For the past few weeks I’ve been attempting to get the following LTE published in various state papers, but to no avail. The reasons for not publishing the piece have ranged from ”you live outside of our readership area” or “this is more appropriate for our local opinion page,” to “we don’t publish anything regarding an issue that is still in active legislation” or “we get too many submissions to publish them all.” While all of these may be fair reasons (except the one about not publishing issues in active legislation), I do think they show a misunderstanding of just how critical this issue is to sportsmen of the state and just how seriously they take preserving their constitutional rights to hunt and fish.
If you like the message of this letter, feel free to submit it to your local paper under your own name. Just be sure to change a few words so you can be considered the original author of this piece. Maybe if enough editors get enough submissions on this issue, they will agree to publish one of them. LTEs are an effective way to get the issue in the mainstream conscientiousness. We need more LTEs.
It was ironic that Ken Cuccinelli appeared at the annual Shad Planking in Wakefield, in that the event celebrates the annual shad run on the rivers of the Commonwealth. I wonder if Mr. Cuccinelli knows that shad is a popular sportfish. For years I’ve been angling for them on the Rappahannock River in Fredericksburg. Unfortunately, I have not been able to enjoy the shad run on the “Rapp” for the past three years, because I have been defending myself, and the Constitutional rights of every hunter, angler and paddler in Virginia, in a civil suit brought to enjoin me from fishing in a public river.
I was fishing on a stretch of river which the state advertised as public, and according to the Dept. of Game I was following the law. So I reached out to Attorney General Cuccinelli and requested that he attach to my case and defend the property of the Commonwealth. Regrettably, he neglected to protect the resources entrusted to the Commonwealth and defend the Constitutional right of sportsmen in Virginia to use our public navigable rivers.
Pictures of now Candidate Cuccinelli eating a shad with anglers and hunters, made me wonder, “were they aware that he recently avoided the opportunity to protect their tradition of fishing and hunting? Did they know he sat idle while we ran out of money defending the property of the Commonwealth?”
Before Mr. Cuccinelli applies for the job of Governor, he should first do his job as Attorney General. He owes the sportsmen of Virginia a guarantee that if they follow the laws of the Commonwealth and take guidance from a state agency, a sheriff won’t show up on their doorstep with an arrest warrant seeking $10,000 in damages.
Dargan Coggeshall, Charlottesville, VA
Virginia Rivers Defense Fund (www.virginiariversdefensefund.org)
“Keep up the fight, keep up the fight.” Those are the words Del. Scott Lingamfelter spoke to me after his address to the group of fishermen gathered at the VIP Dinner of the Virginia Fly Fishing Festival on Saturday night in Waynesboro. Del. Lingamfelter, co-chair of the Virginia Legislative Sportsmen Caucus and candidate for the Republican nomination for Lt. Governor of Virginia, was the keynote speaker at the event, and from the outset of his talk, it was clear that he wanted all in attendance to know how seriously he takes the sporting traditions in our Commonwealth, traditions he feels are God-given.
As head of the Sportsmen Caucus, he made a pledge to solve what he called a ”major problem” in the Commonwealth, and one that is threatening our sporting heritage. This problem he defined as the emerging conflict between the right to hunt and fish and use the pubic resources of the Commonwealth and the rights bestowed to private property owners. He said finding a solution would be “extremely difficult,” but it had to be done. It had to be done, he said, because, “if you are sold a license to hunt or fish in Virginia, you should be able to hunt or fish” without the threat of being sued. He said this not only applied to Virginians, but also to out-of-state hunters and fishermen who came here to enjoy our natural resources.
He went on to say that what happened to me, should not happen to other people. He also, pledged that while Lt. Governor (I like a positive thinker), he would kill any legislation that was not good legislation for sportsmen and that he would throw his weight behind legislation that was good for sportsmen. Going off script a bit, he said that the youth of our state would be better served if they spent more time in a river catching fish or in a corn field shooting doves, versus how they are choosing to spend their time today.
While Del. Lingamfelter was in campaign mode on Saturday night, I got the feeling that he was genuinely committed to solving the jeopardy in which all users of our navigable rivers find themselves. If he is committed, then I know he has the right credentials to affect meaningful legislation. I encourage all sportsmen and conservationists to send a note to Del. Lingamfelter and tell him to “keep up the fight. Keep up the fight.” You can do that by email firstname.lastname@example.org or Facebook https://www.facebook.com/ScottLingamfelterForVirginiaLtGovernor2013.
