Gilmer County Commission Meeting Report: Overall, things went very well. I didn't get a head count but there were about 15-20 boaters present at the meeting which was just awesome! I know Jenny and Woody of Cartecay River Experience were happy to have the support as they have fought this battle alone in the past. Major thanks to those who came from Columbus and Macon after leaving home in the 4 AM hour. That's commitment, folks!
     Dan Brady made the opening comments on our behalf. He asked if there were homeowners who wanted to speak first but no one would. The commissioners did give an overview of homeowner concerns based on complaints they had received. Those included people trespassing on private property, driving too fast on Mulkey Road, urinating and changing clothes in public, littering (including glass bottles broken in and around the river), and consuming excessive amounts of alcohol on the river. Dan spoke about our understanding of the homeowners' concerns and our strong desire to work out solutions. The commissioners were attentive and spoke about the solutions that had already been submitted via our numerous emails (GREAT job on those, y'all!).

As I mentioned earlier, I did the Cartecay down to the DNR take-out today. You can learn to deal with the natural hazards you encounter on river trips by taking river safety and rescue clinics, but I don't think anything can prepare you for the human hazards you may encounter.

If you've been to the DNR take-out lately or paid attention on the email list, you are probably aware that the GA DNR now requires most of us to purchase a GORP (Georgia Outdoor Recreation Pass) to visit certain DNR controlled areas, including the Cartecay take-out. After our trip today GA DNR Enforcement was patrolling the DNR parking area. Three of my paddling buddies had already loaded up and left, and two others were just about to leave when the DNR truck rolled in. I was in the back of my van changing out of my paddling clothes when they arrived.

They checked out my buddies, who had their passes with them. Then my buddies left. As soon as I finished changing, the DNR Enforcement fellow came over to check me out. The first thing he said was that I probably had a hard time seeing out of the windows of my van with all those stickers. At that point I knew that this was not going to be a lot of fun. He asked if I was aware that I needed a GORP to use the area. I politely informed him that I was way too old to need the GORP, and I had a Georgia drivers' license that showed my age. He told me he would look at my drivers' license, but that I still needed a GORP. I would not have to pay for it, but I still had to go get one.

I assured him that according to the DNR web site, the URL for which was listed on their sign, I did not need  a GORP. I had visited the site, read the material there, and since I was over 65 years old I didn't need the GORP. He had me take out my license and looked it over. Then he reassured me that I did have to get a GORP and for me to wait right here while he checked on it. 

He strolled back to his shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else, and got inside. (Remember that truck.) He was in there for quite a while, and meanwhile I was standing in the parking lot dancing around and crossing my legs, having to pee really badly, and getting later and later for a 6 o'clock appointment I was trying to keep. When he finally emerged, he walked back over to my van carrying a piece of paper with the page of the DNR web site printed on it (I guess he even had a printer in that shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else) that told all about the GORP, the very same page I had read a few weeks earlier when the signs first appeared at the Cartecay take-out. 

He very pointedly did NOT say "Hey, you were right!". He just pointed out the place on the page that told who had to have a GORP and who did not, and told me "These are the people who don't need a GORP" And of course it included people under 16 and 65 and over. He told me I could keep the paper to show any other dummies (his word, not mine) who might be checking me out in the future who didn't know that I didn't need a GORP since I was over 65. I said "Thanks!" and shook his hand and
told him I didn't envy his job of enforcing this rule. He quickly retorted that he wasn't enforcing yet, he was educating people and spreading the word about the GORP. 

Now wait a second, who was educating whom? 

Being a kind of outspoken person anyway, I asked if I could give him some feedback about how I and many of my friends felt about this new program, and that he could pass it on up the line at the DNR. He said OK. What I wanted to tell him was that it really irked me that people were having to pay money just to visit an area that actually belonged to the people anyway and that
had always been free, that I could understand it if there were extensive improvements made that benefited the users, that even the Federal Government has rules about what improvements have to be made and what services provided before government agencies such as the US Forest Service could charge people money just for being there. 

Before I got the words halfway out of my mouth, this guy was interrupting me and talking over me, telling me I didn't understand the DNR's point of view about the issue (But, hey, their point of view was outlined on the web page I had to educate this guy about) and that I should listen to him explain it. He said there WERE improvements made to the area -- what about that nice boat dock we built for you, and the restroom. (Hey Haynes, did you hear that? The DNR built the boat ramp and the restroom! So what were you and the rest of those volunteers actually doing when you were telling people you were building that stuff?) All this stuff,
and the maintenance of the area, all cost money, and the state budgets are really tight. 

