Public Water (Oxbows and Streams) in MS

[Wingman]

Since the topic of hunting on public water comes to the surface about once a week prior to and during duck season, I thought it would be good to put it all in one post that would be easy to find if needed.

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

I took this from an email I got from an attorney with the MS-AL Sea Grant Legal Program. He specifically states that his email is not legal advice:

When Congress creates new states, the land underlying the navigable waters
of those states passes into the ownership of the new state under the Equal
Footing Doctrine. While the state can then pass title to the underlying
lands into private ownership, it CANNOT sell or give away the public's right
to use the waters above those lands for boating and fishing (although it can
reasonably regulate those activities). This is an aspect of the Public
Trust Doctrine, which generally prohibits the government from selling or
giving away certain common public resources to private parties for private
gain.

These laws
harmonize well with what the Mississippi Supreme Court declared way back in
1900: "All navigable waters are for the use of all the citizens, and there
cannot lawfully be any exclusive private appropriation of any portion of
them." (Pascagoula Boom Co. v. Dickson, 77 Miss. 587 (Miss. 1900)).

Oxbow Lakes

An oxbow lake is formed when a meander in a river or stream is cut off from the main channel by an avulsion. Oxbow lakes formed by avulsions in a meandering river, are common in Mississippi on rivers including the Mississippi and the Pearl, and are often excellent sites for fishing and boating. Typically they are hydrologically connected to, and seasonally rise and fall with, the river that created them.

The Law Pertaining to Public Waters

The public has the right to use public waters for boating, fishing, and other uses. The Mississippi statutes define “public waterways” in such a way that it appears that only streams can be public. However, the Mississippi Supreme Court in Dycus v. Sillers observes that the statutory definition does not necessarily exclude other types of waters, such as lakes, from the legal status of “public waters.” While discussing the oxbow Lake Beulah in Bolivar County in that case, the court suggests that all oxbow lakes are public waters, and that members of the public accordingly have the right to use them “to [their] heart’s content, subject only to a like use by others and reasonable regulation by the state.” The court even goes so far as to declare that “the public right to waters formed by an avulsion is as great as any other public waters.”

Other cases, as well as opinions of the Mississippi Attorney General, support the Dycus view that oxbow lakes are public waters. In State Game and Fish Commission v. Louis Fritz Co. the Mississippi Supreme Court held that the private riparian owner of over ninety percent of the lands beneath a lake could not exclude a state contractor, who gained lawful access to the lake from another riparian landowner, from clearing the lake of predatory fish. While the case appears to involve an oxbow lake (South Horn Lake in DeSoto County), the court did not explicitly address the public/private status of the lake; rather, it held anyone who gains lawful access to a lake (that is, who does not trespass to get there) may make use of the surface of the lake for boating and fishing so long as they do not interfere with similar use by others who are entitled to use the lake. A riparian landowner may own the bed and banks of a natural lake, but he does not own the water or the fish in it. The state owns the water and fish for the common benefit of all its citizens.

In 1991 the Mississippi Supreme Court decided in Ryals v. Pigott that the Bogue Chitto River is a public waterway. The portion of the river in question did not meet the statutory mean annual flow requirement; nonetheless, the court found it to be a public waterway because it is “navigable in fact.” The court rejected as too restrictive the obsolete “steamboat carrying two hundred bales of cotton” definition of navigability found in Miss. Code § 51-1-1. Instead, a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.” The court indicates that lakes, as well as streams, can be navigable waters under the law. Waters that are navigable in fact are subject to public use under the Equal Footing and Public Trust doctrines.

Under the Equal Footing Doctrine (erroneously referred to in Ryals as the “Equal Footings Doctrine”), the title to the beds and banks of navigable streams passed to newly-formed states at statehood. States may, with some restrictions, pass title to these lands to private landowners, but the public retains the right to use the navigable waters for commerce, fishing, and boating under the Public Trust Doctrine. The Ryals court observed that this public right cannot be withdrawn “by legislative enactment or judicial decree.” In other words, the legislature can sell or give away the land under navigable waters but it cannot sell or give away the public’s right to use those waters.

