Reply
 
Thread Tools Display Modes
 
Old 04-07-2009   #11
 
Snowhere's Avatar
 
Buena Vista, Colorado
Paddling Since: 93
Join Date: Feb 2008
Posts: 844
Why don't we organise a mass float through there? I would be game to come over with either my raft of kayak if I get a little notice.
__________________

Snowhere is offline   Reply With Quote
Old 04-07-2009   #12
 
Park City, Utah
Paddling Since: 1985
Join Date: Oct 2006
Posts: 700
Confrontation

If you are going to orchestrate a confrontation, involve AW up front.

As I point out on everyone of these access issues, do it right. The precedent set could re-write the access law for the state, and the funding from the land owners will greatly surpass that of the rafting companies, guides and kayakers. We are a bunch of gypsies getting by in life. They are land owners with their trophy properties and millions in the bank. (See Durango Steve) I personally don't like the idea of provoking the fight. I also want to look like the good guy if I ever have to go to court on an access issue.
__________________

__________________
Peace,
Canada is offline   Reply With Quote
Old 04-07-2009   #13
 
DurangoSteve's Avatar
 
Durango, Colorado
Paddling Since: 2001
Join Date: Jun 2006
Posts: 1,907
Well, when I decided to post, I knew I'd get flamed. Canada, just to set the record straight, I own a 1200 square foot, extremely modest home on a mere 300 ft. of river. I wish I had millions in the bank, but I'm a broke working stiff. I'm guessing that as an attorney, your net worth stomps all over mine...
__________________
You can never step into the same river; for new waters are always flowing on to you. - Heraclitus of Ephesus
DurangoSteve is offline   Reply With Quote
Old 04-07-2009   #14
 
Arvada (Denver), Colorado
Join Date: Jul 2005
Posts: 250
Rights to "Use of" and "Access to/from"

Quote:
Originally Posted by doughboy View Post
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 and servient 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 nathan@americanwhitewater.org , coloradowhitewater.org Director of Access Mark Robbins mrobbins@frii.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.
Ole Rivers is offline   Reply With Quote
Old 04-08-2009   #15
 
Park City, Utah
Paddling Since: 1985
Join Date: Oct 2006
Posts: 700
Access

Durango, not flaming on you. Just a poor attempt at humor.

I think this thread should have stayed on the main board. These issues are some of the most important we face. By moving something like this it is effectively killed. It is boating related and probably a bit more encompassing and relevant than whether Pedro swam or which creek boat is best.

Ole, it is the lack of a Supreme Court ruling that is the crux of the matter. While the argument that a party floating past your house is a taking lacks common law support, it certainly passes the smell test to an uneducated juror. i.e. They spent $1mil upgrading their property and then some guide is coming through and catching and killing all of their fish. While I find this mindset without merit, it exists. That is why we need to be careful that we don't test this idea with a confrontational keg filled in your face mass float.

I thought the new law here in Utah would result in someone getting shot. Maybe communication will work and I am just too jaded.
__________________
Peace,
Canada is offline   Reply With Quote
Old 04-08-2009   #16
 
DurangoSteve's Avatar
 
Durango, Colorado
Paddling Since: 2001
Join Date: Jun 2006
Posts: 1,907
Kinda thought so, but one of those smiley face thingies helps those of us who are slow on the uptake.

Just yesterday I had a run-in with a trespasser. I threatened legal action, but he just pooped on my deck... after he ate "my" trout.
Attached Thumbnails
Click image for larger version

Name:	osprey.jpg
Views:	118
Size:	397.9 KB
ID:	1213  
__________________
You can never step into the same river; for new waters are always flowing on to you. - Heraclitus of Ephesus
DurangoSteve is offline   Reply With Quote
Old 04-08-2009   #17
 
Park City, Utah
Paddling Since: 1985
Join Date: Oct 2006
Posts: 700
One of the things I love about fishing the green are the Osprey. It is so cool to see them swoop down and take a fish. That and the otters. It's the only place I've seen otters hang out with you through a drift.

Good picture
__________________
Peace,
Canada is offline   Reply With Quote
Old 04-08-2009   #18
God Amongst Men
 
yetigonecrazy's Avatar
 
Phuoc My, Da Nang, THE 'NAM
Paddling Since: 1845
Join Date: May 2005
Posts: 1,988
My take on it is this:

The guy spent millions of dollars to improve the riverbed for fishing and for the economic prosperity of his resort. This I have no problem with. Now he doesn't want the floaters to come through because he doesn't want people to fish in the improvements he spent so much to build. This is where I make my stand. I don't think we should be fishing in the reaches along his property, IF, he allows us access to just scoot through. I honestly think it's kinda rude to fish in an area like that, and as long as he lets people float through there is no big deal. My big problem is when he restricts access altogether.

There is a situation on the Gunnison that has resolved itself pretty well over the years just below town where it goes through private property owned by these (fortunately very nice) folks from texas. They spent a whole bunch of money a number of years back to re-shape the riverbed into prime fishing country. Now, they are kind enough to let folks float though, but they strongly discourage fishing in that area, and most of the folks that run the river comply with those wishes, because the Moncriefs do allow us to run through without problem.

I know some of you are serious fishermen and will disagree with me on this, but that is how I feel. Let us pass through, and we will do so quietly and quickly, and we'll refrain from fishing until the public areas. Seems a little bit like giving in to him, but its really not.
__________________
"Don't f$&@ing eddy out, just run it! Whaddya doin??" -LMyers
yetigonecrazy is offline   Reply With Quote
Old 04-08-2009   #19
 
Park City, Utah
Paddling Since: 1985
Join Date: Oct 2006
Posts: 700
Never simple

It is never that simple.

