MS River hunters

[LongBarrel]

Here it is boys, the LAW SAYS
"Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway."

Sorry but if the river is in a flooded stage, you DO NOT have a right to hunt, fish, or engage in any other water sport beyond the natural bank of the river. It is a trespass on the land owners rights and you may be charged as such.

For everyone that is having this happening to them, take note of the Mississippi Code and talk to your GW.

Public Water Law

§ 51-1-4. What constitutes public waterways; rights thereon.

Such portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports. Such persons exercising the rights herein granted shall do so at their own risk and such persons shall not be entitled to recover any damages against any owner of property along such public waterways or anyone using such property with permission of the owner for any injury to or death of persons or damage to property arising out of the exercise of rights herein granted other than those damages which may be recovered for intentional or malicious torts or for gross or willful negligence against the owner of property or anyone using such property with permission of the owner. Nothing herein contained shall authorize anyone utilizing such public waterways under the authority granted hereby to trespass upon adjacent lands or to launch or land any commercial or pleasure craft along or from the shore of such waterways except at places established by public or private entities for such purposes. Nothing herein contained shall authorize any person utilizing said public waterways under the authority granted hereby to disturb the banks or beds of such waterways or the discharge of any object or substance into such waters or upon or across any lands adjacent thereto or to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.
Nothing herein contained shall be construed to prohibit the construction of dams and reservoirs by the State of Mississippi or any of its agencies or political subdivisions or riparian owners in the manner now or hereafter authorized by law or in any way to affect the rights of riparian landowners along such waterways except as specifically provided hereinabove or to amend or repeal any law relating to pollution or water conservation or to affect in any manner the title to the banks and beds of any such stream or the title to any minerals thereunder or to restrict the mining or extraction of such minerals or the right of ingress and egress thereto.

The provisions of this section limiting the liability of owners of property along public waterways and persons using such property with permission of the owners shall not be construed to limit any rights of claimants for damages under federal statutes or acts applying to navigable streams or waterways or any other civil causes of action subject to admiralty or maritime jurisdiction nor shall said provisions be construed to limit the rights of any parties involved in litigation founded upon the commercial or business usage of any navigable streams or waterways.

This section shall apply only to natural flowing streams.

SOURCES: Codes 1942 §§ 8413.5 8413.6; Laws 1972 ch. 361 §§ 1 2; 1988 ch. 598 § 1 eff from and after passage (approved May 25 1988). SOURCES: Laws 1994 ch.

[LongBarrel]

"But unless your hunt near a peepee hunting club they usually won't say anything to you"

I see. If I own land, and someone trespasses on my property and I get pissed, I am a peepee?

By that logic, if I come into your yard, crap on your lawn, and you get mad, that will make YOU a peepee?

Do you not believe in ownership rights?

[booger]

Uh, I misunderstood sumpin and deleted this post, sorry Longbarrel. I'll figure out what it was later.

No, I did understand, I think. [img]images/smiles/icon_rolleyes.gif[/img]

Don't you have to have a flood in order to have floodwaters? Or is regular water also a flood?

Longbarrel; A better analogy would be if I decide to crap in the road and my neighbor tries to stop me. Uh, well I can crap there if I want to but I may not in order to remain friends or I may just move to another spot in road and crap there. Legally it's "our road", neither of us own it and it could go to four lanes tomorrow.

[ December 19, 2001: Message edited by: booger ]

[msdawg]

LongBarrel is exactly right. The law was changed in the 90's. I remember it was discussed on The Listen to the Eagle radio show. We have a big problem with people running our land for ducks and deer when the river is out.

