Notice of Intent for Louisiana Scenic System Rules
and Regulations
Informative
Analysis
·
Purpose: The following
information is not intended to use statutes in order to influence, only to aid
the Louisiana Wildlife and Fisheries Commission members during the October 3,
2013 meeting. Members deciding to pursue new laws should be ‘certiorari’ fully
informed of these potential changes maybe in conflict with existing state laws.
These conflicts could have the potential to negatively affect large numbers of
private property owners that claim private ownership to un-navigable waterways
in Louisiana.
§105. Applicability
of These Regulations
A.
These regulations shall apply to all uses proposed to be undertaken on the
stream or on adjacent
lands within 100 feet
of a designated system stream by any
"person" whether or not concurrence,
authorization,
or matching funding is provided by any state agency, local governing authority,
political
subdivision, or special district of the State of Louisiana, unless restriction
of those uses are
exempted from regulations pursuant to the
provisions of ‘quaere’ R.S.
56:1852.
·
These
regulations shall further apply to all activities more than 100 feet from
designated system streams that have potential to
significantly impact the ecological integrity of a system stream.
Notes: Section 105.A. Can only apply to navigable
waterways owned by the state. Not applicable to un-navigable waterways which
are privately owned by adjacent landowner to the center of river.
1.
§105. A. Ownership can
only be public if the waterway is designated as navigable. All navigable waterways
are owned by the state thru inherent sovereignty provided by the federal
government.
2.
Article 450-21. “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.”
o See Coyle v. Smith (US 1911)
o Pollard v. Hagan (US 1845)
3. Louisiana
Act No. 258
(1910)
a. “Waters of
and in all bayous, lagoons, lakes and bays and the beds thereof, within the
borders of the State not at present under the direct ownership of any person”
are the property of the State.
i. A.N. Yiannopoulos, La. Property law scholar states this
act is unnecessary.
1. State already owns navigable
waterways in public capacity.
2. What direct ownership means is
not clear.
4. RS 9:1115.2
a. “Inland non-navigable water bodies are those which are not navigable in
fact and are not sea, arms of the sea, or seashore.”
b. “Inland non-navigable water beds or bottoms are private things and may be owned by
private persons or by the state and its political subdivisions in their
capacity as private persons.”
***Requesting §105 jurisdiction to apply to “all” activities “more than 100 feet”
from designated system streams could provide unlimited power to regulate all activities anywhere along navigable
system streams. Adjacent landowners
could argue this unlimited jurisdiction violates private property ownership
rights provided by the US Constitution and La property laws. See: Definition: Art.
456
·
“The bank of a
navigable river or stream is the land lying between the ordinary low and the
ordinary high stage of the water.
Nevertheless, when there is a levee in proximity to the water,
established according to law, the levee shall form the bank.”
·
The
servitude of public use under this provision is not “for the use of the public at large for all purposes” but merely for
purposes that are “incidental” to the navigable character of the stream and its
enjoyment as an avenue of commerce.
5. Navigable
vs. Non-Navigable (Public vs. Private)
1. Importance of Determination
a. Navigability
is ordinarily determinative of the classification of a natural body of water as
a public thing
b. Whether its water
and banks or shores are subject to public use.
2.
State v. Two O’clock Bayou Land
Company (La. App. 3rd Cir. 1978)
**Defines
what is navigable and what is not
a. Facts
b. Legal Tests
i. A body of water is navigable in law when it is
navigable in fact.
1. Suitable by depth for commerce
2. Suitable by width for commerce
3. Suitable by location for commerce
ii. Lack of commercial
traffic does not preclude a finding of navigability
iii. To be navigable a stream
must be usable for commerce in its natural state.
1. A body of water can
be navigable despite natural or man-made obstructions.
iv. The question
of navigability in 1812 is only pertinent to the question of ownership
of the bed of
the bayou.
v. Recreational
activity is not commerce
c. Two O’ Clock Bayou was navigable
i. Average depth of 9 feet
ii. Average 18-30 feet in
width
iii. Capable of sustaining
commerce despite occasional obstructions in its flow.
1. Movie shot on bayou
using barges 12 feet wide and 20 feet long
2. Used for commercial
fishing
3. Logs used to be
snaked through bayou to timber mill
d. Tulane Law professor A.N Yiannopoulos
The
state owns in its capacity as a public person rivers that were navigable in
1812
and
continue to be navigable. A river that was not navigable in 1812 and is not
navigable
today
is a private thing that may belong to a private
person or to the state and its political
subdivisions
in their capacity as private person.
