River users should know their rights - Mountain Buzz

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Old 12-08-2014   #1
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 43
River users should know their rights

River users should know their rights

Canoeists, kayakers, rafters, fishermen, and other river users should know their rights to use rivers in all fifty states, under federal law. Many lawyers and state government officials claim that public rights on rivers have to be decided by state legislatures or state supreme courts. However, under the Commerce Clause and the Supremacy Clause of the U.S. Constitution, federal law is the supreme law of the land, and all the states are bound thereby. The most recent federal court decision on the subject is Atlanta School of Kayaking v. Douglasville County (981 F.Supp. 1469, N.D.Ga.1997). Citing previous U.S. Supreme Court decisions, it confirms that public rights on small, shallow rivers that are navigable in kayaks are constitutional rights, and are a matter of federal law, not state law. The decision is now 17 years old, yet it has not been contradicted by any federal or state court.

River users who want to help spread the word about these rights can download a new free one-page poster or handout, "Public Rights on Rivers in Every State", at nationalrivers.org, and post it on bulletin boards in coffee houses, college campuses, community centers, outdoor equipment stores, and other public places.

The poster-handout is backed up by the new short book, Public Rights on Rivers in Every State and through Federal Lands, which explains the subject in 72 concise pages, with over 200 footnotes citing federal statutes and court decisions. River users can get an inexpensive batch of 5, 10, or 20 copies for holiday gift giving. Sample pages are available at nationalrivers.org.

People who doubt the message of the book can attempt to find federal law that contradicts it, although they will find that there is no such federal law or court decision. Because of the financial and political stakes involved, numerous lawyers and state government officials will continue to claim that public rights on rivers in their state are restricted to only certain large rivers, but such claims are politics, not law. From the time the states ratified the Constitution in 1788, to today, federal law has confirmed that rivers navigable in canoes and similar craft must remain “forever free” to public use, including walking along the beds and banks of rivers through private land while boating or fishing.
Regarding rivers through federal lands such as the Grand Canyon and the Middle Fork of the Salmon, the new book explains why the present noncommercial permit situation on these rivers is unlawful, and how river users can work through local offices of their Congressmen to obtain the permits to which they are lawfully entitled. People who pay to enter the Park Service lottery for Grand Canyon permits year after year, without contacting their Congressman’s local office, are literally funding and supporting the continuation of the present wrongful situation. Rather than persistently applying to the lottery, it would be better for people to persistently work through a constituent caseworker at their Congressman’s local office. Nobody should be paying to enter the lottery, year after year, without also working with their Congressman’s office, to obtain space for their own trip and to help get the present situation corrected.

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Old 12-08-2014   #2
Montrose, Colorado
Join Date: Jun 2010
Posts: 200
This makes me think of so many questions.

Can you give an example of what a letter to a Congressman might look like regarding the Grand Canyon?
Is there concern that by removing all forms of regulation on the Grand Canyon that everyone with means would be allowed to go?
Does this apply to any other permitted river? Could I, for example have a party of 50 of us head down Lodore in June with no permit and be within my rights as long as we don't camp?
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Old 12-08-2014   #3
Join Date: Feb 2005
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This organization and its representatives periodically post along these lines. They just as periodically stimulate a significant number of Buzzard responses along the following lines.

"While we applaud your goals, if the law was so clear on this point, why has the current status of regulated rivers not been successfully challenged in court?"


"What exactly is your legal status, since there is some reason to question your claimed categorization as a non-profit?"

And predictably, the answers are nebulous, evasive, and/or un-useful in any practical way. The other thing the answers predictably do is point people toward providing financial support for the ongoing activities of the group.

They may have worthy goals, and everyone is free to make their own decisions on that point. But a lot of Buzzards continue to want clear, crisp answers to the questions QuietHunter and others ask before they sign on unreservedly.


Rich Phillips
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Old 12-08-2014   #4
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BZN, Montana
Paddling Since: 2008
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Posts: 1,493
Fuck off NationalRivers. You are going to get someone arrested with your third rate bullshit legal advice. When they are arrested you and your organization will not be footing the bill for their legal services. Further when they lose it won't be skin off your back. If you think your legal argument is so air tight go put on the grand canyon without a permit.
The sunshine walked beside her
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Old 12-08-2014   #5
Join Date: Feb 2005
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As Glenn said following your advice will get people ticketed/arrested (or shot depending on who owns the land). Now as many have said before - you have set forth a good defense for those who get arrested - your argument very well may win the day in court. Given how confident you are in your analysis, I think it only fair, that National Rivers volunteer a legal defense for those arrested following your advice.

