F.2d 491, 494, cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683; Appalachian Electric Power, supra, 311 U.S. at 408, 61 S.Ct. at 299).The Daniel Ball (1871) 77 U.S. (10 Wall.) 557, 563 [19 L.Ed. 999].) 

 

The extent and manner of use of a navigable waterway is not important as long as it has the capacity for use as an actual avenue of transportation and commerce. (United States v. Utah (1931) 283 U.S. 64, 82-83 [75 L.Ed. 844, 853; 51 S.Ct. 438].  However, susceptibility of use as a highway for commerce should not be confined to “exceptional conditions or short periods of temporary high water.” (Gollatte v. Harrell (1989) 731 F.Supp. 453, 459; United States v. Utah (1931) 283 U.S. 64, 87 [75 L.Ed. 844; 51 S.Ct. 438, 445].)  The condition of the waterway should be such as to ordinarily assure regularity and predictability of usage.  (Gollatte v. Harrell, supra at 459.)  “The mere fact that logs, poles, and rafts are floated down a steam occasionally and in times of high water does not make it a navigable river.”  (United States v. Rio Grande Dam & Irrigation Co. (1899) 174 U.S. 690, 698, [19 S.Ct. 770, 773, 43 L.Ed. 1136].)  Also, “the mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another, ... is [not] sufficient to constitute a navigable water of the United States.”  (Leovy v. United States (1900) 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914].)

 

More recent decisions on the question of licensing of hydroelectric facilities on waterways navigable under the commerce clause test have held that the historic floating of 4.5-foot long log “shingle bolts” down a waterway has established evidence of  navigability for commerce questions (Puget Sound Power & Light Co. v. Federal Energy Regulatory Commission (9^th Cir. 1981) 644 F.2d. 785, cert. denied, 454 U.S. 1053 [102 S.Ct. 596, 70 L.Ed.2d 588]), as well as historic and modern-day uses of canoes for either commerce or pleasure. (Consolidated Hydro, supra, 968 F.2d at 1261; State of New York v. Federal Energy Regulatory Commission, supra, 954 F.2d 56 at 61-62; Puget Sound at 788.)  In fact, one of the earliest navigability for commerce cases cited as an example the “extensive trade” conducted on navigable rivers in the mid-west during the 1700s “that were very small and would only float canoes” and that often required extensive portaging. (In re: The Montello (1874) 87 U.S. (20 Wall.)  430 [22 L.Ed. 391, 392, 394].).

 

Previous determinations as to which types of small watercraft usage can qualify a waterway as navigable are now so thoroughly intertwined that all these determinations now apparently apply to both federal title and commerce clause questions.  The case of  State of New York v. FERC, supra, 954 F.2d. 56, 60, a commerce clause question relying on canoe use, cited both State of Alaska v. Ahtna, Inc., supra, 891 F.2d 1401, a title case where inflatable rubber raft use is accepted as evidence (Ahtna at 1405), and United States v. Utah, supra, 283 U.S. 64, another case determining state title which validated the use of rowboats for “pleasure” (Utah at 82).  The court in Ahtna, supra at 1405, relied on United States v. Appalachian Electric Power Co., supra, 311 U.S. 377, a commerce clause question, to establish title to the bed of the Gulkana River to the State of Alaska.  The private use of canoes validated in Puget Sound Power & Light Co. v. Federal Energy Regulatory Commission, supra, 644 F.2d. 785, 788, a commerce clause FERC licensing case, demonstrated “the availability of the stream for the simpler types of commercial navigation” cited in both the commerce clause related case of  Appalachian Electric, supra, at 416 and the state title question examined in Utah, supra, at 82.  From the above decisions it is apparent that if a waterway is found to be capable of interstate usage for commercial rafting at any time in history, or connects to a waterway with that capacity, that it would be deemed navigable under the commerce clause standard.

