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greg1
Junior Member
USA
98 Posts |
 Posted - 08/05/2003 : 12:43:20 PM
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I've hunted public land in the past and had a guy come through my decoys because he thought I set up too close to his spot. Even though on that particular day I got to my blind before he got to his. Well,as he motored through my decoys a flock came in and cupped. I shot down two of the birds and sent my dog to retrieve them. When I got back to the launch he had rounded up his whole family of mullets and attempted to muscle me. Well it worked, because I'll never hunt public land again. My point though, is a shot in the air is not necessarily a shot at you. A little pepper never hurt anybody.
P.S. This whole post is like this whole topic -its BS. Watch your wake and for godsake don't shoot at fellow outdoorsman.
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2106 Posts |
Posted - 08/05/2003 : 1:24:10 PM
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I go back to what my dad taught us when we were youngsters: Don't ever point a gun, even if not loaded, at anything unless you wanna kill it. I know of several people whose lives have been wrecked because of unsafe gunplay and accidents. I bet m*********c remembers the Judge's son in Houma who took a 12 gauge to the chest at point blank range at age 12 or so. Blew a big hole clean through the right side of his chest and out his back. They called him the "miracle kid". Him and 2 neighborhood friends were playing "chase" with an "unloaded" shotgun. He ran around the corner, right in front of the girl with the gun. She raised it up at him, said "bang you're dead" and pulled the trigger. 2 inches to his left, and he woulda been.
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/05/2003 : 1:34:47 PM
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Mike said I had to move my response here. Cool with me except that I'm less likely to get a response from "Ashamed". That's too bad. I'm spoiling for a good fight. I quit smoking yesterday after about 30 years and I wanna rip someone's face off. GRRRRRRRRRRRRRRRR!!!!!!
Cappiecu,
Sorry… You may be making a good point. Are you referring to parish ordinances? I'm only familiar with state and federal law. Do you know which parishes and how is a citizen supposed to know? I've heard of such ordinances and even called a Sheriff's office or two several years ago trying to learn about them but they didn't seem to know either.
Back to the main event: *ding ding ding*
Posted by "Ashamed"
I am completely ashamed of what happened. However, I wasn't there, so maybe there is another side. I don't know. But really, SHOOTING at the guy, come on!!! What did that accomplish? Now instead of good things, all we are going to hear about is how Klien could have won if he hadn't been shot at like he was in Iraq or something. All I can say is that LA earns it's poor reputation b/c MORONS like this yahoo SHOOT at people. If the cops don't find this guy and prosecute to the FULLEST extent of the law, I'm more ashamed. Furthermore, there needs to be a public apology issued to BASS and specifically Gary Klien for the irrational behavior of one of LA's fine residents. All this, as if people running BASS pros out of ponds and almost running them over in airboats wasn't enough. I AM ASHAMED!
As far as everyone trying to make legal conclusions as to whether the water was private or not. I am graduating law school and work for a law firm and none of you, not even KG got it totally right. If it is a "naturally navigable" body of water it is public, he was right on that. However, whether it is straight or not has nothing to do with it. Now, the trouble is how do you define a "naturally navigable" body of water? To make that determination you have to go all the way back to before LA was a state. I think 1825 is the magic date. Now, KG was right when he said if the waterway was on private land and "NON-navigable" it was private. ex. You buy a piece of marsh land and there is a little bayou, only navigable at high tide, that runs smack in the middle of your land. Well it doesn't fit the criteria of "naturally navigable" therefore you own it. Now, if you own land on both sides of chef pass you CAN NOT tell people they can't pass through "your" property b/c you think you own Chef Pass. And why not? Thats right its a " naturally navigable" waterway. Another example is if a "non-navigable" body of water is a boundary mark for a piece of property, each owner owns to the middle of the waterway. So...technically you could fish on side and not the other. The point is it is all very complicated and just a little different here than other places. I'm sure the Bass guys didn't sit down to two days of going over the LA civil code to brush up on navigable waterways and admiralty law.
The real point is that whoever ran them off was being an @$$hole and selfish. Does it really matter if one of these guys fish in "your" water? If I know the guys that are running them off they are the same people who catch 200 specks a day between 2 people, or shoot 50 ducks and hide them in the floors of thier boats. The BASS guys are trying to fish and yeah there is alot of money at stake. As a matter of fact this is thier JOB. How would any of you feel if you got shot at while doing your job? And I'll bet nobody would argue that if a million dollars (the value of winning the classic) is on the line that they wouldn't do whatever it took to win, and might be just a little upset if Jethro the camp redneck fired one off at you. Or Jimbo the airboat moron ran you off his prized marsh land "jus cuz" its "his" and he can.
Finally, I would like to say that in all my years in LA I have never been treated like that. All the sportsmen I have ever met or dealt with have been overly kind and gracious. I just wonder why when important things happen its the local JACK@$$ thats makes headlines! All of you claiming that this guy was justified need to revaluate your values. I hope that I never have to deal with people like this guy or his cohorts, who take up for him. I just pray that BASS overlooks this incident and comes back.
