Fishing access on the line

Case may limit where fishing will be allowed in the future

By Andy Crawford
BASS Times Senior Writer

In late August, a Louisiana judge ruled that federal laws do not protect the right to fish or hunt on the Mississippi River.

"This gives some ammunition for these private landowners to put gates up," said BASS Associate Conservation Director Chris Horton. "By far, this is probably the most concerning issue within the hunting and angling community right now."

The ruling came in a case filed against East Carroll Parish Sheriff Mark Shumate by a group of fishermen arrested over the past decade on trespassing charges for floating out of the Mississippi River channel and over private land inside the levees during spring floods.

The group appeared on the verge of winning their case after Federal Magistrate Judge James D. Kirk recommended that presiding U.S. Fifth District Federal Judge Robert G. James rule that the water was "navigable" and therefore subject to public use, including hunting and fishing, to the ordinary high-water mark even when it flowed over private property. State and federal authorities have determined the high-water mark in that area is on the levee, about three miles from the river's low-water channel.

Judge James accepted Kirk's recommendation that the property "is a bank of the Mississippi River and subject to public use up to the ordinary high-water mark," but he refused to accept any inherent common law right to fish or hunt on the waters.

Paul Hurd of Monroe, La., the pro-bono attorney trying the case, told BASS Times he was stunned when the ruling was handed down.

"I can't tell you how seldom (recommendations of) magistrates are not affirmed," Hurd said. "There are probably not 2 percent & that are not affirmed."

However, James ruled that recreational hunting and fishing has no protection on the river.


What the ruling means
• The federal navigational servitude nor the U.S. Code do not provide the right to fish and hunt on the Mississippi River.
• The Walker Cottonwood Farms property, which lies between the low-water channel and the river levee, is a bank of the Mississippi River, and is subject to public use up to the ordinary high-water mark.
• There is no common law right to fish and hunt on the Mississippi River up to the ordinary high-water mark when it periodically floods.
• The East Carroll Parish sheriff is not entitled to qualified immunity — protection from liability — for the arrests he makes.
• The East Carroll Parish sheriff had probable cause to arrest the plaintiffs under state trespass laws for floating on the Mississippi River when it covers the land in question.
• The plaintiffs are not entitled to an injunction against the East Carroll Parish sheriff for further arrests.
"(T)he federal navigational servitude (does) not provide the plaintiffs with the right to fish and hunt on the Mississippi River," the judge ruled.

James' decree contradicts Louisiana Civil Code 452: "Everyone has the right to fish in the rivers, ports, roadsteads and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the property of adjoining owners."

"That says everyone has the right to fish in the rivers," Hurd said. "The only exception is that 'he does not cause injury to the property of adjoining owners.'"

Hurd said there are many other legal precedents supporting public fishing on navigable waters.

"I've got a Louisiana Supreme Court case that says the people of Louisiana have the traditional right to fish the rivers of Louisiana in boats," Hurd said. "What they're trying to do is redefine the river and say that anything as (the river) rises is owned by the landowner."

Hurd said that flies in the face of U.S. Army Corps of Engineers regulations (33 CFR Part 329.4), which read: "A determination of navigability, once made, applies laterally over the entire surface of the water body, and is not extinguished by later actions or events which impede or destroy navigable capacity."

Hurd said that means rising river waters remain navigable even over private property.

"I can find no statutory state or federal jurisprudence that differentiates the river laterally, that there are pieces of the water that are part of the river and pieces of the water that are not part of the river," he said. "Legally his opinion is unsupportable."

James' ruling also contradicts Silver Springs Paradise Co. v. Ray, a 1931 U.S. Fifth Circuit Court of Appeals case decision, Hurd said.

That case said the public right of navigation "entitles the public generally to reasonable use 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."

However, James ruled that judges in that case "did not specifically find that the public has a federal common law right to fish or hunt on a navigable source of water. Therefore, the court declines to interpret the Fifth Circuit's decision so broadly as to find that the plaintiffs have a federal common law right to fish or hunt on a navigable water, such as the Mississippi River, when those waters periodically flood privately owned land."

Hurd said this interpretation appears to protect only commercial use.

"There is a division between commercial and recreational use in this ruling," he said. "You get in there with a commercial fishing license and you're OK, but you can't recreationally fish."

Such an interpretation could have far-reaching impacts on recreational fishing nationwide, Hurd said. (See related stories.)

"If the Ouachita Parish River Authority declares you to be a danger to commercial users, you could be barred (from fishing on the Ouachita River in northeast Louisiana), and you just turned the river into a sterile interstate," he said.