Legal or not?

[SilverMallard]

Bottom line is that riparian and littoral rights law is a very fluid subject.

[Don Allenbaugh]

The following is from the Lousiana sportsman:

Judge rules much of Mississippi River off-limits to anglers

By Andy Crawford

August 31, 2006

Print

Email to Friend

The right of outdoorsmen to fish and hunt on navigable waters was issued a stunning defeat Aug. 29 when a federal judge ruled that the public has no “right to fish and hunt on the Mississippi River.”

U.S. District Court Judge Robert G. James ignored recommendations from his own magistrate in ruling in a case pitting a group of anglers against East Carroll Parish Sheriff Mark Shumate over the legality of trespassing arrests stemming from their fishing on Mississippi River flood waters in Northeast Louisiana.

“This is gigantic,” said Mark Hilzim, president of Restore Our Waterway Access, Inc. “He has opened up Pandora’s box. If I read that (ruling) right, does that mean nobody has the right to fish above the low-water mark?

“Every fisherman in the country needs to pay attention to this.”

U.S. Magistrate James Kirk had earlier this year recommended that the arrests of the anglers involved in the case be thrown out. James requested the recommendation.

“(T)he sheriff did not have probable cause to arrest the plaintiffs because the sheriff should have known that the plaintiffs were legally authorized to be upon the waters,” Kirk wrote in April. “The sheriff was required to know that the Mississippi River is a navigable river and that federal and state law … has long recognized that the public has a right to use those waters to their full extent.

“Because the arrests were without probable cause to believe an offense had been committed, the sheriff violated the Fourth Amendment rights of the plaintiffs and is answerable to them for any damages they have sustained.”

Kirk admitted in his ruling that federal law (U.S. Code 33, Chapter 1, Section 10) doesn’t explicitly provide for the right to recreationally hunt and fish, but cited Congressional acts in 1811 and 1812 to back up his final recommendation.

“A condition of its admission (to the Union) was that the Mississippi River and all navigable rivers and waters leading into it ‘shall be common highways and forever free,’” he wrote. “This court takes judicial notice that the Mississippi River was navigable in 1812 and remains so today.”

However, James came to the opposite conclusion, hanging his hat on Kirk’s admission that U.S. Code 33 doesn’t actually mention hunting or fishing.

“(T)he court adopts (Kirk’s) recommendation to the extent that 33 U.S.C. (Chapter) 10 and the federal navigational servitude do not provide the plaintiffs with the right to fish and hunt on the Mississippi River,” James wrote in his ruling. “However, … the court denies 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.”

In seeming contradiction, however, James also ruled that the “Walker Cottonwood Farms’ property (where the arrests were made) is a bank of the Mississippi River and subject to public use to the ordinary high-water mark, as defined by Louisiana law.”

But he then reversed course, ruling that the group of anglers did not “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.”

Hilzim said it appears that James issued a very narrow interpretation of the law.

“I’m not a lawyer … but the judge seems to be saying that the public has the right to navigate up to the high-water mark but not to fish,” Hilzim said. “The judge has basically said you can take your fast boat to the high-water mark, but you can’t fish.

“You and I can take our speed boat or pontoon boat and drive around all we want, but we can’t fish.”

Hilzim said the case is so sweeping that it could prohibit hunting and fishing on navigable waters across the country.

“This ruling has the potential to end fishing,” he said. “It can apply to rivers, streams, bayous. Is that what this guy is saying?

“This has a potentially profound effect on fishing.”

Hilzim had yet to speak with ROWA’s board, but he expected the case to continue.

“My gauge of the organization is that we will do whatever it takes to see this litigation to its conclusion, and if that fails, work with any interested parties to get the law changed,” Hilzim said.

To donate to ROWA’s efforts, contributions can be mailed to the organization at P.O. 1199, Boutte, LA 70039.

[SilverMallard]

So were they charged with fishing illegally or with trespassing? The ruling said they had a right to be there. So, if they were charged with trespassing, this is a victory. The ruling only said there is no right to FISH expressed in the law. Many states have Constitutional amendments guaranteeing the right to hunt and fish. As common as these past-times are in the Sportsman's Paradise state, I guess they never thought such an amendment would be necessary. Now, if they got out of the boat and stood on flooded private ground, as I understand the law they would be trespassing. But there certainly is no law in LA that says a guy who has a right to be floating in his boat where he is cannot also fish there. This much I do know.

[Crippled Caddis]

Don wrote:

<The following is from the Lousiana sportsman:>

Thanks Don. I'm sure that is the case Terry referenced above. It is instructional insofar as it illustrates the vagueness of both the existing body of law and the contradictory decisions of the two judges in the case. Not only did they contradict each other but they both contradicted themselves in various aspects of the case. This is the true level of the application of navigability law in the country. As such it should be a warning to anyone that getting involved in any manner in a dispute concerning public access rights to waters on private property falls well within the lose/lose category. It is also illustrative that the entire reason for waterways being deemed public property lies in the phrase, "shall be common highways and forever free", under which provision Mississippi was admitted to the union. Were that test administered to current reality I think it would fail. While waterways were indeed used as public routes of commerce in an earlier era few today serve that purpose and those that do aren't the ones that sportsmen and recreational floaters use to any great extent. From that standpoint I'm not at all certain that we, as sportsmen, would be well served by a definitive court decision that took current public needs into consideration. It may well be that we should be glad that the older law is still honored in most cases and that we will be better served by not 'rocking the boat'. CC

[Terry Beeson]

To open the can of worms a bit wider Texas grandfathers Spanish Land Grant properties that are still in the original family. That means that the property owner through whose Land Grant the river flows owns the river in its entirety. State or federal navigability laws do NOT apply. While I don't KNOW it to be the case I would suspect the same may well apply in N.M., Ariz., & Calif. as well.

Hmmmm... I wonder if that is the case in Arkansas? I own the Land Grant property my GGGGF acquired in 1862...

[SilverMallard]

Hmmmm... I wonder if that is the case in Arkansas? I own the Land Grant property my GGGGF acquired in 1862...

From the SPANISH?

[Crippled Caddis]

Terry wrote:

<Hmmmm... I wonder if that is the case in Arkansas? I own the Land Grant property my GGGGF acquired in 1862...>

Highly doubtful. The provisions for admission were quite common and waterways were the public thoroughfares of both commerce and private travel. Now, had it been in the family since it was Spanish-----;o)

[jdmidwest]

Beeson opened up another issue with the flood waters. Missouri has the law that allows you to hunt or fish up to land on a neighboring state as long as you entered the water on the Missouri side. I personally duck hunt flood waters when streams overflow and have been under the impression that this is safe. As long as I don't enter a refuge, I'm safe. I have even been told by MDC personnel that I can float and hunt a flood control ditch as long as I don't touch foot on the private property or chase a cripple on the private land. I did not test this, but was told this. Mississippi floodwaters and other rivers in SEMO when in flood stage have always been considered fair game. I have always fished and hunted floodwaters in the Wappapello backwaters but they are controlled by the Corps of Eng.

Also, the waters of the state rule in the conservation code makes public all waters that the State of Missouri stocks, trout, bass, walleye or pond fish. The landowner controls the public access to their ponds but the fish are subject to a statewide limit. A landowner who owns a state stocked pond can't take more than a state limit of the fish per day and they have to meet the size regs for the species. Who controls access to state stocked streams?

[porter57]

just to lighten it up a little,heres what one no trespassing sign said on coffen lake in illinois.

NO TRESPASSING!!!

VIOLATORS WILL BE OPPOSSUMSCREWED!

im not kidding!