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Fishing access on the line

4065 Views 16 Replies 11 Participants Last post by  Sonny
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.
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It may take a few years to make it to the U.S. Supreme Court, but I believe this will get over-turned.
Seems to be alot of counterdicting of laws.
We have a Lake in S IL (Lake Egypt) where you cannot fish waterfront docks. Most people dont enforce it but there are some that even go as far as posting no fishing signs. I usually make it a point to wrap a cheap plastic around their sign, my mistake of course. :tongue2: :tongue2: :tongue2:
Fat Basser said:
We have a Lake in S IL (Lake Egypt) where you cannot fish waterfront docks. Most people dont enforce it but there are some that even go as far as posting no fishing signs. I usually make it a point to wrap a cheap plastic around their sign, my mistake of course. :tongue2: :tongue2: :tongue2:
If the water is Public then you should be able to fish it. Check with you local game warden. There are some marina's that try that here and then they find out we can still fish it.
This is all non sense. I also agree with JoeB and if it is water it is fishable.
I was always under the impression that if you owned property on the water you owned the land not the water. Surely there will be stop put to this, its almost Un-American. Id love for somebody to step out in their backyard and tell me that i cant fish there......i'd have an ear full for them. Dave
This is why it is so important to vote, those who vote for are the ones who deal with who becomes a judge at the feral level. If you are not vigilent you can lose your right to fish. It does no good, & can even hurt, when you give someone trying to stop you from fishing a piece of your mind, if they don't like your explanation then move on, fight the battle when you calm down, & fight it where it can help.
I'm not talking about cussing them Rodney, i have acquired the "gift" of tactfully convincing someone to see things from my point of view. This is a skill i have had since a small child, then The Marine Corp refined it. This is also the reason for an homely man such as myself landing a drop dead gorgeous wife that is by far out of my league. Dave
Geeze, a Marine, tactfully, charge the dock, all guns blazing, calling in air support. No wonder they gave in. :rofl1: :rofl1: :lmao: :lmao: Thanks for your service Dave!! :clap: :clap: I've seen a few guys who were less than tactful which is why I mentioned it.
it was my pleasure Rodney! Id love to tell you that i was all patriotic when i joined, but in actuality there was nothing goin on. I was looking to be a US Marshal, the recruiter for the marshals gave me 2 options 4 years in college or 4 years in an infantry unit. My Dad was a marine so i said what the hell? the war in Afghanistan got pretty bad when i was in boot camp, so when i finished bootcamp and SOI they threw me and and a machinegun on a plane headin straight for that God forsaken place. Im glad i did it but wouldnt do it again for all the tea in China. Dave
Judge James is actually correct about there being no law guaranteeing fishing access. For that to be a USA "right" there must be a specific law identifying the right and protecting it. From there theoretically no law can be made removing the right. States can and have enacted rights laws protecting fishing access, but on rivers crossing multiple states federal law supersedes state laws. So far, on the national level, fishing access "rights" have remained clustered as cultural issues, it being more of a moral issue. So, we have no protection on the federal level.

The Mississippi and other large rivers have a lot of history around landowners being forced to sell land to the governments for waterway improvements, often splitting farms and rendering acreage too remote to use. The old timers and their children remember the troubles their families faced trying to hang onto the farms, and still resent government interference of any kind. On the Arkansas River there was a lot of unnecessary land acquisition, property that is now very valuable. Landowners adjoining the rivers have worked hard to bring lawmakers to their side, and will be calling on them to secure their hold on fishing access. There's money to be made selling fishing permits, and even more setting up exclusive fishing/hunting clubs that already pretty well have the best places excluded except for wealthy members. Many are going that direction rather than continue to attempt farming or raising cattle. Duck hunting clubs are becoming plentiful, making farmers wealthier than ever before. Frankly there probably are no farmers caring about the plight of bass anglers.

The only defense we will have is to raise the sportsmen's voting percentages from maybe 20% to 60%, enough to trump the friendships between farmers, environmentalists, and lawmakers, both state and federal. I sadly don't figure sportsmen will rally in time. Fishing license sales are already falling at an alarming rate. If the Clean Water issue of filtering the water exiting all boats materializes in expensive requirements like the estimated $800 per year permits, the whole of the oppression is likely to kill off desires to fish rivers.

