The battle over the Comite River

 

The good, the bad, and the ugly truth behind

The battle over the Comite River

Zachary, Louisiana: With the welcomed arrival of warm weather each spring, landowners begin to hear the constant thunder of roaring motors from dozens of all terrain vehicles.  Each weekend groups of public off-road riders navigate up and down the Comite River with access to miles of private land.

Like a scene out of the 80’s movie “Road Warrior”, the familiar scene plays out for the landowners who are brave enough to enter the circus on the river while trying to enjoy their own private property.

Landowners seeking a solution have their eyes set on October 3, Louisiana’s Department of Wildlife and Fisheries Commission will decide whether or not to grant authority to Louisiana’s scenic rivers system administrator to pursue new laws to stop ATV’s, jeeps, and yes even monster trucks from snubbing property owner’s claims of trespassing.

On July 25, 2013, “NBC 33” posted an online story with some confusing comments from Bo Boehringer, LDWF spokesman that said: “Right now it's not technically illegal to ride in the river itself.” LDWF claims of a legal ‘grey area’ is a confusing taken for clarification to why public access is the rule over private property. “

One proposed change to LA Scenic River, the system administrator Keith Casio claims the current 100 feet rule is a fallacy (false), so he is requesting unlimited jurisdiction that could stretch beyond one mile from all scenic rivers in the state.  Will this new authority resolve the conflict over who can ride the Comite or just another state agencies grab for more power over private lands adjacent to scenic waterways throughout the state?

 “On the Comite River, a push to restore peacefulness”; “The Advocate”, Jim Mustain wrote the story that exposed the volatility on the Comite River. In the article, landowner Gary Norwood stated: “It’s just a case where people want to come in and trespass on your property and make you like it.”  He added. “I’m ready to sue somebody.”

From the public side, off-road riders claim the Comite River as a publicly owned waterway which provides them perfect off road terrain with public access.  “I live to ride the Comite”, a quote from off road rider Ronnie Mayers shows the public view.  However, the belief that more conflict is coming was confirmed by the comment by landowner Mary Lindsey which stated   “This is not a safe situation to continue because it is escalating. Someone is going to get hurt.”

Clearly the battles lines are being drawn on both sides regarding use of the river, but which side of the conflict will claim a victory? The resolution to the controversy may have to be decided by the courts in the end.

TRADEGY IN CONFLICT

Two months ago in Steelville, Missouri. The “St. Louis Times” published a story similar to the escalating events on the Comite River.

Photo by Erik M. Lunsford elunsford@post-dispatch.com

Drinking is sometimes part of the outings, resulting in bawdy behavior that doesn't sit well with owners of land that touches the river. Many have complained for years about loud parties, trash left behind and crude behavior

“A river floating trip leads to tragedy” posted on July 23, 2013, is a story about a fun loving group that took an annual floating trip on the Meramec River.  The group stopped on a gravel bar for what one of them called “answering the call of nature.”

In the group, Army veteran, Paul Dart, 48 of Robertsville, Missouri made a life changing decision to traverse onto which was apparently privately owned property by James Crocker, 59.  A tragic confrontation ensued which ended by James Crocker fatally shooting Paul Dart. 

In the article, Crocker told authorities the shooting came as the culmination of a dispute over whether the group was trespassing or not.  Another local landowner Herb Smelser, 77, described Crocker as courteous, hardworking, and territorial about his property. 

He goes on to say, “It irritated Crocker, it bugged all of us, to tell you the truth, I got so sick of it, I just quit going down there.”  said Smelser, for too many landowners along the Comite River, Smelser’s comments are far too familiar.

CONFLICT TO LAW

In 1970, Louisiana’s scenic river system was created which designated 32 rivers in the state as instantaneously scenic. One such river happened to be a 38 mile section of the Comite River. LDWF claimed state ownership of the river by the addition of LA R.S. 56:1847, in part states:

“Recognizing that some few of the streams rivers may not be state owned but owned by adjacent land owners, the state legislature “encourages” riparian owners to grant to the system administrator scenic easements and surface easements.”

Why did the legislature only “encourage”, not require, riparian owners to grant easements over private property? The above mentioned statute maybe necessary to permit the department to regulate the uses of the beds of certain streams. This statute could create even more confusion to landowners.

It appears that officials from the LA State land office made an arbitrary claim that the Comite River was a navigable waterway. LA law provides ownership thru inherent sovereignty to all navigable waterways within the boundaries of the state.

Evidence of more conflicting claims of state ownership over private property which was made by LA state land office can be seen on the “Houmatoday.com” website. In 2010 , “State doesn’t own big stretch of Bayou Dorcheat”  was reported on in Webster parish about an argument over oil leases on property along Bayou Dorcheat which was designated as scenic.  This led to the discovery of a 1926 Louisiana Supreme Court decision that claimed Bayou Dorcheat was non-navigable when Louisiana became a state in 1812. And as such, the state did not claim ownership of the bed of the bayou.

If navigable by fact, the waterway is considered state owned which allows public access. If un-navigable, the waterway is owned by the adjacent landowner to the centerline of the waterway. Conflicting claims that the Comite is un-navigable may be valid and this evidence could be used to validate those claims.  One source to this evidence is provided each year in the Louisiana Almanac which publishes a US Army Corp of Engineers in New Orleans designation of the Comite as an un-navigable waterway.

TRUTH PREVAILS IN THE LAW

One landowner claims that laws in Louisiana protect private ownership and starts with La Article 490, provided in part, “Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it.”

The landowner goes on to state “La Article 506 ‘Ownership of beds of non-navigable rivers or streams belongs to the riparian owners along a line drawn in the middle of the bed,’ which could strengthen the private landowner claims to ownership to the centerline of the river.”  If discovered to be true that no mutual agreement exists by landowners and no factual determination of state ownership is found then this lack of evidence will be useful to substantiate landowner’s claims to private ownership to the river.

Darwinism is often proven in a conflict with an adversary of substantially greater size and resources, for such an uneven playing field eventually wears down the weaker/smaller party.  However, if you find yourself in a situation with such a decided disadvantage, all is NOT lost, as long as you have Truth on your side — hence the Latin aphorism: Magna Est Veritas Et Praevalebit (“Truth is Mighty and Will Prevail”).

The final resolution for landowners on the Comite River should begin with the state legislature removing the scenic river designation. Louisiana property law seems to be clear in its intent to protect private property owners from loosing their land for the good of the public without compensation. Combined with additional Louisiana Constitutional and U.S. Constitutional Law providing the right to due process creates one powerful argument for landowners to use against the state’s ownership claim to the Comite River.

The most important evidence to their argument could be the numerous property deeds defining the landowners boundary up to the centerline of the river. Could state officials have made so many negligent mistakes, if so, landowners will finally see the true cause for the “grey area” that is providing public access over their private property.