On Thursday (Sept. 20), the Canoe Cruisers Association of Great Washington, D.C., who regularly uses the Potomac River adjacent to President Trump's Loudoun County golf course, filed a lawsuit in federal court to try to reverse a policy that closes a stretch of the river when the president is playing golf. To gain a better understanding of the case and its legal framework, we went to C&K’s river rights expert Adam Van Grack, an attorney at the law firm of Longman & Van Grack LLC and the Chair of the American Canoe Association’s Slalom Committee. 


Background
The issues began in the summer of 2017 when the Coast Guard instituted a shore-to-shore security perimeter around a popular section of Potomac River known as “Seneca Lake,” which the suit says offers unique features benefiting the recreational public, notably for beginners, classes, camps, and river cleanup outings. The “permanent security zone” extends from the Virginia shore to the Maryland shore, covering an area of about 2-miles.

A view of Seneca Lake with Trump National Golf Club in the background. (Photo: Barbara Brown)

Initially, the paddling community was hopeful their concerns were addressed by the previous Coast Guard commandant, Adm. Paul F. Zunkunft, after he testified before a House committee that the river would remain open on the Maryland side while Trump was playing golf. Zunkunft’s testimony seemed to indicate that the agency was willing to accept the paddlers’ preference to restrict access along the half-mile width of the river.
This seeming admission to allow paddlers river access on the Maryland side would be on a case-by-case basis for more than a year. Unfortunately, with no formal change to the rule in writing, the paddling community’s concerns still remained that the agency could reverse course and take away the access privileges at any time.
In their lawsuit, the Canoe Cruisers Association further charges that the DHS neglected to address or act on over 600 public comments from impacted individuals, violating processes required by agency regulatory rules. They additionally claim that the established boundary is "arbitrary and capricious because it is overbroad, fails to provide adequate notice to the affected community regarding when it will be in force, lacks an end date, and exceeds the scope of DHS's statutory authority."

Bordered on one end by a dam and Seneca Break rapids, the area features two regularly used access points for paddlers on the Maryland shore: Riley's Lock, where there is a county-run park, parking and the headquarters of a summer camp, Calleva Outdoors, and Violette's Lock, which includes a parking and a picnic area.

Map of the security zone

The CCA’s complaint further challenges the Coast Guard regulation, stating that the rule "revokes the public's legal right to access and enjoy a popular section of the Potomac River whenever President Trump visits Trump National."

Risa Shimoda, a longtime kayaker, river advocate and one of America's most vocal supporters of whitewater paddling who lives in Takoma Park, MD., told the Washington Post she worries about the precedent set by a unilateral rule.
"If President Smith in 2025 decides they want to go play golf at the club and they close the river," Shimoda said, "that's pretty awful."

A recent incident where Coast Guard officials approached a swiftwater rescue class and directed the group to cross the river at a dangerous point helped prompt the Canoe Cruisers to file the lawsuit.

Coast Guard patrolling the established security zone. (Photo: Barbara Brown)

In an interview with The Washingtonian, CCA chair Barbara Brown said it's not just her nonprofit that should be concerned about the regulation: "What about the tourists who stumble in? If they happen to get to pass a certain boundary, they can get stuck and be forced to the dammed-off edge where the waters are very high, and very rough."Though the lawsuit names as defendants Adm. Karl L. Schultz, commandant of the Coast Guard, and Kirstjen Nielsen, secretary of the Department of Homeland Security, as well as their agencies, Brown insists that her group is in no way political.

"This is not a personal animosity against the Trump, or any, administration. We're just trying to paddle our own canoes."


More legal context from Attorney Adam Van Grack

C&K: Can you explain the basis of the Canoe Cruisers’ complaint?
VAN GRACK: This lawsuit addresses an Interim Rule which was written and submitted by the U.S. Coast Guard in July of 2017 that permits the Coast Guard to completely (if they choose to) shut down access to the entire Potomac River between the Seneca Breaks and Sharpshin Island to all traffic (motorized and non-motorized) when certain high-profile persons are at the Trump National Golf Club. The Trump National Golf Club borders the Potomac River on the Virginia Side in this area.  The Interim Rule, as drafted, has absolutely no limit whatsoever as to how often the complete shut down can occur, how long the complete shut down can occur for, how much notice must be given when a complete shut down occurs, or the time period for which the Coast Guard is allowed this complete shut-down control.

Why is this case important? 
On its face, the lawsuit addresses procedural challenges to the Coast Guard’s Interim Rule. While it is unusual for a non-Final Federal Rule to be implemented prior to the finalization of the Rule (which occurred here).  It is even more unusual to have no action whatsoever on an already-implemented Interim Rule over a year after the notice and comment period expired.  The Coast Guard is — in effect — having their Interim Rule implemented as a Final Rule because the Coast Guard has not addressed any of the comments or sought to limit or alter their Interim Rule as drafted.  The lawsuit challenges the Coast Guard’s improper procedure related to the Interim Rule.  The lawsuit also implies a substantive challenge to the Coast Guard’s Interim Rule, which touches upon navigable servitude or the right of the government to restrict or limit the rights of the public (including canoe and kayak paddlers) to access a river that is a navigable waterway.  The lawsuit uses the Administrative Procedures Act to assert that the Interim Rule’s action — allowing the Coast Guard to completely (if they choose to) close off this entire Potomac River section to all traffic — is not a reasonable response to the Coast Guard’s stated goals in the rule: to establish a protection zone for high profile persons while at the Trump National Golf Club. As the lawsuit states: The Rule “is overbroad, insofar as it restricts legal access to the River beyond that which is reasonably necessary for the Rule's stated purpose.”

What precedents could be set by the ruling and how could a ruling either way impact paddlers/access rights?
This case places directly at issue the government’s right to completely close off an extremely well-used and active section of a major navigable river with the rights of boaters, paddlers, campers, schools, and businesses to use that navigable river. The Coast Guard (which is an agency within the Department of Homeland Security) admittedly acted unilaterally, and while it sought comments from the public and effected businesses/entities, the Coast Guard has not changed, adjusted, or commented upon their Interim Rule since its implementation over a year ago. This case could create caselaw which establishes the boundaries of the federal government to restrict access to an extremely well-used waterway.

Adam Van Grack is an attorney based in Bethesda, Maryland who specializes in river rights and outdoor recreation law. Adam Van Grack represents two businesses which have been effected by the Interim Rule but whom are not parties to the Canoe Cruisers lawsuit. He’s offered legal insight to C&K in the past regarding the role of federal agencies in restricting river access to recreational users.


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