Last week, the Illinois Supreme Court scuttled the hopes of kayakers and canoeists who want the right to paddle along small rivers and streams. The Legislature ought to toss a life preserver to the boaters by enshrining that right into law.
Unlike in some nearby states, Illinois law dating back to the 1800s does not make it clear kayakers and canoeists can legally paddle wherever water is deep enough to float their watercraft. Waterways are considered public property only if they are designated as navigable by commercial traffic.
That means a landowner who owns both sides of a smaller stream, or even some pretty big ones that are classified as non-navigable, can legally bar anyone from paddling or fishing on it. Goodbye to recreational use on that waterway.
That doesn’t square with laws in Wisconsin and Michigan, where any stream more than a few inches deep is publicly owned. In Michigan, that allows trout fishing enthusiasts to walk the trout streams, although they are not allowed to get out onto private property.
Unlike England, where landowners own the bottoms of non-tidal rivers that run across their property, America decided navigable rivers should be public spaces. But under the muddy waters of complicated laws, the definition of “navigable” can leave out recreational paddling.
Of the three streams that flow together to form the North Branch 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, those two could be blocked by anyone who owns the land on both sides, although the owners are largely forest preserve and park districts.
On Thursday, in a Grundy County case involving the 28-mile-long Mazon River, the high court sided with landowners and said they can block off waterways to paddlers and fishing enthusiasts. The case involved owners of land-locked property 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 the Mazon Creek, is known for its Coal Age fossils.
A large majority of waterways in Illinois are classified as non-navigable. One fear is that, as word gets out about the ruling, more landowners will decide to close them off. As an environmentalist said to us on Friday in a one-word comment: “Yikes.”
The Supreme Court justices were not unanimous in their thinking. Justice P. Scott Neville, joined by Justice Anne Burke, wrote: “[I]t is time for Illinois to move away from its common law that limits the use of non-navigable lakes, rivers and streams to riparian landowners and move to the recreational navigation doctrine, so that all waterways are available to the public for recreational use.”
Around the state, some landowners string fences, including barbed wire, across streams and creeks. Some recreational paddlers are said to bring wire cutters with them so they can snip their way through. Others lift up the wires so they can pass underneath. Making scofflaws of people who want to enjoy some riparian recreation is not a good solution.
Where fences are needed to keep livestock from wandering away, exemptions from expanded access to waterways will need to be made. But there’s generally no reason to close off waterways running through natural areas or cropland, which covers much of Illinois.
During the pandemic, as people turned to the outdoors to escape the feeling of being hemmed in, many of them gained a new appreciation of being out in nature. It’s a shame that the waters of Illinois are not all considered public.
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