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Scott River float protest planned; group challenges ownership of stream

by Ryan Sabalow, Redding Record Searchlight 1/5/12


The Scott River runs through Siskiyou County's Scott Valley in October 2011.

Photo by Andreas Fuhrmann // Buy this photo

The Scott River runs through Siskiyou County's Scott Valley in October 2011.






Siskiyou County Sheriff Jon Lopey

Siskiyou County Sheriff Jon Lopey

A Siskiyou County supervisor warns of possible confrontations and "civil disobedience" if an environmental group follows through with plans to float the Scott River in Siskiyou County to protest what a spokesman says is an effort to keep members of the public off the stream.

"There may be some confrontations," said Supervisor Marcia Armstrong, who represents the area. "I have no idea (what will happen), but it may be the opportunity for some of the groups looking for civil disobedience."

Armstrong's statements came after learning a group calling itself the "Jim Denny Scott River Brigade" announced last week it would float the stream to protest what a spokesman described as Sheriff Jon Lopey attempting to declare the river a nonnavigable waterway, thus limiting access to the stream.

"These are citizens who aren't going to let them turn the river into a private river," said Felice Pace, a 64-year-old environmentalist and blogger who lives in both Etna and Klamath and who plans on joining the float.

Pace said Jim Denny was a Scott Valley native and the grandson of Scott Valley pioneers who loved the Scott River and decried what had been done to what was once a healthy stream teeming with salmon.

Pace declined to identify the members of the group, but he said they are local people who have been active in Siskiyou County environmental issues for years.

He said they wish to keep their identities and date of the float secret for the time being out of political concerns and because "there's a potential for violence."

Lopey said this week though he'd initially thought the river didn't "fit the definition" of a navigable and thus public river, he did further research to determine it was.

Lopey said so long as those making the float don't trespass on private property and keep the peace, they should be allowed to complete their journey downstream. But he warns their intent will also play a role.

"If they're specifically going down river to start problems with ranchers and farmers or others, that may not be a lawful purpose," he said.

A property rights issue

Pace said the group wants to make a statement about the public's right to use a public river, but it doesn't believe in violence.

"It'll be nonviolent or else I won't participate in it," he said.

Lopey said that over the last few months he's received a number of complaints from ranchers reporting trespassers studying threatened coho salmon on their property. Though the Scott is navigable, he said he doesn't think its smaller tributaries on which the groups allegedly trespassed are, so he's asked the county's attorneys to review the matter.

But Armstrong already has her mind up on the matter on whether the Scott is public.

"I've always considered it non-navigable," Armstrong said.

She said under the county's land patents, those who have property along the river own the land that goes all the way down to the center of the stream, thus forbidding access to anyone.

She said going back now and saying the streams are public amounts to the "taking of private property."

The Scott and the neighboring Shasta River, two streams that feed the Klamath River, have been the center of a contentious dispute over irrigation water and coho habitat.

State biologists and fisheries regulators have tried to put limits on the amount of irrigation water farmers pull from the river during dry months, something supported by environmentalists, Klamath Indian tribes and coastal commercial fishermen. The restrictions have been widely condemned by the farmers and county's conservative leaders who say the restrictions are unnecessary and threaten their livelihoods.

Both sides of the debate have sued the Department of Fish and Game over the agency's attempts at issuing irrigation-water use permits.

The farmers allege the permits infringe on their guaranteed water rights; the environmental and fishing groups allege the permits don't go far enough to limit farmers' use.

Both cases are pending.

More 'navigable than not'

Jordan Traverso, a spokeswoman for the Department of Fish and Game, said the navigability issue being raised on the Scott is an unnecessary distraction in the agency's efforts to work with landowners to protect fish.

"We're working at coordinating well with the sheriff and local officials but may disagree from time to time on particular issues," Traverso said Tuesday in an email. "It looks like this waterway is more likely to be navigable than not. The argument about navigability takes important time and energy away from efforts to coordinate and get collaborative restoration projects done working with landowners."

