Fishing/Hunting/Boating now illigal on all navigable U.S. waterways - Colorado Fishing Forum

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Old 09-20-2006, 07:59 PM   #1 (permalink)
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Default Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

Check this out, I've seen it on two sites, now:




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09/16/06 at 1:53pm US federal judge declares boating, fishing, hunting illegal in all US navigable waters

Judge Robert G. James, U. S. District Court, Western District of Louisiana, Nominated by William J. Clinton on January 27, 1998

Civil Docket No. 3:01-CV2624
United States District Court; Western District of Louisiana; Monroe Division

in the case of : Normal Parm, Jr. et al. v. Mark W. Shumate, as Sheriff of East Carroll Parish

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.

Judge 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."

************

From the Law Offices of Paul Hurd

PRESS RELEASE
U.S. DISTRICT JUDGE DECLARES RECREATIONAL BOATING
AND FISHING ILLEGAL ON MISSISSIPPI RIVER AND
AMERICA’S OTHER NAVIGABLE WATERS

In the case of Normal Parm, et al v. Sheriff Mark Shumate, of East Carroll Parish, (Civil No.3:01-CV2624; United States District Court; Western District of Louisiana, Monroe Division) United States District Judge Robert G. James has declared it to be criminal trespassing for the public to boat, fish or hunt on the Mississippi River and other navigable waters of America, affirming the arrest of fishermen and boaters utilizing the waters of the Mississippi River. This ruling declares recreational boating, fishing tournament, waterfowl hunting, and pleasure boating illegal on navigable rivers, unless conducted within the main channel of the river, or with the permission of all riparian landowners along the navigable river.

District Court Judge James’s ruling under federal law grants to the riparian landowners of the Mississippi River, the exclusive and private control over the waters of the Mississippi River, outside of the main channel of the Mississippi River. The shallows of navigable waterways are no longer open to the public. This decision, based in federal law, equally applies to all other navigable waterways of America. For bass fishermen and duck hunters, and other fishermen and hunters that use the ever changing shallow waters of navigable rivers for their outdoor activities has been declared illegal. District Judge James affirmed that the public is subject to criminal arrest for trespassing on the riparian landowner’s privately owned and controlled water if they venture outside the main channel of a navigable waterway.

On April 30, 2006, Magistrate Judge James D. Kirk (Document 80) found 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, across the entire surface of the Mississippi River, up to the normal high water of the river. Judge Kirk relied upon the long established federal principles of navigation that recognized that the public’s federal navigational rights ". . . entitles the public generally to the reasonable use of 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." Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir., 1931). Further, Magistrate Kirk affirmed the public’s fundamental right to boat and fish on the navigable waters of Louisiana for both recreational and commercial purposes affirming the Civil Code’s declaration that " Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, . . . ." (Louisiana Civil Code, Article 452), and the Louisiana Constitution declaration that "[t]he freedom to hunt, fish, and trap wildlife, including all aquatic life, traditionally taken by hunters, trappers and anglers, is a valued natural heritage that shall be forever preserved for the people." (Louisiana Constitution, Article 1, Section 27).

On August 29, 2006, District Judge Robert G. James, United States District Court, sitting in Monroe, Louisiana rejected the findings of Magistrate Judge Kirk, and declared that the American Public has no federal or state right to fish or hunt on the Mississippi River, or any other navigable waterway in America (Document 139).

U.S. District Judge James specifically declared that neither century old statutes enacted as each State joined the Union, nor federal common law of public use, create a right of the public to use the navigable waters of America for recreation, fishing or boating, unless the activity is done as a commercial enterprise, and limited to the main channel of the river. Judge James has declared that the public’s only right to use the navigable waters of America are limited to commercial activities, and specifically DOES NOT INCLUDE the right of the public to boat, fish and recreate on the rivers of America.

Judge James rejected the argument made by the Plaintiffs that the multi-billion dollar commercial activities that support the manufacturing and sale of personal and recreational water craft and related equipment, and the public recreational uses of the navigable waters, were sufficiently "commercial" to be allowed on America’s navigable waters. If the judgement of District Judge James is affirmed, the exclusion of the recreational boater, fisherman and hunter threatens the financial viability of the entire segment of the American economy that supports recreational use of public waters.

Finally, Judge James declared that the people boating, hunting or fishing on the waters of the Mississippi River, at normal heights, are subject to arrest for trespass, unless the activity is limited to the narrow, main channel of the river.

The following are quotes from the opinion of Judge Robert James, Western District of Louisiana:

CONCLUSION NO. 1: AMERICAN PUBLIC HAS NO FEDERAL LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.

District Court Judge Robert James declared that the People of America do not have the right under federal law, holding that " . . . the federal navigational servitude do[es] not provide the Plaintiffs with the right to fish and hunt on the Mississippi River."

District Judge James declared that the People of America do not ". . . have a right to fish and hunt on the Mississippi River up to the ordinary high water mark when it [the Mississippi River] periodically floods . . ." the riparian land.

