Does the law support your rights to recreate on rivers? - Mountain Buzz
 



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Old 12-04-2013   #1
 
Colorado Springs, Colorado
Paddling Since: 1968
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Does the law support your rights to recreate on rivers?

Happy Holidays!

Hope things are warmer where you are, here in Colorado we are being hit with snow and very cold temperatures! Hope the info below warms your spirits

We are excited to announce a free sample of the book, Public Rights on Rivers: Canoeing, kayaking, rafting, fishing, and fowling rights, river conservation and water rights, is now available for download. See the attached pdf, or click here. The book sample is 23 pages long, and discusses the following:
  • The table of contents and the types of questions the book answers
  • Ancient uses of rivers
  • River law in ancient times
  • River uses in North America
  • River law in ancient North America
  • River uses in colonial America
  • The founding principles of American river law
  • River uses in the early 1800s
  • The development of river law in the early 1800s
The sample helps outline the progression of river uses and law through history, and sets the stage for Supreme Court cases and rulings that follow. The rest of the book focuses on the application of the law, including basic principles of water and river law, which rivers are navigable for which purposes, public recreation rights on rivers, and the role of state law.

We hope you benefit greatly from this information. The good news is: your rights to fish, paddle, and walk along the banks of navigable rivers has been confirmed repeatedly by the highest law in the land, the Supreme Court and Congress. Thanks for supporting the cause for rivers to be "forever free." Enjoy, Happy Holidays!

Best,

Team NOR
Attached Files
File Type: pdf Book sample.pdf (3.27 MB, 66 views)

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Old 12-04-2013   #2
 
Join Date: Feb 2005
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Hi NationalRivers,

To answer your question...

Actually, no-one can answer that question from the material presented in that file. It's a table of contents that apparently has a couple mis-labeled page numbers and some aggregated historical info.

It provides absolutely no clue as to how your organization has assembled and analyzed actual legal information to support your position. And importantly, there's no specific information at all about the cases you rely on to bring you to your conclusions. Didn't you figure out from your last foray here that it was going to take just a bit more than this to effectively communicate your views?

So I have a question instead.

Have you provided any of the lawyers here -- those who requested it -- with a copy of your work so they can give it a fair and complete review?

If there's real substance to your work product, you would get support here. But you have to make your case in this arena -- people aren't going to just fall in line mindlessly.

FWIW.

Rich Phillips
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Old 12-04-2013   #3
 
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Boise, Idaho
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Quote:
Originally Posted by NationalRivers View Post
...We are excited to announce a free sample of the book, Public Rights on Rivers: Canoeing, kayaking, rafting, fishing, and fowling rights, river conservation and water rights, is now available for download...
Team NOR
Thanks NOR for you dedication to this. Many of us in the boating community appreciate the work done by those advocating freer access to waterways. Please keep it up.
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Old 12-04-2013   #4
Jared
 
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Dundee, Oregon
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I am glad to be in Oregon. I rarely have had a land use issue here. People are pretty accepting, and I make it a point to respect land owners here. I used to run lots of weird little rivers and creeks where it was unlikely that the land owners ever saw kayakers. I was always friendly when I saw people and I didn't get mad when a farm dog came after me. As a result, I've never been trespassed, threatened, or even have felt unwelcome. It's sad to read about some of the river access issues discussed on the Buzz.
I used to be an off-roader, but one of the things that soured me was land use issues. I think it's pretty easy for us as boaters to limit our impact on the land. Off-roaders cause damage, no matter how well you follow Tread Lightly's rules. I know many people put great effort into limiting their impact on the land and repair what gets damaged, but the simple fact is, truck trails cause damage. There are more rivers than there are places to take Jeeps in Oregon.
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Old 12-04-2013   #5
don't bogart that
 
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Frosted Flakes N of Baytuckey, Colorado
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Originally Posted by briandburns View Post
Thanks NOR for you dedication to this. Many of us in the boating community appreciate the work done by those advocating freer access to waterways. Please keep it up.
X2

Lets not be pulled down by the troll, optimism, it what makes the great things in life possible
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Old 12-05-2013   #6
 
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I don't think Rich is trying to be negative, but National Rivers doesn't tell the full story. Take for example Colorado. There is a good summary of the relevant issues here:

American Whitewater - access:co

This is the state of Colorado river access law as I learned it in law school.

You are right that these old SCOTUS cases state that where a river is navigable for title purposes the area up to the high water mark is owned in trust by the people. The step that your analysis ignores (at least the analysis that I have seen) is that the state courts have concurrent jurisdiction with the federal courts to determine what is navigable for title purposes. In People v. Emmert, which is discussed in the link above, the Colorado Supreme Court held that the Colorado by Glenwood was not navigable for title purposes. This has led most to conclude that no rivers in Colorado could be considered navigable if the largest riverway in the state was not navigable.

I should mention that I think the Emmert case is wrong. I think, in keeping with your analysis, that the Colorado river is navigable for title purposes under the generally accepted test. And I think that if this issue went to the Colorado or US Supreme Court again you might see a different result. However, Emmert is the law as it currently stands here in Colorado.