James Wheaton, president of the Oakland-based Environmental Law Foundation, an environmental group that sued the California State Water Resources Control Board and Siskiyou County in 2010 over farmers' groundwater use, said Lopey would be within his authority to begin citing people for trespassing on the Scott River.

But he said he doesn't think the sheriff would have a case that would hold up in court. He said state and federal judges have made it clear a stream is public so long as during certain times of the year there's enough water to float a small pleasure craft like a canoe or a kayak downstream.

"As long as it's navigable, then the public has a right to be on the river so long as they're below the mean high water line," Wheaton said. "If it's a navigable waterway, then any member of the public can fish, walk or traverse (the stream) below the mean high water line."

It also doesn't matter if a stream dries up during parts of the year, so long as a boat can float down "some parts of the year."

However, no court has ever said how long the water has to be flowing for it to meet that test, Wheaton said.

During May, the river's high water month, the Scott flows at a mean historic rate of 1,150 cubic feet per second. During September, its lowest water month, the Scott flows at a mean historic rate of 50 CFS, according to mean historical flow numbers provided by the U.S. Geological Survey, which has a flow-sensor station on the Scott River near Fort Jones.

The Scott traditionally has flows of more than 1,000 CFS for five months out of the year, according to the USGS.

"It would be a tough sell to say the Scott isn't a public trust or navigable river," Wheaton said. "That would really be a stretch."

He notes a recent court case concluded the Los Angeles River, in which large sections of the river are nothing more than graffiti-lined concrete canals running through the city, is a navigable stream, even though it's dry for much of the year.

Courts also have determined legislative bodies are unable to declare streams as private, Wheaton said.

Of course, he said, it would still be illegal for someone to pass through private property to access a stream without permission of the landowner.

Damien M. Schiff, senior staff attorney at Pacific Legal Foundation, a conservative, pro-property rights organization in Sacramento, agreed with Wheaton's assessment of the law.

But he said while state and federal laws grant a public easement to those wishing to float on rivers, in California the law is geared more toward boating and recreation not for biological studies.

"I suspect that might be were there ultimate source of the disagreement is," he said.

'Need to take some risks'

Pace, the Siskiyou County environmentalist who plans on floating the Scott, said he believes the law is on the group's side and he hopes to meet with Sheriff Lopey in the days before the float to make sure the group has Lopey's blessing and protection.

If Lopey balks or refuses to discuss it with him, Pace said, he'll turn to the California Attorney General's Office for help.

Lopey said Thursday he welcomes such conversations.

"We're going to enforce the law," Lopey said. "I don't want them to be molested, but I don't want them creating unnecessary problems."

Pace acknowledged the float won't be popular with landowners along the river. But he said he's used to being the target of such ire. In the 1990s, Pace was a vocal supporter of logging restrictions during debate over spotted owl habitat. He speaks with pride about once getting physically attacked because of his outspoken political views.

"The thing is there's a movement to privatize water and privatize so many things that are public," Pace said. "We need to take some risks."

This float also won't be the first time Pace has tried to turn access to the Scott into a political statement.

In the early 1990s Pace participated in a similar float organized by the now defunct Marble Mountain Audubon Society. He said it was peaceful, though there were a number of landowners who lined the banks carrying guns as they watched the group float by.

Armstrong, the county supervisor, said there have been a number of people who have moved to the area since then and they are even stronger supporters of private property rights and therefor may be more likely to confront the group.

Pace said that's unfortunate.

"I'm an American citizen," he said. "I don't have to beg anybody or ask anybody to float a navigable river."

Sari Sommarstrom, executive director of the Scott River Water Trust, a nonprofit group that reimburses farmers for leaving water in the river during dry months, said it's also unfortunate Pace keeps getting so much media attention, since it causes so much tension in the area.

She said Pace riled up local landowners so much during his last float, it's now almost impossible to get access through private land to float the river for fun, something she remembers doing almost every year on Mother's Day before the contentious Audubon float.

"It's sad," she said. "They've taken a lot of the fun away from us locals."

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