by Jill Nolin, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

May 7, 2023

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 drove a frenzied last-minute push to protect the public’s access to Georgia’s streams earlier this year.

The legislative fix seemed to emerge out of nowhere in the final hours of the last day of this year’s session and rapidly cleared both chambers in the span of just four hours, crossing the finish line in the Senate a few minutes after midnight.

“Water rights belong to the people of Georgia when they’re navigable,” Sen. Josh McLaurin, a Sandy Springs Democrat whose original bill was co-opted by the effort, said hurriedly to his colleagues shortly before lawmakers left town in late March. “They don’t belong to the private property owners who are hundreds of yards offshore.”

Georgia conservationists and others say the barely two-page bill – which was signed by the governor last week – may have been fast-tracked through the legislative process. But they argue it represents an important and deliberate move to tackle a long-simmering property rights debate that was galvanized by the state’s decision to settle a lawsuit with a landowner just two days before the Legislature wound down for the year.  

“We definitely would have had an unchallenged consent order for Yellow Jacket Shoals just sitting there, which would have been unjust and unfair to the public,” said Gordon Rogers, executive director of the Flint Riverkeeper.

“And my personal opinion is we would have seen a spreading of this phenomenon all over the state,” he said.

Rogers’ organization was one of the advocacy groups that sprang into action early this spring when the state conceded that a private landowner could claim exclusive fishing rights on a popular stretch of the Flint River that is home to the state’s spirited shoal bass.

The agreement, signed by the commissioner of the state Department of Natural Resources, stunned anglers and other outdoors enthusiasts, who were especially alarmed by a provision requiring DNR to issue a press release amplifying the decision.

The property owner, Four Chimneys LLLP, was able to argue successfully in Upson County Superior Court that they have the authority to say who gets to cast a line in the river near their property because they hold a land grant dating back to 1833.

That’s well before the cutoff found in a Civil War-era provision in Georgia law that empowers landowners along navigable streams who can track down a state grant prior to 1863.

Mike Worley, president and CEO of the Georgia Wildlife Federation, said the settlement agreement and press release essentially provided a roadmap for other landowners to quickly follow suit if they wished.

And that threw the angling community’s river access in jeopardy statewide since most properties along Georgia’s streams can be traced back to a state grant of some type before 1863, considering that is how much of the state was divvied up in its earliest days.

“All of a sudden, it was, in a sense, a crisis that had to be addressed,” Worley said.

For you, but not yours

Gov. Brian Kemp, who has faced pressure from both sides of the issue in the last few weeks, has signed off on the bill, quietly issuing a written statement explaining his decision.

“This bill allows for the public to hunt, fish, and transit the navigable waters of this state – an embodiment of the principle of sic vos non vobis and a privilege that has been assured Georgians for generations,” Kemp wrote in the statement. Sic vos non vobis means “for you, but not yours.”

The soon-to-be-law asserts that the state became the owner of all navigable stream beds when Georgia became a state back in 1788 and that it is the “trustee of its peoples’ rights to use and enjoy all navigable streams capable of use for fishing, hunting, passage, navigation, commerce, and transportation, pursuant to the common law public trust doctrine.”

And while it also concedes that a private party can own a stream bed in some cases, such as when there is a state grant to the property, the law will now say that those public rights to the flowing stream still remain.

A similar approach is already used in Georgia with the state’s coastal tidewaters.

Kemp neatly outlined his logic in his formal statement, pointing to – for starters – the millions of dollars collected through license fees and spent on establishing fisheries, building boat ramps, and managing recreational fishing populations.

But the bill has not exactly calmed the waters.

Four Chimneys LLLP, for one, contends the change does not undo its court-approved settlement with the state.

Brooke Gram, an attorney with Balch and Bingham who is representing Four Chimneys, argued the Department of Natural Resources would be in contempt of the court’s order if the state agency tries to apply the new law to this stretch of the Flint River.

Gram also questioned what impact the new law would have when it comes to resolving the broader conflict over private property rights and public access to Georgia’s rivers.

“SB 115’s as-passed language has little practical effect on a property owners’ existing rights on their property,” Gram wrote in a statement. “It is my opinion that the State will not prevail if it intends to treat SB115 as somehow altering established Georgia Supreme Court precedent or existing rights of property owners.”

Four Chimneys sued the state agency, in part, after a DNR official said last year that officers would not be writing citations for fishing on the Flint.

The state Department of Natural Resources is still reviewing the measure, said spokesman Donald Kirkland.

“The Department of Natural Resources is in the process of conducting a thorough review of all signed legislation related to the department,” Kirkland said in a statement. “Those reviews are not yet complete, including SB 115’s impact on the state’s settlement with Four Chimneys LLLP, but will be completed prior to SB 115 going into effect July 1, 2023.”

‘There is more work that needs to be done’

House lawmakers also created a study committee that has been tasked with diving into the issue during the legislative off season.

Kemp specifically directed anyone disgruntled with the bill passed this session to suggest further changes in this venue. Members for that study committee have not yet been assigned.

Advocates say they also hope this group of lawmakers will try to resolve a muddy issue willfully avoided in the Upson County settlement and the resulting bill: What even counts as a navigable stream in Georgia?

Four Chimneys, for example, also tried to argue the Flint River flowing alongside their property is non-navigable, describing the river in the lawsuit as a “treacherous stretch of the river due to its intense (Class III or higher) rapids, hidden rocks, rock ledges, and sand bars.”

But the March court order didn’t touch that, and Kemp stressed in his statement that this year’s bill only applies to navigable streams.

Federal and state definitions differ, with Georgia’s guidelines largely hinging on an 1863 view and a smattering of court rulings here and there.

“There’s always been tension between the public’s access to fishing and private property rights, and so I do think it is important for the Legislature to take action to address those inconsistencies and that tension and to strike that right balance,” said April Lipscomb, a senior attorney with the Southern Environmental Law Center.

“This bill takes a positive step in the right direction, but there is more work that needs to be done,” she said. 

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.