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Federal laws concerning water rights


Jonn Graham
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If you were at the blowout and listened to Marc Miller's speech about water rights here in Illinois, you may recall I asked a question about how the federal laws do not jive with the Illinois' laws. Here is the link to a site that may open a few eyes. I have contacted Marc and am awaiting a phone call back.

 

http://nationalrivers.org/

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Thanks Jonn,

 

There is a lot to digest there. Like you I am interested in what goes in Illinois because we seem to have midieval laws here when it comes to access. The test case in the burbs would be trying to canoe or kayak down the East Branch of the DuPage through the Morton Arboratum at mid-day. You can place side bets on how many Security vehicles and County Sherrif's cars show up to stop you and ticket you.

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Jonn

Thanks for locating a very valuable website for any water use recreationist.I've always felt that a single reasonably ez to interpret federal trespass law re rivers should have been in place instead of the mishmash of state by state laws that have always held sway typically in favor of the landowner in many states including ours.From reading the Who Owns The Rivers article in this website it turns out there always has been such a federal jurisdiction re our nation's rivers which somehow or other over time was allowed to pass into obscurity in favor of what turns out to be unlawful state jurisdiction.What's needed is to bring the superceding federal law out of its obscurity and into the light of day by educating not only the public but public authorities as well.Otherwise it does the recreationist no good to have the favorable federal law on his side when unfavorable illegitimate state law determines.

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Ron:

 

I totally agree!!!! I think it is going to take some outdoorsman with deep pockets to take this thing to court and get the state of IL to do the "right" thing.

What's really needed and what could hopefully resolve the issue in pretty short order is for the federal government to step up to the plate and assert its historic jurisdiction.Every water recreationist should include the nors website on their computer's favorites list for future reference.

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AWESOME RESOURCE!

 

John, Great job on not only your questioning but the stats to back it up! Facts are what people respond to!

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I've added that NORS site to my bookmarks. The article, though long, is interesting reading. Even though it appears to be a well-researched article, I think before I'd jump to any final conclusion I'd want to read those federal cases cited and make sure they apply to our concerns. Lots of federal courts, and state courts for that matter, try to reach decisions on the narrowest grounds possible, and what they say in a Colorado case may not always apply to a situation in Illinois or Indiana, even when applying federal law.

I do hope the federal case law applies to Illinois waters, but I know there is a strong farm interest in this state that might have thoughts at odds with those of ISA members. Without reading the cases, I'm not sure what principle of law gives federal law jurisdiction over Illinois waters, especially those that are not involved in interstate commerce. There's something about "all powers not given in the constitution to the federal government are reserved to the states." I'll bet that's been said before in some of the argument of these cases.

Now when Jonn gets done with law school, I think I know what his first case will be. :D

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The problem comes when those who feel that "their" river is being taken from them will fight in court. Many have legal deeds to the river and won't just go away. Someone will have to go to court to ensure the Federal laws are enforced. As soon as someone with enough money and desire steps up to fight for it, things may change. Until then, everything stays the same.

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This creates a dilemma for me because in the minds of many Federal, AKA big brother, intervention is a no-no while individual, AKA private, control is preferred. On the other hand, in the minds of others, individual, AKA private, control fails to consider the rights of all citizens and requires federal intervention to set things right.

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The problem comes when those who feel that "their" river is being taken from them will fight in court. Many have legal deeds to the river and won't just go away. Someone will have to go to court to ensure the Federal laws are enforced. As soon as someone with enough money and desire steps up to fight for it, things may change. Until then, everything stays the same.

The problem exists precisely because due to the Feds historic lack of asserting what the "law" actually is landowners have been allowed to believe that it is their river which belief the state courts have reinforced with their misguided rulings in the landowners' favor over our country's history.If the feds would simply step forward in letting it be well known to all concerned what the law actually is landowners would at long last be made aware that they have no legal recourse but to comply or attempt to get the law changed.Until than there'd be no point in calling the local gendarmes.As for those screaming about creeping big brotherism this law has been on the books since the time of our founding fathers.

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