Freedom To Use Rivers - Mountain Buzz
 



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Old 07-03-2014   #1
 
Colorado Springs, Colorado
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Freedom To Use Rivers

In this Fourth of July season, it is good to consider what freedom means regarding your rights on rivers. The first Act of the first Congress of the United States declared that the navigable rivers of the nation, and the “carrying places” between the navigable stretches, “shall be common highways, and forever free.” The “carrying places” were the portages around major rapids, waterfalls, and other obstructions (and even from one river to another river nearby.) At that time, the fur trade was an important industry, and furs brought from American forests sold well in New York, London, and Paris. These furs were transported by river, in canoes. Canoes and similar craft are about the heaviest watercraft that can be portaged, so this Act of Congress referred to navigation in canoes and similar craft, not in larger boats that cannot be portaged, such as steamboats (which were not yet in use.)

The U.S. Supreme Court subsequently confirmed that state governments cannot deny public rights to boat and fish on the waters within a state, “divesting all the citizens of a common right. It would be a grievance which never could be long borne by a free people.” The Court held that state governments must maintain the public’s “common liberty” to boat and fish in shallow rivers, including stretches adjacent to private land. The Court said that these waters must be “held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery.” (Google Martin v. Waddell 1842 to see the decision.)

The Court cited the Laws of Nature as the original source for these public rights to boat and fish on rivers. The Declaration of Independence echoes these ancient legal principles, saying that people “are endowed by their Creator with certain unalienable rights.” This reflects the ancient view that basic public rights are granted by God, and therefore cannot be revoked by national or state governments.

Nevertheless, lawyers for certain private landowners in various states still argue against public rights to canoe, kayak, raft, and fish on rivers flowing through private land. They typically claim that rivers that are only navigable in small craft such as canoes, kayaks, and rafts are not legally navigable. The U.S. Supreme Court has consistently rejected this view, holding that navigation includes canoes and “the floating out of logs” from “the sparsely settled regions of the Western mountains,” on rivers with “natural barriers, such as rapids and sand-bars,” and other “obstructions” and “carrying-places.” Federal appeals courts have confirmed the legal navigability of small whitewater rivers, used in the past by Indians in canoes, and by lumberjacks for transporting shingle bolts, which are sections of logs, about four feet long, floated downstream to mills to be cut up into wood shingles. When lawyers argued that small rivers usable only to transport “wood the size of shingle bolts” are not navigable, the court replied that this argument “rests upon a misconception of the law. It is not the size of articles transported in commerce that establishes the navigable character of a waterway.” (See Puget Sound Power v. FERC, 644 F.2d 785, Ninth Circuit 1981.)

The U.S. Supreme Court has repeatedly confirmed that “rivers that are navigable in fact are navigable in law.” In other words, rivers that are physically navigable in the ways just mentioned are legally navigable, with no official designation needed by government agencies, courts, or legislatures. The Court has confirmed that there is a public easement to use these rivers, “regardless of who owns the riverbed” in various stretches. The Court has confirmed your rights to raft, kayak, and canoe on these rivers, and to portage, walk along the beds and banks, and fish and fowl, “freed from the obstruction or interference of private parties.” It is not a crime, in any state, for the public to navigate or walk along the privately-owned banks of rivers and creeks that are physically navigable in these ways. On the other hand, it is a crime, in all states, for landowners to block this public easement, either on the water or along the banks, with fences, signs, obstructions, or verbal threats. Even so, you cannot fight back when confronted, because that can lead to criminal charges against you, even if you are correct about the public easement. Instead, you need to report the landowner’s crime afterward, to the sheriff and district attorney, and other elected officials, asking them to alert the landowner that interfering with the public easement is indeed a crime. In circumstances where you fear retaliation of some sort, you can report landowner crimes anonymously, through organizations such as Crime Stoppers, TIP411, and wetip.com.

You can give the sheriff and district attorney copies of the book Public Rights on Rivers, or, in Colorado, the new short book Public Rights on Rivers in Colorado, which is available in fly fishing shops, rafting companies, sporting goods stores, and other river-related businesses. Both books are also available online, individually or in wholesale batches, at nationalrivers.org. Upcoming books in the series will cover public rights in Utah, Kansas, Georgia, Virginia, and other states.

May you have a happy Fourth of July and a great summer, enjoying your legal rights to use the physically navigable rivers of the nation. – Team NOR.

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Old 07-03-2014   #2
 
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How much money do you have saved up to litigate that test case up to the SCOTUS, Eric?

I wish what you say was true, but the situation isn't as clear cut as you make it sound. If it was, Colorado Whitewater and American Whitewater and other river use advocacy groups would've had a slam dunk in the courts and we wouldn't have the restrictions on floating through private land we have here.

Maybe one day, what you say will be true, but right now you're filling people full of half baked legalese that'll get them arrested for trespassing.

-AH
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Old 07-03-2014   #3
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Yep. Freedom boofs all weekend.

If you don't get caught your free to do anything in this country
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Old 07-03-2014   #4
 
Colorado Springs, Colorado
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Reply to Andy H.

