Your Access May be in Jeopardy

[Nemont]

Anyone else see this idiotic ruling from some Federal Judge down in LA.?

http://www.ibinews.com/ibinews/newsdesk/20060814154923ibinews.html

In the case of Normal Parm v. Sheriff Mark Shumate, James ruled that federal law grants exclusive and private control over the waters of the river, outside the main shipping channel, to riparian landowners. The shallows of the navigable waters are no longer open to the public. That, in effect, makes boating illegal across most of the country.

"Even though this action seems like a horrible pre-April fools joke, it is very serious," said Phil Keeter, MRAA president, in a statement. "Because essentially all the waters and waterways of our country are considered navigable in the US law, this ruling declares recreational boating, water skiing, fishing, waterfowl hunting, and fishing tournaments to be illegal and the public subject to jail sentences for recreating with their families."

 

[A-con]

Oh that really sucks.
The Judge needs to go back and re-read the law.
"main shipping channel" now needs to be defined.
You know, I can carry freghit for hire in a 10 ' John boat through 6" of water, does that make it a "main shipping channel".

 

[BuzzH]

What are the odds that thing will be appealed at the next level?

I'll tell you what the odds are...100%.

I'll also say the odds are 100% that it will be over-turned.

 

[Nemont]

What are the odds that thing will be appealed at the next level?

I'll tell you what the odds are...100%.

I'll also say the odds are 100% that it will be over-turned.

Buzz,
I agree with both statements. I guess my point of posting this more informational then anything. I guarantee that it is already on it's way to appeal and that it will be over-turned. It is just hard for me to believe that a judge would issue such a ruling that is all.

Nemont

 

[BuzzH]

Nemont,

I've researched water law in general and in particular navigable water law quite a bit.

Theres lots of case history clearly favoring public access to navigable water to the ordinary high-water mark in all level of courts...falls under commerce.

Most states that dont have stream access laws...likely will in the future. Colorado and Wyoming will get stream access laws passed when (and if) sportsmen can align and come up with the $$$ for a court battle. Its a slam dunk lawsuit heavily in favor of stream access if they take the battle.

I agree with you though about the judge and his decision...I think one of two things happened here:

1. The judge doesnt understand the law or case history of stream access/navigable water law.

2. Some pretty dim-witted attorneys presented a real weak case.

 

[Ten Bears]

I certainly hope something that ridiculous is quickly overturned....

 

[Dinkshooter]

Nemont,

I've researched water law in general and in particular navigable water law quite a bit.

Theres lots of case history clearly favoring public access to navigable water to the ordinary high-water mark in all level of courts...falls under commerce.

Most states that dont have stream access laws...likely will in the future. Colorado and Wyoming will get stream access laws passed when (and if) sportsmen can align and come up with the $$$ for a court battle. Its a slam dunk lawsuit heavily in favor of stream access if they take the battle.

I agree with you though about the judge and his decision...I think one of two things happened here:

1. The judge doesnt understand the law or case history of stream access/navigable water law.

2. Some pretty dim-witted attorneys presented a real weak case.

Is that all it would take Buzz?? Man that would be awesome down here in Colorado.

 

[BuzzH]

Thats all it would take.

In every case I've ever looked at...the courts have routinely found in favor of access to the ordinary high water mark as public access.

Some states like WY and CO have not taken up the fight for stream access laws...its a shame they dont...they'd win.

A couple of years ago the WWF made a half-hearted attempt to drum up support for a stream access lawsuit here in Wyoming.

Montana won a stream access lawsuit in about 1985-86. Sure nice to be able to fish through private property without worrying about asking grumpy landowners.

For your reading pleasure:

Under U.S. law, bodies of water are distinguished according to their use. The distinction is particularly important in the case of so-called navigable waters, which are used for business or transportation. Jurisdiction over navigable waters belongs to the federal government rather than states or municipalities. The federal government can determine how the waters are used, by whom, and under what conditions. It also has the power to alter the waters, such as by dredging or building dams. Generally a state or private property owner who is inconvenienced by such work has no remedy against the federal government unless state or private property itself is taken; if such property is taken, the laws of eminent domain would apply, which may lead to compensation for the landowner.

The basis for federal jurisdiction over navigable waters lies in the U.S. Constitution. Since the early nineteenth century, the U.S. Supreme Court has held that the Commerce Clause (Article 1, Section 8) gives the federal government extensive authority to regulate interstate commerce. This view originated in 1824 in the landmark case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23. In Gibbons, the Court was faced with deciding whether to give precedence to a state or federal law for the licensing of vessels. It ruled that navigation of vessels in and out of the ports of the nation is a form of interstate commerce and thus federal law must take precedence. This decision led to the contemporary exercise of broad federal power over navigable waters, and in countless other areas of interstate commerce.

In practical terms federal regulation of navigable waters takes many forms. One area of this regulation covers matters of transportation and commerce: for example, rules governing the licensing of ships and the dumping of waste. A second area applies to the alteration of the navigable waters, which is strictly controlled by federal law. The Rivers and Harbors Appropriation Act of 1899 forbids building any unauthorized obstruction to the nation's navigable waters and gives enforcement powers to the U.S. Army Corps of Engineers. A third area of regulation involves workers' compensation claims. The concept of navigable waters is important in claims made under the Longshore and Harbor Workers' Compensation Act of 1988 (33 U.S.C.A. §§ 901-950). The act provides that employers are liable for injuries to sailors that occur upon navigable waters of the United States.

The vast body of federal regulation concerning navigable waters frequently gives rise to litigation, and in many cases the courts have the difficult job of determining whether particular bodies of water are navigable (and thus subject to the law or regulation in question). Lakes and rivers are generally considered navigable waters, but smaller bodies of water may also be navigable. Attempting to address years of problematic litigation, the U.S. Supreme Court in 1979 created four tests for determining what constitutes navigable waters. Established in Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have held that bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that are traversable only by canoe have met the test.

 

[Calif. Hunter]

While title to tidelands and navigable waters vests in the States in trust for the public purposes of commerce, navigation and fishery and not to the Federal government, the States' titles are subject to the paramount right of the Federal government to regulate and improve navigation and interstate commerce.

The Submerged Lands Act also provides that title to the first 3 nautical miles of submerged (ocean) land from the ordinary low water mark is vested in the States, subject to the same reservations of authority to the Federal government.