# Grand Canyon closure unlawful



## eric.leaper (Oct 7, 2013)

*National Organization for Rivers*
​212 West Cheyenne Mountain Boulevard ● Colorado Springs, Colorado 80906​ 719.579.8759 ● www.nationalrivers.org  ● [email protected]​ 

*An open letter to President Barack Obama and Secretary of the Interior Sally Jewell*
October 7, 2013
Dear President Obama and Secretary Jewell:
Your administration has erected a barricade, manned by armed rangers, preventing the public from getting to the Colorado River at Lee’s Ferry, Arizona, which is the only access point for navigating through the Grand Canyon. 
This barricade is unlawful, and the current government funding dispute does not make it lawful. The first act of the first Congress of the United States declared that the rivers of our nation must remain “forever free” to public navigation.(1) Later Congress again confirmed that rivers “shall be deemed to be and remain public highways.”(2) Early in our nation’s history the U.S. Supreme Court confirmed that rivers are “held in trust for the public” and cannot be closed to navigation.(3) The Court later confirmed that the government is the “guardian” of rivers, so that “free navigation is secured,”(4) and that government authority on navigable waters is subject to the public’s “paramount right of navigation.”(5) Later the Court again confirmed that government authority on rivers is “subject to the rights which the public have in the navigation of such waters.”(6) In its most recent decision regarding public rights on rivers, the Court specifically confirmed that the Department of the Interior cannot close public access to rivers flowing through federal lands.(7) 
There is no exception in the law for funding disputes. Likewise, the fact that funding may be forthcoming within the next few days does not make the barricade lawful today. The public has firm legal rights to get to the Colorado River at Lee’s Ferry today, not just at some undetermined future time. Public rights to access navigable rivers are not dependent on resolution of funding disputes.
It is obvious that it is costing money to enforce the barricade with armed rangers, while it would not cost anything to send the rangers home. Therefore the claim that the barricade is necessary due to lack of funding is absurd.
In summary, the barricade is illegal. Your administration is not above the law. Consequently, you are quickly losing the trust and support of millions of Americans who are aware of this illegal barricade. The law requires you to order the rangers to step aside and allow the public to get to the river. We urge you to comply immediately.
Sincerely,


Eric Leaper
Executive Director, National Organization for Rivers.

(1)* “Forever free:”* _Northwest Ordinance of 1787,_ reenacted August 7, 1789, chapter 8, 1 Stat. 50.
(2)* “Be and remain public highways:”* Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464.
(3) *“Held as a public trust:” *_Martin v. Waddell,_ 41 U.S. 367 (1842); _Illinois Central v. Illinois,_ 146 U.S. 387 (1892).
(4)* “Guardians” of rivers:* _Pollard v. Hagan*,*_ 44 U.S. 212 (1845).
(5)* “Paramount right of navigation:” *_Weber v. Board of Harbor Commissioners,_ 85 U.S. 57 (1873).
(6) *“Subject to the rights which the public have:” *_Scranton v. Wheeler,_ 179 U.S. 141 (1900).
(7) *Department of the Interior cannot close public access to rivers:* _Montana v. United States,_ 450 U.S. 544 (1981).


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## Tom Martin (Dec 5, 2004)

Right On Eric! Thank you for posting this letter!


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## richp (Feb 27, 2005)

Hi Eric,

That's nicely articulated, and on the surface makes a very good argument. But while I'm not a lawyer, a question comes to mind.

If the statutes and case law behind your argument is so persuasive, and so settled, why didn't some river organization -- yours perhaps -- get into Federal court on October 1st to stop the river blockade? 

If this is issue is so clearcut, why not immediately file a lawsuit and request an injunction or temporary restraining order against the NPS and any other agency that was restricting river access? Even if it was a resource issue for a small organization like yours, surely other larger groups -- or a consortium of organizations -- could have taken it on if the legal context was so clearly and favorably established.

Not criticizing, just asking.

Rich Phillips


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## BrianK (Feb 3, 2005)

My opinion, the issue is not that clear cut. I spent a great deal of time in law school researching river access/right to float issues. (Mostly as it pertains to the right to float in Colorado, which is admittedly a different issue. Nevertheless, the argument relies on many of the same SCOTUS precedents). The fact of the matter is that you can cherry pick good cases to support almost any argument, but you need to address and distinguish the bad cases to create a really compelling argument. 

