BACKWATER HUNTING LAW AND REGULATIONS IN KENTUCKY – ALEX BLACKWELL

Alexander D. Blackwell Attorney Denton Law Firm 555 Jefferson Street Suite 301 Paducah, KY 42001 (270) 450-8253

BACKWATER HUNTING LAW AND REGULATIONS IN KENTUCKY

The rivers and their associated waterways, which flow through our region, provide numerous benefits to the region. This includes the abundance of waterfowl, and makes this region a hotspot for waterfowl hunters. Despite all the benefits associated with these waterways, private landowners who own property adjacent to the rivers experience an influx of trespassers each year when the waters of the river overflow and cause the backwaters to flood their land. Over the years, there have been many different views on whether property becomes available for public use when the backwaters rise and flood private land. With more and more hunters pouring into the backwaters covering private land each year, landowners have been tasked with deciding how to handle the issue of uninvited hunters coming onto their property. In particular, landowners want to know whether their land becomes subject to public use when the floodwaters of these navigable waterways temporarily flood their land and cause water to stand on their property at a navigable depth.

Simply put, the law states that private property does not become subject to limitless public use when a navigable waterway has overflowed and created backwater that in itself is also navigable.

For years, there have been uninformed opinions that the backwaters, or floodwaters, of a navigable waterway were subject to public use. The argument was that, if the water is navigable directly from a navigable waterway, then it could be used by the public. This is not the case, and private landowners hold exclusive rights to the use and enjoyment of their property, even if their land is temporarily underwater. The Code of Federal Regulations (CFR), as well as the Kentucky Revised Statutes (KRS), provides the groundwork of definitions, which have been reinforced by case law in recent years.

There are three ways in which this issue commonly presents itself to landowners. First, landowners have the problem of hunters hunting on the privately owned banks of the river. Secondly, hunters will wade and/or navigate their boats onto private property when the land is flooded. Finally, landowners encounter the problem of hunters invading their private fields and swamps when the backwaters rise to the point that the fields/swamps are navigable directly from the river or its associated waterways.

The determination of whether waterways are to be used for public use begins with an understanding of what a navigable waterway is. The CFR provides us with a general definition of navigable waters as follows:

• Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.

Based on this definition, it is undisputed that the Mississippi, Ohio, Tennessee, and Cumberland Rivers, which flow through Kentucky, are navigable waters. Further, KRS Section 151.120 goes on to say:

• Water occurring in any stream, lake, ground water, subterranean water or other body of water in the Commonwealth which may be applied to any useful and beneficial purpose is hereby declared to be a natural resource and public water of the Commonwealth and subject to control or regulation for the public welfare…

This definition adds to what the CFR says in regard to a body of water being under public control. However, when the next subsection of this KRS section is read, it can be easily seen that backwaters standing on privately owned land are not public water, and the landowner retains the right to use his property. Section 151.120(2) of the KRS goes on to say:

• Diffused surface water which flows vagrantly over the surface of the ground shall not be regarded as public water, and the owner of land on which such water falls or flows shall have the right to its use.

The courts of the Commonwealth of Kentucky have not issued rulings on landowners’ rights concerning backwaters. However, the Louisiana case of Buckskin Hunting Club v. Buddy Bayard et al. provides us with a straightforward ruling regarding hunters entering backwaters without permission. The hunters in the Buckskin case claimed that they were hunting on the banks of a navigable waterway, similar to the problems in the backwaters of our region. Hunters, both those in this case and those trespassing in the backwaters of our region, argue that the banks of navigable waterways are private things that are subject to public use. However, the Louisiana courts have held that public use of these river banks is limited to navigation and the incidental purposes associated with the navigation of the waterway. The Louisiana courts concluded that this included emergency use, drying of fishing nets, and resting from the waters, but it did not include a limitless use of the banks. Further, Buckskin reinforced that when a navigable waterway runs onto private property, the use of those banks are limited to navigation and not hunting. Therefore, it is against the law for hunters to hunt on privately owned land that forms the banks of a river or navigable waterway.

Private land covered by backwater is not handled in the same way as the banks of the river. Importantly, the Louisiana court in State v. Barras stated that private land does not become land for public use merely because it is flooded by the backwaters during certain portions of the year. Similarly, the Louisiana case of Edmiston v. Wood states that land does not become subject to public use when a navigable waterway overflows its normal bed, causing adjacent property to become temporarily flooded. Finally, the Barras case clearly distinguishes swampland from land periodically inundated with backwater or floodwater. While the banks of a navigable river are private property subject to limited public use, swamplands subject to overflow are private property alone, not providing any public use.

Although the Kentucky Department of Fish and Wildlife Resources (KDFWR) does not mention the boundaries of the river in the hunting regulations section, it does clearly state that the “river does not include backwaters that extend onto the floodplain or tributaries,” in their fishing regulations section. In short, hunting on private land, even if it is flooded and navigable directly from a known navigable waterway, is not legal without first obtaining permission from the property owner(s).

Once it has been established that the land in question is in fact private land, hunters must receive permission before they may hunt on the land. KRS Section 150.092 outlines the consent requirements for proper entry onto another’s land. Specifically, subsection (1) states that persons are not allowed to enter upon another’s land to shoot, hunt, fish, or trap, or for other wildlife-related recreational activities, without permission. This permission may be written or oral and needs to be expressly granted by the landowner, tenant, or person with clear authority to grant permission. This section also gives a fish and wildlife law enforcement officer the power to arrest or issue a citation to anyone in violation of this section. The section adds that people who enter the land of another for the reasons listed above shall not cause damage to any fences, buildings, crops, animals, property, or machinery while on the property, or they could be subject to a civil lawsuit for damages.

Based on an analysis of these cases, in conjunction with the definitions provided by the CFR, KRS, and KDFWR, it can be seen that hunters who hunt without permission on backwaters covering private land would be doing so illegally and may be charged with criminal charges. Hunters trespassing in this fashion could potentially be charged with criminal trespass in the third degree if they were determined to have knowingly been on the premises . Additionally, when damages to the property are caused by the trespassers, there could be a potential for criminal mischief if the hunters are found to have acted intentionally or wantonly .

In conclusion, it can be determined that hunters who are hunting on privately owned river banks, hunting private land flooded by the backwaters of the river, or hunting private swampland which becomes navigable when the backwaters rise, are hunting illegally and could face potential criminal charges or civil causes of action.

DISCLAIMER: THE INFORMATION PROVIDED HEREIN IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. MOREOVER, THIS INFORMATION PROVIDED HEREIN IS NOT INTENDED TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP, AND RECEIPT OF THE INFORMATION PROVIDED HEREIN DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

CITES

• KRS 511.080 Criminal Trespass in the third Degree
  (1) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.(2) Criminal trespass in the third degree is a violation.
• 512.020 Criminal Mischief in the First Degree
  (1) A person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more.
  (2) Criminal mischief in the first degree is a Class D felony.
• 512.030 Criminal Mischief in the Second Degree
  (1) A person is guilty of criminal mischief in the second degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $500 or more.
  (2) Criminal mischief in the second degree is a Class A misdemeanor.
• 512.040 Criminal Mischief in the Third Degree
  (1) A person is guilty of criminal mischief in the third degree when: (a) Having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property; or (b) He tampers with property so as knowingly to endanger the person or property of another.
  (2) Criminal mischief in the third degree is a Class B misdemeanor.