Environment,    Natural Resources Nightmare,    News

Want to Lose Your Right to Wade the Upper Sacramento and McCloud Rivers? Then Do Nothing

By Tom Chandler 10/5/2007

Fly fishing's supposed to be a gentle sport, where you revel in the solitude of nature, telling life's everyday hassles they can kiss your ass while you're on the river.

Sadly, you might not have much access to that river
if the Siskiyou County Board of Supervisors's proposed Natural Resources Plannbsp;declares the Upper Sacramento, McCloud, Shasta and Scott Rivers as "Non-Navigable."

That means you'll have no right to wade or fish those rivers between the high water marks -- rights you've enjoyed (until now).
(The adjacent landowner owns the streambed on non-navigable rivers).

uppersacoverhead
Will you lose the right to wade the Upper Sacramento and McCloud Rivers?

Of course, one of the tests of "navigability" is whether the waterway has been used for commerce in the past, and the Upper Sacramento has definitely been used for commerce.

In other words, the Sisikiyou County Board of Supervisors wants to limit your legal right to access the Upper Sacramento between the high water marks.

Wow. Stream access issues finally come home to the Trout Underground.

Feeling gentle and relaxed? I'm not. I'm pissed.

The Cuckoo's Nest

Politics up here are byzantine, and while the south end of the county is where all the growth is occurring -- especially in sustainablenbsp;industries -- the power rests up north. Controlled largely bynbsp;ranchers, agriculture, timber, mining interests, etc, the concept is they're willing to manage natural resources for the good of those few constituencies while the rest of us -- including fly fishermen -- can basically kiss their ass.

If you think that's an overreaction, then read these selected paragraphs from the draft version of the County's Proposed Natural Resources Plan:

  • Siskiyou County opposes any additional designations of Wild and Scenic Rivers in the County;
  • All rivers in Siskiyou County with the exception of the Klamath River, are recognized as non-navigable streams, with bed and banks owned as private property by adjacent landowners. The Klamath River has been declared as ?navigable,? however, private property rights in mineral claims in the bed and banks are recognized;

They also want to classify in-stream suction dredge mining as an entirely "benign" activity, and get a load of these gifts to cattle ranchers:

  • Current grazing allotments shall be continued and principally managed to produce forage to support maximum carrying capacity by domestic livestock;
  • Traditional use of grazing allotments for livestock grazing will take precedence over other competing uses;

And if you think "competing uses" includes fisheries, you're right.

There is nothing good for fishermen or the environment in this crazy document, which is bascially an anti-environmental manifesto from the early 90's "Wise Use" movement -- one filled with gifts to extractive industries (mining & timber), cattle interests, agriculture, etc.

(Can anyone explain why the rights of suction dredge miners are so carefully protected when fishermen receive no significant mention?)

It's a divisive screed, and even the timber guys think it's too restrictive. It also ignores all the progress that's been made in recent years by ranchers and environmental groups working together.

Finally, it's attempting to control things which this county has absolutely no jurisdiction over -- a state of affairs which guarantees gridlock and lawsuits.

Sound good yet? No, not to me either.

Protect Public Access on the Upper Sac and McCloud

Contact the County Supervisors (e-mail or call -- contact information below) and let them know you don't support the Environmental Resources Plan, and that if enacted, it will harm the sustainable tourist economy in Siskiyou County.

The first two Supervisors actually sit on the committee (Armstrong is driving this policy), and if you only contact two people, they're the two. (My advice? Send e-mails to everyone, but call Kobseff and Armstrong.)

Michael Kobseff
mkobseff@co.siskiyou.ca.us
(530) 918-9128

Marcia Armstrong
marmstrong@co.siskiyou.ca.us
(530) 468-2824

LaVada Erickson (she's on our side, but isolated politically)
erickson5031@sbcglobal.net
(530) 926-1285

Jim Cook (McCloud representative -- let him know how much the town stands to lose)
jimcook@snowcrest.net
(530) 459-0459

Bill Overman
bandm@nctv.com
(530) 842-5389

I know you guys get a dozen e-mails a day asking you to take action, but for anyone who fishes the Upper Sacramento, McCloud, Scott, Shasta Rivers, this one's worth a few minutes.

Even if the "non-navigable" designation is thrown out, the other provisions are ridiculous, wholly unbalanced, and willnbsp;ultimately damage our fisheries.

This is only the tip of this very messy, messy thing, with lots more to come. See you in the political arena, Tom Chandler.

siskiyou county, stream access, upper sac, upper sacramento river, mccloud river

AuthorPicture

Tom Chandler

As the author of the decade leading fly fishing blog Trout Underground, Tom believes that fishing is not about measuring the experience but instead of about having fun. As a staunch environmentalist, he brings to the Yobi Community thought leadership on environmental and access issues facing us today.

