I have a lawyer friend who works for the County of Snohomish, and am
querying him on what action an interested party of naturalists like
ourselves could do in this situation. He is close to several Superior Court
judges up there and knows what departments to ask about this, namely the
Civil Division of the Pros. His initial quote is:
"If it is in fact a public domain, his barring of a public easement is
unconstitutional under the provisions of Washington state. If he refuses to
remove the bar, then TU or any other public land interest could file suit
for equitable relief in way of an injunction, forcing him to remove the
property bar."
I ain't no lawyer, so I don't really know what good that could do this
forum, but I suspect he at least will get back to me on what the law
surrounding this issue is, and what action a group could take to regain
access to a public easement (beyond taking a blowtorch or backhoe to the
gate). When I hear something I will share with the group.
bw
----Original Message Follows----
From: "Wes Neuenschwander" <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED]
To: "Preston Singletary" <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
Subject: Re: Ebey Lake
Date: Wed, 19 Apr 2000 08:04:53 -8
I too lament the loss of this little gem. I was introduced to Ebey just a
couple of years before the gate was locked, so only had a chance to
fish it a dozen or so times, but it was enough to impress me with its
potential for growing some beautiful fish, as well as providing a truly
unique fishing experience. It impressed my wife too - I'll never forget the
image of her being literally towed around in a float tube by a monster
fish (who ultimately escaped, unseen).
Poaching was a serious problem back then, though. The second year I
fished it there was an itinerant logger family living in a trailer, just
across
the road from the trail to the lake, who pretty obviously considered the
lake a subsistence fishery. And locals who generally came in by the
spur road to fish the far side, out of sight of the "official" launch; who
slung bait and left with 5 gallon buckets full of fish. Even at the main
access, disregard for the flyfishing only rule was flagrantly disregarded,
and the trail and much of the perimeter of the lake was littered with bait
containers and leader packages. By the end of that second year and
throughout the year following, I noticed a dramatic reduction in both
numbers and size of the fish. When the gate was finally locked the
following spring I had mixed feelings: I actually wondered if the restricted
access wasn't best for the lake (even though some poaching would be
sure to continue).
It sounds like some further investigation into issues of ownership and
easement would be in order. First, I think it would be useful to
determine who legally owns the land the road to Ebey traverses, as well
as the lands served by the road, and get copies of these titles. Second,
examine the language of the easements: Perhaps the easement is to
permit access for all state agencies as necessary to perform their
functions, not just DNR. If this right extends to WDFW, it may be
arguable that it includes providing access for fishing. It may even be
possible that the easement provides much broader access rights, such
as to provide access to all property served by the road and, by
extension, to the public wishing to access the public property served by
the road. In short, I think there may be rights not known or exercised.
Until you examine the easements, you don't know. I do know it's not
uncommon for property owners to assert rights they don't have in an
effort to impede public access (think of puget sound beaches in general
or Howard "Starbuck" Schultz's building a road across a Seattle park).
Couple that with a disinterested tenant - DNR - and it's easy to get
locked out.
Of course the other approach would be to try and negotiate public
access. Could be that gate's locked because of concerns about
vandalism, littering and even personal liability (in addition to the
poaching and squatting). (Come to the table armed with some
questionable title language and negotiation is even more promising.)
Either way you cut it, it sounds like too much for any one person to
accomplish. State agencies and land owners alike, are unlikely to be
persuaded by one person's pleading, even with a sheaf of legal
documents in hand. Does sound like something a well organized and
well established group of individuals - say a fly fishing club - could
accomplish though. And a noble effort it would be indeed: Restoring
access to one of the few flyfishing only lakes in the area and providing
stewardship to a naturally sustained native cutthroat fishery. Hmmn,
any club members out there willing to take this one on?
-Wes
Date forwarded: Tue, 18 Apr 2000 08:09:33 -0700
From: "Preston Singletary" <[EMAIL PROTECTED]>
To: "Washington Fly fishers" <[EMAIL PROTECTED]>
Subject: Ebey Lake
Date sent: Tue, 18 Apr 2000 08:08:42 -0700
Forwarded by: [EMAIL PROTECTED]
Send reply to: [EMAIL PROTECTED]
> I don't know how many of you have fished Ebey Lake, it's a small,
> year-round, flyfishing-only lake on the top of Ebey Hill just east of
> Arlington. Several years ago the state DNR (which manages the mostly
> cut-over lands at the top of the hill) put in a locked gate at the edge
of
> the DNR land, necessitating a two-mile walk on a logging road to get to
the
> lake, though there was a spur that turned off before the gate that
allowed
> access to the west side of the lake with a bit of bushwhacking. Ebey has
a
> self-sustaining population of coastal cutthroat, and with flyfishing-only
> and a 17-inch, one fish limit they have been able to do quite well in
spite
> of a certain amount of poaching which takes place because of the lake's
> isolation. The extensive shallows around the main body of the lake
provide
> for some of the heaviest concentrations of dragonfly nymphs that I have
> ever seen and damselflies, midges, callibaetis mayflies and leeches grow
> plenty of fish, some of which can reach twenty inches. Now for the bad
> part: The only access to the DNR land and the lake at the top of Ebey
Hill
> is via the Ebey Hill Road which leaves the Jim Creek Road at the south
side
> of the hill. This road is, apparently, all or in part on private
property
> and the property owners have put in a new gate several miles down the
road
> from the DNR gate. The sign at the gate says "no access except to
property
> owners, guests and easement holders". I assume the only easement holder
is
> the DNR. I have contacted the WDFW and the DNR and neither one seems to
be
> willing to go to bat on this. The WDFW view being that, since there is
> neither a WDFW access site at the lake, nor any stocking of the lake
taking
> place, they would just as soon remain aloof. Does anyone out there have
> any idea what, if anything, can be done? I find it sad, indeed, that a
> road that I have been using to get to (or at least close to) Ebey Lake
for
> more than thirty years, without let or hindrance, can be closed to the
> public in this way, worse yet is the loss of one of only a small handful
of
> flyfishing-only lakes in western Washington.
>
Wes Neuenschwander
Seattle, WA
[EMAIL PROTECTED]
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