[fishin] Sorry for the confusion everyone! I added a post using my old username (Brandon Harkness)and didn't mean to so I am adding it again with the correct account. Please don't respond to the earlier post. Anyway I noticed some people were interested in the controversy regarding Gem Lake Harbor and thought I could be of some help. If you have questions I have answers! I am quite sure I have more facts about it than anyone. If you would like to know everything that has been going on with this lawsuit with Mr. Beck I would be more than happy to supply some info. The (whole) public needs to know about it and I would like to spread the word to anyone interested in knowing more. Thanks, hope to hear from you all!
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I deleted the other post for you. You're good to go.
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How about posting an overview of where you see the issue at today as well as where it's heading?
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I'm also curious if anyone knows how it was formed? Did he buy the land with the pond/harbor on it, or did he dig it out and let the water in?
In the olden days you would put old cars or rocks in the bend of the river to keep it from knocking down the bank, but anymore you aren't allowed to do anything to change what nature wants to do. You can put rocks on the side of the river, but have to wait for the bank to be eroded enough under them for them to fall in themselves.
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Thanks! appreciate that. Still not too familiar with this site nor am I a genius on a computer
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Gem lake harbor was constructed in 1989. It was a former gravel quarry that was owned by Doyle Beck. Beck obtained water rights from IDWR (Idaho department of water resources) for recreational purposes and dug the hole. The water right he obtained was good to divert water from the snake river at a flow of one cfs. He then hooked it to the snake river by an open channel 100 foot wide. It was supposedly approved by the corps of engineers(though I have not seen proof of it).Neither agency approved it to be a private waterway. In 2006 deputy attorney general Steven Strack(natural resources division) was asked to determine if the waters within the harbor were subject to public use. He determined the water was open to the public for a number of reasons one being that the water within the harbor was not the sole property of mr. beck. If Beck was only pulling the amount of water approved, the harbor would be less than an inch deep. Instead it was hooked to the snake river by means of an open channel which he determined was navigable under Idaho law and allowed the waters of the snake river to fill it.Under Idaho law "when the water of a natural waterway is impounded in a man made reservoir, the impounded waters are subject to the public right of navigation even where the underlying lands are privately owned". The harbor is considered an extension of the snake river and the public right of way follows the water.There is much more facts into this however i cannot write it all in one post so I will quote the summary of Stracks decision.
"In short, Idaho statutes and decisions recognize that where a landowner causes or allows his land to be inundated by navigable waters, the public right of way follows the water. The owners of Gem Lake Harbor voluntarily allowed the inundation of their property by the navigable waters of the Snake river, and must accept the public rights that are inseparable from navigable waters. Therefore, persons accessing gem lake harbor by means of the navigable "outlet" are not trespassing on private property. The public right of access, however, applies only to the water itself. The adjacent property owners may exclude persons from entering upon any portion of the upland property".
Like said before there is much more going on with this that all support Stracks decision, however judge Joel Tingey ruled the harbor private recently. The federal government also supports Stracks decision and when it comes down to it they have the final say. Federal government actually owns the public rivers in every state and is given to the states in trust for the public. No state can create laws that take away from the public nor can they make laws that contradict the laws the federal government already have set. Every single bit of research I have done on this support the fact that this is public water and believe me I have done my research. Both the state and the federal government support this yet judge Tingey ruled it private! I hope this gives more insight to concerned sportsmen and feel free to ask any questions you may have that I have not yet covered. There is much more to know and I have all the answers.Please ask away!
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Good info,
now questions:
1. Because the judge has ruled in favor the man made harbor being private property, what does that mean for future "alleged" trespassers?
2. Will Beck have to bring charges to court and prosecute each trespasser, or will the sherrif issue the citation and let the county prosecutor prosecute?
3. what are the consequences at this point if you accidently navigate into the harbor? $$$, hard time in jail?
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I talked to the fish and game in I.F. last week and learned that d/t the judges ruling at this time they are bound to enforce the laws as they currently stand. That being said they did not sound like they were real thrilled about the current state of things. When asked as to whether the Fish and Game are going to do anything about it I was told that the issue is being "discussed by the powers that be" in Boise. He then said that I should just keep an ear open for more to come from this thing. In the mean time it sounds like anyone in there would be cited for trespassing until this thing is worked out further. In the mean time Beck would have to want to press charges on each an every person that goes in there. As for accidentally navigating into the harbor you would be very hard pressed to do it. I suppose if you haven't seen any of the headlines on this story and you know what the federal and state laws are regarding water navigation rights. In that case I would guess the County Sherriff would probably issue a warning unless Beck really made an issue of it.
