# Federal authority to restrict navigation



## restrac2000 (Mar 6, 2008)

eric.leaper said:


> A mountainbuzz member named Phillip, restrac2000, cites a section of the Code of Federal Regulations and claims that it is “inconsistent with NOR statements,” but in fact it supports NOR statements: Federal agencies can indeed close park lands for provable public safety or environmental reasons. The current closure of the road to Lee’s Ferry (in effect preventing public use of the river itself) does not fall within that category.


The CFR is this for those who are following along and want original sources and not just opinions. You may want to follow the other links in that site, especially those labeled Authorities/US Code as those are the ones founded by Congress:

36 CFR 1.5 - Closures and public use limits. | Title 36 - Parks, Forests, and Public Property | Code of Federal Regulations | LII / Legal Information Institute

Leeper's summary above is incomplete, either by accident or choice. Here is the complete list of why a park can close or limit public use:



> Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities


As you will notice, the authority is much broader in justification than Leeper designates. Especially relevant to a government shutdown is the "implementation of management responsibilities", which fall under the auspices of the Ant-Defeciency Act, previously outlined. Under it agencies are "generally prohibits agencies from continued operation in the absence of appropriations" except in the face of "emergencies involving the safety of human life or the protection of property." Since maintaining access through gated NPS land does not qualify for those exceptions it would seem that the NPS is required under the aforementioned CFR's justification of "management responsibilities" to close the resource. If we need to get further into NPS mandates I can but its been a while. If tend to trust the NPS authorities on this one over Leaper as they have been continuously challenged in court with little or no success.

http://www.washingtonpost.com/wp-srv/politics/documents/RL34680.pdf

Thanks for responding with greater detail, NOR. I am more than willing to follow the bread crumbs to prove me wrong but you have provided NONE. I have your pamphlets at found no details that when researched supported your broad claims. I read the legal summaries for several and understood them to be contextual not broad in conclusion. That said, I am not a lawyer. If you have cases names and #s that you can cite to show how your ideas have been applied I will spend time researching them and retract my critiques. But the burden of proof is on you to show them...and not just expect me to buy a $35 you produced.

Phillip


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> He also says “no individual or organization has vetted” NOR materials. In fact, since the late 1990s, a number of lawyers have examined NOR materials and come up with no substantial rebuttals, i.e., no law to the contrary. Specifically, Colorado lawyer John Hill (a very experienced lawyer who worked for federal agencies for decades before switching to private practice involving attempts to oppose public rights on rivers) has tried to rebut NOR materials for about 12 years now, and has come up with no substantial rebuttal. Also, within the past few years we repeatedly distributed NOR materials throughout the Colorado state government, including the state attorney general’s office. Now, as far as we can tell, the state government is no longer telling the public that people can only run rivers “without touching” the bed and banks, as they did previously. (If you find any place where they are still saying that, let us know.) At this point we can’t prove that NOR materials were the sole reason for the policy change, but we find no evidence that any other organization or individual was responsible for it.


Can you provide me links to any statements about your book or resources, specifically from authorities on the subject of river law? I could find nothing convincing on your own website.

I found no critical reviews of your text anywhere on the internet. I have never read a book that did not have reviewers before it hit the market. Somebody out there should have read the text from a peer review standpoint and given the public a summary of their findings. That is common enough practice. Why is that lacking and/or can you provide a publicly available resource to judge your material?

Can you provide legal cases in which your material was successfully used to justify access or deny federal closure. Not being able to rebut your material is one thing but successful application of theory is another. Putting the cart before the horse otherwise. 

At least you are honest in the last statement regarding the uncertainty of your claim.

Phillip


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> He also says that NOR has been “bombarding the internet” with statements about public rights on rivers. Yes, we have been notifying a wide variety of river users as best we can about the availability of the free handouts and the book explaining their rights to use rivers. We plan to continue doing so, to the extent that memberships and donations allow us to continue and expand the program. We are also considering “crowd sourcing” and other methods. If you have any other ideas, let us know.


Specifically I challenged your tendency of link baiting during what is easily a difficult time for the community. This is exponentially worse from an organization that did not take the time before these current issues to present themselves to the community. The combination comes across as self-serving from my experience with both traditional and non-profit agencies. It is difficult to vest you and your organization with much authority on the topic considering those choices.

