What supreme court ruling means for public access to small rivers in Illinois

Advocates and supporters of public waterways are concerned about the implications a recent Illinois Supreme Court decision could have on the DuPage and Kishwaukee rivers.

The state's highest court ruled in June that the public has no right to use part of the Mazon River in Grundy County that flows across private property for recreation purposes.

The case, Holm v. Kodat, involved a dispute over who could kayak and access the nonnavigable river. Under Illinois law, a waterway is considered nonnavigable if it is not deep enough for commercial vessels to use.

The plaintiffs initially sought a court order in 2018 stating they had the right to kayak the length of the 28-mile river, including through property they did not own.

A Grundy County court initially sided with the plaintiffs in October 2019, but reversed its own decision about three months later, staying that long-standing Illinois common law state that land owners hold a private property interest to the middle of a waterway, including a right to exclude others from the property.

In a decision handed down June 16, the Illinois Supreme Court upheld that decision. But Justice P. Scott Neville, joined by Chief Justice Anne Burke, wrote in a separate opinion that the state legislature should redefine navigability to be more inclusive and promote recreational uses of waterways for all.

Chad Layton, the attorney for the defendants, said his clients view the outcome of the case favorably.

“We certainly feel that the court followed legal precedent that has existed for over 100 years,” Layton said.

Layton acknowledged that the could prompt other property owners elsewhere to follow suit and restrict public access to a private waterway.

“It's a small body of water, but anybody who owns private property certainly could use the opinion to protect their private property,” Layton said.

DuPage River

It's been about a year since controversy first came to surface over whether the public has a right to use the DuPage River, which runs through parts of Naperville, Plainfield, Bolingbrook and Shorewood, for recreation purposes.

Around that time, a petition began circulating from Plainfield resident Ralph Osuch urging people to protect public access to the DuPage River. The petition has gathered 11,272 signatures as of Thursday.

The effort was driven, in part, because of a complaint lodged by another Plainfield resident, William Sima, with the Illinois Department of Natural Resources. Sima cited trespassing and littering concerns, and called for public access to the waterway to be prohibited until all tubing, boating and fishing regulations could be reviewed by authorities.

Osuch said the Illinois Supreme Court decision has not made him apprehensive about using the river.

“It has probably influenced it more to get things done through legislation,” Osuch said.

State Rep. Mark Batinick, a Republican from Plainfield, said the Illinois Supreme Court's decision was “an unfortunate ruling.” One solution, he said, is to create a broader definition of navigable waters and continue to allow owners to keep land but not the water running over the land, which is common in other states.

State Rep. Janet Yang Rohr, a Democrat from Naperville, said she's working on legislation to ensure the public has access to waterways such as the DuPage River while at the same time respecting the rights of property owners.

“I'm working with all the stakeholders, like the property owners and the businesses and constituents and residents who care about maintaining access to the DuPage River,” she said. “I think the DuPage River is probably one of our gems in terms of natural resources.”

Kishwaukee River

Matt Cape, owner of Genoa-based Paddle On! Outfitters, said he's heard stories of kayakers and canoeists being badgered by property owners who live around the Kishwaukee River, a nearly 65-mile waterway which runs through DeKalb, Boone, McHenry and Winnebago counties.

Rolling Meadows residents John and Elizabeth Hambleton, who both kayaked the Kishwaukee River this summer, said they were unfamiliar with the Illinois Supreme Court ruling and the impact it could have on smaller waterways.

“That'd be a bummer,” John Hambleton said. “This is our first time coming on this river.”

Sarah Fox, associate professor of law for Northern Illinois University, said she believes the decision clarifies the state's river rules and eliminates some ambiguity.

“What it essentially does is give (property owners) more power to fight back,” she said, but added that it doesn't resolve all conflicts over river access in the state.

“We could see certainly different kinds of situations, but I do think it tees up for additional action by the legislature to address this concept of navigability and what actually counts as a public waterway,” Fox said. “And different states have different laws on this.”

Cape said he's noticed over the years growing complaints from property owners.

“It's a sad thing, but what we try to do at Paddle On! is encourage everybody with a speech: ‘Do not pollute the river,'” Cape said. “There's some hidden gems out here in northern Illinois that people should experience and should see the beauty of it. There's not a whole lot going on in the outdoor world besides hiking out in this area, northern Illinois, Chicago area. ... That's why I love kayaking.”

An Illinois Supreme Court decision in June could threaten the ability of kayakers like these on the Kishwaukee River to use small waterways for recreational purposes. Mark Busch/Shaw Local News Network
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