mizzouflyfisher

If you really want to go on opening day, go to Montauk. There is more water to spread out. If it gets too bad, you can head down below the park and fish the trophy area. I skipped class to go last year because the weather was just too good to pass up. I expected it to be pretty bad, but I was quite relieved. Plus, I ended up catching around 70 trout. Better than being in class anyway. Mizzouflyfisher

I was at Bennett several weeks ago. There were a ton of fish in the river. Ended up catching around 50. Almost all on sz 18-20 midges, black and white. A few on dries. Only a couple of decent fish though. There also weren't very many people. Mizzouflyfisher

I fished the stocked lake in Columbia last winter. Wind is absolutely crucial. If no wind, do a short pull, pause retrieve. I caught most of my fish on an orange scud. Don't be afraid to fish shallow either, I caught 20+ fish one day fishing no deeper than 3 feet and as shallow as one foot and the whole edge of the lake had ice. I was even surprised by a couple of bluegill coming out of that cold water. Just take some time switching through flies and depths to get it figured out. Mizzouflyfisher

I tore my meniscus when I was around 13. Talk about a crappy future. I'm 23 now and my knee still hurts and swells up. Anyway, good luck with the knee and compiling your short stories for your future book. Mizzouflyfisher

It's definitely true that fluoro seeks faster than mono. I always refer to fluoro as more dense, but not exactly sure what the reason for the faster sink rate is. I'm sure somebody can shed some light on this issue. Mizzouflyfisher

I agree. That comment was not to be taken as it was a bad weekend, my numbers of fish were pretty low and overall the bite was slow, just the bites I got were "good" bites. When I say I was persistent, a couple of the fish took over 100 drifts before I got the bite. Mizzouflyfisher

Finally made it down for the first time in several months. Met Leonard and Zach. Sorry I was so out of it when you showed up Leonard, I had just fallen asleep and didn't really know what was going on when you knocked on the door. Anyway, you got me up, and I tied a couple dozen flies after you left. I zeroed night fishing over the 2 nights. Kind of gave up so I could get up earlier. Fishing during the day was somewhat tough. I saw very few fish caught. Did manaage 6 or 7 browns that were over 20", but I had to be incredibly persistent. Almost all the fish I caught were on scuds or midges. Mizzouflyfisher

Without Adrian Peterson, OK is in trouble!!! (hopefully) Anyway,I spent a long time debating whether or not to go fishing for the weekend or go to the game. I figure this is one of the only chances I have to go to Taney for the next couple weeks, so I better take full advantage. I'll be in the parking lot by the hatchery. I think we will be pulling the boat, so if water's running, we'll be putting the boat in at the conservation ramp. Should be down there by 11 Fri. night, probably fishing Fri. night til early Sat. morning. Then all day Sat. and part of the day Sun. Mizzouflyfisher

Do you guys really think that there is much of a difference between a 2 & 4 piece rod. And if there is a difference, are there any casters that will be affected by that difference. Basically, will 99.9999% people notice a difference between 2&4 piece rods. I refuse to buy 2 piece rods now because when I travel, I have vowed to never check rods or reels again. (A couple of guys in our group had their luggage "misplaced" on the flight to Alaska. Luckily we had a couple of days before we flew out to start the float trip, and their luggage was found.) Granted the last time I flew to Alaska it took forever to get through security. Apparently 6 fly reels and a vice with a huge chunk of lead look funny on the xray machine. Mizzouflyfisher

I'll be down Fri. night through Sun. I'll be in the big Bounder RV that should be parked in the parking lot all weekend. Not sure if we're taking the boat or not. Can't miss the RV, feel free to knock. I'll be watching the Mizzou game Saturday. Mizzouflyfisher

I prefer fleece. The really tightly knit fleece retains some warmth. I find neoprene cuts off my circulation and makes me colder. I like to wear the handwarmer belt, that always stays warm and dry as long as you don't wade too deep. Mizzouflyfisher

