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Started By
Message
re: HR 391 (Water Access Rights) Passes 5-3 in committee
Posted on 4/19/18 at 1:18 pm to CootDisCootDat
Posted on 4/19/18 at 1:18 pm to CootDisCootDat
quote:
..but then it goes back full circle to the land owner doesn't want to spend time and money putting up signs that a trespasser will pull down, trespass anyway, and when they get caught say "we didn't see any signs "
what can i say? A criminal is gonna be a criminal. You will never prevent all trespassing. At least with my proposal, the honest people will stay out of land they don't have permission on which to be.
ETA: Dam beat me to it
This post was edited on 4/19/18 at 1:20 pm
Posted on 4/19/18 at 1:19 pm to Dam Guide
quote:
Yeah, it's a terrible way to manage land. It should be changed. I know land owners don't want to give a single inch of their land, but unfortunately what they purchased has changed a lot since the 1800s. Louisiana needs to have some mechanism to protect it's assets like pretty much every other state in the union.
How do you suggest land owners going about getting compensated for the change? Are citizens ok with tax dollars going to paying such compensation to landowners?
Also, will landowners be compensated as boats make their way onto their property during high water times and begin to tear the land up with surface drives?
Finally, due to the state putting in dams and control structures, will the state then purchase the land they impacted due to raising the low water mark along rivers on what was private land?
So many questions in this Pandora's box of a problem. That is more than just, "Derp, you can't own the what I can get to with a boat..."
There is already precedent and laws that protect the land owners, to reverse that is going to require beyond a simple committee vote.
Posted on 4/19/18 at 1:25 pm to Scrowe
Maybe just look at how Mississippi, Texas and Alabama handle their water access and model a law off their laws. I don't believe the taxpayers in those states pay the water bottom owners any money to access the public water over their water bottoms. That may be too simplistic of an approach for us and God only knows our legislators can't even balance a budget unless its during a special session and a proverbial gun is to their heads.
Posted on 4/19/18 at 1:41 pm to Scrowe
quote:
How do you suggest land owners going about getting compensated for the change? Are citizens ok with tax dollars going to paying such compensation to landowners? Also, will landowners be compensated as boats make their way onto their property during high water times and begin to tear the land up with surface drives? Finally, due to the state putting in dams and control structures, will the state then purchase the land they impacted due to raising the low water mark along rivers on what was private land? So many questions in this Pandora's box of a problem. That is more than just, "Derp, you can't own the what I can get to with a boat..." There is already precedent and laws that protect the land owners, to reverse that is going to require beyond a simple committee vote.
They wouldn’t be compensated, Louisiana would just take it if they changed the public trust document because it wouldn’t be the land owners land anymore. There is precedent that already exists for this outside your state federally, the only thing that protects land owners in Louisiana is the public trust document for what is navigable waters. If it is changed, that’s the only thing that needs to happen for land owners to lose what they thought was their property. You can go to court and fight it if you want, that would be your option.
This is all a big what if though.
This post was edited on 4/19/18 at 1:45 pm
Posted on 4/19/18 at 1:53 pm to Scrowe
quote:
Finally, due to the state putting in dams and control structures, will the state then purchase the land they impacted due to raising the low water mark along rivers on what was private land?
This is something often overlooked. Terrebonne Parish has put in these new levees and everything south of them floods if there is more than 2 days of south winds. IMO, this levee installation amounts to a taking since my camp property is flooded with 1-5" or more of water many times a year. This didn't happen before the levee.
Posted on 4/19/18 at 2:05 pm to Motorboat
We have lots of acreage that was land before structures were put in in north Louisiana that the government impacted to create a flood control for a public duck hunting lake. As a landowner in this situation we just have to be ok with what was once private recreational property just becoming public? All I'm saying is there is way more impacted in this decision beyond the private gates in the marsh.
Posted on 4/19/18 at 2:07 pm to rsoudelier1
You keep saying "Want access to a public resource." I think what you mean is you want the government to legalize trespassing as long as it is in a boat.
Posted on 4/19/18 at 2:13 pm to wildeaux
No What I mean is exactly what I said; "Want access to a public resource". The public resource is tidal flow water. I don't call it trespassing when a plane flies directly above my house or when my neighbor's kid flies his drone above my house. The air above my house is a public resource just like the water, well at least in all other states its considered a public resource accessible to the public.