 

Waterways that are found not navigable under the federal title test may nevertheless qualify under the federal commerce clause test for navigability.  The Commerce Clause of the Constitution gives the Federal Government a dominant navigational servitude which applies to all holders of riparian and riverbed interests. (U.S. v. Cherokee Nation of Oklahoma, (1987) 480 U.S. 700, 704-706 [107 S.Ct 1487, 94 L.Ed.2d 704].)  By virtue of its commerce power, the United States retains a navigational easement in the navigable waters for the benefit of the public, regardless of who owns the riverbed. (State of Montana v. United States (1981) 450 U.S. 544, 555 [67 L.Ed.2d 493, 101 S.Ct.1245]; Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., (1977) 429 U.S. 363, 375-376 [50 L.Ed.2d 550, 97 S.Ct. 582].)  Thus, private ownership of property in the beds of navigable streams is subject to the exercise of the public right of navigation (United States v. Cress (1917) 243 U.S. 316, 320), and title to the banks and bed of a navigable stream to the high water mark are subject to a “navigational servitude” which is the public right of navigation for the use of the people at large. (U.S. v. 412.715 Acres of Land, Contra County, Cal. (D.C. 1944) 53 F.Supp. 143.) 

 

Likewise, a waterway found not to be navigable for commerce clause purposes can be navigable for state title purposes.  “(I)f a river is not of itself a highway for commerce with other States or foreign countries, or does not form such a highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, but only a navigable water of the State...” (Sierra Pacific Power Company v. Federal Energy Regulatory Commission (9^th Cir. 1982) 681 F.2d 1134,1138; The Montello (1870) 78 U.S. (11 Wall.)  411, 415 [20 L.Ed. 191].)

 

Upon finding that a waterway is navigable under commerce clause standards, there is no Fifth Amendment (of the U.S. Constitution) taking involved by the finding since “there is no private property in the flow of a navigable stream” and it has “no assessable value to the riparian owner” (United States v. Appalachian Electric Power Co. (1940) 311 U.S. 377, 427 [61 S.Ct. 291, 85 L.Ed. 243].)  Likewise, a finding of state ownership to the bed of a navigable waterway can not be construed as a private property taking because under the equal footing doctrine, the land was never in private ownership, but rather it passed from the Federal Government directly to the state upon the granting of statehood.

 

It should be noted that questions of admiralty and maritime jurisdiction have produced different standards from those used for determination of navigability for commerce purposes (Adams v. Montana Power Co. (1975) 528 F.2d 437, 440).  However, the Supreme Court has adopted The Daniel Ball admiralty definition for cases concerning “navigability for title” cases. (State of Oregon v. Riverfront Protection Association (1982) 672 F.2d 792, 794).

 

California Standard:  State Constitutional Right, Recreational Standard, and Public Trust Easements

 

The U.S. Supreme Court has held that public rights are determined in each state by the applicable state test of navigable waters. (Brewer-Elliott Oil & Gas Company v. United States (1922) 260 U.S. 77, 89; Donnelly v. United States (1913) 228 U.S. 243, 262.)  Even for title of bed  questions, where there is no conflict with a federal grant, the states need not use a federal definition. (Brewer-Elliott Oil & Gas Co. v. United States (1922) 260 U.S. 77, 89 [67 L.Ed. 140, 43 S.Ct. 60].)  The federal test of navigation does not preclude a more liberal (state) test establishing a right of public passage whenever a stream is physically navigable by small craft.  (People ex rel. Baker v. Mack (3d Dist.1971) 19 Cal.App.3d 1040, 1051 [97 Cal.Rptr. 448].)  The Mack court adopted what is essentially a “recreational boating test of navigability”. (Hitching v. Del Rio Woods Recreation & Parks District (1^st Dist. 1976) 55 Cal.App.3d 560, 568 [127 Cal.Rptr. 830].)

