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Jackson river lawsuit

Started by 9ft4wt, June 23, 2011, 13:37:19 PM

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9ft4wt

I don't have any details and am working to find information, but it seems that the owners of the development on the Jackson tailwater have filed a civil lawsuit against an angler they say was trespassing by fishing at the public access point at Smith Bridge.

Anybody heard anything about this? Seen any news articles? I am told the media is aware of the issue.

Apparently in the civil suit it will be up to the defendant to proof that the property owners do not have Crown Grants. This is different than the criminal charge brought against Chuck Kraft where the landowners had to prove thaey had Crown Grants.

9ft4wt


9ft4wt

Apparently the civilsuit was filed a while back and against at least two anglers.

9ft4wt


Woolly Bugger

so, does that mean that the "public access" is for boating only, no fishing?

any links to a newspaper article?

ex - I'm not going to live with you through one more fishing season!

me -There's a season?

Pastor explains icons to my son: you know like the fish symbol on the back of cars.

My son: My dad has two fish on his car and they're both trout!

9ft4wt

Have not found an article. Searching court records but idon't have the name of either the plaintiff or the defendants.

I would say nothing is clear at this point. And nothing will be clear until the suit is settled one way or another.

Don't know if there is an injuction by River's edge to block all fishing until this is resolved or not

I guess if you want to risk going and become a party to the suit...

Soon as i get more info I will post it. maybe someone else has more details.

Natureboy?

9ft4wt

9ft4wt


Woolly Bugger

will be up there fishing in July  ;D

ya'll start collecting bail money..  :o

ex - I'm not going to live with you through one more fishing season!

me -There's a season?

Pastor explains icons to my son: you know like the fish symbol on the back of cars.

My son: My dad has two fish on his car and they're both trout!

flatlander

Quote from: Woolly Bugger on June 23, 2011, 15:00:15 PM

will be up there fishing in July  ;D

ya'll start collecting bail money..  :o

Can I drive the Miata while you're in the pokey?


troutphisher

Quote from: Woolly Bugger on June 23, 2011, 15:00:15 PM

will be up there fishing in July  ;D

ya'll start collecting bail money..  :o

I just halved my beer budget to cover bail money.......But I still plan to run if confronted.

The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.

natureboy

Well this is interesting.  It may offer a ray of hope though, maybe it's just because it's Friday I'm feeling glass half-full, but this is my take.  I visited the River's Edge last year and had a couple conversations with the owner(s).  Apparently they were planning to meet with lawyers (same ones on the landowners team in the Kraft case) and go before a judge to prove that they have the crown grant.  I think the goal is to turn that development into a private fishing club for owners only (think Donnie Beaver South).  Perhaps that failed and their lawyers devised this plan to keep anglers off their stretch.

Important to this incident, there was mention that when the US Forest Service was negotiating with the owners (there was a land swap for the Smith Bridge Access), the USFS took all the dry land they could get and didn't get the river bottom to the CL of the River.  This could potentially make this access point useless if they actually have the crown grant and seems what they developers are trying to do.

This whole thing stinks and its a super complicated/convoluted situation.  It basically renders the best trout river in VA inaccessible to the general public, though the river is legally navigable.  It would be really nice if the legislature did something about it, but I aint holding my breath.

I did notice on my trip there that the owners had cut off one of the side channels and only having a small culvert through the embankment there, pretty much turning a side channel of the river into a golf course water feature.  In my opinion that's a big no-no without lots of Corps of Engineers permits, etc. since the land is obviously in the flood plain.  Maybe there is some recourse there...


WRector

June 24, 2011, 22:38:39 PM #8 Last Edit: June 25, 2011, 07:49:23 AM by Woolly Bugger
Quote from: natureboy on June 24, 2011, 11:22:10 AM

I did notice on my trip there that the owners had cut off one of the side channels and only having a small culvert through the embankment there, pretty much turning a side channel of the river into a golf course water feature.  In my opinion that's a big no-no without lots of Corps of Engineers permits, etc. since the land is obviously in the flood plain.  Maybe there is some recourse there...

Almost certainly there would have to have been a 404 application put in for the culvert and pretty stringent protocols being that the Jackson is Trout waters.  Plus a FEMA flood study done as well.  Not sure who the FEMA coordinator is for the area, but here's the Corps contact information.  I don't work in VA but would certainly be worth a call.

Army Corps Field Office
Enforcement and Compliance
Charlottesville Virginia Field Office

920 Gardens Blvd. Suite 200
Charlottesville, Virginia 22901

Vinny Pero (434) 973-0568

Rick Henderson, Chief Enforcement and Compliance Regulatory Section
richard.e.henderson@usace.army.mil

There's a big difference between a dry fly dancing through
a riffle and a weighted fur ball dragging on the bottom.

