# Does the law support your rights to recreate on rivers?



## richp (Feb 27, 2005)

Hi NationalRivers,

To answer your question... 

Actually, no-one can answer that question from the material presented in that file. It's a table of contents that apparently has a couple mis-labeled page numbers and some aggregated historical info. 

It provides absolutely no clue as to how your organization has assembled and analyzed actual legal information to support your position. And importantly, there's no specific information at all about the cases you rely on to bring you to your conclusions. Didn't you figure out from your last foray here that it was going to take just a bit more than this to effectively communicate your views? 

So I have a question instead.

Have you provided any of the lawyers here -- those who requested it -- with a copy of your work so they can give it a fair and complete review? 

If there's real substance to your work product, you would get support here. But you have to make your case in this arena -- people aren't going to just fall in line mindlessly.

FWIW.

Rich Phillips


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## briandburns (Jan 12, 2010)

NationalRivers said:


> ...We are excited to announce a free sample of the book, _Public Rights on Rivers: Canoeing, kayaking, rafting, fishing, and fowling rights, river conservation and water rights_, is now available for download...
> Team NOR


Thanks NOR for you dedication to this. Many of us in the boating community appreciate the work done by those advocating freer access to waterways. Please keep it up.


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## Learch (Jul 12, 2010)

I am glad to be in Oregon. I rarely have had a land use issue here. People are pretty accepting, and I make it a point to respect land owners here. I used to run lots of weird little rivers and creeks where it was unlikely that the land owners ever saw kayakers. I was always friendly when I saw people and I didn't get mad when a farm dog came after me. As a result, I've never been trespassed, threatened, or even have felt unwelcome. It's sad to read about some of the river access issues discussed on the Buzz. 
I used to be an off-roader, but one of the things that soured me was land use issues. I think it's pretty easy for us as boaters to limit our impact on the land. Off-roaders cause damage, no matter how well you follow Tread Lightly's rules. I know many people put great effort into limiting their impact on the land and repair what gets damaged, but the simple fact is, truck trails cause damage. There are more rivers than there are places to take Jeeps in Oregon.


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## rpludwig (Feb 28, 2011)

briandburns said:


> Thanks NOR for you dedication to this. Many of us in the boating community appreciate the work done by those advocating freer access to waterways. Please keep it up.


X2 

Lets not be pulled down by the troll, *optimism*, it what makes the great things in life possible:grin:


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## BrianK (Feb 3, 2005)

I don't think Rich is trying to be negative, but National Rivers doesn't tell the full story. Take for example Colorado. There is a good summary of the relevant issues here:

American Whitewater - access:co

This is the state of Colorado river access law as I learned it in law school. 

You are right that these old SCOTUS cases state that where a river is navigable for title purposes the area up to the high water mark is owned in trust by the people. The step that your analysis ignores (at least the analysis that I have seen) is that the state courts have concurrent jurisdiction with the federal courts to determine what is navigable for title purposes. In People v. Emmert, which is discussed in the link above, the Colorado Supreme Court held that the Colorado by Glenwood was not navigable for title purposes. This has led most to conclude that no rivers in Colorado could be considered navigable if the largest riverway in the state was not navigable. 

I should mention that I think the Emmert case is wrong. I think, in keeping with your analysis, that the Colorado river is navigable for title purposes under the generally accepted test. And I think that if this issue went to the Colorado or US Supreme Court again you might see a different result. However, Emmert is the law as it currently stands here in Colorado. 

The fact is that the public's right to access and float rivers in Colorado (and a handful of other states) is unclear. This is the reason there was a push to codify the public's rights on rivers in the state legislature a couple years back. 

Your group has clearly done a lot of great work putting this together, and this book is a great resource. I fully support the overall goal to promote full and free access to rivers. But it doesn't help our cause to overstate our legal rights. I think it is more important to have a river community that is knowledgable and fully understands the issues, than to have a community that just blindly asserts rights without fully understanding the nuances involved.


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## richp (Feb 27, 2005)

Hi,

I want to add that you westerners aren't the only ones with this problem.

I live in Illinois, where most boating folks who follow this issue firmly believe that the State has adopted a position on river access that is clearly unlawful. The problem is that there is no boating organization with the financial resources to pursue a case all the way to the Supreme Court, which is what it would take.

I dearly wish that Eric's case was as powerful and persuasive as he claims. It might embolden the Illinois Paddling Council or some other organization to take the state DNR to court.

FWIW.

Rich Phillips


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## eric.leaper (Oct 7, 2013)

*NOR replies to the above:*

People are already using NOR materials to confirm public rights on rivers, in Illinois and elsewhere. Check out the blog about a fishermen in Illinois who used NOR materials successfully in three different situations, involving trespassing claims as well as government regulations, at A fisherman. Note that he is not waiting for the Illinois Paddling Council to take the state DNR to court, which would be foolish and unnecessary. NOR has sent a review copy of the book and other materials to the lawyers who requested it.

If you enjoy kayaking small rivers in western Colorado, you can use the book, handouts, and posters in a similar way, to dialog with landowners and sheriffs about public rights on rivers under current federal law. You don't need to wait for the state legislature to confirm your rights, because rivers that were navigable in the past for log drives, and are navigable today for kayaking, are navigable for Commerce Clause purposes under federal law, so the public has an easement under federal law to navigate, scout, and portage on such rivers, regardless of who owns the bed and banks of the river under state law.

Whether the river is also navigable for title purposes is important if you are taking sand and gravel from the riverbed, or if you find gold nuggets in the riverbed, but does not matter for purposes of the public easement to navigate and walk along the banks.

Under the Supremacy Clause of the U.S. Constitution, state court decisions such as People v. Emmert do not apply to the extent that they conflict with current federal law. Which rivers in Colorado are navigable for Commerce Clause purposes, or title purposes, and public rights to navigate and portage on these rivers, are matters of federal law, not Colorado state law.

