What is this crap? - Page 3 - Offshoreonly.com
Originally Posted by tee4texas1
Panther - BuBoy - now that I gave my opinion, what do you think of this ruling - is it reasonable - any chance this could be correct - any chance this could be legislated?
What do I think.....they forgot how Columbus discovered America...
Wtf is Columbus???
Is that the name of the judge??
I wrote to BOAT-U.S. to find out their take on this whole issue. I received a quick response from Scott Croft, Assistant Vice President of Public Affairs and he is an Assistant Editor for BoatU.S. Magazine.
BoatU.S. Statement on Parm V. Shumate Ruling 8/29/06 US District Court Western District of Louisiana, Monroe Division
A recent decision by a Federal court overturning a lower court finding that a law enforcement officer, Sheriff Mark Shumate of East Carroll Parish Louisiana had probable cause to arrest a fisherman, Mr. Normal Parm, Jr., for trespassing has some recreational boaters concerned.
The property or swale* in question was located in Louisiana below the Mississippi River’s high water mark 3.5 miles from the waterway but connected via a drainage ditch. In his August 29, 2006 ruling Federal U.S. District Court Judge Robert G. James overturned Louisiana state Magistrate Judge James D. Kirk’s previous ruling. James found that the temporarily flooded land in question, owned by Walker Cottonwood Farms and on which Parm was found fishing without permission, was indeed private property and since it is dry most of the year it was not a navigable waterway. Judge James ruled that Sheriff Shumate was within his rights and had probable cause to arrest the trespassing fisherman.
Judge James also found that the fisherman did not have a federal or state common law right to fish or hunt on a navigable water, such as the Mississippi, when those waters periodically flood privately owned lands, even if the lands are below the traditional high water mark. Keep in mind that in many low laying parts of the country, a waterway’s high water mark can be miles from the normal (non-flooded stage) riverbank.
What is lost in the hype of the case is that Judge James agreed with the lower state court that the right to reasonably use navigable waters included “legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire.” And Judge James also concurred with the lower state court that privately owned land is subject to public use because it’s a bank of the Mississippi River.
Where Judge James differed from Judge Kirk’s findings, however, was that public use “is limited to activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce.” Hunting and fishing, specifically, are not activities included as incidental to navigation.
Ironically, previous rulings from Louisiana state courts have also supported Judge James' findings 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 navigational purpose.” That definition from 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 trees which are there planted, to unload his vessels, to deposit this goods, to dry his nets, and the like.”
A 1990 Louisiana second circuit ruling found that “fishing and hunting in a boat over flooded private property are not incidental to the navigable character of the stream and its enjoyment as an avenue of commerce.” And as recently as 2004 another ruling found that using the banks along navigable rivers “is limited to navigation and not hunting.”
Much of the concern amongst boaters appears to have come from an August 31, 2006 press release — that was widely picked up by the boating press — issued by the Parm’s attorney, Paul L. Hurd.
In his press release, Hurd wrote that Judge James had, “declared it to be criminal trespassing for the public to boat, fish or hunt on the Mississippi River and other navigable waters of America…This ruling declares recreational boating, fishing tournament, waterfowl hunting, and pleasure boating illegal on navigable rivers, unless conducted in the main channel of the river or with the permission of all riparian landowners along the navigable river…The shallows of navigable waterways are no longer open to the public.”
BoatU.S. disagrees with Hurd’s characterization of the ruling and believes the press release was distributed in an effort to sensationalize the issue and gain funding for the lengthy appeal process. Judge James’ August 29 ruling makes no mention of separating activities that are permissible in the “main channel” or “shallows.”
BoatU.S. believes that Judge James’ ruling confines its focus to temporarily flooded land and does not alter or change boaters’ basic rights of navigation. BoatU.S. also believes that the ruling adequately protected rights of waterfront private property owners, and hopes the continued appeal process seeks successful resolution for all parties.
*Swale definitions include: A dry creek acting to divert and direct water runoff after heavy rains; a low-lying or depressed and often wet stretch of land, a ditch on the contour that does not direct water, but holds it and allows it to gradually infiltrate.
I'm impressed - finally someone asking for my opinion on something........glad to see my words are finally sinking in. ?
That was sarcasm, you dolt. Look at the "roll eyes - sarcastic" symbol next to it. Troll.
Well, I probably dont understand it well enough and havent researchd it enough to legitimately comment but...
Yeah, we didn't think that would stop you -- never has before.
Law was written to prevent boater, hunters, fishermen, etc from boating over private property that's flooded. A good idea!
However, it was poorly writen to say you can only boat on the "navigable channel" (between the bouys). A bad idea.
It will be challenged, rewritten, etc and shouldn't be an issue.
It would also be pretty unenforcible as written.
