Judge rules much of Mississippi River off limits to anglers

[CBrown]

Judge rules much of Mississippi River off-limits to anglers

By Andy Crawford
August 31, 2006
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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 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.



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[sunnylab]

i dont know if i exactly agree with this judge's decision, but when the water reaches certain levels the public can access alot of property that would otherwise be private. this is a major delimma when duck hunting. if i can ride a boat all the way up into the interior of your land, does that give me the right to hunt it? there is a fine line here that has not ever been addressed in an intelligent manner.

example; i have been in chotard lake and had some of willow point's employees run me out of the lake. they said that i had to be in the main body of the lake. i was within seeing distance of the main body and was by no means on the interior of their property. this is also another reason why i have only hunted chotard a handful of times.

on the other side of the coin, i have had people set up on the interior of MY property (within deeded acres according to legal description on file at courthouse in warren county, ms) to duck hunt. At certain levels they can access the property with no problem via chotard lake. I have never ran anybody off because it is basically on the edge of my property and it doesn't bother anything other than some loud shotguns from time to time.

I WOULD have a problem, however, if they could venture further into the interior of my property. i would hate to see boats legally hunt in my front pasture in front of my house just because they could access it from the main body of ms river. This is a very complicated issue, and like i said earlier no one has made an attempt to come to an educated decision about the whole thing. Its basically an issue that only comes up when we have high water. When the water is down everybody tends to forget about it and drop the issue.

As far as I know, Walker property aka Cottonwood Farms has always had problems with duck hunters accessing the interior of their property from the ms river at high water stages. its not just the outer edges, they can go miles into the interior of the property. i personally see where this would cause a problem.

[Wingman]

Sounds to me like these guys might have been out of the river channel and hunting flooded property next to the river.

[rjohnson]

I can understand people getting ticked over river hunters floating in their property with the rising water but isn't that just a chance you take when you lease/own that close to the river. How long do the flood waters actually make this a situation?

[MudHog]

I can understand people getting ticked over river hunters floating in their property with the rising water but isn't that just a chance you take when you lease/own that close to the river. How long do the flood waters actually make this a situation?

This is the point I would try to make too. Land if this nature is a flood basin. This is an on-going issue here in LA where oil companies try to close down their canals by saying they are private canals. Their canals are effected by tidal waters which is public waters. IMO, the only thing they own is the actual ground or property beneath the water. Now I say if they have a floodgate that is controlling the water flow, then yeah I would take that as private land/pond, but if nature and nature only is controlling everything, then the water to me is public when it's there.

[crow]

So, when the Sunflower floods, I can hunt the big field right across the river at the Dummy Line landing? Yeah...right!

I thought that had been settled. Wasn't there something about the law making it legal only to the normal "normal" bank of the river?

crow

[sunnylab]

You have to put yourself in the landowner's shoes. if you have a slough that is accessible from the ms river that goes into the interior of your property for more than a mile this does two things. it not only gives the public access to duck hunt the water, but it gives the public access to the interior of your property and all the game within. What these landowners are concerned with are the people who take advantage of other game that they may encounter such as deer, squirrel, turkey, etc.

The land being situated in the river basin has nothing to do with the ethical issue of where to hunt. I know that willow point has seen boats running full speed in front of their old north willow point lodge (before they sold it) jump shooting ducks at high water stages. This my friends constitutes the PROBLEM that has arisen from this. Ethically that is too far into the interior of the property to be considered PUBLIC. I mean at certain stages you could anchor and throw decoys out from within shooting distance of people's cabins and/or homes.

Like I said, I am not against the public having access to water, but try to make a conscious decision on what is too far into the interior of ones property. This is a complicated issue that will be disputed from now on. It is way too complicated for anyone with "law making power" to give a fair solution for both parties.

[Grommet]

I have asked this same question many times and the answer that I get most often is that you may access any land that is accessable via the Mississippi at normal water levels. Once the water is over flood stage (the level varies with where along the river you are) that additional water is not accessable to the public.

In summary if you don't like the courts decision get a faster boat.

[rjohnson]

In summary if you don't like the courts decision get a faster boat.

Back to my question how many days does the flood water cause this to be a problem on average per heavy rain? I'd say it would be a great risk since flood waters can recede pretty quick. You might just get stuck in someone's slough during the 6 plus hours you're there especially if it was hard getting in there in the first place.

[torch]

You can't hunt any property that is outside the natural banks of the MS. Any sand bar that is inside the natural banks you can hunt. But when high water floods hunting clubs and farm land you can't hunt it.


I would love to hunt Miller Point and Concordia Rod & Gun when the water gets up but I know better.

[Grommet]

You can't hunt any property that is outside the natural banks of the MS. Any sand bar that is inside the natural banks you can hunt. But when high water floods hunting clubs and farm land you can't hunt it.


I would love to hunt Miller Point and Concordia Rod & Gun when the water gets up but I know better.

Not trying to get into semantics here but what you call natural banks are not natural banks at all they are man made levees hence the reason for all the arguement. The Mississippi's natural banks are where ever it wants to go and historically that is quite broad. I don't think that it is a problem except when people push it to the limit. Like when they go a couple of miles up a tributary that is not navigable unless the river is above flood stage and over what is for the majority of the year terra firma. The problem is that the judges ruling is to broad. Many property discriptions in the state of Mississippi and Louisiana along the river include in there description to the waters edge. Well this varies. Over the years some landowners benefited from the levees while some lost land with the addition of the levees. But if a landowner ownes land to the waters edge then so be it but he should not have it both ways. Is he tresspassing on government property at a low water stage when he rides his four wheeler out to the sandbar I don't think so it's his property right. So why should someone be tresspassing on private land if it has been taken by the river.

I have had to deal with people hunting on my land due to high water in the past. Yes it pissed me off. But I don't think what they did was illegal or that it should be illegal. If you live along the Mississippi river there are things that you can't control and you just have to accept that. The river is the first and the people hunting on the river is the other.

[BIG TIMBER]

Well said Grommet!! I agree with you 100%. If you don't like people hunting "your" flood waters, then you need to get in a new camp away from the Mississippi River because that is why she floods the way she does!!

[torch]

The natural banks are flood stage. Which at Ark city is 34ft. They changed the law a few years back and if you get outside the natural banks then your tresspassing. Grommet if you have people hunting your property because of high water you need to call the GW. You can do something about it because they are tresspassing. I found out the hard way. I always thought if you could get there by boat and not get out of your boat then you were ok.

[Grommet]

Torch I was being a smart ass when I said that about the banks. I know what you mean. But if you have spent much time along the Mississippi river you know that those banks are not always visiable at levels below flood stage. There are many areas along the river that flood long before the river jumps its banks or reaches the so called flood stage. Water in these areas backs up creeks and streams that flow into the river and they flood vast amounts of land long before the river ever jumps the banks you speak of. In the past these areas have always been legal to hunt because they fell into the boundaries of the previous interpretation of the law that what ever water was navigable before flood stage was normal river water. What ever the water level was above the flood stage was illegal. This new interpretation seems to dispell that notion. So does that mean that every public body of water (attached to the main channel) that was created by a spur levee (what we call the old rivers) but is off the main chanel and inside the "natural levee" but not the man made levee is now the property of the adjoining land owners for there private use and no long public water.

That sure is a scary idea to me. But then again I don't like the idea of a levee system at all so to each his own.

[Jelly]

It seeems like it means you can hunt anywhere as long as it's not at flood stage. Once it hits flood stage, that's where you run into trouble. I guess the question is, "could you have hunted this spot should the water been below flood stage?"