Opposition Brief — Parm v. Shumate (No. 07-1289)

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Court, US.

( 3 ) FILED

No. 07-1289 JUN 12 2008

In 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

BRIEF OF RESPONDENT IN OPPOSITION

FREEMAN R. MATTHEWS

CRAIG E. FROSCH

Counsel of Record

Usry, WEEKS & MATTHEWS

1615 Poydras Street, Suite 1250

New Orleans, LA 70112

Tel. (504) 592-4600

Counsel for East Carroll Parish

Sheriff Mark W. Shumate

—-

COCKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (409) 449.9881

TABLE OF CONTENTS

Page

TABLE, CF ATR ne oisicskacerstcctimnainemant il

SOG ESAs RIOT eicncinntscivertetentniannaaande 1

STATEMENT OF THE CASE. ....................cececeeseees 1

ATG ATION ociniin ticnsnccsncechsciecacneie emai 4

I. NEITHER THE UNITED STATES CON-

STITUTION NOR FEDERAL LAW OFFER

PROTECTION FOR RECREATIONAL

FISHING ON FLOODED PRIVATE PRO-

PERT S EC LAP sictenctncicneatiions 4

II. THE PRIVILEGES AND IMMUNITIES

CLAUSE DOES NOT PROTECT REC-

REATIONAL FISHING ON FLOODED

PR VA a FE ED crerctercscinincinrannes 17

Ill. LOUISIANA LAW PROVIDES THAT THE

OWNER OF FLOODED PRIVATE PROP-

ERTY MAY EXCLUDE TRESPASSERS.... 20

CONCLAIIIGN, occcesscnvsesnecmnintaivsigduanalamaammia 22

TABLE OF APPENDIX

1998 U.S. Corps of Engineers’ Navigation and

Flood Control Map No. 85 Mississippi River,

Mississippi Valley Division. ...................scceeeeees App. 1

TABLE OF AUTHORITIES

Page

CASES

Baldwin v. Fish and Game Commission of

Montana, 436 U.S. 371, 98 S.Ct. 1852, 56

aan ME IE OD osinciec casidouineicy de donteuansconadeeanienion 18, 19

Boykin v. Shaffer, 13 La. Ann. 129, 1858 WL

I GR Rs tc nievsisonsinieinsnicliicaesplbhcemeiupeeuannemaanes 13

Buckskin Hunting Club v. Bayard, 03-1428,

868 So.2d 266 (La.App. 3rd Cir. 3/3/2004) ............. 21

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

Re SND, FI oes cisicativiesatocitnwcceniidavnamastanaataanes 7

Edmiston v. Wood, 566 So.2d 673 (La. App. 2nd

| Rapa ERSTE Ooo MaN Sameer Me cE NIN EDA, ote 21

George v. Beavark, 402 F.2d 977 (8th Cir. 1968) ......... 8

Goose Creek Hunting Club, Inc. v. U.S., 518

Be ee Oe UID caireisensivnecoscicnttpatanbiaieiannteu’ 6

Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83

EE. SII <1... sacctnccavnpimenecsibisbiebatanamekedpaad 18

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

100 S.Ct. 383, 62 L.Ed.2d 332 (1979)..............0seceeres 7

Lawton v. S*eele, 152 U.S. 133, 14 S.Ct. 499, 38

Se A AEE ssksnssteassivcesatieicalabalesnieenaiacaiepcinigialetiamasi 12

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

eg ee Rt ee Oe vaieicinovnciadcdcntibscsiaeeneiaanis 12

Merrill-Stevens Company v. Durkee, 62 Fla.

es We Me I CIs BI Aicncccehcnivssnindcsicicnensentindanes 12

Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221,

Se a ee EE CED civckincinnsuuiantinetaasdedankesoesenniabaiail 6

TABLE OF AUTHORITIES — Continued

Page

Parm v. Shumate, 513 F.3d 135 (5th Cir. 2007) ...... 2,6

Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (1869)....... 18

Phillips Petroleum Co. v. Mississippi, 484 U.S.

