Huge Cowlitz River Public Access is kept a secret!: Steelheader.net- Steelhead, Salmon and trout fishing

Huge Cowlitz River access area that no one knows about!!

For way to many years now fisherman have been denied their legal rights to use their "public access rights" to the Cowlitz River. Since 2001, I have been pushing WDFW to settle a scam by a local land owner in Lewis County.

For over 12 years now we have been screwed out of our public access to one of, if not the largest public fishing area on the entire Cowlitz River. This public site is referred to by WDFW as the "Wallace Gravel Pit" public use area. Starting back in 2001, I have been bringing this issue to the fishermen's attention and the hope to resolve the scam.

We have been cheated out of our right to access the 1000's of yards of good bank fishing because the guy who sold us (WDFW) the access easement had decided to rock mine the road that we (WDFW) had paid him to do. You will find this thread to be very informative and factual about your right to use your legal access easements to fish.

It all started back in April of 1971 when the Washington Department of Game (WDG) purchased a fishing access easement for the sum of $40,000 dollars. The easement specially states that the easement is granted to WDW and it successors, for a perpetual easement on, over and across a 25 foot strip of land bordering and extending along the left side of the river and bank. It also takes into consideration that the 25foot easement will change as the banks because the river bank may from time to time. The easement goes on to say"…the Game department may, at its discretion, allow the members of the public to enter upon and use the said lands, without restriction or charge by the Grantor, his heirs, or assigns, for the purchase of pedestrian travel and sports fishing" (This is the area that follows the river banks).

In addition to this access easement, WDG also signed into an "agreement" with the owner to do the road and gravel work. The road work consisted of grading an easement road that 4,000 feet long by 60 feet wide. In addition the seller was required to add 9 inched of "ballast rock" and 4 inches of crushed rock on top of that. It also included the grading of a ½ acre parking area with 9 inches of Ballast and 4 inches of crushed rock.

This all made sense because the easement when parallel to the grantors "gravel pit". So the Grantor was not only paid by WDG for the right to enter, use and cross, he also paid for rock and to do the road work.
The picture of the access are is shown below in diagram #1
Diagram #1

So that is how WDG got us this public access to use for fishing. Now I will tell you what the Grantor has done to our access.

It all came to a head in 2001 when I tested out our fishing rights to use the WDFW public access. I knew of it because WDG used to have a 3 foot by 3 foot sign right out in front that was mounted on a telephone pole!

So here's what happen; I didn’t want any other fishermen to get in trouble, or worse yet, get ticketed for trespassing, so after fishing the area around I-5 and Mandy road, I decided to go down to the “Public Fishing Area known as the “Wallace Gravel Pits”, which is located about 1 and 7 tenths of a mile below the I-5 Bridge on Mandy road. I had just met a fly-fishermen at the I-5 Boat Ramp and he asked me if I knew any other area’s that he could fish. I told him that there was another area about 2 miles down on Mandy road right at the sharp bend in the road called “Wallace’s Gravel Pit. As I left the parking lot at I-5, he was getting ready to follow me down.

When I entered the gravel pit, I waved to a guy (I was pretty sure he was the owner) and he waved back. As I drove on down the dirt road that follows the power lines on the left side, I noticed that there had been some cat work about in last 100 yards of the old road. For the last 10 years, that was the area that we had all used to get to the Cowlitz River to fish. I stayed on the far left side of two “trails” until I could no longer travel over it. Because of “the recent cat work” that was done I had stoped. In the last 60 or so feet, I had to cross over to the right side trail (about) 40 feet, and headed down the along the riverbank. I have been there many times before so I knew that I was on state easement reached property near the riverbank area.

Not long after I was fishing, a worker from the gravel pit drove up to me and told me he hated to be the bearer of bad news, but I was "trespassing" and that I had to leave the area right now. I then polity told him that he was “wrong” and that I was on the WDFW fishing public fishing access easement property. He told me that I was wrong, and that I had to leave right now! I again told him about the public access easement and he told me that if I stayed, he would “lock” the gate at the entrance of Mandy road and his pit. I did not want to get into a pi$$ing match about it, so I told him to go ahead and lock the gate, but that I did have a cellular phone in my car, and that I will be calling the Lewis County Sheriffs Office and complaining that I have been locked into a public fishing area by this gravel pit company.