BrianK says that American Whitewater provides a "good summary of the relevant issues" on the web page he cites. That page says, "It is unclear what test of navigability applies in Colorado, as no state statutes or regulations define or describe such a standard." The test of navigability for Commerce Clause purposes that applies in Colorado, as in other states, is a matter of federal law, not a matter of state statutes, regulations, or court decisions.

Rich Phillips seems to be saying that "what it would take" to confirm public rights in Illinois (or Colorado) would be "a boating organization with the financial resources to pursue a case all the way to the Supreme Court." This is a common assumption among river users, but is mistaken. The U.S. Supreme Court has already confirmed public rights on rivers, in all states, numerous times. River users can use NOR materials to dialog with landowners and state law enforcement officials now, rather than waiting for new reconfirmation of the same legal principles.

NOR agrees that is is important to have a river community that is knowledgeable and fully understands the issues, rather than blindly asserting rights. It's also important to not have river users and organizations blindly denying public rights on rivers, based on what riverfront landowner lawyers widely proclaim. The book (not just the sample) discusses public rights on rivers in detail.


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## richp (Feb 27, 2005)

Hi Eric,

"NOR has sent a review copy of the book and other materials to the lawyers who requested it."

I'm eagerly looking forward to hearing from them.

But I still need some help understanding why fishermen know about your stuff, but not the Illinois Paddling Council. If your materials are so compelling, why are organizations like the IPC not using them to open rivers like the Vermillion (one of the few rivers here with even a tiny bit of whitewater), which was totally closed to boating for several years over jurisdictional issues after a drowning. 

There was lots of discussion on the Chicago Whitewater list (over a long time) on that closure and the negotiations that finally resulted in it being reopened. Everyone agreed that the river should be open under Federal slaw, that the state law was in conflict, but that litigation would be needed to force DNR to comply. Not once was your material refernced. Any particular reason?

Just asking...

Rich Phillips


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## marko (Feb 25, 2004)

eric.leaper said:


> Under the Supremacy Clause of the U.S. Constitution, state court decisions such as People v. Emmert do not apply to the extent that they conflict with current federal law. Which rivers in Colorado are navigable for Commerce Clause purposes, or title purposes, and public rights to navigate and portage on these rivers, are matters of federal law, not Colorado state law.


All well and true. But the state court decision will be applied in Colorado until somebody decides to challenge the state court holding in a federal court. It's not the job of the federal judiciary to seek out state laws that conflict with the U.S. Constitution; it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in Emmert.


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## richp (Feb 27, 2005)

marko said:


> All well and true. But the state court decision will be applied in Colorado until somebody decides to challenge the state court holding in a federal court. It's not the job of the federal judiciary to seek out state laws that conflict with the U.S. Constitution; it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in Emmert.


Hi Marko,

You've essentially summarized our situation here in Illinois. The combination of agency inertia, entrenched interests, and our present legal environment produces a situation where no-one is going to fold on these access issues just because you wave a book in front of them. Would that it were that easy...

FWIW.

Rich Phillips


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## BrianK (Feb 3, 2005)

I don't want to keep arguing the point because we are very close. Like I said, I interpret these cases the same way you do. I think the SCOTUS cases justify the public's right to access these rivers. 

Practically, it doesn't necessarily work like that. Take the Emmert case. (I read the case a few years ago so some of these facts might not be exact.) If I remember right there were two guys cited for criminal trespass on the Colorado river. One just paid the fine, but Emmert challenged the case the whole way. 

He was found Guilty at trial, his Guilty verdict was upheld in the Colorado court of appeals, then the his Guilty Verdict was upheld by the Colorado Supreme Court. (I don't know if he applied for cert with SCOTUS) Fact of the matter is he went through the legal process and these courts decided he did not have the right to float through private land. Our appointed judges reviewed the law, and found that rafters who floated through private land and touched the river bed were guilty of trespass. 

Criminal law is state law, and if this situation came up again you would have to deal with Colorado Courts interpreting Colorado Law. And, as it stands now, right or wrong, Emmert is the law in Colorado. Part of the beauty of this country is that erroneous decisions like Emmert can be overturned. But until someone actually litigates the issue we just don't know.


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## eric.leaper (Oct 7, 2013)

*National Organization for Rivers (NOR) replies to the above:*

Regarding what the Illinois Paddling Council uses in its river access efforts, the book _Public Rights on Rivers_ is new, so now that it is available, NOR invites organizations such as the Illinois Paddling Council to use it to re-open rivers like the Vermillion more quickly.

Regarding the _Emmert_ case, David Emmert mistakenly claimed that the Colorado River (between Parshall and Kremmling) is not navigable for any purpose, yet he claimed the right to fish on it, based solely on a passage in the Colorado state constitution saying that “the water of every natural stream” is “the property of the public.” The court ruled solely on that specific claim (as courts usually do,) holding that this passage in the state constitution, by itself, does not confirm public fishing rights. (The court did not review federal law, as BrianK seems to assume.) The decision did not deny public navigation and fishing rights on any rivers in Colorado that are navigable under federal law, nor could it, because state courts do not have that authority. (Emmert did not appeal to federal courts.) You can read more about this on the free NOR handout and posters, “Public Rights on Rivers in Colorado.”

That stretch of the Colorado River, and the other rivers in Colorado 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. The beliefs voiced by BrianK that “it requires litigation for the federal judiciary to overturn the Colorado Supreme Court holding in _Emmert,_” and “until someone actually litigates the issue we just don't know,” are widely promoted by lawyers for riverfront landowners, and are believed by many river users, but are 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 quite recently, but were not followed, even though federal judges did not overturn them state by state. In a similar way, people are running 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.

Perhaps a generic example, based on real-life experience, would help. 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 (or fishing) 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.

Merry Christmas.


