Petition for Writ of Certiorari — Parm v. Shumate (No. 07-1289)

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Supreme Court, U.S.

FILED

No. 071289 APR11 2008

OFFICE OF THE CLERK

Su The

Supreme Court of the Anited States

NORMAL PARM, JR., ET AL.,

Petitioners,

MARK SHUMATE, in his official capacity

as Sheriff of East Carroll Parish, Louisiana,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

PAUL LOY HURD*

State/Federal Bar No. 13909

Post Office Box 2190

Monroe, Louisiana 71207-2190

1899 Hudson Circle, Suite 2

Monroe, Louisiana 71201

Telephone: (318) 323-3838

Counsel for Petitioners *Counsel of Record

COCKLE LAW BAIL? PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Circuit Court’s new “Recreational Use

Exclusion” restrict the public’s right to use the navi-

gable waters of America for recreational purposes

under (i) the Privileges or Immunities Clause of the

Fourteenth Amendment to the United States Consti-

tution, (ii) the mandates of the “Equal Footing Doc-

trine” imposed upon all the states as a condition of

admittance to the Union, (iii) federal common law,

and (iv) the numerous Congressional enactments that

declare recreational use of navigable waters of Amer-

ica to be both substantial interstate “commerce”

under the Commerce Clause of the United States

Constitution, and a legitimate use and activity per-

mitted under the federal navigational servitude.

PARTIES TO THE PROCEEDINGS

The Petitioners in the proceedings are Normal

Parm, Jr., Harold Eugene Watts, now deceased,

herein represented by his widow, Ms. Glenda Watts,

the duly appointed Administratrix of the Succession

of Harold Eugene Watts, Fourth Judicial District

Court, Parish of Morehouse, State of Louisiana, Roy

Michael Gammill, William T. Rogers, and Robert

Allen Balch. The Respondent is Mark W. Shumate, in

his official capacity as Sheriff of East Carroll Parish,

Louisiana.

The following persons or entities appeared as

Amici in the District Court. The Amici in support of

Petitioners were:

ROWA of Louisiana

Louisiana Crawfish Producers Association —

West Inc.

Louisiana Wildlife Federation

Louisiana State Bass Federation

Waterways Access Association (of Louisiana)

Mississippi Bass Federation Nation

Arkansas State Bass Federation

Big Sun Bass Masters of Bellview Florida

Maple Bassmaster of Florida

Blackhawk Bassmasters of Illinois

ili

PARTIES TO THE PROCEEDINGS - Continued

Bardstown Bassmasters of Kentucky

Kentucky State Bass Federation

Minnesota State Bass Federation

River Rats Bassmasters of Minnesota

Western Maine Anglers

Yankee Bassers Bass Club of Maine

Pennsylvania Bass Federation, Inc.

The Amici in support of Respondent were:

Walker Cottonwood Farms, LLC; and

Edward Wisner Donation

TABLE OF CONTENTS

Page

PU EIEN PRG e ERE BD ois cncecccccscesccececseccosccesvess i

PARTIES TO THE PROCEEDINGS .............0....... 8

BRIIRMEE SIE CATT ETN E ivcsnesivecrasnsesceserrescesseecceseseess iv

pe Oe Pl gs oi) ) ee vi

VO OP ORE ge ivy 8) ly yl) >. Vili

PETITION FOR WRIT OF CERTIORARI ............ 1

Fe EP INEPT acres saccsesaniesesercennvecestorassessvesaes 1

STATEMENT OF JURISDICTION .......000000. 2

CONSTITUTIONAL, STATUTORY AND REGU-

se GO By yo 8 9 9). 2

STATEMENT OF THE CASE...................cccccceseeees 5

REASONS FOR GRANTING THE WRIT............. 9

A. The Circuit Court Decision Substantially

Disregards Centuries-Old Federal Author-

ity By Creating a “Recreational Use Exclu-

sion” to the Public’s Right to Travel on,

Navigate and Fish the Navigable Waters of

fn RN PD Rae ne ES OMe int C0 PREVA T eee 9

B. The Circuit Court Holding Will Substan-

tially Disrupt State Law on Public Naviga-

tion for Recreational Purposes..................... 12

C. The Fishing Public and Supporting Busi-

nesses Recognize the Circuit Court’s “Rec-

reational Use Exception” to be a Substantial

Economic Threat to Commerce Surrounding

the Public’s Recreational Use of the Naviga-

ble Waters of America.....................csscccesseees 13

TABLE OF CONTENTS — Continued

Page

LEGAL ARGUMENTS THAT SUPPORT GRANT-

ee ee I tec einartipccncinrenescascnmepleccthscatinrcenssanss 14

2 i ecintnes delamcinaaill 14

B. Legal Bases of Petitioners’ Action and

Supporting Federal Rights.......................... 17

1. The Right of the Public to Navigate

and Fish Navigable Waters Is a Na-

tional Privilege Protected by the Privi-

leges or Immunities Clause of the

Fourteenth Amendment to the United

States Conmststwkioes <q... cccnccswcsscccesseses 20

2. The Right of Public Navigation and

Fishing Is a National Right Affirmed by

the “Equal Footing Doctrine” Mandates

Placed Upon Each State as a Condition

of Admittance to the Union................... 24

3. The Right of Public Navigation and

Fishing Is a National Right Recognized

Under Federal Common Law. ................ 29

4. The Right of Public Navigation and

Fishing Is a Congressionally Recognized

Public Use of Navigable Waters Under

the Federal Navigational Servitude and

Under the Commerce Clause................ 35

PE aT ci ssilclisasaoenisininnisshiatcunionenicsnaneeanihasesiiiboacsiiog 40

TABLE OF CONTENTS -— Continued

TABLE OF APPENDIX

Parm v. Shumate, 513 F.3d 135, 2007 U.S. App.

LEXIS 29948 (5th Cir. La. 2007) rendered

Page

FPUDCIII Fs IIE sos ccs cise sscntasnistevetsssnsieens App. 1-22

Parm v, Shumate, 2006 U.S. Dist. LEXIS

61227 (W.D. La. Aug. 29, 2006), and Judg-

Parm v. Shumate, 2006 U.S. Dist. LEXIS 77506

(W.D. La. Oct. 11, 2006) and Order .......... App.

Parm v. Shumate, 2006 U.S. Dist. LEXIS

64080 (W.D. La. Apr. 21, 2006); Second Re-

port and Recommendations; United States

Magistrate James D. Kirk to United States

District Judge Robert G. James............... App.

Parm v. Shumate, United States Court of Ap-

peals for the Fifth Circuit; Denial of Rehear-

ing En Banc filed January 28, 2008......... App.

Corps of Engineers Regulation (Title 33 —

Navigation and Navigable Waters; Chapter

Ii — Corps of Engineers, Department of the

Army; Part 329 - Definition of Navigable

Waters of the United States)

. 23-40

41-49

90-95

96-97

SCENE BOO: © FUE BONG oa sacceicsviecescvnsscxsvesssaesees App. 98

Section 329.4 General definition ................... App. 98

Section 329.11 Geographical and jurisdic-

tional limits of rivers and lakes.............. App. 99-100

TABLE OF CONTENTS - Continued

Page

Walker Lands, Inc. v. E. Carroll Parish Police

Jury, La. App. 38376, 871 So.2d 1258, 2004

La. App. LEXIS 977 (La. App. 2 Cir. Apr. 14,

2004), writ of certiorari denied Walker

Lands, Inc. v. E. Carroll Parish Police Jury,

La., 2004-1421, 903 So.2d 442, 2005 La.

LEXIS 1868 (La. June 3, 2005), reconsidera-

tion denied, Walker Lands, Inc. v. E. Carroll

Parish Police Jury, La., 2004-1421, 916 So.2d

127, 2005 La. LEXIS 2724 (La. Nov. 28,

EN iii stats iachocetaavahtacnapaieonsbabaanaticetaleant App. 101-122

vill

TABLE OF AUTHORITIES

Page

FEDERAL JURISPRUDENCE:

Baldwin v. Fish & Game Commission, ¢36 U.S.

Fe E shiinisba Tinie vecnac vies auepcucunaiibbiiabta ti aadliaie cccudee 23

Coastal Petroleum Co. v. United States, 524

Fe EI CR AE, LOTS) oicvcciiccxcveceessiicsvavennsecios 27, 28

Gibson v. United States, 166 U.S. 269 (1897)...... 27, 28

Greenleaf Johnson Lumber Co. v. Garrison, 237

Rei ee SEI Lis Soules Colbtcicasiciorcsuiveiesancdbmadcaeiiataueauilites 38

Illinois Central Railroad Co. v. Illinois, 146

RES He A aicccke etiekidiseccimusinsscghmeuaeel 30, 32

Kaiser Aetna v. United States, 444 U.S. 164

iiss iisitisanindes oie anadind eae 19, 37, 31

Lawton v. Steele, 152 U.S. 183 (1894)......0..0 ee. 30

Martin v. Waddell’s Lessee, 41 U.S. 367 (1842)....passim

Morrie o. COB. E14 US. TO TID) vicissviicsicsctcnssversiecte 22

Parm v. Shumate, 2006 U.S. Dist. LEXIS

64080 CW.D. Tin. Apr: 21, BOB) v...cccccctecccccenaserecsesi ay

Parm v. Shumate, 513 F.3d 135 (5th Cir. 2007) ....passim

Phillips Petroleum Company v. Mississippi, 484

U.S. 469 (1988)......... dshaihesicnitace debehesaaeadibaieitinni aided dmcd na ieaa 37

Scranton v. Wheeler, 179 U.S. 141 (1900)............ 11, 31

Shively v. Bowlby, 152 U.S. 1 (1894) «0... 26

Silver Springs Paradise Co. v. Ray, 50 F.2d 356

CG CAR SII EE eicersiiantsciscicttrvecirserenndaaniaa 29, 30, 31

TABLE OF AUTHORITIES — Continued

Page

Smith v. Maryland, 59 U.S. (18 How.) 71

a ss wuss cadpecesiaddedcauediinens 11, 28

The Slaughterhouse Cases, 83 U.S. (16 Wall.)

To ys | SELES ES ae OOD 10, 23, 24

United States v. Appalachian Power Co., 61

er ncpaduundenchuouaempesons 36

United States v. Chandler-Dunbar Co., 229

ins cds cccpacdenvaeeeevacenssicsaeses 27, 28, 30, 38

United States v. Kansas City Life Ins. Co., 339

i ss capagiobeneneebeasnecabons 27, 28

Wallis v. Pan American Petroleum Corp., 384

a ccayucbavagveevedsatevestes 36

CONSTITUTIONAL AUTHORITY:

Constitution of the United States of America,

Fourteenth Amendment, Privileges or Im-

acc cinincvdeschucesuadenssveussisaverns passim

Constitution of the United States of America,

Article I, Section 8, Clause 8 .......................... 2, 8, 36

STATUTORY AND REGULATORY AUTHORITIES:

United States Congressional Statute at Large,

vol. 2, pp. 642 and 703 (1811)....................... 2, 11, 25

The Fish and Wildlife Coordination Act of 1985

GE 4, 12, 38

The Fish and Wildlife Act of 1956

EE oy oY Cy: I 3, 12, 38

TABLE OF AUTHORITIES — Continued

Page

The Magnuson-Stevenson Fisheries Management

and Conservation Act of 1996

CRP Ree reas Ch BE OD, Jas iiccevecensvsssccscsvsnnces 4-5, 12, 38

I aie lahsinictesinpciun snneousincsonepederenenieciiebeianaanns 2

The Clean Water Act

Ee ee IEE Oe OR Piven cccecnnsevecsvcsrencesciserve §, 12, 38

I leit cc ch baie csndhacasiiseeeeeubinabebetabeaenelal 3,11

SIE MI Ta iraisices ins cardiscaneanipenreiiesnioneanielvenlennaaeainueaete 28

I IN iss dhicaneithienniciovessdeudeersansiibicnieubiuionekiaeuiauaaneae 37

en MSE ND isis vcvvinecscansvensundecnavinnds 28, 32, 37, 39

STATE AUTHORITIES:

STATE CASES:

Arnold v. Mundy, 6 N.J.L. 1 (New Jersey 1821)....10, 22

Boykin & Lang v Shaffer, 13 La. Ann. 129

GD ahieisia Sicelstisck cise cind Steniigivenaslesibceedimi eceales pliable 25

City of Providence v. Comstock, 27 R.I. 537, 65

Delinks v. McGowan, 148 Conn. 614, 173 A.2d

ee SE aaeibianiicaccniienaxtobasthavlieaeatnedianusaeet 34

Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58,

2005 Mich. LEXIS 1314 (2008)...............................84

Gulf Oil Corp. v. State Mineral Bd., 317 So.2d

576, 1974 La. LEXIS 4480 (La. 1974)... 33

TABLE OF AUTHORITIES — Continued

Page

Gwathmey v. State ex. rel. Department of

Environment, Health & Natural Resources,

342 N.C. 287, 464 S.E.2d 674, 1995 N.C.

FO EATEN AIOE EO TOTO 34

Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57

i 31, 34

O’Brien v. State Mineral Board, 209 La. 266, 24

So.2d 470, 1945 La. LEXIS 933, 1946 La.

I oe a i auadiasdsbonna 33

Ryais v. Pigott, 580 So.2d 1140, 1990 Miss.

Rae Oe TRG, BI easescescncesenccevecsavscsesecscsesoseses 34

State v. Barras, 615 So.2d 285 (La. 1993).................. 33

Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78

RE ENERO EE ee ATS tr ee ee Pepe aE ey 34

Walker Lands, Inc. v. E. Carroll Parish Police

Jury, La. App. 38376, 871 So.2d 1258, 2004

La. App. LEXIS 977 (La. App. 2 Cir. Apr. 14,

2004), writ of certiorari denied Walker

Lands, Inc. v. E. Carroll Parish Police Jury,

La., 2004-1421, 903 So.2d 442, 2005 La.

LEXIS 1868 (La. June 3, 2005), reconsidera-

tion denied, Walker Lands, Inc. v. E. Carroll

Parish Police Jury, La., 2004-1421, 916 So.2d

127, 2005 La. LEXIS 2724 (La. Nov. 28,

ID ssh. xs tists hiss dibasic econo dance eaiess venue nada 15, 16, 34

xil

TABLE OF AUTHORITIES — Continued

Page

STATE CONSTITUTIONS AND STATUTES:

Louisiana Constitution, Article I, Section 27 ...... 32, 33

as css pa comecinbnvnvenedannabeaii 33

78 i SES ARSE PR Se One nT NP Pe OO 33

OTHER REFERENCES:

COMMENT: Floating On Uncharted Headwa-

ters: A Look at the Laws Governing Recrea-

tional Access on Waters of the Intermountain

West; Ravis H. Burns; 5 Wyo. L. Rev. 561

(2005), University of Wyoming................:cccecseeeeeeee 34

NOTE: Property — Susceptibility of Beds of

Navigable Waters to Private Ownership,

Stephen H. Kupperman; 50 Tul. L. Rev. 193

rk es ai asic cle Cee nsaendiratnesedewns 33

Louisiana Department of Wildlife and Fisher-

ies; Education/Research; Economic Impact.

Study Accessible under website of Louisi-

ana Department of Wildlife and Fisheries

(http://www.wlf.louisiana.gov/pdfs/education/

Economic%20Benefits%200f%20FishW LBoating

BOROOUIP CORSE, 10. FY) occncccesncceessorsevncrsscocncessennes 38

THO MEGBRG CROATIA OF TALS «0... 00sesscsccescoveserscsessves 17, 21

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certio-

rari issue to the United States Court of Appeals for

the Fifth Circuit to review the judgment and opinion

of the United States Court of Appeals for the Fifth

Circuit issued December 27, 2008.

OPINIONS BELOW

Originally, Magistrate Judge James Kirk was

directed to make a report and recommendation to the

District Court on the pending cross motions for

summary judgment. The Magistrate Judge recom-

mended judgment in favor of Petitioners in Parm uv.

Shumate, 2006 U.S. Dist. LEXIS 64080 (W.D. La.

April 21, 2006); App. 50-95. The District Court

granted judgment in favor of Respondent in Parm v.

Shumate, 2006 U.S. Dist. LEXIS 61227 (W.D. La.

Aug. 29, 2006); App. 23-40. Petitioners’ motion for

reconsideration was denied by the District Court in

Parm v. Shumate, 2006 U.S. Dist. LEXIS 7750€ (W.D.

La. Oct. 11, 2006); App. 41-49.

Petitioners appealed the District Court’s judg-

ment to the United States Court of Appeals for the

Fifth Circuit. The District Court’s judgment was

affirmed in Parm v. Shumate, 512 F.3d 135, 2007 U.S.

App. LEXIS 29948 (5th Cir. La. 2007); App. 1-22, and

Petitioners’ motion for rehearing en banc was denied

on January 28, 2008. App. 96.

STATEMENT OF JURISDICTION

On December 28, 2007, the United States Circuit

Court of Appeals for the Fifth Circuit handed down

its opinion in this matter, affirming the District

Court’s judgment. A timely petition for rehearing was

denied on January 28, 2008.

This Court has jurisdiction to hear this appeal

from the United States Court of Appeals for the Fifth

Circuit pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL, STATUTORY

AND REGULATORY AUTHORITIES

Constitution of the United States, Fourteenth

Amendment, Section 1:

No State shall make or enforce any law

which shall abridge the privileges or immu-

nities of citizens of the United States;....

Constitution of the United States, Article I,

Section 8, Clause 3:

The Congress shall Power ... To regulate

Commerce with foreign Nations, and among

the several States, and with the Indian

Tribes.

United States Statute at Large, vol. 2, pp. 642

and 703 (1811):

Provided, that it shall be taken as a condi-

tion upon which said State is incorporated in

the Union, that the river Mississippi and the

navigable rivers and waters leading into the

same and into the Gulf of Mexico, shall be

common highways, and forever free, as well

to the inhabitants of said State, as to the in-

habitants of other States and Territories of

the United States, without any tax, duty, im-

post or toll therefor, imposed by said State,

and the above condition and also all other

conditions and terms contained in the third

section of the-Act the title whereof is herein-

before recited shall be considered, deemed

and taken, fundamental conditions and

terms upon which the said State is incorpo-

rated in the Union.