Fished LOTO last weekend. Managed some fish on a bunch of different patterns. Spook/buzzbait early got a couple, a few on a crankbait, and the rest on brush hog. Also got a couple on a drop shot on the deep sides of docks-down to 30 feet. Mizzouflyfisher

Mine are in the mail today. Hopefully be there on Saturday. Mizzouflyfisher

Short answer: it depends. If fish are chasing each other and circling, it's really hard to catch them and probably not worth the effort, plus you're more likely to snag a fish. If the fish is actually spawning on a redd, you can catch them, but whether or not you should is a different question that I will not address here. The "spawning season" as you put it is in my opinion the best time of year to fish. I like cold weather and big fish. Night fishing in December/January is a lot of fun. Mizzouflyfisher

I'm in with an olive midge emerger. Mizzouflyfisher

I found the ruling-one of the benefits of law school. I can't post the link because it is in a significantly password protected site. Anyway, basically some guys were arrested for fishing in a flooded farm pond (Mississippi floods, ditch fills and flows into otherwise dry pond). Not really sure what the implications of the case are, but it is a very limited ruling. I'll post the majority of the ruling below. It's about 3 pages long, but here you have it if you want it. Happy reading, at least this is more interesting than most of the cases I read all day long. This is only part of the ruling, and I may have chopped out some parts, so if anybody wants, I can email the entire thing. By the way, lots of fishing organizations filed an amicus brief (wrote a brief for the court though they weren't parties) against the ruling that eventually emerged. Mizzouflyfisher The Plaintiffs bring this instant action against Sheriff Shumate seeking a declaratory judgment, injunctive relief, and damages under 42 U.S.C. § 1983 and Louisiana state law. The Plaintiffs sued Sheriff Shumate in his official capacity claiming that they were arrested without probable cause for fishing and hunting on waters of the Mississippi River, which covered Walker Cottonwood Farms' [FN5] property during periodic flooding. [FN6] FN5. Walker Cottonwood Farms is successor in title to Walker Lands' property. However, the record is unclear as to when Walker Cottonwood Farms obtained title to Walker Lands' property. FN6. For purposes of this Ruling, Walker Cottonwood Farms' property includes Gassoway Lake, "the drainage ditch," Little Gassoway Lake, Doe Lake, and Bunch's Cutoff (to the extent it lies within the State of Louisiana). On August 22, 2002, Magistrate Judge Kirk issued his first Report and Recommendation [Doc. No. 22] recommending that this case be stayed pending the outcome of state court litigation in Walker Lands, Inc. v. East Carroll Parish Police Jury, 38,367-CA (La.App. 2 Cir. 4/14/04); 871 So.2d 1258 ("Walker Lands "). On October 29, 2002, this Court adopted Magistrate Judge Kirk's Report and Recommendation and stayed the case. [Doc. No. 27]. On July 9, 2003, the United States Court of Appeals for the Fifth Circuit affirmed this Court's decision to stay the case. [Doc. No. 32]. A. State Court Decision In the Walker Lands' case, Walker Lands originally filed suit against the East Carroll Parish Police Jury to enjoin all public use of Gassoway Lake and a drainage ditch that runs from the southern end of Gassoway Lake to Bunch's Cutoff, a large body of water that connects with the Mississippi River. The State of Louisiana ("the State") was added as an indispensable party. The State answered, claiming ownership or, alternatively, a servitude on the disputed lands. [FN7] Walker Lands also claimed ownership of the disputed lands. FN7. The East Carroll Parish Police Jury was later dismissed from the lawsuit. *2 On appeal, the Louisiana Second Circuit Court of Appeal ("Second Circuit") affirmed the trial court's findings that Gassoway Lake was formed when the Mississippi River first moved westward in the 1860's and 1870's and then slowly moved back eastward forming Gassoway Lake in a shallow swale by 1894. Walker Lands, 871 So.2d at 1261-62. The court also concluded that, presently, the Mississippi River's ordinary low water mark is 77 feet and its ordinary high water mark is 112 feet at the area in question. [FN8] Id. at 1262. In addition, the court found that Gassoway Lake and surrounding property "only receives water when the Mississippi River floods, which causes water to run through the ditch and eventually [spill] over into the lake." Id. FN8. Magistrate Judge Kirk noted that Gassoway Lake's normal elevation is approximately 95 feet. [Doc. No. 82, p. 7]. The Second Circuit did not accept the State's argument that Gassoway Lake and the drainage ditch are navigable. The Second Circuit concluded that Gassoway Lake and the surrounding land are located approximately three and a half miles west of the Mississippi River, the property remains "completely dry for most of the year, making it unusable," and the property serves no useful commercial purpose. Id. at 1265-66. Ultimately, the Second Circuit held that Walker Lands owns Gassoway Lake, the drainage ditch, and other surrounding lands adjacent to the Mississippi River because the property is not "navigable in fact; and, thus, not navigable in law ." Id. at 1262. [FN9] FN9. The state court decision in Walker Lands became final after the Louisiana State Supreme Court denied writ on June 3, 2005, and a motion for rehearing on November 28, 2005. See Walker Lands, Inc. v. East Carroll Parish Police Jury, 903 So.2d 442 (La.2005) and Walker Lands, Inc. v. East Carroll Parish Police Jury, 916 So.2d 127 (La.2005). B. Second Report and Recommendation Following the Second Circuit's decision, this Court re-opened these proceedings. In the Plaintiffs' motion for partial summary judgment, they argue that Sheriff Shumate lacks probable cause to arrest them for trespass under La.Rev.Stat. § 14:63 while they are on the waters of the Mississippi River when those waters cover Walker Cottonwood Farms' property. The Plaintiffs also seek a declaration that Sheriff Shumate lacks sufficient evidence to support a verdict of guilty beyond a reasonable doubt that the Plaintiffs are guilty of trespass. Additionally, the Plaintiffs seek a permanent injunction against Sheriff Shumate, enjoining him from arresting the Plaintiffs and other persons for trespass on the lands of Walker Cottonwood Farms when the waters of the river cover that property. In Sheriff Shumate's cross-motion for summary judgment, he asks that the Plaintiffs' claims be dismissed and asserts the defense of qualified immunity. In the Second Report and Recommendation, Magistrate Judge Kirk found that the Plaintiffs have both a federal common law right and a state law right to fish and hunt on the Mississippi River between the ordinary high and low water mark regardless of the status of the ownership of the property located below the waters. [FN10] FN10. Federal law defines high water mark differently than state law. See 33 C.F.R. § 329.11. The different definitions, however, do not substantively change the Court's analysis. Applying federal law, Magistrate Judge Kirk first found that neither 33 U.S.C. § 10 nor the federal navigational servitude provides the Plaintiffs with the right to fish and hunt on the Mississippi River. However, Magistrate Judge Kirk did find that the Plaintiffs have a federal common law right of navigation "which includes the right to reasonably use the Mississippi's waters for the purposes, among other things, of navigation including travel and transportation, commerce, boating, sailing, and fishing and hunting from boats," up to the ordinary high water mark, regardless of who owns the land beneath the waters. [Doc. No. 82, p. 14]. *3 Applying state law, Magistrate Judge Kirk also found that the Plaintiffs have a right to fish and hunt on the Mississippi River up to the ordinary high water mark, when the waters cover privately owned banks of the Mississippi River. Based on these conclusions, Magistrate Judge Kirk then determined that Sheriff Shumate did not have probable cause to arrest the Plaintiffs under La.Rev.Stat. 14:63 for trespass on Walker Cottonwood Farms' property when it is covered by the Mississippi River between the ordinary high and low water mark. II. LAW AND ANALYSIS The Court reviews de novo a magistrate judge's report and recommendation if a party files specific, written objections within ten days of service. 