                REVISED JANUARY 18, 2008
        IN THE UNITED STATES COURT OF APPEALS
                                         United States Court of Appeals
                 FOR THE FIFTH CIRCUIT            Fifth Circuit

                                                                  FILED
                                                              December 28, 2007

                                 No. 06-31045                Charles R. Fulbruge III
                                                                     Clerk


NORMAL PARM, JR; HAROLD EUGENE WATTS; ROY MICHAEL
GAMMILL; WILLIAM T ROGERS; ROBERT ALLEN BALCH

                                           Plaintiffs - Appellants
v.

MARK SHUMATE, in his official capacity as Sheriff of East Carroll Parish

                                           Defendant - Appellee



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before KING, GARZA, and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
      Plaintiffs-appellants Normal Parm, Jr., Harold Eugene Watts, Roy
Michael Gammill, William T. Rogers, and Robert Allen Balch (“Plaintiffs”),
recreational fishermen, appeal the district court’s denial of their summary
judgment motion and the grant of the cross-motion for summary judgment by
defendant-appellee East Carroll Parish Sheriff Mark Shumate (“Sheriff
Shumate”). Plaintiffs brought their claims against Sheriff Shumate under 42
U.S.C. § 1983, alleging that they were falsely arrested for trespass when they
refused to cease fishing on waters covering ordinarily dry, private property (the
“Property”) owned by Walker Cottonwood Farms, L.L.C., successor-in-title to
                                 No. 06-31045

Walker Lands, Inc. (collectively “Walker”). Plaintiffs argue that Sheriff Shumate
lacked probable cause to arrest them for fishing on the Property because the
public has a federal and state right to fish on the Property when it is submerged
under the Mississippi River. Because we disagree, we AFFIRM the district
court’s judgment.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The underlying dispute in this case began over a decade ago, and the facts
have been considered in various forms by multiple courts, including this one.
Plaintiffs are lifelong boaters, hunters, and fisherman who fish on the
Mississippi River in East Carroll Parish and other river parishes in northeast
Louisiana. The water levels of the Mississippi River fluctuate seasonally. In
East Carroll Parish, the normal low water mark is seventy-seven feet above
mean sea level. Yet during the spring season the river floods well beyond its
normal channel—as a result of increased rainfall and snow melt in the
North—and the river regularly rises to as high as one hundred and twelve feet
above mean sea level. It is normal for the river to remain at this level for at
least two months.
      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

                                       2
                                       No. 06-31045

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.
       Plaintiffs have fished the waters of Gassoway Lake when it was flooded by
the Mississippi River, even though they knew that Walker objected to their
presence. In 1996, Walker began filing complaints with Sheriff Shumate against
boaters fishing on Gassoway Lake. Sheriff Shumate responded by arresting
Plaintiffs, and others found on the Property, for trespass.1 While admitting that
they did not have Walker’s permission, Plaintiffs claimed that they were entitled
to fish on the Property when it was flooded because Gassoway Lake was either:
(1) owned by the State of Louisiana on behalf of the public; or (2) subject to state
and federal servitudes.
       The Attorney General for the State of Louisiana agreed with Plaintiffs’
position and issued Louisiana Attorney General Opinion No. 96-206, concluding
that channels of the Mississippi River traversed the Property and were “river
bed” owned by the State. His opinion stated that “Lake Gassoway is a naturally
navigable body of water under both State and Federal law and actually supports
navigation for such purposes as hunting, fishing, [and] trapping . . . .” He also
determined      that    the   Property      was    subject    to   a   public    servitude.
Notwithstanding this opinion, Sheriff Shumate continued to arrest fishermen
found on the Property. However, the East Carroll Parish District Attorney,
James “Buddy” Caldwell, informed Sheriff Shumate that he did not intend to



       1
          Specifically, they were arrested for violating LA. REV. STAT. ANN. § 14:63(B), which
states: “No person shall enter upon immovable property owned by another without express,
legal, or implied authorization.”

