Respondents Brief — Vaughn v. Vermilion Corp.

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Supreme Couwt of the Anited States -

OCTOBER TERM, 1978

NO. 77-1819

NORMAN VAUGHN, FREDDIE BROUSSARD, AND

LARRY J. BROUSSARD,

Petitioners,

Vv.

VERMILION CORPORATION,

Respondent.

ON WRIT OF CERTICRARI TO THE COURT OF APPEAL FOR

THE THIRD CIRCUIT OF THE STATE OF LOUISIANA

BRIEF FOR RESPONDENT

HARRY McCALL, JR.

L. HAVARD SCOTT, III

CHAFFE, McCALL, PHILLIPS,

TOLER & SARPY

1500 First N.B.C. Building

New Orleans, Louisiana 70112

Telephone: (504) 568-1320

CHARLES R. SONNIER

SILAS B. COOPER, JR.

JOHN E. ORTEGO

COOPER, SONNIER, ORTEGO,

HEBERT & WOODRUFF

Post Office Box 519

Abbeville, Louisiana 70510

Telephone: (318) 893-6766

COUNSEL FOR RESPONDENT

A B Letter Service, inc, 327 Chortres St., New Orleans, Le. (504) 581-5555

ME OE, 5 kc a chk ape ce kcuweens

eee ene Ree Chae es

I TIS oo a 6 ka bo iene ee ee ks

er ee te ee ae ee Oe eek Bates

I. Certiorari Was Improvidently Granted, This

Court Is Without Jurisdiction, And the Writ

Should Therefore Be Recalled.

A. Petitioners Claim to Rights and Privileges

Under the Louisiana Organic Act Was Not

Properly Raised in the State Court Pro-

ceeding and Is Therefore Not Before This

B. A Private Right of Action Does Not Exist

on Behalf of Petitioners Under the Rivers

and Harbors Act in the Absence of Action

by Congress or Its Delegate.............

II. The Navigation Servitude Is Distinct and

Separable From And Is Narrower Than Federal

Regulatory Jurisdiction

li ill

INDEX (Continued) INDEX (Continued)

PAGE PAGE

A. Federal Power Over Navigable Waters Has C. Respondent s Artificial Canal System Did

Many Legally Distinct Sources and Appli- Not Destroy or Obstruct Navigable Waters

Cad bond ebt ae eae idee deh eabian 13 of the United States and This Issue Is Not A

Disputed Fact ........cccececesvevees 45

B. The Navigation Servitude Is More Limited

in Purpose, Justification, and Scope Than IV. There Are Compelling Policy Considerations

Federal Regulatory Jurisdiction ......... 20 Why the Federal Navigation Servitude Should Not

Be Extended To Respondent's Privately Construct-

C. The Exercise of Federal Power Over Navigable ed Canal System Upon Its Private “ER ee 50

Waters is Limited by the Fifth Amend- |

ment to the United States Constitution. . . . 25 | IN aot ee Oey a se bye 56

Ill. The Federally Protected Right of the Public

to Navigate Over the Navigable Waters of the

United States Has No Application to Respon-

dent’s Wholly Artificial Canal System

A. Respondent’s Artificial Canals Construct-

ed Entirely on Private Property at Private

Expense Are Considered Private Under State

Oe I noc. Wks Wh Xoo kod es 31

B. Private Artificial Canals Which Form No

Highway of Interstate Commerce Are Not |

Subject to the Federal Navigation Servitude

Merely Because They Are Navigable In Fact

and Intersect With Navigable Waters of the

NG WRisn occ ccd neees ¥en aveed soe 39

TABLE OF AUTHORITIES

CASES:

Bass Angler Sportsman Society v. United

States Steel Corp., 324 F.Supp. 412..........

Bass Anglers Sportsman Society v. Koppers

Cai SEER BI v6 oh 60 coer cecccsvcedas

Beecher v. Alabama, 389 U.S.35 ..............

Binney v. Chesapeake, etc., Canal Co.,

NN ass 5c xab whi iei bain ails

Brewer Elliott Oil and Gas Co. v. United States,

PE Gea wh eka b ake eke héws culewes

Cardinale v. State of Louisiana, 394 U.S. 437.....

Case v. The Midland Railway, 27 Beavan 247.....

Chicago, Rock Island, and Pacific Railroad

Co. v. United States, 284 U.S. 80 ............

Citizens Committee for Environmental

Protection v. United State Coast Guard,

GOO FI. BOE neces c cet ceseceeccsveces

Daniel Ball, The, 77 U.S. (10 Wall.) 557.........

PAGE

15,29,39

TABLE OF AUTHORITIES (Continued)

PAGE

Dow Chemical Co. v. Dixie Carriers, Inc.

330 F. Supp. 1304, aff'd., 463 F. 2d 120, cert.

Gee rs A ieee cr cck es cechscess 43

Dwinel v. Barnard, 28 Me. 554 ..........0.005. 47

Economy Light and Power Co. v. United

Sonben, BO UB. TED ci ns saws eve ssscccqeees 17

Environmental Protection Agency v. State

Water Resources Control Board, 426 U.S.

Pe ee ee ee en eee eee ee 22

Ex Parte Boyer, 109 U.S. 629..........0ee eens 18, 20

Fairchild v. Kraemer, 204 N.Y.S. 2d 823,

et Be 6 SN A Se errr re ee 37

Farnum v. Blackstone Canal Corp., 1 Sumn.

(OB. JOG cc ccckncdepncmensspesswre cscs. 36

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1......... 11,14,37

Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713..... 18

Goose Creek Hunting Club v. United States,

ae fT peers es rte gS 2 40

Guinan v. Boston, Cape Cod and New York

Cone Go... 2 O, De oe ch awe ee ea tese se 18

TABLE OF AUTHORITIES (Continued)

Gulf and Interstate Railway Co. of Texas v.

NA, See is PG so bv hb ici< eae s oud eas

Guthrie v. Alabama By-Products, 328 F. Supp.

1140, aff'd, 456 F.2d 1294... cccceievesvce

Hamilton v. Vicksburg, Shreveport and Pacific

matraad Ce., B59 TG, BD oioik cvs nko ecsiwen

Hardy Salt Co. v. Southern Pacific Trans-

portation Co., 501 F.2d 1156, cert. denied,

ic isthe oc Bins LEE EOE COT EET CeCe ESE CCe

Harrison v. Fite, 148 F. 781 .......... ees

Harvey v. Potter, 19 La. Ann. 264............6.

Hooper v. United States, 331 F. Supp. 1056......

Breen w. Clover, 199 US. SAD. wcicccscccecasece

Ilhenny v. Broussard, 135 So. 669...........06.

King v. Muller, 67 A. 380, 73 N.J. Eq. 32........

Leovy v. United States, 177 U.S. 621...........

Leslie Salt Co. v. Froehlke, 578 F.2d 742........

Louisville Bridge Co. v. United States,

AS PER TEE ee ey eee rrr ree

PAGE

vii

TABLE OF AUTHORITIES (Continued)

PAGE

Loveladies Property Owners Association v. Rabb,

430 F. Supp. 276, aff'd, 457 F.2d 1162, cert.

ee, Se A I oo ok 0 0s Ve ek es ou des 11

Lucky Lindy, The, 76 F.28 S61 o.. ces eescess 18

McGoldrick v. Compagnie Generale Trans-

atlantique, 309 U.S. 430... .. cee rece ecees 9

VicKie v. Diamond Marine Co., 204 if bh: 18

Miller v. New York, 109 U.S. 385..........0000- 41

Minnehaha Creek Watershed District v.

Hoffman, 449 F. Supp. 876, aff'd, 13 E.R.C.

re ee eee rt ee er 43

Monogahela Navigation Co. v. United States,

oo) 7 > ee ee ee ee 26, 28

Montello, The, 87 U.S. (20 Wall.) 430........... 15, 29

Morris v. Tennessee Valley Authority,

345 F.Supp. 321... ccc cccccccccccncccens 10

National Audubon Society v. White,

302 Sc. 2d 660, writ denied, 305 So. 2d

_. BRRRRSSATI ECONO Ct earn er ee Ree 32

Oklahoma v. Texas, 258 U.S. 574.......020000e 18

viii

TABLE OF AUTHORITIES (Continued)

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

329 U.S, SOB- o oc dpcceccccccescuucduccess

Oregon ex rel. State Land Board v. Corvallis

Sand and Gravel Co., 429 U.S. 363...........

Pennsylvania Coal v. Mahon, 260 U.S. 393.......

Pennsylvania Water and Power Co. v. Federal

Power Commission, 123 F. 2d 155, cert.

denied, 315 U.S. O06... 6s ckcceb de henaw ean

Perrine v. Chesapeake and Delaware Canal Co.

SO U.S. (9 Mow.) 872 . oo cs cveseccuduskanes

Perry v. Haines, 2193 U.S. 87 . 0c o vessccuesweas

Philadelphia Co. v. Stimson, 223 U.S. 605 .......

Port of Seattle v. Oregon and Washington

Raiboed Co., 233 U.3.-36.'.i << sss saeeenae

Potter v. Indiana, etc. R. Co. 95 Mich. 389

S46 OW. SOG wa cv vwlccascceceke sunk

Propeller Genessee Chief v. Fitzhugh,

S2 U.S. (12 Baw.) O43 2.0 ho cdectesne denna

Red Star Towing and Transportation Co. v.

Department of Transportation, 432 F.2d 104...

PAGE

17, 22

TABLE OF AUTHORITIES (Continued)

Scranton v. Wheeler, 179 U.S. 141 .............

ee Se

Sierra Club v. Morton, 400 F.Supp. 610.........

Silver Springs Paradise Co. v. Ray,

REE Fe Ree a ae a aa

Simpson v. Attorney General, (1904) A.C. 476....

Sneed v. Weber, 307 S.W. 2d 681 ..............

Southern Netural Gas Co. v. Gulf Oil Corp.,

a a ehh les a's s slo.a 6 09 p

Steamboat Belfast, The v. Boon, 74 U.S. (7 Wall.)

Ps Sei ae eres ee ee

Ten Eyck v. Delaware, etc., Canal Co.,

Oe ers ie ee eae Pare ee

Toledo Liberal Shooting Co. v. Erie Shooting

a een ee

Trenton Water Power Co. v. Raff,

PRC caHadci vi vent sloaeseecevnans

Union Bridge Co. v. United States,

ee Sg ek epee ¥

United States v. American Cynamid Co.,

354 F.Supp. 1202, aff'd., 480 F.2d 1132......

PAGE

24, 26,27

TABLE OF AUTHORITIES (Continued)

PAGE

United States v. Appalachian Electric Power Co.,

- i 8.) Re er rer re 16,18, 25,

29, 33

United States v. Ashland Oil and Transportation

we 3 kL ty Serene earn Cre 22

United States v. Chandler-Dunbar Water Power

el ee ER bak hee ee re eho e kk nee Rs 23

United States v. Chicago, Milwaukee, St. Paul

and Pacific Railroad Co., 312 U.S. 592........ 17 ,24,28

United States v. Cress, 243 U.S. 316............ 26,28,29,

30, 37

United States v. Grand River Dam Authority,

Ps BL 62 o dbs aka slaps neeeseauneae 17, 2

United States v. Holt State Bank,

Es ea reek O26 RRR RAO OME EROS 18

United States v. Joseph G. Moretti Co.

2 gf: SRR ieee eer 43

United States v. Kaiser Aetna, 408 F. Supp. 42,

overruled in part, 584 F.2d 378, cert. granted,

PE Wes TO OOE. 6 0-014 obno a0 h 658 854 e a ROS 21, 33

United States v. Kansas City Life Insurance Co.,

Pe Re FE os oka ea OS oie Bw Bee 24,25.

27,29

TABLE OF AUTHORITIES (Continued)

PAGE

United States v. President, etc., of Jamaica and

B. Saran CO. FOO GE To eo iisie cate enecaeis 43

United States v. Rands, 389 U.S. 121........... 24, 27, 28

United States v. Republic Steel, 362 U.S. 482..... 17, 22,27

United States v. Rio Grande Dam and Irrigation

Chis RI A es Sok he She Sareea Darras ee 17, 21

United States v. Sexton Cove Estates,

389 F. Supp. 602, aff'd, 526 F.2d1293....... 33,43,44

United States v. Stoeco Homes, Inc., 498 F. 2d

SPT. cont, Cemied.. SIU. Fade 6 kccewkcacuis 27,44

United States v. Standard Oil Co., 384 U.S. 224... 22

United States v. Twin City Power Co.,

Be: Re hee eet aw houue yeaa etnes 17

United States v. Utah, 283 U.S., 64.............- 18, 40

United States v. Virginia Electric and Power

Ci ee i Os oh na eae bat ee) cower’ 17, 14

United States Geophysical Co. v. Vela,

Be TOO a aa ae eee erate 43

Utah, State of v. United Siates, 304 F.2d

oe ae BS + | aera 40

| |

xii

TABLE OF AUTHORITIES (Continued)

PAGE

Veazie v. Moor, 55 U.S. (14 How.) 568.......... 3739

Vermilion Corporation v. Vaughn, 356 So. 2d

551, writ denied, 357 So. 2d 558 ............ 44,47

Wadsworth v. Smith, 11 Me. 278, 26 Am.

