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How to use NOR materials in actual river disputes

How to use NOR materials in actual river disputes

People have asked for more specifics about how to use NOR handouts, posters, and the book in actual practice, particularly in states that have law “on the books” restricting public rights on rivers. NOR will be publishing a more detailed guide about this in the coming months, but meanwhile here is a brief example. This example involves the state of Colorado, but the same principles apply in Illinois, Georgia, and other states.

Rivers in all states that were usable in the past for fur trade canoes or log drives, and are usable today for commercial raft trips or kayak or canoe classes, are navigable for Commerce Clause purposes under federal law. No further court confirmation is needed. In Colorado, the belief that a new federal or state court decision would be needed, to overturn the Colorado Supreme Court decision in the case of People v. Emmert, is widely promoted by lawyers for riverfront landowners, and is believed by many river users, but is mistaken. Where state court decisions conflict with current federal law, federal judges don’t need to overturn them state by state. For example, “Jim Crow” decisions were “still on the books” in southern states until very recently, but were not followed, even though federal judges did not overturn them state by state. In a similar way, people continue to run rivers in Colorado through private land every summer, even though the Emmert decision is “still on the books” and has not been specifically overturned by a state or federal court.

Here is a generic example, based on real-life experience: Suppose you enjoy kayaking (or fishing) on small rivers in western Colorado, such as the Taylor, Elk, Conejos, Animas, Piedra, and San Juan rivers, which flow through a patchwork of public lands and private ranches. Suppose a Dallas real estate developer buys one of the ranches, and, citing the Emmert decision, he strings “No Trespassing” and “Keep Out” signs on a fence across the river where it enters the ranch, as well as “Keep Off River Banks – Private Property” signs where there is a necessary portage midway through the ranch.

Suppose you meet with him. Using NOR handouts and posters, and the book, you show him that:

1. The river is navigable under federal law, for Commerce Clause purposes, because of its historical and current usability. No official designation is needed, because rivers that are navigable in fact are navigable in law.

2. Public rights on the river are not a “taking,” because the river has been public since time immemorial, and there is virtually no chance of him getting any compensation for public use of the rivers, because there is no known case of a court awarding compensation to landowners for public uses of rivers.

3. It is a federal crime to block the river with cables or fences, so he is subject to criminal prosecution at any time, as well as immense liability if a kayaker gets killed or injured on his fence across the river.

4. The Emmert decision did not deny any of the above, nor could it—state courts don’t have that authority.

At that point, the landowner may realize that it’s more trouble than it’s worth to dispute public rights on the river flowing through his land (even if he doesn’t say so right then—it may take more than one meeting.) Suppose you hold a similar meeting(s) with the local sheriff. Sheriffs have discretion regarding what to enforce. Sheriffs in a number of places around the country, after seeing detailed information about public rights on rivers under federal law, have replied to telephone calls from riverfront landowners by saying something like, “Call me back if the river users start snooping around your barn, but as long as they are on the river, or along the edge of the river, don’t call me.” Suppose this sheriff does the same, sooner or later. (Indeed, it may turn out that this sheriff is already answering landowner calls this way, unbeknown to river users.)

At that point, it doesn’t really matter who all prepared or reviewed NOR materials, and it doesn’t really matter that no court has specifically overturned the Emmert decision. All that matters is that you can get back to doing what you like to do: Kayaking, fishing, canoeing, rafting, and hunting on rivers, including rivers that flow through a patchwork of public and private lands, and including scouting rapids and portaging where necessary. That is the goal of the National Organization for Rivers. 

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