I have been avoiding this blog post for the past month, but the time has come for me to bury my pride and reach out to all the river users in the Commonwealth and ask your help in funding the almost three-year campaign I’ve waged on behalf of us all. Please read the following account of what this “war” has done to me and my family and send around to all the angling, paddling and hunting clubs, conservation organizations, message boards and outdoor media of which you can think. Your attention and participation is greatly appreciated….and needed.
Taking a Stand
It was just over two years ago when my brother-n-law and I huddled in a law firm board room, over-looking the pedestrian mall in Charlottesville, joined by representatives from several well-known conservation, recreation and sportsmen groups and a legal scholar from UVa. We were there to make a big decision, to fight or to roll over. See it had only been months before that we had spent several thousand dollars successfully defending ourselves in a Covington court against criminal charges for fishing in the middle of Jackson River, and now we were being charged civilly (with $10,000 in damages) for something the Commonwealth of Virginia guided us to do. All in the room agreed that this case had ramifications far beyond one river in Alleghany County and to fold would set further legal precedence against the public’s use of Virginia’s public rivers and would establish a template for other riparian landowners who wanted to drive away the public from other stretches of river. It was also believed that if we decided to “fight” these charges, for which we didn’t have the money to do, that the community of Virginia sportsmen and conservationists would “rally around” us and provide the resources to fund the fight. It was also believed that the Attorney General would attach to our case and defend the property of the Commonwealth of Virginia. So on that fateful February day, I decided to put my personal life on hold, put my family’s welfare at risk, form the Virginia Rivers Defense Fund and fight for the rights of all Virginians to use their public rivers. It was the right thing to do. The thought of an old man hurling explitives at my son while he pursued his passion of fishing in a Virginia river was intolerable.
Unfortunately several months into the case, it became clear that Ken Cuccinelli would not do the right thing and that the state would not bring its resources to bear in defending the Public Trust. We were going to be on our own and the financial stakes would be higher. But we had faith that we were not on our own. We had anglers and paddlers and hunters and outdoor writers and river stewards on our side. For one-and-a-half years I traveled this state, speaking to Trout Unlimited and Izaak Walton League Chapters, presenting at film festivals, putting out a donation jar at angling shows and fly fishing festivals and applying for grants from organizations that were committed to the public use of our public waterways. Juggling the management of the legal case, the public awareness campaign, the fundraising with running my small business and being a father and a husband was almost too much to handle at times. But, again, the stakes were just too high for all Virginians to give up mid-fight, so I pressed on, not knowing from where the food and boots and guns and bullets would come.
Many of the groups I addressed and many individuals who read about our plight made one-time donations to the Virginia Rivers Defense Fund, for which I am very grateful, but our reality was that we were involved in what became a multi-year “war,” and we were up against a neurosurgeon and a land developer who could fund a lengthy fight. You see, in American courtrooms, the winner doesn’t necessarily have truth on his/her side, but the best truth money can buy. There were boat loads of magazine articles and Facebook posts and message board chatter and “keep up the good fight” letters, but, unfortunately, not enough checks and clicks on our PayPal donation link.
So, last October, after a cumulative two years of fighting, I instructed our legal team to withdraw from the legal field. It had become abundantly clear that the costs associated with defending the public’s right to use its public rivers, was significantly outpacing the fundraising capabilities of the Virginia Rivers Defense Fund (essentially me). The developer and neurosurgeon had run us until our car was out of gas.
The Genie Gets Out of the Bottle
On October 9, 2012 the legal case ended. While we did not win, we succeeded in starting a genuine grassroots movement among river users and one that was heard by state agencies and the General Assembly. We released the genie from the bottle! Regardless of the outcome of our case, we knew the ultimate solution to the river rights issue at the center of this case was not going to be “settled” in a court room. Ultimately, there would need to be legislative clarity for the public. Therefore, our case was extremely successful as the vehicle to generate publicity and galvanize public support and pressure on lawmakers.
