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Member
Posts: 2680
Location: Essexville, MI./Saginaw Bay. | U.S. DISTRICT JUDGE DECLARES RECREATIONAL BOATING AND FISHING ILLEGAL ON MISSISSIPPI RIVER AND AMERICA’S OTHER NAVIGABLE WATERS
In the case of Normal Parm, et al v. Sheriff Mark Shumate, of East Carroll Parish, (Civil No.3:01-CV2624; United States District Court; Western District of Louisiana, Monroe Division) United States District Judge Robert G. James has declared it to be criminal trespassing for the public to boat, fish or hunt on the Mississippi River and other navigable waters of America, affirming the arrest of fishermen and boaters utilizing the waters of the Mississippi River. This ruling declares recreational boating, fishing tournament, waterfowl hunting, and pleasure boating illegal on navigable rivers, unless conducted within the main channel of the river, or with the permission of all riparian landowners along the navigable river.
District Court Judge James’s ruling under federal law grants to the riparian landowners of the Mississippi River, the exclusive and private control over the waters of the Mississippi River, outside of the main channel of the Mississippi River. The shallows of navigable waterways are no longer open to the public. This decision, based in federal law, equally applies to all other navigable waterways of America. For bass fishermen and duck hunters, and other fishermen and hunters that use the ever changing shallow waters of navigable rivers for their outdoor activities has been declared illegal. District Judge James affirmed that the public is subject to criminal arrest for trespassing on the riparian landowner’s privately owned and controlled water if they venture outside the main channel of a navigable waterway.
On April 30, 2006, Magistrate Judge James D. Kirk (Document 80) found that the American public had the right under federal law and Louisiana law, to navigate, boat, fish and hunt on the waters of the Mississippi River, across the entire surface of the Mississippi River, up to the normal high water of the river. Judge Kirk relied upon the long established federal principles of navigation that recognized that the public’s federal navigational rights ". . . 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 with others also enjoying the right possessed in common." Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir., 1931). Further, Magistrate Kirk affirmed the public’s fundamental right to boat and fish on the navigable waters of Louisiana for both recreational and commercial purposes affirming the Civil Code’s declaration that " Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, . . . ." (Louisiana Civil Code, Article 452), and the Louisiana Constitution declaration that "[t]he 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 preserved for the people." (Louisiana Constitution, Article 1, Section 27).
On August 29, 2006, District Judge Robert G. James, United States District Court, sitting in Monroe, Louisiana rejected the findings of Magistrate Judge Kirk, and declared that the American Public has no federal or state right to fish or hunt on the Mississippi River, or any other navigable waterway in America (Document 139).
U.S. District Judge James specifically declared that neither century old statutes enacted as each State joined the Union, nor federal common law of public use, create a right of the public to use the navigable waters of America for recreation, fishing or boating, unless the activity is done as a commercial enterprise, and limited to the main channel of the river. Judge James has declared that the public’s only right to use the navigable waters of America are limited to commercial activities, and specifically DOES NOT INCLUDE the right of the public to boat, fish and recreate on the rivers of America.
Judge James rejected the argument made by the Plaintiffs that the multi-billion dollar commercial activities that support the manufacturing and sale of personal and recreational water craft and related equipment, and the public recreational uses of the navigable waters, were sufficiently "commercial" to be allowed on America’s navigable waters. If the judgment of District Judge James is affirmed, the exclusion of the recreational boater, fisherman and hunter threatens the financial viability of the entire segment of the American economy that supports recreational use of public waters. Finally, Judge James declared that the people boating, hunting or fishing on the waters of the Mississippi River, at normal heights, are subject to arrest for trespass, unless the activity is limited to the narrow, main channel of the river. The following are quotes from the opinion of Judge Robert James, Western District of Louisiana:
CONCLUSION NO. 1: AMERICAN PUBLIC HAS NO FEDERAL LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.
District Court Judge Robert James declared that the People of America do not have the right under federal law, holding that " . . . the federal navigational servitude do[es] not provide the Plaintiffs with the right to fish and hunt on the Mississippi River."
District Judge James declared that the People of America do not ". . . have a right to fish and hunt on the Mississippi River up to the ordinary high water mark when it [the Mississippi River] periodically floods . . ." the riparian land.
CONCLUSION NO. 2: AMERICAN PUBLIC HAS NO STATE LAW RIGHT TO FISH OR HUNT ON MISSISSIPPI RIVER OR OTHER NAVIGABLE WATERS OF AMERICA.
District Judge James declared that under State law ". . . fishing and hunting [on the waters of the Mississippi River and other navigable waterways] is not included in these rights" that are granted on rivers of America as they naturally rise and fall.
CONCLUSION NO. 3: ANY PERSON WHO FISHES OR HUNTS ON THE WATERS OF THE MISSISSIPPI RIVER, OUTSIDE THE MAIN CHANNEL, IS SUBJECT TO ARREST FOR TRESPASSING ON THE WATER.
District Judge James declared that if you are fishing on the Mississippi River anywhere other than the main channel, ". . . the Sheriff . . . has probable cause to arrest you for trespassing." | |
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| Sounds like Judge James hasn't gotton his weekly bribe from the local sportmans club of East Carroll Parish.
