The right of outdoorsmen to fish and hunt on navigable waters was issued a stunning defeat Aug. 29 when a federal judge ruled that the public has no “right to fish and hunt on the Mississippi River.”U.S. District Court Judge Robert G. James ignored recommendations from his own magistrate in ruling in a case pitting a group of anglers against East Carroll Parish Sheriff Mark Shumate over the legality of trespassing arrests stemming from their fishing on Mississippi River flood waters in Northeast Louisiana.
“This is gigantic,” said Mark Hilzim, president of Restore Our Waterway Access, Inc. “He has opened up Pandora’s box. If I read that (ruling) right, does that mean nobody has the right to fish above the low-water mark?
“Every fisherman in the country needs to pay attention to this.”
U.S. Magistrate James Kirk had earlier this year recommended that the arrests of the anglers involved in the case be thrown out. James requested the recommendation.
“(T)he sheriff did not have probable cause to arrest the plaintiffs because the sheriff should have known that the plaintiffs were legally authorized to be upon the waters,” Kirk wrote in April. “The sheriff was required to know that the Mississippi River is a navigable river and that federal and state law … has long recognized that the public has a right to use those waters to their full extent.
“Because the arrests were without probable cause to believe an offense had been committed, the sheriff violated the Fourth Amendment rights of the plaintiffs and is answerable to them for any damages they have sustained.”
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.
“This ruling has the potential to end fishing,” he said. “It can apply to rivers, streams, bayous. Is that what this guy is saying?
“This has a potentially profound effect on fishing.”
Hilzim had yet to speak with ROWA’s board, but he expected the case to continue.
“My gauge of the organization is that we will do whatever it takes to see this litigation to its conclusion, and if that fails, work with any interested parties to get the law changed,” Hilzim said.
To donate to ROWA’s efforts, contributions can be mailed to the organization at P.O. 1199, Boutte, LA 70039.