Take a look at the work that AW has done trying to secure boater access to the chatooga headwaters which is located on Forest Service land. Their arguments were often similar to National River's arguments, although more nuanced, and they found that the law is not as settled as NR may lead you to believe. 

The key is that many of these holdings are much narrower than NR would like to admit. They apply to the facts of the case, and cannot always be applied as broadly as NR suggests here. 

Also, despite what I just wrote I fully support your organization. There are very few groups pushing for river access, and I wish you the best of luck moving forward. I am by no means a river access expert, and who knows, these arguments could win the day.


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## blutzski (Mar 31, 2004)

p.s. you suck.


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## mrkyak (Jul 11, 2005)

Hope my $35 new membership fee helps. Keep up the good effort.


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## rivers2run (Jun 7, 2012)

So would some of you argue that there should be no restrictions? Everyone should be able to run without restrictions? Personally I like limited launches, just imagine unllimited launches every day. Do you really want that? Be careful what you wish for. I know.... I suck.


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## Tom Martin (Dec 5, 2004)

In this case, one would run with all rules and regs in place, including a permit, fire pan, extra oars, perfect pfd, you know the drill. You couldn't go above the high water line. Some folks would go home, some would go downriver. Best is to simply keep the river open. yours, tom


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## Wadeinthewater (Mar 22, 2009)

Tom Martin said:


> In this case, one would run with all rules and regs in place, including a permit, fire pan, extra oars, perfect pfd, you know the drill. You couldn't go above the high water line. Some folks would go home, some would go downriver. Best is to simply keep the river open. yours, tom


Yes, best is to simply keep the river open. A couple of minor points to your scenario.

Camping would be very limited if you followed the rules. I believe you left out the word "ordinary" in the definition of state ownership. Ordinary high water is much different than high water. Here, here, here. I am guessing you would need to stay below the 20,000+ cfs mark to stay "legal"? This would exclude using most of the camps along the river.

I also don't think you technically would have a permit if you go this route. I don't remember the details for the Grand Canyon, but in other lotteries for federally managed rivers you are awarded a launch date. Only after showing ID, equipment checks and river use lectures are you given the permit. Otherwise why would you subject yourself to the process they put you through at Lees Ferry if you already had a permit under normal conditions? I would still launch without the permit if I had a launch date and the check in process was closed.


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## craven_morhead (Feb 20, 2007)

We had a fair amount of this legal discussion over here.


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## eric.leaper (Oct 7, 2013)

*Replies about Grand Canyon closure*

In response to the question about why NOR has not gone to court to get an injunction: If the Grand Canyon closure were for a known, lengthy period of time, NOR would indeed take legal action to re-open the river. However, it would be a waste of time and energy to obtain an injunction only to have the government end the shutdown shortly thereafter. NOR is committed to using the hard-earned dollars contributed by members as efficiently as possible, and seeking an injunction against a temporary closure that should end any day now would be quite inefficient. Under the circumstances, the logical response is simply to circulate an open letter to the government and the national media, explaining why the closure is unlawful, so that is what we did. 

Regarding the question about _Montana v. United States,_ 450 U.S. 544 (1981), involving a river through an Indian reservation rather than through a national park: Since the beginnings of this nation, Acts of Congress and U.S. Supreme Court decisions have confirmed public rights to navigate rivers without permission from the surrounding landowners. _Montana v. United States_ is the most recent U.S. Supreme Court decision reconfirming these rights. In that case, Montana supported public rights on the Big Horn River in Montana (a typical western river with rapids and gravel bars, navigable only in canoes, kayaks, small rafts, etc.) The Department of the Interior opposed public rights, and the Supreme Court decided in favor of public rights. We don’t need the Supreme Court to issue similar rulings regarding every river and every sub-agency within the Department of the Interior. The legal principle is clear: Federal agencies, like other landowners along rivers, can’t close rivers to public navigation (unless there is some overriding factual reason for doing so, such as a forest fire in progress.) You can read the decision yourself by going to openjurist.org, clicking on United States Reports, clicking on 450 U.S., then clicking on 450 U.S. 544.

