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Driven to Act: Senate Bill 155 Lightens Traffic on Texas Riverbeds

It may seem odd to residents of other states that Texas would need to pass legislation concerning driving motor vehicles in riverbeds. Rivers carry boats, not cars, right? Even under normal flow conditions, however, some Hill Country rivers pass through and over karst limestone formations or extensive gravel beds, and partially disappear only to reemerge some distance downstream. And in times of drought, Texas rivers can dry up altogether. Thus, some rivers can be drivable, at least some of the time, and in recent years, recreational motor vehicle use in Texas riverbeds has grown in popularity.1

In Texas, the land under navigable streams2 is legally open for public access.3 No state agency, however, holds plenary responsibility for the management of freshwater riverbed lands. In effect, the Texas Legislature is the land manager for most of the roughly one million acres underlying navigable fresh water in Texas.4 By contrast, the Texas Parks and Wildlife Department (TPWD) manages the state parks,5 and the Texas General Land Office (GLO) oversees coastal submerged lands.7 Various state agencies have been allotted authority over limited aspects of freshwater riverbeds,8 but no agency is generally in charge. As a result, when new riverbed usage issues arise, the Legislature must address them directly. When deeds show private ownership of the beds of navigable streams, some believe that public use of these areas (whether by motor vehicle or some other means) is trespassing. A 1920s law called the "Small Bill," however, made clear that the public may legally access navigable streams regardless of a valid deed to the riverbed's surface.8 A 1956 Attorney General Opinion established that the public's right to use Small Bill streams persists even when the stream is dry.9 Public access to rivers is legally protected, and physical entry is easy in many parts of Texas. Indeed, it is a criminal offense to obstruct the inter­section of a public road and a navigable waterway.10 Although nothing obligates governmental road authorities (mostly the State and counties) to make a special effort to enable passage between roads and waterways, many river crossings lie directly on the bed of waterways. Called "low-water crossings" by Texans, these intersections are passable at low water, and a driver may need only to turn the steering wheel to drive off the road and into the streambed.

S.B. 155: Restricting Motor Vehicle Use In Protected Freshwater Areas

Unlike other large western states (e.g., California and Arizona), Texas lacks a developed program serving motor vehicle enthusiasts on public lands, perhaps in part because Texas boasts a disproportionately small amount of public land compared to other western states. Not surprisingly, riverbeds - public, accessible, free, and minimally supervised - have become an increasingly attractive destination for off-roaders in recent years. Many different types of motor vehicles have navigated the riverbeds, including all-terrain vehicles, customized off-road vehicles, motorcycles, and ordinary pickups and sport-utility vehicles. Riverside landowners, environmental groups, and law enforcement authorities, however, have viewed the growing parade of motor vehicles in rivers with alarm and frustration. These groups link off-roaders to trespass, property destruction, and other invasions of property rights, including destruction of natural resources, excessive noise, and other obnoxious activity. Most of these groups also consider this activity incompatible with other riverbed uses. The motor vehicle recreation community has disputed these objections, and asserted that its rights are equal to those of other users.11 These arguments parallel the national controversy over use of public lands by ATVs, snowmobiles, and other motor vehicles.12 These issues were raised before the 77th Legislature in 2001, which appointed an interim study committee to hear testimony from advocates on both sides. During the 78th Legislature in 2003, Senator Zaffirini introduced S.B. 155, accompanied by a companion bill in the House sponsored by Representative Puente, H.B. 305. Ultimately, S.B. 155 passed and became effective on September 1, 2003. The heart of S.B. 155 is its prohibition against operating a motor vehicle in or on a protected freshwater area, beginning January 1, 2004.13 Violation of the provision will be prosecuted as a misdemeanor.14 The term "protected freshwater area" means those state-owned or publicly accessible portions of a navigable river or stream above tidewater limits.15 In Texas, this area is the land between the "gradient boundary"16 on each side of the river. The definition of "navigable stream" comes directly from the definition of a "statutory navigable stream" in the Texas Natural Resources Code.17 Many exceptions to the general prohibition exist, including:

