Written by: Christopher R. Handy, Carver Darden
For NOBA’s Property Law Committee
As sea levels rise and Louisiana loses a “football field an hour” of coastline, more areas of the State are becoming accessible to boaters and sportsmen. Much of this new area, now inundated with water, runs over land that is privately owned. Thus, while more waters are available to fish, the newly created waters may be subject to trespass liability for sportsmen and tort liability for landowners. HB 391 of the 2018 Regular Legislative Session attempted to resolve the issue and failed—arguably for good reason. Although the bill was defeated, the legislature will surely try to resolve the issue of open access again; it should do so by analyzing the legal history of waterbody ownership centered on the question of navigability.
Louisiana Civil Code art. 450 states, “Public things that belong to the state are such as running water, the water and bottoms of natural navigable water bodies, the territorial sea, and the seashore.” With this elementary principle of property law in mind, HB 391 seems relatively benign; indeed, redundant with its statement, “The running waters of the state…are and remain the property of the state.” However, problems arise when the bill gets to its main substance: “No person may restrict or prohibit, pursuant to the authority of Civil Code Article 3413 or otherwise, the public navigation of running waters.” Taken to its logical extreme, private lands intermittently flooded or overflowed by the “running waters” of the state would be freely accessible by the public. This results from the bill’s focus on access to running waters, and conveniently ignores the alligator in the room: navigability and its legal limits.
The importance of navigability dates back to Louisiana’s admission to the union and requires an understanding of the Equal Footing Doctrine and Public Trust Doctrine. The Equal Footing Doctrine is predicated on the notion that all newly admitted States into the Union do so on “equal footing” with the original 13 states. Like the original 13 states, title to and ownership of all navigable water bottoms are vested in new states. Thus, Louisiana acquired ownership of its navigable water bottoms in 1812. In Louisiana, those navigable water bottoms acquired by the state were limited to the beds and bottoms of navigable rivers, streams and lakes, the bed of the territorial sea, and the seashore. La. Civ. Code arts. 450 and 451. The Public Trust Doctrine varies by state and simply articulates a state’s policy that it owns navigable water bodies for the benefit of its citizens who have a right to use these navigable water bodies freely, subject to reasonable limitation placed on such use by the state. Land held by the state in public trust typically is not alienable.
The question then arises, how expansive is navigable? In Phillips Petroleum Co. v. Mississippi, 108 S. Ct. 791 (1988) the U.S. Supreme Court held that land subject to the “ebb and flow” of the tide was acquired by Mississippi via the Equal Footing Doctrine, and that Mississippi’s law did not permit the alienation of this land under its Public Trust Doctrine. The Court was quick to clarify that its holding was specific to Mississippi’s Public Trust Doctrine and that each individual state may define its own Public Trust Doctrine. Id. at 799. Consequently, Louisiana distinguished its public trust. Even before Phillips, Louisiana defined its public trust as “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.” La. R.S. § 41:1701 (2018). Post-Phillips, Louisiana reiterated its law stating, “The legislature hereby finds that as to lands not covered by navigable waters including the sea and its shore…the Phillips decision neither reinvests the state…with any ownership of such lands nor does the state…acquire any new ownership of such property.” La. R.S. § 9:1115 (2018). Thus, Louisiana law regards navigability as the hallmark of its public trust limitations.
Navigability itself is a question of fact determined at two points in time: first, at the time of Louisiana’s admission to statehood in 1812 and second, at the time of severance from the public domain. See Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576, 588-89 (La.1974). A water body is navigable when it is susceptible of being used as a highway of commerce in the customary mode of trade and travel in the area. 2 La. Civ. L. Treatise, Property § 4:3 (5th ed.). Therefore, a water body must be capable of being used as a highway of commerce in the customary mode of trade and travel both in 1812 and, if applicable, when the state sold it to a private party for Louisiana to retain ownership of the water body.
The even bigger question then becomes, what about private land that becomes a navigable waterway after it has been severed from the public domain? This, perhaps, creates a third point in time as to when the navigability test must be applied, i.e. the land’s current state of navigability. While the Civil Code is silent on the issue, cases decided by the Louisiana Supreme Court suggest that such land belongs to the state as a matter of public policy. In Miami Corp. v. State, 186 La. 784, 173 So. 315 (1936), the Louisiana Supreme Court declared: “It is the rule of property and of title in this State, and also a rule of public policy that the State, as a sovereignty, holds title to the beds of navigable bodies of water.” This rule, however, raises a collateral question, as yet unanswered by our Supreme Court, of whether such an automatic conversion of private property to public ownership amounts to a taking under the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1 Section 4 of the Louisiana Constitution for which compensation is due. At least one noted commentator believes it might. See 2 La. Civ. L. Treatise, Property § 4:2 (5th ed.); see also Deltic Farm and Timber Co., Inc. v. Board of Com'rs for Fifth Louisiana Levee Dist., 368 So. 2d 1109 (La. Ct. App. 2d Cir. 1979). The converse argument is that there is no taking as the land reverts to state ownership under the express provisions of the Civil Code. Lee Hargrave, "Statutory" and "Hortatory" Provisions of the Louisiana Constitution of 1974, 43 La. L. Rev. 647, 661 (1983); La. Civ. Code art. 500; Miami Corp. v. State, 186 La. 784, 794, 173 So. 315, 318 (1936). In other words, when one purchases property in Louisiana, particularly in its coastal regions, such a purchase is subject to an implied condition that if the land ever becomes inundated by navigable waters, title is automatically transferred to the state. The losing landowner is not due any compensation for the loss of his land as he effectively assumed the risk of such loss under Louisiana law when he bought the property. This sticky question has yet to be resolved by the courts of this state.
One may posit, after all the discussion of navigability, that the Civil Code says that running water is a public thing and, therefore, freely accessible by the public where ever it might flow. Indeed, this was the underlying premise upon which HB 391 was founded. While it can hardly be denied that the state owns its running waters, such ownership does not automatically confer a right of access where such running water happens to flow over private lands. Louisiana courts have found that running water over private land (a canal in this case) does not result in public access. Dardar v. Lafourche Realty Co., 985 F.2d 824, 834 (5th Cir. 1993). Furthermore, several attorney general opinions disallow public access to running water flowing over private land. Atty. Gen. Op. Nos. 90-557, 03-407; Op. Atty. Gen., No. 04-0082A, March 26, 2004; Op. Atty. Gen., No. 96-257, Sept. 5, 1996. United States Supreme Court cases are in accord. Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn vs. Vermilion 444 U.S. 206 (1979). Indeed, Louisiana has codified this rule in Civil Code art. 3414, which allows owners of private property to forbid entry to those wanting to fish on lands that are privately owned.
In sum, the issue of public access to private land that may now be navigable in fact is a complex one. Because the history of this area of the law is so steeped in navigability, the solution should address the gap, or lacuna, in the Civil Code concerning water bodies that become navigable after 1812 or after severance. Even then, the question of compensation if such land later reverts to public ownership cannot be ignored. HB 391 addressed access to running water, a fairly settled issue, but then sought to preempt the constitutional right of an owner to forbid public access to such waters when they cover privately owned lands. That was a flash point for Louisiana landowners. Although the legislature is still researching the access question through less draconian measures (HR 178 of 2018), a true solution may lie in tackling the dual questions of current navigability and compensation.