By Beau Beasley
Last summer, I asked the Virginia Game Commission, the governing body for the Virginia Department of Game and Inland Fisheries (VDGIF), to clarify where anglers can safely fish in Virginia without fear of being sued. The impetus for the letter was North South Development versus Garden, a case in Allegheny County that pitted a riparian landowner against a wading angler on the Jackson River.
In response to my letter, the VDGIF created a white paper that confirmed that Jackson River access and use has long been a contentious issue. Although the state requires a fisherman to purchase a license to fish here, its responsibility to the sportsman ends once state officials have collected his or her money, and the VDGIF has no statutory authority whatsoever to defend an angler if he or she is sued for fishing in public.
The riparian landowner, the plaintiff in the case, possessed a crown grant, a royal deed that predates, and therefore trumps, state law. Crown grants — or king’s grants, as they are sometimes called — were issued by the king of England during the Colonial era to encourage settlement in the New World. Many of the crown grants in Virginia date from the 1650s.
The Virginia legislature passed a law in 1802 decreeing that all land not already conveyed was to be held in trust for public use — but of course crown grants had already been conveyed. Because nearly all of Virginia’s rivers — the James, New, Shenandoah, York, Hazel, Jackson, Pamunkey and Rappahannock, for example — have such grants in their past, crown grant ownership remains a very real issue for all river users.
The commonwealth’s decision not to defend what it claims it owns and advertises as public property in the fishing maps it issues has broad implications. Anglers have been the target of most litigation in the past; now kayakers and duck hunters are feeling the heat.
Ken Cuccinelli, attorney general of Virginia and Republican gubernatorial candidate, refused to step in to assist the defendant in North South Development versus Garden, asserting that the state had no interest in the civil case. Former Virginia Attorney General Mary Sue Terry, a Democrat, also refused to defend a sportsman in a similar case on the same river in the 1990s.
Recreational fishing is a billion-dollar business in Virginia and supports more than 20,000 jobs. How can the commonwealth not have an interest in this matter? If properly licensed sportsmen can’t trust the state to defend them while hunting or fishing on property the state advertises as publicly owned, why not fish and hunt in another state where sportsmen are welcomed?
Landowners are likewise frustrated that the state encourages sportsmen to trespass on disputed property. After all, in most cases, the landowners pay taxes on the property. How can the riparian owner possess a riverbed enough to be taxed on it and also not own it enough to control what goes on there?
The fact is that the state leaves riparian landowners little choice but to sue if they want their private property acknowledged as such. Yet when they threaten legal action against trespassers, landowners are accused of attempting to “privatize” said water. This muddled state of affairs is Virginia’s status quo — and it is untenable.
Two legislators are interested in changing that status quo: Del. Scott Lingamfelter (R-31st), and State Sen. Creigh Deeds (D-25th). Both drafted legislation to address this thorny issue last year, but both pulled their bills before a vote so that they could gather more information.
Deeds’ bill was eventually turned into a study group that is supposed report to the Virginia legislature by November. This study group is composed of various state agencies including the VDGIF, Virginia Marine Resources Commission and the Attorney General, and will work with other stakeholders, including the Virginia Conservation Network, the James River Association and the Farm Bureau, to come up with suggestions for a legislative fix.
Selling hunting and fishing licenses to sportsmen and then refusing to defend them when they hunt or fish on what is widely advertised as public property is bad public policy. Forcing riparian landowners to sue sportsmen to establish private property boundaries is equally bad.
We can do better. The Virginia legislature needs to provide much-needed clarity on this important issue. Everyone interested in access to the water can help persuade them to do so by contacting their representative to ask them to wade into this issue now.
Beau Beasley (firstname.lastname@example.org) is the author of several books on fishing. Distributed by Bay Journal News Service.