None of these cases explicitly decided the public/private status of an oxbow lake. However, when these cases are read together the reasoning suggests very strongly that the Mississippi Supreme Court would consider oxbow lakes to be public waters. This view seems to be shared by the Mississippi Attorney General’s office, which has issued several opinion letters on the subject. In a 1993 letter to Dr. Sam Polles of your agency the Attorney General quoted with approval the language in Dycus that indicates that all oxbow lakes are public. In separate opinions to the Mississippi Gaming Commission, the Attorney General declared that oxbow lakes are navigable. These letters provide additional strong support for the position that oxbow lakes are public waterways.

Prescription

The Dycus court declared that, even if they are not otherwise “navigable” or “public,” oxbow lakes may become public waters by the doctrine of prescription. Under the doctrine of prescription, private property may become public if it is used “under a claim of right, openly, notoriously, peacefully, continuously and uninterruptedly for in excess of ten years.”

Conclusion

The relevant law strongly indicates that oxbow lakes that were formed by navigable waters or public waterways are public waters. Therefore, a member of the public has a right to use them for, at the very least, boating and fishing, provided he or she does not have to trespass across private land to get there. (If a public lake is entirely surrounded by private land there may be some question whether the public has a right to cross the private land to access it; I have not addressed that issue here, but would be happy to look into it for you in the future.)

Adding a couple of documents about wading, tying off to trees and dropping anchor.

From Josh Clemons of the MS-AL Sea Grant Legal Program (who reiterates that none of his dialog is formal, legal advice, but he cites several AG opinions and court cases to back up what he says.)

On public waters, tying off and dropping anchor are legal even if the bed is privately owned. I got that from a couple of sources, the main one being a 1993 Attorney General's Opinion (no. 1993-0836) prepared for Dr. Polles by Samuel Keyes at the AG's office. Although Keyes does not directly cite his source, his opinion is supported by the case of State Game and Fish Commission v. Louis Fritz Co., 193 So. 9 (Miss. 1940).

I went back through the research yesterday and I think wading that is incidental to fishing is permissible. This opinion is based on the case I referenced earlier, State Game and Fish Commission v. Louis Fritz Co., 193 So. 9 (Miss. 1940), and Mississippi Attorney General opinion from 1993. The author of the AG opinion refers to an earlier opinion (from 1976...) in which the AG said that it was his opinion that a hunter (and thus, presumably, a fisherman) can wade along the bed of a public waterway.

The 1993 AG opinion (no. 1993-0836) says that you can tie to a tree or drop anchor while fishing, because those are "normal use[s] by those engage in fishing or other water sports." By that logic I think wading would be allowed as well. The author of that opinion doesn't cite his source, but I think it's Louis Fritz Co.

I found the 1976 AG opinion I told you about, that concerns wading. This should put your mind at ease. Please note that Miss. Code 51-1-4 has been amended since 1976 to, among other things, exclude floodwaters from the definition of "public waterways." That change doesn't affect the AG's conclusion about wading though.

You might enjoy question number 8 on page three. Sounds like the kind of situation you guys encounter.

Here is 1976 WL 19623- Mississippi Attorney General's opinion. Keep in mind that since 1976, oxbow lakes have been included as public waters by the Dycus v. Sillers case, floodwaters have been excluded as public waters, and that "flowing" public waterways are defined under the current 51-1-4.

1976 WL 19623 (Miss.A.G.)

Office of the Attorney General
State of Mississippi

*1 December 3, 1976


Honorable A.T. Tucker, Jr.
County Prosecuting Attorney
Post Office Box 626
Tunica, Mississippi 38676

Dear Mr. Tucker:

Attorney General Summer has received your letter of request dated November 23, 1976, and has assigned it to the undersigned for research and reply.

