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Virginia Anglers Sued for Fishing on Property Deemed “Public” by Game Dept.

by Beau Beasley
photos by Beau Beasley
Jackson River

Fly anglers often float large sections of the Jackson River on kayaks to gain better access.

Covington, Virginia: On July 25, 2011, Alleghany County Court will hear arguments in North South Development v Garden, in which plaintiffs are suing three anglers—one of whom is a pastor—for trespassing. Court documents filed by the plaintiffs (also the landowners in the case) argue that in June 2010, the anglers were fishing a section of the Jackson River that the landowners claim to own.  Indeed, the landowners pay taxes on the river bottom and own or lease land on both sides of the river. They have also clearly posted the land with signs, visible from the river, which state that anglers may not fish or wade in that section of the river.

The defendants claim that they were on public property because they were standing in the middle of the river well below the high water mark and therefore paid little heed to the signs because they weren’t on dry land. Even more significant, the defendants note that the Virginia Department of Game and Inland Fisheries (VDGIF) signs at public put-ins along the river explicitly state that anglers may fish and wade in that section of the river.

Gary Martel, Deputy Director of Wildlife Resources with the Virginia Department of Game and Inland Fisheries, says, “We are aware that signs are posted along portions of the Jackson River that we view as public and not private property.  Anglers will not be cited by our Conservation Officers, however, as long as they have a legal fishing license and remain in the river.” This may be cold comfort to the defendants in the North South Development v Garden case.

Virginia law states that navigable streambeds are public and open to Virginia citizens to enjoy, and that land not otherwise conveyed is the property of the state and held in trust for the public’s use and enjoyment. Nevertheless, usage issues are nothing new to the Jackson River. A 1996 case before the Virginia Supreme Court concerned two 18th-century grants from the Crown of England to private citizens; the grants had expressly conveyed the property on both sides of what was to become the Jackson River as well as its streambed and all the privileges therein to these individuals. In its Kraft v. Burr decision, the Virginia Supreme Court held that the British Crown had had the authority to convey such exclusivity to individuals and that those claims now rested with the current riparian owners of the crown grant properties. The section of the river off limits to anglers since the Kraft v Burr decision is highlighted in yellow on state maps posted at public access points along the Jackson River, and anglers are advised to avoid that area. The section of the river in dispute in the North South Development v Garden case is downstream and lies between Smith Bridge and Indian Draft, which are public access points.

The Commonwealth takes in millions of dollars each year from recreational anglers. But those same anglers might think twice about fishing in Virginia if they believe that they might fall afoul of the law—and spend thousands of dollars defending themselves in court—when they have placed their trust in the very maps they received from the VDGIF.

The hapless anglers in this case, who are being sued for $10,000, are soliciting the public’s help in defraying their legal costs. Inquiries and donations may be sent to:

Virginia Rivers Access Fund (VRAF)
C/O FORVA
PO Box 1750
Roanoke, VA 24008

MidCurrent Fly Fishing
 
Beau Beasley (www.beaubeasley.com) is an award-winning journalist and investigative conservation writer. His even-handed approach and through research on saltwater forage fish have garnered him respect with conservationist and commercial anglers alike. The author of Fly Fishing Virginia and Fly Fishing the Mid-Atlantic, he also serves as the Director of Programs and Sponsorship Development for the Virginia Fly Fishing Festival (www.vaflyfishingfestival.org)  Beau lives with this wife and children in Warrenton VA.
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  • Stevie

    I don’t believe the term “access” applies in this case.  As a writer you should be more specific…this is a “use” issue, not “access”. 

    As I understand it, these fishers “accessed” the river at an uncontested public access site.  It is their use of the river as they float and fish that is being challenged.  They did not cross private property to access the river.

    Your use of the term “access” distorts the issue at hand and is unprofessional in my opinion.

