US federal judge declares boating illegal in all US navigable waters

[DTro]

I can't believe this is true:

By IBI Magazine

In a rather bizarre ruling that has marine industry officials worried, Judge Robert G. James of the United States District Court, Western Division of Louisiana, has said that it is criminal trespass for the American boating public to boat, fish, or hunt on the Mississippi River and other navigable waters in the US.

In the case of Normal Parm v. Sheriff Mark Shumate, James ruled that federal law grants exclusive and private control over the waters of the river, outside the main shipping channel, to riparian landowners. The shallows of the navigable waters are no longer open to the public. That, in effect, makes boating illegal across most of the country.

"Even though this action seems like a horrible pre-April fools joke, it is very serious," said Phil Keeter, MRAA president, in a statement. "Because essentially all the waters and waterways of our country are considered navigable in the US law, this ruling declares recreational boating, water skiing, fishing, waterfowl hunting, and fishing tournaments to be illegal and the public subject to jail sentences for recreating with their families."

Last month, James rejected the findings of the Magistrate judge who found earlier 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 up to the normal high water line of the river. Judge James Kirk relied on the long established federal principles of navigation that recognized the public navigational rights "…entitles the public to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating, sailing for pleasure, as well as for carrying persons or property for hire, and in any kind of watercraft the use of which is consistent with others also enjoying the right possessed in common."

"MRAA is working with the Coast Guard, state boating law administrators, and NMMA to fight this onerous ruling," said Glen Mazzella, MRAA chairman, in the statement.

Is it true??

[PierBridge]

Nothing suprises me anymore.....

I would think this would be overturned somehow.....it's not going to effect my boating.....

[Zzapp]

This fits neatly into my theory that the judicial branch of our government is trying to foment a new revolution. remember the Supreme Court ruling on eminent domain?

ZZapp

[harvey lee]

It just doesnt suprise me as with the power of some people and no common sense or regard for the general public.I cannot believe this wont be overturned.Some of our judges are nuts.

[Jim43]

Even if it were true, law enforcement is already stretched so

thin, it would be impossible to enforce such a law. The river

is so vast, no way could they patrol the entire Mississippi.

The system is self destructing.

[hartner62]

All I can say is good luck. I'll be on the river no matter what! As far as I have heard it was because some farmer in LA didn't want people fishing where the water had flooded over his property and I really don't think this has anything to do with us up here.

[ghotierman]

did a bit of digging....it is true. and the issues involved have been heard hear in minnesota recently ( some fish farmers complaining of public use of a private rearing pond...water had flooded and could be accessed by the road right of way)...

this case is similar...private land owner trying to restrict access to hunters/anglers reaching part of property during high water...

i did a bit of digging and found some more information:

U.S. District Court Judge Robert G. James rules much of Mississippi River off-limits to anglers.

U.S. Magistrate James Kirk had earlier this year recommended that the arrests of the anglers involved in the case be thrown out. James requested the recommendation.

“(T)he sheriff did not have probable cause to arrest the plaintiffs because the sheriff should have known that the plaintiffs were legally authorized to be upon the waters,” Kirk wrote in April. “The sheriff was required to know that the Mississippi River is a navigable river and that federal and state law … has long recognized that the public has a right to use those waters to their full extent.

“Because the arrests were without probable cause to believe an offense had been committed, the sheriff violated the Fourth Amendment rights of the plaintiffs and is answerable to them for any damages they have sustained.”

Kirk admitted in his ruling that federal law (U.S. Code 33, Chapter 1, Section 10) doesn’t explicitly provide for the right to recreationally hunt and fish, but cited Congressional acts in 1811 and 1812 to back up his final recommendation.

“A condition of its admission (to the Union) was that the Mississippi River and all navigable rivers and waters leading into it ‘shall be common highways and forever free,’” he wrote. “This court takes judicial notice that the Mississippi River was navigable in 1812 and remains so today.”

However, James came to the opposite conclusion, hanging his hat on Kirk’s admission that U.S. Code 33 doesn’t actually mention hunting or fishing.

“(T)he court adopts (Kirk’s) recommendation to the extent that 33 U.S.C. (Chapter) 10 and the federal navigational servitude do not provide the plaintiffs with the right to fish and hunt on the Mississippi River,” James wrote in his ruling. “However, … the court denies to adopt Magistrate Judge Kirk’s recommendation that the plaintiffs have a federal common-law right to fish and hunt on the Mississippi River, up to the high-water mark, when it floods privately owned land.”

In seeming contradiction, however, James also ruled that the “Walker Cottonwood Farms’ property (where the arrests were made) is a bank of the Mississippi River and subject to public use to the ordinary high-water mark, as defined by Louisiana law.”

But he then reversed course, ruling that the group of anglers did not “have a right to fish and hunt on the Mississippi River up to the ordinary high-water mark when it periodically floods Walker Cottonwood Farms’ property.”

[ghotierman]

some more background information on this case...

still trying to find the exact ruling or a transcript:

Fishermen's rights fray persists

By Elizabeth Fitch

[email protected]

Fishermen will continue to fight a decade-long battle over public access to the Mississippi River, Monroe attorney Paul Hurd said Friday.

