ARREST THREAT FOR CHOTARD HUNTERS

[Kenny Boone]

East Carrol parish Sheriff deputies are parking in LA. They put in at Bunge in Transylvania,LA.

[Bates]

ATTORNEY GENERAL'S OFFICE
MIKE MOORE, ATTORNEY GENERAL
Re: Hunting on Navigable Public Waters Covering Private Lands

Dear Senator Huggins:

Your opinion request has been received by the Attorney General's Office and has been assigned to me for research and reply. Your request states:

There are certain lakes in my district that have public boat landings, though portions of the lands adjacent to and underlying these lakes are privately owned. Because a question has arisen regarding the right of the public to hunt on these waters, I hereby request an opinion from your office based on the facts and questions set out below.

For the purposes of your opinion, please assume that the waters of these lakes are navigable. Private owners have record title to the adjacent upland and to submerged lands underlying the lakes. The private owners deraign their title from persons who acquired these lands by patent from the sovereign. The private owners pay taxes on the submerged lands. There are points where the public can reach the waters of these lakes without trespassing. The private owners believe they have a right to exclude the public from hunting waterfowl on those portions of the lake overlying private lands. This would be consistent with the statute which provide[s] that "(i)t shall be unlawful to hunt, shoot, or trap or otherwise trespass on the lands or leases of another after having been warned not to do so, whether in person or by posting of suitable notice in conspicuous places on such lands." Miss. Code Ann. Section 49-7-79 (1972). Do the owners of private lands which are submerged under public waters have the exclusive right to hunt on these lands? Does Miss. Code Ann. Section 49-7-79 (1972) apply to lands that are submerged under public waters?

The general rule of law is that the public has no right to hunt on public waters where the land underneath those waters is privately owned. The more difficult question is whether or not Mississippi follows the general rule.

Miss. Code Ann. Section 51-1-4 (1972, amended April 8, 1994) provides in part:

Such portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports.

(Emphasis added). This Office has previously issued opinions to the effect that the term "water sports" includes hunting, and thus Section 51-1-4 gives the public a right to the use of public waterways for hunting. MS AG Op, Polles (Dec. 6, 1993); MS AG Op, Tucker (Dec. 3, 1976). We previously stated that floodwaters of public waterways were part of the public waterway. MS AG Op, Tucker (Dec. 3, 1976). However, in 1994 the legislature amended Section 51-1-4 to add the following provision:

[Nothing herein contained shall authorize any person utilizing said public waterways, under the authority granted hereby,] to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.

This language, of course, supersedes that part of our previous opinion respecting floodwaters of public waterways. It should be noted that Section 51-1-4 applies only to natural flowing streams. But while the statute is silent with respect to public lakes and certain other public bodies of water, nowhere does it state that public waterways as defined in Section 51-1-4 are the only public waters where the public can exercise the right to fish and engage in water sports. Although Mississippi follows the common law rule that riparian owners own the beds of navigable freshwaters to the center of the stream, see Ryals v. Pigott, 580 So. 2d 1140 (Miss. 1990), cert. denied 502 U.S. 940 (1991); Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990); Cinque Bambini Partnership v. State, 491 So. 2d 508 (Miss. 1986), aff'd sub nom. Phillips Petroleum Company v. Mississippi, 484 U.S. 469 (1988), navigable freshwaters have historically been available to the public for a variety of recreational uses. We find no distinction between public waterways and other public bodies of water when it comes to the public's right to hunt.

We therefore conclude that the public does have the right to hunt on navigable public waters covering private lands.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

Larry E. Clark Special Assistant Attorney General

[BR549]

Yall gonna keep on with this bullshot till somebody's gona get hurt down there. Once you cross the natural boundry of the lake you are trespassing. PERIOD! No if's and or but's about it. Flood stage has nothing to do with it never has. You gonna keep on till they will stop the huntin over there completely! Just like has been done all up and down that river. There are numerous place you can't hunt even though you can access them from the river. IF YOU OWNED THE PROPERTY YOU WOULD FEEL THE SAME WAY. They've been very nice about it in the past but don't push em they can and will stop all of us from hunting over there!