As for rest of the points made in this thread about the laws and this case in particular they are exactly what I have found as well. As already mentioned I'm still floored as to how judge Tingey came to the ruling he did given the very clear explanations, and prior rulings on similar issues in Idaho. I think given time (if people want to continue the legal battle) the courts will rule that it's open to public navigation in which case I'll go back to fishing the harbor or Beck will be a spoiled brat and fill the whole thing in at that point. Either way in the long term I can't see how higher courts would uphold the current standing.
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I believe now that Beck has his ruling the sheriff will have to issue citations for trespassing.I was told before the ruling officers were told to refrain from writing tickets when Beck called them. There was nothing they could do because it was unclear whether it was trespassing or not.Now that he has established it as private, law enforcement will have to issue citations.Not exactly sure what the penalties would be for trespassing but I am sure it would be a pretty hefty fine at the least.One thing for sure if you get caught in there at this point,you will surely find out.I believe he could still sue you if he wished to do so and really cost you some money! One thing for sure is trespassing is not taken lightly!I do know the area is patrolled regularly and I am sure law enforcement will be watching for people now.Not the kind of guy to try it with though cause I would bet he will go whichever route will hurt you the most!
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Another thing that might floor you is the way the judge came to his conclusion.His definition of navigability is that it has to be navigable in its original form dating back to the date of statehood. Since it was a gravel quarry at the time of statehood and therefore obviously not navigable because it wasn't even there,he claims it fails the navigability test yet other Idaho laws and especially federal laws contradict this. How this conclusion was made is beyond me but in my opinion Beck had some serious help to make this happen. I am very certain if brought to supreme court it would be ruled the other way. Federal government has stated there has been a lot of trouble in the lower courts in these river disputes because of the laws the state makes and said most cases go in favor of the public in supreme court.Federal governments opinion is the only one that matters.They are the ones that actually own the rivers. Another reason it was ruled that way is 90 percent of the argumental facts never even got to be heard by the judge. It was completely unfair cause the opposing side never got to call any witnesses nor get to say one single word to defend it. Interesting story in itself how that played out
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Yep, that makes sense to me. He should have known he was opening that waterway to the public by making himself an access out to the river (and gaining access to a lot more water than he has water rights to). I wish he was more reasonable like the Shelley pond, they don't want us on their property, but understand that the pond itself is now public.
I do hope this gets settled in a higher court, and makes me wonder about the judge who ruled in Beck's favor...
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The other thing about the amount of water paid for vs amount taken is while speaking to IDWR they said the water is only temporary and must be returned to the river.The water is only to used but not to own. The water right means you can divert water from river and use for own personal use such as irrigation and recreation for example. But there is a difference between personal and private!
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Good write up die_hard_fisher. This whole deal is a travesty of our laws. I hope the
F&G or the Attorneys General will re-address this issue!
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Bardic wrote:[/quote]
Yep, that makes sense to me. He should have known he was opening that waterway to the public by making himself an access out to the river (and gaining access to a lot more water than he has water rights to). I wish he was more reasonable like the Shelley pond, they don't want us on their property, but understand that the pond itself is now public.
I do hope this gets settled in a higher court, and makes me wonder about the judge who ruled in Beck's favor...[/quote]
I say we vote the judge out. On the ballots there is a place that asks if a judge should be retained in office. You get a chance to vote them out. Lets publicize his name and vote the man out of a job.
