By | December 12, 2019
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Portions of the Upper Chatooga River near Highlands have limited access due to the posting of obstacles by a local association. Photo courtesy of Kevin Colburn

A recent clash between a landowner and several recreational users on the North Mills River in Henderson County highlights the blurry rules that govern who may or may not use North Carolina’s waterways that flow through private property.

River access issues ignite now and again in North Carolina, leading some water rights advocates to be concerned that run-ins between conflicting parties may become more frequent.

On Sept. 12, residents attended a Mills River Town Council meeting to protest a no-trespassing sign and rope spanning the North Mills River adjacent to North River Farms.

According to the meeting minutes, Katie Lamb complained of being bullied by Jason Davis, the owner and operator of North River Farms. Davis, whose wife, Chae Davis, is mayor of Mills River, also operates as a fishing-and-hunting outfitter.

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The Town Council attempted to limit public comment about the run-ins to one speaker to represent all attendees, according to news media accounts and interviews with those who were present.

According to the minutes, however, several citizens delivered public comments.

Among them was Sandra Brown, who said that her niece was reported for trespassing while fishing from land not owned by North River Farms.

Ray Bryson complained that a private fishing club was limiting access to the river. Eddie Ingle delivered a written statement that said the rope across the river is a “form of harassment, may be dangerous to boaters and technically is a ‘gate.’”

Phil Brittain, a resident who lives at the confluence of the north and south branches of the Mills River and who spoke at the meeting, told CPP that he was “surprised and shocked” by the “no-trespassing” posting.

“The river has always been seen to be held in common and has been looked after by the community,” he said.

“Water is public, and the river is public. We are simply caretakers.”

What struck a nerve on the North Mills River, Brittain said, was the perception of losing rights to a resource the community traditionally could access.

Brittain said three parties, including his nephew, were confronted by representatives of North River Farms while using the river to float or fish. To his knowledge, none of them crossed Davis’ land to reach the water.

In a phone interview with CPP, Jason Davis denied that he or his staff bullied anyone.

“People are welcome on our farm,” he said. “We just wish to do it in a safe, methodical and organized way. Any farm is going to have to know who is on their property.”

Davis has removed the rope across the stream hanging the “no-trespassing” sign, but insists that he “did not break any laws.”

“We want everyone to know that we are good people who work hard and are good stewards,” he said. “We will do what we have to do to get the communities’ support. If someone comes to my farm with an interest in fishing, I will show them where to park. We want everyone to be happy. This is a wonderful community, and we are going to fix it.”

Brittain, too, is hopeful that the friction with Davis can be resolved by “good neighbors and old traditions.”

A rope with a “no-trespassing” warning blocks boater access along the North Mills River in Henderson County. The rope has been removed since this photo was taken. Photo courtesy of Phil Brittain.

What do the rules say?

Kevin Colburn, stewardship director of American Whitewater, told CPP that the ability to boat or wade in the Mills River does not require permission.

“People have the right to float any river in North Carolina,” Colburn said. “It’s part of an incredible water system that reaches almost everyone’s backyard.”

His organization’s mission is to protect and restore whitewater rivers across the nation and enhance opportunities to enjoy them.

Although residents may settle the tension on the North Mills River without government or the courts, the episode highlights the delicate peace at the intersection of private land and access to public water.

It’s a mounting concern among access organizations: While many waterways are accessible through public land and established public access points, river users also rely on using streams that flow through or border private property.

According to Colburn, future access may be in jeopardy in certain high-demand waterways throughout North Carolina — or already lost.

Chattooga headwaters

A key issue for American Whitewater is reopening the headwaters of the Chattooga River, a steep section of the federally designated Wild and Scenic Rivers System prized by boaters near Highlands.

Land bordering a 1.7-mile stretch of the headwaters is owned or leased by the Whiteside Cove Association, a “family sportsman club” that uses the river to fish, swim and hike, according to a document submitted to the U.S. Forest Service in 2009.

The group claims that boaters’ “demands for unmanaged recreation and unlimited boating are in direct conflict with our members’ ability to enjoy the Chattooga due to the associated conflicts and disturbances resulting from paddlers.”

The group has installed cattle gates, fencing and razor wire to block passage. Regardless of the obstacles, the U.S. Forest Service prohibits paddling on tributaries of the Chattooga on public land upstream of the barriers.

Colburn said American Whitewater has participated in more than a decadelong effort to reverse the ban, which, he said, violates the Wilderness Act and the Wild and Scenic Rivers Act by blocking the public use of a river to “create the privilege of exclusivity for landowners.”

The issue on the Chattooga is further complicated by murky state and federal navigability rules that regulate access to rivers flowing through private property.

Generally, if a stream is “navigable,” the public has the right to float in it. However, navigability, Colburn said, means different things under different bodies of law and is ruled state by state.

For example, navigability in Georgia is more restrictive than in North Carolina and is defined as streams that are capable of transporting boats loaded with freight.

North Carolina has adopted the “navigable in fact” test; that is, if a boater can float in the river, the river is navigable.

Colburn said the north and south branches of the Mills River and the headwaters of the Chattooga have the capacity to float a kayak; therefore, the water and its wildlife are held in the public trust of North Carolina.

While land deeds may designate ownership of the land over which the river flows, it doesn’t apply to the water itself.