It took me an hour of my own time to research you and your organization. There is a noticeable lack of information about you on the internet beyond your own quotes. After 30 years of fighting for these issues I would have expected something more concrete. When I compare this to the other organizations I have been a member or socially participated with the concern of authority becomes justified. This is even greater considering the claims you make which fly in the face of traditional wisdom and knowledge regarding these management issues.

My only other recommendation is to provide access to others to vet your information. We all have various authorities within the community we trust. Take the time to get to know them and break the ice with the community. Give them all of your materials free of charge and if it is quality research and findings your investment will be returned exponentially. 

Until then, you cannot expect people like me, with "healthy" dose of skepticism, to just trust your own statement of authority and validity of claims. You cannot expect many of us to just jump on board and buy your book without more evidence.

Phillip


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## restrac2000 (Mar 6, 2008)

For anybody playing along, I am just a boater with a relatively minimal education is management and nothing formal in law. My research is minimally from academic time and largely from passion and avocational interest. Hence why I provide sources for some of my ideas as I fully recognize I carry no professional authority.


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## restrac2000 (Mar 6, 2008)

Per your statement: 



> the laws cited in NOR materials are U.S. Supreme Court decisions and acts of Congress. You can’t get any higher than that.


I recognize that idea. But the devil is in the details and how we interpret those decisions has limitations. So...

One particular curiosity has remained from your original citations, that regarding Montana v. United States, 450 U.S. 544 (1981). I spent some time looking into that case and could not find anytime it was used as precedent outside the specific legal authority of tribal lands. Could you provide cases in which it was used to justify broader denial of authority to agencies regarding river access? In articles you have been summarized as calling this case the "last word on river access rights" and hinted as much here. 

I fully recognize you likely have larger resources and literacy than myself (as many publications are not available to the public). Any cookie crumbs or full bites?

Phillip


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## klickitat (Sep 29, 2012)

*Get real*

Not having read the book or the cases cited therein, as a lawyer, I would think the analysis plays out like this:

First ---Congress' authority to legislate is limited only by the Constitution, not by the acts of previous sessions of Congress. Can you point to a constitutional provision that would be violated by a river closure, as opposed to a statute from hundreds of years ago? 

Second -- Under the Commerce Clause, if not the broad power to legislate for the general welfare, Congress clearly has the authority to authorize acts that limit or restrict navigation, for example by authorizing the construction of locks and dams, and rerouting navigable streams. "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States . . . . For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." _United States v. Rands_, 389 U.S. 121 (1967). While dams suck, do you seriously contend that Congress lacks the authority to authorize one, even though it clearly interferes with my right to navigate?

So to me, the only remaining question is whether Congress has authorized federal land managers to impose closures on rivers that flow through federal land. It seems pretty clear that Congress did so at least as to the broad grant of authority to the Department of Interior to manage national parks. And if Congress granted the agencies that power, every previous law and case becomes meaningless, unless the case recognizes some constitutional right to paddle.

Mind you, this is a different question than the right of a state, local government or private landowner to try to block or obstruct a navigable waterway.


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## wyosam (May 31, 2006)

klickitat said:


> And if Congress granted the agencies that power, every previous law and case becomes meaningless, unless the case recognizes some constitutional right to paddle.


Maybe we can get bipartisan agreement on a 28th amendment. Its at least as likely as getting them to agree on anything else.


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## eric.leaper (Oct 7, 2013)

*NOR replies to the views above*

To clarify, NOR materials do not conflict with the Code of Federal Regulations, and although we circulated a brief “open letter” about the unlawfulness of the current Grand Canyon closure, our interest is in public rights to navigate through the Grand Canyon and other rivers during normal conditions, not during this temporary shutdown. NOR materials are showing thousands of people that during normal conditions, federal agencies cannot close rivers (or key access roads to rivers) to noncommercial navigation, and cannot limit noncommercial navigation to arbitrary low levels. That’s the important thing for most river users (although we realize that it does not solve the plight of the people currently waiting near Lee’s Ferry.) 

Regarding reviews by “authorities on the subject of river law,” we are inviting all readers, lawyers, government officials, and interested parties to cite any federal statutes or higher court decisions that conflict with NOR materials. If they find anything, we will update the book and the handouts accordingly.

Regarding legal cases in which NOR materials were successfully used to defend public rights, part of the point of NOR materials is that federal law already confirms public rights on rivers, so any remaining disputes should be resolved through meetings among the parties involved, and by public education, not by further court cases. Earlier versions of NOR materials were used in this manner to keep the Taylor River and other small, whitewater rivers in Colorado open to public navigation, and they have influenced similar disputes on other rivers around the country. They will doubtless be used in similar ways on other rivers around the country in the future. 