79 comments
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[...] political set, where crazy has broken out once again (longtime Undergrounders will remember the last time the Siskiyou County Board of Supes tried to get all medieval on your public access rights, and it appears they#8217;re headed that way [...]
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Mr Chandler, I do not know your legal background, but I and several attorney's I have hired have done extensive research on the high water mark issue in California. The unfortunate truth is the local jurisdiction determines the trespass laws when it comes to high water mark. The defendant would be responsible for proving that the river was navigable and that he stayed below the high water mark. That ... more alone is a very difficult to prove. Just what is the high water mark on any river requires a considerable effort in showing the history of the flows and surveying the property. Who is going to spend tens of thousands of dollars for a survey in order to prove a judge was wrong. I have been involved in thousands of lawsuits over the last 40 years and know something of appeals as I have been through hundreds. The burden of presenting a preponderance of evidence that the hearing judge misinterpreted the law is upon the appealing party. Judges like doctors give the benefit of any question to the judge that heard the case. Overturning a decision is pretty rare. In the case of high water mark there are differing pinions all over the state. The most often used opinion is that from the Jan Stevens retired Ca Attorney General "Public Trust Document" Unfortunately, this is an opinion that was made after Mr Steven retired and has no legal standing. The title is misleading and was added after it was written for the purpose editorial purpose. There are thousands if not millions of opinions on what constituent the high water mark throughout the state and the country. Unless someone is going to take the issue to the US Supreme Court it will most likely be decided locally. In California alone there are thousands of local decisions that conflict with each other. So yes, the determination of trespass and high water mark are local decisions. The biggest obstacle in this matter who be showing how you got to the water without trespassing and staying below the high water mark at all times. I have fished many rivers and it is just about impossible to stay below the high water mark at all times. It is just too easy to step out of the river to go around a deep pocket or large obstruction.
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Thomas: I disagree on several points. The local judge doesn't get to reinterpret the law, and overruling incorrect decisions is actually the job of appeal judges. It's possible not all dredging is bad for a fishery, but it's also true that most dredging isn't very good, and done at the wrong time of year, it can be extremely damaging. It relocates benthics downstream; integrates toxic heavy metals ... more from the bottom back into the water flow, and can seriously damage spawning redds (of all species), decimate fry populations, etc. And while private property should be respected, the point of this battle was that the public's legal right to access rivers wasn't being respected, and yes, there is still a great deal of public access being improperly denied on the Scott and Shasta Rivers.
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While the federal Government is the determining body for whether a river is navigable it's really local jurisdiction who determines the issue for the most part. If a county judge determines you are trespassing, the cost of trying to overturn the decision escalates dramatically and not worth fighting because appealing judges do not like overruling other judges without clear evidence of misinterpretation. ... more Most people think that the high water mark is the highest level that the water has risen. In actuality it is the normal high water flow, not including flood or storm related runoff. Many streams have charts of what is the normal flow so it's pretty easy to determine the high water mark by looking at the chart. Throw out the storms and unusually high peak flows and that is what the legal high water mark is determined to be by the state of California. For the most part people trespass when fishing because it's pretty hard to get to or stay in the river when fishing a stretch. There are also exceptions to the high water mark on navigable rivers. The two most prominent are Mexican Land Grants and Federally Deeded Mining Claims. Property that was a Federally Deeded mining claims in the mid 1800, or are part of the original Mexican Land Grants parcels are not subject to the high water mark determination. Many of these deeds state that while the water is passing through the property it is owned by the land owner. When it leaves the private property ownership goes back to the state. On the dredging issue, not all dredging is bad for the fishery. If done properly it actually can improve the spawning areas for fish to lay eggs. If large holes are left that trap fish that is against the law and certainly something that should be reported. There is a sizable fine for do this. lastly, while it would be great to have all rivers and stream open to the public, private property should be respected. If you have ever gone to fish public areas where garbage is spewed around the rivers edge you may understand why private land owners do not want people coming on to their property and leaving their garbage for them to clean up.
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Reels: Ultimately, the Land Use Policy was killed. Read about it here.
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This is truly a step backwards for environmental protection. Any type of dredging activity is destructive to the environment. This is simply a fact. it seems to me that the local politicians were easily convinced about the necessity of their decision. That is very unfortunate. I hope they did not actually follow through with the declarations you have outlined here.
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[...] October 21, 2007 by Pete McDonald Tom Chandler at TU is conducting a river rights campaign to save some of his local fishing waters. [...]
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Siskiyou County Supervisors November 11, 2007 Subject: Draft Environmental Plan: Statement of Policies on Natural Resources I am a writer and business consultant with a home on a hundred foot riverfront lot in Dunsmuir, Butterfly Avenue. I am very opposed to many of the ideas in your recent "Statement of Policies on Natural Resources." First, defining the County rivers (except for the Klamath) as ... more "non-navigable" destroys fishermen's, kayakers', rafters', and inner tubers' access. In the United States with a great history of public ownership of parks, rivers, lakes and streams, this designation would deny these citizens' right to recreate and enjoy many of our beautiful northern California rivers. It is fun and exciting to watch kids tube down and watch fishermen catch a trout in the river behind our home. If this policy were to be adopted, then, like much of Colorado, the corporate, the wealthy, and the private clubs would own and control huge amounts of river access for the benefit of the few. Second, the policy supports mining which is environmentally destructive, an eyesore. Why are the rights of suction dredge miners so carefully protected when fishermen and rafters receive no support? In-stream suction dredge mining, an entirely “benign” activity? Ridiculous. This advocates mining monetary profit over ecology and environmental concerns. Is that your mission? It certainly does not represent the concept of stewardship. Reviewing the policy statement, I am wondering what motivates some of the commissioners to support such a disaster. Further, limiting fishing/rafting/kayaking access decreases tourist dollars to an area like Dunsmuir that drastically needs them. The lawsuits this policy will generate would have a negative impact on county officials' resources, and a negative impact on property values as riverfront will increase in value but the other town properties will correspondingly decrease with the limiting of recreational opportunity. As a riverfront property owner this policy would benefit me personally but would harm the community as a whole. It is your responsibility to protect the public against self-serving business interests and protect everyone's property values. The proposed policy would be detrimental to the Dunsmuir, McCloud and Mt. Shasta economies. So, whom does this policy serve? Mining Companys, big agriculture, ranchers, and the timber industry. Hmmm. I urge you to reconsider your responsibility to the majority of people in this county and remove the "non-navigable" language from the plan or scrap the plan altogether. Sincerely, Charlie Price 6027 Butterfly, Dunsmuir CA
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[...] looming drought coupled with enough short sightedness to assure us of less fish next year; add the Trout Underground#8217;s access issue for the Upper Sacramento and McCloud River, and both fish and fishermen are being squeezed from all [...]
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[...] prior posts (read the first here, most recent here),nbsp;the Underground#8217;s Unpaid Legal Braintrustnbsp;pointed out the [...]