In your letter of request you asked a number of questions on Section 51-1-4, Mississippi Code of 1972, dealing with water sports (hunting) on navigable waters. You asked our opinion on these questions and for us to make a determination as to the circumstances under which a county attorney may in good faith bring an action for criminal trespass against one who enters and travels on non-navigable waters of our State to duck hunt. Section 51-1-4, Mississippi Code of 1972, reads as follows:
Such portions of all natural flowing streams in this state have a length of not less than five miles and which have an average depth along the thread of the channel of three feet for ninety consecutive days in the year and which have an average width at low water of not less than thirty feet, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport and the right to fish and engage in water sports. Such persons exercising the rights herein granted shall do so at their own risk and such persons shall not be entitled to recover any damages against any person, firm or corporation for any injury to or death of persons or damage to property arising out of the exercise of rights herein granted unless such persons would have been entitled to recover such damages against such person, firm or corporation under the laws of this state prior to the enactment of this section. Nothing herein contained shall authorize the person, firms or corporations utilizing said public waterways, under the authority granted hereby, to launch or land any commercial or pleasure craft along or from the shore of such waterways, except as may be otherwise authorized by law. Except as otherwise provided by law nothing herein contained shall authorize any person, firm or corporation utilizing said public waterways, under the authority granted hereby, to disturb the banks or beds of such waterways or discharge any object or substance into such waters or upon or across the lands adjacent thereto.
Nothing contained in this section shall be construed to prohibit the construction of dams and reservoirs by the State of Mississippi or any of its agencies or political subdivision, or riparian owners, in the manner now or hereafter authorized by law, or to amend or repeal any law relating to pollution or water conservation, or to affect in any manner the title to the banks and beds of any such stream or the title to any minerals thereunder, or to restrict the mining or extraction of such minerals or the right of ingress and egress thereto.
This section shall not apply to lakes, ponds, canals, drainage ditches, irrigation channels or other man-made waterways.

*2 The criteria for “ public waterways,” as set forth in Section 51-1-4, supra, may be stated, in my opinion, as follows:
(1) A natural flowing stream.
(2) Any five-mile section thereof.
(3) An average depth of three feet along the thread of the channel.
(4) Ninety consecutive days of flow.
(5) An average width of not less than 30 feet.

The first of several particular questions you raise reads as follows:

“ (1) To be a ‘ public waterway’ under Section 51-1-4, is it the ‘ portion of the natural flowing stream or the stream itself that must meet the criteria of that statute?”

It is my opinion that any portion or section of a natural flowing stream meeting the criteria set out above would be a “ public waterway.”

“ (2) Which bodies of water are to be considered ‘ portions' of ‘ public waterways' under Section 51-1-4 and which are not?”

It is my opinion that the last paragraph of Section 51-1-4 answers this question, that is to say, that lakes, ponds, canals, drainage ditches, irrigation channels or other man-made waterways are not public waterways. In other words, the water must have gotten there by an act of nature and it must have some flow; that is to say, that it is not land locked.

“ (3) Must there be an actual flow of water in a ‘ portion’ of the stream before a hunter may go there, or is it sufficient if the stream itself is a flowing one?”

In my opinion, provided the stream otherwise meets the criteria set forth above and the “ flow” is temporarily interrupted, then it is sufficient if the stream itself or a portion thereof is normally a flowing one.

“ (4) From what point is the measurement as to the length of the ‘ portion’ of the stream to be made to determine if it is a ‘ public waterway’ under Section 51-1-4?”

It appears to me that the answer to this question is by reference to the criteria of what constitutes public waters set forth previously.

“ (5) If hunting by boat is analogous to fishing on ‘ public waterways' under Section 51-1-4, is the right to hunt under that statute limited to hunting by boat?”

It is my opinion that the statute does not limit the hunting to hunting from boats.

“ (6) Is the wading by a duck hunter along the bed of a Section 51-1-4 waterway a permissible ‘ water sport’ under that section, or does this sufficiently interfere with the landowner's rights so as to constitute a trespass?”

In view of my answer to paragraph 5, I am of the opinion that wading by a hunter is permissible.

“ (7) Where a waterway meets the characteristics of Section 51-1-4, but is not truly boatable, except by use of a pole to push along the bottom, and contact by growing trees and bushes in the water is unavoidable, does a hunter have the right to travel?”

It is my opinion that the fact that there might be obstructions in the water does not remove the water from being a public waterway if it otherwise meets the criteria set forth.

“ (8) In a case in which I have been involved, a series of bayous drain a large, privately owned lake into the river. This watercourse is the typical cypress swamp found in the Delta, with trees and brush growing in the water. The stream is not actually capable of being navigated by substantial commercial traffic. Yet it is ideal for duck hunting in a small boat. Any damage caused by contact by the hunters with the trees or the stream bed is nominal. Stretches of the bayous are referred to by different names, but actually, this is one continuous stream, and it comes within the definition of a ‘ public waterway’ for hunting and fishing purposes of Section 51-1-4. Various persons own parts of adjacent and submerged property. Prior to the passage of Section 51-1-4, the bayou was considered a private, non-navigable stream, and persons with access to the bayou duck hunted only over the property owned by them or their host. Under the present law, the duck hunters believe that once they enter upon the waterway with the permission of a property holder along the bank, they can boat all along the stream and shoot ducks above the water and they have no liability for criminal trespass. One owner feels very strongly about his property rights. He has posted his property and published a warning in the local newspaper. He contends that he has an interest in the property to protect, wants to assert his rights, objects to the use of the part of the stream which flows over the premises he owns by the duck hunters and threatens to have them arrested.