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## marko (Feb 25, 2004)

eric.leaper said:


> If you enjoy kayaking small rivers in western Colorado, you can use the book, handouts, and posters in a similar way, to dialog with landowners and sheriffs about public rights on rivers under current federal law.


I think that is a great idea, but it might not always work out that way. SO what do you do when a landowner, or sheriff, doesn't care about your neat little NOR handouts and has you arrested for trespass? What do you do when a wealthy landowner uses his clout to test the issue of navigability through litigation on a creek that might not meet the federal test of navigability?



eric.leaper said:


> You don't need to wait for the state legislature to confirm your rights, because rivers that were navigable in the past for log drives, and are navigable today for kayaking, are navigable for Commerce Clause purposes under federal law, so the public has an easement under federal law to navigate, scout, and portage on such rivers, regardless of who owns the bed and banks of the river under state law.


And what about the creeks that do not meet the federal test of navigability and do not have an historic use of log drives, or other forms of commerce? Because if you suggest that fur traders navigated their canoes using Cheeseman Canyon, or log drives were sent down Lime Creek, you are going to get laughed right out of your negotiations. And what do you do when a state enforces the closure of a creek because it has been deemed non-navigable? Do you write a strongly worded letter to the state Attorney General using NOR material and then hope he listens to you?

Unfortunately, the federal definition of navigability does not apply to a huge majority of the steeper creeks in this country. And in order to expand the right to float on these exclusions will require legislative action and litigation. If it were such a cut and dry issue, then why are there still streams and creeks closed to public access all throughout the country? And why do states have differing definitions of navigability and differing requirements under state law? (Laws which are being enforced right now, and are not dormant like old southern Jim Crow laws). It's mainly because the enumerated powers of the Constitution only go so far to protect your right to float on any river you want in this country. 

The US Constitution is about 21 pages long, and the Colorado Constitution is about 800 plus pages long. Why is that? Because the states have the authority to afford its citizens a greater protection of rights. Do you know how that happens? It doesn't happen by "wait[ing] for the state legislature to confirm your rights." It is very rare for a politician to just decide to grant rights to citizens all by themselves; it happens by the people engaging their state legislators to create those rights. And the judicial may help further expand our right to float on all waterways when the laws are tested for constitutionality. For ex: CA's navigability test was decided in _People v. Mack_ and held that "the public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft." CA's test of navigability goes much further than the right protected under federal law, and would be the ideal model for recreational boaters. And it should be something that all states should seek to adopt. But, to make that a reality will require litigation and legislative action. 

Your idea that individual boaters can use your NOR material to negotiate with landowners and sheriffs beyond the legal system, *for rivers that clearly meet the federal navigability test,* is a great idea. I think in many cases you can create great results with this tactic. However, as a political scientist in training, and one who works in the state legislature, I think 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. 

Right now, there are hundreds of individuals and organizations that are using a tactic known as "field testing." They continuously create local ordinances and state statutes that push the limits of constitutionality in the hopes that it will make it to the US Supreme Court. They have multiple cases going at once, and they argue each one in a different way. The Court may strike down one, but uphold another, and bit by bit, they create new laws and policies. You can guess that it is the wealthier individuals who have the time, energy and money to use this tactic. THIS is how things get done in this country. This is how you use the legal and political system to get the rights you want. These people don't waste their time citing old case law and sections of the Constitution in private negotiations; they use the legislative branch to create the laws they want, and then cite case law in the judicial branch to argue why its constitutional. 

So, what if one day this tactic is used to expand the private property rights of wealthy landowners at the expense of our right to float in areas that are not protected under the federal navigability test? It is going to require much more than citing case law in private negotiations to counter them; it is going to require us to counter them in the legislative and judicial branches. 

And, what is to say that We as boaters can't use this exact strategy to expand our rights to float? We can, and should be, using this tactic. This is how the civil rights litigators expanded rights to minorities. This is how the cannabis industry has started to break down old prohibition laws. So, again, the idea of buying your book to help deepen boater's knowledge, and negotiate with landowners on rivers that are easily within the federal navigability test is a great idea. For that, I wish you well on your endeavor to sell copies of your book and help raise awareness about river rights. But for the cases where there is not a clear legal precedent set we will need to do much more to secure our right to float. And that is why I support *American Whitewater*!



BTW - You are kind of straddling the line between raising awareness and private gain... so you might want to consider in the future posting your business enterprise material in the commerical posts section where the other business enterprises post their business related spam.


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## upshitscreek (Oct 21, 2007)

marko said:


> BTW - You are kind of straddling the line between raising awareness and private gain...


he's also straddling the line between legal and illegal since he claims to be a non-profit 501(c)3 ....but isn't. eh, that's actually pretty firmly on the illegal side when you are out fundraising as such.

basically, there is _*zero*_ accountability to where and how any donated funds are used by Eric /NOR unlike a real,legit and legal non-profit.

ZERO.

The other point is if you donate expecting a tax deduction then.... well good luck with that. you,eric and the IRS can sort that gem out.


NOR...it doesn't exist........


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## Andy H. (Oct 13, 2003)

All this stuff that Eric's talking about really riles me and I figured out why.

It's as if we're all trying to arm ourselves to protect our rights and Eric's walking around telling everyone he's got the magic bullets that'll win the battle. But really all he's got is blank ammunition that to a lot of enthusiastic laypeople who badly want it to be real, the blank ammunition looks and feels like the real thing and seems like it would make the victory easy to achieve. 

But it's still just blank ammunition and won't help to win any real battles at all. Also, the defeat we could suffer from trying to use Eric's blank ammo in a real battle could be so resounding as to make future battles all that much harder to win.

And in the meantime, it's just diverting us from real truths about what the law really says and how to go about making progress.

-AH


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## 2kanzam (Aug 1, 2012)

The Jackson River in Va would like a word....as it seems the crown's grants section of the write up directly conflicts recent litigation successfully convicting boaters/fishermen of trespassing on the riverbed.

