VA Jackson river lawsuit update.

[jnashed]

As many know there is currently a lawsuit against 2 fisherman from Va who fished on the tailwater of the Jackson river in August county. Here is the article.

http://midcurrent.com/conservation/w...ome-privatized

The basics are this. The fishermen were fishing on the Jackson river in a section of ther river navagble by small boat or canoe or kayak. There were signs posted as no fishing from the bank. The fishermen had and read the VGIF maps which stated the river had public access fishing here. The fishermen were then approached by the property owner and told to leave immediatly. they stated they were allowed by the state. The sheriif and game wardens were called in and agreed with the fishermen. The owner then attemped to bring criminal tresspassing against the defendants. It was thrown out. The owners then sued in civil court for $10,000.

Since then an effort was made to get our attorney Generel Cuccinelli to get involved. He refused, stating it is a civil matter essentially. This is despite his state has stated and shown that navagable rivers are open to public fishing. this area of the Jackson is not the area so remembered for the Kings Grant case on 10+ yrs ago. It is unfortunate that our Att. General who is so vocal on a variety of other subjects including Va right to leave AMFSC could not give an opinion on a states right to say waht is deemed a public fishery. Unfortunately win or lose the defendants are racking up a huge legal bill if nothing else. A loss could mean a huge change to fishing in the state of VA on other rivers like the James, Shenandoah, New, and others.

JIm

[Don Hershfeld]

Thanks for the update.

I don't pretend to understand the fine points of applicable law in such matters,
And it has been two decades since I fished the Jackson both above and below Moomaw,
but two things really stick in my craw on this one:

The King issued all manner of edicts and whatnot in regard to the colonies, no?
We are not presently still paying any tea taxes or the like to the crown, are we?
After throwing off GB's rule and achieving separate and sovereign nation status,
Was there nothing in the way of proactive law to supercede the former authority?
I understand only a little about deeds, but why are rights confered by the former authority
conveyed unaltered when they are in clear conflict with state/commonwealth laws
that apply to lands the crown never got around to conveying?
Isn't this some sort of antiquated unequal standing or contemporary discrimination
for/against riparian landowners in one watershed versus another?
Seems very unAmerican, but what do I know?

#2). Apart from the federal investment in constructing and maintaining/operating Gathright Dam,
Would the attractive and valuable wild trout fishery in contention even exist to dispute access issues?
I gather that in response to the federal project, vcgif later established the trout fishery,
which has since gone wild, if memory serves?
Was the king or his representatives playing any role in the development of these essential resources,
provided at public expense?

Again, I don't know jack about the machinations of any court,
but I almost have to think that unless some person(s) with undue political clout were not involved,
the notion of unique and special landowner privileges would be something to laugh out of them,
not cry over their judgements.

It always comes down to greed. If I lived on or near a noteworthy trout river (oh wait... I do, or at least did, although I have not moved), then I might not like all the attractive nuisance aspects that come with development of a popular new fishery (however indirect or minor, depending on how the public were allowed to access and use it, since after all they, and not I ultimately paid for its existence), but on the whole I would count the increase in my property value and in my recreational options to be personal windfall benefits, so long as the full scope of property rights I had IN COMMON WITH ANY OTHER LANDOWNERS under the same present-day authority were not violated in the process. Camping in my back yard? Don't think so. Gaining access through my yard without prior permission being sought? Nope. Arguably, even anchoring or wading without permission on my deeded river bottom, if I were a real anti-social crank, perhaps not. But I do not own the water, nor the specific non-native fish, in any clear sense, do I? But when the state has gone even further to secure ownership of multiple points of recreational entry to a navigable river above and below my place, I just don't see how I could successfully deny someone plying along the waters of the state, and/or making legal use of the fish species that were not even originally present long ago when the original grantee received ownership of the property. If I still wished to contest the matter, I should have done so before the state acquired that put-in and that take-out at public expense, else i have missed my opportunity. It seems to me that with the passing of the old authority, there is a new sheriff in town, and what he says (again, pertaining beyond the rights I hold in common with other citizens) goes. How I could go even further to take individual citizens to civil court, seeking damages when my property rights held in common remain intact after they have passed by in short order, is even more absurd.

What am I missing here? I'm not so naive to believe it isn't plenty, and probably plenty crooked too.

[saltfly]

This just shows how crooked our court system is. The judge should have read the law and then thrown out this ridicules case. This also shows just why this country is in so much trouble.