*3 “ Under these facts, may a hunter freely pass along the stream in pursuit of game or is this a criminal trespass?


Once again, the answer is that if the water you referred to meets the criteria of being a “ public waterway,” then the hunter can enter thereon and not be guilty of trespassing.” “ Floodwaters” of such “ public waterways” would be a part of same.

“ (9) Again, in the case of Mississippi River floodwaters which remain at the place of the alleged violation ‘ for ninety consecutive days in the year,’ is the posting of property on which crops are not planted but on which timber grows, in accordance with Section 97-17-93, effective against a duck hunter who comes by boat upon the floodwaters?”

The answer to the above question is that the hunter may go upon the flood waters of the Mississippi River and not be guilty of trespassing. (this is the part that has been changed and floodwaters are no longer considered public.)

It appears that possibly some of the doubts in this matter arises because of the differences in definitions of “ navigable waters,” “ public highways” and “ public waterways.” The questions you pose are related to “ public waterways,” and should not be confused with the other two.

In view of what has been said, an action for criminal trespass would depend upon the facts and circumstances of each individual case.

Trusting the above will be of some benefit to you, I am

Sincerely,
A. F. Summer,
Attorney General

1976 WL 19623 (Miss.A.G.)
END OF DOCUMENT

You asked "Since the wading is in reference to "public waterways" that met certain criteria (natural flowing stream, five-mile section, 3 foot depth, etc.) in 1976, would the wading issue apply to oxbows that are now considered public waters?"

I think the answer is yes, based on the two AG opinions we're discussing. They both focus on section 51-1-4. The 1976 opinion states that it is permissible to wade in waters that are "public waterways" under 51-1-4. The 1993 opinion (relying on Dycus) states that oxbow lakes are public waterways within the meaning of 51-1-4. It follows that you can do anything in an oxbow that you can do in any other public waterway - including wade.

Bear in mind that the AG opinions are just that - opinions. They don't carry the force of law that a statute or a judge's opinion carries. A judge isn't bound by an AG opinion. Still, AG opinions are usually considered to be persuasive statements of the state of the law. I think the reasoning in these AG opinions is sound.

1993 93-0836 Mississippi A.G. Opinion

1993 WL 547413 (Miss.A.G.)

Office of the Attorney General
State of Mississippi
*1 Opinion No. 93-0836

December 6, 1993


Dr. Sam Polles
Executive Director
Department of Wildlife, Fisheries and Parks
P.O. Box 451
Jackson, MS 39205-00451

Dear Dr. Polles:

Attorney General Mike Moore has received your opinion request dated October 28, 1993 and has assigned it to me for research and reply. Your request pertains to the use of “ public waterways” and the limitations imposed by Miss.Code Ann. section 51-1-4; specifically:
“ Would someone utilizing the waterway who ties to a tree or drops anchor be disturbing the beds or banks of a waterway and therefore such activity would be prohibited by this law?”

The first issue that must be addressed in any discussion of waterway usage is whether or not the waterway you are dealing with is “ public” or “ private” . I would like to draw your attention to an earlier Attorney General's Opinion that addresses this issue. The Opinion, which I have attached for your convenience, issued on December 14, 1988, to S. Mark Harris, clearly enumerates the criteria set forth in Miss.Code Ann. section 51-1-4 used to determine whether or not the waterway in question is public or private. That Opinion states that:
“ all natural streams in this state having a mean annual flow of not less than 100 cubic feet per second as determined and designated on appropriate maps by the Mississippi Department of Natural Resources are public waterways.”

Once the determination is made that the waterway involved is “ public” then the question becomes, what activities are allowed on a public waterway. The Mississippi Supreme Court in Dycus v. Sillers 557 So.2d 486 (Miss.1990) while referring to usage of an oxbow lake stated that each person who can without trespass reach the waters of an oxbow lake may of right fish there to his heart's content, subject only to a like use by others and reasonable regulation by the State. This rule applies to all public waters of this State.