                                              3
                                    No. 06-31045

prosecute any of the Plaintiffs for trespass until the ownership and public
servitude issues were resolved. To this day, Plaintiffs have not been prosecuted.
      On June 10, 1996, Walker filed suit in Louisiana state court against the
East Carroll Police Jury, seeking a declaration that it owned the Property and
an injunction prohibiting members of the public from entering without
permission. Walker Lands, Inc. v. Louisiana, No. 17,746, slip op. at 1-2 (La. 6th
Dist. Ct., May 1, 2003). The state trial court issued a temporary restraining
order prohibiting the Police Jury, and all other persons or government agencies,
from entering Gassoway Lake without permission for any purpose, including
boating, fishing, or hunting. Id. at 2. The Police Jury filed a third-party demand
against the State of Louisiana. The State was added as an indispensable party,
and the Police Jury was eventually dismissed. Id. On March 16, 1998, the court
granted Walker’s motion for summary judgment and issued a permanent
injunction. Id. The State appealed to the Second Circuit Court of Appeal of
Louisiana, which reversed, holding that the issues could not be resolved on
summary judgment. Id.; Walker Lands, Inc. v. East Carroll Parish Police Jury,
No. 31,490, slip op. at 5 (La. Ct. App., March 5, 1999).
      On December 17, 2001, with the state trial court yet to issue a final
decision, Plaintiffs filed this case in federal district court. Plaintiffs alleged that
Sheriff Shumate lacked probable cause to arrest them in light of the opinion of
the State Attorney General and the decision of the Second Circuit Court of
Appeal. They claimed that:
             Until there is rendered a final judgment in the
             litigation pending in the Sixth District Court between
             [Walker] and the State of Louisiana, there is not
             sufficient legal evidence to prove, beyond a reasonable
             doubt, that the use of the naturally and regularly

                                          4
                                   No. 06-31045

             navigable waters of the Mississippi River, including
             those navigable waters that include Gassoway Lake,
             Little Gassoway, the old channel and Bunch’s Cut-Off,
             results in a criminal trespass of the land of [Walker,] so
             long as the Plaintiffs utilize naturally occurring,
             navigable waters of the Mississippi River.
Plaintiffs sought damages for false arrest under 42 U.S.C. § 1983 and an
injunction prohibiting further arrests for fishing on the Property until a “final
judgment is rendered by a court of competent jurisdiction, specifying the
ownership and navigational rights of the State of Louisiana and [Walker]
relative to the [Property] . . . during normal water heights . . . .”
      On June 4, 2002, Plaintiffs filed a motion for summary judgment, and on
July 8, 2002, Sheriff Shumate filed a cross-motion for summary judgment or, in
the alternative, a motion to stay the case pending resolution of the state court
proceedings. Both motions were referred to a magistrate judge for a report and
recommendation. Because there was a “reasonable probability that the state
courts [might] find the waters at issue to be navigable and thus public,” the
magistrate judge held that a federal decision in this case could be obviated by
the state proceeding. The district court adopted the report and recommendation,
stayed the federal case, and Plaintiffs appealed. In an unpublished decision, we
agreed that the questions of Louisiana law, then pending in a Louisiana court,
might “render it unnecessary for federal courts to decide the constitutional
issues presented in this case[,]” and affirmed the district court’s stay. Parm v.
Shumate, No. 02-31183, slip op. at 6 (5th Cir. June 16, 2003).
      On May 1, 2003, the state trial court ruled that Walker owned the
Property and had the right to exclude the public from it. Walker Lands, No.
17,746, slip op. at 1; see also Walker Lands, Inc. v. East Carroll Parish Police