[pntailhntr]

Yall gonna keep on with this bullshot till somebody's gona get hurt down there. Once you cross the natural boundry of the lake you are trespassing. PERIOD! No if's and or but's about it. Flood stage has nothing to do with it never has. You gonna keep on till they will stop the huntin over there completely! Just like has been done all up and down that river. There are numerous place you can't hunt even though you can access them from the river. IF YOU OWNED THE PROPERTY YOU WOULD FEEL THE SAME WAY. They've been very nice about it in the past but don't push em they can and will stop all of us from hunting over there!

Can you not read what the attorney general said himself. You must be one of the land owners over there or something! All it will take is somebody getting a tresspassing ticket and challenging it. According to Steve Adcock with MDWFP, there is no way to truly find the state lines when it comes to the river and the Oxbows because of the ever changing river..

A LA sherriff deputy can't give you a ticket in MS, how does he know for sure, he is givin you a ticket in LA??? He can't. The only way to know that is to stay inside the banks of the river and not go into an oxbow, the state lines when it comes to oxbows is VERY distorted!! When it comes to over limits and things like that, game wardens can do that from either state. As long as you stay in your boat on Navigable waters, YOU ARE FINE!!!, Get out of your boat and your in trouble!!!!!

[Wildfowler]

ATTORNEY GENERAL'S OFFICE
MIKE MOORE, ATTORNEY GENERAL
Re: Hunting on Navigable Public Waters Covering Private Lands

Dear Senator Huggins:....

What was the date on this opinion?


Does this ruling apply to these waters too:

http://howappealing.law.com/ParmVsShumate.pdf

[DanP]

Once you cross the natural boundry of the lake you are trespassing. PERIOD!

Exactly right. but with the river at 25 ft the water level is not exceeding the "natural banks" of Chotard or Albermarle.

[pntailhntr]

Once you cross the natural boundry of the lake you are trespassing. PERIOD!

Exactly right. but with the river at 25 ft the water level is not exceeding the "natural banks" of Chotard or Albermarle.

EXACTLY!! You dont' exceed natural banks on Chotard till the river is at flood stage!!!

[manche]

For those who don't know it yet, this is just the start on the trespassing issue. On 28 Dec, the 5th Circuit Court of Appeals upheld a ruling made in LA courts re: navigability and the rights of the public. The gist of the case is that navigability, and therefore our right to hunt and fish, is limited only to the main channel of the river (all rivers, in fact). Oxbows, etc. belong to the riparian land owner. For now, I'm not sure this affects MS, but I expect they will jump on the bandwagon in the near future by getting the state legislators to declare these same waters as non-public.

Unfortunately, this case was not well publicized. A few heavy hitters, such as Illinois BASS, etc. entered the fray late. HOpefully this will go to the US Supreme Court, but it may be a long time coming. In the meantime, for those of us who hunt the river and its environs will be effectively shut out.

[BIG TIMBER]

River NOT AT FLOOD STAGE!!!

[DanP]

For those who don't know it yet, this is just the start on the trespassing issue. On 28 Dec, the 5th Circuit Court of Appeals upheld a ruling made in LA courts re: navigability and the rights of the public. The gist of the case is that navigability, and therefore our right to hunt and fish, is limited only to the main channel of the river (all rivers, in fact). Oxbows, etc. belong to the riparian land owner. For now, I'm not sure this affects MS, but I expect they will jump on the bandwagon in the near future by getting the state legislators to declare these same waters as non-public.

Unfortunately, this case was not well publicized. A few heavy hitters, such as Illinois BASS, etc. entered the fray late. HOpefully this will go to the US Supreme Court, but it may be a long time coming. In the meantime, for those of us who hunt the river and its environs will be effectively shut out.

Is there any published info with more details?