These exceptions share a common theme: all allow motor vehicle use when necessary, but not for solely recreational purposes. Subsection (c) further reinforces this theme, providing that when an exemption applies, the motor vehicle should avoid damage to natural resources and cross by the most direct means possible.19 Although S.B. 155 applies to most of the navigable rivers in Texas, subsection (b) exempts rivers "with headwaters in a state other than Texas and a mouth or confluence in a state other than Texas. "20 As a practical matter, this exemption applies to two Panhandle waterways: the Prairie Dog Town fork of the Red River and the Canadian River.21 Recognizing the possibility of unique local circumstances and a potential desire for local control, section 90.004 enables local authorities - counties, municipalities, and river authorities - to permit motor vehicle access to waterways within their jurisdictions if certain criteria are met. The locality must obtain prior TPWD approval, which requires that the local plan meet seven criteria:

The TPWD may adopt rules to add additional criteria or procedures, and the TPWD is granted broad rulemaking authority under Chapter 90 that it has not yet exercised.22 Local plans approved by the TPWD, but which fail in practice to meet the seven criteria, are subject to revocation. Local authorities may charge fees as part of the local plan, and they must remit a portion of any fees to the TPWD to offset administrative costs. As of March 31, 2005, two local plans had been submitted and approved by the TPWD: one by Mason County on the Llano River, and the other by the City of San Felipe on the Brazos River.

Additional Protections To Public Access and Right of Use

In addition to addressing motor vehicles, S.B. 155 tackled several other issues regarding river navigation. Section 1 recognized that public access to Texas rivers is "a right granted to individuals under the Texas Constitution, "23 but emphasized that this access should not cause uncontrolled damage to rivers and streams or infringe on private property rights.24 To protect public access, the bill makes it a misdemeanor to restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area except as otherwise allowed by law.25 While it had been illegal to harass or intentionally interfere with persons who were lawfully hunting and fishing,26S.B. 155 also extends comparable protections to river uses other than hunting or fishing, such as canoeing or birdwatching.27 It is widely recognized that prudent exercise of the constitutionally protected navigation right can entail temporary use of riverbanks to portage or scout obstructions, though the banks may be private property.28 S.B. 155 strikes a balance between the navigation right and private property interests by providing that portaging or scouting obstructions do not create a prescriptive easement over any private property so used.29 Thus, under S.B. 155, if private riverside property is used to portage or scout obstructions, the landowner does not bear any risk of permanent loss of a property interest.30 Should it become unnecessary to use that particular riverside property to portage or scout obstructions (for example, because the river changes course), the public right of use disappears.

Conclusion

Although motor vehicle recreation enthusiasts lost access to most riverbeds due to Senate Bill 155, the Legislature acknowledged their plight and took steps to provide outlets for their chosen activity. Section 90.009 of the Texas Parks and Wildlife Code requires the TPWD to establish a program to identify and facilitate the development of motor vehicle recreation sites outside of protected freshwater areas, and to report to the Legislature regarding these recreation sites.31 Bob Sweeney is a staff attorney in the legal division of the Texas Parks and Wildlife Department in Austin, specializing in natural resources and administrative law. He participated in the regulatory and legislative processes that led to the passage of SB 155. Sweeney was previously an associate with Jones, Day, Reavis & Pogue in Washington, D. C. and senior water quality attorney at the Texas Commission on Environmental Quality in Austin. His email address is robert.sweeney@tpwd.state.lx.us. The author thanks Boyd Kennedy for his assistance with this article.

Endnotes

1 Chip Cummins, Off-Road Vehicles Now Ply the Waters of Southwest Texas , WALL ST. J., Apr. 22, 2002, at AI.

2 Freshwater streams and rivers are open to the public if they meet anyone of three tests: (1) "Navigable by statute" (TEX. NAT. RES. CODE ANN. § 21.001(3) (Vernon 2001); "'Navigable stream' means a stream which retains an average width of 30 feet from the mouth up"); (2) "Navigable in fact"; (3) or recognition as a perennial stream under a Spanish land grant issued prior to December 14, 1837. JOE RIDDELL, OVERVIEW OF LAWS REGARDING THE NAVIGATION OF TEXAS STREAMS, WITH SELECTED REFERENCES TO STATUTES, CASES, AND OTHER MATERIALS (2004), at http://www.tpwd.state.tx.us/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/index.phtml

3 TEX. PARKS & WILD. CODE ANN. § 1.0 11 (c) (Vernon 2002) (" All the beds and bottoms and the products of the beds and bottoms of the public rivers, bayous, lagoons, creeks, lakes, bays, and inlets in this state and of that part of the Gulf of Mexico within the jurisdiction of this state are the property of this state. The state may permit the use of the waters and bottoms and the taking of the products of the bottoms and waters."); TEX. CONST. art. XVI, § 59 (recognizing the public navigation right: "The conservation and development of all of the natural resources of this State, . . . including. . . the navigation of its inland and coastal waters, . . . are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto."); Selman v. Wolfe, 27 Tex. 68, 71 (1863); State v. Grubstake Inv. Ass'n., 117 Tex. 53, 63-64, 297 S.W. 202, 205-206 (1927); State v. Bradford, 121 Tex. 515,543-545,50 S.W.2d 1065, 1076 (1932); Maufrais v. State, 142 Tex. 559, 566; 180 S.W.2d 144, 148 (1944).

