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Public use of navigable waters
10/11/07
In a response to a challenge by anglers who were arrested for
trespassing while fishing from a boat on waters inundating the river bank
between the ordinary low and ordinary high water marks of the Mississippi River,
a federal court judge (Western District of Louisiana) ruled that the anglers were liable to be arrested
for trespass because the federal right of navigation did not protect the
right of the public to engage in such activities as fishing (or hunting) over
the inundated river bank. This ruling is being appealed to the US
5th Circuit Court of Appeals. A recent conference with the
appeals court judges on the case previews an adverse (to the anglers)
decision based on the judges’ inclination to view the matter as primarily one
of the rights of the owners of the inundated land to restrict access, rather
than the public nature of the water and the public rights incidental to
navigation on a navigable waterway to the ordinary high water mark. The
Louisiana Wildlife Federation and other sportsmen’s and industry groups are
working with legal counsel to file an amicus brief on Federal Rights of
Public Use of Navigable Waters, and Inalienable Right of the Public to Use
Navigable Waters.
Federal Ruling
At its 2007 Annual Meeting, the National Wildlife Federation adopted a
resolution (pasted below) expressing support for the right of public
recreational use of federal navigable waters to the ordinary high water
mark. We are hoping that the affiliates that sponsored the resolution,
and NWF, will join with us in filing a motion with the appeals court
requesting permission to file amicus briefs as well as to support, to
whatever extent possible, the work of legal counsel in drafting the
briefs. Please reply to randy@lawildlifefed.org
if you would like more information regarding this issue, and especially if
you /your affiliate are interested in joining the effort. Thanks.
RESOLUTION NO. 2007-15
2007
Support for Public Recreation on Navigable Rivers
of the United States
WHEREAS, navigable rivers have been declared public waters of the
United States; and
WHEREAS, hunting, fishing, boating, and furharvesting are activities that led
to such waters being declared navigable rivers; and
WHEREAS, recreational users have a right to access these resources that is
rooted in federal common law, the Federal Navigational Servitude, the Public
Trust Doctrine, the United States Constitution and several state
constitutions; and
WHEREAS, protection of navigable waters for public use is vital to the
conservation of those waters; and
WHEREAS, a 2006 ruling by a Judge of the United States District Court,
Western District of Louisiana, excludes hunting and fishing as legal
activities below the ordinary high water mark on navigable waters;
NOW, THEREFORE, BE IT RESOLVED that the
National Wildlife Federation, at its annual meeting assembled March 30-31,
2007, in Washington, D.C., supports the rights of public use on navigable
waters of the United States up to the ordinary high water mark of such
waters; and
BE IT FURTHER RESOLVED that the National Wildlife Federation, at its annual
meeting assembled March 30-31, 2007, in Washington, D.C., urges the Congress,
the states, the Secretary of the Interior and the U. S. Fish and Wildlife
Service to take the necessary actions to affirm and establish laws and
regulations ensuring the rights of public use on navigable waters of the United
States up to the ordinary high water mark of such waters.
Randy P. Lanctot
Executive Director
Louisiana
Wildlife Federation
phone/fax 225/344-6707
www.lawildlifefed.org
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