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Public Access to Jackson River Under Threat

posted Jul 8, 2011, 4:26 PM by James Josefson   [ updated Jul 28, 2011, 11:42 AM ]
Update 7/28/2011
NSD won the first round in this case when a judge denied the motion to have the state be a third party to this case and defend the Commowealth's interest in the stream bottom of the Jackson River.  Read the report in the Roanoke Times.
This call comes from Virginia Rivers Defense Fund:
Your right to use public rivers in the Commonwealth of Virginia is under threat!

After having their criminal trespassing case dismissed by a judge in general district court in 2010, the developer of the River’s Edge golf community near Covington, VA has filed a civil trespassing case against three Virginia anglers who lawfully entered the Jackson river with kayaks at the Smith Bridge public access point (see the VDGIF map) and remained within the river banks while fishing down the river.  The developer is seeking an injuction to prevent the anglers from wade fishing a stretch of the Jackson that runs past their adjacent land.

Under a Virginia statute that is more than 200 years old, the beds of all rivers and streams “are the property of the Commonwealth and may be used as a common by all the people for the purposes of fishing, fowling, hunting, and taking and catching oysters and other shellfish.”

In this case, the adjacent River’s Edge property owners are claiming that they own the bed of the Jackson River by virtue of two different 18th century land grants that predated the passage of that statute: a 1743 crown grant executed by the governor of Virginia on behalf of the King of England and a 1785 grant from the Commonwealth of Virginia, yet neither of the developer’s old land grants explicitly reference the bed of the Jackson River when describing the property conveyed. The grants also do not mention fishing rights. This case is therefore very different from, and potentially more threatening to anglers, paddlers and hunters, the previous Jackson River VA Supreme Court case (Kraft v. Burr) where it was undisputed that the landowners owned the bed of the river.  Here, the River’s Edge developer is claiming to own property that, in practice and historically, belongs to the Commonwealth.

Attorney General Ken Cuccinelli’s office needs to participate in the litigation to defend Virginia’s property rights to the bed of the Jackson River and the interests of the people to use the river for boating, fishing, hunting, swimming or general recreation.  If the AG refuses to defend the state’s property rights in this case, its rights to other rivers and streams (like the Shenandoah or the James) may be compromised, along with the ability of the people of Virginia to fish, boat, and recreate in these rivers.

As the case develops, the well-funded River’s Edge developer may put convincing facts and arguments before the court.  But the state should not just abdicate its interest in the river at the very start of the case.  It needs to step in and defend its property interest, property that is held in trust for all of the citizens of Virginia to use.  The Commonwealth’s participation is also needed to ensure that the court has all relevant facts and arguments available before it renders a decision.  Putting the burden on the angler or hunter or fisherman to prove or disprove ownership of a river bottom is a daunting task.

All anglers, hunters and paddlers, please contact Attorney General Ken Cuccinelli right away:

Urge him to do the following:

  1. Join as Party Defendant in North South Development LLC, et. al. v. Garden, et. al., Alleghany County Circuit Court Case#CL11000043.
  2. Be present at the July 25, 2011 hearing in Alleghany Circuit Court where the judge will hear arguments to compel the state to join.
  3. Defend the interests of the people of Virginia to use and enjoy the Jackson River and any other rivers where injunctions may be sought to limit use.

Office of the Attorney General
900 East Main Street
Richmond, VA 23219
(804) 786-2071 OR Toll free in Virginia only: 1-800-451-1525