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Old 12-09-2014   #21
Denver, Colorado
Paddling Since: 1999
Join Date: Feb 2004
Posts: 855
Originally Posted by NationalRivers View Post
. Marko, if you are claiming that the federal court decision in Atlanta School of Kayaking is no longer good law, please explain why.
The fact that you even have to ask this question shows you do not understand how the federalist system actually functions: the U.S. District Court for the Northern District of Georgia is only legally binding for that district, and is NOT legally binding precedent for the rest of the country. A person could certainly try to use this district court's ruling in Colorado (like BrianK already suggested above) and hope that it becomes binding here, but that is not guaranteed. Hence it is still an unresolved issue...

If you are claiming that Supreme Court decisions about labor relations, or the length of trains, mean that states can deny navigation rights on navigable rivers, please explain how.
Again, if you don't understand why the States, in Chief Justice Roberts words, you know, the highest law of the land, have "residual powers" to regulate the "waters within their borders" then maybe you should take the time to learn about how the federalist system actually functions.

I've written enough on this topic in the past here, and I stand by every word of it. Thus I will not be replying to you and your illegitimate organization's posts anymore. I simply do not have the time to argue with a person who has the logical reasoning and argumentation skills of a 1st grader.

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Old 12-09-2014   #22
elkhaven's Avatar
Belgrade, Montana
Paddling Since: 1991
Join Date: Sep 2013
Posts: 1,661
Originally Posted by richp View Post
(Eric, for the life of me, I don't understand how you think you help your reputation and your organization by coming here and being hammered -- never seeming able to reply in a manner useful for achieving your goals. There have been many expressions of potential support if you were to clean this all up, including from me. Why keep offering yourself and NOR up to what is essentially a very public humiliation?)
It's almost like he takes lessons from Orto.....

Yesterday's gone on down the river and you can't get it back. - Agustus McCrae
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Old 12-09-2014   #23
Join Date: Feb 2005
Posts: 749
The biggest problem is that any real life situation where this will come up will be a state issue - either a Criminal Trespass Action or a Tort (Civil Trespass). So it will be state courts applying state laws first.

While state courts are beholden to federal laws - in practice they are much more responsive to state statutes and decisions.
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Old 12-09-2014   #24
Andy H.'s Avatar
Wheat Ridge, Colorado
Paddling Since: 1995
Join Date: Oct 2003
Posts: 2,910
Eric / NOR,

It's heartbreaking to spend this time arguing with you, as we're both on the same side and I very much wish that things actually worked the way you say they should. Some will laud your passion and commitment to a cause we both espouse, however passion and commitment won't get the results we're both hoping for if you use a fundamentally flawed premise of how the system works.

You are spreading misinformation and incorrect legal theories. Your theories will sound great to the uninformed who wish them to be true and provide a solution, but they are flawed theories nonetheless. And if river users don't know any better and believe your theories and follow your prescriptions, your misinformation actually undermines the work of legitimate groups that have been working on these issues for decades.

I know because I once embraced some of the arguments you espouse, however I've learned since that things are much more complicated than the very appealing statement: "a river that is navigable in fact is navigable in law."

Like Rich P says, go and use your methods and test the system as you so enthusiastically recommend others do. You've got a roadmap, go use it and then tell us how far it gets you.

If you get to Lee’s Ferry by the method you espouse, you'll garner a lot more support when you post video footage of yourself earnestly stating your case and handing Ranger Dave an autographed copy of your book as you launch.

In the meantime, please quit spreading your misinformation here. You are in violation of the MB community rules by spreading misleading information and also using this board to try to get people to buy your book and support your organization. A convincing argument that you aren't spreading misinformation would be getting that Grand launch using your methods.

Nothing in the world is more yielding and gentle than water. Yet it has no equal for conquering the resistant and tough. The flexible can overcome the unbending; the soft can overcome the hard. - Lao Tse
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Old 12-09-2014   #25
Steamboat, Colorado
Join Date: Jul 2014
Posts: 582
Just for the sake of clarity...