I spend alot of time in rural WV fishing small mountain streams for trout and let me tell you that a good ole boy that wants you "outta his stream" will a) not give a hoot about any paperwork I present and b) always be carrying a shotgun.

Putting eric's "generic example" to test with a real world issue that I saw myself in Colorado...where I saw a fence accross and no trespassing signs on the bank of the North Fork of the So. Platte. Are you saying that it is only so becasue it has not been challenged??

I agree with Andy H. in his assertion that these issues must be approached very carefully so not to backfire on the boating/fishing community.


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## richp (Feb 27, 2005)

*Need Some Help*

Hi Eric,

I need a little help.

Your web site says, "NOR is a 501(c)(3) non-profit organization and contributions are tax-deductible in the United States." A couple of posts up, there is a screen shot that seems to suggest otherwise.

What's the scoop?

Rich Phillips


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## eric.leaper (Oct 7, 2013)

*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.


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## richp (Feb 27, 2005)

Hi Eric,

So, quietly buried in an early paragraph of your long and typically gauzy post is this clause, " NOR ... is applying for renewed tax and legal status..."

You say you're in the process of applying for the tax exempt status that your web site plainly states is already in place. As in, "NOR is a 501(c)(3) non-profit organization and contributions are tax-deductible in the United States." 

Aren't you worried that you've rather openly admitted you may be violating one or more Federal/state laws? 

Just asking...

Rich Phillips


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## scannon (May 2, 2006)

eric.leaper said:


> Perhaps a generic example, based on real-life experience, would help. 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:
> 
> ...


This sounds a lot like legal advice to me. I sure do hope eric.leaper has a Colorado bar license.


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## marko (Feb 25, 2004)

eric.leaper said:


> 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.


Ugh. Please don't misrepresent my position! Of course I want to concretely secure the right to float for all recreational users. I'm simply trying to say that there are other factors to deal with, and that the right to float is not set in stone, like you want to believe. 

I'll be back to address your argument in a few days or so. I'm reviewing your claims and material with my Constitutional Law professor (who has been a civil litigator for over 30 years, and is on a CO Supreme Court committee). He is actually pretty fired up to discuss this stuff because as he told me today "this issue (right to float) is still a problem, and is far from being resolved."

btw - you might want to get that tax and legal status resolved before you find out first hand how the law and government agencies really work - i.e. you aren't going to be doing the educating.


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## Ole Rivers (Jul 7, 2005)

*"Navigable in Fact is Navigable in Law"*

Yes.

These guys took action to educate folks that water that is *"navigable in fact is navigable in law"* 22 and 3:22)... and they won. 

So can you.

https://www.youtube.com/watch?v=579AOuQXCTI

PS How about starting and Saving this to a "Stream Use", "Stream Access", "River Rights" or some such title of Bookmarks or Favorites for future reference?


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## richp (Feb 27, 2005)

Hi,

We're still waiting for authoritative information in response to questions about NOR's tax exempt status. Will someone put out an APB for Eric Leaper?

Or maybe the IRS already has...

Rich Phillips
(Briefly abandoning my calm rational persona, and succumbing to the nefarious influence of the Buzz)


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## JHimick (May 12, 2006)

This is an interesting thread and I hope the discussion remains civil. I'm wondering how the USACOE and/or EPA definition of "Waters of the United States" could play into this. If a particular river or creek is under federal jurisdiction by means of the Clean Water Act does that mean anything with regard to recreation? I'm also interested in who has the authority to legally close a river? Here in Boulder the Sheriff has closed Boulder Creek and the Saint Vrain River during high water. I would guess there is some authority granted in state law to do this but does this run contrary to federal law?

And what's with folks being so hard on Eric Leaper and/or NOR? I don't know any history but seems like his/their intention is good.


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## richp (Feb 27, 2005)

Hi JHimick,

As I and others have said, Eric's goals are laudable.

It's his methods -- including a rather naive view of the legal environment we operate in todya nd possible fraudulent representation of his tax status -- that have caused this thread to take its current trajectory. 

If he were to definitively and clearly resolve those questions, I'm fairly sure the entire group would look at him differently, and perhaps line up more solidly behind what he's trying to do.

FWIW.

Rich Phillips


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## restrac2000 (Mar 6, 2008)

JHimick said:


> And what's with folks being so hard on Eric Leaper and/or NOR? I don't know any history but seems like his/their intention is good.


The simple answer is his methodology.

1) He used a very difficult situation for the river community to launch a very new advertising and membership drive on the Buzz. It lacked tact and prioritized his organization over the community's interest. (Solution: spend time building rapport with the community before engaging in advertising).

2) NOR engaged in a form of behavior that is similar to sock puppetry. It was not random that 3 people suddenly appeared on the Buzz and started posting when they had no posts prior to NOR advertising here. They all suddenly came to NOR's and Eric's defense.

3) Veracity of NOR statements don't align with the collective experience of our diverse community. This is a major red flag to me. With that deficit the current information provided doesn't fill in the gaps.

4) Primary source of material is unvetted via peer review which is the professional way of eliminating bias and at least showing some level of transparency. Eric wrote the book, started the organization and remains its principle figure. Would make anybody be critical of such revolutionary material. There is a reason we engage in oversight and peer review and its one of the best mechanisms for preventing bad information from becoming part of the public discourse (we have a quantity issue on the internet and its nearly impossible to correct ideas once they become part of the "facts" available, i can try and find the empirical research that supports this conclusion if so desired).

5) Tax status....."non-profit" is an important legal status that should not be thrown around lightly. How are we to take the advice about complex law when when his organization doesn't even take the time to advertise themselves in a manner consistent with simple law?

Those are just a few explicit issues I have myself. A fancy name and an ideology we wish were true doesn't mean they are organization that is acting in our best interest. I have no doubt he wants to help but there is a reason non-profits have been increasingly professionalized over the years. NOR hasn't shown any visible interest in taking part in that development. I could be wrong but the information he has provided here and on his own website don't provide any evidence to the contrary. And I spent a lot of time trying to find a cookie crumb trail that led me to a different conclusion.

