Capital Press: Who owns the fish?

Cattleman sues state, demanding $2.1 billion for seizure of trout and salmon from his ditches

TWISP – David Creveling won’t shake a visitor’s hand, citing a Bible verse about men who do so being “in want of heart.” In fact, Creveling, who lives south of Twisp, Wash., doesn’t speak more than a few sentences without invoking Scripture.

It’s no surprise then, that the first of many precedents he cites for upholding his lawsuit against the State of Washington is God’s law that all fish, animals and birds are private property. He even provides the court the passage: Genesis 9:1-3.

One can imagine a judge quickly dismissing a lawsuit based on Bible verse alone, but Creveling doesn’t stop there. Citing English case law, the U.S. Constitution, mining acts, local custom and a 105-year-old ruling by the Washington State Supreme Court, the cattleman-turned-legal-scholar convinced a federal judge that his is no frivolous case and should go forward.

Creveling is asking for $700 million to pay him for the 125 fish that agents of the Washington State Fish and Wildlife Department took from his farm’s irrigation ditches. In addition to the value of the fish, which he based on various estimates he has seen quoted in news reports, the 37-year-old is asking for damages and other relief up to $2.1 billion.

The legal meandering of the case begins earlier, but the precipitating event occurred Aug. 22, 2003. That was the first of three days state fish and wildlife agents came onto Creveling’s property and seized 125 steelhead, salmon, cutthroat trout, brook trout and sculpin out of the ditches he uses to irrigate pastures on his farm.

The fish come out of Gold Creek, which the Creveling family and others before them have diverted into the ranch’s system of open canals, first dug in 1889. From the time he was a kid, Creveling remembers catching fish in the irrigation weirs or overflow of the canal, tickling them up their sides with both hands, then thrusting his fingers into their gills to catch them.

“The game department knew about it when I was a little kid. I’d have a string of fish – as much as I could carry – and they’d drive by and wave and I would wave and no problem,” he said.

Gold Creek is a non-navigable stream that flows into the Methow River. Creveling claims he owns all the water in Gold Creek at low flow. No water is required for fish bypass, he said, because the state doesn’t own the water in the creek. He does. Besides, the fish survive quite nicely in his canals.

“It’s excellent fish habitat. It’s worked well for a hundred years,” he said, adding, “God has no problem with fish being in a canal.”

The Fish and Wildlife Department thinks otherwise. Dennis Beich, regional director for the agency, said Creveling doesn’t have the right to divert the stream and his actions are illegal. With the case in court, Beich can’t say much, but he does volunteer that provisions have been made to prevent Creveling from diverting Gold Creek this year.

“There are things I would love to say, but can’t,” Beich said.

Although Creveling is clear that God’s law supersedes all others, he has found man-made laws to support his argument that the fish in his ranch’s canals are private property and were taken illegally. In Griffith vs. Holman, a case involving the Little Spokane River decided in 1900 by the Washington State Supreme Court, the justices found the right of a fishery to the riparian owner is absolute so long as it isn’t injurious to the enjoyment of others along the same stream.

So when the state sued Creveling for failure to use a fish screen, obtain a hydraulic permit and failure to maintain a fishway, he sued them right back. Instead of addressing the facts, an Okanagon County judge ruled the state couldn’t bring the charges because the statute of limitations had run out. Any violation, the court ruled, should have been brought when the state first became aware of the conditions, several decades ago.

“The state waived its ability to enforce these continuing violations by not giving notice to the Crevelings of any violations during prior contacts,” District Court Judge Christopher Culp ruled. His judgment was supported during an appeal the state made to Superior Court.

Both courts, however, refused to consider Creveling’s contention of damages, and the Washington State Supreme Court would not consider the case. Which is why Creveling filed a “complaint for conversion,” which moves the suit into federal court. In early March, Chief U.S. District Judge Fred Van Sickle ruled the complaint was not frivolous and allowed Creveling to serve state officials.

Intense, with dark hair graying at the temple, Creveling brings a religious fervor to his legal arguments. With only a high school education (Brewster High School, 1986), he has taught himself how to use the legal system, both for research and filing complaints.

Although he has corresponded with others in the private property rights movement, he’s pursuing the case on his own. Since he never learned to type, he doesn’t have a computer. Instead, he prints his complaints on legal forms in a precise hand.

He spends anywhere from six to eight hours a day working on the various lawsuits he has filed. He said he can’t say how many altogether without looking through his files, but he thinks he has between seven and 10 cases ongoing. Most of them deal with the ranch and canal.

He figures he’s living on $100 a month.

“If you acknowledge God in everything, God will direct your path. Everywhere I’ve gone, I give God credit,” he said.

Creveling is a regular visitor to the Okanogan County law library, and what he can’t find there he has mailed to him from various state law libraries. The inside of his house looks like a busy, if chaotic, office. There’s a desk in the living room, and the table in the kitchen is littered with law books and legal briefs.

Outside his white farm house with turquoise trim (a nod to his Indian blood, he said) are a few head of cattle his sister owns. He lost all of his livestock in a divorce. He’s hoping that winning his case against the state will allow him to get back into ranching.

“I was made to run cows. I wasn’t made to be a baker or a reporter. I wasn’t made to be a judge. I was made to run cows. God has got to set me on the shelf if he’s not going to have me run cows. And the only way I can get back into the cow business is to collect on what was stole from me,” he said.

But $2.1 billion? Anything less, he said, wouldn’t hurt the state enough.

“A billion dollars makes it worth your while to go to court,” he said.

Scott Yates is based in Spokane. His e-mail address is syates@capitalpress.com.


	David Creveling stands near irrigation works that iare part of a contentious canal system on his ranch near Twisp, Wash. Creveling, who has been sued by the state for diverting water out of Gold Creek into his ditches and for failing to install fish screens, recently won the right to sue the state in federal court for coming onto his property, stunning and taking 125 fish swimming in his ditches.

Who owns the fish? By SCOTT A. YATES Washington State Staff Writer

Who owns the fish?

By SCOTT A. YATES Washington State Staff Writer