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River trespassing complaints 'a very gray area' for law enforcement

In a dispute over access to the Mills River, anglers and others who enjoy the river insist that their right to use the waterway is clear. The landowner they say is trying to restrict that use, farmer Jason Davis, is equally confident that he’s within his rights to insist that people ask permission to be on his property along the river.

Residents who aired complaints about the farmer's "bullying" at a meeting of the Mills River Town Council earlier this month said that Davis, owner of North River Farms and a fishing and hunting guide business, had posted numerous no trespassing signs on the river, called the sheriff’s office to make trespassing complaints and generally “bullied” people using the river along land he owns or leases.
Davis and his wife, Chae, who is the town’s mayor, said they’ve done everything according to regulations from the N.C. Wildlife Resources Commission.
The dispute is clouded, however, in a maze of sometimes contradictory North Carolina fish and game regulations, state court decisions on river access and ownership and the definition of a navigable waterway. A 1995 North Carolina Supreme Court decision in Gwathmey v. State of North Carolina declared that “if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose.” But on the banks of the river, the state’s Landowner Protection Act ensures landowners the right “to post their lands to allow only hunters, trappers and anglers with written permission to legally enter their property.”
“This is a super gray area,” Capt. Andrew Helton, of the N.C. Wildlife Resources Commission, said in an interview on Friday. “We have been battling this for a number of years. It goes back and forth.
“There’s not a whole lot of case law when it comes to what a person can do when it comes to a creek, who owns the bottom of the creek, can a person wade?” he said. “From our standpoint, if it is properly posted in accordance with the Landowners Protection Act then individuals have to have permission to fish or hunt on that property. As far as access, navigable waters are subject to the public trust doctrine and that gives public the right” to use them, because “navigable waters are held in trust by state for the benefit of the public.”
None of that settles disputes like the one in Mills River, Helton said. On dry land, property owners clearly have a right to control access.
“It’s kind of like the French Broad flowing through the Biltmore Estate,” Helton said. Although the historic estate, a paid attraction, routinely allows boaters, tube riders and anglers to travel down the river, it does not let them come ashore and use the grounds.
Asked whether Mills River is legally a “navigable” waterway, he said he’s not sure.
“Is navigable just floating an innertube down the water? If I can start from the top at the reservoir and I can float down on a kayak, to me that’s navigable,” he said. While it’s “a very complex issue … the public trust doctrine states that any waters that are deemed navigable can be used and enjoyed by the public for the benefit of the public.”
In response to the Lightning’s request, Sheriff’s Maj. Frank Stout checked records of trespassing complaints on the river. “We’ve only had two calls from May until September,” he said. The only arrest of someone deputies found fishing on the river was for outstanding warrants, not trespassing.
On Sept. 2, a caller complained about two fishermen on his property near Davie Branch Road.
“The caller said they were trespassing and they had caught several fish,” Stout said. Deputies responded and warned the anglers “not to be back on the property.” The complainant was not Jason Davis, Stout said.
Capt. Helton also said trespassing arrests on the river are rare because of vagueness in  the law.
“We get these calls all the time,” he said. “It’s just a very, very gray area and we would go into it being very cautious how we charged for that. Our officers bring very clear-cut cases.”