A Good Day in Court…Stay Tuned
Yesterday, in the Alleghany Circuit Court, Judge Trumbo heard oral arguments for and against a motion for summary judgment. The Plaintiffs were seeking a ruling that would declare them owners of the river bottom as a matter of law, which if granted would be devastating for our chances of prevailing. While it is neither possible nor advisable to “read” a judge’s mind by the line of questioning he/she pursues, I think we feel confident in presenting the following “take-aways” from yesterday’s’ proceedings:
- The judge was very prepared for the hearing and had thoroughly reviewed the relevant briefs and had even done extensive historical and case law research on his own.
- The proceedings lasted over two hours and most if not all of the arguments, presented by both sides in their briefs, were equitably covered.
- The judge recognized that the Abercromby grant (crown grant) does not contain references to the river bed as part of the conveyance, while the Mann grant (Commonwealth grant) crosses the river and includes parcels on both sides of the Jackson.
- The judge opined that the paying of taxes on land has nothing to do with determination of rightful ownership and advised the Plaintiffs that this argument would not have much sway. He also ruled that the Jackson was in what he considered, historically speaking, to be the “Western” part of Virginia and that any statutes that applied to the “Eastern” part of the state invoked in the Defendants’ brief would not influence his decision.
- It is undetermined whether the disputed section of the Jackson will be considered navigable or non-navigable for purposes of this case, and which standard, definition or case law may be used to determine such a designation.
- Except #5 above (rejecting the “Eastern” Virginia argument we raised), the judge made no ruling during yesterday’s hearing; rather, he took the remaining arguments under advisement and will render an opinion at some future point in time. He did not give an exact time frame for the rendering of his decision.
- Not one single person, other than both parties’ counsel and a court reporter, attended the public proceedings.
So, now for the opinion part of my summary: We are very fortunate to have such a considerate and knowledgeable judge for such a critical case for our state and believe the issue is already receiving a fair hearing, considering the time it appears this judge has dedicated to the question so far. However, it is unfortunate, considering the magnitude of the potential impact this case will have on the state’s public recreational and natural resources (and the fact that most of yesterday’s arguments and questions will not be repeated in a full trial), that no one showed up to hear the arguments in person. Maybe everyone was worried we wouldn’t carry the day, so they were fishing one last time on their favorite river before the hoards of King’s Granters descend upon them with threats of civil suits. For those doubters, while it was almost surreal to be arguing the public’s position in an empty court room, the good side had a good day. We expect a ruling on the Plaintiff’s motion in the next 2-4 weeks and a trial in the Fall.
Full Court Press (Release) by the JRA
I blogged about this on Monday, but here is the full release from the JRA.
FOR IMMEDIATE RELEASE: April 26, 2012
For more information contact:
Pat Calvert, Upper James Riverkeeper, James River Association
(434) 964-7635, pcalvert@thejamesriver.org
James River Association Makes Donation in Support of Citizens’ Right to Fish Virginia’s Rivers
With support from the Keith Campbell Foundation for the Environment, the James River Association made an $8,000 contribution to the Virginia Rivers Defense Fund. Pat Calvert, the James River Association’s Upper James Riverkeeper, presented the check to Dargan Coggeshall of the VRDF at the Virginia Fly Fishing Festival, held April 21, 2012 in Waynesboro, Virginia.
Coggeshall and Charles Crawford, two anglers, are defendants in an ongoing civil trespass suit in which North/South Development, LLC, developers of the Rivers’ Edge golf community near Covington are claiming ownership of the bed of the Jackson River by virtue of two 18th century land grants, often referred to as a King’s or Crown Grant, that predate the current Commonwealth statute.
According to Coggeshall, the gift from the James River Association represented the most significant single contribution to the defense fund to date. The funds will be used help pay the defendants’ estimated $80,000 in legal fees.
James River Association Executive Director, Bill Street said, “As guardian of the James River and a proponent of all citizens’ rights to enjoy the Commonwealth of Virginia’s rivers and public waters, the James River Association, its Board of Directors and Upper James Riverkeeper, believe that it is important that the interest of the public be well represented in this case.”
Pat Calvert added, “Our objective in supporting the defendants in this case is not only to promote public recreational access to waterways within the James River watershed, but to ensure that Virginia’s rivers are enjoyed and protected in perpetuity under the guardianship of the Commonwealth.”
