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Opinion Number

Attorney General of Louisiana — Opinion
Dec 27, 2001
01-0355 (Ops. La. Atty. Gen. Dec. 27, 2001)

Opinion

December 27, 2001

72 NAVIGABLE WATERS 90-B-3 PUBLIC LANDS — Public and Private Domain, distinctions 172 WATER WATER COURSES

Canals constructed on private property remain private things in which the public has no right of entry, provided that canals constructed as part of a subdivision may be dedicated to public access and use.

Canals dug on private property may be dedicated to public use after a long period of public usage. D'Albora v. Garcia, 144 So.2d 911 (4th Cir. 1962).

Mr. Ronald J. Ventola Chief, Regulatory Functions Branch Department of the Army New Orleans District, Corps of Engineers P.O. Box 60267 New Orleans, LA 70160-0267

RE: (1) EX-20-010-2543 Proposed Land Bridge Blocking Waterway (2) EU-20-010-3146 Proposed Bridge Blocking Canal


Dear Mr. Ventola:

This responds to your letters regarding the referenced projects in Des Allemands, Louisiana, Section 38 T14S — R19E, Lafourche Parish.

From the information furnished with your letters, it appears that both the proposed land bridge (EX-20-010-2543), as well as the proposed bridge (EU-20-010-3146), would have the effect of blocking or partially blocking waterways which are used by the public at large for private, recreational and commercial purposes.

Since receipt of your letters, we have received calls and complaints from the public about these proposals.

As a general matter, the law of Louisiana is that navigable canals constructed on private property with private funds remain private things in which the public has no right of entry, access, or use. However, the Louisiana Supreme Court has held that a canal constructed as part of a subdivision and used by both subdivision residents and the public at large may be dedicated to public access and use. Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972).

Louisiana courts have also held that canals dug by the State on private land as borrow pits for highway construction and used by the public for thirty years become public in nature and confer full public rights of access and use. D'Albora v. Garcia, 144 So.2d 911 (4th Cir. 1962).

Both your letter and the materials you have furnished advise that the proposed land bridge (EX-20-010-2543), as well as the proposed bridge Awould block a canal. This is the very issue and subject of the State jurisprudence which prohibited blockage or even partial blockage with alternative routes of navigation being furnished in connection with the partial blockage.

Louisiana's criminal laws may also have application, as addressed in my letter to you of October 14, 1998 (WN-19-980-1017-0), copy attached, for a more extensive discussion of applicable Louisiana law and cases, as well as opinions of the Attorney General.

We have not had an opportunity for a full factual investigation or inquiry into all of the details and circumstances of these proposals, and recommend your consideration of the cited legal authorities for guidance under the circumstances.

If there is additional or more specific information pertaining to this matter, we would be pleased to review it at any time.

Very truly yours,

________________________________ GARY L. KEYSER, CHIEF Lands Natural Resources Section

GLK/tp

DEPARTMENT OF THE ARMY NEW ORLEANS DISTRICT. CORPS OF ENGINEERS P. O. BOX 60267 NEW ORLEANS. LOUISIANA 70160-0267

REPLY TO September 7, 2001 ATTENTION OF:

Operations Division Eastern Evaluation Section

SUBJECT: EX-20-010-2543

Honorable Richard Ieyoub Attorney General State of Louisiana Baton Rouge, Louisiana


Dear Mr. Attorney General:

Enclosed is a copy of an application by Mr. Alfred Meyer, Jr. for a Department of the Army permit to dredge and redeposit dredged material in navigable waters of the U.S. for a proposed land bridge, in an unnamed manmade waterway, adjacent to Lac Des Allemands, in Des Allemands, Louisiana, Section 38, T14S-R19E, in Lafourche Parish.

The proposed bridge would block a canal which the public may or may not have a right to navigate under state law. This letter is being forwarded to advise you of the permit application being considered for issuance and to provide you with an opportunity to comment on the project relative to whether or not the public has the right to passage under state law. Please respond within 30 days of the date that you receive this letter. If we do not hear from you in that period of time we may assume that you have no objection to the proposed project, and that it would not impede public access rights.

If you have any questions, the project manager, Melanie Goodman, can be reached at (504) 862-2225.

