Water.....

[bodywhomper]

Navigability, such a fun concept. In CO, how’s the extent/width determined? Is it “ordinary high water?” What about when the channel is modified?

[evasive_MT]

We see a lot of wealthy landowners moving into Montana thinking they can own the streambed because they can in other western states.

Every now and then there’s a bill proposing to map the ordinary high water mark for all Montana waters. This made it into a legislative concept last session. I think usually someone explains the math to them. By that I mean the narrowest line you can draw with a pencil is 1/100th of an inch. On a USGS 7.5’ quad, that’s a 20-foot stripe on the ground.

[Bunion 2020]

The MT stream access law is awesome and under constant siege. I am surprised Gianforte has not gone down that road yet.

[shroom]

it’s american as fuck

[Foggy_Goggles]

In Colorado, navigability is a moving target. There are plenty of rivers that are easy floated in a pontoon that people have been hassled for trespass, have barbed wire and so on.

I believe it's a federal standard that has not been universally aplied.

Sent from my Turbo 850 Flatbrimed Highhorse

[Danno]

In Colorado, navigability is a moving target. There are plenty of rivers that are easy floated in a pontoon that people have been hassled for trespass, have barbed wire and so on.

I believe it's a federal standard that has not been universally aplied.

As I noted upthread, there are different standards of navigability depending on the subject. The one in the case I linked is navigability for title, which has a somewhat clear definition under federal law (though like all federal law standards that are old, it has morphed over time). There's also "navigability in fact" as a federal standard and probably some others too. And there are other uses of the word "navigable" that are not defined. For ex, the crime of trespass in Colorado has the word navigable in the statute (ie you're not trespassing if the place you are allegedly trespassing on is a navigable river). But as far as I know, there is no definition of that term and what it means with respect to that crime. I think it might mean that you can float a private section of river but not touch the bottom and not be guilty of trespass, but I don't know that it's been tested (there was the old case of Emmert that DID test that, where they DID touch the bottom, and they were guilty of trespass).

[old goat]

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.

I'm not saying he would win the suit, but he should be allowed to bring it. The circular reasoning is so obvious--it's clear the justices didn't have the stomach to tackle the issue head on so they dodge it as best they can. Sometimes it takes a non-lawyer to see how absurd the law is. Forest vs trees.
You're right about some of the justices being qualifired for the SCOTUS---bunch of Yale and Harvard Law grads. But their parents must be sad they wound up in the wilderness.

[Danno]

I'm not saying he would win the suit, but he should be allowed to bring it. The circular reasoning is so obvious--it's clear the justices didn't have the stomach to tackle the issue head on so they dodge it as best they can. Sometimes it takes a non-lawyer to see how absurd the law is. Forest vs trees.

And it took those anti-vaxers to finally pull the curtains away so we could all see how absurd modern medicine is, amirite?

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.

Rather than you just saying "it's obvious", why don't you explain how you should have standing to sue Jason and Bob in the example above (in the example, Jason = the federal government, Jim = the state, and Bob = the private landowner). And explain how 7 smarter legal minds than yours all think you're wrong.

You're right about some of the justices being qualifired for the SCOTUS---bunch of Yale and Harvard Law grads. But their parents must be sad they wound up in the wilderness.

I happen to know the judge who wrote the opinion, and she is a kind and decent person who is also one of the smartest people I have ever met in my life. So you can just go fuck yourself, asshole.

[old goat]

And it took those anti-vaxers to finally pull the curtains away so we could all see how absurd modern medicine is, amirite?



Rather than you just saying "it's obvious", why don't you explain how you should have standing to sue Jason and Bob in the example above (in the example, Jason = the federal government, Jim = the state, and Bob = the private landowner). And explain how 7 smarter legal minds than yours all think you're wrong.



I happen to know the judge who wrote the opinion, and she is a kind and decent person who is also one of the smartest people I have ever met in my life. So you can just go fuck yourself, asshole.

Of course modern medicine is absurd. The anti-vaxxers aren't necessarily the best ones to point out how, but plenty of other non-MD's have done it and done it well. The problem in medicine, in law, in every other profession--is that the professionals forget that the profession exists to serve the public, not to serve the profession. There's a reason half the Medical Board of California aren't doctors and half the California Bar Trustees aren't lawyers.
As far as a reasoned legal arguments go--I beg off. This is a ski forum. not Harvard Law Journal.
I apologize for "obvious". Obviously, it's only obvious to me.

[::: :::]

As I noted upthread, there are different standards of navigability depending on the subject.

For instance, in OR some property owners in the Coast Range have deemed navigability to be different than Salem or ODFW & will tell you so behind the barrel of a shotgun. Then they’ll hold the door for you when you go into the grocery store as if nothing illegal happened

[Grange]

Navigability, such a fun concept. In CO, how’s the extent/width determined? Is it “ordinary high water?” What about when the channel is modified?

I am unable to speak about how the Ordinary High Water Mark (OHWM) is established in CO, but I've done multiple OHWM determinations in my home state. There is a defined process that we use and it does require training. A lot of people mix up the OHWM with the 100 year floodplain elevation and even bank full width determinations.

