Water.....

[MagnificentUnicorn]

Damn river is dropping like a rock. Thought for sure I'd gotten my fish screen deep enough but nope.... 5 days later I'm moving it again.

Attachment 461003

Wow, you guys are sucking that river dry


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[KQ]

Wow, you guys are sucking that river dry


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I'm small potatoes with a junior right. Its the hay guys up river that are taking it all. Right now I'm just trying to keep my pastures green (about 4 acres).


The balance of my land is dryland wheat with a scant 5 acres of onions and 10 acres of seed corn. Currently not watering corn or onions.

[Danno]

Not about consumptive use but makes more sense here than anywhere...
(link should be past paywall) https://www.nytimes.com/2022/09/01/b...smid=share-url

For anyone wondering about this lawsuit, the Colorado Supreme Court ruled on it yesterday: https://coloradosun.com/2023/06/05/c...ccess-dispute/

[MagnificentUnicorn]

I'm small potatoes with a junior right. Its the hay guys up river that are taking it all. Right now I'm just trying to keep my pastures green (about 4 acres).


The balance of my land is dryland wheat with a scant 5 acres of onions and 10 acres of seed corn. Currently not watering corn or onions.

Is the problem as bad on the Touchet?


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[old goat]

For anyone wondering about this lawsuit, the Colorado Supreme Court ruled on it yesterday: https://coloradosun.com/2023/06/05/c...ccess-dispute/

Cirular reasoning at its fines. The guy sues to establish that the river is state property because it was once navigable. The SCOTSOC says he has no standing to sue because it has not been established that the river is state property. IOW he can't sue unless he wins the case he doesn't have standing to bring. Nor can anyone else sue, ever. Some excellent prospects for the SCOTUS on that court.

[KQ]

Is the problem as bad on the Touchet?

Yanno I'm not sure. I've got a friend who is up Woodward Canyon that has a surface right off of the Touchet. Haven't talked to them in a bit. Will have to ask.

[Danno]

Cirular reasoning at its fines. The guy sues to establish that the river is state property because it was once navigable. The SCOTSOC says he has no standing to sue because it has not been established that the river is state property. IOW he can't sue unless he wins the case he doesn't have standing to bring. Nor can anyone else sue, ever. Some excellent prospects for the SCOTUS on that court.

Nope, that is not what it says.

"The SCOTSOC says he has no standing to sue because it has not been established that the river is state property."

No, they said he doesn't have standing to sue to establish that it is state property, which he must do in order to assert any right to fish there; FFS the opinion quotes his own complaint, that alleges his right to fish rests on proving it is state owned property.

"IOW he can't sue unless he wins the case he doesn't have standing to bring."

Establishing it as state owned property was at the very heart of his suit, while you are treating it as something separate from what he sued for.

"Nor can anyone else sue, ever."

Also not true. Some possible scenarios: A riparian landowner could pursue a quiet title against the state (maybe they're a fisherman looking to establish the same principle as Hill or maybe they don't want to pay as much property taxes). The executive branch could pursue state ownership, through a state agency (CPW, State Land Board) or the governor's office. The legislature could too. I could also imagine scenarios where the standing question would be much thornier, like if Hill owned property just downstream of Warsewa and was seeking to access it via the river; there are lots of cases to support the notion of standing where the case involves an adjacent landowner, someone with a particular interest in the subject property. What the opinion does say is that someone with nothing more than a recreational interest in fishing in this spot does not get to litigate the state's title.

"Some excellent prospects for the SCOTUS on that court."

Actually, there are. If there is an opening, Biden could do a fuckton worse than the author of that opinion, and couldn't do much better.

[Danno]

Cirular reasoning at its fines. The guy sues to establish that the river is state property because it was once navigable. The SCOTSOC says he has no standing to sue because it has not been established that the river is state property. IOW he can't sue unless he wins the case he doesn't have standing to bring. Nor can anyone else sue, ever. Some excellent prospects for the SCOTUS on that court.

Let me give you another example in a different context. There's a property for sale that would be great for hunting, and you like to hunt. Jason is selling the property, and there are 2 guys looking to buy it, Jim and Bob. You talk to Jim and he says that he'll let you hunt there if he buys it. But Bob ends up buying the property, and Bob won't let you hunt. Jim walks away.

You have no standing to sue Jason and Bob, alleging that their sale contract was invalid, just because if Jim had purchased it you could hunt there. You want to hunt, and the ultimate goal of your suit would be to prove that Jim agreed to let you hunt there, but you have no legal interest in the property to rest your suit on.

