Court Ruling Limits Recreational Rights on Rivers

posted September 19, 2006

by Kevin Colburn

On August 29th, 2006 US District Judge Robert G. James ruled that the public does not have a federal common law right to fish or hunt above the low water mark on a navigable body of water. He further ruled that it would be criminal trespass for the public to use the flooded side channels of the Mississippi River for the purposes of hunting and fishing. The judge stopped short however of ruling that recreational paddling is illegal.

In a previous lower court ruling, Magistrate Judge Kirk found that fishermen had a federal common law right and a state law right to fish and hunt on the Mississippi. He concluded that the public could enjoy these activities in flooded side channels regardless of the status of the ownership of the property located below the waters. Judge Kirk held that a federal common law right of navigation exists "which includes the right to reasonably use the Mississippi's waters for the purposes, among other things, of navigation including travel and transportation, commerce, boating, sailing, and fishing and hunting from boats," and that these activities are allowed up to the mean high water mark.

In a stunning reversal of Judge Kirk's initial ruling, Justice James ruled that although the public has a right to reasonable use of navigable waters for "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire," the public does not have a federal common law right to fish or hunt on a navigable source of water. He determined that use of a waterway is restricted to uses that are "incidental to the navigable character of the stream and its enjoyment as an avenue of commerce."

Justice James concluded his ruling stating that fishing and hunting are not permitted on flooded side channels of the Mississippi River because "these activities are not incidental to the navigable character of the river and its enjoyment as an avenue of commerce."

Many reports on this recent case claim that it makes pleasure boating illegal on every navigable river across the nation. This is not correct. Judge James clearly states that hunting and fishing above the ordinary low water mark of a navigable river is illegal, but did not state that recreational boating was illegal. In fact, in agreeing with a 1931 Fifth Circuit case, Judge James acknowledges that the public does have a right to float navigable rivers:

"Although the Fifth Circuit stated in Silver Springs that the public has a right to reasonably use navigable waters for "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire," the Fifth Circuit did not specifically find that the public has a federal common law right to fish or hunt on a navigable source of water."

While the case does not make paddling rivers illegal, it comes dangerously close to doing so. It appears possible at least that this case - if upheld - could influence subsequent cases in a manner that is damaging to the millions of Americans that enjoy all types of boating. What this case does do though, is eviscerate sportsmens' ability to hunt and fish on rivers acros the country, and significantly narrows the rights Americans have to enjoy our public waters. Specifically, the case finds that fishing or hunting anywhere above the ordinary low water mark of navigable rivers (ie channel margins and side channels only wetted during higher flows) is illegal. It is unclear what impact, if any, this decision has on the many rivers not federally designated as navigable. American Whitewater strongly supports the right to fish in our nation's waterways and is deeply disturbed by this ruling. If upheld, it will impact our many members that enjoy fishing.

We expect this case to be appealed to a higher court and will actively seek ways in which we can foster a positive outcome for all Americans that enjoy recreating on our nation's waterways.

The full text of the Court's ruling can be read below:

Ruling of the Court in Normal Parm v. Sheriff Mark Shumate

NORMAL PARM, JR., ET AL VERSUS MARK W. SHUMATE

CIVIL ACTION NO. 01-2624

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, MONROE DIVISION

2006 U.S. Dist. LEXIS 61227

August 29, 2006, Decided
August 29, 2006, Filed

PRIOR HISTORY: Parm v. Shumate, 2006 U.S. Dist. LEXIS 58552 (W.D. La., Aug. 3, 2006)

COUNSEL: [*1] For Normal Parm, Jr, Harold Eugene Watts, Roy Michael Gammill, William T Rogers, Robert Allen Balch, Plaintiffs: Paul L Hurd, Law Office of Paul L Hurd, Monroe, LA.

For Mark W Shumate, in his official capacity as Sheriff of East Carroll Parish, Defendant: Freeman R Matthews, Ana T Fuentes, Craig E Frosch, Usry Weeks & Matthews, New Orleans, LA; John V Quaglino, Juge Napolitano et al, Metairie, LA.

For Walker Cottonwood Farms L L C, successor in title to Walker Lands Inc, Defendant: Constance C Willems, McGlinchey Stafford, New Orleans, LA.

For Waterways Access Association, Movant: Phillip M Lester, Bastrop, LA.

For Walker Lands Inc, Movant: Constance C Willems, Daniel T Plunkett, McGlinchey Stafford, New Orleans, LA; James C Crigler, Jr, McGlinchey Stafford, Monroe, LA.

