Originally Posted by doughboy
It sounds like a lawsuit is going to be underway on the Lake Fork the first time it gets floated and fished this year. Now it needs boaters more than ever. It especially needs super pumas or similar size boats with fishermen. Their claim is that the property is losing value because of the water being fished. Does anyone know who to get in contact with for a little help in a situation like this?
FLOAT AND FISH THE LAKE FORK!!!!
The main challenge for private and public interests is to understand and learn their legal rights. In my learning and understanding, there are coexisting
rights that are dominant
to the other.
Water owners/users have the coexisting and dominant right to the USE of public waters incidental to recreational activities over the coexisting and servient private streambed property owner's rights of OWNERSHIP. There are Federal, Common and ancient laws that protect these coexisting rights.
Additionally, understand that this situation is about the Use of
rather than Access to/from
public waters incidental to recreational activity. The other issues and laws are harassment/trespassing/portage and takings (devaluing the real property and thus, his right of ownership)/exclusive capture. As for takings, many, and probably all, court cases have ruled that there is no taking, because the coexisting right to the use of the private property is dominant and causes no unnecessary injury to the private property landowner. Takings is the many taking from the few while exclusive capture is the few exclusively capturing from the many.
Also, understand that, under the Colorado State Constitution, Article 16, Section 5, http://www.i2i.org/Publications/Colo...n/iscolocn.htm
, Section 5, "Water of streams public property." The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.
. The Public also owns the fish in the water and, under the Public Use Doctrine, Public Trust, Equal Footing, etc, the rights of recreational use of
those waters and fish.
The challenges come in understanding and learning about the various court rulings, state laws and Attorney General opinions. Simply put, either they confuse the issues and, thus, the enforcement, or they don't rule on the issue in the first place. For example, the test for navigability has never been ruled on in Colorado. Clarity
, through cooperative understanding and learning, revision of existing legislated state statutes and/or judicial (court) rulings, is the solution.
Cooperation is probably the easiest path. Simply go talk to the guy, after reading up on the issues involved and talking with your County Sheriff and District Attorney, to provide him with clear, useful and issue oriented information and to see what can be worked out so that All Win
. That could solve your situation but may not solve the overall issue for others. However, this way costs zero dollars.
Legislation to clarify and revise existing law or create new law is probably the middle path as far as ease/difficulty. Learn and understand the various issues, then go talk with your local state representative or senator with your idea. They will either move it forward or not. This process costs time and probably money.
State ballot initiatives and Attorney General Opinions are also alternatives.
The judicial process is a real piece of work, though. Here in Colorado, with the Lake Fork Gateview/Cannibal case, and as in the Conatser case in Utah, they both took years and money to process. Conatser was resolved and clarified unanimously by the Utah Supremes while Colorado's Cannibal case didn't get resolved because Cannibal ran out of moolah, even though the defense attorney, in a law review article, inferred that Cannibal may have won on several grounds had the money not run out. C'est la Vie. Such is Life. That's the way the cookie crumbles. This process certainly costs time and money.
That being said, if you want to pursue the judicial path, it may be reasonable to first contact AmericanWhitewater.org 's Nathan Fey firstname.lastname@example.org
, coloradowhitewater.org Director of Access Mark Robbins email@example.com
, read http://www.coloradowhitewater.org/mc...34425&orgId=cw
and/or consider investing $30 for a CW membership (as a member, they may defend you, legally and financially) before testing things out. Also, as previously mentioned, either contact the Sheriff and DA prior to floating or have CW or AW contact them.
Understand, though, if the rancher is set on doing something, regardless of common sense, then your choice is to either submit or row, row, row your boat and catch, catch, catch some fish.