[shroom]

time to limit Bob from being a greedy little hoarder

[Meadow Skipper]

For anyone wondering about this lawsuit, the Colorado Supreme Court ruled on it yesterday: https://coloradosun.com/2023/06/05/c...ccess-dispute/

Uh oh. The New Mexico Supreme Court just went the other way.
https://www.flyfisherman.com/editori...and%20swimming.

[Danno]

Uh oh. The New Mexico Supreme Court just went the other way.
https://www.flyfisherman.com/editori...and%20swimming.

Yep. But standing wasn't at issue in that case, totally different procedural posture. And different interpretation of each state's constitution.

I'd prefer New Mexico's interpretation, but that's not how this one went down.

[KQ]

Is the problem as bad on the Touchet?


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Friend says Touchet river is about the same.

[schuss]

Uh oh. The New Mexico Supreme Court just went the other way.
https://www.flyfisherman.com/editori...and%20swimming.

No they didn't. The whole issue was being in waders on the streambed. The CO decision does not impact the public's right to float a river, just to walk on the streambed or access the land abutting the river. If you're floating, you're fine.

[Meadow Skipper]

No they didn't. The whole issue was being in waders on the streambed. The CO decision does not impact the public's right to float a river, just to walk on the streambed or access the land abutting the river. If you're floating, you're fine.

I think you’re splitting hairs. To me, it seemed both rulings addressed being able to stand in a river running thru private lands.

If you’re an attorney, then I get it and apologize for my lay POV.

[Danno]

No they didn't. The whole issue was being in waders on the streambed. The CO decision does not impact the public's right to float a river, just to walk on the streambed or access the land abutting the river. If you're floating, you're fine.

You are correct that the CO decision does not impact the right to float. And in one sense doesn't impact the right to wade (if such a right exists) because the Court found that a fisherman did not have standing to pursue a property interest on behalf of the state (and any right to wade required the predicate of finding the land was owned by the state, because Colorado has never allowed wading on non-navigable streams).

I think you’re splitting hairs. To me, it seemed both rulings addressed being able to stand in a river running thru private lands.

If you’re an attorney, then I get it and apologize for my lay POV.

And this too is true, sort of. Colorado has never given a fisherman the right to wade on non-navigable streams crossing private land, and that NM opinion does. The two states have starkly different regimes. The CO case was not really about fishing/wading on private land, it was about whether such a right existed for navigable waterways, because if navigable in 1876 they would be publicly owned (not "private land") and the plaintiff asserted that gave him the right to fish. But the Colorado case never got to whether that right existed, finding that the plaintiff did not have standing to get a court to decide that Colorado owned the streambed.

[schuss]

I think you’re splitting hairs. To me, it seemed both rulings addressed being able to stand in a river running thru private lands.

If you’re an attorney, then I get it and apologize for my lay POV.

I mean, that's law? I was just pointing out the difference in the decisions and why they weren't counter to each other.
Relevant NM text:
The case was brought before the Supreme Court after a group of landowners in northern New Mexico claimed that they owned the streambeds that flowed through their properties and that the public did not have the right to use them. The court ruled that while the landowners do own the land adjacent to the streams, they do not own the water flowing through them.
The decision is significant because it affirms the public's right to use New Mexico's waterways for recreational activities such as fishing, boating, and swimming.

CO:
A Colorado Attorney General opinion a couple years later said rafters and kayakers could pass through private property so long as they didn’t touch the riverbed or shore.

[Joey Joe Joe Junior Shabadoo]

As a fisherman it is obviously disappointing to me and I generally agree with Squillace's take at the end of the article. But I can also see the States argument and the legal mess that might result from the decision going a different way. Nevertheless that is the States fault for not dealing with this issue sooner(like every other western state has) and it seems to me the court (perhaps rightly so from a legal perspective) has simply kicked the can down the road and the state is going to end up having to deal with this eventually anyway. As Hill's lawyer and Danno have pointed out there are scenarios where someone could force the issue, and this case has shined a light on some of those scenarios. Given the strong feelings and opinions in this state about water in general, and river access specifically, I'd wager it's only a matter of time before someone decides to try it.

[LongShortLong]

Hey Danno, or others. What's your take on "navigable?" My understanding is there are historic cases where courts (siding with big corporations) decided that basically any waterway is navigable. IIRC, one of them was logging companies who would dam the tiniest seasonal stream so they could create a flood to move logs downstream. My understanding also is that local jurisdictions don't know the law and their local laws would be overturned if challenged.

