YELLOW JACKET SHOALS, Upson County, Ga. — Scott Ellington has followed his love of fishing around the world, from the Seychelles off the east coast of Africa to Kodiak, Alaska. But the Flint River, with its swirling eddies and famously feisty shoal bass, ranks among his favorite places.
“All the fishing that we do, this is still worth it to come here,” said Ellington, 55, a retired engineer living in Fayette County, south of Atlanta.
The sun had just started to take the edge off a crisp fall morning as he and a friend prepared their kayaks for a two-day trip down the river, which was quiet but for the murmur of birds and water. The trees reflected on its surface were still mostly green with flashes of red and gold.
The headwaters of the Flint emerge from under Hartsfield-Jackson International Airport and flow southward for more than 300 miles, eventually emptying into the Gulf of Mexico. In the 1970s, then-Gov. Jimmy Carter paddled a section of river threatened by a proposed dam, marveling at the wildlife, and later vetoed the project. Today, the Flint is one of only 40 rivers in the country that flow more than 200 river miles unimpeded, according to the Georgia River Network.
The waterway is home to many native plants and animals, including an uncommon spider lily and the rare shoal bass, Micropterus cataractae, found almost exclusively in a few Georgia rivers. The prized sport fish lurks beneath rocks, striking bait hooks and fly-fishing lures alike and giving anglers an epic aerial struggle before it is caught and, most often, released to fight another day.
Like many visitors to this river, Ellington had heard over the years of escalating tensions — up to and including gunfire — over who has the right to fish certain spots. One such area is Yellow Jacket Shoals, just a mile or so downstream from where Ellington stood. The area is rocky and wild, with reeds giving way to mountain laurel and trees laden with Spanish moss along the banks, which are privately owned on both sides.
Then, earlier this year, the state seemed to acknowledge the exclusive rights of some riverfront property owners to control fishing access when it settled a lawsuit with one of the owners whose property adjoins Yellow Jacket Shoals.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Since then, a new law and a second lawsuit have complicated a prickly question over what is and is not a public waterway, with potential implications for rivers and streams across the state. The issue pits protections for public access against private property rights that were granted more than 100 years ago amid a brutal campaign to expel Native Americans from their historic homelands and redistribute the land to white settlers through lotteries.
To Ellington, the idea of private fishing rights on a river that’s been fished by the public for generations is absurd.
“You can’t lay claim to the water,” he said.
Adam Orford, an assistant law professor at the University of Georgia, said the river access issue is a complex tangle of seemingly contradictory state and federal court decisions and laws, making it difficult to guess which way it will go.
“This is an important case because public access to Georgia’s rivers is important to everybody in Georgia,” Orford said. “I think the overall project of ensuring public access to rivers in Georgia is a good one, and I think it’s legal.”
A House study committee on freshwater fishing is considering reforms on how freshwater fishing resources are governed. One member, Rep. David Jenkins, R-Coweta, said he fears that without legislative action, public access to streams and rivers could be decided “one lawsuit at a time.”
“That’s going to change the public’s right to fish and boat on Georgia waters, and that’s my concern,” Jenkins said.
Fishing ‘part of who we are as a people’
Fishing in Georgia isn’t just a hobby — it’s a right written into the state constitution, which says that the “taking of fish and wildlife shall be preserved for the people and shall be managed by law and regulation for the public good.”
Georgia has over a million licensed anglers, with fishing generating about $1.5 billion in retail sales each year, Scott Robinson, chief of the fisheries management section of the Department of Natural Resources, or DNR, told the study committee. Over the past 10 years, taxes on fishing gear have brought in $85 million, he added.
Robinson said fishing is culturally and economically important to Georgia.
“It’s really a part of who we are as a people and a state,” he said.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
While fish and wildlife are considered public property in Georgia, some lands and waters where they live are not. State law says “navigable” streams are public, and defines navigable waterways as those capable of transporting a boat carrying freight for all or part of the year. Many waterways have been treated as either public or private by tradition without an official determination by DNR, leading to confusion and confrontation.
“The main thing I’m asking for is clarification,” Allen Ragsdale, a fishing guide who leads trips on the Flint, told lawmakers. “We call DNR, or the landowner calls DNR on us, vice versa, a lot of times it depends ... on what DNR ranger showed up.”