Bed: SBS. ciswatesestecskees neers 36

Ward v. Warner, 8 Mich. 508............0.0000- 36

Wyndotte Transportation Co. v. United States,

$09 USB, W91e cis cvwavedsivenueekenuwens 21

CONSTITUTION, STATUTES, AND REGULATIONS:

U.S. Constitution, Art. 1, Section 8,

Clause 3 (Commerce Clause)............0+5. 11-17,

24-26, 33, 37, 39

U.S. Constitution, Art. 3, Section 2

(Admiralty Jurisdiction). 18-1937

U.S. Constitution, Fifth Amendment ........... 25-3039

2 Stat. 701 et seq., La. Organic Act............. 1,2,8,

20 39

2 Stat. 705 .ncccccecsve cid eeesa panic w oe mana 20

28 USC. 1287 «3 ca isa ce ey awe pee eee 1,8

TABLE OF AUTHORITIES (Continued)........

PAGE

33 U.S.C. 401 et seq., Rivers and Harbors Act .... 2,9-10,12

21 22,27

33 U.S.C. 1251, Water Pollution Control Act..... 22

AT BO ohh Ka RED ened ae en 4 19

ee Ds a oo dN 6a psa Wadeeeees 19

eta kk eas Ae ae OW a Rees 38,39

36 Opinion U.S. Attorney General 203 (1930).... 38

La. Code of Civil Procedure Art. 967 ........... 46

La. Code of Civil Procedure Art. 1005 .......... 46

OTHER AUTHORITIES:

Coulson, H, and U. Forbes, The Law Relating to

NN SOK ES ROP Re cco Candee acdweheues se 35

Earl of Halsbury, The Laws of England,

See ea aT 35

Hale, Sir Matthew, De Jure Maris, Part I,

SE Ec askad nba bed Swabia’ eee a ane cae s 34

Leighty, Leighton L., The Source and Scope of

Public and Private Rights in Navigable Waters,

5 Land and Water L. Rev. 391 (1970)......... 13

Xiv IN THE

SUPREME COURT OF THE UNITED STATES

TABLE OF AUTHORITIES (Continued)

OCTOBER TERM, 1978

PAGE

NO. 77-1819

American and English Encyclopedia of Law,

Wy ee CTE Shek be keke eeeeg se dee 36 NORMAN VAUGHN, FREDDIE BROUSSARD AND

| LARRY J. BROUSSARD,

American and English Encyclopedia of Law, | Petitioners,

Vol. 28:1044 (1895). 00... ccc cece ceeeeeeee 36

| vV.

Encyclopedia of Law and Procedure, 6:267

{Pee roerr errr ree Tee re eee ee ee 35 | VERMILION CORPORATION,

Respondent.

13 Am. Jur. 2d, “Navigable Waters,” §92........ a7

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL

SECIS, Ce” BA 6c eiiccissaksass ies 37 FOR THE THIRD CIRCUIT OF THE STATE OF

LOUISIANA

65 C.J.S., “Navigable Waters,” § 20 ...........- 36

BRIEF FOR RESPONDENT

A Guide To Wildlife Management Areas,

Louisiana Department of Wildlife and JURISDICTION

a Ut, Pree errrrrert Prrereerey 51 :

Petitioners seek to invoke the jurisdiction of this Court

Rockefeller Refuge Levee Study, Technical under 28 U.S.C. 1257 (3), providing for assertion of rights

Report of The Louisiana Wildlife and and privileges under the Constitution and Laws of the United

Fisheries Commission (1959) ..........00055 52,54 States.

As to issues raised in Petitioners’ brief under the Louisi-

ana Organic Act, 2 Stat. 701 et seq., the applicability of that

Act was neither pleaded, argued, nor decided below. There-

fore a serious question exists as te whether jurisdiction

properly lies in this Court, for it is essentiai to the juris-

diction of the Supreme Court under 28 U.S.C. 1257 that a

substantial federal question has been properly raised in the

state court proceeding.

a eEEEOEeeeeEeEeEeEeeeeee

As to issues raised under the Rivers and Harbors Act, 33

U.S.C. 401 et seq., there is serious question of the existence

of a private right of action on behalf of Petitioners to claim

protection of that act in the absence of a determination by

Congress or the Corps of Engineers that “‘navigable waters of

the United States” are involved.

These jurisdictional issues will be discussed further in the

argument below.

QUESTIONS PRESENTED

1. Whether this Court may consider Petitioners’ claim to

rights or privileges arising under the Louisiana Organic Act,

2 Stat. 701 et seq., when the applicability of that act was

neither pleaded, argued, nor decided below?

2. Whether in the absence of action by Congress or its

delegate, a private right of action exists on behalf of Petition-

ers under the Rivers and Harbors Act, 33 U.S.C. 401 et seq,

to seek a judicial determination that a private artificially

created waterway, built on private property with private

funds, which adjoins “navigable waters of the United States’’

is itself, by nature of such joinder, a “navigable water of the

United States” subject to the right of use by citizens of the

United States and that a state court injunction preventing

such use is an obstruction under the language of the Act?

3. Whether a private landowner who constructs privately

owned artificial canals at private expense exclusively upon

his private property subjects such canals to unlimited and un-

compensated access by members of the public solely because

such canals are navigable in fact and intersect in some places

with “navigable waters of the United States.”

STATEMENT

Petitioners’ ‘‘Statement of the Case’’ (Petitioners’ Brief

pages 1-7), while reasonably accurate in generally setting

forth the factual and procedural context of the questions pre-

sented for review by this Honorable Court, requires correc-

tion and supplementation in several important respects.

The canals herein at issue were not constructed as, and do

not form, a highway of commerce. They were constructed

on lands leased to Respondent by a private corporation for

the purpose of providing access to trap lines and in con-

nection with drilling operations or mineral exploration there-

on and are continuously dredged to provide access to drill-

ing locations! They do not provide access to the Gulf

of Mexico.* —_ Use of these canals has at all times been pre-

dominantly by Respondent and by its mineral, trapping,

hunting and grazing lessees. | No governmental agency has

ever sought to regulate or otherwise exercise jurisdiction over

the canals; on the contrary, all governmental agencies have

at all times acknowledged Respondent’s rights of ownership

and control .4

Nothing in the record supports the implication contained

in Petitioners’ Affidavit in Opposition to Respondent’s

i Affidavits of Murphy Sellers, App. p. 12a, and John Donohue,

App. p. 15a. Deposition of John Donohue, App. pp. 21a, 26a, 28a

(‘This has been an evolving canal system’); 45a (’’. . these canals were

all developed as the most expeditious means and way to get to a drilling

location”’).

+ 2 Deposition of John Donohue, App. pp. 33a, 43a-44a.

» Fi Deposition of John Donohue, App. p. 42a.

4. Deposition of John Donohue, App. p. 48a (‘They've always

sought permission before entering upon the property and have followed

the usual courtesies,. . ."’).

Motion for Summary Judgment that development of the

canals herein at issue caused preexisting waterways to be-

come unusable. Mr. Donohue’s deposition is clear and un-

equivocal that impassability of the only natural waterways

which formerly opened to the Gulf resulted exclusively from

accretion of silt from the Atchafalaya River westward in the

case of a small drainage coulee and from the rerouting of

Freshwater Bayou and construction of a public waterway in

the case of alarger stream.> _—‘ There is, accordingly , no basis

in the record for the suggestion that ‘“‘natural navigable water-

ways, once used as such, were impaired and destroyed by the

artificial creations of a private corporate developer” .®

The alleged connection of Respondent’s canal system with

naturally navigable waters and alleged destruction of such

waterways by construction of Respondent’s canal system

were not plead in Petitioners’ Answer and were not at issue in

the trial court.’ —_ Destruction of existing navigable water-

ways is only implied in Petitioners’ Affidavit in Opposition

to Respondent’s Motion for Summary Judgment wherein it is

asserted that “various portions of the natural navigable water-

way system . . .only ceased to be useable for these purposes

after Humble developed its artificial waterway system ”” ®

SUMMARY OF ARGUMENT

The Writ of Certiorari was improvidently granted since this

Court is without jurisdiction. The Louisiana Organic Act was

8. Deposition of John Donohue, App. p. 33a (“ [development of

the Dewitt Canal] would not have had any effect on that.””). App. p.

35a.

6. Petitioners’ brief, p. 7.

7. Answer, App. pp. 8a-10a.

8. Affidavit in Opposition, App. p. 54a.

not raised by the Petitioner in the state courts and is, there-

fore, not properly before this Court. Jurisdiction based on

the Rivers and Harbors Act is improper both because no

private right of action exists under the act and because

neither Congress nor its designee — the Corps of Engineers --

has determined that the waters involved are navigable and,

therefore, within the scope of the act. In the absence of such

a finding, the State of Louisiana is free to enforce its tres-

pass laws with the assurance that the doctrines of comity

and separation of powers will bar interference.

If this Court does have jurisdiction, the judgment of the

state court should be affirmed. As the term “‘navigability”’

has evolved in the jurisprudence, it has no uniform meaning,

but is variable depending on the context in which it is ap-

plied. As this court has recognized, it may be as broad as

the full regulatory authority of Congress under the Com-

merce Clause. But this Court has also recognized that when

applied to the federal navigation servitude, derived from

English Common Law, it is much narrower. It is the federal

navigation servitude that is at issue in this case and that

servitude should not be enlarged under the guise of federal

regulation.

The Commerce Clause and the Rivers and Harbors Act,

passed under its authority, are both limited by the Fifth

Amendment. Since the Rivers and Harbors Act in some cases

allows a taking without compensation, it is important to

ascertain the limits that the Fifth Amendment places on

federal powers. Respondent submits that that limitation is

found in the case law which defines ‘“‘navigability”’ for the

federal navigation servitude as including only waterways of

natural existence. Broader terms of “navigability” apply

only for the regulatory powers of Congress and Admiralty

Jurisdiction.

Under both State and Federal law the term “navigable

waters of the United States,” for purposes of the federal navi-

gation servitude, does not include canals constructed with

private funds and on privately owned land. Petitioners con-

cede in their brief that such is the holding of the Louisiana

Supreme Court, but assert that the court is on the “wrong

side of the issue... .”” The fallicy of this assertion is demon-

strated by Petitioners’ reliance on cases involving the regu-

latory powers of Congress under the Commerce Clause to

support their conclusion rather than cases delineating the

navigation servitude. From its origin in English Common

Law until present day, the courts have consistently held that

the navigation servitude does not extend to private canals

built on fast land with private funds. Thus, it is Petitioners,

not the Supreme Court of Louisiana, who come out on the

‘“‘wrong side of the issue... .””

The mere fact that the canals built on fast land are navi-

gable-in-fact is not enough to make them navigable-in-law for

the purposes of the navigation servitude. This Court in de-

fining the term “‘navigability” in relation to the navigation

servitude has consistently qualified the term with the words

“natural or ordinary condition,” thus making it inapplicable

to artificially created canals. Furthermore, the navigable-in-

fact, navigable-in-law rule requires that the waterway be part

of an interstate highway of commerce. Respondent’s canals

do not serve such a purpose; the only useful purpose of the

canal system is to provide access for Respondent to its lease-

hold. The ebb and flow of the tide test of navigability,

sought to be used by Petitioners, was abandoned in this

country in 1870 and has been rejected by the courts ever

since.

Although Petitioners and the Solicitor General assert that

they have always maintained in this litigation that prior to

the development of Respondent’s canal system there existed

a natural highway of commerce, such is not the case. Such

an allegation was not pled as an affirmative defense in Petit-

ioners’ Answer as required under Louisiana law. Further-

more, the allegation is simply not supported by the record.

Little Freshwater Bayou was silted up prior to the construc-

tion of Respondent’s canals. Freshwater Bayou’s navigability

was destroyed when the Corps of Engineers re-routed it to

build the Freshwater Bayou Canal, which was built by virtue

of the gratuitous granting by Respondent of a public servi-

tude over one of its canals. No governmental authority has

ever been asserted over Respondent’s canals and the Corps of

Engineers has recognized the private nature of the canals.