 

California laws recognize the public’s right to recreational navigation on the inland waters of the State, regardless of whether the underlying bed is in private or public ownership. “The public's right of access to navigable streams is a constitutional right.” (People ex rel. Younger v. County of El Dorado (3d Dist. 1979) 96 Cal.App.3d 403, 406 [157 Cal.Rptr. 815, 817]) citing California Const., art. X, s. 4 and Marks v. Whitney ((1971) 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374.)  The California Constitution states:  “ No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” (Cal. Const., art. X, s. 4.)  Case law applying this constitutional provision confirms the public right of passage, in a lawful manner, over waters usable only for small-craft recreational boating, irrespective of the ownership of the water bed. (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 258 [193 Cal.Rptr. 336]; Lechuza Villas West v. California Coastal Commission (1997) 60 Cal.App.4th 218, 244 [70 Cal.Rptr.2d 399], cert. denied 525 U.S. 868.) 

 

“Members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft.”  (People ex rel. Baker v. Mack (3d Dist.1971) 19 Cal.App.3d 1040, 1050 [97 Cal.Rptr. 448, 454].)  This includes waterways capable of being navigated only by kayak. (People v. Sweetser (5^th Dist. 1977) 72 Cal.App.3d 278, 283 [140 Cal.Rptr. 82].)  Commercial use of a waterway is not required as “a waterway usable only for pleasure boating is nevertheless a navigable waterway and protected by the public trust.”  (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435 n.17 [189 Cal.Rptr. 346, 658 P.2d 709].)  citing People ex rel. Younger v. County of El Dorado (3d Dist. 1979) 96 Cal.App.3d 403 [157 Cal.Rptr. 815, 817] and  People ex rel. Baker v. Mack (3d Dist.1971) 19 Cal.App.3d 1040 [97 Cal.Rptr. 448, 454].) 

 

The fact that the County and the State Board of Equalization tax the bed of  a river is of no significance on the question of the river's navigability. (People ex rel. Baker v. Mack (3d Dist.1971) 19 Cal.App.3d 1040, 1049 [97 Cal.Rptr. 448].)  This principal of unhindered navigation over private property dates back to early English law, where non-tidal waterways large enough to accommodate boats were considered public highways and the public retained the right of passage, but title to the underlying land was typically held by a private party. (Idaho et al. v. Coeur D’Alene Tribe of Idaho et al. (1997) 521 U.S. 261, 285).

 

Navigability for the purposes of a public navigational easement need not be evaluated as of the date of statehood; it may later arise.  (Hitching v. Del Rio Woods Recreation & Parks District (1^st Dist. 1976) 55 Cal.App.3d 560, 568 [127 Cal.Rptr. 830]; Bohn v. Albertson (1951) 107 Cal.App.2d 738, 742-743 [238 P.2d 128].)

 

There are limits to what waterways can be considered legally navigable under the State public trust and navigational easement standards.  Though a waterway need not be floatable year-round for it to be navigable, but it must be for more than a few days in the rainy season and more than infrequent or brief periods of high or flood waters (Hitching v. Del Rio Woods Recreation & Parks District (1^st Dist. 1976) 55 Cal.App.3d 560, 569-570 [127 Cal.Rptr. 830].)  However, the public may use long-term flood and overflow waters if they are navigable. (Bohn v. Albertson (1951) 107 Cal.App.2d 738).  Lands flooded by navigable waters are subject to the public’s right to fish and pass over them. (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 546 [162 Cal. Rptr. 327, 606P.2d 362].)  A constructed drainage or irrigation ditch, so shallow and filled with vegetation that a light skiff can not be rowed down it, is not a navigable waterway. (Bolsa Land Co. v. Burdick (1907) 151 Cal. 254, 259-263 [90 P. 532].)

