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re: Private vs public water in tidal navigable waterways
Posted on 12/8/16 at 12:11 pm to Mr Wonderful
Posted on 12/8/16 at 12:11 pm to Mr Wonderful
quote:
Take any conservation program. ACEP, for example. Federal tax dollars improving/enhancing/conserving (whatever you want to call it) and there surely is no public access to these lands unless it's done on land that was already public (i.e. NWR/WMA).
I'm not saying I agree with it, but spending tax dollars on private land is surely not unique to Louisiana' coastal restoration efforts.
I honestly don't have a rebuttal, I'm just not familiar with those types of easement programs.
If you poke around there was a very interesting case in New York or maybe New Jersey where some property owners wanted the state to repair a damn on a private lake that was built by a defunct farm co op half a century ago. Not sure how the whole thing played out but the long and short of is people were pissed off that they were being asked to fix a lake they weren't allowed to use.
Basically, if you like it so goddamn much, fix it yourself.
It's an interesting topic and I think it would be a hard sell to the public.
0
Posted on 12/8/16 at 12:43 pm to Ron Cheramie
The Louisiana Public Trust Doctrine is an interesting read.
An excerpt from 1992 Louisiana Law Review of The Doctrine:
The geographical extent of the public trust waterbottoms transferred to the states under the equal footing doctrine has been established by a long line of United States Supreme Court cases. The latest Supreme Court pronouncement on the geographical scope of the pubic trust doctrine, Phillips Petroleum, makes perfectly clear that the trust has historically extended and presently extends to all waters affected by the edd and flow of the tide, whether or not navigable, as well as to nontidal waters.
The publics rights of use protected by the public trust doctrine are not limited to navigation, commerce, and fishing. Other uses protected by the public trust doctrine include traditional recreational uses such as swimming and hunting, and recently recognizes uses such as environmental protection.
An excerpt from 1992 Louisiana Law Review of The Doctrine:
The geographical extent of the public trust waterbottoms transferred to the states under the equal footing doctrine has been established by a long line of United States Supreme Court cases. The latest Supreme Court pronouncement on the geographical scope of the pubic trust doctrine, Phillips Petroleum, makes perfectly clear that the trust has historically extended and presently extends to all waters affected by the edd and flow of the tide, whether or not navigable, as well as to nontidal waters.
The publics rights of use protected by the public trust doctrine are not limited to navigation, commerce, and fishing. Other uses protected by the public trust doctrine include traditional recreational uses such as swimming and hunting, and recently recognizes uses such as environmental protection.
Posted on 12/8/16 at 1:11 pm to Mung
quote:
if you go look at the old GLO surveys from the 1800s, they were not able to traverse alot of the marsh. Picture trying to walk thru the marsh with a 66' chain. basically all they hit were corners of townships and some sections.
More from Mung,
1842
1974
quote:
Shows you how they pretty much only walked around the edges. The interior has no detail, so no way to confirm what was navigable.
Posted on 12/8/16 at 1:14 pm to Dock Holiday
quote:
According to well-settled Louisiana jurisprudence, land that becomes part of the bed of a navigable river ceases to be susceptible of private ownership; it thus becomes a public thing, owned by the state in its capacity as a public person. It is the same when lands are eroded by the waters of the sea or of a navigable lake and become sea-bottom or lake-bottom (See A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property § 75, at 151-152 (3d ed. 1991); See also, La. Civil Code art. 500). Thus, as private lands erode into navigable water bodies, that new water bottom becomes the property of the state. The state of Louisiana's interest in this eroded land is articulated in the Louisiana Constitution. (See Ryan M. Seidemann, Curious Corners of Louisiana Mineral Law: Cemeteries, School Lands, Erosion, Accretion, and Other Oddities, 23 Tul. Envtl. L.J. 93, 119 (2009)
LINK
Could this be applied to a bayou bottom as it erodes into a vast area of broken marsh?
Posted on 12/8/16 at 1:25 pm to AlxTgr
Yeah that's a know problem and was a contentious point in Dardar if I recall...
Posted on 12/8/16 at 1:33 pm to dat yat
quote:
Could this be applied to a bayou bottom as it erodes into a vast area of broken marsh?
I'm not certain that it can. The sticking point can be this:
quote:
Thus, as private lands erode into navigable water bodies
The navigable water body definition in some circles would not apply to your broken marsh scenario, could be a case by case situation. Navigability for some is a commerce test... again, depends on who you talk to. Some will no doubt say that navigability is clearly X and another will say it's clearly Y.
Posted on 12/8/16 at 1:45 pm to Dock Holiday
I think yoga girl knows some time travelers. They could figure it all out.
Posted on 12/8/16 at 1:49 pm to AlxTgr
quote:
I think yoga girl knows some time travelers. They could figure it all out.
:lol: :lol:Posted on 12/8/16 at 2:07 pm to dat yat
The problem with Mr.Seidemanns point in the law review article is that yes, land that becomes part of a navigable waterway due to erosion technically becomes State's property, but it's also supposed to work the other way also. Waterways that get built up due to natural accretion are supposed to vest in the riparian landowner. However, it's clear now that because of the various activities going on in the waters of the State, it only goes one way now, and landowners are losing land to the State. This only really is litigated because of the mineral rights. There are new cases trying to test this theory- if land is lost because of the actions of the states, do they get to cash in on something they caused or helped cause? States will start seeing more and more cases like this, especially in the light of "global warming" sea level increases, when landowners start losing their minerals over time
Posted on 12/8/16 at 3:24 pm to AlxTgr
quote:
You're for taking something from someone without compensating them for it.
The Gulf of Mexico is going to take it eventually.
Posted on 12/8/16 at 6:15 pm to LA2La
quote:
but it's also supposed to work the other way also. Waterways that get built up due to natural accretion are supposed to vest in the riparian landowner.
it doesn't work that way in Hawaii where the lava builds up land...the new land the state owns...
at least since 1968...
Posted on 12/8/16 at 6:42 pm to farad
pretty sure the land built by the Atchafalya Delta is likewise belonging to the State.of course, it is not contiguous with the land of any landowner, but being built in open water.
Posted on 12/8/16 at 7:50 pm to AlxTgr
Would probably need to consult the field notes and things and other historical texts. They had to get to the coast via some means, likely boat. Would take forever, an attorney's dream scenario...endless billing.
Posted on 12/8/16 at 8:30 pm to Mung
Didn't Palmyra get the new island that way?
Posted on 12/9/16 at 3:50 pm to AlxTgr
Palmyra is a prime example of the accretion doctrine. The river built that 2000 acre island adjacent to their property, so it became theirs. Some landowners on the opposite bank sued over it, claiming it was their land that had just moved. in reality their land had just eroded away.
delta building is different than accretion.
delta building is different than accretion.
Posted on 12/9/16 at 5:50 pm to Ron Cheramie
All the oil and gas canals are the reason why the land has receded so much.
All navigable water should be open to boaters unless plainly marked as such.
All navigable water should be open to boaters unless plainly marked as such.
Posted on 12/9/16 at 5:53 pm to Barf
quote:
I am 100% sure I have been chased out of ponds by people who didn't own them.
It's like the people who flip out when you park in front of their house. Sorry buddy your property ends at the sidewalk anyway.
Posted on 12/9/16 at 6:58 pm to Napoleon
I really dislike the newish laws on posting. Signs benefit all.
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