There is no need to litigate a new test case up to the Supreme Court, because the Court has already confirmed public rights to navigate, and walk along the beds and banks, of physically navigable rivers nationwide. In Colorado, there is the Emmert decision, and the 1983 attorney general opinion, denying public rights to use non-navigable rivers, but there is no court decision or state law denying public rights to use physically navigable rivers. In other words, there are no "restrictions on floating through private land" on physically navigable rivers in Colorado.

Neither Colorado Whitewater nor American Whitewater have engaged in litigation that resulted in a decision denying public rights to navigate through private land on physically navigable rivers in Colorado.

Certain landowners and their lawyers deny public rights to navigate through private land on physically navigable rivers in Colorado, but they have no valid basis for doing so, and their claims directly conflict with numerous federal court decisions. That's why we published Public Rights on Rivers in Colorado--to show that there is no lawful basis for denying public rights on physically navigable rivers in Colorado. People can use this short, low-cost book to educate sheriffs, district attorneys, and landowners about public rights on physically navigable rivers statewide. The book won't result in people getting arrested if they follow what it says. Similar books for Utah, Kansas, Georgia, and Virginia are now nearing completion.
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Old 07-03-2014   #5
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Please come to yellowstone and practice what you preach. It should be easy to get it opened up right?
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Old 07-03-2014   #6
 
Colorado Springs, Colorado
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Reply regarding Yellowstone.

In Yellowstone it is the National Park Service denying public rights to navigate those rivers (rather than private landowners.) So there are actual government restrictions in effect (unlike the Colorado situation, where there are no government restrictions in effect, only false claims being made by private landowners.) Consequently, we are also preparing to publish another short, low-cost book titled Public Rights on Rivers through Federal Lands, explaining how river users can work to change the present restrictions in Yellowstone, the Grand Canyon, and other federal preserves. The situation in those preserves is not as easy as the situation in Colorado, where there are no actual restrictions to change--it's only a matter of educating landowners, sheriffs, and district attorneys about public rights under existing law.
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Old 07-03-2014   #7
 
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I hate to say it but if this ever gets pushed to the supreme court again that whole earlier ruling would be over turned asap. The government does not give a rip about the rights of free people any more. It only cares about the rights of people with money and by that I mean people with a whole lot of money. More money than I'll ever be able to imagine. even if every man, woman, and child that loved river access gave every penny they ever had to protect free water ways for free people, one wealthy land owner would reach in his pocket and match that lump sum and then out right buy every so-called public servant in the court system. Just saying
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Old 07-03-2014   #8
 
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Quote:
Originally Posted by NationalRivers View Post
...The situation in [National Parks] is not as easy as the situation in Colorado, where there are no actual restrictions to change--it's only a matter of educating landowners, sheriffs, and district attorneys about public rights under existing law.
I rest my case that you're not only unaware of the CO Supreme Court Emmert decision but that you're pumping folks full of wishful thinking here. Continuing to spout the BS you're putting out is like someone who assumes the role of a commander, and tells the troops that the enemy is armed with corkguns and nerfballs, when they're really about to charge into a hail of machine gun fire and heavy artillery.

I'd love it if what you say were true and as easy as you think it is, but it's just a flat-out lie dressed up with some legalese and optimistic cheerleading. Just because we WANT it to be true doesn't make it so. When you come back from wading the Lake Fork of the Gunnison where the landowners are hostile, and educate the sheriff not to arrest people for trespassing there, I'll be all ears.

Until then, I beg you to please abandon your misinformation campaign - you're not doing boaters any favors.

-AH
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Old 07-03-2014   #9
 
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Reply to dirtbag.

Yes, a higher court decision against public rights on physically navigable rivers is possible in today's world, which is part of the reason why it is an unwise strategy to re-litigate the matter--the existing U.S. Supreme Court decisions firmly support public rights to navigate, fish, and walk along the beds and banks of physically navigable rivers, so the best strategy is simply to educate river users, landowners, and law enforcement agencies about those existing decisions. This is why it is best for river users to use the free handouts, and/or the low-cost short books, available at nationalrivers.org, to educate all parties about public rights confirmed by existing decisions, rather than claiming that new litigation or legislation are needed, which is not true.
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Old 07-03-2014   #10
 
Colorado Springs, Colorado
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Reply to Andy H.

Yes, it may seem like wishful thinking to people who have heard the baseless landowner claims for decades, but the truth of the matter is that Colorado decisions (including the Emmert decision) only deny public rights on non-navigable rivers, not on physically navigable rivers. However, we are certainly agreeing that certain landowners do have money to hire lawyers, and that an educational process does need to take place--river users do need to take the time to educate landowners, sheriffs, and district attorneys about public rights under existing law on physically navigable rivers. On the Lake Fork of the Gunnison, river users do need to meet with the sheriff and district attorney to show that the river was historically used for log and lumber drives, and commercial raft trips more recently, and is therefore legally navigable under federal law. Consequently there is a public easement under federal law to navigate and wade in the river through private land, an easement not affected by the Emmert decision (as discussed in detail in Public Rights on Rivers in Colorado.) We are not suggesting that river users can act as if that process had already taken place. In most places in Colorado, it hasn't.
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