Posted on 05/02/2006 8:18:16 AM PDT by balch3
MONROE, La. (AP) - A federal magistrate judge has recommended that the public be allowed to fish on Mississippi River tributaries that stretch into private property in East Carroll Parish.
U.S. Magistrate Judge Jim Kirk in Alexandria handed down an opinion that the public can boat, fish and hunt on the waters of the Mississippi River as it rises and falls and that local sheriffs cannot arrest the fishermen and hunters for trespassing as long as they remain in their boats.
The opinion was prompted by a motion to dismiss a case against East Carroll Parish Sheriff Mark Shumate for arresting fishermen on Mississippi River tributaries.
U.S. District Judge Robert James will take the recommendations under advisement early next month and determine whether to adopt Kirk's findings.
Although the state 2nd Circuit Court of Appeals has ruled that Walker Land Co. owns the land in East Carroll Parish, some of which is covered by Mississippi River tributaries, Paul Hurd, attorney for the fishermen, said the issue goes deeper than that.
The fishermen have the right to fish on public waters, Hurd said.
‘‘We don't want to go on land, and if some parts are on dry land, we don't want to go across that land to get to more water. But we have the right to fish on the Mississippi River,'' Hurd said.
Hurd is asking Judge James to stop Shumate from arresting the fishermen for trespassing. The preliminary motions are heard by Kirk, who then advises James. Kirk's opinion found that the fishermen had been wrongly arrested and that Shumate would have to pay damages for the arrests.
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Information from: The News-Star, http://www.thenewsstar.com
here is a novel thought...but what exactly does the LAW say ? are federal judges ever going to be required to apply ONLY the specific laws in a case ? more Bravo Sierra
ping
from a discussion on another board, the issue seems to be whether the waters are navigable. If they are, then the boaters aren't trespassing. So the judge gets to decide whether flooded tributaries are navigable.
If I recall correctly, there is a Federal law that says that nobody can 'own' a "navigable waterway".
In rural alaska, everyone is armed. Right or wrong, you'd be surprised how effective warning shots seem to be. Probably wouldn't be that way but the nearest law enforcement is 200 miles. Live in a community of 100 whites & 30 natives; hasn't been a murder in over 20 years.
Your thoughts? (I know what mine are. LOL!)
Here in Michigan the law says any navigable waterway.
thanks
I wonder if this local sheriff was just fishing for revenue?
What's a navigable waterway? How deep does it have to be? There are a lot of streams you could float a canoe or raft in, but not much more. Are those navigable?
In this case, a tributary of the Mississippi River that can handle a fishing boat.
According to the Corp of engineers, a mud puddle is navigable. So you can see the writing on the wall where this is going. The property owners are out of luck.
A navigable waterway is one in which commercial transportation has taken place, even historically.
Rule 3, of the "Rules of the Road" for navigation defines the western rivers as:
(l) "Western Rivers" means the Mississippi River, its tributaries, South Pass, and Southwest Pass, to the navigational demarcation lines dividing the high seas from harbors, rivers and other inland waters of the United States, and the Port Allen-Morgan City Alternate Route, and that part of the Atchafalaya River above its junction with the Port Allen-Morgan City Alternate Route including the Old River and the Red River;
Yeah, in the direction of what, 600 years of common law tradition? Please don't confuse this with the whole "wetlands or not" issue. The two are completely unrelated.
Generally speaking, "navigable" is taken to mean anywhere where the water is at least three feet deep.
By the way, this isn't new, it's been around for over 200 years. The catch here is that you can't cross private property to get to the water. In this case, the judge *is* following the law.
"According to the Corp of engineers, a mud puddle is navigable."
Not true.
Navigable means you rode something to get where you were going. If you have to get out and use your feet, or pickup the craft even a little, you are tresspassing and not in navigable waters. It depends on the vessel you are manning.
These landowners, own exactly that, the land nothing more.
Illinois has a list of lakes, rivers, streams, etc. that are explicitly classified as "navigable waterways". You can canoe, boat, fish, etc. on navigable waterways no matter what the adjacent property owners think of your activities. If a waterway is not classified as navigable, then the property owners do have rights to have something to say. If a property owner owns the property on both sides of something not classified as a navigable waterway, and you boat up that waterway, you are tresspassing.
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