Illinois River Access and River Rights, Holm v. Kodat – The Mazon River Fossil Case
When the Illinois Supreme Court’s decision in Holm v. Kodat was filed on June 16, 2022, both Supreme Court Justice Neville and advocates of recreational access lamented the decision as archaic and anachronistic. While a case about riparian rights and fossils may seem relatively unimportant to the daily lives of Illinoisians, the story of this case is more interesting than the legal topic might suggest.
The Mazon River is a tributary of the Illinois River. It is approximately 86 miles and drains an area of approximately 802 square miles. The river starts in Grundy County and flows through Will County and into the Illinois River near Morris. The Mazon River is a popular destination for recreational activities such as fishing, canoeing, and kayaking. The river is home to a variety of fish species including bass, catfish, and panfish. The Mazon River is also known for its high-quality water and diverse fish and wildlife populations, which are protected by the Illinois River Valley Conservation Reserve Enhancement Program.
What most people may not know, is that the Mazon River is known for its rich fossil deposits, which have been studied by paleontologists for over a century. The Mazon Creek fossils are preserved in ironstone concretions, which are formed when iron minerals precipitate out of the water and bind sediment together. The fossils found in these concretions are some of the best-preserved in the world and have provided scientists with a wealth of information about the plants and animals that lived in the area over 300 million years ago during the Pennsylvanian Period.
The fight over public access to the Mazon River had been working its way through the Circuit and Appellate Courts in Illinois for years. The rich fossil beds, limited accessibility to fossils on public land, and the red-hot market for the quality fossils like those found in the Mazon River are at the heart of an otherwise mundane riparian property rights case. The Plaintiffs purchased two properties along the Mazon River. The first property consists of 33 acres of landlocked, unimproved real estate with no road access. The second Property consisted of 9 acres with road access. The Plaintiffs operated a seasonal fossil hunting business on both properties where they collect fossils to sell to paleontologists and collectors.
The Plaintiff’s used kayaks on the Mazon River to travel from the road access property to the landlocked property, loaded their kayaks with fossils for transport on the Mazon River further downstream to Pine Bluff Road Bridge. During the course of their travel, the Plaintiff’s ride their kayaks on the Mazon River through properties owned by Defendants.
The outcome of this case is surprising. The Courts decision was based on hundreds of years of common law. In Illinois, when the landowner’s property is adjacent to a river or waterway, he or she owns to the center of the waterway. Schulte v. Warren, 218 Ill. 108, 117 (1905). Thus, if a riparian owner owns both sides of the river, they own “the whole of the bed of the stream to the extent of the length of his lands upon it.” However, be very cautious in restricting anyone because this rule only applies in some situations. See the last paragraph of this article for more information. People ex rel. Deneen v. Economy Light & Power Co., 241 Ill. 290, 318 (1909). The Court was unwilling to consider this basic premise of common law riparian rights.
Instead, what the Court did was present their preferred legal path to changing how navigable waterways are categorized. The path the Court laid out maintains centuries of common law doctrine but changes on the definition of navigable waterways. The court has a long-standing recognition 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.” Leitch, 369 Ill. at 475. 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.” DuPont v. Miller, 310 Ill. 140, 145 (1923). If, however, the waterway is non-navigable, the riparian owner owns “the bed of the stream…absolutely, free from any burdens in favor of the public.” Economy Light & Power, 241 Ill. at 318 (citing Washington Ice Co. v. Shortall, 101 Ill. 46 (1881)).
The issue the Court decided to address, was whether there is a public right to use a non-navigable river. When the issue is framed in this light, the hundred of years of common law clearly preclude public access. Not all hope is lost. The key to challenging the outcome of this case is centered solely on what constitutes a navigable waterway. If the Mazon river can be considered a navigable waterway, then the Plaintiff’s would have a public easement and the right to use the river when it flowed across the Defendants property. The Court simply refused to address this glaring issue and instead turned to the legislature claiming that the Courts hands were tied by common law.
Justice Neville, in his concurring opinion, lays out the suggested doctrine and legal basis for the legislature to enact a change in the in what constitutes navigable waterways. Relying on the recreational navigation doctrine, Justice Neville explains that each state has full jurisdiction over how they categorize waterways. Justice Neville laments that the increase in public recreational use of rivers and streams has not occurred in Illinois due to the archaic and anachronistic common-law rules that restrict public access to state waterways.
Justice Neville advocates for what is known as the “recreational navigation doctrine”. This doctrine is a legal principle that allows the public to navigate on certain bodies of water, such as rivers, lakes, and coastal waters, for recreational purposes without obtaining permission or paying fees. This doctrine is based on the idea that these bodies of water are resources that should be accessible to all members of the public for recreational use. However, the doctrine does not give the public the right to interfere with the rights of private property owners or to engage in activities that are harmful to the environment or to other users of the waterway.
Justice Neville invites the legislature to enact the doctrine, going out of his way to provide the legislature with what is essentially a judicial blessing of the statutory change stating “There is no question that the adoption of the recreational navigation doctrine is supported by Illinois public policy favoring the use of waterways for recreational purposes.”
An issue likely to cause concern to the general public, unconstitutional taking claims, is addressed by Judge Neville’s anticipated Court response;
“Illinois would benefit if the recreational navigation doctrine was codified in a public domain declaration. This would avoid, or at least minimize, litigation by avoiding takings claims related to federal and state constitutional limitations on government condemnation. When declarations fall under the public domain assertions, any deprivation of property rights claimed by riparian landowners will be a deprivation of a right they never truly possessed, as the right remained with the state.”
But all the legal handwringing belies a glaring error in the opinion. The question the Court should have addressed is whether the Mazon River is a waterway which “affords a channel for useful commerce and practical utility to the public.” The Court, in one swift hammer of the gavel states, “it is undisputed that the Mazon River is a non-navigable river and, therefore, has no public easement for access.” How could the court so quickly erase the most pressing legal concern without so much as an explanation? This case was never about recreational access to a river. This case was always about how we define commercial use of a river and practical utility to the public. The focus of the case and the opinion should have been on the ability of the waterway to be used for commercial use. The court punted on the real legal issue.
In the State of Illinois, the State publishes a list of navigable waterways. If a waterway is listed, public access is allowed including all areas of the waterway such as channels, backwaters, cannels, streams, tributaries, and creeks. See Section 3704, Appendix A of the ILL. ADM. CODE CH. I. An example is the Fox Chain-O-Lakes and the Fox River. If a waterway is listed on the state list, a property owner cannot restrict anyone from using the waterway. This means that any person in a boat, kayak, or even floating on an inner tube can go anywhere they want on the listed waterway even right up to the shore.
 Schulte v. Warren, 75 N.E. 783, 785 (Ill. 1905).