Interesting case here...

Quote :

"In a rather bizarre ruling that has marine industry officials worried, Judge Robert G. James of the United States District Court, Western Division of Louisiana, has said that it is criminal trespass for the American boating public to boat, fish, or hunt on the Mississippi River and other navigable waters in the US. In the case of Normal Parm v. Sheriff Mark Shumate, James ruled that federal law grants exclusive and private control over the waters of the river, outside the main shipping channel, to riparian landowners. The shallows of the navigable waters are no longer open to the public. That, in effect, makes boating illegal across most of the country. "

http://www.ibinews.com/ibinews/newsdesk/20060814154923ibinews.html

A lawyer supporting sportsmen wrote this:

Quote :

". It is becoming a national test of the legal rights of the riparian owners to limit public’s use of the navigable waterway to the main channel, and then only for commercial use. This case has been ongoing for ten (10) years and is the culmination of the public access fight in the Gulf Coast area. We have asserted that navigable waters are useable across the entire surface of the navigable waterway. The riparian owners assert that the public is limited to the main channel."

This from a forum commentor:

Quote :

"Here are a few more facts of the case from another news report (http://www.thenewsstar.com/apps/pbcs.dll/article?AID=/20060914/OPINION01/609140319/1014): For a decade, area fishermen have been battling Walker Cottonwood Farms, LLC, formerly Walker Lands Inc., over the right to fish on Gassoway Lake, north of Lake Providence. Walker Farms is a large land corporation that operates a hunting and fishing camp on the lake and has denied nonmembers access to fish the lake because the land actually belongs to the company. Responding to complaints of trespassing, East Carroll Parish Sheriff Mark Shumate has arrested fishermen numerous times for fishing on the lake and other Mississippi River tributaries during periodic rise and fall of the river. This case stems from those arrests. Notice that it says they were fishing "during periodic rise and fall of the river." The fishermen only had access to the area when there was a flood and they could float their boats over to the old oxbow lake. I looked up te case and in the actual court opinion, which is Normal Parm, Jr. v. Mark W. Shumate, et al., No. 01-2624, W.D.LA (Aug. 29, 2006), the judge states the following when discussing the background of the case: The Second Circuit [Court of Louisiana] 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 I suspect the judge was just looking for a way to uphold the private property rights of Cottonwood. Whether he got there by the right route is questionable. What is giving people heartburn is the judge's statement as follows: 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. I wouldn't get too excited about this just yet. Remember, first this is a decision of a single District Ct., applied laws of the State where its located, and is subject to review by the 5th Circuit Court of Appeals (and it sounds like it is definitely being appealed). The decision may ultimately be overturned, and even if the 5th Circuit confirms his ruling, that does not make it the law anywhere outside of the Fifth circuit (Oklahoma is in the 10th Circuit). Other courts and circuits may decide similar cases differently. As I'm sure you know, this split between Circuit Courts is what ultimately causes some cases to end up at the U.S. Supreme Court. Secondly, cases are often ultimately held to apply only to their particular set of circumstances. In the decision, the judge repeatedly inserts phrases like "when it floods privately owned land." Thus it might be argued that what he really meant to say is that a common law right to hunt and fish on the Mississippi (or other navigable rivers) does exist everywhere except on flooded private land. It's worth watching how the caselaw develops, but I wouldn't sound the deathknell for public fishing in navigable waters just yet."

9/17/2006 11:58:19 PM

wouldn't you support this because you think the right to property is the most fundamental right?

after all, fishing and hunting on public property is tantamount to communism.

9/18/2006 1:31:26 AM

i like public/gov. property in many cases. it ensures we have nice parks to visit.

9/18/2006 1:48:24 AM

i like parks

9/18/2006 9:49:09 AM

parks are nice and cool


as far as I'm concerned waterways=highways

public domain


water on private land however is just that, private

[Edited on September 18, 2006 at 10:07 AM. Reason : .]

9/18/2006 10:07:24 AM

Of course property rights are fundamental, but in this case I disagree that the people own the waterway. Now we get to have legal wrangling over this for a decade or so before we decide how exactly we can settle this by declaring some/most waterways to be public property.

9/18/2006 10:10:53 AM

Quote :

"The Second Circuit [Court of Louisiana] did not accept the State's argument that Gassoway Lake and the drainage ditch are navigable."

Funny. In 1990 the US Fish and Wildlife agency declared marks left by a Utah rancher's tractor to be navigable waters and cited him for violating the Clean Water Act. He lost the use of his land and couldn't sell it. The definition of navigable waters seems to vary according to the needs of the gov't.

9/18/2006 10:36:22 AM

Quote :

"i like parks"

awww, I like you too Dentaldamn.

9/18/2006 11:26:14 AM

Most local districts require you to provide road access across your property if your property blocks a neighbor from accessing a road directly.

This does not give you the right to plant crops on said road, only to drive/walk on it.

9/18/2006 11:51:14 AM

Holy shit this is ridiculous. I lived right on the Roanoke River, but I never thought I had fucking claim on the section of the river out to the middle.

But on the other hand, I can see why these guys would get in trouble for going into this private lake. My boss owns a lake and sells access passes to it on his land. He doesn't owe anybody a road through his land to his lake since its his fucking lake. But to transpose that limitation onto open waters is fucking ridiculous.

Probably should use the standard levels of the river as a basis for access. Flooding is a special case. I mighta been able to fish in the Lowe's parking lot in Rocky Mount during Hurricane Floyd, but that doesn't mean its the norm.

9/18/2006 12:48:26 PM

^ yeah... flooding is a compeltely different ball of wax


depends on if it is navigable or not

if it is navigable your deed only reaches to the shore

if it is non navigable you have property rights to the centerline of the waterway

beaches and tidal affected waterways are different also

bodies of water affected by tides are considered public domain (owned by the govt) up to the high tide mark which after the high tide mark, it's deeded property to the owner

[Edited on September 18, 2006 at 1:17 PM. Reason : .]

9/18/2006 1:16:58 PM