Speakers at the meeting included Carl Martin, regional supervisor of the Va. Game and Inland Fisheries; Sheriff Dan Smith; and Patrick Game Warden Dale Owens.
Law, policies discussed at river rights meeting
By Nancy Lindsey
Law enforcement officers told a group of about 50 people at the Red Bank Ruritan Club building Feb. 26 that the flowing waters of the Dan River in Kibler Valley are public waters and can be floated without fear of arrest.
The other side of that legal coin is, however, that the privately owned land along the Dan cannot legally be crossed without the permission of the landowners, the officers said, noting that a no-trespassing sign is sufficient warning that the property is private.
Sheriff Dan Smith told the group that the United States is "a land of laws and a land of lawsuits," and his job is to enforce the laws. Some of the questions that have emerged from the controversy over land and water rights in Kibler Valley would have to be resolved by lawsuits, Smith said.
In the meantime, he said, his office cannot arrest a person for floating the Dan River in a canoe, kayak or boat--or fishing from the banks with the landowners' permission.
Any landowner can have a person charged with criminal trespass by going to a magistrate and swearing out a warrant, Smith said.
The no-trespassing signs generally serve as probable cause, he said, but the court would determine whether a conviction is warranted. He added that each sign should be signed by the property-owner.
Ilene Epperson, a Kibler Valley landowner, asked why the meeting was being held since Commonwealth's Attorney Stephanie Vipperman was absent.
Smith said Vipperman was ill, but had sent an opinion to be read to the group.
"The tests for determining navigability vs. nonnavigability and private vs. public ownership are so varied among the federal and state cases and statutes that it would be a denial of due process to any defendant charged with criminal trespass for floating down the Dan River," Vipperman wrote. "I can only offer an opinion as to a possible crime being committed. I cannot comment on the likelihood of success of a civil suit against a recreational boater or fisherman.
"Unless and until the tests for navigability and ownership are clarified by the legislature or higher courts, we will not charge someone with criminal trespass for floating down the Dan River," Vipperman said. "This opinion, however, does not limit or prevent the landowners from pursuing a civil action against the recreational boaters and fishermen."
Vipperman wrote in a later e-mail that she had spoken with Judge Martin Clark and he had agreed that she could share his opinion.
"He believes that the Dan River in Kibler Valley is navigable based on the current tests laid out by the courts," Vipperman wrote. "Thus, he would dismiss a charge of criminal trespass against any boater for floating down the Dan River in Patrick County...However, he does believe if people exit their boats and enter a landowner's private property, they could be charged with offenses such as criminal trespass or littering, depending on the circumstances."
STOCKING THE RIVER
It was clear from the comments by many in the audience that a major concern was whether the river would continued to be stocked with trout in Kibler Valley.
"We want the river to be stocked," one man said.
Carl Martin, regional supervisor for the Virginia Department of Game and Inland Fisheries (DGIF), said the agency serves everyone in the community, including both landowners and sportsmen. There is no way people can enjoy outdoor recreation without the cooperation of property owners, he said.
Martin said he has been coming to Patrick County since 1972, and knows that the Dan River in Kibler Valley is "one of the most pristine streams" in the United States.
Compromise could ease a lot of the friction that sometimes exists between landowners and sportsmen, Martin said.
Recreational uses such as fishing should not interfere with landowners' desire to control their own property, Martin said.
He suggested installing signs saying "fishermen welcome," or "foot travel only," which would prohibit people from driving on private property and damaging grass. If someone parks in a prohibited area, the landowner has the right to call a wrecker to remove the vehicle, Martin added.
Martin said he would like to see a return to the opening day of trout season on April 1 (the state made the season continuous a few years ago), if people could be respectful of the private property they were using for fishing.
Law enforcement does not have the authority to arrest someone floating on the river unless he enters or exits the river at a point where he does not have permission, Martin said.
"If there are posted signs all along the Dan River, will you stop stocking the stream?" Smith asked.
"Yes," Martin said.
"But I'm hoping it can remain open for a lot of reasons," Martin said. He said young people who are interested in outdoor recreation are more likely to be successful in college and careers, and less likely to end up in jail. Many people who work in cities want to get away to rural lifestyles and activities, he said.
Martin said the agency is also looking at fishing programs for "wounded warriors" who have been injured in war.
"I'd like to stock Kibler and keep it open," said Patrick Game Warden Dale Owens.