 

California acquired title to navigable waterways and tidelands by virtue of its sovereignty when admitted to the Union in 1850. (City of Los Angeles v. Venice Peninsula Properties (1988) 205 Cal.App.3d 1522, 1530 [253 Cal.Rptr. 331];  citing Borax, Ltd. v. Los Angeles (1935) 296 U.S.10 [80 L.Ed. 9, 56 S.Ct. 23].)  State title extended up to the mean high water mark. (State v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 222 [625 P.2d 239, 172 Cal.Rptr. 696], cert. denied, 454 U.S. 865).  In 1872, California Civil Code Section 830 was established which conferred to the owners of land along navigable inland waters title down to the low water mark.  However, the State retained ownership of a  public trust interest in these lands up to the high water mark.  (Lyon at 226-232; State v. Superior Court (Fogerty) (1981) 29 Cal. 3d. 240 [625 P.2d, 256, 172 Cal.Rptr. 713] cert. denied, 454 U.S. 865).

 

The State of California holds title to the navigable waterways and the land beneath them within its borders as a trustee for the public. (Gaf v. San Diego Unified Port Dist. (1992) 7 Cal.App.4th 1224, 1228 [9 Cal.Rptr2d 530]; Colberg Inc. v. State of California ex rel. Dept. of Public Wks.  (1967) 67 Cal.2d 408, 416 [62 Cal.Rptr. 401, 432 P.2d 3].)  Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. (Marks v. Whitney (1971) 6 Cal.3d 251, 259 [491 P.2d 374, 380, 98 Cal.Rptr. 790, 796].); Bohn v. Albertson (1951) 107 Cal.App.2d 738, [238 P.2d 128]; Forestier v. Johnson (1912) 164 Cal. 24, [127 P. 156].)   “In this state the public has a right to use for boating, swimming, fishing, hunting and all other recreation purposes, any part of a river that can be navigated by small recreational or pleasure boats, even though the river bed is privately owned.” (People v. Sweetser (5^th Dist. 1977) 72 Cal.App.3d 278, 283 [140 Cal.Rptr. 82].)

           

“It is well settled that the state has fee title to such portion of any navigable river within its boundaries as lies beneath the low-water mark.  It is equally well established that although abutting landowners own the land between high- and low-water marks, their ownership is subject to a public trust for purposes such as navigation, fishing, and recreation.” (Bess v. County of Humboldt (1992) 3 Cal.App.4^th 1544, 1549 [5 Cal.Rptr 2d 399]; State v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 226-233 [625 P.2d 239, 172 Cal.Rptr. 696], cert. denied, 454 U.S. 865).  The public clearly has the right to use the bed of a waterway navigable under State standards to its high mark even at times of low water.  The permissible range of public uses is broader than navigation, commerce, and fishing from the water and includes the right to hunt, bathe or swim from the shore below the mean high water mark.  The public’s rights are not confined to the waters alone.  Lyon, at 229-230.

 

Regardless of the ownership of the bed of a navigable waterway, be it State property or privately owned, the public has the right to use the bed of the waterway up to the mean high water mark for purposes such as navigation, fishing, and recreation.

 

II.  High Watermark Defined

 

