From Darkness To Light

1 Dec 2013

Class warfare at Oxbow Park and Preserve targets tubers, with legal challenges afloat

Posted by Adam Howell

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Class warfare in the form of a ban on inner-tubers wanting to float a stretch of the Animas River is currently in full turbulence among two City Boards that are debating whether to keep the written prohibition in a draft of the Oxbow Park and Preserve Management Plan.

A beach that the City of Durango now owns at Oxbow Park and Preserve sits empty.

A beach that the City of Durango now owns at Oxbow Park and Preserve sits empty.

If and when the ban is finalized by the Boards, a political challenge to the rule could come in the form of a written City ordinance or even an appeal to an authoritative federal court after losing an appeal at the La Plata County Courthouse.

For Durango voters, the utility of a petition drive as a tool for repealing unpopular laws is a familiar one after observing the events of the past two elections. In the most recent 2013 election, Durango voters repealed a ban on plastic bags at grocery stores, which had recently been enacted as law by the City Council. In 2012, Colorado voters rewrote the Constitution to repeal marijuana prohibition, which Colorado’s legislature was unlikely to do any time soon out of their own free will.

Both legal challenges came in the form of petition drives that allowed the electorate to decide on the issues, rather than elected officials.

What have these petition drives taught us? For one, ambitious activists working on petition drives can have more of an affect on public policy than just asking a politician to support policies that reflect public opinion.

Secondly, they’ve taught us that government officials are often way off the mark in creating policies that they think reflects the desires of the electorate. This policy-making by politicians in defiance of public opinion is a reoccurring theme in the chapters of American history.

For Durango’s City Officials, the decision on whether to prohibit inner-tubes on a stretch of the Animas River downstream from the recently acquired Park is a chapter in history that could  easily repeat itself.

The Natural Lands Board and the Parks and Recreation Advisory Board are currently debating on whether to finalize a ban on inner-tubes from the Oxbow Park and Preserve down to 33rd Street.

A proposed ban on inner-tubers on a stretch of the Animas River

IMG_0496At the behest of riverfront property owners that are angry about tubers urinating, defecating and littering the river banks north of 33rd Street during the summer, several Board members are collectively pushing to keep a ban on inner-tube use in the current draft of the  Oxbow Park and Preserve Revised Draft Management Plan.

Many of the angry riverfront property owners have previously asked the City to prohibit any recreational-related development at Oxbow, to the chagrin of the Boards trying to draft a Management Plan for it.

Now some of those same property owners want to prohibit tubers from launching from the conceptualized river put-in, who they think have disrespected them and their property in the past.

The Draft Management Plan, as written, states that “downstream tube float trips shall not be permitted to launch from the property,” and that “all river users should wear an approved Personal Flotation Device” from Oxbow down to the 33rd Street take-out/put-in.

At the last joint Board meeting, a mix of public comments were given both in support of and against the inner-tuber’s right to float a slow stretch of river that’s popularly known for it’s depth that keeps tubers butts off of the rocky bottom even during low water flows.

Criticized as a form of class warfare that punishes all tubers because of the irresponsible actions of a few, the tuber ban met plenty of resistance.

This blogger was among several people at the meeting that supports the rights of tubers to float from Oxbow.

Anna Fischer, a local business owner that spoke during the public comment section, said that she was against restricting user group access on the river, but in favor of the Board’s proposed operating hours at the Park from 5 a.m. to 10 p.m.

Several Board members also supported the rights of tubers to float the Animas River from Oxbow Park and Preserve.

Among those on the Boards in support of tuber’s rights were Paul Wilbert, Richard Speegle, Rich Hoehlein, Peter Schertz, Connie Imig and Carter Janes. All of the others indicated that they were in favor of a tuber ban.

“From the high school point of view, I feel like it’s not going to be followed as much as we would like it to be,” said Carter Janes, a Youth Ex- Officio on the Parks and Recreation Board.  “Even though they say it’s not permitted–honestly, a lot of people aren’t going to follow that from my point of view or my opinion.”

Instead of brainstorming ideas for increasing enforcement efforts of Durango’s existing trespassing and littering laws, Parks and Recreation Board Member Karen Carver put all tubers in a figurative box by saying that tubes were not an adequate means of propulsion down the river and that those using them cause noise and commotion.

