Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, January 12, 1992 TAG: 9201130249
SECTION: SPORTS PAGE: C11 EDITION: METRO
SOURCE: BILL COCHRAN OUTDOOR EDITOR
DATELINE: LENGTH: Long
STREAM ISSUE DIVIDES OUTDOORSMEN
David Steber is an angler who delights in casting to the dark pools and sun-splashed riffles of the small streams that flow vinelike across the state of Virginia.But for years he's been able to do little more than give many of them a covetous glance from the highway, because they are behind the locked gates and posted signs of private property.
So last summer when Steber learned about section 62.1-1 of the Virginia Code, he suddenly had the glad feeling of a man who'd seen his numbers appear as the wining combination in the lottery.
Section 62.1-1 has been on the books for more than 25 years, but only recently was it resurrected from obscurity in the western section of the state by the Virginia Marine Resources Commission and the Department of Game and Inland Fisheries. That was done by state officials in an effort to protect small streams from abuses, such as channelization, by claiming public ownership of the streambed.
Does it mean all stream showing as blue lines on a topo map are a liquid pathway for anyone who cares to follow them?
Many landowners were hoping that wasn't the case, but Steber perceived it to be the kind of news that is too good to be true. So he spent time in the library of Virginia Western Community College researching the law. He put it to memory.
The longer he pondered it the more clearly it said to him that the rivers and creeks - except those involving a crown grant - belong to the Commonwealth and may be used by anyone for the purpose of fishing and fowling as long as they didn't step out on the bank.
So Steber and a buddy left Roanoke and headed for the upper Jackson River in Bath County.
"We got into the river on national forest property and waded upstream," he said.
When they passed into property owned by the Boiling Springs Hunt Club, "a man in a pickup stopped and pointed to a posted sign," said Steber.
"I said, `Sir, I believe I'm covered under section 62.1-1 of the Virginia Code.' He just waved to me like he was saying, `Have a good day!' "
A few minutes later, a game warden arrived. Steber was ready.
"I said, `Sir, I have not been on the land. I have been in the water the whole time. I am covered under section 62.1-1 of the Virginia Code.' "
According to Steber, the warden wasn't impressed. He told Steber to get out of the water. Steber declined. The warden insisted. Steber said he didn't want to be in violation by coming onto the bank. When the warden ordered Steber out of the water for a third time, he complied. The warden wrote him a summons.
In Bath County Circuit Court, Steber said the judge became angry when he attempted to defend his actions, quoting 62.1-1. His fine and court costs were just under $100. He is appealing.
The widespread confusion over the ownership and use of streams is the subject of a bill introduced in the 1992 General Assembly by Del. Clifton Woodrum, D-Roanoke. It would give the owners of property along non-navigable, non-tidal steams the right to post their streambed property to prohibit trespass on foot.
" . . . This will make the law say, you cannot hunt, trap or fish on foot on non-tidal, non-navigable streambeds that have been properly posted," said Woodrum. "It has absolutely nothing to do with boating or canoeing."
Several outdoor organizations, including the Float Fishermen of Virginia, the Virginia Council of Trout Unlimited and the Virginia State BASS Federation, believe the legislation has potential for closing many creeks and rivers now used for public recreation.
"A very small percentage of the population would be able to control the majority of the state's fishery," said Tom Evans, an environmental lobbyist who is taking the lead in opposing Woodrum's bill. "We are talking about 22,000 out of the 40,000 miles of Virginia's waterways."
The Float Fishermen of Virginia has told Woodrum it opposes the bill, according to Bob Leonard of Roanoke, the president.
"We think it is something that can take a lot of fishing away from a lot of people; that wildlife in the state belongs to the state, not to individual landowners," Leonard said.
Steve Hiner, a Trout Unlimited officer from Montgomery County, sees the bill as an ill-conceived effort to snatch the ownership of wildlife from the state and give it to private landowners, as is the case in Europe.
"That should be a real concern to everyone, not just water users," he said.
The outcry has surprised Woodrum.
"There are a number of people who do not understand it or if they do understand it just refuse to accept the obvious," he said. "It is a funny thing, we can tear down the wall in Eastern Europe, but we are having a hard time with private property over here in Bath County."
Woodrum has gained support from some Trout Unlimited members, Charles Dorsey, of Roanoke, among them.
"I doubt that many fishermen, including myself, gain access to any otherwise prohibited water by wading significant distances up or down the streambed," he said.
"The irony of T.U.'s opposition to it is that without guaranteed control over the stream on their property, landowners have no incentive to improve the quality of the fishery in the stream," he added. " T.U. has long been involved nationally in developing such private fisheries in cooperation with landowners."
It is true that T.U. members have developed public trout fisheries on private streams, said Evans.
"They have financed the stocking, the development, the enhancement, the preservation, the recreation of a whole lot of the trout fishery that we now have on about 2,400 miles of streams. We have built a resource, now it seems that this bill gives the landowners the ability, on a whim, to shut us competely off of it."
Warned Evans, "The politician who shuts the rest of his district out of water-born recreation in favor of these few that own land ought to look twice at what he is doing."
Woodrum has 16 co-sponsors - Democrats and Republicans, east and west of the Blue Ridge - including Vinton Del. Richard Cranwell. On the Senate side, backers include Malfourd "Bo" Trumbo, Madison Marye and Virgil Goode.
The bill, Woodrum said, wouldn't just aid landowners, like Paul Beaudoin of New Castle, who has had uninvited guests wade through his pay-trout fishing program on Meadow Creek. It also would benefit canoeists, he said.
"It is going to clarify the right of the boater, the canoeist, the kayaker to float the property even through it is posted," he said. "It would stop the wader. No question about that."
But floaters say the issue isn't that clear cut.
"We know that we can't paddle canoes on 99 percent of the waters of Virginia without getting out of the water frequently," said Evans. "You are technically trespassing when you turn over. You can't drag over a shoal. You can't get out to scout a rapid. Canoe paddling is about 80 percent boating and about 20 percent footwork."
Amendments will be made to cover those occasions when a canoeist must drag through shallows or upright his craft after a turnover, "because of the general hysteria that has arisen," Woodrum said.
"This is strictly a use regulation," he said, adding that the bill was drafted following requests from a number of landowners, some of them fishermen. "I am saying the landowner has the right to control the hunting, fishing and trapping on foot, even if the Commonwealth owns it [the streambed]."
"Is this bill the final say?" asks Evans. "Or when they win the ability to keep the public off public waters will they go for canoes next time?"