  • Joseph

    This is very sad and unfortunate.  Our country was founded under the premise that the resources of the land would be shared by all and not owned and controlled by the few. 

  • Beau B.

    Stevie,

    You are correct in so much as this article is about use,(or the attempt to deny use), not access. I am working with the editor to adjust this title, which incidentally I did not choose.

    My desire in writing this piece was to advise the public about an ongoing  issue which is causing great confusion. I interviewed nearly a dozen people from game wardens to public officials and the land owner to the the skinny on this issue.

    As I said earlier, my desire is to inform the public and to that end I appreciate you bringing the issue of use to the forefront, I feel confident the majority of the readers will get my meaning.

    Thanks again and keep reading Mid-Current.          

    • Stevie

      Hey Beau,

      Thanks for the reply.  Sorry if I seem too sensitive on the verbage, and I applaud your edit on the title.  Out West  land owners mis-use the term “access” in an attempt to garner sympathy for their “rights”. 

      What they want is the right to deny public use, so they can charge a fee to fish public waters.

      Thanks again for your efforts, Stevie

  • InfoDarthWaders

    Public Access is something that is granted and stated clearly and I think this is made clear. In my opinon, documentation should be provided during the court case by the private land owner to prove that King’s Crown is the rule. The state of Virginia should also show representation and documentaion to support the anglers in question of trespassing, and also to hold truth to the current state fishing laws. This is a sticky situation between private land owner and state fishing regulations and the anglers stand a chance to be punished for being mislead by what the state has provided during the purchase of a fishing license. The state also needs to clear this or be subject to loss of great revenues in many ways. I do hope the judge in this case bases his or her decision on much more than Craft VS. Burr. Please research the case of State VS. Spring Ridge Club when there was a serious issue a few years back on the Little Juniata River in State College, PA. A person who leased a lot of land for fishing access for his private club members only lost a battle because the water was determined “Navagable” from back in the early 1800′s. Hopefully this will clearly be the case here for the sake of the anglers and the sake of the state of Virginia. Also in my opinion, the land owner may own both sides of the river & the bottom, but God created the water and as far as I’m concerned it’s intended for everyone to enjoy.

     From DarthWaders

    • Stephen Sivonda

      I fully agree with your points. Why just a couple of days ago, 4 of us floated in 2 canoes from Smith bridge down to Petticoat junction, and I took the opportunity to throw  lure around while floating.there are lots of signs that say “No Fishing” and that I don’t understand…as this area is below the “Kings Grant” area. I do have a problem with folks that leave their wrappers, cans and various detritus behind in the acess areas, and usually pick up some items  to dispose of properly.

  • TakeTheFly

    This case has much broader and damaging implications to angling in Virginia than Kraft v. Burr, where the ownership of the riverbed was never contested.   This case comes down to whether or not the Attorney General will fight for the property of the Commonewealth of Virginia or will it cede ownership to another party.  If the state will not defend its own property, then sportsmen can’t enjoy the state’s water resources without fear of being sued by any private individual who comes to the river’s edge and claims to have “color of title” to those very resources marketed and promoted by and patrolled by the state.  I have talked to outfitters who will not bring clients down the Jackson River (several who wished they’d never had), authors who will not write articles about the Jackson River and dozens of fishermen who will not go to the Jackson River….because they don’t want to be harassed and because they don’t know, with certainty, whether or not they can use or promote the use of the state’s resources there.  This is because the state has been reluctant to step in and take away the ambiguity.  Sometimes myth is stronger than truth.  If the state doesn’t defend its property on the Jackson, other property owners on the Jackson will see this and the “land grab” has a chance to spread to other river resources of the Commonwealth.  The burden will be put on the angler to disprove the claim.  I don’t know about you, but fishing licenses and trout stamps and NF stamps are expensive enough without having to hire title researchers to review every stretch of water I want to fish.  This is the case in which the state should step in and say, “we’re going to clarify this issue once and for all.” 

