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Opens pro Ed Loughran Goes To Court To Defend His Right To Fish

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Opens pro Ed Loughran goes to court to defend his right to fish

 

By Robert Montgomery

 

Update: On Dec. 14, the judge issued a continuance on this case until Jan. 11. We'll keep you posted once it resumes.

HOPEWELL, Va. — If harassed or threatened, most anglers will just move to another location, even though they know they’re fishing in legal waters. A few might call local authorities to report the incident.

But Virginia’s Ed Loughran is a different kind of fisherman. He’s also an attorney. And when he steps into the Hopewell General District Court on Monday, he will be standing up for the right of all anglers to fish public waters.

“This is a matter of principle,” he said. “That’s why I’ve chased it so doggedly.”

The trial follows close on the heels of Mark Menendez pursuing and winning a case against a property owner on the St. Lawrence River who harassed him with his boat during the Evan Williams Bourbon Bassmaster Elite event in late July.

“My fellow pleaded and paid his fine,” Menendez said. “I have received hundreds of compliments by fans for pushing it through.”

The man who confronted Loughran on July 6 at the Anchor Point Marina on the Appomattox River is charged with assault, battery and impeding lawful fishing on tidal river. The Commonwealth of Virginia will present the case.

“I’m the witness,” the pro angler said. “And also a victim.”

Loughran was flipping pilings on an official practice day before the Bass Pro Shops Northern Open on the James River. He had caught a 3-pounder and had another bite when he saw a man and woman walk off a dock and along the shore toward him. The man said Loughran was on private property and not allowed to fish there.

When Loughran told him he was wrong, the man got “very agitated,” said Loughran, who added that the two men were only about 10 feet apart, with the river at low tide. Loughran said the man then grabbed a hose and began to spray the water where he was fishing, as well as his boat.

“He sprayed for a good 10 to 15 seconds before his girlfriend grabbed his arm and said that the cops were coming.”

The angler made his own call to the police as the two left, and he took a photo of their license plate, which enabled him to pursue prosecution.

“Then the marina owner comes down and says the same stuff,” Loughran said. “He said I would get a ticket for trespassing, and I said he was wrong.”

Loughran said he received little assistance from the local police.

“Bottom line is that nothing happened forever,” he said. “No one would investigate. I had to go to the magistrate. I had to press charges and swear out a warrant.

The attorney explained that any marina that puts in pilings, like those at Anchor Point, must get a permit to trespass on public waters.

“I wasn’t trespassing. I was lawfully fishing,” said Loughran, adding that the only way to create private waters in a tidal river is “to dig a hole in the bank and create a harbor.”

Because he didn’t want to provoke a controversy, Loughran didn’t return to fish the marina during the tournament.

“I barely missed the cut,” he said. “I was a 3-pounder away, and I had caught two decent fish in there. It was a little frustrating.”

Stay tuned to Bassmaster.com for updates following the Dec. 14 court date.

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I wish that for people like those who harrassed Ed Loughman that it is a criminal offense that will get them hauled off to jail.

In Florida the problem he faced is getting much worse here.

What really gets me is that according to Florida law all rivers are public property. Whatever river bottom the water covers, it is NOT private property!

And this also applies to fixed bodies of water over a certain size. These lakes BELONG to we the people!

But quite often these great lakes are completely surrounded by private property and those land owners shut us out and prevent us from accessing public waters! We see this all the time and it is getting worse as more and more lakes are being closed to the public, yet we own them and have a right to access them!

What can we do to reverse this trend?

In another local case, the city of Casselberry "controls" some lakes in their city limits. They have a nice formerly public boat ramp on Lake Triplet. It is now closed to the public and gated shut and locked. Public land and property! Locked to us now because of one person:

I was told some lady who lived on the lake got sick and tired of noisy motor boats and jet ski's so she got herself elected to the town council and passed new laws closing down the lake to any and all motor boats, the ramp is closed, etc. so she can have a public body of water all to herself. If any of us want to fish Lake Triplet now, bring a canoe or kayak and paddles only.

It would seem if Florida claims all the "land" under certain bodies of water, then I wonder if Riparian rights can apply?

