Parm v. Shumate, 2007 U.S. App. LEXIS 29948 (5th Cir. Dec. 28, 2007).

Update of La. Court Finds No Right to Fish, Hunt on River, WaterLog 26:3 (2006).

Terra Bowling, J.D.

In 2006, the United States District Court for the Western District of Louisiana held that there is no federal common law or state law right to fish and hunt on the Mississippi River when it inundates privately owned land. Recently, the Fifth Circuit Court of Appeals affirmed that decision.
      The case began when several fishermen were arrested for trespass after they refused to stop fishing on Gassoway Lake and adjacent small water bodies in East Carroll Parish Louisiana. The land under and surrounding the lake is owned by a limited liability company (LLC), Walker Lands, Inc. At one time, the lake was part of the Mississippi River, but it is now three and a half miles away. The fishermen were able to access the lake when the river was at its annual flood height.
      The fishermen brought suit against the sheriff in federal district court, seeking damages for false arrest under 42 U.S.C. A7 1983 and an injunction prohibiting further arrests for fishing until a judgment was reached. The district court considered the fundamental question: whether the plaintiffs had the federal or state right to navigate, fish, and hunt the Mississippi River at its normal heights. The federal navigational servitude under the Commerce Clause of the U.S. Constitution gives the federal government a “dominant servitude” over the navigable waters of the United States. The court held that neither the federal navigational servitude nor other federal statutes gave the plaintiffs a right to hunt and fish on the lake. The court also held that state law did not give the fishermen the right, noting a comment to the Louisiana Civil Code providing that the right of navigation is merely for purposes “incidental to the navigable character of the stream and its enjoyment as an avenue of commerce.”1
   On appeal, the Fifth Circuit examined whether the fishermen had either a federal or state right to fish on the LLC’s property in the spring during the Mississippi River’s normal flood stage. The court affirmed that the federal navigational servitude did not create a right to fish on privately owned land. The court further noted that the state of Louisiana had title to all lands below navigable waters in its boundaries and therefore had the exclusive right to regulate those public trust lands.
      The fishermen argued that both the state constitution and code created the right to fish on the land when it is submerged. The court disagreed, citing a portion of the constitution providing that “[n]othing contained herein should be construed to authorize the use of private property to hunt, fish, or trap without the consent of the owner of the property.”2 The fishermen next cited a section of the code which provides that everyone has the right to fish in the state’s rivers.3 The court also rejected this argument, noting the comment cited by the lower court explaining that the right is merely for purposes “incidental to the navigable character of the stream and its enjoyment as an avenue of commerce.”4 Finally, the fishermen argued that Louisiana law created a right to fish on the property when it was submerged on the basis that running waters were public things owned by the Louisiana under La. Civ. Code Ann. art. 456. The Fifth Circuit disagreed, noting that al­ though an owner must permit running waters to pass through the estate, the landowner is not required to allow public access to the waterway. For those reasons, the Fifth Circuit affirmed the district court’s judgment.

Endnotes
1.  La. Civ. Code Ann. art. 452. cmt. b.
2.  La. Const. art. I, A727.
3.  La. Civ. Code Ann. art. 452.
4.  Id. art. 452. cmt. b.