Phillip


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## marko (Feb 25, 2004)

Eric/NOR and my fellow boaters,


I want to first start by saying that I am on your side. I would like to see rivers “forever free” and secure the rights of river folk to enjoy all of them throughout this country. Please refrain from suggesting I am “on the side of lawyers for riverfront landowners” simply because I disagree with your inaccurate understanding of how our federalist system actually works.

I’ve read through some of your intro and see value in what you are doing - the historic education alone is worth the read for river folk. I’ve also discussed and presented the arguments you have made here in this thread, and the very brief material in your book, to a constitutional law scholar educated at the University of Chicago Law School who has been litigating complex federal and state constitutional issues for over 30 years and teaching constitutional law for 20 years. The brief material in your book is a good historical account of rivers and case history; however, there really isn’t any thing in there that shows your interpretation of how the law and our federalist system actually works. And your arguments in this thread appear to support that you misunderstand how the federalist system actually functions. And, quite frankly, even if you do try to educate people in your book in the later chapters about constitutional law and how the federalist system functions, I wouldn’t be interested in learning that from a person who doesn’t have any formal education or qualifications in constitutional law. 

NOR is correct about many aspects of the law: using correct citations of US Supreme Court holdings, and stating that many rivers are navigable under federal law for Commerce Clause purposes. However, in your arguments in this thread you have made a big error in your understanding of how our federalist system, with respect to comity, actually works. It took my Con Law professor less than a minute to spot your error, and he explained that he has seen this error made by trained lawyers making an oral argument in front of Supreme Court judges. And this error is one that I tried to point out in brief with my other posts. I will address your error in a few paragraphs below, but first I want to speak a little about the Commerce Clause power to try and help support the legal argument.

Congress has passed many pieces of commerce clause related legislation (which the Court has confirmed) that build off of the Gibbons v. Ogden holding. The most monumental decision by the Court in the 20th century about Congress’ Commerce Clause power was their holding in National Labor Relations Board v. Jones & Laughlin Steel Corporation where the “substantial affects” test was first used. This expanded Congress’ ability to regulate commerce beyond the previous legal precedent of only being able to regulate the ‘channels of interstate commerce’ and ‘to regulate and protect the instrumentalities of interstate commerce.’ In other words, this expansion allowed them to regulate intrastate commerce that may ‘substantially affect’ interstate commerce.

The expansion of the Commerce Clause power to include the “substantial affects” test is how Congress has been able to regulate so many aspects of our country. For ex: this expansion of the Commerce Clause power allowed Congress to regulate wage and hour rates in the Fair Labor Standards Act of 1938 – even in regards to businesses only operating intrastate; it allowed them to regulate the agricultural industry with the Agricultural Adjustment Act of 1938 (this Act is the most far-reaching example of the Commerce Clause authority); it gave Congress the ability to desegregate private businesses with the Civil Rights Act of 1964 because intrastate businesses who discriminated against African Americans substantially affected interstate commerce; it allowed Congress to create the Clean Water Act to try and protect our waterways and rivers from pollution because the pollution of intrastate tributaries substantially affect interstate commerce; the list of things that Congress has created with the “substantial affects” test goes on and on. When Congress creates the new pieces of legislation to regulate commerce they oftentimes have to create new agencies to enforce the new laws. So, with the regulation of illicit drugs comes the creation of the Drug Enforcement Agency; with the regulation of wage and hour comes the Equal Employment Opportunity Commission; with the regulation of the environment and pollution controls comes the creation of the Environmental Protection Agency. 

I think by now you can all start to see why libertarians and powerful business interests do not like the expansion of the Commerce Clause power (or maybe the stoner just realized why he doesn’t like the expansion of the Commerce Clause power because of their dislike for the DEA and the war on cannabis.) At any rate, many of these powerful business interests always try to skirt around Congress’ regulations by trying to find holes in the legislation. For ex: the video of the LA River that Ole Rivers provided shows a perfect example of how polluters were getting out of being regulated under the Clean Water Act because they argued in the courts that the LA River was not navigable. Therefore the regulations in the CWA did not apply to that river basin. The action that the boaters did was to prove that the LA River and its tributaries were navigable so that the polluters would have to abide by the laws in the Clean Water Act. And, yes, they did win that victory with the help of a few CA legislators. Although the victory was that the LA River basin is now protected under the CWA; and was not a victory for the right to float, like Ole Rivers suggests. 

Also, the current Roberts court, and the previous Rehnquist court, are known as the deregulatory court. In United States v. Lopez and United States v. Morrison, the Rehnquist Court decided to draw the line on the substantial affects test out of concern that “Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority” (United States v. Morrison). The libertarians and powerful business interests are very happy about this shift because suddenly things like the Clean Water Act and this idea that Congress can control what happens on even the tiniest of tributaries that have absolutely nothing to do with interstate commerce disappears into the dustbin of history.

But, with that expansion of the Commerce Clause power there has also been a recognition in the Court that the States still have the authority to regulate aspects of commerce. NOR/Eric is correct when they write that most rivers are navigable under federal law for Commerce Clause purposes. You are right that all of the legal elements currently exist for our right to float to be guaranteed. However, your conclusion (that our right to float is already guaranteed) is based in a normative kind of thinking – i.e., you think this is how it ought to be. But just because all of the elements (US Supreme Court holdings on navigability of rivers, and the power of Congress to regulate anything having to do with rivers) are in place does not mean that our right is secured. Think about this: all of the legal elements existed for decades for African Americans to have the protection of equal rights. The 14th and 15th Amendments were established law for a century, and Congress had the ability to regulate using the substantial affects test for almost 30 years. But it wasn’t until the civil rights activists in the late 50s and 60s struggled and fought to gain equal protection under the law that the legal elements and the three branches of government came together to secure those rights.