The legislature by statute has set forth the usage of public waters. Miss.Code Ann. section 51-1-4 states that citizens shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports on public waterways.

The applicable case law and statutory law would allow someone utilizing public waters to tie to a tree or drop an anchor since this is the normal use by those engaged in fishing or other water sports.

The last question you asked referred to the usage of public waterways for waterfowl hunting. Clearly, a waterfowl hunter has the right to utilize the water surface on any public waterway. This would include the right to float freely on and anchor to the beds of the waterway in order to carry out this sport. But, what about wading in the waterway?

This question was addressed in a prior Attorney General's Opinion issued on December 3, 1976. That opinion states that wading by a hunter along the bed of a public waterway would be allowed. I have attached a copy of this opinion for your reference.

*2 Of course, the facts and circumstances of each individual case will determine the rights and usage of the waterway in question.

Sincerely,
Mike Moore
Attorney General

By: Samuel W. Keyes, Jr.
Deputy Attorney General

1993 WL 547413 (Miss.A.G.)
END OF DOCUMENT

MISSISSIPPI CODE OF 1972
As Amended

SEC. 51-1-4. What constitutes public waterways; rights thereon.

(1) 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. Such persons exercising the rights * * * granted by this section shall do so at their own risk, and such persons shall not be entitled to recover any damages against any owner of property along such public waterways or anyone using such property with permission of the owner for any injury to or death of persons or damage to property arising out of the exercise of rights * * * granted, by this section other than those damages which may be recovered for intentional or malicious torts or for gross or willful negligence against the owner of property, or anyone using such property with permission of the owner.

(2) Nothing * * * contained in this section shall authorize anyone utilizing such public waterways, under the authority granted by this section, to trespass upon adjacent lands or, to launch or land any commercial or pleasure craft along or from the shore of such waterways except at places established by public or private entities for such purposes.

(3) Nothing * * * contained in this section shall authorize any person utilizing those public waterways, under the authority granted by this section, to disturb the banks or beds of such waterways or the discharge of any object or substance into such waters or upon or across any lands adjacent thereto or 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.

(4) The right of the public to use public waterways does not include the use of motorized vehicles in the beds of a public waterway without the written permission of the landowner. Any person who uses a motorized vehicle in the bed of a public waterway without the written permission of the landowner may be punished as provided in Section 97-17-93.

(5) Nothing * * * contained in this section shall be construed to prohibit the construction of dams and reservoirs by the State of Mississippi or any of its agencies or political subdivisions, or riparian owners, in the manner now or hereafter authorized by law, or in any way to affect the rights of riparian landowners along such waterways except as specifically provided hereinabove or to amend or repeal any law relating to pollution or water conservation, or to affect in any manner the title to the banks and beds of any such stream or the title to any minerals thereunder, or to restrict the mining or extraction of such minerals or the right of ingress and egress thereto.

(6) The provisions of this section limiting the liability of owners of property along public waterways and persons using such property with permission of the owners shall not be construed to limit any rights of claimants for damages under federal statutes or acts applying to navigable streams or waterways or any other civil causes of action subject to admiralty or maritime jurisdiction, nor shall those provisions be construed to limit the rights of any parties involved in litigation founded upon the commercial or business usage of any navigable streams or waterways.

(7) This section shall apply only to natural flowing streams.

(8) Any lake hydrologically connected to a natural flowing stream and listed as a public waterway under subsection (1) on July 1, 2000, and subsequently removed from that list before July 1, 2001, by the Commission on Environmental Quality because the lake did not meet the requirements of subsection (1), shall be presumed to be a public waterway until a court of competent jurisdiction determines otherwise. Nothing in this subsection shall be construed to determine the property rights in the bed or banks of the lake, the right of ingress or egress across private property to the lake, or mineral interests.

SOURCES: Codes, 1942, Secs. 8413.5, 8413.6; Laws, 1972, ch. 361, Secs. 1, 2; 1988, ch. 598, Sec. 1, eff from and after passage (approved May 25, 1988). Laws, 1994, ch. 653, Sec. 1; Laws, 2002, ch. 368, § 1, SB 2835; Laws, 2003, ch. 482,
§ 1, HB 81, eff from and after July 1, 2003.

