Holm v. Kodat and the Current State of Illinois Water Access Law

Scott Hays, President, IPC

Illinois paddlers have been dismayed by the recently released Holm v. Kodat decision of the Illinois Supreme Court (175 NE 3d 119 – Ill: Supreme Court 2021 to read the decision, click here). Importantly, the ruling didn’t change anything that hasn’t been established law in Illinois for many decades. Rather it upheld existing Illinois law that owners of property along the banks of “non-navigable” Illinois rivers (the “riparian corridor”) also own the property rights on the river surface itself out to the midpoint of the river. If one owner owns property on both sides, they in fact “own” that section of the entire width of the river and those who paddle through their “private property” can legally be found guilty of trespass.  The issue in Holm hinged on the rights of one riparian owner – Mr. Kodat – to block river access by another riparian owner – the Plaintiff Holm – on a “non-navigable river” in Illinois – the Mazon.

While Holm v. Kodat changes nothing about water rights and access law, it has focused greater attention on the issue and raised the ire of many paddlers, many of whom (understandably) have only a vague understanding of what Illinois river access law actually is. This has naturally drawn attention to the current status of laws affecting Illinois rivers (pardon the pun).  

OUR PUBLIC WATERS

Under federal law, when a state was admitted to the Union it also became the owner of the bodies of water within its borders that were navigable for interstate commerce “for the public benefit of its citizens.” “Public benefit” sounds pretty good, but then the Illinois Department of Natural Resources (IDNR) clarifies that: “Under Illinois law the IDNR was given the responsibility of determining what bodies of water within the State are to be designated as a public body of water (i.e. navigable for commerce).” (Rivers, Lakes and Streams Act, 615 ILCS 5/5)

Using a standard of “navigability”, the IDNR has therefore determined which waterways would be public and which would not be. IDNR lists the “navigable” and therefore “public” waters of Illinois here:

https://www2.illinois.gov/dnr/WaterResources/Pages/PublicWaters.aspx

The net result of this listing is that of the 87,110 miles of rivers and streams in Illinois (not counting the 880 miles of river Illinois is bordered by), only approximately 30 rivers (or portions thereof) are classified as navigable. So hey, if your river – or one you’d like to paddle – is listed, paddle away! Don’t even bother reading on!

If not – which is most paddleable rivers in Illinois – then your river is unfortunately a “non-navigable” and therefore “non-public” river. As mentioned above, riparian owners who own property along any “non-navigable” river “own” the property out to the centerline of the river and by extension, those who own property on both banks along a stretch of river also “own” that stretch of river as their private property. As a practical matter, paddlers heading downriver (or upriver) who cross into this private property can legally be found guilty of trespass.  Happily, most riparian owners on most of our rivers don’t often accuse paddlers of trespass. Yet this creates an uneasy alliance that sometimes cracks, as in the recent DuPage River issue or more recently in Holm v. Kodat. 

The Court goes on to explain:

This court has long recognized that “riparian rights apply to all flowing streams whether navigable or non-navigable, but with respect to navigable streams, the right of the riparian owner is subject to a public easement to use the river for navigation purposes.” A waterway is navigable and subject to a public easement if it naturally, by customary modes of transportation, is “of sufficient depth to afford a channel for use for commerce”. If, however, the waterway is nonnavigable, the riparian owner owns “the bed of the stream” absolutely, free from any burdens in favor of the public.” Here, it is undisputed that the Mazon River is a nonnavigable river and, therefore, has no public easement for access.

Holm v. Kodat, 2022 IL 127511, Para. 29&30

NAVIGABILITY

“Navigability” then is a key factor in determining whether a river could be considered public or private, so let’s review how Illinois defines navigability.

Here, the Illinois Supreme Court follows a ruling of the U.S. Supreme Court, which states that

streams or lakes which are navigable in fact must be regarded as navigable in law; they are navigable in fact when they are used or susceptible of being used, in their natural and ordinary condition as highways for commerce, over which trade and travel on water are or may be conducted in the customary modes of trade and travel on water.

