Who has access to smaller rivers in northern Illinois? It’s debatable, after this state Supreme Court ruling

Advocates and supporters of public waterways say they are concerned about the implications that a recent Illinois Supreme Court decision could have on the DuPage and Kishwaukee rivers.

The state’s highest court ruled in June that the public has no right to use part of the Mazon River in Grundy County that flows across private property for recreation purposes.

A court opinion filed around that time in reference to the case suggests that both sides disagreed over who could kayak and access the river at which points. The case, Holm vs. Kodat, involved two property owners who both owned land along the Mazon River. The plaintiffs argued that since they owned property along the Mazon, they had a right to navigate the entire waterway, even the portions of the river which abutted to land owned by someone else.

But the dispute has long been at issue for both parties.

ExpandAutoplay

Image 1 of 8

Kayakers paddle downstream in the Kishwaukee River Sunday, July 31, 2022, from the ramp at David Carrol Memorial Citizens Park in Genoa. (Mark Busch - mbusch@shawmedia.com/Mark Busch - mbusch@shawmedia.co)

In October 2019, the circuit court convened a hearing to weigh in on both sides’ cross-motions for summary judgement.

The court found that the plaintiffs had the right to navigate the waterway from access property to landlocked property, and then from landlocked property to the Pine Bluff Road bridge.

In January 2020, however, the decision was overturned by the circuit court in a ruling to assert that the defendant – a riparian property owner – had the right to exclude the public from the property, and access to its adjacent water, as its owner.

Since then, the Illinois Supreme Court has offered some clarification on the matter by maintaining the lower court’s ruling.

Chad Layton, the attorney for the defendants, said his clients view the outcome of the case favorably.

“We certainly feel that the court followed legal precedent that has existed for over 100 years,” Layton said.

Layton acknowledged that the Illinois Supreme Court’s ruling on the Mazon River could prompt other property owners elsewhere to follow suit and restrict public access to a private waterway.

“It’s a small body of water, but anybody who owns private property certainly could use the opinion to protect their private property,” Layton said.

DuPage River

It’s been about a year since controversy first came to surface over whether the public has a right to use the DuPage River, which runs through parts of Naperville, Plainfield, Bolingbrook and Shorewood, for recreation purposes.

Around that time, a Change.org petition began circulating from Plainfield resident Ralph Osuch urging people to protect public access to the DuPage River. The petition has gathered 11,272 signatures as of Thursday.

The effort was driven, in part, because of a complaint lodged by another Plainfield resident, William Sima, with the Illinois Department of Natural Resources. Sima cited trespassing and littering concerns and called for public access to the waterway to be prohibited until all tubing, boating and fishing regulations could be reviewed by authorities.

Osuch said the Illinois Supreme Court decision has not made him apprehensive about using the river.

“It has probably influenced it more to get things done through legislation,” Osuch said.

Osuch noted how Justice P. Scott Neville Jr. – joined by Chief Justice Anne Burke – said in the Supreme Court ruling that the state legislature should ensure non-navigable lakes, rivers and streams are not limited for use by riparian, meaning along the banks of a river, landowners but available to the public for recreational use.

“We’re doing what they’re telling us to do in their overview of the case,” Osuch said. “They said work with legislators and that’s what we’re doing.”

State Rep. Mark Batinick, R-Plainfield, said the Illinois Supreme Court’s decision was “an unfortunate ruling,” though it included a call for legislative action to bring water rights up to modern times.

Batinick said one solution the legislature can do is create a broader definition of navigable waters and continue to allow owners to keep land but not the water running over the land, which is common in other states.

State Rep. Janet Yang Rohr, D-Naperville, said she’s working on creating legislation that can ensure the public has access to waterways such as the DuPage River while at the same time respecting the rights of property owners. She said the Illinois Supreme Court ruling was “kind of mixed” but gave the legislature direction on how to address the issue.

“Given that ruling, what we’re doing now, I’m working with all the stakeholders, like the property owners and the businesses and constituents and residents who care about maintaining access to the DuPage River,” she said.

She said she believes it’s important for the public to have access to the DuPage River.

“I think the DuPage River is probably one of our gems in terms of natural resources,” she said.

Area water recreational enthusiasts have used public launches and access points developed along the DuPage River for years, though some question why they’re installed as it may add to the ambiguity surrounding the waterway’s status.

Batinick said something has to give.

“We need to tweak the law with what we’ve been doing in practice,” Batinick said.

Kishwaukee River

Matt Cape, owner of Genoa-based Paddle On! Outfitters, said he believes that entities responsible for installing launches and access points near waterways need to be held more accountable.

Cape said that much to his dismay, he’s heard stories of people while kayaking and canoeing being badgered by property owners who live around the Kishwaukee River, a nearly 65-mile river which runs throughout DeKalb, Boone, McHenry and Winnebago counties.

“If it’s law, that is law. But I wouldn’t really badger the kayakers or canoeists as much,” Cape said. “The towns that are surrounding these areas are installing these launches. [The] taxpayers are paying for these launches now.”

As of Aug. 18, officials with the IDNR did not respond to questions related to whether the Belvidere Dam, which is owned and maintained by the Office of Water Resources, impacts the Kishwaukee River from being classified as a public waterway.

Rolling Meadows residents John and Elizabeth Hambleton, who both kayaked the Kishwaukee River this summer, said they were unfamiliar with the Illinois Supreme Court ruling and the impact it could have on smaller waterways.

“That’d be a bummer,” John Hambleton said. “This is our first time coming on this river.”

“I was glad that there was a service to do the float trip to come out and use the river,” Elizabeth Hambleton said. “I think public access is just part of rivers.”

But that’s not always the case as the Illinois Supreme Court’s ruling on the Mazon River case shows.

John said he hopes lawmakers do what he believes is necessary to protect public access to waterways.

State Rep. Jeff Keicher, R-Sycamore, said the current law on the books could be updated. He said it appears the legislation, as written, is under-appreciated the further east one might travel toward Chicago.

“I think the justices are right to say we should talk about it, but nobody has suggested what a change should look like,” Keicher said.

Keicher said it’s clear that the matter is not only a farm issue but a private property issue. He suggested state lawmakers should allow some time before bringing the matter back for debate to develop new ideas with the public.

Sarah Fox, associate professor of law for Northern Illinois University, said she believes the Illinois Supreme Court’s decision clarifies the state’s river rules and eliminates some ambiguity.

“What it essentially does is give [property owners] more power to fight back,” she said.

But Fox said the court’s ruling doesn’t resolve all conflicts over river access in the state.

“We could see certainly different kinds of situations, but I do think it tees up for additional action by the legislature to address this concept of navigability and what actually counts as a public waterway,” Fox said. “And different states have different laws on this.”

Cape said he’s noticed over the years growing complaints from property owners.

“It’s a sad thing, but what we try to do at Paddle On! [Outfitters] is encourage everybody with a speech: ‘Do not pollute the river,’ ” Cape said. He said he usually prefers that paddlers notify him of areas where trash cleanup is required, rather than traversing onto private property to pick it up.

Cape said it’s clear that property owners may have some sway on this matter, but the bottom line is that it’s just water.

“It’s something that you should be proud of,” Cape said. “There’s some hidden gems out here in northern Illinois that people should experience and should see the beauty of it. There’s not a whole lot going on in the outdoor world besides hiking out in this area, northern Illinois, Chicago area. … That’s why I love kayaking.”