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Access
Rights
Warning label:
We do not even pretend to be lawyers,
or play one on TV and we didn’t sleep at Holiday
Inn last night. Use this information as a
guideline only. Don’t be stupid and walk across
someone’s land and then wonder what happened. If
you print this off for court, good luck… we
won’t help be a character witness for you, and
ruining it for everyone else, it will make
everyone else hate you though. Let us repeat…
don’t be stupid…engage your brain and not your
mouth when it hits the fan if you are reading
this after the fact after engaging a landowner
on his property. This sounds preachy, but we
have been getting e-mails from landowners
wanting to know their rights. Help us protect
our runs. On a good note, we haven't heard of
any stories of paddlers trespassing just of
locals.
Please read all the information below
before driving to the creeks.
Tennessee Navigability Rights:
First there is the law and there is
common sense. Common sense will keep you out of
court, your wallet fuller and you on the rivers
more, and best of all the landowners will be
happy. And will want us to help protect the
natural resources we both enjoy together.
Common Sense:
First of all common
courtesy will be your passport to the creeks,
treat others with the utmost respect.
1.
No loud music
2.
No hard shutting of car doors, the noise is just
that, noise… and it travels far. Get your gear
once, not a 1000 times.
3.
Be respectful of Sunday mornings
4.
Ask for permission to park if it looks like you
might be offending, even if you are legally
parked on a road right-of-way. Remember 4 flats
suck. Park like a normal human being and not
like a moron, spinning your tires and rutting up
the area or worse in someone’s yard. If you
can’t make a parking spot, move on.
5.
Change your clothes with a large cover up towel
or better yet, change in your car unseen.
6.
Yes Sir and No Sir (varies on gender) goes a
long way.
7.
If someone in your group is from the area, or
the south let them talk…this now changing. With
so many Northerners buying land, it helps to
have a Yankee in the group to be your spokesman
if you hear that dreaded “Ywe guuuuys cannot
palk heeeere”. Remember be respectful, they are
making mortgage payments on that dirt not you.
8.
Never trespass, only use public access points
such as public roads, bridges or state hiking
trails.
9.
When on the river and near a residence try to
keep the noise down to a minimum and if seen
always wave at the landowner or person on the
bank.
10.
When on the side of the road, loading or
unloading gear or just shooting the breeze and a
local drives by, ALWAYS wave and smile. This
goes a long way.
11.
NEVER litter. Bring a trash bag and help pick up
the place, this goes a long way, and only takes
a few minutes.
12.
NEVER preach your rights to someone, that’s what
lawyers are for. They are dealing with emotions
and only hear a tenth of what you are saying if
they are upset. Walk away and leave.
13.
Always stay in the creek bed and never trespass
above the high water mark.
14.
If a gate is closed, it's closed for a reason
and that means don't drive around it.
For the most part,
we are lumped in the same group of rednecks that
want to go “swimmin’ at the blue hole”
Landowners get tired of fighting the local
necks, picking up trash, dealing with broken
glass and dealing with drunks.
Once the landowner
sees that we want to help protect the area and
can be another set of eyes for them, 9 times out
of 10 they will welcome our help.
Legal interpretation:
From The State of
Tennessee
RULES
OF
TENNESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
WATER QUALITY
CONTROL BOARD
DIVISION OF
WATER POLLUTION CONTROL
CHAPTER
1200-4-8
RULES AND
REGULATIONS APPLIED TO T.C.A. §69-1-1
d) “Navigable
Waters” means any river, lake, stream or
watercourse, natural or man-made, or their
tributaries which
have been adjudicated and held to be navigable
in the technical or legal sense,
pursuant to
T.C.A. §69-1-101 et seq. and are not subject to
the Rivers and Harbors Act, 33
U.S.C., §401 et
seq.
f) “Ordinary High
Water Mark” means the mark on the shore
established by the fluctuations of
water and
indicated by physical characteristics such as:
the residual particulate matter impressed
on the bank and
vegetation, the presence of litter and debris,
changes in the character of soils
RULES AND
REGULATIONS APPLIED CHAPTER 1200-4-8
TO T.C.A §69-1-1
(Rule
1200-4-8-.02, continued)
July, 2001
(Revised) 2
and vegetation,
or other appropriate means that consider the
characteristics of the surrounding
areas.
(g) “Ordinary Low
Water Mark” means the line which constitutes the
usual or ordinary stage of a
river or lake,
when the volume of water is not increased by
rains or freshet, nor diminished
below such usual
stage or volume by long continued drought.
The one
you need to know and memorize to state to a
officer of the law and the landowner if it gets
ugly TCA# 69-1-101,it may save you from sitting
in the back of Officer Bob’s car…
69-1-101. Navigable waters are highways.
All navigable waters are public
highways, including those declared
navigable by special law.
Code 1858, § 1299; Shan., § 1808; Code 1932, § 3074; T.C.A. (orig. ed.), §
70-101.]
