Troubled Waters and call to action

[Bart Durham]

Attached is link to ABA Journal article entitled "Troubled Waters" that outlines the current battle between  the publics' river access rights and landowner's rights in Illinois.  The article references the Dupage River landowner issue as well as  a lawsuit involving the Mazon River in Grundy  County entitled Holm vs. Kodat, in which the Illinois Third District Appellate Court upheld a Grundy County trial court ruling adverse to river access rights .  Also attached is a copy of the Holms Third District Case.  The Illinois Supreme Court has agreed to take up and  hear this case and it is currently under a briefing schedule with oral argument date to be set.  This case will dictate public access rights to Illinois rivers for years to come absent legislative intervention which will be difficult at best.  The Will County Forest Preserve District has filed an Amicus Brief in support of river access rights in the current Holms Supreme Court case.  The ISA is looking into doing this as well and I will keep you posted on developments on this issue. Please let me know  your thoughts on this  important issue that could significantly impact Illinois Smallmouth fishermen, kayakers and outdoorsmen for years to come. 

https://www.abajournal.com/magazine/article/troubled-waters

https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/8a3521b6-1262-45b4-ba39-bcd15807b6aa/Holm v. Kodat, 2021 IL App (3d) 200164.pdf

[John Gillio]

Thanks for sharing this Bart.

[Kev-mo]

Let us know how/if we can help other than signing petitions or being responsible and respectful when on the water

[mikea]

Thanks for posting Bart

[bill sheridan]

About 10 years ago I bought a book:  Commando Canoeing in Illinois. The 2 guys who wrote  the book used that title because there is very little free water in IL.  They would canoe on week days when people where at work. They did get their car towed and had to retrieve at the county pd. 2 creeks that they stated as  “ guaranteed to get arrested “  Big Indian & Little Indian in LaSalle County.   I bought the book just to get ideas about creeks to fish. The book is a very good read just for the history research that was done about original land owners back for 150 years. If you can find it I give a good reqemendation.

[Mark K]

Awesome.   

[Ryan S]

Very informative article. Interesting info on the history of river access rights in the US and Illinois in particular. Thanks for posting!

[Mark K]

On 2/5/2022 at 10:19 AM, Bart Durham said:

Attached is link to ABA Journal article entitled "Troubled Waters" that outlines the current battle between  the publics' river access rights and landowner's rights in Illinois.  The article references the Dupage River landowner issue as well as  a lawsuit involving the Mazon River in Grundy  County entitled Holm vs. Kodat, in which the Illinois Third District Appellate Court upheld a Grundy County trial court ruling adverse to river access rights .  Also attached is a copy of the Holms Third District Case.  The Illinois Supreme Court has agreed to take up and  hear this case and it is currently under a briefing schedule with oral argument date to be set.  This case will dictate public access rights to Illinois rivers for years to come absent legislative intervention which will be difficult at best.  The Will County Forest Preserve District has filed an Amicus Brief in support of river access rights in the current Holms Supreme Court case.  The ISA is looking into doing this as well and I will keep you posted on developments on this issue. Please let me know  your thoughts on this  important issue that could significantly impact Illinois Smallmouth fishermen, kayakers and outdoorsmen for years to come. 

https://www.abajournal.com/magazine/article/troubled-waters

https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/8a3521b6-1262-45b4-ba39-bcd15807b6aa/Holm v. Kodat, 2021 IL App (3d) 200164.pdf

I got to thinking about this after the fact.  With regard to the Mazon, does any of this really matter?  I may be wrong, but even if you can legally be in the river, there is no place to park.  

[Paul Trybul]

For the Mazon it may only matter to the few who have some legal access but are interested in accessing more.  I feel the bigger picture issue is river access in IL in general. The IL laws are old and antiquated. I personally would like to see them be more in line with what Wisconsin offers for river access.