Regarding dams, of course Congress has authority to authorize them, despite their interference with navigation.

Regarding “the broad grant of authority” from Congress to the Department of the Interior to manage national parks, it does allow closures during unusual circumstances involving public safety and so forth (as discussed earlier) but it does not allow arbitrary closures, or limits to arbitrary low levels of navigation, during normal conditions. Rivers are permanently "held in trust" for public navigation, all across the nation, _especially _in national parks.


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> To clarify, NOR materials do not conflict with the Code of Federal Regulations, and although we circulated a brief “open letter” about the unlawfulness of the current Grand Canyon closure, our interest is in public rights to navigate through the Grand Canyon and other rivers during normal conditions, not during this temporary shutdown. NOR materials are showing thousands of people that during normal conditions, federal agencies cannot close rivers (or key access roads to rivers) to noncommercial navigation, and cannot limit noncommercial navigation to arbitrary low levels. That’s the important thing for most river users (although we realize that it does not solve the plight of the people currently waiting near Lee’s Ferry.)
> .


I am thoroughly confused by your statements then. Is it not the current, temporary shutdown which you claim is unlawful? Are you not claiming to have law and precedent to support that claim of illegal action? If so, how do they not conflict with CFR, and the US Code they originate from, that allows and mandates these agencies to close during spending gaps? How on one hand can the NOR materials be consistent with the CFR but also show that the CFR is unlawful? Am I the only one that believes the above statements are mutually exclusive? What am I missing here? Am I interpreting his statements wrong?

And I am not recommending you update your book if/when it individuals find flaws. I am recommending you provide the public with access to peer reviews of your work for us to be able to assess its merit. 

If it is about non-spending gap related closures than I am left scratching my head even more as I am not aware of the NPS "closing rivers (or key access roads to rivers)" in the recent future. I am not aware our "river rights we denied" at any point here. Regulated for the reasons you have stated as legal, yes. Access denied, no. Where am I wrong on this???? 

More confused than before.

Phillip


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> Regarding legal cases in which NOR materials were successfully used to defend public rights, part of the point of NOR materials is that federal law already confirms public rights on rivers, so any remaining disputes should be resolved through meetings among the parties involved, and by public education, not by further court cases. Earlier versions of NOR materials were used in this manner to keep the Taylor River and other small, whitewater rivers in Colorado open to public navigation, and they have influenced similar disputes on other rivers around the country. They will doubtless be used in similar ways on other rivers around the country in the future.


So, it situations like the above I would love to see verified. Do you have any source material that shows it was the laws and precedents you cite that are responsible for those changes (verifiable and authoritative sources)? Similarly, do you have any source material to show you were pivotal in those discussions and changes to policy by the state? 

The burden of proof for your claims is much more significant than you just making the statements. It would seem wise for your organization to have this information readily available anyways if you want a successful membership drive, which this truly seems to be. You aren't gonna get many people who just blindly take your word for it in the long run.

Phillip


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## BoilermakerU (Mar 13, 2009)

I just hope it's over soon so we can stop bickering about it's legality (since very few of us are lawyers and even fewer specialize in this typo of law) and get back to bickering over wether or not to drain our coolers!


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## upshitscreek (Oct 21, 2007)

eric.leaper said:


> NOR replies to the views above


eric, how about you drop all the "NOR" crap? it's not even a legal business let alone a legit, non profit organization. it's absolutely laughable reading your self important shit knowing this.

also, you do realize the significance of falsely claiming to be a NPO and fundraising, eric? yes?


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## Avatard (Apr 29, 2011)

BoilermakerU said:


> I just hope it's over soon so we can stop bickering about it's legality (since very few of us are lawyers and even fewer specialize in this typo of law) and get back to bickering over wether or not to drain our coolers!


Don't drain


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## upshitscreek (Oct 21, 2007)

restrac2000 said:


> I am not a lawyer.
> 
> Phillip


after looking eric up for attorney status in colorado, neither is he.


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## craven_morhead (Feb 20, 2007)

Eric, you seem to be bouncing this discussion from thread to thread, for whatever reason. Mountainbuzz is host to a number of attorneys, including klickitat, Preston, and myself, among others. As I offered in an earlier thread, I'd be happy to read your book and take a look at its arguments, but I'm not going to pay $35 for the privilege of checking your work. So far, though, your arguments seem thin -- I don't read any of the authorities cited in your open letter to be so strong as to make your arguments a slam dunk. Nevertheless, I hope your arguments hold water (so to speak).