Thats it, Judge James is off my Christmas List!
He better go down and check that still he has been sippin the gator juice from.
How does someone like Judge James get a job like that anyways?! | |
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Member
Posts: 1314
Location: Menasha, WI | I just read the actual ruling and it is not nearly as broad as misrepresented by the article. Judge James' decision is a close reading of LOUISIANA state statutes for use of navigable water which DO NOT explicitly identify fishing and hunting as legitimate uses of those waters. This ruling is not applicable to other states where state law is different. In Wisconsin and Minnesota fishing, hunting are protected by the the stae's Constitutions and thus, this ruling wouldn't apply here. A simple clarification of Louisiana Statute would easily remedy this situation.
James did reaffirm the federal right to use the waters for "legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as carrying persons or property for hire" based upon Silver Springs Paradise Co. v. Ray, 50 F.2d 356 (5th Cir. 1931). The original judge, Kirk, had interpreted the Silver Springs case to support a federal right to hunt and fish where it was not explcitly enumerated in the case cited.
P.S. I can post the actual decison if requested or will e-mail it upon request.
Edited by Viking 9/22/2006 8:33 AM
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Location: Rhinelander | Sure, post it, I'm interested in seeing what was decided and where it's likely to go from here. As you said, we have State protection in our area for our sports use of the waters of the Mississippi, which is a good thing. | |
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Member
Posts: 1314
Location: Menasha, WI | Here it is. For brevity, I've edited out some of the material identifying the many parties involved. Other than that this is the ruling in its entirety.
NORMAL PARM, JR., ET AL VERSUS MARK W. SHUMATE
CIVIL ACTION NO. 01-2624
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, MONROE DIVISION
August 29, 2006, Decided
August 29, 2006, Filed
OPINION:
RULING
Pending before the Court are a motion for partial summary judgment [Doc. No.
5] filed by the Plaintiffs n1 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] [*3] recommending that the Plaintiffs' motion for
partial summary judgment be granted in part and denied in part. Magistrate Judge
Kirk also recommended that Sheriff Shumate's cross-motion for summary judgment be denied. n2
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 Walker 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 [*4] amicus curiae brief [Doc. No. 116] was filed by
numerous fishing organizations in support of the Plaintiffs' objections to the
report. n3
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
[*5] Recommendation.
I. FACTS AND PROCEDURAL HISTORY n4
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 covered Walker Cottonwood
Farms' n5 property during periodic flooding. n6
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 [*7] water that connects with the Mississippi River.
The State of Louisiana ("the State") was added as an indispensable party. The
State answered, claiming ownership or, alternatively, a servitude on the
disputed lands. n7 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. n8 Id. at 1262. In addition, the
court found that Gassoway Lake and surrounding property "only receives water
when the Mississippi [*8] River floods, which causes water to run through the
ditch and eventually [spill] over into the lake." Id.
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 Mississippi River, the property remains "completely dry for most of
the year, making it unusable," and the property serves no useful commercial
purpose. Id. 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." Id. at 1262. n9
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 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 that 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 on the Mississippi [*10] River between the ordinary high and low water
mark regardless of the status of the ownership of the property located below the
waters. n10
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].
Applying [*11] 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.
II. 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 Report 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 [*12] 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 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 [*13] 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.
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 with others also enjoying the right possessed in common." Id. at 359.
The Court disagrees [*14] 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 River, when those waters periodically
flood privately owned lands.
B. State Law Right
In Louisiana, "[t]he banks of navigable rivers or 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 [*15] 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 rights.
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 [*16] 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, 868 So.2d 266, 273 03-1428 (La. App. 3 Cir.
3/3/04) (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 the stream and its enjoyment as an avenue of
commerce).
Therefore, this Court [*17] 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, 105
S. Ct. 1694, 85 L. Ed. 2d 1 (1985); see also La. Code Crim. Proc. art. 213. n11
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, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979).
Louisiana courts have explained probable cause as the following:
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 [*19] 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 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.
III. 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 [*20] 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.
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
[*21] 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.
ROBERT G. JAMES
UNITED STATES DISTRICT JUDGE
Footnotes:
n1 The Plaintiffs in this matter include Normal Parm, Jr., Harold Eugene
Watts, Roy Michael Gammill, William T. Rogers, and Robert Allen Balch.
n2 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.
n3 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 Rats Bassmasters of Minnesota, Mississippi Bass Federation
Nation, Western Main Anglers, Yankee Bassers Bass Club of Maine, and the
Pennsylvania Bass Federation, Inc.
n4 Magistrate Judge Kirk has already succinctly characterized 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.
n5 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. [*6]
n6 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).
n7 The East Carroll Parish Police Jury was later dismissed from the lawsuit.
n8 Magistrate Judge Kirk noted that Gassoway Lake's normal elevation is
approximately 95 feet. [Doc. No. 82, p. 7].
n9 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 rehearing 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).
n10 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.
n11 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).
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Stay Off the Mississippi?