The Next Front
Now that active litigation has concluded, a working group of conservationists, sportsmen and environmentalists has emerged to take up the issue. Representatives from groups like the Virginia Conservation Network, the National Wildlife Federation, the James River Association, Trout Unlimited, Izaak Walton League and several others have begun meeting to develop a strategy for a legislative solution. During the prosecution of the case, I was able to personally appeal to several lawmakers, namely Del. Scott Lingamfelter and Sen. Creigh Deeds, both of whom are members of the VA Sportsmen’s Caucus and both of whom were concerned about the injustice in this case and the jeopardy faced by public users of the Commonwealth’s public rivers. In an encouraging move, both legislators drafted bills for submission in the 2013 General Assembly session. However, each of these sponsors drafted their legislation without consulting many other parties knowledgeable about the jeopardy facing the public and it was the opinion of those in the workgroup that each of the lawmaker’s bills was potentially more harmful than helpful. Fortunately, the Delegate and Senator either did not submit their bill or removed their bill before committee debate.
At this moment, it is hard to tell which group or groups will take the official leadership position in getting acceptable legislation drafted. But large lobby groups, like the American Sportsfishing Association, have pledged their support should a suitable bill arise. I have also pledged “to finish the fight.” We have come too far now, to let this issue be swept under the rug, like is was after the Kraft v Burr decision. The river users of Virginia have my pledge to keep up the pressure we started to apply over two years ago when we stood up in a court room and said it isn’t right for fishermen to be sued for doing something the state told them they could do.
While the litigation phase of this effort to protect the rights of the public to lawfully use Virginia’s public rivers and the legislative phase is building momentum, I have been left with a substantial outstanding personal obligation, one that threatens my family’s own financial viability, one that threatens my kids’ chance at college, one that threatens my business. Currently, the outstanding bill for the legal expenses associated with the case are around $50,000, and that is after a substantial write-down from my law firm last year. In a generous show of appreciation WilliamsMullen has offered to match dollar-for-dollar every dollar raised from outside individuals and foundations, allowing for an accelerated pay-off, but this offer may not last long.
Over the years I’ve helped raise money for my church and raised money for my school and raised money for my business (working with kids who have learning struggles). I’ve learned people give money because you ask them to. So, it is with my hat in hand, that I appeal to those in Virginia who are concerned about privatization of our public navigable rivers. Please help me to avoid becoming the pioneer who returns with arrows in his back. Please help my family lift the burden left from fighting for your family’s right to swim in and paddle on and fish in and hunt over and enjoy our waterways. If you’ve given to the Virginia Rivers Defense Fund once, please give again, if you’ve never contributed to our cause, please consider what we’ve accomplished so far and make a tax deductible donation for the first time. You can easily give online by clicking the “Donate” button below.
If you’d rather write a check, please make it to:
Friends of the Rivers of Virginia (FORVA) (a 501(c)(3) registered charity)
PO Box 1750
Roanoke, VA 24008
!! Write “VA Rivers Defense Fund” in the Memo Line !!
In response to a battle that has been raging over dam re-licensings on the bed of the Yadkin River, last year the North Carolina General Assembly directed the Joint Legislative Program Evaluation Oversight Committee to study, in conjunction with the Department of Administration, the inventory of all state-owned lands and the issue of public ownership of lands submerged under navigable rivers in the State. The final report was submitted in January of this year. For those who like the bullet points here is a presentation version.
The Program Evaluation Division found that North Carolina has no idea who owns the submerged lands below its navigable rivers and it is unknown the extent to which private parties may have claims against those assets. So Virginia is not alone. (Actually the report found that 10 of the other 13 original colonies have no idea either.) They also found that The Department of Administration (DOA), has a statutory obligation to manage and control the NC’s submerged lands, but its overall management approach has been largely passive, which has only exacerbated the confusion. Sounds very similar to Virginia’s Marine Resources Commission which is supposed to manage and control our submerged lands, yet does not actively do so.
The Program Evaluation Division didn’t make a formal recommendation, it did suggest the state more actively manage the use of lands submerged under navigable rivers in the future and protect its ownership interest, by 1) requiring DOA to improve its management and tracking of all submerged lands; and 2) using the coastal submerged lands claims process (conducted in 25 NC coastal counties from 1985-2004) as a model to resolve private ownership claims to lands submerged in the 75 remaining up-land counties.
Everyone who is troubled by this issue in Virginia needs to read this report. While I understand each state’s situation is unique due to its interpretation of common law and case law, our public and lawmakers can learn a lot from North Carolina, who is proactively pursuing a solution. The NC General Assembly realizes there is too much riding on letting the ambiguity go further. Not only is the public trust being threatened but economic development is being retarded. I think they also realized that doing an inventory exercise was not the solution due to the unmanageable expense. I hope the Virginia Department of Game and Inland Fisheries will be as thorough and forthright as NC’s Program Evaluation Division when it reports back to the Chairman of the Virginia Senate Agricultural Committee, which charged that agency with conducting a similar exercise.
