Fishing access

One of the nation’s most prestigious sport fishing leagues has placed Louisiana waters off limits for competitors in one of its most high-profile events, claiming that the state’s property and trespassing statutes create too much confusion and place anglers at risk.

Trip Weldon, tournament director for the Bass Anglers Sportsmen’s Society, issued a directive earlier this month that says participants in the multi-million-dollar 2018 Bassmaster Elite competition on the Sabine River, which marks the Bayou State’s western border with Texas, will have to stay on the Texas side for their catches to be eligible.

“In two previous Elite Series tournaments, and one Bassmaster Open out of Orange, (Texas) Louisiana’s unusual laws governing access to navigable waters have created conflict and confusion among anglers,” the statement reads, noting that the organization also eschews waters in the Atchafalaya Basin.

Interviews with charter captains and recreational fishermen from various areas of Louisiana, including Terrebonne and Lafourche, indicate that problems cited by BASS as not unique to the state’s western waters, however.

A quirk in state law permits landowners to claim large areas of open water as their own private property, even when they are by appearance and location indistinguishable from adjacent navigable waterways. Compounding the situation is a statute that allows arrests or citations for trespassing even if the arguably private waters boaters traverse are unmarked by buoys or signs.

“It’s very hard to fish or launch or boat-ride without finding yourself on water someone says is private,” said Kyle Lawrence, an Ascension Parish environmental manager and board member of the Louisiana Sportsmen’s Coalition, a group of anglers trying to persuade legislators to change existing law. “I was stopped twice in the Lafitte area. Anywhere but Louisiana if you float it you can boat it. Not here. What’s going on in Louisiana is crazy.”

Lawrence’s most recent encounter in Lafitte involved a day of peacefully fishing in his 18-foot bay boat.

“I was minding my own business,” he said.

A commercial crab fisherman pulled up to Lawrence and informed him that he was on private property.

Lawrence balked, asking how that can be possible. The crabber explained that he worked for the landowner, from whom he leased waters within which to place his crab traps.

“He told me he felt bad about telling me to leave but that he had to,” Lawrence explained. “He said it was part of the deal he made to be able to crab there, to patrol the property.”

The generally settled law of the United States is that the bottoms of waterways subject to the ebb and flow of tides – whether navigable or not – are considered the property of the states where they are located, and cannot be claimed in private deeds as private property.

“In Louisiana that is questionable,” says State Rep. Beryl Amedee (R-Houma), who is intensely studying the issue in hopes of finding a resolution. “Our navigable waterway definition is based on the land maps from the time we became a state, and then possibly revised in1840. We have a whole lot of water here that for all practical purposes is navigable. We have some property not covered all the time, that when it’s covered it is tidal and when it’s not covered it’s not. Louisiana stands out because our laws are based on Napoleonic code and out laws are possibly the best in the nation for protecting private property rights.”

But even Amedee – who considers herself a fierce believer in property rights – says the way things stand now, with conflicting and contrasting statutes within the state’s own body of laws – is not workable.

“We have to merge these laws so we can have some clear definitions before people get shot, and I believe people are at risk of getting shot,” Amedee said.

Interviews with anglers indicate that Amedee is not being alarmist.

Several have told of having guns pulled on them by private patrollers working for big land companies.

Landowners say they have good reason to maintain their property rights and enforce them. If they are perceived as permitting use of their lands by anyone who asks or just shows up, there are potentials for civil liability if someone is injured or killed.

An important fact behind the contention is Louisiana’s ever-changing coastline. Due to erosion and subsidence, land normally on maps just disappears under the water. Important court cases deciding claims that some waterways are public even when private entities say otherwise rely on specific maps. In a landmark case involving commercial fishermen, Summersgill Dardar vs. Lafourche Realty Co., the Fifth Circuit U.S. Court of Appeals upheld a lower court decision that supported a claim of ownership.

The plaintiffs sued the Lafourche Realty Company and others, seeking the right to use a system of navigable waters controlled by the defendant through fences, gates and levees. The State of Louisiana made itself part of the legal actions as well, claiming title to those water bodies and over 12,000 acres of land beneath them.

Lafourche Realty asserted that the waterways were atop land conveyed to prior owners through grants. Moreover, Lafourche Realty maintained that the digging of a canal in 1948 and other improvements artificially created the waterways they wished to protect. Originally federal property, the property was selected by and approved to the State of Louisiana under one or more of the Swamp Land Grant Acts of 1849 and 1850, by which the United States conveyed to Louisiana “swamplands subject to overflow.” The State conveyed the water bottoms by various transfers to Lafourche Realty’s ancestors-in-title between 1861 and 1901.

The Fifth Circuit relied on a 1980 U.S. Supreme Court case, Phillips Petroleum Co. v. Mississippi, to determine whether Louisiana owns the bottoms under the waterways. The standard used was whether disputed waters within a state were in fact navigable at the time that state entered the union, and subject to the ebb and flow of the tide.

Louisiana entered the union in 1812, and the Fifth Circuit found that time no navigable waters existed on the Lafourche Realty lands. Using similar reasoning, many waterways in Louisiana’s coastal zones exist over what was once land, even farmable land.