Court refuses to hear Gassoway Lake appeal
By Johnny Gunter • [email protected] • October 16, 2008
Hurd said the U.S. Supreme Court on Oct. 6 refused to hear his clients' challenge to a ruling by the 5th U.S. Circuit Court of Appeals in New Orleans of public access to waters off the Mississippi River.
Hurd filed the lawsuit on behalf of five recreational fishermen who were arrested by East Carroll Parish Sheriff Mark Shumate for fishing on Gassoway Lake, a popular fishing spot off the river that's only accessible during high water. The original suit was filed in the 6th Judicial District of Louisiana. Retired 4th Judicial District Judge John Joyce heard that case and ruled in favor of the landowners, Walker Cottonwood Farms.
The lawsuit would then eventually be moved to federal court where Judge Robert G. James also ruled in August 2006 in favor of the landowners. Hurd and the group then appealed to the 5th Circuit that further ruled that fishermen and other recreational users only had the right to use the channel of the river.
Fishing groups, more than 50 of them from throughout the U.S., filed briefs supporting the fishermen's lawsuit. The group filed a petition in April seeking a hearing before the U.S. Supreme Court.
Hurd said the public's access to the country's waterways is as old as the nation itself. "The rights that the public had to navigable waters and the rights people had to carry and bear arms were fundamental rights in a new America," Hurd said.
Joyce said he didn't interpret the 5th Circuit ruling as meaning every body of water would be covered. "I think each case would have to be ruled on separately," Joyce said.
Hurd interprets the law as meaning that using any waters beyond a waterway's lowest level (the main channel) would be considered trespassing if the landowner chooses to prosecute.
Sterlington resident Bill Miller, an avid bass fishermen who lives on Bayou Bartholomew, said he never imagined the outcome of the lawsuit would result in changing the face of fishing for everyone in the country.
"The ruling basically says I own the land under the water here on Bartholomew, but I can tell you I'm not going to stop anybody from fishing on it," he said.
His interpretation is that the ruling affects every body of water throughout the country. He said many fishermen have fished the lakes off the Ouachita River during high water times, now that won't happen if the landowners around those bodies "have the law on their side. It's like I've always been told, 'He who has the gold, makes the rules.'"
Monroe attorney Paul Loy Hurd said Wednesday that fishermen and other recreational users of the nation's waterways better stick to the main channels or face the possibility of arrest for trespassing.
What is this crap? - Page 3 - Offshoreonly.com
Originally Posted by tee4texas1
Panther - BuBoy - now that I gave my opinion, what do you think of this ruling - is it reasonable - any chance this could be correct - any chance this could be legislated?
What do I think.....they forgot how Columbus discovered America...
Wtf is Columbus???
Is that the name of the judge??
I wrote to BOAT-U.S. to find out their take on this whole issue. I received a quick response from Scott Croft, Assistant Vice President of Public Affairs and he is an Assistant Editor for BoatU.S. Magazine.
BoatU.S. Statement on Parm V. Shumate Ruling 8/29/06 US District Court Western District of Louisiana, Monroe Division
A recent decision by a Federal court overturning a lower court finding that a law enforcement officer, Sheriff Mark Shumate of East Carroll Parish Louisiana had probable cause to arrest a fisherman, Mr. Normal Parm, Jr., for trespassing has some recreational boaters concerned.
The property or swale* in question was located in Louisiana below the Mississippi River’s high water mark 3.5 miles from the waterway but connected via a drainage ditch. In his August 29, 2006 ruling Federal U.S. District Court Judge Robert G. James overturned Louisiana state Magistrate Judge James D. Kirk’s previous ruling. James found that the temporarily flooded land in question, owned by Walker Cottonwood Farms and on which Parm was found fishing without permission, was indeed private property and since it is dry most of the year it was not a navigable waterway. Judge James ruled that Sheriff Shumate was within his rights and had probable cause to arrest the trespassing fisherman.
Judge James also found that the fisherman did not have a federal or state common law right to fish or hunt on a navigable water, such as the Mississippi, when those waters periodically flood privately owned lands, even if the lands are below the traditional high water mark. Keep in mind that in many low laying parts of the country, a waterway’s high water mark can be miles from the normal (non-flooded stage) riverbank.
What is lost in the hype of the case is that Judge James agreed with the lower state court that the right to reasonably use navigable waters included “legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire.” And Judge James also concurred with the lower state court that privately owned land is subject to public use because it’s a bank of the Mississippi River.
Where Judge James differed from Judge Kirk’s findings, however, was that public use “is limited to activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce.” Hunting and fishing, specifically, are not activities included as incidental to navigation.
Ironically, previous rulings from Louisiana state courts have also supported Judge James' findings 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 navigational purpose.” That definition from 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 trees which are there planted, to unload his vessels, to deposit this goods, to dry his nets, and the like.”