Sincerely,

Ronald J. Ventola Chief, Regulatory Functions Branch

Enclosure

Received September 12, 2001

APPLICATION FOR DEPARTMENT OF THE ARMY PERMIT OMB Approval No. 0710-003 (33 C.F.R. § 325) Expires October 1996

Public reporting burden for this collection of information is estimated to average 5 hours per response. Including the time for reviewing instructions. searching existing data sources. gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Departments of Defense, Washington Headquarters Service Directorate of Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302; and to the Office of Management and Budget, Paperwork Reduction Project (0710-0003), Washington, DC 20503. Please DO NOT RETURN your form to either of those addresses. Completed applications must be submitted to the District Engineer having jurisdiction over the location of the proposed activity.

PRIVACY ACT STATEMENT

Authority 33 U.S.C. 401, Section 10:1413, Section 404. Principal Purpose: These laws require permits authorizing activities in, or affecting, navigable waters of the United States, the discharge of dredged or fill material into waters of the United States, and the transportation of dredged material for the purpose of dumping it into ocean waters. Routine Uses: Information provided on this form will be used in evaluating the application for a permit. Disclosure: Disclosure of requested information is voluntary. If information is not provided, however, the permit application cannot be processed nor can a permit be issued.

One set of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application (see sample drawings and instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application that is not completed in full will be returned.

(ITEMS 1 IHRU 4 TO BE FILLED BY THE CORPS)

(ITEMS BELOW TO BE FILLED BY THE APPLICANT)

Denise G. Matherne Alfred Meyer, Jr. 4/16/2001

NAME, LOCATION AND DESCRIPTION OF PROJECT OR ACTIVITY

Lafourche LA

USE BLOCKS 20-22 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED

X

See Attached List

Alfred Meyer, Jr. 4/16/2001 Denise G. Matherne 4-19-01 18 U.S.C. § 1001 1. APPLICATION NO. 2. FIELD OFFICE CODE 3. DATE RECEIVED 4. DATE APPLICATION COMPLETED PO10682CK 5. APPLICANTS NAME 8. AUTHORIZED AGENTS NAME AND TITLE (an agent is not required) Alfred Meyer, Jr. "Bubba" Denise G. Matherne, Environmental/Wetland Specialist 6. APPLICANTS ADDRESS 9. AGENTS ADDRESS 16789 Hwy 90 Matherne Wildlife Services Des Allemands, LA 70030 105 Pine St. Des Allemands, LA 70030 7. APPLICANTS PHONE NOS. W/AREA CODE 10. AGENTS PHONE NOS. W/AREA CODE A. Residence N/A A. Residence N/A B. Business B. Business (985) 758-1985 11. STATEMENT OF AUTHORIZATION I hereby authorize, to act in my behalf as my agent in the processing of this application and to furnish, upon request. supplemental information in support of this application. APPLICANTS SIGNATURE DATE 12. PROJECT NAME OR TITLE (see instructions) Alfred Meyer, Jr. filling for home site 13. NAME OF WATERBODY. IF KNOWN 14. PROJECT STREET ADDRESS (if applicable) (if applicable) Private Canal 15. LOCATION OF PROJECT COUNTY STATE 16. OTHER LOCATION DESCRIPTIONS, IF KNOWN, (see instructions) Sec. 39, Township 14 South, Range 19 East, Lot E-1; Subdrainage District 1 of Lafourche Drainage District No. 6 17. DIRECTIONS TO THE SITE In Des Allemands, LA, Lafourche Parish, LA South side of Hwy 90 18. Nature of Activity (Description of project, include all features) Dredge existing canal to a depth of -7 ft.; using the spoil material as fill for the re-creation of a landbridge that will connect the applicants property to his island in the canal. The proposed landbridge will cross a section of abandoned canal (approximately -1 ft. deep presently). The island and the land bridge will be filled to a height of 4.3 ft and bordered by a bulkhead. A wharf will be constructed on the eastern end of the island (12' X 24'). After the completion of the filling the applicant will be building a home on the site that is now referred to as the island (See Attached Drawings). 19. Project Purpose (Describe the reason or purpose of the project. See instructions) The project has two purposes. One is to re-connect the applicant's property that has been divided by a canal that is no longer used. The other purpose is to build up the land to a suitable height in which to construct a home for the applicant and a wharf (See Attached Drawings) 20. Reason(s) for Discharge Dredging to improve navigation in the canal and using the spoil to build up the land to a suitable height in which to construct a home. 21. Type(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards ± 1,867 cu. yds. Spoil ± 535 cu. yds. of hauled in top soil 22. Surface Area in Acres of Wetlands or Other Waters Filled (see instructions) Approximately 0.5 acres of wetland filled over the existing island and approximately 0.1 acres of water bottom filled for landbridge construction. 23. Is Any Portion of the Work Already Complete? Yes ___ No IF YES, DESCRIBE THE COMPLETED WORK 24. Addresses of Adjoining Property Owners, Lessees, Etc., Whose Property Adjoins the Waterbody (if more can't be entered here, please attach a supplemental list). 25. List of Other Certificates or Approvals/Denials Received from other Federal, State or Local Agencies for Work Described in This Application. AGENCY TYPE APPROVAL* IDENTIFICATION NUMBER DATE APPLIED DATE APPROVED DATE DENIED To the best of my knowledge the proposed activity described in my permit application complies with and will be conducted in a manner that is consistent with the LA Coastal Management Program. 26. Application is hereby made for a permit or permits to authorize the work described in this application. I certify that the information in this application is complete and accurate. I further certify that I possess the authority to undertake the work described herein or am acting as the duly authorized agent of the applicant. SIGNATURE OF APPLICANT DATE SIGNATURE OF AGENT DATE The application must be signed by the person who desires to undertake the proposed activity (applicant) or it may be signed by a duly authorized agent if the statement in block 11 has been filled out and signed. provides that: Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals, or covers up any trick, scheme, or disguises a material fact or makes any false, fictitious or fraudulent statements or representations or makes or uses any false writing or document knowing same to contain any false, fictitious or fraudulent statements or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both.