469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988).....5, 8, 9, 10

Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48,

yak aE aesticeidh Cavepioceiinsn snochonen 7

Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38

Ba Se RE Givens iin i ncnvcgncsnennebvavddansdaninedioncbes 8,9, 10

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

I a a 11

Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36,

ee ESD ivssoinsss Sivas nviccsvunsdseccnicvienwontuseoie 11, 18

Smith v. Maryland, 59 U.S. 71, 18 How. 71, 15

i di, vine ca ha cpslchs enced bnnwsooeiasness 14

State v. Barras, 602 So.2d 301 (La. App. 3rd

0 ERR ae IS TITIES SISTED? PFET Se EE Zi

U.S. v. C. E. Harrell, 926 F.2d 1036 (11th Cir.

tS EI are oe ke SoMa hot. Ao NS Ne Or 6

Walker Lands, Inc. v. East Carroll Parish

Police Jury, 38,376, 871 So.2d 1258 (La. App.

2nd Cir. 4/14/2004), writ denied, 2004-1421,

916 So.2d 127 (Lia. G/3/2005B)...........cc.cccesesssoees passim

CONSTITUTIONS/STATUTES/REGULATIONS

ree I WN a iiss icetsvnbknceenedceuesedes 17,18

gs he IIRRNES 2A Taek dee Ra Cenc REREAD NE 12

TABLE OF AUTHORITIES — Continued

La. C.C. art. 456

29 C.E-R. 329.11

INTRODUCTION

This case involves matters of trespass on non-

navigable private land that is occasionally flooded by

waters from the Mississippi River. Petitioners assert

that they have a right to trespass under the guise of a

previously unrecognized constitutional right to fish.

This case does not merit review because it involves

fact-intensive matters of Louisiana state law and

because the decision below does not conflict with any

decision of any other federal court of appeal, is ~ot in

conflict with a decision of a state court of last resort

and does not conflict with any prior decisions of this

Court. This case rests and turned on established

principles of law applied to a particular set of facts

which were painstakingly developed and carefully

analyzed not only in this case, but in ten years of

related litigation in the Louisiana state courts. The

Petition thus lacks a basis for the exercise of this

Court’s jurisdiction. The decisions below should not

be disturbed. The respondent, a Sheriff of a single

Parish in rural Louisiana who has borne the brunt of

defending Petitioners’ claims, respectfully urges this

Court to deny the Petition.

STATEMENT OF THE CASE

The Petitioners are a group of recreational fish-

ermen who were arrested for trespass in Louisiana

when they refused to leave private property owned

by Walker Cottonwood Farms, L.L.C., successor in

interest to Walker Lands, Inc. The Petitioners postu-

late that the respondent East Carroll Parish Sheriff

Mark Shumate is prohibiting them and all others

from fishing or otherwise enjoying the Mississippi

River. That is simply not the case. This property is

undeniably private property that is dry most of the

year and is replete with roadways, buildings, crop

land, small lakes, ponds, and standing timber that

preclude its use as a navigable waterway or highway

of interstate commerce. See Walker Lands, Inc. v.

East Carroll Parish Police Jury, 38,376, 871 So.2d

1258 (La. App. 2nd Cir. 4/14/2004), writ denied, 2004-

1421, 916 So.2d 127 (La. 6/3/2005);' Parm v. Shumate,

513 F.3d 135, 188, 139-140 (5th Cir. 2007).’ Although

a small part of the property at issue borders the

navigable channel of the Mississippi River, the prop-

erty extends in some places three miles from the “top

bank” of the river as shown on the 1998 U.S. Corps of

Engineers’ official Navigation and Flood Control Map,

submitted as evidence by the Sheriff.’ In short, the

' This opinion is also reproduced at Pet. App. pp. 101-122.

* The opinion below, also reproduced at Pet. App. pp. 1-22.

* This map was entered in evidence as defendant’s Exhibit

J, and is attached hereto as an Appendix inside the back cover of

this Brief, with a legend showing the key for the “top bank”

appearing on the reverse side. It is noted that the defense

exhibit is more recent than the map offered by the plaintiff, as

noted at oral argument in the district court. The Petitioners’

map is vintage 1994, but indicates that it is based on 1967

imagery that was last field-checked in 1970.

property is not “the Piver,” as the Petitioners would

have the Court believe.