A 1990 Louisiana second circuit ruling found that “fishing and hunting in a boat over flooded private property are not incidental to the navigable character of the stream and its enjoyment as an avenue of commerce.” And as recently as 2004 another ruling found that using the banks along navigable rivers “is limited to navigation and not hunting.”
Much of the concern amongst boaters appears to have come from an August 31, 2006 press release — that was widely picked up by the boating press — issued by the Parm’s attorney, Paul L. Hurd.
In his press release, Hurd wrote that Judge James had, “declared it to be criminal trespassing for the public to boat, fish or hunt on the Mississippi River and other navigable waters of America…This ruling declares recreational boating, fishing tournament, waterfowl hunting, and pleasure boating illegal on navigable rivers, unless conducted in the main channel of the river or with the permission of all riparian landowners along the navigable river…The shallows of navigable wa
terways are no longer open to the public.”
BoatU.S. disagrees with Hurd’s characterization of the ruling and believes the press release was distributed in an effort to sensationalize the issue and gain funding for the lengthy appeal process. Judge James’ August 29 ruling makes no mention of separating activities that are permissible in the “main channel” or “shallows.”
BoatU.S. believes that Judge James’ ruling confines its focus to temporarily flooded land and does not alter or change boaters’ basic rights of navigation. BoatU.S. also believes that the ruling adequately protected rights of waterfront private property owners, and hopes the continued appeal process seeks successful resolution for all parties.
*Swale definitions include: A dry creek acting to divert and direct water runoff after heavy rains; a low-lying or depressed and often wet stretch of land, a ditch on the contour that does not direct water, but holds it and allows it to gradually infiltrate.
I'm impressed - finally someone asking for my opinion on something........glad to see my words are finally sinking in. ?
That was sarcasm, you dolt. Look at the "roll eyes - sarcastic" symbol next to it. Troll.
Well, I probably dont understand it well enough and havent researchd it enough to legitimately comment but...
Yeah, we didn't think that would stop you -- never has before.
Law was written to prevent boater, hunters, fishermen, etc from boating over private property that's flooded. A good idea!
However, it was poorly writen to say you can only boat on the "navigable channel" (between the bouys). A bad idea.
It will be challenged, rewritten, etc and shouldn't be an issue.
It would also be pretty unenforcible as written.
Court refuses to hear Gassoway Lake appeal
By Johnny Gunter • [email protected] • October 16, 2008
Hurd said the U.S. Supreme Court on Oct. 6 refused to hear his clients' challenge to a ruling by the 5th U.S. Circuit Court of Appeals in New Orleans of public access to waters off the Mississippi River.
Hurd filed the lawsuit on behalf of five recreational fishermen who were arrested by East Carroll Parish Sheriff Mark Shumate for fishing on Gassoway Lake, a popular fishing spot off the river that's only accessible during high water. The original suit was filed in the 6th Judicial District of Louisiana. Retired 4th Judicial District Judge John Joyce heard that case and ruled in favor of the landowners, Walker Cottonwood Farms.
The lawsuit would then eventually be moved to federal court where Judge Robert G. James also ruled in August 2006 in favor of the landowners. Hurd and the group then appealed to the 5th Circuit that further ruled that fishermen and other recreational users only had the right to use the channel of the river.
Fishing groups, more than 50 of them from throughout the U.S., filed briefs supporting the fishermen's lawsuit. The group filed a petition in April seeking a hearing before the U.S. Supreme Court.
Hurd said the public's access to the country's waterways is as old as the nation itself. "The rights that the public had to navigable waters and the rights people had to carry and bear arms were fundamental rights in a new America," Hurd said.
Joyce said he didn't interpret the 5th Circuit ruling as meaning every body of water would be covered. "I think each case would have to be ruled on separately," Joyce said.
Hurd interprets the law as meaning that using any waters beyond a waterway's lowest level (the main channel) would be considered trespassing if the landowner chooses to prosecute.
Sterlington resident Bill Miller, an avid bass fishermen who lives on Bayou Bartholomew, said he never imagined the outcome of the lawsuit would result in changing the face of fishing for everyone in the country.
"The ruling basically says I own the land under the water here on Bartholomew, but I can tell you I'm not going to stop anybody from fishing on it," he said.
His interpretation is that the ruling affects every body of water throughout the country. He said many fishermen have fished the lakes off the Ouachita River during high water times, now that won't happen if the landowners around those bodies "have the law on their side. It's like I've always been told, 'He who has the gold, makes the rules.'"
Monroe attorney Paul Loy Hurd said Wednesday that fishermen and other recreational users of the nation's waterways better stick to the main channels or face the possibility of arrest for trespassing.