Last week, the Illinois Supreme Court scuttled the hopes of kayakers and canoeists who wanted the right to paddle along small rivers and streams. The legislature should give boaters a lifeline by enshrining this right in law.
Unlike some neighboring states, Illinois law dating back to the 1800s does not clearly state that kayakers and canoeists can legally paddle anywhere the water is deep enough to float their craft. Waterways are considered public property only if designated as navigable by commercial traffic.
This means that a landowner who owns both sides of a smaller watercourse, or even very large watercourses classified as non-navigable, can legally prohibit anyone from paddling or fishing in them. Say goodbye to recreational use on this waterway.
This is inconsistent with the laws of Wisconsin and Michigan, where any stream more than a few inches deep is state property. In Michigan, this allows trout fishing enthusiasts to roam trout streams, although they are not allowed out onto private property.
Unlike England, where landowners own the bottom of non-tidal rivers that flow through their property, America has decided that navigable rivers should be public spaces. But under the muddy waters of convoluted laws, the definition of “navigable” may leave out recreational paddling.
Of the three waterways that join to form the North Arm of the Chicago River, for example, the Middle Fork is considered navigable and accessible to the public. The other two branches – the West Fork and the Skokie River – are not. In theory, these two could be blocked by whoever owns the land on both sides, although the owners are largely forest reserves and park districts.
In a Grundy County case involving the 28-mile-long Mazon River on Thursday, the high court sided with landowners and said it could block waterways to paddlers and anglers. The case involved owners of landlocked properties along the river who wanted the right to kayak to and from their property, where they searched for fossils. The Mazon River, also known as Mazon Creek, is known for its Coal Age fossils.
A large majority of Illinois waterways are classified as non-navigable. One fear is that as the ruling spreads more landowners will decide to close them. As one environmentalist told us on Friday in a one-word comment: “Yikes.”
The Supreme Court justices were not unanimous in their thinking. Judge P. Scott Neville, accompanied by Judge Anne Burke, wrote: “[I]It’s time for Illinois to move away from its common law that limits the use of non-navigable lakes, rivers and streams to shoreline property owners and move to the doctrine of recreational boating, so that all waterways are accessible to the public for recreational purposes.
Around the state, some landowners are setting up fencing, including barbed wire, across creeks and creeks. Some recreational paddlers are said to bring wire cutters with them so they can navigate their way. Others lift the wires so they can pass underneath. Renouncing the laws of people who want to enjoy some waterfront recreation is not a good solution.
Where fencing is required to prevent livestock straying, exemptions to widening access to watercourses will need to be granted. But there’s generally no reason to close streams that cross natural areas or cultivated land, which cover much of Illinois.
During the pandemic, as people turned to the outdoors to escape feelings of being cooped up, many of them gained a new appreciation for being in nature. Too bad not all Illinois waters are considered public.
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