The authority for sports coverage in the Fredericksburg region.
Ken Perrotte’s Outdoors Column: Burden on anglers in river rights battle
A legal dispute between fishermen and property owners along the Jackson River heated up after an Alleghany Circuit Court judge issued a civil lawsuit “prima facie” ruling in June that the landowners appear to have more rights to the river bottom than do the anglers.
We first reported on this issue on July 28, 2011. The battle began when angler Dargan Coggeshall and his brother-in-law put in kayaks at Smith’s Bridge, just above the disputed area, then paddled and wade-fished for trout downstream.
The landowners, claiming right to the river bottom based on land grants from the king of England in the mid-1700s, attempted to bring criminal charges a month later. A judge dismissed the charges. The landowners then filed a civil trespass case, seeking an injunction against future incursions and monetary damages.
The judge’s recent ruling throws the burden of proof on the defendants to show that the landowners don’t own the river bottom and that Virginia law, which declares navigable waterways to be public property, should trump grants by powdered-wigged monarchs from whom we declared independence 236 years ago.
The River’s Edge development along the disputed section of the river has signs attempting to “post” the river, warning it is private property with no anchoring, fishing or wading is permitted.
Personally, I don’t know how any judge could hold that an angler drifting, motoring or paddling along in a boat through an area of navigable, public water is not allowed to fish. My understanding, based on published reports that include statements by the property owners’ attorneys, is that the alleged trespassing relates to getting out of the kayaks and wading on privately owned river bottom.
What has perturbed many angling groups (not to mention the defendants) is Attorney General Ken Cuccinelli’s refusal to go to bat for the public when it comes to protecting recreational access to what has always been labeled public water in state fishing regulations.
Following our coverage last year, Brian Gottstein, a spokesman for the attorney general, wrote to explain that the case is viewed as a civil trespassing case between private parties, and Virginia generally doesn’t intervene is such matters.
Gottstein said the court system was the proper place to resolve this issue, and added: “The legal presumption is that unless proved otherwise, waterways and bottomlands are public lands. The commonwealth’s involvement is not needed for the court to determine the ownership of the riverbed in this instance.”
Another big challenge is that the Virginia Supreme Court ruled in Kraft v. Burr in 1996 that land grants by Kings George II in 1750 and George III in 1769 basically gave some landowners the right to post the Jackson River and deny fishing for three miles below Gathright Dam.
With the River’s Edge effort to post another couple of miles of the river, the disturbing prospect looms that much of the best fishing in the Jackson will be off-limits except to those people allowed by riparian property owners. Should these types of prohibitions be applied on other waterways commonly viewed as owned by the commonwealth, it is easy to see the crisis potential.
The legally licensed anglers at the center of this lawsuit believed they were within their rights to fish on property Virginia listed as open to the public in the Department of Game and Inland Fisheries’ published guides and regulations.
This case could eventually make it to the state Supreme Court, and it could prompt legislation in the Virginia General Assembly. The law that declares riverbeds to be state property does exempt riverbeds that were already privately owned. Some landowners who claim riverbed ownership are paying taxes on the land under the water, extending to the middle of the river.
If crown grants that predate public law still hold water, does it mean landowners can place “no fishing” signs as well as legally restrict things such as anchoring or wading? Does the public’s right to the river mean only simple transit through an area? What are the implications for waterfowl hunters?
Coggeshall has formed the Virginia Rivers Defense Fund (virginiariversdefensefund .org). Additional history and the recreational anglers’ perspectives on this issue are available on the website.
TRAVELING DUCK BLIND
The Virginia Waterfowlers’ Association has developed a “Traveling Duck Blind” to spark awareness
at educational workshops, outdoors shows and sporting-goods retailers.
It consists of a large duck blind installed on a trailer, and functions as both a billboard and an exhibit. The exhibit is scheduled to be at the Hartwood Festival on Sept. 8 and at the Spotsylvania Gander Mountain store on Sept. 9. For more on the association, see vawfa.org.
Ken Perrotte can be reached at The Free Lance–Star, 616 Amelia Street, Fredericksburg, Va. 22401, by fax at 373-8455 or by email at firstname.lastname@example.org.