28 U.S.C. § 636((1). In the present case, both parties timely filed objections [Doc. Nos. 91 and 95] to the Magistrate Judge's Report and Recommendation, thus warranting de novo review by the Court. First, for the reasons stated in Magistrate Judge Kirk's Second Report and Recommendation, the Court ADOPTS his recommendation to the extent that 33 U.S.C. § 10 and the federal navigational servitude do not provide the Plaintiffs with the right to fish and hunt on the Mississippi River. However, for the reasons discussed below, the Court DECLINES TO ADOPT Magistrate Judge Kirk's recommendation that the Plaintiffs have a federal common law right to fish and hunt on the Mississippi River, up to the high water mark, when it floods privately owned land. Second, the Court also ADOPTS Magistrate Judge Kirk's recommendation to the extent that Walker Cottonwood Farms' property is a bank of the Mississippi River and subject to public use up to the ordinary high water mark, as defined by Louisiana law. However, for the reasons discussed below, the Court DECLINES TO ADOPT his recommendation to the extent that he found the Plaintiffs have a right to fish and hunt on the Mississippi River up to the ordinary high water mark when it periodically floods Walker Cottonwood Farms' property. Third, the Court ADOPTS Magistrate Judge Kirk's recommendation to the extent that Sheriff Shumate is not entitled to qualified immunity. However, for the reasons discussed below, the Court DECLINES TO ADOPT Magistrate Judge Kirk's recommendation to the extent that Sheriff Shumate did not have probable cause to arrest the Plaintiffs under La.Rev.Stat. § 14:63 for trespass on Walker Cottonwood Farms' property when it is covered by the Mississippi River. The Court also ADOPTS Magistrate Judge Kirk's recommendation to the extent that the Plaintiffs are not entitled to an injunction against Sheriff Shumate enjoining him from enforcing Louisiana trespass laws. A. Federal Common Law Right Magistrate Judge Kirk found that a common law right of navigation exists on the Mississippi River, and that this right of navigation includes the right to fish and hunt up to the high water mark. In support of this conclusion, Magistrate Judge Kirk cited Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir.1931), for the general proposition that the public right of navigation "entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in common." Id. at 359. *4 The Court disagrees with Magistrate Judge Kirk's finding. Although the Fifth Circuit stated in Silver Springs that the public has a right to reasonably use navigable waters for "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire," the Fifth Circuit did not specifically find that the public has a federal common law right to fish or hunt on a navigable source of water. Therefore, the Court declines to interpret the Fifth Circuit's decision so broadly as to find that the Plaintiffs have a federal common law right to fish or hunt on a navigable water, such as the Mississippi River, when those waters periodically flood privately owned lands. B. State Law Right In Louisiana, "[t]he banks of navigable rivers or streams are private things that are subject to public use." La. Civ.Code art. 456. "The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water...." Id. Because Walker Cottonwood Farms' property is located between the ordinary high and low water mark established by the Second Circuit, Magistrate Judge Kirk found that it is a bank of the Mississippi River and subject to public use. Magistrate Judge Kirk stated that, "the right to use the river's waters includes the right to use the entirety of the waters, regardless [sic] the river's level or stage or how much of its bank it covers," up to the high water mark. [Doc. No. 82, pp. 20-21]. The Court agrees with Magistrate Judge Kirk's finding to the extent that Walker Cottonwood Farms' privately owned property is subject to public use because it is a bank of the Mississippi River. Such public use, however, is limited to activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce. The Court finds that fishing and hunting are not included in these rights. Comment ( to La. Civ.Code art. 456 states, in pertinent part: ( Article 455(1) of the Louisiana Civil Code of 1870 declares that "everyone has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like". According to well-settled Louisiana jurisprudence, which continues to be relevant, the servitude of public use under this provision is not "for the use of the public at large for all purposes" but merely for purposes that are "incidental" to the navigable character of the stream and its enjoyment as an avenue of commerce. The Second Circuit and other Louisiana courts have interpreted La. Civ.Code art. 456 to exclude fishing and hunting from the type of public use permitted on flooded private property because these activities do not "meet the definition of using the bank of a river at its high water mark for a navigational purpose." See Walker Lands, 871 So.2d at 1268 n. 16 (citing