Resolving Access Closures on Private Lands

“Don’t Park on My Property!”

By Jason Robertson

The Scenario: You've been using the same roadside parking area and put-in for years. Today, as you're driving up, you see a man putting notes on the cars parked on the side of the road. As you pull off the road and park, he approaches your car and starts yelling that you're trespassing on his property. What do you do?

Be Polite: Always remember to be polite. Just because he's yelling at you, doesn't mean that he'll become more cooperative if you yell back at him. Courtesy will open more doors than a single thoughtless comeback on your part. Try to defuse the situation by remaining calm. Whatever, you do don't escalate the situation, and don't get in his face. You don't want him to call the police and have you arrested (see Plot Twist IV below). In the absence of hard physical evidence of an easement, the police are likely to side with the landowner before coming around to your way of thinking.

Get Information: Try to find out why the guy is mad, who he is, who he's mad at, and what you can do to ease the situation. Appear cooperative regardless of how cooperative you're really feeling. In a best case situation, the guy is just looking for a sympathetic ear and will back off after he's had a chance to vent. If he backs off, go ahead and report the event to American Whitewater so we'll have a record of it if it comes up again, or so we can address the issue proactively before it turns into a real conflict.

Back Off and Regroup: The guy may let you run the river today, just this “one last time.” If so, have a great trip. If not, back off, and look for an alternative access point or even consider running another river.

Do Some Sleuthing: Later, when you get off the river, and you're still in the area do some sleuthing. Head over to the county courthouse or records office and ask for copies of the property map for the area and a copy of the landowner's deed. Copies of these documents will cost about $5. Then, find out how wide the easement is on the side of road by asking for a map showing the public right-of-way or highway easement for the road. If this information is not available, call the county DOT office or Sheriff's office and they should be able to help you, or direct you to someone that knows the answer, and can provide documentation of the width of the easement. If you normally park on the side of road and hike down to the river by a bridge, ask for a map or description of the property and easement boundaries around the bridge and trail area too.

Contact American Whitewater: With the deed, property map, easement information, and name and address of the landowner in hand, make a copy and send, fax, or e-mail the documents with a description of the incident and copies of any tickets or previous correspondence to American Whitewater, PO Box 1540, Cullowhee, NC 28723 fax 828-227-7422.

Contact the Troublemaker: After notifying American Whitewater about the problem, we will work with you to develop a strategy for resolving the problem. Normally, our first course of action is contacting the landowner via mail and seeing how he responds. Depending on whether there is an easement, we may simply lay down the law, or propose alternative solutions to address the landowner's concerns. For instance, we might describe the state Recreational Use Statutes if he's concerned about liability. We might provide documentation of the state's easement if he's concerned about property rights, or we might offer to patrol the area for trash. If he backs down and stops hassling you that's ideal. However, we normally have to follow up with at least a phone call, personal visit or a second letter. Regardless, it's important to document all of these interactions and keep your cool.

Getting the Law on Your Side: If the landowner keeps raising a stink, even after being contacted by yourself or American Whitewater, then it's probably time to contact the sheriff. The first contact with the sheriff is by a personal phone call. Briefly explain your experience, where and when it happened, and what has transpired since your first encounter. If you've done your research, you should let the sheriff know what you found - especially if the landowner is blocking access to a public easement. Again, it is important to keep a record of whom you've spoken to as well as the content of your discussion.

“I want to Sue!”: Legal action is almost always the last option. In the event that legal action is necessary, you should be prepared to show the documentation from your initial research, and your earnest attempts to resolve the situation via letters and other correspondence. American Whitewater may help you find a pro bono attorney or provide other advice at this stage. Be aware that legal action is often expensive and that American Whitewater has a limited budget. Sometimes the state or local District Attorney will intervene and offer to represent you for free.

Plot Twist: “He had a gun!”: There are exceptions to every rule. What do you do when the landowner has a gun? If the landowner is waving a gun around and pointing it at you, stay calm, get out of the way, and call the sheriff. It is never OK for someone to threaten you with a gun, and this type of threat generally constitutes 3rd degree assault. If you are threatened by a gun-toting local, it is especially important to make sure the incident gets reported to the police. This record can help to protect you and every other boater if there is future legal action. Also, if there are other witnesses, try to get the guy ticketed and press charges. The exception in this case is if the guy has a gun sitting in the back of his pick-up, or has a pistol holstered, that is generally within his right unless he starts threatening you. Again, treat threats seriously and report them to the police.

