# Water rights brochure?



## tanderson (Mar 26, 2010)

I remember there was a brochure that was handy to keep on the boat that stated the various right rights we have. Anybody remember this?


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## kayakfreakus (Mar 3, 2006)

He was not received very well around here, makes some assumptions that are not really the best

River Law Poster-Handouts - National Organization for Rivers


Lots of posts by NationalRivers:

http://www.mountainbuzz.com/forums/f14/river-users-should-know-their-rights-55893.html


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## Andy H. (Oct 13, 2003)

> EDIT - kayakfreakus found the actual threads and info while I was writing what's below. And a quick glance at some of the posts brings it all back now. I think if our right to float were so clear cut as NOR states, we wouldn't be talking about this stuff.


I'll assume you mean boaters' "right to float" as opposed to water rights (stream diversions, water allocation, etc.). Our right to float varies greatly by state. A few years ago there was a guy that compiled a bunch of "highly optimistic" legal arguments, complete with case citations, that greatly over stated boaters' rights over property owners' rights and the legality of river management (permitting) systems. He'd written a pamphlet of untested legal theory (he isn't an attorney) that ignored a lot of the legal nuance and precedent that gives us the patchwork of riparian trespass laws we have across the country. It's all stuff that sounds great to us boaters and that we all really wish were true, but is no more than half-baked legal fantasy.

If you're interested in what you can legally do in your state, AW has actual attorneys who are working on these issues daily and have compiled info about all the different states. Here's AW's Navigability Toolbox with state-by-state information.

As sweet as it all sounds, please don't drink the NOR Kool-Aid. 

-AH


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## Tom Martin (Dec 5, 2004)

Hi Andy, Eric Leeper is the guy you seem unable to name. Leeper and his mentor, John Garren, have done more over the last four decades to increase do-it-yourself river access than anyone i know. If it weren't for folks like Garren and Leeper, DIY folks in Grand Canyon would have access to just 8% of river use. 

For more information about the handouts, see this link:
River Law Poster-Handouts - National Organization for Rivers

Attacking the messenger is a great way to avoid the real issue of commercialization of our western rivers. I sure wonder just WHO is sellin Kool Aide here sir...


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## k2andcannoli (Feb 28, 2012)

I keep a few copies in my repair kit, just in case I get some stupid landowner on my case. It's a useful tool even if it is a bit overstated. I don't care if I'm truthful to a land owner about my floating rights, I just want them to believe they have less rights to their waterway than they originally thought.


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## Andy H. (Oct 13, 2003)

Tom Martin said:


> Attacking the messenger is a great way to avoid the real issue of commercialization of our western rivers.


Tom,

I don't know where you see commercialization of our rivers in the statements above, as the topic at hand is river access and riparian trespass. Generally, my understanding is that outfitters and private boaters have a common interest in expanding riparian access rights. 

Back to the topic at hand: unfortunately when the messenger is providing nonsense legal arguments that, while they may sound appealing and "official" to the lay public, are inappropriate and useless for actual advancement of the recreational access to rivers, then the messenger is actually doing the community a disservice. Leaper has no legal training yet he conjures up legal theory that can be picked apart by professionals in a matter of minutes. He has never provided any legal "peer review" of his pamphlets despite requests and subsequent promises to do so over the years. Then there's the matter of his questionable tax exempt status and his use of a legally defunct organization for his activities. 

I've said before that I would love it if Leaper's arguments were as simple and as straightforward as he promises, and also that we have the same goal. However, as I have also said in the thread linked above:



> Even if NOR decided to foot the bill for a test case, one thing to consider is that if the case fails because the architects tried to use a half-baked legal argument, that failure can actually set back the general cause of improving access when the judge nails down the decision so it will be more likely to survive any appeal. I'm not sure but I think Emmert may have worked like this. I've also heard a recent lawsuit challenging the Grand Canyon Management Plan was rebuffed so badly in court and on subsequent appeal that the decision may actually diminish the ability of citizens groups to challenge government agency management decisions in the future.
> 
> The analogy I've used before is that it's like NOR wants to marshal the private boating community to charge straight at our adversaries with weapons he's supplying. NOR is offering us sticks and rocks, and telling us our adversary has nerf balls and rubber dart guns. But in actuality, the adversary has 50-caliber machine guns and Howitzers. Would you follow NOR in that charge?
> 
> ...


If the message were valid, NOR would be welcomed with open arms. However he's only being a counterproductive distraction by spreading his bullshit legal theories to a hopeful constituency.

For anyone that wants schooling on the arguments for and against the case NOR presents, you may review vast amounts of back and forth consisting of 40 posts from December 2013 here and 60 posts from December 2014 here.

If, after reading all that, someone has a new and *valid* approach to contribute that will advance boaters' river access rights, then you will find a welcome audience here.

In the meantime, please refer to the MB Community Rules, particularly:

"Do not post libelous remarks or* directly misleading information*."

Thanks,

-AH


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## BrianK (Feb 3, 2005)

AW's summaries of the various state laws on water access are accurate depictions of how courts have actually ruled on these issues. 

NOR's arguments are cherry picked cases representing the best possible picture for river access from the point of view of floaters. Basically NOR presents the argument one could make in court. NOR's theories could win the day, but it's very far from a settled area of law. 

You can agree with NOR's argument (I personally do), but realize that it's probably not going to be a successful argument in practice. The problem is with the message - not the messenger. 

Also this is a landowner v. floater issue. Not a commercial v. private floater issue. Commercial boaters have run into the same issues as private boaters.

These are complicated issues. It would be great if NOR is eventually found to be right, but it doesn't do boaters any good to ignore the problems with NOR's arguments.


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## Andy H. (Oct 13, 2003)

Thanks for weighing in, Brian. I think one of the main flaws with NOR's reasoning is that even while the Federal cases they (he) cite sound very favorable to boaters, the State laws trump Federal for this category of law. So in Colorado, one could point to the Federal case but the landowner's attorney would laugh and point out that Emmert is the settled precedent here.

-AH


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