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Ouachita said:
If the Clean Water issue of filtering the water exiting all boats materializes in expensive requirements like the estimated $800 per year permits, the whole of the oppression is likely to kill off desires to fish rivers.
Jim, could you add in a little more about this or point us in the direction of some additional information?

This is a very heated discussion in many areas. Does anyone remember the idiot that opened fire on a pro angler ( sorry the name escapes me) a year or two back. As a former marine I never leave home without my American Express (30 caliber or 44 special) card. :tbh_flag: :lmao:
Perry, the amendment is here at

Boating organizations estimate the new requirement will likely result in a $800 EPA permit for use of public waters, plus the cost of equipment needed to comply unknown but variously estimated at $2000 to handle the high volume of water discharged from a high performance outboard. All of it would have to be captured and scrubbed. The permit charge would likely be quite high because of the expenses of inspections on waterways.

B.A.S.S. TIMES and various fishing mags reported on it encouraging us all to get involved. It's been big news all over ever since the ruling. So far there isn't much being done that I can see. I read an article a while back written by an engineer that figures the only feasible way to afford or even actually comply with the CWA would be to go to electric motors. But even then the CWA regulates water washing overboard into a boat then exiting with boat contaminants. It would basically require fishing out of a whale boat with a very high rise above water. Bassboats would soon become flower pots or sunken gold fish pools in the yard. They sit so low in the water it would be impossible to filter all the water entering and leaving during high wave conditions. Heavy rain could be handled by the filter system. The EPA would probably have to require sealed metered bilge pumps they would have to read occasionally, assessing a special fee per gallon pumped out. A work-around would be to use a bail bucket, but not be seen bailing water.

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Thanks for the additional information Jim. Obviously I need to pay more attention. I hadn't caught this until you pointed it out.

I'll certainly be making it known the exemption needs to be reinstated.

My dad owns a waterfront camp on Toledo Bend with a dock. If anyone catches a fish in front of our dock, we feel good for them. To me it's just the luck of the draw.
Regarding fishing private property, I've always asked the land owners, or land residents, before I fished it, and abide by any wishes they informed me about (strictly catch-and-release, etc.). I also leave nothing but my footprints (i.e. I clean up after myself). That's only right. But stopping open fishing on flooded land? That just doesn't make any sense. If the water's covering the land, the rules that apply to the water should be observed. A guy in a boat, not messing up the guy's property, should be able to fish in the water on that property. You might as well try to tell the fish they can't swim over the flooded land, too!

Regarding the flushing out and cleaning of boats, I'm a firm believer in avoiding invasive species. They are starting to get totally out-of-hand here in northeastern Illinois. Zebra mussels have ruined fishing in countless areas, and big-headed carp are doing their damage as well. So whatever we can do to stop this should be done. I agree that boats should be rinsed off, inside and out (livewells, etc.), motors should be flushed out, and the rigs left to sit for five days (or whatever) to be sure that the mussels, if there are any, are dead. That's fine. What I do not agree with is our government using this as an excuse to force their hands deeper into our pockets. $800.00 plus? Please! Why doesn't the government go after the people responsible for this stuff in the first place: the importers and the distributors who are making their crap over in lands where these biological menaces come from? We didn't have these problems when everything we had was "Made in USA," only when we started having things made cheaper in the Pacific Rim and having it shipped in. Why can't the responsible parties be the ones to cover the brunt of the costs for their mess-ups? Why do we Blue Collars have to, once again, pay for the mistakes of the fat cats? That catfish farm farmer who imported the big-headed carp, then lost control over them, got out of paying his fair share for the damage he caused, too... and the bigheads are now invading most of the Mississippi River chain all the way up to the Chicago River, and killing off native species. And these big US companies doing all of this importing aren't paying for their mistakes, letting the zebra mussels, gobies, and other damaging wildlife from other countries in with their bilge water (which is why we now have to watch our boats, so we don't spread these troublemaking species any further than they're doing on their own). All these fat cats ever got was maybe a $2 "slap on the wrist" fine or something... then they continue business as usual, bringing even more of these harmful species in that you and I will have to pay to control or eradicate. What a load!!!
:dunno: :sad2:
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