Mississippi-Alabama Sea Grant Legal Program

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Water Log 27.3, November, 2007

Mississippi's Public Waters - a Sportsman's View1

Rob Heflin

Each year I am pelted with a variety of questions about public water in Mississippi. The questions come from duck hunters wanting to know how far they can boat into flooded timber, fishermen wanting to know if certain lakes are public, and landowners wanting to know where their property starts and where the public water stops. All are good questions.

      So how much of the river water can you legally hunt or fish? What about oxbows along the river? What about oxbows that are no longer connected to the river? The problem is that few people know what they are legally entitled to use when it comes to hunting and fishing on Mississippi’s public waterways.

      First let’s iron out a few legal details. Miss. Code A7 51-1-4 says: “[s]uch portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the [Miss. Dept. of Environmental Quality (MDEQ)], shall be public waterways of the state.” Using these guidelines, most rivers and many streams in the state are considered public. The Pearl, Pascagoula, Big Black, Yazoo, Sunflower and Mississippi obviously fall under this category, as well as many other “lesser” streams, creeks and bayous. But neither the MDEQ list nor state statute addresses other water bodies. Tunica Lake, DeSoto Lake, Lake Ferguson, Eagle Lake and Lake Mary are all oxbow lakes created by or still connected to the Mississippi River, but you won’t find them listed on the MDEQ list. Neither are the hundreds of other smaller oxbows, like Bee Lake and Wolf Lake. Why? Because MDEQ only has the authority to list as public those streams that meet the flow requirements listed under state statute.

      So now you may be wondering, “what is an oxbow?” I’m glad you asked. In nature, nothing stays unchanged. About the time Noah was getting off of the ark, the rivers in the Delta followed a different path than they do today. As rivers flow, they naturally change course to follow the path of least resistance. Erosion in beds comprised of soft soils also causes alterations in course. The earth on the outside of a river bend is constantly eroded by rapidly moving currents while slower moving water on the inside of the bend deposits silt taken from a bend upstream. As the river twists and turns, or meanders, outside bends are eaten away while inside bends are built up. Eventually, erosion in a loop in the stream causes a shortcut, or cutoff. This shortcut is created slowly over time as two bends in the course inch toward each other, but when the river breaks through the meander “neck” the change is sudden and explosive. This sudden change in course, when a new channel is made and the old loop is forgotten, is called an avulsion. Avulsions can leave behind small sections of river or bends many miles in length.

      Remnants of abandoned meander bends left after an avulsion takes place are commonly called oxbow lakes because they resemble the U-shaped yokes once used to harness oxen together. Oxbows don’t necessarily have to be U-shaped, but can take many forms as annual floods fill in certain areas with silt over hundreds and thousands of years. If you’ve ever seen the silt left behind on a Delta river ramp after a spring flood, you will quickly realize that siltation on a large scale can dump several feet of “new” earth each year. Such was the case after the catastrophic Mississippi River flood in 1927, when several feet of silt was dumped all across the Delta by floodwaters that broke through the levee north of Greenville. Compound this over hundreds and thousands of years and you can understand why the topsoil in the Delta is hundreds of feet thick in places and why old channels are filled in.

   Have you ever wondered why the Mississippi-Arkansas and Mississippi-Louisiana state lines go from one side of the River to the other on the map? Because when Mississippi was granted statehood in 1817, the state lines followed the existing river channel. Look at those state lines. You will see that some of them run down the middle of certain lakes, but go off across woods and farmland in other places. Where the state line is located now used to be the main channel of the Mississippi River. Since then, the river has changed course, created new channels, filled in old channels and left oxbow lakes on either side of the 1817 channel.

      Okay, enough of Geology 101. What does this have to do with public water? Well, just as a current river channel is considered public water, so are old, abandoned channels, or oxbows. According to Josh Clemons of the Mississippi-Alabama Sea Grant Legal Program, the Mississippi Supreme Court ruled in 1900 that “[a]ll navigable waters are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them.”2 Almost a century later, in a case involving Lake Beulah in Bolivar County, the court ruled that “the public right to waters formed by an avulsion is as great as any other public waters” and suggested that all oxbows are public waters.3 That same year the court decided that a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.”4 The court ruled that the definition of navigability as found in Miss. Code A7 51-1-1, which refers to a “steamboat carrying 200 bales of cotton,” was too restrictive and obsolete. Clemons says “[t]he court indicates that lakes, as well as streams, can be navigable waters under the law. Waters that are navigable in fact are subject to public use under the Equal Footing and Public Trust doctrines.”5

      “Under the Equal Footing Doctrine, the title to the beds and banks of navigable streams passed to newly-formed states at statehood” says Clemons. “States may, with some restrictions, pass title to these lands to private landowners, but the public retains the right to use the navigable waters for commerce, fishing, and boating under the Public Trust Doctrine. The Ryals court observed that this public right cannot be withdrawn ‘by legislative enactment or judicial decree.’ In other words, the legislature can sell or give away the land under navigable waters but it cannot sell or give away the public’s right to use those waters.” He notes that “[n]one of these cases explicitly decided the public/private status of an oxbow lake. However, when these cases are read together the reasoning suggests very strongly that the Mississippi Supreme Court would consider oxbow lakes to be public waters. This view seems to be shared by the Mississippi Attorney General’s office, which has issued several opinion letters on the subject. In a 1993 letter to Dr. Sam Polles of [MDWFP] the Attorney General quoted with approval the language in Dycus that indicates that all oxbow lakes are public. In separate opinions to the Mississippi Gaming Commission, the Attorney General declared that oxbow lakes are navigable. These letters provide additional strong support for the position that oxbow lakes are public waterways.”