Unfortunately, there is no one clear, universal standard adopted to define where the high water mark is for navigation rights and public trust easements on inland waterways.  Although the Supreme Court has long regarded the “ordinary high water mark” as the exclusive factor in establishing the limits of the government’s navigational servitude, it has never precisely defined the term (Gollatte v. Harrell (1989) 731 F. Supp. 453, 461), and has left it up to the lower courts to define the term “as a concept which denotes the point at which the bed of a lake or river ceased and the shore or fast lands begins, a point which may be capable of proof by a variety of methods depending upon the facts and circumstances of the particular case.” (United States v. Cameron (1978) 466 F. Supp. 1099, 1111-1112).  Guidance given by the Supreme Court states that the high watermark is defined as the place where the riverbed ends and the riverbank begins. (Howard v. Ingersoll (1851) 54 U.S. 381 [13 L.Ed. 89].)  The low-water mark is the point to which a river or other body of water recedes, under ordinary conditions, at its lowest stage.  High-water mark is the line which the water impresses on the soil by covering it for sufficient periods to deprive it of vegetation.  The shore is the space between the margin of the water at its lowest stage and the banks at high-water mark. (Alabama v. Georgia (1859) 64 U.S. 505.)  The bed of a river has been defined as “that portion of its soil which is alternatively covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad (1941) 312 U.S. 592, 596 [85 L.Ed 1064, 1070, 61 S.Ct. 772].)  The bed of a river also includes “all of the area which is kept practically bare of vegetation by the wash of the waters of the river from year to year in their onward course, although parts of it left dry for months at a time; and we exclude the lateral valleys which have the characteristics of relatively fast land, and usually are covered by upland grasses and vegetation, although temporarily overflowed in exceptional instances when the river is at flood.” (Oklahoma v. Texas (1923) 260 U.S. 606, 632 [67 L.Ed. 428, 43 S.Ct. 221, 225].)  Lower Federal Courts have resorted to a variety of definitions, many of them enumerated in Gollatte, supra at 461, citing Cameron, supra at 1111-1112.  These are:  ordinary high water mark can be variously defined-e.g., as the line where the water stands sufficiently long to destroy vegetation below it (Goose Creek Hunting Club, Inc. v. United States (1975) 518 F.2d 579, 583, 207 Ct.Cl. 323; Kelley’s Creek and Northwestern R.R. v. United States (1943) 100 Ct.Cl. 396, 406); or, as the line below which the soil is so usually covered by water that it is wrested from vegetation and its value for agricultural purposes destroyed (Harrison v. Fite (8^th Cir. 1906) 148 F. 781, 783); or, as the line below which the waters have so visibly asserted their dominion that terrestrial plant life ceases to grow and, therefore, the value for agricultural purposes is destroyed, “a clear line, as shown by erosion, and other easily recognized characteristics such as shelving, change in the character of the soil, destruction of terrestrial vegetation, and litter” (Borough of Ford City v. United States (3^rd Cir. 1965) 345 F.2d 645, 648, cert denied, 382 U.S. 902, 86 S.Ct.  236, 15 L.Ed.2d 156).  What these cases show, is that there is a wide variety of acceptable methods available to the courts depending on the particular facts and circumstances of each case.  Although vegetation analysis is the method most often employed, there is no logical reason why water stage and elevation data can not be used, as this data may provide the most suitable method for determining the ordinary high water mark. (Cameron, supra at 1112).

 

In California, the courts have stated:  “[T]he bed of a non-navigable river must be deemed bounded by the permanent banks which confine the waters in their course at their highest level.  The banks of a river are the boundaries which confine the water to its channel throughout the entire width when the stream is carrying its maximum quantity of water.”(Lyon v. Western Title Insurance Co.  (1986) 178 Cal.App.3d 1191 [224 Cal.Rptr. 385]; Mammoth Gold Dredging Co. v. Forbes (1940) 39 Cal.App.2d 739, 751 [104 P.2d 131].) 

 

In California, the term “high water mark” means the “ordinary” high water mark (Ross v.  Burkhard Inv. Co. (1928) 90 Cal. App. 201 [230 P. 982]) and “ordinary high watermark” is defined as normal high water, being the average level of water attained by river in its annual season of flow. (People v. Ward Redwood (1964) 225 Cal.App.2d. 385, 390 [37 Cal.Rptr. 397].)  The ordinary maximum flow of water in a river during the wet season of each year may not be deemed to be mere “flood” or “storm” waters.  The average level of the water attained by such a river in its annual seasonal flow establishes its high water mark. (Mammoth Gold Dredging Co. v. Forbes (1940) 39 Cal.App.2d 739, 752 [104 P.2d 131].)