Tuesday, August 5, 2003 @ 9:12:21 AM
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Posted by Wanna in response to Ashamed,
Sorry but I refused to feel like we as a state should be embarrassed about one man;s actions. Rumor Control indicates he was promptly arrested so I am not ashamed. Also, there's a huge difference between shooting AT someone and shooting to scare them. I'm not defending the this guy, just tellin it like it is.
You might want to research your understanding of navigability law also. A great reference that includes Supreme Court decisions, which supersede any state law, can be found if you search for "National Rivers Law". Here's some of what can be learned there:
Navigability is pretty easily defined in most instances. The courts have consistently ruled that rivers that are physically navigable are "navigable" for purposes of state ownership ("state title"). On all such rivers (bayous, etc…), in any state, the riverbed and banks, up to the ordinary high water mark, are state land, held in trust for the public for navigation, fishing, and other non-destructive visits.
Landowners often point out that their property deed, which is a legal document, makes no mention of the river running through their property being state land. The courts have repeatedly ruled that this makes no difference--a deed can only convey things that were owned by the seller, and if the river was navigable, the seller didn't own it. It was public property all along, since the beginnings of our country and our legal system. Consequently, a navigability claim or finding is not a "taking" of private property--the river and the land along it were public all along.
The bottom line is that you do have a legal right, under one or more of the above, to visit virtually any river or bayou that can be accessed in a canoe, pirogue, kayak, or raft. You also have a legal right to require government agencies to protect the navigability and public enjoyment of rivers.
Now, as to the privately owned canals… It's much like you said… If I dig a canal through my property it is MY canal and I can limit or deny access to the public. You left out one part. For me to deny access I have to do one of two things. I have to legally post the property or I can tell a specific person that he isn't welcome there and he must leave. If a property owner or his authorized representative tell you to leave the law requires that you obey.
There are lots of places in La. that are either improperly posted or are illegally posted. Chances are that the local deputy is going to side with the landowner if there's a dispute. You may win in court but it may cost several days taking off of work, attorney fees etc… There's a guy in the Basin who was arrested while crawfishing from his boat on "Posted" land several years ago while the waters were high but within normal annual ranges. He was arrested and brought his case all the way to the Supreme Court. He won but at what cost. I think it took like 6-10 years to get the case all the way through.
Stay safe & have a good un'
Tuesday, August 5, 2003 @ 10:12:31 AM
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Posted by Ashamed in response to wanna
Please don't try to lecture me on the law. I was merely trying to give everyone a basic understanding of how this stuff works. Now with that said, if YOU want a good reference see the LA civil code, it has authority. I would venture to say yours doesn't. However, some of what you said is true and some not. Unfortunatley the stuff you were wrong on I wish you were right about. On the other hand, nothing I said was wrong (KG clarified that the straight thing was a rule of thumb, so he was pretty on the mark himself). Like I said, its very complicated, and if you want a full and complete rendition of the law I hope you have a few months/years. There is no clear cut answers as far as the law goes. Oh yeah, just b/c you have a supreme court ruling on some navagibility case it doesn't apply to every navigability case everywhere (see the "ebb and flow" case out of MS). But like you said that is not really the issue. There were no property or waterway issues at hand in the shooting incident and the posting laws have already been established on this site by others.
Nor is the issue whether he shot AT or OVER the guy. I can't believe that people (you) would acutally try to justify this guy by such a ridiculous distintction. He SHOT AT THE BASS ANGLER. If it was in his vicinty it was at him, maybe the guy didn't have a bead on him, but he shot at him! Thats like justifying an attmepted murder charge by claiming the guy just missed. COME ON! And if you're not ashamed of the discussions about LA and it residents in general that are inevitably going to be had b/c of this idiot, maybe you should think long and hard about what those discussions will entail and how they refelect on the state AS A WHOLE.
Tuesday, August 5, 2003 @ 11:12:18 AM
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Posted by Wanna in response to Ashamed,
That wasn't a lecture. It was an attempt to educate. Which part of what I posted was wrong? Cappiecu pointed out the possibility of Parish Ordinances which I admit I had not considered. Anything else?
I've worked directly with these issues for about twenty years now so I may have a clue about what I'm trying to explain. I do make mistakes occasionally and if I made one please show me so that I don't repeat it. You're correct when you say that the website I tried to point you in the direction of is not law. Mike doesn't let us put the actual website addresses in the Reports Section but I think he allows it here. Here it is again if you really want to find a place that has the issue well researched, complete with links to the U.S. Supreme Court's website where decisions are written out in great detail. http://www.nationalrivers.org/us-law-menu.htm
FYI, I have quite a collection of up to date Civil Code and Criminal Code books right here on the shelf. What I don't have is available online. Suffice to say that I'm familiar with West's work.
As I said before, Supreme Court decisions supersede state laws. That's how laws are overturned. (Case in point - the recent thing with the sodomy law in Texas(?). Much to the relief of liberal lawyers all over the country the sodomy law WAS overturned by The U. S. Supreme Court). That sucks. (get it?)
One Supreme Court ruling does apply to any case of similar facts and circumstances unless some mitigating factors call for a different ruling. As far as this particular case is concerned, you're right… trespassing and water rights aren't the issue. I think that question was originally raised because of seperate incidents during the Classic that involved airboats. I lack enough info to render a decision here in the Sportsman's & People's Court of Lousiana.
