Posted: Fri Jan 04, 2008 1:29 pm
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.
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.