CONCLUSION NO. 2: AMERICAN PUBLIC HAS NO STATE LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.

District Judge James declared that under State law ". . . fishing and hunting [on the waters of the Mississippi River and other navigable waterways] is not included in these rights" that are granted on rivers of America as they naturally rise and fall.

CONCLUSION NO. 3: ANY PERSON WHO FISHES OR HUNTS ON THE WATERS OF THE MISSISSIPPI RIVER, OUTSIDE THE MAIN CHANNEL, IS SUBJECT TO ARREST FOR TRESPASSING ON THE WATER.

District Judge James declared that if you are fishing on the Mississippi River anywhere other than the main channel, ". . . the Sheriff . . . has probable cause to arrest you for trespassing."

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Old 09-20-2006, 08:56 PM   #2 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

How much land along the Mississippi River does Judge James own?

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Old 09-20-2006, 09:16 PM   #3 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

Great reading bnred9. I am bitting my tongue at the moment. A response may follow.
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Old 09-20-2006, 09:19 PM   #4 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

just a couple points here

just becouse one judge in mississippi makes a ruling does not "change" the law

this will definatley be appealed to a higher court and the final ruleing may be quite different

this had to do with a "lake" in the mississippi system something about fishing inbetween the ordinary high and low water lines now when the miss floods sometimes it floods farmers fields and other obviously private areas so what was the actual situation?

i agree this could lead to stricter ruleings on water rights but it does not mean we are going to get kicked off pueblo res

the debate over water access has been going on for many years and will continue to rage on with no forseeable end

most waters in co that go thru private land do not have the huge fluctuations of water levals that the miss has

if you are concerned over this ruleing there are many fishing and boating associations that have been fighting this that would more than welcome yur support
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Old 09-21-2006, 12:18 AM   #5 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

Eventually the entire country will be "private property". Anyone ever been to the east coast? Some states have less than 5% of the land open to the public, the rest is PRIVATE. Hunting and fishing will become a rich man's activity.
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Old 09-21-2006, 08:29 AM   #6 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

Not talking about the Mississipi here because I'm sure that decision only affects flooded areas that are on private land. I have seen many areas go "private" whether we're talkin hunting or fishing because the land owners are just sick and tired of rule violations and picking up after people.

When a private fishing club approaches a landowner and offers money and the promise to treat the land like their own, its not supprising that many are receptive. The fishing public can be their own worst enemies



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Old 09-21-2006, 08:45 AM   #7 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

I have been following this ruling pretty closely here is an opinion of an American Rivers attorney posted on another site by Ralph Cutter:

Below is an email I just received from an American Rivers’ attorney who specializes in this kind of thing:
1) This ruling applies to Louisiana only.
2) The ruling will likely be appealed to the 5th Circuit, with a decent chance of being overturned.
3) My understanding is that California law is better on this issue, and we have the 9th Circuit as back up.
The judge acknowledged the federal navigational servitude on waters that lie between the ordinary low water mark and the ordinary high water mark, but concluded that that servitude does not grant a federal common law right to fish on those waters. Precedential decisions in the 5th Circuit had supported the navigational servitude, but didn't mention hunting and fishing in describing the "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire".
The judge then looked to Louisiana state law, which describes lands between the ordinary low water and ordinary high water marks as the "banks" of the river. Louisiana law does create a "public use" right on the banks, but again the judge concluded that the various commercial uses described did not extend to hunting and fishing.
This decision is state-specific, and will likely be appealed, but it does conclude that hunting and fishing are not public rights on the area between the ordinary low and ordinary high water marks.

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Old 09-21-2006, 09:02 AM   #8 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

I'd have no trouble applying and paying for a commercial fishing license.

Banning fishing and transport of fish caught could very well violate the interstate commerce clause since it is an interstate water way (same as interstate highway), I'm sure there are a lot of commercial fishermen and guides that would celebrate not having to deal with personal water craft and recreational boaters.
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Old 09-21-2006, 09:30 AM   #9 (permalink)
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Default Re: Fishing/Hunting/Boating now illigal on all navigable U.S. waterways

Quote:
Originally Posted by laker taker
Eventually the entire country will be "private property". Anyone ever been to the east coast? Some states have less than 5% of the land open to the public, the rest is PRIVATE. Hunting and fishing will become a rich man's activity.
What do you mean"will become" . I quit waterfowl hunting quite some time ago because it's almost impossible to get any decent hunting w/o a lease. Big game hunting is fast approaching that point. There are plenty of places to hunt on public land, but after the first shot's fired, all the game hits the private land, where they're unaccessible to us peons. I guess I'm just too old. I grew up being able to fish & hunt almost anywhere I wanted. Sure, there was plenty of private land, but we seldom had problems gaining access, if we asked politely and behaved ourselves. Now there are condos growing where those beaver ponds and elk meadows were, or else, someone is charging a hefty fee for access. There is something inside of me that just won't allow me to pay for access to hunt & fish- just my opinion
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