The James River Association hopes that by stepping forward in support of the Virginia Rivers Defense Fund that other anglers, canoeists, kayakers and people who responsibly enjoy the outdoors will offer their support in this important case. Donations can be made online at the VRDF website: www.virginiariversdefensefund.org
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ABOUT THE JAMES RIVER ASSOCIATION:
The James River Association (JRA) is a member-supported nonprofit organization founded in 1976 to serve as a guardian and voice for the James River. Throughout the James River’s 10,000-squre mile watershed, JRA works through four core programs – Education & Outreach, Watershed Restoration, River Advocacy and the Riverkeeper Program – to help people of all ages enjoy, appreciate and protect the beauty and health of the James River for future generations to enjoy. For more information on JRA visit www.thejamesriver.org
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Throw at the big fish ‘mon!
I don’t know about you, but as I have become a more mature and wiser angler, I have found myself becoming more discriminating. Don’t get me wrong, I still love the tug, any tug, on the end of my line. However, in recent years I have begun to focus my attention on taking bigger and bigger fish. Fish, which, as a bonefish guide once told me, “didn’t get that size ‘mon, by bein’ caught.” Not only are these fish more challenging to catch, but delivering them to hand gives me a greater sense of accomplishment, a greater sense of validation as an angler.
I guess it is my angling trend towards pursuing the real “difference makers,” that leaves me puzzled when I try to figure out how our Attorney General prioritizes which fish he goes after. I read yesterday that he is suing the White House party crasher, Tareq Salahi (who also happens to have declared his intent to run for governor) for swindling wine tour hopefuls out of $29.95 wine tour tickets. Yet, he sits idly by, while a land developer essentially intimidates sportsmen and takes a priceless state resource. That would be kind of like me watching a citation brown trout, rising regularly in an intimate pool to emerging caddis bugs, then deciding to throw short and see if I can catch the creek chub that’s been darting around at the tail of the pool, eating anything that washes down to it. Why?……….Why?………Why in the world, would I choose to have the creek chub take my fly and spook the whole pool? Why? So I can say I caught a citation sucker fish and pose for the grip ‘n grin?
I guess global warming researchers and wine tour operators are a bigger threat to the constitution of Virginia than a developer, partnered with a British monarch rising from the grave, to steal away one of our most precious state assets…a navigable river and world-class fishery.
Come on ‘mon. Throw at the big fish! That one ‘mon!
The James River Association Joins the Fight
Yesterday, at the Virginia Fly Fishing Festival in Waynesboro, Pat Calvert of the James River Association, presented the VRDF with a check for $8,000. This is the most significant single contribution to our defense fund to date and represents a strong committment by a well-respected organization which clearly understands that the more people use a river, the better the stewards they will be. They also understand that this case has implications far beyond one section of a single river. Here is their proclamation:
“As guardian of the James River and a proponent of all citizens’ rights to enjoy the Commonwealth of Virginia’s rivers as public waters, the James River Association, its Executive Committee and Upper James Riverkeeper, support the defendants in the “Jackson River/King’s Grant” case. We wish to uphold the Virginia statute that the rivers and streams “are property of the Commonwealth and may be used as a common by all people for the purposes of fishing, fowling, hunting, and taking and catching of oysters and other shellfish.” Our objective in defending this case is not only to promote public recreational access to waterways within the James River watershed and throughout the state, but to protect the rivers in perpetuity to ensure that individuals/developers, etc. cannot cite protection by King’s Grant as justification for damaging or destroying stream banks and stream beds in a way that will potentially cause pollution, compromise water quality or endanger wildlife. JRA encourages everyone who uses the river to support the Virginia Rivers Defense Fund, as we will be doing, to help pay the defendant’s estimated $80,000 in legal fees and to protect and preserve the James.”
Virginia Rivers Defense Fund is honored to have such a committed partner in our fight to keep Virginia’s public rivers open for public use, without the threat of litigation or harassment. Thank you.
Mold Grows Better in a Dark Shower
Many of you that follow this blog know that we’ve been trying to figure out why the Commonwealth, via the AG’s office, refuses to step forward and protect the property of the Commonwealth in our case. One of our supporters emailed me his opinion on the topic, which you can read below. I can’t say if his theory has merit or not, and I’m not one to put much faith in conspiracy theories, but I do know two things from my years living in a fraternity house at UVa, an “F” is an “F”, no matter how incompetent you think the professor is, and, mold grows much better in a dark shower.
Here’s what RJ had to say:
A new investigative report finds Maryland and Virginia have high risks of public corruption. The State Integrity Investigation was put out earlier this week, and both Virginia and Maryland fared poorly — especially the Commonwealth, which earned a failing grade.