Well, he grove off, and I continue fishing. I thought that the owner would come down next and tell me personally to get the hell out. To my surprise, about a half hour later, a sheriff officer came walking down the river bank and address me by my first name. He had obviously checked my plates and knew exactly who the owned of the car was. I greeted him, and then he asked me if I knew I was “trespassing”? I then proceeded to explain to him the “real truth” about this public fishing access area and the easement. He was also a fisherman and was extremely polite and agreed that this issue needed to be resolved before someone was written a ticket for trespassing when they really weren’t. I told him to call Ray Croswell from WDFW because he was in charge of these public easement fishing sites. He made an attempt, but only got his answering machine. I then told him the name of a local WDFW officer (Mr. Foster) and he tried to contact him. He was not available either. As a last resort, I told him to have his dispatcher contact the region director, Mr. Lee Van Tussenbrock.

I have personally worked with Lee in the combining of states WDF and WDG game laws. As luck was, the dispatcher was able to contact to Mr. Tussenbrock, and verify that there was indeed an easement at the gravel pit, and that it has been there since the 70’s. The officer smiled and said, “Now I have to go back and tell him (the owner) that is misinformed”. The owner of the pit was way out of line, and he knew it! The owner has some real problem with his pit.

According to the original maps, the pit owner mined the original easement road that went right down through the middle of his current pit. That would mean, if someone wanted to push the issue in court that he would have to backfill the easement all the way across his pit. (See pictures below).

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The Pit is well over 38 feet deep all the way across the pond (about 250 yards). It is also my understanding (as stated above) that the owner of this land was paid very well for this easement (over $40,000) in that was in the early 70’s. WDFW has faxed a copy of the easement map to Lewis County Sheriff Office, but like all bureaucratic agencies, it has gotten berried!

Last year (2002), I went back and tested the waters one more time "for the fishermen" at the Wallace Gravel Pits. This is what had happen since that time. It is best addressed in the letter that I had sent to the Lewis County Sheriffs Office, so I will now show you what had happen. The letter will speak for its self!

"Dear Mr. McCroskey:"

(He is the Lewis County Sheriff)

I am very concerned about how your department processed my complaint that was phoned into your office on June 2, 2001 at approximately 7:03 A.M. on Saturday morning. My call to your dispatcher requested that an officer come to my location and verify that a locked gate was blocking my access to a public fishing easement that was owned by the state Fish and Game Department. I also offered the dispatcher a reference case number that was given to me by Lewis County Deputy Fed M. Wetzel.
Deputy Wetzel had filed a report earlier concerning this fishing access to the gravel pit area on May 11, 2001. The dispatcher did not want the case number for any reference. I believe that all your calls are recorded, and that something very similar to what I have stated will be reflected on your recordings.

Sometime around 7:55 A.M., on June the 2, 2001, Deputy Al Meuchel met me at the locked gate located at 654 Mandy Rd. Office Meuchel asked me what my problem was. I explained to him that the Washington Department of Fish and Game has a 60-foot public fishing access easement that runs from the location that we were standing at through the locked gated area all the way down to the Cowlitz River. In addition, I also explained to him that we have a public fishing parking area located next to the river and an additional 25-foot walking easement that started just north of the gated area that runs all the way down river to the County Line area.

I also told Deputy Meuchel that your office should have on file a copy of a report that was failed by Deputy Fred M. Wetzel about 2 weeks ago. That incident occurred while I was fishing on the state owned easement. An employee of the gravel pit drove down to where I was fishing and he told me that I was trespassing and that I had to leave right now. I explained to him that I was on a state owned fishing easement and that I had a right to be there. The employee told me that he was going to lock the gate on me if I didn’t leave right now. I told him that that would not be a good ideal, and that I have a cell phone in my car and that I would call the sheriff, and have them handle it if the gate was locked.

About a half hour later Officer Wetzel came down to where I was fishing and said that the gravel pit owner had called his office and said that I was trespassing on their property. Officer Wetzel was very polite and handled himself very professionally. After checking with his dispatcher, Officer Wetzel was able to confirm that I was not trespassing and that I was legally within my rights to be fishing the area that I was at. Officer Wetzel had the foresight to see that this problem would be an on-going problem with his Office. He had requested from WDFW, and was told that his dispatcher had received a faxed copy of the easement map from WDFW, and that their dispatchers would now known and be alerted that fishermen did have a right to drive down to the river and fish at the states easement areas. He also gave me the case number for my reference, so if I were to have any more problems with accessing the state fishing area his office would only need to check this case for reference (case #01C5448).

