A Usenet persona calling itself riverman wrote:


The only question that remains is whether Boulder Creek through my
property
is a "navigable water of the United States." Trust me, it's not.


I'd rather not trust you on this, if you don't mind, because I already know
your point of view. Just what is the applicable legal definition of
'navigable', is the point that its the applicable defintion NOT in debate,
and forgive my asking, but is this truly the lynchpin of the entire debate?
Your summary to the SCOTSOC ruling is only that, a summary. We don't know
what the actual ruling states, or what its boundaries are, or even how the
precedent applied.

Well, I thought nobody wanted to get into this again. Evidently not...


Its all this paraphrasing, with insistence that it is the non-debatable law,
that makes me uncomfortable.

Well, the classic (but not the only) definition is: "Navigable waters of the
United States are usually defined as waters, which, at the time of the entry
of the state into the Union, were, in their natural state or ordinary
condition, or by reasonable improvements thereto, used, or are susceptible
to being used as highways for useful interstate or foreign commerce of
substantial and permanent character, over which trade and travel are or may
be conducted in the customary modes of trade and travel on water, and such
waters are navigable in law if they are navigable in fact."

Then there's this, which tells us that the navigability of any particular
waterway requires an "ad hoc factual query" into the nature and use of the
waterway in question:

"Navigability, in the sense of actual usability for navigation, or
navigability in fact, as a legal concept embracing both public and private
interests, is not susceptible of definition or determination by a precise
formula which fits every type of stream or body of water under all
circumstances and at all times." Kaiser Aetna v. United States, 444 U.S. 164
(1979)

--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
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© 2005 Scott Weiser