With no limit on how much donors can give to candidates, no statewide ethics commission, and an oversight structure filled with loopholes wider than the Blue Ridge Mountains, Virginia earned an “F” in the State Integrity Investigation report card. The reviews provide an in-depth report on each state, based on 300 indicators of accountability, transparency, and corruption risk.
Virginia ranked 47th out of 50 states and earned an ‘F’ in 9 of the 14 categories. It’s one of only four states that have no limits on campaign contributions. As a result, wealthy individual donors can have an outsized influence during election season. The Commonwealth also has the dubious distinction of being one of the few states without an ethics commission.
The State Integrity Investigation also found that the ethics and oversight laws that are on the books are lacking. For example, the report found that Virginia’s freedom of information act does not apply to the state corporation commission, which regulates utilities, businesses, banks and other institutions.
I hope that a jury trial is demanded as the case on the Jackson moves through the court, and if so, I hope Dargan’s attorney makes it clear that the state and therefore each citizen on that jury is the rightfull owner of the river and its bed. History reveals that our earliest lawmakers enacted a statute in 1779 “that claimed an “exclusive right of preemption” over all lands within the bounds of its “chartered territory,” including the lands north and west of the Ohio River. Moreover, the act made null and void every land transaction between individuals and the various tribes of Indians, or grants from English crown to any individual within the commonwealth, transferring control of all such lands into the hands of the commonwealth.”
My elected official, Sen. Creigh Deeds, has chosen to “sit this one out,” as it just so happens, due to the crazy shape of his district, he also represents the land developer in this case as well. The AG has also refused to intervene, saying this is a dispute between private parties. It just so happens that a large class of donors to Republican gubernatorial campaigns likely feel threatened by this case, somehow seeing it as an assult on private property (which it is not!).
Anyone seen the Clorox spray bottle and the flash light? The shower stall sure is moldy.
All Navigable Rivers East of the Alleghany Mountains, Raise Your Hands
Last week, the Plaintiffs in our case filed a Reply in Support of Motion for Summary Judgement – April 3, 2012. While I am no lawyer, it seems they are now asserting:
1) ”river bed” doesn’t have to be expressly referenced in the original grant because the King “meant” for it to be in all grants of that era. [For anyone who has read the Virginia Supreme Court decision in Kraft v. Burr, that entire case revolved around the courts interpretation of the phrase, "etc., etc., etc." Unfortunately, only one side had the resources to hire experts to help the court interpret "etc., etc., etc." and that is the side that prevailed, in what is probably the most damaging case to public angling in our state's history. Footnotes in the Court's decision show they might have ruled differently had they been presented with evidence to the contrary. ]
2) because the Jackson was “non-tidal,” at the time of the Abercromby grant, this also meant it was ”non-navigable,” (since only tidal rivers in England are navigable), which means conveyance of the river bottom to mid-stream.
3) the Jackson was non-navigable before it was navigable, so the Federal test for navigability is irrelevant in this case.
4) the Jackson River was classified as a “Western” river, in a state that spanned all the way to the Ohio River.
While I don’t want to put words in their mouths, it seems to me if the judge accepts the plaintiffs’ assertions as fact, we could see dozens and dozens of copy cat cases on hundreds and hundreds of miles of Virginia rivers. Any non-tidal riparian landowner whose property was initially part of a King’s Grant (and most of the good land east of the Blue Ridge mountains was) and whose property is east of the Alleghany mountains, could be emboldened to sue a river user for trespass, regardless of whether or not their grant expressly mentions the river bottom and regardless of whether or not said river is navigable in fact.
This should scare the heck out of any recreational water user in the state of Virginia and it should scare the heck out of the Virginia Department of Game and Inland Fisheries. Our rivers could become filled with land mines of litigation if 1-4 above are deemed true.
This Isn’t Two Neighbors Fighting Over a Driveway
As many of you know, the American Sportsfishing Association put out an action alert last week to all of its members in Virginia. The alert encouraged them to contact our Attorney General and request he attach to our case and protect the assets of the Commonwealth. All of those who clicked on the button to send the AG an email received this templatized response from the AG’s office:
Dear _________:
Thank you for your email regarding the ongoing Jackson River litigation. We appreciate you taking time to share your thoughts on this important issue.