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## DoStep (Jun 26, 2012)

Avatard said:


> Don't drain


Definitely Drain...


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## restrac2000 (Mar 6, 2008)

upshitscreek said:


> after looking eric up for attorney status in colorado, neither is he.


He will offer his "expert witness" for an undisclosed fee on the NOR website though.......

If I had to take a guess and summarize the situation...NOR does care about access but has over-estimated its case. In the process of producing a book all these years they incurred more debt than expected. They are trying to recuperate that $$ through a membership blitz by suddenly participating on forums like this. 

I have seen small "non-profits" like this behave similarly. They often have little to no turnover in their "boards" (which are often pseudo elected for paper trails) and incur personal debt in the process of pursuing a cause they are passionate about. From the looks of things Eric Leaper has been at the helm all of these years, which is not symptomatic of a thriving non-profit.

Their website lacks the transparency, depth and breadth that I would expect from an organization that claims to have such significant legal support and victories. 

Maybe I will be proven wrong on my guesses and general assessment, but they have provided us with no other information to critically analyze them with other than assumed authority and aggrandized claims. Being proven wrong would be the best outcome as having an organization out there making these paradigm shifting access claims without any merit is actually harmful to our long term relationship with agencies and our communities needs. 

Phillip


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## richp (Feb 27, 2005)

Hi,

Eric's claims are useless if he --or someone he can persuade to take up his cause -- doesn't translate them into concrete action. The fact he has not generated a successful court case on this issue suggests there is no real legal weight to his arguments. And has been the prevalent pattern over the years, it's litigation that would conclusively resolve the matter. Pontificating on the internet won't get folks on the river.

FWIW.

Rich Phillips


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## BoilermakerU (Mar 13, 2009)

DoStep said:


> Definitely Drain...


I've been draining, but I have also been using 2 liter bottles of frozen water and some dry ice for good measure.

This is a really complex issue we all face....


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## River.Girl (Oct 11, 2013)

*Uninformed opinions*



restrac2000 said:


> For anybody playing along, I am just a boater with a relatively minimal education is management and nothing formal in law. My research is minimally from academic time and largely from passion and avocational interest. Hence why I provide sources for some of my ideas as I fully recognize I carry no professional authority.


You sure do assert yourself and your unresearched points of view, considering you don't have any background or research! You come off as strongly against people's rights to paddle rivers, which is odd considering you say you're a boater...

Drain the cooler...can't wait till this government shutdown is over so we can get back to boating!!


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## restrac2000 (Mar 6, 2008)

River.Girl said:


> You sure do assert yourself and your unresearched points of view, considering you don't have any background or research! You come off as strongly against people's rights to paddle rivers, which is odd considering you say you're a boater...
> 
> Drain the cooler...can't wait till this government shutdown is over so we can get back to boating!!


Feel free to have an opinion as well, but have you read my posts over the past week regarding NOR? Take the time because the reality is antithetical to what you just stated. I am the only one who has actually linked to source material.....i.e. research.

One such example....go back to page 1, post #2.

Being skeptical of NORs unconventional claims does not = against river rights. That is a jump unsupported by anything I have said. And if you want clarity....all for access but I do believe, through actual years of research, that the federal government has both the authority and mandate to regulate the resource I love. I don't always like the outcome though.

The irony of "uninformed posts" is too much.

Phillip


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## restrac2000 (Mar 6, 2008)

River.Girl said:


> You sure do assert yourself and your unresearched points of view, considering you don't have any background or research! You come off as strongly against people's rights to paddle rivers, which is odd considering you say you're a boater...
> 
> Drain the cooler...can't wait till this government shutdown is over so we can get back to boating!!


Hummm....another poster who joined in October and suddenly jumps into the fray? Do I smell a pattern with NOR? Could be wrong but ..... but River.Girl sure did get busy in the last 20 minutes with river law threads. Like she just started posting in the last 20 minutes. Is NOR calling in the reserves?

Phillip


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## restrac2000 (Mar 6, 2008)

restrac2000 said:


> I am the only one who has actually linked to source material.....i.e. research.


Wrong on my part, others have directly linked to source material. Sorry for the self-aggrandizing statement.


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## River.Girl (Oct 11, 2013)

restrac2000 said:


> all for access but I do believe, through actual years of research, that the federal government has both the authority and mandate to regulate the resource I love.