                                         5
                                     No. 06-31045

Jury, 871 So.2d 1258, 1261 (La. Ct. App. 2004). The court first noted that it was
undisputed that the Property was either woodland or farmland in 1812, the year
that Louisiana was admitted to the Union as a State.2 Walker Lands, No.
17,746, slip op. at 1; Walker Lands, 871 So.2d at 1261. It found that during the
1860s and 1870s, the Mississippi River slowly but gradually shifted westward
and submerged the Property. Walker Lands, No. 17,746, slip op. at 1; Walker
Lands, 871 So.2d at 1261. When the river subsequently shifted back eastward,
it left behind a swale—a shallow depression in the land—which became
Gassoway Lake through alluvion or accretion.3 Walker Lands, No. 17,746, slip
op. at 11-12; Walker Lands, 871 So.2d at 1261. Gassoway Lake and the other
natural bodies of water on the Property were formed before 1910, when private
landowners purchased it. Walker Lands, No. 17,746, slip op. at 11; Walker
Lands, 871 So.2d at 1261. Moreover, the court determined that none of the
waters on the Property were navigable. But for the man-made drainage ditch
connected to Bunch’s Cutoff and other structures, the court held, Gassoway Lake
itself would be non-existent during the summer months. Walker Lands, No.
17,746, slip op. at 12-13. Since the waters lying on the Property were not
navigable in fact, the trial court entered a permanent injunction prohibiting the
public-at-large from going on Gassoway Lake, or on the land between Gassoway




      2
        Bodies of water formed before 1812 are owned by the State. See Dardar v. LaFourche
Realty Co., Inc., 985 F.2d 824, 826-27 (5th Cir. 1993).
      3
          Alluvion and accretion are used synonymously to describe the addition of soil by
gradual deposit. Walker Lands, 871 So.2d at 1264 n.13. Under Louisiana law, “[a]ny alluvion
. . . which forms along the banks of a river belongs to the riparian landowners who own the
land adjacent to the river, when the river shifts course.” Id. at 1264 (citations omitted).

                                            6
                                   No. 06-31045

Lake and the Mississippi River. Walker Lands, No. 17,746, slip op. at 12-14;
Walker Lands, 871 So.2d at 1262-63.
      The State appealed the trial court’s decision to the Second Circuit Court
of Appeal, which affirmed in part and reversed in part. Walker Lands, 871 So.2d
at 1268-69. The appellate court accepted the trial court’s findings of fact and
held that the Property was privately owned. The court rejected the State’s
argument that the Property was the bed of the Mississippi River—and therefore
owned by the State—because a river’s bed consists only of the land lying below
the river’s ordinary low water mark. Id. at 1262 n.7. It did not matter that the
Mississippi River sometimes flooded the Property. Id. at 1264.
             Privately owned land does not become part of a
             navigable body of water when a nearby navigable body
             of water overflows its normal bed and temporarily
             covers the property. Gassoway Lake is landlocked and
             does not now lie in the bed of the Mississippi river,
             which is some three and one-half miles to the east;
             likewise, it is not a channel of the river, since it is cut
             off from it.
Id. (citations omitted). In addition, the court held that Gassoway Lake was not
a navigable body of water owned by the State because it was not a navigable
body of water in fact. Id. at 1265-66.
      Nevertheless, the Second Circuit Court of Appeal lifted the state trial
court’s injunction because Walker lacked standing to seek relief against a
hypothetical public-at-large. Id. at 1267. The court stated that while “[o]wners
of private property may forbid entry to anyone for purposes of hunting or fishing
and the like[,]” Walker could only ask for relief against a specific individual after
that person had invaded the Property. Id. The court declined to resolve whether
there was a public servitude on the Property during the Mississippi River’s peak

