Saving Sportsman's Paradise: Article 450 and Declaring Ownership of Submerged Lands in Louisiana

Author:Jacques Mestayer
Position:J.D./D.C.L., 2016, Paul M. Hebert Law Center, Louisiana State University.
Pages:889-920
 
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Saving Sportsman’s Paradise: Article 450 and
Declaring Ownership of Submerged Lands in
Louisiana
TABLE OF CONTENTS
Introduction .................................................................................. 890
I. The Vital Importance of Louisiana’s Submerged Coastal
Marshlands Should Prompt the State to Formally Declare
Ownership Over Them ................................................................. 893
II. The History, Doctrine, and Jurisprudence Pertaining to
Submerged Land Ownership in Louisiana ................................... 896
A. Tracing the Origin of Louisiana’s Privately Owned Coastal
Marshlands ............................................................................. 896
B. Article 450 and its Effect on the Origin of Submerged
Coastal Land Ownership in Louisiana ................................... 898
1. The Traditional Definition of “Natural Navigable
Water Bodies” ................................................................. 899
a. Defining “Natural” .................................................... 900
b. Defining “Navigable” ............................................... 900
2. The Traditional Definition of the Territorial Sea and
its Extensions ................................................................... 903
3. The Traditional Definition of “Seashore”........................ 905
III. Louisiana Owns All Submerged Land Fitting Under Article
450 Regardless of When That Land Submerged .......................... 907
A. The State Owns Submerged Land That Bordered
Natural Navigable Water Bodies ........................................... 907
B. The State Owns the Bottoms of Natural Navigable
Water Bodies Created After State Alienation ........................ 908
C. The State Owns Sea Bottoms and Seashores Created
After State Alienation ............................................................ 911
IV. A Proposal for State Action .......................................................... 913
A. The Inadequacy of Non-Legislative Solutions ....................... 914
B. Putting to Rest the State’s Potential Concerns Regarding
Legislation Asserting Ownership over Certain
Submerged Lands ................................................................... 915
1. The Takings Clause Would Not Apply to the
Reversion of Ownership of Natural Navigable Water
Bottoms, Sea Bottoms, or Seashore ................................. 915
890 LOUISIANA LAW REVIEW [Vol. 76
2. Concerns of Litigation Expenses are Unwarranted ......... 917
C. A Revised Statute to Address the Ownership of
Submerged Land .................................................................... 918
Conclusion .................................................................................... 919
INTRODUCTION
Louisiana is Sportsman’s Paradise—home to some of the most sought-
after hunting, fishing, and nature-viewing opportunities in the world.1
Seeking to net the best catch, sportsmen and commercial fishermen scour
Louisiana’s coast. Due to the current legal landscape and Louisiana’s
constantly morphing coastal environment, however, these fishermen often
find that lawfully using Louisiana’s coastal waters is impossible.
Unlike most other coastal states, the vast majority of Louisiana’s
coastal lands are private.2 These lands are swiftly submerging,3 as
Louisiana loses the equivalent of a football field of coastal land every
hour.4 Under the current practice in Louisiana, many of these large tracts
of coastal land remain in private hands after they submerge.5 As a result,
even to the trained eye, the line between public and private coastal
property is often indiscernible.
Copyright 2016, by JACQUES MESTAYER.
1. Craig Gautreaux, Keeping Louisiana a Sportsman’s Paradise, LSUAG
CENTER.COM, http://www.lsuagcenter.com/en/communications/publications/ag mag
/Archive/2012/Spring/Keeping-Louisiana-a-Sportsmans-Paradise.htm [perma.cc/KX
D4-ENY2] (last updated June 24, 2012, 6:32 PM) (noting Louisiana has long been
known as “Sportsman’s Paradise” and highlighting the many sporting opportunities
available in Louisiana).
2. See Brett Anderson, Louisiana Loses Its Boot, MATTER (Sept. 8, 2014),
https://medium.com/matter/louisiana-loses-its-boot-b55b3bd52d1e [perma.cc/H6C9-
FCM5] (noting that 80% of Louisiana’s coastal environment is private).
3. See ROBERT R. TWILLEY, COASTAL WETLANDS & GLOBAL CLIMATE
CHANGE: GULF COAST WETLANDS SUSTAINABIL ITY IN A CHANGING CLIMATE 5
(2007), available at http://nctc.fws.gov/courses/csp/csp3112/resources/Climate
_Change/GulfCoastImpacts.pdf [perma.cc/GDW6-D2H7].
4. See Mark Schleifstein, Louisiana is Losing a Football Field of Wetlands
Every Hour, New U.S. Geological Survey Study Says, NOLA.COM (June 2, 2011,
9:37 PM), http://www.nola.com/environment/index.ssf/2011/06/louisiana_is_losing
_a_football.html [perma.cc/S8XT-ZADB].
5. Telephone Interview with Ryan Seidemann, Assistant Attorney Gen.,
Civil Div., La. Dep’t of Justice (Sept. 23, 2014). This Comment questions the
legitimacy of this result.
2016] COMMENT 891
In 2006, the Louisiana Legislature realized that permitting private
ownership of some submerged lands made the public’s utilization of state
lands and water bottoms difficult.6 As a result, the legislature commissioned
the State Lands Office to use an interactive mapping system to determine
the ownership of Louisiana’s lands and water bottoms.7 As the State Lands
Office began reviewing Louisiana’s coast, it found that large areas of
submerged land were formerly private land.8 Believing that, under article
450 of the Louisiana Civil Code,9 ownership of these lands reverted to the
State once the land became submerged, Louisiana informally claimed title
to the lands through the State Lands Office review.10 Prominent private
landowners strongly opposed these title claims and began lobbying the State
Lands Office not to take formal action.11 Apparently overlooking that article
450 may dictate that many submerged lands belong to the State,12 the State
Lands Office officials decided that a further assertion of State ownership
would lead to an onslaught of litigation that the State could not afford.13 In
the absence of a legislative solution to the problem, and in an effort to
minimize litigation, the State Lands Office opted to classify most of the
submerged land as “claimed by the state and the adjoining property owner”
and cautioned citizens to enter at their own risk.14 Instead of clearing up
titles, this classification clouded title to vast areas of submerged land.
Although any state’s failure to declare that it owns certain areas of
submerged land would be problematic, that failure is especially problematic
for Louisiana because Louisiana’s coastal environment is submerging faster
than any other landmass in the United States.15
6. Id. Because there is a history of trespassing within Louisiana’s coastal
marshlands and waterbottoms, the Louisiana Legislature presumably knew of this
difficulty well before 2006. For an example of such a trespassing case, see La.
Navigation Co. v. Oyster Comm’n of La., 51 So. 706 (La. 1910).
7. See S. Res. 115, 105th Leg., Reg. Sess. (La. 2006).
8. Telephone Interview with Ryan Seidemann, supra note 5.
9. LA. CIV. CODE art. 450 (2015) (“Public things that belong to the state are
such as running waters, the waters and bottoms of natural navigable water bodies,
the territorial sea, and the seashore.”).
10. Telephone Interview with Ryan Seidemann, supra note 5.
11. Id.
12. See infra Part III.
13. Telephone Interview with Ryan Seidemann, supra note 5.
14. Id. This land category and disclaimer can be viewed in the legend on the
Louisiana Office of State Lands’ website. Disclaimer for SONRIS Interactive
Maps, SONRIS, http://sonris-www.dnr.state.la.us/gis/agsweb/IE/JSViewer/index
.html?TemplateID=381 [perma.cc/NV8M-U6RB] (last visited Oct. 21, 2015).
15. See TWILLEY, supra note 3, at 5.

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