River users should know their rights

Hi,

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?"

And...

"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.

FWIW.

Rich Phillips

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 That case has persuasive value in other Federal Courts, but it is not binding precedent that any other courts have to follow.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.

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.

Hi,

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.

FWIW.

Rich Phillips

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.

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.

Even if NOR decided to foot the bill for a test case, one thing to consider is that if the case fails because the architects tried to use a half-baked legal argument, that failure can actually set back the general cause of improving access when the judge nails down the decision so it will be more likely to survive any appeal. I'm not sure but I think Emmert may have worked like this. I've also heard a recent lawsuit challenging the Grand Canyon Management Plan was rebuffed so badly in court and on subsequent appeal that the decision may actually diminish the ability of citizens groups to challenge government agency management decisions in the future.

The analogy I've used before is that it's like NOR wants to marshal the private boating community to charge straight at our adversaries with weapons he's supplying. NOR is offering us sticks and rocks, and telling us our adversary has nerf balls and rubber dart guns. But in actuality, the adversary has 50-caliber machine guns and Howitzers. Would you follow NOR in that charge?

Furthermore, the misinformation NOR is spreading undermines efforts of legitimate river access organizations like AW. Uninformed boaters are lulled into complacently thinking it will be easy to overturn riparian access and trespass laws by simply using the tactics and precedents NOR advocates. At best those uninformed boaters may think we don't need AW or other groups to work for access, at worst uninformed boaters may conclude the inability of legitimate river access organizations to easily win a riparian access panacea means an organization has "sold out private boaters to the outfitters and landowners."

I agree with NOR's goals and their arguments sound great at first blush. What boater or fisherman wouldn't want what they're offering? Yes, Colorado and lots of Western states have screwed up riparian access laws, and we WANT to believe someone can lead us to a promised land easily. We want to believe we can just use these precedents, talk to the Sheriff, that navigable in fact is navigable in law in Colorado, and the other stuff. Unfortunately, merely wanting to believe something doesn't mean it can happen the way NOR is telling us.

A year ago you told us that a review copy had been sent to lawyers in post #8 here. We've been looking forward to hearing the review by people that actually practice law.

If boaters want to improve river access, support AW, they've been gaining river access for boaters for over a half century. If the tactics NOR advocates worked, AW would take NOR's playbook to court, mine it for the precedents Eric cites, and we'd all be better off. And AW, CW, and other river use advocacy groups have had attorneys who specialize in riparian access working on these issues for a long time - if it was so easy and clear cut, we wouldn't have trespass arrests on the Lower Blue. This whole thing is a diversion from the real issues, which are much more complex than NOR makes out.

-AH

Perhaps the best way to understand the situation is to look at American Whitewater's "Georgia Navigability Report" (American Whitewater - access:ga) There you will find Georgia state law cited, with the conclusion that "public access to waterways for the purposes of fishing, hunting, and boating is a complex issue" because there is "no clear-cut standard for navigability in Georgia." (Note how Andy H. echoes this "complex" claim.)

What you won't find is any mention of the federal court decision in Atlanta School of Kayaking v. Douglasville County, 981 F.Supp 1469 (N.D.Ga.1997), although you can find it elsewhere on the Internet by googling it. That decision confirmed that public rights on shallow rivers and creeks in Georgia "are determined by federal law," not state law.

You also won't find any mention of U.S. Supreme Court decisions confirming that shallow rivers, with portages, that are physically navigable, in canoes and similar craft, are legally navigable for Commerce Clause purposes under federal law, in any state, including Georgia--and Colorado.

So AW has something in common with the landowners and lawyers in Georgia (and Colorado) who oppose public rights on rivers. They both claim that these rights are determined by state law, and in both cases their claims conflict with federal law.

If that's the claim that you want to support, go ahead, but in our view, no river user should be supporting such claims. We hope AW will update its website soon.

Eric Leaper

Unfortunately, this is a case were everyone is right, and where we the people have lost many of our constitutional rights to an ever complex legal system. There are so,so many confusing issues all over the place that it,s no wonder that many law enforcement agencies simply don't know what to do anymore. But in this case I would humbly suggest that we all work together on solutions instead of division. So Eric and NOR, I would simply suggest that all your lawyers get together with all the lawyers at AW and work on a concrete plan as to how to win this battle for the boaters. The biggest problem is going to figure out how to combine federal and state law to get to the desireable outcome. This boating community is going to need a bigtime politician and some bigtime money to win this battle. Maybe, then just maybe we can get some water back in the Dolores River Canyon. Until then, I agree that we just not make foolish choices!!!

NationalRivers said:

..........not 501(c)(3). There’s nothing wrong with that.

Click to expand...

BULLSHIT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! And YOU are FUNDRAISING!!!!!!!!!!!!



Not once have you ever made mention here that your donations are NOT tax deductible when you were claiming to be a legit, long standing NPO. Just leaving that little turd for the donor and IRS to sort out, eh? And you will happily let someone leave you their estate in their will too, huh?

Any dumbass sending this lying,delusional piece of shit $$$ ....well, a fool and his money are soon parted. No truer saying here.

The asswipe can't even take care of the most basic business let alone accomplish anything that's going to help river users. 40+ years of nothing.

Send your money to AW.

Go fuck yourself, Eric.

This again, huh?

The internet is an awesome tool for discovery. NOR was not just claiming "non-profit" status but 501(c)(3) status through 2013 when they knew that was a defunct claim. Here is the link, from their 2013 rebranded website:

https://web.archive.org/web/20131021041357/http://www.nationalrivers.org/donate-to-nor.html

For those that don't know of it, this is a link from October of 2013 when NOR began posting here on the Buzz. The Wayback Machine is a great tool for catching people in dishonest claims. For someone interested in law it should be obvious that inaccurately claiming a legal status that is easily verified might not be a strategy for developing trust within a community.