Posted on 4/19/18 at 2:20 pm to rsoudelier1
quote:
Hold up swole up, not so fast. Most of us proponents still want access to all public resources
The public resource is public through statute for the purpose of regulation not ownership. The state has to be able to regulate the resource ... has nothing to do with accessing the resource. Which could help those that want to understand why that argument doesn't apply.
Posted on 4/19/18 at 2:22 pm to OverboredTgr
quote:
The state has to be able to regulate the resource ... has nothing to do with accessing the resource. Which could help those that want to understand why that argument doesn't apply.
exactly.
As far as the airplane example, the trespassing law prohibits a drone from from hovering over private property.
Posted on 4/19/18 at 2:23 pm to Dam Guide
quote:
Louisiana would just take it if they changed the public trust document because it wouldn’t be the land owners land anymore.
Care to expand more on that one?
Posted on 4/19/18 at 2:26 pm to OverboredTgr
Well maybe just maybe we could take a page from our neighbors to the west and pass a bill similar to the 1929 law popularly known as the “Small Bill, the law’s major effect was to give some adjoining landowners the royalties from oil and gas under the stream bed. Significantly, the Small Bill declared that it did not impair the rights of the general public and the State in the waters of streams. Thus, along a navigable stream, even if the landowner’s deed includes the bed, and taxes are being paid on the bed, the public retains its right to use it as a navigable stream.
Hope springs eternal
Hope springs eternal
Posted on 4/19/18 at 2:30 pm to rsoudelier1
quote:
Thus, along a navigable stream, even if the landowner’s deed includes the bed, and taxes are being paid on the bed, the public retains its right to use it as a navigable stream.
THIS IS ALREADY WHAT WE HAVE.
Posted on 4/19/18 at 2:32 pm to Motorboat
You may want to look at the law regarding drones flying over your house. It states that a drone cannot fly over your home if it is engaging in an act of spying such as photographing or audio recording. But the simple act of flying a drone over your home as long as the drone meets certain requirements that fall outside of FAA regulations so that most drones you purchase at best buy or Target are perfectly legal to fly over your neighbors home.
Posted on 4/19/18 at 2:38 pm to AlxTgr
I've often wondered if this statute, enacted in 1985, was actually a "taking" back then of a large portion of the water bottoms which existed then, including those water bottoms created as a result of erosion or loss of actual dry land/marsh:
La. R.S. 56:3 Ownership of wild birds, quadrupeds, fish, aquatic life, water bottoms, oysters, and shellfish
A. The ownership and title to all wild birds, and wild quadrupeds, fish, other aquatic life, the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets bordering on or connecting with the Gulf of Mexico within the territory or jurisdiction of the state, including all oysters and other shellfish and parts thereof grown thereon, either naturally or cultivated, and all oysters in the shells after they are caught or taken therefrom, are and remain the property of the state, and shall be under the exclusive control of the Wildlife and Fisheries Commission except as provided in R.S. 56:4.
B. Wild birds, quadrupeds, fish, other aquatic life, and the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets bordering on or connecting with the Gulf of Mexico, within the territorial jurisdiction of the state, including all oysters and other shellfish and parts thereof grown thereon, either naturally or cultivated, and all oysters in the shells after they are caught or taken therefrom, shall not be taken, sold, or had in possession except as otherwise permitted in this Title; and the title of the state to all such wild birds, quadrupeds, fish, and other aquatic life, even though taken in accordance with the provisions of this Title, and the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets always remains in the state for the purpose of regulating and controlling the use and disposition thereof.
For example, it's real easy to "connect" Hopedale Lagoon and the surrounding bayous, unnamed lagoons, and bays to the Gulf of Mexico through Spanish Bayou.
La. R.S. 56:3 Ownership of wild birds, quadrupeds, fish, aquatic life, water bottoms, oysters, and shellfish
A. The ownership and title to all wild birds, and wild quadrupeds, fish, other aquatic life, the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets bordering on or connecting with the Gulf of Mexico within the territory or jurisdiction of the state, including all oysters and other shellfish and parts thereof grown thereon, either naturally or cultivated, and all oysters in the shells after they are caught or taken therefrom, are and remain the property of the state, and shall be under the exclusive control of the Wildlife and Fisheries Commission except as provided in R.S. 56:4.