Title 33 United States Code, Section 10:

All the navigable rivers and waters in the

former Territories of Orleans and Louisiana

shall be and forever remain public highways.

The Fish and Wildlife Act of 1956, Title

United States Code, Section 742a:

Declaration of policy. The Congress

hereby declares that the fish, shellfish, and

wildlife resources of the Nation make a ma-

terial contribution to our national economy

and food supply, as well as a material contri-

bution to the health, recreation, and well-

being of our citizens;....

The Congress further declares that the

provisions of this Act are necessary in order

to accomplish the objective of proper resource

development, and that this Act shall be ad-

ministered with due regard to the inherent

right of every citizen and resident of the

United States to engage in fishing for his

own pleasure, enjoyment, and betterment,

and with the intent of maintaining and in-

creasing the public opportunities for recrea-

tional use of our fish and wildlife resources,

and stimulating the development of a strong,

prosperous, and thriving fishery and fish

processing industry.

The Fish and Wildlife Coordination Act of 1985,

Title 16, United States Code, Section 661:

For the purpose of recognizing the vital con-

tribution of our wildlife resources to the

Nation, the increasing public interest and

significance thereof due to expansion of

our national economy and other factors, and

to provide that wildlife conservation shall

receive equal consideration and be coordi-

nated with other features of water-resource

development program, [the Secretary of the

Interior is authorized to take certain coordi-

nating actions in support of wildlife man-

agement].

The Magnuson-Stevenson Fisheries Manage-

ment and Conservation Act of 1996, Title 16,

United States Code, Section 1801:

(a) Findings.

(3) Commercial and recreational fish-

ing constitutes a major source of employ-

ment and contributes significantly to the

economy of the Nation. Many coastal areas

are dependent upon fishing and related ac-

tivities,....

The Clean Water Act, Title 33, United States

Code, Section 1251:

1251 Congressional declaration of goals

and policies.

(a) Restoration and maintenance of chemi-

cal, physical and biological integrity

of Nation’s waters; national goals for

achievement of objective. The objective

of this Act [83 U.S.C. 1251 et seq.] is

to restore and maintain the chemical,

physical, and biological integrity of the

Nation’s waters. In order to achieve this

objective it is hereby declared that, con-

sistent with the provisions of this Act [33

U.S.C. 1251 et seq. ]:

(2) It is the national goal that wherever

attainable, an interim goal of water

quality which provides for the pro-

tection and propagation of fish,

shellfish, and wildlife and provides

for recreation in and on the water be

achieved by July 1, 1983;...

STATEMENT OF THE CASE

The Petitioners (also referred to as “Plaintiff-

Fishermen”) are all citizens and inhabitants of the

United States who regularly utilize the navigable

waters of the Mississippi River to boat and fish for

pleasure and their personal consumption of the fish

and wildlife taken from the waters of the Mississippi

River. The Plaintiff-Fishermen have been arrested for

trespassing by the Respondent, the East Carroll

Parish Sheriff, because they each have boated and

fished in waters of the Mississippi River in East

Carroll Parish.

It is undisputed that the Mississippi River is a

navigable water body. App. 62.' The United States

Geological Survey produced a topographical map of

the disputed area, that was admitted into evidence.

App. 123. It is undisputed that when the waters of

the Mississippi River periodically rise and before

reaching the federal high water mark, substantially

all the riparian land inside the levee is inundated each

year. It is undisputed that some of the riparian land

covered by the Mississippi River includes riparian

land owned by Walker Lands, Inc. App. 44. Lastly, it

is undisputed that the Plaintiff-Fishermen have used

the waters of the Mississippi River that overlay the

riparian bank for recreational boating and fishing,

and that each has been arrested for doing so.”

' “The parties do not dispute the navigability of the Missis-

sippi River.” App. 62.

* “The topographic map in evidence in this proceeding shows

that the elevation in a few places on the lands is higher than 112

feet. At oral argument counsel for plaintiffs suggested, in answer

to the court’s inquiry, that approximately 95% of the lands are

under water at the high water mark of 112 feet. That suggestion

appears consistent with the topographic map.” App. 57.

* “It is clear from plaintiffs’ complaint and from their

multiple bnefs that plaintiffs seek to navigate on and to fish and

(Continued on following page)

This suit was initiated to stop the illegal arrest of

the Plaintiff-Fishermen. The Plaintiff-Fishermen

assert that multiple federal authorities preserve for

the public the right to use the navigable waters of

America for travel and recreational boating and

fishing, across the surface of the navigable waters as

those waters rise and spread across the riparian

lands until the water reaches the federal high water

mark.* In this case, the Magistrate Judge was in-

structed to make a report and recommendation to the

District Court and recommended summary judgment

in favor of Plaintiff-Fishermen. Parm v. Shumate,

2006 U.S. Dist. LEXIS 64080 (W.D. La. Apr. 21, 2006)

App. 50-95. The District Court rejected these sub-

stantive legal recommendations, carving out a judi-

cial exception to public navigation that holds that

“recreational” use of navigable waters of America is

unprotected by federal law and does not involve “com-

merce.” App. 32-33. This “Recreational Use Exclusion”

created by the District Court was the analytical basis

hunt on waters between the ordinary low water mark and the

ordinary high water mark of the Mississippi River. They do not

seek authority to go upon dry land belonging to Walker Lands or

others and do not seek to go upon waters which flood lands when

the Mississippi rises above its ordinary high water mark of 112

feet.” App. 58-59.

‘ “Plaintiffs argue that they have a federal right to fish on

the Property when it is covered by the Mississippi River’s waters

because the Mississippi River is a navigable waterway of the

United States. They contend that a federal navigational servi-

tude burdens the Property, creating a public right to fish there.”

Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007). App. 14.

upon which the District Court granted summary

judgment in favor of Respondent. App. 34. The United

States Court of Appeals for the Fifth Circuit, adopted

and affirmed the District Court’s “Recreational Use

Exclusion” to the public’s rights of navigation and

fishing in the waters of America, declaring that “...

[nJeither navigation nor commerce encompass recrea-

tional fishing.” App. 16.

The Plaintiff-Fishermen asserted that the pub-

lic’s right to boat and fish the navigable waters of

America has existed under common law since the

American Constitution, and before in English com-

mon law. Equally, Petitioners submit that their right

of navigation and piscary (fishing of public waters)

has been recognized as a “privilege” protected by the

Privileges or Immunities Clause of the Fourteenth

Amendment to the Constitution; is a fundamental

right of the public protected by Congressional man-

date that same be preserved to the People as a condi-

tion of statehood; and further has been declared to be

a proper use of navigable waters of America under

the Commerce Clause.

Petitioners submit that each of these federal

bodies of law cumulatively reserve to the public a

basic right of travel, navigation and fishing in the

navigable waters of America. Petitioners respectfully

submit that the lower courts committed clear error in

creating a “Recreational Use Exclusion” to these

existing federal principles of law.

REASONS FOR GRANTING THE WRIT

A. The Circuit Court Decision Substantially

Disregards Centuries-Old Federal Authority

By Creating a “Recreational Use Exclusion”

to the Public’s Right to Travel on, Navigate

and Fish the Navigable Waters of America.

Prior to the decision of the Circuit Court in this

case, the legal principles establishing the legal right

of the public to travel upon, navigate, fish and use the

navigable waters of America were well-settled within

four bodies of law: (i) the Privileges or Immunities

Clause of the Fourteenth Amendment to the Consti-

tution, (ii) the Congressional enactments known as

the “Equal Footing Doctrine” which mandated that

each state, as a condition of statehood, preserve to the

public the use of its navigable waters forever, (iii)

English common law carried into American common

law, and (iv) Congressional enactments, and regula-

tory determinations by the Corps of Engineers, that

confirm the public’s right to recreationally navigate,

boat, and fish under the federal navigational servi-

tude and the Commerce Clause.

Notwithstanding these very substantial and

settled bodies of law, which uniformly support public

navigation for all reasonable purposes, the Circuit

Court held that the public has no federally created

right, nor any federally protected right, to travel on or

use any of the navigable waters of America for recrea-

tional purposes. The Circuit Court’s decision, for the

first time in American jurisprudence, creates a “Rec-

reational Use Exclusion” to the public’s general right

of navigation on public waters.

The substantive, settled law that was disre-

garded includes the Jandmark decisions that have

confirmed the public’s right of travel, navigation and

recreational use of public waters. The Circuit Court

disregarded the landmark case known as The Slaugh-

terhouse Cases (83 U.S. (16 Wall.) 36, 79-80 (1873)), in

which this Supreme Court declared that the public’s

right to travel on and navigate the navigable waters

of America is one of those “privileges” preserved by

the Privileges or Immunities Clause of the Four-

teenth Amendment to the Constitution. The Circuit

equally ignored the landmark cases of Arnold uv.

Mundy, 6 N.J.L. 1 (New Jersey 1821) and Martin v.

Waddell’s Lessee, 41 U.S. 367 (1842).

Secondly, the Circuit Court’s decision disregards

the Congressional mandate, known as the “Equal

Footing Doctrine,” directed to every state as a pre-

condition of statehood, which required that the navi-

gable waters within the state’s border remain forever

open to public navigation. More specifically the

“Equal Footing Doctrine” requires that each state

reserve the public use of the navigable waters for “

... the inhabitants of said State [and] to the inhabi-

tants of the other States and Territories of the United

States, ....” See, also 33 U.S.C. 10. Again, the Cir-

cuit Court holds that its “Recreational Use Exclusion”

supercedes these Congressional requirements for

statehood.

Thirdly, the Circuit Court’s reliance on its own

“Recreational Use Exclusion” from public navigation

disregards this Supreme Court’s many holdings that

expressly recognized under the common law, the

public rights of navigation and piscary (fishing in

navigable waters) in the navigable waters of America.

Both Martin v. Waddell’s Lessee (41 U.S. 367, 414

(1842)), and Smith v. Maryland (59 U.S. (18 How.) 71,

75 (1855)), reaffirm that the public’s right to navigate

includes a common“... public right of fishery ...” in

navigable waters. In Scranton v. Wheeler, 179 U.S.

141, 163 (1900), this Court reaffirmed that the pub-

lic’s right to navigate and fish the navigable waters

derives from the common law of navigation holding

that “(t]he Common law recognizes navigation as an

interest of paramount importance to the public.”

Fourthly and finally, the Circuit Court’s decision

disregards the pre-eminent power and right of the

Congress to determine those activities that are per-

mitted within the federal navigational servitude.

Numerous Congressional enactments specifically

recognize recreational fishing and boating as a sub-

stantial commercial activity authorized by Congress

to be conducted in the navigable waters of America.

* United States Congressional Statute at Large, vol. 2, pp.

642 and 703 (1811).

These Congressional enactments include The Fish

and Wildlife Act of 1956 (16 U.S.C. 742a-742j), The

Fish and Wildlife Coordination Act of 1985 (16 U.S.C.

661-668); The Magnuson-Stevenson Fisheries Man-

agement and Conservation Act of 1996 (16 U.S.C.

1801 et seq.) and The Clean Water Act (33 U.S.C.

1251 et seq.) See, 3-5.

The Circuit Court’s new “Recreational Use Exclu-

sion” calls all these long established principles of

federal navigation law into question, and eliminates

all federal protection of recreational boating in Amer-

ica’s waters. The Circuit Court’s judgment, if left

standing, will support the continuing shrinkage of the

public’s use of the federal navigational servitude, on a

case by case basis, eliminating those activities that a

court might now, or in the future, deem to be too

“recreational” in nature. This potential for further

disruption of recreational activities on America’s waters

is a threat of national scope. Such a national threat to

well settled federal law strongly argues in favor of the

granting of the petition for writ of certiorari.

B. The Circuit Court Holding Will Substan-

tially Disrupt State Law on Public Naviga-

tion for Recreational Purposes.

The navigable laws of many of the states run

parallel to established federal precedent, including

the long established rights of public navigation and

fishing. Should this new “Recreational Use Excep-

tion” to public navigation be left unreviewed, it will

be necessary for many states to review the State’s

laws on navigation, to determine if this new federal

exclusion necessarily alters state navigational prece-

dents protesting recreational use by the public under

state law. Petitioners submit that the navigation laws

of Louisiana, Michigan, Mississippi, North Carolina,

Connecticut, Rhode Island, and Florida, to name a

few, will be called into question if public navigation

under federal law includes only direct commercial

uses, and not recreational uses. See, state case law

cited, supra 33-34.

Petitioners submit that this massive federal

exclusion of public use will set in motion the contrac-

tion of public use under state law in reliance on

the “Recreational Use Exclusion.” This potential for

national disruption and restructuring of public navi-

gation law strongly supports the granting of the writ

in this matter.

C. The Fishing Public and Supporting Busi-

nesses Recognize the Circuit Court’s “Rec-

reational Use Exception” to be a Substantial

Economic Threat to Commerce Surround-

ing the Public’s Recreational Use of the

Navigable Waters of America.

Lastly, the boating and fishing public, and their

supporting businesses, rightly recognize the holding

of the Circuit Court as a substantial threat to

commerce that supports recreational and personal

use of navigable waters. The substantial economic

devastation that the new “Recreational Use Excep-

tion” will inflict on American business cannot be

overestimated or overstated.

Sixteen amici groups, from ten states submitted

briefs to the lower courts in support of the public’s

right to recreational boating and fishing in the navi-

gable waters of America. See, District Court Ruling,

App. 24. Thereafter, in the Circuit Court, more than

thirty-five amici groups, from more than twenty

different states, moved to submit an amicus brief in

favor of public navigation and fishing. These groups

are from California, Florida, Maine, Pennsylvania,

Minnesota, Utah and all points in between. These

groups include statewide fishing groups and state-

wide conservation groups, who all support public use

of navigable waters for recreational purposes. The

unavoidable economic damage to be inflicted on the

boating, fishing and marine commerce of America by

excluding recreational uses, provides full justification

if not a mandate under the rules of this Court, to

carefully review the Circuit Court’s extraordinary

restriction on public access to navigable waters.

LEGAL ARGUMENTS THAT

SUPPORT GRANTING THE WRIT

A. Facts of the Case.

The Plaintiff-Fishermen regularly boat and fish

on the waters of the Mississippi River in East Carroll

Parish, Louisiana. To say the least, the Mississippi

River, in East Carroll Parish, provides to the Ameri-

can public the outdoorsman’s dream: Big Water,

Big Fish and the Big Outdoors. The many remnant

channels, river beds, shoots, inlets and estuaries have

names such as Bunch’s Cut-Off, Louisiana Bend, Old

River, the Old Channel, Gassoway Lake, Little Gas-

soway Lake, Doe Lake, and Snag Lake. Other easily

accessible and fishable inlets, swales and flats are

periodically formed and destroyed by the raging river.

But, during their existence, these waters are all

regularly fished in, hunted on and used by the boat-

ing public. These changing components of the Missis-

sippi River stretch more than five miles laterally

(east and west) across the riverbed, from the western

levee to the eastern levee, cumulatively resulting in

the ever-changing water’s edge of the Mississippi

River in East Carroil Parish, Louisiana and Issa-

quena County, Mississippi.” See, USGS Map, App.

123.

The Petitioners and the public use every kind of

water craft, from small aluminum skiffs to twenty or

thirty foot modern fishing rigs equipped with sonar,

live wells, GPS location devices, underwater imaging

systems and the like, along with thousands of dollars

of fishing gear and tackle. The waters fished by the

* The natural forces of the River that arise each year as

this River rises and falls thirty to fifty feet regularly moves the

channels eastward or westward, scarring and gouging old and

new waterways in the riparian lands each year. The mighty

Mississippi River decides each year where its main channel will

lay within a corridor between the levees that is approximately

five miles wide. See, USGS Map, App. 123. See, Walker Lands,

Inc., App. 103-105.

Plaintiff-Fishermen vary in depths from five (5) feet

to more than forty (40) feet, mostly outside the main

channel where the shallower waters, and the bait

fish, and the spring spawn all occurs.

There is no dispute that the Plaintiff-Fishermen

are using waters at water levels between normal low

and the normal high water mark in Louisiana,

as these waters overlay the riparian land of the

Mississippi River. The District Court confirmed that

Plaintiff-Fishermen were over the riparian riverbed.

App. 90.

Many of the geological and hydrological facts

relied upon by the parties and the lower courts were

detailed in a related State Court case, Walker Lands,

Inc. v. E. Carroll Parish Police Jury.’ Walker Lands

determined the ownership of the riparian land inside

the levee in Louisiana. Ownership had become un-

clear because of the ever changing location of the

main channel of the Mississippi River in this riparian

landscape since 1812. The state court determined

that the normal low water mark in this area is 77 feet

Mean Sea Level (“MSL”), and that the normal high

water mark is 112 MSL. In other words, the state

court found that the Mississippi River, in this area,

naturally and regularly rises and falls on an annual

" Walker Lands, Inc. v. E. Carroll Parish Police Jury, La.

App. 38376, 871 So.2d 1258, 2004 La. App. LEXIS 977 (La. App.

2 Cir. Apr. 14, 2004); App. 101-122.

basis a full thirty-five (35) feet. This is many times

deeper than the main navigational channel.®

The state court determined record ownership of

the riparian bank under Louisiana law. However, the

state court set aside all lower court decisions on the

public navigational rights, affirmatively choosing to

allow these issues to be resolved in this federal fo-

rum.’ The State appellate court knew this Court had

jurisdiction, and deferred these significant federal

determinations to this federal forum.

B. Legal Bases of Petitioners’ Action and Sup-

porting Federal Rights.

Seldom are the legal rights presented to this

Court first recognized in the Magna Charta. Seldom

are the rights presented to this Court first recog-

nized and protected as a specific requirement placed

on every state in the Union as a precondition to its

admission to the Union. Seldom are the rights rec-

ognized as one of those fundamental “privileges”

specifically protected by the Privileges or Immuni-

ties Clause of the Fourteenth Amendment of the

* The Corps of Engineers maintains a nine (9) foot deep

main channel in the upper Mississippi River, and a thirty (30)

foot deep main channel in the lower Mississippi River.

* The state court “... pretermit{s] discussion of the avail-

able use of these legal public servitudes during times of high

water.” App. 119.

Constitution. But, such is the unique legal heritage,

and constitutional foundation of the right of public

navigation and piscary (fishing) in the navigable

waters of America. Few other rights have such a long

and preeminent legal lineage.