FROM ADVENTURESPORTS.COM
http://www.adventuresports.com/river/nors/states/tn-law.htm
Review of the
relationship of federal and state law regarding
rivers:
The section on
National River Law discusses river
ownership, use, and conservation law throughout
the United States. Following is a review of what
individual states can and cannot lawfully do
with the rivers within their borders.
The U.S. Supreme Court has
ruled that rivers that are navigable, for title
purposes, are owned by the states, "held in
trust" for the public. This applies in all fifty
states, under the "Equal Footing Doctrine."
Rivers that do meet the
federal test are automatically navigable, and
therefore owned by the state. No court or
government agency has to designate them as such.
The federal test of
navigability is not a technical test. There are
no measurements of river width, depth, flow, or
steepness involved. The test is simply whether
the river is usable as a route by the public,
even in small craft such as canoes, kayaks, and
rafts. Such a river is legally navigable even if
it contains big rapids, waterfalls, and other
obstructions at which boaters get out, walk
around, then re-enter the water.
The states own these
rivers up to the "ordinary high water mark."
This is the mark that people can actually see on
the ground, where the high water has left
debris, sand, and gravel during its ordinary
annual cycle. (Not during unusual flooding.) It
is not a theoretical line requiring engineering
calculations. Where the river banks are fairly
flat, this mark can be quite a distance from the
edge of the water during medium water flows.
There is often plenty of room for standing,
fishing, camping, and other visits.
States cannot sell or give
away these rivers and lands up to the ordinary
high water mark. Under the "Public Trust
Doctrine," they must hold them in perpetuity for
public use.
The three public uses that
the courts have traditionally mentioned are
navigation, fishing, and commerce. But the
courts have ruled that any and all
non-destructive activities on these land are
legally protected, including picnics, camping,
walking, and other activities. The public can
fish, from the river or from the shore below the
"ordinary high water mark." (Note that the fish
and wildlife are owned by the state in any
case.) The public can walk, roll a baby
carriage, and other activities, according to
court decisions.
States do have authority
and latitude in the way they manage rivers, but
their management must protect the public uses
mentioned above. They can (and must) prohibit or
restrict activities that conflict with the
Public Trust Doctrine. "Responsible recreation"
must be allowed, but activities that could be
harmful, such as building fires, leaving trash,
and making noise, can legally be limited, or
prohibited, in various areas. Motorized trips
and commercial trips can legally be limited or
prohibited by state governments.
State and local
restrictions on use of navigable rivers have to
be legitimately related to enhancing public
trust value, not reducing it. Rivers cannot be
closed or partially closed to appease adjacent
landowners, or to appease people who want to
dedicate the river to fishing only, or to make
life easier for local law enforcement agencies.
State governments (through
state courts and legislatures) cannot reduce
public rights to navigate and visit navigable
rivers within their borders, but they can expand
those rights, and some states have done so. They
can create a floatage easement, a public right
to navigate even on rivers that might not
qualify for state ownership for some reason,
even if it is assumed that the bed and banks of
the river are private land. Note that this
floatage easement is a matter of state law that
varies from state to state, but the question of
whether a river is navigable, for title
purposes, and therefore owned by the state, is a
matter of federal law, and does not vary from
state to state. Note that a state floatage
easement is something that comes and goes with
the water: When the water is there, people have
a right to be there on it, and when it dries up,
people have no right to be there. But rivers
that are navigable for title purposes are public
land up to the ordinary high water mark, so that
even when the river runs dry, people still have
the right to walk along the bed of the river.
Only federal courts can
modify the test of standards that make a river
navigable for title purposes. States cannot
create their own standards, either narrower or
wider in scope. They can’t make definitive
rulings about which rivers are navigable for
title purposes, only a federal court can.
The situation gets
confusing when a state agency or commission
holds hearings about navigability and public use
of rivers. Landowners, sheriffs, and other
people tend to think that such an agency or
commission can create state standards that
determine which rivers are public and which are
private. But these are matters of federal law
which state agencies cannot change.
State agencies should make
provisional determinations that various rivers
meet the federal test of navigability for title
purposes. These provisional determinations
should be based simply on the rivers' usability
by canoes, kayaks, and rafts. They should then
proceed to the question of how to manage
navigation and other public uses of the river.
In these days of government cut-backs, the
agency should look for solutions that use
existing enforcement agencies rather than
setting up new ones. Littering, illegal fires,
offensive behavior, trespassing on private land,
and numerous other offenses are all covered by
existing laws, and offenders can be cited by the
local police, sheriff's office or state police.
From: American Whitewater.Org
http://www.americanwhitewater.org/content/Wiki/access:tn
Tennessee Navigability Report
Summary
Navigable waters are considered public highways
under common law. There is no clear test of
navigability and public access to streams in
Tennessee, but generally streams that are
floatable are navigable. Floatable streams are
those that can be used to transport valuables to
the public, like the ability to float logs down
a stream. Streams do not have to be floatable at
all times of the year and can be seasonal so
long as they are floatable regularly and not
only during a flood.