State v. Barras, 615 So .2d 285 (La.1993) and Warner v. Clarke, 232 So.2d 99 (La.App.2d Cir.1970)); see also Buckskin Hunting Club v. Bayard, 03-1428 (La.App. 3 Cir. 3/3/04); 868 So.2d 266, 273 (using the banks along navigable rivers is "limited to navigation and not hunting."); Edmiston v. Wood, 566 So.2d 673, 675-76 (La.App.2d Cir.1990) (fishing and hunting in a boat over flooded private property are not incidental to navigable character of the stream and its enjoyment as an avenue of commerce). *5 Therefore, this Court concludes that the Plaintiffs' activities, to the extent they include fishing and hunting, are not permitted on Walker Cottonwood Farms' property, because these activities are not "incidental to the navigable character of the [river] and its enjoyment as an avenue of commerce." La. Civ.Code art. 456 cmt. (. C. 42 U.S.C. § 1983 and probable cause A police officer may arrest a person if the officer has probable cause to believe that person committed a crime. Tennessee v. Garner, 471 U.S. 1, 7 (1985); see also La.Code Crim. Proc. art. 213. [FN11] The United States Supreme Court has explained that "probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). FN11. The constitutional torts of false arrest, unreasonable seizure, and false imprisonment also require a showing of no probable cause. See Brown v. Lyford, 243 F.3d 185, 189 (5th Cir .2001). Louisiana courts have explained probable cause as the following: Probable cause to arrest exists when the facts and circumstances within the officer's knowledge are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.... The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very name implies, deals with probabilities.... The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the available evidence supports a reasonable belief that the person to be arrested has committed a crime.... The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Simms, 571 So.2d 145, 148-49 (La.1990). Magistrate Judge Kirk found that Sheriff Shumate arrested the Plaintiffs for trespassing without probable cause "because the sheriff should have known that the plaintiffs were legally authorized to be upon the waters." [Doc. No. 82, p. 28]. The Court disagrees with Magistrate Judge Kirk's finding. As discussed above, the Second Circuit, La. Civ.Code art. 456, and Louisiana jurisprudence have not allowed fishing or hunting on privately owned banks of navigable waters because these activities are not incidental to the navigable character of the stream and its enjoyment as an avenue of commerce. Therefore, the Court concludes that Sheriff Shumate had probable cause to arrest the Plaintiffs for trespassing in violation of La.Rev.Stat. 14:63. III. CONCLUSION Based on the foregoing, the Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the findings and conclusions set forth in the Magistrate Judge's Second Report and Recommendation [Doc. No. 82]. *6 The Court ADOPTS the Magistrate Judge's recommendation to the extent 33 U.S.C. § 10 and the federal navigational servitude do not provide the Plaintiffs with the right to fish and hunt on the Mississippi River. The Court also ADOPTS the Magistrate Judge's recommendation to the extent that Walker Cottonwood Farms' property is a bank of the Mississippi River. The Court also ADOPTS the Magistrate Judge's recommendation to the extent that Sheriff Shumate is not entitled to qualified immunity and the Plaintiffs are not entitled to an injunction against Sheriff Shumate enjoining him from enforcing Louisiana trespass laws. To the extent that Magistrate Judge Kirk found a federal common law right to fish and hunt over the privately owned lands of Walker Cottonwood Farms property when it is periodically flooded by the Mississippi River, the Court DECLINES TO ADOPT the Magistrate Judge's recommendation. Also, to the extent that Magistrate Judge Kirk found that the Plaintiffs have a state law right to fish and hunt on Walker Cottonwood Farms' property, when it periodically floods from waters of the Mississippi River, the Court DECLINES TO ADOPT the recommendation, and the Plaintiffs' motion for partial summary judgment is DENIED. To the extent Magistrate Judge Kirk found that Sheriff Shumate lacks probable cause to arrest the Plaintiffs for trespass in violation of La.Rev.Stat. 14:63 for fishing and hunting on privately owned banks of the Mississippi River, the Court DECLINES TO ADOPT the Magistrate Judge's recommendation, and Sheriff Shumate's cross-motion for summary judgment is GRANTED.

