The legal situation swirling around a lawsuit over the ownership of a section of Craig Creek in Craig County remains as murky as a river after heavy rains. What’s clear, though, is the importance of free navigation to outdoor enthusiasts and to the county’s economic identity as an outdoor destination.
The owners of three properties along Craig Creek are suing the state of Virginia to clarify ownership of the creekbed. And while their attorney says that the navigability of the water isn’t currently part of the case, some Craig County officials worry that the case could lead to shutting down public access to the waterway, a popular site for canoeing, kayaking or simple floating.
The Craig County Board of Supervisors passed a resolution on Feb. 2 “expressing support for free and open public waters.”
“The County recognizes that all the public waters located in the County are a natural resource that must be protected and have an important recreational and economic benefit for the citizens of the County and the Commonwealth as a whole,” the resolution reads in part, “and that the Board supports the protection and the free and open use by the public of the public waters located in the County.”
Called “Crooked River” by Native Americans for its long, looping bends, Craig Creek is stitched as deeply into the county’s economy as into its topography.
“Having Craig Creek as a recreational waterway provides tourists and residents with exciting experiences while promoting healthy active lifestyles,” Jordan Labiosa, chairman of the Craig County Economic Development Authority, wrote in an email.
Visitors who come to Craig County for outdoor recreation often eat at local restaurants, shop at local businesses and spend the night in local lodging, he said.
That spending has helped reduce the burden of taxes on the county, where the population has shrunk slightly over the past decade but the cost to govern it continues to grow, he said.
Labiosa and others also fear a potential impact from the court case on John’s Creek, which is popular with kayakers and which empties into Craig Creek, and on Wilderness Adventure, a longtime county business — and one of its largest employers.
“During the early days of the pandemic, Wilderness Adventure was a recipient of one of the Craig County Economic Development Authority’s ‘Stay in Business’ grants because we recognized the significant impact they have on our local economy,” Labiosa wrote.
Wilderness Adventure is a nearly 500-acre year-round camp and conference center that fronts on Craig Creek, upstream from Virginia 612, location of the property at issue in the lawsuit. It was founded in 1990 by Gene Nervo, a retired Marine who lives in Salem. Tubing and canoeing are among the activities it offers. At the height of summer it has 25 to 35 employees, said Dustin Eshelman, the camp’s director of operations.
If the ford at Virginia 612 were to be closed to navigation, it would affect Wilderness Adventure’s operations, Eshelman said. Some float groups start at Wilderness and float past the 612 crossing toward the James River.
If a property owner were able to bar navigation, “I can’t imagine how upsetting that would be to everyone that lives here. And then what would you do, have to get out? And just not use that part of the creek?”
The owners of Briar Oak Properties and Briar Oak Farms are suing the state of Virginia, represented by the Virginia Marine Resources Commission, to clarify ownership of the creekbed adjacent to Briar Oak properties. Briar Oak owns property on both sides of Craig Creek (also known as Craig’s and Craigs) where it is crossed by Virginia 612, or Scenic View Lane, a gravel road.
The crossing is technically a ford, with the creek around 70 feet wide at this point, judging from Google Maps.
Lenden Eakin, a Roanoke attorney who also owns land in the county, is representing Briar Oak. While he declined to identify the owner or owners of Briar Oak, an online property card for one of the Briar Oak properties fronting the creek, lists William J. Lemon and a 2021 date under “transfers.” Stephen Lemon, a Roanoke attorney, is listed as the registered agent for Briar Oak Properties, according to the State Corporation Commission.
The owner’s question, Eakin said in a Feb. 2 Cardinal News story about the dispute, is “who owns it, especially the banks.”
“And the reason it’s particularly a problem here is there’s a one-lane public road that fords the creek there,” Eakin said. “People are accessing the creek bank from the road, not from the creek. And he wants to know, is that state property and it’s OK for them to do whatever they’re doing, or is it his property?”
According to a news release issued at Eakin’s behest, the landowners “have encountered members of the public picnicking, parking vehicles, camping, building fires and otherwise treating the property along the creekbank as if it were a public park.”
It’s not clear whether the spot where people are reportedly camping is on Virginia 612, or on the Briar Oak property adjacent to it, or between the high- and low-water marks. It is also not clear whether the landowner believes that boaters should not have access to the creek from the end of Virginia 612.
Eakin did not respond to emailed questions requesting clarification on these points.
With few public access points in the county, Wilderness Adventure uses road crossings to put in and take out groups. “Actually, that 612 is a place that we do take our groups out sometimes,” Eshelman said. “I mean, the road is public.” She said she is careful not to go on private property.
A meeting of Friends of Craigs Creek was held Jan. 28 at the camp. “We had easily 100 people in attendance,” Eshelman said.
