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Old 12-05-2013   #11
Join Date: Feb 2005
Posts: 883
Originally Posted by marko View Post
All well and true. But the state court decision will be applied in Colorado until somebody decides to challenge the state court holding in a federal court. It's not the job of the federal judiciary to seek out state laws that conflict with the U.S. Constitution; it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in Emmert.
Hi Marko,

You've essentially summarized our situation here in Illinois. The combination of agency inertia, entrenched interests, and our present legal environment produces a situation where no-one is going to fold on these access issues just because you wave a book in front of them. Would that it were that easy...


Rich Phillips

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Old 12-06-2013   #12
Join Date: Feb 2005
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I don't want to keep arguing the point because we are very close. Like I said, I interpret these cases the same way you do. I think the SCOTUS cases justify the public's right to access these rivers.

Practically, it doesn't necessarily work like that. Take the Emmert case. (I read the case a few years ago so some of these facts might not be exact.) If I remember right there were two guys cited for criminal trespass on the Colorado river. One just paid the fine, but Emmert challenged the case the whole way.

He was found Guilty at trial, his Guilty verdict was upheld in the Colorado court of appeals, then the his Guilty Verdict was upheld by the Colorado Supreme Court. (I don't know if he applied for cert with SCOTUS) Fact of the matter is he went through the legal process and these courts decided he did not have the right to float through private land. Our appointed judges reviewed the law, and found that rafters who floated through private land and touched the river bed were guilty of trespass.

Criminal law is state law, and if this situation came up again you would have to deal with Colorado Courts interpreting Colorado Law. And, as it stands now, right or wrong, Emmert is the law in Colorado. Part of the beauty of this country is that erroneous decisions like Emmert can be overturned. But until someone actually litigates the issue we just don't know.

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Old 12-07-2013   #13
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
National Organization for Rivers (NOR) replies to the above:

Regarding what the Illinois Paddling Council uses in its river access efforts, the book Public Rights on Rivers is new, so now that it is available, NOR invites organizations such as the Illinois Paddling Council to use it to re-open rivers like the Vermillion more quickly.

Regarding the Emmert case, David Emmert mistakenly claimed that the Colorado River (between Parshall and Kremmling) is not navigable for any purpose, yet he claimed the right to fish on it, based solely on a passage in the Colorado state constitution saying that “the water of every natural stream” is “the property of the public.” The court ruled solely on that specific claim (as courts usually do,) holding that this passage in the state constitution, by itself, does not confirm public fishing rights. (The court did not review federal law, as BrianK seems to assume.) The decision did not deny public navigation and fishing rights on any rivers in Colorado that are navigable under federal law, nor could it, because state courts do not have that authority. (Emmert did not appeal to federal courts.) You can read more about this on the free NOR handout and posters, “Public Rights on Rivers in Colorado.”

That stretch of the Colorado River, and the other rivers in Colorado that were usable in the past for fur trade canoes or log drives, and are usable today for commercial raft trips or kayak or canoe classes, are navigable for Commerce Clause purposes under federal law. No further court confirmation is needed. The beliefs voiced by BrianK that “it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in Emmert,” and “until someone actually litigates the issue we just don't know,” are widely promoted by lawyers for riverfront landowners, and are believed by many river users, but are mistaken. Where state court decisions conflict with current federal law, federal judges don’t need to overturn them state by state. For example, “Jim Crow” decisions were “still on the books” in southern states until quite recently, but were not followed, even though federal judges did not overturn them state by state. In a similar way, people are running rivers in Colorado through private land every summer, even though the Emmert decision is “still on the books” and has not been specifically overturned by a state or federal court.

Perhaps a generic example, based on real-life experience, would help. Suppose you enjoy kayaking (or fishing) on small rivers in western Colorado, such as the Taylor, Elk, Conejos, Animas, Piedra, and San Juan rivers, which flow through a patchwork of public lands and private ranches. Suppose a Dallas real estate developer buys one of the ranches, and, citing the Emmert decision, he strings “No Trespassing” and “Keep Out” signs on a fence across the river where it enters the ranch, as well as “Keep Off River Banks – Private Property” signs where there is a necessary portage midway through the ranch.

Suppose you meet with him. Using NOR handouts and posters, and the book, you show him that:

1. The river is navigable under federal law, for Commerce Clause purposes, because of its historical and current usability. No official designation is needed, because rivers that are navigable in fact are navigable in law.

2. Public rights on the river are not a “taking,” because the river has been public since time immemorial, and there is virtually no chance of him getting any compensation for public use of the rivers, because there is no known case of a court awarding compensation to landowners for public uses of rivers.

3. It is a federal crime to block the river with cables or fences, so he is subject to criminal prosecution at any time, as well as immense liability if a kayaker gets killed or injured on his fence across the river.

