HARPERS FERRY – Area river excursion outfitters and tour services will retain the right to use a pull-out on the Potomac River following a decision by a Washington County, Md. judge.
Administrative Judge M. Kenneth Long ruled this month that Maryland courts do not have jurisdiction over shores on the Virginia side of the Potomac, dismissing a claim by the heirs of a now-demolished vacation cabin community called Potomac Shores who sought to make area businesses River Riders, along with Butts Tubes of Purcellville, Va. and River and Trail Outfitters of Knoxville, Md., pay them to use the river and river access now owned by the U.S. Park Service.
“Ruling in any other way could reignite a centuries-long string of controversies that both states have repeatedly sought to lay to rest,” Long wrote in his decision.
The cabins were located on the Maryland side of the river, downstream from the bridges at Harpers Ferry but were demolished in 2005 after they had been condemned by the U.S. Park Service, which incorporated the land they sat on into the C&O Canal National Historical Park.
River Riders owner Matt Knott said the heirs to the property contacted him about five years ago seeking payment to use Potomac Wayside.
“We have a permit from the Park Service to get out of the river there,” Knott said.
A primary question involved in the case was where the border between Virginia and Maryland rests. The Potomac is owned by Maryland at this location, but the level of the river regularly rises and falls. The suit hinged on the answer to where Virginia began — at the high water mark, the low water mark, or somewhere in between.
“The dispute that this opinion addresses is that Potomac Shores claims to own [the riverbed] up to what’s called the ‘median high water mark’ on the Virginia side, which is the average of the water level throughout the entire year,” Knott said. “The states of Maryland and Virginia agreed hundreds of years ago that the border is the low-water mark – the shoreline, basically.”
Potomac Shores’ attorney Bradford Webb, declined to comment on ongoing litigation, pointing out that a motion to reconsider is still before the judge.
Knott said Potomac Shores was simply trying to find a way to make money off of Potomac Wayside.
“Potomac Shores claimed to own land for about 100 feet on the Virginia side of the river, but they don’t have any deed in Virginia. Their deed is in Maryland,” Knott said. “They own this piece of property, but they can’t really use it for anything because it is all under the Potomac River. We think they were trying to get a user fee out of us so that they could say it was valuable.”
Knott said a decision in their favor could have affected more than just the commercial river outfitters who were sued by Potomac Shores — all boaters and fishermen who use the Potomac Wayside pullout. “Everyone who pulled out there might have had to pay a user fee.”
Knott said legal precedents intended to prevent fees for river navigation are old and well-established. “There have been a lot of legal precedents over the years, and no one can own water on a navigable waterway. The Potomac is navigable. That’s why we had always ignored them. We had looked into it for years, and all kinds of attorneys had told us that the Potomac is a navigable waterway and, therefore, they couldn’t restrict anyone’s right to float through there,” Knott said.
Knott said he believes the Washington County ruling settles the matter, which he has spent more than $10,000 to defend. He said he doubts the case will be brought back up in a Virginia court.
“They don’t have a deed in Virginia, and they’ve never paid any taxes here, so Virginia is not going to hear this case.”