For Louisiana Crawfish Producers Association-West Inc, Arkansas State Bass Federation, Big Sun Bass Masters of Bellview Florida, Maple Bassmasters of Florida, Blackhawk Bassmasters of Illinois, Bardstown Bassmasters of Kentucky, Kentucky State Bass Federation, Louisiana State Bass

Federation, Louisiana Wildlife Federation, Rowa of Louisiana, Minnesota State Bass Federation, River Rats Bassmasters [*2] of Minnesota, Mississippi Bass Federation Nation, Western Main Anglers, Yankee Bassers Bass Club of Maine, Pennsylvania Bass Federation Inc, Movants: Gordon James Schoeffler, Office of Gordon J Schoeffler, Lafayette, LA; Leigh Ann Haynie, Carencro, LA.

For Edward Wisner Donation, Movant: James A Burton, Susan F Clade, Simon Peragine et al, New Orleans, LA.

JUDGES: ROBERT G. JAMES, UNITED STATES DISTRICT JUDGE. MAG. JUDGE JAMES D. KIRK.

OPINION BY: ROBERT G. JAMES

OPINION:
RULING
Pending before the Court are a motion for partial summary judgment [Doc. No. 5] filed by the Plaintiffs n1 and cross-motion for summary judgment or in the alternative motion for abstention [Doc. No. 11] filed by Defendant Sheriff Mark W. Shumate of East Carroll Parish ("Sheriff Shumate"). n1 The Plaintiffs in this matter include Normal Parm, Jr., Harold Eugene Watts, Roy Michael Gammill, William T. Rogers, and Robert Allen Balch.

On April 21, 2006, Magistrate Judge James D. Kirk issued a Second Report and Recommendation [Doc. No. 82] [*3] recommending that the Plaintiffs' motion for partial summary judgment be granted in part and denied in part. Magistrate Judge Kirk also recommended that Sheriff Shumate's cross-motion for summary judgment be denied. n2

n2 Magistrate Judge Kirk recommended in his First Report and Recommendation [Doc. No. 22] that Defendant's cross-motion for summary judgment should be granted to the extent that the case should be abstained pending resolution of the state court proceedings.

On May 5, 2006, the Plaintiffs filed an objection [Doc. No. 91] to the Second Report and Recommendation. On May 11, 2006, Sheriff Shumate also filed an objection [Doc. No. 95]. Both parties filed responses to each other's objections [Doc. Nos. 99 and 100]. On May 30, 2006, Walker Cottonwood Farms, LLC ("Walker Cottonwood Farms"), successor in title to Walker Lands, Inc. ("Walker Lands"), filed an amicus curiae brief [Doc. No. 102] in support of Sheriff Shumate's objections to the Second Report and Recommendation. On June 28, 2006, an [*4] amicus curiae brief [Doc. No. 116] was filed by numerous fishing organizations in support of the Plaintiffs' objections to the report. n3

n3 These organizations include the Louisiana Crawfish Producers Association, Arkansas State Bass Federation, Big Sun Bass Masters of Bellview Florida, Maple Bassmasters of Florida, Blackhawk Bassmasters of Illinois, Bardstown Bassmasters of Kentucky, Kentucky State Bass Federation, Louisiana State Bass Federation, Louisiana Wildlife Federation, Rowa of Louisiana, Minnesota State Bass Federation, River Rats Bassmasters of Minnesota, Mississippi Bass Federation Nation, Western Main Anglers, Yankee Bassers Bass Club of Maine, and the Pennsylvania Bass Federation, Inc.

On July 27, 2006, an amicus curiae brief [Doc. No. 134] was filed by the Edward Wisner Donation in support of Sheriff Shumate's objections to the report.

For the following reasons, the Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the findings and conclusions set forth in the Magistrate Judge's Report and [*5] Recommendation.

I. FACTS AND PROCEDURAL HISTORY n4

n4 Magistrate Judge Kirk has already succinctly characterized the facts and procedural history of this case in his Second Report and Recommendation. The Court will incorporate portions of Magistrate Judge Kirk's factual background and procedural history in this Ruling.