The fact is that the public's right to access and float rivers in Colorado (and a handful of other states) is unclear. This is the reason there was a push to codify the public's rights on rivers in the state legislature a couple years back.

Your group has clearly done a lot of great work putting this together, and this book is a great resource. I fully support the overall goal to promote full and free access to rivers. But it doesn't help our cause to overstate our legal rights. I think it is more important to have a river community that is knowledgable and fully understands the issues, than to have a community that just blindly asserts rights without fully understanding the nuances involved.
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Old 12-05-2013   #7
 
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Hi,

I want to add that you westerners aren't the only ones with this problem.

I live in Illinois, where most boating folks who follow this issue firmly believe that the State has adopted a position on river access that is clearly unlawful. The problem is that there is no boating organization with the financial resources to pursue a case all the way to the Supreme Court, which is what it would take.

I dearly wish that Eric's case was as powerful and persuasive as he claims. It might embolden the Illinois Paddling Council or some other organization to take the state DNR to court.

FWIW.

Rich Phillips
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Old 12-05-2013   #8
 
Colorado Springs, Colorado
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NOR replies to the above:

People are already using NOR materials to confirm public rights on rivers, in Illinois and elsewhere. Check out the blog about a fishermen in Illinois who used NOR materials successfully in three different situations, involving trespassing claims as well as government regulations, at A fisherman. Note that he is not waiting for the Illinois Paddling Council to take the state DNR to court, which would be foolish and unnecessary. NOR has sent a review copy of the book and other materials to the lawyers who requested it.

If you enjoy kayaking small rivers in western Colorado, you can use the book, handouts, and posters in a similar way, to dialog with landowners and sheriffs about public rights on rivers under current federal law. You don't need to wait for the state legislature to confirm your rights, because rivers that were navigable in the past for log drives, and are navigable today for kayaking, are navigable for Commerce Clause purposes under federal law, so the public has an easement under federal law to navigate, scout, and portage on such rivers, regardless of who owns the bed and banks of the river under state law.

Whether the river is also navigable for title purposes is important if you are taking sand and gravel from the riverbed, or if you find gold nuggets in the riverbed, but does not matter for purposes of the public easement to navigate and walk along the banks.

Under the Supremacy Clause of the U.S. Constitution, state court decisions such as People v. Emmert do not apply to the extent that they conflict with current federal law. Which rivers in Colorado are navigable for Commerce Clause purposes, or title purposes, and public rights to navigate and portage on these rivers, are matters of federal law, not Colorado state law.

BrianK says that American Whitewater provides a "good summary of the relevant issues" on the web page he cites. That page says, "It is unclear what test of navigability applies in Colorado, as no state statutes or regulations define or describe such a standard." The test of navigability for Commerce Clause purposes that applies in Colorado, as in other states, is a matter of federal law, not a matter of state statutes, regulations, or court decisions.

Rich Phillips seems to be saying that "what it would take" to confirm public rights in Illinois (or Colorado) would be "a boating organization with the financial resources to pursue a case all the way to the Supreme Court." This is a common assumption among river users, but is mistaken. The U.S. Supreme Court has already confirmed public rights on rivers, in all states, numerous times. River users can use NOR materials to dialog with landowners and state law enforcement officials now, rather than waiting for new reconfirmation of the same legal principles.

NOR agrees that is is important to have a river community that is knowledgeable and fully understands the issues, rather than blindly asserting rights. It's also important to not have river users and organizations blindly denying public rights on rivers, based on what riverfront landowner lawyers widely proclaim. The book (not just the sample) discusses public rights on rivers in detail.
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Old 12-05-2013   #9
 
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Hi Eric,

"NOR has sent a review copy of the book and other materials to the lawyers who requested it."

I'm eagerly looking forward to hearing from them.

But I still need some help understanding why fishermen know about your stuff, but not the Illinois Paddling Council. If your materials are so compelling, why are organizations like the IPC not using them to open rivers like the Vermillion (one of the few rivers here with even a tiny bit of whitewater), which was totally closed to boating for several years over jurisdictional issues after a drowning.

There was lots of discussion on the Chicago Whitewater list (over a long time) on that closure and the negotiations that finally resulted in it being reopened. Everyone agreed that the river should be open under Federal slaw, that the state law was in conflict, but that litigation would be needed to force DNR to comply. Not once was your material refernced. Any particular reason?

Just asking...

Rich Phillips
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Old 12-05-2013   #10
 
Denver, Colorado
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Originally Posted by eric.leaper View Post
Under the Supremacy Clause of the U.S. Constitution, state court decisions such as People v. Emmert do not apply to the extent that they conflict with current federal law. Which rivers in Colorado are navigable for Commerce Clause purposes, or title purposes, and public rights to navigate and portage on these rivers, are matters of federal law, not Colorado state law.
All well and true. But the state court decision will be applied in Colorado until somebody decides to challenge the state court holding in a federal court. It's not the job of the federal judiciary to seek out state laws that conflict with the U.S. Constitution; it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in Emmert.
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