[Meeka]

I'm not sure if this muddies or helps clear the waters. What follows are Mississippi Attorney General opinions concerning this issue. We had this discussion last year, as I recall.
)


Office of the Attorney General
State of Mississippi


*1)
Opinion No. 96-0537
August 30, 1996

Re: Hunting on Navigable Public Waters Covering Private Lands

Senator Robert G. "Bunky" Huggins
104 County Club Drive
Greenwood, Mississippi 38930

Dear Senator Huggins:

Your opinion request has been received by the Attorney General's Office and has been assigned to me for research and reply. Your request states:
There are certain lakes in my district that have public boat landings, though portions of the lands adjacent to and underlying these lakes are privately owned. Because a question has arisen regarding the right of the
)
public to hunt on these waters, I hereby request an opinion from your office based on the facts and questions set out below.
For the purposes of your opinion, please assume that the waters of these lakes are navigable. Private owners have record title to the adjacent upland and to submerged lands underlying the lakes. The private owners deraign their title from persons who acquired these lands by patent from the sovereign. The private owners pay taxes on the submerged lands and the State of Mississippi has disclaimed any interest in them. There are points where the public can reach the waters of these lakes without trespassing. The private owners believe they have a right to exclude the public from hunting waterfowl on those portions of the lake overlying private lands. This would be consistent with the statute which provide[s] that "(i)t shall be unlawful to hunt, shoot, or trap or otherwise trespass on the lands or leases of another after having been warned not to do so, whether in person or by posting of suitable notice in conspicuous places on such lands." Miss. Code Ann. § 49-7-79 (1972). Do the owners of private lands which are submerged under public waters have the exclusive right to hunt on these lands? Does Miss. Code Ann. § 49-7-79 (1972) apply to lands that are submerged under public waters?
The general rule of law is that the public has no right to hunt on public waters where the land underneath those waters is privately owned. The more difficult question is whether or not Mississippi follows the general rule. .


)
Miss. Code Ann. § 51-1-4 (1972, amended April 8, 1994) provides in part:
Such portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports.
(Emphasis added)
This Office has previously issued opinions to the effect that the term "water sports" includes hunting, and thus Section 51-1-4 gives the public a right to the use of public waterways for hunting. MS AG Op., Polles (Decenber 6, 1993); MS AG Op., Tucker (December 3, 1976). We previously stated that floodwaters of public waterways were part of the public waterway. MS AG Op., Tucker (December 3, 1976). However, in 1994 the Legislature amended Section 51-1-4 to add the following provision:
*2)
[Nothing herein contained shall authorize any person utilizing said public waterways, under the authority granted hereby,] to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.
)
This language, of course, supersedes that part of our previous opinion respecting floodwaters of public waterways.
It should be noted that Section 51-1-4 applies only to certain natural flowing streams. But while the statute is silent with respect to public lakes and other public bodies of water, nowhere does it state that public waterways as defined in Section 51-1-4 are the only public waters where the public can exercise the right to fish and engage in water sports. Although Mississippi follows the common law rule that riparian owners own the beds of navigable freshwaters to the center of the stream, see Ryals v. Pigott, 580 So. 2d 1140 (Miss. 1990), cert. denied 502 U.S. 940 (1991); Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990); Cinque Bambini Partnership v. State, 491 So. 2d 508 (Miss. 1986), aff'd sub nom. Phillips Petroleum Company v. Mississippi, 484 U.S. 469 (1988), navigable freshwaters have historically been available to the public for a variety of recreational uses. We find no distinction between public waterways and other public bodies of water when it comes to the public's right to hunt.
We therefore conclude that the public does have the right to hunt on navigable public waters covering private lands.

Sincerely,

)
Mike Moore
Attorney General

Larry E. Clark
Special Assistant Attorney General
Case:
Excerpt from: 1996 WL 506582 (Miss.A.G.) to 1996 WL 506582, *2 (Miss.A.G.)