                                         7
                                  No. 06-31045

stage. It observed that under Louisiana law, the bank of the Mississippi River
consists of all the land lying between its ordinary low and high water marks,
which includes all of the Property, and noted that a public servitude preserves
a river’s bank for the public’s navigational use. Id. at 1268 & n.16. And while
it stated that “[f]ishing and hunting on flooded lands do not meet the definition
of using the bank of a river at its high water mark for a navigational purpose[,]”
id. at 1268 n.6 (citations omitted), it “pretermit[ted] discussion” of the issue
because the State had not properly raised it, id. at 1268.
      On June 3, 2005, the Second Circuit Court of Appeal’s decision became
final when the Louisiana Supreme Court denied the State’s application for a writ
of certiorari. In light of the conclusion of the state court proceedings, on August
16, 2005, the district court lifted the stay in this case. The court ordered the
parties to file supplemental briefs in support of their cross-motions for summary
judgment and referred the matter to a magistrate judge for a report and
recommendation. Sheriff Shumate filed briefs arguing that: (1) the case was
moot because Plaintiffs merely sought relief “until the Second Circuit rules”; (2)
there is no federal or state right to fish on private property above the Mississippi
River’s ordinary low mark; and (3) even if there was such a right, he was entitled
to qualified immunity because it was not a clearly established constitutional
right. Plaintiffs, on the other hand, argued that they were entitled to summary
judgment because there is both a state and federal right to fish on the Property
when it is submerged under the Mississippi River. They asserted that the case
was not moot because their complaint sought damages for false arrest and an
injunction, not just until the state proceeding was complete, but until the
public’s “navigational rights” were determined. Finally, they contended that


                                         8
                                  No. 06-31045

Sheriff Shumate was not entitled to qualified immunity because he was not
being sued in his personal capacity.
      On April 21, 2005, the magistrate judge issued his report and
recommendation. He rejected Sheriff Shumate’s alternative arguments, stating
that: (1) the case was not moot because the state appellate court expressly
pretermitted ruling on the issue of navigational rights; and (2) Sheriff Shumate
was not entitled to qualified immunity because the case was not brought against
him in his personal capacity. Turning to the fundamental question in the case,
the magistrate judge held that no federal statute authorized Plaintiffs to fish on
the Property, nor did the “federal navigational servitude,” which is derived from
the Commerce Clause of the United States Constitution, grant persons the right
to fish on navigable waters. However, the magistrate judge determined that
federal common law did create a right to fish on navigable waters, and that this
public right burdens the Property when it is submerged under the waters of the
Mississippi River. Similarly, the magistrate judge held that Louisiana law
grants to the public the right to use—including for purposes of fishing—the
“running waters” found in the State, regardless of the river’s stage.
      On August 29, 2006, the district court adopted the report and
recommendation in part. It agreed that neither federal statutes nor the federal
navigational servitude provides Plaintiffs with the right to fish on the Property.
The district court disagreed, however, with the magistrate judge’s determination
that federal common law and state law granted such a right. The district court
stated that while this court has recognized a public right to reasonably use
navigable waters, we have not found a right to fish on private lands. Moreover,
although the district court found that the Property is a bank of the Mississippi
River under Louisiana law and subject to a state servitude, the servitude “is

                                        9
                                   No. 06-31045

limited to activities that are incidental to the navigable character of the
Mississippi River and its enjoyment as an avenue of commerce. . . . [F]ishing and
hunting are not included in these rights.” Accordingly, the district court found
that Sheriff Shumate had probable cause to arrest Plaintiffs for trespass and
entered summary judgment on Sheriff Shumate’s behalf.
      This timely appeal followed.
                               II. DISCUSSION
      We review a grant of summary judgment de novo, viewing all the evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
      In order to prevail in a § 1983 claim for false arrest, a plaintiff must show
that he was arrested without probable cause in violation of the Fourth
Amendment. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (citations
omitted). In a suit brought against a municipal official in his official capacity,
the plaintiff must show that the municipality has a policy or custom that caused
his injury. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Monell v. N.Y. City
Dept. of Soc. Servs., 436 U.S. 658, 689 (1979). If a municipal officer who has
authority to establish final municipal policy makes a decision or orders a course
of action, the municipality may be held liable for the officer’s decision or order.


