A lawyer in Louisiana plans to appeal a federal court ruling that his clients do not have the right to fish and hunt on the floodwaters of the Mississippi River. At issue is whether the flooded area along the banks of the Mississippi becomes part of the navigable river, or if the area belongs to the property owner who owns the muddy land beneath it.
Paul Hurd, who represents six anglers arrested for criminal trespassing, filed a civil suit against the sheriff, claiming the arrest was made without probable cause.He says the Aug. 29 ruling in the case makes it criminal trespassing for the public to boat, fish or hunt on the river unless conducted within the main channel of the river, or with permission of riparian land owners.
He says the ruling, if upheld, should send shudders throughout the country because it opens the door to the possibility that recreational boating and fishing can be prohibited on navigable waterways outside of the channel.
Hurd even sent out an alert to marine industry leaders warning of the implications of the judge’s decision. The ruling, however, does not go that far. In his Aug. 29 decision, Judge Robert James said federal law does not give the anglers a right to fish or hunt on navigable water, such as the Mississippi River, “when those waters periodically flood privately owned lands.”
The judge says the land, because it is on the banks of the river, is subject to public use.
“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 those rights,” James writes in his ruling.
He further ruled that Sheriff Mark Shumate had probable cause to arrest the anglers.
Attorneys for the sheriff declined to comment.
The issue has been debated for years in East Carroll Parish, a small district of some 10,000 people. Walker Cottonwood Farms, a company that owns land along the river bank, says the area where the fishermen were arrested is actually floodwater, and not part of the normal flow of the river. The company several years ago filed suit against the sheriff’s office, requesting that authorities arrest trespassers. A state court agreed that the area is dry for most of the year, and thus not navigable in law.
Hurd maintains the area should be considered the high-water mark as part of the natural ebb and flow of the river. Hurd, a one-man attorney practice, says the recent ruling will “shut down” the bass fishing and duck hunting industries in the state.
Another hearing with Judge James is slated for November. Hurd also plans to appeal to a higher federal court, the 5th District which encompasses Louisiana, Mississippi and Texas.