Plaintiff-Fishermen submit that federal law

preserves to the Petitioners, and the public, the right

to navigate on and fish in the navigable waters of

America, under:

1. The Privileges or Immunities Clause of

the Fourteenth Amendment of the United

States Constitution;

2. The “Equal Footing Doctrine” which

mandates that navigable waters be for-

ever free for public navigation as a con-

dition of admittance to the Union;

3. Federal common law recognizing the

public’s right to reasonably use the navi-

gable waters of America; and

4. Specific Congressional declarations that

recreational use of navigable water com-

prises a proper use of the navigational

servitude, and comprised substantial

“commerce” under the Commerce Clause

of the United States Constitution.

It is difficult to explain the reluctance of the

lower Circuit Court to adequately consider the time-

honored jurisprudence of this Supreme Court that

have declared that the public’s right of navigation

and piscary to be a settled, centuries-old right. It

appears that the Circuit Court’s legal error resulted

from its singular focus on the “recreational” nature of

the Petitioners’ activities as distinguished from

“commercial” activities. This limited analysis caused

the Circuit Court to create a new, simplistic “Recrea-

tional Use Exclusion” to the public’s right of naviga-

tion.

The Circuit Court totally rejected all arguments

that recreational navigation is protected anywhere on

navigable waters. Instead, the Circuit Court held that

“recreational” fishing was not “commerce” or “com-

mercial navigation” and thus was not an activity

contemplated or authorized by federal navigation

law.” Based on this novel “commerce v. recreation”

'° “As implied by its very name and the constitutional

provision from which it arises, the federal naviga-

tional servitude is concerned with nai .gational rights

and commerce. See United States v. Montana, 450

U.S. 544, 551 (1981) (‘The State’s power over the beds

of navigable waters remains subject to only one limi-

tation: the paramount power of the United States to

ensure that such waters remain free to interstate and

foreign commerce.’); Kaiser Aetna v. United States,

444 U.S. 164, 177 (1979) (‘The navigational servitude

... gives rise to an authority in the Government to as-

sure that such streams retain their capacity to serve as

continuous highways for the purpose of navigation in

interstate commerce.’); .... Neither navigation nor

commerce encompass recreational fishing.”

(emphasis added) App. 16.

analytical dichotomy, the Circuit Court simply held

“commercial” use of the navigable waters is the only

legitimate authorized use of navigable waters, and

thus “recreational” use of navigable waters was

unauthorized under federal law.

This newly articulated “Recreational Use Exclu-

sion” to public navigation eliminates federal assur-

ance of recreational travel, navigation, boating or

fishing in the navigable waters of America. The

Circuit Court held it to be an issue for the state to

determine whether recreational travel, navigation,

boating or fishing would be permitted on navigable

waters within its jurisdiction.

With respect to the Circuit Court, Plaintiff-

Fishermen submit that the right of navigation, and

the permitted uses of navigable waters by the public

has always been guaranteed by federal authorities,

and that recreational navigation in today’s America is

as “commercial” as towing a barge, under the federal

navigational servitude.

1. The Right of the Public to Navigate

and Fish Navigable Waters Is a National

Privilege Protected by the Privileges or

Immunities Clause of the Fourteenth

Amendment to the United States Con-

stitution.

Petitioners submit that never before, in two

hundred years of American jurisprudence has a

federal court held that the public’s right to use the

navigable waters of America for travel, boating or

fishing was limited to direct commercial use and

excluded public recreational use. Until this opinion,

the People of America had the unquestioned privilege

of travel, navigation and fishing on the navigable

waters of America. Hereafter, the Circuit Court’s

holding requires the public to stop and explain their

purpose on the navigable waters to determine if

travel or navigation is permitted.

The Circuit Court’s opinion that recreational

fishing is unprotected by federal law stands alone and

in direct conflict with this Supreme Court’s long

established jurisprudence on the issue. In 1842, in

Martin v. Waddell’s Lessee (41 U.S. 367, 414 (1842)),

this United States Supreme Court expressly recog-

nized a then one hundred fifty year old right of all

citizens to exercise the rights of navigation and

piscary (fishing) in the navigable waters of America.

This Court laid out the public right’s legal history

explaining that this common right had previously

been recognized under English law beginning with

the signing of The Magna Charta," and continuing in

“ “But from the opinions expressed by the justices of the

Court of King’s Bench, in the case of Blundall v. Catterall, 5

Barn. and Ald. 287, 294, 304, 309; and in the case of The Duke of

Somersett v. Fogwell, 5 Barn. and Cress. 883, 884, the question

fof whether the King had granted private property rights in

navigable waters and the rights of piscary therein] must be

regarded as settled in England against the right of the king

since Magna Charta to make such a grant.” Martin v. Waddell’s

Lessee, 41 U.S. 367, 410 (1842).

effect thereafter into American common law under

the United States as the revolutionary governmental

successor of England. The seminal case on public

navigation and fishing rights was handed down only

thirty-five years after the adoption of the Constitu-

tion, Arnold v. Mundy, 6 N.J.L. 1, 24-25 (1821), which

was followed by this Court in Martin.

In the Martin case, this Supreme Court empha-

sized the fundamental legal sanctity of the public’s

right to navigate and fish the navigable waters of

America, declaring that “ ... the public and common

right of fishery in navigable waters, ... has been so

long and so carefully guarded in England, and ...

preserved in every other colony founded on the Atlan-

tic borders, ....” Martin v. Waddell’s Lessee, 41 U.S.

367, 414 (1842). Following this rational, this Supreme

Court confirmed the interrelationship of travel,

navigation and fishery in Morris v. U.S., 174 U.S. 196

(1899), declaring

“The Congress of the United States, in dis-

posing of the public lands, has constantly

acted upon the theory that those lands,

whether in the interior, or on the coast,

above highwater mark, may be taken up by

actual occupants, in order to encourage the

settlement of the country; but that the navi-

gable waters and the soils under them,

whether within or above the ebb and flow of

the tide, shall be and remain public high-

ways; and, being chiefly valuable for the pub-

lic purposes of commerce, navigation and

fishery, ...” Morris, 174 U.S. at 237.

Following Waddell, in 1855, this Supreme Court,

in Smith v. Maryland, reaffirmed that the right to

utilize the navigable waters of America and to fish

therein, was a common“... public right of fishery ...”

to be held in trust and protected by the state govern-

ment. Smith v. Maryland, 59 U.S. (18 How.) 71, 75

(1855). This Court has repeatedly affirmed that the

People hold the common rights of use and ownership

of the navigable waters and the right to use the

abundance of the fishery therein, and that title shifts

to each state only in binding trust for the People’s

own common enjoyment and benefit.

Ultimately, in 1873, following the adoption of

the Fourteenth Amendment, this Supreme Court

affirmatively held that the People’s common right of

navigation and fishing was one of the “privileges”

held by the People, and preserved under the Privileges

or Immunities Clause of the Fourteenth Amendment.”

In The Slaughterhouse Cases, this Court declared that

“(tlhe right to use the navigable waters of the United

States, however they may penetrate the territory

of the several States, ... , are dependent upon

citizenship of the United States, and not citizenship

of a State.” The Slaughterhouse Cases, 83 U.S.

(16 Wall.) 36, 79-80 (1873). In Baldwin v. Fish &

Game Commission, 436 U.S. 371 (1978), this Court

reaffirmed the constitutional protection granted to

'* Constitution of the United States of America, Fourteenth

Amendment, Privileges or Immunities Clause.

public navigation, as enumerated in The Slaughter-

house Cases, confirming the continuing accuracy of

the privileges enunciated in The Slaughterhouse

Cases, including the common right of travel, naviga-

tion and fishing. Since that affirmation, no other

jurisprudence nor legislative act has altered or dimin-

ished the constitutional “privilege” preserved for the

People to navigate and fish the navigable waters of

America.

With due respect to the Circuit Court, the Circuit

Court’s reliance on the novel “Recreational Use

Exclusion,” is in conflict with the “Privileges or Im-

munities Clause” as recognized by this Court’s settled

holdings on the subject. The public’s right to navigate

and fish navigable waters is a right older than the

Constitution, and its unexplained destruction by the

Circuit Court is done without authority. Petitioners

pray that the writ be granted to review this extraor-

dinary holding.

2. The Right of Public Navigation and

Fishing Is a National Right Affirmed by

the “Equal Footing Doctrine” Mandates

Placed Upon Each State as a Condition of

Admittance to the Union.

As new states were admitted into the Union, all

the navigable waters of America were transferred to

the respective states, to be held for the common use

of the public. This funda nental preservation of the

rights of the public in their navigable and tide waters

held in common ownership and for common use was

accomplished through Congressional legislation im-

plementing the legai principle known as the “Equal

Footing Doctrine.” An “Equal Footing Doctrine” statute

was passed by Congress as a precursor to the admit-

tance of each new state. For example, preceding the

admission of the State of Louisiana into the Union in

1812, Congress declared:

“

... that it shall be taken as a condition

upon which said State [of Louisiana] is in-

corporated in the Union, that the river Mis-

sissippi and the navigable rivers and

waters leading into the same and into the

Gulf of Mexico, shall be common high-

ways, and forever free, as well to the

inhabitants of said State as to the in-

habitants of other States and Territories

of the United States, without any tax,

duty, impost or toll therefor, ....” United

States Congressional Statute at Large, vol. 2,

pp. 642 and 703 (1811).

See, Boykin & Lang v. Shaffer, 13 La Ann 129 (1858).

The legal effect of the “Equal Footing Doctrine”

has been the continuing Congressional assurance

that the People of America are granted a uniform and

equal right of public navigation and fishing in all the

navigable waters of America. The premiere constitu-

tional importance of this public right is obvious, when

one considers the fact that Congress declared that the

preservation of public navigation and fishing was a

pre-condition imposed on each state to be met before

a territory could become a state.

Notwithstanding the fact that the “Equal Footing

Doctrine” is preserved using language that speaks of

maintaining the navigable waters as “ ... common

highways ... ,” this Supreme Court long ago recog-

nized that the public right of navigation on these

“public highways” has consistently included the right

to fish these navigable waters. In the landmark

decisions of Shively v. Bowlby (152 U.S. 1, 57 (1894))

and Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

(1842), this Supreme Court recognized that use of

navigable waters was “ ... to be freely used by all for

navigation and fishery, as well for shell fish as float-

ing fish.” Shively, 152 U.S. at 16, quoting Martin v.

Waddell’s Lessee.

Stated simply, this Court has long recognized

that “fishing” is a component part of the right of

“navigation” in America. This settled principle of

navigation law was disregarded by the Circuit Court

without explanation. Had the Circuit Court properly

recognized that “fishing” is a component of “naviga-

tion,” the Circuit Court would have held that the

Petitioners’ navigation to fish was protected in the

Mississippi River across the surface of the navigable

waters up te the high water mark. The Circuit Court

left unexplained the legal basis that caused it to

create a “Recreational Use Exclusion” to limit these

centuries-old rights of navigation and piscary in

America.

Another important corollary of the “Equal Yoot-

ing Doctrine” mandate of Congress, was disregarded

by the Circuit Court. The pre-eminent right of

public navigation under the “Equal Footing Doctrine”

necessarily preserved to the People the right to

navigate and fish the waters of America up to normal

high water, as they rise over, and recede from the

riparian bank of a navigable water body. Having

excluded “fishing” and “recreational fishing” from the

concept of navigation, the Circuit Court granted

ownership and control of the navigable waters of

America to the riparian landowners along the navi-

gable waterbody. This holding is in direct conflict

with the principles of public navigation law that have

recognized the superiority of the right of public use of

navigable waters, over and above the subordinate

rights of a riparian landowner. In 1913, this Court

affirmed that “[o]wnership of a private stream wholly

upon the lands of an individual is conceivable; but

that the running water in a great navigable stream is

capable of private ownership is inconceivable.” United

States v. Chandler-Dunbar Co., 229 U.S. 53, 69

(1913). Affirmed: Kaiser Aetna v. United States, 444

U.S. 164, 175 (1979). Likewise, the Fifth Circuit

Court previously followed Chandler-Dunbar and

reaffirmed that “[t]his navigational servitude is an

extremely old concept — owners of property or prop-

erty rights within navigable waters take those rights

fully cognizant of their limited nature. United States

v. Kansas City Life Ins. Co., 339 U.S. 799, 808 (1950);

Gibson v. United States, 166 U.S. 269 (1897).” Coastal

Petroleum Co. v. United States, 524 F.2d 1206, 1209

(5th Cir. 1975). Equally, the Corps of Engineers,

consistent with these many court holdings, has also

affirmed that any rights held by a riparian owner is a

subordinate interest to the right of the public to

navigate and fish navigable waters, declaring that:

“Ownership of a river or lake bed or of the

lands between high and low water marks

will vary according to state law; however,

private ownership of the underlying lands

has no bearing on the existence or extent of

the dominant Federal jurisdiction over a

navigable waterbody.” 33 C.F.R. 329.11(a).

App. 99.

Chandler-Dunbar, Kansas City Life Ins., Gibson,

Coastal Petroleum and the authoritative regulations

of the Corps of Engineers” all confirm that the pub-

lic’s right of navigation and use of navigable waters in

America in those waters overlaying the riparian

riverbed, is a prior, superior legal right to any right of

riparian ownership.

Nonetheless these multiple authorities, all issued

more than one hundred years ago, were disregarded,

and for the first time, the Circuit Court held that the

“Recreational Use Exclusion” eliminates recreational

use of navigable waters as a permitted activity in

navigable waters. Following its erroneous logic, the

Circuit Court held that the riparian owner has own-

ership and control of the navigable waters overlaying

the riparian riverbed.

This extraordinary limitation on public naviga-

tion must be reviewed. To deny this petition, allows

“This regulation ... prescribes the policy, practice and

procedure to be used ... in answering inquiries concerning

navigable waters of the United States.” 33 C.F.R. 329.1. App. 98.

the Circuit Court’s “Recreational Use Exclusion” to

public navigation to stand disregarding the “Equal

Footing Doctrine” mandate of public use imposed on

every state. The conflict between the Circuit Court’s

judicial “Recreational Use Exclusion” and the Con-

gressional “Equal Footing Doctrine” requires that this

petition be granted.

3. The Right of Public Navigation and Fish-

ing Is a National Right Recognized Un-

der Federal Common Law.

The Circuit Court held that the Petitioners’“....

argument ... based upon purported federal common

law is unavailing,” choosing to limit any common law

rights of navigation to “commerce” and thereby

excluding “recreational use” from permitted naviga-

tion. Parm v. Shumate, 513 F.3d 135, 144, n.5 (5th

Cir. 2007); App. 18.

First, the holding in this case is in direct conflict

with the Fifth Circuit Court’s prior holding in Silver

Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th

Cir. 1931), which recognized that

“Itlhe public right of navigation entitles the

public generally to the reasonable use of

navigable waters for all legitimate purposes

of travel or transportation, for boating or

sailing for pleasure, as well as for carrying

persons or property gratuitously or for hire,

and in any kind of water craft the use of

which is consistent with others also enjoying

the right possessed in common.”

In this case, the Circuit Court unilaterally and

affirmatively chose to overturn its own previous

holding in Silver Springs, and hereafter limit public

navigation to commercial navigation, such as paid

tourist cruising as was involved in Silver Springs.

The Circuit Court reversed itself without explanation,

and in conflict with numerous holdings of this Su-

preme Court, and other courts of America.

It is clear that the Silver Springs holding, as

originaily issued, is consistent with this Supreme

Court’s holdings in Illinois Central Railroad Co. v.

Illinois, 146 U.S. 387, 436 (1892) and U.S. uv. Chan-

dler-Dunbar Co., 229 U.S. 53 (1913). holding that

navigation is a general public right of multiple uses.

In each of these cases cited above, this Supreme

Court acknowledges the common right of ownership

and use reserved to the public, and the broad, flexible

activities included in a wide variety of “navigation”

that occurs by the public.

More directly, this Supreme Court held in 1894,

in the case of Lawton v. Steele, 152 U.S. 133, 139

(1894), that “[a]Jt common law the right of fishing in

navigable waters was common to all.” As this Court

knows, the right of public navigation first arose in the

common law of England, and was preserved into

American common law. Equally, the common law of

navigable waters of America has recognized and

protected the public’s rights of common navigation

and fishing as a substantially inalienable right of the

People. This Supreme Court has long ago confirmed

th.t “[t]he Common law recognizes navigation as an

interest of paramount importance to the public”

(Scranton v. Wheeler, 179 U.S. 141, 163 (1900)) and

that any title to the riparian land “... is a qualified

title, a bare technical title, ... held at all times

subordinate to such use of the submerged lands and

of the waters flowing over them as may be consistent

with or demanded by the public right of navigation”

(Kaiser Aetna v. United States, 444 U.S. 164, 176

(1979)). The uniformity of these common law princi-

ples is obvious when one reviews the navigable water

cases that evolved in America, based upon the public

importance of navigation, fishing, and hunting to

settle the American continent. Conversely, never

before has a “Recreational Use Exclusion” been

articulated by an American court.

The common law of public navigation is funda-

mentally federal in nature, priority and Congres-

sional mandate. The public has the pre-eminent right

to use navigable weters. The Fifth Circuit Court, in

Silver Sprirgs, consistent with the many other court

rulings, affirmed the riparian owners “ ... cannot,

any more than can one who has no title to riparian or

submerged land, acquire an exclusive right to use

navigable water opposite his upland for travel or

navigation for purposes of business or of pleasure or

diversion.” Silver Springs, 50 F.2d 356, 359 (5th Cir.

