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/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.