NOR/Eric make a huge error when he argues that the States do not have the authority to regulate anything in regards to navigability for commerce clause purposes. This is indisputable. And the States can, and do, regulate aspects of navigation that affect interstate commerce. In Cooley v. The Board of Wardens of the Port of Philadelphia, Justice Curtis expounded on what is known as the dormant commerce clause, and held that “the mere grant of such a power to Congress [as to the Commerce Clause authority], did not imply a prohibition on the States to exercise the same power.” This point was expounded on in Southern Pacific Co. v. Arizona when Chief Justice Stone wrote, “Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation… it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it… Thus the states may regulate matters, which, because of their number and diversity, may never be adequately dealt with by Congress… When the regulation of matters of local concern is local in the character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.”

In other words, since Congress has not explicitly and adequately legislated on the rights and regulation of recreational boating (at least I could not find an congressional Act that says, “recreational crafts can do A and B on all rivers in this country”) it is within the States authority to regulate as they see fit. Because Congress has not explicitly and adequately legislated on recreational boating there is no conflicting federal legislation. Therefore, until Congress passes an Act that explicitly and adequately legislates on recreational boating our right to float is NOT guaranteed and is left up to the State's discretion. And that is why we see boaters and fisherman still being convicted of criminal trespass by State agencies. That is why we see States with differing tests of navigability. That is why we see local authorities (like Boulder Cty Sheriff) have the legal right to close down creeks. That is why we saw the Colorado general assembly working on a piece of legislation in 2010 to secure the right to float. That is why we see American Whitewater and their qualified legal experts take the position they take. All of these State agencies, and the people working within them, are not doing these things because they haven’t read NOR materials, or parrot the talking points of lawyers of riverfront property, or just don’t understand the legal system. No, they are doing these things because they actually understand how the federalist legal system works, and because it is the sovereign right of the States to do so. 

And this leads back to my original point: It is absolutely necessary for legislative action – which will also require litigation to settle this issue. And as my constitutional law professor has told me, “This is an unresolved issue.” That does not mean that NOR’s book is worthless. On the contrary. It should be used as Eric has suggested for raising awareness about rivers. But, imho, it probably shouldn’t be used for describing how our federalist system actually functions and for giving professional legal advice about legal rights.


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## richp (Feb 27, 2005)

Hi Marko,

Wow -- just Wow!!

Now we'll see if Eric comes back with one of his facile* replies, or something substantive, including justification of his claim of tax exemption for NOR.

Rich Phillips

* Facile: adjective (esp. of a theory or argument) appearing neat and comprehensive only by ignoring the true complexities of an issue; superficial.


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## JHimick (May 12, 2006)

_{applause}_ Well done sir… well done.


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## Phil U. (Feb 7, 2009)

I see you've been spending your time well Mark. Well done.


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## eric.leaper (Oct 7, 2013)

*National Organizaiton for Rivers (NOR) reply:*

The previous posts illustrate the claims that some lawyers make regarding state authority to close rivers, as well as the ways that river users can counteract those claims when necessary, but can simply bypass them in most circumstances.

JHimick asks how the Clean Water Act relates to recreation rights. Even creeks that are too small to physically navigate (even in a kayak) are subject to Clean Water Act protection. Obviously you can’t claim a right to navigate on rivers that are not physically navigable, but on creeks and rivers that are large enough to be physically navigated, from one place to another, during the “boating season,” the Clean Water Act, in combination with Supreme Court decisions, further supports public rights to navigate and fish. The sheriff in Boulder can temporarily close navigable creeks and rivers during unusually hazardous high water, but not merely for administrative convenience.

Marko discusses the Commerce Clause of the U.S. Constitution at length, then says that based on "how our federalist system actually works," it’s a “huge error” for NOR to say that states “do not have the authority to regulate anything in regards to navigability,” but that is not what NOR is saying. Chapter Five of _Public Rights on Rivers_ discusses the role of state law in detail, citing Supreme Court decisions and acts of Congress confirming that states own the water and fish in rivers, (as well as the sand and gravel, on rivers that are navigable for title purposes,) and states can lawfully “manage, administer, lease, develop and use” these resources, but even so, existing federal law confirms that state authority over rivers is subject to the public’s “paramount right of navigation,” that states are the “guardians” of “free navigation,” that states can never “abdicate” their duty to hold rivers “in trust for the people,” for navigation, recreation, and fishing, and that this “navigational servitude” is “paramount” over state authority. (Decisions cited in the book, and in the free river law handouts to some extent.) Marko says that “until Congress passes an Act that explicitly and adequately legislates on recreational boating,” public rights to navigate are “left up to each state’s discretion.” This is simply not true: Under existing federal law, states do not have discretion to close navigable rivers (except in unusual temporary circumstances such as fires, floods, etc.)

Even so, for a number of years into the future, there will still be a number of lawyers claiming that states have discretion to close rivers, especially smaller rivers that are only navigable in kayaks and the like, and there will be times when river users have to rebut those claims, citing federal law as mentioned above. In most circumstances, however, river users can and should bypass those claims, along the lines shown in the “Heather and Goliath” video. The video is not perfect, but note that:

1. The river sections involved are small, relatively unattractive, and barely navigable even in kayaks, and there is little or no historical record of commercial navigation on them.

2. Even so, by asserting their right to navigate those sections in kayaks, kayakers successfully restored Clean Water Act protection to those sections (explained in the video,) and also overcame ordinances against kayaking (not explained in the video.)

3. The kayakers were not lawyers or expert witnesses, and their success involved no lawsuit, no lawyers, and no judge’s decision (other than citing existing federal law.)

4. The kayakers had very little to work with, regarding navigability law. Imagine how much easier their work would have been if they would have had a whole book about navigability law and public rights on rivers, to deliver to the Army Corps colonel, the E.P.A. director, the Congressman’s staff people, the media, and other parties.