Originally Posted by NationalRivers
In the Emmert case, the defendant (David Emmert) claimed a right to fish on a non-navigable stream, based solely on the passage in the Colorado constitution saying that the state owns the water flowing in streams. The Colorado Supreme Court ruled against him on that point. He did not claim a right to canoe, kayak, or raft on rivers under federal law, and the Colorado Supreme Court did not deny that right (nor could it have lawfully done so). Of course certain landowners and their lawyers try to create the impression that the decision denies the public easement on physically navigable rivers in Colorado, but it does not do that. It only denies the public easement on waterways that are not physically navigable, such as ankle-deep creeks. River users can help improve the situation by educating landowners and law enforcement officers about the difference between these two types of waterways, and about public rights, under federal law, to walk along the beds and banks of rivers that are physically navigable.

I know you're probably already getting enough shit for this, but your statements about the Emmert case don't seem valid. Not only did this case occur on the Colorado River (which by most standards would be considered "navigable"), in this situation the river was considered "non-navigable" and Emmert and company were indeed in a raft. Turns out most rivers in Colorado are actually deemed "non-navigable."

This is an excerpt from the Colorado Bar Association's assessment of the case along with the link to download and read.

"[1] The validity of the conviction depends upon our determination of the following question: Did the defendants have a right under section 5 of Article XVI of the Constitution of Colorado to float and fish on a non-navigable natural stream as it flows through, across and within the boundaries of privately owned property without first obtaining the consent of the property owner? We answer this question in the negative and therefore affirm the conviction.

Trial was to the court. The evidence was not in dispute. The facts were stipulated. Some testimony was presented in explanation of the stipulated facts. The record shows that on July 3, 1976, the defendants entered the Colorado River from public land for a float-trip downstream. The Colorado River flows westerly and bisects the ranch of the Ritschard Cattle Company. As it passes through the Ritschard ranch, it varies in depth from twelve inches to several feet. The rafts on which the defendants floated were designed to draw five to six inches of water, and had leg-holes through which the occupants could extend their legs into the water below the rafts. This enabled the defendants as they floated down the river to touch the bed of the river from time to time to control the rafts, avoid rocks and overhangs, and to stay in the main channel of the river. They touched the riverbed as it crossed the Ritschard ranch. The defendants did not, however, leave their rafts or encroach upon the shoreline or the banks of the river or islands owned by the Ritschard Cattle Company.

The defendants had not asked for nor received permission to float on the river through the Ritschard ranch, and the defendants Taylor and Wilson had previously been warned that they had no permission to float through the ranch.

Upon being notified that a party of floaters was approaching, Con Ritschard and his foreman extended a single strand of barbed wire across the river at the location of the Ritschard private bridge. The strand of barbed wire was from eight to ten inches above the surface of the water and was placed in this position specifically to impede the defendants. Ritschard and his foreman remained on the bridge to tell defendants they *140 were trespassing on private property. Defendants Taylor and Wilson were stopped at the bridge and told they were trespassing. They denied this and floated their rafts under the barbed wire and remained under the bridge for a period of time until defendant Emmert, and others in the rafting party caught up with them. Shortly, a deputy sheriff arrived and placed the defendants under arrest, and they were subsequently charged with third-degree criminal trespass.

The parties stipulated that the river is non-navigable and had not historically been used for commercial or trade purposes of any kind. Accord, Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912). However, the river had been used in the past by recreational floaters using rafts, tubes, kayaks and flat-bottom boats, despite the express objection of the Ritschards. At the time of this incident, the river had been posted with no-trespassing signs.

Also, it was agreed that substantially all of the Ritschard ranch land was deeded land with no exclusion of the bed of the river, and that the area where the defendants were stopped was such an area, with the land on both sides of the river owned by the Ritschard ranch.
It is clear, therefore, that since the section of the Colorado River here involved is non-navigable the title to the stream bed is owned by the riparian landowner, the Ritschard Cattle Company. Defendants do not dispute the ownership by the Ritschard Cattle Company of the riverbed in question."

Turns out I actually can do a little bit of my own research...