As you may be aware, the current action pending in Alleghany Circuit Court is a private trespass action. The Commonwealth has an obligation to learn all of the facts before intervening in a dispute between private citizens. This Office does not generally intervene in such actions, and in fact in this case the court did not determine it appropriate for the Commonwealth to join as a party in response to a motion filed by the defendants.
This does not, however, mean that we are not paying close attention to this case. To the contrary, since the time of its filing, we have been actively reviewing the landowners’ claims, and have been in communication with the attorneys for both parties. Any action on the part of this Office in response to this situation will be based on a thorough review of the information that is available to us.
This case involves a landowner claiming to own bottomlands through a chain of title traced back to an original grant from the king of England. There is no requirement that a landowner claiming title pursuant to a king’s grant must make a submission to any state agency prior to proceeding with a civil action against alleged trespassers. Such landowners claim title just as any other owner of real property does in Virginia — through deeds recorded in the land records of the appropriate local courthouse. No other public notice of ownership is required. Once a private landowner has asserted such a claim in court, it makes sense for the Commonwealth to exercise discretion and not pursue any changes against the landowner for restricting use of the bottomland until the court has made a decision concerning rightful ownership. Please also note that any criminal charges against a landowner would be prosecuted by a local Commonwealth’s Attorney, not by this Office.
I hope that you find this information helpful. If this office can be of further assistance to you in the future, please do not hesitate to contact us again.
Sincerely,
Amy Saucier, Director of Legislative and Government Affairs Office of the Attorney General
For any of you who have written the AG’s office outside of the ASA action alert, this templatized response will look familiar. While on the surface their response about the state not intervening in (nor having standing in) private disputes between two parties is correct, our issue is fundamentally different. Our case is not two guys arguing over who owns the land under the driveway between their homes. If that were the case, then the AG’s response is perfectly reasonable.
However, our case is much different. We were invited by the state (which has a constitutional amendment preserving the right to hunt & fish) to use a public waterway. We bought state fishing licenses, followed all of the VDGIF state agency regulations, put in at public landings, were in a river whose quality is managed by the state DEQ and the USACOEs…and are being sued by someone who says they own the property of the Commonwealth. (I guess the fact that the experts we hired to do research can find no specific reference to the river bed in the grants is only marginally important to the AG’s office:-)
Someone should hit reply to the templatized response and ask Ms. Saucier, “Why is it the angler’s job to defend the property of the commonwealth of Virginia? Is not that the job of the AG?” Someone should ask, ”What if West Virginia or Maryland wanted to annex the river. Would the AG fight for it? Would the AG intervene? Would the state then have standing?” And someone needs to ask “What is the treshhold for intervening? Is not the brief that was submitted by the anglers to the court several weeks (which was really and expensive exercise by a private citizen doing the state’s homework for them) ”thorough” enough to warrant intervention?”
Someone should tell Ms Saucier, “this isn’t two neighbors fighting over a driveway. ”Paying close attention” will only lead to more sportsmen and sportswomen being sued privately for using our state’s resources.”
I wonder what the return email would say then????
Because Everybody’s Got a King’s Grant
The other day, my daughter told me she wanted an iPhone. She’s twelve! Her rationale was that “everbody’s got an iPhone.” That’s how twelve year-olds think. In her mind, she had all the proof she needed. In her mind she was 100% correct. In her mind I should have run out and purchased her an iPhone…because everyone’s got one.
This exchange reminded me of an “incident” that occurred on my fishing trip yesterday. A friend and I floated the Jackson and witnessed one of the biggest caddis hatches I’ve ever seen (east coast or west). Bugs non-stop for 8hrs. The fishing was slow at first, but we did manage to find some browns and rainbows.
Jackson River Brown
Towards the end of our day, about 1 mi. from the public landing in Covington, we were approached by a gentleman who told us we were on his property and were going to have to move on down the river because they didn’t allow people to wade fish “from that first fish camp up there, clear down to that point.”
Another King's Granter
His first reason was that “we own property on both sides,” then he went with “I been sued by folks who had gotten hurt in the river.” When we showed confusion over how he could be sued by public river users hurting themselves in a public river, he then played the King’s Grant card. The ole’ King’s Grant card. That trumps every card in the deck, don’t it? He also mentioned something about “you fly fishermen want the river all to yourselves,” and ”why don’t you just come on up here and take your picture.” I wanted to ask him from which King his grant originated, but resisted the attractor pattern and moved on down the river without a confrontation. The very next landowner we encountered thirty minutes down stream, who had lived there for 32 years, and was planting trees on the riverbank to conserve the river, laughed at the thought of anyone “down here having a King’s Grant.”
