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Taking of hunting and fishing rights by Corps of Engineers

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Ken in Arkansas

Junior Member
Joined
Jan 20, 2002
Professional Status
Certified General Appraiser
State
Arkansas
I raised this tpoic in another discussion a while back but got little response. I am reposting to see if anyone has had recent contact with this situation.

Briefly, the Corps of Engineers constructed the McClelan-Kerr Navigation System (making the Arkansas River navagable) in the 1960's. In doing so they acquired flowage easements along the entire length of the river. About three years ago they decided they needed to acquire "occasional flowage easements" along the system, and went back to the property owners for additional signatures with additional compensation being paid for the flowage easements only.

Now the problem. Some friends of mine who paid big dollars for several thousand acres for a hunting and fishing retreat, when approached for their signatures for the occasional flowagee easements, have now been told that the granting of ALL flowage easements to the Corps also conveyed to the public the right to hunt and fish in those easements when water levels permitted such, i.e. when the water levels were sufficiently high and the public could motor in from the river, the public could fish and hunt (ducks, deer on remaining high land, etc.) within the easements.

This club has spent a lot of money to embark on a trophy buck program to now be told by the Corps that the public could hunt their land when water levels permitted, For those of you familiar with such, this club has a good stock of Boone and Crockett deer in the 145 + category. Unfortunately if the public motored onto this property in times of high water those deer would be poached upon sight; with the easement being defined only by a msl elevation line on a map, not only would the public not know where the easement ended, but few would care where the easement ended if they got a chance to kill a good buck.

Many defenses are noted in that the hunting and fishing rights were not paid for, the easements (NONE OF THEM!) mention hunting and fishing rights or recreational uses, and even the Corps acknowledges that they had not told any Grantor of this new interpretation of a staff attorney's opinion that the easements now include such recreational rights. This situation is not unique to Arkansas - it appears that the Corps is going to try to enforce this position to all flowage easements nationwide.

Has anyone encountered this situation first hand or even heard of it in other areas? If so, what were the circumstances and outcome? My friends are preparing for court and need all the ammunition they can get.
 
Joined
Jan 13, 2002
Professional Status
Retired Appraiser
State
Florida
Riparian Rights. Been a long time since I had to think about this issue.

From AI's Appraising Residential Properties, Second Edition, pg 94:

Riparian and littoral rights are concerned with the use of water or a shore by an owner whose land borders a stream, river, lake, ocean, or other body of water. Riparian rights may include the right to construct piers, boathouses, and other improvements over the water or to use the water for fishing and recreational purposes. Littoral rights pertain to the use and enjoyment of the shoreline and safeguard the owner against artificial interference that might change the position of the shoreline. Riparian and littoral rights can have a substantial effect on the value of land, so they must be considered carefully.

I do remember something about the public having the right to use waterways that can be accessed in any way via water. The situation you are talking about with the Corp of Engineers interpretation of making private property available to the public via their easement would infuriate me!

I'll see what else I can find out about this. What a crock!
 

David S. Roberson

Senior Member
Gold Supporting Member
Joined
Jan 16, 2002
Professional Status
Certified Residential Appraiser
State
Tennessee
Sounds to me like they have no choice other than to fence the easement & post "No Tresspassing" signs at the boundary.
 

Mountain Man

Elite Member
Joined
Jan 15, 2002
Professional Status
Certified General Appraiser
State
Georgia
Sounds to me like they have no choice other than to fence the easement & post "No Tresspassing" signs at the boundary.
That may be the adjustment basis you are looking for. The cost to secure your private land with fences...... and miles of fences aren't cheap.
 

xmrdfghap

Senior Member
Joined
Jan 15, 2002
Professional Status
General Public
State
Florida
<span style='color:brown'>Does the existing property have fences capable of keeping the public out and the wildlife in? Does the public currently have the ability to access the private land via waterway access? If so, has the hunt club posted fences or signs notifying the public where the limits of public access are?

If the wildlife can be contained in the present situation, and the public has no access to it from any point without violating posted signs, then "opening" the area for public access should be considered a taking of the whole......development costs, stocking and breeding costs, future profits, the whole thing........and I would look for similar property without the Corps involvement to develop a current value of such a property. If the public has access today, without any real separation between public and private land, then I would look at the total cost of development, as listed above, and prorate it based upon the acreage involved. As water levels change, and thus the extent of public access changes, I think it would be incumbent on the Corps to provide signage, fencing, and possibly a fire break (on their side of the fence) showing the limits of public access.

What an interesting assignement......I'm jealous.</span>
 

Ken in Arkansas

Junior Member
Joined
Jan 20, 2002
Professional Status
Certified General Appraiser
State
Arkansas
No fences are present between the club land that is unencumbered and adjoins privately owned lands. The "property line" on the mainland side is a tall levee, one that the deer can easily cross. Hunting on the adjoing lands is common, but the deer tend to stay away from the levee area due to traffic.

No fences are present in the area that is subject to the taking by the Corps. The club asked if they could put up no trespassing signs and take the legally required steps to post the property, i.e. along the invisible line between the permanent and occasional easements, a line that follows a mean sea level elevation. The Corps' reply was that no sign could be erected that would restrict the access of the public. The Corps will not pay anything or do anything to define the lines, either between the occasional and permament easements or between the occasional easement and the unencumbered lands. This brings up the situation where one side of a tree may be deemed (by the Corps) public land available for hunting while the other side of the tree is still private. How would you like to be the public land hunter on one side of the tree with a private land hunter on the other side?

I suspect that damages extend beyond the lands in the permanent and occasional easements. Serious deer hunters know that noise and traffic will tend to spook deer, likely rendering the unencumbered lands (or some significant portion of them) unhuntable. Interesting thought, huh?
 
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