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Thread: Bird Sanctuaries and Navigable Water

  1. #1
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    Default Bird Sanctuaries and Navigable Water

    The Murrell's Inlet thread got me thinking about this one.

    For our Resident attorneys, justpracticin, Carolina Counsel, GMAC, etc...

    Just how are bird sanctuaries on public, navigable waters, legal in SC? I'm under the belief that they aren't.
    Via our State Constitution, they can't be. In fact, any navigable waters within the borders of the water sections of Lake Marion's Santee National Wildlife Refuge, the ACE Basin NWR, or even the creeks that border Yawkey, are indeed navigable and I'm trying to understand how hunting, fishing, and/or can be legally restricted?

    Can anyone shed any light on this?



    Article XIV, Section 4, of the Constitution of south Carolina states in part that
    "all navigable waters shall forever remain public highways free to the citizens of the
    State ... and no ... wharf [shall be] erected on the shores or in or over the waters of
    any navigable stream unless the same be authorized by the General Assembly." A
    navigable stream is defined in S.C. Code Ann. § 49-1-10 (1976) to mean "[a]ll
    streams which have been rendered or can be rendered capable of being navigated by
    rafts oflumber or timber by the removal of accidental obstructions and all navigable
    watercourses and cuts are hereby declared navigable streams and such streams shall
    be common highways and forever free .... "
    Section 49-1-10 of the South Carolina Code does not change the definition
    of navigable waters, but merely emphasizes the law already declared and set out in
    Heyward v. Farmers Mining Company, 42 S.C. 138, 19 S.E. 963 (1894). The Court
    in Heyward rendered a thorough pronouncement of the law of navigability. As noted
    in Heyward, the common law doctrine that the navigability of a stream is to be
    determined by the ebb and flow of the tide was repudiated in South Carolina in the
    case of State v. Pacific Guano Co., 22 S.C. 50 (1884).
    The court clarified in Heyward v. Farmers Mining Company, 19 S.E. at 971,
    that neither the character of the craft nor the relative ease or difficulty of navigation
    are tests of navigability. The surroundings (e.g. marshland) need not be such that it
    may be useful for the purpose of commerce nor that the stream is actually being so
    used. The Court points out a distinction between navigable waters of the United
    States and navigable waters of the State. In order to be navigable under the United
    States, the water must connect with other water highways so as to subject them to the
    laws of interstate commerce. This is not a requirement for navigability of waters under the control of the State.

    The true test to be applied is whether a stream inherently and by its nature has
    the capacity for valuable floatage, irrespective of the fact of actual use or the extent
    of such use. Heyward, supra. Valuable floatage is not necessarily commercial
    floatage. The Court recognized a tendency of modern judicial thought that water is
    navigable which is of such character as to be of general use by the public for pleasure
    boating in State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E. 884, 888 ( 1909),
    but did not express any opinion regarding this trend. See also 65 C.J.S. Navigable
    Waters, § 6. It is important to note, however, the strong emphasis and protection
    afforded public boating. As stated in State v. Columbia Water Power, 63 S .E. at 888,
    " ... there cannot be the least doubt that the public is as much entitled to be protected
    in its use [of navigable waters] for floating pleasure boats as for any other purpose."
    The use of this waterway by the general public for boating, hunting, and
    fishing is a legitimate and beneficial public use. It is our view that these waterways
    not only have the navigable capacity as required under Heyward v. Farmers Mining
    Co., supra, but they are navigable in fact as evidenced by their use by the general
    public. The Coastal Council does not have the authority to authorize the complete
    blockage of navigable streams of waterways, especially in a case such as this where
    there is no overriding public interest. See cf State v. Columbia Water Power Co., 90
    S.C. 568, 74 S.E. 26, 27-28 (1911), and cases cited within.
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

  2. #2
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    Quote Originally Posted by BOGSTER View Post
    The use of this waterway by the general public for boating, hunting, and
    fishing is a legitimate and beneficial public use.

    There ya go.


    Excellent point Bog.
    [SIGPIC][/SIGPIC]
    Delta in a nutshell: Breeding grounds + small wetlands + big blocks of grass cover + predator removal + nesting structures + enough money to do the job= plenty of ducks to keep everyone smiling!

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  3. #3
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    Our public highway and interstate highway system is free to the citizens of the State (after tax). You cannot hunt on them or drive 135 mph.
    It is called the "police power".
    DILLIGAF

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    I'd like to know why this is as well. It's bullshit IMO.

  5. #5
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    All of Nab's good ideas were overlooked and dismissed because he could not refrain from tilting at windmills such as this. Just saying...

  6. #6
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    I have no intentions of pursuing my right to hunt Nelson's Cut, I'm just always curious about things like this.
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

  7. #7
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    Nothing wrong with hunting Nelson's on a foggy morn...

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    I get a good running start and if the motor is tuned right I can get to the 2R Refuge and never touch dirt.

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  11. #11
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    Quote Originally Posted by JABIII View Post
    Nothing wrong with hunting Nelson's on a foggy morn...
    Seen it happen before.

  12. #12
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    Used to get a good northwest wind and hunt the gator hole. Epic. Cuddo didn't suck either.

  13. #13
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    Nelson's isn't where I'd be if I were to do it.

    There's a little walk in cut, not much bigger than a football field, within the Pine Island unit.....the least duckiest of the units.

    That's where I'd take my stand. It would take 6 mallards, 3 black ducks, and 2 big drake widgeon decoys.
    I'd have the time of my life and never get my knees wet.

    The only place in South Carolina where I've seen several groups of all blacks dump into.

    Had I known about it when I was too young to get in trouble, it would've been biblical
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

  14. #14
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    Back to the topic at hand....

    Any attorneys??
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

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    I found a new hen canvasback decoy in the back of the Cow Pasture when it opened up for fishing in March.. It was in a nice secure pocket......meaning it didn't float in there.

    Sent from my XT1254 using Tapatalk

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    Bog what happened with the sav project on Santee?
    Quote Originally Posted by Buckin Bronco View Post
    Yep. I have a border collie mix that is smarter than most of the people on this site.
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    Quote Originally Posted by Catdaddy View Post
    I found a new hen canvasback decoy in the back of the Cow Pasture when it opened up for fishing in March.. It was in a nice secure pocket......meaning it didn't float in there.

    Sent from my XT1254 using Tapatalk
    I'm going to need that back...
    Quote Originally Posted by BOG View Post
    Tip:
    Although it is natural for you and seems to be out of your hands, try to suppress your natural inclination towards dumbassedness and do some research of your own.I wish you luck.
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  18. #18
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    Quote Originally Posted by swampshooter View Post
    Bog what happened with the sav project on Santee?
    I'm working on it. If I've learned anything over the last 7 years, it's "hurry up and wait."
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

  19. #19
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    Quote Originally Posted by BOGSTER View Post
    Back to the topic at hand....

    Any attorneys??
    I am a lawyer and I gave you an answer.
    DILLIGAF

  20. #20
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    Quote Originally Posted by Hogg View Post
    Our public highway and interstate highway system is free to the citizens of the State (after tax). You cannot hunt on them or drive 135 mph.
    It is called the "police power".
    I get it. But the state constitution says nothing about hunting or driving 135 on roads.

    It clearly states that navigable waters will remain forever free for the people of SC.
    Be proactive about improving public waterfowl habitat in South Carolina. It's not going to happen by itself, and our help is needed. We have the potential to winter thousands of waterfowl on public grounds if we fight for it.

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