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Well, another thing to think about: When I was a child, my Father and Grandfather were consummate Klamath Steelhead experts. They fished the river from opening week through the season, and as my Grandfather was a SP Surveyor and Dad a Phone man, they had keys to gates everywhere, and fished the entire river. Neither ever fished the Klamath in those days however, without a Sidearm. There were many ... more confrontations with my Indian Brothers about the rights of White People to fish or even Be There, and the sidearm usually carried more weight than rocks and bravado. Will we see a return to the "good ole' days" if this passes? There are fishermen who deem any body of water theirs by right of intent, and property owners who fence every possible corner of their holdings. Neither is right, but the confrontations will escalate and become violent if this passes. My 2ç worth.
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Tom, I put a link to this article on "The Contemplative Angler". I hope you don't mind. Warmest regards, Reed
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Tim - I just updated my blog with a call for my readers (I'm not as popular as you, but I do get around 9,000 visits a month) to band together to help. Here in Virginia, something similar happened with the King's Grant issue on the great Jackson River. As a result of the King's Grant to the landowners in the 1600's, they own the fish in the river and the birds in the sky - NO access for anyone else. ... more This is similar. Hope we can beat this back. Here's a link to the post: http://www.switchfisher.com/articles/Urgent-KeeptheJacksonfrom.html
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Here's what I sent to each of these guys: I live in Virginia and visit the Redding / Dunsmuir area two or three times a year to fly fish for trout in your great rivers and streams. I was shocked to read about the current initiative under consideration that would designate many of your great rivers as non-navigable. If that happens, I'll go to Montana instead. I imagine you get a lot of tourist traffic ... more headed to Northern California that would go elsewhere - probably a bigger impact on your economy if you consider the folks that drive up to the Mt Shasta area from other locations in California. I don't know how much your region depends on sportsmen for economic health - but passing this resolution will certainly cut off a chunk of the money that flows into the economy and the associated taxes from folks like me. In my case, you lose the hotel, guide and meals revenue. In addition, I always stop at the local fly shops and purchase the latest top producing lures and other equipment. That will be gone as well. I just do not see an upside to this decision... and urge you to vote it down. thanks, Steve Moore Woodbridge, VA Trout and Bass Blog: http://www.switchfisher.com
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CLOSE THE RIVERS---dredge for minerals, and log the hell out the forest--no people on the river, nobody sees a thing, then no harm,right? add to this no water due to dewatering of the river. might as well be the mojave desert.....we don't live here to stay in our homes and be hermits. we are here to experience the outdoors. we give in here and who knows were they will stop(they won't stop anyways)------wasn't ... more the scott used for fur trading to connect with the mighty klamath-COMMERCE--this is just stupid, I heard that local farmers int scott vally are mad due to seeing surveyours/fisherman snooping around "private property"---just hearsay
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There's a lot to dislike in this "Natural Resources Plan" - not just the navigability issue I've focused on here. Protection for suction dredge mining?? Provisos against the reintroduction of wolves? It's interesting that while the supervisors are trying to kill every vestige of a sustainable, fisheries-based economy, others are spending their time figuring out that salmon and steelhead caught by ... more sport anglers on the Klamath (the Supervisors oppose the Klamath dam removals too) are worth about $200 each to the local economy -- and that those "resources" don't ravage the landscape, overgraze, overcut or otherwise mutilate everything in sight. Howl away, Undergrounders. There's still much to do.
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The HOWL echos from the Upper Columbia.
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HOOOOOOWWWWLLLL !!!! One more comment... I am literally the last person alive in California to have seen a native Timber wolf, up by Mumbo Lake in the Siskiyous. It was in 1958, I was 5. We were car camping, my grandpa and dad were "rubber boating" the lake and Mom, Grandma and I were sitting eating lunch on the tailgate of our Station Wagon... Our dog, "Tuffy" who was 1/2 coyote, suddenly stood up, ... more slunk under the car and commenced whining... we looked up and there was the most beautiful wolf in spring coat, kinda scruffy, but fully chest high and just magnificent. He had entered the clearing and was sniffing our roast beef sandwiches. He stood maybe 40 feet from us totally at ease, for maybe 5 minutes, just watching and sniffing. Dad and Grandpa had now seen him too and were paddling like hell for the shore to get a gun... unnecessary as he just turned and slowly walked back into the forest. So the part about not re-introducing Wolves or Grizzlies back into the ecosystem just PISSES ME OFF GRANDLY. The bears couldn't survive anyway as they needed the SALMON to get good and fat, just like the INDIANS which are also now gone as hell. Let's see... First the Salmon were killed by the Miners, then the Bears all killed by trappers and hunters, the Indians anihilated almost completely by the miners and trappers, then Shasta Dam and Red Bluff Dam literally presenting an insurmountable obstacle to the anadromous waves of Life and PROTEIN coming up the river each fall, rendering those populations effectively like the Indians, all but gone. (Unless you count Casinos and/or Farmed Salmon) ... Now they simply want the whole bloody rest of it. That's all, What's the big deal? What do we expect from the Sons and Daughters of Miners? In some ways, we are like the Indians, and we'd damn well better wise up like the few remaining tribes have done or we'll suffer the same fate as the rest of them, and be fishing in paid ponds owned by the FLY SHOP instead of walking freely up freestone western creeks and rivers, imagining watching eyes and canine howls from the forest in the dusk. Bring back the Bears AND Wolves, and may they raid the MacMansions being built all over Mt. Shasta and that 1st. St. Debacle and drive the invaders OUT !! HOWWWWLLLLLL !
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Oh baby. Get em boys. "Flush em out -- git em runnin".
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Here is what I sent them: I have been monitoring the ongoing efforts by the BOS to impliment the “Statement of Policies on Natural Resources” plan and have some comments on it and it's draft. My Grandfather, Ed Van Wormer, was the assistant engineer who surveyed and planned much of the railroad from Redding North when Shasta lake was installed. As well he was influential in the building and surveying ... more and engeneering of Shasta Dam and Trinity Lake. Our family has been involved in Dunsmuir and Mt. Shasta life for over a hundred years. My great great grandfather, Sam Fisk, was the first sherrif of Siskiyou County when it was created. I have read the Statement of Policies on Natural Resources and find it appaling. It trashes the rights of the general citizen of Siskiyou County to enjoy and steward the wonderful Rivers placed at our feet, not by some corporation, but by GOD for the enjoyment of all. The introduction of the “Dredge Mining” allowance is beyond attrocious. This can ONLY Be sponsored secretly by some major mining interest ( or cattle interest perhaps ) and those relationships will be made public eventually. I will attend the Meeting on November 6th with the following questions: 1. Considering that Dunsmuir and McCloud really only exist now because of the Tourist industry, most notably fishing, How will those communities survive when their ONLY natural resource is no longer accessable because of a rash of new fences and barracades on the rivers, not to speak of the pollution caused by DREDGE MINING? 2. Considering that WATER is Siskiyou County's only real resource, why would you be privatizing and thus risking it's quality, accesssability and free nature of the resource to residents? Did Coca Cola buy you? Pepsi? 3. Will you all open your BOS pocketbooks and encourage a full accounting of your personal finance both before and after this measure, to make bloody sure none of you are on the take from a major exploitive interest? (Because that's sure what it seems like here) 4. Will you subsidize Dunsmir and McCloud when their one and only marketable resource is gone, the fishermen stop coming and the money they spend at local fly shops, for food and lodging disappears? ( I spend about $400 a month to come to Dunsmuir to fish and enjoy the River ) Sincerely I hope this errant, misdirected plan falls flat on it's face. The environmental impact alone could destroy the beauty and purity of the area not to mention causing incalculable health threats to the public and setting us back dozens of years environmentally. If you want a PERFECT example of what private water rights will yield simply drive to upper Soda road in Dunsmuir, to the fountain which watered and delighted passers by for hundreds, hell THOUSANDS of years, now bull dozed and polluted with garbage by the NATIVE BORN DUNSMUIR Owner. This will become the norm if your plan becomes law. It's like George Bush landed in Siskiyou County and has been given the reigns of the water rights! MY God what myopia.
