VIRGINIA FISHING FEUD

by Spencer S. Hsu

The Washington Post, Spring, 1995. A group of western Virginia property owners who claim to hold fishing privileges granted by two long-dead English kings has sued a fishing guide for trespassing, raising the possibility of similar suits seeking to restrict fishers’ access to thousands of miles of state rivers and streams.

The case unfolding in Alleghany Circuit Court has led opposing lawyers on a kind of scavenger hunt for legal authorities on the scope of 18th century "crown" grants.

It also pits local commercial interests along the Jackson River against out-of-town conservationists and reawakens feuds dating back generations between rugged landowners and their government.

"Regardless of the outcome, this case will affect public access to fisheries and streams in all of Virginia, and maybe not just Virginia but elsewhere," said Terry Grimes, lawyer for Charles Kraft, 40, the fishing guide who is accused of trespassing. "It opens a Pandora’s box."

At issue is a 19-mile stretch of the Jackson River between Covington and Lake Moomaw. Although most of the land on either side is privately owned, the waterway is a state fishery. Planned in 1979 by the U.S. Army Corps of Engineers and stocked since 1990 by the state, the site is becoming a premier East Coast fishing ground, the landowners’ lawyers say.

Under U.S. law, most waterways are open to the public even if they run through private lands, so long as they have been used for commerce or navigation. But the 18 landowners who filed suit against Kraft say they have exclusive rights over fishing and hunting, based on the terms under which English kings granted the land to the original Colonial property holders.

"I’ve got photocopies of these original grants" authorized by King George II and King George III in 1750 and 1769, said Randy Cargill, a lawyer for the plaintiffs.

Crown grants, while predating U.S. law, are recognized by Virginia and federal courts. But a Virginia judge has not clearly ruled whether they supersede "public access doctrine," Kraft’s supporters say.

A victory by the landowners could create a "patchwork quilt" on Virginia riverbeds in which state-sanctioned fishing holes would be interspersed with private stretches where owners could bar fishing or charge fees, Grimes said.

"It certainly is of concern to us," said Larry Hart, deputy secretary of the Virginia Department of Game and Inland Fisheries. Hart said that an unknown but substantial part of the 20,000 miles of navigable Virginia rivers and streams flow through land derived from crown grants.

"We don’t know about the broader geographical impact. We don’t know to what extent these grants could apply," he said.

The branch of the Jackson under dispute holds special significance to all parties involved. Drawn from the coldest water at the base of the Gathright Dam, the stream is mixed by wildlife managers to achieve a year-round temperature of 58 degrees - ideal for trout.

A limestone riverbed nurtures nutrients and supplies a superior habitat for the fish, making many sportsmen excited about the region.

"This is a very lucrative fishing area," said Neal Emerald, coordinator for Trout Unlimited, a Vienna-based conservation group. Emerald, whose group has offered its lobbyist and raised money to help Kraft, calls the suit a land grab.

"The state of Virginia, the U.S. Army Corps of Engineers, has spent a lot of years, a lot of money to make this a trout fishery," Emerald said. "This is an attempt by these people to privatize the river so they can make a lot of money off of them."

The owners, some of whom have held the land for decades, say they seek only to protect their interests.

"It isn’t fair. This property has never been public property," said Michael Urbanski, an attorney for the plaintiffs. If they win, his clients will not block the fishers from the river, but solely "control its access" through fees or other means, Urbanski said.

Round one has gone to the landowners. In a preliminary hearing, Circuit Court Judge Duncan Byrd refused this month to dismiss the case, agreeing with the owners that fishing rights are different from navigation rights. The case has not yet been set for trial, but Grimes already has promised an appeal on that point.

The fight is neither the first battle about the fishery nor even the first between the current participants.

In 1968, the U.S. Army Corps began work on Gathright Dam, based on plans drawn after World War II. To win approval of the controversial project, the corps bargained with the state game and fisheries department to create the fishery in exchange for flooding an older one above the dam.

But after the deal was struck, landowners - including several of those now suing Kraft as well as some of their relatives - challenged the plan in federal court, saying the government was taking the use of their property without compensating them. A public fishery would grant the state control of riverbeds belonging to them, they contended.

A federal appeals court decided against the families in 1984. But the crown grants were not raised in that suit.

The latest case requires thorough researching, both sides say. They have tracked records of land titles back to 1750, scouring aging Alleghany and Bath county files and microfilm in Richmond libraries.

"You’ve seen the Declaration of Independence - these documents are written out longhand and virtually illegible. All the s’s are f’s. You can’t hardly read the darn things," Grimes said. They also describe property in somewhat dated fashion. "They’re like, ‘So you go to the large oak tree and over to the big white rock,’" Grimes said.

On a legal brief submitted to Byrd, Grimes cited Roman law, the Magna Carta and 17th century English common law scholars. "Throughout history, there are two things people have been able to do with respect to waters, and that’s travel up them for purposes of commerce and fish," he said.

Update, September 16, 1996, Associated Press: George III of England lost his American colonies, but his authority was upheld last week in the land that was wrested from him in the Revolutionary War.

The Virginia Supreme Court ruled that four landowners along a stretch of the Jackson River can bar fishing in their waters because of grants - called crown grants - issued to previous landowners by Kings George II in 1750 and George III in 1769.

The grants gave the landowners full control of the land and everything on it, including the river. Many such grants were given after the French and Indian War (1754-1763) as rewards for service.

Last fall, Alleghany County Circuit Judge Duncan M. Byrd Jr. agreed that the current landowners had title and barred guide Chuck Kraft Jr. from fishing on their three-mile portion of the river in western Virginia.

The state Supreme Court has upheld Byrd’s decision with a ruling by four of its seven justices.