Finally, important public policy reasons exist as to why

the navigation servitude should not be extended to grant ac-

cess to Respondent’s canals. The delicate ecological balance

of the area would be endangered by excessive influx of crafts

upon the water. The reality of the situation is that Petition-

ers do not seek to use the canal for navigation purposes, but

for their own commercial uses. Such access would prevent

effective management and control of the ecological system.

In addition, public access would be a disincentive to those

who would build canals for oil and gas exploration so despar-

ately needed at this time. In contrast, public access would

serve no navigational purposes, but only the commercial in-

terests of Petitioners.

ARGUMENT

CERTIORARI WAS IMPROVIDENTLY GRANTED, THIS

COURT IS WITHOUT JURISDICTION, AND THE WRIT

SHOULD THEREFORE BE RECALLED.

A. Petitioners’ Claim to Rights and Privileges Under the

Louisiana Organic Act Was Not Properly Raised in the State

Court Proceeding and Is Therefore Not Before This Court.

Certiorari in this Court was granted based on jurisdiction

under 28 U.S.C. 1257(3). That statute reads in pertinent

part:

Section 1257. State Courts; appeal; certiorari.

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had,

may be reviewed as follows:

(3) By writ of certiorari, . . . where any title, right,

privilege or immunity is specially set up or claimed

under the Constitution, treaties or statutes of...the

United States.

It is essential to the jurisdiction of the Supreme Court

under Section 1257 that a substantial federal question has

been properly raised in the state court proceedings. In

Cardinale v. State of Louisiana, 394 U.S. 437 (1969), this

Court, in dismissing a writ of certiorari, made clear that “‘it

was very early established that the Court will not decide

federal constitutional issues raised here for the first time on

review of state court decisions.” 394 U.S. at 438. Petition-

ers’ claims to rights under the Louisiana Organic Act, 2 Stat.

701 et seq., were not presented in the state courts below,

were not decided in those courts, and were not presented in

the petition for certiorari.

The United States as amicus curiae on the petition for writ

of certiorari recognized this problem and said: “A serious

question of this Court’s jurisdiction and practice is pre-

sented.”’

Petitioners cite Beecher v. Alabama, 389 U.S. 35 (1967),

for the proposition that the requirement of properly present-

ing the federal question is excused if the state courts have in

fact considered the question. This proposition is inapplicable

to the present case as the Louisiana courts did not in fact

consider any issues under the Louisiana Organic Act. 10

The Louisiana courts were therefore not given the first op-

portunity to consider these issues. Petitioners’ contention

that the ruling of the Louisiana courts would have been the

same if they had been properly presented with issues under

the Louisiana Organic Act does not remedy this deficiency.

Since the applicability of the Louisiana Organic Act was

neither pleaded, argued, nor decided below, that issue was

not properly raised and this Court is without jurisdiction to

decide those claims. ‘“‘It is the settled practice of this Court,

in the exercise of its appellate jurisdiction, that it is only in

exceptional cases, and then only in cases coming from the

federal courts, that it considers questions urged by a petition-

er or appellant not pressed or passed upon in the courts be-

low.”” McGoldrick v. Compagnie Generale Transatlantique,

309 U.S. 430, 434 (1940).

B. A Private Right of Action Does Not Exist on Behalf of

Petitioners Under The Rivers and Harbors Act in the Absence

of Action by Congress or Its Delegate.

There is authority in the Second, Third and Fifth Circuits

that has held there is no private right of action for a private

party to bring suit under the Rivers and Harbors Act, 33

9. Brief of the United States on the Petition for Writ of Certiorari at

p. 8.

10. Appendix pp. 57a-66a.

U.S.C, 401 et seq.

This question was considered in Bass Angler Sportsman

Society v. United States Steel Corp., 324 F. Supp 412, (N.D.

M.D., and S.D. Ala.), aff’d., Sub Nom.,Bass Anglers Sports-

man Society v. Koppers Co., 447 F. 2d 1304 (5th Cir. 1971).

In that case the private party plaintiffs were denied the right

to enforce the Rivers and Harbors Act because the penalties

for a violation of the Act were purely criminal. The court

held that “criminal statutes can only be enforced by the

proper authorities of the United States government and a

private party has no right to enforce these sanctions.” 324 F.

Supp. at 415.

This rule was applied in Morris v. Tennessee FKalley

Authority, 345 F.Supp. 321, 324 (N.D. Ala. 1972):

The Court only recently held that the Rivers and

Harbors Act is a criminal statute enforceable only

by the Department of Justice and creates no right

of action in private individuals for damages or in-

junctions to enforce its provisions. Guthrie v. Ala-

bama By-Products Co., 328 F. Supp. 1140 (N.D.

Ala. 1971), affd, 456 F.2d 1294 (5th Cir. 1972).

The Court of Appeals for the Third Circuit has held that

governmental enforcement is exclusive and that Congress did

not create any civil cause of action in favor of private parties

injured by any violation of the Act.

Where Congress, in providing protectiion against

private violations created no new remedy other

than penal sanctions, we think it is illogical to im-

ply that Congress intended that a violation by the

State should give rise to a civil claim for damages.

)

Red Star Towing and Transportation Co. v. Depart-

ment of Transportation, 423 F.2d 104, 106 (3d

Cir. 1970).

The Third Circuit rule was reaffirmed in Loveladies Proper-

ty Owners Association v. Rabb, 430 F.Supp. 276 (D. N.J.

1975), aff'd. , 457 F.2d 1162 (3d Cir. 1976), cert. cenied,

432 U.S. 906 (1977), where the court held that the Rivers

and Harbors Act did not create a private right of action.

See also Citizens Committee For Environmental Protection

v. United States Coast Guard, 456 F. Supp. 101 (D.N.J.

1978).

The Second Circuit also follows the view that the Rivers

and Harbors Act does not create a private right of action. In

Hooper v. United States, 331 F.Supp. 1056, (D. Conn.), an

action against a power company, joined as a defendant with

the United States, was dismissed since the ‘‘Rivers and Har-

bors Appropriation Act...does not create a new civil remedy

and cannot be the basis for this court’s jurisdiction.”” 331 F.

Supp. at 1058. "

The power to prescribe laws governing the use or obstruc-

tion of navigable waters has been entrusted to Congress under

the Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1(1824). Congress has delegated to subordinate administra-

tive agencies, such as the Corps of Engineers, the power to

determine what obstructions and improvements on which

waters will be regulated under the federal power. In the pre-

sent case neither Congress nor its delegate have made any

determination that the waters in question are or are not

navigable waters of the United States. In the absence of such

11, In the Ninth Circuit there is authority to the contrary. For

example, in Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Ca. 1975)

standing was granted to private party plaintiffs in a private cause of

action under the Rivers and Harbors Act.

determination, the courts of Louisiana, seeking to enforce

the property laws of that State, have enjoined Petitioners

from trespassing upon Respondent’s private property and

private artificial canals built at private expense. Federal

judicial interference at this stage would do violence to the

two great policies which have heretofore dictated non-inter-

ference — the doctrines of comity and separation of powers.

Petitioners apparently recognize this for they seek to infer

from the Rivers and Harbors Act that Congress has created a

private right to pursue this action. Cases are cited in support

of this proposition, but those cases are ones in which a pri-

vate citizen obstructed naturally navigable waters, and Con-

gress and the Corps of Engineers had already made a deter-

mination that such an obstruction would not be permitted.

In the instant case, the waters are not natural waterways and

there has been no determination that they will be treated as

such. Since Congress has addrsssed this problem by granting

criminal sanctions to be enforced by the Department of Jus-

tice, this Court should hold that a private right of action does

not exist on behalf of these Petitioners under the Rivers and

Harbors Act.

It is submitted that, for the foregoing reasons, the writ

herein should be dismissed for want of jurisdiction. In the

event that this Honorable Court does not find these argu-

ments persuasive, in the alternative, it is submitted that the

judgment below of the Court of Appeal for the Third Circuit

of the State of Louisiana should be affirmed for the reasons

set forth in the following sections of this brief.

Il.

THE NAVIGATION SERVITUDE IS DISTINCT AND

SEPARABLE FROM AND IS NARROWER THAN FEDER-

AL REGULATORY JURISDICTION.

A. Federal Power Over Navigable Waters Has Many Legally

Distinct Sources and Applications.

The term “‘navigability’’ or “navigable waters’? has many

legally distinct sources and applications under both state and

federal law. It is essential to a proper determination of the

issue presented herein to recognize this and to understand

that a particular body of water may be ‘“‘navigable’’ for one

purpose and not for another depending on the nature of the

federal power being exercised.

‘‘Navigability’’ or “navigable waters” is the touch-

stone for determining many sovereign, private, and

public rights in waters. A significant problem is

the matter of defining ‘‘navigability”. More pre-

cisely, the problem is that of clearly delineating

navigability for a specific purpose at hand and dis-

tinguishing that test of navigability from other

tests employed in varying contexts. Leighty,

Source and Scope of Public and Private Rights in

Navigable Waters, 5 Land and Water L. Rev. 391

(1970) at 397.

Navigability may be used to determine title controversies

to the beds of lakes and streams, rights of riparian property

owners, the fulfillment of treaty obligations, exercise of the

war powers, the extent of admiralty jurisdiction, the validity

of Congressional regulation under the Commerce clause, and

the scope of public access under the navigation servitude.

; 14

There are other contexts in which the term is used but these

represent the major applications. In each use the scope of

federal power varies in degree.

Although concerned with the Admiralty and Commerce

Clause application of “navigability”, the primary concern in

this case is the meaning and application of “navigability” for

purposes of public access under the navigation servitude.

Since the briefs of the Petitioners and of the Solicitor Gener-

al as amicus curiae adequately review the common law his-

tory of the public right of access, Respondent feels it is un-

necessary to do so again. It should suffice to say that we

agree that the English concept of the “public common of

piscary” was indeed carried over into an American and Fed-

eral context via the Commerce Clause of the Constitution.

What we do not agree with and what we do not believe

Petitioners and the Solicitor Generali have adequately done is

to delineate clearly the various applications an‘! contexts in

which the term “navigability” has been used in the multi-

tude of cited cases. For this reason Respondent will attempt

to present a conceptual framework in which the term “navi-

gability” developed and is presently used in American water

law.

In one of the very first cases in American Supreme Court

history to consider the power of Congress vis-a-vis the states

under the Commerce Clause, Chief Justice John Marshall

declared: ‘‘All America understands the word ‘commerce’

to comprehend navigation. It was so understood . . when the

Constitution was framed. The power over commerce includ-

ing navigation, was one of the primary objects for which the

people of America adopted their government.” Gibbons v.

Ogden, 22 U.S. (9 Wheat,) 1, 190 (1824). A half century

later, after declaring the English ebb and flow of the tide test

not to be “any test at all,” Justice Field laid down the test

still valid today, for determining navigability.

Those rivers must be regarded as public navigable

rivers in law which are navigable in fact. And they

are navigable in fact when they are used, or suscep-

tible of being used, in their ordinary condition, as

highways for commerce, over which trade and

travel may be conducted in the customary modes

of trade and travel on water. And they constitute

navigable waters of the United States, in contra-

distinction from the navigable waters of the states,

when they form in their ordinary condition by

themselves, or by uniting with other waters, a con-

tinued highway over which commerce is or may be

carried on with other States or foreign countries in

the customary modes in which such commerce is

conducted by water. The Daniel Ball, 77 U.S.

(10 Wall.) 557, 563 (1870).

This test of navigability was expanded in The Montello,

87 U.S. (20 Wall.) 430 (1874) where the Court stated:

The true test of navigability of a stream does not

depend on the mode by which commerce is, or

may be conducted, nor the difficulties attending

navigation . . .The capability of use by the public

for the purpose of transportation and commerce

affords the true criteria of the navigability of a

river, rather than the extent and manner of that

use. . . It is not every small creek in which a

fishing skiff or gunning canoe can be made to float

at high water which is navigable, but in order to

give it the character of a navigable stream, it must

be generally and commonly useful to some purpose

of trade and agriculture. 87 U.S. (20 Wall.) at 441-

442.

The federal test for determining navigability reached its

modern day expansive meaning in United States v. Appala-

chian Electric Power Co., 311 U.S. 377 (1940):

To appraise the evidence of navigability on the

natural condition only of the waterway is errone-

ous. Its availability for navigation must also be

considered. “Natural and Ordinary condition”’ re-

fers to volume of water, the gradients, and the

regularity of the flow. A waterway otherwise

suitable for navigation, is not barred from that

classification merely because artificial aids must

make the highway suitable for use before commer-

cial navigation may be undertaken. . . there are

obvious limits to such improvements as affecting

navigability. These limits are necessarily a matter

of degree. There must be a balance between cost

and need at a time when the improvement would

be useful. When once found to be navigable, a

waterway remains so. Nor is it necessary that the

improvements should be actually completed or

even authorized. The power of Congress over com-

merce is not to be hampered because of the ne-

cessity for reasonable improvements to make an

interstate waterway suitable for traffic. 311 U.S.

at 407409.