“I have had people point at some water and say ‘my grandfather herded cattle on that land’ or ‘I took my children fishing on that land.’ Here we have some property not covered by water all the time. When it is covered it is tidal, when it’s not covered it’s not covered.”

A member of the Sportsmen’s Coalition, Daryl Carpenter, has a lawsuit pending in New Orleans federal court against Castex Energy and the Lafourche Parish Sheriff’s Office, which arose after he was kicked off water on which he had brought a party of paying customers as part of his charter fishing business, on April 29, 2016.

The next day sheriff’s deputies visited Carpenter at his Grand Isle home and told him a complaint would be pursued for trespassing, according to court papers. Through his attorneys, Lafourche Sheriff Craig Webre denies that Carpenter’s civil rights were violated through the issuance of the warning. The case continues in motion practice for now.

Another sportsman who has had bad experiences in local waters is Ben Weber, who was born and raised in Ascension Parish but grew up fishing in Leeville.

A water resources manager by trade, he is director of the Louisiana Charter Boat Association.

“Recently I took my girlfriend for her first fishing experience in Louisiana,” he said, describing a recent encounter. “Within 25 minutes of beginning to fish, a fellow approached us in a flat boat. As he circled us a few times, we were warned and told not to enter ponds near where we were sight fishing on a flat directly behind the location of our old camp, where I have been fishing since I was 15-years-old. Or else we would get some trouble with the sheriff. We left and moved to an area far from where we encountered this guy. Literally this was the first experience my girlfriend had as I was introducing her to a new sport and lifelong passion that I hoped she would take interest in. She was freaked out to say the least.”

The only word to adequately describe the situation, in his mind is “ridiculous.”

“Look at how we promote ourselves- “Sportsman’s Paradise”. What a joke,” Weber said. “We are constantly promoting Louisiana as THE destination for people who hunt, fish or take part in various other outdoor activities. But oh yeah, if you do come to spend your hard- earned money doing something you love, we’re going to harass you and you may face legal and criminal consequences.”

Weber said he is puzzled by the expense occurred by state agencies, trade organizations, conservation groups, convention and visitor bureaus, and business associations for promotion.

“Our laws shout loud and clear that folks shouldn’t come and spend their time and money here. For some reason, it seems that Louisiana’s leaders are willing to continue jeopardizing the culture and legacy of Louisiana’s outdoors traditions,” Weber said. “They’re also willing to sacrifice the enormous economic impact that the outdoor industry and community bring to Louisiana. How does this possibly make sense?”

Confusion escalates when applicable state statutes are examined.

Title 9, Section 1115.1 establishes ownership of beds of non-navigable waters, and grew out of legislation designed to address the Phillips case.

Its intent, on the one hand, was to “quiet titles to lands which have long been owned by private persons but which titles may have been clouded as a result of that decision.”

“… as to lands not covered by navigable waters including the sea and its shore, which are subject to being covered by water from the influence of the tide … the Phillips decision neither reinvests the state, or a political subdivision thereof, with any ownership of such lands nor does the state, or a political subdivision thereof, acquire any new ownership of such property.”

In other words, that which is private remains private, and the state does not assert any ownership over lands that may have inadvertently been considered public because of the Phillips decision.

The statute also notes that this does not affect the ability of the state to lease oyster beds.

But it also contains a provision the sportsmen say is contradictory, by maintaining that “no provision herein shall be interpreted to create, enlarge, restrict, terminate, or affect in any way any right or claim to public access and use of such lands, including but not limited to navigation, crawfishing, shell-fishing, and other fishing, regardless of whether such claim is based on existing law.”

Does this mean that while the bottoms are privately owned in some instances, people can still fish, or in the words of the sportsmen “if you can float it you can boat it?”

Nobody has challenged any of the laws on which trespass citations have been based beyond the trial court level in Louisiana.

The sportsmen’s group has not yet marshaled enough resources to hire a lawyer to defend anyone wishing to be a test case through what could be a lengthy appeals process.

Amedee is hopeful that negotiations could result in useful legislation clearing up the questions. But whether she could garner support from fellow legislators is another matter.

Another coastal representative with decades of coastal experience – says Amedee is not exaggerating the complexity. Jerome Zeringue R-Houma sees no easy solution in sight. And he notes that Louisiana’s fight to restore the coast adds even more layers to the problem.

Public works related to saving the coast are needing to be done on lands – and waters – that are essentially private. Opponents of some projects question why public work is being done on public land and property owners in some cases balk against what they see as state encroachment.

“Every ten years or so it comes up,” Zeringue said. “The problem is that more than likely it is going to be handled in the courts in some kind of way. I would like to see a legislative solution but I don’t know if that’s possible. The landowners claim they are solid constitutional and legislative ground. How do you make changes without infringing on property rights? It will take concessions on both sides. Here in Louisiana 80 percent of the coast is in private hands. I still hope there is an opportunity to resolve this without people going to court.” •

Senior Staff Writer John DeSantis is a veteran journalist and author who grew up in New York City, but has spent most of his career in the Bayou Region. A specialist in criminal justice, he enjoys boating and historical research.

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