We fishermen may one day have to organize some how and begin filing some class action lawsuits or organize to change the laws to try and reverse this trend in cutting us off from public waters. It needs to stop and people who harass us should go to jail if that is what it takes for them to get the message.

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I've been hassled a lot. Many people seem to dislike anglers. Fisherman spend most of their time quietly casting, peacefully minding their own business, are generally respectful of the environment and leave no trace. It seems inexplicable.

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I have a neighbor whos boat cover ripped by an angler snagging the canvas.  We all need do our part to make sure something like this does not happen.  It gives the unreasonable a reasonable argument.  Granted accidents happen.  But leave them a message or knock on the door to confess your sins and pay for your mistake.     

Maybe I live in a different place but most folks around here are very friendly to me while fishing.  Most property owners like to chalk up some small talk.  Comments about the nice weather and question on how the fishing is.  It often makes them happy to see you catch and release a fish from under their dock.   

I see lots of good people fishing and I see knuckle heads too.  As a property owner and angler I like to see folks fishing the river in my front yard.  It is a pleasure to see people enjoying the water in general.  Skiing, boating, wave runners, tubes, kayaks, canoes, row boats, paddle boats I like it all so long as they are being safe and considerate.  I get annoyed with people who do no consider safety or their wake.  Go slow or get up on plane.  I should not have to repair my property due to someones lack of responsibility, however, I live on the water and repairs for my shoreline rocks come with the territory.   

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I generally agree with the article...But I've seen enough on the water that would justify a home/dock/land owner disliking fisherman.  

1 hour ago, hawgenvy said:

Fisherman spend most of their time quietly casting, peacefully minding their own business, are generally respectful of the environment and leave no trace. It seems inexplicable.

Unfortunately, that's simply not true for all fisherman.  A close friend has a house on a popular lake here, many tournaments are held on the lake.  I can fill tackleboxes with the amount of hooks and lures we've pulled off his dock, ropes, boats, covers, shoreline... It has a financial impact too since boat covers, seats, etc are pretty darn expensive.  Thankfully, no one's grabbed a rope with a hook in it yet.  As always, the actions of a few ruin it for everyone else.

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2 hours ago, Logan S said:

I generally agree with the article...But I've seen enough on the water that would justify a home/dock/land owner disliking fisherman.  

Unfortunately, that's simply not true for all fisherman.  A close friend has a house on a popular lake here, many tournaments are held on the lake.  I can fill tackleboxes with the amount of hooks and lures we've pulled off his dock, ropes, boats, covers, shoreline... It has a financial impact too since boat covers, seats, etc are pretty darn expensive.  Thankfully, no one's grabbed a rope with a hook in it yet.  As always, the actions of a few ruin it for everyone else.

Thanks for bringing that up. Hadn't thought of it from that perspective.

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It's the trash around here. You could fill bags and bags of trash left behind by shore anglers. Some lakes have even threatened to close down shoreline access it's gotten so bad. 

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On ‎1‎/‎7‎/‎2016 at 2:08 PM, FloridaFishinFool said:

 

What really gets me is that according to Florida law all rivers are public property. Whatever river bottom the water covers, it is NOT private property!

 

Please verify this statement. In many jurisdictions the river needs to be deemed navigable to be considered public.

Only time I was ever harassed I was shore fishing for perch in a private marina, on Lake Michigan, that I had fished in before it ever became a marina and never had any issues until this particular day. I was with my son who was probably 7 or 8 at the time. An older gentleman approached us from the next pier over where his slip was located. We weren't on the same pier nor within casting distance of his slip. Gave me a story on how his wife was recovering from cancer and she needed her rest. I apologized if we were making too much noise although I don't believe we were and said we would be extra quiet to respect his wishes. He motioned for me to follow him to his slip where he pointed to the "no trespassing" sign on his slip. I was getting annoyed at this point. I said "sir we are not trespassing. We are not even on the same pier you are on, let alone the slip" His response was "This is my backyard you are fishing in. How would you like it if I drove my boat thru your backyard?" I walked away. Not 5 minutes later one of the marina employees apologized for the old man and asked us to leave. If it's any consolation to me, he is more than likely dead and I am still fishing.   

