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AG sidesteps fray in fishermen trespass case

Peter Vieth//August 15, 2011

AG sidesteps fray in fishermen trespass case

Peter Vieth//August 15, 2011//

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Virginia Attorney General Ken Cuccinelli has refused to come to the defense of fishermen fighting a $10,000 trespassing lawsuit who say they were assured by the state they had a right to stand and cast their lines in the Jackson River.

Riverside landowners took the anglers to court, claiming the landowners, and not the state, own the streambeds under the river. Their claim is based on 18th century grants, including one from King George II of England.

Despite the longstanding official position of the state Department of Game and Inland Fisheries that the disputed streambed of the Jackson River belongs to the people of the state, Cuccinelli’s office says the court battle in Alleghany County is just “a civil trespassing case between private parties.”

“They’re turning their backs” on the fishermen, said one former DGIF official about the attorney general’s position.

The state’s hands-off policy comes after years of public information from DGIF telling sportsmen that they have the right to wade and fish in the Jackson River, except for a three-mile portion ruled off limits by a 1996 Virginia Supreme Court opinion.

Because the fishermen claimed they waded the river “at the invitation and with the permission” of the commonwealth, they argued the state should be brought into the case to defend its claim of ownership. But Circuit Judge Malfourd W. “Bo” Trumbo last month refused to force the state into the lawsuit.

The state never stepped up to address the motion, according to W. Scott Street III of Richmond, the lawyer for the anglers accused of trespass. “If there’s an issue, why doesn’t the attorney general come in and get this thing resolved,” Street said.

“The commonwealth’s resources and its involvement in the case are not needed” for the court to resolve ownership of the streambed, a Cuccinelli spokesman said.

Two years ago, the state took a strong stand on behalf of fly fishers and others who wanted to fish the Jackson River in the face of posted signs telling visitors to “stay off the streambed.” In 2009, a DGIF official sent a saber-rattling letter to a riverfront developer suggesting landowners could be subject to criminal prosecution for posting invalid no-trespassing signs or for impeding lawful fishing.

The letter said Virginia law presumes the commonwealth owns the river bottom. The river is available for public fishing, the official wrote, unless a landowner can establish a grant conveying ownership of the streambed.

But that is precisely the claim of the landowners in the trespass case now in Alleghany County circuit court. The landowners – including the developer and a Roanoke neurosurgeon and his wife – say they can trace their titles to two deeds, one from King George II in 1743 and one from the commonwealth of Virginia in 1785.

Their claims apparently are recognized by the county government – the landowners say they pay local taxes on the river bottom portion of their property. Unless the court orders the anglers to stay out of the disputed riverbed, the landowners will lose “the full use and enjoyment of their properties,” according to their lawsuit.

Those properties are part of The River’s Edge, described as a “unique, conservation-based, residential community.” A website promises residents “the privilege of access to over 4 miles of private river frontage and year round fly fishing – all from their own backyard.”

The website doesn’t promise exclusive wading and fishing rights in the river, but Street, the anglers’ lawyer, said it’s likely that the developers are hoping the streambed claim will enhance land values. “We can charge somebody a lot more if we can tell them they have exclusive rights,” he said.

Over the years, the state has spent much to ensure that public fishing would remain an attraction of the Jackson. When the Gathright Dam was constructed upstream in the 70’s, the design included intake portals at varying levels to allow control of the temperature and flow of the water released downstream, according to David Whitehurst, director of the bureau of wildlife resources at DGIF.

The state also bought six sites where the public can access the river below the dam, Whitehurst said. The DGIF produced maps and other materials indicating that wading and fishing is allowed in the river except in the one stretch restricted pursuant to the prior Supreme Court decision.

Whitehurst acknowledged anglers feel they’ve been betrayed.

“I can understand that,” he said. “They were relying on information from our agency on what they can and can’t do. Then they get hauled into court.”

But Whitehurst said it’s not his agency’s call on whether to intervene in the lawsuit. “We do rely on the attorney general’s office for counsel,” he said.

Although the state will not enter the legal fray, both Whitehurst and Cuccinelli say the state sticks by its position that the streambed is public until a court decides otherwise.

As a Cuccinelli spokesperson put it, “Absent a valid and enforceable conveyance to a non-state entity, such as a documented king’s grant, the commonwealth owns the bays, rivers, creeks, shores of the sea, and their bottomlands within its jurisdiction; and the legal presumption is that unless proved otherwise, those waterways and bottomlands are public lands.”

The defendant fishermen, however, are left to their own resources to make that argument in court. “I can’t force the attorney general’s office to do anything,” Street said, adding, “I do think there are an awful lot of people interested in the issue.”

Virginia outdoors writer Beau Beasley agrees. “I think most anglers are upset about it,” he said.

Beasley noted the accused anglers bought state fishing licenses, used state maps to determine where to fish, went on land deemed to be public and are now left to their own devices when sued for trespassing.

Those private individuals are “spending tens of thousands of dollars defending the state’s rights in court,” Beasley said. “That the irony of the situation.”

“I think the state should defend the state’s rights,” said retired DGIF biologist Larry Mohn. He acknowledged he could speak forthrightly about the issue now that he’s retired from government service. “They’re turning their backs” on the anglers, he said.

Mohn said he doesn’t know why the attorney general won’t get involved in the case.

“It shouldn’t be a political thing, but I think it is,” he said.

The ultimate decision in the Alleghany County case could have wide ranging implications for anglers on other state rivers, Mohn said. While on staff at the DGIF, he researched the state’s claim to public ownership of riverbeds. “The state has a stronger case on the Jackson than many other places,” he said.

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