Parm v. Shumate

• Decision Date: 28 December 2007
• Docket Number: No. 06-31045.,06-31045.
• Citation: 513 F.3d 135
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

513 F.3d 135

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.

No. 06-31045.

United States Court of Appeals, Fifth Circuit.

December 28, 2007.

Paul Loy Hurd (argued), Law Offices of Paul Loy Hurd, Monroe, LA, for Plaintiffs-Appellants.

Craig Edmond Frosch (argued), Usry, Weeks & Matthews, New Orleans, LA, for Shumate.

Newman Trowbridge, Jr., Lafayette, LA, for Amicus Curiae, LA Landowners Assn.

Constance Charles Willems, McGlinchey Stafford, New Orleans, LA, for Amicus Curiae, Walker Cottonwood Farms, LLC.

James A. Burton, Simon, Peragine, Smith & Redfearn, New Orleans, LA, for Amicus Curiae, Edward Wisner Donation.

Appeals 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 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 in creased 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 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 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, 1999 WL 385904 (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 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, 73 Fed.Appx. 78 (5th Cir.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 Jury, 871 So.2d 1258, 1261 (La.Ct.App.2004). Thee 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...