06-05-2013, 03:56 AM
Just finished writing an email to the Idaho Attorney General on this particular issue. I figured people on here would be interested in what was sent and maybe use it to start their own research into it and write their own letters. Feel free to use bits and pieces of it if you feel it would help your own letters.
[size 2]I saw the article in the Post Register a couple weeks ago stating that the Gem Lake Harbor is considered "non-navigable" according to Judge Tyngy (sp?). I am having trouble understanding how he came to this conclusion based on what I have found regarding water access laws and what constitutes a "navigable waterway in Idaho.
First off, around the first part of June 2006 the Attorney Generals office of Idaho issued an opinion on this very body of water regarding a similar issue that led the the latest ruling. In it Deputy Attorney General Steven Strack cited federal and state cases (I never could find the specific ruling documents) to rule that since the land under Gem Lake Harbor was willingly allowed to be inundated by the landowners the water itself, which is part of the navigable waterways of the Snake River, it is not trespassing so long as those persons are on the water and stay off the lands surrounding said waters. I also found several other laws that would apply to this. What I personally feel is very pertinent is the state of Idahos definition of a navigable waterway. State code 58-1201 (a)which basically says For purposes of recreational use, Idaho statute defines navigable streams as "any stream which, in its natural state, during normal high water, will float cut timber having a diameter in excess of six (6) inches or any other commercial or floatable commodity or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes." When I last entered the harbor in question I was able to take a 16 foot aluminum boat with a 35 HP outboard into this area with no problems of any kind. I am beyond certain that a six inch diameter piece of lumber could easily do the same, clearly making this a navigable waterway. Also Idaho Code § 36-1601(a)& (b) states that Recreational use of navigable streams is authorized “within the meander lines or, when not meandered, between the flow lines of ordinary high water thereof, and all rivers, sloughs and streams flowing through any public lands of the state shall be open to public use as a highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation - boating, swimming, fishing, hunting, and all recreational purposes.”
Additionally at the federal level there is the Equal Footing Doctrine. This doctrine as I understand it states that all navigable waterways are held in trust by the state and that they can not be sold or given away. Additionally "rivers cannot be closed or partially closed to appease adjacent landowners, or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies."
I was able to find several other laws and rulings that could affect this particular issue, but in none of them does it state that just because a landowner dug out an area, let it be flooded by water from the navigable river, that the public would not be allowed to access the water in all areas that can be reached by watercraft thereby barring them from using it as a recreational area.
As a citizen of Idaho I value my recreational access and opportunities here. So when a single well funded person in this state can get a ruling that seems to so clearly violate numerous state and federal laws I have to question what is going on. If you could shed any light on this issue I would greatly appreciate it.
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Hopefully I'll get a reply before too long.
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[size 2]I saw the article in the Post Register a couple weeks ago stating that the Gem Lake Harbor is considered "non-navigable" according to Judge Tyngy (sp?). I am having trouble understanding how he came to this conclusion based on what I have found regarding water access laws and what constitutes a "navigable waterway in Idaho.
First off, around the first part of June 2006 the Attorney Generals office of Idaho issued an opinion on this very body of water regarding a similar issue that led the the latest ruling. In it Deputy Attorney General Steven Strack cited federal and state cases (I never could find the specific ruling documents) to rule that since the land under Gem Lake Harbor was willingly allowed to be inundated by the landowners the water itself, which is part of the navigable waterways of the Snake River, it is not trespassing so long as those persons are on the water and stay off the lands surrounding said waters. I also found several other laws that would apply to this. What I personally feel is very pertinent is the state of Idahos definition of a navigable waterway. State code 58-1201 (a)which basically says For purposes of recreational use, Idaho statute defines navigable streams as "any stream which, in its natural state, during normal high water, will float cut timber having a diameter in excess of six (6) inches or any other commercial or floatable commodity or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes." When I last entered the harbor in question I was able to take a 16 foot aluminum boat with a 35 HP outboard into this area with no problems of any kind. I am beyond certain that a six inch diameter piece of lumber could easily do the same, clearly making this a navigable waterway. Also Idaho Code § 36-1601(a)& (b) states that Recreational use of navigable streams is authorized “within the meander lines or, when not meandered, between the flow lines of ordinary high water thereof, and all rivers, sloughs and streams flowing through any public lands of the state shall be open to public use as a highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation - boating, swimming, fishing, hunting, and all recreational purposes.”
Additionally at the federal level there is the Equal Footing Doctrine. This doctrine as I understand it states that all navigable waterways are held in trust by the state and that they can not be sold or given away. Additionally "rivers cannot be closed or partially closed to appease adjacent landowners, or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies."
I was able to find several other laws and rulings that could affect this particular issue, but in none of them does it state that just because a landowner dug out an area, let it be flooded by water from the navigable river, that the public would not be allowed to access the water in all areas that can be reached by watercraft thereby barring them from using it as a recreational area.
As a citizen of Idaho I value my recreational access and opportunities here. So when a single well funded person in this state can get a ruling that seems to so clearly violate numerous state and federal laws I have to question what is going on. If you could shed any light on this issue I would greatly appreciate it.
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Hopefully I'll get a reply before too long.
[signature]