A Usenet persona calling itself BCITORGB wrote:

Scotts finds:
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I couldn't find one either. Evidently Canada is radically different. Oh
well, it is Canada after all.
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But, Canada's (British Columbia's, anyway) approach makes everything so
much simpler: no requirement to determine navigable or not... although
it does beg the question as to when a trickle actually becomes a creek
or a stream...

It seems to stem from the Monarchy approach of government, as the lands are
defined as "Crown Lands," which don't belong to the people, they belong to
the sovereign. This simple expedient says that "everything belongs to the
King except what the King chooses to grant to an individual." Thus, it
seems, the King, to whom all lands belong as his private property, has
chosen not to grant title to lands underlying waters. I suppose that's why
it's good to be the King.

The US situation is different in that we don't have a King, and the lands
belong to the people, to be disposed of by the Congress. And Congress
clearly recognizes a distinction between navigable and non navigable waters,
and uses that distinction to determine in whom the bed title rests.

The intent of the reservation of navigational rights, and indeed bed title
in navigable waterways was to preserve public access to the "important water
highway" of the nation. Congress recognized that at some point a stream was
no longer an important highway for commerce and thus could become private by
grant of Congress. That's the case in Colorado, as applied to *every*
natural river or stream under a line of cases explicitly recognizing the non
navigability of Colorado's waterways.

The "navigable in law because a kayak can float on it" "test" would entirely
erase the distinction between truly navigable "public highways" of useful,
substantial and permanent commerce (think Mississippi) and creeks like
Boulder Creek which have no actual potential for "interstate commerce of a
substantial and permanent nature, useful to some purpose of trade or
agriculture." You can factually "navigate" a kayak across a flooded parking
lot after a heavy rain. That doesn't make the parking lot a "navigable water
of the United States."

I don't see the erasing of the distinction between navigable public highways
on water and commercially useless, though recreationally attractive streams
as being something the Congress intended or intends. Certainly Congress and
the Court were aware of this distinction, which is why in one early case
(Cress, as I recall) the Justices made specific reference to "gunning canoes
or fishing skiffs" and declined to hold that the fact that one could
physically float such a craft down a stream during times of high water
constituted federal commerce clause navigability.


--
Regards,
Scott Weiser

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© 2005 Scott Weiser