The foregoing Supreme Court decisions enunciate an all

encompassing test of navigability. However, before assessing

their impact on the present controversy, one must realize

that the preceding cases involved navigability as defined for

Congressional regulatory power under the Commerce Clause

while the question of public access under the navigation

servitude was not at issue. This is but one of the distinct

applications of the term “‘navigability” and has been used to

sustain action by Congress through its power to regulate com-

merce in a multitude of instances, ranging from prohibiting

obstructions to navigable rivers to comprehensive flood con-

trol programs. United States v. Rio Grande Dam and Irr-

gation Company, 174 U.S. 690 (1899); Economy Light and

Power Co. v. United States, 256 U.S. 113 (1921); Oklahoma

ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941);

United States v. Chicago, Milwaukee, St. Paul and Pacific

Railway Co., 312 U.S. 592 (1941); United States v. Twin

City Power Co., 350 U.S. 222 (1956); United States v. Re-

public Steel Corp., 362 U.S. 482 (1960); United States v.

Grand River Dam Authority, 363 U.S. 229 (1960); United

States v. Virginia Electric and Power Co., 365 U.S. 624

(1961).

The distinct applications of the term “‘navigability” be-

come readily apparent through an examination of its use in

delineating the scope of admiralty jurisdiction of the United

States. In fact, this is the area in which navigability has

been defined and applied in its broadest possible sense. The

early case of Propeller Genessee Chief v. Fitzhugh, 53 U.S.

(12 How.) 443 (1951), extended admiralty jurisdiction be-

yond waters meeting the English ebb and flow of the tide

test to all navigable waters. Justice Clifford, in The Steam-

boat Belfast v. Boon, 74 U.S. (7 Wall.) 624 (1869), stated:

Difficulties attend every attempt to define the

exact limits of admiralty jurisdiction, but it can-

not be made to depend upon the power of Con-

gress to regulate commerce as conferred in the

Constitution. They are entirely distinct things,

having no necessary connection with one another,

and are conferred, in the Constitution, by separate

and distinct grants. 74 U.S. (7 Wall.) at 640.

Navigability for the purposes of admiralty jurisdiction has

since been extended by this Court to include even a wholly

atrificial canal completely within the body of a state and sub-

ject to the state’s ownership and control. Ex Parte Boyer,

109 U.S. 629 (1884). “Admiralty jurisdiction is not limited

to transportation of goods and passengers in interstate or

foreign commerce but depends on the jurisdiction conferred

in Article 3, Section 2, extending the judicial power of the

United States to all cases of admiralty and maritime jurisdic-

tion. This includes canals and other waters even if they be

privately owned or claimed.” Mckie v. Diamond Marine Co.,

204 F. 2d 132, (5th Cir. 1953); See also Guinan v. Boston,

Cape Cod and New York Canal Co.; 1 F. 2d 239 (2nd Cir.

1924); Silver Springs Paradise Co. v. Ray, 50 F. 2d 356 (5th

Cir. 1931\: The Lucky Lindy, 76 F.2d 561 (5th Cir. 1935);

Southern Natural Gas Co. v. Gulf Oil Corp., 320 So. 2d 917

(La. 3rd Cir. 1975).

Other examples of the distinct and separable applications

of the term “navigability” indude: Title to beds of lakes and

streams for federal purposes as in Gilman v. Philadelphia,

70 U.S. (3 Wall.) 713 (1865); Shively v. Bowlby, 152 U.S. 1

(1894); United States v. Holt State Bank, 270 U.S. 49

(1926); and United States v. Utah, 283 U.S. 64 (1931); title

to beds of lakes and streams for state purposes as in Port

of Seattle v. Oregon and Washington Railroad Co., 255 U.S.

56 (1921); and, riparian rights as in Oklahoma v. Texas,

258 U.S. 574 (1922); United States v. Utah, 283 U.S. 64

(1931); and Oregon ex rel. State Land Board v. Corvallis

Sand and Gravel Co., 429 U.S. 363 (1977).

This Court explicitly recoguized that the term “navi-

gability’’ has legally distinct applications and meanings in

United States v. Appalachian Electric Power Co., 311 U.S.

377 (1941), when Justice Reed stated:

Although navigability to fix ownership of the river

bed or riparian rights is determined . . . as of the

formation of the Union in the original states or

the admission to statehood of those formed later,

navigability, for the purpose of the regulation of

commerce, may later arise. An analogy is found in

admiralty jurisdiction, which may be extended

over places formerly non-navigable. 311 U.S. at

408.

The Corps of Engineers, which has been delegated authori-

ty by Congress over navigable waters, also recognizes that the

term “navigability” may have different applications and

meanings. In the Corps’ regulations defining ‘navigable

waters of the United States,” it is stated that “this regula-

tion . . . is used to define authorities of the Corps of En-

gineers.”’ 33 C.F.R. Section 329.1. These regulations also

make clear that “precise definitions of navigable waters or

navigability are ultimately dependent on judicial interpreta-

tion,” but the Corps’ definition “under this regulation are

considered binding in regard to the activities of the Corps

of Engineers.” 33 C.F.R. Section 329.3

With the foregoing analysis in mind it becomes obvious

that prior to reaching into the myriad of cases cited by

Petitioners and the Solicitor General and pulling out a

definition of navigability, it is essential first to clearly

delineate for what purpose navigability will be used and then

apply the proper scope of the term. The purpose behind the

exercise of federal power under the Commerce Clause is of

utmost importance and deserves careful analysis. In the pre-

sent controversy, the only application of the term ‘“‘navi-

gability” that is before the Court is its application insofar

as the federal navigation servitude is concerned.

B. The Navigation Servituue is More Limited in Purpose,

Justification, and Scope Than Federal Regulatory Juris-

diction.

Although the federal navigation servitude and federal

regulatory jurisdiction are both powers derived from the

Commerce Clause and may have initially been coincidental in

scope, only similarities exist now, as any rational limits of

the navigation servitude have been far exceeded by federal

regulatory power. The purpose of the navigation servitude is

to preserve the nation’s public waterways against private ob-

structions, while regulatory authority is as broad as the full

power of Congress under the Commerce Clause.

The navigation servitude, carried over from English Com-

mon Law via the Commerce Clause, was preserved in the

Northwest ordinance and in the various Organic Acts where-

by states joined the Union. The Louisiana Organic Act, 2

Stat. 701, stated in part:

Provided, that it shall be taken as a condition upon

which the said state is incorporated in the Union,

that the river Mississippi, and the navigable rivers

and waters leading into the same, and into the

Gulf of Mexico, shall be common highways, and

forever free, as well to the inhabitants of the said

state as to the inhabitants of other states and the

territories of the United States, without any tax,

duty, impost or toll therefore, imposed by the

said state... 2 Stat. at 703.

This provision was characterized by Justice Field in

Hamilton v. Vicksburg, Shreveport and Pacific Railroad

Co., 119 U.S. 280, 285 (1886) as “. . . having but one object;

namely, to insure a highway equally open to all without

preference to any, and unobstructed by duties or tolls, and

thus prevent the use of the navigable streams by private

parties to the exclusion of the public, and the exaction of

any toll for their navigation.” See also Huse v. Glover, 119

U.S. 547, 548 (1886).

As this nation’s commercial needs have grown, so has the

definition of navigation as seen in the discussion above. The

Rivers and Harbors Act, now codified at 33 U.S.C. 401 et

seq., was first enacted in 1890 to prohibit unauthorized ob-

structions to the navigable capacity of national waters.

Wyandotte Transportation Co. v. United States, 389 U.S.

191 (1967). Until recent times, the Act was usually applied

to regulate structures obstructing navigation on naturally

navigable-in-fact waterways. Union Bridge Co. v. Uniied

States, 204 U.S. 364 (1907); Louisville Bridge Co. v. United

States, 242 U.S. 409 (1917). ‘‘As so applied, the scope of

federal regulation was comparable to the scope of the navi-

gation servitude. In recent times, however, the extent of

regulation has been greatly expanded and now far surpasses

the limits of the navigation servitude.” 12

The Rivers and Harbors Act with its origin in the Com-

merce Clause has provided the basis for expansive regulation

by Congress and the U.S. Army Corps of Engineers. Seeds

of regulatory expansion were sown in United States v. Rio

Grande Dam and Irrigation Co., 174 U.S. 690 (1899) where-

in this Court stated: '

It is not a prohibition of any obstruction to the

navigation, but any obstruction to the navigable

capacity, and anything wherever done or however

12. Kaiser Aetna v. United States of America, Docket No. 78-738. Pe-

titioners’ Brief at p. 40.

done, within the limits of the jurisdiction of the

United States which tends to destroy the navi-

gable capacity of one of the navigable waters of

the United States, is within the terms of the pro-

hibition. (emphasis ours).174 U.S. at 708. See

also United States v. Republic Steel Corp., 362

U.S. 482, 487488 (1960).

The Rivers and Harbors Act is no longer merely a statute

for protection of public navigation but has been extended to

cover major pollution, environmental, and conservation

problems. United States v. Republic Steel Corp., 362 U.S.

482 (1960); United States v. Standard Oil Co., 384 U.S.

224 (1966).

Congress has further extended federal regulatory power by

virtue of the Commerce Clause in the various flood control

acts. State of Oklahoma ex rel. Phillips v. Guy F. Atkinson

Co., 313 U.S. 508 (1941); United States v. Grand River Dam

Authority, 363 U.S. 229 (1960). And federal regulatory

power has been extended still further in the Federal Water

Pollution Control Act of 1972, 33 U.S.C. 1251 et seq.

wherein navigable waters are defined to include “the waters

of the United States.” The Circuit Courts have interpreted

this language to include discharges into non-navigable as well

as navigable streams. United States v. Ashland Oil and

Transportation Co., 504 F.2d 1317 (6th Cir. 1974); Leslie

Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978). ‘“Con-

gress clearly meant to extend the Act’s jurisdiction to the

constitutional limit...” Environmental Protection Agency

v. State Water Resources Control Board, 426 U.S. 200

(1976).

So unfettered is this control of Congress over

navigable streams of the country that its judg-

ment ... is conclusive, United States v. Chandler-:

Dunbar Water Power Co., 229 U.S. 53 (1913) at

64.

Recalling that the only issue before this Court is the

proper limit of the federal navigation servitude, Respondent

believes that it is essential to recognize the distinction be-

tween the servitude and Congressional power to regulate

under the Commerce Clause. For this reason the position of

Petitioners and of the Solicitor General that the navigation

servitude goes hand in hand with federal regulatory power

over “navigable waters’ cannot be sustained.

This Court has on more than one occasion recognized that

the navigation servitude is more limited in scope than federal

regulatory jurisdiction. This premise was first hinted at in

1903 when Justice Brown, speaking of Ex Parte Boyer,

supra and admiralty jurisdiction, said:

It has never been overruled or questioned, and

must be treated as settling the jurisdiction of the

admiralty court over the waters of any artificial

canal which is the means of communication be-

tween ports and places in different states and

territories. It is not intended here to intimate

that, if the waters, though navigable, are wholly

territorial and used only for local traffic . . .

they are to be considered as navigable waters of

the United States. (emphasis ours). Perry v.

Haines, 191 U.S. 17, 28 (1903). :

More recently, and referring specifically to the navigation

servitude, this Court noted the distinction between it and

federal regulatory jurisdiction and emphasized the more

limited nature of the navigation servitude.

It is not the broad constitutional power to regu-

late commerce, but rather the servitude derived

from .nat power and narrower in scope, that frees

the government from liability in these cases. When

the government exercises this servitude, it is exer-

cising its paramount power in the interest of navi-

gation, rather than taking the private property of

anyone. (emphasis ours), United States v. Kansas

City Life Insurance Co., 339 U.S. 799, 808 (1950).

Thoughthis case was dealing with the issue of just compen-

sation, it illustrates one of the most important reasons why

the navigation servitude cannot be equated with full federal

regulatory power under the Commerce Clause. When the

federal navigation servitude lawfully attaches to a navigable

water, not only does it afford a public right of access to sur-

face waters, but it is the servitude which lawfully permits

the use, dredging, flooding, or taking of the bed up to the

ordinary high water mark by the government, all without

compensation to property owners. Scranton v. Wheeler,

179 U.S. 141 (1900); United States v. Chicago, Milwaukee,

St. Paul and Pacific Railroad Co., 312 U.S. 592 (1941);

United States v. Kansas City Life Insurance Co., 339 U.S.