Adjoining Land Owners of

Alfred Meyer, Jr.

Ms. Lily Hebert 4176 Hwy. 90 Des Allemands, LA 70030

Mr. Vince Autin 4180 Hwy. 90 Des Allemands, LA 70030

Mr. Steve Meyer 4192 Hwy. 90 Des Allemands, LA 70030

Mr. S. J. Sampey 4198 Hwy. 90 Des Allemands, LA 70030

Mr. Roger Brown 4172 Hwy. 90 Des Allemands, LA 70030

Mr. Roddy Vanacor 4234 Hwy. 90 Des Allemands, LA 70030

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 1 OF 6

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 2 OF 6

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 3 OF 6

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 4 OF 6

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 5 OF 6

PROPOSED DREDGING, FILLING, BULKHEAD, WHARF HOUSE CONSTRUCTION IN DES ALLEMANDS, LOUISIANA BY: ALFRED MEYER, JR. SHEET 6 OF 6

January 13, 1999

Mr. Ronald J. Ventola Chief, Regulatory Branch N.O. District, Corps of Engineers P.O. Box 60267 New Orleans, LA 70160-0267

RE: WN-19-980-1017-0


Dear Mr. Ventola:

This responds to your letter of January 5, 1999, which we received today.

Your letter attaches a December 16, 1998 letter from A. Wilbert's Sons, L.L.C. recently received by your office and questioning the procedures of the Corps of Engineers pertaining to public notice, response times for comment and the factual basis of prior correspondence from this office.

You asked whether or not the comments of A. Wilbert's Sons, L.L.C. would affect the position of the Attorney General's Office regarding rights of public navigation on the project canal, as stated in the October 14, 1998 letter.

In reviewing that letter, it appears that the purpose of the permit requested by A. Wilbert's Sons, L.L.C. was to prevent trespassing on private property during the hunting season. The letter states that the applicant intends to lock the gate during the Louisiana hunting season and to have it left open during the remainder of the year in order to alleviate trespass problems in the area.

The applicant letter also requests further factual information in the form of proof that the canal was built with public funds and is a public thing susceptible of navigation by the public.

The applicant further states that it is not satisfied that any contentions posed by this office have any factual basis or have been researched adequately or at all.

As the matter has not yet gone to litigation, we have not retained the necessary experts to establish that this navigable waterway furnishes a continuous highway of commerce within the contemplation of state and federal law.

On balance, we believe that the factual basis of our advisory letter is correct and supports our conclusions.

The State Land Office has verified that the subject waters are navigable in fact, as reported by members of the public, and regularly navigated in boats of various sizes. We believe this information to be correct.

We also believe that the citations of cases from the courts of this state, including the Appeals Courts and the Louisiana Supreme Court, as well as the Supreme Court of the United States are fully applicable.

This is the law as we know it today and we believe that the cases cited in the footnotes, as well as the statutes, are controlling under the circumstances.

We hope these additional comments are of assistance to you under the circumstances.

