Ruling on Lake Access

[Brian F.]

Saw this on another fishing forum and just keeping an eye on what it means nationwide. Kinda long so if you don't want to go thru the whole thing, there's a more condensed article here also: http://www.ibinews.com/ibinews/newsdesk ... inews.html

"Keeping You Informed,
National Association of Charterboat Operators


U.S. DISTRICT JUDGE DECLARES RECREATIONAL BOATING AND FISHING ILLEGAL ON MISSISSIPPI RIVER AND AMERICA’S OTHER NAVIGABLE WATERS

In the case of Normal Parm, et al v. Sheriff Mark Shumate, of East Carroll Parish, (Civil No.3:01-CV2624; United States District Court; Western District of Louisiana, Monroe Division) United States District Judge Robert G. James has declared it to be criminal trespassing for the public to boat, fish or hunt on the Mississippi River and other navigable waters of America, affirming the arrest of fishermen and boaters utilizing the waters of the Mississippi River. This ruling declares recreational boating, fishing tournament, waterfowl hunting, and pleasure boating illegal on navigable rivers, unless conducted within the main channel of the river, or with the permission of all riparian landowners along the navigable river.

District Court Judge James’s ruling under federal law grants to the riparian landowners of the Mississippi River, the exclusive and private control over the waters of the Mississippi River, outside of the main channel of the Mississippi River. The shallows of navigable waterways are no longer open to the public. This decision, based in federal law, equally applies to all other navigable waterways of America. For bass fishermen and duck hunters, and other fishermen and hunters that use the ever changing shallow waters of navigable rivers for their outdoor activities has been declared illegal. District Judge James affirmed that the public is subject to criminal arrest for trespassing on the riparian landowner’s privately owned and controlled water if they venture outside the main channel of a navigable waterway.

On April 30, 2006, Magistrate Judge James D. Kirk (Document 80) found that the American public had the right under federal law and Louisiana law, to navigate, boat, fish and hunt on the waters of the Mississippi River, across the entire surface of the Mississippi River, up to the normal high water of the river. Judge Kirk relied upon the long established federal principles of navigation that recognized that the public’s federal navigational rights ". . . entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in common." Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir., 1931). Further, Magistrate Kirk affirmed the public’s fundamental right to boat and fish on the navigable waters of Louisiana for both recreational and commercial purposes affirming the Civil Code’s declaration that " Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, . . . ." (Louisiana Civil Code, Article 452), and the Louisiana Constitution declaration that "[t]he freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people." (Louisiana Constitution, Article 1, Section 27).

On August 29, 2006, District Judge Robert G. James, United States District Court, sitting in Monroe, Louisiana rejected the findings of Magistrate Judge Kirk, and declared that the American Public has no federal or state right to fish or hunt on the Mississippi River, or any other navigable waterway in America (Document 139).

U.S. District Judge James specifically declared that neither century old statutes enacted as each State joined the Union, nor federal common law of public use, create a right of the public to use the navigable waters of America for recreation, fishing or boating, unless the activity is done as a commercial enterprise, and limited to the main channel of the river. Judge James has declared that the public’s only right to use the navigable waters of America are limited to commercial activities, and specifically DOES NOT INCLUDE the right of the public to boat, fish and recreate on the rivers of America.

Judge James rejected the argument made by the Plaintiffs that the multi-billion dollar commercial activities that support the manufacturing and sale of personal and recreational water craft and related equipment, and the public recreational uses of the navigable waters, were sufficiently "commercial" to be allowed on America’s navigable waters. If the judgment of District Judge James is affirmed, the exclusion of the recreational boater, fisherman and hunter threatens the financial viability of the entire segment of the American economy that supports recreational use of public waters. Finally, Judge James declared that the people boating, hunting or fishing on the waters of the Mississippi River, at normal heights, are subject to arrest for trespass, unless the activity is limited to the narrow, main channel of the river. The following are quotes from the opinion of Judge Robert James, Western District of Louisiana:

CONCLUSION NO. 1: AMERICAN PUBLIC HAS NO FEDERAL LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.

District Court Judge Robert James declared that the People of America do not have the right under federal law, holding that " . . . the federal navigational servitude do[es] not provide the Plaintiffs with the right to fish and hunt on the Mississippi River."
District Judge James declared that the People of America do not ". . . have a right to fish and hunt on the Mississippi River up to the ordinary high water mark when it [the Mississippi River] periodically floods . . ." the riparian land.

CONCLUSION NO. 2: AMERICAN PUBLIC HAS NO STATE LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.

District Judge James declared that under State law ". . . fishing and hunting [on the waters of the Mississippi River and other navigable waterways] is not included in these rights" that are granted on rivers of America as they naturally rise and fall.

CONCLUSION NO. 3: ANY PERSON WHO FISHES OR HUNTS ON THE WATERS OF THE MISSISSIPPI RIVER, OUTSIDE THE MAIN CHANNEL, IS SUBJECT TO ARREST FOR TRESPASSING ON THE WATER.
District Judge James declared that if you are fishing on the Mississippi River anywhere other than the main channel, ". . . the Sheriff . . . has probable cause to arrest you for trespassing."

[Ken]

Oh boy...I feel sorry for anyone who fish the Mississippi regularly.

I have a feeling that the Judge was under the influence of PETA...or some animal rights group that are working to make fishing illegal.

People of America, stand up and fight for your rights! If enough voices are out there, you can turn over a court rule. This one is especially bad since it can set for a bad presidence for future similar cases in other states.

In Canada, no one can own land beyond the highwater mark unless it is a very very old deed. River bottoms of navigatible rivers and lake bottoms are all crown land and the public has access up to the high water mark. I'm thankful that we have that law in place to protect public access.

[OO7:BASSINASSASSIN]

Good thing this rule doesn't apply to the ocean, that would be messed up!

[Stan Wright]

Lucky for us that Lake Wislon is not considered a "navigable waterway".
(checked with the Coast Guard, they have enough area to worry about at the moment)

Shoots, the owners can't even give the lake away. Did you see that story on TV the other nite?