 

The high water mark has also been defined as a “place where the riverbed ends and the riverbank begins” and “involves examining the river bank to find the highest point where the water’s flows have prevented the growth of vegetation.” (Bess v. County of Humboldt (1992) 3 Cal.App. 4^th 1544, 1549 [5 Cal.Rptr.2d 399].)  Certainly this definition can not be interpreted to mean the prevention of growth of any vegetation.  Along creeks and rivers, aquatic, emergent aquatic, and some riparian-obligate vegetation, by their very nature, require or tolerate the existence of continuous, seasonal, and periodic surface water flooding, respectively.  (Ref. High Water Mark- The line which the water impresses on the soil by covering it for sufficient periods to deprive it of upland vegetation.  Bureau of Land Management Glossary of Cadastral Terms).  Hence, the upland vegetation that must be examined is that which can not survive because of constant or seasonal inundation.  In the absence of significant changes in natural flows, such as those produced by an upstream dam or water diversion, the absence of certain species could indicate the zone above the normal high water mark. 

 

It is illuminative to look at California’s Harbors and Navigation Code Section 100 for its definition of normal high water mark.  It is based not on vegetation change, but on average annual high water levels.

 

100.  Navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation.  However, the floodwaters of any navigable river, stream, slough, or other watercourse while temporarily flowing above the normal high-water mark over public or private lands outside any established banks of such river, stream, slough, or other watercourse are not navigable waters and nothing in this section shall be construed as permitting trespass on any such lands.  For the purposes of this section, "floodwaters" refers to that elevation of water which occurs at extraordinary times of flood and does not mean the water elevation of ordinary annual or recurring high waters resulting from normal runoff.

 

Using the water stage and elevation data criteria to determine mean or ordinary high water mark cited in Cameron, supra may prove to be the most reliable and scientifically definitive method used.  The United States Geological Survey-Water Resource Division and the California Department of Water Resources have been measuring stream flows in California for over 100 years.  Using this collected data and various computational and statistical methods, it is relatively easy to calculate the “one-year flood” level along a waterway to estimate the level of the average high water during the year.  This has been done for many of the waterways in the state.  At least two widely used and accepted hydrology definitions could be used to describe and calculate the ordinary high watermark.  These are:  “Mean Annual Flood - The average of all the annual flood stages or discharges of record. It may be estimated by regionalization, correlation, or any other process that can furnish a better estimate of the long-term average than can the observed data.  Some investigators arbitrarily define the mean annual flood as the stage or discharge having an exceedence interval of 2.33 years.” and: “Mean High Water (MHW) - The average height of the high water over 19 years.”  (from: Water Words Dictionary A Compilation of Technical Water, Water Quality, Environmental, and Water-Related Terms, Nevada Division of Water Planning  Department of Conservation and Natural Resources, Latest Printing: Eighth Edition, Second Update, August 1999, Latest Internet Updates: Monday, August 7, 2000)

 

III. Access To and Trespass Along Waterways

 

Even though a waterway is legally navigable by the public, this fact alone does not automatically mean there is any implied or actual legal public overland access across private property to reach its waters.  There is no right to trespass across private property to access navigable waters. (Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 110 [236 Cal.Rptr. 233]; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 851 [213 Cal.Rptr. 278]; Bolsa Land Co. v. Burdick (1907) 151 Cal. 254, 260 [90 P. 532].)

 

However, since a road or bridge easement across private property for public highway purposes may include every kind of travel, where it intersects or crosses over a waterway, it provides lawful public access to the waterway.  One who uses an easement conveyed for public highway purposes within the scope of the initial grant is not a trespasser against the landowner. (People v. Sweetser (5^th Dist.1977) 72 Cal.App.3d 278, 284 [140 Cal.Rptr. 82].)  The California Department of Transportation and the various municipal road departments maintain public records describing road and bridge easements.  Such easements state what rights have been conveyed for purposes of the roadway, and possibly which rights have been withheld.  Fence lines paralleling the roadway often mark the limits of the public easement.  Those fence segments that connect the parallel roadway fencing to bridge abutments are often solely for the purpose of keeping cattle off of the road and are usually not indicative of any easement boundaries.