United States v. Holt State Bank, 270 U.S.49 (1926)

Of course, paddling a canoe or kayak could be considered “customary” and certainly counts as a “mode of travel on water.” Paddlers can easily navigate several rivers or streams across our state. Nonetheless, for our purposes here we must stick to the law which rules out any common-sense understanding that paddlers may choose to apply regarding the concept of “navigability.”

In the case of Hubbard v. Bell (1870), the Illinois Supreme Court rejected a “pleasure boat test” of navigability, stating: “that it was not every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable. In order to have this character, it must be navigable to some purpose useful to trade or agriculture.” (Hubbard v. Bell, 54 Ill. 110.)

Never mind that this dates to 1870. This mindset was then more recently updated in 1905:

…A stream is navigable in fact only where it affords a channel for useful commerce and of practical utility to the public as such. The fact that there is water enough in places for row boats or small launches answering practically the same purpose, or that hunters and fisherman pass over the water with boats ordinarily used for that purpose, does not render the waters navigable.

Schulte v. Warren, 218 III. 108 (1905).

All of this was reiterated and put even more bluntly by the Appellate Court in Holm v. Kodat: “[I]t is irrelevant, for purposes of determining navigability in fact, that the Mazon River can support kayaks.” (2021 IL App (3d) 200164, ¶ 28).

So according to current Illinois law, a river isn’t “navigable” even if paddlers can actually navigate it by kayaks, row boats, small launches, or the “ordinary boats of hunters and fisherman.” Furthermore, a canoe or kayak is apparently not “a customary mode of travel on water.” OK then. One is naturally left curious about whether our courts feel that those who operate commercial boat rental liveries on rivers for the enjoyment of the public are actually engaged in “some purpose useful to trade,” “useful commerce,” or are in fact doing anything of “practical utility to the public” at all. But no matter, they are nonetheless non-navigable rivers and therefore private unless the river can handle barges or steamships or some other “useful commerce” of that sort.  

TO BE CLEAR: RIVERS ARE NOT LAKES

One point made by Holm in Holm v. Kodat is that an earlier Illinois Supreme Court ruling known as “Beacham” should apply here (Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227, 1988). Beacham resolved a dispute among riparian owners on Lake Zurich in favor of all lakefront property owners having access to the entire surface of Lake Zurich, which was a “non-navigable” body of water, like the Mazon River. But the Illinois Supremes pointed out for us that while the plaintiff (Holm) argued that there isn’t a meaningful difference between rivers and lakes for the paddling community:

We disagree. A lake is essentially a flat expanse of relatively still water…. In contrast, streams and rivers can have widely varying topographical features and characteristics, including differing currents, depth, and width that may change with the seasons. Naturally, then, a riparian owner’s use of a lake will likely differ from a riparian owner’s use of a river or stream…. a nonnavigable lake is sufficiently distinct from a nonnavigable river or stream to render Beacham inapplicable.

Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227, 1988, para. 38

Full disclosure: I am a riparian property owner (who loves it when Sangamon River paddlers pass by the part of the river I “own”). Like many of us, I have paddled both rivers and lakes. While I have noted the distinction that lakes are generally big and round and rivers are long and narrow, I don’t actually “use” them any differently. But no matter. The Supremes find them to be “sufficiently distinct” so that’s that.

In fairness, the Supremes seem empathetic to the plight of paddlers:

In closing, we acknowledge plaintiffs’ advancement of public policy arguments in favor of promoting the recreational use of nonnavigable streams and rivers in Illinois…. Because the majority of waterways in Illinois are nonnavigable, plaintiffs urge this court to adopt a legal rule granting a riparian owner on a nonnavigable stream or river a right to use the entire length of that waterway to promote its reasonable recreational use.

Holm v. Kodat, 2022 IL 127511, Para. 55

Yet, in their Conclusion, they state:

For the foregoing reasons, we decline plaintiffs’ request to hold that they have a right, as riparian owners on the nonnavigable Mazon River, to use the entire length of that waterway to cross the property of other riparian owners without their permission.

