01 January 2008

parm v shumate

when we first read the new orleans times-picayune story about this 28 december 2007 ruling by the united states court of appeals for the fifth circuit, we didnt know what to think. as anyone who follows this blog knows we love a good conspiracy theory, especially those involving the federal government and taking away citizens rights.

monroe attorney paul hurd, is the lawyer for the plaintiff's/fishermen and when we read quotes like this:
Paul Hurd, a lawyer for the fishermen who sued Shumate, said the New Orleans-based court's 17-page ruling represents "the largest shift in water rights that I've ever seen."

"What this court has held, for the first time ever, is that there are no federal rights for public recreational fishing," Hurd said, adding that the court's ruling means "you can tow a barge but you can't fish the same water."
it causes us to want to look into whats going on.

click link or here to download seventeen page .pdf (62k)

the ruling appears to be well written and easy to follow. however, without being able to see a map of the property in dispute its hard to really get a good understanding. so we fired up google earth to see if we could locate it and it turns out that one way that its easily found on google earth is by entering gassoway lake la in the search box and google earth will take you right to it.

if you dont have google earth, no problem - as you can use google maps - www.maps.google.com - and enter the same search term - about the only difference is that on google maps the picture might be smaller and not as detailed than the one from google earth.
click picture to enlarge
as you can see gassoway lake is at the far left and bunchs cutoff is located towards the bottom right above where it says image (c) 2007 digitalglobe.

this screen grab from google maps might help - link

as you can tell what fishermen were doing was coming from the mississippi river, through bunchs cutoff and then traversing the "man-made drainage ditch" that connects gassoway lake to bunchs cutoff to finally get to gassoway lake. gassoway lake only exists for a few months each year.
The Property is located in East Carroll Parish. On its eastern side, the Property is bound by the Mississippi River, and on its western side, it is bound by the Mississippi River’s levees. Buildings, crop lands and forests, with trees as tall as one hundred and forty feet, are located on the Property.

In addition, waterways known as Gassoway Lake, Little Gassoway Lake, and other bodies of water are contained within its boundaries. Gassoway Lake, which Plaintiffs consider the most ideal venue for fishing on the Property, is located on the Property’s western side, nearly three-and-a-half miles from the ordinary low water mark of the Mississippi River and its channel.

Gassoway Lake is connected by a man-made drainage ditch to Bunch’s Cutoff, which, in turn, flows into the Mississippi River. When the river floods in the spring, Gassoway Lake, along with the rest of the Property, is submerged under its waters.
its a shame that walker cottonwood farms llc the owners of the gassoway lake property and the fishermen couldnt work something out but as you can see this isnt a case of citizen-fishermen being denied the rights to traverse navigable waters to fish, its a case of trespassing pure and simple. the rights of property owners must be maintained.

we're not opposed to fishing and hunting - we're all for it. both of our grandfathers as well as their fathers before them (god bless their souls and memory) were fishing fanatics. however, from what we can recall from reminiscence and experience and from what we've been told none of them ever thought that they could fish where ever they pleased either.

east carroll, parish louisiana sheriff mark shumate was correct in charging the fishermen with violating LA. R.S. 14:63(B) and the district attorney, buddy caldwell, was correct in refusing to prosecute them until the courts ruled on the matter. whats sad is that it took so many years to go through the court system.

we also find the comments attributed to mr. robert cartlidge, president of the bass federation to be irresponsible, fraught with hyperbole:
Robert Cartlidge, president and chief executive of the national Bass Federation fishing group, said the ruling could be used to restrict recreational fishing in other parts of the country.

"The idea of someone holding public water for private use is just not American," Cartlidge said. "That should never be allowed to happen."
howard watts one of the plaintiffs was equally erroneous when he called this ruling "just the tip of the iceberg"
Harold Watts, one of the fishermen who sued Shumate over their arrests, said the 5th Circuit's ruling could be "just the tip of the iceberg."

"If they can stop people from fishing the Mississippi River, they can stop people anywhere they want to," said Watts, 68, of Collinston.
this is just an attempt to stir people up to mistrust and hate the federal government; as you see in reading the fifth circuit's opinion they cited no federal laws [besides 42 U.S.C. § 1983 which involved the fishermen being arrested] other than the "commerce clause" [article 1 section 8 clause 3 u.s. constitution] which they agreed in this case didnt apply.

courtesy of central la politics blog here are some court cases relative to parm v. shumate that you might find interesting:

state of louisiana vs. joey l. barras, et al 615 So.2d 285 1993 [.pdf 103k]
The bank of the navigable stream, contemplated by Article 456 as private land subject to public use, is located within the bed or channel of the stream below the point that contains the normal flow of the waters. Defendants' affirmative defense depends on judicial acceptance of their interpretation of Article 456, which we hereby reject.
vaughn et al vs. vermillion corporation 444 U.S. 206 100 S.Ct. 399 Dec. 4, 1979. [.pdf 96k]
In order to control access to the land and the canals, over 400 "No Trespassing" signs are posted in various locations. Respondent Vermilion Corp. employs people to supervise activities in the canals and on the land, and on numerous occasions such people have prohibited strangers from entering and using the property in question.
The present controversy arises out of petitioners' insistence that notwithstanding Vermilion's property rights, they were entitled as a matter of federal law—without obtaining respondent's permission—to enter the property, travel the canals, and engage in commercial fishing and shrimping activities. Petitioners disregarded several written warnings issued by respondent; respondent then filed suit in the Louisiana state court seeking permanent injunctions against petitioners from trespassing on the land and making use of the canals.
state of louisiana ex rel vs. two o'clock bayou land company, inc. 365 So.2d 1174 No. 6768. Court of Appeal of Louisiana, Third Circuit. 1979 [.pdf 103k]
A body of water is navigable in law when it is navigable in fact.