Boating illegal?

[John Bell]

From Sounding's "Trade Only Today" newsletter. Chilling....

Court ruling makes boating illegal in much of U.S.

The Marine Retailers Association of America is alerting its dealer members to a court ruling that some say could have serious consequences for boating.



Judge Robert G. James of the U.S. District Court, Western Division of Louisiana, has declared it is a criminal trespass for the public to boat, fish or hunt on the Mississippi River and other navigable waters of the country.



"Even though this action seems like a horrible pre-April Fools’ joke, it is very serious," said MRAA president Phil Keeter, in a statement. "Because essentially all the waters and waterways of our country are considered navigable in the U.S. law, this ruling declares recreational boating, water skiing, fishing, waterfowl hunting and fishing tournaments – except if conducted in a navigable shipping channel — to be illegal and the public subject to jail sentences for recreating with their families."



In addition, the judge held that federal law grants exclusive and private control over the waters of the river, outside the main shipping channel, to riparian landowners. The shallows of the navigable waters are no longer open to the public, the MRAA reports, adding, “Boating has now become illegal in most of our country.”



In the Aug. 29 decision, Judge James rejected the findings of the magistrate judge who found earlier that the public had the right under federal law and Louisiana law to navigate, boat, fish and hunt on the waters of the Mississippi River up the normal high-water line of the river.



In that ruling, MRAA says Magistrate Judge James Kirk relied on long-established federal principles of navigation entitling "the public to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating, sailing for pleasure, as well as for carrying persons or property for hire, and in any kind of watercraft, the use of which is consistent with others also enjoying the right possessed in common."



"MRAA is working with the Coast Guard, state boating law administrators, and NMMA ... to fight this onerous ruling," said MRAA chairman Glenn Mazzella, in a statement.

[George Roberts]

I believe that the federal rules govern boats while navigating.

Navigating - traveling from point to point, includes fishing, anchoring, beaching boats incidental to the actual navigating.

I agree with the judge that recreation for the sake of recreation is regulated by the state.

[ssor]

This will end up in federal circuit court on appeal. It is an absurd ruling.

[Mike Vogdes]

I would love to see the governments plan for enforcement...

[Tylerdurden]

I would love to see the governments plan for enforcement...


I will look for the article but it was about the coastgaurd (knee deeps)
arming themselves with machine guns on the great lakes.
Looks like they are preparing some enforcement because I can't imagine Osama Bin Laden (Tim Osman) mounting a naval attack across lake Michigan

[kc8pql]

Sounds like a property rights decision to me. Judge must be a Bush appointee.

[ssor]

Sounds like a property rights decision to me. Judge must be a Bush appointee.


More likely a Nixon appointee. OLD FART

[Paul Pless]

hmmm...
something about prying my tiller from my cold dead hands...

[Larry P.]

"sounds like a Bush appointee"

Why can't you keep politics in the bilge jerk.


James, Robert Gillespie
Born 1946 in Ruston, LA

Federal Judicial Service:
Judge, U. S. District Court, Western District of Louisiana
Nominated by William J. Clinton on January 27, 1998, to a seat vacated by John M. Shaw; Confirmed by the Senate on July 31, 1998, and received commission on August 3, 1998.

[John Bell]

I did perfunctory search trying to find any news items about the particulars of this case, but was unsuccessful. Any of our legal beagles know how to find this stuff?

[RonW]

This decision is laughable....

As I recall the constitution says the navigable waterways of america belong to the citizens of america....

In ohio, small streams and creeks, the property owners deed will state to the center of the creek and the property owner does have the right to denie you access. But all rivers are a different point, and you have the right to fish, boat and hunt, just not get out onto the land that the property owner has the right to the waters edge. You have to be floating.

[seedtick]

Not sure exactly what this means either.........

But recognize that when the Miss. River is at "high water level", there are thousands of acres of land (Atchafalaya Basin e.g.) that seasonally have enough water over them to be navigable. This land is mostly privately owned and at any other time other than "high water" could likely be walked on. In LA, all property is considered posted wether or not signs are visible. The judge MAY be saying that high water is no excuse for trespassing on someone's land.