Holm v. Kodat, 2022 IL 127511, Para. 58

In the end, our Justices clearly had an opportunity to more closely scrutinize and update our anachronistic Illinois water law with a ruling that could have favored Holmes by extending their own Beacham decision regarding lakes to rivers, but chose not to.

So what now?

ALTERNATIVES

The Illinois Department of Natural Resources, which adheres to Illinois law and rulings of the Illinois Supreme Court, has for some time offered two legal means of opening up paddlers’ rights on non-navigable rivers under current Illinois water law.

First, as the Court points out, other riparian owners do not have a right “to use the entire length of that waterway to cross the property of other riparian owners without their permission.” So, one means of gaining access to rivers is to ask permission.

Of course, for a stretch of river, those who wish to paddle it would need to seek permission from every riparian owner along that route. This was recently done at significant effort by the Paddle the Kish organization on the Kishwaukee River. But if one owner fails to grant permission, the success of this kind of effort could be threatened. Nonetheless, IPC can share legal documents (shared with us by “Paddle the Kish”) which were created so that riparian property owners can clarify their intent to grant such permission, should they wish to do so.

Alternatively, anyone can petition the IDNR to add their river to the navigable rivers list. According to the Illinois Administrative Code, “any person may petition for an order to add a body of water to the list when it can be shown that the candidate is or was navigable and is open or dedicated to public use.” (17 ILL. ADM. CODE CH. I, SEC. 3704.40).

The petition has to name the body of water, where it is, include a statement on its past or present navigability, and/or statements of people living along the river that “it is common knowledge that the body of water has always been open to public use” along with other information that make it rather the equivalent of the Wizard telling Dorothy to report back with the broom of the Wicked Witch of the West. However, IDNR wants you to know that getting that broom is at least theoretically possible (as Dorothy made clear – in a work of fiction).

A FINAL WORD: HOPE SPRINGS ETERNAL

Although the Holm decision reiterates and therefore strengthens and clarifies Illinois water law, two things from the Holm decision point to the path ahead for our paddling community. First, the unanimous opinion clearly states:

In our view, the legislature is the best venue to consider plaintiffs’ request for the creation of a new public policy on riparian rights for nonnavigable rivers and streams in Illinois, which constitute the majority of waterways in this state. As the parties’ arguments and the amicus curiae briefs demonstrate, plaintiffs’ request for a new public policy involves significant competing interests that we believe the General Assembly is better equipped to address.

Holm v, Kodat, 2022, IL 127511, Para. 56

Which means that – although one could argue that resolving disputes among competing interests is what courts are for – these Justices certainly don’t want to get involved in resolving these “significant” competing interests. So they’re letting the law stand and in so many words, telling the paddling community, “Go ask your Mother.”

In addition, Justice P. Scott Neville, Jr. writes in a specially concurring opinion signed onto by Chief Justice Anne Burke:

I believe it is time for Illinois to move away from its common law that limits the use of nonnavigable 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…. I concur in the result reached in today’s opinion, but I encourage the legislature to promulgate legislation so that the state’s nonnavigable lakes, rivers, and streams are not limited to use by riparian landowners but are available to the public for recreational use.

Chief Justice Anne Burke, Holm v. Kodat, 2022 IL 127511, Para. 61,81

Finally, going back to a 1998 report that unfortunately has remained unpublished, entitled: “Water Law and Recreational Access”, the IDNR concluded that:

As more and more recreators use Illinois streams, their currently limited legal right to use non-public streams will at some time be challenged. When that challenge comes, regardless of how it comes, increasing the facilities and information that provide actual access to Illinois’ public and public use waters will have built a broader constituency to support further expansion of the public’s access rights. Building and informing this constituency is essential to affect the change in river access rights that recreators and conservationists desire.

Illinois Dept. of Natural Resources, Water Law and Recreational Access, Unpublished report

I couldn’t have said it better myself. This is precisely the legacy that we here at the Illinois Paddling Council wish to continue. Stay tuned…