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[...] you follow the Underground, you know we#8217;re smack in the middle of a battle to keep the Siskiyou County Board of Supervisors (BOS) from approving a #8220;Natural Resources [...]
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I promise, no more posts from me on this offpissing topic, at least until the call for contributors or snipers is issued. But I wonder if those who are fortunate enough to own riverfront or near-river property, such as the rock-thrower in Dunsmuir, realize that they would have no right to fish any section of the Upper Sac other than that which Marcia would regard as their property. There are lots ... more of spots that border the river but have little, if any, truly fishable waters. And there are lots of near-river properties which, unless a neighborhood agreement exists, would confer absolutely no right to fish. I'm not buying a double-wide (sorry, "manufactured home") in Dunsmuir until the good folk of the county rid themselves of these supervisors.
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Hey guys -- I'm making an update post soon, and writing an e-mail to all the supervisors laying out everything we've uncovered (and cc'ing a lot of interested organizations). As a quick update, I'll relate what I've been told. First Marcia Armstrong -- who is leading the charge -- isn't budging. She's taking it very personally, but then again, so are the fishermen who stand to lose access. Michael ... more Kobseff -- who I identified as a potential swing vote -- is hardening his position, and my sources suggest he's not going to change his stance. As far as our end of the fight, the law is clearly on our side, and no amount of thinly veiled threats about the Upper Sac and McCloud will change that. The local opposition is picking up speed, and wiht the topic set to be discussed at the November 6 meeting, I expect to be there. Should be lively. All your good work will certainly be put to use.
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Alex, I don't know the source of your comment above, but it is dangerously flawed in many of its assertions. The Public Trust Doctrine, which is the basis for most of our access to navigable waters, does not, for example, include widespread use of the banks. Camping is definitely not a public right. Whether the beds and banks are private or state owned differs by state; what is common is the right ... more of navigation and fishing (but not necessarily wading). CA owns the beds and banks (to the highwater mark) of navigable streams. These are administered by the CA State Land Commission and you should read their policy statement and detect the disjoint from yours. Your statement: "First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land." is particularly dangerous as it is completely false in many states (e.g., PA). Non-navigable rivers in many states can be private and historically private clubs have bought and managed many miles of river, excluding, legally, the public. Your third point is also false in many particulars. Most states do not hold that the Public Trust Doctrine provides more than the right to "fish, fowl, and navigate" and, as previously mentioned, in those states where the beds of navigable rivers are privately owned, e.g., Maine, the question of wading has not yet been determined by law. In Maine you may walk the banks (which are all private except where the surrounding property is public) to portage or drive logs, but only for those purposes. What many states HAVE decided regarding recreation is that recreational navigation (e.g., kayaking) is a valid test for navigability rather than the more stringent test of commercial use. You might wish to look at the great variability the states show in interpretation of the public's rights to navigable water - the American Whitewater page ( http://www.americanwhitewater.org/content/Wiki/access:start ) is an excellent starting point. Best regards, Reed
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The U.S. Supreme Court has held that the beds and banks of rivers and streams that are navigable for title purposes are owned by the states. (“Title” means ownership.) The court has held that when the original thirteen states took sovereignty of their land from the British after the American Revolution, they became the owners of the land underlying waters that were navigable for title purposes. ... more The states that later entered the union also own the land under such waters, under the Equal Footing Doctrine. The beds and banks of these rivers and streams are a strip of public land, to be conserved for public benefit, even where the river or stream passes through private land. This strip of land is often called the “submerged and submersible land,” as opposed to the “upland.” Pollard v. Hagan, 44 U.S. (3 How.) 212, 11 L.ed 565 (1845). Economy Light amp; Power Co. v. United States, 256 U.S. 113, 65 L.ed 847 (1921). Sawczyk v. U.S. Coast Guard, 499 F.Supp. 1034 (W.D.N.Y. 1980). Montana v. United States, 450 U.S. 544, 452 U.S. 911 (1981). State of Oregon v. Riverfront Protective Association, 672 F.2d 792 (9th Cir. 1982). Alaska v. Ahtna, Inc., 891 F.2d 1401, (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990). Who determines which rivers are navigable? As the U.S. Supreme Court has repeatedly said, “rivers that are navigable in fact are navigable in law.” If the river is physically navigable, for whatever purpose is in question, it is legally navigable. No official designation is necessary. Note that navigability for title purposes is a matter of federal law, even though it determines state ownership. State governments can make factual determinations of title navigability based on the weight of the evidence, and they can affirm that various rivers are navigable. But where they have not yet done so, the rivers that are “navigable in fact” are still “navigable in law,” and are still public. (They are not private until the state government gets around to designating them as public.) Also, note that state courts and legislatures cannot establish their own more restrictive standards of navigability; they must abide by the national standards. If they say a particular river is not navigable for title purposes, but the river is physically navigable in fact, their opinion is not determinative. Brewer-Elliott Oil and Gas Company v. United States, 260 U.S. 77, 43 S.Ct. 60, L.Ed 140 (1922). United States v. Utah, 283 U.S. 64, 75 L.Ed. 844 (1931). Utah v. United States, 403 U.S. 9, 29 L.Ed.2d 279 (1971). State v. Corvallis Sand and Gravel Co., 429 U.S. 363, 50 L.ed 2d 550 (1977). So what are the public's rights to fish and boat on various rivers? As explained above, there are three levels of public rights to rivers and streams: First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land. Second, on streams that are temporarily physically navigable by small craft, (even if they are not navigable for title purposes,) the public has the right to navigate, and to scout and portage around rapids, falls, or other obstacles, in the manner least intrusive to private land. Third, on rivers and streams that are, in fact, navigable for title purposes, (because they fit the description given earlier, with or without official designation,) the beds and banks are public land, up to the ordinary high water line. Courts have held that the public can engage in other responsible recreation (in addition to fishing and boating) within this zone, such as picnics, camping, walking, resting, reading, photography, and painting. When walking along the river, the public can walk above the high water line where necessary to get around obstacles, in the manner least intrusive to private land.
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More to come on this one. The "takings" language is sure to cause a coronary among the Wise Use crowd. I have more news coming soon (dialup is cramping my style).
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Tom, I have not noticed anything in the press about this "taking" of Public Trust Rights. Aren't the paddlers concerned? Aren't the local residents concerned that access to their rivers will be given over to a few landowners, if Ms. Armstrong has her way? Ms. Armstrong is a great advocate of the irrigators. The irrigators use powerful pesticides and herbicides which can, and do, leach into the rivers; ... more requiring taxpayers to pay for expensive cleanup - if the rivers are deemed non-navigable. As Ms. Armstrong knows, if those same rivers are navigable, they, and their tribs, are covered by the CWA - and her irrigator friends would have to clean up their act. Tom, please keep us informed of developments. Loss of any Public Trust rights is a loss to all Americans. Thanks.
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chap: Ms. Armstrong's back to making threats, hoping we'll give up the Scott and Shasta to "save" the Sac and McCloud. No dice. The Scott and Shasta are navigable under the California state standard (they play a part in the local economy in that the water in them is often diverted, leaving them largely dewatered). What's really at work here is that Ms. Armstrong doesn't want a constituency to make ... more noise when the Scott or Shasta are dewatered by diversions. As for her assertion that only the Klamath is navigable under current law, well, see the note from Overmywaders above; she's depending on a legal cite that's since been shot down by the US Supreme court (and hoping you won't notice).