When Deputy Al Meuchel arrived, It became immediately obvious that he had already formed an opinion about my complaint. When Deputy Meuchel pulled up along side of the gated area, I told him that the locked gate was blocking a state public fishing area. Strangely enough, the deputy questioned me, to why I didn’t go down river and fish at the other public area. I tried to explain to him that this fishing area was better fishing here and also that it was a much larger area to fish. He then decided that he was not going to make anyone open the gate. In fact, he stated to me, “ I am not going to make anybody open this gate today, It will be up to the county commissions to see if they want to open this gate or not”. I again told him that another deputy had already gone through this issue, and that he had given me the case number so that other deputies could verify access if there was anymore problems. He told me he did not care about the other case, and that this was “going to be decided by the commissioners”.

I told him that this is not a county road easement issue, and that this was a state public fishing easement. I could see that this Deputy, for whatever reason, was not going to do anything about opening the gate that day. I specifically told the deputy that I wanted him to file an official complaint with the sheriff’s office, stating that a locked gate was blocking my access to a public fishing area. I then requested the Deputy to give me his name and the case number of my “complaint”. The deputy then called his dispatcher and got the case number. The deputy gave me his card with the case number on it (case #01C6454).

He then left the area. I also left the area, knowing that I was not going to be able to drive down to the river that morning. About 40 minutes later, when I had returned from fishing another area, I noticed that I had received a call from an unknown number to me. I redialed the number and your dispatch office answered. I told them who I was and they told me that “the gate was now open and I could go back if I wanted to”. I assumed that Deputy Mechel must have contacted the pit owner and had him open the gate. I did not return to the area that day to see if the gate was open or not.

Since Deputy Mechel appeared to be so reluctant to act on my complaint, I decided to see what was really reported as record. On Monday, June 4, 2001, I went to your Chehalis Office and requested to see both case # 01C5448 & #01C6454. The clerk at the desk told me that I would not be able to see the reports today. She said that they were right in the middle of moving all there files and that it was going to take between 1 and 5 days to process it. There was a bunch of Deputies Moving files cabinets around so the delay sounded reasonable to me.

On Tuesday, June 5, I received a call from a lady named “Kathy”. She told me that my requests were ready. I arrived at your new office around 10:AM. It took about 20 minutes before I received service. Kathy gave me copies of the reports. The first report was case #01C5448, which was filed by Deputy Wetzel. After reading Deputy Wetzel report, I believed that he did and excellent job on recording the events that had occurred at the Wallace Brothers Gravel Pit that morning. In fact, I would consider his report as a credit to both you and your office.
I cannot say that about "the complaint" that I had reported to your office on June 2, 2001 (#01C6454). In my opinion, there are serious problems how Deputy Meuchel and other staff handled the filing of his report and the second report that was generated on June 5, 2001. I say this with great caution, but the facts will speak for themselves. When Kathy gave me the 2 reports she told me that only one case (01C5448) actually had a written report filed. She told me that the other case (01C6454) was not really handled that way and that it didn’t really have any written report attached to it. I asked why it didn’t have anything attached to it, because I specifically told Deputy Meuchel that I wanted my complaint filed with the sheriff office in writing. That is why I came in an asked for a copy of it. The deputy told me that he would file my complaint.

I asked Kathy if I could speak to Deputy Meuchel, since I saw him walking around the office, out of uniform. She said that it was his day off, but I was in luck because he was there in the office, right now. I saw him go into a back room. She took back my copy of this so-called report and went to the same room to give it to him. She told me that he would be out to see me in just a few minutes. Well, about 30 minutes later, after watching Kathy go back an forth several different times to the back room Sergeant Patrich C. Smith came out and introduced himself. He was holding a bran-new report that was not there just 30 minutes ago. How could that have happen? The clerk personally told me that there were no other documents filed under case 10C6454. Now, out of nowhere, up pops a new complaint form that had obviously just been generated. There was no explanation to why Deputy Meuchel didn’t come out as requested. There was no explanation as to what had happen to my signed copy of the “other” report.