799 (1950); United States v. Virginia Electric and Power

Co., 365 U.S. 624 (1961); United States v. Rands, 389 U.S.

121 (1967).

The purpose of the navigation servitude was only to aid

navigation. United States v. Kansas City Life Insurance Co.,

supra; United States v. Rands, 389 U.S. 121, (1967). The

servitude should not be enlarged beyond its purpose under

the guise of federal regulatory power which has a different

purpose.

The plenary federal power over commerce must be

able to develop with the needs of that commerce

which is the reason for its existence. It cannot

properly be said that the federal power over navi-

gation is enlarged by the improvements to the

waterways. It is merely that improvements make

applicable to certain waterways the existing power

over commerce. United States v. Appalachian

Electric Power Co., 311 U.S. 377, 409 (1940).

When these distinctions are discerned, the irrelevance of

much of the argument and citations of authority by Petition-

ers and the Solicitor General become obvious. They are

concerned with navigability for purposes other than that at

issue in this case. The only application and meaning of the

term “navigability” presently at issue before this Court is

its relation to the federal navigation servitude. With the pur-

poses of the servitude in mind and the fact that it allows un-

compensated takings, the navigation servitude can in no way

be considered inseparable from federal regulatory jurisdiction

under the broadest Commerce Clause application.

C. The Exercise of Federal Power Over Navigable Wat Is

Limited by the Fifth Amendment to the U.S. Constitution.

The Fifth Amendment to the United States Constitution

guarantees that ‘‘private property shall not be taken for pub-

lic use without just compensation.”’ This guarantee becomes

relevant to Respondent when it is recognized that “confisca-

tion may result from a taking of the use of the property with-

out compensation quite as well as from taking of the title.”

Chicago, Rock Island, and Pacific Railroad Co. v. United

States, 284 U.S. 80, 96 (1931). Although the navigation ser-

vitude is derived from federal power to regulate conferred

by the Commerce Clause, in exercising those powers, Con-

gress must respect the private property guarantees of the

Fifth Amendment.

All the cases concur in holding that the power of

Congress to regulate commerce, and therefore

navigation, is paramount, and is unrestricted ex-

cept by the limitations upon its authority by the

Constitution. Of course, every part of the Consti-

tution is as binding upon Congress as upon the

people. The guarantees prescribed by it for the

security of private property must be respected by

all.

** * *

Undoubtedly compensation must be made or

secured to the owner when that which is done

is to be regarded as a taking of private property

for public use within the meaning of the Fifth

Amendment of the Constitution; and of course in

its exercise of the power to regulate commerce

Congress may not override the provision that just

compensation must be made when private property

is taken for public use. What is private property

within the meaning of that Amendment, or what is

a taking of private property for public use, is not

always easy to determine. No decision of this

Court has announced a rule that will embrace every

case. Scranton v. Wheeler, 179 U.S. 141, 162,

153 (1900). See also United States v. Cress, 243

U.S. 316, 320 (1917); Monongahela Navigation

Co. v. United States, 148 U.S. 312 (1893).

“Though the Congressional power over the regulation of

commerce is far reaching, that power is limited by the due

process and taking clauses of the Fifth Amendment.”’ United

States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3rd Cir.

1974). Since the navigation servitude finds its constitutional

protection in the Commerce Clause, and since it is said that

the Rivers and Harbors Act was enacted to protect the navi-

gation servitude ,'9 it must be assumed that Congress in-

tended to respect the limitations on power of the Fifth

Amendment when the Rivers and Harbors Act was first en-

acted in 1890. Therefore, Petitioners’ claim to protection

under the Rivers and Harbors Act can only be sustained as to

those waters subject to the navigation servitude as limited by

the Fifth Amendment.

As has been previously mentioned, when the federal navi-

gation servitude lawfully attaches to a navigable water, it

not only affords a public right of access to surface waters,

but also lawfully permits the use or taking of the bed up to

the ordinary high water mark by the government without

compensation to property owners. Scranton v. Wheeler,

179 U.S. 141 (1900); United States v. Kansas City Life In-

surance Co., 339 U.S. 799 (1950); United States v. Rands,

389 U.S. 121 (1967) and authorities cited therein. Since the

application of the servitude may result in the loss of valuable

private property rights, this Court early mandatec that the

limitations imposed by the Fifth Amendment must be ob-

served. The navigation servitude should never be exercised

in a Constitutional vacuum.

The general rule that private ownership of proper-

ty in the beds and waters of navigable streams is

subject to the exercise of the public right of navi-

gation, and the governmental control and regula-

tion necessary to give effect to that right, is so

13. United States v. Republic Steel Corp., 362 U.S. 482 (1960).

fully established and, and is so amply illustrated by

recent decisions of this Court, that a mere refer-

ence to the cases will suffice (citations omitted),

. But this rule, like every other, has its limits,

and in the present cases, which require us to as-

certain the dividing line between public and pri-

vate right, it is important to inquire what are

“navigable streams’ within the meaning of the

rule. United States v. Cress, 243 U.S. 316, 320-

321 (1917). 14

See also Monongahela Navigation Co. v. United States, 148

U.S. 312 (1893); United States v. Rands, 389 U.S. 121

(1967). In Monongahela Navigation Co. v. United States,

this Court said:

Congress has supreme control over: the regulation

of commerce, but if in exercising that supreme

control, it deems it necessary to take private prop-

erty, then it must proceed subject to the limita-

tions imposed by this Fifth Amendment, and can

take only on payment of just compensation. 148

U.S. at 336.

At this point it becomes relevant to review the Fifth

Amendment limitations spoken of in these cases that are im-

posed on the exercise of the navigation servitude. Respon-

dent submits this limitation is to be found in the waterways.

natural existence. All of the authorities cited previously re-

garding the term ‘‘navigability” were concerned with rivers

14. This Court later limited its holding in United States v. Cress to the

facts there presented in United States v. C.M., St. P. and P. R. R. Co.,

312 US. 592 (1941). That limitation was not directed to the Fifth

Amendment limit on the exercise of the navigation servitude.

and streams wholly or in substantial part navigable in thei

natural condition, not waterways artifically created on pri-

vate fast land. ‘‘Navigability” grew from those waters navi-

gable-in-fact '5 to those waters capable of commerce '®

to those waters made navigable with reasonable improve-

ments .'7 There is not a single decision of this or any other

American or English Court holding that wholly artificial

canals constructed on private fast land by private landowners

at private expense automatically become “‘navigable waters

of the United States” for the purpose of giving the public

_ generally full and free access to those canals, and thus to the

lands of the owners. And it can hardly be contended that

constructing a canal through fast land is a ‘‘reasonable im-

provement” of an existing waterway.

The prior decisions dealing with artificial canals, as we

have seen, hold only that such canals become “navigable

waters of the United States” for the purpose of admiralty

jurisdiction and Congressional regulation under the broad

powers of the Commerce Clause. On the other hand the

navigation servitude, “narrower in scope,”’ allows uncompen-

sated government taking because the owner has had “‘ample

notice over the years thet such property is subject to a domi-

nant public interest.”” The owner’s title to the property is

therefore said to be “imperfect’’. United States v. Kansas

City Life Insurance Co., 339 U.S. 799, 808 (1950).

Only fantasy would allow one to believe that the owner of

fast land who has constructed a canal thereon at his own ex-

pense was on any kind of notice tiat his title was imperfect.

While they may be subject to regulation, private property

15. The Danie! Ball, 77 U.S. (10 Wall.) 557 (1870).

16. The Montello, 87 U.S. (20 Wall.) 430 (1874).

17. United States v. Appalachian Electric Power Co., 311 U.S. 377

(1940).

rights cannot be taken without compensation. After recog-

nizing that the navigation servitude is limited by the Fifth

Amendment guarantees of due process and just compensa-

tion, this Court has stated:

By an unbroken current of authorities it has be-

come well established that the test of navigability

in fact is to be applied to the stream in its natural

condition, not as artificially raised by dams or

similar structures; that the public right is to be

measured by the capacity of the stream for valu-

able public use in its natural condition; that ripari-

an owners have a right to the enjoyment of the

natural flow without burden or hindrance imposed

by artificial means, and no public easement beyond

the natural one can arise without grant or dedica-

tion save by condemnation, with appropriate

compensation for the private right. United States

v. Cress, 243 U.S. 316, 321 (1917).

Though the test of navigability in fact has grown with the

needs of commerce, the limits of the Fifth Amendment still

exist. It is the task of this Court to determine the present

extent of those limits in relation to the navigation servitude.

Respondent urges this Honorable Court to agree that artifi-

cial canals constructed with private funds in fast land pri-

vately owned lie within the protection of the Fifth Amend-

ment limitation.

Il.

THE FEDERALLY PROTECTED RIGHT OF THE PUBLIC

TO NAVIGATE OVER THE NAVIGABLE WATERS OF

THE UNITED STATES HAS NO APPLICATION TO RES-

PONDENT’S WHOLLY ARTIFICIAL CANAL SYSTEM.

A. Respondent’s Artificial Canals Constructed Entirely on

Private Property at Pricate Expense Are Considered Private

Under State and Federal Law.

For a proper determination of what is at issue in this case

it must be emphasized that the question of whether Respon-

dent’s canals are “‘navigable waters of the United States’’ is

not involved. Respondent concedes that for some applica-

tions of federal power some of the canals may be so consider-

ed. The only issue presented is whether Respondent’s wholly

artificial canals constructed on private fast land at private

expense are subject to the federally protected right of the

public to navigate over the “navigable waters of the United

States.”’ This case does not involve naturally navigable water-

ways or improvements, reasonable or otherwise, to any kind

of preexisting river, bayou, stream or pond.

Louisiana law is clear on the status of Respondent’s canals

and makes it clear that these canals are private property sub-

ject to the control and use of the owner. The Louisiana

Court of Appeal for the Third Circuit based its decision in

the opinion below on longstanding statements of Louisiana

law. In the early case of Harvey v. Potter, 19 La. Ann. 264

(1867), the Louisiana Supreme Court held that the public

does not have a right of access to a canal constructed entirely

on private lands exclusively at the owner’s expense. In dis-

cussing the navigation servitude and the Fifth Amendment

limitations on the servitude, the court stated:

It is not easy to perceive how, in such a case, the

public become seized of the right of gratuitous use

of advantages afforded by individual labor and en-

terprise. The right of expropriation, it is true, be-

longs to the public, and the land and canal so con-

structed upon it, might, under constitutional and

legal provisions, become public property, and be

appropriated to public use. But where no public

need exists for such conversion and the property

in its entirety is subjected to private ownership,

it would seem that the proprietor has the right

in any manner he deems best, to render that

property most productive, subject only to the rule

“sic utere tuo ut alienum non laedas”. ... Private

property shall not be taken for public uses, with-

out ample renumeration to the owner. This is a

fundamental principle. So it would seem clearly

to follow that private property cannot be used by

the public without compensation for that use. 19

La. Ann. at 264-265.

Louisiana courts have had other occasions in which to

make clear their position on the private ownership of artifi-

cial canals constructed on private property. In Ilhenny v.

Broussard, 172 La. 895, 135 So. 669 (1931) and in Nation-

al Audubon Society v. White, 302 So. 2d 660 (1974), writ

denied, 305 So. 2d 542 (1975), the Louisiana courts held

that a private artificial canal constructed on private property

was not subject to public use.

We believe that a canal built entirely on private

property, with private funds and for private pur-

poses, is a private thing, for the same reasons that

a road built on private property for private pur-

poses is a privately owned road. 302 So. 2d at

665.

In reference to these decisions, Petitioners assert that ‘“‘the

coarts of Louisiana appear to have been on the wrong side of

this issue for an extended time.’ (Petitioners’ Brief p. 13).

This statement is made after incorrectly assuming that in

each of these cases the Louisiana court concluded that “‘navi-

gability in fact, relationship to interstate commerce, and,

generally, all other indicators of status as navigable waters of

the United States are irrelevant if waterways are privately

constructed by private parties on privately owned lands.”

(Petitioners’ Brief pp. 12-13). In the cases cited by Petition-

ersthe issue was not whether the waterways were ‘navigable

waters of the United States’’ but only if a right of free public

access attached to them. As already explained, the charact-

er of waterways as “navigable waters of the United States”

depends upon the intended application of that term. This

becomes readily apparent when one examines the authorities

cited by Petitioners in support of the proposition that the

Louisiana courts are on the wrong side of the issue. The

cited cases dealt with federal power to regulate under the

Commerce Clause and did not involve any application of the

navigation servitude. The concepts are distinct and separable

and the term “‘navigability” does not have the same applica-

tion in each.