[Peter Eikenberry]

There is a problem here. Navigable waters of the United States does not include every stream, lake, river or pond. There is a definition of Navigable waters in Federal law Which goes like this (I'm doing this from memory, I'll have to look it up) Navigable waters are tidal waters, bays and rivers navigable continuously navigable from the sea, waterways that are historically used for interstate commerce, or capable of use for interstate commerce. This means large rivers and impoundments that you can take your boat up starting at the sea and keep on going until you can't go any farther. Some large lakes like Bear lake in Utah or Tahoe that cross state boundaries are considered Federal jurisdiction. But by no means are all waters Federal. All the rest are state jurisdiction. I have a friend who I served with in the Coast Guard whose job was determining which waters were Federal and which were state. Oh yeah I forgot Federal impoundments such as Lake powel which both crosses state lines, is a historical route of commerce and is under both Park Service and BLM jurisdiction. In fact it is up to the north end of Powell,and the it's state. Flaming Gorge is too but the Green River outside Lake Powell is not. Here's a quote from the Federal Regulations defining Navigable waters.

CHAPTER I--COAST GUARD, DEPARTMENT OF HOMELAND SECURITY

PART 2_JURISDICTION--Table of Contents

Subpart B_Jurisdictional Terms

Sec. 2.36 Navigable waters of the United States, navigable waters, and
territorial waters.

(a) Except as provided in paragraph (b) of this section, navigable
waters of the United States, navigable waters, and territorial waters
mean, except where Congress has designated them not to be navigable
waters of the United States:
(1) Territorial seas of the United States;
(2) Internal waters of the United States that are subject to tidal
influence; and
(3) Internal waters of the United States not subject to tidal
influence that:
(i) Are or have been used, or are or have been susceptible for use,
by themselves or in connection with other waters, as highways for
substantial interstate or foreign commerce, notwithstanding natural or
man-made obstructions that require portage, or

ii) A governmental or non-governmental body, having expertise in
waterway improvement, determines to be capable of improvement at a reasonable cost (a favorable balance between cost and need) to provide, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.

Here is a link to an Army Corps list of Navigable and Non-navigable water http://www.law.cornell.edu/uscode/uscode33/usc_sup_01_33_10_1.html

[John Bell]

The issue of navigability is thorny, based on my past experience working (unsuccessfully) to get a law passed to better allow access for recreational river canoeing.

But this particular ruling appears to significantly tighten the definition of navagability. Saying that public use ends at the boundary of a shipping channel and the remainder of the resource is reserved for adjacent landowners is bizzarre beyond belief.

One prediction: because of the sharp run-up in waterfront real estate values, the war between boaters and waterfront landowners is just beginning.

[Gary E]

One prediction: because of the sharp run-up in waterfront real estate values, the war between boaters and waterfront landowners is just beginning.

Who is likely to have bigger and more guns?
Who would likely have more ammo?
Who would be standing on a less wobbley platform for shooting?
Who if hit, might explode the 300 gal of gas in the tank? :D

[donald branscom]

From Sounding's "Trade Only Today" newsletter. Chilling....

blah,blah.blah

Some !@##$ just have to control everything.

So all marina owners will control every dingy that touches the land /water interface?

About time the war got started.

Its already getting very hard just to walk down to the ocean.

[keelbolts]

I have, in the interest of keeping my blood pressure down, become more or less apolitical, but I still retain a reasonable amount of firepower. Jefferson felt that a little revolution, about each generation, was necessary to remind elected officials who really controls the country. God made the water for us to sail upon. Let the politicos try to control MY water. They'd rather jump in a lion's den in a pork chop suit...

[keelbolts]

GaryE,
It's not about who has the biggest or most guns, it's about who has the greater will. Remember, we and our B52s, while winning all the battles, lost the war to a bunch of 5' tall men and women with little more than a pair of pajamas, a bicycle, and an AK47.

[Gary E]

I would love to see the governments plan for enforcement...

Dont the NJ cops in boats carry guns anymore?
Do you carry one, or more?

As far fetched as I think this is, it could happen... and then whacha gona do when they come for you???

[Gary E]

GaryE,
It's not about who has the biggest or most guns, it's about who has the greater will. Remember, we and our B52s, while winning all the battles, lost the war to a bunch of 5' tall men and women with little more than a pair of pajamas, a bicycle, and an AK47.

"it's about who has the greater will."

Will???? the US Sheeeple have WILL???? yeah right...

Like the Frog in the warm water, it's comfy...
till the heat is turned up then it's to late.

Who remembers boating durring WW2?
My Dad had several friends with boats on the Ohio River and I remember them talking about how the boats were confiscated by the Fed Government for patrol duty... Now, to me , it would be a stretch to think that with rationing in force they allowed "pleasure" boats to run anywhere.