4 TEX. GEN. LAND OFFICE, UNAUDITED ANNUAL FINANCIAL REPORT 39, (2004). The Legislature has, however, transferred the land underlying navigable streams within cities that had a population of 40,000 or more according to the 1920 census to the cities themselves (e.g. Beaumont, Dallas, El Paso, Fort Worth, Galveston, Houston, San Antonio, and Wichita Falls). TEX. REV. CIV. STAT. ANN. art. 7467 ( Vernon 1966). Moreover, other cities (Waco and Austin) have acquired title to riverbeds within those cities by conveyance from the State. Act of May 17, 1965, 59th Leg., R.S., ch, 158, § 1, 1965 Tex. Gen. Laws 334; Act of May 30, 1969, 61st Leg., R.S., ch, 726, § I, 1969 Tex. Gen. Laws 2122; Act of Mar. 23, 1945, 49th Leg., R.S., ch, 44, § I, 1945 Tex. Gen. Laws 64. There may be other cases where the public ownership resides in the municipality rather than the state. See, e.g., Heard v. Town of Refugio, 129 Tex. 349, 361, 103 S.W.2d 728, 734 (1937) (in which ownership of the riverbed was held to have been quitclaimed to the municipality).

5 TEX. PARKS & WILD. CODE ANN. § 13.001(a)(1) (Vernon 2002).

6 TEX. NAT. RES. CODE ANN. §§ 11.041(a)(1)-(3) (Vernon 2001) (covering riverbeds under the purview of the Permanent School Fund), id. § 33.001 (dictating man­agement of the Permanent School Fund).

7 See, e.g., TEX. PARKS & WILD. CODE ANN. § 86 (Vernon 2002) (granting authority to the TPWD to manage sand, gravel, and marl located in the beds of public freshwa­ ter streams); TEX. NAT. RES. CODE ANN. § 11.041 (Vernon 2001) (granting authority to the GLO to manage min­eral rights underlying public freshwater streams), §51.291 (Vernon 2001) (granting the GLO authority to issue easements for pipeline and utility line crossings of land underlying public fresh water).

8 TEX. REV. CIV. STAT. ANN. arts. 5414a, 5414a-l ( Vernon 1962).

9 Op. Tex. Att'y Gen. No. S-208 (1956).

10 TEX. PENAL CODE ANN. § 42.03(a)(1) (Vernon 2003); see Cornelison v. State, 40 Tex. Crim, 159, 160, 49 S.W. 384, 384-5 (1899). For an excellent discussion of the criminal aspects of river access law, see Boyd Kennedy, If a River Runs Through It, What Law Applies?, 32 TIlE TEXAS PROSECUTOR 20, 22 (2002). http://www.tpwd.state.tx.us/publications/nonpwdpubs/water_issues/rivers/navigation/index.phtml

11 See Ralph Winingham, 4-Wheelers Blamed for Nueces Woes, SAN ANTONIO EXPREss-NEWS, Nov. 24, 2001, at lC; Bill Cockerill, Landowners, Four-Wheelers Air Addi­tional Concerns at Nueces River Forum, UVALDE LEADER­NEWS, Oct. I, 2000, at 1; Ron Henry Strait, Streambed Task Force Hammers Out Two Options, SAN ANTONIO EXPRESS-NEWS, July 28, 2002, at 17C; John Young, The Sport-Utility Vehicle Shall Inherit the Earth, AUSTIN AMERICAN-STATESMAN, Mar. 25, 2002, at All.

12 Jason Tanz, Making Tracks, Making Enemies, N.Y. TIMES, Jan. 2, 2004, at IF; Dana Canedy, Land Advocates and Drivers Reach Fork in the Off-Road, N.Y. TIMES, Mar. 24, 2002. at lA.