[TBS]

For instance, in OR some property owners in the Coast Range have deemed navigability to be different than Salem or ODFW & will tell you so behind the barrel of a shotgun. Then they’ll hold the door for you when you go into the grocery store as if nothing illegal happened

Nestucca or Wilson?

[::: :::]

Nestucca

[bodywhomper]

Wonder how/if the NEPA Amendment included in the Fiscal Responsibility Act of 2023 will affect the SEIS for the CO River Compact

[Bunion 2020]

Well this is depressing.

https://dailymontanan.com/2023/06/09...d-way-too-bad/

[I Skied Bandini Mountain]

Quick! Blame it on Californians!!

[TBS]

Nestucca

Yeahhh, bank access can be tough with all the farmland, and the family trees in that area don’t have a lot of limbs.

As I said, private land access, even if I’m keeping my boots in the water, is one of the rare situations where I think asking permission is better than asking forgiveness

If you haven’t already, go to Beaver Firearms and Grocery (in Beaver) sometime…

[LongShortLong]

Quick! Blame it on Californians!!

I blame it on a problem California also suffers - archaic water law. Doesn't make much sense that one person can suck the river dry and use all the water they want just because their great great grand daddy stole land from the natives. The prudent solution would be to sunset all the water rights and institute a new system. Though I bet that entails severe legal and political issues, so best get it started so our great great grandkids can benefit.

[Danno]

I blame it on a problem California also suffers - archaic water law. Doesn't make much sense that one person can suck the river dry and use all the water they want just because their great great grand daddy stole land from the natives. The prudent solution would be to sunset all the water rights and institute a new system. Though I bet that entails severe legal and political issues, so best get it started so our great great grandkids can benefit.

Better be prepared to pay out billions and billions for the 5th amendment takings.

Water law in the west arose out of the same fundamental condition that we're struggling with now-- that there is not enough water for everyone. So it would be very challenging to develop an entirely new system. I think it would be much easier (though FAR from easy) to impose constraints on how water is used and sold within the existing legal system.

[bodywhomper]

In CA, adding in and regulating groundwater has not been working out too well yet.

[TBS]

Water law in the west arose out of the same fundamental condition that we're struggling with now-- that there is not enough water for everyone. So it would be very challenging to develop an entirely new system. I think it would be much easier (though FAR from easy) to impose constraints on how water is used and sold within the existing legal system.

Weren’t allocated rights also premised on absurdly high assumptions about normal water flows?

Would constraints on how the water is used/sold run into restraint of trade issues?

[Danno]

Weren’t allocated rights also premised on absurdly high assumptions about normal water flows?

Would constraints on how the water is used/sold run into restraint of trade issues?

Your first question: that's true of the Colorado River Compact, but not of western water law in general. Western water law is all about acquiring rights by putting water to beneficial use. And you get to use water if it's your turn, there's no assumptions at play.

Second question: probably not, water is always subject to administration and rules. You can't completely take the right away, but you certainly can change the rules about how to use it and how you can sell it.

[MakersTeleMark]

Fine. Anchor a raft, grab some Monty Python shields, jump in the river in waders while you are at it, and refuse to leave until charged with trespassing. Camp out. Then Justice Hart can have another more rational on the ground (oops, in reference to her "hooked" pun in the opinion) look at the broader issue. No disrespect to her or Danno, but this was more than kicking the can, it was a pathetic attempt at a punt, and a very poorly thought out opinion.

Standing has been used over the many decades to limit access to the courts in an effort to avoid addressing serious issues. While it definitely is a gatekeeper within basic reason, in this case, it is as bogus as it appears.

That is what I have issue with. This will get navigated over a very short time relatively.

We should not have to wait until a black person gets shot taking a dump in the wrong bathroom, or sitting on the wrong seat of a bus to ultimately get to the issue. We should not have to wait for a woman to have a horrible death by miscarriage to get there either. We can make better law by positing these in the most basic ways by recognizing a realistic plaintiff and solving the core constitutional issues, right or wrong, and saving decades of so much pain.

It's downright lazy work, and I would gladly tell it to her face like we had chats over 20 years ago when Danno and I were just students in a small great institution at the right time from with we now have a 10th circuit and CO SC judge/justice along with a CO AG, who we could just walk in their offices and shoot the shit like I did very often.

*Think about that; I've been recirced in a hole, struggled to get myself and craft with a freak broken oarlock ashore to save my life and breathe again, and have been shot at from the opposing banks for trespassing on private golf course sections of numbered slots of gold medal waters reserved for multi million dollar legacy white men with a 3 decade waiting list for even family members who can afford the dues. Ney, what say an Indian floating in disputed waters who claims a territorial right? Now that would get really complicated. But, alas, no standing under Danno's argument unless you a priori legally recognize the right. Such BS.

Rights are established because there were none recognized. They just don't appear from the text. It's like a liberal arguing activist judges and anti-contextualism. It's all a farce. Don't let common sense blind you with opinions like this one.

[Meadow Skipper]

It’s all fun and games until the lawyers get fired up.

Don't let common sense blind you with opinions like this one.

Sig worthy.

[bodywhomper]