To a degree poorly recognized, federal law provides robust protection for public rights to use inland waterways throughout the country, protection that displaces more constraining state laws. Federal protection is little needed in states where extensive public rights are recognized in a state’s public trust doctrine or elsewhere in state law. But it can and does broaden public rights in states such as Illinois, where state law bows to landowner desires to curtail the waterways open to the public and public uses in them. This Article explores the public rights protected by the still-effective Northwest Ordinance of 1787, in language guaranteeing public access that Congress would later apply in varied forms to some two dozen states outside the old Northwest Territory. It considers also the similar public rights protected by the federal navigation servitude, a kind of federal public trust doctrine. Together, these bodies of federal law set the terms of the public’s rights in Illinois waterways, overriding conflicting state common law and filling in the vast gaps in the state’s undeveloped public trust doctrine. Finally, the Article examines a novel bill introduced in 2023 in the Illinois legislature, one that would expand and protect public rights by insisting simply that the public enjoy the full range of rights recognized by federal as well as state law, a bill specially crafted to avoid claims of unconstitutional takings. Advocates for expanded public waterway access in other states may find that federal law offers them better prospects than would further efforts to extend a state’s public trust doctrine.
* Research Professor of Law and Swanlund Chair Emeritus, University of Illinois at Urbana-Champaign. This project began more than a decade ago only to be interrupted by many matters. Early work on it was much aided by Jillian Rountree, who is likely more surprised than I that the project has finally come together. Michael Blumm, a national expert on the issues covered here, provided thoughtful comments that led to many improvements. I thank them both.
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