1931). This holding, based in common law, is specifi-

cally based upon the Florida Supreme Court’s de-

termination in 1911, in Merrill-Stevens Co. v. Durkee,

62 Fla. 549, 558-559, 57 So. 428 (1911), that the

common law of America, recognizes the public’s

superior right of navigation and fishing in navigable

waters. Further, the Florida Supreme Court found

that the public’s common law right of navigation was

preserved and affirmed by the “Equal Footing Doc-

trine.” The culmination of this legal logic sequence is

the recognition that the common law right of public

navigation and piscary was preserved to the People

through the uniform mandates of public navigation in

the “Equal Footing Doctrine.” The riparian owners

have no effect on public navigational rights reserved to

the People and the federal government.“

To be clear, a single exception to the pre-eminent

right of public use has been recognized in the federal

common law jurisprudence. This exception allows a

state to alienate or limit the public’s common right of

navigation and fishing but only “... when that [limi-

tation] can be done without substantial impairment of

the interest of the pubiic in the waters, .... (Emphasis

added)” Illinois Central Railroad Co. v. Illinois, 146

U.S. 387, 436 (1892). Clearly, the “Recreational Use

Exclusion” cannot logically “enhance” public naviga-

tion by denying to the American people their right of

access and use of navigable waters.” Further, the

‘The Corps of Engineers existing regulations equally

direct that the ownership nights of riparian landowners, or high

land owners, is irrelevant to the public’s right of use of naviga-

tion waters. 33 C.F.R. 329.11(a)(2), App. 99-100.

’* Louisiana preserves in the Louisiana Constitution, Article

I, the inalienable rights of its People, which includes the “/t/he

freedom to hunt, fish, and trap wildlife, including all aquatic

life, traditionally taken by hunters, trappers and anglers, is a

(Continued on following page)

Circuit Court did not suggest that this “Recreational

Use Exclusion” was derived from any particular act of

government, state’ or federal.

Another significant legal problem arises if the

Circuit Cour! s holding that there is no federal right

of public navigation is affirmed. Many states have

formulated their navigation law with the understand-

ing that these four bodies of federal law preserved the

public’s rignt to recreational use as federal mandates

on the states. With the declaration of a “Recreational

Use Exclusion,” any state that has held that its rights

are based in, or are compelled by, federal navigational

rights including “recreational” use, have lost the

federal justification for “recreational” use. Reliance on

numerous states, have assumed the federal nature of

the People’s common right of navigation and piscary,

including Louisiana” (State v. Barras, 615 So.2d

valued natural heritage that shall be forever preserved for the

people.” Louisiana Constitution, Article I, Section 27.

‘© Louisiana jurisprudence fully concurs with the ina'ien-

able nature of the public’s use of navigable waters. Gulf Oil

Corp. v. State Mineral Bd., 317 So.2d 576, 1974 La. LEXIS 4480

(La. 1974); See, O’Brien v. State Mineral Board, 209 La. 266, 24

So.2d 470, 1945 La. LEXIS 933, 1946 La. LEXIS 697 (1945);

LSA-R.S. 9:1107; NOTE: Property — Susceptibility of Beds of

Navigable Waters to Private Ownership, Stephen H. Kupperman;

50 Tul. L. Rev. 193 (1975).

'’ In the Circuit Court opinion, Louisiana’s bank servitude

provided in Louisiana Civil Code Article 456 provides that “(t]he

banks of navigable rivers or streams are private things that are

subject to public use” has been applied to ONLY allow use of the

navigable waters overlaying the bank only “.. . for navigational

(Continued on following page)

285, 288 (La. 1993); Michigan (Glass v. Goeckel, 473

Mich. 667, 703 N.W.2d 58, 64, 2005 Mich. LEXIS

1314 (2005)); Mississippi (Ryals v. Pigott, 580 So.2d

1140, 1147, 1990 Miss. LEXIS 694 (Miss. 1990));

North Carolina (Gwathmey v. State ex. rel. Depart-

ment of Environment, Health & Natural Resources,

342 N.C. 287, 464 S.E.2d 674, 1995 N.C. LEXIS 678

(1995)); Connecticut (Delinks v. McGowan, 148 Conn.

614, 620, 173 A.2d 488, 491 (1961)); Rhode Island

(City of Providence v. Comstock, 27 R.I. 537, 65 A. 307

(1906)); and Florida (Thiesen v. Gulf, F. & A. Ry. Co.,

75 Fla. 28, 58; 78 So. 491, 501 (1917) and Merrill-

Stevens Co. v. Durkee, 62 Fla. 549, 558-559, 57 So.

428 (1911)).”*

As this list of state cases illustrates, much of the

state law on navigability is premised on a “federal”

foundation, based in English (now federal) common

law of public navigability and the “Equal Footing

Doctrine” mandates of statehood, that cumulatively

protect the public’s right to navigate and fish the

purposes.” Walker, at App. 119, n.16; Parm, at App. 2-21.

Therefore, like these other states, Louisiana has applied its law

assuming that under federal law “navigation” is limited to

commercial uses, and excludes recreational uses. This is a

perfect illustration of the disruption of state navigational law

that will occur if the federal navigational rights are limited to

“commercial” use alone.

'* Also see COMMENT: Floating On Uncharted Headwa-

ters: A Look at the Laws Governing Recreational Access on

Waiters of the Intermountain West; Ravis H. Burns: 5 Wyo. L. Rev.

561 (2005), University of Wyoming.

navigable waters of America. It is imperative that

this Court recognize that the holding of the Circuit

Court, and in particular this national “Recreational

Use Exclusion,” significantly reduces the public’s

right to use navigable waters under federal law, and

that it equally destroys the federal law foundation

relied upon by many of the states.

The long established principles of public naviga-

tion articulated by this Supreme Court, and the

Supreme courts of many of the other states, all con-

firm that there exists a fundamental federal common

law that recognizes and protects the rights of the

public to travel in, navigate on and fish in the navi-

gable waters of America. The conflict between the

established common law concerning navigable waters

and the Circuit Court’s holding is national in ramifi-

cation, and compels the overturning of long. estab-

lished principles of governmental rights, state and

federal. This sudden deviation from established

precedent argues strongly that this writ of certiorari

should be granted.

4. The Right of Public Navigation and Fish-

ing Is a Congressionally Recognized Pub-

lic Use of Navigable Waters Under the

Federal Navigational Servitude and Un-

der the Commerce Clause.

As noted earlier, the Circuit Court focused its

analysis on a simplistic dichotomy between “recrea-

tional” and “commercial” use of navigable waters by

the public, based upon the “Commerce Clause””

foundation for the federal navigational servitude.”

The Circuit Court started with the proposition that in

determining whether federal law created a power or

right, “... it is for Congress to decide whether latent

federal power should be exercised to displace state

law.” Parm v. Shumate, 513 F.3d 135, 144 (5th Cir.

2007), citing Wallis v. Pan American Petroleum Corp.,

384 U.S. 63, 68 (1966). App. 18. The recognition of the

superior right of Congress to determine the use of

navigable waters is a long established and recognized

legal standard articulated by this Court as well.”

The lower Circuit Court properly recognized that

this federal navigational servitude is the “ ... domi-

nant servitude over navigable waters of the United

States.” Parm v. Shumate, 513 F.3d 135, 142 (5th Cir.

2007); App. 14-15. Further, and more importantly in

light of the lower court’s legal errors, the Circuit

Court rightly recognized that once a waterway is

* Constitution of the United States, Article I, Section 8,

Clause 3.

* The Circuit Court addressed this question thus: “As

implied by its very name and the constitutional provision from

which it arises, the federal navigational servitude is concerned

with navigational rights and commerce.” App. 16.

*" In 1940, in United States v. Appalachian Power Co., this

Court affirmed that Congress has the constitutional power to

determine what is “commerce,” that “ ... navigable waters are

subject to national planning and control in the broad regulation

of commerce granted to the Federal Government.” United States

v. Appalachian Power Co., 61 S. Ct. 291, 308 (1940).

determined to be navigable under law, the navigable

nature of that navigable waterway “ ... extends

laterally to the entire water surface and bed of a

navigable waterway, which includes all the land and

waters below the ordinary high water mark.” 33

C.F.R. 329.11(a). App. 99. Parm v. Shumate, 513 F.3d

135, 143 (5th Cir. 2007); App. 15. Conforming to these

established divisions of public right and private

ownership, the Corps of Engineers further estab-

lished by regulation that “[a] determination of navi-

gability, once made, applies laterally over the entire

surface of the waterbody, and is not extinguished by

later actions or events which impede or destroy

navigable capacity.” 33 C.F.R. 329.4. App. 98.

However, the Circuit Court then unexpectedly

erred by enunciating the “Recreational Use Exclu-

sion” to the public’s right of navigation and fishing.

Unfortunately, the Circuit Court ignored the holding

of this Court in Phillips Petroleum Company v. Mis-

sissippi, which recognized that the federal interests

in navigable waters extend well beyond “commercial”

use, and includes flood control, public use and other

governmental interests. Phillips Petroleum Company

v. Mississippi, 484 U.S. 469 (1988). In Phillips Petro-

leum Company, this Supreme Court reaffirmed that it

“ ...reject[s] the dissent’s assertion that ‘the funda-

mental purpose of the public trust [navigable waters

and trust lands] is to protect commerce... .’” Phillips

Petroleum Company v. Mississippi, 484 U.S. 469, 476

(1988). Therefore, the nature of the activities encom-

passed by navigation clearly goes beyond limited

commercial activities.

Further, had the Circuit Court reviewed the body

of Congressional mandates involving recreational

boating and fishing on navigable waters, the Circuit

Court would have found numerous Congressional

enactments that recognize both the commercial sub-

stantiality” of “recreational” boating and fishing in

America, and the affirmative recognition by Congress

that “recreational uses” are legitimate uses of the

navigable waters of America. See, The Fish and

Wildlife Coordination Act of 1985 (16 U.S.C. 661-668);

The Fish and Wildlife Act of 1956 (16 U.S.C. 742a-

742}); The Magnuson-Stevenson Fisheries Manage-

ment and Conservation Act of 1996 (16 U.S.C. 1801

et seq.); and The Clean Water Act (33 U.S.C. 1251

et seq.). See, 3-5.

Again, the Circuit Court should have deferred to

the power of Congress under the Commerce Clause,

as “[slo unfettered ... over the navigable streams of

the country that its judgment ... is conclusive. Such

judgment and determination is the exercise of legisla-

tive power in respect of a subject wholly within its

control.” U.S. v. Chandler-Dunbar Co., 229 U.S. 53,

64 (1913). Congress has the plenary authority to

decide the width of navigable waters. Greenleaf

Johnson Lumber Co. v. Garrison, 237 U.S. 251, 264

” For the economic impact of fishing and boating in Louisi-

ana, see, Website for Louisiana Department of Wildlife and

Fisheries; Education/Research; Economic Impact. Study Acces-

sible under website of Louisiana Department of Wildlife and

Fisheries (http://www.wlf.louisiana.gov/pdfs/education/Economic

%20Benefits%200f%20F ish W LBoatingResources2003.pdf, p. iv)

(1915). The Circuit Court should have deferred to the

Congressional delegation of authority to the Corps of

Engineers and their regulatory directives. Pursuant

to that delegation, the Corps of Engineers has deter-

mined that the federal navigational servitudes “

includes all the land and waters below the ordinary

high water mark.” 33 C.F.R. 329.11. App. 99.

It is not the prerogative of the Circuit Court to

replace Congressional mandates and enactments with

a judicial “Recreational Use Exclusion” inconsistent

with Congressional enactments approving recrea-

tional use of navigable waters under the Commerce

powers.

Again, the holding of the Circuit Court, standing

in conflict with the dec;arations of Congress, strongly

calls for this Court to grant the petition for writ of

certiorari herein.

CONCLUSION

Plaintiff-Fishermen respectfully submit that the

new “Recreational Use Exclusion” from public naviga-

tion is fundamentally at odds with the long-standing

authorities that create and protect the public’s right

to recreationally use navigable waters of America,

and this fundamental conflict — denying basic naviga-

tional rights to the American public — compels this

Honorable Court to grant the writ of certiorari to

fully review the judgment and holding of the Circuit

Court below.

Respectfully submitted,

PAuL Loy HurpD

Bar No. 13909

Post Office Box 2190

Monroe, Louisiana 71207-2190

1890 Hudson Circle

Monroe, Louisiana 71201

Tel: (318) 323-3838

Attorney for Plaintiff-Fishermen

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31045

NORMAL PARM, JR.; HAROLD EUGENE WATTS;

ROY MICHAEL GAMMILL; WILLIAM T. ROGERS;

ROBERT ALLEN BALCH

Plaintiffs-Appellants

MARK SHUMATE, in his official capacity as

Sheriff of East Carroll Parish

Defendant-Appellee

Appeals from the United States District Court

for the Western District of Louisiana

(Filed Dec. 28, 2007)

Before KING, GARZA and BENAVIDES, Circuit

Judges.

KING, Circuit Judge:

Plaintiffs-appellants Normal Parm, Jr., Harold

Eugene Watts, Roy Michael Gammill, William T.

Rogers, and Robert Allen Balch (“Plaintiffs”), recrea-

tional fishermen, appeal the district court’s denial of

their summary judgment motion and the grant of the

App. 2

cross-motion for summary judgment by defendant-

appellee East Carroll Parish Sheriff Mark Shumate

(“Sheriff Shumate”). Plaintiffs brought their claims

against Sheriff Shumate under 42 U.S.C. § 1983,

alleging that they were falsely arrested for trespass

when they refused to cease fishing on waters covering

ordinarily dry, private property (the “Property”)

owned by Walker Cottonwood Farms, L.L.C., succes-

sor-in-title to Walker Lands, Inc. (collectively

“Walker”). Plaintiffs argue that Sheriff Shumate

lacked probable cause to arrest them for fishing on

the Property because the public has a federal and

state right to fish on the Property when it is sub-

merged under the Mississippi River. Because we

disagree, we AFFIRM the district court’s judgment.

I. FACTUAL AND PROCEDURAL BACK-

GROUND

The underlying dispute in this case began over a

decade ago, and the facts have been considered in

various forms by multiple courts, including this one.

Plaintiffs are lifelong boaters, hunters, and fisherman

who fish on the Mississippi River in East Carroll

Parish and other river parishes in northeast Louisi-

ana. The water levels of the Mississippi River fluctu-

ate seasonally. In East Carroll Parish, the normal low

water mark is seventy-seven feet above mean sea

level. Yet during the spring season the river floods

well beyond its normal channel — as a result of in-

creased rainfall and snow melt in the North — and the

river regularly rises to as high as one hundred and

App. 3

twelve feet above mean sea level. It is normal for the

river to remain at this level for at least two months.

The Property is located in East Carroll Parish.

On its eastern side, the Property is bound by the

Mississippi River, and on its western side, it is bound

by the Mississippi River’s levees. Buildings, crop

lands and forests, with trees as tall as one hundred

and forty feet, are located on the Property. In addi-

tion, waterways known as Gassoway Lake, Little

Gassoway Lake, and other bodies of water are con-

tained within its boundaries. Gassoway Lake, which

Plaintiffs consider the most ideal venue for fishing or.

the Property, is located on the Property’s western

side, nearly three-and-a-half miles from the ordinary

low water mark of the Mississippi River and its

channel. Gassoway Lake is connected by a man-made

drainage ditch to Bunch’s Cutoff, which, in turn,

flows into the Mississippi River. When the river floods

in the spring, Gassoway Lake, along with the rest of

the Property, is submerged under its waters.

Plaintiffs have fished the waters of Gassoway

Lake when it was flooded by the Mississippi River,

even though they knew that Walker objected to their

presence. In 1996, Walker began filing complaints

with Sheriff Shumate against boaters fishing on

Gassoway Lake. Sheriff Shumate responded by

arresting Plaintiffs, and others found on the Property,

App. 4

for trespass.’ While admitting that they did not have

Walker’s permission, Plaintiffs claimed that they

were entitled to fish on the Property when it was

flooded because Gassoway Lake was either: (1) owned

by the State of Louisiana on behalf of the public; or

(2) subject to state and federal servitudes.

The Attorney General for the State of Louisiana

agreed with Plaintiffs’ position and issued Louisiana

Attorney General Opinion No. 96-206, concluding

that channels of the Mississippi River traversed the

Property and were “river bed” owned by the State.

His opinion stated that “Lake Gassoway is a natu-

rally navigable body of water under both State and

Federal law and actually supports navigation for such

purposes as hunting, fishing, (and] trapping. ...” He

also determined that the Property was subject to a

public servitude. Notwithstanding this opinion,

Sheriff Shumate continued to arrest fishermen found

on the Property. However, the East Carroll Parish

District Attorney, James “Buddy” Caldwell, informed

Sheriff Shumate that he did not intend to prosecute

any of the Plaintiffs for trespass until the ownership

and public servitude issues were resolved. To this day,

Plaintiffs have not been prosecuted.

' Specifically, they were arrested for violating La. Rev. Stat.

ANN. § 14:63(B), which states: “No person shall enter upon

immovable property owned by another without express, legal, or

implied authorization.”

App. 5

On June 10, 1996, Walker filed suit in Louisiana

state court wegainst the East Carroll Police Jury,

seeking a aeciaration that it owned the Property and

an injunction prohibiting members of the put:ic from

entering without permission. Walker Lands, Inc. v.

Louisiana, No. 17,746, slip op. at 1-2 (La. 6th Dist.

Ct., May 1, 2003). The state trial court issued a

temporary restraining order prohibiting the Police

Jury, and all other persons or government agencies,

from entering Gassoway Lake without permission for

any purpose, including boating, fishing, or hunting.

Id. at 2. The Police Jury filed a third-party demand

against the State of Louisiana. The State was added

as an indispensable party, and the Police Jury was

eventually dismissed. Jd. On March 16, 1998, the

court granted Walker’s motion for summary judgment

and issued a permanent injunction. Jd. The State

appealed to the Second Circuit Court of Appeal of

Louisiana, which reversed, holding that the issues

could not be resolved on summary judgment. /d.;

Walker Lands, Inc. v. East Carroll Parish Police Jury,

No. 31,490, slip op. at 5 (La. Ct. App., March 5, 1999).

On December 17, 2001, with the state trial court

yet to issue a final decision, Plaintiffs filed this case

in federal district court. Plaintiffs alleged that Sheriff

Shumate lacked probable cause to arrest them in

light of the opinion of the State Attorney General and

the decision of the Second Circuit Court of Appeal.

They claimed that:

Until there is rendered a final judgment in

the litigation pending in the Sixth District

App. 6

Court between [Walker] and the State of

Louisiana, there is not sufficient legal evi-

dence to prove, beyond a reasonable doubt,

that the use of the naturally and regularly

navigable waters of the Mississippi River, in-

cluding those navigable waters that include

Gassoway Lake, Little Gassoway, the old

channel and Bunch’s Cut-Off, results in a

criminal trespass of the land of [Walker,] so

long as the Plaintiffs utilize naturally occur-

ring, navigable waters of the Mississippi

River.

