Re: Boating now illegal!!!
Here is what Fedreal law says about who owns what:
"There are two separate legal doctrines under which (name your State) gained ownership of waterway lands at statehood: one is called "navigability," the other is called "tidality." Under the Equal Footing Doctrine, federal courts have held that states entering the Union have the same rights as did the original thirteen states. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying what are termed "navigable" waters as well as the land underlying tidal waters. Therefore, when (name your State) was admitted to the Union in (year), it became the owner of all land underlying both the navigable waterways and tidal waters within its borders as a part of its sovereignty. To date, public ownership based on navigability has been more uncertain and controversial than public ownership based on tidality."
Tests for "NAVIGABLE WATERS:
Federal court decisions have developed the following test to determine whether a waterway is "navigable" for "title" (that is, public ownership) purposes. The elements of the test are whether the waterway:
At the time of (name your State) statehood in (year of Statehood);
Was used or was susceptible to being used;
In its natural and ordinary condition;
As a highway of commerce;
Over which trade and travel were, or could have been conducted;
By a mode of trade and travel on water that was customary in (year of Statehood).
The federal courts have examined numerous waterways in the United States. Those cases outline some of the ways that a waterway may meet the criteria of the test. For instance, a waterway may be proven to have been navigable-in-fact by evidence of the actual use at the time of a state's adminission to the Union, or by evidence that the waterway was susceptible to use at that time, or evidence of both actual use and susceptibility to use then.
"Susceptible of being used" is an issue of capability (a focus on the characteristics of the waterway), and not one of probability (not a focus on the likelihood of whether it was or will be used). The federal courts have long held that the possibilities of growth and future use are not to be ignored when determining whether a waterway belongs to a state. This is particularly true where, as in (name your State), pioneer settlement did not occur in much of the state until after statehood. The question is one of fact as to the capacity of the waterway in its ordinary condition to meet the needs of commerce into the future, as populations and activities increase and natural resources are developed.
The test does not require the use of any particular mode of trade or travel, nor does it depend on the use of any particular type of vessel as long as they were "customary" - in this case in (year) at the time of (your States) statehood. Log drives may be one such mode of travel in a region. Such drives may be done with difficulty. However, the waterway should be able to facilitate such a use on more than an occasional basis for that purpose. Canoes may be one such type of vessel in a region. The use of the vessel on the waterway may be difficult and it need not be extensive.
The courts have held that the use need not be long and continuous, and may be of a seasonal nature. Recreation and fishing are considered by the courts to be forms of commerce. A waterway will not fail the test simply because the region was not explored or settled before statehood. A waterway will also not fail the test if there are no federal land survey riverside meander lines. These lines were used by the federal government in calculating the price that must be paid for the upland by the grantee of a federal land patent.
The federal courts have also addressed the types of factual information or evidence that is, or is not, important for the test. Evidence regarding the waterway's susceptibility of being used is most often emphasized when there is little or no evidence that the waterway was actually used. Evidence of actual use is sometimes more persuasive, partly because it is the easiest to present and interpret, but it is not essential. Particularly where conditions of exploration and settlement explain the infrequency or limited nature of actual uses of the waterway, the susceptibility to use may still be satisfactorily proved. That susceptibility--capacity--may be shown by physical characteristics and experimentation.
Evidence of current use by drift boats, rafts, canoes, kayaks and other recreational watercraft is persuasive where it is also demonstrated that vessels that were used at the time of statehood required similar depths of water, or that similar modes of travel were customary at that time. Evidence of historical flow rates and channel conditions are important to prove that the physical characteristics of the waterway have not changed appreciably since statehood.
If you skipped most of the above (shame on you... what will you have to say?) at least read the last paragraph... kindda iffy on the Missippi.
in a creek armd