Woolly Bugger

June 25, 2011, 15:42:45 PM #9 Last Edit: June 25, 2011, 15:46:20 PM by Woolly Bugger

snooping around the interwebs I came across some more information.

The case is NS Development v. Frank Garden, et al.
A lawsuit that was filed by NS Development Co against three fishermen, one a guide.

There is a new group that has formed to help in their defense.

Contact WILLIAM TANGER <bill.tanger@verizon.net>to get on the mailing list for updates on this issue.
I'm sure that they will also ask for a donation to the defense fund...

http://forva.giving.officelive.com/Documents/FORVA-Newsletter-Projects%20Ongoing%203-15-11.pdf

ex - I'm not going to live with you through one more fishing season!

me -There's a season?

Pastor explains icons to my son: you know like the fish symbol on the back of cars.

My son: My dad has two fish on his car and they're both trout!

TakeTheFly

Hello All,

I am new to your forum and am the angler at the heart of the Jackson River law suit, along with my brother-n-law and his pastor.  I am not a guide, but an average Joe fly fisherman who would not yield to a harrassment campaign by a developer and one of his well-resourced property buyers (who thought they were getting private river with their lot).  My passion for the Jackson and the sport and my desire to see it preserved for my children, got me sued (twice).

Below is a letter I wrote to my Virginia State Senator which summarizes the issue.  Like I state, the implications of this injunction attempt go well beyond just one man and one river stretch.  If the injunction stands, we will see this "privatization" mechanism, of putting the burden on the fisherman to produce evidence that a landowner doesn't have a deed to the river bottom, spread to more of our favorite fisheries in Virginia.  It also goes well beyond trout fishing, to hunting and paddling, etc.  This is about the right of the public to use its own water resources.  This is not just a fly fishinging issue.

You will soon see stories beging to break on this red hot topic.  We will need the help of this forum's members and many many more to fight a good fight, so start spreading the word.  My brother-n-law and I have personally been fighting this for many months and have reached our financial capacity.  Our resolve is still strong however.  We didn't pick this fight, but we have to finish it.  So, what can BRFFF members do:

1)  Write the VA Attorney General and tell him to join this case and defend the state's ownership of its river bottoms.  You can find his contact details on http://www.oag.state.va.us/CONTACTS/index.html
You don't have to be just a VA resident to do this.  It may be better if you say you spend money in VA fishing streams and you're not coming back until you know where you'll be sued and where you won't.

2)  Contribute to the defense fund:
Virginia Rivers Access Fund (VRAF)
C/O FORVA
PO Box 1750, Roanoke VA 24008

We have reserved a website to tell the story and facilitate fund raising@ www.virginiariversaccessfund.org, but haven't had the time or resources to get anything up yet.  If anyone wants to contact me and help in any way, feel free to email and we'll connect.

tight lines,
------------------------------------------------------------------

Dear Creigh,

The sportsmen of Virginia need your help.  We would appreciate your reviewing our situation and bringing it to the attention of the AG's or the Governor's office.

In short, a developer near Covington is suing me and my brother-n-law in the Alleghany Circuit Court to enjoin us from fishing (technically treading along the bottom of) the Jackson River (just below Smith Bridge) which runs through his property.  However, under a Virginia statute that is more than 200 years old, the beds of all rivers and streams "are the property of the Commonwealth and may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish."  The developer is claiming that he owns the bed of the Jackson River by virtue of two different 18th century land grants that predated the passage of the statute.  One is a 1743 crown grant executed by the governor of Virginia on behalf of the King of England and the other is a 1785 grant from the Commonwealth of Virginia.  He claims to have an uninterrupted chain of titles that include the river bottom.

We have been told for years by state officials from the Department of Game and Inland Fisheries that our Commonwealth owns the river bottom through this stretch of the river (many miles below the Gathright dam) and that we are allowed to fish it.  The State markets this stretch of river as a blue-ribbon trout fishery on its website and has put in access ramps for the public to use and its law enforcement officials confirm to the public that this is a public resource.