13 Act of June 20, 2003, 78th Leg., R.S., ch, 800, § 2, 2003 Tex. Gen. Laws 2348 (codified at TEX. PARKS & WILD. CODE ANN. § 90.001).

14 /d. (codified at TEX. PARKS & WILD. CODE ANN. § 90.011).

15 Id. (codified at TEX. PARKS & WILD. CODE ANN. § 90.001(3)).

16 The Supreme Court of Texas adopted "gradient bound­ary" as the property line on riverbanks in Motl v. Boyd, 116 Tex. 82, 109,286 S.W. 458, 468 (1926). Motl relied on the U.S. Supreme Court's adoption of this standard in Oklahoma v. Texas, 260 U.S. 606, 632 (1923). See generally Arthur Stiles, The Gradient Boundary-The Line Between Texas and Oklahoma Along the Red River, 30 TEX. L. REV. 305 (1952).

17 See supra note 3 regarding the definition of navigable stream.

18 Act of June 20, 2003, 78th Leg., R.S., ch, 800, § 2, 2003 Tex. Gen. Laws 2348 (codified at TEX. PARKS & WILD. CODE ANN. § 90.003(a)).

19 Id. (codified at TEX. PARKS & WILD. CODE ANN. § 90.003(c)). 20 Id. (codified at TEX. PARKS & WILD. CODE ANN. § 90.003(b) ).

21 Once the Prairie Dog Town Fork of the Red River reaches Oklahoma at the eastern edge of Childress County, Texas, the entire bed of the Red River is part of the State of Oklahoma, inasmuch as the southern edge of the river has been determined to be the state line. Oklahoma v. Texas, 261 U.S. 340, 341 (1923).

22 Act of June 20, 2003, 78th Leg., R.S., ch, 800, § 2, 2003 Tex. Gen. Laws 2348 (codified at TEX. PARKS & WILD. CODE ANN. § 90.004(i)).

23 Id. (codified at TEX. PARKS & WILD. CODE ANN. § 90.001).

24 Id.

25 Id. (codified at TEX. PARKS & WILD. CODE ANN. § 90.008).

26 The Sportman's Rights Act makes it illegal to harass or intentionally interfere with persons who are lawfully hunting and fishing. Sportsman's Rights Act, TEX. PARKS & WILD. CODE ANN. § 62.0125(c) (Vernon 2002).

27 Act of June 20, 2003, 78th Leg., R.S., ch. 800, § 2, 2003 Tex. Gen. Laws 2348 (codified at TEX. PARKS & WILD. CODE ANN. § 90.008).

28 RIDDELL, supra note 2 (citing Economy Light & Power v. United States , 256 U.S. 113, 122 (1921) and Montana Coalition for Stream Access v. Curran, 682 P.2d 163, 172 ( Mont. 1984)).

29 Act of June 20, 2003, 78th Leg., R.S., ch. 800, C 2, 2003 Tex. Gen. Laws 2348 (codified at TEX. PARKS & WILD. CODE ANN. § 90.007).

30 By comparison, the Open Beaches Act confirms public rights to use private property on beaches seaward of the vegetation line:§ 61.011. POLICY AND RULES. (a) It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico. TEX. NAT. RES. CODE ANN. § 61.011 (Vernon 2001). The public holds property rights on the beach even above the line of state ownership if it can be demonstrated as a matter of fact that the public has used this beach "since time immemorial" and thereby established an easement or other property interest over what would otherwise be private land. TEX. NAT. RES. CODE ANN. § 61.001(8) (Vernon 2001). In a disputed case, it is a question of fact as to whether the public right has been established on a particular stretch of beach. State v. Markle, 363 S.W.2d 332, 336 (Tex. App.- Houston 1962, no writ) (relator "must establish rights of access to and the right to use the beaches to the line of vegetation by showing the rights have been acquired by dedication, prescription or long continued use"). The public right recognized under S.B. 155, by contrast, is limited to what is necessary to portage or scout obstructions in exercise of the navigation right, and would not extend to camping, picnicking, or other non-navigational uses.

31 Act of Sept. 1, 2003 S.B. 155, 78th Leg., 1st C.S. (codified at Tex, Parks & Wild. Code Ann. § 90.007).

About This Paper

by: BOB SWEENEY; Staff Attorney, Texas Parks and Wildlife Department*

Reprinted from the Spring 2005 issue of the State Bar of Texas Environmental Law Journal. Volume 35 with permission.

* This article does not represent official views of Texas Parks And Wildlife Department, and is not intended as legal advice.


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