You most likely won't see the decision regarding this case. It is only the district court. Almost all published decisions are appellate court cases. I looked all over the Louisiana gov't website, MRAA website and various internet searches and found nothing. I'll keep looking though. Mizzouflyfisher

Does anybody know where I can get some boots re-felted. I know I can do it myself, but I haven't been pleased with the quality of felt that I can buy. I've got 2 pairs of identical boots, 1 is brand new and the other is a couple of years old, but in excellent shape except for the felt. I would have refelted the old pair, but the felt fell apart when I was in Alaska, and I didn't really have time. Plus, they are a slightly different size, so one pair will be my winter pair with an extra layer of socks. Let me know. Mizzouflyfisher

Looking more than 50 years in the future, we're going to have to do a lot better at managing our resources and cleaning/protecting the environment. Even in 20 years we won't even be fishing anymore, we'll be using virtual reality to simulate the outdoors. The threat of stream contamination is much greater than the threat of mono or flouro piling up. I just hope the streams I love today are in the same condition 50 years from now. Mizzouflyfisher

Well, the alternative is mono, and the I don't know that you will be helping the environment by switching to mono. I imagine the amount of time it takes to decompose is not all that much different (we're still talking hundreds of years). If we want to save the rivers, keep using fluoro, but we need to pick up all the trash along the rivers. Mizzouflyfisher

I think you get some fish that have slower growth rates and some fish that are just old. You can really tell at the trout parks when they release the old fish that were used as brood stock-their bodies are totally out of proportion. I don't know a lot about trout metabolism or growth rates, but I'm sure they differ. Just a couple of thoughts. Mizzouflyfisher

I always attach fluoro to mono that is 2 sizes larger. That prevents the cutting for the most part. It's probably only an issue when you are using light tippets, say 6x or 7x. I usually buy 9 ft. 4x or 5x leaders and then add 2-3 ft of tippet. Rarely do I ever fish a leader in MO without adding tippet. Mizzouflyfisher

My uncle dove the spring on New Year's Day a few years ago. Said it was pretty cool. They had trout eating cheese paste off of their face masks. As for winter C&R, definately the best time down. I've had some awesome days fishing dries, and the size of the fish is typically much better. Caught my biggest rainbow ever (28") a couple weeks into C&R a few years ago. Mizzouflyfisher

The disdain we carry for gut imitations down here would probably be laughed at in Alaska. People spend 2 months fishing nothing but flesh flies. And then when the flesh gets really rank, some people fish maggot imitations. A large percentage of the monster rainbows caught every year are caught on rabbit strip flesh flies. It does kind of bother me down here though when I see a person fishing his buddies guts while they are still cleaning fish. Mizzouflyfisher

Well, I've been back from Alaska for a few days. Man does Missouri suck in comparison. Anyway, finished the trip with a halibut charter (caught a 90 pounder) and a couple of days on the Russian River and a small creek nearby. Caught several bows in the 20" class, nothing huge and was within 20 ft. of a bear before I saw it. The secret creek was the last piece of water I fished. Thought the day was going to be a bust, but I finally unlocked the secret. Ended up catching 18 or so Dolly Varden in 2 hours, 6 of them were over 20 inches. Truly beautiful fish. Lost one that was in the 25" class. Caught a 20" incher and called it a trip. All in all it was an awesome trip, weather was great, caught some nice fish (my 30 incher eluded me), and saw around 18 bears Wish I could have stayed for a another 2 weeks because the fishing was really picking up. But I had no control over that. I'll post some pictures after I get them developed. I'm already in fishing withdrawal so I think I'll head down to the Current later this week. Mizzouflyfisher