Or better yet - you should practice what you preach. Go out and get arrested while adhering to your framework. As you outline, you have nothing to worry about as you would be arrested under an unconstitutional system. Then, in the subsequent legal matter, you can use your knowledge to establish a legal precedent that invalidates these unconstitutional laws/regulations forever.

The case you site is a district court case in Georgia. That case has persuasive value in other Federal Courts, but it is not binding precedent that any other courts have to follow. It's a step in the right direction, but it isn't the smoking gun you make it out to be.

I've said this before: I think your analysis is correct, I think these laws are unconstitutional and should be invalidated upon review, but I don't think the law is any where near as settled as you claim.
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Old 12-08-2014   #6
Colorado Springs, Colorado
Paddling Since: 1968
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Replies to the above

Whether for the Grand Canyon or Lodore Canyon, it’s not a matter of sending a letter to your Congressman. It’s a matter of making an appointment to go see a constituent caseworker in the nearest office of your Congressman. This step comes after you have applied for a permit and been turned down, verified that space is readily available by paying a concessionaire, and appealed to the highest levels of the Park Service. At the appointment, you show your documentation and ask the caseworker to help you get a permit. The goal is not to launch on the river without a permit, but rather to obtain a permit. The goal is also to hold the Park Service accountable for issuing noncommercial permits to people who apply for them, rather than telling people to keep applying to an annual lottery, while access is readily available by paying a concessionaire. The new short book explains this process in detail.

Regarding NOR legal status, it is a nonprofit organization incorporated in the state of Colorado. It had 501(c)(3) status with the IRS from 1978 until a few years ago, when we turned to researching river law rather than publishing. Now that the books on public rights on rivers (short version, long version, and one-page handout) are completed, we will turn our attention to updating the bylaws, assembling a new Board of Directors (consisting of directors from the states where river rights are most disputed), and renewing 501(c)(3) status. If there’s anything else you want to know about it, just say so.

Following NOR advice won’t get people ticketed or arrested, because NOR materials advise river users to educate law enforcement officers, government agency leaders, elected representatives, and riverfront landowners about the public easement, rather than getting ticketed or arrested. The goal is to avoid unnecessary confrontations or arrests. For example, when a riverfront landowner shot a river user on a gravel bar along the Meramec River in Missouri in July 2013, the landowner had previously harassed other river users on a number of occasions. If local river businesses, river users, and law enforcement officers would have advised the landowner that his harassment was unlawful, the shooting would never have occurred. The river user would not be dead, the landowner would not be spending the rest of his life in prison, and the taxpayers would not be spending roughly a million dollars to prosecute and incarcerate him. Preventing these needless situations is the goal of NOR materials.

It’s true that the Atlanta School of Kayaking decision is a federal district court decision from Georgia. It’s also true that there are no federal court decisions from elsewhere that conflict with it, even after 17 years, and it is consistent with over 200 years of U.S. Supreme Court decisions. We are not claiming that state law is settled in every state—if it were, there would be no need for us to publish things on the subject. We are acknowledging that state court decisions in Georgia and a number of other states conflict with federal law. There are also a number of states that require candidates to pass a religious test before they can hold public office. Such laws are “still on the books,” but they are “without effect” because they conflict with federal law, so they cannot be lawfully enforced. (See Torcaso v. Watkins, 367 U.S. 488, 1961.) State laws denying the public easement on rivers that are physically navigable in canoes or kayaks are like that. We are telling river users how to help improve the situation rather than standing by helplessly. NOR materials give river users the background they need to discuss these things intelligently, rather than merely believing what they have heard from landowners, their lawyers, and government agencies.
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Old 12-08-2014   #7
Join Date: Feb 2005
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Well that helps a lot. All that has to happen is for Eric Leaper to personally carry out the instructions outlined in that last post. Then he can report to us on how well it worked to get a permit for the Grand by working through congressional channels. Even if it wasn't Eric, even a single specific example of how this actually worked would do wonders!

And when NOR's web site says, "NOR is a non-profit organization..." it certainly is implying something that may be misinterpreted by casual readers. I seem to recall you've been posting that stock language about having/losing/trying-to-regain your tax-exempt status for a long time.