The Plaintiffs bring this instant action against Sheriff Shumate seeking a declaratory judgment, injunctive relief, and damages under 42 U.S.C. § 1983 and Louisiana state law. The Plaintiffs sued Sheriff Shumate in his official capacity claiming that they were arrested without probable cause for fishing and hunting on waters of the Mississippi River, which covered Walker Cottonwood Farms' n5 property during periodic flooding. n6

n5 Walker Cottonwood Farms is successor in title to Walker Lands' property. However, the record is unclear as to when Walker Cottonwood Farms obtained title to Walker Lands' property. [*6]

n6 For purposes of this Ruling, Walker Cottonwood Farms' property includes Gassoway Lake, "the drainage ditch," Little Gassoway Lake, Doe Lake, and Bunch's Cutoff (to the extent it lies within the State of Louisiana).

On August 22, 2002, Magistrate Judge Kirk issued his first Report and Recommendation [Doc. No. 22] recommending that this case be stayed pending the outcome of state court litigation in Walker Lands, Inc. v. East Carroll Parish Police Jury, 38,367-CA (La. App. 2 Cir. 4/14/04); 871 So.2d 1258 ("Walker Lands"). On October 29, 2002, this Court adopted Magistrate Judge Kirk's Report and Recommendation and stayed the case. [Doc. No. 27]. On July 9, 2003, the United States Court of Appeals for the Fifth Circuit affirmed this Court's decision to stay the case. [Doc. No. 32].

A. State Court Decision
In the Walker Lands' case, Walker Lands originally filed suit against the East Carroll Parish Police Jury to enjoin all public use of Gassoway Lake and a drainage ditch that runs from the southern end of Gassoway Lake to Bunch's Cutoff, a large body of [*7] water that connects with the Mississippi River. The State of Louisiana ("the State") was added as an indispensable party. The State answered, claiming ownership or, alternatively, a servitude on the disputed lands. n7 Walker Lands also claimed ownership of the disputed lands.

n7 The East Carroll Parish Police Jury was later dismissed from the lawsuit.

On appeal, the Louisiana Second Circuit Court of Appeal ("Second Circuit") affirmed the trial court's findings that Gassoway Lake was formed when the Mississippi River first moved westward in the 1860's and 1870's and then slowly moved back eastward forming Gassoway Lake in a shallow swale by 1894. Walker Lands, 871 So.2d at 1261-62. The court also concluded that, presently, the Mississippi River's ordinary low water mark is 77 feet and its ordinary high water mark is 112 feet at the area in question. n8 Id. at 1262. In addition, the court found that Gassoway Lake and surrounding property "only receives water when the Mississippi [*8] River floods, which causes water to run through the ditch and eventually [spill] over into the lake." Id.

n8 Magistrate Judge Kirk noted that Gassoway Lake's normal elevation is approximately 95 feet. [Doc. No. 82, p. 7].

The Second Circuit did not accept the State's argument that Gassoway Lake and the drainage ditch are navigable. The Second Circuit concluded that Gassoway Lake and the surrounding land are located approximately three and a half miles west of the Mississippi River, the property remains "completely dry for most of the year, making it unusable," and the property serves no useful commercial purpose. Id. at 1265-66. Ultimately, the Second Circuit held that Walker Lands owns Gassoway Lake, the drainage ditch, and other surrounding lands adjacent to the Mississippi River because the property is not "navigable in fact; and, thus, not navigable in law." Id. at 1262. n9

n9 The state court decision in Walker Lands became final after the Louisiana State Supreme Court denied writ on June 3, 2005, and a motion for rehearing on November 28, 2005. See Walker Lands, Inc. v. East Carroll Parish Police Jury, 903 So.2d 442 (La. 2005) and Walker Lands, Inc. v. East Carroll Parish Police Jury, 916 So.2d 127 (La. 2005).

[*9]
B. Second Report and Recommendation Following the Second Circuit's decision, this Court re-opened these proceedings. In the Plaintiffs' motion for partial summary judgment, they argue that Sheriff Shumate lacks probable cause to arrest them for trespass under La. Rev. Stat. § 14:63 while they are on the waters of the Mississippi River when those waters cover Walker Cottonwood Farms' property. The Plaintiffs also seek a declaration that Sheriff Shumate lacks sufficient evidence to support a verdict of guilty beyond a reasonable doubt that the Plaintiffs are guilty of trespass. Additionally, the Plaintiffs seek a permanent injunction against Sheriff Shumate, enjoining him from arresting the Plaintiffs and other persons for trespass on the lands of Walker Cottonwood Farms when the waters of the river cover that property. In Sheriff Shumate's cross-motion for summary judgment, he asks that the Plaintiffs' claims be dismissed and asserts the defense of qualified immunity. In the Second Report and Recommendation, Magistrate Judge Kirk found that the Plaintiffs have both a federal common law right and a state law right to fish and hunt on the Mississippi [*10] River between the ordinary high and low water mark regardless of the status of the ownership of the property located below the waters. n10

n10 Federal law defines high water mark differently than state law. See 33 C.F.R. § 329.11. The different definitions, however, do not substantively change the Court's analysis.

