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#958181 - 10/08/08 08:21 AM who will stand up for navigable/riparian rights?
Taylor Administrator
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Registered: 09/10/07
Posts: 3061
Loc: Brownsville, Tennessee

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Folks, this is fyi.
The debate over the public use of our streams and rivers has been ongoing for years and I suspect it will only get more heated across the country. I have written countless stories/articles about this — from trout streams to the waterfowl haunts. Anyway, here is a letter a buddy of mine sent me about a U.S. Supreme Court action on the matter. I find it interesting, perhaps some of you will, too. I will also post this elsewhere on tndeer.

Taylor

Meanwhile, his letter reads.

I have been infomred that the fishermen's writ to the U.S. Supreme Court, asserting the public's right to recreationally boat and fish the navigable waters of the U.S. has been denied. The writ was filed by fishermen arrested for fishing on the Mississippi River: Mrrs. Nornmal Parm, the late Harold Watts, TommyRogers, Mike Gammill and Robert Balch, all Louisiana fishermen.

It is now clear and undeniable that public fishing is wholely unprotected under fedral law. This denial by the U.S. Supreme Court, leaves in place the legal principles enunciated by the 5th Circuit Court of Appeal. The 5th Circuit declared that neither Louisiana law, nor federal law, affirmatively protects or preserves the public's right to recreationally use the navigable waters of America for boating or fishing.

The 5th Circuit's holding has taken from public use, hundreds of thousands of mile of shoreline along naturally navigable waters in America, particularly those shorelines on rivers and streams that have a natural expansion and contraction of the water level and shorelines.

This holding equally threatens the ongoing economic viability of public fishing tournaments on natural rivers and streams.

As for Louisiana, it is clear that the public's right to recreationally use the navigble rivers of the State (Mississippi River, Red River, Atchafalaya basin, Ouachita River, etc) is limited to the main channel. Any use of the shoreline exposes the fishermen, or skiers, or boaters, to immediate arrest for trespassing. The big bass tournaments in Louisiana, is a legal thing of the past. The fishermen will be arrested for trespassing if they fish the shoreline. Lousiana: once a "Sportsman's Paradise" is now a national "Sportsman's Nightmare."

Lastly, the principles of the 5th Circuit declaring that there is no federal protection of recreational use of navigable waters, has opened the proverbial "flood gate" on State legislation to further deny to the public, the use of navigable waters of America.

Remember, the American public's right to use navigable waters for fishing began with the Magna Charta of 1215, and ended in the U.S. Supreme Court in October 2008. The 5th Circuit Court's opinion, and this Supreme Court denial, is a judicial error of historic proportions. Once magnatude of the error and the resulting infringement on the public's rights of navigation are realized, I believe the 5th Circuit will be wholely reversed. But until then, the public is condemned to criminal arrest and public protests.

Now, the question is: "Who will stand up in America for the fundamental rights of the public to use our navigable waters up to normal high water?"



--
Raymond E. Jones, Ph.D.

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#958557 - 10/08/08 10:52 AM Re: who will stand up for navigable/riparian rights? [Re: ]
Taylor Administrator
10 Point


Registered: 09/10/07
Posts: 3061
Loc: Brownsville, Tennessee

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Yeah, that is true.

Also, there is a TN state rule somewhere (I guess/think it is still on the books) that says if a waterway is "navigable" it is public. Had something to do with commerical trade, originally...again, I think that is right...re-calling that from cloudy memory.

I think this case is the one where folks wanted to fish some old Mississippi River oxbows...and were denied...

Cases like this all over.

Out West...trout streams...people buying huge tracts of land, but can anglers wade fish...?

In Fayette County...there is the Ghost River...so named because the Wolf River's channel "disappears". Folks have been fighting over that for years, too.

When I was a kid, the belief was you could duck hunt wherever the floodwater went — ummm — Not true of course, according to the books, and Taylor's cloudy memory, that is "too far from main channel, proper."

Then there is some reg/or belief as long as you never get out of the boat...set foot on ground — you are not trespassing.

Complicated, gray areas, a hodgepode of notions, beliefs and ideas. If Feds end up putting a decree on this — it could fall to the bad side for sportsmen, though. I do believe this.

It could be a BIG deal.

I just posted it, fyi. It's out there, and it's happening. Awareness is a good thing.
But maybe, ignorance really is bliss?

lol

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#958563 - 10/08/08 10:54 AM Re: who will stand up for navigable/riparian rights? [Re: Taylor]
DEER DAVID
TnDeer Old Timer
8 Point


Registered: 05/01/99
Posts: 2239
Loc: America

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Well......as times as they are........how to bring this to the attention of many others?
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#958886 - 10/08/08 01:01 PM Re: who will stand up for navigable/riparian rights? [Re: ]
Taylor Administrator
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Registered: 09/10/07
Posts: 3061
Loc: Brownsville, Tennessee

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Don't know...who does? Do know that one made it that far.