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I live in Sacramento and sent an email to all the supervisors asking them to not let the Upper Sac and McCloud have their wading access restricted. Supervisor Armstrong replied with the following: "Please note that the Klamath River is the only designated navigable river in Siskiyou County under current California law. Inclusion in the policies document was to validate the non-navigability of the ... more Scott and Shasta Rivers, upon which our agricultural industry depends. (Agriculture is our primary economy.) I think it would have been workable just to enumerate the status of the Klamath, Scott and Shasta and remain moot on the rest. Unfortunately, several local fishing guides insist that the Scott and Shasta are navigable in law and open to free access. This causes trespass, biosecurity and other concerns on these rivers. I welcome any help in getting consensus on the non-navigability of the Scott and Shasta so we won't have to go further down the road of absolutism on the Upper Sacto and McCloud." FYI -- I am unaware of the Scott and Shasta Rivers and what part they play in the local agricultural economy.
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10/14/07 I have several more thoughts on your war with the Board of Supervisors. If you are going to win, you must understand you are in a war. The best way to win a war is just like what is going on in now. Use hit and run tactics that the Board won't expect. For example, get a list of their meetings on this resolution. Then pack the meeting with as many fly fisherman as you can find to go. Try and ... more get a press release done at www.prweb.com for release to relevant newspapers. Try to get the larger fly fishing magazines to pick up some of the fight too. Find out the names of the corporations pushing the development and/or supporting this resolution. Examine your Secretary of State's records to see if any of your County Board sits on the Board of Directors of those corporations. Find out which corporations or organizations are doing the major construction or subcontracting for the developers. Do the Secretary of State exam to see if they are owned by relatives or spouses of your Board of Supervisors members. Follow the money and you will likely find out some interesting things about your Board members. Try and get local tv or newspapers interested in an illegal land grab by monied interests. Remember controversy sells. Write some newspaper articles about how many jobs will be lost, how many tourist dollars, etc. Remember they are not playing by Marquis of Queensbury rules and you do not have to either. Just legal. Marshall, Editor www.fly-fishing-colorado.com
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10/14/07 Tom, I live in Colorado but this kind of stupid thinking by dumb ass greedy politicians is not confined to California. So I sent off an email to the top two people. A polite one but mentioned recall elections which may be a possiblity for you to consider. Also I sent this link http://www.outdoorindustryfoundation.org/pdf/ResearchRecreationEconomy.pdf Take good look at it and see about figuring ... more out how much your county stands to loose in guide jobs, tourist dollars, lodging dollars, gear sales and so on. Just as the dollar speaks for them, it also speaks for us fly fishermen. Good Luck on your fight. I will post about it on my blog. Marshall Estes, Editor www.fly-fishing-colorado.com
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Tom, You will notice Ms. Armstrong has not given a motive for her attempt to privatize public waters. without a stated motive, she invites speculation. Were I living in the area, I would write a letter to the editor of each of the local papers. It ould include the following notes: Some have recently asserted that Ms. Armstrong's interest in capturing public waters (navigable rivers) and turning them ... more over to private hands is merely to serve the financial interests of a few of her constituents (landowners) at the expense of the general public. I think that may be unfair to Ms. Armstrong. However, since she has not provided a motive for her legal maneuvering, we are forced to speculate. Let us suppose that Ms. Armstrong is desirous of shielding one or more of her constituents from the Federal Clean Water Act. The CWA is applicable to public (navigable) rivers - and their non-navigable tributaries and adjacent wetlands. If some landowners in the county are dumping/using toxic chemicals and those are leaching/flowing into one of the rivers, they would be liable under the CWA. Oh, it might be something less sinister, some farmer has an animal waste lagoon that habitually overflows, pouring thousands of gallons of e-coli laden sewage into a stream which flows into one of the public (navigable) rivers where the children swim, wade, and fish. Certainly, if that is the case Ms. Armstrong is serving the general public by denying them access to such a dangerous situation. In the above speculative scenario, Ms. Armstrong is using a brilliant administrative approach - she is not identifying one specific polluter by calling just one stream/watercourse non-navigable, she has hidden the polluter(s) by casting her cloak over all the major landowners of the county. Of course, the above is mere speculation." Best regards, Reed PS - see the Russian River Case at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C7782E9891760EFF882571C6004BD4EB/$file/0415442.pdf?openelement for a CA example of CWA. Note, the judge states "It is undisputed that the Russian River is a navigable water of the United States." Marcia would dispute that.
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Brett: Thanks for the head's up. I got those addresses right off the BOS Web site. I've been trying to put together a point-by-point response to the policies, so I'll see if that gets returned also. Don: No donations yet; Marcia's not vulnerable in her district, but several of the other supervisors could lose their seats. I don't agree with Marcia's rather strongly held beliefs about environmental ... more and public trust issues, but find a lot of her other stances very palatable. There are a couple of supervisors I'd love to see kicked out the door, but I'd rather Ms. Armstrong simply toned down the attacks and rhetoric she prints in her weekly column. This resource plan, however, is a non-starter -- it either attacks or ignores pretty much everything that doesn't directly serve her constituents. It's gotta be stopped.
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I got my e-mails off on the 6th, apparently before the supes had activated their public opinion shields. Only Marcia Armstrong bothered to respond, "Thank you for your comments. We will take them under advisement.". It's nice to know their thinking, anyway. Regrettably, I don't have to go right now, and I really prefer my ropes to be dry. So, Tom, where do we send contributions? Are these folks up ... more for reelection?
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I just fired off e-mail to all of the folks listed in the post, and the major players (Kobseff, Armstrong....)seem to have abandoned their email accounts...( I got the usual "...Delivery to the following recipient failed permanently..." message...)This is highly irritating as it suggests that they can allege that they had no complaints (... since changing their accounts...)... they can in "good" conscience ... more claim that they have no idea that there is a controversy... ...This is why the Rats rule the planet...
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fishhead: I appreciate your perspective. In this case, we don't have new money driving things. Instead, the faces behind the policies are the families that have run this county for generations. Close. In truth, I feel sorry for some of the ranchers and growers -- they're getting hit from all sides by new regulations. Unfortunately, some of them are responding by embracing an extreme "Wise Use" philosophy ... more denying public access -- one where even public lands should be managed for their benefit alone. I'm hoping big dollars won't be needed; with enough pressure applied now, I think the supervisors will have to back away -- at least from some of the more irritating policies they're proposing. To agree with your analogy, I think the lights have already come on. Now, we see what happens.
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[...] our supervisors receiving many emails, and some national organizations taking note. Expect more on this fight to protect our legal stream access rights. And soon [...]
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Tom amp; Co., In MT we went through this last year and won, it was a fight though. Obviously, well funded private interests are driving this shenanigan so you will need "lawyers, guns and money". Public support, (outside recreational users) only gained momentum when it was pushed into the light as an infringement on the general publics access to traditionally public land. A spate of tycoons buying ... more up ranches here has already sensitized the publics opinion of further such endeavors so that helped get people motivated. It was huge in itself and probably went beyond any argument about the economics of recreational use, the fact that an individual could come in and dictate public access on land that had been public domain for years was intolerable. It was finally settled by the state in court. Sportsman, landowners and the FWP (the ones genuinely interested in working together) forged an agreement that created an access deal that worked out for everyone except a small group that had a lot of money that was bent on shutting down the rivers for their own private use. If I remember right, at the local level no one had enough money to fight the big money lawyers so the help from conservation organizations was needed to get publicity and the issue to the state level before the local community was steamrolled. The local commissioners concocting this deviant little play are just the face of someone else with a lot of money making a play on your stream access- thats your real opponent. As others have mentioned before, turn on the lights and the rats will be heading for the tunnels. This is Blitzkrieg, they will try to peddle influence and buy everyone off so the sooner the spotlights turned on the better. Stand up and raise holy hell and you will win!