As I've said more than once (in response to earlier posts by NOR and its several representatives) I and many others applaud any legitimate strategy that ensures/increases access to our rivers. NOR could -- repeat, could -- be a vehicle to achieve that. But unless and until more persuasive and conclusive evidence presents itself, these posts continue to look more like a fund-raising effort than a practical guide to actual access improvement at the individual boater level.


Rich Phillips
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Old 12-08-2014   #8
Steamboat, Colorado
Join Date: Jul 2014
Posts: 609
Just a copy and paste so that it's attached to both relevant threads... for me, there's just too much left up to interpretation to want to push the matter in the heat of the moment with a disgruntled landowner. Do you really think if I shoved some piece of paper under his nose citing laws that may or may not uphold in court, he'd relent?

So.... this brings me back to my original question. I read the Emmert case, and though it was a while back when I first started this thread, I do remember why I was so confused in the first place.
How is navigable/non-navigable defined? Navigable by whose standards and by what type of craft? What's navigable in a kayak may or may not be navigable in a raft or fishing boat or whatnot. What's navigable in early Spring may or may not be navigable in late Fall.... You may be able to navigate through a creek that with my set of skill I cannot. So how is this actually defined and how can we make it applicable to our access argument, if indeed we are confronted by an aggressive landowner or law enforcement?
Is there a database of navigable/non-navigable waterways, or is it just something simpleton, non-law-knowing folk like me have to guess on?

The river user that National Rivers cites as being shot in Missouri was shot because he was doing just what you are suggesting we do... pushing the limits. I, for one, do not want to be a dead guinea pig in this experiment.
It's a good day to be a duck....
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Old 12-08-2014   #9
Golden, Colorado
Paddling Since: 1975
Join Date: Oct 2007
Posts: 536
good lord, the delusional, windbag fuckstick is back.

Has the IRS caught up with you yet, dipshit?
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Old 12-08-2014   #10
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
Posts: 43
True, you should not “push that matter in the heat of the moment with a disgruntled landowner.” You should leave and continue down the river. After completing your trip, you should give local law enforcement the poster and short book, and ask them to tell the landowner to stop unlawfully harassing river users. You can also talk with the landowner yourself at some calmer time. If local law enforcement is uncooperative, you should ask your elected representatives to intervene. Such measures would most likely have prevented the Missouri shooting.

What is navigable, for Commerce Clause purposes, is defined by U.S. Supreme Court decisions and other federal decisions. It includes rivers and creeks that are usable by canoes, or kayaks, or logs, or shingle bolts (sections of logs, about a foot in diameter and about two to three feet long). It only needs to be navigable in spring, not fall. There can be numerous portages. If you can reasonably kayak a waterway, it was almost certainly usable to transport shingle bolts in the past, so it is legally navigable under federal law.

There is no database. It’s something that people can observe for themselves. Rivers that are navigable in fact, by canoes or kayaks or shingle bolts, are navigable in law—they are legally navigable, with no official designation or database registration needed. The new short book cites many federal court decisions confirming these things.

As the profanity indicates, there are people who get furious when public rights on rivers under federal law are defended. Likewise, there were people who got furious when segregation was first outlawed by federal law. The two issues are quite different, but they do have something in common.

I have worked successfully through a constituent caseworker at my Congressman’s local office in the past (in a dispute other than the Grand Canyon), and I plan to do so again. There is no doubt that doing so has real impact. The Park Service does not have magical immunity from Congressional inquiry. People who want to help change the Grand Canyon situation should talk to a constituent caseworker at their Congressman’s local office. They should not wait for a new court decision, nor should they file a lawsuit themselves (unless they have already appealed to the highest levels of the Park Service, and worked through their Congressman’s office, for quite a while). The new short book explains the process in detail.

It does take some time and persistence. It’s not instant gratification. But nobody should be applying to the lottery, year after year, without meeting with a caseworker at their Congressman’s office.

There are many nonprofit organizations that are not 501(c)(3). There’s nothing wrong with that. NOR will be 501(c)(3) again soon enough.

People who want to better inform themselves, and help improve the situation, should join NOR and/or get the new short book, Public Rights on Rivers in Every State and through Federal Lands. Those who don’t want to contribute don’t have to—they can still use the poster-handouts, which are free to anyone.

Eric Leaper.
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