Applying federal law, Magistrate Judge Kirk first found that neither 33 U.S.C. § 10 nor the federal navigational servitude provides the Plaintiffs with the right to fish and hunt on the Mississippi River. However, Magistrate Judge Kirk did find that the Plaintiffs have a federal common law right of navigation "which includes the right to reasonably use the Mississippi's waters for the purposes, among other things, of navigation including travel and transportation, commerce, boating, sailing, and fishing and hunting from boats," up to the ordinary high water mark, regardless of who owns the land beneath the waters. [Doc. No. 82, p. 14].

Applying [*11] state law, Magistrate Judge Kirk also found that the Plaintiffs have a right to fish and hunt on the Mississippi River up to the ordinary high water mark, when the waters cover privately owned banks of the Mississippi River.

Based on these conclusions, Magistrate Judge Kirk then determined that Sheriff Shumate did not have probable cause to arrest the Plaintiffs under La. Rev. Stat. 14:63 for trespass on Walker Cottonwood Farms' property when it is covered by the Mississippi River between the ordinary high and low water mark.

II. LAW AND ANALYSIS
The Court reviews de novo a magistrate judge's report and recommendation if a party files specific, written objections within ten days of service. 28 U.S.C. § 636(b)(1). In the present case, both parties timely filed objections [Doc. Nos. 91 and 95] to the Magistrate Judge's Report and Recommendation, thus warranting de novo review by the Court.

First, for the reasons stated in Magistrate Judge Kirk's Second Report and Recommendation, the Court ADOPTS his recommendation to the extent that 33 U.S.C. § 10 and the federal navigational servitude do not [*12] provide the Plaintiffs with the right to fish and hunt on the Mississippi River. However, for the reasons discussed below, the Court DECLINES 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.

Second, the Court also ADOPTS Magistrate Judge Kirk's recommendation to the extent that Walker Cottonwood Farms' property is a bank of the Mississippi River and subject to public use up to the ordinary high water mark, as defined by Louisiana law. However, for the reasons discussed below, the Court DECLINES TO ADOPT his recommendation to the extent that he found the Plaintiffs 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.

Third, the Court ADOPTS Magistrate Judge Kirk's recommendation to the extent that Sheriff Shumate is not entitled to qualified immunity. However, for the reasons discussed below, the Court DECLINES TO ADOPT Magistrate Judge Kirk's recommendation to the extent that Sheriff Shumate did not have probable cause to arrest [*13] the Plaintiffs under La. Rev. Stat. § 14:63 for trespass on Walker Cottonwood Farms' property when it is covered by the Mississippi River.

The Court also ADOPTS Magistrate Judge Kirk's recommendation to the extent that the Plaintiffs are not entitled to an injunction against Sheriff Shumate enjoining him from enforcing Louisiana trespass laws.

A. Federal Common Law Right
Magistrate Judge Kirk found that a common law right of navigation exists on the Mississippi River, and that this right of navigation includes the right to fish and hunt up to the high water mark. In support of this conclusion, Magistrate Judge Kirk cited Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir. 1931), for the general proposition that the public right of navigation "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." Id. at 359.

The Court disagrees [*14] with Magistrate Judge Kirk's finding. Although the Fifth Circuit stated in Silver Springs that the public has a right to reasonably use navigable waters for "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire," the Fifth Circuit did not specifically find that the public has a federal common law right to fish or hunt on a navigable source of water. Therefore, the Court declines to interpret the Fifth Circuit's decision so broadly as to find that the Plaintiffs have a federal common law right to fish or hunt on a navigable water, such as the Mississippi River, when those waters periodically flood privately owned lands.

B. State Law Right
In Louisiana, "[t]he banks of navigable rivers or streams are private things that are subject to public use." La. Civ. Code art. 456. "The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water . . . ." Id.

