Lawsuit, Legislation Muddy The Waters On Access To Flint River’s Yellow Jacket Shoals
"Public Fishing Not Allowed at Privately Owned Portion of Yellow Jacket Shoals," according to DNR Press Release.
Currently, anglers who fish the Yellow Jacket Shoals section of the Flint River without landowner permission are trespassing. The state of Georgia on March 23, 2023 settled a lawsuit brought by landowners along the banks of the Flint River at Yellow Jacket Shoals that appeared to resolve the long-simmering issue of whether the public could fish the shallow, rocky chutes of water that teem with unique Flint River shoal bass. No public fishing allowed—signed, sealed and delivered by both parties and a Superior Court Judge. Then, in what can only be described as a legislative Hail Mary, a law was passed in the very final moments of the 2023 Georgia legislative session in response to the court agreement that proponents say could save public fishing access to Yellow Jacket Shoals, if the measure is signed into law by Gov. Brian Kemp.
At its core, the issue along the shoals on the Upson and Talbot County line is local. Landowners have deeds that show they own to the center line of the river channel. Fishermen with the backing of the state of Georgia and its Department of Natural Resources (DNR) say the waters are navigable, which is the legal determining factor for public access to free-flowing waterways. But the issue of navigable waters, public access and the rights of private property owners stretches far beyond the gurgling waters of Yellow Jacket Shoals. Anglers on one side and private property owners on the other side are nervous about precedent. How do court rulings and new state laws affect access on waterways where the public is currently allowed? And on the opposite spectrum, private property owners along waterways far more ‘navigable’ than Yellow Jacket Shoals worry that precedent would open their property to the public.
The court agreement sided with the landowners, but even before a joint press release could be issued, the state legislature acted. Here is the press release, drafted before the legislation: “The state of Georgia and its Department of Natural Resources (DNR) have entered into a Final Judgement and Order with a landowner, Four Chimneys LLLP, regarding a portion of the Yellow Jacket Shoals, which is part of the Flint River. DNR acknowledges the landowner has the exclusive right to control fishing to the center of the river on the portion of the Flint River abutting its property. This resolves months of litigation between the landowner and DNR.
“Last year, officers with DNR’s Law Enforcement Division made statements to Georgia Outdoor News and the Georgia Recorder stating DNR would not issue citations for fishing without permission, O.C.G.A. 27-4-2, at Yellow Jacket Shoals, because DNR considered the Flint River, and in particular Yellow Jacket Shoals, to be a navigable river open to the public. These statements prompted Four Chimneys to file a lawsuit asserting the right to control fishing in that section of the river.
“Georgia law recognizes that an owner of land riparian to a freshwater stream may claim ownership of the stream beds adjoining its property if the landowner can trace title back to a valid State grant issued prior to 1863. After a thorough review of the relevant information, it was determined that the landowner holds title to a portion of the riverbed by virtue of valid State grants issued prior to 1863 to the adjoining upland property, and therefore under Georgia law the landowner and its successors in title hold the exclusive right to fishing on that property to the center of the river.
“DNR notes the Final Judgement and Order does not speak to whether the Flint River at Yellow Jacket shoals is ‘navigable’ under Georgia law. As part of the Final Judgement and Order, the landowner does not contest or oppose the public’s ability to float through and enjoy this section of the river. However, because the landowner owns the riverbed to the center of the river, the public does not have the right to fish on that property.”
Attorney Brooke Gram was part of the legal team representing Four Chimneys, the landowners at Yellow Jacket Shoals. “My clients are glad the State of Georgia and DNR recognized that ownership of the riverbed and the exclusive right to control fishing are part of the bundle of rights conveyed to my clients when they purchased this property 50 years ago,” Gram said. “The Court Judgment and Order confirms my clients own these rights, and we view the matter resolved. We remain confident the Flint River at Yellow Jacket Shoals is, as anyone who has been there and seen it knows, indisputably a non-navigable stream. We stand ready and able to prove that if needed. Most importantly, the Court’s Order confirms private property rights are sacred in Georgia.”
The court order deeming that public fishing would not be allowed at Yellow Jacket Shoals came with only days remaining in the 2023 Georgia legislative session—and well past the March 6 Crossover Day, the day by which a bill generally must pass out of its originating legislative chamber to be considered by the other chamber. The process for a new Georgia state law involves lots of steps—introduction, discussion and passage out of a committee before a House or Senate chamber floor vote, and then it goes to the other chamber for committee discussion before committee passage and a possible floor vote by that chamber. So how did something get passed just before midnight in the final moments of the legislative session?
The Hail Mary involved stripping out the entire language of Senate Bill 115 and leaving nothing but the bill number. SB115 dealt with life insurance for National Guard members, and it wasn’t going to pass. SB115 then became: “The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and, as sovereign, is trustee of its peoples’ rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine. The state continues to hold title to all such stream beds, except where title in a private party originates from a valid Crown or state grant before 1863. The General Assembly further finds that the public retained the aforementioned rights under such doctrine even where private title to beds originates from a valid grant.”
Advocates for public fishing access to Yellow Jacket Shoals see this as a major victory. Mike Worley, President and CEO of the Georgia Wildlife Federation, said he is hopeful the Governor will sign SB115 into law.
“I’m assuming the Governor will sign,” Worley said. “It has to go through the normal review process, make sure it’s constitutional. All laws have to go through that review. When it is signed, it will clear up this question on who owns the right to fish and grants them to the people of Georgia. I think that is a terrific thing for fishermen in the state, people who love the outdoors.
“I want folks to understand this law does not change the definition of navigability. Folks that have non-navigable streams are not included. I don’t think this completely settles the issue, other than that all Georgians have the right to fish on streams deemed navigable. That is fixed. The future question to be answered is a clearer definition of navigability,” Worley said.
Attorney Brooke Gram said, “As I understand it, SB115 has not yet been signed into law so its impact remains undetermined. That said, it does appear SB115 did not receive the review process typical of legislation. Instead, on the last night of the session, a National Guard insurance bill was stripped and replaced with the current SB115 language. From a lawyer’s perspective, I’ve got some general concerns related to its actual impact on landowners’ current property rights and the constitutionality of that impact, if any. There are additionally, potentially, larger scale ramifications related to SB115’s attempt to create a public trust doctrine related to Georgia’s waters and restricting an abutting landowners’ ability to use those waters in the same way Georgians have used them for decades.”
If and when SB115 is signed into law, the status of public fishing access to Yellow Jacket Shoals may again change. For now, there’s a DNR press release on its website with the headline “Public Fishing Not Allowed at Privately Owned Portion of Yellow Jacket Shoals.”
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