[manche]

DanP - You can go to http://www.ca5.uscourts.gov to download the complete opinion. Click on the opinions page, and then click on Parm vs Shumate, Docket #06-31045. For additional info, you can Google Normal Parm vs Sheriff Mark Shumate - this will get you to info on the original case, plus a letter from the lawyer handling the case, etc. If you need additional info, contact me by private email.

No one wants to hunt Tara or any other clubs legal lands. The problem is what is legally theirs and what legally belongs to the rest of the "unwashed" public. Until this decision, the public had every right to hunt up to the ordinary high water mark (on the Vicksburg gauge that equates to about 30'). This has a significant basis in case law, Federal and State law, Attorneys General opinions, etc. Most of this derives from the Commerce Clause of the Constitution and from the Public Trust Doctrine. For those of you who think this is a trivial issue or that it doesn't affect you, think again.

[manche]

To BR549 - The natural banks of the Mississippi River equate to the Ordinary High Water Mark, by Federal law. In the Vicksburg area, that is about 30' on the gauge. It will be different in other areas. I will be glad to provide you with the citations, if you would care to read them. On any stage up to 30', you can go where the water takes you.

[rollinthunder21]

i got a warning friday he told me if i was back saturday i was going to jail. i took my gps and went scouting found a spot in ms and didnt see him again

[pntailhntr]

i got a warning friday he told me if i was back saturday i was going to jail. i took my gps and went scouting found a spot in ms and didnt see him again

Somebody gonna need to do something. I guess it's going to take someone getting a ticket and challenging it. Any takers????

That is just a crock of chit!! Someone needs to ask these JERKS, how do they know for a FACT they are in LA and how in the hell can you be hunting flood waters when the river is NOT AT FLOOD STAGE!!!!!

[Wildfowler]

That is just a crock of chit!! Someone needs to ask these JERKS, how do they know for a FACT they are in LA and how in the hell can you be hunting flood waters when the river is NOT AT FLOOD STAGE!!!!!

I HAVE NEVER BEEN ANTI-LANDOWNER AND DON'T INTEND TO START NOW.

The problem is that unless you've got deep pockets, you'll may have a hard time defending yourself in a court of law. I wonder if there are any lawyers willing to help defend this for free?

I am perfectly willing to abide by the laws of our lands and waterways, even if that means what was once deemed public access becomes officially off limits the public access once and for all. I'm happy to hold onto my fondest memories of the past 30 years, if it comes down to it I am perfectly content to walk away from it and never go back. I would never cross what I beleive to be the property boundaries deliberately, and I would never be one to say "$u^k" Tara, or any other landowner. That's the wrong attitude and will certainly wind up making matters much worse that they already are.

If Tara or any other landowner is indeed paying taxes on lands that reach all the way out to the lowest low summertime pool levels of Chotard, then I don't feel like I should have any right to hunt, fish, waterski, or whatever over those lands.

However, if the property lines in question technically run to the edge of the "natural" banks of the lake, and water that lies between these natural banks is indeed accessable by the general public, then I think something needs to be done to identify exactly where those natural banks occur.

Having said that, it will probably take an official ruling on this body of water too before the sherriff is going to go away. Frankly, I'd like to see a ruling come soon to go ahead and get to the bottom of this. It's not just duck hunting. It's fishing, pleasure boating, etc.. This recent Gassoway lake ruling could litterally shut down ALL access to what's otherwise been considered public waterway access.

There is a group out of LA that is trying to defend access to what has always been considered public access. There is a call in radio show that can be heard here: http://www.moongriffon.com/ I don't know when their next broadcast will be. Supposed to be discussing this Gassoway case on the next broadcast. It would probably be well recieved if anyone who may have been involved in the Chotard situation would call in and share their story so that attention can get directed to this matter.

I think there may also be a way for the general consuming public to make a financial contribution to this group that has been defending what has commonly been considered public access. If anyone knows of this group, or how to contribute, any info would probably be a good idea.

I'm worried that this ruling could be a big deal, shutting down all public waterways for recreational use. I'll guess I could make my parents happy by finally developing a fondness for golf?