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Tom, You said: "In one sense, it doesn't truly matter if the Board designates one or all the rivers in the county a non-navigable; it carries little weight, and you'd have to assume someone would sue — either immediately or after a confrontation over legal access rights." I am not sure if waiting is the proper attitude. I would think that establishing the Public Trust right to all navigable streams, ... more as is happening in some states, would be the best measure for CA, not just your county. Once the stream is proven to be navigable, the stream bed falls under the management oversight of the CA SLC -- http://www.slc.ca.gov/Policy_Statements/Public_Trust_Home_Page.html -- which would probably be happy to add several tens of thousands of acres of streambed to its inventory. With SLC protection, gravel mining of the streams and other environmentally destructive practices would be reduced/eliminated. Remember, establishing navigability and thus establishing the public ownership of the streambed does not constitute a "taking". The streambed is simply being recognized as historically public property that had, perhaps, for a time, been misunderstood to be private. No harm/no foul.
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[...] Getting DSL up and running is never a sure thing, and with all the time I#8217;ve invested lately protecting our legal access rights to the Upper Sac and McCloud Rivers, the part of me that#8217;s trying to make a living is feeling a little [...]
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I know that CalTrout and TU are aware. Other organizations -- including two of the more environmentally aware retailers -- read the Trout Underground and have contacted me. I think the key now is to apply pressure, and see what shakes out at the next meeting (today's BOS meeting is focused on the ordinance creating an advisory committee) where the Natural Resource Plan itself is discussed. In one ... more sense, it doesn't truly matter if the Board designates one or all the rivers in the county a non-navigable; it carries little weight, and you'd have to assume someone would sue -- either immediately or after a confrontation over legal access rights. Still, this is the last thing you want on the books to begin with. I know the supervisors have been surprised by the outpouring of protest; we'll see what they plan to do about it.
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Tom, I'd assume that TU, Cal Trout, NRDC, and other organizations which might be able to bring added pressure on the stupes are already aware of this. But it would be reassuring to hear from those groups that they plan to join the fight.
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For multi-use types, I'd say there's a lot in the Natural Resources Plan that's objectionable. Oddly, there's almost nothing enforceable about most of the plan, and frankly, it probably should be viewed not as a resource plan, but as political "protest" document. It also exposes this county to lawsuits; can you imagine the lawsuit potential should the our rivers been declared "non-navigable" by a ... more Board of Supervisors who are largely unaware of what the designation means? All you'd need is one pissed off angler to be arrested -- or worse -- injured by a landowner (one in Dunsmuir was throwing rocks), and then you'd see what a "deep pockets" lawsuit truly looks like. Public lands *have* to be maximized for cattle production?? You have to wonder if the Feds in the area are crying or laughing...
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Tom, You should also, IMO, fight the emphasis on severely economic use of public grazing lands. The BLM has quite an extensive plan for the Alturas section which includes improving the land, the riparian zones, and protecting archeological resources. Grazing is just one element of the plan, not the sole focus that the county desires. See the plan here. "Approximately 889,956 acres of the planning ... more area and 42,712 acres of BLM land are located in Siskiyou County." That BLM land is all public land, open for recreation, including fishing. Supervisor Armstrong should be advised that public grazing land with streams supporting fish will be monitored by the public for streamside damage and other threats to the fisheries from grazing activity. Don't give any water away, IMO.
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Thanks guys. This is absolutely great stuff. Keep the comments coming, and I'm reminded how online communities of intelligent, thoughtful types really can make a difference. There's been a ton of opinion, research and fact provided, and almost all of it's been gold. There's little doubt that it will help our fight to keep Siskiyou County's waters accessible to the public. Even the rivers now revealed ... more to have been the specific targets of the plan (Scott Shasta) are clearly navigable based on the resources provided, so there's really no "fallback" position in the Natural Resources Plan (a suggestion made by one of the proponents). Public access below the high water marks on those rivers is legal, period. We don't have to compromise any waters to keep the Upper Sac and McCloud open, and should the supervisors decide to do this anyway, I imagine the results will be a couple of swift lawsuits.
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Best handbook I know of for dealing with this problem is Salmon Nation's Little Red Book; and anybody wishing to educate themselves on the issue must read former Oregon governor John Kitzhaber's essay on tactics for the 21st century at their website. Don't buy the Orwellian reality. I suggest consolidating all supporters to create a counter-reality that appears as a large, powerful entity (it's inexpensive) ... more in the county. A citizen's wathchdog group with a NAME. (THE CITIZENS WATERSHED COMMISSION is good.)And a mission statement. Let them know they are up against a powerful opponent that is consolidated, and that citizen's oversight will be permanent.
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Everyone -- thanks for help! I knew there had to be a post-Cardwell shot somewhere. I was just going to contact American Rivers. They're an advertiser after all (I hope everyone's joined their "e-Rivers" program. It's good stuff. TC
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Tom, Me, again. I notice that Supervisor Armstrong is playing the Cardwell v. Sacramento County card. You can trump her with the following statements from U.S. Supreme Court DONNELLY v. U S, 228 U.S. 708 (1913) -- "The petition raises several points, only one of which is deemed worthy of mention; and that is the insistence that the court, in basing its decision herein (228 U.S. 243, 262, etc., 57 ... more L. ed. --, 33 Sup. Ct. Rep. 449) upon the California acts of February 24, 1891, chap. 14, and of March 11, 1891, chap. 92 (Political Code, 2349), and the decision of the supreme court of that state in Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763, to the effect that the enumeration of the navigable rivers of the state, as made by the legislature, is exclusive, and that no other rivers are navigable under the laws of California, overlooked the effect of the decisions of the supreme court of California in other cases ( People ex rel. Ricks Water Co. v. Elk River Mill amp; Lumber Co. 107 Cal. 221, 224, 48 Am. St. Rep. 125, 40 Pac. 531; Forestier v. Johnson, 164 Cal. 24, 127 Pac. 156; and People ex rel. Harbor Comrs. v. Kerber, 152 Cal. 731, 125 Am. St. Rep. 93, 93 Pac. 878), and that our decision respecting the navigability of the Klamath river and state ownership of the bed thereof is so serious in its ulterior consequences that it ought not to be adhered to without further argument."
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A fishing guide transporting his client downriver by kayak, canoe or driftboat is in fact navigating, and engaged in commerce as well...
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Tom, BTW, don't think Federal, especially not Corps of Engineers, use the more liberal California standard for navigability as outlined in my first url above. I would ask someone to kayak each of the streams and document it, or contact the local kayaking/canoing/riverrunners and ask them for documentation of the streams' use. Alert AmericanWhitewater.org to what is happening. I would also ask the ... more Department of Fish and Game to intervene. This is very much a matter of interest to them as they do not want to lose all that water - historic fishing water - and fishing license sales. And I might write the AG, citing cases in support, and mentioning the number of voters who would be negatively impacted (think boaters as well as anglers). Just some thoughts, Reed
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Tom, The Public Trust Doctrine is a particular favorite of mine. Here is an excellent description of California Navigability Law -- http://www.americanwhitewater.org/archive/article/966/ and here is a simple summary of it -- http://www.americanwhitewater.org/content/Wiki/do-op/id/access:ca Don't let anyone try to fool you with old lists. Here in NH, we had a fellow try to claim a river and keep anglers ... more and boaters out a few years ago. The DFamp;G took it to the Attorney General for an opinion and not only did he rule it as navigable, but he demanded that the appropriate state agency create a list of all navigable rivers in NH. After seven years the agency still hadn't started, but it only took an email reminder of their duty and a year later we had a decent start to the list. Here is a short piece I wrote on the Public Trust Doctrine as a primer -- http://www.overmywaders.com/index.php?publictrust Warmest regards, Reed
