Recreational Rights Attacked

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Crane
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Recreational Rights Attacked

Post by Crane » Mon Jul 07, 2008 10:14 am

FYI: Recently, another attack on recreational paddlers and other water-way users' rights was filed in the Eastern District, Arkansas federal court, 5:08-CV-0134 WRW. The Anderson Tully Company sued Dustin McDaniel, as the Arkansas Attorney General, to keep him from enforcing the McIlroy decision that allows paddlers and fishermen and women the right of recreational access along our streams and lakes. McDaniel has intervened in several cases in the last several years to keep access open to state waterways and this litigation seeks to enjoin him from doing it in the future. I think preserving this access right is an issue the ACC should support... What do y'all think?
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DeBo
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Re: Recreational Rights Attacked

Post by DeBo » Mon Jul 07, 2008 10:24 am

Yes, we need to support our attorney general on this issue. Access issues are becoming more and more critical. The McIlroy decision should take precedence if we want to be sure of having access to our creeks. Thanks Larry! Is there anything we can do now that would help?
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Re: Recreational Rights Attacked

Post by rynorris » Mon Jul 07, 2008 10:27 am

Without understanding the specifics I can't accurately comment. However I suspect its a non-starter issue filed for political purposes. I cannot understand how a private company can attempt to limit the power of a state elected official within his elected capacity. To do so would allow the Federal Govt to preempt state law in a field it probably has not chosen to do so in, ie State Soverngty (or however you spell that). Just my two cents but its worth being a lawyer on either side. Mmmmmm...billable hours.

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Cowper
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Re: Recreational Rights Attacked

Post by Cowper » Mon Jul 07, 2008 10:53 am

Throughout our history, Anderson-Tully has dedicated itself to good stewardship of our natural resources, respecting environmental concerns while ensuring the supply of hardwoods for future generations. We have also strived to be good neighbors, serving the communities where we live and work.
And they sound like such nice people...

Can you tell us in layman's terms what their filing establishes as the reason they are even interested in this issue?
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Crane
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Re: Recreational Rights Attacked

Post by Crane » Mon Jul 07, 2008 11:07 am

Cowper,
My understanding is that a fisherman refused their caretaker's order to get off "their land", which was an oxbow connected to the river, and threatened to sue him if he did not stay off. The fisherman said "nah" and they sued. The AG intervened on the side of enforcing the state's interest in ensuring safe use of the state's waters. Then, the landowner sued the AG in federal court to enjoin (prohibit) the AG from suing to enforce what the landowner's lawyer calls an unconstitutional state "taking" of lands (under the oxbow lake, etc.)...
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Re: Recreational Rights Attacked

Post by rynorris » Mon Jul 07, 2008 12:30 pm

Now that's a different animal altogether. I would suspect an oxbow vs. a running river carry two different definitions under the Corp. of Engineers rubrick. If this action originated out of Lincoln Co. then I don't suspect it will go very far. Riparian land rights are a state issue and even though AR law is pretty squirrley in the water law field, I still don't think we want the Federalies interpreting AR law. This may end up being a benchmark decision. The ACC may do well to hire counsel to file an amicus brief when the District Court issues a ruling. Regardless of its ruling both sides are likely to appeal and this thing will be heard in St. Louis...if the levee holds.

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Re: Recreational Rights Attacked

Post by Lifejacket » Mon Jul 07, 2008 12:42 pm

Help me understand, an oxbow was once a part of the river, so how do you differ?
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Crane
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Re: Recreational Rights Attacked

Post by Crane » Mon Jul 07, 2008 1:37 pm

It is my understanding that this oxbow still has water to the river at normal flows...
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Steph
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Re: Recreational Rights Attacked

Post by Steph » Mon Jul 07, 2008 4:42 pm

Yea... I get to nerd out again and talk about my research. Oxbow lakes are formed when the river cuts a new (generally straight) channel across the neck of a bend. This oxbow will stay connected to the river at normal river levels for years depending on the amount of downcutting in the new channel and the amount of deposition at the mouth of the lake. During floods, oxbows will function as an extra channel distributing water downstream and out to the floodplain. It can be two hundred years to two thousand years or more before these fill in and become good bottomland for planting on the Mississippi River.

