Uh. You left off a rather important bit. That’s Oregon’s state test for their public trust doctrine, not the federal test:
Even if the bed of a waterway is privately owned, the waterway may be used by the public for certain purposes if it meets the state test of navigable-for-public-use (the “public use doctrine.”) A waterway is navigable-for-public-use if it has the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters. If a privately owned waterway meets this test, the lawful public uses generally include navigation, commerce or recreation. Recreation in this case includes use of small boats for pleasure and fishing, as well as swimming. The public may use the land adjacent to a waterway that is navigable-for-public-use as long as the use of the adjacent land is “necessary” to the lawful use of the waterway.
Read the whole position paper. Oregon’s test is based on Federal precedents, including:
In concluding that the Grand River was “navigable,” the Court expanded on its earlier opinion in The Propeller Genesee Chief, flatly declaring that “[t]he doctrine of the common law [of England] as to the navigability of waters has no application in this country.” Id. at 563. Instead, a waterway’s “navigability” was to be determined by its “navigable capacity”: [R]ivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
And
In State of Alaska v. Ahtna, Inc., 891 F2d 1401 (9th Cir. 1989), cert den 495 US 919, 109 L Ed2d 312, 110 S Ct 1949 (1990), the Court of Appeals held that the lower Gulkana river in Alaska was title-navigable. The river is “normally a foot and a half deep, diminishing to a foot during low-flow season [at its shallowest point]. On average however, the River * * * is 125- 150 feet wide and 3 feet deep.” Id. at 1402. The parties agreed that the river was used, or was susceptible to use, by aluminum or fiberglass powerboats, inflatable rafts, motorized freight canoes, and double-ended paddle canoes, and that in the years immediately prior to statehood (from the 1940s to 1959) hunters and fishermen traveled the river in aluminum and fiberglass watercraft with a load capacity of approximately 1,000 lbs. Id. at 1402-03. Since the 1970s, the recreation industry offered guided fishing and sightseeing river trips in 20 to 24-foot long aluminum powerboats and 12 to 15.5-foot long inflatable rafts, which usually carry five passengers and one guide, providing for loads often in excess of 1,000 lbs. Id. at 1403. The average fare is $150. Id. The industry employs 400 people. Id.
The reason I cited the Oregon document is because it is the most recent compendium of navigability legal guidance and precedent I know of. It is comprehensive, if you”d bother to read it.
“… it’s okay to cut people up with saws because legally the Rio Grande isn’t really a river” would be an odd hill to die on even if the case law held up
I struggle with this every day because of where I work, but we also do wonderful, universe affirming science and that keeps me employed there. Over 12 years now and counting.
I thought “mantrapping” was illegal in USA, is it not?
From wikipedia definition of “mantrap”:
“ Mantraps that use deadly force are illegal in the United States, and in notable tort law cases the trespasser has successfully sued the property owner for damages caused by the mantrap. There is also the possibility that such traps could endanger emergency service personnel such as firefighters who must forcefully enter such buildings during emergencies. As noted in the important American court case of Katko v. Briney , “the law has always placed a higher value upon human safety than upon mere rights of property”.[5]