What is an oxbow, you ask?
http://geography.about.com/library/weekly/aa010601a.htm
http://www.wonderquest.com/oxbow-glory-tern.htm

Where are the public waterways in MS? (only flowing waters on this list)
http://www.deq.state.ms.us/MDEQ.nsf/pag ... enDocument

Where are the boat ramps and other public waters in MS?
http://www.mdwfp.com/Level2/Fisheries/r ... places.asp

Keep in mind that when using a boat on any public water in MS, you must have a Coast Guard approved PFD for each person on board, kids under 12 must be wearing it when not docked, moored or anchored and if using a motor, your boat must be registered. You also must display navigation lights during the hours of darkness.

2015 AG opinion on Six Mile Lake: http://www.ago.state.ms.us/wp-content/u ... Waters.pdf

[legends of the lower mars]

Thanks for the info! That brings light to an all familiar question. Need to keep that info around somewhere on this board if the question arises again for those who haven't read this post...

[Po Monkey Lounger]

Excellent information Rob. That pretty much sums up most of my research on the topic over the years of fighting these type battles on behalf of the public.

To the extent you have not already linked it above, I would also recommend reading some of Chuck Barlow's articles on the topic. Chuck is an attorney, who was formerly the head of the legal staff at the MDEQ. I dealt with Chuck with respect to these type issues during some MDEQ hearings dealing with public waterways, and found him to be VERY knowledgable about the laws surrounding public waterways in MS ---an expert on the topic.

[Roach]

Hey Wingman,
I "think" I understand the verbage but a fellow hunter ask me this question who hunts near Vicksburg.
He said that "flood stage" at Vicksburg is 43 feet. So if the river at Vicksburg for example is at 40 feet and some of the land at his camp is underwater at that level, then anybody can access his area and hunt?

[dawg-n-duck]

Stay in the water between the natural banks.

What is the definition of the "natural Banks"??

At what level is the river inside of its natural banks? Would it be at the summer low or at the winter high. Seem s like there is a lot of room for interpretation because it is so vague.

[Wingman]

Re-read the other long thread and I pretty much explained everything I know about it there. http://www.ducksouth.com/phpbb/viewtopi ... ght=oxbows

All I know is that every oxbow is different. I just checked the topo on one particular one, and the natural bank is 3500 feet through the willows from where the water is now. Let the river rise a little and all of this will be submerged. You can look on a satellite map and see the difference in vegetation. You can really tell where the natural bank is way back in the timber. That 3500' feet of timber is willows that have grown up in what used to be the bottom of the old channel. You've got to remember that some of these oxbows were created by man back in the 30's and 40's. There's 70 years of siltation and timber growth in the old river bed. The deepest parts of the channel are what holds water in the summer but the winter rains will innundate that timber that has grown in the exposed bottom. When it's dry, you can't walk through that timber, but when it's wet, you can legally wade or float anywhere in there. When the water gets higher than the bank at that 3500' mark, going past it will be trespassing. Floodwater that is outside the natural banks is not public water. The bottom isn't flat; in some cases it is in steps. The outside of the bends are the deepest and the inside is the shallowest. The outside natural bank will usually be very obvious...a very sharp rise in elevation from the water level. The inside will be more subtle because of years of silt deposits in the slower moving current when the river used to run through what is now the oxbow. Get a good topo map or even better, topo software that you can zoom in and see the lines of elevation. It will be very plain in most cases where the earth drops off sharply into the old river channel.

This diagram is rather silly, but this is what I'm talking about.

[Roach]

So inside the "red lines" of the flood stage is huntable?

[Wingman]

Yes, Roach, that's how I understand it. Stay inside the natural banks. Some of them will be very obvious, others will take a careful study to find.

[DUKLUVR]

WINGMAN and the Q'S asked and answered have provided good information that will allow everyone to feel confortable in their outings.

Everyone knows what and how to do. If we choose not do it right the only thing to do is say, WHUT? WHUT? WHUT?.....

[Po Monkey Lounger]

Here's an informative article with quotes from Chuck Barlow, the former head of the legal dept. of the MDEQ:




Landowners battling for water rights

May 9, 2003 12:00 PM

By Doreen Muzzi Farm Press Editorial Staff
According to Mississippi law, a person may own the banks of a waterway, the land around a body of water, the land under the water, and even the trees growing in the soil under the water. However, that same landowner does not legally own the water or the rights to use it.


