Federal authority to restrict navigation - Mountain Buzz
 



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Old 10-10-2013   #1
 
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
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Federal authority to restrict navigation

A mountainbuzz member named Phillip, restrac2000, cites a section of the Code of Federal Regulations and claims that it is “inconsistent with NOR statements,” but in fact it supports NOR statements: Federal agencies can indeed close park lands for provable public safety or environmental reasons. The current closure of the road to Lee’s Ferry (in effect preventing public use of the river itself) does not fall within that category.

He also says NOR materials about public legal rights on rivers have “never been proven,” and the law cited is “superficial” and “immensely unconvincing.” (Preston H. says NOR materials are a “great but untested legal theory.”) The laws cited in NOR materials are U.S. Supreme Court decisions and acts of Congress. You can’t get any higher than that. There is no Supreme Court decision going the other way, i.e., saying that federal agencies, state agencies, or private landowners can close physically navigable rivers to public navigation and fishing (except for special reasons as noted above.)

He also says “no individual or organization has vetted” NOR materials. In fact, since the late 1990s, a number of lawyers have examined NOR materials and come up with no substantial rebuttals, i.e., no law to the contrary. Specifically, Colorado lawyer John Hill (a very experienced lawyer who worked for federal agencies for decades before switching to private practice involving attempts to oppose public rights on rivers) has tried to rebut NOR materials for about 12 years now, and has come up with no substantial rebuttal. Also, within the past few years we repeatedly distributed NOR materials throughout the Colorado state government, including the state attorney general’s office. Now, as far as we can tell, the state government is no longer telling the public that people can only run rivers “without touching” the bed and banks, as they did previously. (If you find any place where they are still saying that, let us know.) At this point we can’t prove that NOR materials were the sole reason for the policy change, but we find no evidence that any other organization or individual was responsible for it.

He also says that NOR has been “bombarding the internet” with statements about public rights on rivers. Yes, we have been notifying a wide variety of river users as best we can about the availability of the free handouts and the book explaining their rights to use rivers. We plan to continue doing so, to the extent that memberships and donations allow us to continue and expand the program. We are also considering “crowd sourcing” and other methods. If you have any other ideas, let us know.

Rich Turner asks about the difference between public rights on the river itself, and public rights to use existing roads to get to rivers at key river access points, such as Lee’s Ferry. The law covers public rights on both, as explained in NOR materials (both the free handouts and the book.)

Rich Phillips and Preston H. ask when NOR will file a lawsuit against the current Grand Canyon closure. The answer is: As soon as the government announces that the closure will last long-term. Without that, the shutdown will have to end within a few days due to its disastrous effects on the national economy, at which point the Grand Canyon closure will end. Consequently, no federal judge would waste time studying a NOR lawsuit to end the Grand Canyon closure now, so we would not waste time asking a judge to do so. We appreciate the work of GCPBA, RRFW and others to obtain refunds of government charges to the groups currently denied launching rights, and rescheduling of launch dates. We aren’t involved in that because those organizations are better positioned to handle it, and we are better positioned to publish materials about public rights on rivers.

To those of you who are watching this debate from afar, here’s the bottom line: NOR materials assert public rights on rivers based on long-established federal law, and so far the nay-sayers have come up with no law to the contrary. We invite them to keep trying--we are always open to further discussion. Meanwhile we will continue broadcasting NOR materials as best we can. As the first Congress of the United States said, the rivers shall be “forever free.”

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Old 10-10-2013   #2
 
cedar city, Utah
Join Date: Mar 2008
Posts: 2,261
Quote:
Originally Posted by eric.leaper View Post
A mountainbuzz member named Phillip, restrac2000, cites a section of the Code of Federal Regulations and claims that it is “inconsistent with NOR statements,” but in fact it supports NOR statements: Federal agencies can indeed close park lands for provable public safety or environmental reasons. The current closure of the road to Lee’s Ferry (in effect preventing public use of the river itself) does not fall within that category.
The CFR is this for those who are following along and want original sources and not just opinions. You may want to follow the other links in that site, especially those labeled Authorities/US Code as those are the ones founded by Congress:

36 CFR 1.5 - Closures and public use limits. | Title 36 - Parks, Forests, and Public Property | Code of Federal Regulations | LII / Legal Information Institute

Leeper's summary above is incomplete, either by accident or choice. Here is the complete list of why a park can close or limit public use:

Quote:
Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities
As you will notice, the authority is much broader in justification than Leeper designates. Especially relevant to a government shutdown is the "implementation of management responsibilities", which fall under the auspices of the Ant-Defeciency Act, previously outlined. Under it agencies are "generally prohibits agencies from continued operation in the absence of appropriations" except in the face of "emergencies involving the safety of human life or the protection of property." Since maintaining access through gated NPS land does not qualify for those exceptions it would seem that the NPS is required under the aforementioned CFR's justification of "management responsibilities" to close the resource. If we need to get further into NPS mandates I can but its been a while. If tend to trust the NPS authorities on this one over Leaper as they have been continuously challenged in court with little or no success.

http://www.washingtonpost.com/wp-srv...ts/RL34680.pdf

Thanks for responding with greater detail, NOR. I am more than willing to follow the bread crumbs to prove me wrong but you have provided NONE. I have your pamphlets at found no details that when researched supported your broad claims. I read the legal summaries for several and understood them to be contextual not broad in conclusion. That said, I am not a lawyer. If you have cases names and #s that you can cite to show how your ideas have been applied I will spend time researching them and retract my critiques. But the burden of proof is on you to show them...and not just expect me to buy a $35 you produced.