State Test of Navigability
Tennessee, through its case law, has adopted a
state test of navigability that makes streams
navigable that are navigable in the “legal
sense” and “ordinary sense.”1)
Under Tennessee law, navigable rivers or streams
are rivers which are in fact “capable of being
navigated.”2)
If a river or stream in Tennessee is navigable
in the legal or technical sense, the use of the
water belongs to the public.3)
To be legally navigable, water must be capable
of navigation “ascending and descending, by sea
vessels; that is, such vessels as are employed
in the ordinary purposes of commerce, whether
foreign or inland, and whether steam or sail
vessels.”4)
A stream that is not navigable in the legal or
technical sense may still be navigable in the
ordinary sense if the water is of “sufficient
capacity in depth, width and volume” for
valuable floatage.5)
This does not include streams that are only
capable of floatage during a flood, but may
include streams that are routinely “swollen”
because of rains.6)
Tennessee has not adopted the common law
definition of navigability by the ebb and flow
of the tide, but instead looks to see if water
in its ordinary state is suitable or capable of
navigation.7)
The following streams have been held by the
courts to be navigable in the technical or legal
sense: Cumberland River;8)
the French Broad River and Holston or Tennessee
River at and above their junction;9)
and Reelfoot Lake.10)
The following streams have been deemed navigable
in the ordinary sense: Big Creek;11)
Powell’s River;12)
and Hiwassee River.13)
Court’s have held that Hind’s Creek is not
navigable in any sense,14)
and Holston River above the county bridge at
Bluff City in Sullivan County was declared to be
unnavigable by Acts 1899, ch. 18.15)
Extent of Public Rights in
Navigable and Non-Navigable Rivers
Navigable streams cannot be owned privately.
Navigable streams natural and primary uses by
the public are for navigation, commerce, hunting
and fishing.16)
In addition to the right of navigation of
streams, the public has the right of ownership
of lands under the waters, as these lands cannot
be owned privately.17)
The riparian owners of land on a stream that is
navigable in the technical sense have title to
the ordinary low watermark only, and not to the
center of the stream. If a stream is only
navigable in the ordinary sense, “the ownership
of the bed of the stream is in the riparian
proprietors, and the public have an easement
therein for purposes of transportation and
commercial intercourse.”18)
If a stream is so “shallow as to be unfit for
transportation and commerce,” and is not
navigable in even the ordinary sense, the rights
to the property and use of the stream are
“wholly and absolutely in the owners of the
adjoining land.”19)
Miscellaneous
All navigable streams are considered public
highways under common law, which forbids the
obstruction to the detriment of navigation20)21)
Tennessee Code Annotated § 69-1-117 states that
without a permit issued by the Tennessee
Department of Environment and Conservation
(”TDEC”) no person shall “authorize, undertake,
or engage in any activity, practice, or project
that has or is likely to have the effect of
impairing or obstructing the navigability of any
river, lake, stream or watercourse located
within the state.”22)
There are no cases that address the question of
portage.
Trespass is a class C misdemeanor in Tennessee
that is committed when a person receives notice
against entering by a posting, fence, or
personal communication by the owner.23)
Trespass is punishable by a fine up to $50 and
30 days in jail. Trespass requires the intrusion
of the entire body.24)
The TDEC and the Tennessee Wildlife Resources
Agency (”TWRA”) manage natural resources and
have substantial information on boating,
fishing, hunting and parks and recreational
activities. Further information can be found on
their websites at [http://www.state.tn.us/environment/]
and [http://www.state.tn.us/twra/].
1)
,
5) ,
16) State v. West Tenn. Land Co., 19 Cates
575,158 S.W. 746 (Tenn. 1913
2)
,
4) See Id.
3)
,
7) Stuart v. Clarke’s Lessee, 32 Tenn. 9
(1852).
6)
See Id. at 761.
8)
Elder v. Burrus, 25 Tenn. 358 (1845).
9)
Goodwin v. Thompson, 83 Tenn. 209 (1885).
10)
State v. West Tenn. Land Co., 19 Cates 575,158
S.W. 746 (Tenn. 1913
11)
Sigler v. State, 66 Tenn. 493 (1874).
12)
Holbert v. Edens, 73 Tenn. 204, 40 Am. R. 26
(1880).
13)
,
21) Railroad v. Ferguson, 105 Tenn. 552
(1900).
14)
Irwin v. Brown, 12 S.W. 340 (1889).
15)
Tenn. Code Ann. § 69-1-101.
17)
SeeIid.
18)
Stuart v. Clarke’s Lessee, 32 Tenn. 9 (1852).
19)
See id.
20)
22)
Tenn. Code Ann. § 69-1-117
23)
Tenn. Code Ann. § 39-14-405 (a
24)
Tenn. Code Ann. § 39-14-405
You get to see
beauty like this
when we are welcomed
: )
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