5. Now imagine that same effect, multiplied by a thousand. As members join NOR, NOR sends _Public Rights on Rivers, _together with posters and handouts,to government offices in their part of the country. The NOR goal is to send the book to over a thousand government offices, all across the country, during 2014. The book, like the video, is not perfect, but as you can see from the above, it doesn’t need to be: It simply needs to document and illustrate the large amount of existing federal law confirming public rights on rivers, including small rivers and creeks with rapids and waterfalls, navigable only in kayaks and the like. (The book is being printed in very small press runs so that various updates and improvements can be quickly incorporated.)

With the above in mind, now you can see why it is a mistake for river users to claim that most whitewater rivers nationwide are not navigable, that there are no navigable rivers in Colorado, and that public rights in Colorado (and other states) still need to be decided by state courts or the state legislature. Perhaps you, too, will “catch the vision” of what river users can accomplish, for both river conservation and public recreational rights on rivers, on thousands of miles of rivers nationwide, if they will simply get to work, using existing federal law, rather than continuing to say that public rights still need to be “resolved” by state courts and legislatures (or by yet another act of Congress,) as people such as Marko, Rich Phillips, and restrac2000 urge you to do. Perhaps you, too, will look forward to the day when people such as these work _for_ public rights on rivers, rather than continuing to work against them.


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## richp (Feb 27, 2005)

Hi Eric,

To be clear at the outset, Marko, Phillip, myself (and others who are pursuing this) are not working against public rights on rivers. That characterization is totally unsupportable, when all we've done is ask for more information about your methods. In fact, we have repeatedly said that if you would simply clear up a few things about your rather extravagant legal claims and your tax status, folks might be willing to line up behind you.

Now to your most recent lengthy post. Once again, you do nothing more than blithely dance around the practical problems of inducing -- no, compelling -- local and state officials to comply with the law. No matter how well it might be established at the Federal level, it's the rare case where simply waving a book, pamphlet, or poster in the face of a lower official will change their minds. Yes, there may be a few demonstration-based examples like that given in the video. But compared with the numerous local and state stream restrictions we know about, that model must not be very effective. (And frankly, your strategy must not work very well at the Federal level either, as witnessed by the need for various groups to continually go to court to challenge Federal agency actions as well.)

Our concerns stem from observing real-world experiences -- the solutions aren't going to be found in the realm of gauzy thinking. 

Moreover, your continued unwillingness to respond to a seriously-posed question about your claims of tax exempt status are a huge, bright red flag. Why won't you give a clear and convincing explanation of the apparent contradictions between what the Secretary of State report says and what you have been claiming -- and continue to claim as of few minutes ago -- on your web site? For all the volume in your post today, you totally ignored that very important issue.

No matter how well-intentioned you are, and no matter how effective your methods might be in some limited circumstances, until these matters are cleared up, it's unlikely you're going to get substantial support in this venue.

FWIW.

Rich Phillips


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## marko (Feb 25, 2004)

eric.leaper said:


> The previous posts illustrate the claims that some lawyers make regarding state authority to close rivers, as well as the ways that river users can counteract those claims when necessary, but can simply bypass them in most circumstances.


No, this is incorrect. What the previous post of mine illustrates is how the federalist system actually works with evidence to support the claims - which is also completely supported and backed up by a Constitutional Law scholar of 30 years. Your suggestion that a person with a lifetime of experience working in constitutional law, and all of the other gov't agencies and organizations, are simply parroting false claims, and that Eric.leaper, a person with no professional legal training is correct, is delusional thinking. 

Eric, you are extremely naive on how the political system actually works. But the best of luck with your dreams... I only hope nobody is naive enough to support your organization.


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## restrac2000 (Mar 6, 2008)

I thought about getting involved into the semantics of this again but won't as I have nothing to contribute that has the clarity or authority of Marko's comments. I will say NOR misrepresents this as an "us-versus-them" argument when summarizing several of our contributions. It should be obvious by now that most of us care about securing access, we just disagree on strategy and the content of the argument used to justify that approach. I haven't seen anyone here advocating for decreased access. 

I think it is also fair to ask NOR to post these threads in the partners forum. Eric has made no effort to interact in any other thread that I can find. His sole interest seems to be NOR, its ideas and the wares it is hocking. Would seem only fitting and consistent to discourage his posts in the general forums. If Eric was interacting in any other way I would hesitate to ask that but he hasn't done so. 

Maybe in 20 years I will look back and realize my critiques of strategy are wrong. Wouldn't be the first time. But as of right now I see nothing convincing enough in the content of these posts to believe NOR's approach is the best method to take.

Best of luck folks and Happy Holidays. 

Phillip


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## eric.leaper (Oct 7, 2013)

*Reply from the National Organization for Rivers (NOR) (www.nationalrivers.org)*

Of course the people who wrote the previous posts don’t think of themselves as working against public rights on rivers. Instead, they think they are protecting river users from being misled. But here is what their posts show: They cite general principles of federalism (the relation between federal and state authority) to claim that public rights on rivers can be granted or denied at the discretion of each state. We show that when it comes to rivers, those general principles don’t apply, because specific acts of Congress and U.S. Supreme Court decisions say that the public right is “paramount” over state authority. In response, they cite nothing from federal law that opposes that paramount public right, other than their own general claims about “how the federalist system actually works.” Despite this lack of support for their view, they still claim that public rights have to be litigated and legislated state by state.

They say that a constitutional law scholar backed up their view, apparently without reading the acts of Congress and the U.S. Supreme Court decisions regarding rivers. Law is a matter of citing and discussing specific statutes and court decisions. It's not a matter of just "believing" people, based on general credentials, as if it were a religion. Understanding river law is not a matter of coming to a quick decision based on general principles. It’s a matter of reading the specific statutes and court decisions regarding rivers, and understanding how rivers were used in the past, and are usable today, before coming to conclusions. Until people have done that, they are not well qualified to render opinions on the subject.