As privately owned property above the federal

high-water mark, the Walker property is not subject

to the federal navigational servitude. Additionally,

the Louisiana courts have specifically held that this

property is non-navigable, non-public trust lands,

even when flooded by the backwaters of the Missis-

sippi River during times of high river stages at cer-

tain times of the year. Under these conditions, the use

of the property, even when flooded, remains governed

by state law. The courts below properly found, under

the facts of this case and the particular circumstances

presented, that the Petitioners have no right under

state or federal law to go upon the property to fish or

hunt.

The Petitioners assert various legal theories in

support of their asserted federal “right” to fish. Their

reliance is uniformly misplaced. These authorities are

concerned with rights of navigation in commerce

preserved under federal law and confirm that regula-

tion of the property at issue rests in the State. it is

not disputed that commercial navigation rights exist

on the Mississippi River, which passes near the

property at issue. It is equally without question,

however, that the actions of the landowner in seeking

the Sheriff’s protection from trespass do not interfere

with traditional uses of the River as a highway of

commerce.

The property rights Walker has asserted do not

extend below the high bank of the River as estab-

lished under federal regulations. The use of this

property is governed therefore by Louisiana state law.

What gave rise to the Petitioners’ claims was their

invasion of private property three miles inland from

the Mississippi River that occasionally receives flood

waters of the River. The Sheriff simply enforced the

property rights of a complaining private land owner,

rights which are clearly and explicitly protected by

the constitutions and laws of the United States and of

Louisiana. Any interests the Petitioners may have in

recreational fishing must yield to these private prop-

erty rights.

ARGUMENT

I. NEITHER THE UNITED STATES CONSTI-

TUTION NOR FEDERAL LAW OFFER

PROTECTION FOR RECREATIONAL FISH-

ING ON FLOODED PRIVATE PROPERTY

IN LOUISIANA

The Petitioners claim a federally protected right

to recreational fishing on the Walker property. But

they can point to no specific statute or constitutional

provision that specifically creates such a right. The

applicable statutes and constitutional provisions,

along with the cases decided thereunder, instead

confirm that Petitioners’ interest in unchecked rec-

reational fishing is not of federal concern.

The United States Constitution, in the context of

this litigation, is concerned only with the regulation

of interstate commerce and the preservation of navi-

gable bodies of water, such as the shipping channel of

the Mississippi River, as highways of commerce. See

Phillips Petroleum Co. v.’ Mississippi, 484 U.S. 469,

108 S.Ct. 791, 98 L.Ed.2d 877 (1988). To the extent

that state laws governing property rights do not

infringe upon such use, federal law does not usurp

state law, even to protect recreational fishermen

floating on flooded private property. Jd. at 795, 798-

799 (recreational fishing rights “have nothing to do

with navigation ...”). Here, the actions of the Sheriff

in arresting the Petitioner fishermen had no relation

to the use of the Mississippi River as a highway of

commerce. To the contrary, the undisputed facts show

that the Petitioners were arrested well beyond the

legally navigable and protected channel of the Missis-

sippi River.

The definition of high water mark is stated in

federal law as “the line[s] on the shore established by

the fluctuations of water and indicated by physical

characteristics such as a clear, natural line impressed

on the bank; shelving; changes in the character of

soil; destruction of terrestrial vegetation; the pres-

ence of litter and debris; or othcr appropriate means

that consider the characteristics of the surrounding

areas.” 29 C.F.R. 329.11(A)(1). The state court deci-

sions in the parallel proceeding observed that the

Walker property has all of the distinguishing ele-

ments of land that sits above the high water mark for

federal purposes.* In addition, as shown on the fed-

eral navigation map submitted at the summary

judgment hearing as Exhibit J by the Sheriff, the “top

bank” of the western bank of the Mississippi River in

the vicinity of the subject property is right alongside

the regular channel of the river, and does not extend

far, if at all, onto the subject property in Louisiana at

its very northeastern corner. The Petitioners were

arrested on the Walker property several miles west of

the delineated “top bank.”

Thus defined, the bed of the navigable River and

the extent of a federal] right to fish (even if one exists)

would not extend over the Walker property, which, as

found by the state courts, is ordinarily dry riparian

land that is “not wrested of its vegetation” despite

being occasionally exposed to flood water from the

River. See Walker Lands, supra; see also U.S. v. C. E.