Very truly yours,

RICHARD P. IEYOUB Attorney General

By: ___________________________ GARY L. KEYSER Assistant Attorney General

RPI/GLK:bb Att. cc: State Land Office

October 14, 1998

Mr. Ronald J. Ventola Chief, Regulatory Branch N.O. District, Corps of Engineers P.O. Box 60267 New Orleans, LA 70160-0267

RE: WN-19-980-1017-0


Dear Mr. Ventola:

This follows my telephone conversation with Ms. Cathy Slumber of your office, and your letter of October 6, 1998, concerning the subject permit application to construct a gate across a canal in Iberville Parish.

The canal at issue is described on quadrangle maps as "Logging Canal" and appears to be man-made in its route and alignment, as distinguished from a naturally occurring and meandering stream or bayou.

The location of the gate is stated in the permit application to be in Section 52, T/10/S R/12/E, Iberville Parish.

In reviewing relevant documents available to us, we have found that this canal was not indicated on the official township survey plat made in 1831 by U.S. Government surveyors. However, many surveys omitted naturally occurring water bodies due to survey difficulties in the field, time available, weather and water conditions, and other similar matters. It is possible that the subject canal follows or partially follows the course of a naturally occurring waterway, but this is unknown at this time.

While we have no information as to whether federal funds were utilized to dredge the waterway, we have learned that the full extent of Logging Canal was the subject of a state public works project. According to information we have reviewed, the project took place from June, 1949 to December, 1953 and was designated as "PW 384", entitled "Canals As Dug Under Statewide Drainage Program June, 1949 — December, 1953".

This shows the project was funded with public funds for, presumably, general public purposes and use by the public at large. However, we have not had an opportunity to review all available information which exists on this subject, such as the records of the Corps of Engineers and local levee and drainage districts. It is also possible that the right-of-way documents for the project(s), if any, might have some restrictions as to public use or enumerate authorized uses.

In reviewing appropriate maps at the State Land Office, we have determined that the particular canal in question furnishes a continuous route of navigation from Plaquemine, Louisiana through numerous waterways, all the way to Atchafalya Bay, and thence, to the Gulf of Mexico. It should be noted that in its long course to the sea, the canal passes through numerous sections and numerous and varied ownerships, including property owned by the State of Louisiana, such as the entirety of Section 51 and the southeast quarter of Section 44, which are entirely state-owned.

From the area of the Plaquemine Locks, the canal proceeds Southwest to Lake Long in Iberville Parish, thence to Choctaw Bayou, Lake Natchez, Big Goddel Bayou, Belle River, Bayou Magazille, Four-Mile Bayou, Grassy Lake, Lake Palourde, Bayou Beau, Bayou Chene, thence to the lower Atchafalaya River, Atchafalaya Bay and the Gulf of Mexico.

The canal appears to intersect the Locks at Plaquemine Louisiana, indicating that in the past, it furnished a highway of commerce from the Mississippi to the Gulf of Mexico

Based upon the information discussed above, the public has a legal right to navigate Logging Canal both within state-owned property and throughout the waterway system without interference from adjoining landowners, unless there are restrictions which have not been found. The gate location would obstruct public use and access to the waterway. Moreover, a public boat ramp located in Section 41, state-owned property, furnishes public access to the entire system of waterways in this area. The state uses this same boat ramp and the canal system to access its lands for management and timber valuation purposes. Mr. Clay Carter, Public Lands Utilization Manager, routinely uses the public boat ramp and Logging Canal to access state lands and to conduct timber surveys.

We believe that a search of historical and public works records of the Corps, the former office of Public Works and the Department of Transportation and Development might reveal more complete details concerning the purpose, origin and development of the canal system and method of funding. This information would enable us to provide a more informed opinion on the matter.

In further addressing your question as to whether or not the public has the right of passage "on the canal in question in accordance with state law", it is useful to examine the law of Louisiana pertaining to navigable canals.

In general, the law of Louisiana is that navigable canals constructed on private property with private funds remain private things in which the public has no right of entry, access or use. However, the jurisprudence has also indicated that when a canal is dug through an existing naturally navigable waterway, there may be rights of public access.

Seligman v. Tschirn, 394 So.2d 1326 (1st. Cir. 1981); Vaughn v. Vermillion Corporation, 100 S.Ct. 399, 444 U.S. 206, 62 L.Ed.2d 365 (1979); Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824 (5th Cir. 1993).

Vaughn v. Vermillion Corporation, supra.