Federal agencies can limit commercial operations on rivers to certain companies operating certain quantities of trips, much like they limit airlines, bus companies, and trucking companies to certain companies operating certain routes. However, they cannot lawfully limit noncommercial navigation on rivers unless there is some overriding factual reason for doing so, such as an environmental or public safety reason. The National Park Service can limit the number of noncommercial trips navigating the Grand Canyon for provable, factual, environmental or public safety reasons, but it cannot set arbitrary limits on the number of noncommercial trips merely out of despotic whim. 

Regarding the question about _American Whitewater and American Canoe Association v. U.S. Forest Service_ on the Chattooga River: The plaintiffs claimed that the Forest Service restrictions violated the Administrative Procedures Act and similar requirements, but public rights to navigate the river, without permission from the Forest Service or other surrounding landowners, were neither asserted by the plaintiffs nor denied by the court. There is a false posting on wikipedia (and other websites) citing that decision to claim, “A federal agency can restrict individuals paddling on a stream, because paddling is a privilege not a right,” but the decision itself does not say such things. (You can read it yourself by searching for American Whitewater and American Canoe Association 8:09-2665-MGL.)

Regarding the question about “cherry picking” certain cases to support public rights: The brief NOR open letter about the Grand Canyon closure cites three acts of Congress and six Supreme Court decisions, but the new NOR book, *Public Rights on Rivers,* cites hundreds of cases, in chronological order, from colonial times to the present, so NOR is not engaged in “cherry picking.” Conversely, NOR would challenge the nay-sayers to come up with Supreme Court cases saying that surrounding landowners or government agencies can close rivers to noncommercial navigation. If you can find any such cases, let us know. Otherwise, we will continue to publish and broadcast the same sorts of materials as at present. Along these lines, next week nationalrivers.org will include a new, free poster that you can print out and hang on the wall, “Public Rights on Rivers in Colorado.” Again, NOR is very grateful to all those who are helping to finance this public education process with their hard-earned dollars, and NOR is committed to using these funds as efficiently as possible. Thank you for your comments. – Eric Leaper.


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## Wavester (Jul 2, 2010)

Well I admit all this is way over my head but I find it interesting that it seems to take more rangers to man that barricade then it would take to give the redundant orientation and inspect river runners for the proper gear. 




eric.leaper said:


> In response to the question about why NOR has not gone to court to get an injunction: If the Grand Canyon closure were for a known, lengthy period of time, NOR would indeed take legal action to re-open the river. However, it would be a waste of time and energy to obtain an injunction only to have the government end the shutdown shortly thereafter. NOR is committed to using the hard-earned dollars contributed by members as efficiently as possible, and seeking an injunction against a temporary closure that should end any day now would be quite inefficient. Under the circumstances, the logical response is simply to circulate an open letter to the government and the national media, explaining why the closure is unlawful, so that is what we did.
> 
> Regarding the question about _Montana v. United States,_ 450 U.S. 544 (1981), involving a river through an Indian reservation rather than through a national park: Since the beginnings of this nation, Acts of Congress and U.S. Supreme Court decisions have confirmed public rights to navigate rivers without permission from the surrounding landowners. _Montana v. United States_ is the most recent U.S. Supreme Court decision reconfirming these rights. In that case, Montana supported public rights on the Big Horn River in Montana (a typical western river with rapids and gravel bars, navigable only in canoes, kayaks, small rafts, etc.) The Department of the Interior opposed public rights, and the Supreme Court decided in favor of public rights. We don’t need the Supreme Court to issue similar rulings regarding every river and every sub-agency within the Department of the Interior. The legal principle is clear: Federal agencies, like other landowners along rivers, can’t close rivers to public navigation (unless there is some overriding factual reason for doing so, such as a forest fire in progress.) You can read the decision yourself by going to openjurist.org, clicking on United States Reports, clicking on 450 U.S., then clicking on 450 U.S. 544.
> 
> ...


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## richp (Feb 27, 2005)

Hi Eric,

With all respect to the good you and your organization are trying to do, I have two reactions to your post.

1. You say you didn't want to file a lawsuit because you thought the shutdown was going to be short, but it's now well into a second week with no resolution in sight. When will it be long enough for you to take the steps you seem so confident could end it?

