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Old 11-06-2013   #81
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Replies to the above:

As the passages quoted by Rich Phillips from the River Runners for Wilderness decision indicate, that lawsuit claimed the Park Service had violated the Administrative Procedure Act by allowing the continued use of motorized rafts. There is almost no overlap between the facts, citations, and legal principles discussed in that lawsuit (decided several years ago) and the facts, citations, and legal principles discussed in Public Rights on Rivers (which is only two months old.)

Regarding the litigation choices made by the RRFW lawyers, if they would have worked with me as an expert witness in their case, I would have urged them to take it in quite a different direction. (The various cases I have worked on since the 1980s have been successful. They have not yet dealt with the Grand Canyon situation, although it is interesting to note that they have helped public access on tributaries of the Grand Canyon.)

Regarding why the facts, citations, and legal principles discussed in Public Rights on Rivers “haven’t been applied to restricted river situations throughout the country,” the book is only two months old. We can’t control what people around the country choose to do with it, although we anticipate that it will greatly improve public access to public waters.

Regarding American Whitewater, we urge river users to compare the explanations of river law found on the American Whitewater website side by side with Public Rights on Rivers, so as to better understand the complete picture.

Regarding legislation rather than litigation, both of those things could reconfirm existing public rights, but neither one is actually necessary, because public rights have already been well confirmed by the U.S. Supreme Court and other higher courts and Acts of Congress. Public Rights on Rivers explains how to settle river disputes without further legislation or litigation. Future editions of the book will include chapters specifically regarding the Grand Canyon and Yellowstone situations. – Eric Leaper.

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Old 11-06-2013   #82
Join Date: Feb 2005
Posts: 883
Hi Eric,

Thanks for that lengthy explanation of your views. So I guess we are to conclude some combination of the following:

a. You weren't closely following river issues prior to 2006, and somehow missed the fact that new policies regarding private boater access to the Grand Canyon were being developed, or;

b. In the years the RRFW litigation was pending, you were not aware of one of the most significant river-related legal cases in recent years, where your unique knowledge could have been usefully applied or;

c. You and Tom Martin never communicated at all on these issues during the entire time the CRMP was being developed or litigated, and so you had no opportunity to shape the goals of the lawsuit, or the way it was argued, or;

d. That you never presented your highly persuasive information to Tom and/or his lawyers, so they could focus on what you assert were clearly winnable issues, rather than motors and commercial boating, or;

e. You were aware of the case, but were too timid, or otherwise more productively occupied, to offer your advice and/or services to RRFW as it clearly was struggling with their legal foundation -- particularly after a highly adverse district court decision was handed down, or;

f. Your non-involvement (for some unexplained reason) meant the RRFW lawsuit failed because no-one else in the river community can offer expert witness services at the high level you represent, or;

g. Your highly persuasive legal theories must have only been developed in the time since the CRMP was litigated -- surely if they existed (or if anyone else thought they had any legal force) prior to you compiling them in your book, someone would have relied on them during the RRFW case, or;

h. The legal team helping Tom decided to follow a different strategic course because they didn't find sufficient merit in your legal theories.

Still trying to figure this out...

Rich Phillips

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Old 11-06-2013   #83
Antarctica, Alabama
Paddling Since: 1981
Join Date: Sep 2012
Posts: 32
Expert witness?


"if they had used me as an expert witness . . . "

Courts never allow "expert witnesses" to testify as to how the law should be applied to the case before them. Judges believe that they, and (to a lesser extent) the lawyers before them are the experts on how to apply the law. The rare exceptions are when they allow attorneys to testify in legal malpractice cases, i.e. to say "any competent estate planning attorney knows X."

Have you ever actually testified as a legal expert witness in a case?
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Old 11-06-2013   #84
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Replies to Rich Phillips and klickitat:

Regarding the alternatives outlined by Rich Phillips, the last two are somewhat close to what actually happened: Public Rights on Rivers is more recent than the River Runners for Wilderness lawsuit, so it was not available to the RRFW lawyers, and therefore they couldn’t decide if it had merit or not. In addition, their goals were rather different from NOR views (a key part of the RRFW goal involved motors.) Regarding the soundness of their judgments about early versions of NOR legal views (to the very limited extent that they were available at that time,) it should be kept in mind that the court disagreed with their views, not with NOR views.

Regarding the observation by klickitat, I’m not saying that I would have testified about river law, but rather that I would have urged the lawyers to present a substantially different set of facts to the court (with my testimony regarding some of those facts,) and to therefore make a substantially different set of legal arguments. – Eric Leaper.
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Old 11-07-2013   #85
Join Date: Feb 2005
Posts: 883
Hi Eric,

Once again you demonstrate how little intellectual ability you must think Buzz readers have.

First, the materials you rely on pre-date formulation of the CRMP and the subsequent litigation. They all were available for you to provide to the RRFW lawyers, if you had chosen to do so.

Second, you expect us to believe that you alone in the legal community -- wait, are you a lawyer?

Setting that aside.

You want us to believe that no (other?) attorney involved in the CRMP case was able to discern such a clear-cut set of precedents leading to unfettered river access.