    I encourage all readers to contact the Attorney General’s office and urge Mr. Cuccinelli to assert the interests of the Commowealth of Virginia.  That is his job.

    http://www.oag.state.va.us/Contact%20Us/contact_directory.html

    • Beau B.

      Stevie,

      You are more than welcome, but the quick turn around credit for changing the title goes to the MidCurrent editor. Please stay tuned as I plan on providing updates for readers that are interested in this case.

      Tight Lines!
      Beau     

  • Jbherrick

    I believe no one in this country should be bound by what some damned king determined before we were even a country. We fought that war and won, already. Happy Independence Day!

  • Jbherrick

    I believe no one in this country should be bound by what some damned king determined before we were even a country. We fought that war and won, already. Happy Independence Day!

  • Jbherrick

    I believe no one in this country should be bound by what some damned king determined before we were even a country. We fought that war and won, already. Happy Independence Day!

  • Pingback: Disturbing News about the Jackson River | South River Fly Shop

  • South River Fly Shop

    Beau, thanks for bringing this public. We’ve added this to our shop updates and will be following it closely. We urge everyone to contact the AG’s office and light a fire under them and also make it known who is behind this. Here’s a link to the development http://www.cliffviewinc.com/index.htm

    Please do not give them any business and urge your friends to do the same.

  • JimBa

    What part of “not otherwise conveyed” do these guys not understand? Their lawyers are just taking their money.  Clearly this property, including the riverbed, was conveyed to these landowners.  This country was built to the powerhouse it is (was?) on one concept – the right of all to pursue each’s personal happiness, intertwined irrrevocably with the right to one’s own property.  I also cannot sleep in my neighbor’s mansion and swim in his pool, but that doesn’t make him a bad guy.  Don’t vilify the landowners; after all, it seems likely the anglers intentionally used their property in order to pick a fight, all the while thinking themselves heroes and not thieves.

    • http://www.virginiariversdefensefund.org Dargan2

      I agree with your summary of the philosophical underpinnings of this country, but to live by this philosophy, our Founding Fathers first had to throw off the yoke of tyrannical King and his laws.  Please share more of what you know that makes you so certain the developer has uninterrupted title to the riverbed in that area of the Jackson.  Folks who have been researching that area for decades have never found that evidence.  I’m sure if the developer has the unitterupted chain of river bottom deeds, then anyone on this board would respect that, versus vilify him/them.  They may not agree, but they would respect it.  

    • Jwflyfishing

      That is all well and good and I agree with private property rights, but you need to research the Kraft v Burr decision of several years ago involving Chuck Kraft, a fine man and excellent fishing guide.  I have fished and guided that river for over 25 years and the only part of the river in which the landowners actually hold in hand the crown grants from King Henry VIII is that area from immediately below the Army Corp of Engineers access right below Gathright Dam down to Johnson Spring Public Access.  The entire river through the area in question is public water, simple as that.

      • TakeTheFly

        There’s only one problem, though.  The developer marketed the riverfront lots as having private water.  So, he’s got a lot of people breathing down his neck to make those grants magically appear, so the premium lot prices are justified.  An easier way to do that, than re-create history, is to sue a private individual, invoke Kraft v. Burr, and put the burden on the angler to “disprove” he has those rights.  This is nothing more than a civil tactic to privatize water that has no business being privatized.  From the looks of the ground swell of support, I think they sued the wrong dudes.   