Phillip
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Old 10-10-2013   #3
 
cedar city, Utah
Join Date: Mar 2008
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Quote:
Originally Posted by eric.leaper View Post
He also says “no individual or organization has vetted” NOR materials. In fact, since the late 1990s, a number of lawyers have examined NOR materials and come up with no substantial rebuttals, i.e., no law to the contrary. Specifically, Colorado lawyer John Hill (a very experienced lawyer who worked for federal agencies for decades before switching to private practice involving attempts to oppose public rights on rivers) has tried to rebut NOR materials for about 12 years now, and has come up with no substantial rebuttal. Also, within the past few years we repeatedly distributed NOR materials throughout the Colorado state government, including the state attorney general’s office. Now, as far as we can tell, the state government is no longer telling the public that people can only run rivers “without touching” the bed and banks, as they did previously. (If you find any place where they are still saying that, let us know.) At this point we can’t prove that NOR materials were the sole reason for the policy change, but we find no evidence that any other organization or individual was responsible for it.
Can you provide me links to any statements about your book or resources, specifically from authorities on the subject of river law? I could find nothing convincing on your own website.

I found no critical reviews of your text anywhere on the internet. I have never read a book that did not have reviewers before it hit the market. Somebody out there should have read the text from a peer review standpoint and given the public a summary of their findings. That is common enough practice. Why is that lacking and/or can you provide a publicly available resource to judge your material?

Can you provide legal cases in which your material was successfully used to justify access or deny federal closure. Not being able to rebut your material is one thing but successful application of theory is another. Putting the cart before the horse otherwise.

At least you are honest in the last statement regarding the uncertainty of your claim.

Phillip
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Old 10-10-2013   #4
 
cedar city, Utah
Join Date: Mar 2008
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Quote:
Originally Posted by eric.leaper View Post
He also says that NOR has been “bombarding the internet” with statements about public rights on rivers. Yes, we have been notifying a wide variety of river users as best we can about the availability of the free handouts and the book explaining their rights to use rivers. We plan to continue doing so, to the extent that memberships and donations allow us to continue and expand the program. We are also considering “crowd sourcing” and other methods. If you have any other ideas, let us know.
Specifically I challenged your tendency of link baiting during what is easily a difficult time for the community. This is exponentially worse from an organization that did not take the time before these current issues to present themselves to the community. The combination comes across as self-serving from my experience with both traditional and non-profit agencies. It is difficult to vest you and your organization with much authority on the topic considering those choices.

It took me an hour of my own time to research you and your organization. There is a noticeable lack of information about you on the internet beyond your own quotes. After 30 years of fighting for these issues I would have expected something more concrete. When I compare this to the other organizations I have been a member or socially participated with the concern of authority becomes justified. This is even greater considering the claims you make which fly in the face of traditional wisdom and knowledge regarding these management issues.

My only other recommendation is to provide access to others to vet your information. We all have various authorities within the community we trust. Take the time to get to know them and break the ice with the community. Give them all of your materials free of charge and if it is quality research and findings your investment will be returned exponentially.

Until then, you cannot expect people like me, with "healthy" dose of skepticism, to just trust your own statement of authority and validity of claims. You cannot expect many of us to just jump on board and buy your book without more evidence.

Phillip
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Old 10-10-2013   #5
 
cedar city, Utah
Join Date: Mar 2008
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For anybody playing along, I am just a boater with a relatively minimal education is management and nothing formal in law. My research is minimally from academic time and largely from passion and avocational interest. Hence why I provide sources for some of my ideas as I fully recognize I carry no professional authority.
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Old 10-10-2013   #6
 
cedar city, Utah
Join Date: Mar 2008
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Per your statement:

Quote:
the laws cited in NOR materials are U.S. Supreme Court decisions and acts of Congress. You can’t get any higher than that.
I recognize that idea. But the devil is in the details and how we interpret those decisions has limitations. So...

One particular curiosity has remained from your original citations, that regarding Montana v. United States, 450 U.S. 544 (1981). I spent some time looking into that case and could not find anytime it was used as precedent outside the specific legal authority of tribal lands. Could you provide cases in which it was used to justify broader denial of authority to agencies regarding river access? In articles you have been summarized as calling this case the "last word on river access rights" and hinted as much here.

I fully recognize you likely have larger resources and literacy than myself (as many publications are not available to the public). Any cookie crumbs or full bites?

