Who Owns the Wild Rivers? Some Landowners Say They Do

Paddling down the West Fork of the Chattooga, it’s easy to imagine you’re in a different era.

The clear, spring-fed waters drift under overhanging hemlock and Carolina silver bells, past rock grottoes that shelter tropical ferns, remnants of the prehistoric “mother forest.” Swaying in the breeze on the opposite bank is a patch of Arundinaria gigantea, native bamboo prized by the Cherokee for everything from flutes to blowguns.

The only sounds on this stretch, where Georgia and the Carolinas kiss, are the songs of warblers and the occasional splash of a rainbow trout rising to snatch a bug from the water’s surface.

But suddenly, you’re yanked back into 1998. Strung across the river on a cable is a sign: “No Trespassing, Fishing, Floating.” Underneath: “PRIVATE PROPERTY. SURVIVORS WILL BE PROSECUTED.’

A few strokes downriver, there’s a glint from the shoreline. It’s sunlight striking the gold watch of a man watching and waiting. He beckons.

Buzz Williams, coordinator of the Chattooga River Watershed Coalition, steers the canoe toward the shore. Recognizing the man, he calls out.

“Hey, Earl, this is Buzz. We came down here to talk to you.”

Earl Lovell, a burly white-haired man wearing a fedora, shouts back in a thick Georgia accent.

“You know there’s a highway out there,” he says.

To Williams, the river is a highway.

To Lovell and two partners who own the 230 acres on either side here, it’s not. What’s between the banks that they own--even if it’s a federally designated wild and scenic river--is theirs too, they say.

Who’s right? This not so simple question is at the heart of a growing number of disputes, from the furtive Chattooga to the mighty Hudson, from Pennsylvania to Colorado.

Environmentalists and landowners have battled for years over public access versus private property rights. Now, as millions of Americans turn to nature for recreation and developers move deeper into woods to build second homes, this old war has opened a new front.

And a river runs through it.

Both sides cite ancient authority for their claims.

Decrying government “land grabs,” some landowners wave titles from long-dead kings granting them exclusive rights to the flowing water.

Conservationists, canoeists, kayakers and fishermen go even further back, saying that their rights come from the Magna Carta, or even natural law.

Laws and court decisions often address narrow issues: whether a river is navigable; whether a stream that stays within one state’s border is subject to federal jurisdiction; whether recreational boating and fishing, big business nowadays, amount to the kind of commerce envisioned by state lawmakers in the days when logs and barges floated on most waterways.

In some states, you can float on a “privately owned” stream but can be charged with trespassing if you push off on the bottom. In others, you can fish from a moving boat but can’t anchor midstream or walk on the bed.

Rights vary from state to state, stream to stream, case to case.

“I’m working on probably 400 different cases right now across the country,” says Jason Robertson, river access director for American Whitewater in Silver Spring, Md. “I probably get five or six every Monday that are brand new. I’m afraid to check my e-mail.”

* In Arkansas, Atty. Gen. Winston Bryant has taken farmers to court for stringing barbed wire across Crooked Creek--a vaunted smallmouth bass fishery.

* In New York’s Adirondacks, paddlers are battling a fish and game club’s exclusive claim to a 12-mile stretch on the South Branch of the Moose River.

* In Colorado, a canoeist complains that a landowner’s plan to stretch a low bridge across the Taylor River is a thinly veiled attempt to force travelers to trespass on the shores.

* And in Pennsylvania’s Poconos, one of the combatants is none other than the Boy Scouts of America.

River outfitter Ted Newton says he and some friends were attempting to launch their kayaks on Big Bushkill Creek from a public road in January when a man in a white pickup pulled up. The truck had the words “Boy Scout Ranger” on the side, and the man warned the group against trespassing.

“At one point, he actually threatened to use deadly force on us if we entered the river,” says Newton, whose raft-rental business is in White Haven, Pa.

The Cradle of Liberty Boy Scout Council denies any such threats were made, but says that it has a right to block traffic on the creek, because it runs through a 4,500-acre Scout reservation. An internal risk assessment determined that it was unwise to allow boaters to run the rapids and to portage around the 50-foot falls.

Although hunters and anglers are allowed in by invitation, kayakers are not welcome.

“We will determine who can come on that camp,” says Richard Marion, head of the Scout council, citing safety concerns.

Daniel MacIntyre says the idea that someone owns the water is absurd.

“I guess the closest parallel is saying you can’t fly an airplane over my land,” says MacIntyre, an Atlanta attorney and avid paddler who has represented the Georgia Canoeing Assn. in access matters.