Harrell, 926 F.2d 1036, 1041-1042 (1lth Cir. 1991);

and Goose Creek Hunting Club, Inc. v. U.S., 518 F.2d

579, 583 (Ct. Cl. 1975). In fact, courts have explicitiy

rejected attempts to expand the beds of navigable

rivers, and concomitantly the federal navigational

servitude, to riparian lands only inundated at a

“river’s peak flow or flood stages.” Harrell, 926 F.2d at

1041, citing Oklahoma v. Texas, 260 U.S. 606, 43

S.Ct. 221, 224, 67 L.Ed.2d 428 (1923).

*‘ The state district court opinion is summarized and

referenced in the Fifth Circuit decision below. Parm, 513 F.3d at

139-140 (see Pet. App. at 7-9). The state appellate decision

appears at Pet. App. pp. 101-122, as well as at 871 So.2d 1258.

There is no question that the bed of the Missis-

sippi River is navigable where it passes near the

Walker property. Any navigational servitude that may

apply to the River, however, would be limited to the

bed of the River, and then only for use as a continu-

ous highway of interstate commerce as authorized by

the Commerce Clause of the U.S. Constitution. See

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

832 (5th Cir. 1993); citing Kaiser Aetna v. United

States, 444 U.S. 164, 178, 100 S.Ct. 383, 392, 62

L.Ed.2d 332 (1979). This servitude is not unlimited. It

does not grant recreational fishing rights over flooded

private property. See Scranton v. Wheeler, 179 U.S.

141, 160, 21 S.Ct. 48, 56, 45 L.Ed. 126 (1900) (“It is

commerce, and not navigation, which is the great

object of constitutional care. The power to regulate

commerce is the basis of the power to regulate navi-

gation and navigable waters and streams, and these

are so completely subject to the control of Congress,

as subsidiary to commerce, that it has become usual

to call the entire navigable waters of the country the

navigable waters of the United States. It matters

little whether the United States has or has not the

theoretical ownership and dominion in the waters, or

the land under them; it has, what is more the regula-

tion and control of them for purposes of commerce.”).

This Court has long recognized that “the title and

rights of riparian or littoral proprietors in the soil

below the high-water mark of navigable waters are

governed by the local laws of the several states,

subject, of course, to the rights granted to the United

States by the constitution.” Shively v. Bowlby, 152

U.S. 1, 40, 14 S.Ct. 548, 563, 38 L.Ed. 331 (1894). The

“rights granted to the United States by the Constitu-

tion” in this respect include only rights of commercial

navigation and to keep the navigable highways of

‘commerce open. This Court recognizes that issues of

public rights in access to waterways “not related to

navigability, such as bathing, swimming, recreation,

fishing, and mineral development... ,” are matters of

state law concern. See Phillips Petroleum, 484 U.S. at

482-484, 108 S.Ct. at 798-799.

A distinction exists between the navigation

protected by federal law and the private hunting and

fishing promoted by the Petitioners. Navigation as

contemplated by the Constitution is commerce. The

Petitioners’ recreational fishing and hunting are

pleasurable distractions. The former is essential to

the public interest and is protected by the Constitu-

tion, laws, and regulations of the United States; the

latter are not. See George v. Beavark, 402 F.2d 977,

979-981 (8th Cir. 1968) (“ ... none of the authorita-

tive cases has liberalized the rule so as to indicate

that mere pleasure fishing on a stream of water is

such usage as would constitute navigability.”).

Consequently, even if the federal navigational

servitude extended three miles beyond the bank of

the Mississippi River (it does not) and encompassed

the portion of the Walker property at issue (it does

not), it would not protect the unlawful fishing prac-

tices of the Petitioners on private property. Any

common rights te the simple enjoyment of navigable

waterways were retained by the States as sovereigns,

not transferred to the federal government by the

Equal Footing Doctrine. The States, upon entry into

the Union, granted specific and limited authority to

preserve and protect navigation in commerce to the

federal government by way of the Constitution:

At common law, the title and dominion in

lands flowed by the tide water were in the

King for the/benefit of the nation. ... Upon

the American Revolution, these righis,

charged with a like trust, were vested in the

original States within their respective bor-

ders, subject to the rights surrendered by the

Constitution of the United States.... The

new States admitted into the Union since the

adoption of the Constitution have the same

rights as the original States in the tide wa-

ters, and in the lands under them, within

their respective jurisdictions.

