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Old 12-10-2013   #21
Fort Collins, Colorado
Join Date: May 2006
Posts: 69
Originally Posted by eric.leaper View Post
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.
This sounds a lot like legal advice to me. I sure do hope eric.leaper has a Colorado bar license.

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Old 12-10-2013   #22
Denver, Colorado
Paddling Since: 1999
Join Date: Feb 2004
Posts: 855
Originally Posted by eric.leaper View Post
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.
Ugh. Please don't misrepresent my position! Of course I want to concretely secure the right to float for all recreational users. I'm simply trying to say that there are other factors to deal with, and that the right to float is not set in stone, like you want to believe.

I'll be back to address your argument in a few days or so. I'm reviewing your claims and material with my Constitutional Law professor (who has been a civil litigator for over 30 years, and is on a CO Supreme Court committee). He is actually pretty fired up to discuss this stuff because as he told me today "this issue (right to float) is still a problem, and is far from being resolved."

btw - you might want to get that tax and legal status resolved before you find out first hand how the law and government agencies really work - i.e. you aren't going to be doing the educating.

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Old 12-11-2013   #23
Arvada (Denver), Colorado
Join Date: Jul 2005
Posts: 250
"Navigable in Fact is Navigable in Law"


These guys took action to educate folks that water that is "navigable in fact is navigable in law" (:22 and 3:22)... and they won.

So can you.

PS How about starting and Saving this to a "Stream Use", "Stream Access", "River Rights" or some such title of Bookmarks or Favorites for future reference?
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Old 12-12-2013   #24
Join Date: Feb 2005
Posts: 883

We're still waiting for authoritative information in response to questions about NOR's tax exempt status. Will someone put out an APB for Eric Leaper?

Or maybe the IRS already has...

Rich Phillips
(Briefly abandoning my calm rational persona, and succumbing to the nefarious influence of the Buzz)
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Old 12-13-2013   #25
Boulder, Colorado
Paddling Since: 2001
Join Date: May 2006
Posts: 212
This is an interesting thread and I hope the discussion remains civil. I'm wondering how the USACOE and/or EPA definition of "Waters of the United States" could play into this. If a particular river or creek is under federal jurisdiction by means of the Clean Water Act does that mean anything with regard to recreation? I'm also interested in who has the authority to legally close a river? Here in Boulder the Sheriff has closed Boulder Creek and the Saint Vrain River during high water. I would guess there is some authority granted in state law to do this but does this run contrary to federal law?

And what's with folks being so hard on Eric Leaper and/or NOR? I don't know any history but seems like his/their intention is good.
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Old 12-13-2013   #26
Join Date: Feb 2005
Posts: 883
Hi JHimick,

As I and others have said, Eric's goals are laudable.

It's his methods -- including a rather naive view of the legal environment we operate in todya nd possible fraudulent representation of his tax status -- that have caused this thread to take its current trajectory.

If he were to definitively and clearly resolve those questions, I'm fairly sure the entire group would look at him differently, and perhaps line up more solidly behind what he's trying to do.


Rich Phillips
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Old 12-13-2013   #27
cedar city, Utah
Join Date: Mar 2008
Posts: 1,931
Originally Posted by JHimick View Post

And what's with folks being so hard on Eric Leaper and/or NOR? I don't know any history but seems like his/their intention is good.
The simple answer is his methodology.

1) He used a very difficult situation for the river community to launch a very new advertising and membership drive on the Buzz. It lacked tact and prioritized his organization over the community's interest. (Solution: spend time building rapport with the community before engaging in advertising).

2) NOR engaged in a form of behavior that is similar to sock puppetry. It was not random that 3 people suddenly appeared on the Buzz and started posting when they had no posts prior to NOR advertising here. They all suddenly came to NOR's and Eric's defense.

3) Veracity of NOR statements don't align with the collective experience of our diverse community. This is a major red flag to me. With that deficit the current information provided doesn't fill in the gaps.

4) Primary source of material is unvetted via peer review which is the professional way of eliminating bias and at least showing some level of transparency. Eric wrote the book, started the organization and remains its principle figure. Would make anybody be critical of such revolutionary material. There is a reason we engage in oversight and peer review and its one of the best mechanisms for preventing bad information from becoming part of the public discourse (we have a quantity issue on the internet and its nearly impossible to correct ideas once they become part of the "facts" available, i can try and find the empirical research that supports this conclusion if so desired).

5) Tax status....."non-profit" is an important legal status that should not be thrown around lightly. How are we to take the advice about complex law when when his organization doesn't even take the time to advertise themselves in a manner consistent with simple law?

