Discrimination

[andy_youngs]

Are you suggesting you cannot "tell" when you are on forbidden stretches of water?

Yes I am, that is precisely the problem. You never know when you are entering forbidden territory, so you are effectively denied the opportunity of taking kids paddling down the river. To my mind it's a tragedy and a disgrace.

 

I'm loosing the purpose of your argument. Certainly, you are not acquiescing to a simple "NO SHIPS" if the controlling party posts a sign stating the same - are you?

Several of the landowners on my local river have erected 'no navigation' signs on the riverbank. But I would never acquiesce to that. I would rather defy it. The river's been navigated for centuries, and I'd rather elevate the argument to a court of law.

Edited March 14, 2012 by andy_youngs

[Steve Walker]

I think you're being a bit melodromatic Steve. I don't wish to nationalise all club, private and syndicate waters. But I do suggest that it might be sensible for all club, private and syndicate waters to declare their interest in restricting canoe access to defined stretches of river at certain times of the year.

Just tell us where you are disputing canoe access. That way, I will know not to take kids paddling through that stretch.

 

But you said "citizens should have the right to go fishing in their local river" - how do you reconcile that with private ownership of fishing rights?

 

I am perfectly happy for canoe access to be on the same basis as fishing access - negotiate and pay your way.

[andy_youngs]

But you said "citizens should have the right to go fishing in their local river" - how do you reconcile that with private ownership of fishing rights?

 

I am perfectly happy for canoe access to be on the same basis as fishing access - negotiate and pay your way.

 

That does seem to be the crux of the dispute Steve.

 

I would not be happy for canoe access rights to be settled in the same way as fishing rights are negotiated, because they are inherently different activities.

 

You ask how to reconcile the private ownership of fishing rights with the public desire for greater canoe access.

 

But the two issues are mutually exlusive. If a landowner leases the fishing rights on a stretch of river to a sydicate, then the syndicate has the right to stop others from fishing there. But that does not give either the landowner or the syndicate the right to close down navigation by unmotorised craft through that stretch.

 

If there is anyone out there that can show me a valid lease between a fishing club and a landowner, which allows for exclusive use of the river for angling in return for money, and specifically prevents navigation as a precondition, then please do so that I can progress my challenge.

 

I doubt very much if such a lease exists, and if it did then my hunch is that the terms would be illegal in statute law. I guess we shall see ....

[Worms]

Back to the forum debate....I got banned from Bob......(somebody or other, forgotten his name now)....Roberts, I remembered... website for posting facts on his website when he was spouting guff and lies about fish predation by otters. He also posted that I insulted him, well I didn't so more lies. Anyway, if someone is that much of a dickhead that they won't speak to you why bother with them?

 

Speaking to a single topic forum about another topic is not necessarily going to get you much support, I suggest sticking with canoeing sites or, the local council etc. I fish a couple of rivers, one has no legal right of navigation but canoeists frequently paddle it...No problems for me on that river...there lies the crux of the problem. If a river has navigation rights then you have no problem, if landowners feel that they should allow you access/egress on to the land for launching/portage well, that is their choice, otherwise..paddle on by!

 

The landowner has no rights on the river per se but he has to the access to the river whether for canoes or angling.

[andy_youngs]

....I got banned from Bob......(somebody or other, forgotten his name now)....Roberts

I remember him. He posted a film on vimeo a couple of years ago about mahseer fishing in Pancheswar, at the junction of the Saryu and the Mahakali Rivers in Northern India.

From memory, I believe it was an amataur short film promoting one particular tour operater in India. Quality was OK, but it gave the impression that mahseer fishing is much easier than it is in reality.

[Phone]

Andy,

 

Worms is suggesting anglers pay for a "land" easment not use of the river. Do you agree? Once on the river can you pass unimpeaded? You say they are "inherently different". I'd say you're right if one pays and the other freeloads.

 

Would you like to see what we have? Never mind, I'll cut and paste it anyway.

 

The section on National River Law discusses river ownership, use, and conservation law throughout the United States. Following is a review of what individual states can and cannot lawfully do with the rivers within their borders.

 

The U.S. Supreme Court has ruled that rivers that are navigable, for title purposes, are owned by the states, "held in trust" for the public. This applies in all fifty states, under the "Equal Footing Doctrine."

Rivers that do meet the federal test are automatically navigable, and therefore owned by the state. No court or government agency has to designate them as such.

The federal test of navigability is not a technical test. There are no measurements of river width, depth, flow, or steepness involved. The test is simply whether the river is usable as a route by the public, even in small craft such as canoes, kayaks, and rafts. Such a river is legally navigable even if it contains big rapids, waterfalls, and other obstructions at which boaters get out, walk around, then re-enter the water.

The states own these rivers up to the "ordinary high water mark." This is the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits.