Well, remember the shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else? So why do you suppose the state budgets are so tight? My budget is tight and I don't even have a shiny new $40,000 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else. Right away I figured out that there was no use trying to explain any of this to Mr. GA DNR Enforcement, and right away he realized I wasn't going to pay a lot of attention to his GA DNR line of bullshit. He told me as much, bid me a quick farewell, did an about face and
got back in his shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else. 

At that point I REALLY had to pee badly, but Mr. GA DNR Enforcement was sitting there in his shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else, staring and waiting for me to leave before he was going anywhere, and I certainly wasn't about to go find a bush in the woods while he was sitting there watching, so I got back in my van and in spite of my urgent urge, took my time cranking up, backing out of my parking spot, and driving back to the entrance to the area. 

Mr. GA DNR Enforcement in his shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else stayed glued to my bumper all the way out, watching me like a hawk, so I took my time, slowly dodging around all the potholes in this so-well-maintained road, creeping up the hills, and braking properly on all the downhills, turning the two minute drive out into a ten minute production. I probably could have walked out faster. 

I didn't make my six o'clock appointment. Nor did I make any points with the GA DNR. But I did make the
restroom before I peed in my pants. All's well that ends well I guess.

So how do we learn to deal with the human hazards we encounter on river trips? Can the club come up with a training course on Coping with Government Agencies and Other Dummies?

 
Be careful out there! I hope your experience with

P.S.

Since the posting of "Cartecay caution - part two" to the email list, several people have asked me for the URL for the DNR site that gives the information on the GORP so they can be prepared when they are checked out by the GA DNR Enforcement in their shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else. (By the way, I was reminded by one of my paddling buds on the trip that the truck also had a huge winch on the front, which when it is ordered as an option, not only adds a lot of bucks to the price of the truck for the winch, but necessitates ordering a heavy duty front end for an extra $5,000 in order to be able to order the winch. The same paddling bud also put his estimate of the price of the shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else at more like $50,000 plus the additional equipment.)

The URL:
http://www.georgiawildlife.com/Georgia-Outdoor-Recreational-Pass

So y'all do your homework on the web before going out to face the GA DNR Enforcement guys in their shiny new $40,000 DNR 4X4 truck with $10,000 worth of added lights, siren, radios, computers, and who knows what all else.

Allen Hedden
March 10, 2012

The Gilmer Blue Trail begins on the east side of Gilmer County on Lower Cartecay Road on the Cartecay River dropping through Class Three Rapids before leveling out at the Cartecay Canoe Launch site. The trail continues west where the Cartecay joins the Ellijay River to form the Coosawattee River. In the Gilmer Country River Park is the next Canoe Launch site. From there eleven miles downstream the trail exits out into Carters Lake where the newest facilities have just been completed on the trail. These facilities provide a camping facility for the canoeists/kayakers to camp overnight or longer before exiting the trail at the Ridgeway Ramp on Carters Lake. The Gilmer Blue Trail is now 34 miles long.

The new facilities consist of a site to beach the canoe's/ kayaks, a tenting site, a shed and cooking area, and a moldering privy facility. The facilities are located about 40 ft. above the lake, accessed by an old road bed from the beach location.

Tenting Area
The tenting area is a 20 ft. x 16 ft. flat camp site with a raised 6 x 6 wall. On one end of the wall are seats for

Cooking Area
The cooking area is located about 50 ft. up the old road bed from the tenting area. This site is approximately 30 ft. x 30 ft. outlined with 6 x 6's and covered in mulch. The site has an improved shelter for protection from inclement weather, an 8 ft. long bench to sit and observe the lake or the evening fire in the fire pit. There are two cooking sites, one a raised charcoal cooker and one a fire pit with grill. A picnic table may be added at a future date. There is also a secure garbage can at the site for rubbish but packing out trash is preferred.

Moldering Toilet
In the back county, providing sanitation facilities can be expensive and add a lot of maintenance. For the Canoe Overnight site, a Moldering Toilet design was selected as it very inexpensive to build and requires no maintenance other than to occasionally bring in a load of mulch to use with the toilet. It is also reported to be the least offensive in smelling.