2. Many people are waiting at Lees Ferry (or trying to decide whether to head there for an upcoming trip) at considerable personal expense and frustration. How do explain to them why you had it in your power (as you assert) to stop the river shutdown -- and didn't?

Just asking...

Rich Phillips


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## restrac2000 (Mar 6, 2008)

For an organization that has been around for so many decades I am shocked to see so little reward in the long run. I have witnessed other non-profits develop direct relationships with agencies in the inception and have tangible affects. I fully recognize Eric Leaper has been around for years stating these things (a quick google search exposes his history). But in all honesty his opinion has never been proven in any article or source I could find. Its always presented as an "expert witness" but I have yet to see a defining case anywhere in the media.

As for the posters, etc.....I read them and found nothing that would convince me that the laws cited are anything beyond superficial. Both the national and colorado poster were immensely unconvincing that some federal law was being broken.

On the front of the GCNP....it only took me an hours work to find both the constitutional and congressionally legislated acts that justify the closure of GCNP. The Anti-defeciency Act lays a clear case for how and why agencies close their resources in the manner they do.

I would really love see some simple, historical precedent on why we have unfettered access to our rivers. I am not convinced. And once again.....your actions come across as a membership drive and attempt to sell your book. Your organization has bombarded the internet and user groups over the last 3 months with similar statements and I have seen similar questioning as our on the various forums using a quick google search. 

May I suggest if your book and research is so ground-breaking that you seek crowd-sourcing within the community to get enough of the material paid for as to make it available fully to the public and stakeholders at no expense. Until then your book and claims come across as suspect as absolutely no individual or organization has vetted your material. I would highly recommend your organization reconsider the PR strategy it has implemented over the last 3 months.

Phillip


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## eric.leaper (Oct 7, 2013)

*Shocked.*

I've been shocked too, although I've gotten used to it. Some people spend a lot of money to oppose public rights on rivers. Our new posters, handouts, and book on the subject are designed to help river users reconfirm their rights on rivers. You can see them now at nationalrivers.org. Yes, we are considering crowd sourcing. We realize that some people will disagree with these materials. You can compare them side by side with materials from other organizations, and decide for yourself which view you want to support. Best wishes. -- Eric Leaper.


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## Wiggins (Sep 26, 2009)

So by your logic why have you not brought lawsuits against NPS to restore whitewater boating access to places like Yellowstone?

Kyle


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> You can compare them side by side with materials from other organizations, and decide for yourself which view you want to support. Best wishes. -- Eric Leaper.


For myself.....I would rally behind a "view" that is supported by law and allows us to progressively move policy towards less compliance. But I personally don't choose organizations based solely on their view, as that has proven counterproductive in my past. That view has to be supported by law and policy to be sustainable. You seem to be a lone voice in the wilderness right now and I have learned from personal experiences to pay attention to such a red flag. My vigilance and skepticism may not be serving me well in this regard I suppose.

Some of those red flags for me:

1) Unvetted material....this could just be an issue of timing as you aligned your social media campaign with the release of the book. Doesn't bode well at the moment that you don't have any support for your claims outside your organization and it can only be purchased on a members only website. 

2) Lack of response to the allegation of a lapsed non-profit status.....paperwork is more than just symbolic in this regard.

3) From the website, you, the founder, are also the Executive Director after decades of existence. That is a major issue for me as I have seen that in similar "non-profits" and I have found it to be disastrous. Fresh blood in leadership roles has proven vital to success in my experience. The opposite has proven to mean stagnant strategy often at the expense of its members.

4) Disguising your ultimate issue of commercial v private allocations under broader claims. That is a big schism in the GC community that has taken years to "heal", if that is possible. This plays back into your organizations lack of legal interest in challenging the park's closure of Lees Ferry during the spending gap (its likely this could happen again in Jan) but willingness to link bait it back to your own website. I for one am not remotely interested in participating in that fight unless there is Significant evidence that a wrong has been committed. If not, it just seems like we are picking at scabs. 


Others have questioned my interest in increasing access as well. I would love to see it though I definitely am in a personal and professional camp that values "thoughtful" management (and I have valued permitting in multiple ways). But all too often I have also seen unsupported claims (in this situation, that would be legal casework that justifies your interpretation of laws and treaties or professionals supporting your claims) actually burn individuals out in what is all too often a long game approach needed for changing management regimes. Attrition, and the splitting us into camps like I hinted at in #4 above, has harmed many outdoor communities. As you know, our strength is in #s. 

