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Parm v. Shumate - 513 F.3d 135 (5th Cir. 2007)


A state servitude is limited to activities that are incidental to the navigable character of the Mississippi River and its enjoyment as an avenue of commerce. Fishing and hunting are not included in those rights.


Plaintiffs, several individuals fishers including Parm, Watts, Gammill, Rogers, and Balch (Parm), often fished on the waters of Gassoway Lake, a lake that only existed when the Mississippi River flooded during the spring. Ordinarily, the area was dry, private property owned by a limited liability company (LLC). Walker Inc., the predecessor-in-interest of the LLC, frequently objected to the fishers' presence, and began filing complaints with defendant Sheriff Shumate against boaters fishing on Gassoway Lake. Sheriff Shumate responded by arresting Parm for trespassing.

Plaintiffs Parm brought their claims against defendant Sheriff Shumate under 42 U.S.C. § 1983, alleging that they were falsely arrested for trespass when they refused to cease fishing on the Lake's waters, arguing that Sheriff Shumate lacked probable cause to arrest them for fishing because the public has a federal and state right to fish on the property when it is submerged under the Mississippi River. The district court decided against Parm on the ground that neither federal statutes nor the federal navigational servitude provides them with the right to fish.  Parm appealed the decision of the district court.


Did plaintiffs have either a Federal or State right to fish on the private property in the spring during the Mississippi River’s normal flood stage?




The Court held that navigational servitude in the Commerce Clause of the U.S. Constitution did not give the fishermen the right to fish on the property. Moreover, the law of real property was, under the U.S. Constitution, left to the individual states to develop and administer, and Louisiana took title to all lands below navigable waters in its boundaries when it was admitted to the Union. Neither La. Const. art. I, § 27 nor La. Civ. Code Ann. art. 452 created a right to fish upon the property, even if the property in its entirety was assumed to be a bank of the Mississippi River. The Court added that Parm did not have a right to fish on the property when it was submerged on the basis that running waters were public things owned by the Louisiana under La. Civ. Code Ann. art. 456. Finally, the Court resolved that while the LLC had to permit running waters to pass through its estate as they are preserved for the general public, state law did not mandate that it had to allow public access to the lake.

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