                                        10
                                  No. 06-31045

Pembaur v. City of Cincinnati, 475 U.S. 469, 480-82 (1986); see also Turner v.
Upton County, Texas, 915 F.2d 133, 136 (5th Cir. 1990) (holding that the
municipality may be held liable for the illegal or unconstitutional actions of its
final policy-makers as they engage in the setting of goals and the determination
of how those goals will be achieved).
      In this case, Sheriff Shumate does not argue that he lacked final policy-
making authority. Nor does he continue to argue that he is entitled to qualified
immunity, accepting Plaintiffs’ assertion that they do not seek to hold him liable
in his individual capacity. The key issue, therefore, is whether Plaintiffs have
either a federal or state right to fish on the Property in the spring during the
Mississippi River’s normal flood stage. If they do not, Sheriff Shumate had
probable cause to arrest them for trespass and was entitled to prevail on
summary judgment.
A. Federal Rights
      Plaintiffs argue that they have a federal right to fish on the Property when
it is covered by the Mississippi River’s waters because the Mississippi River is
a navigable waterway of the United States.         They contend that a federal
navigational servitude burdens the Property, creating a public right to fish
there. Plaintiffs also assert that there is a corresponding federal common law
right to fish on the navigable waters of the United States. In response, Sheriff
Shumate argues that: (1) the Property is not burdened by any federal easements
because the Property is not a navigable waterway in fact; (2) the federal
navigational servitude does not create a right to fish; and (3) there is no federal
common law affecting riparian land owners’ property interests.
      It is well established that the Commerce Clause of the United States
Constitution gives the federal government a “dominant servitude” over the

                                        11
                                       No. 06-31045

navigable waters of the United States. United States v. Cherokee Nat. of Okla.,
480 U.S. 700, 704 (1987) (citation omitted). The so-called navigational servitude
extends “laterally to the entire water surface and bed of a navigable waterway,
which includes all the land and waters below the ordinary high water mark.” 33
C.F.R. § 329.11(a); see also United States v. Rands, 389 U.S. 121, 123 (1967). A
river’s ordinary high water mark is set at “the line of the shore established by
the fluctuations of water . . . .” 33 C.F.R. § 329.11(a)(1). It is ascertained by
“physical characteristics such as a clear, natural line impressed on the bank; . . .
changes in the character of the soil; destruction of terrestrial vegetation; . . . or
other appropriate means that consider the characteristics of the surrounding
areas.” Id. The navigational servitude does not burden land that is only
submerged when the river floods. Oklahoma v. Texas, 260 U.S. 606, 632 (1923);
United States v. Harrell, 926 F.2d 1036, 1041-43 (11th Cir. 1991); United States
v. Claridge, 416 F.2d 933, 934 (9th Cir. 1970).4
       As implied by its very name and the constitutional provision from which
it arises, the federal navigational servitude is concerned with navigational rights
and commerce. See United States v. Montana, 450 U.S. 544, 551 (1981) (“The
State’s power over the beds of navigable waters remains subject to only one


       4
         Plaintiffs argue that the Property is below the high water mark based on the Second
Circuit Court of Appeal’s finding that the high water mark is one hundred and twelve feet
above mean sea level (the high water mark during the spring flooding season). The
explanation for the Louisiana court’s conclusion is that Louisiana has rejected the federal
definition of high water mark and relies, instead, on the ordinary seasonal flood levels.
DeSambourg v. Bd. of Comm’rs for the Grand Prairie Levee Dist., 621 So.2d 602, 612 (La.
1993). Unfortunately, neither party submitted sufficient summary judgment evidence to
determine where the federal high water mark lies, although it is unlikely that it includes much
of the Property. See Harrell, 926 F.2d at 1043 (“To argue that the government’s jurisdiction
should extend laterally as much as three miles on either side of the Tombigbee river is
ludicrous.”).