I made no attempt to justify the shooter's actions by pointing the difference between two simple words like "at" and "over". Here's your lecture for the day… I refer specifically to La. R. S. 14: 37.4 Aggravated assault with a firearm as opposed to La. R. S. 14:30.1 Attempted Second Degree Murder ("Attempts" are defined in R.S. 14: 27). Aggravated assault does not require intent but the "vicitim's perception of the alleged threat can be a pivotal factor. Conversely, Attempted Second Degree Murder DOES require intent. That's a HUGE difference Mr. Law Student. It seems very clear to me from the testimony offered here in this Sportsman's & People's Court of Louisiana that the offender lacked intent. This is overwhelmingly evident from repeated testimony that he appeared to intentionally shoot OVER in lieu of shooting AT the victim of the ASSAULT. I just like to have things accurate. There is a huge difference. I hope you learn to distinguish between "intent" and "perception" before you ever actually enter a practice. I pray you learn the difference before ever working for a D.A.'s office. Your lack of distinction could cost the state millions in law suits.
As far as being "ashamed"… not me. One numbnuts who cuts up is not and never will be a reflection of my state and the over 4 million people who live here. EWE came close to making me feel ashamed but one doinker in the marsh can't. Why stop with Louisiana? By your reckoning the entire nation should be ashamed because one dumbass did something stupid. After all he is (I assume) a citizen of the USA. Taken in the other direction, maybe only the citizens of Venice or Plaquemines Parish should be ashamed. I can feel shame for things I have done and maybe things my children have done but damned if I feel shame for the actions of others. I guess I don't suffer from responsibility absorption behavior. If you want to please feel free. I'm not telling you how to feel. I'm telling you how I refuse to feel. BTW… we better quit talking about feelings or everyone will think were getting feminine.
Meanwhile, even negative press can have positive results. This may lead to pressure on these airboatheads I've been hearing about. If you can get them talking about you they'll remember you more. We could try to put a positive spin on it by bragging about how professionally the situation was dealt with and how justice will be served to protect our valued visitors and fishermen.
Anybody gotta a Prozac? Cig?
See y'all later... gotta go find something to kill.
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Posted - 08/05/2003 : 2:01:35 PM
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whooooooooooo amen, wanna.....Mike fragged my last post too, I was trying to help herd this off the fishing posts....
The only thing that gets me when someone who has a bit of knowledge tries to make himself "the expert" of the situation as Ashamed has done...
Geez Ashamed, not to knock ya but others have some knowedge too, dude.
I think I've made my point in the back room, educate the people and penalize those who don't learn.
"See the Marsh, Smell the Marsh, Feel the Marsh, BE the Marsh" |
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Posted - 08/05/2003 : 3:15:26 PM
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To Marsh Maniac:
I am well aware that others have knowledge, I wasn't trying to take that away from anyone. I am also no self procalimed expert on the topic, if there is one, let him speak up. However wanna was wrong in what he wrote. Informing people is one thing, misinforming to make yourself look good is another. Now, why you directed that to me and not wanna makes me wonder a little. As I was the first to post, and was very general and CORRECT in all I said. I posted to merely give an accurate overview of the issues at hand to all who didn't know. I took aim at nobody and was very polite in what I wrote to KG, who was obviously knowledegable on the issue. As are others who posted about the duty to post/not post Posted/Trespassing signs, and the no wake stuff. If someone posted a response to your post that tuna are saltwater fish and they said, actually they are fresh water fish. Wouldn't you reply. That doesn't make you or me experts, I just don't like people who obviously don't know what they are taking about correcting me. What exactly do think Wanna wants me to brush up on. Take the legal part of my first post to any lawyer, professor, etc and I can assure you they will not disagree. Was it a shallow explanation, yeah. It was shallow so it could be easy to understand. But how much do ya'll want to hear about the intricate issues of LA law? I figured not much.
To wanna:
You'll get one other response from me and then I have better things to do! I had already written my response, but apparenlty there was some problem with my registration and the reply was lost...I guess you'll just have to wait. Maybe in the mean time you can consult your multitude of books and correct yourself before I do. Hint: see U.S. Supreme Court Jusrisdiction, your statment that you can go anywhere your boat/dingy/canoe can take you, etc. Also don't call me Mr. Law Student as if your that much better, Mr. Wanna Be. And please for the sake of your credibilty no more references to Idiot's Guide to Rivers, Lakes and Streams. Go lite one up, swallow your pride, and chill out.
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/05/2003 : 3:24:12 PM
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You teaser... hurry up.
What? No concession about the difference between shooting "at" someone and shooting over their heads? C'mon... be a man.
Watch, I'll show you how it's done.
Dear Ashamed,
I apologize. I must confess that I misread a small part of your original post. In the paragraph where you discussed a man-made canal that had two different people owning property on opposite banks I failed to catch the part about it being a canal. The error is mine and I accept full responsibility for it. After reading it a third time I find it to be more accurate than I first believed.