[jnashed]

Very sad state of afffairs. The plantiff is actually the land developer who as one might guess has deep pockets and a desire to continue the lawsuit out to its fruition. Of course one would think they would have to bring some legal justification such as a copy of the Kings Grant or something to court. Well said Don as usual. These fishermen were not accessing the water thru the property owners land, they did not camp out or litter the property. They may have waded, I cant say.

the plantiff is stating that they pay taxes on property including the river bed, that the other court and authorities did not respond to their "violated rights" so a civil suit was justified. To me this should have ended at the desk of the Att General who is not backing the state in this matter at all. Again he has been vocal on states rights in other more pollitically heated arenas including with backing Omega and oppositon to "Obamacare". You may agree or diagree with his opinions but his lack of involvement is at the least counter to his other arguements. I am not attmeping to make this political but it is frusterating to think of the implications of this for other waterways. The state should back what they post and enforce at the very least.

Anyone who has floated the Jackson from the many state opperated put in and take out sites, has seen many a sign post on the bank explaining no fishing. But most know the area where fishing is truely not allowed up stream a bit near the dam as definied by the infamous King's Grant case of last decade. Most owners just put up signs to decrease or harass fishing and no enforcement takes place. That is what happened here except now the developer (Who has promised private fishing waters to the land owners) has found a way to retaliate. Again this area is not even included in that ridiculous Kings Grant case and it is not clear if the plantiff will try and prove or can prove that to be true. The other case the plantiff actually found documents form the 1600s or so to prove his case (Crazy...). If this case wins or the defendants bail out because of legal fees again all waterways in our state are in jeopardy. It is concievable the Shenandoah or the James or the New could be next. they are not trout rivers but they have other fishing opportunities and all go thru private lands.

Jim

[saltfly]

This again is why we have problems, in our court system. 1st, we won the war for independences. I know that may come as a shock to some judges. Before we won, the king gave many many grants. Which I’m sure, many native American would say were not legal. And since the war, most of those grants have been changed. All you have to look at, is some state lines that where set based on grants by some king. And then changed. Soooooo Now as I see it. American law is the only factor that should be considered. And unless this is a totally new suit. Which it isn’t. All cases are settled on precedence. That’s why Judges and lawyers spend so much time reading old cases. And their has been so many cases, involving the right of navigation, that you could fill a library with them. And all have up held the right of navigation on navigable waters. Including, western rivers, where people can own the bottom of the river, if they own the land on both sides. But judges have ruled in favor of the right to navigate those waters. So Why would any judge even let this case go any where? All he had to do is rule on behave of the fishermen. Then when the landowner filed and appeal. All the appellate court had to do is turn down the appeal, based on precedence. Judges constantly complain about how full their dockets are. So why are ridicules cases like this allowed to congest the system and financial kill those fishermen? That’s why I have no respect for our legal system any more.

[Don Hershfeld]

Does anyone wonder if whomever is hearing this case is a trout angler, or otherwise stand$ to become very, very ahhh... popular with the emerging development's owners (River's Edge?), if just somehow they manage to prevail here, despite all?

Naw... I'm probably just being paranoid.

Truth, justice, and the American way... quite seriously now, could any of the seasoned citizens who populate this place, and are or were in a position to know, indicate if that stuff ever really mattered, or was merely ficticious, snappy PR for comic book sales in the past? The grand American experiment in governance is to my mind still a singular achievement, however imperfect, and the best (if increasingly slim) mere earthly hope for mankind across the globe. But, human nature has never really changed, and so when we imperfect people engage in an imperfect system, even the least awful one IMO, well... expecting anything like perfection is more than a little optimistic. Still, have we no balls anymore? Is the law just an elaborate cover for the same old game, or does it still have real meaning? What ever happened to enforcement of high treason, or dealing justly with traitors, strictly according to law? Have we collectively become so open-minded that our brains fell out somewhere along the trip?

I realize that even asking these semi-rhetorical questions potentially reveals a certain degree of naivte on my part, but what the heck, I'm not really too concerned with my reputation these days. Other crooked types have pretty well seen to that a long time ago, while I tried to just play nice and to turn the other cheek, mostly. My aim may not be invariably true, but I'm a straight shooter all the way, and can look you right in the eye, sleep at night, stare at a mirror without too much regret, etc, etc. Not perfect by any means, hardly. But I'd still like to think this big popsickle stand has at least a shred of objective credibility going for it, and not just in comparison to places even worse. So, does it? Off the soap-box now...