"If I get a sign saying 'fishermen welcome,' will you stock?" a man asked.
"Yes," Martin said, "and I'll help you make the sign."
Smith said the situation has improved greatly since he started having deputies patrol the area in 2008 during the annual Kibler Valley River Run.
There were multiple arrests back then, Smith said, and a young man was killed in a vehicle accident. In 2013, there were no arrests, he said.
"We and everybody involved have made a great effort to diminish the stigma" that used to exist in Kibler Valley, Smith said. There was a misconception that the valley was a public park, open for camping anywhere, even on private land, he said.
People had to be educated to understand that "Kibler Valley is not a public place," Smith said.
"You all have done an excellent job since the death of the young man," one audience member said. "Things have really calmed down."
"My land is open to fishermen," one man said, and there were others who seemed to agree.
One who did not agree was Ilene Epperson, who owns a substantial amount of land in Kibler Valley and has said that her land and the water running through it are not subject to state and federal laws because her ancestors received a King's Grant or crown grant from the King of England in the late 1700s.
In 1996, the Virginia Supreme Court ruled in Kraft v. Burr that crown grants issued by King George II in 1750 and George III in 1769 gave four landowners along the Jackson River the right to prohibit fishing in the waters flowing over their land, according to a Virginia Tech report entitled "Inland Recreational Fishing Rights in Virginia: Implications of the Virginia Supreme Court Case Kraft v. Burr."
The 1750 crown grant gave William Jackson 270 acres of land along the Jackson River, including property on both sides of the river, the streambed, and the "privileges of fishing, hunting, hawking and fowling."
Epperson said she thought there are " a significant number" of crown grants along the Dan River.
"There's no question about the property you own," Martin said. "It exempts you from having a fishing license."
Smith said there are several legal questions about the implications of crown grants, such as whether one is valid if the land was granted to your great-great-great-great-grandfather and sold to someone else's great-great-great-great-grandfather.
"I don't believe anybody has the right to the use of my property," Epperson said.
THE DRBA FACTOR
The controversy surrounding Kibler Valley started last year when the Dan River Basin Association (DRBA), a group of volunteers, asked to present a Patrick County Rivers and Trails Master Plan to the Patrick County Board of Supervisors.
There were misconceptions and rumors that DRBA wanted to build trails or do other projects in Kibler Valley and control the landowners' private property rights.
DRBA volunteers strongly denied those rumors, saying that there were no projects in the plan for Kibler Valley.
Brian M. Williams, DRBA project manager, wrote in a response to questions from a canoeing enthusiast, "There are no plans within the master plan to develop any trails or river access in Kibler Valley. DRBA does not have any authority over private or public lands and our policy is one of respect for private landowners.
"The Dan River in Kibler Valley is a public river but the majority of lands surrounding it are private," Williams wrote. "The road through the valley is public and there is public access at the Power House owned by the city of Danville. There is no public access to take out of the river downstream other than the 50-foot public right-of-way located at all bridges. We strongly urge, as we always have, complete respect for private property and permission to enter and exit any river that must be accessed through private property."
The supervisors "received but did not accept" the DRBA plan, according to the motion made by Peters Creek District Supervisor Lock Boyce, and that motion passed by a vote of 4-1.
Dan River District Supervisor Roger Hayden cast the dissenting vote, continuing to claim that DRBA was threatening the private property rights of Kibler Valley residents.
Hayden attended the Feb. 26 meeting, but did not make any public comments.
Blue Ridge District Supervisor Karl Weiss also attended the meeting, and asked a question about stocking the river.
THE KIBLER VALLEY RIVER RUN
The Kibler Valley River Run has been held every summer for more than 30 years, according to Darrell Cockerham, an organizer of the meeting.
The city of Danville releases water to create the "white water rapids" that allow canoeing, kayaking and floating on other vessels, and the event attracts large numbers of outdoor enthusiasts to Patrick County.
The event is sponsored by the Red Bank Ruritans, a group of volunteers who contribute all the proceeds to the community, Cockerham said.
Proceeds from the River Run have gone to the Brenner Children's Hospital and the North Carolina Burn Center at the Wake Forest Baptist Medical Center in Winston-Salem, N.C.; the after-school program for tutoring special needs students at Blue Ridge Elementary School; Hunters for the Hungry; needy families and other local causes.
The Ruritans "try to help wherever there's a need," Cockerham said.
The popularity of the River Run has also enhanced tourism in the county and increased property values, Cockerham said.