“When you bought the land, you did not get the right to use that water exclusively,” Colburn said. “There is essentially an easement through that stream. The river is not ownable, and the public has the right to … paddle,” such as from a public access point that does not cross private property.

As far as Colburn is concerned, the presence of a “no-trespassing” notice hanging across the river, such as the sign over the North Mills River, may stir confusion.

“What happens when the public perceives that they can’t use a public resource?” Colburn said.

“Who steps in? Essentially, (the private landowner) just claims it, and the public has to deal with it.”

Logistics of paid access to rivers

David Whitmire operates Headwaters Outfitters in Rosman in Transylvania County.

The guiding portion of his business relies on leasing access to private sections of the river to guide anglers and boaters. While he also uses streams within public land boundaries, leasing access to private sections of water allows him to dodge crowds and to sidestep fisheries that may be stressed by climate or overuse.

The streams he is able to access through leases, he said, have “historically not been used by the public.”

“We try and stay with sections of river that have been out of touch from the public,” he said. Otherwise, “there would be a backlash if we locked up something that the public has always had.”

As part of his agreements with private landowners, Whitmire is able to cross private land to access and stock the stream with trout from a certified hatchery under supervision from the N.C. Wildlife Resources Commission.

Roughly half of Transylvania County land is held in the public domain, so anglers and paddlers have plenty of options to use streams on public land without issue or conflict.

Ensuring and tracking access

“We are really fortunate to have lots of public access in the mountains,” said inland fisheries coldwater research coordinator Jacob Rash of the N.C. Wildlife Resources Commission.

Rash said his agency maintains partnerships with municipalities and other bodies of government to provide entry to boaters and anglers.

In addition, he said, a large portion of the agency’s access program is managed through private landowners. In typical cases, river use is granted through the tradition of landowners allowing anglers and other users to cross their land.

The wildlife commission hopes to solidify as many public entry points as possible throughout the state and has a digital map to help anglers locate public access on private land.

“We have lots of great water on private land and great partnerships thanks to the graciousness of landowners,” said Rash. “But things can change overnight.”

Among the challenges of maintaining river use passing through private land are properties that fragment over time due to ownership changes.

As a result, Rash said, users can be “placed in confusing situations,” such as when a “no-trespassing” sign appears in the middle of a traditionally used stretch of river where the number of landowners has multiplied.

“In that case, we have to make a decision about augmenting boundaries or we may have to remove it from the program,” said Rash, who added that the costs and logistics of maintaining partnerships increase with more landowners involved on a single stretch of stream.

Loss of access

While access issues may cause conflict, such as the fracas on the North Mills Rivers, some streams, once open, quietly close to the public.

In 2015, the wildlife agency commissioned a study to measure attitudes of landowners toward trout fishing access.

According to the survey, roughly a fifth of the respondents posted “private” or “no-trespassing” signs on their land or near the water.

Among landowners who responded to the survey that no longer allow public access, 26% indicated they experienced problems with fishermen or other users, such as littering, damage to property and trespassing.

“Tons of pressure in very specific spots” exist in North Carolina, Colburn said.

Among them is the High Country around Boone, said Mike Mihalas, the North Carolina council chair of Trout Unlimited.

Many of the desirable trout streams are on private land, he said.

“You see a lot of purple paint along streams in the High Country,” Mihalas said.

The N.C. Landowner Protection Act of 2011, similar to legislation in other states, permits landowners to mark trees on their land with purple paint to indicate private property.

The purpose of the act is to encourage landowners to make land available for recreational use by strengthening existing trespass laws on private property and removing enforcement barriers. For example, the act enables wildlife officers to write citations in lieu of obtaining an arrest warrant.

But as property gets sold and divided in the High Country, Mihalas said, “more land is getting posted.”

“We are also seeing landowners monetizing their trout streams by having a fee-based access system or private lodging with access to the river,” he said.

“One of our concerns is once there is money to be found, there may be further incentive to post it and monetize it.”

Keeping access open

Trout Unlimited is working with a range of landowners and organizations to secure permanent passage to trout streams throughout the High Country and the mountains, Mihalas said.

While Trout Unlimited does not acquire land or hold easements, the organization has helped fund and support other land managers with land acquisitions that have value to anglers.

Trout Unlimited provided funding for the purchase of Big Creek Lodge, a 78-acre parcel surrounded by Pisgah National Forest on North Mills River that was favored by anglers. Before the purchase by the U.S. Forest Service, a developer drew up plans to build 80 residential units on the portion of land distinguished by a century-old lodge.

“We want to make sure that people have access to as many streams as possible,” said Andy Brown, the coldwater conservation manager for the Southern Appalachians.

“It’s not just important to those who like to fish, but it’s important to cultivate the next generation of conservationists. People have to have a place to fish.”

Nevertheless, he empathizes with landowners’ unease about opening land for public access.

“The proportion of bad actors to good ones is small, but it just takes one to mess it up for others,” Brown said.

“I do think we can work through those situations if folks put their heads together, and they realize that it’s good for the fish, good for the habitat and good for the next generation of conservationists and sportsmen.


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ABOUT JACK IGELMAN

Jack Igelman is a contributing reporter with Carolina Public Press. Contact him at jack@igelman.com.