Just wondering if the Louisiana Sportsman Coalition has seen this, it is the FEDERAL waters right of usage. I will be printing up a few copies to bring fishing with me and when they stop me, I'll give them a free copy!!! LOL
https://www.ecfr.gov/current/title-3...er-II/part-329
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Hmmmmm.....I wonder if the state(s) circumvent that federal law the same way they do (can) with making smoking pot legal in some states even though the feds say no...
I've seen something similar, but is it really worth the headache? There's fish everywhere, it would ruin my day having to deal with LDWF over something so petty.
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This has nothing to do with private ownership of land or water bottoms in La. This does affect usage by land or water bottom owners. This will not help you with your trespassing citation :lol:Originally Posted by Cooney
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Actually, this does have alot to do with it, according to this CFR they can not stop anyone from using the waterways. As long as you are not on the land. They also can not put a dam or gate permanently. Must have a Federal permit to do so.
(a) Existing improvements: artificial waterbodies.
(1) An artificial channel may often constitute a navigable water of the United States, even though it has been privately developed and maintained, or passes through private property. The test is generally as developed above, that is, whether the waterbody is capable of use to transport interstate commerce. Canals which connect two navigable waters of the United States and which are used for commerce clearly fall within the test, and themselves become navigable. A canal open to navigable waters of the United States on only one end is itself navigable where it in fact supports interstate commerce. A canal or other artificial waterbody that is subject to ebb and flow of the tide is also a navigable water of the United States.
(2) The artificial waterbody may be a major portion of a river or harbor area or merely a minor backwash, slip, or turning area (see § 329.12(b) of this part).
(3) Private ownership of the lands underlying the waterbody, or of the lands through which it runs, does not preclude a finding of navigability. Ownership does become a controlling factor if a privately constructed and operated canal is not used to transport interstate commerce nor used by the public; it is then not considered to be a navigable water of the United States. However, a private waterbody, even though not itself navigable, may so affect the navigable capacity of nearby waters as to nevertheless be subject to certain regulatory authorities.
(b) Non-existing improvements, past or potential. A waterbody may also be considered navigable depending on the feasibility of use to transport interstate commerce after the construction of whatever “reasonable” improvements may potentially be made. The improvement need not exist, be planned, nor even authorized; it is enough that potentially they could be made. What is a “reasonable” improvement is always a matter of degree; there must be a balance between cost and need at a time when the improvement would be (or would have been) useful. Thus, if an improvement were “reasonable” at a time of past use, the water was therefore navigable in law from that time forward. The changes in engineering practices or the coming of new industries with varying classes of freight may affect the type of the improvement; those which may be entirely reasonable in a thickly populated, highly developed industrial region may have been entirely too costly for the same region in the days of the pioneers. The determination of reasonable improvement is often similar to the cost analyses presently made in Corps of Engineers studies.
§ 329.9 Time at which commerce exists or determination is made.
(a) Past use. A waterbody which was navigable in its natural or improved state, or which was susceptible of reasonable improvement (as discussed in § 329.8(b) of this part) retains its character as “navigable in law” even though it is not presently used for commerce, or is presently incapable of such use because of changed conditions or the presence of obstructions. Nor does absence of use because of changed economic conditions affect the legal character of the waterbody. Once having attained the character of “navigable in law,” the Federal authority remains in existence, and cannot be abandoned by administrative officers or court action. Nor is mere inattention or ambiguous action by Congress an abandonment of Federal control. However, express statutory declarations by Congress that described portions of a waterbody are non-navigable, or have been abandoned, are binding upon the Department of the Army. Each statute must be carefully examined, since Congress often reserves the power to amend the Act, or assigns special duties of supervision and control to the Secretary of the Army or Chief of Engineers.
(b) Future or potential use. Navigability may also be found in a waterbody's susceptibility for use in its ordinary condition or by reasonable improvement to transport interstate commerce. This may be either in its natural or improved condition, and may thus be existent although there has been no actual use to date. Non-use in the past therefore does not prevent recognition of the potential for future use.
If WE THE PEOPLE give up on this they will take it all, they will not stop and we will lose our way of life.