http://www.dgif.virginia.gov/fishing/waterbodies/display.asp?id=153

Late last year the developer filed criminal trespassing charges against us in General District Court, but the judge dismissed the case, telling all parties this type of case was wasting his time and there were other courts better suited to adjudicate this issue.  So, the developer has now filed suit in civil court, seeking an injunction against us and essentially all sportsmen of Virginia.  I have retained a lawyer to defend us in this case, but this case has much larger implications than just where two law-abiding guys can fish.  If the injunction is to be upheld, this will have a ripple effect on the public's access to the colonial-era rivers in Virginia.  If the burden is put on the recreational user to disprove a landowner's claim of King's grant (which the plaintiffs are attempting to do), then more and more land owners along our colonial-era rivers will be emboldened to post "their sections" of the river as private property and sue trespassers.
As part of our defense, our attorney filed a motion (simultaneous with our response to the original pleading) seeking to attach the State (VMRC) to our case as a third-party defendant.  This made sense to us since we are being sued for treading on land, for which we don't have the title, but that we've been told is held in the public's trust by the State.

We found out recently, that despite early enthusiasm among the AG reps from various agencies, that the AG's office is not going to willingly attach to this case.  This puts a positive outcome for the citizens of Virginia right to use their public resources, in jeopardy.  Since this river flows through your district, it particularly impacts your constituents.

Attached you will find a couple of documents:
1) the original pleading
2) our response to that pleading and the motion to attach the State as a third-party defendant, plus a motion to compel the developer to present his uninterrupted chain of deeds
3) the plaintiff's motion to strike our motions

Currently there is a hearing set in Alleghany Circuit Court for July 25th to argue our two motions.  The judge could compel the State to join if he/she feels it is central to finding the truth, but there's no telling if the State will claim immunity or something like that.  The State has a critical interest in the outcome of this litigation and needs to participate in the litigation to defend its property interest in the bed of the Jackson River and the interests of the sportsmen of Virginia who use the river for boating and fishing and hunting.  Today it is very unclear to sportsmen, where they can and can't recreate.  Both of the old land grants being cited by the developer describe the property conveyed without explicitly referencing the bed of the Jackson River.  The grants also don't mention fishing rights.  So, this case is very different from a previous Jackson River case (Kraft v. Burr), of which you must be aware, where it was undisputed that the landowners owned the bed of the stream.  In our case, the developer is claiming to own property that, on the face of it, appears to belong to the Commonwealth in trust for the people of the State.

If the State does not defend its property rights in this case, its rights to other rivers and streams may be compromised, along with the ability of the people of Virginia to fish, boat, and recreate in these rivers.  Imagine if this trend catches on along the James or Shenandoah or any of the other many navigable gems this state has in her crown.  As the case develops, the developer and his well-funded property owners may put convincing facts and arguments before the court.  But the Commonwealth should not just abdicate its interest in the river at the very start of the case.  It needs to step in and defend its property interest and the rights of the its citizens.  The State's participation is also needed to ensure that the court has all relevant facts and arguments available before it makes a decision

Again, if there is anything you can do to help convince the AG or Governor to defend the State's property, all the sportsmen of Virginia would appreciate it.  We have begun to contact many influential sportsmen communities in the 25th district and state-wide.  From initial conversations, the issues in our case are galvanizing boaters, fishermen, hunters, outfitters, etc., and they stand ready to mobilize their members to vigorously fight for their businesses, past-times, hobbies and passions.

thanks for your attention,


Woolly Bugger

Thanks for the post TTF, that is indeed a sticky wicket. Keep us posted on any developments and I encourage all to take the time to write a letter to the VA AG as outlined in TTF's post.

ex - I'm not going to live with you through one more fishing season!

me -There's a season?

Pastor explains icons to my son: you know like the fish symbol on the back of cars.

My son: My dad has two fish on his car and they're both trout!

TakeTheFly

July 01, 2011, 12:08:51 PM #12 Last Edit: July 01, 2011, 12:11:24 PM by TakeTheFly

This article hit the digital press a few days ago.  I'm sure many more will be on its heels.  The title is a bit confusing because the key issue is not so much about access, but about whether or not the state will defend its property (the riverbed), and if not, what implications does that have for all of the other waterways in Virginia, where the state is presumed to hold the property in trust for the public's use.  Can anyone just claim to own a river bottom and sue a fisherman for using it?

http://midcurrent.com/conservation/virginia-anglers-sued-in-jackson-river-access-suit/

The Attorney General of Virginia needs to step up and assert the interests of the Commonwealth, or else none of us can know for sure where we can fish and where we can't.  I can speak from experience, it's not fun to get sued for pursuing your passion while following all the rules.

* Note, I see the editor of Midcurrent has changed the title.  Kudos.


natureboy

HAPPY INDEPENDENCE DAY... 


Al

This case made today's issue of the online version of Roanoke Times http://www.roanoke.com/outdoors/billcochran/field/



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