The Moldering Toilet was first used on Appalachian Trail and other outback trails in the US. This design has a raised chamber built with pressure-treated timbers (6 x 6’s in our case but 4 x 4’s can be used). The inside of the chamber, 6 ft. x 8 ft. is covered in screen wire to keep flies and other pest out and then decked to cover it. The toilet is placed on the deck and a hole cut through the floor. The toilet is enclosed with a screened-in enclosure built with suitable materials. In our case, we built the structure with 4 x 4’s and screened in the enclosure with 3R4 T- 11 plywood. A metal roof is added for protection from the weather. Although it is doubtful a handicap person will use this facility, the toilet facility was never the less built to ADA standards with a suitable ramp to allow for wheelchair access. The toilet door was built 36 inches wide to accommodate a wheelchair.

Anyone wanting more information about the Moldering Privy and other backcountry sanitation designs can find it in the Appalachian Trail Conference Backcountry Sanitation Manual.

Haynes Johnson & Don Wells
From The Eddy Line, July-August 2011

Several recent posts on the GCA group mail have concerned the take-out on the lower section of the Toccoa River commonly known as Party Rock. Allen Pogue reported that the No Trespassing signs that appeared along One For The Road, also known as Party Rock rapid, a few months ago are still in place. There are, however, some alternative take-outs.

Roger Nott reports that Toccoa canoe and kayak paddlers can park along the right of way of Aska Road, upstream of the Party Rock parking area and can take out about 200 yards downstream of One For The Road. The owner of that property doesn’t mind people using the property as a takeout and parking there very briefly to load boats. The owner does not, however, want cars parked there for long periods of time while their occupants paddle. He told Roger that he would close his access if people start parking there for hours.

Roger suggests that anyone using the takeout “be very low key” and pickup not only his or her own trash but any trash that may have been left by other paddlers or non-paddlers. In fact, as Roger points out, that’s a good policy for all paddlers to follow at any access point, particularly those on private property.

Roger also reports another potential take-out, on public property on river right and along Persimmon Creek. Reaching that takeout, however, requires paddling about two miles of flat water on Lake Blue Ridge. During the winter, the lowered water level exposes about 2/3 mile of frequent Class 2 rapids. Robert Butera reports another take-out at Tilly Bend, on river right just before the first houses on the flat water. The Tilly Bend take-out permits a much shorter flatwater paddle than Persimmon Creek, but requites a 15 minute uphill hike along an ATV trail. The one time I’ve been on the trail, on a GCA winter run led by “Dr. Rob,” the trail was carpeted with pine needles and boats could be safely dragged except for a couple of spots.

Dr. Rob also points out the “no shuttle required” trip from the Sandy Bottom put-in to the Tilly Creek take-out. Paddlers can park at intersection of Shallowford Bridge Road and Old Dial Road, walk about 15 minutes upriver (but downhill) along Old Dial Road to Sandy Bottom. The uphill ATV trail from the Tilly Bend take-out leads right to the parking area at the intersection of Shallowford Bridge and Old Dial Roads.

The American Whitewater website (www.americanwhitewater.org) page for the lower Toccoa includes Robert’s complete description of the Tilly Bend takeout. Information is also available at pages 102-105 of Welander, Sehlinger and Otey, A Canoeing & Kayaking Guide to Georgia.

by Rick Bellows
From The Eddy Line, February 2009

The Georgia Supreme Court in a March 10, 1997 opinion has affirmed the lower court's ruling in the Armuchee Creek case, a long running legal dispute between supporters of river access and a local land owner. The GCA is one of the two parties on the "river access" side of the case. While this opinion represents a major setback for river access efforts in the state, there are some favorable aspects. Below is a commentary by Dick Creswell of the Central Georgia River Runners, an attorney, that says it better than we could. Following the commentary is the actual text of the opinion.

Armuchee Case Decision Commentary

by Dick Creswell, Central Georgia River Runners

I pulled up the Ga. Supreme Court's final opinion and took a look at exactly how bad it may be.

With all consideration for the enormous amount of work that Craig [Pendergrast], Dan [MacIntyre], and others invested in this effort, I've got to say that paddlers came out pretty well. True, we have lost a stretch of Armuchee Creek (at least as long as the stream bed owner or his successor wishes to enforce his rights), but we have not lost all the rivers and streams in the state. Fortunately, Dan's "meltdown scenario" was not set into motion by the Court's decision.

As I read it, the Supreme Court narrowly affirmed the trial judge's finding of fact that Armuchee Creek is not "susceptible of carrying useful commerce" in its natural state. While we know otherwise (at least as we understand "useful commerce"), all the Court said is that the trial judge's finding of fact is supported by the evidence. In other words, the Court's review of the record did not inexorably lead to the conclusion that the trial judge was clearly wrong.