Phillips Petroleum, 484 U.S. at 473-474, 108 S.Ct. at

98 L.Ed.2d 877; citing Shively, 152 U.S. at 57, 14

S.Ct. at 569.

This Court has confirmed that “it has been long

established that the individual States have the au-

thority to define the limits of the lands held in public

trust and to regulate private rights in such lands as

they see fit.” Phillips Petroleum, 484 U.S. at 475, 108

S.Ct. at 794; citing Shively, 152 U.S. at 26, 14 S.Ct. at

557. Lands under navigable waterways were “given to

the States upon their entry into the Union, subject to

the federal navigation easement and the power of

Congress to control navigation on those streams

under the Commerce Clause.” Phillips Petroleum, 484

U.S. at 479, 108 S.Ct. at 797 (citation omitted). The

title to and rights in such lands and waterways are

then matters left to state law, which this Court

recognized may be different among the several

States. See Phillips Petroleum, 484 U.S. at 483, 108

S.Ct. at 799; quoting Shively, 152 U.S. at 26, 14 S.Ct.

at 557 (“there is no universal law on the subject: but

... each State has dealt with the lands under tidewa-

ters within its borders according to its own views of

justice and policy.”).

Even if the Walker property were considered

tidelands or public trust lands governed by the Equal

Footing Doctrine,’ Louisiana, as sovereign, has the

authority to make such laws respecting private rights

in that property as it sees fit, as long as the federal

interests in commercial navigation are not impaired

thereby. The decision rendered below by the Fifth

Circuit did not hold that recreational fishing is not

permitted on navigable waterways. What the Fifth

Circuit found, based on established precedent, was

that federal law on the subject of navigable water-

ways is concerned with navigation on said navigable

waterways as highways of commerce. Fishing rights

* See Walker Lands, 871 So.2d at 1261, Pet. App. at 103 (“At

trial, it was determined that Gassoway Lake did not exist in

1812, ... the year Louisiana was admitted into the Union. The

land where Gassoway Lake now sits was either woods or

farmland in 1812, west of the Mississippi River.”).

as may be protected by a State as the sovereign, on

the other hand, are matters of state law.

A variation of this premise was recognized in the

Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 21

L.Ed. 394 (1873), which involved a challenge to

Louisiana state laws that granted exclusive rights to

slaughter-house operations along sections of the

Mississippi River at New Orleans to a private entity.

This Court held that the grant of exclusive rights in

land above the low water mark of the River to private

interests did not violate the Constitution or Louisi-

ana’s grant of authority over commercial navigation

to the federal government.

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

356 (5th Cir. 1931), the court addressed rival claims

of glass-bottomed boat operators on beautiful Silver

Springs, undisputably a navigable highway of inter-

state commerce protected by federal law. The court

held that this navigable waterway could not be

claimed as the exclusive waterway of one of the

excursion operators by virtue of its ownership of

adjacent lands. The Walker property, in contrast, is

not the bed of a federal highway of water-borne

commerce, it is “fast” land, not subject to the federal

servitude or the holding of Silver Springs. See Silver

Springs, 50 F.2d at 358 (“Whatever the nature of the

interest of a riparian owner in the submerged lands

in front of his upland bordering on public navigable

water, his title is not as full and complete as his title

to fast land which has no direct connection with the

navigation of such water.”).

Other cases noted by the Petitioners recognize

that the individual States have the authority to

regulate the disposition and use of non-navigable

property adjacent to navigable waterways. See

Lawton v. Steele, 152 U.S. 133, 138, 14 S.Ct. 499, 501,

38 L.Ed. 385 (1894) (the preservation of game and

fish fall within the ambit of the State’s police power

“and laws limiting the season within which birds and

wild animals may be killed or exposed for sale, and

prescribing the time and manner in which fish may

be caught, have been repeatedly upheld by the

courts.”); Merrill-Stevens Company v. Durkee, 62 Fla.

549, 560, 57 So. 428, 432 (Fla. 1912) (a State may

transfer ownership in whole or in part of land beyond

the edge of a navigable channel to private interests,

“leaving full space for the requirements of commerce,”

but reserving to the private owners the right to make

whatever constructions on the property they desired

“and also the right to prevent encroachments of any

other person upon all such submerged lands...,...

and to have and maintain action of trespass in any

court of competent jurisdiction in the state, for inter-

ference with such property.”) (citation omitted);

Martin v. Waddell’s Lessee, 41 U.S. 367, 411, 16 Pet.