Plaintiffs sought damages for false arrest under

42 U.S.C. § 1983 and an injunction prohibiting

further arrests for fishing on the Property until a

“final judgment is rendered by a court of competent

jurisdiction, specifying the ownership and naviga-

tional rights of the State of Louisiana and [Walker]

relative to the [Property] ... during normal water

heights. ...”

On June 4, 2002, Plaintiffs filed a motion for

summary judgment, and on July 8, 2002, Sheriff

Shumate filed a cross-motion for summary judgment

or, in the alternative, a motion to stay the case pend-

ing resolution of the state court proceedings. Both

motions were referred to a magistrate judge for a

report and recommendation. Because there was a

“reasonable probability that the state courts [might]

find the waters at issue to be navigable and thus

public,” the magistrate judge held that a federal

decision in this case could be obviated by the state

proceeding. The district court adopted the report and

App. 7

recommendation, stayed the federal case, and Plain-

tiffs appealed. In an unpublished decision, we agreed

that the questions cf Louisiana law, then pending in a

Louisiana court, might “render it unnecessary for

federal courts to decide the constitutional issues

presented in this case[,]” and affirmed the district

court’s stay. Parm v. Shumate, No. 02-31183, slip op. .

at 6 (5th Cir. June 16, 2003).

On May 1, 2008, the state trial court ruled that

Walker owned the Property and had the mght to

exclude the public from it. Walker Lands, No. 17,746,

slip op. at 1; see also Walker Lands, Inc. v. Hast

Carroll Parish Police Jury, 871 So.2d 1258, 1261 (La.

Ct. App. 2004). The court first noted that it was

undisputed that the Property was either woodland or

farmland in 1812, the year that Louisiana was admit-

ted to the Union as a State.” Walker Lands, No.

17,746, slip. op. at 1; Walker Lands, 871 So.2d at

1261. It found that during the 1860s and 1870s, the

Mississippi River slowly but gradually shifted west-

ward and submerged the Property. Walker Lands, No.

17,746, slip op. at 1; Walker Lands, 871 So.2d at 1261.

When the river subsequently shifted back eastward, it

left behind a swale — a shallow depression in the land —

which became Gassoway Lake through alluvion or

* Bodies of water formed before 1812 are owned by the

State. See Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824,

826-27 (5th Cir. 1993).

App. 8

accretion.” Walker Lands, No. 17,746, slip op. at 11-

12; Walker Lands, 871 So.2d at 1261. Gassoway Lake

and the other natural bodies of water on the Property

were formed before 1910, when private landowners

purchased it. Walker Lands, No. 17,746, slip op. at 11;

Walker Lands, 871 So.2d at 1261. Moreover, the court

determined that none of the waters on the Property

were navigable. But for the man-made drainage ditch

connected to Bunch’s Cutoff and other structures, the

court held, Gassoway Lake itself would be non-

existent during the summer months. Walker Lands,

No. 17,746, slip op. at 12-13. Since the waters lying

on the Property were not navigable in fact, the trial

court entered a permanent injunction prohibiting the

public-at-large from going on Gassoway Lake, or on

the land between Gassoway Lake and the Mississippi

River. Walker Lands, No. 17,746, slip op. at 12-14;

Walker Lands, 871 So.2d at 1262-63.

The State appealed the trial court’s decision to

the Second Circuit Court of Appeal, which affirmed in

part and reversed in part. Walker Lands, 871 So.2d at

1268-69. The appellate court accepted the trial court’s

findings of fact and held that the Property was pri-

vately owned. The court rejected the State’s argument

* Alluvion and accretion are used synonymously to describe

the addition of soil by gradual deposit. Walker Lands, 871 So.2d

at 1264 n.13. Under Louisiana law, “[a]ny alluvion ... which

forms along the banks of a river belongs to the riparian land-

owners who own the land adjacent to the river, when the river

shifts course.” Jd. at 1264 (citations omitted).

App. 9

that the Property was the bed of the Mississippi River

— and therefore owned by the State — because a river’s

bed consists only of the land lying below the river’s

ordinary low water mark. /d. at 1262 n.7. It did not

matter that the Mississippi River sometimes flooded

the Property. Id. at 1264.

Privately owned land does not become part of

a navigable body of water when a nearby

navigable body of water overflows its normal

bed and temporarily covers the property.

Gassoway Lake is landlocked and does not

now lie in the bed of the Mississippi river,

which is some three and one-half miles to the

east; likewise, it is not a channel of the river,

since it is cut off from it.

Id. (citations omitted). In addition, the court held that

Gassoway Lake was not a navigable body of water

owned by the State because it was not a navigable

body of water in fact. Jd. at 1265-66.

Nevertheless, the Second Circuit Court of Appeal

lifted the state trial court’s injunction because Walker

lacked standing to seek relief against a hypothetical

public-at-large. Jd. at 1267. The court stated that

while “[o]wners of private property may forbid entry

to anyone for purposes of hunting or fishing and the

like[,]” Walker could only ask for relief against a

specific individual after that person had invaded the

Property. Jd. The court declined to resolve whether

there was a public servitude on the Property during

the Mississippi River’s peak stage. It observed that

under Louisiana law, the bank of the Mississippi

App. 10

River consists of all the land lying between its ordi-

nary low and high water marks, which includes all of

the Property, and noted that a public servitude pre-

serves a river’s bank for the public’s navigational use.

Id. at 1268 & n.16. And while it stated that “[fJishing

and hunting on flooded lands do not meet the defini-

tion of using the bank of a river at its high water

mark for a navigational purpose[,]” zd. at 1268 n.6

(citations omitted), it “pretermit[ted] discussion” of

the issue because the State had not properly raised it,

id. at 1268.

On June 3, 2005, the Second Circuit Court of

Appeal’s decision became final when the Louisiana

Supreme Court denied the State’s application for a

writ of certiorari. In light of the conclusion of the

state court proceedings, on August 16, 2005, the

district court lifted the stay in this case. The court

ordered the parties to file supplemental briefs in

support of their cross-motions for summary judgment

and referred the matter to a magistrate judge for a

report and recommendation. Sheriff Shumate filed

briefs arguing that: (1) the case was moot because

Plaintiffs merely sought relief “until the Second

Circuit rules”; (2) there is no federal or state right to

fish on private property above the Mississippi River’s

ordinary low mark; and (3) even if there was such a

right, he was entitled to qualified immunity because

it was not a clearly established constitutional right.

Plaintiffs, on the other hand, argued that they were

entitled to summary judgment because there is both a

state and federal right to fish on the Property when it

App. 11

is submerged under the Mississippi River. They

asserted that the case was not moot because their

complaint sought damages for false arrest and an

injunction, not just until the state proceeding was

complete, but until the public’s “navigational rights”

were determined. Finally, they contended that Sheriff

Shumate was not entitled to qualified immunity

because he was not being sued in his personal capac-

ity.

On April 21, 2005, the magistrate judge issued

his report and recommendation. He rejected Sheriff

Shumate’s alternative arguments, stating that: (1)

the case was not moot because the state appellate

court expressly pretermitted ruling on the issue of

navigational rights; and (2) Sheriff Shumate was not

entitled to qualified immunity because the case was

not brought against him in his personal capacity.

Turning to the fundamental question in the case, the

magistrate judge held that no federal statute author-

ized Plaintiffs to fish on the Property, nor did the

“federal navigational servitude,” which is derived

from the Commerce Clause of the United States

Constitution, grant persons the right to fish on navi-

gable waters. However, the magistrate judge deter-

mined that federal common law did create a right to

fish on navigable waters, and that this public right

burdens the Property when it is submerged under the

waters of the Mississippi River. Similarly, the magis-

trate judge held that Louisiana law grants to the

public the right to use — including for purposes of

App. 12

fishing — the “running waters” found in the State,

regardless of the river’s stage.

On August 29, 2006, the district court adopted

the report and recommendation in part. It agreed

that neither federal statutes nor the federal naviga-

tional servitude provides Plaintiffs with the right to

fish on the Property. The district court disagreed,

however, with the magistrate judge’s determination

that federal common law and state law granted such

a right. The district court stated that while this court

has recognized a public right to reasonably use navi-

gable waters, we have not found a right to fish on

private lands. Moreover, although the district court

found that the Property is a bank of the Mississippi

River under Louisiana law and subject to a state

servitude, the servitude “is limited to activities that

are incidental to the navigable character of the Mis-

sissippi River and its enjoyment as an avenue of

commerce... . [F]Jishing and hunting are not included

in these rights.” Accordingly, the district court found

that Sheriff Shumate had probable cause to arrest

Plaintiffs for trespass and entered summary judg-

ment on Sheriff Shumate’s behalf.

This timely appeal followed.

Ii. DISCUSSION

We review a grant of summary judgment de novo,

viewing all the evidence in the light most favorable to

the nonmoving party and drawing all reasonable

inferences in that party’s favor. See Crawford v.

App. 13

Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.

2000). “Summary judgment is proper when the evi-

dence reflects no genuine issues of material fact and

the non-movant is entitled to judgment as a matter of

law.” Id. (citing FED. R. Civ. P. 56(c)). “A genuine issue

of material fact exists ‘if the evidence is such that a

reasonable jury could return a verdict for the non-

moving party.’” Jd. (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).

In order to prevail in a § 1983 claim for false

arrest, a plaintiff must show that he was arrested

without probable cause in violation of the Fourth

Amendment. Brown v. Lyford, 243 F.3d 185, 189 (5th

Cir. 2001) (citations omitted). In a suit brought

against a municipal official in his official capacity, the

plaintiff must show that the municipality has a policy

or custom that caused his injury. Kentucky v. Gra-

ham, 473 U.S. 159, 165-66 (1985); Monell v. N.Y. City

Dept. of Soc. Servs., 436 U.S. 658, 689 (1979). If a

municipal officer who has authority to establish final

municipal policy makes a decision or orders a course

of action, the municipality may be held liable for the

officer’s decision or order. Pembaur v. City of Cincin-

nati, 475 U.S. 469, 480-82 (1986); see also Turner v.

Upton County, Texas, 915 F.2d 133, 136 (5th Cir.

1990) (holding that the municipality may be held

liable for the illegal or unconstitutional actions of its

final policy-makers as they engage in the setting of

goals and the determination of how those goals will

be achieved).

App. 14

In this case, Sheriff Shumate does not argue that

he lacked final policy-making authority. Nor does he

continue to argue that he is entitled to qualified

immunity, accepting Plaintiffs’ assertion that they do

not seek to hold him liable in his individual capacity.

The key issue, therefore, is whether Plaintiffs have

either a federal or state right to fish on the Property

in the spring during the Mississippi River’s normal

flood stage. If they do not, Sheriff Shumate had

probable cause to arrest them for trespass and was

entitled to prevail on summary judgment.

A. Federal Rights

Plaintiffs argue that they have a federal right to

fish on the Property when it is covered by the Missis-

sippi River’s waters because the Mississippi River is a

navigable waterway of the United States. They

contend that a federal navigational servitude burdens

the Property, creating a public right to fish there.

Plaintiffs also assert that there is a corresponding

federal common law right to fish on the navigable

waters of the United States. In response, Sheriff

Shumate argues that: (1) the Property is not bur-

dened by any federal easements because the Property

is not a navigable waterway in fact; (2) the federal

navigational servitude does not create a right to fish;

and (3) there is no federal common law affecting

riparian land owners’ property interests.

It is well established that the Commerce Clause

of the United States Constitution gives the federal

App. 15

government a “dominant servitude” over the naviga-

ble waters of the United States. United States v.

Cherokee Nat. of Okla., 480 U.S. 700, 704 (1987)

(citation omitted). The so-called navigational servi-

tude extends “laterally to the entire water surface

and bed of a navigable waterway, which includes all

the land and waters below the ordinary high water

mark.” 33 C.F.R. § 329.11(a); see also United States v.

Rands, 389 U.S. 121, 123 (1967). A river’s ordinary

high water mark is set at “the line of the shore estab-

lished by the fluctuations of water....” 33 C.F.R.

§ 329.11(a)(1). It is ascertained by “physical charac-

teristics such as a clear, natural line impressed on the

bank; ... changes in the character of the soil; de-

struction of terrestrial vegetation; ... or other appro-

priate means that consider the characteristics of the

surrounding areas.” Id. The navigational servitude

does not burden land that is only submerged when

the river floods. Oklahoma v. Texas, 260 U.S. 606, 632

(1923); United States v. Harrell, 926 F.2d 1036, 1041-

43 (1lth Cir. 1991); United States v. Claridge, 416

F.2d 933, 934 (9th Cir. 1970).

* Plaintiffs argue that the Property is below the high water

mark based on the Second Circuit Court of Appeal’s finding that

the high water mark is one hundred and twelve feet above mean

sea level (the high water mark during the spring flooding

season). The explanation for the Louisiana court’s conclusion is

that Louisiana has rejected the federal definition of high water

mark and relies, instead, on the ordinary seasonal flood levels.

DeSambourg v. Bd. of Comm'rs for the Grand Prairie Levee Dist.,

621 So.2d 602, 612 (La. 1993). Unfortunately, neither party

(Continued on following page)

App. 16

As implied by its very name and the constitu-

tional provision from which it arises, the federal

navigational servitude is concerned with navigational

rights and commerce. See United States v. Montana,

450 U.S. 544, 551 (1981) (“The State’s power over the

beds of navigable waters remains subject to only one

limitation: the paramount power of the United States

to ensure that such waters remain free to interstate

and foreign commerce.”); Kaiser Aetna v. United

States, 444 U.S. 164, 177 (1979) (“The navigational

servitude ... gives rise to an authority in the Gov-

ernment to assure that such streams retain their

capacity to serve as continuous highways for the

purpose of navigation in interstate commerce.”);

United States v. Chi. M., St. P. & PR. Co., 312 US.

592, 596 (1941) (“[TJhe rights of the title holder are

subordinate to the dominant power of the federal

Government in respect of navigation.”) (citing Gibson

vu. United States, 166 U.S. 269, 272 (1897)). Neither

navigation nor commerce encompass recreational

fishing. See Phillips Petroleum Co. v. Mississippi, 484

U.S. 469, 482-84 (1988) (noting that fishing is not

related to navigability); George v. Beavark, Inc., 402

F.2d 977, 981 (8th Cir. 1968) (“Although the rule on

navigability has been at times liberalized, to our

submitted sufficient summary judgment evidence to determine

where the federal high water mark lies, although it is unlikely

that it includes much of the Property. See United States uv.

Harrell, 926 F.2d at 1043 (“To argue that the government’s

jurisdiction should extend laterally as much as three miles on

either side of the Tombigbee river is ludicrous.”).

App. 17

knowledge none of the authoritative cases has liberal-

ized the rule so as to indicate that mere pleasure

fishing on a stream of water is such usage as would

constitute navigability.”). Accordingly, the naviga-

tional servitude does not create a right to fish on

private riparian land.

Moreover, Plaintiffs’ claim to a federal right

ignores “the ‘general proposition [that] the law of real

property is, under our Constitution, left to the indi-

vidual States to develop and administer.’” Phillips

Petroleum, 484 U.S. at 484 (citation omitted). Louisi-

ana took title to all lands below navigable waters in

its boundaries when it was admitted to the Union.

Dardar, 985 F.2d 824, 826-27 (citation omitted); see

also Texas v. Louisiana, 410 U.S. 702, 714 (1973);

Utah v. United States, 403 U.S. 9, 10 (1971); Pollard’s

Lessee v. Hagan, 44 U.S. 212, 230 (1845). It has broad

authority to regulate public trust lands, including the

Property, as it sees fit. See Phillips Petroleum, 484

U.S. at 482-84. Louisiana may regulate or prohibit

the use of land held in public trust. See McCready v.

Virginia, 94 U.S. 391, 395 (1876) (upholding a state

statute that prohibited non-state citizens from plant-

ing oysters in tidal lands); Smith v. Maryland, 59

U.S. 71, 74-75 (1855) (upholding a state statute that

prohibited a federally licensed ship from dredging for

oysters in the Chesapeake Bay). It may “retain[{] for

the general public the right to fish, hunt, or bathe on

these lands.” Phillips Petroleum, 484 U.S. at 482-84.

Or, as it did here, it may relinquish title to a private

landowner. Id. at 483; see also Dardar, 985 F.2d at

App. 18

830 (stating that Louisiana may relinquish lands that

are periodically overflown by the waters of the Mis-

sissippi). In any event, as things now stand, the right

to fish on public trust lands is governed by Lovisiana

law, and there is no reason for us to displace that law

by adopting a federal rule of decision in this context.”

See Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63,

68 (1966) (stating that it is for Congress to decide

whether latent federal power should be exercised to

displace state law).

B. State Navigational Servitude

Plaintiffs argue that a state servitude burdens

the Property and grants them the right to fish upon it

when it is flooded. Plaintiffs assert that this right

exists in the Louisiana Constitution, which provides

that the freedom to hunt, fish, and trap wildlife is a

valued natural heritage that will be forever pre-

served. See La. Const. art. I, §27. They also find

support in the Louisiana Civil Code, which provides

° Plaintiffs argument to the contrary based on purported

federal common law is unavailing. Plaintiffs point us to state

court decisions that provide citizens with a state right to fish on

navigable waters. But those cases merely prove that states

generally regulate the use of public trust lands. Plaintiffs also

rely on Silver Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th

Cir. 1931), where we stated that the owner of the bed of a

navigable body of water in Florida could not enjoin the public

from using the waters “for boating or sailing for pleasure.” But

again, Silver Springs is inapplicable because it applied state law

to determine the scope of navigational rights. Id.

App. 19

that everyone has the right to fish in the State’s

rivers. See La. Civ. CODE ANN. art. 452. Finally, they

contend that the Property is burdened by the State

for the public’s use because Louisiana owns all of the

running waters in the State. See id. art. 456. In

response, Sheriff Shumate argues that the right to

fish in Louis ana is explicitly limited to public lands

and does not extend to private riparian property.

Moreover, he argues that the Second Circuit Court of

Appeal, while failing to hold that the Property is free

of a state servitude because the issue was not prop-

erly raised, left a “guide post” for this court by noting

in passing that the public does not have a right to fish

on private lands. We agree with Sheriff Shumate.

