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Court tosses back dam fish case
Sunday, January 25, 2004
By Doug Guthrie, The Grand Rapids Press
The big fish on the end of Frank Gatski's line made a break for a gap in the grating beneath Webber Dam on the Grand River in eastern Ionia County.
Ignoring "no trespassing" signs posted by Consumers Energy Co., Gatski waded the river and climbed onto steel grating near the base of the dam south of Lyons to retrieve his catch.
But this was a fish that should have gotten away, a three-judge panel of the Michigan Court of Appeals ruled in an opinion issued Wednesday. The judges decided Gatski's claims -- that state laws protect recreational access to Michigan's waterways -- were trumped by federal laws that require protection of the public's safety near dams.
Gatski, a 55-year-old retired computer programmer, claims the ruling sets a dangerous precedent that erodes the state's riparian rights that guarantee access to lakes and streams.
"There is a long history of people, especially fishermen, being allowed free access to open water," said Gatski, who lives in Portland, 35 miles east of Grand Rapids.
"Consumers built the obstruction in our river. It's a matter of property-owner rights versus recreation rights, and it looks like Consumers is being told they have more rights."
Ionia County Chief Assistant Prosecutor Ronald Schafer said the judges made the right call.
"If the court had ruled against us it would be a free-for-all where anybody could trespass on those dams," said Schafer, who handled the misdemeanor trespassing complaint against Gatski that launched the deeper argument.
"If the court had accepted defense's position, you could have literally walked anyplace on these dams, on the aprons, on the gratings, on the tops, anywhere between the river banks."
Gatski says his fight has cost him far more than the price of a $100 to $500 misdemeanor trespassing ticket. Still, he and his lawyer, Patrick Duff of Portland, are considering whether to appeal to the state Supreme Court.
"I'm a steelheader," Gatski said. "Sometimes, it's about the principle."
It was in November two years ago that Gatski said a state conservation officer ordered him to the river bank from atop Webber Dam's gratings. Gatski cut his line, releasing what he believed was a 12 to 14 pound steelhead, a rainbow trout that grows large in Lake Michigan before returning to its natal stream to spawn.
Gatski then waded to the officer to receive his ticket.
"I wasn't so angry at the conservation officer. I happen to know the guy. He was doing what his bosses told him to do," Gatski said. "The county makes a lot of money ticketing fishermen for something that isn't illegal."
Rather than pay a fine in Ionia District Court, Gatski appealed and won. Ionia Circuit Judge Charles Miel threw out the charge, agreeing with Gatski's argument that Consumers Energy had no right to regulate his fishing or block his access to the river.
Under state recreation laws, a fisherman can walk on a privately owned riverbank to get around an obstruction, and a hunter can retrieve his dog from a neighbor's property. But there is no right to track a wounded deer onto the neighbor's property without permission. The court ruled Gatski had no right to stand on a portion of the dam to retrieve his catch.
The state's riparian rights also declare waterways are open from bank-to-bank to everyone, but dams are placed with federal permission, which include safety mandates, the appeals judges noted in Wednesday's ruling.
The lower court's ruling was in error, according to Appeals Judges Jane Markey, William Murphy and Michael Talbot.
Unless Gatski can prove it was necessary to climb on the gratings to avoid a natural hazard or obstruction, he likely trespassed, the judges said.
The judges also ruled that unfettered access to public waterways around a dam are limited by the utility company's responsibility for public safety.
The dam's water-release gates "pose a significant risk to safety and life if the gates were opened while a person was within that area," the court wrote.
The Webber Dam, at 32 feet high and 1,200 feet long, is the tallest on the Grand River. Behind it is a 7-mile-long, 660 acre reservoir.
The facility produces hydroelectricity with water that pours through two generators. The only way around for fish is the tallest fish ladder east of the Mississippi, according to Gatski.
Unless Gatski appeals -- and the state's highest court agrees to hear it -- Wednesday's decision sends his charge back to Ionia District Court for trial or payment of a fine.
"I'm not dismissing the ticket," vowed Schafer, the prosecutor."This wasn't an issue of picking on the fisherman. It was an issue of safety and not using dams for recreational purposes."