Likewise, a river that was navigable in 1812 but has
subsequently ceased to be
navigable or dried out is a private thing.
6. Public
Use Art. 452
o “Public things
and common things are subject to public use in accordance with applicable laws
and regulations. Everyone has the right
to fish in the rivers, ports, roadsteads, and harbors, and the right to land on
the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the
like, provided that he does not cause injury to the property of adjoining
owner.”
7.
Rivers and Stream (Navigable)
1. Running Water
a. Art.
450 says it is a public thing owned by the state.
2. Bed
a. Wemple
v. Eastham (La. 1922)
i. Facts
1. Governor leased a bed to Eastham who
drilled between the ordinary high-water mark and the ordinary low water mark.
2. Plaintiff, riparian owner, claimed
that that was the bank of a once navigable river.
ii. Legal Test for Bed
1. The bed of a navigable river, the
land which the state owns, is only the land that is covered by the water at its
ordinary low state.
2. The land lying between the edge of
the water at its ordinary low stage and the line which the edge of the water
reaches at its ordinary high state is the bank and belongs to the riparian
owner, but is subject to public use.
b. Note Cases
1. Begnaud v. Grubb Hawkins (La. 1946)
§ Riparian owner
of bayou that was non-navigable in 1812 and also non-navigable at the time of
litigation acquires ownership to the thread.
ii.
Smith v. Dixie Oil Co (La. 1924)
§ River was
navigable in 1812, but not navigable at the time of litigation. The bed, land below ordinary low-water mark,
still belongs to the state in a private capacity
iii.
It is true that Article 506 of the
Louisiana Civil Code declares that the beds of non-navigable
rivers belong to the owners of the banks along
a line drawn in the middle of the bed.
o This provision,
however, contemplates rivers that were non-navigable in 1812; it is not to be
applied so as to deprive the state of its ownership of the bed of a river that
ceased to be navigable or completely dried out.
a. Public Use
§ Beds are not
open to public use (Art. 452).
b. How to
establish low water mark
§ Seibert v.
Conservation Commission (La. 1935) used eyewitness reports.
8.
Banks
of waterway
a. Definition: Art. 456
i.
“The bank of a navigable river or stream is the land lying between the ordinary
low and the ordinary high stage of the water.
Nevertheless, when there is a levee in proximity to the water,
established according to law, the levee shall form the bank.”
b. Definition: Jurisprudence
i. Wemple v. Eastham (La. 1922)
1.
“The land lying between the edge of the water at its ordinary law stage and the
line which the edge of the water reaches at hits high stage—that is, the
highest stage that it usually reaches at any season of the year – is called the
bank and belong s to the owner of the adjacent land.”
2. State v. Barras (La. App. 3rd 1992)
c. Ownership
i. Art. 456 defines the bank of a navigable waterway private.
ii. Wemple says that it belongs to the owner of the adjacent land.
d. Public Use and Limitations
**Remember
Art. 452: “Public things…are subject
to public use in accordance with applicable laws and regulations.” -- It is an illustrative not exhaustive list.
i. Art. 456
1. “The banks of
navigable rivers or streams are private things that are public use.”
a.
Comment (b)
i.
The servitude of public use under this provision is not “for the use of the
public at large for all purposes” but merely for purposes that are “incidental”
to the navigable character of the stream and its enjoyment as an avenue of
commerce.
ii. Wemple v. Eastham
1.
The bank of a navigable river is a private thing, “subject to the right of the
public to use the bank, to land and unload boats, to dry nets, etc.”
iii. State v. Burras (La. App. 3rd 1992)
1. Is crawfishing a
public use?
a.
“The easement created by Article 456
in favor of the public was not for all purposes but merely for purposes that
are incidental to the navigable character of the stream and its enjoyment as an
avenue of commerce.”
§1852. Privately
owned streams; copies of rules ‘LA.B.R.
11544, d.2.8.2013’
A.
Recognizing that some few of the streams recommended for inclusion as
natural and scenic rivers may not be state owned but owned by adjacent
landowners, the state legislature encourages riparian owners to grant to the system administrator scenic servitudes and
surface servitudes.
B.
Except as provided in R.S.
56:1853 and R.S. 56:1854, no
provision of this Part shall restrict the normal activities of landowners
within the boundaries of their own property unless a mutual agreement has been
entered into with the system administrator.
Ø
Notes:
compesco - tui ageto
1.