Sergeant Smith was very polite and very professional and I have no complaint to how he represented your office. Your staffs were very professional, but the facts show that my demand for a written complaint was not done as requested and that the new document was generated after the fact. The Complaint as now written, says nothing about any access to a public easement being blocked, nor does it even mention the Wallace Gravel Pit as the location where the complaint took place. Why is that? Is this policy of your department? I do understand that there are some very long standing names involved in this access issue but that does not change the law, or how the law should be applied.

I now understand that there is some fancy legwork going on by your office saying that it really isn’t your offices responsibility to enforce issues concerning state easements such as the one that exists at the Wallace Gravel Pits. I am sure that your office has history of responding to both Civil and Criminal issues that occur on state lands. We can debate that at a later time. The point is, that was not at issue when I requested Deputy Meuchel to file my complaint on June 2, 2001. It has always been my understanding that a deputy must file a written report when requested by a complainant. It now has the appearance that may not have been done as requested. For all of the reasons that I have address above, I am requesting that you personally do an internal investigation of why my complaint was not filed as originally reported, and how a second report appeared out of nowhere. Your immediate attention to my complaint will be appreciated.

Sincerely,
Bob Reid,
CPR-Fish

Cc: Lee Van Tussenbrook, WDFW regional Director
Ray Croswell, WDFW Regional Lands Program Manager"
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Well folks that was last year, and three days ago (Monday) at 7:00 pm the gate was still locked! Some heads should be rolling at the very least at both ends!

Right now, it appears that WDFW is incapable of enforcing any laws except the ones that they know can bring them easy money, and easy wins! You have a "right to use" this Public access area, especially since they it was bought and paid for with your license fees. You should never ever let WDFW trade them off for some lesser counter offer by the grantor! It's your fishing easement!! It's time to take back control of the bureaucrats who have screwed us, and now enjoy the use of what little bit of public access that we still have a legal right to use and enjoy on the Cowlitz River!

If you give this one up…..the game is all over for your public access on the Cowlitz!

Below are the pictures that will guide you into this public fishing access area. I will be glad to answer any and all questions that you may have!

It's a damn crime that we fishermen must have to fight for what already belongs to us! Lets all make sure this story has a happy ending.

This the front gate entrance

This is the gate win it looks like it may be lock. Make sure that the "lock pin" in the center of the gate is locked becuase sometimes the "jerk" just keeps the gate closed to fool the public. Do not be affaird to open the gate if it is not loked and dive stright down to the river bank! The Sheriff will not site you for doing so if you say on the road next to the power line poles!

This is the road easement that runs straight down to the Cowlitz River. You must say on the gravel road that runs directly Parallel with the telephone lines. Do not wonder off this road until you reach the river. As it stands right now, you must park your vehicles in this area until the jerks gets his act together!

Good luck and don't let the jerk who owns the rest of the land bull $hill you that you don't have access rights to drive to the river!

Cowlitzfisherman

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CCA Your Best Bet For The Fish

I did quite a bit of research today on the 'easement" issue and I thought that you might like to read some of my findings. Here are some issues that I believe apply to the Wallace gravel Pit easement.

"After an easement is created, questions often arise concerning its location, dimensions, and scope. These questions must be resolved on a case-by-case basis and are impacted by the method of the easement's creation. Questions involving matters clearly covered by the written document, or the prior use, or necessity that created the easement may be resolved relatively easily. Frequently, however, the written document, prior use, or necessity does not clearly resolve the question. Written documents creating easements are often vague or incomplete and inferences from prior use or necessity are imprecise. In these cases, the parties' intent is uncertain and must be construed by the courts."

"As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted" as long as he or she does not unduly burden the servient land. Conversely, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder's use of the easement. What constitutes an undue burden depends upon the facts of each individual situation. For instance, an increase in traffic over an easement giving access to a beach resort may not necessarily constitute an undue burden. But, the traffic resulting from changing a dominant estate from private use to a commercial business might constitute an additional burden on the servient estate. Reasonable use of an easement is not fixed at a particular point in time. The concept of reasonableness includes a consideration of changes in the surrounding area and technological developments. For instance, courts have allowed an easement holder to convert a railroad right of way to a recreational trail, cut trees within an access easement, and replace a low-pressure gas pipeline with high-pressure equipment.