“When I did look at pictures that were included in one email. Things that you know we’d consider inappropriate behavior–dogs off leash, a picture of a person defecating on the shore–they were all with tubes,” said Carver. “That’s kind of painting a broad brush, but I mean I think that’s some of the issues that are common with some of the tubers.”

Defining what a tube is, exactly,  can be hard when some come in the shape of couches, and some look like a rubber ducky, said Board member Richard Speegle.

“There is quite a population of legitimate inner tubers that have fun doing that and you are kind of totally emitting them,” said Speegle. “I understand bad apples and I understand the concern, but you can have bad-apple rafters and bad-apple stand up paddle boarders.”

Durango’s Parks and Recreation Director Cathy Metz said that the goal of the Boards should be to keep river users moving down the river past private property, while considering that for many people, an inner-tube is an affordable flotation device.

Federal precedent on public rights to the surface of navigable rivers

As for the Board members that are pushing for a ban on tubers, they should familiarize themselves with three precedent-setting federal court cases where judges have ruled in favor of the public’s legal right to access the surface of navigable rivers, at any point.

The first federal case where a ruling was made in favor of the public’s right to access the surface of a navigable river at any point came in 1982 from Loving vs. Alexander, a civil case from Virginia where riverfront landowners pushed to exclude people from accessing the Jackson River, which crossed over their properties. The judge ruled against the landowners.

“Nevertheless, because the factual situation in this case is so different from that in Kaiser Aetna, the court holds that a navigation servitude applies to the Jackson River Segment and that the defendants may, without invoking its eminent domain power and paying just compensation, require plaintiffs to allow public access to the surface of the river,” said the Court’s judgement.

The second federal case, which affirms that private land owners do not own navigable rivers crossing their property boundaries occurred in 1987 in Goodman vs City of Crystal River.

 “We declare that the plaintiff does not own the water of Three Sisters,” said the Court order.

The third federal case, from Florida, which affirms the rights of the public to cross over privately-owned lands while egressing a navigable water way was decided in 1997 in Atlanta School of Kayaking, Inc. vs. Douglasville-Douglas City Water and Sewer Authority.

“Non-resident Paddlers shall be allowed to paddle from the point where the Dog River joins the Reservoir across the Reservoir to the Facility and to use the Facility, including the parking lot and boat ramp, for egress from the Dog River. All rules which apply to Douglas County residents for the use of the Reservoir and Facility shall apply to the Non-resident Paddlers,” said the Court’s conclusion.

With the precedent set in each of the aforementioned federal cases, an inner-tuber could theoretically appeal to a federal court, any local ruling made by a municipal court against them, for floating a stretch of the Animas River where inner-tubers were banned through a Management Plan or accompanied City Ordinance.

In the event that the City lost such a court battle, they would be forced to pay the court costs and attorney fees expended by the challenger.

Searches and seizures at Oxbow Preserve river put-in

Angry property owners who live near the Animas River made an attempt to encourage the two Boards to allow searches and seizures without probable cause of all alcohol that river runners attempted to take with them at Oxbow Park and Preserve as part of its Management Plan, a system that former attorney Tim La France calls ‘controlled access’.

Speaking at the meeting was La France, some riverfront property owners and Board members Smith and Viehmann, who indicated support for searching people’s belongings at the Park before allowing them on to the river but did not understand that such acts are expressly prohibited by the Fourth Amendment of the U.S. Constitution. Viehmann later said that a City Ordinance would be the best way to allow the City to conduct such searches and seizures.

Searching and Seizing

A cop searches through the belongings of a young adult who was not familiar with his right to travel unmolested by an unwarranted search where no probable cause was given before hand.

Smith initially spoke in favor of allowing searches and seizures of river runner’s belongings at Oxbow, until Durango’s Parks and Recreation Director Cathy Metz advised Board members that neither the Chief of Police Jim Spratlen, nor the City Attorney David Smith could find legal grounds for the allowing the City to conduct searches and seizures there.

“The Chief of Police has said, and the City Attorney concurs, that we cannot do illegal search and seizures here. We cannot open people’s coolers,” said Metz. “Now if that opinion changes, because of new information, or we have a different discussion. We have to understand that that is outside the purview of this Board.”

This response is likely the result of the Chief of Police and the City Attorney having a familiarity with the Fourth Amendment of the U.S. Constitution, which allows for “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” without law enforcement having probable cause.

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