First, the Louisiana Constitution, far from creat-

ing a private right to fish on the Property, explicitly

reserves to private property owners the right to

refuse consent to fishermen’s entry on their land. The

article Plaintiffs rely on reads:

The freedom to hunt, fish, and trap wildlife,

including all aquatic life, traditionally taken

by hunters, trappers and anglers, is a valued

natural heritage that shall be forever pre-

served for the people. ... Nothing contained

herein shall be construed to authorize the

use of private property to hunt, fish, or trap

without the consent of the owner of the prop-

erty.

App. 20.

See La. Const. art. I, § 27.° When the article is read

in full, it is plain that the right to fish is circum-

scribed and does not extend to waters on private

property.

Second, the Louisiana Civil Code does not create

a right to fish upon the Property, even if we assume

that the Property in its entirety is a bank of the

Mississippi River. Under Louisiana law, the “banks of

navigable rivers are private things that are subject to

public use.” LA. Civ. CODE ANN. art. 452; see also

Buckskin H-inting Club v. Bayard, 868 So.2d 266,

275-76 (La. Ct. App. 2004). The public use, however,

is limited to use for navigational purposes. Walker

Lands, 871 So.2d at 1268 n.6 (citations omitted);

Buckskin Hunting Club, 868 So.2d at 14 (citation

omitted). As stated in the comments to article 456,

“[a]ecording to well-settled Louisiana jurisprudence,

which continues to be relevant, the servitude of public

use under this provision is not ‘for the use of the

public at large for all purposes’ but merely for pur-

poses that are ‘incidental’ to the navigable character

of the stream and its enjoyment as an avenue of

commerce.” LA. Civ. CODE ANN. art. 452 cmt. b (cita-

tions omitted). The Second Circuit Court of Appeal

noted, in the parallel state proceeding, that fishing on

® This section of the Louisiana Constitution did not become

effective until December 7, 2004. We, therefore, do not cite it for

the proposition that Shenff Shumate had probable cause to

arrest Plaintiffs, but to show that the hortatory passage Plain-

tiffs rely on is limited in nature.

App. 21

the banks of the Mississippi River does not meet the

definition of a navigational use. Walker Lands, 871

So.2d at 1268 n.6 (citations omitted). We agree. See,

e.g., State v. Barras, 602 So.2d 301, 305 (La. Ct. App.

1992) (holding that fishing was not incidental to

navigation); Edmiston v. Wood, 566 So.2d 673, 675-76

(La. Ct. App. 1990) (same).

Finally, we reject Plaintiffs’ argument that they

have the right to fish on the Property when it is

submerged under the Mississippi River because

“running waters” are public things owned by the

State. Under Louisiana law, “public things” belong to

the State, and “public things” include “running wa-

ters.” La. Civ. CODE ANN. art. 456. Plaintiffs argue

that the public has a right to fish on the running

waters of the State based on Chaney v. State Mineral

Bd., 444 So.2d 105 (La. 1983). In that case, the Lou-

isiana Supreme Court stated that the running waters

over non-navigable streams are preserved for the

general public. Jd. at 109. This court has since deter-

mined that claims to the use of waterways based on

Chaney have “failed to carry the day in Louisiana

courts.” Dardar, 985 F.2d at 834 (citation omitted).

We have no reason to deviate from that holding. To

the contrary, the Third Circuit Court of Appeal of

Louisiana recently stated that although an owner

must permit running waters to pass through his

estate, Louisiana law “does not mandate that the

landowner allow public access to the waterway.”

Buckskin Hunting Club, 868 So.2d at 274.

App. 22

Ill. CONCLUSION

For the reasons stated above, we AFFIRM the

district court’s judgment.

App. 23

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

NORMAL PARM, JR., CIVIL ACTION NO.

ET AL 01-2624

VERSUS JUDGE

MARK W.SHUMATE ROBERT G.JAMES

MAG. JUDGE

JAMES D. KIRK

RULING

(Filed Aug. 29, 2006)

Pending before the Court are a motion for partial

summary judgment [Doc. No. 5] filed by the

Plaintiffs’ and cross-motion for summary judgment or

in the alternative motion for abstention [Doc. No. 11]

filed by Defendant Sheriff Mark W. Shumate of East

Carroll Parish (“Sheriff Shumate”).

On April 21, 2006, Magistrate Judge James D.

Kirk issued a Second Report and Recommendation

[Doc. No. 82] recommending that the Plaintiffs’

motion for partial summary judgment be granted in

part and denied in part. Magistrate Judge Kirk also

‘ The Plaintiffs in this matter include Normal Parm, Jr.,

Harold Eugene Watts, Roy Michael Gammill, William T. Rogers,

and Robert Allen Balch.

App. 24

recommended that Sheriff Shumate’s cross-motion for

summary judgment be denied.’

On May 5, 2006, the Plaintiffs filed an objection

[Doc. .No. 91] to the Second Report and

Recommendation. On May 11, 2006, Sheriff Shumate

also filed an objection [Doc. No. 95]. Both parties filed

responses to each other’s objections [Doc. Nos. 99 and

100}.

On May 30, 2006, Walker Cottonwood Farms,

LLC (“Walker Cottonwood Farms”), successor in title -

to Waiker Lands, Inc. (“Walker Lands”), filed an

amicus curiae brief [Doc. No. 102] in support of

Sheriff Shumate’s objections to the Second Report

and Recommendation.

On June 28, 2006, an amicus curiae brief [Doc.

No. 116] was filed by numerous fishing organizations

in support of the Plaintiffs’ objections to the report.”

* Magistrate Judge Kirk recommended in his First Report

and Recommendation [Doc. No. 22] that Defendant’s cross-

motion for summary judgment should be granted to the extent

that the case should be abstained pending resolution of the state

court proceedings.

* These organizations include the Louisiana Crawfish

Producers Association, Arkansas State Bass Federation, Big Sun

Bass Masters of Bellview Florida, Maple Bassmasters of Florida,

Blackhawk Bassmasters of Illinois, Bardstown Bassmasters of

Kentucky, Kentucky State Bass Federation, Louisiana State

Bass Federation, Louisiana Wildlife Federation, Rowa of

Louisiana, Minnesota State Bass Federation, River “ats Bass-

masters of Minnesota, Mississippi Bass Federation Nation,

(Continued on following page)

App. 25

On July 27, 2006, an amicus curiae brief [Doc.

No. 134] was filed by the Edward Wisner Donation in

support of Sheriff Shumate’s objections to the report.

For the following reasons, the Court ADOPTS IN

PART AND DECLINES TO ADOPT IN PART the

findings and conclusions set forth in the Magistrate

Judge’s Report and Recommendation.

I. FACTS AND PROCEDURAL HISTORY

The Plaintiffs bring this instant action against

Sheriff Shumate seeking a declaratory judgment,

injunctive relief, and damages under 42 U.S.C. § 1983

and Louisiana state law. The Plaintiffs sued Sheriff

Shumate in his official capacity claiming that they

were arrested without probable cause for fishing and

hunting on waters of the Mississippi River, which

Western Main Anglers, Yankee Bassers Bass Club of Maine, and

the Pennsylvania Bass Federation, Inc.

* Magistra.2 Judge Kirk has already succinctly character-

ized the facts and procedural history of this case in his Second

Report and Recommendation. The Court will incorporate

portions of Magistrate Judge Kirk’s factual background and

procedural history in this Ruling.

App. 26

covered Walker Cottonwood Farms” property during

periodic flooding.°

On August 22, 2002, Magistrate Judge Kirk

issued his first Report and Recommendation [Doc.

No. 22] recommending that this case be stayed

pending the outcome of state court litigation in

Walker Lands, Inc. v. East Carroll Parish Police Jury,

38,367-CA (La. App. 2 Cir. 4/14/04); 871 So.2d 1258

(“Walker Lands”). On October 29, 2002, this Court

adopted Magistrate Judge Kirk’s Report and

Recommendation and stayed the case. [Doc. No. 27].

On July 9, 2003, the United States Court of Appeals

for the Fifth Circuit affirmed this Court’s decision to

stay the case. |Doc. No. 32].

A. State Court Decision

In the Walker Lands’ case, Walker Lands

originally filed suit against the East Carroll Parish

Police Jury to enjoin all public use of Gassoway Lake

and a drainage ditch that runs from the southern end

of Gassoway Lake to Bunch’s Cutoff, a large body of

water that connects with the Mississippi River. The

* Walker Cottonwood Farms is successor in title to Walker

Lands’ property. However, the record is unclear as to when

Walker Cottonwood Farms obtained title to Walker Lands’

property.

* For purposes of this Ruling, Walker Cottonwood Farms’

property includes Gassoway Lake, “the drainage ditch,” Little

Gassoway Lake, Doe Lake, and Bunch’s Cutoff (to the extent it

lies within the State of Louisiana).

;

App. 27

State of Louisiana (“the State”) was added as an

indispensable party. The State answered, claiming

ownership or, alternatively, a servitude on the

disputed lands.’ Walker Lands also claimed

ownership of the disputed lands.

On appeal, the Louisiana Second Circuit Court of

Appeal (“Second Circuit”) affirmed the trial court’s

findings that Gassoway Lake was formed when the

Mississippi River first moved westward in the 1860's

and 1870’s and then slowly moved back eastward

forming Gassoway Lake in a shallow swale by 1894.

Walker Lands, 871 So.2d at 1261-62. The court also

concluded that, presently, the Mississippi River’s

ordinary low water mark is 77 feet and its ordinary

high water mark is 112 feet at the area in question.”

Id. at 1262. In addition, the court found that

Gassoway Lake and surrounding property “only

receives water when the Mississippi River floods,

which causes water to run through the ditch and

eventually [spill] over into the lake.” Jd.

The Second Circuit did not accept the State’s

argument that Gassoway Lake and the drainage

ditch are navigable. The Second Circuit concluded

that Gassoway Lake and the surrounding land are

located approximately three and a half miles west of

’ The East Carroll Parish Police Jury was later dismissed

from the lawsuit.

* Magistrate Judge Kirk noted that Gassoway Lake's

normal elevation is approximately 95 feet. [Doc. No. 82, p. 7).

App. 28

the Mississippi River, the property remains

“completely dry for most of the year, making it

unusable,” and the property serves no useful

commercial purpose. /d. at 1265-66. Ultimately, the

Second Circuit held that Walker Lands owns

Gassoway Lake, the drainage ditch, and other

surrounding lands adjacent to the Mississippi River

because the property is not “navigable in fact; and,

thus, not navigable in law.” Jd. at 1262.”

B. Second Report and Recommendation

Following the Second Circuit’s decision, this

Court re-opened these proceedings. In the Plaintiffs’

motion for partial summary judgment, they argue

that Sheriff Shumate lacks probable cause to arrest

them for trespass under La. Rev. Stat. § 14:63 while

they are on the waters of the Mississippi River when

those waters cover Walker Cottonwood Farms’

property. The Plaintiffs also seek a declaration that

Sheriff Shumate lacks sufficient evidence to support a

verdict of guilty beyond a reasonable doubt that the

Plaintiffs are guilty of trespass. Additionally, the

Plaintiffs seek a permanent injunction against Sheriff

Shumate, enjoining him from arresting the Plaintiffs

* The state court decision in Walker Lands became final

after the Louisiana State Supreme Court denied writ on June 3,

2005, and a motion for rchcaring on November 28, 2005. See

Walker Lands, Inc. v. East Carroll Parish Police Jury, 903 So.2d

442 (La. 2005) and Walker Lands, Inc. v. East Carroll Parish

Police Jury, 916 So.2d 127 (La. 2005)

App. 29

and other persons for trespass on the lands of Walker

Cottonwood Farms when the waters of the river cover

that property. In Sheriff Shumate’s cross-motion for

summary judgment, he asks thet the Plaintiffs’

claims be dismissed and asserts the defense of

qualified immunity.

In the Second Report and Recommendation,

Magistrate Judge Kirk found that the Plaintiffs have

both a federal common law right and a state law right

to fish and hunt en the Mississippi River between the

ordinary high and low water mark regardless of the

status of the ownership of the property located below

the waters.”

Applying federal law, Magistrate Judge Kirk first

found that neither 33 U.S.C. §10 nor the federal

navigational servitude provides the Plaintiffs with

the right to fish and hunt on the Mississippi River.

However, Magistrate Judge Kirk did find that the

Plaintiffs have a federal common law right of

navigation “which includes the right to reasonably

use the Mississippi’s waters for the purposes, among

other things, of navigation including travel and

transportation, commerce, boating, sailing, and

fishing and hunting from boats,” up to the ordinary

high water mark, regardless of who owns the land

beneath the waters. [Doc. No. 82, p. 14].

' Federal law defines high water mark differently than

state law. See 33 C.F R. § 329.11. The different definitions,

however, do not substantively change the Court’s analysis.

App. 30

Applying state law, Magistrate Judge Kirk also

found that the Plaintiffs have a right to fish and hunt

on the Mississippi River up to the ordinary high

water mark, when the waters cover privately owned

banks of the Mississippi River.

Based on these conclusions, Magistrate Judge

Kirk then determined that Sheriff Shumate did not

have probable cause to arrest the Plaintiffs under La.

Rev. Stat. 14:63 for trespass on Walker Cottonwood

Farms’ property when it is covered by the Mississippi

River between the ordinary high and low water mark.

. LAW AND ANALYSIS

The Court reviews de novo a magistrate judge’s

report and recommendation if a party files specific,

written objections within ten days of service. 28

U.S.C. § 636(b)(1). In the present case, both parties

timely filed objections [Doc. Nos. 91 and 95] to the

Magistrate Judge’s Repor. and Recommendation,

thus warranting de novo review by the Court.

First, for the reasons stated in Magistrate Judge

Kirk’s Second Report and Recommendation, the

Court ADOPTS his recommendation to the extent

that 33 U.S.C. §10 and the federal navigational

servitude do not provide the Plaintiffs with the right

to fish and hunt on the Mississippi River. However,

for the reasons discussed below, the Court

DECLINES TO ADOPT Magistrate Judge Kirk’s

recommendation that the Plaintiffs have a federal

common law right to fish and hunt on the Mississippi

App. 31

River, up to the high water mark, when it floods

privately owned land.

Second, the Court also ADOPTS Magistrate

Judge Kirk’s recommendation to the extent that

Walker Cottonwood Farms’ property is a bank of the

Mississippi River and subject to public use up to the

ordinary high water mark, as defined by Louisiana

law. However, for the reasons discussed below, the

Court DECLINES TO ADOPT his recommendation to

the extent that he found the Plaintiffs have a right to

fish and hunt on the Mississippi River up to the

ordinary high water mark when it periodically floods

Walker Cottonwood Farms’ property.

Third, the Court ADOPTS Magistrate Judge

Kirk’s recommendation to the extent that Sheriff

Shumate is not entitled to qualified immunity.

However, for the reasons discussed below, the Court

DECLINES TO ADOPT Magistrate Judge Kirk’s

recommendation to the extent that Sheriff Shumate

did not have probable cause to arrest the Plaintiffs

under La. Rev. Stat. § 14:63 for trespass on Walker

Cottonwood Farms’ property when it is covered by the

Mississippi River.

The Court also ADOPTS Magistrate Judge Kirk’s

recommendation to the extent that the Plaintiffs are

not entitled to an injunction against Sheriff Shumate

enjoining him from enforcing Louisiana trespass

laws.

App. 32

A. Federal Common Law Right

Magistrate Judge Kirk found that a common law

right of navigation exists on the Mississippi River,

and that this right of navigation includes the right to

fish and hunt up to the high water mark.

In support of this conclusion, Magistrate Judge

Kirk cited Silver Springs Paradise Co. v. Ray, 50 F.2d

356 (5th Cir. 1931), for the general proposition that

the public right of navigation “entitles the public

generally to the reasonable use of navigable waters

for all legitimate purposes of travel or transportation,

for boating or sailing for pleasure, as well as for

carrying persons or property for hire, and in any kind

of water craft the use of which is consistent ‘vith

others also enjoying the right possessed in common.”

Id. at 359.

The Court disagrees with Magistrate Judge

Kirk’s finding. Although the Fifth Circuit stated in

Silver Springs that the public has a right to

reasonably use navigable waters for “legitimate

purposes of travel or transportation, for boating or

sailing for pleasure, as well as carrying persons or

property for hire,” the Fifth Circuit did not

specifically find that the public has a federal common

law right to fish or hunt on a navigable source of

water. Therefore, the Court declines to interpret the

Fifth Circuit’s decision so broadly as to find that the

Plaintiffs have a federal common law right to fish or

hunt on a navigable water, such as the Mississippi

App. 33

River, when those waters periodically flood privately

owned lands.

B. State Law Right

In Louisiana, “{t]he banks of navigable rivers cr

streams are private things that are subject to public

use.” La. Civ. Code art. 456. “The bank of a navigable

river or stream is the land lying between the ordinary

low and the ordinary high stage of the water. . . .” Id.

Because Walker Cottonwood Farms’ property is

located between the ordinary high and low water

mark established by the Second Circuit, Magistrate

Judge Kirk found that it is a bank of the Mississippi

River and subject to public use. Magistrate Judge

Kirk stated that, “the right to use the river’s waters

includes the right to use the entirety of the waters,

regardless [sic] the river’s level or stage or how much

of its bank it covers,” up to the high water mark.

[Doc. No. 82, pp. 20-21].

The Court agrees with Magistrate Judge Kirk’s

finding to the extent that Walker Cottonwood Farms’

privately owned property is subject to public use

because it is a bank of the Mississippi River. Such

public use, however, is limited to activities that are

incidental to the navigable character of the

Mississippi River and its enjoyment as an avenue of

commerce. The Court finds that fishing and hunting

are not included in these mghts.

App. 34

Comment (b) to La. Civ. Code art. 456 states, in

pertinent part:

(b) Article 455(1) of the Louisiana Civil

Code of 1870 declares that “everyone has a

right freely to bring his vessels to land there,

to make fast the same to the trees which are

there planted, to unload his vessels, to

deposit his goods, to dry his nets, and the

like”. According to well-settled Louisiana

jurisprudence, which continues to _ be

relevant, the servitude of public use under

this provision is not “for the use of the public

at large for all purposes” but merely for

purposes that are “incidental” to the

navigable character of the stream and its

enjoyment as an avenue of commerce.