It's a big circle, the code of federal regulations is for the federal government, like corp of engineers, DEQ, coast guard etc. The issue we have in louisiana is a property rights issue. Until the state can figure out how to claim that the land they sold (and probably illegally included water bottoms) did not include the water bottoms or the water bottoms can be treated differently than the land we will have that issue with tresspassing/ownership. They use 1812 and other outdated maps when common sense would tell you there was no accurate way to figure out water bottoms on those sales. Did that give away the bottoms? Does that mean these bottoms can be treated like land even though they have public water running over them? Its the legislatures job to do their job and straighten out the mistakes when selling this land and bottoms. Yes, that would then bring another round of suits from the landowners. The feds have pretty much said property rights are a state issue, but, DEQ and corp of engineers can tell us what to do with our property when it comes to their issues. The state legislature just needs to do their job and define what is meant by navigable water for the purpose of navigation. Bottom line is the State sold these large pieces of marsh with no restrictions that say they retain the water bottoms. That's why they are treated like land. But the flip side is the taxation on this marshland/wasteland is not treated like land at all. You can read about how the tax breaks for this land came about in the debates during the 1973 constitutional convention. If our legislators researched this and read this they would see where it actually mentioned preserving hunting and fishing to justify having marshland in with agricultural land and timber land for tax breaks. As the laws stand, any access allowed would have to be on a voluntary basis by the landowner so the state is not on the hook for future claims by property owners. They could explore properly taxing this property and allow the marshland classification to apply to property owners that allow access to the public waters that flow over their property. The state could make property owners dam off the public's water so they basically have a big pond. The state can pick up the speed of claiming the land the property owners fail to repair after erosion. And the state could offer to fix boundaries on property back to a certain date to stop their losses due to erosion if they allow public access to their bottoms. With no action from the state either in taxation or claiming what statutes say they can claim I don't see anything happening other than the property owners putting up more gates and signs and the courts signing off on it
Our issue is the state gave it away. May have been unintentional but retained water bottoms are not on these deeds. Technically the water bottoms were public until the state sold them and did not exclude them. Its time to fix the issues they caused.
I also heard we have a trespassing issue going to the State Supreme CourtThat could be real good........or real bad.
Agreed, but in this CFR, it clearly states ANY canal or waterway man made or natural that has EBB tidal influence and was at any time used for commerce is public right of way. Water bottoms are identified in the document as long as i don't go dig it up.I also heard we have a trespassing issue going to the State Supreme Court
Also a federal regulation is suppose to supersede any state regulation
I'm pretty sure the code of federal regulations are rules for the federal agencies to follow. They don't govern states property law so the supremacy clause does not apply to the CFR. That's why the corp of engineers can use them for their purposes. and thats why the DEQ can make you put a modad for your use at the camp in the marsh on your property. We have used the code of federal regulations for years as an argument and as a guide to standardize the different regulations and laws. It would seem to me if the CFR had any legs, even as bad as our court system is, there would have to be a judge that could read. The bright spot in this battle is the court case used to decide most of these issues. Kaiser/aetna. The opinions are a great read and the case decision was far from unanimous. The best line from the decision was that the legislature could certainly make the marina public waters but because the investors spent tens of millions on their investment they have a reasonable expectation for a return on investment. All these canals were dug for oil and gas exploration. They got their return on investment and didn't spend anything keeping them up. Just the opposite. So there is a glimmer of light in all this. personally I think its a slam dunk but I'm not a judge
Ya'll need to get this fixed, but access is becoming a problem in other states as well.
No, this is not correct at all re: third party use. Damn? Probably. Gate? No.
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They can and they will as was the case in, WALKER LANDS INC v. EAST CARROLL PARISH POLICE JURY | FindLaw
Is that the case where it is only connected to public water during high water or floods??
They used that reasoning but the lake was always connected via a small navigable ditch even at it's lowest. It was only impassable after they built a earthen dam across it.
The US Supreme Court ruled , after the Philip vs State fo Ms .....that it is up to each state to define the meaning of "navigable" waters. In Texas, if you can canoe a body of water, it is navigable. In la, you just about have to be able to traverse it with a tugboat.
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