To be perfectly clear concerning your other assertions, claims, feelings, or whatever... I still do not feel ashamed because of any action by one citizen. Also I stand by my comments with regard to an assault vs. an attempted murder. Please also note prior to resonding that my comment about paddling where I want to is confined to rivers, bayous etc... I did not mention private canals. If you can find a river or bayou where I am not allowed to paddle because of a citizen I'd be interested to hear about it. I do realize that Uncle Sam could restrict entrance in some instances.
Let's hear it. My head is on the block. Please swing cleanly.
Edited by - wanna on 08/05/2003 15:45:07 |
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Posted - 08/05/2003 : 4:10:55 PM
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I guess ya'll know I can't stay out of this, but my prose is not up to par with wanna and ashamed, and I use my real name here.
A canal, by definition, is a man-made waterway.
A bayou, is a naturally occuring waterway. A navigable waterway is defined as having been naturally navigable when the U.S. Geological Survey mapped the United States in the 1820's.
Now, where the controversy comes in, is all the canals that were dug for the oil companies and marshland erosion.
Example: when you cross the bridge over bayou lafourche, on the way to Grande Isle, all that open water was marshland when I was a kid. Now it's open water. Is it public, or does it belong to the person or company whose land disappeared?
Throw in a bunch of lawyers, and you have a clusterf***!!!! So that's where we are now. Tough call, but what about the poor sap whose land is gone?
Now, chew on that
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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Posted - 08/05/2003 : 6:38:36 PM
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Your long awaited and final response:
Thank you for your concession. If you would have read the second part closer you would again have found that you misinterpreted what I wrote. Allow me to qoute:
"I can't believe that people (you) would acutally try to justify this guy by such a ridiculous distintction. He SHOT AT THE BASS ANGLER. If it was in his vicinty it was at him, maybe the guy didn't have a bead on him, but he shot at him! Thats like justifying an attmepted murder charge by claiming the guy just missed. COME ON!"
I didn't say he should be charged with attempted murder. I made a point that your distinction was as ridiculous as someone saying that thier defense to attempted murder was that they merely missed, i.e. just shot in the vicinty. I am well aware of mental state requirements and made attempt to make a legal argument or conclusion. If you interpreted my paragraph that way I apologize. I don't think anyone else did. Besides, whether its assault with a deadly weapon, or reckless endangerment, or whatever will be contingent on the testimony of Klien, the video, the testimony of the ESPN guy, and probably several other factors. If you think your citations to the LA code impressed me or anyone, I believe your wrong. You know misinterpreting things can lead to one hell of a malpractice suit! You could cost yourself MILLIONS.
As far as people going places on rivers and bayous, if you mean waterways that are technically classified as "naturally navigable", well yeah, see my original post. However just because something is labeled a "river" or "bayou" doesn't make it navigable. Navigability is decided using several factors, including the status of the waterway when the property was first transferred by the sovereign state (navigable or non-navigable), its use in the regular activties associated with navigation, and others. Additionally, river, bayou, and WHATEVER banks are not available for use for fishing. Nor are levees (hunting either). I believe instead of citing the article you can just find it yourself. But heres a hint, in the annotations it says that the banks or rivers, streams, WHATEVER are availble for uses that are incidental to navigation. Included in this def. was the drying of nets (obviously written a long time ago). People tried to fit fishing in this def, alas to no avail.
As far as the supreme court BS. Considering you 20 plus years of experience I would have thought you would know the basic rules of jurisdiction. The U.S. Supreme court does NOT have jurisdiction over state regulated activities, i.e. navigability, property, etc. You obviously did not use your extensive legal library to look up the "ebb and flow" case. This was a decision by the U.S. Supreme Court relating to the definition of the "arm of the sea". (LA oddly includes Lake pontchartrain in this def., but I'm sure you knew that). It stated that anything subject to the ebb and flow of the tide is considered an arm of the sea. La specifically passed legislation stating its refusal to adhere to this definition. And do you know why they could do this WANNA? Because it was a state regulated area and the U.S. Supreme court can't review state regulated issues unless there is a superceding Federal issue or federal question (Constitutional, etc). The highest court you are going to get to in this state concerning a state regulated area of the law is the LA Supreme Court. Why is the U.S. Supreme court rulings not applicable in this case, b/c its state regulated, so any decision that the court handed down that is cited in your little book are underlying issues of a Federal cause of action.
I hope this enlightens you and PLEASE read carefully as your smoking may have caused brain damage and eye problems.
Lastly, I think we both agree that whatever the technical law is, the BASS guy should not have been run off. I don't care where he was fishing that was just ridiculous. He and all of us deserve to utilize the natural resources of our state, unfortunately others don't agree.
To Wil:
You are right those guys who lost land to erosion got screwed. You are also right on that navigability is determined by surveys from long ago, although I think the date was 1825, but it may have been 1820. However, with erosion, accretion, and rivers jumping thier bank the navigability of waterways can change over time. I also know the answer to your question about what happens to the people who lose land to erosion, etc; but since others don't care to hear what I have to say, I will email you personally and let you know what the deal is with that. On the other hand maybe Mr. Wanna Be a Lawyer can enlighten all of us on the principles of Dereliction. (Wanna its in the first volume of the code).