[John R. Flannery]

I agree that the way Wisconsin handles this issue is more sensible. Years ago, a small dam on the Pike River on a private golf course stopped the upstream migration of salmon and steelhead near Kenosha.  Anglers could legally wade in and even walk on the bank below the high water mark. It did become somewhat of a mad house during the peaks of the run, but the Kenosha County Sheriff's Deputies watched for people violating the law and made arrests if anyone  went beyond the high water mark. They arrested one unfortunate angler who hooked a gigantic steelhead and desperately tried to chase the fish upstream. The situation was resolved  when the dam was removed, allowing the fish to get up to a state park. I had permission to access and wade fish the Mazon for many years. There are a few bridges where  launching a kayak would be possible. The topography of the stream would make determining the high water mark difficult, though, because it is so flashy. At a normal low water level portages would be necessary for any watercraft in a few spots. I do think that the issue of the tubers behavior needs to be addressed somehow. People littering, relieving themselves and trespassing is a big problem, and though the business owners cannot control their actions on the river, if they are going to run that business, they need to use good judgement and not rent to drunken hooligans.

[mikea]

The state of Illinois already owns a large parcel approximately a mile up from the confluence of the Mazon and Illinois river (Morris Wetlands), They offer no access for taking out by kayak or canoe. My guess is the state is pressured from county government to limit access, and the county is influenced by large land owners like the ones named in the lawsuit.

[Mark K]

On 2/9/2022 at 4:30 PM, mikea said:

The state of Illinois already owns a large parcel approximately a mile up from the confluence of the Mazon and Illinois river (Morris Wetlands), They offer no access for taking out by kayak or canoe. My guess is the state is pressured from county government to limit access, and the county is influenced by large land owners like the ones named in the lawsuit.

I was told that stretch is off limits because it's a nesting area for birds. 

[Bart Durham]

A quick update on the Supreme Court Case status.  Oral arguments have been set for March 22nd in Springfield.  

There may be some timing issues making it difficult for the ISA to file an Amicus Brief in support of river access rights in this case but we are still going to try. We believe we have until March 9th to file our Motion.

We will also be seeking to join in the Amicus Brief filed by the Will County Forest Preserve  as part of our filing.

Friends of the DuPage River (FOTDR)  have indicated a desire to join in our efforts in this case. 

Once our filing are complete I will post copies here for our members  to review.

 

[Bart Durham]

The Illinois Agricultural Association (IAA) has filed an Amicus Brief in the case siding with the landowner and requesting the Third District ruling against river access be upheld.  If you would like a copy of their brief let me know.

[Bart Durham]

Are there any ISA members out there that own non navigable riverfront or creekfront property in Illinois on such rivers as  Dupage, Kishwaukee, Mazon or Vermillion Rivers (Wabash or Illinois) or creeks?  If so,  please let us know.  It could help the ISA in their efforts  in the Holms case. You can pm me if you like or post here.  Thanks.

[Kev-mo]

On 3/2/2022 at 7:50 PM, Bart Durham said:

Are there any ISA members out there that own non navigable riverfront or creekfront property in Illinois on such rivers as  Dupage, Kishwaukee, Mazon or Vermillion Rivers (Wabash or Illinois) or creeks?  If so,  please let us know.  It could help the ISA in their efforts  in the Holms case. You can pm me if you like or post here.  Thanks.

I think you meant to say 'waters that navigability has yet to be determined on'. 

[Bart Durham]

This week we were able to complete and file our Motion and Supporting Amicus Brief for the ISA and Friends of the DuPage River with the Illinois Supreme Court. Attached are copies of the pleadings we filed.  The first few pages include the Motion for Leave to File Amicus Brief and proposed orders.  The most important  pleading, the Supporting Amicus Brief is in the last 12 pages of the attachment.  

The Supreme Court has yet to rule on our Motion for Leave to file the Amicus Brief.  We should hear something soon as oral argument has been set for March 22nd.  If the Court doesn't allow our filing hopefully the Court will at least read our brief for whatever persuasive effect it may have.  We will keep you posted on all developments in the case as they are learned.  

