Louisianna Game WardensClean House on Chotard and Albermarle

[Jelly]

Po Monkey Lounger,

If you in fact wrote this, you should publish it, especially the 4th paragraph. This is by far the best explanation/argument I have ever read regarding this issue.

I agree, well said Po Monk. That law school degree paid off huh?

[Po Monkey Lounger]

Jelly, my law school curriculum included nothing on public water law. I obtained that knowledge in the heat of legal battle.

Rob has done a fine job outlining MS state law regarding public waters in the stickied thread re Oxbows, etc.

I am not familiar with LA state law re public waters, rights of public, etc., other than what was referenced in that 5th Cir. opinion.

I would predict that the 5th Cir. ruling will be appealed to the US Supreme Court. Limiting federal law's applicability to only navigation on the MS River is a departure from previously thought established law and needlessly narrow. One should be able to have consistent laws of usage from one end of the MS River to the other, regardless of what state one is in.

BTW, the Dycus opinion referenced in the thread re Oxbows, etc., is a good read ---a little lengthy and verbose, but good. It covers both MS state and federal law re the MS River and its waters.

[GulfCoast]

One wonders if this Supreme Court would grant cert. You would think it would be a no-brainer.

[muddinram2duck]

So for all of us stupid duck hunters, and for future fishing this spring, can we legally hunt/fish in navigable water of the MS River, remaining in our boats, launching at a public ramp?

[BR549]

Not but one problem with that Po monk The water far exceeds the natural high bank of the river way before flood stage. Flood stage by the definition of the corps is when most everything inside the levee is under water. The way I understand all the rulings is once you cross the NATURAL backs of any waterway you are SUBJECT to get a ticket for trespass. Im not saying you will but I do believe you could. I know my father fought long and hard for the navigation act in 1979 because of this very thing that happend in 1973 when people were stringing trotlines in peoples catfish ponds. They were saying it was "public" water. Yes it might have been public water but it was over the banks and covering private lands. Therefore it did not give them a right to utilize it. I remember Congressman Montgomery, Stennis I believe Sonny Merideth and one or two more got this pushed thru. My dad represented most of the farmers in the area that was affected.
But the question remains why would you want to hunt on someone else's property anyway? If it was your's you wouldn't want everyone telling you that you couldn't stop em now would you!

[Po Monkey Lounger]

BR549, I can appreciate what you are saying, and understand the emotions felt by some landowners who have endured some bad actions by a few bad eggs, but trust me, I can tell just as many horror stories from the other side of this long standing dispute between the public and landowners when it comes to our public rivers, streams, and waterways.

The bottom owners cannot be allowed to control the waters of the MS River or any other river. It is not only the law, but based out of practicality. The MS River, as well as other rivers and streams, has changed course many times over history (creating many oxbows, crevases, bayous, etc along the way). And when it does, new lands taken by the River/waterway, become the bottoms. And when that happens, such should not mean that the "new" bottom owner has the right to control access to and activities upon the river. Our nations rivers and streams belong to ALL of us.

If state law restricts the public access by saying one cannot hunt or fish in "floodwaters" that exceed the "natural banks" of a river or waterway, then state law should more accurately define these terms --- IMO. "Floodwater" to me, means just that ---water considered high enough to be at flood stage. And flood stage is something currently objectively measured by a government agency. If that is not or should not be the proper definition, then what should it be, and how will anyone know what exactly is "floodwater" and what is not? And where exactly are the natural banks of a river or waterway? I would say the point at which water becomes "floodwater" at flood stage. Others would limit it to the deepest part of any existing channel, which IMO would be waaaay too limited. For instance, if water in a river or waterway stays high enough to keep adjoining bottoms and trees underwater for most, if not all, of the year, then how could that area not be a part of the natural banks? Yet, I have seen landowners try to argue that such should not be included as part of a public waterway.

Yes, if I am on a river and am able to reach someone's flooded yard and house, then clearly I am in "floodwater" and I would not even think of hunting or fishing such. These types of extremes are NOT where most of the battles are being fought on this front. Where most of the controversies occur are in the river bottoms immediately adjacent to, and often within the "natural banks" of the river or waterway ---bottoms that are under water for most of the year, or used to be under water for most of the year until the COE dredged the river or waterway.

MS, like most states, has statutory law using these terms, but fails to define them in any meaningful, objective way, leaving it up to interpretation of the local courts, on a case by case basis, when considering the merits of trespass actions. Such is why it is very difficult to give out general advise to anyone on where they can or cannot hunt and fish within a river or public waterway. The old "you know it, when you see it" rule has no place in our jurisprudence, IMO. It simply begs controversy. These provisions were added to our public waterway laws at the insistence of landowners, with little if any public notice or attention, and with little to any thought being given to what they mean and how to uniformly enforce them. Bad laws yield bad results --for everyone.

[matt.courtney7]

my head hurts, but well said

[gunner]

It seems that if one had a survey completed at the time of one's initial purchase of the land, it should be understood that the landowner had exclusive hunting/fishing/cultivating rights to that land. They should not have exclusive "right -of-way" rights. wether the river shifts or not...

This would allow landowners to control access to their land other than right-of-way passengers/traffic.

I don't have a dog in this hunt. Just my opinion.

What happens if the river floods up to a landowners front porch? Should one be able to tie their boat to the porch and hunt. Heck no!! You may say that is not practical, but I've witnessed some idiots in the duck field that might would give it a shot.

[TWR]

This whole discussion misses the point. Crafty lawyers have diluted the real issue and have managed to put laws on the books to allow wealthy entities to legally embezzle public property between the mainline levees of the Mississippi River. You don’t have to dig very deep to expose the origins of this issue, i.e., Tara for example, being the most recent.

Thanks BR549 for the quintessential water trespass augment-- “fought long and hard for the navigation act in 1979 because of this very thing that happened in 1973 when people were stringing trotlines in people’s catfish ponds”. Unfortunately our public legal defense on this issue was either nonexistent or on the take. There is simply no reasonable way to compare the Mississippi River’s inner connected system of oxbows, sloughs, crevasses, etc., where the water typically fluctuates 30 or more feet every year, to its navigational landlocked counter parts. But when they are grouped together as the “same” then a valid case can be made as to why you better keep you’re booty out of Tara’s WATER (only to the ignorant of course, but hey, that’s reality).

Unfortunately another example of “He who has the gold makes the rules” and “He who makes the rules gets the gold”

IMHO, of course.