ARREST THREAT FOR CHOTARD HUNTERS

[Po Monkey Lounger]

This entire thread demonstrates the need for better drafted state and federal laws regarding public waterways and public use of such waterways.

Many of the statements being made by those on both sides of this debate in this thread, are clearly wrong and not according to state or federal law.

The poster who said whoever owns the bottoms, controls the water, is clearly wrong if discussing waters in MS. MS allowed its public trust, public waterway bottoms to be sold to private owners, but through statutory and case law, preserved the right of the public to use the waters flowing over such private bottoms.

Other states did not sell the bottoms of such public waterways, and their laws are easier to understand --- basically, own the bottom, control the water. We can't do that in MS, because most of the bottoms of every public river or waterway in the state are privately owned. To convert to such a simple law now would require the state to buy back the bottoms to all public rivers and streams through emminent domain ---otherwise there would be chaos and no public access to all of our rivers or streams.

The only exception has been the MS River, which constantly changes course over history, flows through many states, and is a primary artery for interstate commerce. Thus, federal law, for the most part, has controlled public access to the river and its bottoms within its banks.

Our statutory law used to be very simple regarding public access. One could hunt or fish in a public waterway wherever they could obtain access by boat. This was later changed to prohibit public access and use of "floodwaters" beyond the "natural banks" of the waterway. Neither of these terms are adequately defined in an objective and meaningful way.

MS common law allows one to access and use ANY navigable waterway(navigable by jon boat, etc.), whether listed by the MDEQ as a public waterway or not. And MS common law says that once a waterbody is "public", it is ALWAYS public, no matter what happened to the waterbody later ---- eg river changing course and creating an oxbow-- the oxbow is still public if it can be legally accessed from either your own land, a private landowner with permission, or from a public access point.

Read the Dycus opinion. It is very instructive. The thread re Oxbows that Rob started is a great outline of current MS law re public waterways.

If you are within your rights under the law, and get a ticket for trespass, you could lose at the Justice Court level in front of a sympathetic local judge (not required to be an atty) who might feel pressured to rule in favor of a complaining landowner(likely a contributor to his election campaign) --- in other words, the GOB network. But, if you know you are in the right, and have done your homework, you could appeal "de novo" to a real court ----- Circuit Court, where the case would essentially start over again as if nothing had occurred (After posting the required appeal bond). Then you could build your case in an evidentiary hearing/trial and obtain a ruling by the Circuit Court Judge. IF necessary, you could appeal to the MS Supreme Court. Assuming you set up the right facts for the appeal, I believe that you would prevail on any neccessary appeal ---unless the MS Supreme Court is going to reverse and abrogate existing case law, or declare our statutory law unconstitutional and thus void.

There are several waterway areas that I believe that I could legally hunt per MS law, but would stir up some controversy with the owner(s) of the water bottoms, likely leading to a trespass charge by the complaining bottom owner(s) and some ill feelings. But, from a practical perspective, and wanting to maintain good relations with people, I refrain from doing so. Emotions can run high regarding these issues, and you have to pick your battles wisely and do your homework in advance. You could win the battle, but lose the war. And if you do decide to stand your ground, you must be prepared for the potential consequences, including a trespass charge--- and be willing to fight it, backed by your knowledge that you are in the right per existing MS law. And realize that an ultimate resolution to the issue, even if you win, could take some time to make it through the court system. So, again, from a practical standpoint, you have to ask yourself: "is it worth it".

More than once I have been in that same situation when hunting a public waterbody, but decided to stand my ground. On my first such occassion to experience this type of situation, I knew that I was on public land (water bottoms were public, not just the water), had done my homework, and had already double checked with the local gamewarden that I would be ok. I scouted to make sure that no one else was regularly hunting anywhere so close that I would be infringing on their hole. The first time I hunted the hole with my young son, after the first volley of gunfire at an incoming flock, a group of hunters came over to where we were (from quite a distance away) to inform us that we were on posted land and that we could not hunt there (I later learned who they were and what hunting club they belonged to). I politely, but firmly, informed them that I knew that I was hunting public water/land and had no intentions of leaving until through with my hunt. And that if they wanted, they could go get the gamewarden, and I would still be here when they returned to discuss it. That was the last I heard from them the rest of the season. They tried to bluff me out of that hole, and I didn't fold. For the next two years, the same folks repeated the same threat and I responded the same way. BUT, I had done my homework and knew I was right. So, there was little risk. I was in a position to call their bluff. Had I been the least bit unsure, the wisest course of action may have been to acquiesce and leave.

I wish I could give more specific advice to some of you in handling these types of matters, but due to the current state of the law and the different history and circumstances surrounding each waterbody in question, such is impossible. The best advice I can give you generally is to do your homework first BEFORE hunting a public area new to you. And if a controvery arises while you are in the field, be careful and do not provoke or get into a heated confrontation at that time. And if you believe you are in the right, have done your homework, and still want to pursue the issue, retain a lawyer with experience in that area of the law to assist you with your next steps toward being able to peacefully hunt that public waterbody.

Unfortunately, there are hunters who push the bounds of where you can legally hunt on public waters, and there are private bottom owners who exceed their scope of ability to legally prevent such public hunting. And at some point, regardless of what side of this you are on, you must either tolerate and acquiesce to the extremist's position or take legal action to prevent it. And quite often, our MS law has no clear cut answer.

[Roach]

I know ole Pintail and he is a good guy, well at least the other 305 days of the year.
Let his duck holes fill up, and you would think he is Fat Albert! (no pun intended Robby)

[MSDawg870]

Moral of the Story:

Buy Land, they've stopped making it.

