Judge rules much of Mississippi River off limits to anglers

[grik]

Well, i am an attorney(but don't hold that against me) and i actually looked at this issue in detail several years ago . . . in regard to Mississippi law, I offer the following:

What are the permitted activities on navigable waterways? Without doubt the public has the right to travel upon a navigable waterway; in addition, Mississippi courts have consistently held that the public has the right to fish on public waterways. Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990). State law extends to the public the right to participate in "water sports" upon public waterways. Miss. Code Ann. Sec 51-1-4. The Attorney General has opined that the term "water sports" includes hunting. MS AG Op., Polles (December 6, 1993).



As for the floodwaters versus not floodwaters, I dealt with a different issue . . . the McIntyre Scatters . . . i can tell you it was not cut and dry . . . in regard to public access the law, in part, depends on which state you are in (Mississippi is different from Louisianna which is different from Arkansas). Wingman is right in regard to 51-1-4 . . . what the Mississippi Commission on Environmental Quality said (this is the Mississippi entity that sets the boundaries for public water bodies) was that areas outside the channel in McIntrye were not a public water body . . . now that doesn't mean the public can't hunt outside the channel -- you could still do so if the public had acquired the "right" through prescription (akin to adverse possession).
In regard to floodwaters, the statute says you can't "go on or across any adjacent lands of floodwaters beyond the natural banks of the bed of the public waterway."

For the Mississippi River and all the oxbows, the law gets even more complicated -- the Equal Footings Doctrine comes into play and, in general, it says if what is an oxbow now was part of the river in the past then its a public water . . . but you can't trespass to get to it. Like, I said, its complicated. Sorry, for the long post, but I've always thought this was an interesting issue.


The riparian landowner owns the land beneath the stream to the "thread of the current of the stream, assumed in the absence of other proof to be the center line of the stream" Anderson Tully Co. v. Tingle, 166 F.2d 224, 227 (5th Cir. 1948). Note, however, that the owners of the beds and bottoms of navigable freshwaters have no right to exclude others from the waters' surface. Ryals v. Pigott, 580 So. 2d 1140, 1150 f. 19 (Miss. 1990).



What is the law regarding high and low water marks? The state holds title to all lands affected by the ebb and flow of the tide up to the mean high water mark. Cinque Bambini, 491 So. 2d at 514. Mississippi case law has not directly addressed the significance of high and low water marks in freshwater areas; however, a prior review of case law from other jurisdictions reveals that the mean high water mark has previously been used to determine the area of the waterway which is subject to public use. See United States v. Chicago, M., St. P & P.R. Co., 312 U.S. (1941)(entire bed of navigable watercourse between ordinary high-water marks is subject to dominant power of Congress); Tenn. & Coosa R.R. v. Danforth & Armstrong, 112 Ala. 80, 96 (1895)(public has right to use every part of a navigable river at "the ordinary stage of the water . . . whether there is any present or anticipated necessity for so using it").

[Jelly]

what

[teul2]

what

Here is all ya need to know.
Mississipps Code Ann. Sec 51-1-4 says that you he right to participate in "water sports" upon public waterways.

And, The Attorney General said that the term "water sports" includes hunting.

Hunting the rivers in MS is legal.

[Grommet]

girk you wanna go with me. I would love to have you in the boat when I get stopped.

[Deltamud77]

It boils down to you better stay within the banks of rivers (including the Mississippi, unless the river is high enough to connect to an oxbow) unless you know for certain that the land outside of the banks has been made public by adverse possession. The general statute of limitations is Mississippi is 10 years of occupany, etc...for adverse possession. Theoretically, it could be argued an area would need to be flooded for 10 years continuously for the prescriptive or adverse possession to shift to the public.

The business about the landowner owning his land to the center of the stream or river means that if the river is down, he owns, controls and can exclude those on the riparian dirt. When the river or stream is up, he can exlude access to the banks of said river or stream or as far down as to the water.

In short, stay within the banks when the river is out of the banks and when the water is within the top off banks, stay in the water.

Also, if you know of a big oxbow say 1/2 mile from the river and the river never floods into said oxbow, you could parachute or seaplane your way into oxbow, as it is public water.

[grik]

Always looking for a new place to go I doubt I would do you much good though . . . for some reason, people act funny when they think you are hunting in their duck hole I may could convince the Judge but not the landowner or the gamewarden

[teul2]

I may could convince the Judge but not the landowner or the gamewarden

Thats the whole point, you have to get your self out of it, so ya may as well get him out while your at it.

[grik]

For the right price, I'll be glad to try to get as many of you out of it as need be Seriously, though, what the others above have said is pretty much the rule I would follow -- stay within the banks and you should be fine

[chadrideduck]

Great post grik. No one has argued that the MS River was public or private. It is a publically accessed and navigable river. The floodwater, if and when it floods, is the issue. Hunt the river all you want, just don't come on other people's property if it ever floods. Leave hunting "their property" to THEM when it is not flooded and when it is flooded, because it is still THEIR'S, even if it has flood water on it on the special occasions. The landowner, or lessee, owns the right to it when it is dry AND when it is under water at special times. BOTTOM LINE. END DISCUSSION.