Phillip


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## eric.leaper (Oct 7, 2013)

*Reples to the above:*

Regarding Yellowstone National Park, yes, that is one of the places where public rights on rivers have been arbitrarily and unlawfully denied by government agencies. As resources allow, National Organization for Rivers materials will address those rivers specifically. So far the materials are what you see at nationalrivers.org.

Regarding differing legal views, law and politics are two different things, although there is some overlap between the two. Discerning valid legal principles is not a matter of majority opinion, strength in numbers, or the current management policies adopted (without much legal scrutiny) by various state and federal government agencies. Less than two months ago, the National Organization for Rivers published a complete book on the subject of public rights on rivers, tracing the history of river law from ancient times to the present. The book has been taking shape for over a decade, during which the organization was not maintaining a substantial public presence other than an elementary web site. If the book were simply an echo of what other organizations already believe about river law, we would not have bothered to publish it. No other organization has published something along these lines, but you are certainly free to disregard it, for the reasons you describe, including your concerns about unethical non-profits, "link baiting," lack of vetting to date, and your preference for "thoughtful" management. To some extent, we agree with all of your concerns. Have a nice day. -- Eric Leaper.


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## restrac2000 (Mar 6, 2008)

eric.leaper said:


> but you are certainly free to disregard it


I really don't want to simply disregard it, hence why I have asked you to provide outside reviews of the material. From the lack of direct response to that request in the past weeks it would seem there are none to provide. 

Specific Concerns with the book:

1) Confirmation bias: The founder and executive director appear to be the author, someone who for years has advocated the same hypothesis regarding access. 

2) No peer review, i.e. not vetted material for us laymen who need some outside authority to judge merit.

3) Self published and member only access. Cart before the horse for me. How do I know if the NOR has a valid argument and strategy if the only way to verify it is through paying a membership and reading a book they self-published?

4) Self-interested, i.e. NOR, notification on this forum to drive traffic to the book and organization via link baiting a contentious policy issue that is directly affecting boaters at the moment...having done so with no immediate interest in legally challenging those problems.

5) Correct me if I am wrong....A legal history written by a retired (?) river guide who has an avocational interest in law regarding rivers. Raises question of professional authority for me. Especially considering a current lack in #2 above and a lack of any outside support found on your website.

I can't judge the book worthy or not at the moment because I have not read it. Not going to until at least a few of the above are accounted for. Selling a book like you are for membership purposes while skipping issues like peer review is major issue for me. I value my education and try to filter what I read (especially based on authority and currency). You aren't simply asking us to read some new, interesting non-fiction text. You are asking us to change our own approaches and opinion that you claim are based on "massive confusion" regarding river law. You are telling us the way we think about river law and policy is wrong. That is a major claim.

And the only support is a self published, non-peer reviewed text written by an average schmo like myself that is only available to people who pay membership fees. Does that help illuminate why I have presented the degree of skepticism I have.

The burden of proof is on you, not us. Which sucks if you truly have some earth-shattering information. But a few citations just doesn't cut it in this issue when you are making claims 180 degrees different that others in the field. 

And then you also want us to pass around the organization's pamphlets and posters? How I am to do that in good conscience when I have no idea about the validity of your personal interpretation of the law. Because that is what it boils down to .... you want us to change our minds based on your solitary opinion of federal law, court rulings and treaties. An opinion that runs counter to pretty much everything readings and experience has taught many of us. An opinion that I have spent hours now trying to research on the inter-webs with no third party support for your claims. 

So for me its not a matter of disregarding your book....its about not having the information to provide you the authority and mantle you claim. And I hope you realize I would hope others would be this vigilant if the situation were turned on its head. 

If I need to be corrected on any of the # points above, please do so. Maybe I missed a response somewhere in the forum. 

Phillip


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## eric.leaper (Oct 7, 2013)

*Reply to the above:*

Maybe you are misunderstanding what the book, _Public Rights on Rivers,_ is actually about. It describes and illustrates river uses from ancient times to the present, together with the legal decisions in each era, showing what river uses were common at the times when those decisions were made. The historical material and legal decisions are footnoted and can be readily verified, so there’s not much personal interpretation or opinion involved.

