Is “Sportsman’s Paradise” becoming a “Rich Man’s Playground”? According to a recent piece on The Times Picayune website Nola.com, it is.
Louisiana is known for its vast coastal wetlands, especially by fisherman, but these wetlands are becoming off-limits to the public. A startling amount of the Louisiana Coast is privately owned, and those who dare to fish these private marshes are likely to be cited for trespassing on private property. According to Louisiana’s trespassing statutes, if you venture into any privately owned marshes – whether they’re posted or not – you are breaking the law.
In 2003, the state Legislature passed a law making it the individual’s responsibility to know whether the area they’re entering is privately owned or not. The State Land Office determines whether or not sections of marsh are privately owned. If a section has been converted into “an arm of the sea” by erosion, it may be considered public. The State Land Office also determines navigability of waterways. In this case, the term “navigability” probably does not mean what you think it may mean; whether a boat can float on a section of tidal water today is actually irrelevant in this determination.
“The State Land Office utilizes the Louisiana state case-law definition that navigability means capable of supporting commerce at statehood,” the office wrote. “The State Land Office must attempt to determine navigability at the time of statehood.” Statehood, in this case, meaning 1812.
This is an issue for fisherman because, as Todd Masson, author of the piece, puts it, “there weren’t exactly a whole lot of satellites sending down aerial photographs of the marsh in 1812.” Major waterways were labeled, and everything else was consider “wastelands.” These wastelands included lakes, ponds, and bayous that were not mapped in the 19th century and have since been purchased by individuals, leading to a privately owned coast.
Unlike in any other state, Louisiana landowners may even claim tidal waters. Masson explains, “In Phillips Petroleum Co. v. Mississippi, the U.S. Supreme Court ruled in a 5-3 decision that ownership of lands subject to the Public Trust Doctrine includes all tidal lands. In Louisiana, the Public Trust Doctrine states that “Louisiana claims the beds and bottoms of all navigable waters and the banks or shores of bays, arms of the sea, the Gulf of Mexico, and navigable lakes and declares the state’s policy to be that these lands and water bottoms are public lands and shall be protected, administered, and conserved to best ensure full public navigation, fishery, recreation, and other interests.” However, the Court concluded, “It has been long-established that the individual states have the authority to define the limits of lands held in public trust and to recognize private rights in such lands as they see fit.”
In Dardar v. Lafourche Realty, the Court held that tidelands that are not seashore or sea bottoms may be privately owned.
This interactive website indicates which waters are owned by the state. While the state owns major waters and bayous, most everything else is privately owned. This means that fishermen are likely breaking the law every time they venture into shallow marsh waters.
According to Mark Davis, senior research fellow and director of the Tulane Institute on Water Resources Law and Policy, “There have been efforts to put more of the coast’s surface lands into conservation ownership that would accommodate traditional uses such as fishing, but those have been slow to take hold for a variety of reasons,” he said. “That could be part of a solution.”
To read Todd Masson’s complete piece click here.