                                              12
                                  No. 06-31045

limitation: the paramount power of the United States to ensure that such
waters remain free to interstate and foreign commerce.”); Kaiser Aetna v. United
States, 444 U.S. 164, 177 (1979) (“The navigational servitude . . . gives rise to an
authority in the Government to assure that such streams retain their capacity
to serve as continuous highways for the purpose of navigation in interstate
commerce.”); United States v. Chi. M., St. P. & P.R. Co., 312 U.S. 592, 596 (1941)
(“[T]he rights of the title holder are subordinate to the dominant power of the
federal Government in respect of navigation.”) (citing Gibson v. United States,
166 U.S. 269, 272 (1897)).      Neither navigation nor commerce encompass
recreational fishing. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469,
482-84 (1988) (noting that fishing is not related to navigability); George v.
Beavark, Inc., 402 F.2d 977, 981 (8th Cir. 1968) (“Although the rule on
navigability has been at times liberalized, to our knowledge none of the
authoritative cases has liberalized the rule so as to indicate that mere pleasure
fishing on a stream of water is such usage as would constitute navigability.”).
Accordingly, the navigational servitude does not create a right to fish on private
riparian land.
      Moreover, Plaintiffs’ claim to a federal right ignores “the ‘general
proposition [that] the law of real property is, under our Constitution, left to the
individual States to develop and administer.’” Phillips Petroleum, 484 U.S. at
484 (citation omitted). Louisiana took title to all lands below navigable waters
in its boundaries when it was admitted to the Union. Dardar, 985 F.2d 824, 826-
27 (citation omitted); see also Texas v. Louisiana, 410 U.S. 702, 714 (1973); Utah
v. United States, 403 U.S. 9, 10 (1971); Pollard’s Lessee v. Hagan, 44 U.S. 212,
230 (1845). It has broad authority to regulate public trust lands, including the


                                        13
                                        No. 06-31045

Property, as it sees fit. See Phillips Petroleum, 484 U.S. at 482-84. Louisiana
may regulate or prohibit the use of land held in public trust. See McCready v.
Virginia, 94 U.S. 391, 395 (1876) (upholding a state statute that prohibited non-
state citizens from planting oysters in tidal lands); Smith v. Maryland, 59 U.S.
71, 74-75 (1855) (upholding a state statute that prohibited a federally licensed
ship from dredging for oysters in the Chesapeake Bay). It may “retain[] for the
general public the right to fish, hunt, or bathe on these lands.”                      Phillips
Petroleum, 484 U.S. at 482-84. Or, as it did here, it may relinquish title to a
private landowner. Id. at 483; see also Dardar, 985 F.2d at 830 (stating that
Louisiana may relinquish lands that are periodically overflown by the waters of
the Mississippi). In any event, as things now stand, the right to fish on public
trust lands is governed by Louisiana law, and there is no reason for us to
displace that law by adopting a federal rule of decision in this context.5 See
Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966) (stating that it is for
Congress to decide whether latent federal power should be exercised to displace
state law).




B. State Navigational Servitude



       5
           Plaintiffs’ argument to the contrary based on purported federal common law is
unavailing. Plaintiffs point us to state court decisions that provide citizens with a state right
to fish on navigable waters. But those cases merely prove that states generally regulate the
use of public trust lands. Plaintiffs also rely on Silver Springs Paradise Co. v. Ray, 50 F.2d
356, 359 (5th Cir. 1931), where we stated that the owner of the bed of a navigable body of
water in Florida could not enjoin the public from using the waters “for boating or sailing for
pleasure.” But again, Silver Springs is inapplicable because it applied state law to determine
the scope of navigational rights. Id.