4. The Emmert decision did not deny any of the above, nor could it—state courts don’t have that authority.

At that point, the landowner may realize that it’s more trouble than it’s worth to dispute public rights on the river flowing through his land (even if he doesn’t say so right then—it may take more than one meeting.) Suppose you hold a similar meeting(s) with the local sheriff. Sheriffs have discretion regarding what to enforce. Sheriffs in a number of places around the country, after seeing detailed information about public rights on rivers under federal law, have replied to telephone calls from riverfront landowners by saying something like, “Call me back if the river users start snooping around your barn, but as long as they are on the river, or along the edge of the river, don’t call me.” Suppose this sheriff does the same, sooner or later. (Indeed, it may turn out that this sheriff is ALREADY answering landowner calls this way, unbeknown to river users.)

At that point, it doesn’t really matter who all prepared or reviewed NOR materials, and it doesn’t really matter that no court has specifically overturned the Emmert decision. All that matters is that you can get back to doing what you like to do: Kayaking (or fishing) on rivers, including rivers that flow through a patchwork of public and private lands, and including scouting rapids and portaging where necessary. THAT is the goal of the National Organization for Rivers.

Merry Christmas.
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Old 12-08-2013   #14
Denver, Colorado
Paddling Since: 1999
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Originally Posted by eric.leaper View Post
If you enjoy kayaking small rivers in western Colorado, you can use the book, handouts, and posters in a similar way, to dialog with landowners and sheriffs about public rights on rivers under current federal law.
I think that is a great idea, but it might not always work out that way. SO what do you do when a landowner, or sheriff, doesn't care about your neat little NOR handouts and has you arrested for trespass? What do you do when a wealthy landowner uses his clout to test the issue of navigability through litigation on a creek that might not meet the federal test of navigability?

Originally Posted by eric.leaper View Post
You don't need to wait for the state legislature to confirm your rights, because rivers that were navigable in the past for log drives, and are navigable today for kayaking, are navigable for Commerce Clause purposes under federal law, so the public has an easement under federal law to navigate, scout, and portage on such rivers, regardless of who owns the bed and banks of the river under state law.
And what about the creeks that do not meet the federal test of navigability and do not have an historic use of log drives, or other forms of commerce? Because if you suggest that fur traders navigated their canoes using Cheeseman Canyon, or log drives were sent down Lime Creek, you are going to get laughed right out of your negotiations. And what do you do when a state enforces the closure of a creek because it has been deemed non-navigable? Do you write a strongly worded letter to the state Attorney General using NOR material and then hope he listens to you?

Unfortunately, the federal definition of navigability does not apply to a huge majority of the steeper creeks in this country. And in order to expand the right to float on these exclusions will require legislative action and litigation. If it were such a cut and dry issue, then why are there still streams and creeks closed to public access all throughout the country? And why do states have differing definitions of navigability and differing requirements under state law? (Laws which are being enforced right now, and are not dormant like old southern Jim Crow laws). It's mainly because the enumerated powers of the Constitution only go so far to protect your right to float on any river you want in this country.

The US Constitution is about 21 pages long, and the Colorado Constitution is about 800 plus pages long. Why is that? Because the states have the authority to afford its citizens a greater protection of rights. Do you know how that happens? It doesn't happen by "wait[ing] for the state legislature to confirm your rights." It is very rare for a politician to just decide to grant rights to citizens all by themselves; it happens by the people engaging their state legislators to create those rights. And the judicial may help further expand our right to float on all waterways when the laws are tested for constitutionality. For ex: CA's navigability test was decided in People v. Mack and held that "the public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft." CA's test of navigability goes much further than the right protected under federal law, and would be the ideal model for recreational boaters. And it should be something that all states should seek to adopt. But, to make that a reality will require litigation and legislative action.

Your idea that individual boaters can use your NOR material to negotiate with landowners and sheriffs beyond the legal system, for rivers that clearly meet the federal navigability test, is a great idea. I think in many cases you can create great results with this tactic. However, as a political scientist in training, and one who works in the state legislature, I think using the legislative and judicial branch to secure the right to float on creeks that do not meet the federal navigability test is absolutely necessary.

Right now, there are hundreds of individuals and organizations that are using a tactic known as "field testing." They continuously create local ordinances and state statutes that push the limits of constitutionality in the hopes that it will make it to the US Supreme Court. They have multiple cases going at once, and they argue each one in a different way. The Court may strike down one, but uphold another, and bit by bit, they create new laws and policies. You can guess that it is the wealthier individuals who have the time, energy and money to use this tactic. THIS is how things get done in this country. This is how you use the legal and political system to get the rights you want. These people don't waste their time citing old case law and sections of the Constitution in private negotiations; they use the legislative branch to create the laws they want, and then cite case law in the judicial branch to argue why its constitutional.

