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FYI, I have no legal qualifications to make comments on this statement,
just presenting what I have seen in the interest of keeping paddleable
areas paddleable.

Whew, had me worried, this is pretty close to home.  I promise I won't
hunt from my kayak - well, other than stalking photographic subjects
with a camera.

Natalie Wiest

Galveston Texas

Houston Canoe Club member

________________________________

Subject: FW: U.S. District Judge of Louisiana Declares Boating and
Fishing Illegal on Mississippi River and All Navigable Waters

There have been a lot of emails and questions about this recent ruling.
I have been in close contact with the ACA national office and received
this from our ACA counsel to send to the clubs. If you have any
questions, please email me. Thanks.

Patti Carothers

ACA secretary

FROM:              Paul Sanford

ACA Legal Counsel

SUBJECT:         Louisana Navigability Court Decision

I have reviewed the court decision in entitled Parm v. Shumate, and
while it is troubling in some respects, I think some of the buzz
surrounding it overstates the scope of the court's decision.  For
example, I don't think the court's decision should be read to undermine
the public's right to recreational boating, or to close off shallow
areas of our nation's waters to recreational boating.  Nor does the
decision make boating illegal.  Thus, some of the characterizations of
the opinion are probably a bit alarmist. More on this below.

First, some factual background. The boating and fishing at issue in this
case took place on Gassoway Lake in northeast LA.  Gassoway Lake forms
in a shallow section of one of the Mississippi River's oxbows that no
longer carry the mainstem flow of the river due to shifts in the river
bed.  The lake lies 3.5 miles from the mainstem of the river, and
generally is very difficult for boaters to access. The area surrounding
the lake is used for agricultural purposes during normal river flows.
However, because of the topography, the lake and much of the area
surrounding it, floods during high water, making navigation possible.
The entire area lies within the Mississippi River's levee system.  On
the occasion in question, the boaters / anglers (Parm and others) were
able to reach the lake because of high flows.

Some may believe the decision makes boating illegal because of the way
the district court resolved the question of federal "common law"
navigability rights.  However, if you review this aspect of the decision
in detail, the court's decision is actually pretty narrow, in my
opinion.

I'll start with some procedural context. The decision was rendered by a
district court judge in a federal district court in LA's Western
District.  In that decision, the district court judge reviewed a
provisional determination made by a magistrate judge.  Magistrate judges
work for district court judges and render decisions for them that are
subject to review and reconsideration by the district court judge.

On the issue of federal common law navigability rights, the magistrate
judge determined that a previous appellate court case (Silver Springs
Paradise Co. v. Ray, decided by the 5th Circuit) established federal
common law navigability rights, and that these rights included the right
to hunt and fish up to a river's high water mark.  However, in reviewing
the magistrate's determination, the district court judge disagreed with
that conclusion, saying the following:

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.

Certainly, we would prefer that the district court judge had agreed with
the magistrate and recognized broad common law rights.  However, in
declining to do so, he did not outright REJECT those rights. The judge
rejected what he thought was an overly-broad reading of the Silver
Springs decision by the magistrate judge, and declined to read that
decision as establishing hunting and fishing rights on flooded lands. He
did say those rights do not exist.

We should also keep in mind the limitations of district court decisions.
The Silver Springs court was a federal appellate court.  Parm v. Shumate
was decided by a federal district court. District court judges cannot
overrule appellate court judges. Thus, whatever the Silver Springs court
did or did not do, the district court judge in this case cannot overrule
that decision.

Also, the district judge's decision is binding only in this case.  It
may be persuasive in other cases that come forward in the same court,
but other judges have no obligation to follow it.  It is certainly not
binding in other courts in other Federal circuits.  Finally, the case is
being appealed, so this decision might go away completely, or it might
be narrowed even further by a decision by the appellate court.

The court also considered the plaintiffs' state law navigability rights.
The magistrate judge concluded 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."  Because the land adjoining the waters at issue were
between the ordinary high and low water mark, the magistrate judge
concluded that the riverbank is subject to public use.

The district judge agreed with the magistrate judge's conclusion that
the banks were subject to public use.  This is significant for paddlers,
because it recognizes broad access rights for boating activities.

However, the district judge also concluded that, under LA state law, the
public's right to use the banks 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. . . . Therefore, this Court
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.'"

Thus, under state law, fishing and hunting could be prohibited, but
boating that does not involve fishing or hunting likely cannot.  This is
not a good result from our perspective. However, it is not a ban on all
boating. It recognizes boating access rights.

As I said, this case is on appeal.  I have heard one law professor who
has written on navigability predict that this decision will be
overruled, so we should stay-tuned and see what happens with the appeal.
Probably not time to panic yet.

Paul Sanford

Director, Stewardship and Public Policy

Legal Counsel

American Canoe Association

7432 Alban Station Blvd. Suite B-232

Springfield, VA 22150-2311

Phone: 703.451.0141 ext. 20

Fax: 703.451.2245

www.americancanoe.org <http://www.acanet.org/>

Dedicated to helping people enjoy the outdoors using kayaks, canoes and
rafts since 1880

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