Sunday, January 25, 2004
By Doug Guthrie, The Grand Rapids Press
The big fish on the end of Frank Gatski's line made a break for a gap in the grating beneath Webber Dam on the Grand River in eastern Ionia County.
Ignoring "no trespassing" signs posted by Consumers Energy Co., Gatski waded the river and climbed onto steel grating near the base of the dam south of Lyons to retrieve his catch.
But this was a fish that should have gotten away, a three-judge panel of the Michigan Court of Appeals ruled in an opinion issued Wednesday. The judges decided Gatski's claims -- that state laws protect recreational access to Michigan's waterways -- were trumped by federal laws that require protection of the public's safety near dams.
Gatski, a 55-year-old retired computer programmer, claims the ruling sets a dangerous precedent that erodes the state's riparian rights that guarantee access to lakes and streams.
"There is a long history of people, especially fishermen, being allowed free access to open water," said Gatski, who lives in Portland, 35 miles east of Grand Rapids.
"Consumers built the obstruction in our river. It's a matter of property-owner rights versus recreation rights, and it looks like Consumers is being told they have more rights."
Ionia County Chief Assistant Prosecutor Ronald Schafer said the judges made the right call.
"If the court had ruled against us it would be a free-for-all where anybody could trespass on those dams," said Schafer, who handled the misdemeanor trespassing complaint against Gatski that launched the deeper argument.
"If the court had accepted defense's position, you could have literally walked anyplace on these dams, on the aprons, on the gratings, on the tops, anywhere between the river banks."
Gatski says his fight has cost him far more than the price of a $100 to $500 misdemeanor trespassing ticket. Still, he and his lawyer, Patrick Duff of Portland, are considering whether to appeal to the state Supreme Court.
"I'm a steelheader," Gatski said. "Sometimes, it's about the principle."
It was in November two years ago that Gatski said a state conservation officer ordered him to the river bank from atop Webber Dam's gratings. Gatski cut his line, releasing what he believed was a 12 to 14 pound steelhead, a rainbow trout that grows large in Lake Michigan before returning to its natal stream to spawn.
Gatski then waded to the officer to receive his ticket.
"I wasn't so angry at the conservation officer. I happen to know the guy. He was doing what his bosses told him to do," Gatski said. "The county makes a lot of money ticketing fishermen for something that isn't illegal."
Rather than pay a fine in Ionia District Court, Gatski appealed and won. Ionia Circuit Judge Charles Miel threw out the charge, agreeing with Gatski's argument that Consumers Energy had no right to regulate his fishing or block his access to the river.
Under state recreation laws, a fisherman can walk on a privately owned riverbank to get around an obstruction, and a hunter can retrieve his dog from a neighbor's property. But there is no right to track a wounded deer onto the neighbor's property without permission. The court ruled Gatski had no right to stand on a portion of the dam to retrieve his catch.
The state's riparian rights also declare waterways are open from bank-to-bank to everyone, but dams are placed with federal permission, which include safety mandates, the appeals judges noted in Wednesday's ruling.
The lower court's ruling was in error, according to Appeals Judges Jane Markey, William Murphy and Michael Talbot.
Unless Gatski can prove it was necessary to climb on the gratings to avoid a natural hazard or obstruction, he likely trespassed, the judges said.
The judges also ruled that unfettered access to public waterways around a dam are limited by the utility company's responsibility for public safety.
The dam's water-release gates "pose a significant risk to safety and life if the gates were opened while a person was within that area," the court wrote.
The Webber Dam, at 32 feet high and 1,200 feet long, is the tallest on the Grand River. Behind it is a 7-mile-long, 660 acre reservoir.
The facility produces hydroelectricity with water that pours through two generators. The only way around for fish is the tallest fish ladder east of the Mississippi, according to Gatski.
Unless Gatski appeals -- and the state's highest court agrees to hear it -- Wednesday's decision sends his charge back to Ionia District Court for trial or payment of a fine.
"I'm not dismissing the ticket," vowed Schafer, the prosecutor."This wasn't an issue of picking on the fisherman. It was an issue of safety and not using dams for recreational purposes."
