Foggy bottom: River rights case could impact Virginia economy

Two years ago, Charlottesville business owner Dargan Coggeshall was angling for some trout on the Jackson River. Today, he's angling for a court ruling he hopes will preserve public access to Virginia's waterways.

While the Washington Post recently waded into the controversy, a lawsuit that reprises the classic property rights versus public access debate, Coggeshall is hoping that the State's Attorney General will get his feet wet on this one.

"This is a huge story, waiting to be broken open," says Coggeshall. "But someone needs to hold the elected officials accountable."

Indeed, what started out as a personal affront to Coggeshall– he and his brother-in-law were arrested for trespassing while wading in the Jackson River, just below Lake Moomaw, in Alleghany County following a complaint from a shore-side property owner– gradually became a cause, one that could now have important ramification for Virginia's economy.

According to a 2006 study by the U.S. Fish and Wildlife Service, recreational fishing in Virginia brought in $816 million and created 14,700 jobs. There were an estimated 640,000 resident anglers in the state, not counting tourists, and that was six years ago. Today, it's estimated that the state's recreational fishing industry generates more than a billion dollars annually.

Should more and more private property owners get to determine who uses their section of the river bottom, it could create new and complicated obstacles for anglers and guides.

Under Virginia law, all its waterways are owned by the state and considered public property. However, some river-side property owners have been able to get around the law by producing so-called "crown grants" that were issued by the King of England over 250 years ago. And Virginia courts, along with the state's Attorney General's office, have considered them legitimate documents of ownership.

In 1996, the Virginia Supreme Court ruled in Kraft v Burr that land grants by Kings George II in 1750 and George III in 1769 gave four landowners the right to prohibit fishing along a 3-mile stretch of the Jackson just below the Gathright Dam.

River rights advocates and anglers, of course, were alarmed. After all, the government-built Gathright Dam, completed in the 1960s, had created one of the most ideal trout habitats in the state, due to the release of the deep, cool waters of Lake Moomaw. What's more, the state regularly stocked the river with trout. However, during the Kraft v. Burr case that practice ceased, though the stretch of river is now known for its abundant wild trout. Indeed, the River's Edge development, where the property owners challenging Coggeshall live, markets itself as an angler's paradise.

River rights advocates, however, say states like Virginia need to stop honoring these old crown grants and start enforcing their own laws.

"Since the 1970s, courts have ruled consistently in favor of recreational use on rivers," Eric Leaper, executive director of the National Organization for Rivers (NORS), a Colorado-based non-profit, told the Hook. "So, you own the riverbed? So what. The public has a right to the river, no matter who owns the river bed. Rivers are recreational thoroughfares."

Ryan Brown, the legislative and policy manager for the Virginia Department of Game and Inland Fisheries, says they've been watching Coggeshall's case closely and calls it a "really important one."

"It's a private case," says Brown, "but the practical effects could be detrimental to the public use of the river."

While an Alleghany District Court judge dismissed the trespassing case against Coggeshall, the property owners in the River's Edge Community and their developer, claiming they own the river bottom on which Coggeshall was wading, moved forward with a civil lawsuit against Coggeshall and his brother-in-law seeking $10,000 in damages.

The section of the river in question lies just below Smith Bridge, which runs by the River's Edge residential development.  Coggeshall has fought back, forming the Virginia Rivers Defense Fund, and arguing that Virginia's waterways, much like sidewalks in a city, should be seen as public rights of ways. And he's called on Attorney General Ken Cuccinelli's office to defend the public's right to use them freely.

"Why is the state abandoning me and my brother-in-law?" says Coggeshall. "Why is the state not protecting its property?"

"By law, we can't enter into legal disputes between private parties unless the dispute involves an interest of the Commonwealth," says Caroline Gibson, deputy director of communications for the Attorney General, "which we have determined is not the case here."

Coggeshall had tried to get the Commonweath to be a party to the lawsuit, but as Gibson points out, "a judge already agreed that the Commonwealth is not a necessary party to resolve this case.

"The court is the proper forum in which to resolve the competing interests at issue in this case," Gibson adds.

Meanwhile, the property owners are claiming a right to the river bottom based on land grants that date back to one issued by the King of England in 1743.

As the Hook confirmed, river-side property owners are taxed on river bottom land that extends half-way out under the river, which is another reason why they say they have a right to determine who walks on it. And there's a slight distinction in this case: Unlike Kraft v. Burr, the property owners aren't challenging anyone's right to fish. But getting out of a boat and standing on the bank or the river bottom constitutes their idea of trespassing.

The lawyer for the property owners, Roanoke attorney James Jennings, has declined to comment publicly on the case ahead of the trial, but he told the Hook last year that "This is not a fishing case. This is a trespassing case. These men were walking on the river bottom, and my clients own the river bottom."

On June 14, Alleghany Circuit Court judge Malfourd Trumbo granted the property owners a motion for partial summary judgment, allowing they had prima facie title to the property, which means, literally, that "at first glance" the property owners appear to own the river bottom. Now the burden of proof is on Coggeshall to show that Virginia law, which identifies the state's waterways as public lands, precludes ownership of the river bottom based on a 250-year-old king's grant. That's something he expected to have to do anyway.

"This cause," says Coggeshall, in one of his frequent blog posts, "is about our belief that law-abiding citizens should not be personally sued for using what has been promoted by the Commonwealth as a resource to be enjoyed by all."

Coggeshall hopes the trial, which has not yet been scheduled, brings some clarity on the issue, on where exactly the public can use the river and where they can't.

"Only clarity will end what is sure to be an accelerating cycle of intimidation, confrontation, myth, and ignorance," says Coggeshall, "none of which is good for our Commonwealth."