                                              14
                                  No. 06-31045

      Plaintiffs argue that a state servitude burdens the Property and grants
them the right to fish upon it when it is flooded. Plaintiffs assert that this right
exists in the Louisiana Constitution, which provides that the freedom to hunt,
fish, and trap wildlife is a valued natural heritage that will be forever preserved.
See LA. CONST. art. I, § 27. They also find support in the Louisiana Civil Code,
which provides that everyone has the right to fish in the State’s rivers. See LA.
CIV. CODE ANN. art. 452. Finally, they contend that the Property is burdened by
the State for the public’s use because Louisiana owns all of the running waters
in the State. See id. art. 456. In response, Sheriff Shumate argues that the
right to fish in Louisiana is explicitly limited to public lands and does not extend
to private riparian property. Moreover, he argues that the Second Circuit Court
of Appeal, while failing to hold that the Property is free of a state servitude
because the issue was not properly raised, left a “guide post” for this court by
noting in passing that the public does not have a right to fish on private lands.
We agree with Sheriff Shumate.
      First, the Louisiana Constitution, far from creating a private right to fish
on the Property, explicitly reserves to private property owners the right to refuse
consent to fishermen’s entry on their land. The article Plaintiffs rely on reads:
            The freedom to hunt, fish, and trap wildlife, including
            all aquatic life, traditionally taken by hunters, trappers
            and anglers, is a valued natural heritage that shall be
            forever preserved for the people. . . . Nothing contained
            herein shall be construed to authorize the use of private
            property to hunt, fish, or trap without the consent of
            the owner of the property.




                                        15
                                       No. 06-31045

See LA. CONST. art. I, § 27.6 When the article is read in full, it is plain that the
right to fish is circumscribed and does not extend to waters on private property.
       Second, the Louisiana Civil Code does not create a right to fish upon the
Property, even if we assume that the Property in its entirety is a bank of the
Mississippi River. Under Louisiana law, the “banks of navigable rivers are
private things that are subject to public use.” LA. CIV. CODE ANN. art. 452; see
also Buckskin Hunting Club v. Bayard, 868 So.2d 266, 275-76 (La. Ct. App.
2004). The public use, however, is limited to use for navigational purposes.
Walker Lands, 871 So.2d at 1268 n.6 (citations omitted); Buckskin Hunting Club,
868 So.2d at 276 (citation omitted). As stated in the comments to article 456,
“[a]ccording to well-settled Louisiana jurisprudence, which continues to be
relevant, the servitude of public use under this provision is not ‘for the use of the
public at large for all purposes’ but merely for purposes that are ‘incidental’ to
the navigable character of the stream and its enjoyment as an avenue of
commerce.” LA. CIV. CODE ANN. art. 452 cmt. b (citations omitted). The Second
Circuit Court of Appeal noted, in the parallel state proceeding, that fishing on
the banks of the Mississippi River does not meet the definition of a navigational
use. Walker Lands, 871 So.2d at 1268 n.6 (citations omitted). We agree. See,
e.g., State v. Barras, 602 So.2d 301, 305 (La. Ct. App. 1992) (holding that fishing
was not incidental to navigation); Edmiston v. Wood, 566 So.2d 673, 675-76 (La.
Ct. App. 1990) (same).




       6
         This section of the Louisiana Constitution did not become effective until December 7,
2004. We, therefore, do not cite it for the proposition that Sheriff Shumate had probable cause
to arrest Plaintiffs, but to show that the hortatory passage Plaintiffs rely on is limited in
nature.

                                              16
                                 No. 06-31045

      Finally, we reject Plaintiffs’ argument that they have the right to fish on
the Property when it is submerged under the Mississippi River because “running
waters” are public things owned by the State. Under Louisiana law, “public
things” belong to the State, and “public things” include “running waters.” LA.
CIV. CODE ANN. art. 456. Plaintiffs argue that the public has a right to fish on
the running waters of the State based on Chaney v. State Mineral Bd., 444 So.2d
105 (La. 1983). In that case, the Louisiana Supreme Court stated that the
running waters over non-navigable streams are preserved for the general public.
Id. at 109. This court has since determined that claims to the use of waterways
based on Chaney have “failed to carry the day in Louisiana courts.” Dardar, 985
F.2d at 834 (citation omitted). We have no reason to deviate from that holding.
To the contrary, the Third Circuit Court of Appeal of Louisiana recently stated
that although an owner must permit running waters to pass through his estate,
Louisiana law “does not mandate that the landowner allow public access to the
waterway.” Buckskin Hunting Club, 868 So.2d at 274.
                             III. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s judgment.




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