who own's the water

[Guest skeeter99]

this is a bad omen, high water in the missisipi river and anglers using it but landowner arrests them(from bassmaster)

 

good read have a peak, could happen here

 

 

A Low Water Mark in the Access War

By Ken Duke

Senior Editor, BASS Publications

(Archive)

Updated: October 7, 2008, 6:20 PM ET

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The Supreme Court of the United States has elected not to hear the case of a group of Louisiana anglers arrested for fishing waters of the Mississippi River that had risen onto a landowner's property during a period of high elevation.

The Supreme Court of the United States has elected not to hear the case (Parm v. Shumate) of a group of Louisiana anglers arrested for fishing waters of the Mississippi River that had risen onto a landowner's property during a period of high elevation. This will leave the decision of the U.S. Court of Appeals for the 5th Circuit in place, ruling that there are no state (Louisiana) nor federal rights to fish on private property when it is covered by a navigable waterway of the United States.

 

What does it mean?

 

The ruling removes untold miles of shoreline and surface acres from public use and enjoyment and subjects anglers and hunters to arrest for trespass if they venture beyond the main channel of the stream. This will subject anglers and boaters to arrest for trespass if they use the shoreline in any way.

 

Where do we go from here?

 

By denying the anglers' petition to be heard, the Supreme Court has effectively closed the door on this case. The next battleground will either be a river or stream in another judicial district, which court will likely rely upon the Parm case as persuasive authority, or the legislatures in all 50 states and Washington, D.C., where laws could be passed setting the matter straight and formally granting rights that have been assumed for longer than there has been a United States. "It's definitely a setback, and one that we were hoping to avoid, but we're not done yet," said BASS Conservation Director Chris Horton. "The issue is too important to let it lie. We're already working on alternative solutions."

 

How it all started

 

In January of this year, the United States Court of Appeals for the 5th Circuit heard the case of Parm v. Shumate. The dispute that started the litigation began more than a decade ago. Parm is a lifelong boater, hunter and angler who fishes on the Mississippi River in northeast Louisiana. The water levels of the Mississippi River fluctuate seasonally. When the water is high, the river spreads onto adjacent lands and boats can often easily navigate these waters.

 

When the waters are near their annual high mark, Parm and others could easily boat up a man-made drainage ditch from the river to an area known as Gassoway Lake, nearly 3 1/2 miles from the ordinary low water mark of the river's channel. They did this despite knowing that they the landowner objected to their being there.

 

In 1996, the landowner began filing complaints with Sheriff Shumate against boaters fishing on Gassoway Lake. Shumate responded by arresting Parm and other anglers and charging them with trespass.

 

Parm and the plaintiffs admit they did not have the landowner's permission to fish Gassoway Lake, but claim that they were entitled to fish on the property when it was flooded because the lake was either: (1) owned by the State of Louisiana on behalf of the public or (2) subject to state and federal servitudes.

 

The Attorney General for the State of Louisiana agreed, concluding that the flooded areas of the river constituted "river bed" owned by the State and that Gassoway Lake "is a naturally navigable body of water under both State and Federal law and actually supports navigation for such purposes as hunting, fishing, [and] trapping...."

 

Nevertheless, Sheriff Shumate continued to arrest fishermen found on the property even though the district attorney in the sheriff's parish informed he would not prosecute any of those arrested until the issue had been resolved. In fact, none of the anglers arrested have been prosecuted thus far.

 

In 2003, a Louisiana state court ruled that the property owner owned the area being fished by Parm and others and that he had the right to exclude the public from it. The court further determined that none of the waters on the property in question were navigable and issued a permanent injunction prohibiting the public at large from going on Gassoway Lake or on the land between Gassoway Lake and the Mississippi River.

 

The State of Louisiana subsequently appealed that decision to the (Louisiana) Second Circuit Court of Appeal, which lifted the injunction, agreed that the property was privately owned and rejected the State's argument that the property was the bed of the Mississippi River (and therefore owned by the State). The Second Circuit Court of Appeal determined that a river's bed consists only of the land lying below the river's ordinary low water mark. In the court's opinion, it did not matter that the Mississippi River sometimes flooded the property. In 2005, the Louisiana Supreme Court denied the State's request to hear the case, effectively finalizing the Second Circuit's decision.

 

Later that year, the federal district court riled that federal law did not give Parm and the others the right to fish on the property.

 

The U.S. Court of Appeals for the 5th Circuit then heard the case and ruled that the Commerce Clause of the U.S. Constitution gives the federal government a "dominant servitude" over the navigable waters of the United States, but that this servitude does not apply to land that is only submerged during periods of high water. Therefore, Parm and the other anglers would not have the right to follow the flood waters and fish outside the channel. Furthermore, the clause only applies to navigational rights and commerce, not fishing for pleasure.

 

The court had little difficulty in dismissing Parm's claim that Louisiana state law gave him the right to fish up to the high water mark, citing a Louisiana state constitutional provision that gives citizens the right to hunt, fish and trap, but which requires the permission of the landowner where private property is concerned.

 

The 5th Circuit's ruling is now more imposing than ever in light of the fact that the Supreme Court will not hear the case. Anglers all over the country are now wondering if, when and how the rights they thought they had will be restored.

[Greencoachdog]

I don't have a problem with it, do you think that you could fish or hunt somebody's fenced and posted private property just because they leave their gate open?

 

He left his gate open and I could access it!...

 

I think not!