That apparent crinkle in the law is fueling a battle between landowners and non-landowners in Mississippi and, in many cases, native Delta hunters and fishermen and their visiting Jackson, Miss., and Memphis, Tenn., counterparts.
“It’s a messy and difficult issue, but the bottom line is this is a fight about duck hunting,” says Chuck Barlow, general counsel for the Mississippi Department of Environmental Quality in Jackson.
Barlow, who spoke at a Delta Council committee meeting in Stoneville, says the Department of Environmental Quality has no authority to decide if a waterway is public under the state’s common law. The agency does, however, have a say in determining if a waterway meets the state statute designating what is considered a “public” waterway.
The state statute Barlow refers to is Mississippi Code Annotated Sec. 51-1-4. Written in the mid-1980s, the statute says that “such portions of all natural flowing streams having a mean annual flow of not less than 100 cubic feet per second shall be public, and shall have the right of free transport in the stream and its bed, and the right to fish and engage in water sports.”
While that legal description may sound like it covers only very large waterways, Barlow says, “An annual flow of 100 cubic feet per second is not a wall of water. You can have a fairly small stream of water, and it can meet the statute.”
Further complicating matters, the common laws of Mississippi read somewhat differently, and are far less precise. According to the latter, a waterway can be considered “public” if it is used in any way in interstate commerce; if it is navigable “in fact;” if it is any part of the Mississippi River tributary system; or if it has been used by the general public for at least the last 10 years.
If any of these conditions have been met, then it may be possible for a waterway to be considered “public,” enabling the general public to use it at their “own risk.”
Unfortunately, however, the confusion does not end there. State law only applies to water in its “normal streams and banks.” It does not make floodwaters public.
“It gets very difficult to tell what is flood water, and what is not, when it comes to swampy areas. It is relatively easy to tell where the bank of a stream or river is located, but determining where the banks of a swamp are located is easier said than done,” says Barlow.
Confused? You’re not alone. The issue of which bodies of water in the state are public, and which are not, has been building for years, and those on both sides of the argument appear convinced their rights to the water supercede those of their opponents.
On one side of the debate there are the non-landowners who say they have used a waterway for decades, and should be allowed to continue to do so. They also complain about what they consider to be an inadequate number of public recreational areas in the state.
Many landowners, however, want to protect their right to privately hunt and fish the land, and included bodies of water, they pay taxes on as property “owners.”
“It’s a convoluted and complicated issue, and unfortunately, it’s a problem that DEQ is stuck in the middle of,” Barlow says.
What it all boils down to, Barlow says, is if a waterway is designated as “public,” then the public must have access to it for recreational use or otherwise. “The state owns the water itself, and the people of the state have the right to use that water. However, private individuals may own the beds and the banks of streams, or any other sort of waterway,” he says. “While people cannot trespass on your property to get on that water, they can use the waterway because it is part of public domain.”
The question remains, however, as to which Mississippi waterways are considered “public,” and which are considered “private.” While there does not appear a decisive answer one way or the other at this point, recent state legislation could prove indicative of future rulings on the issue.
A recent ruling by the Mississippi state legislature regarding the Buffalo River declared that when a waterway is taken off the Department of Environmental Quality’s list of public waterways, under common law it is still presumed to be public until a court decides otherwise.
Barlow says that tells him that whatever the Department of Environmental Quality does regarding its list of public waterways “really doesn’t matter.” What really matters, he says, is the final disposition of a case in court.
“There are five other ways a waterway can be made public that have nothing at all to do with the state statute concerning public waterway designations,” Barlow says. “There are several arguments that could be made about the common law of Mississippi in court, and a judge could find in favor of any one of those arguments, no matter what the Department of Environmental Quality decided on the issue.”