367, 10 L.Ed. 997 (1842) (following the American

Revolution, the States have sole authority over prop-

erty rights, including those related to aqueous prop-

erty, subject only to the rights surrendered by the

States through the Constitution to the federal gov-

ernment.); see also 33 U.S.C. 10.

Although the Equal Footing Doctrine guarantees

that the lands underlying navigable waterways when

a State entered the Union are to be held as “common

highways ... forever free ... ,” this doctrine pertain-

ing to navigable waterways “was never intended to

apply to streams only capable of an imperfect naviga-

tion in time of floods and very high water. Such

streams or dry bayous must be considered as under

the entire control of the State.” Boykin v. Shaffer, 13

La. Ann. 129, 1858 WL 5070, at 2 (La. 1858).

The Louisiana Supreme Court in Boykin held

that a private company could be authorized by the

State to construct locks and other improvements on a

bayou that was only occasionally navigable and held

that the private company’s restrictions on navigation

through its locks were authorized by Louisiana

law. The Boykin decision also found that the Equal

Footing Doctrine did not prohibit the privatization

of the bayou passage because the waterway was

non-navigable to start with, and thus the State had

the authority to alienate it in full or in part to private

persons. The Louisiana Supreme Court observed that

“Were the mere fact that a steamboat or flatboat had

been a short distance up a stream or bayou in high

water a sufficient ground for declaring it a navigable

stream, every slight depression of the soil on the

banks of the Mississippi would then become a navi-

gable stream and should be opened for the benefit of

rafts and boais, and the convenience of a few persons,

to the total destruction of the planting interests

on the banks of the river.” Jd. at 2. The Louisiana

Supreme Court rejected the notion that occasional

flooding of private, non-navigable property authorizes

the exercise of the sort of activities sought to be

pursued by the Petitioners on the Walker property.

The Equal Footing Doctrine calls for state, not

federal, regulation of fishery. This state regulation

does not offend the Commerce Clause or federal

admiralty or maritime jurisdiction. See Smith v.

Maryland, 59 U.S. 71, 74-75, 18 How. 71, 15 L.Ed.

269 (1855) (the seizure of a commercial oyster boat

for using dredging instruments in violation of state

law did not violate the federal constitution, recogniz-

ing that a State may regulate the enjoyment of cer-

tain public rights, among which is the right to fish).

The Petitioners misconstrue the holding of the

Fifth Circuit below. The Fifth Circuit did not address

or limit in anyway the use of the navigable Missis-

sippi River by anyone for any lawful purpose. To

assert that tugboat operators and the weekend angler

will now be subject to interrogation concerning their

use of the navigable waterways is absurd. This case

involved flooded, but non-navigable,° property that

is unquestioably owned by a private person. The

holding of the Fifth Circuit only applies to such

property in Louisiana. The law recognizes that the

* The Louisiana state courts, in a proceeding that lasted the

better part of a decade, determined that the Walker property,

even when flooded, is non-navigable. See Walker Lands, Inc.,

supra.

several States may treat similar property differently.

The U.S. Constitution does not mandate uniformity

in such state laws, except to the extent that such

state laws may improperly impede commercial navi-

gation.

Arguments made by the Amici group’ supporting

the Petitioners illuminate the dangerous extent of the

Petitioners’ sought-after usurpation of private prop-

erty rights. These Amici suggest that the private

property at issue should be available to all “for pur-

poses of fishing, hunting, bird-watching, canoeing and

kayaking, wildlife observation, and communing with

nature.” See Coalition Amici Brief, at page 5. This

proposition would allow anyone to traipse across

private property for any activity under the sun.

Private property rights of a landowner would have no

meaning. In addition, not only do the Petitioners and

their Amici want to go wherever the water goes,

apparently they expect to utilize any property “in

proximity to such waters ... ” See Coalition Amici

Brief, at page 6. If, as argued by the Petitioners and

their Amici, “several millions of individuals” may

intrude upon private property “for fishing, paddling,

nature observation, and countless other activities”

with no regard for the private owners’ rights, what’s a

property owner to do?