B. Wild birds, quadrupeds, fish, other aquatic life, and the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets bordering on or connecting with the Gulf of Mexico, within the territorial jurisdiction of the state, including all oysters and other shellfish and parts thereof grown thereon, either naturally or cultivated, and all oysters in the shells after they are caught or taken therefrom, shall not be taken, sold, or had in possession except as otherwise permitted in this Title; and the title of the state to all such wild birds, quadrupeds, fish, and other aquatic life, even though taken in accordance with the provisions of this Title, and the beds and bottoms of rivers, streams, bayous, lagoons, lakes, bays, sounds, and inlets always remains in the state for the purpose of regulating and controlling the use and disposition thereof.
For example, it's real easy to "connect" Hopedale Lagoon and the surrounding bayous, unnamed lagoons, and bays to the Gulf of Mexico through Spanish Bayou.
Posted on 4/19/18 at 2:43 pm to Motorboat
You're right in that Louisiana uses a map from 1812 to determine navigability and that's where I think we mis-stepped in that we the proponents of HB391 should have asked the legislative body to re-define navigability and put it more in-line with the rest of the country. In Texas under a law dating from 1837, a stream is navigable so far as it retains an average width of 30 feet from its mouth up. The width measured is the distance between the fast (or firmly fixed) land banks. A stream satisfying the 30 foot rule is sometimes referred to as “statutorily navigable” or “navigable by statute.” Under a court decision, the public has rights along a stream navigable by statute just as if the stream were navigable in fact. Texas also tests for Navigability in Fact
Behind all definitions of navigable waters lies the idea of public utility. Waters, which in their natural state are useful to the public for a considerable portion of the year are navigable. Boats are mentioned in the decisions because boats are the usual means by which waters are utilized by the public, and commerce is usually mentioned because carrying produce and merchandise is the usual public demand for such waters. But floating logs has frequently been held to be navigation, and hunting and fishing, and even pleasure boating, have been held to be proper public uses.
Behind all definitions of navigable waters lies the idea of public utility. Waters, which in their natural state are useful to the public for a considerable portion of the year are navigable. Boats are mentioned in the decisions because boats are the usual means by which waters are utilized by the public, and commerce is usually mentioned because carrying produce and merchandise is the usual public demand for such waters. But floating logs has frequently been held to be navigation, and hunting and fishing, and even pleasure boating, have been held to be proper public uses.
Posted on 4/19/18 at 2:45 pm to Motorboat
A hypothetical, and like all hypotheticals, is completely ridiculous. Anyway, say Bill owns land that has hundreds and hundreds of yards of frontage on a Louisiana bayou that was navigable in 1812 and at all other times pertinent herein. Bill plans and digs a huge pond that some would call a lake entirely on his property along the navigable bayou. What are the results, whether you call them legal, desired or otherwise, if Bill:
A: Makes a small cut with culvert from the pond to the bayou that even the smallest of kayaks cannot pass through to fill his pond and allow fish to swim both in an out;
B: Makes a small cut with culvert from his pond to the bayou that only kayaks can pass through to fill his pond and allow fish to swim both in and out;
C: Makes a larger cut with culvert that even a 24' Bay Boat can pass through to fill his pond and allow fish to swim both in and out;
D: Makes a cut with culvert equipped with screen that will allow water through to fill his pond, but no fish whatsoever?
Also, does it matter to you where in Louisiana this bayou and land is located, and if so, why?
A: Makes a small cut with culvert from the pond to the bayou that even the smallest of kayaks cannot pass through to fill his pond and allow fish to swim both in an out;
B: Makes a small cut with culvert from his pond to the bayou that only kayaks can pass through to fill his pond and allow fish to swim both in and out;
C: Makes a larger cut with culvert that even a 24' Bay Boat can pass through to fill his pond and allow fish to swim both in and out;
D: Makes a cut with culvert equipped with screen that will allow water through to fill his pond, but no fish whatsoever?
Also, does it matter to you where in Louisiana this bayou and land is located, and if so, why?
Posted on 4/19/18 at 3:16 pm to TheCurmudgeon
La Supreme Court has recognized that the State's ownership interests from that RS 56:3 applies only to pre-existing "navigable waterways" ( which the State already owns)
Gulf Oil v State Mineral Board
Gulf Oil v State Mineral Board
Posted on 4/19/18 at 3:18 pm to AlxTgr
You know the answer in the long run is going to be:
Those fish aren't his fish that can swim freely on and off his property, we have a right to his land to catch those fish!
Those fish aren't his fish that can swim freely on and off his property, we have a right to his land to catch those fish!
This post was edited on 4/19/18 at 3:24 pm
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