Opinion No.
Background
- Senator Williams requested an attorney general opinion on Plum Bayou: navigability, ownership, public recreational use, and the relevance of McIlroy and Hatchie Coon decisions.
- AG concludes navigability is a fact-based question under both Arkansas and federal law and cannot be determined in an opinion.
- Ownership is tied to navigability; determining navigability effectively resolves ownership, so the question cannot be answered here.
- Public right to use Plum Bayou depends on navigability; if navigable, the public may use below high-water mark; if not, public use is generally not allowed.
- Cases cited may inform the analysis of ownership and public use, but navigability remains the controlling, unresolved factual issue.
- Opinion prepared by Assistant Attorney General J. M. Barker and approved by Attorney General Dustin McDaniel; signed by Dustin McDaniel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Plum Bayou navigable under law? | Williams contends navigability governs ownership and public use. | Navigability is a question of fact that cannot be resolved in an AG opinion. | Navigability, a factual question; not decided here. |
| Who owns Plum Bayou if navigability remains unresolved? | Ownership hinges on navigability. | Ownership depends on navigability; cannot answer as a matter of law here. | Ownership not determined; depends on navigability as a fact. |
| Does the public have the right to use Plum Bayou for recreational purposes? | Public access follows navigability status. | Public use contingent on navigability; cannot decide without factual finding. | Public use not decided; depends on navigability. |
| Do McIlroy or Hatchie Coon affect the responses to the above questions? | McIlroy expands navigability to recreational-value waters; Hatchie Coon raises submerged-land concepts. | These cases may be relevant but do not settle the navigability fact. | They may be relevant guidance but navigability remains the ultimate unresolved issue. |
Key Cases Cited
- State v. McIlroy, 268 Ark. 227 (1980) (expands navigability to waters with recreational value)
- State v. Hatchie Coon Hunting Fishing Club, Inc., 372 Ark. 547 (2008) (public ownership aspects; submerged land issues discussed)
- Echubby Lake Hunting Club, 83 Ark. App. 276 (2003) (navigability and public rights discussed; factual inquiry)