Townsend City Commission approves appeal of Little River ruling
By Iva Butler | (email@example.com)
Townsend, a city of only 448 people wrestling with problems generated by thousands of tubers, plans to appeal a circuit court ruling declaring Little River a navigable waterway.
Townsend City Commission, at a called meeting Monday night, unanimously approved the appeal. Commissioner Ron Palewski made the motion and Vice Mayor Becky Headrick seconded it, with Mayor Michael Talley and Commissioner Jackie Suttles also voting in favor and Commissioner David Wietlisbach abstaining.
The issue arose in 2012 when University of Tennessee student Amthony Damico, then 20, and his party got out of Little River on Ye Olde Mill Campground property, which is owned by Travis and Jeremiah Grant of the adjacent River Rage Tubing Co. and Little River Barbecue.
Tubers are allowed to enter and egress the river at specific points for each tube operator
The two largest tube operators are River Rage and Smoky Mountain River Rat Tubing Co.
The Damico party passed the River Rat egress point and reached the campground, which is adjacent to the 8- to 10-foot Wears Dam,
Damico apparently deemed the only safe thing to do was to get out on the campground property and portage around the dam.
He had a heated argument with the campground manager and later Townsend police cited Damico for trespassing.
City Judge Chris Ralls later upheld the trespassing charge, refusing to accept a U.S. Corps of Engineers ruling that Little River is a navigable waterway.
Damico and his attorney Joe Nicholson appealed the ruling in front of Blount County Circuit Court Judge David R. Duggan, who reversed the city court on July 5. He ruled that Little River is a navigable waterway under the legal sense.
Nicholson said Tuesday he is “surprised” that the commission is appealing the ruling. “I think the trial court is correct in its finding. What the trial court held has been law in Tennessee for a substantial amount of years. The court did not hold that they can exit the river any way they want.”
Half of Little River is in Townsend in the city limits and half is in Blount County.
Under the navigable waterway law, in the legal sense the property underneath the river belongs to the public.
Some of the deeds of Townsend people who own property along the river say they own the land to the middle of the river.
The question is whether that is public taking of private property and the taxes the owners have paid for years.
The commission is also concerned that Duggan’s ruling on portage is too broad.
In his findings, Duggan wrote: Wears Dam “is an 8-to-10-foot ‘low-head’ dam, meaning that it has dangerous backwash below the dam which can circulate a person in the water.”He also listed other possible obstructions, such as large trees that fall across the river or “being confronted with a sudden emergency, whether it be a thunderstorm or a copperhead snake rapidly swimming toward a tuber.”
“I would like to see more definite guidelines as to portage,” Mayor Talley said.
During the 15-minute meeting when the decision was made to appeal, three citizens spoke.
Richard Koella, who described himself as an outdoorsman who has spent most of his life on the river, said that “over the past few years things seem to have gotten out of hand.”
Koella said he is noticing more trespassing, profanity, indecent exposure, assault and violent behavior, destruction of daily wildlife habitat, river residents putting in hours rescuing tubers and people having to leave their property and go somewhere else to enjoy the river.
”I think the easiest thing to do to solve all these problems is to stop it (tubing),” Koella said.
Businessman and life-long resident Don Headrick said, “We need to look at case law not raised in Duggan’s opinion in the case of Godfrey vs. Williams in 1999.”
In that case the late Blount County Circuit Court Judge W. Dale Young found that Little River is not a navigable waterway.
Gilbert “Gil” Webb, who lives on Little River, said it seems like Duggan’s ruling gives the right to trespass wide open and it is up to the tuber to determine if they can get around it.
After the meeting, Talley said, “The city realizes the attraction of tubers to Townsend. No way are we trying to shut folks down, but to allow private property owners to use their property.”
Tubers are flowing through and over Residental-1 zoned neighborhoods, he added.
Townsend Sheriff Ronnie Suttles said on a pretty day his department has three to eight calls related to tubing.
He said the problems have been escalating over the nine years since the tubing companies initiated the shuttles.
“When the river is up the least bit, the KOA keeps two to three other employees to pull people out of the water.”
There is a location behind the campground where “people are dumped out of tubes and slammed into really sharp rocks,” Suttles said.
“The tubers stay so busy shuttling tubers that it’s just a matter of time before there is a major accident. Safety is the No. 1 issue in all of it,” he said.
Both the major tubers, River Rat and Rage, release tubers at two points — inside the national park boundary and also from Wears Valley Bridge.
Suttles said one solution is to have a high and low water mark and not allow tubers in the water during those times.
“These people are on vacation. They (tube operators) are just dumping people in the water who think it’s Dollywood or something and it’s not. The tubing industry has got to give people more information on what to do and not do,” Suttles said.
There are so many obstacles where people can get hurt — an old dam and bridge with rebar showing, trees, boulders and wire underneath the river, he said.
Suttles questioned the ruling that the river is navigable. “I’d like to see one of these judges get in a canoe or kayak and go up the river. Navigable means you can come and go up and down the river.”
“Most people don’t want the tubers banned. They just want it maintained and what you see is more and more tubers,” he said.