I don't look for it to ever go away.
As I mentioned, the argument has been ongoing for a long time.
May actually be one of those better off never solved things.
"Easier to get forgiveness, than permission."
LOL
Seriously, I do think if law allows landowners to start dictating who can go up and down rivers, streams, etc., it will be bad for outdoorsmen. And again, just my opinion.

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#966774 - 10/13/08 12:16 PM Re: who will stand up for navigable/riparian rights? [Re: Taylor]
Tennessee Todd
Communicates like Rad
16 Point


Registered: 03/12/99
Posts: 12694
Loc: TuTu City, Tn

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Stand up for it?? Heck, I can't even spell it......
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#966889 - 10/13/08 01:11 PM Re: who will stand up for navigable/riparian rights? [Re: Tennessee Todd]
4onaside
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Registered: 02/07/06
Posts: 5129
Loc: Jackson,Tn

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I personally don't see this as an infringment on anybody's rights. Fishing the main channel of rivers from a boat should, IMO, be public domain. However, just because ,i.e.,the Mississippi river happens to be flooding over someone's private property, IMO, does not alter the landowner's right to say who is permitted access to his property. Apparently the federal courts have the same opinion.
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#969518 - 10/14/08 03:46 PM Re: who will stand up for navigable/riparian rights? [Re: 4onaside]
AlabamaSwamper
12 Point


Registered: 06/03/04
Posts: 5113
Loc: Southern Wayne CO and NW Alaba...

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This case had to do with folks fishing in what is normally "private" property and not under water. Under normal or low water, this property is high and dry and someone actually pays taxes on it.
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#970129 - 10/14/08 09:57 PM Re: who will stand up for navigable/riparian rights? [Re: AlabamaSwamper]
4onaside
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Registered: 02/07/06
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 Originally Posted By: AlabamaSwamper
This case had to do with folks fishing in what is normally "private" property and not under water. Under normal or low water, this property is high and dry and someone actually pays taxes on it.
All the more reason why the landowners have the right to say who is allowed onto their property. I wouldn't think there would be any logical contest over that inherent right.
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#974485 - 10/16/08 10:04 PM Re: who will stand up for navigable/riparian rights? [Re: 4onaside]
AlabamaSwamper
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Registered: 06/03/04
Posts: 5113
Loc: Southern Wayne CO and NW Alaba...

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After talking with some friends in the Arkansas and Louisiana area, this case will have lasting effects and they could be negative

I think the biggest problem is the fact that the gov't builds dams and then don't buy all the land flooded.

Rich folks in ARkansas and Louisiana are actually building dams across the cuts where you enter this backwater to keep folks out of what we all thought was "navigable" water.

Now, you may go to your favorite slough and find it blocked off by fences or dirt.
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#974914 - 10/17/08 08:58 AM Re: who will stand up for navigable/riparian rights? [Re: AlabamaSwamper]
4onaside
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Registered: 02/07/06
Posts: 5129
Loc: Jackson,Tn

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I suppose that there is a "fine line" between the rights of the public and the rights of individual property ownership, in some cases, and each case is probably different. However, both states that you mention, are WET, and abound with fishing opportunites for all, with very little effort or inconvenience. If it were in the high plains of eastern Colorado,i.e.. where water and fishing opportunities are at a premium, I might have a different attitude, but in the states mentioned, if someone owns all of the dry land surrounding an arm or bay or slough, and blocks access to the public, I could certainly live with that.I equate it with being forced to allow access to newly acquired property because "we've always hunted there". That ain't the way that it works in this country. Or at least, that's not supposed to be the way that it works.
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#977234 - 10/19/08 11:44 AM Re: who will stand up for navigable/riparian rights? [Re: 4onaside]
Taylor Administrator
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Registered: 09/10/07
Posts: 3061
Loc: Brownsville, Tennessee

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A lot of issues center on oxbow lakes (old river runs, still accessible by what's now the main channel), surrounded by private land. And I am not talking about little oxbows, either.

I can see arguments on both sides, again, I just posted the letter to let folks know what's going on.

Such arguments will only become more common, be it trout streams in the West or the Mighty Mississippi.

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#987632 - 10/24/08 10:34 AM Re: who will stand up for navigable/riparian rights? [Re: Taylor]
B.D.
8 Point


Registered: 03/24/08
Posts: 1484
Loc: Hendersonville TN

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The law of riparian rights is an absolute mess. Most of the relevant court precedents were issued in the 1800s or early 1900s, and they are unclear and sometimes inconsistent.

I would like to see the State of Tennessee look into negotiating some sort of easements with landowners to allow fishing access, at least to more popular spots, such as the TWRA stocked trout streams, some of the larger smallmouth creeks, and some of the oxbows in West Tennessee.

Kansas has a "Walk-in Hunting Area" program that could be used as a model. The State gets farmers to agree to allow public hunting access, in exchange for benefits like property tax breaks. The farmers like it because they get a break on their taxes, and the State gets that revenue back because the large amounts of public hunting land attract people who spend money when they hunt - thus providing economic stimulus in rural areas.

Once the easements are in place, you bypass all the debate about how the obscure riparian laws should apply.

bd


Edited by Brian Dunigan (10/24/08 10:35 AM)

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