who knows the law?

[grnhead1]

no its not..

[LawDawg]

Is it an old river run? even 5000 years ago.

everything used to be a river run or an ocean. I like the way you think.

[Wingman]

well from what the public water sticky says the attorney general states that it is not legal for them to access my land because the water they are navigating has land under it that is privately owned and the access water must be flowing and a oxbow off of a river

Read it again.

[BR549]

If they know where the line is for sure? Yes you can smoke em! Do not do anything to hurt or even try to hurt them or their equipment though. You cannot place something in the water to try to tear up their stuff. That would be malistive mischief on your part and they could get you then. Federal law would take over here if nothing else. Federal Navigation Act of 1979 would apply.

[Wildfowler]

At some point I'm fearful that the Fed court ruling that occurred from a similar issue over in East Carroll Parish LA last year is going to trump the sticky notes at the top of this website.

viewtopic.php?f=1&t=46765

I'm not a lawyer, and I don't know/understand the process fully. I believe it will take someone actually getting arrested and subsequently fighting the arrest in court. In which case the federal ruling would be sited.

I don't happen to know if these sticky notes happen to represent the official law enforcement understanding of the MDWFP or not. I am very fearful that public waterway hunters/fishermen will not have the same open access on what's traditionally been considered public waterways in the near future. If that really happens, that'll be a sad day.

[Wingman]

I don't happen to know if these sticky notes happen to represent the official law enforcement understanding of the MDWFP or not.

I'll put it this way, the MDWFP lawyer read my latest article with all of that sticky info in it and told me it was the most complete set of info on the subject he'd seen. The current Chief of Enforcement and the last Chief have both agreed with the info in the sticky. If you will notice, some of the info in that sticky was sent from the AG to the Executive Director of the MDWFP. I have personally been instructed not to write a trespassing ticket on an oxbow lake unless it is obvious that trespassing occurred on dry land in order to get to the lake or unless someone has gotten on floodwater that is outside the banks of the waterway. Does this mean you will not be taken to court by a landowner? No. What it does mean is that if you are hunting/fishing/trapping on an oxbow/ public waterway, you should not have any trespass trouble with MDWFP if you don't trespass to get to the water and you stay inside the natural banks of the waterway.

The AG clearly stated in the info in the sticky that you CAN:
wade, tie off to a tree, touch vegetation, use public waters that lie over private lands.

Ultimately, it will take someone going to court on every single waterbody in order to have a ruling on every waterbody in dispute. So far, only a handful of cases on a handful of water bodies have been heard.

As for the original ?, I would say that if the waterbody in question is not an oxbow or a public waterway, then the neighbors don't have a right to cross property lines on the water. If it is an oxbow or public waterway, then they can cross the property lines as long as they don't get out on dry land or outside the natural bank on your side.

Let me point you to two articles that sum up the jibberish in that sticky on the general forum:

http://www.olemiss.edu/orgs/SGLC/MS-AL/ ... rtsman.htm

http://home.mdwfp.com/pdf/fisheries/pub ... rticle.pdf

[chevy01234]

Good Article Rob!

[Wildfowler]

I have personally been instructed not to write a trespassing ticket on an oxbow lake unless it is obvious that trespassing occurred on dry land in order to get to the lake or unless someone has gotten on floodwater that is outside the banks of the waterway.

That's what I was asking about, I was pretty sure that I had been told the same thing from the MDWFP law enforcement when I called in to ask about it.

Couldn't the county sheriff be called in to a hunting trespassing case that might otherwise be handled by the MDWFP? That's what happened in the LA arrests.

Regarding the AG opinions, these were given some time prior to the recent Fed court ruling? I wonder what the AG opinion might be now in light of these new court rulings?

Don't get me wrong, I am the biggest public waterway hunting advocate around. I'm just worried about this Fed court ruling one day coming up in a MS case. Eventually, someone is going to upset the wrong landowner who has enough money at stake to pursue all the way to the top.

If this is really not possible in MS, then I should have no worries about it. But right now, I still have worries.

[Wingman]

Couldn't the county sheriff be called in to a hunting trespassing case that might otherwise be handled by the MDWFP?

Yep. Or, the landowner could just sign an affidavit on you w/o the help of law enforcement.

Then you are in a battle of funds, trying to prove yourself legal while fighting with guys that usually have more money in their pocket than you will make in your lifetime.

I wish the Legislature would just print out a list of all public waters that don't fall under the DEQ's rules. Of course, that would also be a nightmare.

[GordonGekko]

Don't get me wrong, I am the biggest public waterway hunting advocate around. I'm just worried about this Fed court ruling one day coming up in a MS case. Eventually, someone is going to upset the wrong landowner who has enough money at stake to pursue all the way to the top.

If this is really not possible in MS, then I should have no worries about it. But right now, I still have worries.

Try to think of it this way: according to the East Carrol Parish ruling there is no federal right to access public waterways for hunting/fishing. Where there is no federal right, states may create a right as long as it conforms to the Constitution (there was no Constitutional issue in the ruling if I remember correctly). In Louisiana the state created a law that says there is no right to access public water above private land for hunting/fishing purposes. Mississippi however, adopted a law (51-1-4) that grants the right access public waterways for "fishing" and to "engage in water sports". In this area because there is no federal law the state law is the only one that matters. Yes, this creates some confusion and problems from people travelling from state to state. But, this is the way it stands.

Basically, Federal law (including the Constitution) only trumps State law where Federal law exists, and Federal law conflicts with State law. Here there is no Federal law. There is only a Statement from the Court that there is no Federal law which creates a Right (the East Carrol Parish holding). Because there is no Federal law there is no law to conflict with the State law. And without a conflict from Federal law the State law is presumptively valid.

[Po Monkey Lounger]

I'll put it this way, the MDWFP lawyer read my latest article with all of that sticky info in it and told me it was the most complete set of info on the subject he'd seen. The current Chief of Enforcement and the last Chief have both agreed with the info in the sticky.

And perhaps even more importantly, Rob's article received my blessing as well ---it is a very accurate and thorough summary of the law on this subject.

And I agree with Rob's assessment of the "sitiation" under discussion in this thread.

[grnhead1]

ok so let me see if im understanding this right.... they can put in a boat on the wma and come on my land and hunt even though its a slough not connected to a river or oxbow... the way ive always understood it to be is it had to be floodwater accessed from a river or oxbow to be able to hunt on private land...

[Wingman]

In no way, shape, form, or fashion am I trying to toot my horn about the article, but I started this job telling folks that oxbows were private. After hours and hours of research with some of the foremost authorities in the state on public water rights (Po Monkey, MDWFP officials, Josh at Ole Miss) and after reviewing pages of documents, opinions and court decisions, I put all of that stuff together and realized I had been wrong telling folks they couldn't hunt/fish oxbows. Little did I know that Dennis Riecke had already written an article about 5 years before that said almost exactly the same thing I discovered.

I don't know about your situation, grnhead1, I'd have to look at it on a map, aerial, or sat image to get a basic opinion of what type waterbody it is. I do know that we have WMA's on oxbow lakes and I've been told by the Chief of Enforcement and Chief of Wildlife that if one could access the water w/o trespassing, that one could use the entire lake.

However, my opinion and 1,000 other opinions won't necessarily keep you out of court and they won't help pay for your defense. It's just the base understanding and interpretation of the law. If anybody knows that money talks in court, it's Po Monkey. He dealt with the Scatters debacle long ago.

[deltadukman]

But you "could" be my expert witness, huh???

[macattack]

Good ol' Mississippi law 51-1-4; keeps the poor working man in the hunt.