I'm through with this BS the rest of you can argue till your heart is content
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pooldoo
New Member
11 Posts |
Posted - 08/05/2003 : 9:55:20 PM
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Alright, I don't post very often, just like reading everything to pass the time. On the lousiana sportsman page, Klien is quoted as saying that the guy (please excuse me if I don't quote exactly)drew a bead on the boat, followed the boat, and then pulled up and shot. Now, how much he pulled up, etc. is a fact based question best decided on when all of the facts are presented. The article also quotes the sheriff as stating that this area is NOT a no wake zone, and that he sees no reason why it should be. It also states that he is being charged with aggravated assault charges.
For everyone supporting this guy, since when has damage to personal property warranted that life threatening force be used? I hope you have a deep pocket book and good insurance if you believe this to be true. As I am sure Ashamed will let you know, there is alot of jurisprudence in the Torts area that makes this abundantly clear...just red Prosser or any of the other treatises. Now if you support this guy, what you are teling me, is if someone is in a car wreck, we should applaud the road-rager who gets out of the car and shoots at the other driver because the other driver was speeding and did damage to his car? Would you also feel the same if your child, wife, (insert family memeber/loved one) was speeding down a subdivision street, and a man who is tired of speeders doing damage to his property runs onto his porch and shoots at the car? C'mon you have got to be kidding me!!
Ashamed, your knowledge of the law is pretty good. Evidently Louisiana Civil Property in law school educated you well in the area, as I am sure your clerking experience has also. BUT, I don't me to call you out on this one...didn't you say you were graduating school, and thus, a LAW STUDENT.... Doesn't that also make you a "wannabe lawyer". Until someone has that bar roll number, that is what they are...
Please keep in mind Ashamed, as you begin your legal career, you will find that there are others out there that may not even be attorneys that know the area of the law very well because it is what they do daily. I will take a good paralegal over a great attorney any day of the week.
Anyway, didn't mean to step on anyone's toes, just my 2-cents. Please discuss on so that I will have something to read at work tomorrow.
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/05/2003 : 10:39:31 PM
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You crack me the hell up. Allow me to nit-pick your paragraphs to death. I love making hamburger out of steak. As your quote obviously states you say you'd have a hard time believing I was justifying this guys actions. My point, which is not on top of my head, is that I NEVER tried to "justify" any of his actions. I did draw a distinction between shooting AT someone and shooting over his head. It has NOTHING to do with an attempted murder where the bad guy was simply a bad shot. Every statement that I've seen in the press from the people who were there, including Klein, says the guy shot OVER them. Once again… BIG difference. HUGE difference. Further, my well-educated friend, the warrant currently being held by the PPSO in this case is for… guess what… Aggravated Assault. I guess the dumb DA down there isn't as smart as you.
Do me a favor will you? Please locate the statute on reckless endangerment pertaining to firearms in Louisiana for me. What? You can't? What? It doesn't exist? Oh, I see. Watching too much Law and Order again? You MUST do better or I'm going to start believing that you're carrying a 'C' average at a certain university that nearly lost it's law school accreditation a few years ago. Seen Mike around lately? Also, for the third(?) time now… Louisiana was admitted to the Union in 1812! April 30th to be exact. Sheesh!
The Supreme Court doesn't have jurisdiction over navigability? So, what you're telling me is that the hundreds of cases that the Supreme court has heard in it’s history regarding navigability were heard without proper venue? Are you also telling me that our esteemed legislators have out foxed the foxes and stolen the key to the hen house? You must be correct. After all, we ALL know that no state legislature has ever passed a law that was later determined to be unconstitutional. Right? Sheesh! Again!
Sorry pal. You are SO wrong. Access and navigability are originally granted to the public through federal law and precedent. The states simply hold the waters "in trust" for the public. To make this really simple for you… The public OWNS them. The states MANAGES them. The Feds settle the diputes and help with management. I dare say that the Supreme Court is THE final word on these matters. My 20+ years that you scoff so easily at have shown me time after time that state legislatures pass laws with regularity that don't stand the test of time and the US Supreme Court. Many of these unconstitutional laws stand for a long time because we little citizens don't have the means or stick-to-it-tiveness to fight it all the way.
In Martin v. Waddell, the U.S. Supreme Court held that in America, as in England, the public has a “liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary.” (Fishing place.) In subsequent cases, the U.S. Supreme Court held that states hold surface waters “in trust” for the people, so that the people will have “liberty of fishing therein freed from the obstruction or interference's of private parties.” It held that a state cannot “abdicate its trust over property in which the whole people are interested,” and that rivers “shall not be disposed of piecemeal to individuals as private property.” These principles are now known as the Public Trust Doctrine. Arnold v. Mundy, 6 N.J.L. 1 (1821). Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.ed 997 (1842). Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.ed 1018 (1892). Shively v. Bowlby, 152 U.S. 1, 38 L.ed 331 (1894).
