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

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/publicat ions/agmag /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 SUSTAINABILITY 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. 892 LOUISIANA LAW REVIEW [Vol. 76 Between 1932 and 2000, Louisiana lost over one million acres of coastal land to the Gulf of Mexico’s inescapable grasp. 16 Due to a variety of natural processes, 17 over a million more acres of land will likely submerge within the next 50 years. 18 By then, Louisiana’s total land loss will be roughly equivalent to two times the entire landmass of Delaware. 19 Though some mitigating measures are in place, 20 severe land loss will continue unless the state or federal government subsidizes drastic corrective action. 21 As time passes, a combination of natural and manmade forces will submerge larger quantities of Louisiana’s coast, thereby creating an underwater labyrinth riddled with tracts of private land. 22 Thus, promptly declaring the ownership of submerged lands is imperative to give Louisiana’s citizens some valuable direction regarding what lands are public. The legislature should take note of the current and future issues regarding submerged lands and formally declare ownership over them. Until then, Louisiana’s citizens remain deprived of not only valuable property rights, but also significant revenue from mineral transactions that accompany State-owned submerged lands. Part I of this Comment introduces the growing controversy involving submerged coastal lands in Louisiana and illustrates the unique 16. See Anderson, supra note 2. For a noteworthy geomorphology study describing extensive land change as a simple and expected result of delta lobe switching, see David E. Frazier, Recent Deltaic Deposits of the Mississippi River: Their Development and Chronology , 17 GULF COAST ASS’N GEOLOGICAL SOC’IES TRANSACTIONS 287 (1967). For an in-depth presentation exploring land loss, land change, and the natural factors responsible for most of the coastal change in Louisiana, see Chris McLindon, PowerPoint Presentation, Rethinking Coastal Restoration: The Delta Cycle and Land Area Change in the Louisiana Coastal Plain , http://biotech.law.lsu.edu/climate/docs/The_Delta_Cycle_and_Land _Area_Change_in_Coastal_Louisiana.pptx (last visited Oct...