The Court gave us a gift, I think. Explicitly declining to decide whether the statute changed the broader common law right of passage, is an indication — I think — that the Court might favorably entertain that question in a case where the findings of fact make the case come out one way under the statute and the other way under the common law. The facts found here compelled the Court's decision under either rule of law (as they saw it).

At some point in the future, a compelling test case (like Smith Island) might come along and allow us to take the common law v. statute issue back to the Court, with a lot of commercial and public interest at stake on our side.

Meanwhile, I think we are fortunate to have the breathing room to get back to work organizing a statewide river-user network for the purpose of raising the public consciousness (and political support) for the right of passage. That sort of grassroots, broad-based support is a necessary pre-condition to any hope of success in the legislative arena.

We may get some help from RiverCare projects near Macon, Rome, Athens, etc. As they result in more public use of historically non-navigable streams, they inevitably help us promoting political awareness of the benefits of the legal right of river passage.

Congratulations to Dan, Craig, and GCA for a good fight in the interest of paddlers. Thanks!

Georgia Canoeing Association v. Henry

March 10, 1997 Opinion of the Supreme Court of Georgia:

SEARS, Justice.

This appeal concerns a dispute between the appellants — the Georgia Canoeing Association and Benny Young (hereinafter collectively referred to as "GCA") — and the appellee, Ralph Henry, regarding whether there is a public right of passage over Armuchee Creek where it flows through Henry's property. GCA brought this action, seeking to temporarily and permanently enjoin Henry from stopping their free passage through his property on the creek. Henry, on the other hand, requested that GCA be permanently enjoined from traveling in boats and canoes through his property. After a hearing on the question of permanent injunctive relief, [FN1] the trial court entered an order, concluding that Armuchee Creek was not a navigable stream within the meaning of relevant definitions under the federal law, the common law, or Georgia statutes.

The trial court also ruled that the public had not acquired a right of passage by prescription. The trial court therefore permanently restrained GCA from traveling on Armuchee Creek where it passes through Henry's property. GCA has filed this appeal.

After a careful review of the record and relevant law, we affirm. First, the evidence supports a finding that Armuchee Creek, where it passes through Henry's property, is not susceptible of carrying useful commerce between states in its natural and ordinary condition and is thus not a navigable stream within the meaning of federal law. [FN2] Moreover, without deciding whether the definition of navigability set forth in OCGA S 44-8-5(a), [FN3] by its express terms or by necessary implication, effected a change in the common law definition of navigability, [FN4] we conclude that the record supports a determination that the portion of Armuchee Creek at issue in this case is not a navigable stream under S 44-8-5(a) or the common law. [FN5] Finally, we conclude that the public has not acquired a right of passage on Armuchee Creek either by prescription or under Section 17 of Ga.Laws, 1830, p. 127. For the foregoing reasons, we affirm.

Judgment affirmed.

All the Justices concur.

FN1. This is the third time this case has been before the Court. In its first appearance, this Court affirmed, pursuant to Rule 59, the trial court's grant of an interlocutory injunction in favor of Henry. > Georgia Canoeing Association v. Henry, (S91A1443), 261 Ga. XXIX (1991). Following that appeal, the trial court granted summary judgment to Henry on his request for a permanent injunction. On appeal, this Court reversed the grant of summary judgment, ruling that although the trial court resolved issues of fact for purposes of the interlocutory injunction, the trial court was authorized to resolve them only for that purpose and not for purposes of Henry's request for a permanent injunction. > Georgia Canoeing Association v. Henry, 263 Ga. 77, 428 S.E.2d 336 (1993). On remand, the trial court held a hearing on the parties' requests for permanent injunctive relief, and entered a detailed order granting Henry's request for a permanent injunction.

FN2. > State of North Dakota v. United States, 972 F.2d 235, 238 (8th Cir.1992); > United States v. Holt, 270 U.S. 49, 54-56, 46 S.Ct. 197, 70 L.Ed.2d 465 (1926); > Leovy v. United States, 177 U.S. 621, 632-34, 20 S.Ct. 797, 44 L.Ed. 914 (1899); 78 AmJur2d, Waters, S 69.

FN3. That code section defines a "navigable stream" as "a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable."

FN4. " '[S]tatutes are not understood to effect a change in the common law beyond that which is clearly indicated by express terms or by necessary implication.' " > Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 620, 437 S.E.2d 302 (1993). Professor Farnham of Yale Law School has written that Georgia and several other states have adopted navigability statutes that are "limitations of the common law rule." 1 Farnham, Water and Water Rights, S 23g (1904).

FN5. See 1 Farnham at S 23.

Ga.,1997.

Georgia Canoeing Association et al., v. Henry.