Also, as the U.S. Supreme Court has repeatedly said, “rivers that are navigable in fact are navigable in law.” If the river is physically navigable, for whatever purpose is in question, it is legally navigable. No official designation is necessary. Note that navigability for title purposes is a matter of federal law, even though it determines state ownership. State governments can make factual determinations of title navigability based on the weight of the evidence, and they can affirm that various rivers are navigable. But where they have not yet done so, the rivers that are “navigable in fact” are still “navigable in law,” and are still public. (They are not private until the state government gets around to designating them as public.) Also, note that state courts and legislatures cannot establish their own more restrictive standards of navigability; they must abide by the national standards. If they say a particular river is not navigable for title purposes, but the river is physically navigable in fact, their opinion is not determinative.
Brewer-Elliott Oil and Gas Company v. United States, 260 U.S. 77, 43 S.Ct. 60, L.Ed 140 (1922). United States v. Utah, 283 U.S. 64, 75 L.Ed. 844 (1931). Utah v. United States, 403 U.S. 9, 29 L.Ed.2d 279 (1971). State v. Corvallis Sand and Gravel Co., 429 U.S. 363, 50 L.ed 2d 550 (1977).
Again, the state does not actually own the river, bayou, WHATEVER. It holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits. Please feel free to research the Public Trust Doctrine at your leisure.
FYI, public ownership of physically navigable rivers is the same in all states. It's a U.S. Supreme Court standard, and it includes those rivers that are physically navigabale by canoe, pirogue, kayak, and raft etc… The public's right to visit additional non-navigable streams (those too small for even canoes, kayaks, and rafts) does vary from state to state, but this variation only applies to those small streams.
Again, I'm not addressing private canals here. I've never had a misconception regarding them except as to where they are or, are not, required to be posted. It seems that various parishes have made it entirely too complicated for the average citizen to keep up with by passing parish ordinances that are not in line with state law. It's amazing what a few well-placed campaign contributions can accomplish.
As to navigability; through various court cases, federal courts have articulated the following test, which is known as the federal test of navigability for title purposes:
1. The waterway must be capable of or susceptible to use as a highway for the transportation of people or goods;
2. The waterway must be usable for transportation conducted in customary modes of trade and travel on water;
3. Waters must be navigable in their natural and ordinary condition; and
4. Navigability is determined as of the date of statehood. (Again, that's EIGHTEEN TWELVE for us.)
The courts have determined that the use or potential for use by almost any type of watercraft is sufficient to determine this type of navigability. The use did not have to occur at the time of statehood; it is enough that it could have occurred (i.e., susceptibility.) Modern-day usefulness of a river that has not been artificially modified helps prove navigability for purposes of state title, as do historical uses that no longer exist, such as log drives.
Note that this "federal test" is not found in any one Supreme Court document or other government publication; it is just the sum of the relevant passages and phrases in various court decisions. Congress has never passed legislation defining navigability for title purposes, so the court decisions are the applicable law on the subject.
Other legal definitions of the word navigable, and other legal tests of navigability can be found in various FEDERAL documents and laws. The U.S. Army Corps of Engineers uses the term "navigable waters" which stems from the Rivers and Harbors Act of 1899. This Act, along with associated federal regulations, determines the Corps' jurisdiction over the alteration of waterways. Similar regulations direct the U.S. Coast Guard. "Navigable waters" are also defined in the Clean Water Act as areas subject to the Corps' regulatory authority over filling in waterways. State government agencies also use the term "navigable waters" in regulations relating to boating safety. Federal courts use the term "navigable" in cases involving Admiralty Law and the Commerce Clause of the U.S. Constitution.
None of these other definitions of navigable is the same as the definition federal courts use to determine navigability for title purposes. They may include a narrower range of waterways in some cases and a broader range in others. This has caused much confusion, such as the common misconception that only a few particularly large rivers are legally navigable. The fact is that even rivers and streams that can be navigated only by small watercraft and logs are still navigable for title purposes, even if they are not navigable for other legal purposes.
I am only enlightened because I was prompted by this inane debacle of a debate to do some research. Actually I feel a little muddy after wresting with a.. well, nevermind.
I lack enough information about the air boat incidents so I will reserve judgment til the FACTS come in.
BTW… Whoops again…. no drain bamage here but my eyesight has always been bad. Yes, we do agree. Doinkerhead was wrong. BoomBoom was BadBad. Still, maybe we'll reap a silver lining. Spin it Joe!
Nope, never wanted to be a lawyer. I prefer to contribute to society instead.
Love Ya Man!
Have a great day!
Signed,
WannaBeAFlamingTroller
P.S. Here's a scenario for you:
I'm a commercial fisherman and I legally lease a series of private canals in the marshes of Louisiana. My lease is a signed, notarized, legal document that gives me the exclusive right to fish these canals. I have put up no posted signs. I see you in one of the canals that I lease in your pirogue with your Zebco and Columbia shirt and I tell you to leave. Do you have to leave? Can I have you arrested if you refuse?
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453 Posts |
Posted - 08/05/2003 : 11:25:05 PM
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woooooooooooooo!!!!!!!!!!! yall got this old connass' brain smokin with all that legal mud rasslin....