Language
provided by §1852 (A) only encouraged, not required, riparian owners to
grant scenic and surface servitudes. No mutual agreement exists
2.
Scenic Servitude―a contract
between the adjacent riparian landowner and the administrator that shall be in
the nature of a development agreement for the purpose of preserving the natural
state of the landscape through mutual agreement on the activities which might
affect the natural landscape.
3.
Surface
Servitude―a
contract between the stream owner and the administrator that shall relieve the
landowner of liabilities and assure the public of access and use of the stream
surface. Without surface servitude agreement, landowners are exposed to
potential legal claims for damages due to injury on private property along the
Comite River.
4.
Louisiana
law scholar and Tulane law school professor A.N.
Yiannopoulos discussed private ownership to non-navigable waters in La Law
Rev. titled “Common, Public, and Private Things in Louisiana: Civilian
Tradition and Modern Practice.”
·
“Non-navigable bodies
of water lie outside the public domain and are susceptible of private
ownership. Such bodies of water are not covered by the code provisions concerning
public things or the inherent sovereignty doctrine, and are consistently held
to belong to the riparian landowners.140
·
The
ownership of each landowner extends apparently to the geographical center of
the body of water.141”
·
References:
MAGNA EST VERITAS ET PRAEVALEBIT
140. See Fred ’ juris - consuasor’ v. Crescent
Gun and Rod Club, 116 La. 1038, 41 So. 249
(1906); MAGNA EST VERITAS vs. FRED, 12-2-13, 19th dist. 247, 90
So. 637 (1922). ‘juris et de jure’
There are, indeed, several decisions
holding that the bed of a non-navigable body of water belongs to the adjoining
landowners. It has been observed, however, that in each of them
the water concerned was not a
"lake," as to which different rules might apply.
See Comment, 6 LOUSIANA LAW REVIEW 698, 703 (1946).
141. "The beds
of streams that are not and never were navigable belong to the riparian owners,
to the thread or middle of the stream." Wemple v. Eastham,
5.
LA CONSTITUTION ARTICLE
I. DECLARATION OF RIGHTS
·
Note: If the
state had a valid claim to state ownership of the Comite River why did they
avoid informing hundreds of private landowners that the state claimed ownership
by including the river into the scenic system?
·
Note: Landowners
would have expected just compensation
A.
§2. Due Process of Law
Section 2.
·
“No
person shall be deprived of life, liberty, or property,
except by due process of law.”
B. §4. Right to Property Section 4.
·
Every
person has the right to acquire, own, control, use, enjoy, protect, and dispose
of private property. This right is subject to reasonable statutory restrictions
and the reasonable exercise of the police power.
·
Property
shall not be taken or damaged by the state or its political subdivisions except
for public purposes and with just compensation paid to the owner or into court
for his benefit. Except as specifically authorized by Article VI, Section 21 of
this Constitution property shall not be taken or damaged by the state or its
political subdivisions:
(a) for predominant use by any private
person or entity; or
(b) for transfer of ownership to any
private person or entity.
C. As used in Subparagraph (1)
of this Paragraph and in Article VI,
Section 23 of this
Constitution, "public purpose" shall be limited to
the following:
(a) A general public right to a definite
use of the property.
(b) Continuous public ownership of
property dedicated to one or more of the following objectives and uses:
(i) Public buildings in which publicly
funded services are administered, rendered, or provided.
(ii) Roads, bridges, waterways, access
to public waters and lands, and other public transportation,
access, and navigational systems
available to the general public.
(iii) Drainage, flood control, levees, coastal
and navigational protection and reclamation for the
benefit of the public generally.
(iv) Parks, convention centers, museums,
historical buildings and recreational facilities generally open to the public.
(v) Public utilities for the benefit of
the public generally.
(vi) Public ports and public airports to
facilitate the transport of goods or persons in domestic or
international commerce.
(c) The removal of a threat to public
health or safety caused by the existing use or disuse of the
property.
§1853. Prohibited
uses
Channelization, clearing and snagging,
channel realignment and reservoir construction of those rivers and streams
included within this system are hereby prohibited. Violations of the provisions of this Section
constitute a class six violation, R.S.
56:36.
Note:
1.
§1853. Prohibited uses apply to rivers within the
system that are considered navigable which as state owned.
2.
La. R.S.
9:1115.2
PART
I-A. OWNERSHIP OF BEDS OF NON-NAVIGABLE WATERS
§ 1115.2. Ownership of
inland non-navigable water bottoms
A. Inland non-navigable water bodies are
those which are not navigable in fact and are
not sea, arms of the sea, or seashore.