For Further Reading: A Possible Model for a Way Out of This Mess
One of the interesting things that caught my eye was the exercise North Carolina underwent in the last half-century to determine whether private owners had legitimate claims to any part of the submerged lands in 25 coastal counties.
“Rather than inventorying state-owned submerged lands, the State required private parties to register potential claims so that the State could determine what it did not own. In 1965, the General Assembly passed a law that every person claiming any interest in any part of the bed lying under navigable waters in coastal counties of North Carolina had to register the grant, charter, or other authorization by 1970. Those claims not registered by 1970 were declared null and void. The Department of Conservation and Development then began a process, in coordination with the Department of Justice, to resolve claims to submerged lands in 25 coastal counties.” In total, there were 14,566 private claims in the 25 coastal counties. The majority of the work to resolve claims was completed between 1985 and 2004. The State recognized a claim as being valid if the private party could demonstrate a chain of title to the original instrument, with the burden of proof on the private party claiming ownership. The result was the State recognized 256 claims, or less than 2% of all claims. These claims were all recognized subject to public trust rights held by the State. Those who believed that the resolution of their claim deprived them of property rights without just compensation could file an action in Superior Court within three years. The Program Evaluation Division estimates that it cost $4.1 million to resolve the claims over the 19-year period from 1985-2004. The Division of Marine Fisheries and Department of Justice have developed an online map that shows all the recognized claims.”
Out of 14,566 private claims, only 2% were determined to be valid. 2%! Two-percent. And it only cost $4.1 million to resolve those claims. North Carolina predicts an office to manage this two-year claim window process for the remaining 75 upland counties would cost $600K and $500k per year over the two years. To me, this seems like an incredibly fair and efficient way to resolve the ambiguity and clean the slate. No expensive inventory exercise (on the backs of the tax payers) is needed and no one who has a valid ownership claim experiences a taking of their private property…and if there are grievances, there is a process for adjudicating them and compensation. Virginia lawmakers take note. If we’re going to spend money, lets spend it on paying folks who rightfully own something, versus paying folks to research & survey & opine (which I can tell you is one hell of an expensive).
This is one possible model for the conundrum in which we’ve found ourselves. Thanks NC for leading the way.
With the 2013 Virginia General Assembly session wrapping up this past weekend, one could easily look at the list of new legislation and assume not much happened to address the jeopardy faced by users of our Commonwealth’s public watercourses. However, there was quite a bit of activity that indicates the noise from our two and one-half year battle in a small courtroom in southwest Virginia was starting to be heard in the halls of the capitol in Richmond.
Del. Scott Lingamfelter (R), who was the first lawmaker to recognize the threat of mis-used crown grants to bring trespass charges against lawful river users and who introduced HB 934 in the 2012 session, pledged to continue his effort to find a legislative solution for the sportsmen of Virginia and introduce a bill in 2013. He even brought it up to reporters at his press conference announcing his run for Lt. Gov. If you will recall HB 934, which was respectfully tabled in the House Agricultural Committee last year read:
Bottomlands conveyed by special grant; trespass; proof. Establishes a presumption in a private civil action for trespass upon bottomlands alleged to have been conveyed by a special grant or compact that such bottomlands are owned by the Commonwealth. This presumption only applies in such an action and does not otherwise affect any person’s property rights. The plaintiff may rebut this presumption by establishing his ownership by a preponderance of the evidence.
However, this bill didn’t really do much more than re-state the state of ambiguity that got Charlie and me sued to begin with. VDGIF presumed the bed of the Jackson River to be public property, they promoted it and posted it so, we used it, got sued and the Commonwealth refused to intervene and present any evidence to that assumption. Without “teeth,” or a mechanism to compel the state to intervene in these cases, the choice is left up to the Attorney General, who if running for the executive office, as we saw, will likely make a political decision versus a constitutional duty one.