If a court determines that the servient estate is unduly burdened by an unreasonable use of the easement, the servient estate holder has several remedies. These include injunctions to restrict the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of his or her rights and improperly injures the servient estate, and in some instances extinguishment of the easement. Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass and courts frequently enjoin the obstruction of an easement and may order the removal of encroaching structures at the servient owner's expense. If interference with an easement causes diminution in the value of the dominant estate, courts may also award compensatory damages to the easement holder.

Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential legal or interpretive problem by expressly providing that the easement is permanent and utilizing appropriate words of inheritance. Although permanent easements are the norm, they can be terminated in numerous ways. For instance, an easement may be created for a limited or conditional duration. When the time passes or the condition occurs, the easement ends. Easements of limited duration are commonly used to provide temporary access to a dominant estate pending the completion of construction work. An easement may also be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement to the owner of the servient estate. This release must be in writing. Abandonment of an easement can also extinguish it, but as a general rule, mere nonuse of an easement does constitute abandonment. Under some circumstances, misuse or the sale of a servient estate may terminate an easement. Finally, condemnation of an easement by a public authority or condemnation of the servient estate for a purpose that conflicts with the easement terminates an existing easement.

Conclusion

Easements give an easement holder the right to use or to prevent the use of property he or she does not own or possess. This places the easement holder and possessor of the servient estate in the unique position of simultaneously utilizing the same piece of land. The prevalence of easements and their nonpossessory nature creates a unique set of issues in drafting, interpretation and implementation. It is therefore, important to have a basic understanding of the manner in which they are created, their scope, transferability, and methods of termination. Whether an individual, business, or government entity wishes to create an easement, purchase property burdened by an easement or determine the nature of a property interest, experienced legal counsel should be consulted."

It appears to me, that our (WDFW) public access easement meets all of the above requirements because the "agreement" which is part of the registered easement, which specifically spells out all of these requirements!

Finally, these are some of the tools that WDFW and other state agencies can use to enforce the easement if it needs to go to the courts:

RCW 78.44.200
Immediate danger -- Emergency notice and order to rectify deficiencies – Emergency order to suspend surface mining.

When the department finds that a permit holder is conducting surface mining in any manner not authorized by:
(1) This chapter;
(2) The rules adopted by the department;
(3) The approved reclamation plan; or
(4) The reclamation permit;
and that activity has created a situation involving an immediate danger to the public health, safety, welfare, or environment requiring immediate action, the department may issue an emergency notice and order to rectify deficiencies, and/or an emergency order to suspend surface mining. These orders shall be effective when entered. The department may take such action as is necessary to prevent or avoid the danger to the public health, safety, welfare, or environment that justifies use of emergency adjudication. The department shall give such notice as is practicable to the permit holder or miner who is required to comply with the order. The order shall comply with the requirements of the administrative procedure act.
Regulations of surface mining operations administered by other state and local agencies shall be preempted by this section to the extent that the time schedule and procedures necessary to rectify the emergency situation, as determined by the department, conflict with such local regulation"

I see that the Washington's "Surface Mining Reclamation Permit Check List" requires that the mining operator under #27; must "list all easements shown"! Now If I can find this information, why can't the WDFW attorneys?

RCW 78.44.250
Fines -- Civil penalties -- Damage recovery.
Each order of the department may impose a fine or fines in the event that a miner or permit holder fails to obey the order of the department. When a miner or permit holder fails to comply with an order of the department, the miner or permit holder shall be subject to a civil penalty in an amount not more than ten thousand dollars for each violation plus interest based upon a schedule of fines set forth by the department in rule. Procedures for imposing a penalty and setting the amount of the penalty shall be as provided in RCW 90.48.144. Each day on which a miner or permit holder continues to disobey any order of the department shall constitute a separate violation. If the penalty and interest is not paid to the department after it becomes due and payable, the attorney general, upon the request of the department, may bring an action in the name of the state of Washington to recover the penalty, interest, mitigation for environmental damages, and associated legal fees. Decisions of the department are subject to review by the pollution control hearings board.

All fines, interest, penalties, and other damage recovery costs from mines regulated by the department shall be credited to the surface mining reclamation account."

It certainly appears that the tools are there for WDFW, if they just choose to use them!

Cowlitzfisherman

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CCA Your Best Bet For The Fish