Despite a recent ruling by U.S. District Court Judge Robbie James essentially forbidding hunting and fishing on associated waterways, Hurd said the legal dispute is not over.

"The civil code says everyone may fish the river," Hurd said. "I cannot find a case that says the river does not include the natural rise and fall up to the normal high. It's not what we expected."

The decision stems from a federal lawsuit against East Carroll Parish Sheriff Mark Shumate for arresting fishermen on the river's tributaries. The lawsuit also alleged the plaintiffs have the right to fish and hunt on the Mississippi River between the high and low water mark, despite private ownership of the property located between the waters. Walker Cottonwood Farms LLC, formerly Walker Lands Inc., has long maintained fishermen cannot access Gassoway Lake north of Lake Providence because they actually own the land.

Hurd said he has already filed a motion for rehearing asking James to reconsider the decision he handed down last month. On Aug. 29, James rejected part of an earlier recommendation from Magistrate Judge Jim Kirk in Alexandria that federal common law and state law allow hunting and fishing on certain waterways because the Mississippi River periodically flows over the dry land.

"The Court agrees with Magistrate Judge Kirk's finding to the extent that Walker Cottonwood Farms' privately owned property is subject to public use because it is a bank of the Mississippi River," James wrote. "Such public use, however, is limited to activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce. The Court finds that fishing and hunting are not included in these rights."

The dispute started 10 years ago when fishermen began complaining Walker was blocking access to Gassoway Lake. A group of fishermen filed suit in state district court in 1999 to prevent Walker from obstructing access to the body of water. The 2nd Circuit Court of Appeal in Shreveport later ruled Walker owns the land.

Walker attorney Constance Willems of New Orleans said James' ruling is not only correct, it also echoes the previous state decision. Willems said they will oppose Hurd's motion for reconsideration.

Hurd said James' ruling could have lasting effects for fishermen across the country. He said fishing groups from around the nation have added their support to the suit.

"He held under federal law there is no protected right to fish," Hurd said. "This is one more national opinion out of Louisiana that will have to be explained ... We used to be the sportsmen's paradise."

Not so, Willems said.

"I know that the fishermen interpreted the application that they can't fish on the Mississippi River," Willems said. "But that's not correct. The judge never made a decision on the bed of the Mississippi River. Those rights that you have under state law are not effected."

Hurd said James has advised he will rule by late November. Hurd said if James does not reconsider his decision, he will appeal the ruling.

[ghotierman]

more information...this is an important ruling as it affects angling and anlger access:

http://sports.espn.go.com/outdoors/bassmaster/conservation/news/story?page=b_con_news_fishing_private_property_ruling

This article is a nice summary of the issue. Parm and his friends were arrested for trespassing while fishing between the normal high and low water mark. The ruling, in effect says that hunting and fishing do not fall with in the definition of a navigable use of the waterway. "Only those "activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce" are permitted."

Keep an eye on this issue.

[Northlander]

I guess this farmer should put up a 10' fence so the boats cant get to his land during high waters. This is stupid and will be tossed out. Cant control what mother nature does every once in a while. Shouldnt be the fishermans problem to know where that "High water" line may be. Should be the farmers to make sure his land is posted.

[Jim43]

This case will be hung up in litigation for so long, typical

of our judicial system. Cost us all millions and only make

civil matters far worse off. How can they physically stop us

from fishing the river. The enforcers will be embarrassed to

try enforce such a ruling, since many love to fish the river

themselves. The entire case is purely a waste for all

taxpayers. The high and mighty that rule this land will have

problems when election time comes around.

[Whoaru99]

Incredible. Simply incredible....

[Wade Joseph]

I too am not surprised. Some of you can't see the forest for the trees. The Judical branch of our government has been trying to govern our country for some time now. Too many judges trying to govern from the bench.

Yes this is un-enforcable but it still could set precidence that could eventually give the liberal PETA freaks amunition they need to stop a huge amount of hunting and fishing all over this country.

The law in Wi just reverted back to the "feet wet" rule when fishing small rivers and streams this year. We were allowed to walk on the bank up to the high water mark, but no more, its back to where you must be standing in the water to not be tresspassing.

The day is coming where we are gonna have to really stand up united to continue to enjoy hunting and fishing.

[Ely Lake Expert]

Quote:

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In a rather bizarre ruling that has marine industry officials worried, Judge Robert G. James of the United States District Court, Western Division of Louisiana, has said that it is criminal trespass for the American boating public to boat, fish, or hunt on the Mississippi River and other navigable waters in the US.

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The part of the quote that says "other navigable water in the US" to me sounds me like he is trying to make it illegal to go on any water in the US.

umm, wow. Am I the only one that reads it that way?

This is such a joke.

[Black_Bay]

How about we just let Louisiana become it's own country?

[Jim43]

Quote:

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How about we just let Louisiana become it's own country?

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No worries there, Global warming will reclaim most of

it within the next 20 years. About the same time it takes for

a judicial decision these days.

[RobertELee]

Well I guess that I and about a million others are criminals. So what, are they gonna arrest us all?

[Whoaru99]

Quote:

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No worries there, Global warming will reclaim most of

it within the next 20 years. About the same time it takes for

a judicial decision these days.

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Which is why we have frost warnings for tonight?