18. Petitioners cite United States v. Appalachian Electric Power

Co., 311 U.S. 377 (1940) and United States v. Sexton Cove Estates,

inc.389 F.Supp. 602 (S.D. Fla. 1975), affirmed, 526 F.2d 1293 (5th

Cir. 1976). In Appalachian the United States sought to enjoin a power

company from constructing a dam without a permit from the Federal

Power Commission. In Sexton Cove Estates the issue was whether a

property developer must seek permits from the Corps of Engineers be-

fore engaging in dredging operations that were proven to have an ad-

verse affect on navigable waters. Both cases involved Commerce Clause

regulatory power and neither involved the application of — access

under the navigation servitude. Petitioners also cite United States v.

Kaiser-Aetna, 584 F.2d 378 (9th Cir. 1978), certiorari granted, Docket

No. 78-738. The Court of Appeals in Kaiser-Aetna “took a familiar

concept , i.e., all public navigable waters are subject to federal regula-

tion, and applied it in reverse, concluding that waters subject to federal

regulation are public waters subject to the federal navigation servitude.”

(Kaiser Aetna v. United States, Docket No. 78-738, Brief of the Peti-

tioners at p. 29 and accompanying notes). As correctly pointed out by

counsel for Kaiser Aetna in that case, no opinion of the Supreme Court

so holds and the Ninth Circuit failed to cite authority for the proposi-

tion. Cases cited dealt with the Federal Water Pollution Control Act.

EO oOw~w==w LE _———— anne

Since the right of public access emanating from the federal

navigation servitude has its origin in English law and the

‘public common of piscary,”’ it becomes relevant to examine

just what the English law was on the subject of artificial

canals constructed on private property. The Solicitor Gen-

eral quotes from De Jure Maris by Sir Matthew Hale, Lord

Chief Justice during the reign of Charles II, in support of his

position but in doing so omits part of Lord Hale’s statement

in reference to artificially constructed waters. (See U.S.

Brief at page 28-29). Respondent believes Lord Hale’s com-

plete comments are relevant.

But if any person at his own charge makes his own

private stream to be passable for boats or barges

either by making of locks or cutts or drawing to-

gether other streams; and thereby that river, which

was his own in point of propriety, became now

capable of carriage of vessels, yet this seems not

to make it juris publici, and he may put it down

again or apply it to his own private use. Hale, De

Jure Maris, Part 1, Chap. 3.

The Solicitor General indicates that Lord Hale’s opinion

did not accurately represent English law and cites Simpson

v. Attorney-General (1904) A.C. 476, and Case v. The Mid-

land Railway Company, 27 Beavan 247 (1859), to support

this proposition. However, both of these cases dealt with the

construction of canals and improvement of waterways under

either a Parliamentary Act or a King’s Charter. In both cases

the instrument allowing the creation of the waterway re-

quired that they be kept open to the public. Thus the cases

are inapposite. In fact, Simpson v. Attorney-General sup-

ports the proposition that Lord Hale’s opinion did accurate-

ly represent English common law. Those commenting on the

law of Engiand since that time agree.

It cannot be implied from the fact that a person,

at his own expense, has made his private stream

navigable by making locks or cuts or drawing to-

gether other streams, that the public has any rights

of navigation thereover, for he may destroy it or

apply it to his own private use. Earl of Halsbury,

The Laws of England, 39:731, at p. 541 (1962);

citing Hale’s De Jure Maris and Simpson v. At-

torney General. In accord, H. Coulson and U.

Forbes, The Law Relating to Waters, p. 485 (4th

Ed, 1924).

The precedent which is relevant to this controversy may be

found in the maritime law of the nineteenth century, the

time during which private canals flouished and constituted a

significant method of maritime transportation in the United

States. At that time it was clear that the law relating to arti-

ficial water courses was totally different from the law relat-

ing to natural streams. Although artificial waterways con-

structed on private land and used as a highway for commerce

may be subject to federal admiralty jurisdiction and federal

regulatory power, they remain private vis-a-vis the public

generally and are not burdened with a servitude of naviga-

tion.

Private canals built upon private property are sub-

ject to the control of their owners. The use of

such canals being merely permissive the public

acquire no vested rights therein. 6 Encyclopedia of

Law and Procedure 267 (1903) at 276.

Similarly,

A waterway which is a mere private enterprise is

like a private road over which the public may. be

I, ,,GQ,G,G,G,G,, OE

permitted to travel, but on which, unless dedicat-

ed to its use, it obtains no vested rights. The pro-

prietor of a tract of land has the right to excavate,

entirely within his own boundaries, and exclusive-

ly at his own expense, a canal, for the purposes of

navigation, and to require payment for its use from

those who choose to avail themselves of its facili-

ties. 5 American and English Encyclopedia of law

Ill (1897) at 114. 19

But no appropriation of land or right to the flow-

age can be made without compensation, nor until

the requirements of the law authorizing such tak-

ing have been complied with. 28 American and

English Encyclopedia of Law (1895) at 1044, 20

These nineteenth century decisions have been followed in

more recent times.

Where waters were not previously navigable, the

public does not acquire the right to navigate an

artificial channel made by the owners of the

underlying soil. 65 Corpus Jurus Secundum,

‘Navigable Waters”, §20, at p. 132.

19. Citing: Potter v. Indiana, etc., R. Co., 95 Mich. 389, 54 N.W. 956;

Ward v. Warner, 8 Mich. 508, Harvey v. Potter, 19 La. Ann. 264, 92

Am. Dec. 532; Wadsworth v. Smith, 11 Me. 278, 26 Am, Dec. 525.

20. Citing: Binney v. Chesapeake, etc., Cana/ Co., 8 Pet. (U. S.) 101;

Farnum v. Blackstone Canal Corp., 1 Sumn (U.S.) 46; Trenton Water

Power Co. v. Raff, 36 N.J.L. 336; Ten Eyck v. Delaware, etc., Canal

Co., 18 N.J.L. 201; 37 Am, Dec, 233. :

21. Citing: King v. Muller, 67 A. 380, 73 N.J. Eq. 32; Fairchild v.

Kraemer, 204 N.Y.S. 2d 823, 11 A.D. 2d 232. See also 12 ©.J.S.

“Canals”, §.31; 13 Am. Jur. 2d, “Navigable Waters”, §& 92.

Though this Court has applied federal admiralty juris-

diction and regulatory power to other than natural water-

ways, the navigation servitude has never been applied to

artificial canals constructed on fast land. In fact the servi -

tude has never been applied to non-navigable waters without

an express determination by Congress that inclusion was

essential to a comprehensive navigable waters improvement

program. United States v. Cress, 243 U.S. 316, 325-326

(1917). It becomes more important than ever to recognize

that the navigation servitude is not coextensive with Com-

merce Clause regulatory authority.

Veazie v. Moor, 55 U.S. (14 How.) 568 (1852), though not

directly on point with the present controversy, is analogous.

There the state of Maine conferred on Moore the right to im-

prove the upper non-navigable stretches of a navigable river

and to have the exclusive license to navigate the improved

stretch. Veazie contested this authority since he was licens-

ed for the coasting trade by the United States as in Gibbons

v. Ogden.2? In distinguishing Gibbons v. Ogden, this

Court recognized the lack of a public right to navigate pri-

vately improved non-navigable internal streams.

A license to prosecute the coasting trade, is a war-

rant to traverse the waters washing or bounding the

coasts of the United States. Such a license conveys

no privilege to use, free of tolls, or of any con-

dition, whatsoever, the canals constructed by a

State, or the water courses partaking of the charac-

ter of canals exclusively within the interior of the

State, and made practicable for navigation by the

funds of the state, or by privileges she may have

conferred for the accomplishment of the same end.

The attempt to use a coasting license for a purpose

22) 22 U.S, (9 Wheat.) 1 (1824),

m,"

like this, is, in the first place, a departure from the

obvious meaning of the document itself, and an

abuse wholly beyond the object and the power of

the government in granting it. 55 U.S. (14 How.)

at 575.

Is there any justification for believing that this same reason-

ing should not apply to artificial canals constructed on pri-

vately owned fast land at private expense? The private na-

ture of artificial canals has been recognized by this Court.

Perrine v. The Chesapeake and Delaware Canal Co., 50 U.S.

(9 How.) 172 (1850).

The United States Attorney General has also recognized

the lack of a public right to navigate a state’s privately im-

proved non-navigable internal waters. In a situation involv-

ing an internal waterway in the State of Illinois, the right was

recognized as to improved navigable streams. As to those

parts wholly artificial, the opinion concluded:

Although such an artificial waterway, if a highway

of interstate commerce, would be subject to regu-

lation by Congress and its waters would be within

the admiralty jurisdiction, it does not follow that

the United States could take possession of it, ap-

propriate it, exclude the owner, and deprive the

latter of any return upon it. 36 Opinion U.S.

Attorney General 203, 214 (1930).

Finally, regulations of the United States Corps of En-

gineers recognize the existence of private waterways not

burdened with a public servitude. In so recognizing, the regu-

lation points out the distinction between the servitude and

federal power to regulate.

Ownership does become a controlling factor if a

privately constructed and operated canal is not

used to transport interstate commerce nor used by

the public; it is then not considered to be a navi-

gable water of the United States. However, a pri-

vate water body, even though not itself navigable,

may so affect the navigable capacity of nearby

waters as to nevertheless be subject to certain

regulatory authorities. 33 C.F.R. § 329.8(a)(3).

The purpose of the Louisiana Organic Act and the naviga-

tion servitude was to aid navigation and to preserve the

nation’s natural waterways for public use. It was never in-

tended that the owner of fast land should open his private

property to public use merely because he constructed an

artificial canal thereon. With the realities of South Louisi-

ana geography, the Constitutional right to private property

and Fifth Amendment protection would suffer a serious

blow by any construction of the Louisiana Organic Act or

the navigation servitude which extends their meaning to non-

natural artificial waters. A pretension as far reaching as this

is ‘‘an abuse wholly beyond the object and the power of the

government granting it.” Veazie v. Moor, 55 U.S. (14 How.)

568, 575 (1852).

B. Private Artificial Canals Which Form No Highway of

Interstate Commerce Are Not Subject to the Federal Navi-

gation Servitude Merely Because They Are Navigable in

Fact and Intersect With Navigable Waters of the United

States.

All of the cases that have heretofore dealt with the naviga-

tion servitude have involved natural waters, not artificially

constructed canals. As early as The Daniel Ball, supra, which

extended the term \“‘navigable waters of the United States”

ne NT

to those waters navigable-in-fact, the servitude has been con-

fined to natural waterways. Only those rivers and streams

which in their “natural” or “ordinary” condition were sub-

ject to the servitude should now be so burdened. As already

noted, the broad federal powers of admiralty jurisdiction

and Commerce Clause regulation could go beyond this “nat-

ural or ordinary condition” barrier, but the navigation servi-

tude should not be so extended in the absence of other fac-

tors. The right of private property and the Fifth Amend-

ment stand as a rigid barrier to such an extension. Citation

of authority by Petitioners (Pet. Brief p. 13) and by the

Solicitor General (U.S. Brief pp. 27-28) would lead this Court

to believe that the navigation servitude has been extended to

artificial waterways but, as has already been explained, those

decisions involved application of admiralty jurisdiction or

Commerce Clause regulatory power.

This Court has qualified the term “navigability” with

“natural or ordinary condition” almost every time the op-

portunity has come up to discuss the subject. The multitude

of cases cited by Petitioners and the Solicitor General sup-

port this qualification and other decisions of this Court are

in accord. Brewer Elliott Oil and Gas Co. v. United States,

260 U.S. 77 (1922); United States v. Utah, 283 U.S. 64

(1931). The federal circuit courts express agreement that

“natural or ordinary condition” is a qualification of “navi-

gability.”” Toledo Liberal Shooting Co. v. Erie Shooting Club,

90 F.680 (6th Cir. 1898); Harrison v. Fite, 148 F. 781 (8th

Cir. 1906); Gulf and Interstate Ry. Co. of Texas v. Davis,

26 F.2d 930 (S.D. Tex. 1928); Pennsylvania Water and Power

Co. v. Federal Power Commission, 123 F.2d 155 (App. D.C.

1941) cert. denied,, 315 U.S. 806 (1942); State of Utah v.

United States, 304 F.2d 23 (10th Cir. 1962), cert denied,

371 U.S. 826 (1962); Leslie Salt v. Froehlke, 578 F. 2d 742

(9th Cir. 1978); Goose Creek Hunting Club v. United States,

518 F. 2d 579 (Ct. Cl. 1975). The state courts are in accord.

Potter v. Indiana, 95 Mich. 389, 54 N.W. 956 (1893); Sneed

v. Weber, 307 S.W. 2d 681 (1958).