So, what if one day this tactic is used to expand the private property rights of wealthy landowners at the expense of our right to float in areas that are not protected under the federal navigability test? It is going to require much more than citing case law in private negotiations to counter them; it is going to require us to counter them in the legislative and judicial branches.

And, what is to say that We as boaters can't use this exact strategy to expand our rights to float? We can, and should be, using this tactic. This is how the civil rights litigators expanded rights to minorities. This is how the cannabis industry has started to break down old prohibition laws. So, again, the idea of buying your book to help deepen boater's knowledge, and negotiate with landowners on rivers that are easily within the federal navigability test is a great idea. For that, I wish you well on your endeavor to sell copies of your book and help raise awareness about river rights. But for the cases where there is not a clear legal precedent set we will need to do much more to secure our right to float. And that is why I support American Whitewater!

BTW - You are kind of straddling the line between raising awareness and private gain... so you might want to consider in the future posting your business enterprise material in the commerical posts section where the other business enterprises post their business related spam.
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Old 12-08-2013   #15
Golden, Colorado
Paddling Since: 1975
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Originally Posted by marko View Post

BTW - You are kind of straddling the line between raising awareness and private gain...
he's also straddling the line between legal and illegal since he claims to be a non-profit 501(c)3 ....but isn't. eh, that's actually pretty firmly on the illegal side when you are out fundraising as such.

basically, there is zero accountability to where and how any donated funds are used by Eric /NOR unlike a real,legit and legal non-profit.


The other point is if you donate expecting a tax deduction then.... well good luck with that. you,eric and the IRS can sort that gem out. doesn't exist........
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Old 12-08-2013   #16
Andy H.'s Avatar
Wheat Ridge, Colorado
Paddling Since: 1995
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Posts: 2,911
All this stuff that Eric's talking about really riles me and I figured out why.

It's as if we're all trying to arm ourselves to protect our rights and Eric's walking around telling everyone he's got the magic bullets that'll win the battle. But really all he's got is blank ammunition that to a lot of enthusiastic laypeople who badly want it to be real, the blank ammunition looks and feels like the real thing and seems like it would make the victory easy to achieve.

But it's still just blank ammunition and won't help to win any real battles at all. Also, the defeat we could suffer from trying to use Eric's blank ammo in a real battle could be so resounding as to make future battles all that much harder to win.

And in the meantime, it's just diverting us from real truths about what the law really says and how to go about making progress.

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 12-09-2013   #17
2kanzam's Avatar
Charleston, West Virginny
Paddling Since: 1996
Join Date: Aug 2012
Posts: 461
The Jackson River in Va would like a it seems the crown's grants section of the write up directly conflicts recent litigation successfully convicting boaters/fishermen of trespassing on the riverbed.

I spend alot of time in rural WV fishing small mountain streams for trout and let me tell you that a good ole boy that wants you "outta his stream" will a) not give a hoot about any paperwork I present and b) always be carrying a shotgun.

Putting eric's "generic example" to test with a real world issue that I saw myself in Colorado...where I saw a fence accross and no trespassing signs on the bank of the North Fork of the So. Platte. Are you saying that it is only so becasue it has not been challenged??

I agree with Andy H. in his assertion that these issues must be approached very carefully so not to backfire on the boating/fishing community.
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Old 12-10-2013   #18
Join Date: Feb 2005
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Need Some Help

Hi Eric,

I need a little help.

Your web site says, "NOR is a 501(c)(3) non-profit organization and contributions are tax-deductible in the United States." A couple of posts up, there is a screen shot that seems to suggest otherwise.

What's the scoop?

Rich Phillips
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Old 12-10-2013   #19
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
NOR replies to the above:

The National Organization for Rivers (NOR) is telling river users to avoid getting arrested, but to dialog with sheriffs and landowners about public rights under existing federal law. We’re saying that it could take time, and more than one meeting (or interaction by mail or e-mail.) NOR operates at a loss to provide free information about public rights on rivers, and is applying for renewed tax and legal status, originally obtained in 1979. People can, and have, successfully used print-outs from in river rights disputes, without paying NOR anything, which is okay.

Marko says that the federal test of navigability “does not apply to a huge majority of the steeper creeks in this country,” and he mentions the American Whitewater website, which likewise says that “most whitewater streams” do not meet the federal test of navigability. This echoes what lawyers for riverfront landowners have widely proclaimed, but federal law says that rivers and creeks with “numerous rapids, waterfalls, and boulders” are navigable, because they were usable in the past to transport logs, shingle bolts (4-foot sections of logs) and railroad ties, and because they are usable today for commercial kayak classes. (See footnote 1 of the free handout, Public Rights on Rivers in Colorado, at National Organization for Rivers, and Chapter Three of Public Rights on Rivers, “Which rivers are navigable for which purposes.”)

