NOR replies to the above:
The National Organization for Rivers (NOR) is telling river users to avoid getting arrested, but to dialog with sheriffs and landowners about public rights under existing federal law. We’re saying that it could take time, and more than one meeting (or interaction by mail or e-mail.) NOR operates at a loss to provide free information about public rights on rivers, and is applying for renewed tax and legal status, originally obtained in 1979. People can, and have, successfully used print-outs from nationalrivers.org in river rights disputes, without paying NOR anything, which is okay.
Marko says that the federal test of navigability “does not apply to a huge majority of the steeper creeks in this country,” and he mentions the American Whitewater website, which likewise says that “most whitewater streams” do not meet the federal test of navigability. This echoes what lawyers for riverfront landowners have widely proclaimed, but federal law says that rivers and creeks with “numerous rapids, waterfalls, and boulders” are navigable, because they were usable in the past to transport logs, shingle bolts (4-foot sections of logs) and railroad ties, and because they are usable today for commercial kayak classes. (See footnote 1 of the free handout, Public Rights on Rivers in Colorado, at
National Organization for Rivers, and Chapter Three of
Public Rights on Rivers, “Which rivers are navigable for which purposes.”)
The federal tests of navigability involve whether the river or creek
could have been used for transport in the past, not whether it was
actually used. Whether a particular river or creek could have been used for transport in the past can only be verified by people with river expertise, not by lawyers who don’t have such expertise. You can increase your expertise in this area by seeing historical accounts and old photos of the transport on rivers and creeks of logs, shingle bolts, and railroad ties, on the top floor of the Denver Public Library, and in local libraries in western Colorado and other states, (as well as in
Public Rights on Rivers,) and by kayaking the rivers and creeks that were used for such transport. You will find that rivers and creeks that you would want to kayak were indeed usable for such transport. Then you will be more prepared to counteract the people who claim that rivers and creeks usable for kayaking are not navigable under federal law.
Marko says that the California state test of navigability “goes much further than the right protected under federal law.” Again, this echoes what lawyers for riverfront landowners typically claim, but the rivers and creeks that you would want to kayak are already navigable under federal law. It’s nice that California state law reconfirms that, but it also applies in other states, including Colorado, without state by state confirmation.
Marko then says that “using the legislative and judicial branch to secure the right to float on creeks that do not meet the federal navigability test is absolutely necessary.” When you think about it, it’s only necessary if there are creeks that are good for kayaking, yet do not meet the federal test, and it turns out that the creeks that are good for kayaking meet the test already.
Marko also says that wealthy people are using “field testing” to “create the laws they want” through litigation and legislation, and that we as boaters should use that same strategy to expand our rights to float. The difference is that we already have the right to kayak on the rivers and creeks of the nation that are usable in the ways discussed above, so it doesn’t make sense to try to create new law. Instead it makes sense to educate river users and government agencies about existing law.
Marko asks what if one day, in the future, wealthy landowners successfully use legislation and litigation to deny public rights on rivers. In order to change the federal test of navigability, they would have to convince five out of nine U.S. Supreme Court justices to reverse centuries of existing law on the subject. That’s possible, but unlikely, and the best way to help prevent it from happening is by spreading the word that existing federal law confirms public rights on rivers usable for kayaking, rather than by proclaiming the false notion that it does not (as Marko, and other people, are presently doing.)
Andy H. says that we are “all trying to arm ourselves to protect our rights,” and NOR resources are “blank ammo” that could cause a resounding defeat. People have already successfully used, and are using, NOR resources in public rights battles, and will continue to do so. The U.S. Supreme Court decisions cited in NOR resources are true, and there’s no reason to think that continuing to use them will result in a resounding defeat. Instead, it’s likely that continuing to use them will result in cumulative victories, which in turn will break down resistance to public rights in the remaining places. In many places, government support for the notion that river use is trespassing is a mile wide but an inch deep. Once river users document federal law in favor of public rights, many people in government are willing to set aside notions that river use is trespassing. Consequently, it turns out that river users who claim that federal law does not presently confirm public rights on rivers are using the “wrong ammo,” in counterproductive ways.
2kanzam asks if the fences and no trespassing signs on the North Fork of the South Platte (in the mountains southwest of Denver) are there only because they have not been challenged. When river advocates take time to show those landowners that they are subject to criminal prosecution and civil liability for their fences, the fences will probably come down (or break during severe weather and not be replaced.) Regarding the Jackson River in Virginia, the fishermen there have not claimed their rights to fish under existing federal law, so the courts have not confirmed them.
Those of you who would rather kayak (or raft, fish, or canoe,) rather than further debating about your rights with other river users who mistakenly claim that river use is trespassing, can deliver the present NOR handouts, which are available at no cost, to your local sheriff, landowners, government agencies, and legislators, and post the present NOR posters at your local supermarket (and e-mail them to river users and government agencies. See
National Organization for Rivers.) Now is a good time to distribute them, so people can consider them without the urgency of current river use, and it would be good to distribute them again in the spring, as actual river use resumes.
In other words, you can help win this thing, despite the denials of your rights coming from lawyers for riverfront landowners, as well as from a number of river users such as those quoted above.