Those are just a few explicit issues I have myself. A fancy name and an ideology we wish were true doesn't mean they are organization that is acting in our best interest. I have no doubt he wants to help but there is a reason non-profits have been increasingly professionalized over the years. NOR hasn't shown any visible interest in taking part in that development. I could be wrong but the information he has provided here and on his own website don't provide any evidence to the contrary. And I spent a lot of time trying to find a cookie crumb trail that led me to a different conclusion.

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Old 12-13-2013   #28
Denver, Colorado
Paddling Since: 1999
Join Date: Feb 2004
Posts: 855
Eric/NOR and my fellow boaters,

I want to first start by saying that I am on your side. I would like to see rivers “forever free” and secure the rights of river folk to enjoy all of them throughout this country. Please refrain from suggesting I am “on the side of lawyers for riverfront landowners” simply because I disagree with your inaccurate understanding of how our federalist system actually works.

I’ve read through some of your intro and see value in what you are doing - the historic education alone is worth the read for river folk. I’ve also discussed and presented the arguments you have made here in this thread, and the very brief material in your book, to a constitutional law scholar educated at the University of Chicago Law School who has been litigating complex federal and state constitutional issues for over 30 years and teaching constitutional law for 20 years. The brief material in your book is a good historical account of rivers and case history; however, there really isn’t any thing in there that shows your interpretation of how the law and our federalist system actually works. And your arguments in this thread appear to support that you misunderstand how the federalist system actually functions. And, quite frankly, even if you do try to educate people in your book in the later chapters about constitutional law and how the federalist system functions, I wouldn’t be interested in learning that from a person who doesn’t have any formal education or qualifications in constitutional law.

NOR is correct about many aspects of the law: using correct citations of US Supreme Court holdings, and stating that many rivers are navigable under federal law for Commerce Clause purposes. However, in your arguments in this thread you have made a big error in your understanding of how our federalist system, with respect to comity, actually works. It took my Con Law professor less than a minute to spot your error, and he explained that he has seen this error made by trained lawyers making an oral argument in front of Supreme Court judges. And this error is one that I tried to point out in brief with my other posts. I will address your error in a few paragraphs below, but first I want to speak a little about the Commerce Clause power to try and help support the legal argument.

Congress has passed many pieces of commerce clause related legislation (which the Court has confirmed) that build off of the Gibbons v. Ogden holding. The most monumental decision by the Court in the 20th century about Congress’ Commerce Clause power was their holding in National Labor Relations Board v. Jones & Laughlin Steel Corporation where the “substantial affects” test was first used. This expanded Congress’ ability to regulate commerce beyond the previous legal precedent of only being able to regulate the ‘channels of interstate commerce’ and ‘to regulate and protect the instrumentalities of interstate commerce.’ In other words, this expansion allowed them to regulate intrastate commerce that may ‘substantially affect’ interstate commerce.

The expansion of the Commerce Clause power to include the “substantial affects” test is how Congress has been able to regulate so many aspects of our country. For ex: this expansion of the Commerce Clause power allowed Congress to regulate wage and hour rates in the Fair Labor Standards Act of 1938 – even in regards to businesses only operating intrastate; it allowed them to regulate the agricultural industry with the Agricultural Adjustment Act of 1938 (this Act is the most far-reaching example of the Commerce Clause authority); it gave Congress the ability to desegregate private businesses with the Civil Rights Act of 1964 because intrastate businesses who discriminated against African Americans substantially affected interstate commerce; it allowed Congress to create the Clean Water Act to try and protect our waterways and rivers from pollution because the pollution of intrastate tributaries substantially affect interstate commerce; the list of things that Congress has created with the “substantial affects” test goes on and on. When Congress creates the new pieces of legislation to regulate commerce they oftentimes have to create new agencies to enforce the new laws. So, with the regulation of illicit drugs comes the creation of the Drug Enforcement Agency; with the regulation of wage and hour comes the Equal Employment Opportunity Commission; with the regulation of the environment and pollution controls comes the creation of the Environmental Protection Agency.

I think by now you can all start to see why libertarians and powerful business interests do not like the expansion of the Commerce Clause power (or maybe the stoner just realized why he doesn’t like the expansion of the Commerce Clause power because of their dislike for the DEA and the war on cannabis.) At any rate, many of these powerful business interests always try to skirt around Congress’ regulations by trying to find holes in the legislation. For ex: the video of the LA River that Ole Rivers provided shows a perfect example of how polluters were getting out of being regulated under the Clean Water Act because they argued in the courts that the LA River was not navigable. Therefore the regulations in the CWA did not apply to that river basin. The action that the boaters did was to prove that the LA River and its tributaries were navigable so that the polluters would have to abide by the laws in the Clean Water Act. And, yes, they did win that victory with the help of a few CA legislators. Although the victory was that the LA River basin is now protected under the CWA; and was not a victory for the right to float, like Ole Rivers suggests.