Yours (Yeti) is the courteous response. If you made your living taking people down the river and hauling out fish, you might feel differently. Many anglers feel differently. They see the infrastructure the state has put into sustainable wildlife, and believe we the people own the fish and have a right to fish for them. As a landowner, I am probably somewhere in the middle. Like Durango, I am a fly fisherman and don't have a problem with people accessing to chase with a fly. As evidenced by an earlier thread where Casper attacked us with mortality "facts" of a bait fisher versus a fly catch and release, even these facts can be skewed to support various opinions.

I've come down on the if you can float it, it should be open camp. I don't think you should be allowed to anchor or walk through private property, but you can float through it and fish or kayak. I actually think the Utah law went too far. I don't think you should be able to walk up an intermittent stream bed on someone’s private property.

I do chafe every time I come across a fence over a river or stream. I get angry when property owners sting cables over a river and create potential death traps.

Your answer is the best. If only we all could be courteous. As a fisherman I have had kayakers eddy out on my line while I had a fish on in the Colorado. As a boater I have had people intentionally throw lures at me as I quietly floated by. There are unfortunate parties on both sides of this issue that are just itching for a fight. It's this that probably leads to the Sheriffs giving tickets that are later thrown out in court. They are just de escalating the confrontation.
__________________
Peace,
Canada is offline   Reply With Quote
Old 04-08-2009   #20
God Amongst Men
 
yetigonecrazy's Avatar
 
Phuoc My, Da Nang, THE 'NAM
Paddling Since: 1845
Join Date: May 2005
Posts: 1,988
Quote:
Originally Posted by Canada View Post
It is never that simple.

Yours (Yeti) is the courteous response. If you made your living taking people down the river and hauling out fish, you might feel differently. Many anglers feel differently. They see the infrastructure the state has put into sustainable wildlife, and believe we the people own the fish and have a right to fish for them. As a landowner, I am probably somewhere in the middle. Like Durango, I am a fly fisherman and don't have a problem with people accessing to chase with a fly. As evidenced by an earlier thread where Casper attacked us with mortality "facts" of a bait fisher versus a fly catch and release, even these facts can be skewed to support various opinions.

I've come down on the if you can float it, it should be open camp. I don't think you should be allowed to anchor or walk through private property, but you can float through it and fish or kayak. I actually think the Utah law went too far. I don't think you should be able to walk up an intermittent stream bed on someone’s private property.

I do chafe every time I come across a fence over a river or stream. I get angry when property owners sting cables over a river and create potential death traps.

Your answer is the best. If only we all could be courteous. As a fisherman I have had kayakers eddy out on my line while I had a fish on in the Colorado. As a boater I have had people intentionally throw lures at me as I quietly floated by. There are unfortunate parties on both sides of this issue that are just itching for a fight. It's this that probably leads to the Sheriffs giving tickets that are later thrown out in court. They are just de escalating the confrontation.
Really I guess I have no problem with drift fishing and downstream movement, I just think it is wrong to eddy out and sit there and fish for fifteen minutes in full view of the property. Yeah, maybe you're not touching anything but ultimately you're being a douchebag yourself, and it gives boaters in general a black eye. If you keep downstream progress while fishing then I really don't have a problem with it.

And I agree with your statement on the Utah law- there is a limit between being given access, and simply taking access. Hard to explain, but I feel like it is too much access power that could set a dangerous precedent.

I wish all states could adopt a policy similar to that of NM- its criminal trespass if you get out, UNLESS a) theres an obstruction forcing you to portage or b) there is a situation where you need to scout to safely proceed downstream. in both cases a small buffer zone (typically 15 to 25 feet ive heard?) on either side of the river allows you to be legal in that situation.
__________________

__________________
"Don't f$&@ing eddy out, just run it! Whaddya doin??" -LMyers
yetigonecrazy is offline   Reply With Quote
Reply


Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Similar Threads
Topic Thread Starter Forum Replies Last Post
lake fork of the gunnison crane Kayaking | Trip Planner 3 07-01-2008 07:15 AM
Lake Fork overlyworked Whitewater Kayaking 3 05-18-2007 09:26 PM
Lake Fork of the Gunny GunnyPaddler Whitewater Kayaking 2 03-22-2007 03:34 PM
Lake Fork Post Timmy Whitewater Kayaking 41 12-10-2005 02:23 PM
Lake Fork Gunnison Marco River Access & Safety Alerts! 3 06-03-2004 05:17 PM

» Classified Ads
(2) Medium Toughstakes -...

posted by Read_N_Run

Demo 2016 Jackson...

posted by 4CRS

Used 2016 Jackson Rockstar SM whitewater kayak - lightly...

Klepper Aerius II and sail

posted by fishlake

Will sell together or separately; price of a new sail alone...

Powered by vBadvanced CMPS v3.2.3

Our Communities

Our communities encompass many different hobbies and interests, but each one is built on friendly, intelligent membership.

» More about our Communities

Automotive Communities

Our Automotive communities encompass many different makes and models. From U.S. domestics to European Saloons.

» More about our Automotive Communities

Marine Communities

Our Marine websites focus on Cruising and Sailing Vessels, including forums and the largest cruising Wiki project on the web today.

» More about our Marine Communities


Copyright 2002-2012 Social Knowledge, LLC All Rights Reserved.

All times are GMT -6. The time now is 04:33 PM.


Powered by vBulletin® Version 3.8.8 Beta 1
Copyright ©2000 - 2016, vBulletin Solutions, Inc.