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Its nice to think that fish and game or attorney general would step in here and back us up but I wouldnt hold my breath. The attorney generals office was asked to help in court and back up the determination made in 2006 but they drug their feet and didnt do a single thing. They were aware of the court date and failed to act in order to help defendant despite numerous letters kindly asking for insight into law or fact on the issue. They were first asked by attorney to overtake the case where it was not really an issue about one fisherman but the public as a whole. They were very sympathetic yet declined to help fight this issue on their dollar. I found this dishonorable where they tell everyone you can go in there and fish and then when someone gets sued they don't feel obligated to help in any way. I was told that Mr. Strack (deputy attorney who made determination)has extreme expertise in this area of law and feel very comfortable that his determination is right yet they refused to back up what they said, or even offer any more insight into law or fact to help.Instead they waited for court date to come and go and did absolutely nothing. All they offered was their sympathy and agreed it was bs. I have lost all respect for this agency. Fish and game on the other hand was also very sympathetic and was willing to help in any way. They provided the determination and conducted an investigation and tried to get Beck on harassment charges. Doug Peterson (regional officer) said they felt terrible about the whole thing and was willing to help in any way including in the courtroom. This agency I gained respect for.But at the end of all this the attorney generals office who is qualified and who made the determination dropped the ball and didnt want to deal with it.I strongly believe this played a huge part in how this ended.It seems like everyone is afraid to take on Mr. Beck and I think it is ridiculous. I for one refuse to let any one take away my right to fish within the boundaries of the law. We certainly pay enough money to be able to fish within our rights, and the state should have stepped in long ago to help on this issue. I certainly wouldn't expect them to now.Don't know who you can trust!
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If the waterway is deemed "private" would this not fall under the provisions of a private pond. According to Idaho Statute Title 36 Chapter 7 a permit is required to be obtained from the director of F & G and the point of diversion must be screened to keep the wild fish out.
[url "http://www.legislature.idaho.gov/idstat/Title36/T36CH7SECT36-706.htm"]http://www.legislature.idaho.gov/idstat/Title36/T36CH7SECT36-706.htm[/url]
So, if this is to remain a "private pond" and since it is not considered to be "navigable" I am sure there will be no problem with this property owner screening the points of diversion. Besides, if he wasn't hoarding any of my fish in his pond I wouldn't have any reason to want to go in there. Of course this will make it impossible for him to "navigate" his boat to his private dock.
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That's right, both in let and outlet have to be screened. It also says"A pond is defined as private only if it is entirely surrounded by private land and is not located on a natural stream channel".
And very good point about the fish. As far as I am concerned those fish belong to the state. And we pay the state so we can enjoy catching them. If you want a private pond put your own water in it and stock your own fish in it.
If it weren't our fish for the taking no one would have a problem.
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[quote die_hard_fisher]Another thing that might floor you is the way the judge came to his conclusion.His definition of navigability is that it has to be navigable in its original form dating back to the date of statehood. Since it was a gravel quarry at the time of statehood and therefore obviously not navigable because it wasn't even there,he claims it fails the navigability test yet other Idaho laws and especially federal laws contradict this. How this conclusion was made is beyond me but in my opinion Beck had some serious help to make this happen. [/quote]
Going by this reasoning, wouldn't we only be able to fish above the river channels of all the reservoirs in the state and have to stay off the waters outside the channels?
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That's about the kind of sense it makes.Everyone knows this to be false except the judge and Beck apparently.That's saying anything created after Idaho became a state is not open to the public because it was not navigable in its original state. What a ridiculous line of reasoning! Canals are created all the time for irrigation and such and everybody knows you can swim in pretty much any canal you see. Comes back to the fact you cannot own the water itself, you can only divert it for personal use. Its simply not for sale in order to protect the publics right to use it. If that were the case everyone would be buying water on the snake river and before long the public would not be able to fish it at all unless you were one of the fortunate rich guys to own a portion of it.Judges line of reasoning is totally bogus. And what is even more concerning to me is the fact that the judge had 30 days to make a ruling, yet made up his mind in 7 days. Seems like something like this should have had more time spent making sure he got it right.I think he knew which way he was going with it before he even heard the case.
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Sadly this behavior is pretty common place for dirt bag beck. Look up the Idaho repository. Either the judge is in his pocket or Doyle dusche has something on him. Without divulging to many details, I can say I dislike this person more than anyone else I know. He terrorized my mother with possible law suits for most of my upbringing just because he knew that knew enough to ruin him. Tragically my family doesn't black mail like he does and so we were threatened by him for years because he assumes everyone is like him. All this said most of my family still live SE Idaho and due to our "history" with him we never get to forget about him because he's always in the paper. I too have read up on the laws on water right of ways and am floored that this could happen. Does every bend in the river belong to the upland owner because when Idaho was made a state it wasnt underwater? This really is a tradgey of our judicial system. Anyone know how to start a pettition?
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