Plot Twist II: “I was trespassing”: During your research you discover that the guy actually owns the property, that there isn't a public right-of-way along the highway where you parked, or that the there's no easement by the bridge where you normally hike down to the river. What do you do? Unfortunately there's no easy answer to this question. First, contact American Whitewater. Second, we'll work with you to try and figure out whether there's anything that you can do to ease the landowner's concerns. Extend an open hand and offer to pick up trash in exchange for permission to park there, or describe the state Recreational Use Statutes if he's concerned about liability.

Plot Twist III: “He wants to sell the property”: If the guy is just causing trouble in order to sell the property, find out what you can about purchasing the site. Then work with your local clubs and American Whitewater to either purchase the property or find a cooperative purchaser. Sometimes local land trusts are willing to purchase these access sites, and at other times state, county, or federal agencies can help. We can work with you to find potential purchasers.

Plot Twist IV: “I was arrested and my car was towed!”: So you slipped up and didn't back off in time and were arrested, or your car was towed or ticketed while you were off running the river. What do you do? First, get your car back if it's been towed. Second, do your sleuthing. Third, contact American Whitewater and we'll work with you to find legal assistance. Depending on the regional or national importance of the issue, we may intervene directly, or we may help to fund an attorney. Our participation will depend on the circumstances, funding and your cooperation.

Plot Twist V: “He owns the river”: You've solved the parking issue, but now the guy claims he owns the river. What do you do? The short answer is listen to the person's concerns and ask permission to float on through quickly without getting out of your boat (if safe). Suggest that you'll respect his property rights and will consult the state navigability laws and even call the sheriff before returning to run the creek. It really helps to know your rights prior to paddling in a state. For example, in Virginia the guy really could own the creek, whereas in North Carolina and most other states you absolutely have the right to float through.

The Whitewater Legal Defense Fund: We can help more people on more rivers through adequate funding of American Whitewater's Whitewater Defense Fund. Please consider making a tax-deductible contribution to our Whitewater Legal Defense Fund (send donations to Legal Defense Fund, Access Director, American Whitewater, PO Box 1540, Cullowhee, NC 28723. We tap into this fund whenever it's apparent that our legal assistance will help to resolve issues of regional or national significance. In 2000 we have already provided successful legal assistance and advice to boaters on the Taylor (CO), Platte (CO), American (CA), Grand Canyon (AZ), John's Creek (VA), and Mokelumne (CA) among others.

The Last Word: Remember, even if a stream is navigable, you cannot access the stream via private property without the consent of the owner or a legal access easement. The research that we listed above is designed to help determine whether there is a public easement, or alternate means of legally accessing the river.

8 Tips for Approaching Landowners for Access

By Jason Robertson

Here are eight tips for approaching private landowners and getting permission to access creeks and streams via their private property. After your visit, consider thanking the owner with a postcard, phone call, or even with some of your stories.

1. Be prepared. Write down your name, contact information, license tag, and car description in advance. Offer to the owner. Many owners will allow access if they simply know who you are and how to get in touch if there is a problem.

2. Be patient. Take your time to approach the landowner. Don’t speed in or out of the owner’s driveway, don’t appear nervous or antsy.

3. Be courteous. Don’t wake, startle, or frighten the landowner late at night or early in the morning. Think about approaching the owner now during the off-season and getting early permission to use their property next spring or fall. Don’t wait for when it rains all night and the water is up at 6 AM.

4. Be clean. Dress neatly. Don’t wear outlandish gear or inadvertently appear threatening. Wait to put on your wet suits, lifejackets, and helmets until you’ve spoken to the owner. Jeans and a polo shirt work well. Leave your paddles and sunglasses in the truck.

5. Introduce yourself and your friends if they are with you; only seek permission for a small group to access the property, and only ask to use the property once on your first visit. The owner may volunteer permanent access, but don’t press too hard on your first approach. If the owner lets you in once, they are likely to let you in a second time if they see you respect their property rights.

6. Ask about where to park your vehicle, places on the property to avoid, and which trails you may use to access the creek.

7. Be interested. Ask about the owner and the area. Even if your access request is refused on your first request, it’s possible the owner will recant and allow you to use their property if you express sincere interest in their community and land.

8. Be positive. Statistically, one in three owners allow access to their lands. If denied at your first choice, follow the creek up the road, and knock on the next door.

Originally published in the Nov/Dec 2001 American Whitewater Journal.

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