Nature should not be restricted and controlled by man for no good reason. Yes, if there's a flood (like there was in CO a month ago) or something that's dangerous that's fine, keeping people safe is a different story. But for the current reasons that rivers are being blocked from being accessed it's terrible. Rivers are a gift from the earth, not a man-made water park that can be closed when funding has gone bad.

Anyway this thread looks like a hornets I walked into and an unfriendly discussion, I think I'll keep to unpolitical/uncontroversial threads! Learning about where the friednly folks on this forum are the hard way I guess...Peace y'all


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## restrac2000 (Mar 6, 2008)

River.Girl said:


> Nature should not be restricted and controlled by man for no good reason. Yes, if there's a flood (like there was in CO a month ago) or something that's dangerous that's fine, keeping people safe is a different story. But for the current reasons that rivers are being blocked from being accessed it's terrible. Rivers are a gift from the earth, not a man-made water park that can be closed when funding has gone bad.
> 
> Anyway this thread looks like a hornets I walked into and an unfriendly discussion, I think I'll keep to unpolitical/uncontroversial threads! Learning about where the friednly folks on this forum are the hard way I guess...Peace y'all


You do see the irony of the hornets nest and friendly comment right? Have you re-read your initial comment? You came into the conversation with an ad hominem attack. You came in swinging a bat and are now running because someone pointed out you were wrong. Talk about decorum.

I wish you the best of luck on the Buzz and there are definitely plenty of non-controversial threads out there....though you chose to comment on two of them in your first three posts.????

Phillip


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## briandburns (Jan 12, 2010)

River.Girl said:


> Anyway this thread looks like a hornets nest I walked into and an unfriendly discussion, I think I'll keep to unpolitical/uncontroversial threads! Learning about where the friendly folks on this forum are the hard way I guess...Peace y'all


Dang, River.Girl, you got him going again...

I like to drain the cooler as it seems to keep the cheese that I keep in inferior containers from getting gummy.


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## klickitat (Sep 29, 2012)

*Overreaching*

Eric:

You hurt your argument when you try to oversell it. I think you concede that Congress has given federal land managers the authority to restrict access to navigable waterways, you just argue they can only do it for environmental or safety reasons. As an expert in the field, tell us where can we find that distinction? 

Certainly Park Service Administrative Rules give them that authority:

_(a) The regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within: _ _ (1) The boundaries of federally owned lands and waters administered by the National Park Service;_ 
_ (2) The boundaries of lands and waters administered by the National Park Service for public-use purposes pursuant to the terms of a written instrument;_ 
_ (3) Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and without regard to the ownership of submerged lands, tidelands, or lowlands;_ 

Of course, those administrative rules (which are adopted by the agency itself) are invalid if they are inconsistent with any statute passed by Congress. That battle is playing out in Alaska, where people claim that the rules are inconsistent with ANILCA, a statute specifically addressing parks and other lands in Alaska.


Where your work may be more important is to help establish rights to navigable waterways as against states or property owners. It is happening around the West right now, particularly in Montana where some wealthy bastard is trying to overturn Montana's stream access law.

Keep up the good fight, but don't oversell.


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## restrac2000 (Mar 6, 2008)

briandburns said:


> Dang, River.Girl, you got him going again...
> 
> I like to drain the cooler as it seems to keep the cheese that I keep in inferior containers from getting gummy.


Hey Brian...haven't chatted with you for a while. Wanna explain the passive remark? Interesting approach to hijack a political thread with an unrelated topic and then passively attack me. Could the choice be related to the Grand Canyon trip you asked to participate on 2010 for which your reference, the one you voluntarily gave me, highly recommended I not extend the invitation?

Despite your disagreement with me and choices in communication I sincerely hope you are having a great boating season and that guiding continues to treat you well.

Phillip


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## restrac2000 (Mar 6, 2008)

klickitat said:


> Eric:
> 
> You hurt your argument when you try to oversell it. I think you concede that Congress has given federal land managers the authority to restrict access to navigable waterways, you just argue they can only do it for environmental or safety reasons. As an expert in the field, tell us where can we find that distinction?
> 
> ...


Could you point me in the direction of sources for the Alaska cases? Would love to read up on that.