You want us to believe that no-one else did any in-depth legal research on river access issues before engaging in one of the most important cases of that type in recent history -- that the extensive research that surely was done failed to uncover the cases you rely on?

You want us to believe you alone can identify these key cases -- cases that will transform river access (if only applied using Eric Leaper as an expert witness, of course).

You want us to believe that -- in the face of your guaranteed winning strategy -- RRFW's legal team would have chosen instead to pursue a huge loser.

The one thing I would believe is that if you had presented your views to them -- and for all I know you actually did -- they would have decided they weren't sufficiently meritorious. Because if they felt they had the slightest legal weight, they surely would have thrown them into the case as well, as a collateral attack on the CRMP.

Oh, and by the way, have you provided any of the lawyers here on the Buzz with a copy of your book, so they can offer their view?

Just asking...

Rich Phillips
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Old 11-07-2013   #86
cedar city, Utah
Join Date: Mar 2008
Posts: 1,928
Originally Posted by richp View Post
Hi Eric,

You want us to believe that no-one else did any in-depth legal research on river access issues before engaging in one of the most important cases of that type in recent history -- that the extensive research that surely was done failed to uncover the cases you rely on?

You want us to believe you alone can identify these key cases -- cases that will transform river access (if only applied using Eric Leaper as an expert witness, of course).

Rich Phillips
I think that hits the nail on the head for me. He wants us to think for ourselves as long it means we trust his authority on the subject. This is in tandem with an expectation to distrust or throw out other authorities on the subject. There is a dissonance there that can't be overlooked.

The other intellectually issue is his claim that these laws don't involve interpretation and that Supreme Court rulings as so clear as to be self-evident. If that was the case then a 28 year old ruling that he claims to be the end-all-be-all would have been applied by now in the fashion he proclaims. Lawyers and organizations have been working to find a better outcome for access for decades now, Eric is not alone on that.

The ironic twist to this is I do think for myself. In this particular case I have spent hours looking into an issue to verify information. And what it boils down to is I have not found any support for the broad interpretation Eric has posited. And that is why the legal "interpretation" issue is so important to the subject but he denies it is even a variable. Supreme Court ruling, treaties and the Constitution have been debated for years because language inherently requires interpretation. Consider the fact that Supreme Court rulings have an entire section devoted to the legal "opinions" of the majority and minority. I mean the fact that most SCOTUS cases are split exposes that very issue at hand. And then we throw in the issue of nuances and context for SCOTUS cases and it gets even wilder. Montana vs US had specific context: tribal sovereignty over waterways and access. Eric wants us to expand that to the broader level of federal agencies in general. That is fine but you can't expect intelligent people who value critical analysis to accept such a paradigm shifting approach to resource management when the only source you have means appealing to your assumed authority. That is a problem.

I get the sentiment NOR is advocating and wish it was true. I wouldn't immerse myself in the issue and research if I didn't want some change. But for now its hard not to see blaring problems with NORs expressed opinions. They may cite history and law but that doesn't make it accurate. That is why some of us ask for outside validation of the source and ideas. Peer review from authoritative, third parties is extremely important for validating accuracy of information. I would actually posit that ignoring that tradition is dangerous to the very outcomes NOR claims to have. Putting unvetted information in the hands of the lay public can backfire and misinformation takes ages to correct.

Maybe this is just an issue of poor social media strategy. I don't know. But from the comments expressed here by multiple employees of NOR and the website it would seem they may have a larger problem that is systemic to the rigor and style of argument they are founded upon.

Time will tell. Hoping a copy of the book has been mailed to lawyers of this forum and others outside this site so we can have a better understanding of the content. Until then....my academic skepticism remains.

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Old 11-07-2013   #87
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Reply to both of the above:

Regarding intellectual ability, we trust that Mountain Buzz readers have the ability to read about river law themselves, rather than just relying on what any one organization, or lawyer, or Park Service official, tells them about it. You’ll notice that at the bottom of the NOR handouts and posters (and in the book Public Rights on Rivers) it says, “Send comments or corrections to: riverlaw@nationalrivers.org.” This is an invitation to lawyers, expert witnesses, long-time river runners, river historians, and other people with relevant experience and knowledge, to refine anything in NOR literature. We’re not saying that we are the only ones with expertise on the subject. We are working to elevate and expand the national level of knowledge about public rights on rivers, and we welcome further participation by anyone with relevant experience. Public Rights on Rivers is very much a work in progress. There will be new editions every few months.

Regarding Montana v. United States, it is only one of many cases discussed in Public Rights on Rivers. It should be viewed in combination with those other cases.

Regarding the research done by lawyers in the River Runners for Wilderness litigation, those who worked for Grand Canyon Private Boaters Association (and the Park Service and the other organizations who opposed the River Runners for Wilderness views) were researching how to oppose public rights, not how to support them. They were “not able to discern such a clear-cut set of precedents” regarding public rights because they were trying their best to bury such precedents.

Regarding the lawyers who worked on behalf of River Runners for Wilderness, they worked diligently on both the motors issue and the public access issue, and we are very grateful to them for their work. However, to answer your question, yes, they chose a losing set of facts and legal arguments. – Eric Leaper.
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Old 11-07-2013   #88
Denver, Colorado
Paddling Since: 2004
Join Date: Apr 2004
Posts: 3,097
Wow, you guys can get after it.