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Ahh, Ms. Armstrong -- the victim of a public willing to comment on an extreme public policy. She's right about one thing -- this is about property ownership of bed and banks. The public has it, and she wants it. As for her legal contention, the federal government has long held if a river is navigable in fact it is navigable in law, and the Scott and Shasta are clearly navigable rivers. We shouldn't ... more give an inch on this one. I'd love to know how she determined that the Scott and Shasta have "long been held to be non-navigable" when they're in fact so similar to the McCloud and Sac. She's trying to calm the response by throwing the southern half of the county a bone, and those who fish in this state shouldn't rest easy because someone's thrown us half a bone. I agree. Dog fight. Larry -- thanks for posting this (I haven't received a response from her yet). Could you contact me via the contact form on my site?
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Supervisor Armstrong responded to my point about navigable river determination being the responsibility of the state and not individual counties with the following: "That is correct. They may be determined to be navigable in fact. However, the "navigable in law" determination is one of property ownership of bed and banks. This list appears to have fixed in time - Act of March 11, 1891, chap. 92 (Political ... more Code, 2349), an enumeration was made of all the navigable rivers of the state. This is held by the supreme court of that state to be exclusive, so that no other rivers are navigable under the laws of California. Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763 The reason this is even on the policy statements is because of people trying to trespass on agricultural areas - particularly the Scott and the Shasta Rivers. (There are issues of liability and biosecurity.) These have long been held to be non-navigable and all the agencies respect that and formally request access. The public is not as knowledgeable. I was unaware of the issues on the McCloud and Sacramento. We could have just changed it to make a statement that the Scott and Shasta were considered non-navigable and left it at that. It was a draft out for comment. Until now, these have been friendly offerings in a collaborative spirit. Don't know if we can do that now with all the attention and accusations that have been made." Looks like it's going to be a dog fight.
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This whole thing has been trying -- and believe me, I've got better things to do than sit down, get pissed off, and write. Sadly, one thing is true when it comes to natural resources and our fisheries: it takes a lot of energy to fight off the yahoos, and as soon as one is dispatched, it becomes clear there's actually an endless supply of them.
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How is a recall enacted in siskiyou county?
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As far as shining a light on these vermin, everyone who writes to the reps should also 1) go to http://www.siskiyoudaily.com/news/ look at the far right for letter to the editor, and send it off!! 2) if you know any reporters, inform them of this 3) when you send off a email, also send out a us mail to the reps. They weight mail more heavily.
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Tom- Thanks for reporting on this. I just personal emails to all the above politicos. Man, if it's not one thing...it's another. We all need to rally round the family and stop this insanity. You know, if it's not the environmental issues it's the access issues. Your blog is a great tool to educate, inform and instigate outrage...oh, and you write well and are funny from time to time too.
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The trip to Kobseff's website was worth it for the photo alone. Now there's a picture that wants to shake hands with you.
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The more I find out, the less I like this. It was clearly timed to coincide with the absence of LaVada Ercikson (the South Country representative and lone "environmental" voice on the board). Public scrutiny has been minimal. The key now? Target Supervisor Michael Kobseff. If you haven't written already, send him an e-mail telling him the proposed Natural Resource Plan will savage Siskiyou County's ... more tourist industry and deny fisherment their legal rights to fish the Upper Sac and McCloud. Look for more posts to come.
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Good news, Tom. These people don't like to operate in the light. We lost the Kettle by not getting on it soon enough. Once the new designation has been made for the waterway, you can spend your life's fortune trying to fight it and not get anywhere. The best chance is to stop them at the planning stage.
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Curly: I'm hoping this thing never gets to the state level; people in the South County -- the ones who stand to get gored when the fishermen stop coming -- are kinda pissed. I spoke yesterday to one of the Board of Supervisors (not the ringleader on this). At first he tried to stand his ground, but clearly didn't know the implications of of a "non-navigable" designation. I think it's the public's ... more job to educate him. which is happening, and he's already started to back away. But only from that one issue. And there are a load of similarly stupid issues in the plan. Lots more to do. Lots more. But thanks to everyone for their help (and calls and e-mails) so far. Believe me, they're starting to hear us.
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Curly is right on the money regarding the growth of the privatizing of public resources and responsibilities which of course is not just a local or state agenda but a national one as well. It's been going on for some time but it seems to have reached a substantialy increased rate during the Bush administration e.g. mercenaries in Iraq for G-d's Sake!!! Someone (Menken?) said "Commerce makes whores ... more of us all". Well it's time to let these political pimps know that we are not whores and our public resources are not for sale. My thinking is that rather go on the defense we should be looking for ways to go on the offense. How about a public initiative to make all riparian areas of every stream public land for x amount of feet from the high water mark. Why? Because water is an essential element needed to sustain life and therefore it's too critical to leave to the care of private ownership and local agencies to administer. In Oregon, some communities are having to tap surface water sources (streams) for drinking water because their springs and wells are no longer adequate. If these streams fall into public ownership look at the cost to the taxpayers to then deal with monitoring and maintaining the water quality and the probable litigation to deal with the polluters and of course to clean up their messes. Should we organize and write out a public position paper to be published regarding this issue? I'll be glad to fund the publishing of such. Whatever we can do to put these folks on the defensive.
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Good luck fighting this thing at the state level. The governator is friendly to privatizing interests and active in the movement to sweep away vestiges of socialist concepts, like the idea of public lands, and has recently set a precedence with the coastal MPA's "managed" jointly by Cal. Wildlife and a curiously wealthy "environmental" group calling itself The Ocean Conservancy, mainly funded by Packard ... more and Pew. If you study their literature you learn that the two greatest problems facing our coastal waters are: overfishing and plastic trash. Never a mention of the plankton-destroying tonnage of pesticice-herbicide washing down from corporate, chemical monoculture operations throughout the state, or the industrial chemical lifestyle by-product going down every drain, washing off every road. Interestingly, Packard is heavily invested in the 28 new intercontinental communication cables slated to connect to the Cal. coast. They paid out millions to litigeous commercial fishermen when they placed the first two, and they don't want to do that anymore. Now they won't have to. Most of the new cables will run through the MPA's where no fishing is allowed. I know, seems like I'm wandering far from the topic (it's my style), but everything is connected, and what we are experiencing is the effort of privatizing ideologues whose silent agenda is to eliminate the notion of shared public stewardship/ownership. The Upper Sac is not an isolated example. In recent years, drainages above mainstem dams all over the Northwest are quietly losing their navigable status as ranching, logging and mining interests take advantage of the favorable political climate. Don't count on legalese. In a kinder-gentler nation the Army Corps definition would be interpreted in it's most benevolent sense. But the judge who pronounced the Kettle River (bigger than the Upper Sac) non-navigable stated: "There has not been a fur-trader down that river in his canoe for over 100 years." Your best bet is the sleeping grassroots court of public opinion. The Orvisian Flotilla sounds like a good idea. Get some TV time if you can. Writers, get busy.