I want to thank attorney Pat Anderson of the Shannon Law Group in Woodridge/Chicago for his tireless pro bono work, assistance and help in preparation of the pleadings in this case.

316388884_MotionforLeavetoFileBriefasAmicusFinalFileStamped.pdf

[Bart Durham]

Unfortunately the Supreme Court denied the ISA's Motion to file our Amicus Brief.  The Kodat attorney objected to our filing and the Court agreed with their position.  

At least the Court will know there are other groups interested in the outcome of this case and what is at stake.  Oral arguments were set before the Supreme Court today.  It doesn't look promising but we'll see where the Court rules.  

[Kev-mo]

On 3/22/2022 at 10:43 AM, Bart Durham said:

Unfortunately the Supreme Court denied the ISA's Motion to file our Amicus Brief.  The Kodat attorney objected to our filing and the Court agreed with their position.  

At least the Court will know there are other groups interested in the outcome of this case and what is at stake.  Oral arguments were set before the Supreme Court today.  It doesn't look promising but we'll see where the Court rules.  

What exactly does 'objected to the filing' mean? Like we shouldn't have made a motion cause it doesn't concern us or something?

[Terry Dodge]

1 hour ago, Kev-mo said:

What exactly does 'objected to the filing' mean? Like we shouldn't have made a motion cause it doesn't concern us or something?

Because the Time Window had already closed on filings. By the time this came to our attention the time window had already closed. Bart made an effort to get this in knowing it would be tough. Fine ISA effort by Bart. Thanks Bart. It was worth a shot.

[Bart Durham]

Its unfortunate we didn't know about the case when Holm's attorney filed his initial  brief with the Supreme Court, but we tried the late filing anyway.  

There is certainly no delay in the court of public opinion.  Let your media and local politicians know what you think about this issue and the outrageousness of the Third District ruling.  

[Kev-mo]

15 hours ago, Bart Durham said:

Its unfortunate we didn't know about the case when Holm's attorney filed his initial  brief with the Supreme Court, but we tried the late filing anyway.  

There is certainly no delay in the court of public opinion.  Let your media and local politicians know what you think about this issue and the outrageousness of the Third District ruling.  

What exactly should we reference when contacting Illinois representatives?

[Kev-mo]

Also as I sit here and ponder this issue instead of working.... how exactly can one own a river bottom that's constantly changing? The silt, pebbles, even small chunk rock that was the river bottom when someone bought their river front property is no longer there. Yeah I know I'm splitting hairs but still.... annoyed and venting 🙁

[John Gillio]

2 minutes ago, Kev-mo said:

Also as I sit here and ponder this issue instead of working.... how exactly can one own a river bottom that's constantly changing? The silt, pebbles, even small chunk rock that was the river bottom when someone bought their river front property is no longer there. Yeah I know I'm splitting hairs but still.... annoyed and venting 🙁

Exactly, what once was someone else’s becomes mine and what was once mine is someone else’s over and over and over again. Is your ground trespassing on mine? Is mine on yours? Wasn’t there a U.S. Supreme Court decision saying something like any water that could float a log in rainy season  was considered navigable and could be traversed by the public up to the high water mark?  It would be nice if the issue were settled one way or another by the highest court. I know it’s not that simple. Wish it was.

[Bart Durham]

Here is the link for the Supreme Court oral argument in the Holm vs. Kodat case that proceeded on March 22nd. 

https://www.illinoiscourts.gov/courts/supreme-court/oral-argument-audio-and-video/

You can listen to or watch the proceeding, by hitting the icon next to the Holm vs. Kodat listing. 

I thought Holm's attorney, Zac Pollard, did a great job with a difficult subject.  I was encouraged by the line of questioning from the Jurists, but we will see what happens. I noted the attorneys referenced our Amicus Brief in their argument so it was considered by the Court!

I also learned that depending on what happens in this case, Illinois State Representative Janet Wang Rohr, will be introducing a bill to make the Dupage River open to the public.   So, some great  news on that front!