I think its great for folks to look for ways to try different tactics to try and break through river access issues. My personal read of NOR's materials is that they use very general cases in out of context snippets and attempt to say that river access is 100% gauranteed and locked down.

Of course reality is quite different. Yellowstone is closed. Public access to rivers is a challenge in many places in the US. Permitted rivers and closures are a glaring example that current regulatory environments don't conform to the ideal access that NOR claims.

Until the NOR claims reverse closures etc or do something concrete to open up access and set a precendent, they remain untested legal theories. If you paddle yellowstone and get caught by the cops and give then NOR pamphlet, you are still going to get arrested.

I've spoken with several lawyers who are paddlers and active in the river community for access issues etc. Most of the folks I have spoken to think that either major legislative changes or a legal challenge will be the things that break the status quo over river access. The lawyers I have spoken too DO NOT think that legal challenges are a slam dunk and they think that there is a lot of downside risk if river access legal challenges went wrong.

As an interested and educated observer its impossible for me to know if NOR is the real deal and holds a nugget of wisdom that can push access forward, or is simply trying to sell books for self promotional purposes.

Carry on with your Mountainbuzz Legal Eagle debate though... its going to be a long winter. I hope you guys get something done by spring. That would be great. Keep us posted.
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Old 11-07-2013   #89
Join Date: Feb 2005
Posts: 883
Hi Eric,

I've about concluded that I've said all I need to say on this, but for a couple of final comments.

GCPBA sued the Park to re-start the CRMP process, so we could gain additional private boater access to the Grand Canyon. Then we turned around and worked collaboratively with the Park and other like-minded river organizations to craft a compromise plan that did just that. The CRMP didn't meet everyone's needs, and we didn't agree with every part of it. (For instance, we never requested, nor did we agree with, the one-trip-a-year rule.) But the CRMP went a long way toward advancing private boater interests. Most notably, we attained a doubling of the number of private boater launches, accompanied by related reductions in commercial boating activity -- including significantly shortening the motor season. And GCPBA worked to defend that plan because, not only was it a good compromise plan with room to change in the future, but also (as the Court noted in a quote I've already provided) the logical outcome of the RRFW lawsuit would have been to ban all human activity in the Canyon.

If you didn't enter that fray because your ideas were not fully formed at the time (after decades of claimed experience), or the RRFW lawyers didn't subscribe to your theories, well, that's a clue to how effective you and your efforts might be in some future battle over Yellowstone or the Grand Canyon. And in all sincerity, I wish it were otherwise, because as time passes, folks who pursue these issues will need all the effective, articulate help they can get.

Bottom line. Unless and until you provide much more specific information about the notable river access gains you've personally engineered, and the caselaw that you so firmly assert will open the doors for all of us to rivers throughout the country, you're going to continue to have a hard sell here.


Rich Phillips
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Old 11-08-2013   #90
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 31
Reply to deep south paddler and Rich Phillips:

1. For right now I will leave it for readers to decide for themselves whether the current Grand Canyon situation qualifies as a “good compromise plan,” especially readers who have applied repeatedly to the annual lotteries, while confirmed reservations are always readily available by telephone, for various dates at various times in the future, if you pay a park concessionaire. I suppose it should be kept in mind that the large allocations to concessionaires remain unchanged year after year, even though one of the alternatives that the Park Service itself suggested in the plan was to make annual shifts in allocation.

2. The federal cases are not “out of context” or “untested legal theories.” Cases that are on point regarding public rights to raft, kayak, canoe, fish, and walk along the beds and banks of rivers with rapids include Atlanta School of Kayaking, Goodman v. Crystal River, Loving v. Alexander, Alaska v. Ahtna, Montana v. United States, Economy Light, The Montello, and Martin v. Waddell. There are other federal cases, about river law generally, that further support the principles in the cases just listed.

3. The notion that today’s river access disputes can only be decided by a court is widespread among river users, but mistaken. Given the large amount of existing case law, most access disputes can be and should be settled out of court. I have done so myself and encourage other river users to do the same. Public Rights on Rivers gives river users a key tool for doing so, and explains how to do so. Having a lawyer for the process can certainly be helpful, but is not always necessary. When certain lawyers claim that litigation or legislation are necessary to resolve current access disputes, it should be kept in mind that they get well paid to do those sorts of things, but not to tell people that river disputes can and should be settled out of court (sometimes without a lawyer.)

4. As the Supreme Court has confirmed, which rivers are navigable (and were navigable for past uses) can be verified by fact witnesses and expert witnesses, working closely with lawyers, but not by lawyers themselves.

5. Despite the above, it is still understandable that some people would want a book about public rights on rivers written by lawyers, rather than by expert witnesses working closely with lawyers, but at present no such book is available, so this book will have to do.

6. We will announce, here and elsewhere, as “peer review” of some sort becomes available. Meanwhile, Public Rights on Rivers is available in its present form. It makes sense to read it before talking about it. – Eric Leaper.

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