    • villa

      crown reserve, kings crown, kings grant, king “bullshit” are familiar terms w/ fishermen all across north america.i know a little about this b/c i own land on the sw miramchi in nb canada. the “kings hand” is a lot larger and more powerful on the miramichi than the little jackson river.  they say there is plenty of “public” water on the river, but you tell that to the landowners(which also claim kings grant). on the miramichi, i have found that if the pool isn’t lined up w/ fishermen, the odds are it isn’t public(no matter what the river map says).in canada, public or private land, kings grant or crown reserve, all have one thing in common. they dont apply to the native americans. they may fish(nets, rods, etc..) any stretch of water that they want, even if its kings grant.The game wardens and police cant stop them from “trespassing”.trout unlimited, as powerful as it is, cant even stop them from harvesting the atlantic salmon(fish of “kings”). this is also true in the western united states, not just canada. it seems to me, that this would hold true to the jackson as well. maybe im just picking a fight, but if they stopped paying the lawyers and paid some indians to go float, fish, or even wade those “special” stretches they might get further. we wouldn’t have to get the indians to take them to court, the landowners would do the job for us. at least someone would be fishing the great tailwater that our tax dollars built and was promised to us. I believe that even the mighty supreme court wouldn’t be able to rule in favor of the landowners in this case. look on the bright side, the thought of those “entitled” landowners losing sleep over a bunch of indians, would bring a smile to any jackson river fly fishermen. 

  • Abbcols

    We face a similar problem in Ga.  I will be sending a check soon

  • Abbcols

    We face a similar problem in Ga.  I will be sending a check soon

    • Beau Beasley

      Abbcols,

      What ever funds you could send would be helpful, the angler is getting very little support overall however some support recently came from Patagonia.Stay tuned for an up date in a coming issue of MidCurrent

      Thanks for caring
      Beau Beasley

  • http://www.virginiariversdefensefund.org TakeTheFly

    Follow the defense of this case on http://www.virginiariversdefensefund.org

  • Pingback: Stream Ownership and Fishing Rights Case in Alleghany County Circuit Court | Virginia Water Central News Grouper

  • Ras Tafarimakonnen

    I started fly fishing my backyard creek at 9yrs old in 1989. In 1992 a neighbor tried suing me in a mirror case. His property was posted. And I was in the stream, surrounded by his land. (He was a wetlands attn too) the case never made it anywhere after I handwrote his attorney a letter explaining that just like him, I owned both sides of the stream, but not the stream itself. With the ocean down the street, it was also a tributary to the ocean, to boot! End of story. Angling affords many loopholes in otherwise silly laws. I hope the anglers fair well.

  • Ras Tafarimakonnen

    I started fly fishing my backyard creek at 9yrs old in 1989. In 1992 a neighbor tried suing me in a mirror case. His property was posted. And I was in the stream, surrounded by his land. (He was a wetlands attn too) the case never made it anywhere after I handwrote his attorney a letter explaining that just like him, I owned both sides of the stream, but not the stream itself. With the ocean down the street, it was also a tributary to the ocean, to boot! End of story. Angling affords many loopholes in otherwise silly laws. I hope the anglers fair well.

  • VT Kayaker

    Any updates on this?

  • just wondering

    any update on this? I wonder if there would be any value in investigating any damage potentially caused to the waterway by fertilizer runoff from the golfcourse the landowner maintains? I’m sure some type of fine for that would far and away exceed $10,000?

    • Beau Beasley

      Hey Just Wondering,

      There are indeed some updates on this issue though no court action has taken place. Keep your eyes peeled for an update coming through Midcurrent shortly.

      For an in-depth look into this issue check out my artilce in the latest issue of American Angler, it goes over this case in Virginia as well as similar challenges in TN on the South Holston and the Provo in Utah.

      Thanks for caring,
      Beau Beasley    

  • Beau Beasley

    Dear Anglers,

    There is a large piece in the current issue of American Angler on this issue regarding angler rights and property owner’s rights. Check it out at your local fly shop, or Barnes and Noble.

    Beau Beasley

  • Pingback: Oct. 9, 2012, Update on Court Case over Stream Ownership and Access Rights on Jackson River in Alleghany County, Va. | Virginia Water Central News Grouper

  • tom parker

    its been going on for YEARS. probably safer to NOT roam that section. plenty of other places to chuck lures despite public signs state otherwise…..