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Louisiana Legislature Taps Sea Grant to Find Common Ground in Public Access to Waterways Controversy

S. Beaux Jones - 

In recent months, tension among fishing guides, private anglers, coastal landowners and the State of Louisiana over the public’s right to access waterways has reached a fever pitch. This has prompted several news and law review articles, the formation of advocacy organizations, at least one lawsuit and now, state legislative action.

The controversy has been caused in part by the confusion created when formerly dry land erodes or subsides to become water bottom. In Louisiana, the majority of coastal property is privately owned,[1] but according to Article 450 of the Louisiana Civil Code, the public owns the running waters and the bottoms of natural navigable water bottoms. This transition from dry land to water bottom creates somewhat of a legal gray area for ownership purposes and significant confusion for folks in boats passing over the new bottom. The opinions on what the legal classification should be for the water bottoms and who should be entitled to float or fish above them vary widely depending on whether you ask a landowner, a fishing guide, a state employee or an oysterman.

In the 2017 Regular Session earlier this year, without attempting to solve the underlying issues of ownership and legal rights to access, the legislature opted instead to find “common ground” and study possible ways to expand the public’s ability to access waterways through the creation of “voluntary public recreation servitudes.”

House Resolution No. 178, which was authored by Representatives Gisclair (D-Larose) and Garafalo (R-Chalmette) who both represent coastal districts, provides:

as a partial remedy to the rising problems of the public’s use of submerged lands and the conflicts with the owners of private property, it may be helpful to create a statutory framework establishing a voluntary public recreation servitude of use of certain waterways;”…”whereby the property owner’s interests and title to the property are protected, possibly including limiting the liability of the owner, in return for the owner allowing public access to the property for the enjoyment of various recreational activities….

However, rather than drafting a bill to create this new statutory framework, the legislators instead authorized and directed the Louisiana Sea Grant program to act as an “independent facilitator” to study the issue, with input and advice from at least eleven different stakeholders[2], and will recommend legislation to the House of Representatives by February 1, 2018.

Louisiana Sea Grant, which is housed at LSU, is one of 33 National Sea Grant programs tasked with addressing major marine and coastal challenges through scientific, policy and legal research, education and outreach. Sea Grant has also recently been in the news for being on the chopping block of the Trump Administration’s first proposed budget. It is unclear from the language of H.R. No. 178 whether this new monumental logistical and research task came with additional funding, but it is doubtful. The legislature did, however, pass a House Concurrent Resolution imploring the U.S. Congress to protect the National Sea Grant program’s funding.

Regardless of funding, the bulk of the research and facilitation will likely fall into the capable hands of the Louisiana Sea Grant Law & Policy Program, which is well-versed in research and writing in the legal gray area that is coastal Louisiana.[3] It remains to be seen whether there is a palatable legislative solution to the public access issue or the political will to tackle the ownership issues lurking beneath. However, H.R. No. 178 takes this important discussion from the message boards of social media and newspapers to the halls of the capitol where it belongs.

If you have questions regarding this matter or other issues regarding coastal or environmental law, please contact Beaux Jones at (504) 569-2900 or bjones@bhbmlaw.com.


[1] See Brett Anderson, Louisiana Loses Its Boot, MATTER (Sept. 8, 2014), https://medium.com/matter/louisiana-loses-its-boot-b55b3bd52d1e [perma.cc/H6C9- FCM5] (noting that 80% of Louisiana’s coastal environment is private).
[2] “[T]he State Land Office, the Department of Wildlife and Fisheries, the attorney general, the Coastal Protection and Restoration Authority, the Department of Natural Resources, the Louisiana Landowner’s Association, the Coastal Conservation Association, the Louisiana Sportsman’s Coalition, the Louisiana Mid-Continent Oil and Gas Association, the Louisiana Oil and Gas Association, the Police Jury Association, and other groups and stakeholders.”
[3] As a matter of full disclosure, the author was a legal intern from 2009-2010 and currently serves as a member of the legal advisory council for the Sea Grant Law & Policy Program.


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