“I think everybody agrees 100% that nobody wants people getting off on someone’s property,” she said. “We want respect for landowners, that’s not OK. Maybe an emergency situation would be different, but everybody is only concerned with being able to just float the creek, fish on the creek.
“We don’t use private property. We would never send a group camping on private property. The only way that that would happen from Wilderness Adventure is if a group was lost, or there was an emergency situation with one of the kids … and they had to get out.
“And to be honest, people have brought up the case of littering and disrespect. I just feel like most people who enjoy the outdoors are not huge offenders of the outdoors and littering. If there’s litter on the creek, it’s mostly coming from roadsides and tumbling down into the creek.”
Eakin also argued that the owners have paid taxes on the property for “a long time.”
“Should we continue to pay taxes on it, or is it state property that should be taken off of our tax bill?” he said. “So it’s a question of ownership. And the state’s claiming ownership to the high water mark on both sides of the stream, and that’s a lot of real estate on Craig’s Creek.”
The lawsuit asserts that “together, Plaintiffs [Briar Oak Farms and Briar Oak Properties] own all of the submerged lands at issue.”
Elizabeth Huffman, the county’s commissioner of revenue, said in an email that taxation of waterfront parcels “depends on how the survey lines are drawn on the survey. If the survey indicates the boundary line to the center of the creek we tax based on the boundary lines and that acreage is included in the overall acreage.”
But beyond the issue of creek access and taxation around the properties at Virginia 612 is the larger question of whether the Briar Oak owner wants to prevent floaters from passing through the creek at that point, even if they never touch ground on either side.
“The navigability of the water is a separate issue and is not currently part of the plaintiff’s case,” Eakin said. But a Feb. 1 press release from Eakin said that “Craig’s Creek has not been ruled as navigable by the Army Corp [sic] of Engineers.”
Attempts to get a clarification, via phone message and email, from Mark Haviland, chief of public affairs for the Army Corps of Engineers Norfolk District Office, were unsuccessful.
According to “The Upper James River Atlas,” prepared for the Virginia Canals and Navigations Society by W.E. Trout in 2001, Craig Creek was navigable for batteaux for 49 miles, from the James River to New Castle. Among the products shipped on the creek in the first half of the 19th century was pig iron, transported from a forge on Johns Creek above New Castle.
While people do actually float on Craig Creek in canoes, kayaks and inner tubes, there may be a separate issue of legal navigability.
“The first thing for the court is to decide whether the private party owns the bottom,” said Jim Lang, a waterfront property rights attorney with Pender & Coward in Virginia Beach. “If the court concludes the bottom is privately owned, then the court, I think, is going to have to take up the question of navigability.”
If the creek is found to be navigable, then the property owner would not be able to prevent people from navigating through the water, he said.
“If the creek is non-navigable, then it’s unclear, and I’m not aware of any law in Virginia that directly answers that question,” he said. “But I would tend to think that if the creek is non-navigable, and he owns the bottom, I think there’s a higher probability then that he could exclude others from entering into the water flowing over his property.”
The Virginia Marine Resources Commission has a standard of navigability, and the Army Corps of Engineers has a standard, Lang said.
And then, he said, there’s the standard that’s used both in the U.S. Supreme Court and the Virginia Supreme Court, which looks at whether the creek is currently used — or could be used — in interstate commerce.
The Virginia Marine Resources Commission referred questions to attorney Rosalie Fessier of TimberlakeSmith in Staunton. While Fessier returned a call following the Feb. 2 story, she did not respond to emailed questions for this story.
Bill Tanger, chair of Friends of the Rivers of Virginia, sent out a sample letter to members of Friends of Craigs Creek for use in writing to legislators. It reads, in part:
“We, in Craig County are facing possible loss of waterway access to a tributary of the James River known as Craigs Creek. It is a creek in name only and approximates the size and flow of Roanoke River as well as many other rivers in the commonwealth. The Army Corps of Engineers has listed Craigs Creek as a navigable waterway for administrative purposes.
“These waterways are not only a valuable natural resource, but also a source of recreation and tourism for our community. Craigs Creek waterway allows for activities such as fishing, boating, and kayaking, providing both economic and recreational benefits for our area, creating jobs and boosting the economy.
“If the landowner is able to stop navigation here, this will embolden many others across the state to do the same. Anyone floating, boating, kayaking, tubing etc would need express permission from every landowner downstream for miles.”
“Our job is to expose people to the outdoors so that they create what we call a sense of place,” Eshelman said. “They feel connected to their world around them. We know through tons of research, and I used to be in education, that when you educate people and you get them connected to their area, their outdoor space, that they want to take care of it. It’s not the other way around. People that love the outdoors and appreciate it aren’t the ones that are going to be disrespectful of it.”
The trial is scheduled for July 11 and 12 in Craig County Circuit Court.