Fishing in troubled waters

Scots Law News is always interested by Anglo-Scottish cross-border issues (see previously here and here), but was especially fascinated by the latest episode concerning fishings on the River Esk, reported by the BBC on 29 August 2010.

The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border.  The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout.

This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk).  Their defence will be to challenge the legitimacy of the Agency's regulations.  The case begins before Sheriff Kevin Drummond on 10 September.  We will be watching eagerly for further news.

The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries.  See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35:  Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings);  Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).