Ashamed, a couple of reasons you caught so much s**t was (IMHO) you matter-of-fact tone and the fact that you chose the name "ashamed"...sad, sad, sad....but anyways, tht is your cup of tea. Youdo sound like that nutcase that thought them 2 old rich guys paddling and partying around the Gulf to "raise awareness about Louisiana's Coastal erosion problems" were "heros" ---> another story.
Let's sum this up in normal, everyday terms so me and Wil can understand:
1. If Klein was throwing a wake, he was morally wrong.
2. Mr Shooterman was legally wrong.
3. Louisiana media is making the biggest deal out of this.
4. Running airboats around someone fishing is morally wrong.
5. All tournaments and rodeos need a handout detail good on-the-water courtesy.
6. Mr Shooterman had a mullet.
7. Wanna and Ashamed have the longest legal pissing contect going in RnR Forum history.
Did I miss anything?
"See the Marsh, Smell the Marsh, Feel the Marsh, BE the Marsh" |
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bigmf
Junior Member
USA
121 Posts |
Posted - 08/06/2003 : 06:54:09 AM
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| Agree with numbers. I watched Klein on ESPN and quite frankly beleive that he wanted to let it go but, the announcers played it up. ANYWAY, as I posted on the big board, there are three sides to every story, my side, your side and the TRUTH Were there kids in the canal swimming?? Maybe Was the Camp owner/user frustrated?? MAYBE Was Klein running wide open?? Maybe There are far too many sides to this story to ever get the truth! ESPN has refused to give Jif Hingle's boys the tape without a Court order. To me, that lends credence to Klein's bad actions. The bottom line question is will the tournament come back? I beleive it will.
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2106 Posts |
Posted - 08/06/2003 : 08:44:54 AM
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man, I feel like I enrolled in law school! Obviously there are many emotions running high about this. Local people prejudiced against out-of-towners, out-of-towners who think we shoot first and question later, and the f***ing media who are a bunch of pigs.
Now, how about when you want to post something controversial, or legalese, use your real goddamn name, and quit hiding like little babies behind nicknames. That's the kind of crap that pedophiles in chat rooms do.
NUFF SAID!
or at least put your real name in your profile.
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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Posted - 08/06/2003 : 08:53:51 AM
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I'M NOT GETTING INVOLVED IN THIS!!! All I will say is that I know "ashamed" and just FYI "wanna" he is not an LSU law alum. JUST A LITTLE FYI....leave me out of it.
Kris
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Posted - 08/06/2003 : 09:11:45 AM
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If you didn't want to get involved, why did you post?
"See the Marsh, Smell the Marsh, Feel the Marsh, BE the Marsh" |
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BayouBoy
Junior Member
50 Posts |
Posted - 08/06/2003 : 09:11:49 AM
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First off my name is Kevin
I am in no way justifying the man who shot at Klein, it doesn't matter if he aimed at the boat or in the air, it is irrelevant. You don't shoot your gun in a situation like that. I also don't feel like getting into all the legal issues. I do think that many people on the water need to learn how to be more considerate, and that definetly includes Bassmaster Pros. During the previous tournament I happened to be down at my dad's camp, I have been going down there since I was 3, and we saw a Pro. The bayou the camp is on is not a no wake zone, however, common courtesy says you should slow down so you do not produce a wake that my cause damage to a docked boat. Well I was out running crab traps in front the camp when one of these pros past buy, guy almost took me out. It wouldn't matter to me if he passed me on a plane, but he had to turn at the last second and all I saw was the prop in the water, so I figured him going around 70mph. The problem at that speed is not his wake, but it is dangerous for others to be on the water when these guys are traveling that fast, and the man kind of looked at me as if I was bothering him. We all need to watch ourselves while we are on the water, and slow down and enjoy ourselves.
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2106 Posts |
Posted - 08/06/2003 : 09:32:08 AM
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how come all these people posting crap and stirring more crap are "new members" and have nicknames and don't even put at least there real first names in their profile?
Just a question. I think there is a lack of CAJONES out there.
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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2106 Posts |
Posted - 08/06/2003 : 09:34:09 AM
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hhhhmmmmmm, Just thinking, maybe wanna and ashamed are the same person? Kinda like the guy that Mike kicked off the reports for posting under several names to cause controversy?? Man I love this.
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/06/2003 : 09:40:33 AM
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After browsing the highly touted "Ebb & Flow" case from Mississippi, I'm having trouble seeing where it applies to navigability at all. It's a case about tidelands, not navigability. The US Supreme court affirmed the MS Courts decision that the state can't suddenly lay claim to 42 acres of "tidelands" after years and years of treating it like any other land. If you look the area up on a topo map you'll see how silly it was to try to push this case through in the first place. The tidal marsh in question is north of I-10 along and around Bayou Lacroix and is known as Devil's Swamp. The court didn't address the navigability of Bayou Lacroix but rendered their decision on the area as an entity. As far as I can see the Public Trust Doctrine remains intact.
IMO Anyone who is ashamed of our state should either leave or get involved with fixing it.
Bigmf,
You have posted one of the best messages on this issue I've seen. Why? Because I agree with you. How did I ever let myself get dragged into this huge s**thole of an argument?