But don't forget....Eric Leaper will also provide a free initial consultation to become your paid expert witness, beg for money when he has no rapport in the community and spam your forum so you will visit his site and buy his book. He will also solicit people in his organization to post as random users here to rally support for his ideas (aka sock puppets). And my personal favorite, he will piggyback issues like segregation and Nelson Mandela Day to push his agenda (from their FB site " ‪#‎NelsonMandelaDay‬ ‪#‎ForeverFree‬ ‪#‎RiverAccess‬). You can't say they don't have their fingers on hot button issues.

Buyer Beware....especially for books that have been around for a year and still show no sign of being vetted by reputable third parties not seeking fundraising money.

Phillip

Regarding NOR claiming 501(c)(3) status in 2013, that paragraph was copied from the old website, along with many other paragraphs, by the website developers. Once we discovered that it was no longer true, we deleted it. There are many nonprofit organizations that are not 501(c)(3), including lobbying organizations, chambers of commerce, etc. If anyone has a tax problem because of it, we’ll make it right.

Regarding supporting AW, of course it’s fine to support AW generally, but their web pages saying that public rights on navigable rivers are determined by state law are incorrect, and need to be fixed (contrary to Andy’s assertion that they are correct as is). Of course, AW is not alone in this—the websites of other river organizations make similar misstatements.

Regarding working together on solutions, that is the purpose of Public Rights on Rivers in Every State and through Federal Lands—to get lawyers, river organization leaders, and river users to read the Supreme Court decisions and discuss their meaning, and work together to restore public rights under federal law, rather than simply believing what they have heard from lawyers who claim that public rights are a matter of state by state discretion. Unfortunately, there is no way to do that without pointing out that the usual claims (about state by state discretion) are wrong.

Regarding PPL Montana v. Montana (2012), that was a Supreme Court decision confirming that states cannot belatedly charge retroactive rent for hydroelectric dams that they approved many decades ago, on the theory that states own riverbeds. The decision was not relevant to public rights to navigate on rivers, which apply “regardless of who owns the riverbed,” as the U.S. Supreme Court has confirmed. If public rights to navigate were based solely on the public trust doctrine, then Marko would be correct that they are determined by state law. However, they are based on the Commerce Clause and the Supremacy Clause of the Constitution (and the relevant Supreme Court decisions) so they are determined by federal law, not state law, as federal court decisions have confirmed.

Regarding being interested in Marko’s claims, we are actually quite interested in hearing what he has to say. If anyone can make the case that navigation rights are up to state governments, it’s Marko and the constitutional law scholar he works with. Marko, if you are claiming that the federal court decision in Atlanta School of Kayaking is no longer good law, please explain why. If you are claiming that states can block navigation on some rivers but not others, please explain the dividing line between the two. If you are claiming that Supreme Court decisions about labor relations, or the length of trains, mean that states can deny navigation rights on navigable rivers, please explain how. In other words, please explain how decisions on other subjects, unrelated to rivers, overturn the landmark U.S. Supreme Court decisions about public rights on navigable rivers, such as Gibbons v. Ogden, Martin v. Waddell, The Daniel Ball, The Montello, Economy Light and Power, United States v. Appalachian Electric, and Montana v. United States. Of course we agree that it would be helpful for the Colorado legislature to reconfirm public rights, and for the Georgia legislature to do likewise, but if you are claiming that public rights on navigable rivers under federal law are “unresolved,” explain how they went from being commonplace and well confirmed by federal law since the 1700s, then somehow became “unresolved” in recent years. What federal court decision (or Act of Congress) are you citing to support your claim that these rights are now “unresolved” under federal law?

If other readers can cite a relevant federal court decision, or a law journal article or other source, we would be interested in seeing that too. What we have found over the years is that the lawyers who claim that public rights on navigable rivers are up to state governments are simply hoping that their audiences are unaware of federal law on the subject (as most audiences are). Once you point out to them that federal law confirms public rights even on steep creeks with portages, they can no longer defend their claim of state by state discretion. Even so, we are always open to review such claims yet again, so if you have anything along those lines, just post it.

Hi,

The solution to this is so simple -- it defies explanation as to why such a dedicated person as Eric Leaper hasn't used it.

Eric, personally apply for a GC permit, and tell us that in real time. If you're denied, go to your Member of Congress and seek help there to get a permit issued. Again, update us at every stage of that maneuver. If you are granted a permit through that method, you may have shown a possible avenue for others to get permits. (Or, you may not prevail, and stimulate unforeseen adverse consequences.)

However, let's suppose you are unable to get a permit in the way you so confidently urge others to use. Then Plan B is available, and simple for you to deploy. Using the legal theories you equally confidently proclaim here and elsewhere, initiate litigation. Tell us about that as well, and keep us updated as it proceeds to a conclusion. (And in doing all this, beware of the possibility of achieving a court decision that strengthens -- not diminishes -- agency discretion in managing rivers.)

In other words, put up or shut up. With the exception of us awaiting the (long-pending) book review by independent legal experts, the rest of this is just a re-hash of a re-hash from past Buzz discussions.

(Eric, for the life of me, I don't understand how you think you help your reputation and your organization by coming here and being hammered -- never seeming able to reply in a manner useful for achieving your goals. There have been many expressions of potential support if you were to clean this all up, including from me. Why keep offering yourself and NOR up to what is essentially a very public humiliation?)

FWIW.

Rich Phillips