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Tom, Thanks for posting this...this got my blood boiling this morning. The threats to our precious limited resources just keep on coming. Fact is, this pisses me off on multiple levels, but on a purely personal/selfish level, the Upper Sac is where I really got into fly fishing, where I taught my son to fly fish, where I drive 6+ hours to go at least 4 times a year because of the special place that ... more it is.
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The Siskiyou County Supervisor leading the charge for the damaging Natural Resources plan (Marcia Armstrong) has replied with what amounts to smoke and mirrors: Thank you, we will take your comments under advisement. Please note that the Klamath River is the only navigable river in Siskiyou County under current law. She then cites from the California Harbors and Navigability Code, which doesn't define ... more navigability, but simply lists the rivers and streams currently defined as navigable. That's a huge disconnect; the fact that the Upper Sac and McCloud haven't yet been declared navigable hardly means they're non-navigable, and by any reading of the definitions set forth by the Army Corp of Engineers, all the rivers in Sisikiyou County are navigable. From the Army Corp of Engineers Web page on navigability of waterways: Section 329.4 - General definition Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. The Upper Sacramento and McCloud Rivers were both connected to the ocean (prior to the installation of the Shasta Dam), and both were used for commercial purposes. They're navigable. Period. This is what we're dealing with up here; misleading, dissembling statements around navigability -- and this on only one of the issues surrounding the plan. If you haven't taken a minute to send e-mails to the Supervisors identified in my first post (especially the first couple), then please do so. While the ability of the Board of Supervisors to actually enforce a "non-navigable" standard is dubious, it's clear that even an illegal declaration will cause no end of problems to fly fishermen.
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E-mails sent to all the listed parties, and if someone believes those rivers aren't navigable, I'll be happy to kayak a small consignment of flies down one of them for the very modest fee of one Heineken. This, on top of the Nestle eff-up, makes me wonder how those politicians think their constituencies are going to pay for all the legal bills that will surely follow.
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One source: http://www.adventuresports.com/river/nors/us-law-public.htm another, a bit more basic and elaborate: A Treatise on the Right of Property in Tide Waters and in the Soil...by Joseph Kinnicut Angell
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Greg; You're right about the "light of day" bit. One of the least appealing aspects of this whole mess has been the method used to spring it on the public; a 15 member "committee" was in the formation stages, and -- as per the "Wise Use" playbook -- that committee was going to be packed with friendly members before the public even found out about it. Transparent? Public-centric? Not on your life.
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Dave: Tell us -- how do you really feel about the Corp... I see your point, but -- having read the Corp's definition of navigable -- feel reassured by the fact that the Upper Sac and McCloud easily fit the letter of their definitions (something denied in an e-mail by the "Wise Use" Supervisor driving this thing). Reality, of course, has never been a deterrent for the extractive use advocates, and ... more that's why I don't want this thing to get off the ground even at the county level -- even when it's being hoisted there by a group of nutcases.
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Can anyone direct me to the state representatives and agencies where I can send my arguements against this nasty little land grab? And I do like Dmote's idea of a public demonstration. Sometimes these backroom vermin are intimidated by light of public attention. I know it's been said before but if we don't fight for the streams and trout we won't have any.
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Stay away from the Corps. They have a different purpose and legal basis for "navigability", one which has two very key components that will not help you. First, they evaluate navigability by trade or hauling, which means barges, a criterion which your river will never meet; and second, they care about current or contemporary capacity for trade, which of course isn't going to happen now unless they ... more put in a whole lot of locks and dams. The Corps is death. As I understand it, the test, which uses the same word "navigable", is a pastiche of Supreme Court decisions that most decisively leave the decision to the state. They grow from the colonial era definition of navigability, which is extremely broad and basically means that if you can float a boat in it or float a log down it for some or most of the year, it's navigable. That means virtually all waterways qualify. Also, this test is established at the point when the state was admitted to the Union, so if somebody floated a log down the Sacramento anytime after 1850, your river meets the test. That should be enough basis to tell your board of supervisors to piss up a rope. But. The state has to do the enforcing. So far the local disputes have ended at State supreme courts, and a number of those courts which lean right have found for landowners despite what looks to us like settled law. Original colony states like my home state of Virginia have a charming avenue of law called King's Grant law in which landowners claim rights of title from before the Revolution, when landowners had more claim to the game and fish resources on their property. So owners who hold both banks of a stream have been upheld in trespassing charges against anglers below the MHW line or floating through in boats. Ironic, isn't it, that you can get a ticket for navigating a non-navigable river... Theoretically that isn't a line of reasoning that works in any states west of Kain Tuck Ee. One landowner hijink has been to conflate the modern Corps standards of navigability with the traditional definition of navigability. The early Colonial concept was definitely revolutionary, a way of keeping lines of transit open in wild and untitled wilderness as opposed to the tamed and completely possessed English landscape, which also had complex rules governing movement of freight that kept licenses for the privileged and wealthy. Therefore you should concentrate your fire on the state level government, and get some riverkeeper or sierra club style guerilla counsel going on your side, because it seems to me from a distance that the lawyers are going to get some playing time here. The state would have a lot of pull with county supervisors, and could make the thing go quietly away. Or then you'll have to brush up on your Thoreau and employ a bit of civil disobedience. How about a navigate-in, a flotilla of fleeced-up Orvisians drifting en masse down the forbidden river in tubes and kickboats, casting cane rods against the gauntlet of shotgun-toting cowboy mercenaries lining the banks? I'd fly out for that. Dave
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One more thing: They're doing it everywhere. Washington too. Gold dredges and wide-open logging. And there are those who would privatize the banks of the Upper Columbia. Time to resist. Hold your territory. Viva Cascadia!
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Smells fishy. Like money. Follow the scent and it will lead you to the few who stand to gain. But then, they are benevolent and have our best interests at heart. They'll trickle down. Right? Private is better. Private armies. Private prisons. Private trout streams. Relax. Just ask the good country people they'll tell you. Good people. Workin hard. Evbody has a rat t'git theys.
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Here's the Army Corp of Engineers' definition of navigable waterways. You'll notice the Upper Sac and McCloud both qualify quite easily: Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, ... more once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. It also says navigability is determined by the courts, which is yet another reason to make sure this absolute hummer of a proposal never passes.
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Amend that: feds and state, but certainly not county.
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I can't imagine that this would be legal. I am positive that only the state has the authority to determine navigability. Definitely emailing the contacts and snooping around more.
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I believe it's a state/Corp of Engineers issue, though case law isn't even wholly clear on this. Of course, if the county designates them as non-navigable, then fishermen are put in the position of proving they are navigable. I also know of two landowners who feel justified in harassing fishermen wading on "their property" and the problem would only get worse if the Board has its way -- legal or not.
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Is navigability determined by local agencies, or by the state? That is, even if a board of supervisors says the stream is non-navigable, is that binding on fishermen? Don't know the answer; just wondering.
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I'll send an email to the above persons. I won't bother contacting TU though.
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