Office of the Attorney General
State of Mississippi


*1)
Opinion No. 93-0836
December 6, 1993

Dr. Sam Polles
Executive Director
Department of Wildlife, Fisheries and Parks
P.O. Box 451
Jackson, MS 39205-00451

Dear Dr. Polles:

Attorney General Mike Moore has received your opinion request dated October 28, 1993 and has assigned it to me for research and reply. Your request pertains to the use of "public waterways" and the limitations imposed by Miss.Code Ann. section 51-1-4; specifically:
"Would someone utilizing the waterway who ties to a tree or drops anchor be
)
disturbing the beds or banks of a waterway and therefore such activity would be prohibited by this law?"
The first issue that must be addressed in any discussion of waterway usage is whether or not the waterway you are dealing with is "public" or "private". I would like to draw your attention to an earlier Attorney General's Opinion that addresses this issue. The Opinion, which I have attached for your convenience, issued on December 14, 1988, to S. Mark Harris, clearly enumerates the criteria set forth in Miss.Code Ann. section 51-1-4 used to determine whether or not the waterway in question is public or private. That Opinion states that:
"all natural streams in this state having a mean annual flow of not less than 100 cubic feet per second as determined and designated on appropriate maps by the Mississippi Department of Natural Resources are public waterways."
Once the determination is made that the waterway involved is "public" then the question becomes, what activities are allowed on a public waterway. The Mississippi Supreme Court in Dycus v. Sillers 557 So.2d 486 (Miss.1990) while referring to usage of an oxbow lake stated that each person who can without trespass reach the waters of an oxbow lake may of right fish there to his heart's content, subject only to a like use by others and reasonable regulation by the State. This rule applies to all public waters of this State.
The legislature by statute has set forth the usage of public waters.
)
Miss.Code Ann. section 51-1-4 states that citizens shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports on public waterways.
The applicable case law and statutory law would allow someone utilizing public waters to tie to a tree or drop an anchor since this is the normal use by those engaged in fishing or other water sports.
The last question you asked referred to the usage of public waterways for waterfowl hunting. Clearly, a waterfowl hunter has the right to utilize the water surface on any public waterway. This would include the right to float freely on and anchor to the beds of the waterway in order to carry out this sport. But, what about wading in the waterway?
This question was addressed in a prior Attorney General's Opinion issued on December 3, 1976. That opinion states that wading by a hunter along the bed of a public waterway would be allowed. I have attached a copy of this opinion for your reference.
*2)
Of course, the facts and circumstances of each individual case will determine the rights and usage of the waterway in question.

Sincerely,

Mike Moore

)
Attorney General


By: Samuel W. Keyes, Jr.
Deputy Attorney General
Case:
Excerpt from: 1993 WL 547413 (Miss.A.G.) to 1993 WL 547413, *2 (Miss.A.G.)

[msdawg]

Not sure that muddied it up. The question is hunting flooded water. The statute posted early clearly says that the hunting of flooded waters is not natural and illegal. The second response and the supreme court case were dealing with a public body of water. Take the Tenn-Tom, private landowner do in some instances own land that extends into the waterway. This land stays covered in water and is a part of the waterway. Hunting this land would be legal. It is and will remain to be a part of a public body of water. However, when the Tombigbee River floods and agricultural lands are able to be accessed by boat this is unnatural and illegal. The big thing is what is and isn't the natural state of the stream or river.

[LongBarrel]

Now ain't that a bitxh!

Hmm the difference may be the "flooding" of the land. I can understand that if the boundaries are not changing due to flooding. The flooding effectively makes private ownership null untill the waters recede. Then you have the bag o' worms where the owner is assessed taxes on land/water that is considered "public." EH?

I think I need to call my tax assessor!!! [img]images/smiles/icon_eek.gif[/img] [img]images/smiles/icon_eek.gif[/img]

[GulfCoast]

I think the law was ammended after one of the AG's opinions that Meeka posted. I respect everyone's land rights, and don't try to hunt someone else's land. However, I have a copy of the statutes and AG's opinions that I keep in my boat if I am hunting in Chotard. That is the only place that I have ever had problems, with the TARA people. They are going to get someone killed. If you hunt in Chotard, you know what I mean.

[Meeka]

GC, the Huggins op. mentions a 1994 amendment.

I know EXACTLY what you are talking about up at Chotard. But, if I am not mistaken, flood stage at the Vicksburg gauge is 43 feet. At about 13 feet, one can access the river by boat from Chotard/Abamarle. At virtually every additional foot of depth, new waters, outside the channel are flooded. A lot of cuts, sloughs, etc can be accessed as the river gets higher, and it doesn't have to be near 43'.

