(For those who have requested this. Included are several citations)
National Organization for Rivers
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October 3, 2013
An open letter to the directors of the National Park Service in Washington, D.C., and Grand Canyon, Arizona.
Dear National Park Service Directors:
We understand that the National Park Service has erected a barricade, manned by an armed ranger, to prevent the public from navigating the Colorado River through the Grand Canyon.
We also understand that a party of sixteen people, after having paid for and obtained a permit from the National Park Service to navigate the river, and driven from New Hampshire with their rafts and equipment, is waiting in the area for the National Park Service to re-open the river, and that other parties are likewise being denied their legal rights to navigate the Colorado River, the principle river in the southwestern United States.
The first act of the first Congress of the United States declared that the rivers of the 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 reconfirmed that government authority on rivers is “subject to the rights which the public have in the navigation of such waters.”(6) In recent times the Court has reconfirmed public rights to navigate rivers in the western United States without permission or approval from the federal agency managing the surrounding lands.(7)
We are well aware that courts have upheld National Park Service authority to close waters within national parks to certain public uses when there are legitimate environmental reasons for doing so, consistent with the agencey’s mission to preserve national parks for future generations. This blanket closure of the Colorado River, however, does not fall within that category. There is no provision in federal law for agencies to close rivers to public navigation merely because they do not currently have the funding that they previously received.
Likewise, the fact that funding may be forthcoming within the next few days does not make this closure lawful today. The public has firm legal rights to navigate the Colorado River today, not just at some undetermined future time.
In other words, it is unlawful to hold public rights to navigate the Colorado River hostage to the political process now unfolding in Washington, D.C. The public has firm legal rights to navigate the Colorado River through the Grand Canyon regardless of when, or if, Congress renews funding for the National Park Service. The public’s legal rights to navigate the rivers of the United States are not dependent on Congressional funding of federal agencies, or lack thereof.
By its actions, the National Park Service is claiming that it does not have sufficient funding to allow the public to navigate the river—which would cost the agency nothing—yet it somehow does have sufficient funding to post an armed ranger to unlawfully prevent the public from navigating the river. This situation is absurd and indefensible.
Consequently, we urgently call on the National Park Service to immediately remove this unlawful barricade to public navigation of the Colorado River.
Executive Director |National Organization for Rivers
cc: Members of Congress.
The White House.
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, 468.
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 Without permission or approval: Montana v. United States, 450 U.S. 544 (1981).