States cannot sell or give away these rivers and lands up to the ordinary high water mark. Under the "Public Trust Doctrine," they must hold them in perpetuity for public use.

The three public uses that the courts have traditionally mentioned are navigation, fishing, and commerce. But the courts have ruled that any and all non-destructive activities on these land are legally protected, including picnics, camping, walking, and other activities. The public can fish, from the river or from the shore below the "ordinary high water mark." (Note that the fish and wildlife are owned by the state in any case.) The public can walk, roll a baby carriage, and other activities, according to court decisions.

States do have authority and latitude in the way they manage rivers, but their management must protect the public uses mentioned above. They can (and must) prohibit or restrict activities that conflict with the Public Trust Doctrine. "Responsible recreation" must be allowed, but activities that could be harmful, such as building fires, leaving trash, and making noise, can legally be limited, or prohibited, in various areas. Motorized trips and commercial trips can legally be limited or prohibited by state governments.

State and local restrictions on use of navigable rivers have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed to appease adjacent landowners, or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies.

State governments (through state courts and legislatures) cannot reduce public rights to navigate and visit navigable rivers within their borders, but they can expand those rights, and some states have done so. They can create a floatage easement, a public right to navigate even on rivers that might not qualify for state ownership for some reason, even if it is assumed that the bed and banks of the river are private land. Note that this floatage easement is a matter of state law that varies from state to state, but the question of whether a river is navigable, for title purposes, and therefore owned by the state, is a matter of federal law, and does not vary from state to state. Note that a state floatage easement is something that comes and goes with the water: When the water is there, people have a right to be there on it, and when it dries up, people have no right to be there. But rivers that are navigable for title purposes are public land up to the ordinary high water mark, so that even when the river runs dry, people still have the right to walk along the bed of the river.

Only federal courts can modify the test of standards that make a river navigable for title purposes. States cannot create their own standards, either narrower or wider in scope. They can’t make definitive rulings about which rivers are navigable for title purposes, only a federal court can.

The situation gets confusing when a state agency or commission holds hearings about navigability and public use of rivers. Landowners, sheriffs, and other people tend to think that such an agency or commission can create state standards that determine which rivers are public and which are private. But these are matters of federal law which state agencies cannot change.

State agencies should make provisional determinations that various rivers meet the federal test of navigability for title purposes. These provisional determinations should be based simply on the rivers' usability by canoes, kayaks, and rafts. They should then proceed to the question of how to manage navigation and other public uses of the river. In these days of government cut-backs, the agency should look for solutions that use existing enforcement agencies rather than setting up new ones. Littering, illegal fires, offensive behavior, trespassing on private land, and numerous other offenses are all covered by existing laws, and offenders can be cited by the local police, sheriff's office or state police.

 

Would that make you happy? I thought so.

 

Phone

[Leon Roskilly]

If a landowner or controlling angling club has carried out work on a river, or existing hazards have no warning, and that results in damage or injury to canoes/canoists using the river what is the legal position?

 

Similarly if a canoist causes damage or injury to a fishery, what then is the legal position?

 

 

And how is the legal position affected when

 

 

- canoists have a right of access

 

- canoists have no right of access but there is no signage or warning to that effect

 

- canoists have ignored signage and/or warnings that they have no right of access

 

 

What are the insurance implications for the landowner/controlling angling club?

[andy_youngs]

If a landowner or controlling angling club has carried out work on a river, or existing hazards have no warning, and that results in damage or injury to canoes/canoists using the river what is the legal position?

 

Similarly if a canoist causes damage or injury to a fishery, what then is the legal position?

 

 

And how is the legal position affected when

 

 

- canoists have a right of access

 

- canoists have no right of access but there is no signage or warning to that effect

 

- canoists have ignored signage and/or warnings that they have no right of access

 

 

What are the insurance implications for the landowner/controlling angling club?

 

I have no idea of the answers to any of your questions Leon, and quite frankly, I really don't care. Are you seriously suggesting that such petty considerations constitute valid reasons for the "governing body of angling" to perpetuate a policy of denying public canoe access to over 95% of our inland waterways?

Edited March 16, 2012 by andy_youngs

[andy_youngs]

Andy,

 

Worms is suggesting anglers pay for a "land" easment not use of the river. Do you agree? Once on the river can you pass unimpeaded? You say they are "inherently different". I'd say you're right if one pays and the other freeloads.

 

Would you like to see what we have? Never mind, I'll cut and paste it anyway.

 

That makes me very happy. It's not only informative, it's also constructive. It's the new world passing on little pearls of wisdom to the old ...

Edited March 16, 2012 by andy_youngs

[Steve Walker]

The AT is just defending the selfish interests of the group it is meant to represent against the conflicting selfish interests of another group. That's why it takes the position it does.