That apparent crinkle in the law is fueling a battle in the state between landowners and non-landowners, and in many cases, native Delta hunters and fishermen and their visiting Jackson and Memphis counterparts.

“It's a messy and difficult issue, but the bottom line is this is a fight about duck hunting,” says Chuck Barlow, general counsel for the Mississippi Department of Environmental Quality in Jackson, Miss.

Barlow, who spoke at an April 24 Delta Council committee meeting in Stoneville, Miss., says the Department of Environmental Quality has no authority to decide if a waterway is public under the state's common law. The agency does, however, have a say in determining if a waterway meets the state statute designating what is considered a “public” waterway.

The state statute Barlow refers to is Mississippi Code Annotated Sec. 51-1-4. Written in the mid-1980s, the statute says that “such portions of all natural flowing streams having a mean annual flow of not less than 100 cubic feet per second shall be public, and shall have the right of free transport in the stream and its bed, and the right to fish and engage in water sports.”

While that legal description may sound like it covers only very large waterways, Barlow says, “An annual flow of 100 cubic feet per second is not a wall of water. You can have a fairly small stream of water, and it can meet the statute.”

Further complicating matters, the common laws of Mississippi read somewhat differently, and are far less precise. According to common state law, a waterway can be considered “public” if it is used in any way in interstate commerce; if it is navigable “in fact;” if it is any part of the Mississippi River tributary system; or if it has been used by the general public for at least the last 10 years.

If any of these conditions have been met, then it may be possible for a waterway to be considered “public,” enabling the general public to use it at their “own risk.”

Unfortunately, however, the confusion does not end there. State law only applies to water in its “normal streams and banks.” It does not make floodwaters public.

“It gets very difficult to tell what is flood water, and what is not, when it comes to swampy areas. It is relatively easy to tell where the bank of a stream or river is located, but determining where the banks of a swamp are located is easier said than done,” says Barlow.

Confused? You're not alone. The issue of which bodies of water in the state are public, and which are not, has been building for years, and those on both sides of the argument appear convinced their rights to the water supercede those of their opponents.

On one side of the debate are the non-landowners who say they have used a waterway for decades and should be allowed to continue to do so. They also complain about what they consider to be an inadequate number of public recreational areas in the state.

Many landowners, however, want to protect their right to privately hunt and fish the land and included bodies of water they pay taxes on as property “owners.”

“It's a convoluted and complicated issue, and unfortunately, it's a problem that DEQ is stuck in the middle of,” Barlow says.

What it all boils down to, Barlow says, is if a waterway is designated as “public,” then the public must have access to it for recreational use or otherwise. “The state owns the water itself, and the people of the state have the right to use that water. However, private individuals may own the beds and the banks of streams, or any other sort of waterway,” he says. “While people cannot trespass on your property to get on that water, they can use the waterway because it is part of public domain.”

The question remains, however, as to which Mississippi waterways are considered “public,” and which are considered “private.” While there does not appear a decisive answer one way or the other at this point, recent state legislation could prove indicative of future rulings on the issue.

A recent ruling by the Mississippi state legislature regarding the Buffalo River declared that when a waterway is taken off the Department of Environmental Quality's list of public waterways, under common law it is still presumed to be public until a court decides otherwise.

Barlow says that tells him that whatever the Department of Environmental Quality does regarding its list of public waterways “really doesn't matter.” What really matters, he says, is the final disposition of a case in court.

“There are five other ways a waterway can be made public that have nothing at all to do with the state statute concerning public waterway designations,” Barlow says. “There are several arguments that could be made about the common law of Mississippi in court, and a judge could find in favor of any one of those arguments, no matter what the Department of Environmental Quality decided on the issue.”



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

[Wingman]

Find the other extremely long post about public water on this site. I won't go into all of that detail on this post because it is so long and drawn out.

[CW]

Here's a recent pronouncement on this topic in the form of an opinion from the Attorney General at the request of DWFP. It looks like the AG has just made it harder to enforce trespass laws in floodwater situations.