An additional element of the navigable-in-fact, therefore

navigable-in-law rule is the waterway’s role in interstate com-

merce.

By navigable waters of the United States are meant

such as are navigable in fact, and which by them-

selves or their connection with other waters form

a continuous channel for commerce with foreign

countries or among the states. (emphasis ours).

Miller v. New York, 109 U.S. 385 (1883).

Since the origin of the federal navigation servitude and fed-

eral regulatory jurisdiction are in the Commerce Clause, it as

only reasonable to require the navigable character to be in

relation to interstate commerce. Therefore to be considered

navigable the river or stream must form in its natural or or-

dinary condition an interstate highway for commerce.

Both Petitioners and the Solicitor General allege that

Respondent’s canal system connects with the Gulf of Mexico

and other navigable waters of the United States and thereby

becomes an integral part of those waterways? However

these statements are contrary to the record before this Court.

Respondent’s canal system lies in an area situated primarily

between several “navigable waters of the United States.” It

does not connect with the Gulf of Mexico®4 and does not

form a highway over which commerce may be carried on

with other states. It does not “connect’’ two or more navi-

gable waters of the United States. The canals form a unitary

23. Pet. Brief pp. 5, 12, 15, 16, 23; United States Brief, pp. 2, 8, 10,

28, 30).

24. Appendix pp. 33a, 43a-44a.

canal system which was built and is continuously maintained

for the purpose of providing the most expeditious means of

access to Respondent’s leasehold .2° All of the canals were

constructed in fast land by Respondent, its lessor, or some-

one in privity with its lessor “~ The canals are used by Res-

pondent, its lessor, and its trapping, hunting, fishing and

grazing lessees. Use of the canal system has always been sub-

ject to the permission of Respondent .“" For this reason the

canals are continuously posted and patrolled. 28

Respondent’s canal system is no different from private

roads constructed on a farm for the purpose of planting

cultivating, and harvesting crops. The fact that they intersect

in some places with ‘navigable waters of the United States”

is irrelevant since these few connections only provide an en-

trance into Respondent’s leasehold and do not thereby cause

an interstate highway of commerce to be created. The only

use of the canals is by Respondent’s lessor to gain access to

drilling locations and by Respondent’s lessees to provide ac-

cess to hunting, fishing, trapping and grazing leases. The

fact that canals rather than roads were built to provide access

to Respondent’s leasehold is only a recognition of the physi-

cal impossibility of building roads in low marsh land. With-

out these private artificial canals, most the land in Respon-

dent’s leasehold would be rendered inaccessible and unpro-

ductive.

The federal courts have recognized that in order to be sub-

ject to the navigation servitude the waterway must form an

interstate highway of commerce. Leovy v. United States,

25. Id. pp. 26a, 28a, 31a, 45a.

26. Id. pp. 15a, 30a.

27. Id. pp. 16a, 39a, 42a.

28. Id. pp. 12a-14a, 16a, 51a.

177 U.S. 621 (1900); Dow Chemical Co. v. Dixie Carriers,

Inc., 330 F. Supp. 1304 (S.D. Tex. 1971), aff'd., 463 F.2d

120 (5th Cir. 1972), cert. denied, 409 U.S. 1040 (1972);

Hardy Salt Co. v. Southern Pacific Transportation Co.,

501 F.2d 1156 (10th Cir.) 1974), cert. denied, 419 U.S.

1033 (1974); Minnehaha Creek Watershed District v. Hoff-

man, 449 F. Supp. 876 (D. Minn. 1978), affd., 13 E.R.C.

1009 (8th Cir. 1979).29 Respondent’s canals provide access

into the interior of Respondent’s leasehold and that is all.

They are not transformed into an interstate highway of com-

merce because the owner uses them “‘as access to navigable

waters of the United States for the carriage of his own goods

any more than using a private driveway for access to public

highways by motor vehicle traffic can be said to grant public

access to the driveway.”’?°

29. The Solicitor General cites United States Geophysical Co. v. Vela,

231 F.2d 816 (5th Cir. 1956), for the proposition that Respondent's

canals have become an integral part of navigable waters of the United

States by virtue of their intersection with such waters. However that

case dealt with admiralty jurisdiction over an artificial canal that in fact

supported interstate commerce, Petitioners seem to place great reliance

on United States v. Sexton Cove Estates, 526 F.2d 1293 (Sth Cir.

1976), which we have already distinguished as having involved Corps

of Engineers regulatory authority. In a case decided the same day as

Sexton Cove Estates the Fifth Circuit explained its decision in that

case by saying:

As we have this day explicated th United States v.

Sexton Cove Estates. . ., the Corps may under certain cir-

cumstances exercise jurisdiction over dredging and filling

operations above mean high tide line under Section 403 of

the Rivers and Harbors Act. Prerequisite for such juris-

diction are factual circumstances showing some effect upon

navigable waters, some alteration or modification of either

course, location, condition or capacity of those waters.

(emphasis ours). United States v. Joseph G. Moretti Co.,

526 F.2d 1306, 1309 (5th Cir. 1976). See also United

States v. President, etc., of Jamaica and R. Turnpike Co.,

204 F.759 (2d Cir. 1913).

30. Vaughn v. Vermilion Corporation, Docket No. 77-1819, Louisiana

Landowners Association Brief note 7 at p. 14.

Finally, it is alleged by Petitioners that since Respondent’s

Canals are subject to the ebb and flow of the tide, they there-

by become “navigable waters of the United States’’ and are

burdened with the navigation servitude. It is undisputed that

Respondent’s Canals exhibit some tidal action.?1 However

this is but a reality in the low lying marsh areas of Louisiana’s

coast. The origin of the ebb and flow of the tide test was in

English law and served a purpose suited for English geog-

raphy. Propeller Genessee Chief v. Fitzhugh, 53 U.S. (12

How.) 443 (1851). The test was early declared not to be

“any test at all” by this Court. The Daniel Ball, 77 U.S.

(10 Wall.) 557, 563 (1870).

The rejection of the ebb and flow of the tide te: °: illus-

trated further by this Court’s decision in Leovy v. Jnited

States, 177 U.S. 621 (1900), where the Court consideied the

navigability of Red Pass in the Mississippi River delta. The

Court considered the issue entirely in terms of navigable-in-

fact and did not suggest that any tidal portion of the pass

would for that reason be considered navigable. The lower

federal courts are in accord that the ebb and flow of the tide

does not provide a valid test of navigability. United States

v. American Cyanamid Co., 354 F. Supp. 1202 (S.D. N.Y.

1973), affd., 480 F. 2d 1132 (2d Cir. 1973); United States

v. Sexton Cove Estates, 526 F.2a 1293 (5th Cir. 1976).

The Corps of Engineers has attempted to extend its regu-

latory authority over all waters, artificial or otherwise, which

are subject to the ebb and flow of the tide by declaring such

to be navigable waters of the United States. United States v.

Stoeco Homes, Inc., 498 F.2d 597 (3rd Cir. 1974), cert

denied, 420 U.S. 927 (1975), approved of such an extension

as to a tidal saltwater marsh, but,in relation to an artificial

canal, in United States v. Sexton Cove Estates, the Fifth Cir-

31. Appendix p. 47a.

cuit said:

Exhibition of tidal fluctuation subsequent to ex-

cavation’does not prove alteration or modification

of course, condition, location, or capacity. If it

did, every hole dug in South Florida would be

within the Corps’ jurisdiction. The Corps’ juris-

dictional fingers do not reach that far. 526 F.2d at

1299 (1976).

However, the Corps recognizes that its regulatory jurisdiction

and the navigation servitude are not co-extensive for its regu-

lations concede that “‘a privately constructed and operated

canal”’ not used in interstate commerce remains private. 33

C.F.R. § 329.8(a)(3).

Respondent’s wholly artificial canal system constructed

on private fast land at private expense did not become sub-

ject to a right of public access or navigation servitude merely

because it is navigable-in-fact, exhibits some tidal action and

connects in some places with “‘navigable waters of the United

States”. No decision of this Court has ever held otherwise

and Respondent asks this Honorable Court to rule likewise.

C. Respondent's Canal System Did Not Destroy or Obstruct

Navigable Waters of the United States and This Issue Is Not

a Disputed Fact.

Petitioners claim that ‘‘at all times in this litigation” they

“thave alleged that the old Freshwater Bayou, on and prior co

the time of the development” of Respondent’s artificial

canals “existed in a natural state” and “was a natural and

actual marine highway of commerce” and “‘became unusable

only when” Respondent’s “ancestors in title built the artifi-

cial navigable waterways in the area.” 32 The Solicitor Gener-

32. Petitioners’ Brief pp. 6-7.

al asserts that it is “the unchallenged fact in this case” that a

natural navigable waterway was impaired and allowed to silt

up as a result of cutting a new channel off an existing water-

way.33 Respondent takes issue with these statements. This

allegation does not represent an “unchallenged fact” for the

precise reason ‘that it is not so, has not been alleged at all

times in this litigation, and no direct evidence in the record

supports this assertion.

When Respondent originally filed suit for an injunction

prohibiting Petitioners from. trespassing in Respondent’s

private artificial canals, Petitioners answered alleging that

these canals were subject to a public right of access by virtue

of the navigation servitude. Their allegation that natural

waterways were obstructed or destroyed was not pled as an

affirmative defense as required by Louisiana Code of Civil

Procedure Article 100554 The first time Petitioners made

any mention of obstruction or destruction of naturally navi-

gable waters was by an affidavit in opposition to Respon-

dent’s Motion for Summary Judgment filed shortly before

the day on which the motion was heard. A review of the

affidavit signed by the Petitioners reveals that the affidavit

does not state specific facts within Petitioners’ personal

knowledge that raise material issues for trial as required by

Louisiana Code of Civil Procedure Article 967. Furthermore,

the affidavit was not made on personal knowledge as requir-

ed, Petitioners only alleging that they “‘are aware that ....””

The Solicitor General states that “Petitioners’ claim that

the maintenance of the canal system destroyed the prior

channel was rejected as a matter of law as an insufficient

33. United States Brief p. 31.

34. Appendix pp. 8a-10a.

defense and must be taken as true at this stage in the pro-

ceedings.” 35 Petitioners would likewise have the Court be-

lieve this. 36 Respondent contends that this is patently incor-

rect. The Louisiana Court of Appeal for the Third Circuit

rejected the defense of possible obstruction or destruction

of natural waterways based on Ilhenny v. Broussard, 135 So.

669 (La. 1931). That case held that the subject matter of

diverting the water of a navigable stream had been placed by

Congress under the jurisdiction of the Secretary of War and

it was not for the Louisiana court to fashion such a remedy

as providing access in the new channel. Vermilion Corpora-

tion v. Vaughn, 356 So. 2d 551 (1978) at 554.97

The fact remains that this assertion is not unchallenged

and cannot be accepted as true since it was not raised by

Petitioners in their answer. Even if properly raised the issue

is not free from doubt. The record before this Court sup-

ports the contrary. Little Freshwater Bayou, a drainage

coulee, was silted up by “accretion caused by the westerly

current and bringing the silt from the Atchafalaya River west-

35. United States Brief, Note 4 at p. 4.

36. Petitioners’ Brief p. 7.

37. Petitioners cite this Court’s opinion in Huse v. Glover, 119 U.S.

543 (1886), and claim that it inferentially supports the proposition

that a private party cannot retain exclusive use of a canal that renders

a natural channel unusable (Pet. Brief p. 18). Huse v. G/over is inappo-

site. It dealt with the authority of a state to improve a natural water-

way and charge tolls for the use of the improvements. Philadelphia Co.

v. Stimson, 223 U.S. 605 (1912) and Dwinel v. Barnard, 28 Me. 554

(1848) cited by the Solicitor General are also inapplicable. (U.S. Brief

p. 31). Philadelphia Co. v. Stimson involved an attempt by a state to

restrict the public right of navigation to within the river's ancient lines

which the Court said did not destroy Congressional right to regulate.