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## River.Girl (Oct 11, 2013)

restrac2000 said:


> You came in swinging a bat and are now running because someone pointed out you were wrong.


briandburns was right, wow! From the browsing I had done it just seemed like you were asserting yourself while also saying you didn't have something substantial back up to your opinions. It just stood out. But apparently you have to have the last word and prove others wrong, so go ahead, I'm not here for that. 

Drain the cooler, I like it! Have a good weekend y'all


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## klickitat (Sep 29, 2012)

*Rights on navigable streams*

The real questions are whether (1) a lawyer will now be required equipment, and (2) whether they go in the rescue kit, cooler or commode.


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## restrac2000 (Mar 6, 2008)

River.Girl said:


> briandburns was right, wow! From the browsing I had done it just seemed like you were asserting yourself while also saying you didn't have something substantial back up to your opinions. It just stood out. But apparently you have to have the last word and prove others wrong, so go ahead, I'm not here for that.
> 
> Drain the cooler, I like it! Have a good weekend y'all


I do have to ask River.Girl........are you a member, employee, representative or anyway associated with NOR? Curious to see if their trend/behavior continues or if your joining and commenting was just a random occurrence.

Phillip


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## River.Girl (Oct 11, 2013)

Negative ghost rider, just love the outdoors and can't get enough of it


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## briandburns (Jan 12, 2010)

restrac2000 said:


> Hey Brian...haven't chatted with you for a while. Wanna explain the passive remark? Interesting approach to hijack a political thread with an unrelated topic and then passively attack me. Could the choice be related to the Grand Canyon trip you asked to participate on 2010 for which your reference, the one you voluntarily gave me, highly recommended I not extend the invitation?
> 
> Despite your disagreement with me and choices in communication I sincerely hope you are having a great boating season and that guiding continues to treat you well.
> 
> Phillip


Wow...that's cold man. Didn't realize I was a hijacker. Just trying to add a little levity to the bickering...


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## restrac2000 (Mar 6, 2008)

briandburns said:


> Wow...that's cold man. Didn't realize I was a hijacker. Just trying to add a little levity to the bickering...


Cold is an interesting choice to describe the comment. My question was sincere and nothing else. Passively attacking me for being involved in a political conversation on a political thread isn't easily written off as "levity" by me. Especially considering the way you immediately aligned with someone who was making patently false claims about me from limited information/interactions (the un-researched component, I can't say about the personal judgement of my comments and can only speak to my own intentions) (which is resolved with no hard feelings on my part). Maybe this is just another misunderstanding. Writing this thread off as bickering doesn't help me see it that way though, in all honesty.

Phillip


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## restrac2000 (Mar 6, 2008)

My intentions don't seem to be aligning with outcomes here. Off for the weekend. Sorry if my statements came across in an unintended way. Will review them later to see what I can do differently. 

Phillip


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## eric.leaper (Oct 7, 2013)

*Things to keep in mind regarding federal agency authority:*

How federal agencies describe their authority, in the Code of Federal Regulations and the National Park Service administrative rules, is subordinate to how the U.S. Supreme Court describes it. Broad-sounding language written by the agencies themselves cannot lawfully extend their authority beyond what is allowed by Supreme Court decisions. Since the beginnings of our nation, the Supreme Court has confirmed that rivers are permanently held in trust for the public, and cannot be closed by the owners or managers of the surrounding land. The most recent Supreme Court decision on the subject confirmed public rights to navigate noncommercially on western rivers despite the objections of the agency managing the surrounding land, the Department of the Interior, of which the Park Service is a part. (_Montana v. United States,_ 450 U.S. 544, 1981.) 

Of course there can be exceptions to this principle. Federal courts have upheld agency closures or restrictions if they have a “rational basis.” However, they cannot be “arbitrary or capricious.” There has to be some rational, tangible, on-the-ground reason for the closure or restriction, and on rivers it has to be substantial enough to _override_ the long-standing public right to navigate, as confirmed by the Supreme Court. It can involve public health, safety, environmental damage, or some other rational, tangible reason (safety and environment are not the only two possibilities.) However, it can’t be an irrational, absurd, despotic decision. The Department of the Interior claimed that the recent closure of the Lee’s Ferry put-in was necessary due to funding cuts, which was absurd because it cost more to post armed rangers to barricade the put-in than it would have cost to furlough the rangers and let people go down the river normally (which was what the same Department of the Interior, through the B.L.M., did further upstream in Desolation Canyon.) The closure was “vindictive shutdown theater,” as the _National Review_ called such closures, so it was “arbitrary and capricious” and therefore unlawful. Our original “open letter” briefly explained this unlawfulness. We stand by that.

