Most canals cannot be gated, AG says

Using yo-yos to catch fish is a favorite pastime for freshwater anglers. Here’s all you need to know to get started.

“I wouldn’t touch that one with an 11-foot pole, and I save that pole for things I wouldn’t touch with a 10-foot pole.” —CBS News anchor Dan Rather, during coverage of the 2000 presidential election

For a politician, discussing the rights of anglers and boaters to access waterways that may or may not be public is dangerous ground.

On the one hand, the public servant has an obligation to actually serve the public, who, quite directly, are those people who hired him for the job. Like a new employee during a probationary period, he doesn’t want to do anything to tick off the boss.

On the other hand, the average landowner has money, power and influence, and no politician has ever won an election without a whole lot of each of those working in his favor.

So most politicians tiptoe around the issue like a ballerina in a barn.

Such was the case with former Attorney General Richard Ieyoub, whose office, it was clear to us on the Sportsman staff, wouldn’t touch the public’s right to access waterways with Dan Rather’s 11-foot pole.

We hoped for something different when Charles Foti was elected AG in October, but we weren’t particularly optimistic.

We are now.

In mid March, Assistant Attorney General Kristi Hagood gave an AG’s opinion (No. 04-0082) to state representative Dale Erdey that is about the best news that locked-out anglers could have hoped for.

Erdey had written the AG’s office to secure an opinion on how the trespass law (No. 802) of the 2003 legislative session affected “the entry, access, passage and/or use of leased property of public waterways.”

The official opinion given in response is a good indicator that Foti may be the best friend anglers have had in public office in a long time.

“La. Atty. Gen. Op. 90-557 provides that navigable streams of this state as well as other waterbodies which contain running water are subject to public use and cannot be posted,” the opinion states. “This opinion also establishes that non-navigable waterways may not be posted as long as they contain running water which may be utilized by the public. Therefore, the criminal trespass statute does not apply to persons utilizing waterways with running water.”

So what is “running water?” One would think water that ebbs and flows with the tides or the capricious whims of a river would have to be considered running. Andy Crawford explores that question more fully in a Newsbreaker on p. 24 of this issue.

In the opinion, Hagood expresses what type of waterbodies can be considered private, and in so doing, gives every indication that canals in tidal or riverine areas cannot legally be posted.

“La. Atty. Gen. Op. 90-418 provides that a private waterbody which is not commercially navigable can be posted by the owner against trespass. … The Court (in Shell Oil v. Pittman, 1985) also said that a water course is navigable when by its depth, width and location it is rendered available for commerce. However, the opinion points out that the courts have found bodies of water not to be navigable when the waterbody is an isolated body of water without a natural inlet or outlet large enough for a pirogue to navigate.”

To sum it up, the opinion states that waterbodies that are “commercially navigable or contain running water … cannot be restricted from public use and the criminal trespass statute does not apply.”

I’d like to take Ms. Hagood for a ride through the marsh or into the Atchafalaya Basin. She’d probably be shocked at what she saw.

About Todd Masson 632 Articles
Todd Masson has covered outdoors in Louisiana for a quarter century, and is host of the Marsh Man Masson channel on YouTube.

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