[Danno]

Hey Danno, or others. What's your take on "navigable?" My understanding is there are historic cases where courts (siding with big corporations) decided that basically any waterway is navigable. IIRC, one of them was logging companies who would dam the tiniest seasonal stream so they could create a flood to move logs downstream. My understanding also is that local jurisdictions don't know the law and their local laws would be overturned if challenged.

There are different standards of navigability so it is tricky, you need to know which one you are referencing. For the one at issue in the CO case, it is "navigability for title", which is (going by memory) whether at statehood the waterway was used or susceptible of being used for commerce at statehood. So in CO's case, in 1876. And it's determined on a segment by segment basis (what is a segment is not defined). But the word "navigable" is used in many different ways, even legally, which is why I clarified that it is "navigability for title" (that is a very specific legal term) here.

Whether a small stream that was temporarily dammed to then be released to create a flood for floating logs qualifies as "navigable" under that standard, I don't know.

[Meadow Skipper]

…The two states have starkly different regimes…

Boy howdy, in so many ways.

I’ll keep my ignorant, if well meaning, thoughts on legal matters to myself.

[old goat]

Nope, that is not what it says.

"The SCOTSOC says he has no standing to sue because it has not been established that the river is state property."

No, they said he doesn't have standing to sue to establish that it is state property, which he must do in order to assert any right to fish there; FFS the opinion quotes his own complaint, that alleges his right to fish rests on proving it is state owned property.

"IOW he can't sue unless he wins the case he doesn't have standing to bring."

Establishing it as state owned property was at the very heart of his suit, while you are treating it as something separate from what he sued for.

"Nor can anyone else sue, ever."

Also not true. Some possible scenarios: A riparian landowner could pursue a quiet title against the state (maybe they're a fisherman looking to establish the same principle as Hill or maybe they don't want to pay as much property taxes). The executive branch could pursue state ownership, through a state agency (CPW, State Land Board) or the governor's office. The legislature could too. I could also imagine scenarios where the standing question would be much thornier, like if Hill owned property just downstream of Warsewa and was seeking to access it via the river; there are lots of cases to support the notion of standing where the case involves an adjacent landowner, someone with a particular interest in the subject property. What the opinion does say is that someone with nothing more than a recreational interest in fishing in this spot does not get to litigate the state's title.

"Some excellent prospects for the SCOTUS on that court."

Actually, there are. If there is an opening, Biden could do a fuckton worse than the author of that opinion, and couldn't do much better.

Read what I wrote again. Especially the second sentence. He can't sue to establish state ownership of the river becuase the river has never been established to be state owned. If that's not circular reasoning I don't know what is.

[Danno]

Read what I wrote again. Especially the second sentence. He can't sue to establish state ownership of the river becuase the river has never been established to be state owned. If that's not circular reasoning I don't know what is.

The state doesn't own it, as it stands currently. The landowner has a chain of title stretching back to a federal patent, he bought the property and is currently paying property taxes on the land. The state does not own the land. Is there a legal theory upon which the state could pursue ownership? Yes. But it is for the state to decide whether to pursue that legal theory, not for an individual to do on the state's behalf. He is suing to establish that he has a right to be on the river in that location, and his lawsuit depends on challenging the landowners title, which he cannot do. You can only challenge someone else's title by asserting the strength of your own title; you cannot challenge someone's title by saying "you don't own it, that guy does". That is black letter law.

You can call it whatever you want, but that isn't circular reasoning.

[Danno]

I guess this is why you are a doctor and not a lawyer.

[teleee]

I guess this is why you are a doctor and not a lawyer.

Yea but he did stay at the old folks Holiday Inn express last night


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[TBS]

This sent me down a rabbit hole for access in OR.

My long time understanding was you can wade fish any body of water, public or private, so long as it carries enough water to float a kayak or raft. If the land above high water mark is private, you’re good so long as your feet are in the water.

As it turns out, OR doesn’t have much guidance. Most of the legal precedents involved rafting logs down rivers. In 2005 the Attorney General issued an opinion matching my understanding, except that you could also traverse above the high water line so long as you did it in the most direct and least disruptive way possible.

https://www.oregon.gov/dsl/ww/docume...v_brochure.pdf

That’s a bonus but the opinion has never been tested in court. Theres enough public access in my ‘hood that I don’t need to become a test case (or an asshole). This is a rare instance where I prefer asking permission instead of forgiveness.