[The549]

Of course military might has something to do with it. But it really is will, in some form or other. The US would have won Vietnam if the other side were armed with spoons. Also towards the end of WWII, many German soldiers were marching towards the Allies unarmed for surrender. Hitler had will, that's for sure. Lastly America didn't win WWII, the Allies did.

ANYWAY

MOST importantly, is our final conclusion that this law regards public water adjacent to private land, spured by selfish rich landlubbers?

I love some libertarian principles so much xjust because of laws like this; remember that if the idiot masses had the chance to vote against something like guns, boats, swords, canoeing, motorcycling, smoking, or anything, there's a GOOD chance it would be outlawed, because - "well, Idon't boat, so yeah, we'll have none of that."

[Peter Eikenberry]

I think this decision will be overturned on appeal. I have dealt with this issue for over 20 years and this is the most ridiculous rulling I have ever heard of.

[kpenokie]

Before we all jump the gun- oops too late. Someone should get ahold of the actual decision. A Google search only turns up the press release put out by a group who may have a vested interest in skewing the decision. The release speaks in conclusions and does not contain any quotes from the actual decsion. As noted above, the issue of public access to areas abutting water systems is a thorny one. Unfortunately my data base access does not include this particular district court so I don't have access to the decision. Any formites in the area have access to the decision?

[Frank E. Price]

Who appointed that clown, and which judge-appointer are you going to vote for next time?

Frank

[seafox]

in utah their has been a case oof people floating the weber river in a rubber raft charged with trespassing because one person steped out of the boat and stood on the bottom to guide the raft over some shallows.
it seems to me one should be able to traverse a river as long as they do not enter the stream bank, above high water line.
it is also iintresting to note that navagatable waters belong to the state while non navagatable waters belong to the adjacent land owner ( in utah that us usually the federal goverment) thus in a fight who got royalties to oil wells along the colorado river (and green river)the flat water sections where pioneer steem boat men navagated utah got the money and in the sections with rapids it stayed with the federal goverment.

[Tomcat]

There was an interesting take on this in the duckboat forum. They claim the issue is related to boating and fishing and/or hunting. Not pleasure boating specifically. Which is no consolation to them...

http://www.duckboats.net/forum/messages/93638.html

[CarlZog]

The outrageously inaccurate and inflammatory response of the marine industry's PR machine in this case is the only truly laughable or absurd thing about this case. It's been egregiously irresponsible.

For the record, I am not a lawyer, but I am pretty familiar with these types of issues, and I've talked to some top riparian rights lawyers, whose response to this case matches mine.

This case does NOT affect boating on navigable waters in any way, shape or form.

The only issue in this case was the right of the public to hunt and fish on waters over privately owned property between the ordinary low and ordinary high water mark of a freshwater river. This did not cover boating in and of itself. It did not cover tidal waters. It did not cover anything else.

Though it has no bearing on the legal basis for the decision, it should also be noted that this case was particular extraordinary due to its geography. In this case, when the Mississippi flooded, it filled an otherwise dry ditch that then connected to a small, shallow lake. This only happens a few times a year and the rest of the year, the lake and the river are not connected. The fishermen were taking advantage of the flooding to access a otherwise enclosed lake on private property. The elevation of the lake happened to be within the ordinary high water mark of the river -- which, the court ruled, gave the fishermen legal access to navigate on those waters, but did NOT under Louisiana Law give them the right to hunt or fish on those waters.

The complete decision can be viewed at:

http://www.boatinglaw.com/document.cfm/document58

Carl

[kpenokie]

Thank you Carl for posting the actual decision. As I read it, the decision does nothing to infringe upon the normal use of waterways. Nor does it present any new or radical ideas. Here is a hypothetical look at this ruling from the land owners viewpoint:

Homeowner owns a piece of land that is on the Mississippi's flood plain which sits between the normal high and low water marks. On this land is a shallow "lake" (we would call it a pond) which recieves water from the big M approximately twice a year through a ditch which normally is an overflow into the M. Owner decides to raise some sort of fish in the lake and spends $$$$$$$ in the operation. Smart fisherman figures out that twice a year he can get his bass boat into farmer's lake and catch his limit of the stocked fish. He tells his friends and the next thing owner knows, he has a fleet of boats in the lake twice a year and no fish. He is naturally p******* and calls the police.

All this decision does is reiterate the right to navigate the lake and drainage ditch but prohibit fishing and hunting thereon. Not so unreasonable when you remember that, under existing law he owns this land.