[Po Monkey Lounger]

In addition to what grik posted (which I agree with BTW as accurate statements of MS law), I cut and pasted the following that I posted in response to a friend who sent me a copy of that opinion a while back:

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I had seen this before, but had not taken the time to read it. Wow. This ruling will likely not survive an appeal to the 5th Circuit Court of Appeals, nor to the US Supreme Court (if it gets that far). Traditionally, and pursuant to federal and state laws, both statutory and embodied in agreements when each state received statehood, the free flowing navigable rivers and streams in the US were to be reserved for the public, in trust, for commercial and recreational use, with riparian landowners (owners of stream beds) having no rights to control the use of the surface water. While there have been fairly recent interpretations of state laws, etc. that limit the public use of such navigable waters when flooding occurs and adjoining private lands, not normally a part of the river bed, are covered in floodwater and become reachable from the river or stream, no court or governing body has ever gone as far as this federal District Court Judge in Monroe, La. Normal river levels, up to high water marks, have never been considered "floodwater" or essentially treated as such, until now.

Asking the public to be able to distinguish between the "main channel" of the river (using the MS River as an example) and unseparated "shallows" is absurd. What about the sand bars in the middle? Considering that the MS River often changes course over time, on its own, makes the ruling even more bizarre. Now, is it the main channel that used to be over there, or is it the main channel that now runs right over that farmland that used to be here, but is now 40 feet under water? What a mess.

IF (huge if) this opinion were to be upheld and become the law of the land, then what we would see in response would be state governments taking ownership of the bottoms of navigable rivers and streams through the use of eminent domain for the public use. It would be a legitimate taking IMO, with those landowners receiving fair market value. If the govt. owns the river bottoms and stream beds, then the public's right of use of the surface water could not be questioned. Maybe that is what needs to happen anyway to settle this ongoing dispute once and for all.

[chadrideduck]

In addition to what grik posted (which I agree with BTW as accurate statements of MS law), I cut and pasted the following that I posted in response to a friend who sent me a copy of that opinion a while back:

------------------------------------------------------------------------------------

I had seen this before, but had not taken the time to read it. Wow. This ruling will likely not survive an appeal to the 5th Circuit Court of Appeals, nor to the US Supreme Court (if it gets that far). Traditionally, and pursuant to federal and state laws, both statutory and embodied in agreements when each state received statehood, the free flowing navigable rivers and streams in the US were to be reserved for the public, in trust, for commercial and recreational use, with riparian landowners (owners of stream beds) having no rights to control the use of the surface water. While there have been fairly recent interpretations of state laws, etc. that limit the public use of such navigable waters when flooding occurs and adjoining private lands, not normally a part of the river bed, are covered in floodwater and become reachable from the river or stream, no court or governing body has ever gone as far as this federal District Court Judge in Monroe, La. Normal river levels, up to high water marks, have never been considered "floodwater" or essentially treated as such, until now.

Asking the public to be able to distinguish between the "main channel" of the river (using the MS River as an example) and unseparated "shallows" is absurd. What about the sand bars in the middle? Considering that the MS River often changes course over time, on its own, makes the ruling even more bizarre. Now, is it the main channel that used to be over there, or is it the main channel that now runs right over that farmland that used to be here, but is now 40 feet under water? What a mess.

IF (huge if) this opinion were to be upheld and become the law of the land, then what we would see in response would be state governments taking ownership of the bottoms of navigable rivers and streams through the use of eminent domain for the public use. It would be a legitimate taking IMO, with those landowners receiving fair market value. If the govt. owns the river bottoms and stream beds, then the public's right of use of the surface water could not be questioned. Maybe that is what needs to happen anyway to settle this ongoing dispute once and for all.

Great post........

[mudsucker]

Flood stage at V,Burg is 43ft. NOT 47ft.

[Dutch Dog]

Ok, in the picture below, the blue area represents where the river "normally" flows. The grey area shows the area between the normal area and a line that is representative of "flood stage" Now when this area is dry can you go deer hunting on it? I wouldn't think so, but I don't know. Is all this dependent upon being able to navigate the area by boat? What would make it different in a boat vs not in a boat? Stano and I have heard for years that "posted dry = posted wet" Where we hunt we usually don't have an issue with it...with the exception of one particular lake. Anyway I don't think we'd be hearing anything about this if it weren't that punk booty Wil Walker's place. He just seems to be a silver spooned spoiled rotten punk. (but that's my opinion) I do have to give credit where due though..that sum-beech can sure shoot a bow.

[TODO]

In the future it may change, but to my knowledge there has never been a problem in our neck of the woods about river hunting. If it will float the boat, and ark city is under 34 feet, its legal.

[sunnylab]

It doesn't matter whose PUNK A@@ place it is. Its about a bunch of people in judicial positions that cannot come up w/ a feasible law that will be fair to both the general public and the landowners.

Also this being a seasonal issue, the subject gets overlooked when we have years of low water. If you come to the edge of my place and try to duck hunt in navigatable waters I could care less. However if you came 2 miles inland through a chute that is only accessible in high water you can bet I will be there to confront you on the issue.

Basically there is NO law that makes sense regarding this and there prob never will be. So whoever has the time to run people off will do it, and whoever has the guts to go inland in high waters will do it.