Oh yeah... Jim, thanks for the tip of your cyber fishing cap... 'preciate it. You too!

[saltfly]

You know, the more I think about this. The more pissed I get at our court system. Land grants issued by some long gone king. That we fought a war for independence with. Who gave land that did not belong to him to friends. Land he stole from the native people, who were here long before that king was a wet dream. And now the courts of a free country is using those grants to make judgments for or against people that are citizens of this free country, that doesn’t have kings. But now this free country has passed laws of navigation, so its free citizens, could use their freedom to fish waters that are open to navigation. A free country and its laws that did not exist when this king perform this illegal act. And a court system that didn’t exist either. Now does any of that make sense to any one???????????????? Now do you understand why I think that someone has their collective hands in the cookie jar.

[Don Hershfeld]

Howdy Saltfly. Just one comment / question, for anyone who might know. Those native Americans... I have heard different things about their conceptions of land ownership, and am frankly at the mercy of historians' interptetations, understandings, early translation problems, etc etc...

One notion is that the NA's had no conception of permanent real estate ownership, but instead practiced more of an 'automobile lease' arrangement. If somebody else wanted to essentially 'rent' some turf, compensation would be arranged with a clear sunset provision of the transfered privileges. Different tribes occupied different places, and so tradition gave them the rights to sublease, should they wish, but the European notion of a deed was really a completely foreign concept, from their perspective.

Another anecdote concerns the notion of 'the noble savage' illustrated in a tale that the first 'sellers' of what we know today as Manhatten were fast-buck artists who in fact were bluffing that it was theirs to sell, lease, whatever. As I've heard this account, when the 'real landlords' got involved, the original 'price' was paid a second time.

Anyone happen to know if either notion is based in fact?

[saltfly]

Tribes had lands that they considered theirs. Some of those tribes were more nomadic then others. The more nomadic ones, lets say lend out their lands for use, but still looked at it as their land. Others welcomed the new comers and let them, let say sub lease. But to the NA’s know one owned the land. Also wars between tribes would change the bounders of their lands. So land ownership was fluid. But in no way did any tribe consider that their lands would be lost to them. Like you said. Their concept of ownership was different then the Europeans. At least that’s the way it was explained to me by a friend who was a chief of the Nanticoke. Before ‘T’ passed, he and I talked a lot about the way it was. From his history as told to him by elders of the tribe and by elders of other tribes. NA’s pass down their history by word of mouth and from one tribe to another. Today they have leaned a lesson, taught to them by Europeans. Organize, which they are now doing. NA groups are forming all over the US of A. This being done, so no more of their history is lost. Thier are a number of good books on NA history if anyone is interested. i read a few really good ones.

[Don Hershfeld]

Thank you, Saltfly.
Glad to know you got to be part of this oral tradition.
Me too, if cyber-chat qualifies(?)

So many worthy and interesting topics.
So little time.
Or energy, LOL.

Hey, I got it!
We help get the remnants of the Jackson River Tribe organized,
And their reps go to our court and muck up the whole legal shootin' match
by asserting their prior claims upon the entire Rivers Edge,
and boldly indicating that not only is the king's lease long up,
the current squatters have a large rental fee to make good on, at this point.

The same court that apparently wishes to defend king's grants
would be placed in a pickle to explain why, exactly,
chief's grants would not have precedence, right?
To do otherwise is inconsistent,
as well as discriminatory.
Heck, its even non-PC.

That last twist ought'a just about do it!

If not, then the whole remnant, along with invited (paying) fishing guests,
operate an authentic cultural guide service
utilizing replica NA watercraft all day long,
tearing down the signs even more indignantly
than the present occupants nailed 'em up,
after the new fishery emerged.

State boldly that it is an essential part
of the religious beliefs of natives guides,
that at certain traditional spots only,
they must be found singing, loudly,
in that peculiar high-pitched, wavering, wailing manner
of a tribe who's name escapes me now,
but you know the one I'm sure.
They say its an acquired taste!

To do otherwise would be to dishonor the Great Spirit, of course.

The would-be fat cats bent
On hi-jacking the river
from the whole public
wouldn't last long.


Of course, that sort of thing could snowball.