The book has been a team effort for more than a decade, during which we compiled and edited material from numerous sources to make it understandable for the public and for law enforcement officials, and we discussed and debated the facts and the legal issues with river historians and with lawyers in government and in private practice. Lawyers in government don’t want to put their name on works published by non-government organizations because they need to appear impartial, and lawyers in private practice don’t want to do so because if might interfere with lucrative future cases. (There’s not much money to be made defending public rights on rivers.) Even so, if anyone reading this has large amounts of experience in river-related litigation, either as an expert witness or as a lawyer, or knows someone who does, please let us know so we can contact them to discuss the subject. That could result in the peer review, outside authority, or third party support that you are seeking.

On the other hand, this is not rocket science. The historical uses of rivers were simple enough, and U.S. Supreme Court decisions are written so that the public and local law enforcement officials can understand them and apply them. The Supreme Court has repeatedly held that rivers that are navigable in fact are navigable in law, and if they are navigable in law then they are held in trust for public navigation and fishing. Which rivers were navigable in fact for the uses of past centuries, and are navigable in fact for the uses of today, is a matter of expert witness testimony, not something that lawyers can assert or deny on their own. To the limited extent that the book contains my testimony on this subject, it should be noted that I have been working full time on river issues since the 1970s, and writing expert witness reports for river-related litigation since the 1980s. If there is an expert witness who is more qualified to write such testimony than I am, please let me know, so I can get in touch with him or her. Note that in the NOR posters and handouts, the first paragraphs talk about this very subject, and the first footnotes cite the relevant Supreme Court decisions. You can check this out for yourself at nationalrivers.org.

Regarding bias, and NOR materials running counter to what you have read elsewhere, keep in mind that just one typical law firm getting paid by riverfront landowners, to deny public rights in one state, gets more income than NOR gets to defend public rights in the entire country. (The money situation is so lopsided that it seems frivolous to talk about NOR “link baiting” to ask people to join.) Lawyers get paid to make a case for their client, not to give the public an unbiased view of river law. Therefore it’s no surprise that most of what you read about river law denies public rights on the rivers that people typically use for raft, kayak, and canoe trips. Those materials build a case against public rights based on state supreme court decisions or federal agency regulations. (Even some of the things written by river advocacy organizations repeat those same claims.) However, the U.S. Supreme Court is the supreme law of the land, not state supreme courts or federal agencies. If you take a second look at those materials, you’ll find that they are missing a substantial discussion of the history of river uses and U.S. Supreme Court decisions—the very thing that _Public Rights on Rivers_ provides in detail. We’re not saying that the book is perfect—future editions will surely involve some changes and updates—but we are saying that it is well worth reading and supporting. – Eric Leaper.


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## craven_morhead (Feb 20, 2007)

Eric, I have said this before, but I am an attorney with a litigation background and would be happy to provide a critical review of your book from a third party perspective. I'm not real interested in paying for that privilege though.


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## richp (Feb 27, 2005)

Hi Eric,

You continue to assert that the Supreme Court rulings on river access are self-evident in their applicability and impact, and that various public agencies are operating improperly -- outside what you say is established law. 

If that's the case, why has no other major organization relied on your cases? Why has no litigation ever prevailed by using any of them? For that matter, why has no other major organization joined you in your crusade, and provided funding to take an offending agency to court, using principles that you say are so concretely embedded in law? 

You may be involved in a noble endeavor. You may have been crusading valiantly for decades against immense odds. You may be pursuing a useful public information campaign. 

But you also may have misjudged the Buzz as a vehicle for advancing your cause. Yes, it's irreverent and rowdy. But folks here are not uninformed or short on critical thinking skills. By not responding directly to a number of honestly-posed questions, and by not crisply (and in useful detail) explaining the tax status of your organization, you may have lost any momentum and credibility you initially had. 

I wish you well in your goal of amplifying public knowledge about river issues. But until you've recalibrated a bit, you may be limited in what you can achieve.

FWIW.