The Second Circuit and other Louisiana courts

have interpreted La. Civ. Code art. 456 to exclude

fishing and hunting from the type of public use

permitted on flooded private property because these

activities do not “meet the definition of using the

bank of a river at its high water mark for a

navigational purpose.” See Walker Lands, 871 So.2d

at 1268 n.16 (citing State v. Barras, 615 So.2d 285

(La. 1993) and Warner v. Clarke, 232 So.2d 99 (La.

App. 2d Cir. 1970)); see also Buckskin Hunting Club v.

Bayard, 03-1428 (La. App. 3 Cir. 3/3/04); 868 So.2d

266, 273 (using the banks along navigable rivers is

“limited to navigation and not hunting.”); Edmiston v.

Wood, 566 So.2d 673, 675-76 (La. App. 2d Cir. 1990)

(fishing and hunting in a boat over flooded private

property are not incidental to navigable character of

App. 35

the stream and its enjoyment as an avenue of

commerce).

Therefore, this Court concludes that the

Plaintiffs’ activities, to the extent they include fishing

and hunting, are not permitted on Walker

Cottonwood Farms’ property, because these activities

are not “incidental to the navigable character of the

[river] and its enjoyment as an avenue of commerce.”

La. Civ. Code art. 456 cmt. (b).

C. 42 U.S.C. § 1983 and probable cause

A police officer may arrest a person if the officer

has probable cause to believe that person committed

a crime. Tennessee v. Garner, 471 U.S. 1, 7 (1985); see

also La. Code Crim. Proc. art. 213." The United

States Supreme Court has explained that “probable

cause to justify an arrest means facts and

circumstances within the officer’s knowledge that are

sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is

committing, or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).

Louisiana courts have explained probable cause

as the following:

" The constitutional torts of false arrest, unreasonable

seizure, and false imprisonment also require a showing of no

probable cause. See Brown v. Lyford, 243 F.3d 185, 189 (5th Cir.

2001).

App. 36

Probable cause to arrest exists when the

facts and circumstances within the officer’s

knowledge are sufficient to justify a man of

ordinary caution in believing that the person

to be arrested has committed a crime....

The determination of probable cause,

although requiring something more than

bare suspicion, does not require evidence

sufficient to support a conviction. Probable

cause, as the very name implies, deals with

probabilities.... The determination of

probable cause, unlike the determination of

guilt at trial, does not require the fine

resolution of conflicting evidence that a

reasonable doubt or even a preponderance

standard demands, and credibility

determinations are seldom crucial in

deciding whether the available evidence

supports a reasonable belief that the person

to be arrested has committed a crime....

The determination of probable cause involves

factual and practical considerations of

everyday life on which average men, and

particularly average police officers, can be

expected to act.

State v. Simms, 571 So.2d 145, 148-49 (La. 1990).

Magistrate Judge Kirk found that Sheriff

Shumate arrested the Plaintiffs for trespassing

without probable cause “because the sheriff should have

known that the plaintiffs were legally authorized to be

upon the waters.” [Doc. No. 82, p. 28].

The Court disagrees with Magistrate Judge

Kirk’s finding. As discussed above, the Second

App. 37

Circuit, La. Civ. Code art. 456, and Louisiana

jurisprudence have not allowed fishing or hunting on

privately owned banks of navigable waters because

these activities are not incidental to the navigable

character of the stream and its enjoyment as an

avenue of commerce. Therefore, the Court concludes

that Sheriff Shumate had probable cause to arrest

the Plaintiffs for trespassing in violation of La. Rev.

Stat. 14:63.

Ill. CONCLUSION

Based on the foregoing, the Court ADOPTS IN

PART AND DECLINES TO ADOPT IN PART the

findings and conclusions set forth in the Magistrate

Judge’s Second Report and Recommendation [Doc.

No. 82].

The Court ADOPTS the Magistrate Judge’s

recommendation to the extent 33 U.S.C. § 10 and the

federal navigational servitude do not provide the

Plaintiffs with the right to fish and hunt on the

Mississippi River.

The Court also ADOPTS the Magistrate Judge’s

recommendation to the extent that Walker

Cottonwood Farms’ property is a bank of the

Mississippi River. The Court also ADOPTS the

Magistrate Judge’s recommendation to the extent

that Sheriff Shumate is not entitled to qualified

immunity and the Plaintiffs are not entitled to an

injunction against Sheriff Shumate enjoining him

from enforcing Louisiana trespass laws.

App. 38

To the extent that Magistrate Judge Kirk found a

federal common law right to fish and hunt over the

privately owned lands of Walker Cottonwood Farms

property when it is periodically flooded by the

Mississippi River, the Court DECLINES TO ADOPT

the Magistrate Judge’s recommendation.

Also, to the extent that Magistrate Judge Kirk

found that the Plaintiffs have a state law right to fish

and hunt on Walker Cottonwood Farms’ property,

when it periodically floods from waters of the

Mississippi River, the Court DECLINES TO ADOPT

the recommendation, and the Plaintiffs’ motion for

partial summary judgment is DENIED.

To the extent Magistrate Judge Kirk found that

Sheriff Shumate lacks probable cause to arrest the

Plaintiffs for trespass in violation of La. Rev. Stat.

14:63 for fishing and hunting on privately owned

banks of the Mississippi River, the Court DECLINES

TO ADOPT the Magistrate Judge’s recommendation,

and Sheriff Shumate’s cross-motion for summary

judgment is GRANTED.

MONROE, LOUISIANA this 29th day of August,

2006.

/s/ Robert G. James

ROBERT G. JAMES

UNITED STATES

DISTRICT JUDGE

App. 39

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

NORMAL PARM, JR., CIVIL ACTION NO.

ET AL 01-2624

VERSUS JUDGE

MARK W. SHUMATE ROBERT G. JAMES

MAG. JUDGE

JAMES D. KIRK

JUDGMENT

(Filed Aug. 29, 2006)

For the reasons contained in this Court’s Ruling

and for the reasons contained in the Report and

Recommendation of the Magistrate Judge previously

filed herein, to the extent adopted, and after an

independent review of the entire record and the

written objections filed herein,

The Court ADOPTS IN PART AND DECLINES

TO ADOPT IN PART the findings and conclusions set

forth in the Magistrate Judge’s Report and

Recommendation [Doc. No. 82].

IT IS HEREBY ORDERED that the Defendant’s

cross-motion for summary judgment [Doc. No. 11] is

GRANTED.

IT IS HEREBY FURTHER ORDERED that the

Plaintiffs’ motion for partial summary judgment [Doc.

No. 5j is DENIED.

App. 40

MONROE, LOUISIANA this 29th day of August,

2006.

/s/ Robert G. James

ROBERT G. JAMES

UNITED STATES

DISTRICT JUDGE

App. 41

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

NORMAL PARM, JR., CIVIL ACTION NO.

ET AL 01-2624

VERSUS JUDGE

MARK W.SHUMATE ROBERT G. JAMES

MAG. JUDGE

JAMES D. KIRK

RULING

(Filed Oct. 11, 2006)

Pending before the Court is a Motion for

Rehearing and Reconsideration and Motion for

Amendment of Judgment filed by Plaintiffs on

September 9, 2006 [Doc. No. 141].

On August 29, 2006, the Court issued a ruling

(“Ruling”) [Doc. No. 139] adopting in part and

declining to adopt in part the findings and

conclusions set forth in the Magistrate Judge’s Report

and Recommendation [Doc. No. 82]. The Court also

denied the Plaintiffs’ motion for partial summary

judgment [Doc. No. 5] and granted the Defendant's

cross-motion for summary judgment [Doc. No. 11].

On September 21, 2006, Defendant filed a

Memorandum in Opposition [Doc. No. 148] to the

Plaintiffs’ Motion for Rehearing and Reconsideration

and Motion for Amendment of Judgment.

App. 42

On September 21, 2006, Walker Cottonwood Farms,

LLC (“Walker”) filed an Amicus Brief [Doc. No. 147]

in Opposition to the Plaintiffs’ Motion for Rehearing

and Reconsideration and Motion for Amendment of

Judgment.

On September 29, 2006, Plaintiffs filed a Motion

for Leave to File Reply Brief [Doc. No. 155] and it was

denied by the Court on October 10, 2006.

After reviewing the documents submitted by the

parties, the Court is now ready to rule. For the

following reasons, Plaintiffs’ Motion for Rehearing

and Reconsideration and Motion for Amendment of

Judgment is DENIED.

I. Standard of Review

The Court may alter or amend a judgment within

ten days upon motion by a party under Federal Rule

of Civil Procedure 59(e). Fed. R. Civ. P. 59(e). The

Court finds that Plaintiffs’ motion was served within

ten days of the Court’s Ruling of August 29, 2006.

Accordingly, thie motion is governed by Rule 59%e).

The Court has discretion in deciding whether to

reopen a case in response to a motion for

reconsideration, but must balance the need for the

litigation to close and the need to render just

decisions based on the facts. Lavespere v. Niagara

Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th

Cir. 1990), abrogated on other grounds by Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir.

App. 43

1994) (en banc). Accordingly, a motion seeking review

of a grant of summary judgment seeks “an

extraordinary remedy that should be used sparingly.”

Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th

Cir. 2004) (citing Clancy v. Employers Health Ins. Co.,

101 F. Supp. 2d 463, 465 (E.D. La. 2000)).

Under Rule 59(e), the Court is guided by the

following factors: (1) whether the judgment was based

upon a manifest error of fact or law, (2) the existence

of newly discovered or previously unavailable

evidence, and (3) an intervening change in controlling

law. See 11 WRIGHT, MILLER & KANE, FEDERAL

PRACTICE & PROCEDURE § 2810.1 (2d ed. 1995).

II. Analysis

Plaintiffs argue that the Ruling made several

factual errors critical to ascertaining the scope of

federal and state servitudes, failed to apply binding

precedent of the United States Supreme Court and

the Fifth Circuit Court of Appeals, and failed to apply

binding state legal authority.

A. Factual Error

Plaintiffs challenge the characterization of the

disputed Walker Lands as “flooded” when the

Mississippi River rises and falls between 77 and 112

feet mean sea level. Plaintiffs contend that flooding

occurs when water rises above its normal high water

level, here, above 112 feet mean sea level. Plaintiffs

App. 44

argue this “clear factual error” by the Court is

important because the Plaintiffs do not seek to use

any of the “flooded” Walker Lands. However, the

Ruling correctly focused on the Plaintiffs’ rights on

land between the normal low and high water mark

and thus this mischaracterization (if any) does not

affect the disposition.

Plaintiffs also argue the Court failed to

distinguish between the river “bed” under federal law

and the river “bed” and “bank” under state law, which

are defined differently.’ However, again, the Court

correctly focused on the same area of land and water

comprised by the federal river bed and state river bed

and river bank.

B. Federal Precedent

Plaintiffs claim the Court failed to apply binding

federal authority confirming the Plaintiffs’ federal

right to fish on the Walker Lands. These arguments

were appropriately rejected by the Court and

therefore do not provide a basis for reconsideration.

However, the Court will briefly address several

points.

‘ Under federal law, the public’s right to use navigable

waters extends across the river “bed” of the navigable waterway,

thus extending across the surface of the water laterally up to the

normal high water mark. In contrast, under State law this same

area is referred to cumulatively as the river bed and the river

bank.” [Doc. No. 141, p. 6].

App. 45

The federal common law right of navigation

allows the public to use navigable waters for

“legitimate purposes of travel or transportation, for

boating or sailing for pleasure, as well as carrying

persons or property for hire.” Silver Springs Paradise

Co. v. Ray, 50 F.2d 356, 359 (5th Cir. 1931). However,

the federal common law right of navigation does not

provide a basis for the public to fish on navigable

waters. Id. While Plaintiffs urge the Court to

interpret Silver Springs broadly, the Court has

declined to do so.

Further, the facts in the instant case do not

provide a basis to extend the holding in Silver

Springs. Unlike the submerged land in Silver Springs

that had a direct connection to the navigable source

of water, Gassoway Lake is more than three miles

from the Mississippi River and remains landlocked

most of the year. See Walker Lands, 38, 376-CA, p. 5

(La. App. 2 Cir. 4/14/04); 871 So.2d 1258, 1262. While

the Plaintiffs in Silver Springs sought access in order

to transport persons in boats for commercial

purposes, the Plaintiffs here seek access in order to

fish for recreational purposes. /d. at 1267.

Similarly, the federal navigational servitude

under the Commerce Clause, if one were found to

exist on the Walker Lands, does not yield a right to

fish. See Blanchard v. Williams, No. 92-0941 (W.D.

La. Sep. 19, 1995), aff’d, 98 F.3d 1339 (5th Cir. 1996).

In Blanchard v. Williams, the Court declined to find a

federal right to fish upon the surface of flooded

swamplands lying between two navigable water

App. 46

bodies. The Court reasoned that the scope of the

servitude across the surface of the water only

permitted uses incident to navigation, not fishing. Jd.

at 11. Moreover, the Court held that “the use of its

bed and banks, and particularly public fishery rights

therein, remain purely matters of state law.” Id. at

12.

C. State Precedent

Plaintiffs claim the Court failed to apply binding

state authority. Plaintiffs claim the Louisiana

Constitution, statutes, and case law preserve a right

to fish in the rivers of Louisiana. These arguments

were appropriately rejected by the Court in the

Ruling and therefore do not provide a basis for

reconsideration. However, the Court will briefly

address several points.

Article 1, Section 27 of the Louisiana

Constitution does preserve a right to hunt and fish.

However, this provision also recognizes the authority

of the state to regulate such recreational uses and the

right of private property owners to exclude users from

private property. Therefore, Plaintiffs’ argument that

the Constitution creates an “inalienable” right to fish,

hunt, and trap fails to recognize the intrinsic limits

on this right.

The Plaintiffs also argue that, under state law,

riparian ownership does not include control of

navigable waters (upon which they assert their right

to fish). Because they do not assert a mght to use the

App. 47

privately owned dry bank area of a navigable river

and seek only the right to use the navigable waters

themselves, Plaintiffs argue that the restrictions on

bank servitudes in Louisiana Civil Code Article 456

do not apply. Therefore, on a navigable waterway at

water levels between the normal low and high water

mark, the Plaintiffs claim a right to fish “regardless

of who owns the underlying ground.”

However, the argument that the restrictions in

Article 456 pertain only to “actions that a navigating

public might need to do ON DRY GROUND” is

without merit. The scope of the bank servitude under

Article 456 does not change depending on whether a

bank is dry or covered with water. State case law

suggests that fishing and hunting are not incidental

to navigation.” The Court rejects the Plaintiffs’

attempts to distinguish this case law under their

narrow reading.

* See Walker Lands, 871 So.2d at 1268 n.16 (citing State v.

Barras, 615 So.2d 285 (La. 1993) and Warner v. Clarke, 232

So.2d 99 (La. App. 2 Cir. 1970)) (concluding the right to hunt and

fish upon water between the river and the levee is unrelated to

navigation); see also Buckskin Hunting Club v. Bayard, 03-1428,

p. 10 (La. App. 3 Cir. 3/3/04); 868 So.2d 266, 273 (finding that

use of the banks along navigable rivers is “limited to navigation

and not hunting.”); Edmiston v. Wood, 566 So.2d 673, 675-76

(La. App. 2 Cir. 1990) (finding that fishing and hunting in a boat

over flooded private property is not incidental to navigable

character of the stream and its enjoyment as an avenue of

commerce).

App. 48

Plaintiffs also argue that their right to fish flows

from the navigable character of the water itself and

not ownership of the underlying land. The Second

Circuit declined to find that Gassoway Lake and the

drainage ditch are navigable. Therefore, when the

surrounding Walker Lands’ are __ periodically

inundated, the property, including the water flowing

above the land, does not become navigable.

D. CONCLUSION

Louisiana is known as_ the “Sportsman’s

Paradise” because of its abundance of recreational

opportunities, including fishing. However, access to

those recreational opportunities must be balanced

against the rights of private property owners. Having

carefully considered and rejected the arguments

presented by Plaintiffs and failing to find any

manifest errors of fact or law, the Court finds that

Plaintiffs’ Motion for Rehearing and Reconsideration

and Motion for Amendment of Judgment is DENIED.

MONROE, LOUISIANA, this 11th day of

October, 2006.

/s/ Robert E. James

ROBERT G. JAMES

UNITED STATES

DISTRICT JUDGE

App. 49

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

NORMAL PARM, JR., CIVIL ACTION NO.

ET AL 01-2624

VERSUS JUDGE

MARK W.SHUMATE ROBERT G. JAMES

MAG. JUDGE

JAMES D. KIRK

ORDER

(Filed Oct. 11, 2006)

For the reasons contained in this Court’s Ruling,

IT IS HEREBY ORDERED that Plaintiffs’

Motion for Rehearing and Reconsideration and

Motion for Amendment of Judgment [Doc. NO. 141] is

DENIED.

MONROE, LOUISIANA, this llth day of

Uctober, 2006.

/s/ Robert G. James

ROBERT G. JAMES

UNITED STATES

DISTRICT JUDGE

App. 50

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

NORMAL PARM Jr., et al CIVIL ACTION 3-01-2624

VERSUS U.S. DISTRICT JUDGE

IN HIS OFFICIAL U.S. MAGISTRATE

CAPACITY AS JUDGE JAMES D. KIRK

SHERIFF OF EAST .

CARROLL PARISH (Filed Apr. 21, 2006)

SECOND REPORT AND RECOMMENDATION

Before the court is a motion for partial summary

judgment by plaintiffs [Doc. #5] and defendant’s cross

motion for summary judgment and alternative mo-

tion for abstention [Doc. #11], both of which are

referred to me by the district judge for Report and

Recommendation.

This is a suit for declaratory judgment, injunc-

tive relief and for damages under the Civil Rights

Act and Louisiana state law. Piaintiffs sue the

sheriff of East Carroll Parish in his official capacity

only, claiming in a complaint verified by all of the

plaintiffs, that the plaintiffs have in the past, and

desire in the future, to navigate over, and fish and

hunt on, the waters of the Mississippi River, and in

areas claimed to be owned by Walker Lands, Inc.

(Walker Lands), including Gassoway Lake, Little

Gassoway Lake, Bunch’s Cutoff, Old River, “the old

App. 51

channel”, “and other miscellaneous and unnamed

navigable water areas comprising a portion of the

Mississippi River during normal water heights.”