Canals built at public expense on public lands have been held to be public things, while canals built on private land may be either public or private, depending on the rights-of-ways agreed upon between public authorities and private owners. It has been held that a canal constructed as part of a subdivision on the shores of Lake Ponchartrain and used by both subdivision residents and the public at large for a number of years was dedicated to public use by such. The courts have also held that canals dug by the State on private land as borrow pits for highway construction and used by the public for thirty years are public in nature and confer full public rights of access and use.

United Geophysical Co. v. Vels, 231 F.2d 816 (5th Cir. 1956).

Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972).

D'Albora v. Garcia, 144 So.2d 911, (4th Cir. 1962).

In this regard, members of the public have called the State Land Office on this issue and report that this particular canal has been used without restriction by the public far in excess of thirty years. Assuming the reports to be correct, the provisions of the Louisiana Civil Code are implicated.

Under the Louisiana Civil Code of 1870, the public could acquire a servitude over property by means of prescription. However, under the 1977 revisions, effective January 1, 1978, an apparent servitude may be obtained by prescription of either ten years or thirty years. Civil Code Article 742, following its amendment, states as follows:

See Opinions of the Attorney General, No. 93-238, Page 6.

The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.

This article makes it possible for the public to obtain an apparent servitude of passage by prescription, as stated in the article.

It should also be noted that the Louisiana Criminal Code defines the crime of aggravated obstruction of a highway of commerce, Article 96, and simple obstruction of a highway of commerce, Article 97.

Article 96 of the Criminal Code reads as follows:

§ 96. Aggravated obstruction of a highway of commerce

Aggravated obstruction of a highway of commerce is the intentional or criminally negligent placing of anything, or performance of any act, on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, wherein it is foreseeable that human life might be endangered.

Whoever commits the crime of aggravated obstruction of a highway of commerce shall be imprisoned, with or without hard labor, for not more than fifteen years. (Emphasis ours)

Article 97 of the Criminal Code reads as follows:

§ 97. Simple obstruction of a highway of commerce

Simple obstruction of a highway of commerce is the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult.

Whoever commits the crime of simple obstruction of a highway of commerce shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. (Emphasis ours)

Furthermore, the Louisiana Criminal Code, Article 100.1, prohibits obstruction of public passages, including "* * * the entrance, corridor or passage of any public building, structure, water craft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein."

It seems clear to us from the facts presented in your request, and from our review of various maps, that this canal is navigable, if not from its head waters at the Plaquemine Locks clear to the Gulf of Mexico, at least throughout the area where a gate is sought to be erected. Erection of the gate would have the effect of blocking traffic along the navigable waterway, even though the location of the blockage is within a single ownership. This is precisely the situation presented in Discon v. Saray, Inc., note 6 above, wherein the Louisiana Supreme Court held that the owner of property on both sides of a navigable canal was not entitled, to obstruct the canal even if there was an alternative route available.

If the gate has the effect of blocking access by land owners, permittees and the public at large, both above and below the gates, it would constitute blockage of a navigable waterway within the contemplation of the cited authorities. For this reason, we recommend against the granting of the permit as being contrary to the public interest, including the public at large and the state as a land owner in its proprietary capacity.

As stated above, a full factual investigation or inquiry has not been made into all of the details of this canal, nor have the records of various public authorities been reviewed. However, our conclusion is that this canal, as it exists today, was probably not a navigable waterway in 1812 such as to qualify as being state-owned by virtue of the inherent sovereignty of the State of Louisiana. However, it does appear clearly to be a navigable waterway which has been used by the public without limitation for many years. The waterway was the subject of a state public works project during 1949 to 1953 which had as its purpose dredging, channelizing and improvement for navigation and drainage purposes, resulting in present day navigability and use as a route of navigation as described above.

Consequently, you may wish to refer to the legal authorities cited in this advisory letter as guidance.

If we may be of further assistance, please feel free to call upon us.

Very truly yours,

RICHARD P. IEYOUB Attorney General

By: ____________________________ GARY L. KEYSER Assistant Attorney General

RPI/GLK:bb


Summaries of

Opinion Number

Attorney General of Louisiana — Opinion
Dec 27, 2001
01-0355 (Ops. La. Atty. Gen. Dec. 27, 2001)
Case details for

Opinion Number

Case Details

Full title:Mr. Ronald J. Ventola

Court:Attorney General of Louisiana — Opinion

Date published: Dec 27, 2001

Citations

01-0355 (Ops. La. Atty. Gen. Dec. 27, 2001)