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![handle is hein.sag/sagnh0002 and id is 1 raw text is: February 11, 1998
Wayne E. Vetter, Executive Director
New Hampshire Fish and Game Department
2 Hazen Drive
Concord, New Hampshire 03301
Dear Mr. Vetter:
You have inquired as to the legal standard for determining whether or not a particular river is a public water.
The request arises out of an application for an aquaculture license to conduct a fee fishing operation in the
North Branch River in Stoddard, New Hampshire. The Department's administrative rules, Fis 807.02, prohibit
aquaculture operations in public waters.
For the reasons set forth below, I conclude that a river which can be traversed by canoe or kayak under
ordinary conditions for some portion of each year, or which is capable in its natural state of providing some
other useful service to the public, is a public water. The Department of Environmental Services is the
appropriate agency to conduct a factual inquiry into whether the North Branch River meets this test.
Under the public trust doctrine, all public waters are held in trust by the State for the benefit of the public.
Opinion of Justices, 139 N.H. 82 (1994); Concord Mfg. Co. v. Robertson, 66 N.H. 1 (1889). Public waters
may be used to boat, bathe, fish, fowl, skate, cut ice, and other lawful and useful purposes. Hartford v.
Gilmanton, 101 N.H. 424 (1958); State v. Sunapee Dam Co., 70 N.H. 458, 460 (1900). Public waters include
tidal waters, great ponds of 10 acres or more, and certain rivers. RSA 271:20; Opinion of Justices, 139 N.H.
82; St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164 (1942). Rivers are
distinguished from other public waters by the fact that the submerged land below the river may be privately
owned, even when the water itself is held in trust by the State. New Hampshire Water Resources Bd. v.
Lebanon Sand and Gravel, 108 N.H. 254 (1967).
All navigable rivers, as well as useful non-navigable rivers, are classified as public waters under New
Hampshire law. RSA 271:9, enacted in 1911 and never amended, defines [n]avigable streams or waters as
those which are used, or are susceptible of being used in their ordinary condition, as highways for commerce,
over which trade or travel is or may be conducted in the present customary modes of trade or travel on
water, and such term shall not apply to streams or waters which are used merely as public highways for
floating logs.
RSA 271:9.
In 1942, the New Hampshire Supreme Court concluded that navigability is not the sole criterion for
determining whether a stream is a public water. The inquiry under the common law is factual in nature,
focusing on whether the river in question is capable of useful service to the public within the context of the
public trust doctrine:
When a river or stream is capable in its natural state of some useful service to the public because of its
existence as such, it is public. Navigability is not a sole test, although an important one. Although the line
between public and private ponds has been drawn on the basis of acreage, that between public and private
streams has not been and is to be determined as a question of fact under the test stated.
St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164 (1942). In the St. Regis case,
the Court implied that a stream's suitability for transporting floating logs could qualify the stream as a public
water, despite RSA 271:9's exclusion of such streams from the definition of navigable. Suitability for
fishing, by itself, does not suffice to make a water public; however, there is a public right to free passage by
migratory fish up and down even nonpublic waters. Beach v. Morgan, 67 N.H. 529 (1893)(owner of nonpublic
stream has right to exclude public from fishing there); State v. Roberts, 59 N.H. 256 (1879).
A river which can be traversed by canoe or kayak under ordinary conditions for some portion of each year is
a public water. Canoeing and kayaking are customary modes of trade or travel on water encompassed
within the statutory definition of navigability. RSA 271:9; cf. RSA 210:11, I. In addition, recreation is an
accepted public use under the public trust doctrine. Hartford v. Gilmanton, 101 N.H. 424 (1958). Thus,
recreational boating should be understood to be a useful service to the public within the Court's meaning in](ViewImageLocal?handle=hein.sag/sagnh0002&div=1&collection=&method=preview&ext=.png&size=3)