Defenders and proponents of public waterways are concerned about the implications a recent Illinois Supreme Court ruling could have on the DuPage and Kishwaukee rivers.
The state’s highest court ruled in June that the public is barred from using a portion of the Mazon River in Grundy County that crosses private property for recreational purposes.
The case, Holm vs. Kodat, involved a dispute over who could kayak and access the non-navigable river. Under Illinois law, a waterway is considered non-navigable if it is not deep enough for commercial vessels to use.
The plaintiffs originally sought a court order in 2018 stating they had the right to kayak the 28-mile length of the river, including through property they did not own.
A Grundy County court initially sided with plaintiffs in October 2019, but reversed its own decision about three months later, maintaining that longstanding Illinois common law state that landowners hold a private property interest in the middle of a waterway, including a right to exclude others from the property.
In a June 16 ruling, 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 defendants’ attorney, said his clients view the outcome of the case favorably.
“We certainly believe the court followed legal precedent that has existed for over 100 years,” Layton said.
Layton acknowledged that this could spur other landowners elsewhere to follow suit and restrict public access to a private waterway.
“It’s a small body of water, but anyone with private property could definitely use the opinion to protect their private property,” Layton said.
It’s been about a year since controversy first surfaced over whether the public has the right to use the DuPage River, which runs through parts of Naperville, Plainfield, Bolingbrook and Shorewood, for recreational purposes.
Around this time, a Change.org petition began circulating from Plainfield resident Ralph Osuch urging people to protect public access to the DuPage River. The petition garnered 11,272 signatures on Thursday.
The effort was prompted, in part, by a complaint filed by fellow Plainfield resident William Sima with the Illinois Department of Natural Resources. Sima referred to trespassing and littering and asked that public access to the waterway be prohibited until all regulations on tubing, boating and fishing can be reviewed by authorities.
Osuch said the Illinois Supreme Court decision did not cause him to fear using the river.
“That probably influenced him more to get things done through legislation,” Osuch said.
State Representative Mark Batinick, a Republican from Plainfield, said the Illinois Supreme Court’s decision was “an unfortunate decision.” One solution, he said, is to create a broader definition of navigable waters and continue to allow owners to keep the land but not the water flowing over the land, which is common in other states.
State Representative Janet Yang Rohr, a Democrat from Naperville, said she was working on legislation to ensure the public has access to waterways such as the DuPage River while respecting property owners’ rights.
“I work with all stakeholders, such as landowners, businesses, constituents and residents who care about maintaining access to the DuPage River,” she said. “I think the DuPage River is probably one of our natural resource gems.”
Matt Cape, owner of Paddle On! Outfitters, said it has heard stories of kayakers and canoeists being harassed by landowners who live around the Kishwaukee River, a nearly 65-mile waterway that 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 unaware of the Illinois Supreme Court ruling and the impact it could have on small waterways.
“It would be a disappointment,” said John Hambleton. “It’s the first time we’ve come to this river.”
Sarah Fox, associate professor of law at Northern Illinois University, said she thought the decision clarified the state’s river rules and removed some ambiguities.
“What it essentially does is give (owners) more power to fight back,” she said, but added that it doesn’t resolve all disputes over river access in the area. ‘State.
“We could definitely see different kinds of situations, but I think that requires additional action by lawmakers to address this concept of navigability and what actually counts as a public waterway,” Fox said. “And different states have different laws about that.”
Cape said he has noticed increasing complaints from landlords over the years.
“It’s a sad thing, but what we try to do at Paddle On!” has hidden gems here in Northern Illinois that people should discover and see the beauty of it. Not much going on in the outside world other than hiking in this area, northern Illinois, Chicago area. … That’s why I love kayaking.”