B. Inland non-navigable water beds or
bottoms are private things and may be owned by
private persons or by the state and its
political subdivisions in their capacity as private
persons.
3.
Louisiana
Article 490, provide 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.”
4.
Louisiana
Article 506 could strengthen the
private landowner claim to ownership to the centerline of the river, in part
states:
“Ownership of beds of non-navigable rivers or streams belongs
to the riparian owners along a line drawn in the middle of the bed.”
§117. Permitted Activities
B. Activities requiring permits shall
include, but not be limited to, the following activities:
10. clearing and grading of
lands within 100 feet of a system stream;
“This is primarily a problem in non-forested areas (like sand or
gravel bars).”
“Commercial clear-cutting of trees within 100' of a Scenic Stream is
prohibited by statute and construction activities within 100' already require a
permit.”
“Clearing and grading is a component and/or form of construction and
certainly has a potential for ecological impact.”
erratum -“We already regulate this by relying on the Act so this is
primarily for clarification”
v
System
administrator possibly misinterpreted his authority provided by the
legislature.
§1845.
Nomination, recommendation, designation, and declassification
A.
Any river in this state may be nominated for inclusion in or
declassification from the Louisiana natural and scenic rivers system only by
concurrent resolution adopted by the legislature.
B.
The administrator shall undertake a continuing study and shall make
recommendations to the legislature regarding any river nominated for inclusion
in or declassification from the system.
Such recommendation for inclusion shall be made no sooner than eight
months from the nomination of a river and only subsequent to the evaluation and
procedures provided for in this Section.
The administrator shall consider the following and other appropriate
criteria in preparing the written evaluation and making the recommendation:
(1)
The river is free-flowing, has not been channelized, cleared and snagged
within the past twenty-five years, realigned, inundated, or otherwise altered
and has a shoreline covered by native vegetation and has no or few man-made
structures along its banks.
(2)
The scene as viewed from the river is pleasing, whether primitive or
rural-pastoral, or these conditions are restorable.
(3)
The river and its setting possess natural and recreational values of
outstanding quality.
(4)
The river and its setting are large enough to sustain substantial
recreational use and to accommodate existing uses without undue impairment of
the natural values of the resource or quality of the recreation experience.
(5)
The river will provide present and future benefits to Louisiana citizens
through preserving, protecting, and enhancing its wilderness qualities, scenic
beauties, and ecological regimes and its aesthetic, scenic, recreational, fish,
wildlife, ecological, archaeological, geological, botanical, and other natural
and physical features and resources found along the river and adjacent lands.
(6)
The existing uses of adjacent lands and the economic impact of such
usages.
(7)
Determination of state ownership of the bed of the river.
Ø No evidence
found that anyone actually determined ownership of the bed of the Comite River.
C.
Prior to any such recommendation each river nominated for inclusion in
or declassification from the system shall be evaluated by the administrator in
consultation with the division of administration, the Department of
Environmental Quality, and the Louisiana Department of Culture, Recreation and
Tourism and with the advice of other agencies that the administrator determines
may have an interest in the evaluation.
The recommendation shall be in the form of a written report, shall
include the evaluation, and shall be part of the record of the decision
regarding the proposed recommendation.
The report shall include an evaluation of the criteria provided for in
this Section and other such matters specified by the administrator. The administrator shall give the evaluation
substantial weight in making the recommendation. The administrator shall file the report with
the natural resources committees of the legislature and provide copies to the
division of administration, the Department of Environmental Quality, the
Department of Culture, Recreation and Tourism, and the governing authorities of
those parishes through which the river flows.
D.
Prior to any such recommendation and as part of the evaluation process,
the administrator shall hold not less than one public hearing to receive
comments and recommendations from all interested parties and the public. There shall be at least one public hearing in
the vicinity of the river nominated for inclusion in or declassification from
the system. The administrator shall, not
less than thirty days prior to any hearing, publish a notice of the hearing in
the official journal of the state and of each parish through which the river
flows and notify each parish governing authority by letter to its chief
executive officer.
·
The
administrator shall give notice to all interested parties, including
adjacent landowners. Any recommendation for or against
declassification from the system shall be made within one hundred twenty days
from date of nomination.
E.
