Bills advance at Capitol to strip ‘public trust’ from fishing rights law

The change is sought by agribusiness. Environmentalists say that’s unnecessary.
Jamie Rogers posts with a shoal bass caught on fly tackle in the spring of 2023 downstream of Yellow Jacket Shoals on the Flint River. Rogers is the daughter of Gordon Rogers, executive director of the Flint Riverkeeper. Photo courtesy of Rogers family.

Credit: Special

Credit: Special

Jamie Rogers posts with a shoal bass caught on fly tackle in the spring of 2023 downstream of Yellow Jacket Shoals on the Flint River. Rogers is the daughter of Gordon Rogers, executive director of the Flint Riverkeeper. Photo courtesy of Rogers family.

Georgia lawmakers passed a bill at the last minute last year, enshrining the public’s right to fish and traverse navigable waterways. Now, at the urging of agribusiness, two new bills are advancing, aimed at stripping references to public ownership of natural resources from that law. Environmentalists say that’s unnecessary.

The fishing rights law was passed last session after Gov. Brian Kemp was reportedly dismayed by a settlement in which the Department of Natural Resources granted exclusive fishing rights to the owner of a private riverfront property. The law affirmed the public’s right to access navigable waterways “pursuant to the common law public trust doctrine.”

While environmentalists, anglers and recreational paddlers celebrated the law’s passage, some commercial farmers were alarmed by the reference to the “public trust doctrine,” a very old legal principle that the air, water and coast belong to everyone and should be managed by the government for the common good.

In the United States, the public trust doctrine has mostly been treated as a subject of state law, but the U.S. Supreme Court has upheld the principle in a number of cases. Recently, the public trust doctrine has been cited in lawsuits brought by youth activists seeking to force states and the federal government to take action on climate change.

The two Georgia bills that have advanced in this session, HB 1172 and SB 542, are nearly identical. Both would remove references to the public trust doctrine from the law while affirming citizens of the state have a right to use “for passage and for hunting and fishing all navigable streams from low-water mark to low-water mark.”

Will Bentley, president of the Georgia Agribusiness Council, which sought the changes, said his members were concerned that enshrining the public trust doctrine in state law gives environmental activists a way to file “frivolous lawsuits” against private property owners by claiming they harmed public waterways. No such lawsuit has been filed in Georgia since the law went into effect last year.

“We support the public’s access to these very important rivers ... We just think there’s a more narrow way to do it,” Bentley said.

April Lipscomb, a lawyer with the Southern Environmental Law Center, said concerns over the public trust doctrine were overblown. Lipscomb said she would prefer to keep the law as it is, especially with another pending lawsuit against the state over exclusive fishing rights.

Tensions over who has the right to access prized fishing holes have escalated in recent years, especially in the Yellow Jacket Shoals section of the Flint River about an hour and a half south of Atlanta that is home to a famously feisty shoal bass. In 2020, gunfire erupted in a dispute over fishing the shoals. Three years later, the state settled a lawsuit with one of the owners whose property adjoins Yellow Jacket Shoals, prompting lawmakers to pass the fishing rights law. Shortly after, another property owner on the shoals filed a nearly identical lawsuit also seeking exclusive fishing rights. Whether that lawsuit succeeds could depend on how the new law holds up in court.

Despite the unresolved lawsuit, Lipscomb said she was not overly concerned with the proposed changes to the law.

“I don’t really consider them to be super substantial,” Lipscomb said of the amendments to remove references to the public trust doctrine. “I think both bills do ultimately protect the rights of our anglers, our hunters and our paddling community.”

Joe Cook of the Georgia River Network was also skeptical that the public trust doctrine would change enforcement of existing regulations over water usage and pollution.

“The public already has the right to legally address these issues through multiple avenues so this seemed like an unfounded fear,” Cook wrote in an email.

Cook said his primary concern is that language could be added to the bills codifying a list of streams in Georgia as “navigable.” Such a list was included with another proposal, HB 1397, that failed to advance in this session, but Cook and others fear it could be resurrected in one of the surviving bills.

“The list presented in HB 1397 could leave some streams regularly used by the public — and even serviced by outfitters — at risk of being shutdown by a single riparian property owner who didn’t want people boating through their property,” Cook said.

The Georgia River Network is calling its supporters to the Capitol Wednesday for a “freedom to float” event in support of public access to waterways and against the list of “navigable” streams circulated earlier in the session.

A note of disclosure

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