DON T FLOAT YOUR BOAT HERE

Transcription

1 DON T FLOAT YOUR BOAT HERE RIVER ACCESS ISSUES 2016 Lori Potter

2 River map RAPIDS New Mexico Law Utah Litigation Wyoming Data Trespass Law Montana Cases EDDIES Virginia Determination Alaska Case Source: Steve Stuebner, Paddling the Payette 2

3 Source: Jessica Fender, Hatch Magazine New Mexico Law Pecos River 3

4 New Mexico Law Use of Public Water and Landowner Protection Act, 2015 Blowback from 2014 NM Attorney General Opinion finding right of access to fish, including walking and wading. AGO relied on 1946 NM Supreme Court decision and law from other Western states. 4

5 New Mexico Law What it means: Boaters and anglers may not enter private land by walking or wading through non-navigable waters, or access public water through private land, without written permission. Unresolved issues Incidental touching while floating through; unwritten permission 5

6 6 Source: New Mexico Wildlife Federation

7 Source: Ravel Call, Deseret News Utah Litigation Weber River, Nov. 5, 2015: Utah District Court strikes down the state s stream access law as unconstitutional. 7

8 Utah Background 2008: Utah Supreme Court recognizes public river easement - Conatser v. Johnson Allowed public to touch privately-owned beds of public waters in ways incidental and necessary to use. 2010: Legislature enacts Public Waters Access Act overturning Conatser Utah Stream Access Coalition (USAC) sued. 8

9 USAC v. VR Acquisitions Wasatch Cty. Dist. Ct., Nov. 3, 2015 Provo River Case: Utah Public Waters Access Act unconstitutional. Act violated Utah s public trust doctrine Utah Supreme Court: time out! Feb. 24,

10 Source: Francisco Kjolseth, The Salt Lake Tribune Victory Ranch Stretch of the Provo River 10

11 USAC v. Park Summit Cty. Dist. Ct., April 10, 2015 Weber River Case: proved a one-mile stretch navigable-in-fact Case tested Daniel Ball theory that looks to historical uses and conditions USAC intends to pursue this legal theory for remainder of the Weber River Landowner appealed to Utah Sup. Ct. 11

12 Wyoming Data Trespass Law 12

13 Wyoming Data Trespass Law Enacted March 2015; amended February 2016 Criminalizes crossing of private land for purposes of collecting data, even on public rights of way. Creates a civil trespass action for same acts. Bars the use by state agencies of any data collected in such a manner. Intent is to block citizen data gathering. 13

14 Challenges / Amendment Non-profits and media organizations sued, arguing law is unconstitutional Statute may bar photography and apply on public land accessed legally Serious questions and concerns about the law s constitutionality Legislature amended statute

15 Source: Truthvoice.com Wyoming s Data Trespass law may apply to river professionals in unexpected ways. 15

16 Montana Road Cases Montana Supreme Court: public may use road rights-of-way to access public water. Public Lands Access v. Board of County Comm rs, 321 P.3d 38 (Mont. 2014), but: Two immediate access cases: Seyler Lane bridge maintenance easement over the Ruby River, and Closure of road accessing Tenderfoot Creek, a Smith River tributary, claiming no historic public access. 16

17 Source: Public Land/Water Access Association Seyler Lane Bridge over Ruby River. Public Land/Water Access Association seeks 60 ROW for maintenance; landowner wants less. The decision could determine feasibility of river access at the site. 17

18 Virginia Navigability March 17, 2015: Virginia Marine Resources Commission determines 14 popular recreation stream segments in British crown land grants navigable for title. Streams draining more than 5 square miles, or with mean annual flow > 5 cfs, are presumed navigable-in-fact until contrary evidence is presented. 18

19 Source: Roanoke Times American Whitewater volunteers rehabilitate private land access site on John s Creek, VA, one of 14 segments deemed navigable and open to public access to the low water line. Paddlers are still advised not to exit their boats, portage, run safety, or fish. 19

20 Source: The Washington Post U.S. Supreme Court Case 20

21 Source: E&E Publishing John Sturgeon using his jetboat to remove broken-down hovercraft from Yukon-Charley National Preserve 21

22 Questions? Lori Potter