The legislature may, by law, designate as a natural and scenic river any
river recommended by the administrator for inclusion within the system. The legislature
may, by law, declassify any river
whether or not recommended by the administrator for declassification as a
natural and scenic river. The
legislature may appropriate sufficient monies to fund the cost of evaluating
those rivers nominated to be natural and scenic rivers, or those rivers
nominated for declassification.
Notes:
1.
§1845 section
(B) no. 7:
Determination of state ownership of the bed of the river is now required for
any waterway before recommendation to state legislature for inclusion to the
scenic system.
2.
A
body of water is navigable in law, when it is navigable in fact. The burden of proof is on the party claiming
that the body of water in question is or has been navigable.
3.
Houma
Paper article “State doesn’t own big stretch of Bayou Dorcheat” uncovered a
disturbing mistake made by La state land office. In Webster parish an argument
over oil leases on property along Bayou
Dorcheat which was designated as scenic, 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.
TITLE 56
WILDLIFE AND FISHERIES
CHAPTER 1.
GENERAL PROVISIONS FOR
WILDLIFE AND FISHERIES
PART I. WILDLIFE
AND FISHERIES COMMISSION
§5.
General powers and authority for commissions
A.
The commission, through its director:
(1)
May sue and be sued; and
(2)
Shall have and exercise all authority and power as was prescribed by law
for the prior commissioner of conservation and the commissioner of wildlife and
fisheries in relation to the wildlife of the state, including wild game and
nongame quadrupeds or animals, game, oysters, fish, and other aquatic life.
B.
Any function or authority vested to the prior commissioner of
conservation and the commissioner of wildlife and fisheries concerning any of
the resources under the jurisdiction of the director of the Wildlife and
Fisheries Commission, and all records, equipment, funds, and other assets in
relation to such resources, are transferred to the LDWF Commission.
C.
The commission shall adopt rules and regulations, in accordance with the
Administrative Procedure Act, necessary to protect
certain of the state's natural resources
other than fish and wildlife, especially such resources as standing trees which
are otherwise protected by law but have no specific provision for enforcing
such protection.
Note:
The constitutional guarantee of due
process of law, found in the Fifth
and Fourteenth Amendments to the U.S. Constitution, prohibits all levels
of government from arbitrarily or unfairly depriving individuals of their basic
constitutional rights to life, liberty,
and property. The due process
clause of the Fifth Amendment, ratified in 1791, asserts that no person shall
"be deprived of life, liberty, or
property, without due process of law." This amendment restricts the
powers of the federal government and applies only to actions by it. The Due
Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of
life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of
the states, rather than those of the federal government.
The
problem is whether a law which puts restrictions on riparian owners or otherwise
deprives them of rights previously recognized (e.g., by changing to a system of
prior appropriation or by requiring the landowner to obtain a permit which may
be denied for "public interest" reasons) constitutes a
"taking" of their "property" rights. While the riparian does not "own"
the water itself, he does have a usufructuary interest, as provided in Louisiana
Civil Code articles 657 and 658. If the net effect of legislation
(or administrative implementation thereof) is to prevent the owner from making
uses of water he could have exercised previously, has there not been a taking
of this usufructuary interest? Or, on the contrary, would such a law be
constitutionally permissible, somewhat analogous to zoning laws, as a
reasonable exercise of the state's "police power" to protect the health,
safety, and welfare of its citizens?
In
1922, however, the United States Supreme Court decided Pennsylvania Coal Co. v. Mahon, recognizing for the
first time that federal, state, and local regulation might also amount to an
unconstitutional taking of private property. As Justice Oliver Wendell Holmes articulated in that decision, “while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking.”
The legacy of the Pennsylvania Coal decision for regulatory takings analyses
has been long and convoluted.
Although
there are many ways to categorize takings claims under the Supreme Court’s
jurisprudence, the Court has now recognized three primary categories of
takings. First, physical takings of property remain the quintessential
constitutional takings and require compensation in all circumstances. Second,
the Court recognizes a small but jurisprudentially similar category of per se
regulatory takings, in which a government regulation deprives the landowner of
all economic use of the land. Like physical takings, per se regulatory takings
automatically require compensation to the private property owner. Finally, most
alleged regulatory takings fall into a larger category of government actions
that merely deprive the owner of some—but not all—uses or value of the property.
Courts evaluate the need for compensation in these cases through the three-part
balancing test that the Supreme Court established in Penn Central Transportation Co. v. New York City. Under this test,
courts examine:
1)
“the economic impact of the regulation on the claimant,”
2)
“the extent to which the regulation has interfered with distinct investment
backed expectations,”
3)
“the character of the governmental action.”