So that being said, if the Colorado River wasn't considered to be navigable in this case, then I would assume many other rivers commonly floated are also deemed unnavigable.
It's a good day to be a duck....
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Old 12-09-2014   #26
Golden, Colorado
Paddling Since: 1975
Join Date: Oct 2007
Posts: 535
Originally Posted by NationalRivers View Post
Regarding NOR claiming 501(c)(3) status in 2013, that paragraph was copied from the old website, along with many other paragraphs, by the website developers..
I just looked through the previous version website via restrac's web-archive site and actually found no mention of your defunct "non profit" 501c3 status let alone any text resembling what is on the new site from that page. It's a small site but if I missed it then show me. Once again though, you appear to be full of shit.

National Rivers: NORS Membership, for canoeing, kayaking, rafting, paddling, whitewater, fly-fishing, river conservation, river protection, river access, river rights, and river navigability law.

Also, how is that an excuse anyway even if it was there? You had been out of business since at least '02. This archive is from 2013!

And a Amen! to AH's "Put up or shut up." Since you seem a tool, the latter is best though.
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Old 12-09-2014   #27
Bellingham, Washington
Paddling Since: 2004
Join Date: Sep 2009
Posts: 141
I am not going to comment on the legal opinions rendered by NOR. I would be way outside of the depth of my legal training in doing so (as I believe Eric Leaper to be as well).

What I will comment on is what is likely to happen if you test these legal waters, so to speak.

Law enforcement agencies do not enforce the law as interpreted by some unknown "legal expert" citing questionable claims and theories that have been untested in the jurisdiction where the incident is taking place. Trespass law is nothing new. I seriously doubt there is a law enforcement agency anywhere in this country that has not had to hash out these issues with their own prosecutors and legal counsel. Giving a sheriff's deputy a copy of Leaper's book is not going to get you anywhere but in a courtroom facing trespass charges.

A few years ago a group of people decided to challenge this by floating some non navigatable waters (and I mean by any standards) in my agency's jutisdiction. The group included a self proclaimed legal expert/college professor, and they defiantly told the responding officers that they could not be arrested due to a very similar arguement to the one provided by NOR. One call to the prosecutor confirmed what the deputies suspected and the group was told to clear out or face charges. They choose to leave.

Most people here seem known that NOR is giving bad advice already. This post is for those who don't.

While I am on the subject international drivers licenses do not trump your suspended state drivers license, you still have to register your vehicle even if you are a "free man travelling upon the land," dilomatic plates don't grant any special privilages unless you are a member of a foreign diplomatic corps, and there is no way to get out of paying taxes by declaring your autonomy from the US.

Sorry to disappoint.

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Old 12-09-2014   #28
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 43
The authors of the previous posts keep saying that NOR materials will get people ticketed or arrested, or shot, but here is what the new book actually says: (You can see the cited cases, represented here with asterisks, on the sample pages posted at

"There are several ways in which river users in any state can restore public rights on rivers that are navigable by canoes or kayaks. First, it is a violation of federal law to obstruct rivers, or public walking along the banks of rivers, with fences, cables, or “No Trespassing” signs. River users should report these unlawful obstructions to local authorities, and follow up to make sure that such obstructions get removed.

"Second, it is a crime for landowners to threaten river users, especially with firearms. River users should likewise report such crimes to authorities, and follow up to make sure that the crime gets prosecuted.

"Third, rivers that are navigable in the ways described earlier are navigable “in the constitutional sense” (under the Commerce Clause of the U.S. Constitution),* and public rights to navigate these rivers, and walk along their beds and banks, are constitutional rights.* Federal courts have confirmed that river users have the legal right to sue government officials who interfere with these public rights, under Section 1983 of the Civil Rights Act, and to receive reimbursement for their attorney’s fees under Section 1988.*

"In most circumstances, however, it is better for river users to work with government officials and elected representatives to settle disputes based on current law, rather than filing further lawsuits. The purpose of this book is to help all parties better understand existing law regarding the public easement. Therefore the following pages further explain federal law regarding the public easement on physically navigable rivers, what state and local governments can and cannot do regarding this easement, and how to resolve disputes about this easement.”

Regarding the permit system on the Grand Canyon and other rivers, what the book actually says is this:

“Congressmen want the public to vote for them. The Congressman’s party affiliation does not matter. (Republican or Democrat, most Congressmen will help a constituent get on a river.) Congressmen call this “constituent casework,” and every Congressman has several staff members dedicated to doing it.

