American Whitewater
Nebraska Navigability Report
Summary
The public has the right to float the streams and rivers of Nebraska. The public also has the right to portage around obstructions in any river or stream while navigating with a non-powered craft.
State Test of Navigability
Nebraska case law defines navigability as ”[w]hen the government, in its survey, runs meander lines along the banks of a stream and parts with its title to the adjoining land, the boundary of which would be high-water mark, then it would seem permissible to classify the stream as navigable, in which case the waters thereof and the bed there under would belong to the state, and be held by it in trust for the people.”1) The only river that has been declared navigable in Nebraska is the Missouri river.2)
Extent of Public Rights in Navigable and Non-Navigable Waters
Nebraska does not use navigability as a test for public access to rivers and streams for recreational purposes, and has very little law on the subject. Instead, Nebraska's Constitution dedicates the use of the water of every stream in the state to the public, whether the stream is navigable or not.3) State statute reiterates this right: “The water of every natural stream not heretofore appropriated within the State of Nebraska, including the Missouri River, is hereby declared to be the property of the public and is dedicated to the use of the people of the state, subject to appropriation.4) Thus, while the riparian owner may own the river bed, that ownership is subject to public navigation rights, and a boater should not be found to trespass while on the water.5) Moreover, by state law the public has “access by boat to any cutoff, chute, backwater, or bayou connected with any navigable stream located in the State of Nebraska.”6)
Hunting and fishing from a rowboat or other boat floating on a lake or river (i.e., watercraft “powered by man”) is permissible.7) Hunting, fishing, boating (beaching or tying craft to shore) on the riparian land next to a river or stream, however, is not legal.8) How a Nebraska court will rule with regard to contact with the streambed (such as wading) is unclear. Since portaging is allowed (see below), wading in the river appears to be acceptable as well, as long as the use of the river and bed is reasonable and unobtrusive.
The right of portage is allowed by statute in Nebraska. The statute exempts from criminal trespass liability boaters who enter private land while “in the process of navigating or attempting to navigate with a nonpowered vessel any stream or river in this state and found it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river.”9)
Miscellaneous
Criminal trespass on private land that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class III misdemeanor.10)