“I just believe that the rivers are the people’s highways--always have been from the beginning of time. And it is just unconscionable that we have a legal system that allows a private party to expropriate that public right.”

Landowners say that it’s easy to paint them as usurpers of some public birthright.

H. Douglas Barclay, an attorney and former state senator, waged a successful four-year battle in the New York courts to uphold his claim of sovereignty on the Salmon River near Syracuse. The surrounding land has been in his family since 1807, but overuse of the river was trashing it, he says.

“What I was trying to do was to make the thing better,” he says. “And all they said was, I was full of greed and I was trying to stomp on the little guy.”

A group of river guides sued, saying that the river was navigable under federal law and should be open to fishing. No, said the state’s Court of Appeals, its highest court; Barclay held the exclusive fishery rights, although the fish were put there by a state stocking program.

But the public’s rights predate and surmount those of the private landowner, argue Robert F. Kennedy Jr. and John Cronin, officers of New York’s Riverkeeper conservation group. They have battled to broaden access to the Hudson River.

“In the early 13th century, the exclusion of the public from England’s forests and streams helped prompt the citizen revolt that resulted in Magna Carta,” they wrote last summer in an op-ed piece in the New York Times. “Among the rights affirmed by Magna Carta were ‘liberty of navigation’ and a ‘free fishery.’ ”

Sometimes it is hard to tell what constitutes the greater good.

Armed with letters of patent from Kings George II and III of England, property owners along the Jackson River in western Virginia sued to affirm their exclusive fishing rights. The grants were valid, according to Virginia’s highest court.

So this year, for the first time in a decade, the state decided not to stock the river with trout.

“It is predicted that . . . trout fishing will be essentially gone, or will be a very small fishery, in a few years,” says David Bailey, an attorney who filed a brief on behalf of recreational boating groups.

Anne Dean, a teacher from Covington, Va., who owns less than half an acre on the Jackson, says everyone has lost something. She is working with the state to see if an easement can be established with landowners so the fishing won’t disappear.

“It’s a bad situation all the way around,” says Dean, who was not a party to the suit but resents any disregard of her property rights. “I don’t think anybody’s winning where we are right now.”

Pressure on the government and conservation groups to buy up environmentally sensitive properties is mounting. On the Chattooga, some say the landowners are using their deeds to hold the environment hostage.

The Chattooga was made infamous by the 1972 movie “Deliverance.” In the film, Burt Reynolds, Jon Voight and Ned Beatty are canoeing down the river when they are accosted by a pair of genetically challenged hillbilly stereotypes bent on sodomy.

But Earl Lovell is no backwoods caricature. The 64-year-old real estate developer is known locally as a savvy businessman.

Lovell and two partners bought the West Fork property last summer for $1.6 million from several landowners. They say the U.S. Forest Service, which owns the surrounding land, missed numerous chances over the last 16 years to acquire the land.

It wasn’t long before the gates and cables went up.

“People were just using it like it was public land,” says Scotty Fain, one of the partners. “This was just like a dump.”

After news reports about the threatening signs, the landowners and the Forest Service began negotiating a possible sale or land swap. In the meantime, the owners informally agreed to allow free passage on the river.

But all that changed this spring. Lovell was back on the banks waving people in, and a cousin who works for the Georgia Department of Natural Resources came out one April weekend to ticket “trespassing” anglers.

“I think they’re just being obstreperous, just trying to be as big a pain as they can, to try to [get] as much money as they can out of the Forest Service,” says MacIntyre, the paddler/lawyer.

The agency was unwilling to pay the asking price, which had risen to $3.8 million.

Williams, a wiry, mustachioed man who drives a rundown pickup and lives in the woods without electricity or telephone, is angry at what he sees as unwillingness by government and the land trusts to offer a realistic bid.

“Nobody’s stepping up to the plate,” he says, chewing on the stub of a cigar used to ward off river bugs.

Because they share a mutual respect, Lovell does not make Williams turn his canoe around. Instead, he offers him a tour of the property in his custom pickup truck. A double-barreled 12-gauge shotgun rests between them in the front seat.

Lovell says he grew up hunting these mountains and fishing these waters. No one would hate to see the property subdivided more than he, but he reminds Williams that he is a businessman.

“You know the way to a man’s heart?” Lovell asks with a grin. He turns slightly and pats his wallet.

In May, the Forest Service broke off talks and filed suit in U.S. District Court for a declaration that the river is navigable under federal law.

The next day, bulldozers began cutting roads on the property. The owners plan a house on every acre.