The federal tests of navigability involve whether the river or creek could have been used for transport in the past, not whether it was actually used. Whether a particular river or creek could have been used for transport in the past can only be verified by people with river expertise, not by lawyers who don’t have such expertise. You can increase your expertise in this area by seeing historical accounts and old photos of the transport on rivers and creeks of logs, shingle bolts, and railroad ties, on the top floor of the Denver Public Library, and in local libraries in western Colorado and other states, (as well as in Public Rights on Rivers,) and by kayaking the rivers and creeks that were used for such transport. You will find that rivers and creeks that you would want to kayak were indeed usable for such transport. Then you will be more prepared to counteract the people who claim that rivers and creeks usable for kayaking are not navigable under federal law.

Marko says that the California state test of navigability “goes much further than the right protected under federal law.” Again, this echoes what lawyers for riverfront landowners typically claim, but the rivers and creeks that you would want to kayak are already navigable under federal law. It’s nice that California state law reconfirms that, but it also applies in other states, including Colorado, without state by state confirmation.

Marko then says that “using the legislative and judicial branch to secure the right to float on creeks that do not meet the federal navigability test is absolutely necessary.” When you think about it, it’s only necessary if there are creeks that are good for kayaking, yet do not meet the federal test, and it turns out that the creeks that are good for kayaking meet the test already.

Marko also says that wealthy people are using “field testing” to “create the laws they want” through litigation and legislation, and that we as boaters should use that same strategy to expand our rights to float. The difference is that we already have the right to kayak on the rivers and creeks of the nation that are usable in the ways discussed above, so it doesn’t make sense to try to create new law. Instead it makes sense to educate river users and government agencies about existing law.

Marko asks what if one day, in the future, wealthy landowners successfully use legislation and litigation to deny public rights on rivers. In order to change the federal test of navigability, they would have to convince five out of nine U.S. Supreme Court justices to reverse centuries of existing law on the subject. That’s possible, but unlikely, and the best way to help prevent it from happening is by spreading the word that existing federal law confirms public rights on rivers usable for kayaking, rather than by proclaiming the false notion that it does not (as Marko, and other people, are presently doing.)

Andy H. says that we are “all trying to arm ourselves to protect our rights,” and NOR resources are “blank ammo” that could cause a resounding defeat. People have already successfully used, and are using, NOR resources in public rights battles, and will continue to do so. The U.S. Supreme Court decisions cited in NOR resources are true, and there’s no reason to think that continuing to use them will result in a resounding defeat. Instead, it’s likely that continuing to use them will result in cumulative victories, which in turn will break down resistance to public rights in the remaining places. In many places, government support for the notion that river use is trespassing is a mile wide but an inch deep. Once river users document federal law in favor of public rights, many people in government are willing to set aside notions that river use is trespassing. Consequently, it turns out that river users who claim that federal law does not presently confirm public rights on rivers are using the “wrong ammo,” in counterproductive ways.

2kanzam asks if the fences and no trespassing signs on the North Fork of the South Platte (in the mountains southwest of Denver) are there only because they have not been challenged. When river advocates take time to show those landowners that they are subject to criminal prosecution and civil liability for their fences, the fences will probably come down (or break during severe weather and not be replaced.) Regarding the Jackson River in Virginia, the fishermen there have not claimed their rights to fish under existing federal law, so the courts have not confirmed them.

Those of you who would rather kayak (or raft, fish, or canoe,) rather than further debating about your rights with other river users who mistakenly claim that river use is trespassing, can deliver the present NOR handouts, which are available at no cost, to your local sheriff, landowners, government agencies, and legislators, and post the present NOR posters at your local supermarket (and e-mail them to river users and government agencies. See National Organization for Rivers.) Now is a good time to distribute them, so people can consider them without the urgency of current river use, and it would be good to distribute them again in the spring, as actual river use resumes.

In other words, you can help win this thing, despite the denials of your rights coming from lawyers for riverfront landowners, as well as from a number of river users such as those quoted above.
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Old 12-10-2013   #20
Join Date: Feb 2005
Posts: 883
Hi Eric,

So, quietly buried in an early paragraph of your long and typically gauzy post is this clause, " NOR ... is applying for renewed tax and legal status..."

You say you're in the process of applying for the tax exempt status that your web site plainly states is already in place. As in, "NOR is a 501(c)(3) non-profit organization and contributions are tax-deductible in the United States."

Aren't you worried that you've rather openly admitted you may be violating one or more Federal/state laws?

Just asking...

Rich Phillips

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