I remember on a trip to Santee Cooper, a guy had a lawn sprinkler on his pier connected to a motion detector. If you got too close to the dock, it would blast you with water.

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59 minutes ago, slonezp said:

I remember on a trip to Santee Cooper, a guy had a lawn sprinkler on his pier connected to a motion detector. If you got too close to the dock, it would blast you with water.

There's a dock with the same thing set up in a popular creek off the Potomac....It got me once this summer, I actually appreciated it since it was about 95 degrees that day.... Caught a fish off the dock too :D

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9 hours ago, slonezp said:

Please verify this statement. In many jurisdictions the river needs to be deemed navigable to be considered public.

You are correct. It is navigable waters. But the term navigable is apparently still hotly debated and argued in courts and other:

http://www.floridageomatics.com/publications/legal/submerged1.htm

Under the Public Trust Doctrine, Florida became the title-holder of all water bodies "navigable in fact" within its boundaries when the territory attained its sovereign status as a state in 1845. Title vested in the new state by operation of law, without the necessity of any deed, inventory, patent, or survey. As explained by the Florida Supreme Court 90 years ago, these navigable waters "passed to the state in its sovereign capacity to be held by it in trust for the people thereof."(5) Because of the inherently public character of navigable waters, the essential feature of the trust is that navigable waters are not held for purposes of sale into private ownership, but instead must be held by the state for the use and enjoyment of the public.(6)

Federal Public Lands Surveys

When the United States acquired Florida from Spain in 1821, the federal government established a new territory and began the task of surveying and selling land.(7) Among other things, the surveyors were instructed to approximate the shoreline of navigable waters by surveying a series of straight-line segments called "meander" lines.(8) Lakes and rivers with these "meander lines" surveyed along their shores are referred to as "meandered" water bodies. Surveying conditions, however, were extremely adverse in the wilds of early Florida. Hostile native Americans were a constant threat, as were the large numbers of alligators and snakes that populated the marshy shores of Florida's lakes and streams. These conditions, combined with the complete absence of any standard for determining what was navigable, produced haphazard determinations as to whether any particular water body would be meandered.

In fact, only a very small number of Florida's navigable lakes and rivers were meandered in the federal surveys. For example, large portions of the St. Johns River, the Kissimmee River, the Chipola River, the Oklawaha River, and the Peace River were not meandered, even though all of these rivers bore regular steamboat traffic during the water transportation era. As an illustration, the steamboats depicted in attachments 1 through 5 all navigated non-meandered portions of the above-listed rivers.

Florida courts have recognized that meandering is an unreliable indicator of whether a particular water body was navigable. For that reason, when the question of navigability is tried in court, meandered water bodies are given a weak presumption of navigability. Non-meandered lakes and streams are given a similarly weak presumption of non-navigability.(9) Included as attachments 11, 12 and 13 at the back of this booklet are illustrations of typical meander surveys. These examples show the highly inconsistent manner in which meandering was actually conducted.

--------------------------

The pamphlet also contends that land titles are now in such confusion that title to some three million acres of land is in doubt and that 140,000 landowners have clouded titles. These breathtaking statistics originated in arguments raised by attorneys who lost the American Cyanamid case. After losing the appeal, those attorneys argued for rehearing on the basis that the result of the American Cyanamid decision would be 40,000 new lawsuits costing the state $900 million. Thirteen years of experience have shown just how unreliable these "scare-the-world" estimates were. Just five cases have been litigated over this time period, two of which are currently pending. The three million acres/140,000 landowners claims were unsubstantiated at the time they were made, and they remain unsubstantiated well over a decade later.

