A dispute over whether a popular stretch of the Flint River in Upson County can be the exclusive fishing hole of those who own the shoreline prompted a wild, last-minute push earlier this year to protect public access to Georgia’s creeks .
The legislative solution seemed to appear out of nowhere in the closing hours of the final day of this year’s session, quickly clearing both chambers in just four hours and crossing the finish line in the Senate just minutes after midnight.
“Water rights belong to the people of Georgia if they are navigable,” Senator Josh McLaurin, a Sandy Springs Democrat whose original bill was adopted by the effort, hastily told his peers just before the legislature left town in late March. “They don’t belong to the private landowners who are hundreds of meters from the shore.”
Georgia conservationists and others say the barely two-page bill signed into law by the governor last week may have been rushed through the legislative process. But they argue that it is an important and deliberate step to address a long-simmering property rights debate sparked by the state’s decision to settle a legal dispute with a landowner just two days before the end of the year’s Legislature.
“We definitely would have had an unchallenged order of consent for Yellow Jacket Shoals to just hang there, which would have been unjust and unfair to the public,” said Gordon Rogers, managing director of Flint Riverkeeper.
“And my personal opinion is that we would have seen a spread of this phenomenon across the state,” he said.
Rogers’ organization was one of the advocacy groups that sprang into action earlier this spring when the state conceded that a private landowner could claim exclusive fishing rights on a popular stretch of the Flint River that’s home to the state’s spirited schooling bass.
The agreement, signed by the state Department of Natural Resources commissioner, stunned anglers and other outdoor enthusiasts, who were particularly alarmed by a provision requiring DNR to issue a press release supplementing the decision.
The property owner, Four Chimneys LLLP, successfully argued in Upson County Superior Court that it has the authority to say who may throw a line in the river near its property because it owns 1833 land grants.
That’s well before the cutoff found in a Civil War-era provision in Georgia law that authorizes landowners who can trace a pre-1863 state grant to demand dibs on fishing rights.
Mike Worley, President and CEO of the Georgia Wildlife Federation, said the settlement agreement and press release essentially provide a roadmap for other landowners to quickly follow suit if they so choose.
And that endangered the fishing community’s access to the river nationwide, since most lands along Georgia’s rivers can be traced back to a pre-1863 state grant given how much of the state was divided up in its earliest days.
“All of a sudden, in a way, it was a crisis that needed to be addressed,” Worley said.
For you, but not for you
Gov. Brian Kemp, who has faced pressure from both sides of the issue in recent weeks, has signed the bill and quietly issued one written explanation explains his decision.
“This law allows the public to hunt, fish and traverse the navigable waters of this state – an embodiment of the principle sic vos non vobis and a privilege assured to Georgians for generations,” Kemp wrote in the statement. Sic vos non vobis means “for you, but not for you”.
The soon-to-be law states that the state became the owner of all navigable stream beds when it became a state in 1788 and that it is the “trustee of the rights of its peoples to use and enjoy all navigable streams for fishing, hunting, passage, navigation, Commerce and transportation, under the common law public trust doctrine.”
And while it also recognizes that a private party can own a creek bed in some cases, such as when there is a government subsidy for ownership, the legislature says those public rights to the flowing creek remain.
A similar approach is already being used in Georgia with the state’s coastal waters.
Kemp neatly outlined his logic in his formal statement, pointing — for starters — to the millions of dollars raised through royalties and spent establishing fisheries, building boat ramps, and managing recreational fisherman populations.
But the bill has not exactly calmed the waves.
Four Chimneys LLLP, for example, claims the amendment does not reverse its court-approved settlement with the state.
Brooke Gram, an attorney for Balch and Bingham representing Four Chimneys, argued that the Department of Natural Resources would be flouting the court’s order if the state agency tried to apply the new law to that stretch of the Flint River.
Gram also questioned what impact the new law would have in resolving the broader conflict over private property rights and public access to Georgia’s rivers.
“The applicable language of SB 115 has little practical effect on an owner’s existing rights to their property,” Gram wrote in a statement. “In my opinion, the state will not prevail if it intends to treat SB115 as altering in any way the established precedent of the Georgia Supreme Court or existing rights of property owners.”
Four Chimneys sued the state agency after a DNR official said last year that officials would not write quotes for fishing on the flint.
The state Department of Natural Resources is still reviewing the measure, spokesman Donald Kirkland said.
“The Department of Natural Resources is currently conducting a thorough review of all signed legislation related to the Department,” Kirkland said in a statement. “These reviews are ongoing, including the impact of SB 115 on the state’s settlement with Four Chimneys LLLP, but will be completed before SB 115 becomes effective on July 1, 2023.”
“There is still more to do”
House legislators too created a study panel tasked with dealing with the issue during the legislature’s recess.
Kemp specifically directed anyone unhappy with the bill passed in that session to propose further changes to that venue. Members for this Study Committee have not yet been assigned.
Proponents say they also hope this group of lawmakers will try to solve a muddy problem that was intentionally avoided in the Upson County settlement and resulting bill: What even counts as a navigable stream in Georgia?
For example, Four Chimneys also attempted to argue that the Flint River, which flows adjacent to their property, is not navigable, and described the river in the lawsuit as a “treacherous stretch of river due to its intense (Class III or higher) rapids, hidden rocks.” , rocky outcrops and sandbars.”
But the March court order didn’t change that, and Kemp emphasized in his statement that this year’s bill applies only to navigable streams.
Federal and state definitions differ, with Georgia’s guidelines largely based on an 1863 view and a few court decisions here and there.
“There have always been tensions between public access to fishing and private property rights, and so I think it’s important for legislators to take action to address these contradictions and these tensions and find the right balance,” April Lipscomb said , a senior attorney at the Southern Environmental Law Center.
“This law is a positive step in the right direction, but more needs to be done,” she said.
