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Old 10-07-2013   #1
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Grand Canyon closure unlawful

National Organization for Rivers
212 West Cheyenne Mountain Boulevard Colorado Springs, Colorado 80906

An open letter to President Barack Obama and Secretary of the Interior Sally Jewell
October 7, 2013
Dear President Obama and Secretary Jewell:
Your administration has erected a barricade, manned by armed rangers, preventing the public from getting to the Colorado River at Lee’s Ferry, Arizona, which is the only access point for navigating through the Grand Canyon.
This barricade is unlawful, and the current government funding dispute does not make it lawful. The first act of the first Congress of the United States declared that the rivers of our nation must remain “forever free” to public navigation.(1) Later Congress again confirmed that rivers “shall be deemed to be and remain public highways.”(2) Early in our nation’s history the U.S. Supreme Court confirmed that rivers are “held in trust for the public” and cannot be closed to navigation.(3) The Court later confirmed that the government is the “guardian” of rivers, so that “free navigation is secured,”(4) and that government authority on navigable waters is subject to the public’s “paramount right of navigation.”(5) Later the Court again confirmed that government authority on rivers is “subject to the rights which the public have in the navigation of such waters.”(6) In its most recent decision regarding public rights on rivers, the Court specifically confirmed that the Department of the Interior cannot close public access to rivers flowing through federal lands.(7)
There is no exception in the law for funding disputes. Likewise, the fact that funding may be forthcoming within the next few days does not make the barricade lawful today. The public has firm legal rights to get to the Colorado River at Lee’s Ferry today, not just at some undetermined future time. Public rights to access navigable rivers are not dependent on resolution of funding disputes.
It is obvious that it is costing money to enforce the barricade with armed rangers, while it would not cost anything to send the rangers home. Therefore the claim that the barricade is necessary due to lack of funding is absurd.
In summary, the barricade is illegal. Your administration is not above the law. Consequently, you are quickly losing the trust and support of millions of Americans who are aware of this illegal barricade. The law requires you to order the rangers to step aside and allow the public to get to the river. We urge you to comply immediately.

Eric Leaper
Executive Director, National Organization for Rivers.

(1) “Forever free:” Northwest Ordinance of 1787, reenacted August 7, 1789, chapter 8, 1 Stat. 50.
(2) “Be and remain public highways:” Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464.
(3) “Held as a public trust:” Martin v. Waddell, 41 U.S. 367 (1842); Illinois Central v. Illinois, 146 U.S. 387 (1892).
(4) “Guardians” of rivers: Pollard v. Hagan, 44 U.S. 212 (1845).
(5) “Paramount right of navigation:” Weber v. Board of Harbor Commissioners, 85 U.S. 57 (1873).
(6) “Subject to the rights which the public have:” Scranton v. Wheeler, 179 U.S. 141 (1900).
(7) Department of the Interior cannot close public access to rivers: Montana v. United States, 450 U.S. 544 (1981).

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Old 10-07-2013   #2
Tom Martin's Avatar
Flagstaff, Arizona
Join Date: Dec 2004
Posts: 817
Right On Eric! Thank you for posting this letter!

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Old 10-07-2013   #3
Join Date: Feb 2005
Posts: 883
Hi Eric,

That's nicely articulated, and on the surface makes a very good argument. But while I'm not a lawyer, a question comes to mind.

If the statutes and case law behind your argument is so persuasive, and so settled, why didn't some river organization -- yours perhaps -- get into Federal court on October 1st to stop the river blockade?

If this is issue is so clearcut, why not immediately file a lawsuit and request an injunction or temporary restraining order against the NPS and any other agency that was restricting river access? Even if it was a resource issue for a small organization like yours, surely other larger groups -- or a consortium of organizations -- could have taken it on if the legal context was so clearly and favorably established.

Not criticizing, just asking.

Rich Phillips
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Old 10-07-2013   #4
Join Date: Feb 2005
Posts: 748
My opinion, the issue is not that clear cut. I spent a great deal of time in law school researching river access/right to float issues. (Mostly as it pertains to the right to float in Colorado, which is admittedly a different issue. Nevertheless, the argument relies on many of the same SCOTUS precedents). The fact of the matter is that you can cherry pick good cases to support almost any argument, but you need to address and distinguish the bad cases to create a really compelling argument.

Take a look at the work that AW has done trying to secure boater access to the chatooga headwaters which is located on Forest Service land. Their arguments were often similar to National River's arguments, although more nuanced, and they found that the law is not as settled as NR may lead you to believe.

The key is that many of these holdings are much narrower than NR would like to admit. They apply to the facts of the case, and cannot always be applied as broadly as NR suggests here.

Also, despite what I just wrote I fully support your organization. There are very few groups pushing for river access, and I wish you the best of luck moving forward. I am by no means a river access expert, and who knows, these arguments could win the day.
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Old 10-07-2013   #5
Golden, Colorado
Join Date: Mar 2004
Posts: 1,012
p.s. you suck.
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Old 10-07-2013   #6
mrkyak's Avatar
Join Date: Jul 2005
Posts: 311
Hope my $35 new membership fee helps. Keep up the good effort.
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Old 10-08-2013   #7
Medford, Oregon
Paddling Since: 1984
Join Date: Jun 2012
Posts: 204
So would some of you argue that there should be no restrictions? Everyone should be able to run without restrictions? Personally I like limited launches, just imagine unllimited launches every day. Do you really want that? Be careful what you wish for. I know.... I suck.
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Old 10-08-2013   #8
Tom Martin's Avatar
Flagstaff, Arizona
Join Date: Dec 2004
Posts: 817
In this case, one would run with all rules and regs in place, including a permit, fire pan, extra oars, perfect pfd, you know the drill. You couldn't go above the high water line. Some folks would go home, some would go downriver. Best is to simply keep the river open. yours, tom
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Old 10-08-2013   #9
Wadeinthewater's Avatar
Walterville, Oregon
Paddling Since: 1977
Join Date: Mar 2009
Posts: 558
Originally Posted by Tom Martin View Post
In this case, one would run with all rules and regs in place, including a permit, fire pan, extra oars, perfect pfd, you know the drill. You couldn't go above the high water line. Some folks would go home, some would go downriver. Best is to simply keep the river open. yours, tom
Yes, best is to simply keep the river open. A couple of minor points to your scenario.

Camping would be very limited if you followed the rules. I believe you left out the word "ordinary" in the definition of state ownership. Ordinary high water is much different than high water. Here, here, here. I am guessing you would need to stay below the 20,000+ cfs mark to stay "legal"? This would exclude using most of the camps along the river.

I also don't think you technically would have a permit if you go this route. I don't remember the details for the Grand Canyon, but in other lotteries for federally managed rivers you are awarded a launch date. Only after showing ID, equipment checks and river use lectures are you given the permit. Otherwise why would you subject yourself to the process they put you through at Lees Ferry if you already had a permit under normal conditions? I would still launch without the permit if I had a launch date and the check in process was closed.
Real adventure is only one bad decision away.
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Old 10-08-2013   #10
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Denver, Colorado
Paddling Since: 2004
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Posts: 747
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We had a fair amount of this legal discussion over here.

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