The Ordinary High Water Boundary

The boundary between publicly owned navigable waters and adjacent privately owned uplands is the ordinary high water boundary. Two seventy-two year-old Florida Supreme Court decisions definitively addressed how the ordinary high water boundary is located in Florida. The first case states that the ordinary high water boundary represents just what the words suggest: the ordinary reach of high water during the year. Thus, the boundary is, in general, the normal or average reach of water during the high water season.(16) The term "ordinary" excludes floods and other unusual high water events but includes the average high water of each year.(17) In determining the location of the boundary, Florida Supreme Court cases recognize the state's unique topography and differentiate between steep-banked and flat-banked water bodies. On steep-banked water bodies, the boundary is located where the presence and action of water has wrested the bank of vegetation and left a visible mark. However, on low, flat-banked water bodies - most lakes and streams south of Orlando - there is no well-defined mark, and the boundary is located where the presence of the water prevents the cultivation of ordinary agricultural crops. In 1927, the Florida Supreme Court also ruled that where the shore of a water body is low, flat, and vegetated, ordinary high water can be determined by locating water marks on local objects such as dock pilings and trees.(18)

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I have had several people try to scare off my brothers and I when we fish docks on local lake with lots of boat docks. They all have the same little spiel about "you can't be within 50' of a dock" and they sometimes threaten to call the police. "Ma'am I would be happy to wait for an officer to get here so he can tell me what I'm doing wrong".....At that point they realize we aren't going to be scared off and leave us alone.

 

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I was bream fishing in a lake one day and found a big bed .So I tied up to a fence that extended a few feet out into the water.An older woman came down to the water and ordered me to untie from the fence because I was "hurting her fence" I told her politely that I wasn't hurting the fence and kept fishing.Then she said she would go get her husband.I said alright then,and kept on fishing.I guess her husband wasn't having it,because she came back without him and threatened to call the police.I said OK_,and kept fishing.The next time she came back she said she would make me leave so she began rolling up her pant legs.I'm still fishing...So she wades out and kicks my boat.I thought for a moment,put down my pole,picked up my paddle and....wait for it...splashed her.She retreated and went back to the house, no doubt to get sympathy from the husband.I kept fishing...True story.Caught 12 big bream off the bed.Not saying I would do that now but hey,I was only 17 then.No wonder some kids have authority issues ...Just sayin....

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On January 9, 2016 at 8:13 AM, Bluebasser86 said:

It's the trash around here. You could fill bags and bags of trash left behind by shore anglers. Some lakes have even threatened to close down shoreline access it's gotten so bad. 

I live across from one of our county's large reservoirs, its man made. the water and under it our public property but the shore is all private. Up until recently there was one area you could launch a small non-gas motorized boat but it was closed due to anglers trash. The land owner who was nice enough to keep this open for all to use finally got sick of picking up everyones trash. And truth be told I would have shut it sooner than he did. It was amazing how much trash people just throw on ground, and right next to our drinking water resevoir for crying out loud.

FloridaFishinFool really touches on the solution and that is it is political. Right now anglers are not making enough noise to get things changed. If politicians don't fear their jobs they will not take us into account and open access to water on public property.

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Not too often you see a younger person hassling anglers. Normally, it's some miserable old fart with a "You-kids-get-ff-my-lawn!" attitude.  Problem IS, that LAWN does NOT extend into the water.

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On January 23, 2016 at 10:25 PM, N Florida Mike said:

I was bream fishing in a lake one day and found a big bed .So I tied up to a fence that extended a few feet out into the water.An older woman came down to the water and ordered me to untie from the fence because I was "hurting her fence" I told her politely that I wasn't hurting the fence and kept fishing.Then she said she would go get her husband.I said alright then,and kept on fishing.I guess her husband wasn't having it,because she came back without him and threatened to call the police.I said OK_,and kept fishing.The next time she came back she said she would make me leave so she began rolling up her pant legs.I'm still fishing...So she wades out and kicks my boat.I thought for a moment,put down my pole,picked up my paddle and....wait for it...splashed her.She retreated and went back to the house, no doubt to get sympathy from the husband.I kept fishing...True story.Caught 12 big bream off the bed.Not saying I would do that now but hey,I was only 17 then.No wonder some kids have authority issues ...Just sayin....

If she had a fence and it went out int the water and you tied off to it then you were totally in the wrong.  Would you just tie up to someones dock even though you aren't "hurting" it?  

And as far as the authority issues go, you had that long before she came to you because i know if i was told to unite from someone's fence at the age of 17 i most likely would have and found somewhere else to fish or just fished without having to tie off.

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Don't need a lecture at this point.If the lady would have asked nice there would have been no problem.Wasn't out for trouble- just wanted to fish.

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