Rich Phillips


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## eric.leaper (Oct 7, 2013)

*Replies to the above:*

Lawyers interested in reviewing _Public Rights on Rivers_ can call NOR at 719.579.8759 to discuss that possibility. Regarding NOR tax status, we’ll announce here when it has been updated.

Regarding “crusading valiantly for decades,” NOR has published news articles about river issues in the past, but _Public Rights on Rivers_ is only two months old. People who are interested in understanding river law should read it. People who would rather let someone else figure out these matters don’t need to bother reading it. 

Regarding “why no litigation has ever prevailed” using the Supreme Court decisions cited in NOR materials, the litigation that prevailed was the Supreme Court decisions themselves. If you are referring to the Grand Canyon situation, to date there has not been any litigation citing those decisions or the legal principles discussed in _Public Rights on Rivers. _The Wilderness Public Rights Fund case in the 1970s, and the River Runners for Wilderness case in the 2000s, both claimed that the National Park Service has to either do an expensive study of public demand and adjust allocations accordingly, or convert to a system of no allocations. As I explained earlier, the law does not require either of those things, although it does require the Park Service to regularly release vacant commercial space to waiting noncommercial applicants. 

Regarding why no other organization has joined this “crusade,” the primary reason for believing river law as explained in _Public Rights on Rivers_ is because you can verify it for yourself. The facts and law are fully cited. Other organizations have indeed published brief materials about river law, but with few citations and numerous incorrect statements. If you compare those materials side by side with NOR materials, you can see for yourself which legal views are valid. There’s no rocket science involved. 

Regarding why no organization has “provided funding to take an offending agency to court,” the principles of river law do not need to be re-litigated river by river, although if you are referring to the Grand Canyon situation, noncommercial applicants do need to work through their Congressman’s local staff to reserve the space on the river to which they are lawfully entitled.

Regarding “recalibrating” NOR efforts to educate river users about river law, we are indeed looking for ways to do so more effectively. On the other hand, it is already clear that we can't reach everybody. Some river users are willing to read about these things and think for themselves, while others are waiting for “major organizations” and government agencies to tell them what their rights are. To a large degree, we can help the former, but not the latter. – Eric Leaper.


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## richp (Feb 27, 2005)

Hi Eric,

Your entire post above boils down to, "What I say is self-evidently true, and the truth should prevail, despite reality."

As I said earlier, the folks here on the Buzz are a bit more sophisticated than you apparently give them credit for. You're getting nowhere faster than you ever could possibly imagine.

FWIW.

Rich Phillips


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## eric.leaper (Oct 7, 2013)

*Clarification:*

No, I am not saying that NOR materials are self-evidently true, but rather that those river users who are interested in understanding their legal rights on rivers can compare_ Public Rights on Rivers _(which is very detailed and is supported by numerous citations) to whatever else is available on the subject, and draw their own conclusions. -- Eric Leaper.


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## richp (Feb 27, 2005)

Hi Eric,

Now you're back to a much more modest claim. Instead of (paraphasing) my stuff will assure a win in important cases, it's (paraphasing again) read my stuff and be better informed.

But it still gets back to the real world, where (in today's America) those asserted rights have to be vindicated in court. Just handing the ranger a copy of your book is not going to be enough. 

Which takes us right back to the start. River access cases are coming up all the time -- the CRMP litigation is just one of many. The cases you cite have been readily available to lawyers for years. If they provide such a clear path to legal victory, why haven't others relied on them?

Just asking...

Rich Phillips


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## eric.leaper (Oct 7, 2013)

*Reply to the above:*

We have been saying all along that _Public Rights on Rivers_ is something for river users to read and evaluate for themselves, side by side with whatever else they find on the subject.

Regarding your view that in the real world, public rights have to be vindicated in court, most litigation nationwide gets settled out of court. Past disputes about public rights on rivers have indeed been settled without a judge’s decision, using earlier versions of NOR materials among other things. You are correct that just handing a ranger a copy of _Public Rights on Rivers_ is not enough. Dialog at higher levels is necessary. – Eric Leaper.


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## richp (Feb 27, 2005)

Hi Eric,

Perhaps you could provide us with a detailed list of the cases in which your expert witness testimony and your legal theories (it's OK if they were "using earlier versions of NOR materials") have been the deciding factor in a court decision that increased private boater access. 