Public access v. private property
The issue seemed to come to a head in March, when the state settled a lawsuit filed on behalf of the Brewton family, whose property skirts the Flint along a roughly one-mile-long stretch of Yellow Jacket Shoals. That lawsuit asserted that the family enjoyed exclusive rights to fish the river from their riverbank to the midline of the stream. The argument was two-fold: that the section of river is not, in fact, navigable, and that the original land grant from the 1800s includes control over the riverbed, and therefore control over who can fish there.
The DNR, on the advice of the Attorney General’s office, settled that lawsuit in a decision announced just days before the end of the 2023 Legislative session. The state recognized the Brewtons’ claim to exclusive fishing rights because the property title could be traced to a land grant from before 1863, when the state limited property boundaries to the water line. The two parties did not agree on navigability.
Credit: Special
Credit: Special
The settlement sent state lawmakers rushing to pass, and Gov. Brian Kemp to sign, SB115, which affirms the public’s right to “use and enjoy” all navigable streams for fishing, hunting and travel. It says the public retains these rights even in places where the stream or river bed is privately owned. The law did not change or clarify the definition of navigability.
Now, that law is being tested by a second lawsuit filed on behalf of a property owner just across the shoals, Fayette County Superior Court Judge Ben J. Miller. His nearly identical lawsuit as the Brewtons’ seeks a similar settlement, but the state is fighting it, citing the new law and what court filings describe as a lack of evidence supporting the provenance of the property title.
It’s unclear what, if anything, the new law means for the existing settlement agreement. The DNR and the AG’s office, citing pending litigation, declined to comment or answer questions, including whether the state is enforcing the settlement agreement.
Brooke Gram, an attorney for both property owners, said in an email that the order has been enforced through the DNR and its rangers, and they consider the matter resolved. Miller did not respond to a request for comment submitted through Gram.
Benjamin Brewton, a lawyer and partner at Gram’s firm who also manages the trust that owns his family’s property, said the issue is one of private property rights, and that his family has been paying taxes on the riverbed since his father bought the land in 1972.
Violence over the issue erupted in 2020, when Benjamin Brewton’s brother, Samuel Brewton III, fired a gun at close range at a family in canoes near the property. He was convicted of aggravated assault and reckless conduct and sentenced to 40 years in prison, 10 to serve, according to court records.
Benjamin Brewton, on behalf of his family, repudiated any form of aggression in an email to The Atlanta Journal-Constitution and emphasized that they welcome passage by kayak or canoe, as long as boaters do not attempt to fish.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Meanwhile, potential changes to the law have been debated at the legislative hearings. Agribusiness representatives said SB115 eroded private property rights and expanded state powers over streams and rivers. Conservationists said the law hadn’t changed anything — it merely codified existing rights in response to an ill-advised legal settlement. Owners of private fishing venues that stock their own fish worried that they could lose their livelihoods if any changes are made to the definition of navigability.
Georgia rivers’ past and future
Gordon Rogers, executive director of the Flint Riverkeeper, said he knows the Miller and Brewton families and described them as staunch conservationists, but he opposes their claims. If both succeed in asserting exclusive fishing rights, the entire stretch of the river between them would be off-limits to the public for fishing.
“Equally importantly, you then have a blueprint for how other property owners can begin to expand that mosaic of places where you can’t fish,” he said.
While neither of the recent lawsuits seek to bar public passage by kayak or canoe, Rogers said there is concern that the same arguments could be used to do just that on the Flint and beyond. He said ‘No Fishing’ and other private property signs have cropped up on rivers throughout Georgia, including the Chattahoochee, the Toccoa, the Chestatee and the Seventeen Mile River.
Whether those claims are enforceable will likely depend on the navigability of the waterway, the date of the original land grant and how the new law holds up to legal challenges.
During the first half of the 19th century, Georgia gave away millions of acres of former tribal lands to American settlers — a direct result of coerced treaties with the Cherokee and Muscogee (Creek) people, culminating in the Indian Removal Act of 1830 and their forced relocation west of the Mississippi.
The number of riverfront property owners in Georgia who could try to claim exclusive fishing rights based on a pre-1863 grant is not insignificant, said Rogers.
“It was expanding the territory for, essentially, white people, and taking it away from brown people,” he said.
That may or may not matter in the contemporary legal landscape. But for Turner W. Hunt of the Muscogee (Creek) Nation Historic and Cultural Preservation Department, history confirms his people’s presence in their ancestral homelands and their sovereignty as a tribal nation.
“When we’re looking back at that — what are our traditional homelands — that is what a lot of our citizens look back and think of, the Chattahoochee and the Flint,” he said. “That’s where their tribal towns were before they were removed to Indian Territory.”
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
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