’ Identified as “A Coalition of Conservation, Wildlife,

Fishing, and Wetlands Organizations Led by Restore Our Water

Access, Inc.” (the “Coalition”).

* See Coalition Amici Brief, at pp. 7-9.

Far from “the greatest enclosure initiative ever

seen in relation to the waters of the United States,”

the decision below only confirmed what has long been

settled: a private landowner has the right to maintain

an action for trespass by uninvited and unwanted

persons. The Petitioners have an incalculable ex-

panse of existing public areas where they may pursue

whatever enjoyable pursuits they can envision (as

long as it does not interfere with navigation). They

are not losing anything with the Fifth Circuit’s deci-

sion. The Fifth Circuit merely confirmed that persons

without a claim to ownership may not ‘have free and

unabated access to private property under the cloak

of an illusory federal] “right to fish.”

The property rights asserted by the private land-

owner herein, on the other hand, are far more than

“illusory,” as characterized by the Coalition Amici.

The United States Constitution protects a citizen’s

property rights, as does the Louisiana Constitution.

Recognition of a federal right to fish would critically

impair these property rights. The Petitioners’ plea to

do so should be rejected.

* Id. at page 8.

'° Id. at page 23, n. 4.

Il. THE PRIVILEGES AND IMMUNITIES

CLAUSE DOES NOT PROTECT RECREA-

TIONAL FISHING ON FLOODED PRIVATE

PROPERTY

The Privileges and Immunities Clause of the

United States Constitution” ensures that the citizens

of any State in the Union shall enjoy the same rights

in other States as do the residents of those other

States.

It was undoubtedly the object of the clause in

question to place the citizens of each State

upon the same footing with citizens of other

States, so far as the advantages resulting

from citizenship in those States are con-

cerned. It relieves them from the disabilities

of alienage in other States; it inhibits dis-

criminating legislation against them by other

States; it gives them the right of free ingress

into other States, and egress from them; it

insures to them in other States the same

freedom possessed by the citizens of those

States in the acquisition and enjoyment of

property and in the pursuit of happiness;

and it secures to them in other States the

equal protection of their laws. It has been

justly said that no provision in the Constitu-

tion has tended so strongly to constitute the

'' See U.S. Const. art 14, sec. 1 (“No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States... ”).

citizens of the United States one people as

this.

Baldwin v. Fish and Game Commission of Montana,

436 U.S. 371, 380-381, 98 S.Ct. 1852, 1858-1859, 56

L.Ed.2d 354 (1978); quoting Paul v. Virginia, 8 Wall.

168, 180, 19 L.Ed. 357 (1869); see also Slaughter-

House Cases, 83 U.S. at 78-79 (the privileges and

immunities protected by the Constitution “are those

which belong to the citizens of the States as such, and

... they are left to the State Governments for secu-

rity and protection, and not by this article placed

under the special care of the federal government.”).

In Baldwin, this Court also noted that it has

rejected an interpretation that the Privileges and

Immunities Clause guarantees certain “natural

rights” in every State. Baldwin, 436 U.S. at 381-382,

98 S.Ct. at 1859. Instead, the settled interpretation is

that the Privileges and Immunities Clause guaran-

tees that “in any State every citizen of any other

State is to have the same privileges and immunities

which the citizens of that State enjoy. The section, in

effect, prevents a State from discriminating against

citizens against other States in favor of its own.” Id;

quoting Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct.

954, 962, 83 L.Ed. 1423 (1939).

The Baldwin case also confirms that the Privi-

leges and Immunities Clause is not concerned with

recreational activities such as hunting or fishing,

which are not among the “fundamental” rights or

activities protected by the Privileges and Immunities

Clause:

Equality in access to Montana elk is not ba-

sic to the maintenance or well-being of the

Union. Appellants do not — and cannot — con-

tend that they are deprived of a means of a

livelihood by the [licensing] system or of ac-

cess to any part of the State to which they

may seek to travel. We do not decide the full

range of activities that are sufficiently basic

to the 'ivelihood of the Nation that the States

may not interfere with a non-resident’s par-

ticipation therein without similarly interfer-

ing with a resident’s participation. Whatever

rights or activities may be “fundamental”

under the Privileges and Immunities Clause,

we are persuaded, and hold, that elk hunting

by nonresidents in Montana is not one of

them.