Del. Linghamfelter decided not to re-introduce this bill in the 2013 session but, as Chairman of the Sportsman’s Caucus (a bi-partisan group of legislators that meets once a week while in session to discuss issues facing VA sportsmen) he was instrumental in calling the Office of the Attorney General and the DGIF to formally address the entire group on the bottomland access issue on February 7. This presentation and subsequent follow-up meetings with legislators by several people well connected with this issue, went a long way in educating the caucus on the key issues at hand.
Sen. Creigh Deeds (D), who met with me six months ago, had a particular interest in the case because all of the litigants fell within his district. Based on our conversation, he appeared most moved by the fact that the Commonwealth had no idea who owns the beds of our public rivers. This likely motivated him to introduce SB 880 which read:
§ 1. The Department of Game and Inland Fisheries and the Virginia Marine Resources Commission shall cooperatively inventory those nontidal waters that (i) flow above state-owned bottomlands and (ii) may be used by the public for recreational activities, including fishing. Each agency shall make the inventory available to the public through its website. An agency decision regarding the listing of particular waters shall not constitute a legal determination or affect land ownership.
While his goal was to get clarity for the user, and lists are usually a good way to achieve that, the mechanism was a double-edged sword. Not only would doing an inventory of all of our waters be cost prohibitive in this economic climate, it is likely that the results of such an audit would tell us many things the recreating public wouldn’t want to hear. In other words, usage rights to more waters, versus less waters, could come under fire. As a former colony, most land along our historical rivers was likely granted by the English Crown, to cronies…and if trial judges (like the one in our case) interpret those grants as having “meant” to mid-point of the river despite no language in the grant to that effect, we could lose public usage on sections of rivers like the James, the Shenandoah, the Rapp, etc.
After constituent feedback, Sen. Deeds pulled his bill from consideration by the Agricultural Committee, however, not before telling the committee that what happened in our case was unjust and that he felt a work group needed to be formed, with representatives from all stake-holders, to solve this problem.
Finally, Sen. Chad Petersen (D) introduced a related bill SB 737 that passed out of the Agricultural Committee and went to the Senate floor for a full vote. This bill was not initiated by VRDF but by a paddling organization. While I am unfamiliar with some of the technical terms used in the bill, my eventul take away was that this bill didn’t address the jeopardy faced by thousands of lawful users of our navigable rivers and it would have done nothing to prevent from happening to others what happened to us. It also went against a statement VRDF has made on many occassions, that our campaign was not about private property rights versus public property rights and it wasn’t about opening one additional mile of public water at the expense of private property. (It has always been about being able to use public, navigable water fully without the threat of being sued or harassed.)
§ 29.1-745.1. Navigation of freshwaters by nonmotorized vessels.
The bays, rivers, streams, and creeks of the Commonwealth, excluding legal and permanent impoundments and tidal waters, shall be open to navigation by nonmotorized vessels for purposes of recreation between sunrise and sunset. This section shall apply notwithstanding the status of the bay, river, stream, or creek as navigable or nonnavigable or the public or private ownership of the adjoining banks. This section shall not be construed to allow navigation on portions of bays, rivers, streams, or creeks where prohibited by local, state, or federal laws or regulations for purposes of conservation or safety.
A. No person shall be liable for civil or criminal trespass for travel upon the rivers, streams, or creeks within the Commonwealth if the travel consists solely of floating in or upon the water in a nonmotorized vessel for purposes of recreation.
Nothing in this section shall be construed to change existing ownership rights in real property, to permit travel on adjacent banks or wading upon the streambed, to permit hunting or fishing on land or waters where the same is otherwise prohibited, or to allow travel upon portions of rivers, streams, or creeks where prohibited through exercise of the legislative or rulemaking authority of local, state, or federal authorities for reasons of conservation or safety.
B. This section shall apply only to rivers, streams, or creeks of the second order or larger. Streams of the second order are defined as those formed by the confluence of two streams of the first order. Streams of the first order are those indicated by the device of a solid blue line on United States Geological Survey topographic quadrant maps at a scale of 1:24,000.
This bill was defeated by a 21:18 vote.
So, as you can see, there was water, water (talk) everywhere, despite nothing passing. In the end, it was probably best for all that none of this legislation got passed. As one veteran lobbyist told me, it is better for a bad bill to get pulled or shot down than to pass. Because, if an imperfect piece passes, then legislators have a way of mentally ticking off the box, and it is much harder to revisit the situation when the voters realize that the bad bill didn’t solve the problem.
The fight goes on. Stay tuned for more updates on legislative progress.