DOCN 000017495
DOCK 2007-00134
AUTH Reese Partridge
DATE 20070330
RQNM Sam Polles
SUBJ Department of Wildlife, Fisheries and Parks
SBCD 269
TEXT Sam G. Polles, Ph.D.. Executive Director Mississippi Department of Wildlife, Fisheries and Parks 1505 Eastover Drive Jackson MS 39211-6374
Re: Determination of natural stream banks
Dear Dr. Polles:
Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter reads as follows:
We are requesting your assistance and an official opinion regarding the proper entity or entities with the authority to establish the ordinary and natural banks of certain public waters and waterways. More specifically, Miss. Code Ann. Section 51-1-4(3)
provides:
Nothing contained in this section shall authorize any person utilizing those public waterways, under the authority granted by this section, to disturb the banks or beds of such waterways or the discharge of any object or substance into such waters or upon
or across any lands adjacent thereto or 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.
As the agency charged with enforcing hunting and fishing laws, we are constantly sturggling with calls and complaints of trespass and unlawful hunting upon the lands of others where floodwaters are involved. Our main problem is establishing the location
of, "the natural banks of the bed of the public waterway." Until we can establish that baseline, we cannot effectively enforce the applicable laws.
Our question is basically this, which agency of state government (or Federal government) has the authority to determine the location of, "the natural banks of the bed of the pubic waterway?" We know the Mississippi Department of Environmental Quality is
designated as the agency to determine which streams are public, but does it follow they are to determine the natural banks. By the same token, the U. S. Army Corps of Engineers has authority to make many rulings or findings on matters related to the
Mississippi River. As many of our enforcement issues deal with lands adjacent to the Mississippi, would the Corps be the proper entity to make these determinations? Any guidance your office can supply in helping us discern the proper roles of the
various entities involved will be greatly appreciated.
As you relate in your letter, the Legislature has designated the Department of Environmental Quality (DEQ) as the administrative agency charged with determining which streams are public. However, the Legislature has not designated an administrative
agency to establish the natural banks of streams. Furthermore, due to the meandering nature of many streams, creeks and rivers, such an agency designation may be unlikely.
Instead, our opinion is that the Mississippi Department of Wildlife, Fisheries and Parks enforcement officers should regard this question as a factual determination which must be made on a case by case basis. Additionally, in cases of trespass, this
factual determination will involve not only the issue of natural banks, but also what is contained in the deeds establishing ownership of the subject property.
The determinations as to the "natural banks" of a watercourse for the purpose of enforcing criminal and game laws must be made by the court hearing the matter. MDWFP and prosecutors should be prepared, based on the particulars of each case, to put on
proof establishing those banks, which may include maps and information from the U. S. Corps of Engineers, DEQ, and other administrative agencies, as well as official and current maps, aerial or satellite photography, and other reliable sources, and which
may include those persons with first hand knowledge of the watercourse's "natural banks."
Please let me know if you would like to discuss this matter or if I can be of further assistance.
Sincerely,
JIM HOOD, ATTORNEY GENERAL
By:
Reese Partridge Assistant Attorney General

[Wingman]

Thanks for posting that, Chris. It really doesn't clear up much, does it?

As evidenced from the survey maps on the Fisk CD's, it would prove extremely difficult to determine "the natural banks" of some of these waters because of the thousands of years of shifting river channels in the meander belt.

[CW]

Instead, our opinion is that the Mississippi Department of Wildlife, Fisheries and Parks enforcement officers should regard this question as a factual determination which must be made on a case by case basis. Additionally, in cases of trespass, this
factual determination will involve not only the issue of natural banks, but also what is contained in the deeds establishing ownership of the subject property.
The determinations as to the "natural banks" of a watercourse for the purpose of enforcing criminal and game laws must be made by the court hearing the matter. MDWFP and prosecutors should be prepared, based on the particulars of each case, to put on
proof establishing those banks, which may include maps and information from the U. S. Corps of Engineers, DEQ, and other administrative agencies, as well as official and current maps, aerial or satellite photography, and other reliable sources, and which
may include those persons with first hand knowledge of the watercourse's "natural banks."

Clear as mud. Now, each case could have a bunch of deeds, property descriptions, hydrology, etc. to prove that someone is trespassing. And my favorite part:

Please let me know if you would like to discuss this matter or if I can be of further assistance.

He is going way out on a limb assuming that he has been of any 'assistance'. The only good news in this AG opinon is that DEQ doesn't have the power to decide.

[Dukelane]

What if you own private property , not accesible from a public waterway but does have a drainage ditch that runs through the middle of the property that will flood up, and other people own tracts of adjacent properties say north and south of you, can they and their guests put in on their property and cruise on down hunting?