Wader's defense doesn't hold H²0 in court

A man cited for wading in Ashland Creek last summer and given a $349 ticket was found guilty in Ashland Municipal Court Wednesday, but the judge said she would have to take some weeks to come up with a "creative" sentence.

Judge Pamela Burkholder Turner rejected the defense of David Tourzan that enforcement of the wading ban was "arbitrary and capricious," noting the 1916 law was enacted to protect stream banks and water quality.

It allows wading in two areas, by the playground and swimming hole, but nowhere else.

Wading with his small sons at the Cotton Memorial area, Tourzan was told to get out but refused, he said in an interview, asking Park Patrol Officer Kathryn Ketcher to explain the law and what activities are allowed in the stream.

Ketcher allowed him 10 to 15 minutes to get out, went and got an Ashland policeman and, on return, cited Tourzan, who was still in the creek and maintaining he was not breaking the law, she told the court.

Tourzan lives on Granite Street, just uphill from the creek, and said he and his children have been ordered out of the stream at least a dozen times, but that he feels the old law prohibits wading, fishing and swimming "yet does nothing to protect the fragile streambanks from real threats to water quality."

In a news release, Tourzan said he wants to argue that the law is enforced in an arbitrary and capricious manner so it can be changed "to better protect the creek and families' rights to access public waterways." Ironically, Tourzan is often in Bear Creek and Wagner Creek in his role with Talent Middle School's Outdoor Discovery Program and Environmental Science Based Elementary Magnet Program — and takes kids on tours of Ashland Creek.

"We do stream monitoring, water samples, pH levels through the Bear Creek Watershed Council," he said, noting that "I'm pretty well an expert on the creeks and tried to get the Ashland Parks and Recreation Department interested" in the 1916 law, but made no progress.

Tourzan said there are parts of the creek that need protection, but "it's less about discretion and more about what specific activities should be prohibited." The old law was enacted in the days of water pure enough that townsfolk used it for drinking water — and wanted to keep bathers out of it, Tourzan said, noting that booting people out in these times is "abuse of discretion."

"I told her I was not going to get out," Tourzan said in the interview, "and I asked what the law was and why."

Defending her actions against charges of arbitrary enforcement, Ketcher told the court, "I'm allowed to decide if it's reasonable to write a citation. I gave you adequate time to get out of the creek and you didn't get out, so it was reasonable to write the citation."

Tourzan told the court that the law states no time limit for getting out of the water, so enforcement is inherently arbitrary. He cited wading of seniors and pregnant women who need the cool waters for health reasons, so uniform enforcement would be "acting in excess." Questioned by the judge and seeing little support for his case, Tourzan said he had gathered petitions with 60 signatures — and asked for a $1 fine with an explanation of the legal and moral reasons for the law.

Judge Turner told Tourzan he was guilty, noting that she couldn't divine the motives of the City Council 94 years ago "unless they were ahead of their times" in environmental protection.

"I don't see anything she (Park Patrol) said that is arbitrary and capricious at all," said Turner, adding she needed until after Thanksgiving to find a resolution of the case that's "more creative, meaningful and fun."

Turner said the citing officer was "generous with you" and ultimately, the issue is up to the Parks Department or City Council.

John Darling is a freelance writer living in Ashland. E-mail him at jdarling@jeffnet.org.

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