Because Walker Cottonwood Farms' property is located between the ordinary high and low water mark established by the Second Circuit, Magistrate Judge Kirk found that it is a bank of [*15] the Mississippi River and subject to public use. Magistrate Judge Kirk stated that, "the right to use the river's waters includes the right to use the entirety of the waters, regardless [sic] the river's level or stage or how much of its bank it covers," up to the high water mark. [Doc. No. 82, pp. 20-21].

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 [*16] 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." See Walker Lands, 871 So.2d at 1268 n.16 (citing State v. Barras, 615 So.2d 285 (La. 1993) and Warner v. Clarke, 232 So.2d 99 (La. App. 2d Cir. 1970)); see also Buckskin Hunting Club v. Bayard, 868 So.2d 266, 273 03-1428 (La. App. 3 Cir. 3/3/04) (using the banks along navigable rivers is "limited to navigation and not hunting."); Edmiston v. Wood, 566 So.2d 673, 675-76 (La. App. 2d Cir. 1990) (fishing and hunting in a boat over flooded private property are not incidental to navigable character of the stream and its enjoyment as an avenue of commerce).

Therefore, this Court [*17] 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." La. Civ. Code art. 456 cmt. (b). C. 42 U.S.C. § 1983 and probable cause

A police officer may arrest a person if the officer has probable cause to believe that person committed a crime. Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); see also La. Code Crim. Proc. art. 213. n11 The United States Supreme Court has explained that "probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979).

n11 The constitutional torts of false arrest, unreasonable seizure, and false imprisonment also require a showing of no probable cause. See Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001).

[*18]
Louisiana courts have explained probable cause as the following:

Probable cause to arrest exists when the facts and circumstances within the officer's knowledge are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime . . . . The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very name implies, deals with probabilities . . . . The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the available evidence supports a reasonable belief that the person to be arrested has committed a crime . . . . The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act.

State v. Simms, 571 So.2d 145, 148-49 (La. 1990).
Magistrate Judge Kirk [*19] found that Sheriff Shumate arrested the Plaintiffs for trespassing without probable cause "because the sheriff should have known that the plaintiffs were legally authorized to be upon the waters." [Doc. No. 82, p. 28].

The Court disagrees with Magistrate Judge Kirk's finding. As discussed above, the Second Circuit, La. Civ. Code art. 456, and Louisiana jurisprudence have not allowed fishing or hunting on privately owned banks of navigable waters because these activities are not incidental to the navigable character of the stream and its enjoyment as an avenue of commerce. Therefore, the Court concludes that Sheriff Shumate had probable cause to arrest the Plaintiffs for trespassing in violation of La. Rev. Stat. 14:63.

III. CONCLUSION
Based on the foregoing, the Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the findings and conclusions set forth in the Magistrate Judge's Second Report and Recommendation [Doc. No. 82]. The Court ADOPTS the Magistrate Judge's recommendation to the extent 33 U.S.C. § 10 and the federal navigational servitude do not provide the Plaintiffs with the right to fish and hunt on the Mississippi [*20] River. The Court also ADOPTS the Magistrate Judge's recommendation to the extent that Walker Cottonwood Farms' property is a bank of the Mississippi River. The Court also ADOPTS the Magistrate Judge's recommendation to the extent that Sheriff Shumate is not entitled to qualified immunity and the Plaintiffs are not entitled to an injunction against Sheriff Shumate enjoining him from enforcing Louisiana trespass laws.

To the extent that Magistrate Judge Kirk found a federal common law right to fish and hunt over the privately owned lands of Walker Cottonwood Farms property when it is periodically flooded by the Mississippi River, the Court DECLINES TO ADOPT the Magistrate Judge's recommendation.

Also, to the extent that Magistrate Judge Kirk found that the Plaintiffs have a state law right to fish and hunt on Walker Cottonwood Farms' property, when it periodically floods from waters of the Mississippi River, the Court DECLINES TO ADOPT the recommendation, and the Plaintiffs' motion for partial summary judgment is DENIED. To the extent Magistrate Judge Kirk found that Sheriff Shumate lacks probable cause to arrest the Plaintiffs for trespass in violation of La. Rev. Stat. 14:6 [*21] for fishing and hunting on privately owned banks of the Mississippi River, the Court DECLINES TO ADOPT the Magistrate Judge's recommendation, and Sheriff

Shumate's cross-motion for summary judgment is GRANTED.
MONROE, LOUISIANA this 29th day of August, 2006.
ROBERT G. JAMES
UNITED STATES DISTRICT JUDGE