Unfortunately I don't know what the current Corps of Engineers policy is on management of these on the Arkansas and Mississippi.

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Re: Recreational Rights Attacked

Post by Hawk_GT » Tue Jul 08, 2008 7:59 pm

I am not an attorney, nor did I sleep at a Holiday Inn Express last night, but my sources tell me….


The AG’s office is concerned that they have to defend the state’s definition of recreational navigability, again, over and over. The Stimson Chute or Stimson Lake case started with a riparian land owner, Brawley, fishing in his boat within an oxbow lake of the Mississippi River, otherwise know as Stimson Chute. Brawley was threatened repeatedly by other riparian land owners that claimed he was trespassing on private land. Brawley believes that the bed of the Chute is navigable and therefore is held in trust for public use. The land owners then sued Brawley; so the State of Arkansas has filed to intervene in the case. The court will hear if the state can intervene in 2 weeks. At the same time the same attorney that filed the case against Brawley filed for Anderson Tulley v. Arkansas Attorney General Dustin McDaniel. The Anderson Tulley complaint basically is accusing the AG of doing his job in protecting public access to streams, lakes and rivers. The outcome of either of the cases could effect the definition of navigable and what the state owns and therefore affect our paddling.

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David Mac
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Re: Recreational Rights Attacked

Post by David Mac » Wed Jul 09, 2008 8:24 pm

I'm not sure how or if this would apply to land that has "always" been underwater, but I've been working with the corps trying to determine ownership of some islands (for geocaching) and their "policy" such as it is, is that if a land mass was once attached to the shore and the river cut it off naturally, then the land is now part of the river (unless the original owner(s) have maintained a presence of some kind, even if it is a just a boat dock that they go to once a year) and falls under COE juristiction. If the land was cut-off by the actions of man (the COE straightening the river or flooding caused back when they built lock-n-dam system) then the original owner maintains ownership permanently even if only a couple of cypress' are all that is still above water.

The Mississippi is very much a navigable and an old oxbow still attached to the river should definately be considered public waters. I can't imagine anyone's deed along there would ever reflect ownership beyond the shoreline. However...looking at google's satelite pics of the area near Stimson Arkansas at what I'm guessing is Stimson Chute, it doesn't appear to be connected to the main river at whatever the river level was the day those pictures were taken. Of course there could be a water channel hidden under the trees that I can't see.

How does this add up to owership of the lake bottom? Beats me.
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KimL
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Re: Recreational Rights Attacked

Post by KimL » Wed Jul 16, 2008 9:18 pm

Crane, is this the same lake about which Davenport allegedly wanted his no-trespass law a few years ago? Seems to me that the ACC lobbyist said it was all about an oxbow . . . .

The ACC used to file amicus briefs or to sign on to them when other organizations wrote them. How long has it been since the ACC has added its two cents to a court case in a formal way?

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Re: Recreational Rights Attacked

Post by Crane » Thu Jul 17, 2008 8:33 am

Davenport was interested in Crooked Creek, not a lake. It has been a good while since the ACC was a party to any litigation... but, we've given money in the past to assist groups who were involved in issues we care about. I seriously doubt that the membership and Bored could agree on any particular position to get consent to go forward with joining any litigation, but...
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KimL
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Re: Recreational Rights Attacked

Post by KimL » Thu Jul 17, 2008 10:22 am

Crane, I still have the email from an ACC officer who said the lobbyist claimed it was about an oxbow lake. I did not buy it; I always thought it was about Crooked Creek, and if I recall correctly most other people thought so too eventually. An article appeared in the DemGaz that you can find on Lexis-Nexis. If it turns out it is the same lake, it'll be worth it to find out who else is behind the lawsuit. The lake that Davenport said was the cause of his writing the bill was an oxbow created by Army Corps work, I think, but those files were on my old computer.

I believe that every organization that uses Arkansas's waters should be united in fighting the law suit. I would be wiling to donate to a unified fund. Pulling together duck hunters, anglers, boaters, and environmentalists has worked before; doing nothing--or taking a "wait and see" attitude--is equivalent to saying, "take my rights, here and elsewhere."

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KimL
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Re: Recreational Rights Attacked

Post by KimL » Sun Jul 27, 2008 9:38 am

Has the ACC voted to take action on this issue?

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