Baldwin, 436 U.S. at 388, 98 S.Ct. at 1863.

It is submitted that substitution of “fishing” for

“elk hunting” and “Louisiana” for “Montana” provides

sufficient reasoning for rejection of the Petitioners

claim for relief under the Privileges and Immunities

Clause.

Ili. LOUISIANA LAW PROVIDES THAT THE

OWNER OF FLOODED PRIVATE PROP-

ERTY MAY EXCLUDE TRESPASSERS

The Fifth Circuit determined that under Louisi-

ana law the Walker property is not burdened with a

public servitude that would allow unrestricted access

to the property for fishing, even while flooded by

water from the Mississippi River. This holding is

firmly rooted in established principles of Louisiana

law. Petitioners have now apparently abandoned

their arguments to the contrary in the courts below

by failing to brief the issue to this Court. °

Nevertheless, Respondent submits that the

discussion by the Fifth Circuit and the authorities

cited therein confirm that under Louisiana law

property between the ordinary high and the ordinary

low marks of a navigable river (the “bank”) are “pri-

vate things” subject to certain “public uses.” La. C.C.

art. 456." “According to well-settled Louisiana juris-

prudence, which continues to be relevant, the servi-

tude 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

'? Walker, the owner of the property at issue, has disputed

whether the property may be classified as the “bank” of the

River, and thus not subject to the limited bank servitude. As

shown, accepting Petitioners’ contention to the contrary as true,

however, does not result in their being allowed access to the

property. Therefore, the courts below did not decide the question

of whether the Waiker property was indeed the “bank” of the

River.

character of the stream and its enjoyment as an

avenue of commerce.” Jd., comment (b) (citations

omitted); see also Buckskin Hunting Club v. Bayard,

03-1428, 868 So.2d 266, 275-276 (La.App. Srd Cir.

3/3/2004); Walker Lands, 871 So.2d at 1268, footnote

6. Recreational fishing on the banks of the Missis-

sippi River is not a use incidental to navigation. See

Walker Lands, 871 So.2d at 1268 n. 6 (citations

omitted); see also, State v. Barras, 602 So.2d 301, 305

(La. App. 3rd Cir. 1992); and Edmiston v. Wood, 566

So.2d 673, 675-676 (La. App. 2nd Cir. 1990). The

Petitioners’ recreational activities are not protected

by the Louisiana navigational servitude.

The Petitioners’ “running waters” argument was

also properly rejected by the Fifth Circuit below.

Louisiana law provides that although “running

water” from a navigable river is a public thing and a

private landowner must allow the 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.

Louisiana law, therefore, does not support the

Petitioners’ claims for relief.

CONCLUSION

The decision below recognized that owners of

private property that is occasionally flooded by back-

waters of the Mississippi River may protect their

property rights against recreational fishermen that

intrude upon the private property during times of

high water. The decision did not carve out any “rec-

reational use exclusion” to the federal navigational

rights. None of the constitutional provisions or laws

cited by the Petitioners protect or even mention

fishing on flooded private property. None directly

addressed any fishing rights at all.

The Fifth Circuit’s decision below does not affect

federal navigation rights. The “navigation” contem-

plated and protected by federai law does not include

recreational fishing. The use of the Mississippi River

as a highway of commerce has nothing to do with

Petitioners’ claims and is untouched by the decision

below.

In addition, the prohibition against unwanted

trespass upon flooded private property recognized in

the decisions below has no effect on the recreational

use of navigable waterways of America. The private

property at issue, even when flooded, has been de-

termined to be non-navigable. That determination is

unchallenged here. This case is not an attack on

public access to navigable waters. This case is about a

landowner’s right to exclude trespassers who simply

want to fish on legally non-navigable flooded private

property. All of Petitioners’ epic effusion directed at a

single Sheriff in rural Louisiana cannot change this

simple fact.

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

FREEMAN R. MATTHEWS

CRAIG E. FROSCH

Counsel of Record

Usry, WEEKS & MATTHEWS

1615 Poydras Street, Suite 1250

New Orleans, LA 70112

Tel. (504) 592-4600

Counsel for East Carroll Parish

Sheriff Mark W. Shumate

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.