We were a full twelve miles or so down from the Kraft v. Burr King’s Grant properties, a full five or so from the property that is the basis for our suit. This type of harassment and intimidation on our state’s public rivers is exactly why we had to make a stand in our case. If we had just folded our tent and accepted the injunction order, our harassing landowner from yesterday would have been more emboldened, knowing the upstream plaintiffs had “won” because they picked out a weak lamb, knowing the state did not intervene because it insists this is “just a private dispute between private parties.” And who knows, the tree planting landowner might have been tempted to turn to the dark side and say, “what the heck, think I’ll go tell folks I have a King’s Grant too, so they don’t get out in front of my newly planted trees. Then the harassments would jump to the next river over, and the next river over, and the next…..Pretty soon, everyone will have an iPhone, I mean a King’s Grant, because everybody’s got an iPhone, I mean a King’s Grant.
Makes perfect sense if you’re a twelve year old.
$10 to anyone who can find “riverbed” in the grants
As many of you know, the plaintiffs in our case filed a brief in support of their motion for partial summary judgement. This is a common legal maneuver in cases where most of the key facts are not in dispute, which allows the facts to be “moved out of the way,” so a judge can decide based on rule of law. However, in our case the key fact, who exactly owns the riverbed, is still contested, so I’m not sure of their purpose. They claim that all of the necessary facts are contained within the recorded documents in the chain of title, of which the Court may take judicial notice, but there’s only one problem, the language of those grants, under the law prevailing at the time of the grants, failed to convey the riverbed to the plaintiffs’ predecessors in title. That’s a fancy way of saying we can’t find “riverbed” in the grants.
Whether this motion for summary judgement was little more than a slick move by the plaintiffs to try to get a judge, any judge, to say they own the river bottom, as expeditiously as possible, or it has some legitimate foundation, the problem remains, they must show from undisputed facts that the river bottom was initially included within the grants on which they rely and that the river bottom was ultimately conveyed to them. Getting a positive ruling on this motion would certainly strengthen their position in the trial. However, there is only one problem. Our side can’t find any references to the riverbed in the grants. Sorry, have a I said that before? We can’t find where the river bottom was included in their initial grants.
Last week, our lawyers submitted to the court this Brief in Opposition to Plaintiffs’ Motion for Partial Summary Judgement. In that brief we lay out a compelling argument that:
1) the language in the Abercromby Grant from the king simply doesn’t convey the bed of the stream (river),
2) while the language of the Mann grant issued by the Commonwealth includes references to land conveying on both sides of the river, the grant does not explicitly mention the bed of the river (and therefore did not convey it),
3) since the Jackson River was considered situate in the “Eastern” portion of Virginia, the General Assembly Act of 1780 protected that river and prevented the conveyance of riverbeds going forward, and
4) the emergence of a “third” Commonwealth grant (McClintic), in which the plaintiffs must concede could not have been intended to convey any portion of the riverbed, yet the language is the same as that in the Mann grant.
While there is no way to tell how the judge may rule in this case, Williams Mullen has done a very thorough job in showing that, at minimum, material factual issues remain. I find it compelling, but then again, I’m biased. I believe Virginia’s public rivers should be made available to the public and that the public shouldn’t be sued for using them. If that makes me guilty, then guilty as charged. If the river bed needs to be explicitly mentioned in their grants, then what the heck are we doing here a year and tens and tens of thousands of dollars later.
Oh Commonwealth of Virginia, where are you? Is it really being left up to us to prove this river belongs to the citizens of the Commonwealth? If so, since we are the defenders of our public property, can we send the bill to the public treasury?
How ’bout the Print Version?
Virginia Living Magazine just published an online article on our case. This is a positive step in that they are more mainstream media, but I had hoped it would find its way to this month’s print version, which has of all things, a fly fishing cover story. I had also hoped for a more explicit version of the article which went beyond what the public already knows.
I don’t know why our issue didn’t make it to the fly fishing edition. If you are a friend of the VRDF would you please comment on this piece, thanks the editor for the short piece, but encourage the editor to be bolder. We need a broader base of awareness of the threat posed by this case and Virginia Living is the type of publication that could do that…if the editor feels there is interest. Unleash that interest please. Click here to send him/her a comment.
Kudos to Virginia Sportsman for running their article in their print edition which I’m told generated a lot of buzz and letters-to-the-editor.
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