Actually, you could start with a CV that goes beyond the generalities on your web site. The kinds of details a lawyer would get into the record when they were putting you on the stand, in order to qualify you as an expert.

And as to the cases you've helped sway, I'm thinking about you providing something concrete that the lawyers here could dig into and analyze. Without having to join your organization or pay for your book, of course.

Just asking...

Once again, I want to emphasize that I'm not challenging you because of your views -- I fully support effective strategies to increase access in a responsible way. I'm simply trying to highlight something that surely is obvious to most folks who have stuck with this thread. You've been asked repeatedly for specific information and to provide this book to someone qualified to review it, and you've repeatedly ducked and dodged. And you keep pushing the book and your organization instead of responding to folks who are earnestly seeking information -- folks who likely would help you if they were convinced you were on the right track. None of your evasion and misdirection helps your cause one bit. 

Rich Phillips


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## RiverMamma (May 3, 2009)

Ok, so I didn't read the thread, I did read the OP though. It was elegant & makes me feel so incredibly grateful to know that you guys were all out there rooting for us! I am the trip leader of the very first trip to get turned away at that damn blockade the morning of Oct. 1st... I spent almost a week there in "The Dirt Eddy" trying to make something happen. Of course we did not get to put on, along with dozens of other trips. 

I do want to say though that as much as we ALL hate every one of those self absorbed, pretentious, childish, douche bags in Washington, I have nothing but the best things to say about NPS & the Lees Ferry rangers. First of all, the head River Ranger Brian Blume and the Deputy Superintendent Diane Chalfant drove 4 hours just to come address us and tell us that they would Try to make it right by us, but with everything shut down still they didn't know how. Second of all, when the park did re-open they did something far beyond what I would have imagined (I was expecting, like extra lottery points or something.) They let us PICK A DATE, any date between re-opening & 2016. They also reimbursed us all park fees. WOW. They Did do their best to make it right! 

I also want to say that I heard allot of flack towards rangers during the shutdown, and yeah, I might have been one of those Abbey's that would have happily lost my job to smuggle people on the water, but I also Love my job & can understand not wanting to loose it. These guys Love their jobs, they are Rangers because they love wild places & boating too & they love helping other people get on the water. They were essentially blackmailed during the shutdown, they were told to show up & do what was not a part of their job description, while not getting paid, or they would not have a job to come back to. Pretty f'd up, no? I spent allot of time hanging out with the rangers that week & got to know them really well, they don't deserve the slander! The reality of the situation is that our government is broken, and nothing is going to change until it collapses and is forced to re-invent it's self. As much as I would like to approach this problem from a localized place, it's problem is at the root, not the blossom... 

Ok, I'm done ranting. Thank you again to every one of you who wrote letters, made phone calls, sent e-mails, shared articles, held space for those of us getting hosed- sent energy in the right direction, any and all of it. Thank You. 

If anyone is interested, here is an article I wrote about it...


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## psu96 (May 9, 2006)

so back on topic...

Eric why are you dodging the question about providing your book to some of the lawyers on the buzz?


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## eric.leaper (Oct 7, 2013)

*Replies to the previous three:*

1. As I have said before, lawyers who would like to review _Public Rights on Rivers _can call 719.579.8759 to request it. (There is no dodging or evasion involved.)

2. Thank you, River Mamma, for the eye witness account. We are very grateful to the rangers who made the best of the unlawful river closure policy imposed on them during the “shutdown” by politicians and political appointees in Washington.

3. The cases I have worked on regarding river access were settled out of court. (Cases I have worked on in other areas of river law were decided by a judge.) The idea that current river access disputes need to be decided by a judge is common among river users, but misguided. Most river access disputes can and should be settled out of court. _Public Rights on Rivers_ gives river users a key tool for doing so, and explains how to do so. That’s what we are encouraging river users to do, nationwide. 

4. Regarding whether _Public Rights on Rivers_ is “on the right track,” we’ll let you know as “peer review” of some sort becomes available. Meanwhile, the book is available in its present form. It lists federal decisions regarding river law in chronological order and explains what the dispute was and what the court concluded (which can be readily verified online.) It contains very little personal opinion, so in actual practice, whether it is “on the right track” is not much of an issue. It’s a key resource for river users in any event. – Eric Leaper.


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