Old River

[Dennis Riecke FW15]

qckmstr39042,

Everyone gets confused on this issue ---- its not about land beneath the water but the water only. Someone has always owned the lands since the Indians lost them. No one can "adversely possess" from the state. If I am interpretating that concept correctly, then no one can take from the state what it owns, paying taxes on land under water does not mean you own the water. If I am wrong, let an attorney comment to enlighten us all. In Mississippi state law 51-1-4 states in part "Floodwater which has overflowed the banks of a public waterway is not part of the public waterway." So, unless an oxbow is connected to a public waterway at normal river levels (inside the natural banks) you cannot follow the water into the oxbow. You would be trespassing to get to the oxbow. Once you are in the oxbow, you are no longer trespassing.

[Wingman]

MDEQ decides if the water is a public waterway...I think their criteria is if the waterway maintains an average yearly flow of 100 cfs, then it's public.

If they list the Coldwater River as public, then they will tell you how far up the river that it is public. they will also tell you which other waterways are public that connect to it (and how far up those individual waterways that the public waterway extends, i.e. a road crossing or the confluence with another stream). Every creek, bayou and ditch that runs into a public waterway is not public.

What Dennis is talking about, is oxbow lakes or old river runs. The information I'm recieving is that if it was once the river, it's public. You can access this public oxbow only by a public waterway or public boat ramp, and not by trespassing across private land.

Where some people get into trouble is when they pull over on the roadside and launch a boat. If MDEQ has not deemed that roadside waterbody as a public waterway, then it's not public. Only public waterbodies listed by the MDEQ are public and you may only access them via a public boat ramp or by permission from a private landowner.

Clear as mud?

[tunica du4u]

Clear as mud?

you hit that on the head

this will take 12 Philadelphia lawyers & 6 Mound Bayou preachers to decipher but was interesting:

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

[Dennis Riecke FW15]

Wingman is totally correct. Now, there are public right-of-ways along public roads that I believe the public can use to legally access public waterways. The MDWFP has a Memorandum of Understanding with the Miss. Dept. of Transportation to lease those lands in order to construct boat ramps. Naturally, we don't have boat ramps on all public waterways but the public should keep in mind that they can legally access such waters along those public right-of-ways. The Miss. Dept. of Environmental Quality does have maps and a list that specifically show each section of public waterways in the State of Mississippi.

Good post by tunicaDU4U. We have another Attorney General's opinion on the subject. My advice always is that if you feel you wrongly received a citation, go to court and present your view.

[weimhunter]

Well, when my land in Crowder floods over in the Refuge, I think I will give it a shoot. Hey Wingman, if I get caught will you bail me out? Thanks Pal

[Hambone]

I'll bet that if some of you guys will simply hunt Old River next season, the members of Miller Point will be happy to help do their part to bring this issue to a resolution. Just for the record, I am not a member of Miller Point.

[Dennis Riecke FW15]

That's how the issue will be solved and should be solved ----- in court.

[Money]

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

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

I was wondering when the "Uncle Bunky" letter was going to show up in the middle of all this.

[Wingman]

My most recent example of what is not a public waterbody:

Hwy 3 north of Falcon, where the dip crosses the tupelo brake.

People have come to the false understanding that because the highway crosses this water, that they can legally launch their boat from the shoulder of the road and traverse the entire lake.

Not so. Just because a highway or county road crosses water does not mean you can launch from the ROW and fish or hunt as you please.

This new information that Dennis has posted will definitely make things interesting this winter. I am gonna make sure all of my t's are dotted and my i's are crossed ....and the war chicken is ready to hit the water.

[Money]

Sounds like we gonna have some sortie of a goat ropin' this winter.

[Wingman]

Next question:

Sandbars and/or islands between the banks of a public waterway: are they public?

Can you legally pull up to a sandbar in the Mississippi River, step out of the boat and hunt from the sandbar? Is this sandbar considered private property as it is the bed of the waterway?

[Dennis Riecke FW15]

Wingman,

The bed (including sandbars) and the banks are owned by someone. Only in a few cases along the Mississippi River ---- so I have been told by the MDEQ folks ----- does the great State of Mississippi own the bed and banks of a river. So, according to the opinions from the Miss. Attorney Generals office opinion section staff, a citizen can legally wade, fish, hunt, canoe, boat etc. on public waterways. They can anchor, tie up to a tree, walk in the water to hunt or fish. They cannot erect any permanent structure (for example ----a permanent duck blind) and cannot attach anything permanent to a tree. All the activities that are legal are those which are normally done when engaged in hunting and fishing and boating.

Camping on sandars or walking on them or the banks is illegal ---trespassing, unless you have permission from the landowner . Fishing and hunting from the bank and/or sandbars is illegal ---- trespassing, unless you have permission from the landowner.

It is a difficult area of the law to follow but I think this discussion and these posts are very helpful in informing the public and law enforcement personnel regarding what is legal and illegal.

[Don Miller]

A tresspass ticket is cheaper than a guide fee. I wouldn't worry about it.

[REBEL DUCK]

Wingman, sound like Mr. Phelps done got tired of the local fishing his lake huh?

[Katie Mae]

I'll bet that if some of you guys will simply hunt Old River next season, the members of Miller Point will be happy to help do their part to bring this issue to a resolution. Just for the record, I am not a member of Miller Point.

Sounds like you know some members of Miller Point...what are most members opinion on this issue? Are they for ownership of Old River or is this simply a Mike Lewis financial power play?