Phillip
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Old 10-10-2013   #7
 
Antarctica, Alabama
Paddling Since: 1981
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Get real

Not having read the book or the cases cited therein, as a lawyer, I would think the analysis plays out like this:

First ---Congress' authority to legislate is limited only by the Constitution, not by the acts of previous sessions of Congress. Can you point to a constitutional provision that would be violated by a river closure, as opposed to a statute from hundreds of years ago?

Second -- Under the Commerce Clause, if not the broad power to legislate for the general welfare, Congress clearly has the authority to authorize acts that limit or restrict navigation, for example by authorizing the construction of locks and dams, and rerouting navigable streams. "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States . . . . For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." United States v. Rands, 389 U.S. 121 (1967). While dams suck, do you seriously contend that Congress lacks the authority to authorize one, even though it clearly interferes with my right to navigate?

So to me, the only remaining question is whether Congress has authorized federal land managers to impose closures on rivers that flow through federal land. It seems pretty clear that Congress did so at least as to the broad grant of authority to the Department of Interior to manage national parks. And if Congress granted the agencies that power, every previous law and case becomes meaningless, unless the case recognizes some constitutional right to paddle.

Mind you, this is a different question than the right of a state, local government or private landowner to try to block or obstruct a navigable waterway.
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Old 10-10-2013   #8
 
Jackson, Wyoming
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Quote:
Originally Posted by klickitat View Post
And if Congress granted the agencies that power, every previous law and case becomes meaningless, unless the case recognizes some constitutional right to paddle.
Maybe we can get bipartisan agreement on a 28th amendment. Its at least as likely as getting them to agree on anything else.
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Old 10-10-2013   #9
 
Colorado Springs, Colorado
Paddling Since: 1968
Join Date: Oct 2013
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NOR replies to the views above

To clarify, NOR materials do not conflict with the Code of Federal Regulations, and although we circulated a brief “open letter” about the unlawfulness of the current Grand Canyon closure, our interest is in public rights to navigate through the Grand Canyon and other rivers during normal conditions, not during this temporary shutdown. NOR materials are showing thousands of people that during normal conditions, federal agencies cannot close rivers (or key access roads to rivers) to noncommercial navigation, and cannot limit noncommercial navigation to arbitrary low levels. That’s the important thing for most river users (although we realize that it does not solve the plight of the people currently waiting near Lee’s Ferry.)

Regarding reviews by “authorities on the subject of river law,” we are inviting all readers, lawyers, government officials, and interested parties to cite any federal statutes or higher court decisions that conflict with NOR materials. If they find anything, we will update the book and the handouts accordingly.

Regarding legal cases in which NOR materials were successfully used to defend public rights, part of the point of NOR materials is that federal law already confirms public rights on rivers, so any remaining disputes should be resolved through meetings among the parties involved, and by public education, not by further court cases. Earlier versions of NOR materials were used in this manner to keep the Taylor River and other small, whitewater rivers in Colorado open to public navigation, and they have influenced similar disputes on other rivers around the country. They will doubtless be used in similar ways on other rivers around the country in the future.

Regarding dams, of course Congress has authority to authorize them, despite their interference with navigation.

Regarding “the broad grant of authority” from Congress to the Department of the Interior to manage national parks, it does allow closures during unusual circumstances involving public safety and so forth (as discussed earlier) but it does not allow arbitrary closures, or limits to arbitrary low levels of navigation, during normal conditions. Rivers are permanently "held in trust" for public navigation, all across the nation, especially in national parks.
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Old 10-10-2013   #10
 
cedar city, Utah
Join Date: Mar 2008
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Quote:
Originally Posted by eric.leaper View Post
To clarify, NOR materials do not conflict with the Code of Federal Regulations, and although we circulated a brief “open letter” about the unlawfulness of the current Grand Canyon closure, our interest is in public rights to navigate through the Grand Canyon and other rivers during normal conditions, not during this temporary shutdown. NOR materials are showing thousands of people that during normal conditions, federal agencies cannot close rivers (or key access roads to rivers) to noncommercial navigation, and cannot limit noncommercial navigation to arbitrary low levels. That’s the important thing for most river users (although we realize that it does not solve the plight of the people currently waiting near Lee’s Ferry.)
.
I am thoroughly confused by your statements then. Is it not the current, temporary shutdown which you claim is unlawful? Are you not claiming to have law and precedent to support that claim of illegal action? If so, how do they not conflict with CFR, and the US Code they originate from, that allows and mandates these agencies to close during spending gaps? How on one hand can the NOR materials be consistent with the CFR but also show that the CFR is unlawful? Am I the only one that believes the above statements are mutually exclusive? What am I missing here? Am I interpreting his statements wrong?

And I am not recommending you update your book if/when it individuals find flaws. I am recommending you provide the public with access to peer reviews of your work for us to be able to assess its merit.

If it is about non-spending gap related closures than I am left scratching my head even more as I am not aware of the NPS "closing rivers (or key access roads to rivers)" in the recent future. I am not aware our "river rights we denied" at any point here. Regulated for the reasons you have stated as legal, yes. Access denied, no. Where am I wrong on this????

More confused than before.

Phillip
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