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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.
Daryl Kirby | April 4, 2023
The Flint River where it passes through the rocks and chutes at Yellow Jacket Shoals.
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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Last I knew if the waterway was navigable you could be on it…BUT the second you stepped onto land you would be considered trespassing. You can float the stream or whatever connected waterway but you can’t walk the stream bed pulling your boat or kayak..navigable has always meant that. You can own the land under the water.. that’s fine. And you can control people being on your land. That section from what I seen in the video is NOT easily navigable.. so people have to walk portions of private property which the land owner has the right to protect. They just used the DNR as a scapegoat for their lawsuit which should have simply been tossed out and made local level law enforcement arrest people for trespassing, nothing more. I get not wanting people on private property.. I’m dealing with this shit on an almost daily basis, but the way they went about it is wrong.
The issue here is the need for a legal definition of the term “navigable stream.”
Currently, only portions of Ga’s larger rivers have been designated at navigable by USACE. GADNR currently follows the USACE designations. Basically, the state owns the stream bed if designated navigable.
There has always been an unresolved issue about legal access to our “non-navigable” streams, especially those with state public boat ramps.
Fixing this issue is long overdue and historically it has required a court case per stream to mitigate….unfortunately.
And another thing, I’m not at all sure this ‘new law’ is really even about fishing. Could just as easily be about the State or Feds getting more control over rivers, creeks and water rights.
Honestly, very disheartening to learn that the state, governor and groups claiming to act in the best interest of the public can pull some heavy political weight and shady strategy in the final hour to protect their own hobbies at the expense of tax paying property owners. Would be nice if we could get something done that fast for the state to actually protect vulnerable groups of people. It’s not even like anyone was trying to close that section of the river to the public……Could be a lot worse like it is in Colorado with the strung up barbed wire.
I agree with redeyecoosa, if you have ever been on that beautiful part of the Flint you immediately know it is not navigable and in fact the features that make it non navigable just add to the beauty. I have wondered how it is possible for a bunch of guides who charge people to fish on the land that family bought and pays taxes on. I think one of them has the last name Rogers. Surely that fishing guide is not related to the Gordon Rogers guy who is with Flint River keepers and is pushing to make all this public property. That seems like really shabby conduct if you are trying to use your own position with FRP to take someone’s private property rights so your own family can profit. Hopefully they are not actually related and it is just a coincidence. BTW: Does anyone know if they are having the Lilly Festival this year? The Lillies are beautiful!
I’m typing this as ‘hearsay’. I’m confused by the situation between Gordon and Quint and the owners at Four Chimneys because I heard that Quint is good friends with the Four Chimneys family and may be bandmates in a local band with one of them. Just seems like a strange existence to have Gordon pushing to have the rights for the fisherman while his son is buddies with the family. However, maybe the information I was told is untrue but even if it is, the family knows Gordon’s feelings on the matter and still entered an agreement with Quint. Personally I think DNR ruled this way on purpose so the legislature could fall on the sword and the DNR wouldn’t have to look like the bad guys by allowing the fishing. There had to be talks behind the scenes between DNR and the legislature to get the ball rolling a few days before the ‘final push’. My question here is it only the FOUR CHIMNEY’s property that has the NO FISHING judgement(for now)? They only own half the river. The other half of the river is owned by another family in a different county. So you can kayak and fish on the other half – again, ‘for now’. Seems like the signing of the new bill is just a matter of time.
That settlement protecting Four Chimneys is a done deal. The state cannot retroactively pass a law that undoes a court order. FRK and GWF got their rear end handed to them.
Wow! That looks like a beautiful spot and is rumored to be great fishing. I imagine that is why the landowners picked it out and has been paying taxes on it for decades. I have a plot of land with pretty views and great deer and turkey hunting. Just because my property has the great attributes I was saving my money for and a public road that is navigable hopefully doesn’t mean folks can drive right up and shoot my deer and gobblers. I hear the landowners are happy for people to float by and admire the view.
Yes, Gordon Rogers is the Executive Director of the Flint Riverkeeper and his son, Quint, is a professional fishing guide on the flint. Someone should ask whether Gordon Rogers, while working with the FRK to take away private property rights on this section of the river, was at the same time trying to get his son a lease on another part of the river. Rules for thee but not for me. In my opinion the hypocrisy is staggering and the FRK should be embarrassed to be associated with Mr Rogers.
This new bill is a bad one and I don’t think the Governor will sign something that was pushed through in such a hasty, shady way. But regardless, that has nothing to do with the settlement the State entered into with the landowner at Yellowjacket. That settlement, signed by the State, the landowner and the judge, was done before this supposed ‘new law’ was even proposed. The ‘new law’ will have no effect on it and I don’t understand why people who know better keep saying it will.
It is a beautiful spot! But what a lot of people don’t realize is Yellow Jacket Shoals aren’t a 20 or 25-acre stretch of water. it is a 20-25 acre shoal that might have a couple of acres of water that hold fish. The rest is rocks, islands, shoal lily beds, and water only a few inches deep. When you have 30 or 40 people pounding those couple acres of water every day of spring/summer it is just too much!! The fishery can not take it. And the river keeper organization (who I thought was supposed to be protecting the river, not trying to steal private property rights away!) and the Georgia Wildlife Federation seem perfectly happy to sacrifice Yellow Jacket Shoals in their effort to make every inch of moving water public…
Mr. Worley talks out of both sides of his mouth. On the one hand he says not to worry if your property has non navigable water on it and then turns right around and says they intend to change the definition of navigability. When they are done every creek and stream in Georgia will be open to the public so if you have a deer or turkey lease with a stream in it better get ready to have a whole bunch of folks walking up into your property hunting and fishing. All of this is just designed to take away someone else’s private property that they pay taxes on and take care of.
Even the Scarecrow from Wizard of OZ knows that YJS is non-navigable.