      In a 1996 letter to Sen. Robert Huggins, Attorney General Mike Moore said “[t]his Office has previously issued opinions to the effect that the term ‘water sports’ includes hunting, and thus Section 51-1-4 gives the public a right to the use of public waterways for hunting.”6 Moore also said

nowhere does it state that public waterways as defined in Section 51-1-4 are the only public waters where the public can exercise the right to fish and engage in water sports. Although Mississippi follows the common law rule that riparian owners own the beds of navigable freshwaters to the center of the stream, navigable freshwaters have historically been available to the public for a variety of recreational uses. We find no distinction between public waterways and other public bodies of water when it comes to the public’s right to hunt. We therefore conclude that the public does have the right to hunt on navigable public waters covering private lands.7

      Mr. Clemons adds that “[t]he relevant law strongly indicates that oxbow lakes that were formed by navigable waters or public waterways are public waters. Therefore, a member of the public has a right to use them for, at the very least, boating and fishing, provided he or she does not have to trespass across private land to get there.” Miss. Code A7 51-1-4(3) provides that

[n]othing contained in this section shall authorize any person utilizing those public waterways, under the authority granted by this section, to disturb the banks or beds of such waterways or the discharge of any object or substance into such waters or upon or across any lands adjacent thereto or to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.

 

What about other activities that are normally associated with hunting or fishing, such as wading when duck hunting or crappie fishing, tying trotlines to a bush on the bank, dropping anchor or tying a boat to a tree?

a 1976 opinion addressing hunting public waters, the Attorney General stated that “the statute does not limit the hunting to hunting from boats” and that “wading by a hunter is permissible.”8 In a 1993 opinion the Attorney General declared that “[t]he applicable case law and statutory law would allow someone utilizing public waters to tie to a tree or drop an anchor since this is the normal use by those engaged in fishing or other water sports.”9 He concluded that “a waterfowl hunter has the right to utilize the water surface on any public waterway. This would include the right to float freely on and anchor to the beds of the waterway in order to carry out this sport.” He reiterated that wading is a normal part of hunting and fishing and its legality had been addressed in the 1976 opinion.

Wake up if you fell asleep during that lecture. What you really want to know is where you can go on a public waterway and legally hunt and fish, right? Well, here’s my summary, based on the opinions of the Mississippi Attorney General and the Supreme Court decisions:

1. The public has a right to use the water in a public waterway in Mississippi for hunting, fishing, trapping, boating, etc.

2. The public cannot trespass across private land to get to the water but once you gain legal access to the water of a public waterway, you can legally use the entire waterway. Even though twenty landowners may own land around and under a public waterway, permission from one (or via public ramp) to access the water would give you legal access to the entire waterway.

3. The public’s right to the waterway only applies to water between the natural banks. The public cannot legally step out of the boat and onto the dry bank or bed of a public waterway without landowner permission. If the water has flooded beyond the natural banks, that is not public water.

4. Members of the public can wade, tie off to a tree, drop anchor, drop decoy weights, etc., as long as they are in the water between the natural banks.

If you are considering hunting or fishing the public waters in Mississippi and want to know exactly where you can and can’t go, I suggest getting a good topographic map and/or software, a GPS unit, and a compass. Do your homework! Don’t wait until the opening day of duck season when the river is above flood stage to locate the natural banks of a public waterway. If you study the materials and do some groundwork, you will be better able to stay within the limits of the law. There has been much confusion on the matter between both landowner and the public and it’s the responsibility of both to know what is legal and what is not. Being armed with the correct information before you go afield is both morally and legally the right thing to do. So be careful, be respectful of other people in the great outdoors and don’t put off taking those kids hunting and fishing with you. Enjoy your time spent in the outdoors and don’t forget to thank God for blessing us with so many places to enjoy His creation in the Magnolia State!

Endnotes

1. This article will also be published, in slightly different form, in Mississippi Sportsman magazine. The views expressed are solely those of the author and do not necessarily reflect the policy of any government entity.
2.  Pascagoula Boom Co. v. Dickson, 77 Miss. 587 (Miss. 1900).
3Dycus v. Sillers, 557 So.2d 486, 500 (Miss. 1990).
4Ryals v. Pigott, 580 So.2d 1140, 1152 (Miss. 1990).
5.  Quotes from Mr. Clemons are taken from a June 13, 2005 letter to Dennis Riecke of MDWFP, available at <http://www.olemiss.edu/orgs/SGLC/MS-AL/ - OxbowLakes.pdf>.
6.  Miss. Atty. Gen. Op. 96-0537 (Aug. 30, 1996).
7Id. (internal citations omitted).
8.  Miss. Atty. Gen. Op. (unnumbered) (Dec. 3, 1976).
9.  Miss. Atty. Gen. Op. 93-0836 (Dec. 6, 1993).


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