The huntin gets good and the Tara folks get possessive when the water reaches the woods. What level is that, GC. I know it is way less than 43'. If I am not to bad mistaken, a 43' river level reaches the base of the levee in most places up around Chotard and the island the Tara folks access from Chotard Landing is WAY under water.

So the catch is this: When the river fluctuates naturally from 3' to flood stage of 43', where can one positively identify the bank?

[ December 19, 2001: Message edited by: Meeka ]

[featherduster]

Look through the mud in all these post and the answer is right there. I ran into these same problems a few years back fishing. I was harassed by the landowner (and i do mean harassed) so I went to the local warden and asked questions. The reply I got was watch the river stage for flood level. So therefore at Vicksburg, flood stage is 43 feet. As long as the gauge stays below that you can navigate, anchor, set out decoys, or wade to your hearts content if the land is accessible from the river.

[goosebruce]

Booger don't flip flop now. I never said the river wasnt yours, I said the floodwaters werent. Your statement was anything between the levees and your a guest of the corp, and thats wrong. You know where the the river ends, and the floodwaters begin. You know damn well aint nobody planted beans in the river bed dont you? You know damn well that lil cypress slough you found all of a sudden one day, thats 3 miles from the river aint part of it. The river is the river, and where it stops the trespassing begins. Just cause it got the same brown water covering it everything else does, dont mean a thing. And if there is a grey area, the law gonna be on the landowners side 99% of the time. Like I said, if a man deeds it, its his, stay off of it. Nothing unfair about that, land is for sale all the time, and anyone can buy some.
Last time we had this talk we had people talking about jumping beaver dams, cause the water was naviagble if it werent for the beaver dam, therefore it was public domain. Sheez. travis

[featherduster]

The law says I can go so I will go. But I'm a big boy and if I get ticketed for tresspassing, I'll let all ya'll know first.

[booger]

Travis, No flip flopping here, as I posted, not exactly but essentially: "you're a guest of the Corp until floodstage is reached, then be much more careful". Thats the way it is.

Do folks put up 50 foot tall signs indicating Joe's beanfield 30 feet underneath, go away? Hell no, that's why the law is the way it is IMO, because the state boundaries are not even agreed upon so how is Joe going to claim somebody is on his beanfield? If Joe's deed was actually surveyed in 2001 he may find out his spot is 100 feet out in the channel.You ever seen the map in Chotard landing bait shop? It's got two different state lines on it. It would take a massive team of cartographers, lawyers and state historians 20 years to settle it if push came to shove. This is common sense protection for the little man who shouldn't be hassled for fishing, hunting or poking around in OUR natural resource. I'm clear on the fact goosebruce never said the river wasn't mine, I just think it's important to remember not to be so damn selfishly possesive over something you cannot posses, so I continue to emphasize OURS. People always want to posses that which they cannot have, it's inevitable, therefore the debate goes on.

In reply to Wingmans relevant question of how would one feel if he were the landowner: If it were me, I would have knowledge of the circumstances, so it would come as no suprise. I would also realize that my favorite duckhole is now under 20 feet of water and is no longer worth a chit and need to find a new one in relation to water depth. I would welcome the rising water and adjust as neccesary, excited by the new opportunities to hunt places on my land that haven't been huntable the last few years. I'd be focusing my energy on where I'm hunting and worrying little, if any, about what others are doing.

[ December 19, 2001: Message edited by: booger ]

[Wingman]

Well if the duckhole ain't worth a turd, why are is anybody worried about boating in there and hunting it?

Wingman

[professor]

Unless the law has been repealed or amended, it reads that the taking of game and fish is permissible between the center of the channel and the mean high water mark. The mean high water mark and flood waters are not one in the same. The mean high water mark is defined by the COE as the long term mean level of sustained high water. For example, the mean high water mark for the Vicksburg guage is 38 ft. while the flood stage at Vicksburg is 43 feet. This law only applies to navigable public waterways, not streams and lakes, although some oxbow lakes do qualify since they were once part of the navigable public waterway.