When state governments deny public rights on rivers, they seldom or never admit that the rivers are navigable under federal law, while still claiming state authority to close those rivers, because federal law strongly denies such claims. Instead, they claim that the rivers in question are not navigable under federal law. However, whether various rivers in a state are navigable under federal law is mainly a factual question, not a legal question, and not a matter to be determined by state government policy. In a dispute, it can be answered by expert witnesses who are knowledgeable about historic and current usability of rivers, or by eye witnesses, or by experienced river users generally, but not by lawyers, or constitutional law scholars, or state government officials, without such knowledge.

Despite the above concerns, the people who wrote the previous posts are entitled to document their opinions, so we have an offer to make: If the people who wrote the previous posts (or other interested parties) would care to pick out any paragraph(s) in the NOR book or handouts, then re-write them in a manner that they consider more accurate, with citations to federal law supporting their views, we would be happy to consider their re-writes for the next edition. We are quite open to any legal argument that cites actual federal law about public rights on rivers. 

That offer is open permanently. Meanwhile, river users have two basic options: 

1. Continue to wait for lawyers and legislators to further debate the authority of various state and federal agencies to close rivers, in which case you’ll probably wait a lifetime. In each new generation of lawyers, some will claim that public rights need to be litigated and legislated all over again—that the previous Supreme Court decisions and acts of Congress somehow aren’t good enough.

2. Bypass those debates whenever possible, and instead dialog with local, state, and federal government officials, regarding specific rivers, so as to confirm public rights on those rivers under existing federal law. In this process (which takes time, not just waving one document,) you can use NOR materials or whatever else you can put together. Regarding how effective this is, it’s not effective if you don’t do it, and post things supporting it, and spread the word about it.


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## richp (Feb 27, 2005)

Hi Eric,

More hollow quasi-legal repitition for all to see.

No response at all regarding NOR's tax status.

That's some case you're making for people to support NOR...

Rich Phillips


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## marko (Feb 25, 2004)

eric.leaper said:


> They say that a constitutional law scholar backed up their view, apparently without reading the acts of Congress and the U.S. Supreme Court decisions regarding rivers. Law is a matter of citing and discussing specific statutes and court decisions. It's not a matter of just "believing" people, based on general credentials, as if it were a religion. Understanding river law is not a matter of coming to a quick decision based on general principles. It’s a matter of reading the specific statutes and court decisions regarding rivers, and understanding how rivers were used in the past, and are usable today, before coming to conclusions. Until people have done that, they are not well qualified to render opinions on the subject.


It is apparent that somebody must be getting fairly desperate when they have to resort to using a logical fallacy to argue their point. 

What you don't know is that this constitutional law scholar has worked extensively on river rights issues in Colorado - he has an encyclopedic knowledge and cites cases off the cuff. And that is why he rendered his opinion on your understanding of river law as naive. Do you realize that a legal scholar is called as such because they have in depth knowledge of ALL law? His expertise, not just on river law, but on all other complex state and federal constitutional issues is also why the Colorado Supreme Court has appointed him to one of their committees. 

But, hey, keep on making those baseless ass-sumptions if it helps you feel better about your claims...



eric.leaper said:


> Despite the above concerns, the people who wrote the previous posts are entitled to document their opinions, so we have an offer to make: If the people who wrote the previous posts (or other interested parties) would care to pick out any paragraph(s) in the NOR book or handouts, then re-write them in a manner that they consider more accurate, with citations to federal law supporting their views, we would be happy to consider their re-writes for the next edition. We are quite open to any legal argument that cites actual federal law about public rights on rivers.


-- Send me a free copy. At this point I will not give one penny to your organization. People doing peer review of material don't pay for reviewing an author's material. And they certainly don't support invalid 501C non-profits! 

The constitutional law professor is my mentor, and I will be doing an independent study on river rights issues with him. I also work part time in the CO Senate President's office. I converse with State Senators and Representatives on a weekly basis. In fact, I spoke today with one of the Senators who co-sponsored HB 10-1188. He chuckled when I told him about your claim. But, hey... perhaps we will all “catch the vision” of NOR. :wink:


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## restrac2000 (Mar 6, 2008)

If the NOR story tells me anything its the importance of peer review and third-party research. Its far too easy to allow our ideals and world views to bias outcomes. Its far too easy to conflate personal interpretation as fact. If he had not pushed the importance of his avocational "scholarship" then I wouldn't worry but instead we have an amateur with no formal training claiming to have earth shattering, paradigm shifting conclusions in river law. Scholarship that ignores professional standards that have existed for decades. All this coming from someone who obfuscates and deflects specific and direct questions that don't happen to bolster his conclusions. All this from someone who can't even follow simple financial laws that deal with the non-profit status that he allowed to lapse many years ago. We are supposed to take advice from someone who intentionally manipulates new members with a false status (his website was new and knowingly included inaccurate information). How many years did he tell people he was a non-profit knowing that status was false? I mean NOR has not existed since 2002 by legal definitions. 

Buyer beware. 

Phillip


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## restrac2000 (Mar 6, 2008)

Oh good god.....NOR's Facebook page piggy backed off of Nelson Mandela's death to bolster their ideas, from their wall on Dec 6th: 



> Let us celebrate the life of Nelson Mandela, particularly for his leadership in positive social change, and apply the principles he used for making an impact. Though river rights is a smaller social issue, we believe that educating the public will also build a powerful movement for social change in the arena of #RiverRights. #RIP #ChangeTheWorld #ForeverFreeRivers


REALLY? (In my best Seth Myers voice). I mean it seemed advisable to use the death of a hero to an entire population of oppressed citizens to piggy back the local issue of recreational river law? It seemed advisable to compare a group of people oppressed for no other reason than the color of the skin and ethnicity to our localized legal problems? That takes some audacity.

Oh wait...#Audacity

Phillip


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