Now that the government shutdown is over, it makes sense to turn to the legality of the long-term “partial closure” to noncommercial navigation that the Park Service has enforced since 1973. Since the Grand Canyon is a long trip through a remote canyon with limited camping space along the way, it necessarily involves people making advance reservations for the limited space on the river. Congress has confirmed that the Park Service cannot make people pay concessionaires in order to gain access in a timely manner. (16 U.S.C. Chapter 1, Subchapter I, section 3, regarding limits on grants to concessionaires.) Likewise, Supreme Court decisions confirm that the government cannot make people pay businesses for the right to navigate down navigable rivers. (Numerous cases cited in _Public Rights on Rivers._) Consequently, public rights to gain timely access to the river through the Grand Canyon without paying businesses are doubly protected by federal law.

When competent noncommercial river runners apply to reserve space on the river, the Park Service cannot deny their request unless there is some rational and lawful reason for doing so. If the space is already filled up at that time, with confirmed reservations previously made by other specific people, that’s a rational and lawful reason. If there is still vacant space on the river (either vacant space allocated to commercial operators or vacant space on the river generally) there is no rational and lawful reason to deny their request.

Park Service officials may claim that their authority to withhold vacant space from noncommercial applicants was confirmed by federal courts in the Wilderness Public Rights Fund lawsuit in the late 1970s, or the more recent River Runners for Wilderness lawsuit. Both of those lawsuits claimed that the law requires the Park Service to do a demand study and adjust allocations accordingly. The law does not require a demand study, but it does require the Park Service to release vacant space to competent noncommercial applicants. Regarding _how soon_ the Park Service must release space, since the commercial rafts are stored away and the guides have other jobs from about November to April each year, there is no “rational basis” for refusing to release vacant space to noncommercial applicants annually during that time. It would be “arbitrary,” and therefore unlawful, to not do so.

The National Organization for Rivers (NOR) is preparing handouts and posters to educate noncommercial river runners accordingly, and advise them on how to actually reserve the vacant space that they are lawfully entitled to reserve. 

The handouts and posters that are available so far talk about public rights on rivers generally. You can see them at nationalrivers.org.

Supreme Court decisions are written so that the public can understand them and apply them. However, the Supreme Court is wasting ink and paper if you and I only consider what the Department of the Interior says about its own authority, rather than looking at what the Supreme Court says about it. After reading the Acts of Congress and Supreme Court decisions cited in NOR materials, if you still think NOR is overreaching or overselling, please cite the specific passage in NOR materials that you think is overreaching or overselling, and send a message showing how you would re-word it to [email protected]. Thank you. Best wishes. – Eric Leaper.


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## craven_morhead (Feb 20, 2007)

I read _Montana v. U.S._ to hold that the title to the navigable waters passed to Montana upon its admission to the union and to hold that the Tribe "may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe." 450 U.S. 544, 557. Can you explain how you read it to "confirm[] public rights to navigate noncommercially on western rivers despite the objections of the agency managing the surrounding land, the Department of the Interior"?

I note that you reposted this reply in a number of threads; let's reconsolidate the discussion, shall we?


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## scannon (May 2, 2006)

> The most recent Supreme Court decision on the subject confirmed public rights to navigate noncommercially on western rivers despite the objections of the agency managing the surrounding land, the Department of the Interior, of which the Park Service is a part. (Montana v. United States, 450 U.S. 544, 1981.)


Have to disagree with you there. The Holding in _Montana_ is that the Crow Tribe and the US government as the holder of Crow land in trust) can prohibit hunting and fishing on land belonging to the tribe but cannot regulate non-Indian activity related to the the riverbed of the Big Horn River because the riverbed was owned by Montana not the tribe. 450 U.S. 544, 557 (1981).

Not sure how you get from there to your conclusion.

Edit: Wow, Craven beat me.