Also, the current Roberts court, and the previous Rehnquist court, are known as the deregulatory court. In United States v. Lopez and United States v. Morrison, the Rehnquist Court decided to draw the line on the substantial affects test out of concern that “Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority” (United States v. Morrison). The libertarians and powerful business interests are very happy about this shift because suddenly things like the Clean Water Act and this idea that Congress can control what happens on even the tiniest of tributaries that have absolutely nothing to do with interstate commerce disappears into the dustbin of history.

But, with that expansion of the Commerce Clause power there has also been a recognition in the Court that the States still have the authority to regulate aspects of commerce. NOR/Eric is correct when they write that most rivers are navigable under federal law for Commerce Clause purposes. You are right that all of the legal elements currently exist for our right to float to be guaranteed. However, your conclusion (that our right to float is already guaranteed) is based in a normative kind of thinking – i.e., you think this is how it ought to be. But just because all of the elements (US Supreme Court holdings on navigability of rivers, and the power of Congress to regulate anything having to do with rivers) are in place does not mean that our right is secured. Think about this: all of the legal elements existed for decades for African Americans to have the protection of equal rights. The 14th and 15th Amendments were established law for a century, and Congress had the ability to regulate using the substantial affects test for almost 30 years. But it wasn’t until the civil rights activists in the late 50s and 60s struggled and fought to gain equal protection under the law that the legal elements and the three branches of government came together to secure those rights.

NOR/Eric make a huge error when he argues that the States do not have the authority to regulate anything in regards to navigability for commerce clause purposes. This is indisputable. And the States can, and do, regulate aspects of navigation that affect interstate commerce. In Cooley v. The Board of Wardens of the Port of Philadelphia, Justice Curtis expounded on what is known as the dormant commerce clause, and held that “the mere grant of such a power to Congress [as to the Commerce Clause authority], did not imply a prohibition on the States to exercise the same power.” This point was expounded on in Southern Pacific Co. v. Arizona when Chief Justice Stone wrote, “Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation… it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it… Thus the states may regulate matters, which, because of their number and diversity, may never be adequately dealt with by Congress… When the regulation of matters of local concern is local in the character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.”

In other words, since Congress has not explicitly and adequately legislated on the rights and regulation of recreational boating (at least I could not find an congressional Act that says, “recreational crafts can do A and B on all rivers in this country”) it is within the States authority to regulate as they see fit. Because Congress has not explicitly and adequately legislated on recreational boating there is no conflicting federal legislation. Therefore, until Congress passes an Act that explicitly and adequately legislates on recreational boating our right to float is NOT guaranteed and is left up to the State's discretion. And that is why we see boaters and fisherman still being convicted of criminal trespass by State agencies. That is why we see States with differing tests of navigability. That is why we see local authorities (like Boulder Cty Sheriff) have the legal right to close down creeks. That is why we saw the Colorado general assembly working on a piece of legislation in 2010 to secure the right to float. That is why we see American Whitewater and their qualified legal experts take the position they take. All of these State agencies, and the people working within them, are not doing these things because they haven’t read NOR materials, or parrot the talking points of lawyers of riverfront property, or just don’t understand the legal system. No, they are doing these things because they actually understand how the federalist legal system works, and because it is the sovereign right of the States to do so.

And this leads back to my original point: It is absolutely necessary for legislative action – which will also require litigation to settle this issue. And as my constitutional law professor has told me, “This is an unresolved issue.” That does not mean that NOR’s book is worthless. On the contrary. It should be used as Eric has suggested for raising awareness about rivers. But, imho, it probably shouldn’t be used for describing how our federalist system actually functions and for giving professional legal advice about legal rights.
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Old 12-13-2013   #29
Join Date: Feb 2005
Posts: 883
Hi Marko,

Wow -- just Wow!!

Now we'll see if Eric comes back with one of his facile* replies, or something substantive, including justification of his claim of tax exemption for NOR.

Rich Phillips

* Facile: adjective (esp. of a theory or argument) appearing neat and comprehensive only by ignoring the true complexities of an issue; superficial.
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Old 12-13-2013   #30
Boulder, Colorado
Paddling Since: 2001
Join Date: May 2006
Posts: 212
{applause} Well done sir… well done.

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