Turn in your boats, lads.. sailing is now illegal in the US!?

[California Tanker]

http://www.ybw.com/ibinews/newsdesk/20060814154923ibinews.html

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.


Article continues on link.

I'm not entirely sure what to say. Except that I don't like boating much, and fishing less.

NTM

[Dingfod]

I'm pretty sure that decision won't stand. I thought it was established law that all navigable waters belonged to the people (everyone) and not to the landowners.

[ms_ann_thrope]

Not that I don't trust a foreign-run marine-industry website to provide accurate analysis of American legal happenings, but... having just looked up and read Parm v. Shumate, that's not exactly what the holding said.

The fishermen in this case were in their boat over private land that was temporarily (due to flooding) submerged by the waters of the Mississippi... private land that is 3.5 miles west of the river and completely dry for most of the year! Even though the Mississippi River was the source of the water covering the land, that didn't transform the land into the navigable waterway known as the Mississippi River (to which the boaters and fishermen have public use rights).

:fishing:

[kiwimac]

I am not an expert on US law but I would have considered that it did in fact turn it into a part, albiet temporarily, of the mississippi and so covered by by the navigable waterways laws.

[ms_ann_thrope]

That was pretty much the fishermen's argument, kiwimac. However, this is not the first case where a Louisiana court has held that "privately owned land does not become part of a navigable body of water when a nearby navigable body of water overflows its normal bed and temporarily covers the property."

Consider the situation from the perspective of the property owners: should their ownership interests be extinguished (even temporarily) because of the flooding?

[D. Scarlatti]

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.

[T]hat's not exactly what the holding said.

You have an undeniable gift for understatement.

[California Tanker]

Perhaps the truth lies in between the two:

From the slightly less international "Louisiana Sportsman"

http://www.louisianasportsman.com/details.php?id=213

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.”

Hilzim said it appears that James issued a very narrow interpretation of the law.

“I’m not a lawyer … but the judge seems to be saying that the public has the right to navigate up to the high-water mark but not to fish,” Hilzim said. “The judge has basically said you can take your fast boat to the high-water mark, but you can’t fish.

“You and I can take our speed boat or pontoon boat and drive around all we want, but we can’t fish.”

Hilzim said the case is so sweeping that it could prohibit hunting and fishing on navigable waters across the country.


NTM

[ms_ann_thrope]

You have an undeniable gift for understatement.I'm not being graded on this, am I? :shiftier:

The article in the OP overstates the holding. A federal district judge in LA has said that Parm and friends are trespassing if they fish on Walker Cottonwood Farm's flooded property... hardly a death knell for the amateur boating or fishing industries, contrary to what the OP would have readers believe.

[California Tanker]

Consider the situation from the perspective of the property owners: should their ownership interests be extinguished (even temporarily) because of the flooding?

Probably depends on your originating perspective: Who owns the land under a road? Does that person have the rights to stop someone from using the road? UK law says the landowner owns it, but can't stop someone from using the road. I don't know what the US policy is.

NTM

[Blake]

In general, I think land is appropriated to build public roads in the United States. If it's a private road, the private landowner owns it and can restrict access to it; if it's a public road, it's public land.

[/tangent]

[ms_ann_thrope]

It's quite a leap from a federal district court judge in LA saying that boaters can't fish on Walker Cottonwood Farms' flooded property to making hunting and fishing prohibited on all navigable waters anywhere in the country. Kind of like the same sort of leap in logic that takes one from the holdings in Roe v. Wade or Lawrence v. Texas to the inevitable downfall of western civilization, the destruction of the family, and Armageddon...

My point was that the OP was sensationalist and did not accurately represent the holding in the case. Could the judge have drafted a more clear opinion? Undoubtedly; as written, I expect it could be fodder for the Fifth Circuit Court of Appeals. In the meantime, however, I highly doubt that fisherman will be kept from fishing along the Mississippi, except maybe if they try to fish on flooded private property.

Please keep me informed, though, should would-be bassmasters begin overcrowding Louisiana jails as a result of this recent ruling.

[Freddy]

In general, I think land is appropriated to build public roads in the United States. If it's a private road, the private landowner owns it and can restrict access to it; if it's a public road, it's public land.

[/tangent]

I think it depends in which state one lives in concerning private streets. In MA I live on the corner lot of two private streets. I cannot stop someone from using the street,(car, bike, or viatic), but I can prohibit someone, a neighbor, from parking in front of my property as I own half of the street. In NH I own property where I have the right to use a private road, but we do not know if the abuters own half of the road.

[Ymir's blood]

In general, I think land is appropriated to build public roads in the United States. If it's a private road, the private landowner owns it and can restrict access to it; if it's a public road, it's public land.

[/tangent]
This is true. In NC, the courts have ruled that the state owns all public roads. A lot of roads also have state right of way extending beyond the shoulders, though this depends on the history of the road itself, when the land was acquired and what not.

[California Tanker]

Could it not then be argued that Nature has appropriated the field to be turned into part of its public river system?

NTM

[ms_ann_thrope]

Could it not then be argued that Nature has appropriated the field to be turned into part of its public river system?

NTMIf the water never receded, I would imagine so. Hence the importance of levees, protection against soil erosion/subsidence, etc.

[D. Scarlatti]

I'm not being graded on this, am I? :shiftier:

I was giving you an A! I read the opinion too; the synopsis in the OP is ridiculous.

[D. Scarlatti]

From the slightly less international "Louisiana Sportsman" ...

This article is arguably worse, in that it completely ignores the Louisiana law at issue in this case, which comes into play after the federal common law rights to navigation are addressed:

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. 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.

Comment (b) to La. Civ. Code art. 456 states, in pertinent part:

(b) Article 455(1) of the Louisiana Civil Code of 1870 declares that "everyone has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like". According to well-settled Louisiana jurisprudence, which continues to be relevant, the servitude of public use under this provision is not "for the use of the public at large for all purposes" but merely for purposes that are "incidental" to the navigable character of the stream and its enjoyment as an avenue of commerce.

The Second Circuit and other Louisiana courts have interpreted La. Civ. Code art. 456 to exclude fishing and hunting from the type of public use permitted on flooded private property because these activities do not "meet the definition of using the bank of a river at its high water mark for a navigational purpose." [citations omitted]

Therefore, this Court concludes that the Plaintiffs' activities, to the extent they include fishing and hunting, are not permitted on Walker Cottonwood Farms' property, because these activities are not "incidental to the navigable character of the [river] and its enjoyment as an avenue of commerce."

Parm v. Shumate, 2006 U.S. Dist. LEXIS 61227, 15-17 (D. La. 2006).

Given that the foregoing conclusion based on Louisiana law appears to be supported by a considerable amount of local precedent, which specifically addresses the exclusion of both fishing and hunting from activities incidental to the river's navigable character, the present ruling doesn't seem to be all that remarkable.