"Congressmen don’t expect constituents to be articulate or scholarly. A constituent simply needs to make an appointment with a staff member at the local office of his Congressman, take copies of his previous rejections from the Park Service, and spend a few minutes summarizing the situation: (1) He or she applied to the lottery and was turned down (and did not join someone else's trip.) (2) He confirmed that space is readily available by paying a concessionaire... (etc.)"

In summary, NOR is telling river users how they can dialog with their elected representatives, as well as law enforcement officials and landowners, about existing Supreme Court decisions that confirm public rights on rivers usable for canoes or kayaks or shingle bolts. That’s all. NOR is specifically telling river users to not get ticketed or arrested, and to not launch on the Grand Canyon or other permit rivers without a permit.

In effect, the authors of the previous posts are claiming that this dialog process will somehow lead to arrests, that talking to elected representatives about these things won’t help, and that expensive litigation is needed to improve public rights on rivers.

This, of course, is what the landowners who oppose river access want river users to believe—that river users have no rights unless they win them in state courts, state by state, after expensive litigation. As long as people believe that, landowners can exclude kayakers from numerous smaller rivers with portages, and they can charge fishermen expensive "rod fees" to fish along the banks of rivers.

It’s also what the Park Service at the Grand Canyon wants river users to believe—that noncommercial river runners have no right to get a permit except by repeatedly applying to the lottery. As long as people believe that, commercial operators can continue to fill most of the space on the river (during the summer) with commercial customers paying them about $320 to $450 per person per day.

It is still a mystery to me why the authors of the previous posts think that river users should not talk to elected representatives, law enforcement officials, and landowners. Why discourage that? I am particularly puzzled about why Rich Phillips thinks I need to prove that it's worthwhile for river users to talk with their Congressman's staff about Grand Canyon permits. Why would any river user want to discourage people from talking with their Congressman's staff about that situation?

To those of you who are reading this thread rather than posting on it, here’s a question: Which advice makes more sense to you? The NOR advice to dialog with elected representatives, using existing Supreme Court decisions, to restore public rights on rivers in every state and through federal lands? Or the opposing advice to remain silent, and wait for expensive state by state litigation, and a possible new management plan, some day, on the Grand Canyon?

I’ll let you decide.

--Eric Leaper.
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Old 12-09-2014   #29
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pinemnky13's Avatar
Colotucky, USA
Paddling Since: 2006
Join Date: Jun 2007
Posts: 1,054
I've decided. AW gets another yearly donation, and I'll take another calendar. Sorry NOR but I'll donate to the tried and true.
Who's your monkey?
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Old 12-10-2014   #30
Bellingham, Washington
Paddling Since: 2004
Join Date: Sep 2009
Posts: 141
I am not saying that people should not attempt to have a dialogue with local officials. There is a time and a place for that. I am telling your audience what they can expect if they attempt to have that conversation with law enforcement during a criminal trespass investigation. Civil disobedience and forcing arrest to force issues into the courts is a valid tactic for changing the law, but those who would practice it need to go in with their eyes wide open. Your rhetoric sugar coats the legal realities in most, if not all jurisdictions by making these issues sound as though they have been settled in court to the satisfaction of all agencies having jurisdiction. They have not.

Again this is posted for the people who may be buying into the NOR argument.

The reality is that no law enforcement agency is going to tell a property owner they cannot post their property, or let you trespass on private land in violation of state law just because you think you can.

You can try to sue the cops for enforcing the law, but you are going to first have to show in court that your interpretation of the law is correct (and thus far NOR has been unable to find a legal expert who agrees with them enough that they are willing to post a review of their work). Even then since this would be dealing with a change in case law and the police would have been enforcing the law as the pertinent courts understood it at the time of the incident. As such they would likely be granted qualified immunity. In other words the tort goes nowhere.

Again, I don't claim to be a legal expert on property rights, but I know enough to see the flaws in NOR's arguments. If you have cop telling you to leave or be arrested understand that is what will happen if you do not leave. Also understand that you may just be cited for being there without first being asked to leave. The dialogue that NOR is advocating may never even get a chance to happen, and Eric Leaper won't be able to stop it. You may face a uphill battle in court so you should be prepared to lose.


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