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## eric.leaper (Oct 7, 2013)

*Montana v. United States, relation to the Grand Canyon.*

Okay, I will reply only on this thread, not the others. Yes, _Montana v. United States _confirmed that a tribal government can prohibit nonmembers from hunting and fishing on the LAND surrounding the river, but cannot do so on the bed and banks of the RIVER. This is consistent with centuries of law and previous U.S. Supreme Court decisions, holding that public rights on rivers are not at the discretion of the owner of the surrounding land. (Cited on the new free posters and handouts at nationalrivers.org, and in the book _Public Rights on Rivers._) 

The river in dispute was the Big Horn River in Montana, a typical western river with shallow places, gravel bars, and rapids, navigable in rafts, canoes, kayaks, and other small boats, but not in ships or barges. (You can read the case at openjurist.org.) The users of the river were noncommercial. The state of Montana sought to protect noncommercial public navigation and fishing rights on the river, while the Tribe sought to exclude the public. The U.S. Supreme Court said, “To resolve the conflict between the Tribe and the State, the United States, proceeding in its own right and as fiduciary for the Tribe, filed the present action, seeking a declaratory judgment quieting title to the riverbed in the United States as trustee for the Tribe and establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and an injunction requiring Montana to secure the Tribe's permission before issuing hunting or fishing licenses for use within the reservation.” In other words, lawyers for the Department of the Interior, Bureau of Indian Affairs, sought to prevent public use of the river. However, they lost the case. The U.S. Supreme Court confirmed the navigational easement “for the benefit of the public, regardless of who owns the riverbed,” including public rights to engage in “sport fishing and duck hunting,” despite the objections of the Department of the Interior and the Tribe.

In sum, the case confirms public rights to navigate noncommercially on typical western rivers flowing through Department of the Interior lands, despite the objections of the Department of the Interior. This is the latest thing the U.S. Supreme Court has said on the subject. The Court is not going to reconfirm this principle river by river.

Even so, the public right to navigate rivers does not include unlimited quantities of people, on a long river trip with only limited camping places. In the Grand Canyon, the National Park Service can deny access to noncommercial applicants when the river is already fully reserved by other specific, named people, planning to go on commercial and noncommercial trips. However, it cannot deny access for an arbitrary and unlawful reason, such as when there is ample vacant space on the river, and the reason for the denial is to preserve arbitrary allocations to commercial operators, thereby requiring the public to pay those operators in order to gain access to the river in a timely manner.

Have a nice day. 

– Eric Leaper, for the National Organization for Rivers (NOR.) (Home - National Organization for Rivers.)


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## scannon (May 2, 2006)

> In other words, lawyers for the Department of the Interior, Bureau of Indian Affairs, sought to prevent public use of the river.


That's not what this case is about. The petitioners sought to prevent Montana from regulating use of the river. It may be a subtle distinction, but it's one that would matter if you started bringing this into court. Your interpretation of the case might make an interesting law review article, but it's not going to convince a lot of judges.

Also, I don't know where you're getting the information about which agencies were involved. The only mention of either Interior or Indian Affairs in the opinion is in a footnote about the legislative history of the Allotment Act.



> sport fishing and duck hunting


I don't know where you're quoting this from; the phrase doesn't appear in the case.


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## swiftwater15 (Feb 23, 2009)

So in the end, your argument is that it is arbitrary and capricious for federal agencies to restrict non commercial river access, other than for environmental or safety reasons you agree with. I think that you will usually lose that argument given the deference courts will provide to the regulating agencies. Montana v. US does not address that point.


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## eric.leaper (Oct 7, 2013)

*NOR reply to the above*

In reply to the above, we would direct your attention to: TRIBE REFUSES TO GIVE UP BATTLE FOR BIG HORN RIVER - NYTimes.com. This is a New York Times article from that time. Note that Montana Senator John Melcher, a member of the Senate’s Select Committee on Indian Affairs, described the Supreme Court’s decision as follows: “What is involved here is whether or not other people can have the privilege of fishing or floating down that river.”

Or, if you prefer the script of an NBC show with Tom Brokaw from that time, see: Crow Indian Tribe Fights for Rights to Montana's Big Horn River.

Regarding “sport fishing and duck hunting”, they spelled it “sports fishing and duck hunting”.

Regarding the “deference courts will provide to the regulating agencies,” it’s true that courts generally respect agency decisions, and that plaintiffs disagreeing with agency restrictions have to show the judge why the restriction is arbitrary or unlawful. We are saying that restricting noncommercial navigation in the Grand Canyon to an unchanging allocation for years on end, thereby denying access to most applicants by lottery, while maintaining a large unchanging commercial allocation that allows easy phone reservations for all interested customers, is arbitrary and unlawful.

We will be detailing this, specifically regarding the Grand Canyon, in upcoming handouts and posters for public distribution (with the necessary citations.) At this point, we have general handouts and posters about public rights in the United States, and in Colorado, available as free downloads at Home - National Organization for Rivers. – Eric Leaper.


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