 

In the course of river navigation, if there appears to be no other safe options, it may sometimes be legal to go above the mean high water mark onto private property in order to:  portage around extreme dangers, scout drops, or take out of the waterway above a dangerous condition.  “Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.” (People v. Roberts (1956) 47 Cal.2d. 374, 377 [303 P.2d. 721].)

 

IV.  Mexican Land Grants:  A Partial Exception to Public Navigation Rights in California

 

Property in California that originated from pre-statehood, valid Mexican land grants may not be subject to Article X, Section 4 of the California Constitution and supporting case law allowing for navigation and public use of waterways under the California standards.  Nor does the State of California own title to the beds of any navigable waterways within these land grants, using the state title standard.  However, public navigation can still occur if the waterway meets the standards of the federal commerce clause test.

 

Under the terms of the Treaty of Guadalupe Hidalgo, the United States agreed to honor the land grants that had been issued by Spain and Mexico to pre-statehood settlers in California.  After statehood, title to these lands could only be considered valid if the grants were submitted to, and confirmed by, a review board of United States government land commissioners.  A patent to the land would be issued after confirmation of the validity of the grant.  Failure to submit a claim for patent or a rejection of the claim barred any future claim under Spanish or Mexican law, including claim to submerged or tidal land. (52A Cal.Jur.3d, Publicly Owned Lands, § 17, p.28)

 

Upon the admission of California into the Union under equal footing with the original states, absolute property in, and dominion and sovereignty over, all soils under tide and navigable waters within her limits passed to the state, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government.  “(T)his (equal-footing) doctrine does not apply to lands that had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition some other way;” and that when the United States acquired California from Mexico by the treaty, they were bound by its stipulations, and by the principles of international law, to protect all rights of property acquired under previous lawful grants from the Mexican government. (Shively v. Bowlby (1893) 152 U.S.1, 30 [38 L.Ed. 331, 14 S.Ct. 548].)    “California did not acquire such title to lands which were the subject of a prior Mexican land grant and later patented by the United States government in accordance with its obligations under the treaty of Guadalupe Hidalgo.”  (City of Los Angeles v. Venice Peninsula Properties (1988) 205 Cal.App.3d 1522, 1530 [253 Cal.Rptr. 331].)  The public trust easement only exists over lands which California acquired title by virtue of its sovereignty upon admission to the Union.  Absent the State of California, during federal patent proceedings starting in 1851, claiming a public trust easement for commerce, navigation, fishing, and water recreation on land which was a part of a Mexican land grant, such rights are now barred.  (Summa Corp. v. California (1984) 466 U.S. 198 [80 L.Ed.2d 237, 104 S.Ct. 1751].)  It is unlikely that the State of California ever claimed any such rights during any Mexican land grant patent proceedings in the mid 1800s.

 

Within valid Mexican land grants, even though the State does not own title to the beds of any waterways, nor does it have the usual public trust easement over them, waterways that are navigable in fact using the federal test for commerce are still always legally available for public navigation because of the commerce clause of the Federal Constitution.  When a Mexican land grant and subsequent judicial proceedings confers title to the margin of the Sacramento River, a river found to be navigable for interstate or foreign commerce, the bed of the river is not included in the title. (Packer v. Bird (1891) 137 U.S. 819, 820-821 [34 L.Ed. 819].)   In the case of City of Los Angeles v. Venice Peninsula Properties (1988) 205 Cal.App.3d 1522, 1529 [253 Cal.Rptr. 331], the property owners conceded that the Federal regulatory power over navigable waters applied to patented Mexican grant land. 

 

The United States is unlikely to ever give up the right of waterway navigation of its citizenry.  “The obligation of the United States to preserve for their own citizens the navigability of its navigable waters is certainly as great as any arising by treaty or international law to other nations or their citizens.”(United States v. Rio Grande Dam & Irrigation Company (1899) 174 U.S. 690, 700-701 [43 L.Ed.1136, 19 S.Ct. 770].)