Kris,
My statement "a certain university that nearly lost it's law school accreditation a few years ago" does not apply to LSU. LSU's law school is highly respected. Right city, wrong school.
BayouBoy,
Very well said!
DAMN I'm grumpy but hey, almost 2 1/2 days now with NO SMOKES!
Have a great day!
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/06/2003 : 09:55:30 AM
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Wil,
Just let it go man. Your references to a lack of nads or pedophillia or whatever other thinly veiled references you want to put out there aren't going to change the fact that some people prefer to remain anonymous on message boards. Ya know, there may be a good reason for some of us doing it. It could be job related or it might just be that I feel more free to be a bigger pain in the butt when I'm wearing my disguise. Maybe I'm a governors aide, or a state trooper, or a busiess owner. You, of course, have a choice. If you don't see a real name up there you can choose not to read it. Of course that means you'll have to spend a lot of time on Anywho.com trying to figure out if that person really does exist and even then you won't know if they assumed someone else's name. So what's the point? I have a choice. I can use a real name or not. You can't choose for me and I can't choose for you. Take a deep breath and just let it go man... BTW... I love my mullet!
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2106 Posts |
Posted - 08/06/2003 : 10:10:58 AM
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well, if you have a mullet, you are DEFINITELY not a state trooper or governor's aide, and if you owned a business, it would probably be janitorial or such in manner. LMAO, man lighten up!!!!
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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wanna
Advanced Member
USA
1118 Posts |
Posted - 08/06/2003 : 11:14:44 AM
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Damn! You got me figured out. Oh well... May as well fess up now. WannaMullet's Jani-Care. That's me! At least I don't sell used cars and I'm not a lawyer. Not to worry dude... I'm light! About 127 lbs soaking wet but not light in my loafers.
Sometimes there are good reasons for someone remaining anonymous. You choose not to. That's cool. Sometimes I really, really, really wish I didn't have to. You don't think I listed the truth as one of the options do you? Silly man. My reasons are my own and they really are work related. Meanwhile, keep reading my posts. I'm sure to either make you laugh or piss you off.
See ya at the Wrestlin matches!
Grizzly Smith rules! *wink*
Meanwhile, what's up with the rumor about ESPN wanting a court order before they release the tape? True or False? I've read both rumors about the incident being on tape? Which is true? I guess we'll have to wait for all the facts to come in before deciding if we should be shamed. Starting to look a lot like "Mush ado about nothing". Can I get back the hours I wasted on this silliness? Please? I'll pay in WannaMullet bucks!
Have a great day!
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jpggpj
Advanced Member
USA
771 Posts |
Posted - 08/06/2003 : 11:47:52 AM
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Well I might as well ad to the chaos. First off, in my opinion, the guy with the gun is WRONG. There really is no argument that ANYONE can present to me to justify his actions and from what I read in the paper today, Klein was not in a no wake zone when he was shot at but I'm sure that still remains to be seen. Secondly, I'll say that I do understand the concerns of those who own camps on the public waterways that are on no wake zones. It would aggrevate me too to see my boat banging against the dock while someone flew by because of their lack of respect for your property. But you know what, when you bought the camp on the No Wake Zone, you should have spent the extra money to protect your investment, like a lift for your boat to have it out the water. Don't count on the public to protect your investment. Just because you buy land and build a camp doesn't mean the public has to change the way they drive on the water. Some canals in the area run for miles and have camps on both sides. Do you have any idea how long it would take to travel it if you idled the whole way. Some people are more respectful than others but you really can't cry or complain when someone is not breaking the law. It's kind of like people building a house next to the airport and then complaining of the noise caused by the airplanes.
Alot will come out on exactly what happened during the Bassmasters but believe this......that wasn't the first time that guy fired a gun at a boat. But because of this issue it may end up being his last and that's a good thing.
As far as Ashamed and Wanna....man I don't know who the hell is right or wrong but SOB you two can post some serious stuff. Yall's fingers don't hurt?
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greg1
Junior Member
USA
98 Posts |
Posted - 08/06/2003 : 12:03:09 PM
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My daddy taught me not to shoot at bass boats, only at JetSki's
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2106 Posts |
Posted - 08/06/2003 : 12:09:23 PM
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Hey, I like to give as good as I get, no prob with remaining anonymous, as you can tell by the number of posts I have, I enjoy a little banter, and I will rag on folks, and they are free to nag on me. I understand the need for anonimity.
On the ESPN issue, they have the tape, but want to turn it over using the proper channels and procedure. I would guess to protect journalistic integrity, and shield themselves from lawsuits. I can't blame them there, Plaq Parish needs to get a court order. seems they could get that in one day.
I'm not a lawyer or an expert on the law, but I am well-read and do know a little about a lot.
So peace on earth, and in the rodnreel forum, and "POST ON!!!"
AND GIMME BACK MY DAMN BEER!!
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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2106 Posts |
Posted - 08/06/2003 : 12:10:37 PM
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Greg1:
shooting jet ski's is like shooting geese, you need a big gun with a heavy load, but you need to lead them a little more!!!
Wil Schober
Louisiana: America's Banana Republic.
Hold my beer and watch this!!
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