- Mark Twain

[Seymore]

To be certain my posts are not taken out of context, I have no problem with those who have worked their way up in life and now are enjoying the spoils of their efforts. I do have a problems with an entity thinking they have the ability to push their weight around because they can and threaten people with false remarks.

[1deadduck]

Po Monkey-
Since I started this thread, I"ve been reading the responses from everyone. While I agree with some and disagree with others, I respect everyone's love of this sport. Since it appears you have at least a working knowledge of the legal aspects of this issue, I have a question for you. Today I hunted Chotard on the same side of last week's confrontation, but ac ross the La. state line into Ms. waters. Since Ms. laws are different than La's, was I legal or not? From what I'm reading, I think I'm legal. What's your opinion?

[Kenny Boone]

Kill anything?

[pntailhntr]

Yo:

Why are "wealthy" people not true duck hunters? I am not "wealthy" but I spent 7 years in school, and a long time paying dues to be able to afford a better place to duck hunt than the public marshes and WMA's I grew up hunting as a kid. I hunt 4 or 5 days a week, in the local public marsh down here and the delta, practice shooting and calling all year, train dogs every morning at daylight, and every night under the lights at the soccer field, but I ain't a "real" duck hunter? Baloney.

I hunt with 2 doctors who grew up on sharecropper farms, went from hunting for food to hunting ducks every single day they can. Love to see a doctor crawling through mud with a decoy sack. Love to see 'em on a tractor putting in millet. They are probably reading this post now laughing. They ain't real duck hunters? They don't "live it and breathe it?" Why does working your booty off to be a success make you less of a "real" duck hunter?

The quick answer is, that logic is dumb. You would be shocked at just how well off some of the quiet lurkers on this board are in real life. Wealth don't make you any more, or any less of a "real hunter."

GC, what is your problem, OBVIOUSLY, I wasn't talking about you OR your doctors. I never said there aren't wealthy true duck hunters. As I recall I said those who EAT, SLEEP, and BREATHE DUCK HUNTING!! If you and your doctors hunt more than 2 weekends a year, I'm obviously not talking about you. You are taking what I said TOTALLY out of context. I know guys who are VERY wealthy, they eat sleep, and breathe duck hunting, I'm obviously NOT talking about them!!! Get your panties out of a wad!!!!

[pntailhntr]

GC, We've met on more than one occasion, I totally understand what your are saying, I have plenty friends who hunt that have plenty of money, those who hunt are not the ones I have the problem with. Those who pay high dollars for someone else to work them up a duck hole, then show up 2 weekends a season are the ones I can't stand!! I too went to school for 6 years and have worked hard to make a living ever sense.

As for Copiah, we have only met once, you have no clue what type person I am. Opinionated, yes, probably tooooo much at times. But when I have a soapbox about something, I tend to speak it. As for being anything like HGH, That just aint nice!!! Now if someone read my post as being mad at THEM, I'm sorry, either you read it wrong, or you ARE the type person I"m talking about. BUT, if you are on this site, taking the time to read all this, OBVIOUSLY, you aren't that person. No need to take up for the "TRUE DUCK HUNTERS"

[Faithful Retrievers]

If GC ain't rich I need to go get in the food stam line.

I think Pintail and DIB are cousins.

[1deadduck]

Kenny-
Yes, we killed 7 between the 2 of us but could have killed 2 or 3 more if we had been meat hunting. Saw way more ducks than I thought I would have. However, we also went today and with the river dropping, we couldn't get to the back of airplane lake. It wouldn't have mattered anyway, we only saw a handfull of ducks and never fired a shot. Even went to south end of lake and tried and nothing.

[mudsucker]

Anybody know any thing about Bear Creek behind Swifttown off of Hwy.7? You can get to it off of Four Mile Lake(part of Bear creek). We were in a 16' boat with a 25h.p. and had NAVIGATED up there just to have some asswipe walk down to the waters edge behind his house/or camp(deer hunters, they were getting ready to go out on 4 wheelers w/blaze orange) tell us;
Him: "Who we got there?"

Me: "What?" Not wanted to give a name.

Him: "Where are y'all from?"

Me: "4 mile camp."

Him: "You know this is a private creek on Private property!"

Me: (thinking well kiss my as$ dumb $hit) "No."

Him: "It's private all the way down to where 4 mile narrows down on the top end."

Me: "Didn't know that." Not wanting to get in a dicussion about how we navigated the damn boat in a state creek to that point(and beyond as this was on our way back) while he had a deer rifle and a dog while we had a shotgun each!(2 of us, me and 10Mile's son Jimmy)!


Now. What is Y'alls take on this? It was NOT in a spot that was duck hunted, just a few "nice" houses that probbaly have the local democrat popullus(sp?) scared into thinking they can not go down to the creek to fish even if in a boat and not on "their" property!
Hell, there were hoop nets and trout lines stretched from bank to bank in the area! We lifted the motor to get over a couple.

Wingie. Know this spot and if so what is your take?

[1deadduck]

Mud-
Don't know for sure, but I've heard that it must be a free flowing waterway, not a dead end creek or ditch that is accessible from a free flowing navigatable waterway for it to be legal. The same senario is present at the large field by Delta National Wildlife Refuge north of Valley Park. The little Sunflower river is public hunting, however the creek that dumps into the large field is posted due to it terminating in the field. Or so we were told by local warden 10 years ago.

[GulfCoast]

If the "feeder" meets the def of public waterway, it is a public waterway. See Wingman's sticky.

[tunica]

I stopped Duck huting this year because every place I went someone would tell Me that "hey ZZZZZ thats MY duck hole your in"

[torch]

STAND ON FRONT OF BOAT, PULL DOWN YOUR PANTS, AND GIVE THE WIENER WAVE. WORKS EVERYTIME