Normal Parm, Jr., Harold Eugene Watts, Roy Michael

Gammill, William T. Rogers and Robert Allen Balch

(plaintiffs) claim they are fishermen, hunters and

outdoorsmen.

Jurisdiction is founded by plaintiffs on the Civil

Rights Act, 42 U.S.C. § 1983 et seq., and the Federal

navigation laws found in 33 U.S.C. § 10, et seq., and

applicable regulations, 33 C.FLR. § 329.4, the “Federal

Navigational Servitude,” the Rivers and Harbors

Appropriation Act of 1899, and pendant jurisdiction

as to the claims founded on state law.

By first Report and Recommendation [Doc. # 22],

I found both Pullman type abstention and Colorado

River abstention to be applicable and recommended

that this case be stayed pending the outcome of state

court litigation in Walker Lands, Inc. and Hollybrook

Land Company, Inc. v. East Carroll Parish Police

Jury and State of Louisiana, Civil action number 17,

746, Sixth Judicial District Court, Parish of East

Carroll, Louisiana (the Walker Lands case). That case

involved allegations as to the ownership of the areas

in dispute here as well as questions of navigability. It

was anticipated that the case would answer at least

some of the issues presented here. U.S. District Judge

Robert G. James ordered this case stayed in October

2002 [Doc. #27] and the Fifth U.S. Circuit Court of

App. 52

Appeals affirmed the ruling based on Pullman type

abstention [Doc. #32].'

The state court’s decision in the Walker Lands

case became final after the Louisiana Second Circuit

Court of Appeals ruled on April 14, 2004, at 871 So.2d

258 (2d Cir. 2004) and the state Supreme Court

denied the sheriff’s writ application in June of 2005,

at 903 So. 2d 442 (La. 2004). This court then re-

opened these proceedings. Following delays caused to

some of the attorneys by Hurricane Katrina, all briefs

were filed by December 28, 2005. Permission to file

an amicus curiae brief was granted to the Waterways

Access Association, a non-profit Louisiana corporation

whose stated purpose is, among other things, “to

protect the citizen’s (sic) mght to access navigable

waterways and the natural overflow; to insure the

continuation of the hunting and fishing heritage and

other outdoor recreational opportunities of the citi-

zens of the community, region and state... ”.” Some,

but not all, of the plaintiffs are members of that

association, and that association is plaintiff in a

related case pending in this court (see footnote 2)

which remains stayed. An amicus curiae brief by

Walker Lands was also allowed filed.”

' Parm v. Shumate, 73 Fed. Appx. 78 (5th C. 2003).

* See complaint, Doc. #1, paragraph JI., in Waterways Access

Association v. Walker Lands, Inc. and Hollybrook Land Co., Inc.,

docket number 99 cv 1750 on the docket of this court.

* Walker Lands has filed evidence attached to its amicus

brief. A person granted special amicus status may file a brief as

(Continued on following page)

App. 53

Plaintiffs, in their motion for summary judgment,

ask this court to find the sheriff lacks probable cause

to arrest the plaintiffs for trespass under La. R. S.

14:63 while they are on the waters of the Mississippi

river, declaring that the sheriff lacks sufficient evi-

dence to support a verdict of guilty beyond a reason-

able doubt that plaintiffs are guilty of trespass, and

granting a permanent injunction against the sheriff

enjoining him from arresting the plaintiffs and other

persons while on the disputed area.

The sheriff, in his cross motion, asks that plain-

tiffs’ claims be dismissed and asserts the defense of

qualified immunity.

The Law of Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure

mandates that a summary judgment:

“shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affida-

vits, [submitted concerning the motion for

summary judgment], if any, show that there

is no genuine issue as to any material fact

and that the moving party is entitled to

judgment as a matter of law.”

allowed by this court’s order but may not submit evidence. It is

not a party to this case. Therefore, the attachments will not be

considered and have been ordered stricken from the record.

App. 54

Paragraph (e) of Rule 56 also provides the following:

“When a motion for summary judgment is

made and supported as provided in this rule,

an adverse party may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response,

by affidavits or as otherwise provided in this

rule, must set forth specific facts showing

that there is a genuine issue for trial. If the

adverse party does not so respond, summary

judgment, if appropriate, shall be entered

against the adverse party.”

Local Rule 56.2W also provides that all material

facts set forth in a statement of undisputed facts

submitted by the moving party will be deemed admit-

ted for purposes of a motion for summary judgment

unless the opposing party controverts those facts by

filing a short and concise statement of material facts

as to which that party contends there exists a genu-

ine issue to be tried. Since plaintiff has not attempted

to controvert any of the specific facts stated in the

defendant’s statement of undisputed facts, those facts

will be deemed admitted for purposes of this motion.

A party seeking summary judgment always bears

the initial burden of informing the court of the basis

for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if

any, which it believes demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Ca-

trett, 106 S.Ct. 2548 at 2552; International Ass’n. of

App. 55

Machinists & Aerospace Workers, Lodge No. 2504 v.

Intercontinental Mfg. Co., Inc., 812 F.2d 219, 222 (5th

Cir. 1987). However, movant need not negate the

elements of the nonmovant’s case. Litttle v. Liquid Air

Corporation, 37 F.3d 1069 (5th Cir. 1994). Once this

burden has been met, the non-moving party must

come forward with “specific facts showing that there

is a genuine issue for trial.” Jzen v. Catalina 382 F.3d

566 (5th Cir. 2004}, Fed. R. Civ. P. 56(e). All evidence

must be considered, but the court does not make

credibility determinations. If the movant fails to meet

its initial burden, summary judgment should be

denied. Little, 37 F.3d at 1075.

However, the non-movant, to avoid summary

judgment as to an issue on which it would bear the

burden of proof at trial, may not rest on the allega-

tions of its pleadings but must come forward with

proper summary judgment evidence sufficient to

sustain a verdict in its favor on that issue. Austin v.

Will-Burt Company, 361 F.3d 862, (5th Cir. 2004).

This burden is not satisfied with “some metaphysical

doubt as to the material facts,” by “conclusory allega-

tions,” by “unsubstantiated assertions,” or by only a

“scintilla” of evidence. Little, id.

In cases like the instant one, where the nonmov-

ing party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may

properly be made in reliance solely on the “pleadings,

depositions, answers to interrogatories, and admis-

sions on file.” Celotex at 2553.

App. 56

BACKGROUND

The case before the Louisiana Second Circuit

Court of Appeal was Walker Lands’ case filed against

the East Carroll Parish Police Jury to stop all public

use of Gassoway Lake and a drainage ditch which

runs from the southern end of Gassoway Lake to

Bunch’s Cutoff, a large body of water that connects,

at least on its southern end, with the Mississippi

River. See Exhibit A, a topographic map oi the dis-

puted area.* The State of Louisiana was added to the

case as an indispensable party. The State answered

claiming ownership or, alternatively, a servitude on

the disputed lands. Walker Lands also claimed own-

ership.

The Louisiana court of appeal affirmed the trial

court’s finding that Gassoway Lake was formed when

the Mississippi first moved westward in the 1860's

and 1870’s and then slowly moved back eastward and

formed Gassoway Lake at least by 1894. The court

found that the lake and the lands between it and the

Mississippi River were formed by accretion which

deposited alluvion as the Mississippi moved back

eastward. The court ruled that Walker Lands owns

Gassoway Lake, the drainage ditch and the surround-

ing lands to the Mississippi River. The court reversed

‘ The map is Plaintiff's Exhibit 8(a) published by the

United States Geological survey (1994). The exhibit was

originally filed as Exhibit 6(a) but, along with Exhibit 6, was

renumbered when it was discovered that there was already an

Exhibit 6.

App. 57

the trial court’s granting of an injunction prohibiting

the public’s use of the waters.

In its opinion, the court observed that at this

point in its course, the Mississippi River’s ordinary

low water mark is 77 feet and its high water mark is

112 feet. The court noted that the Mississippi River

levee sits at the western side of Gassoway lake. The

channel of the Mississippi River is approximately

three and a half miles east of Gassoway Lake. The

court further found as a fact that “Gassoway Lake

remains landlocked dering most of the year and is

practically inaccessibfe by boat.” The court also found

that at low water (77 feet) the ditch is “mostly dry”

but at the high water mark, the waters of the Missis-

sippi submerge all’ of the lands in dispute, including

Gassoway Lake, all the way to the levee on the west

side of the lake.

The state court refused to enjoin the public at

large from using the lands, finding no legal authority

authorizing such action. The court also pretermitted

ruling on the existence of legal servitudes on the

property, finding that there was no justiciable contro-

versy as between the State and Walker Lands on that

issue.

* The topographic map in evidence in this proceeding shows

that the elevation in a few places on the lands is higher than 112

feet. At oral argument counsel for plaintiffs suggested, in answer

to the court’s inquiry, that approximately 95% of the lands are

under water at the high water mark of 112 feet. That suggestion

appears consistent with the topographic map.

App. 58

The dispute comes to this court, then, as one to

determine plaintiffs’ rights to go upon the waters

when they cover all or part of the Walker lands.° In

brief, plaintiffs define the issue as follows:

“The plaintiffs are seeking a declaratory

judgment that they have the right to navi-

gate along the irregular shore of the Missis-

sippi River, notwithstanding who might own

the bank and shore of the mighty Mississippi

River.’

“There is one fundamental legal dispute in

this case that will resolve this case either in

favor of Plaintiffs and public use of the entire

navigable and fishable Mississippi River or

not. The legal dispute is whether the public,

including the Plaintiffs, have the federal

right or state right to navigate, fish and

hunt, and otherwise exploit, enjoy and utilize

the full water surface of the Mississippi river

at its normal water heights.”

It is clear from plaintiffs’ complaint and from

their multiple briefs that plaintiffs seek to navigate

on and to fish and hunt on water between the

* From this point on in this opinion, “the Walker lands” will

refer to the land as well as Gassoway lake and the other water

bodies on the land, including, without limitation, Gassoway

Lake, “the drainage ditch”, Little Gassoway Lake, Bunch’s

Cutoff (to the extent it lies within the State of Louisiana), and

Doe Lake.

’ Plaintiffs’ brief, Doc. #5, p. 5.

* Plaintiffs’ brief, Doc. #55, p. 2.

App. 59

ordinary low water mark and the ordinary high water

mark of the Mississippi River. They do not seek

authority to go upon dry land belonging to Walker

Lands or others and do not seek to go upon waters

which flood lands when the Mississippi rises above its

ordinary high water mark of 112 feet.

The topographic map in evidence shows that the

normal elevation of Gassoway Lake is 95 feet.

ANALYSIS

A Preliminary Procedural Matter

Defendant argues that this case is moot because

plaintiffs’ complaint and their briefs assert entitle-

ment to relief only “until the Second Circuit rules”.

Had this court interpreted plaintiffs’ claims to be so

limited, there would have been no need to abstain

and to stay this case until the state courts had issued

a final ruling. Plaintiffs’ complaint anticipated that

the state courts might decide the issues presented

here. For example, in paragraph 28 plaintiffs assert

that they “desire that this Honorable Court grant a

declaratory judgment that until the Judgment of

March 5, 1999, of the Second Circuit Court of Appeals

is reversed, modified or a subsequent final judgment

is rendered by a court of competent jurisdiction,

specifying the ownership and navigational rights of

the State of Louisiana and Walker Lands, Inc....

there is not sufficient evidence to support a verdict of

guilty ...”. See, to the same effect, paragraph 29. In

addition, the prayer of the complaint in paragraph 2

App. 60

asserts entitlement to relief until a court specifies the

navigational rights of the persons in interest. As

pointed out above, the Second Circuit expressly

pretermitted ruling on the issue of navigational

rights. No other court has decided the issue. There-

fore plaintiffs’ claims are not moot and have been

adequately pled.

Plaintiffs’ Rights To Go Upon The Disputed Waters

Plaintiffs claim that, in the past, they have each

been arrested or threatened with arrest for violating

Louisiana’s trespass laws if they go upon the water

when it covers the Walker lands. This court accepts,

as it must,’ the finding of the state courts that Walker

Lands owns the lands under discussion here. How-

ever, ownership is irrelevant to this proceeding, for

Louisiana law provides a remedy for trespass even to

one who is only a possessor of property. Manzanares

v. Meche, 506 So. 2d 957 (La. App. 3rd C. 1987), writ

den. 508 So.2d 822 (1987). The issue is whether

plaintiffs have a right to go upon the waters covering

the Walker lands, regardless who owns them.

Plaintiffs seek a declaratory judgment and in-

junction recognizing their asserted rights to go upon

the waters of the Mississippi river between its ordi-

nary low water stage and its ordinary high water

stage to navigate, fish and hunt. Plaintiffs claim

° Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389

(5th C. 2001).

App. 61

these rights are granted by federal law, specifically

the Federal navigational servitude, and by Louisiana

state law.

a) Plaintiffs’ Rights under Federal Statutes

and The Federal Navigational Servitude

When Louisiana was admitted to the Union, on

equal footing with the original thirteen states, Lou-

isiana received ownership of all navigable waters

within its borders and all tide waters and the lands

under them from the United States in public trust.”

See Phillips Petroleum Co. v. Mississippi, 108 S. Ct.

791 (1988); Dardar v. Lafourche Realty Co., Inc., 985

F.2d 824 (5th C. 1993). A condition of its admission

was that the Mississippi river and all navigable

rivers and waters leading into it “shall be common

highways and forever free ... ” Act of Congress

February 20, 1811, 2 U.S. Stats. 641, Act of Congress

April 8, 1812, 2 U.S. Stats. 701. Current law provides

that “[ajll the navigable rivers and waters in the

former Territories of Orleans and Louisiana shall be

and forever remain public highways.” 33 U.S.C. § 10.

In The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999 (1870),

the Supreme Court said: “Those rivers must be re-

garded as public navigable rivers in law which are

navigable in fact. And they are navigable in fact when

'° However the federal common law public trust doctrine

probably does not provide this court with subject matter juris-

diction. State of New York v. DeLyser, 759 F. Supp. 982 (W.D.

New York 1991).

App. 62

they are used, or are susceptible of being used, in

their ordinary condition, as highways for commerce,

over which trade and travel are or may be conducted

in the customary modes of trade and travel on water.

And they constitute navigable waters of the United

States within the meaning of the acts of Congress, in

contradistinction from the navigable waters of the

States, when they form in their ordinary condition by

themselves, or by uniting with other waters, a con-

tinued highway over which commerce is or may be

carried on with other States or foreign countries in

the customary modes in which such commerce is

conducted by water.” See also 16 U.S.C. § 796. This

court takes judicial notice that the Mississippi River

was navigable in 1812 and remains so today. See

State of Arizona v. State of California, 51 S. Ct. 522

(1931). The parties do not dispute the navigability of

the Mississippi River.

i) Federal Statutes

Plaintiffs argue that their asserted right to

navigate on and to fish and hunt on waters of the

Mississippi is recognized by the Federal navigation

statutes and is also a “subset” of the Federal naviga-

tional servitude.

The Federal navigation statutes are found in 23

U.S.C. § 1, et seq. Plaintiff points specifically to 33

U.S.C. § 10 which provides:

App. 63

“All the navigable waters in the former Ter-

ritories of Orleans and Louisiana shall be

and forever remain public highways.”

This provision codifies the Act of Feb. 20, 1811, men-

tioned above.

While the obvious intent of this provision is to

ensure the public’s right to navigate on the navigable

waters, the extent of those rights is not set forth in

the statute or in other Federal statutes we have

found or to which we have been referred by counsel.

Unquestionably, the Federal government may, pursu-

ant to the Commerce Clause, constitutionally regu-

late the extent of those rights and it has chosen to do

so to some extent as will be discussed below. Simi-

larly, Louisiana retains the right to regulate such

bodies within its borders pursuant to its ownership of

the water bottoms obtained upon its admission to the

Union. The fact that the navigable waters, including

the Mississippi, shall remain a public highway, how-

ever, does not preempt Louisiana’s power to regulate

them. Cummings v. City of Chicago, 23 S.Ct. 472

(1903); Wood Marine Service, Inc. v. City of Harahan

858 F.2d 1061 (5th C. 1988). Louisiana, too, has

chosen to regulate its navigable waters as will also be

discussed below. However, I do not find that 33 U.S.C.

§ 10 gr ints to plaintiffs the right to fish or hunt on

navigable waters in Louisiana nor does it, standing

alone, define the extent of the plaintiffs’ rights to use

the waters as a public highway. For that we must

look to other state and federal laws, as will be dis-

cussed.

App. 64

ii) The Federal Navigational Servitude

In general, all persons have the right to use open

navigable waters. Gibbons v. Ogden, 6 L. Ed. 23

(1824); Gray v. Bartlett, 37 Mass. (20 Pick.) 186

(1838). The public right of navigation “entitles the

public generally to the reasonable use of navigable

waters for all legitimate purposes of travel or trans-

portation, for boating or sailing for pleasure, as well

as for carrying persons or property for hire, and in

any kind of water craft the use of which is consistent

with others also enjoying the right possessed in

common.” Silver Springs Paradise Co. v. Ray, 50 F.2d

356 (5th C. 1931) [so-called old Fifth Circuit]. How-

ever, certain otherwise navigable waters located on

private property and constructed with private funds

are nevertheless not subject to public use. See, e.g.

Kaiser Aetna v. United States, 100 S. Ct. 383 (1979);

Vaughn v. Vermillion Corporation, 100 S.Ct. 399

(1979). While it has been implied that the right of the

public to use certain navigable waters depends upon

the existence of the federal navigational servitude,’

the Federal navigational servitude does not define

the parties’ rights to use the navigable waters, but is

'' In Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824 (5th

Cir. 1993), the court of appeal had before it a suit by commercial

fishermen seeking recognition of their right to fish upon waters

they claimed were navigable. The court remanded the case for a

determination whether a federal navigational servitude existed

on some of the waters at issue and thus did not reach the issue

of plaintiffs’ asserted rights to fish in the waters. See also,

United States v. Harrell, 926 F.2d 1036 at 1040 (11th C. 1991).

App. 65

more “an expression of the notion that the determina-

tion whether a [eminent domain] taking has occurred

must take into consideration the important public

interest in the flow of interstate waters that in their

natural condition are in fact capable of suppor

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