Dwinei v. Samnard did in dicta say that when a natural stream is ob-

structed the public should have the same access as they had before;

however, the Court found that there had been no obstruction and prop-

erly held that a person who constructs a private watercourse may with-

hold its use from the public.

ward.” 38 The development of Respondent’s Dewitt Canal

“would not have had any effect on that.” 39 At any rate this

“drainage coulee’’ never supported any traffic other than

trappers in pirogues. 40

The only other natural waterway in the area was Fresh-

water Bayou which terminated at Boat Point, on lands owned

by Respondent’s lessor ,.41 Although Freshwater Bayou may

have been navigable at one point in time42 the Corps of En-

gineers incorporated this bayou into the Freshwater Bayou

Canal which was developed between 1964 and 1968. Res-

pondent and Respondent’s lessor granted a servitude by

gratuitous donation to the Corps of Engineers in 1962 to

construct a new route from Intercoastal City to the Gulf of

Mexico. This project incorporated and re-routed portions of

natural Freshwater Bayou with Six Mile Canal and Belle Isle

Canal to form Freshwater Bayou Canal. Freshweater Bayou

Canal is a “navigable water of the United States’’ and is sub-

ject to a public right of access all by virtue of Respondent’s

gratuitous donation .4° What was originally the entrance to

Freshwater Bayou from the Gulf of Mexico was converted

into a spoil disposal area and completely blocked by the

Corps of Engineers in connection with their construction of

Freshwater Bayou Canal. Any natural navigability ot Fresh-

water Bayou was destroyed when the Corps of Engineers

re-routed it and constructed Freshwater Bayou Canal.

38. Appendix p. 33a.

39. Id.

40. Id. p. 34a.

41. Id. p. 35a.

42. Id.

43. Id. pp. 35a-38a.

No state or federal governmental agencies have ever at-

tempted to assert dominion, control or public access on any

of Respondent’s canals.44 The Corps of Engineers did not

assert any type of servitude when plans were made to con-

struct Freshwater Bayou Canal. The Corps asked for a servi-

tude and it was donated to them by Respondent and Respon-

dent’s lessor. It was the donation of the servitude and the

subsequent construction of Freshwater Bayou Canal that has

caused Respondent’s canals to intersect with “navigable

waters of the United States” in as many places as they do.

Permits from the Corps of Engineers have always been sought

before connecting any artificial canals with “navigable waters

of the United States.” “The Corps has always recognized the

private nature of Respondent’s canals and has never asserted

44. Id. pp. 48a.

45. United States Brief note 18 at p. 32.

46. The Solicitor General points to language in the Corps of Engineers’

permits regarding Respondent's canal which provides that ‘no attempt

shall be made by the permittee or owner to forbid the full and free use

by the public of all navigable waters at or adjacent to the work or

structure.” (U.S. Brief at Note 18, p. 32). The Solicitor General in-

terprets this language as allowing public access in all of Respondent's

canals. The fallacy of this argument is clear beyond any doubt. As pre-

viously noted, neither the Corps of Engineers nor any other state or

federal government or agency has ever attempted to interfere with the

private nature of Respondent's canals. The Corps’ permit referred to

was issued to allow Respondent’s lessor to connect one of the pri-

vate artificial canals involved with a “navigable water of the United

States’’ which may have been burdened with the navigation servitude.

Thus the quoted permit language, when requiring free public access

“at or adjacent to the work or structure,” refers to those intersection

or connection points as the “work or structure” not the entire private

canal system leading into the interior of Respondent's leasehold.

IV.

THERE ARE COMPELLING POLICY CONSIDERATIONS

WHY THE FEDERAL NAVIGATION SERVITUDE

SHOULD NOT BE EXTENDED TO RESPONDENT'S PRI-

VATELY CONSTRUCTED CANAL SYSTEM UPON ITS

PRIVATE LANDS.

For the reasons detailed in the foregoing portions of this

brief, the judgment of the Louisiana courts is correct as a

matter of law and should be affirmed. In addition, the

general rule that law does not grow out of a vacuum, but is

responsive to practical needs and considerations, is appli-

cable and there ce compelling practical and policy reasons

which fortify this conclusion.

The canal system to which public access is herein sought

by Petitioners for their private economic gain is located ina

125,000 acre tract of land leased by Respondent on the

southern coast of Louisiana along the Gulf of Mexico , 47

Louisiana has over four million acres of marshland scattered

along the state’s relatively undefined coast. There is urgent

need for maintaining these marshlands as a habitat for fish

and wildlife.

In common with other land along this coast, Respondent’s

leasehold is characterized by a fragile ecology subject to dis-

turbance by natural forces such as frequent flooding and a

tremendous amount of silt carried into the Gulf of Mexico

by the Atchafalaya River, which drains one-third of the flow

of the Mississippi River, much of which finds its way back

into these marshes, and general erosion caused by both

natural and man-made phenomena. These lands are generally

47. Appendix p. 50a.

Pair fae

recognized to be a unique natural resource as a habitat for

fish and wildlife; this recognition is reflected in a general

consensus that their survival should be protected by careful

management.

This consensus is most clearly evidenced by the fact that

many thousands of Louisiana’s coastal marshlands are cur-

rently under a water management program providing a habi-

tat for migratory water fowl, fur-bearing animals and the

North American alligator. Implementation of this program

requires construction of levees, constant maintenance of

canals, and regulation of water levels and salinity balance.

The success of this program has provided feeding grounds for

the greatest concentration of migratory water fowl on the

Gulf Coast, the population of which far exceeds what could

be sustained under natural conditions

Adjoining Respondent’s Lands are two wildlife refuges -—

the Rockefeller Refuge and Game Preserve on the west,

operated by the State of Louisiana, and the Paul J. Rainey

Wildlife and Game Preserve on the east, operated by the

National Audubon Society. Immediately to the east of and

adjoining the National Audubon Society area is the Russell

Sage Wildlife Management Area, also operated by the State

of Louisiana. In all, the State of Louisiana operates thirty-

five wildlife management areas with a total acreage of nearly

one million acres, many of which lie within the coastal

marshes of Louisiana. Water management programs are con-

ducted on many of these wildlife refuges and management

areas. See A Guide to Wildlife Management Areas, Louisi-

ana Department of Wildlife and Fisheries, 1978.

In the last twenty years the increased demand in this

country for energy sources has caused a rapid growth of oil

and gas exploration efforts in Louisiana’s coastal marshes.

This ‘increased tempo of oil and gas exploration, coupled

with the use of the coastal marshes for inland waterways,

has introduced additional water control problems to the

marshland property owner. It has become necessary to main-

tain canal levees and construct new ones to improve the

marsh or return it to its previous ecological position.”” Tech-

nical Report of the Louisiana Wildlife and Fisheries Com-

mission, Rockefeller Refuge Levee Study, New Orleans,

1959.

Unfortunately, but realistically, the accomplishments of

water and wildlife management programs must be protected

against persons unconcerned with the public good by system-

atic and constant patrolling to prevent selfish and uncontroll-

ed hunting, fishing and trapping and also to prevent the ero-

sion of canal banks from wash created by excessive and reck-

less use of Respondent’s canal system. The nature and extent

of Respondent’s leasehold being such that fencing is imprac-

tical and the canals providing ready access to most parts

thereof, extension of the navigation servitude will as a prac-

tical matter prevent Respondent’s denying access to its canal

system to anyone and its ability to manage and control water

and wildlife will be so severely hampered as to be virtually

destroyed.

The Solicitor General’s argument that “the navigating pub-

lic cannot be expected to know whether the opening to navi-

gable channels is natural or man-made” and this “would re-

introduce the very evil that the navigation servitude was

designed to avoid and would impose an intolerable and un-

workable burden on navigation” “8misconceives the nature of

the canal system herein at issue and the use sought by Petit-

ioners. This system does not form and is not used as a high-

way of commerce nor as a link in a network of highways so

48. United States Brief p. 31.

a ne re

used such that the pretended evil cited by the Sclicitor Gen-

eral would ever occur. Warning signs are prominently posted

wherever Respondent’s canals intersect the boundaries of

Respondent’s leasehold as well as throughout the system at

over 400 locations, so that no one could plead uncertainty

as to what bodies of water constituted Respondent’s private

canals. The Solicitor General’s concern is wholly misplaced.49

Nor, as the Solicitor General argues will the price of public

access be small.50 Respondent has carefully maintained the

area for hunting, trapping and fishing leases. Levees have

been built to provide rich pasture land for Respondent’s

cattle grazing leases. Respondent’s ability to patrol and en-

force its leases, presently facilitated by personal acquaint-

ance with and recognition of its lessees, will be made far

more difficult, if not impossible, by the indiscriminate pre-

sence of “public” users of its canal system providing access

to lease sites. Poachers will be virtually impossible to con-

trol, thus destroying the value of hunting and trapping leases

and the income therefrom and protection of the animal

population from unrestricted taking of wildlife. Grazing

lessees will be threatened with potential loss of their cattle.

The “small price’’ of implementing the ‘navigation servi-

tude”, completely inappropriate to Respondent’s private

canal system, could be effective destruction of Respondent’s

carefully preserved ecologically stable wildlife management

area.

49. The court is respectfully reminded that Petitioners herein are not

users who might inadvertently use Respondent's private waterways in-

cident to their use of public waterways but are residents of the area

having full and intimate knowledge of the location and extent of Res-

sor en $ canal system and desiring to exploit its resources for their

rivate gain.

50. United States Brief p. 13.

Who will pay for the loss suffered by Respondent in

throwing open its leasehold to public access? The United

States has admitted in the Kaiser Aetna case that it has not

budgeted a cent for the maintenance of Kuapa Pond. Is there

any reason to believe the situation will be different in Re-

spondent’s case in which neither the United States nor any

state or federal agency has ever expressed an interest in these

private artificially constructed canals?

In addition to the adverse effect on trapping, hunting, fish-

ing and grazing leases by extending the navigation servitude

to Respondent’s privately constructed and maintained canal

system, there would be a disincentive to mineral develop-

ment. Sinceeccess to drilling sites on Respondent’s 125,000

acres -- and all similar coastal marshland areas — can be econo-

mically had only by dredging canals, potential mineral lessors

would be forced to weigh the possibility of successful mineral

development against the certainty of public access to their

property by use of the canals to provide access to drilling

sites.

Finally, the increase in traffic through Respondent’s canal

system if thrown open to the public will seriously and signifi-

cantly increase erosion of the canal banks and levees. The

lands forming the banks of Respondent’s canals are almost

entirely alluvial and organic in nature; the consequence is

that wave wash from increased and uncontrolled boat traffic

will widen the canals and erode their banks and levees.°”

51. Public access would be certain because application of the navi:

gation servitude would occur upon dredging of the canal, without refer-

ence to whether mineral production occurred or not.

52. The danger of erosion of canal banks and levees is real and not

mere speculation. In a 1961 study done for the Louisiana Wildlife and

Fisheries Commission Refuge Division entitled “Erosion of Canal Banks

on the Rockefeller Wildlife Refuge” this problem was studied in depth

and some rather astonishing statistics compiled. This study, performed

ee a ce i og le ak

Since much, if not most, of the animal population of the

swamps tend to inhabit the banks, such widening and ero-

sion will reduce the fur-bearing animal and alligator popula-

tions, adversely affecting the characteristics of Respondent’s

lands as a wildlife refuge, and contract their habitat, directly

lessening the value of Respondent’s trapping and hunting

leases.

on the Rockefeller Wildlife Refuge which immediately adjoins Respon-

dent’s leasehold on the west, involved identical canal systems construc

ted at about the same time and by the same concerns as Respondent's.

In the introduction to this study the problem is summarized:

The oil company canals on Rockefeller Refuge are widen-

ing at an alarming rate. The average width of canals in the

Humble System is now 212 percent of the original width.

Canals of the Superior System are 242 percent of the ori-

ginal width, about 2 % times. The Humble System canals

are currently widening at an average rate of 0.353 feet per

month. Canal berms and levees in marsh areas are not re

sistant to erosive forces. Therefore, canals will widen in

direct ratio to usage. ‘‘Erosion of Canal Banks on the

Rockefeller Wildlife Refuge.” Page 1.

This study concludes that canals widen primarily as a result of wave

action created by boat traffic. Boat traffic in turn aggravates wind

driven waves creating further erosion. The soft unstable marsh through

which these canals are constructed is not resistent to erosion. “The

canals have widened to the extent that the levees are now being des-

troyed. The average levee height is only a foot and a half above the

surface of the marsh and if the system is to remain a fresh water sys-

tem, future levee raising will be necessary.’

An update to this 1961 study was made in 1964. The statistical

information shows that in 1964 the Humble canals showed from

218% to 269% increase in initial width from their construction in 1940.

In the period from 1958 to 1964 this widening increased from 27% to

49% over initial width. This last percentage information reflects a

— erosion factor of 0.240 feet per month to 0.427 feet per

montn,

The canals on Respondent's property would reflect similar increases

in width. The marsh and canals through which they are built are similar

if not identical. Increased traffic and boat speed from 1964 to the pre

sent have no doubt increased the problem to astronomical proportions.

Canals constructed in marsh will widen and become a traffic mainten-

ance problem when subjected to extended and intensive usage.

Amount of usage and boat speed are factors that the landowner has in

As is pointed out hereinabove, the access sought in these

proceedings to Respondent’s privately constructed and main-

tained canal system is not for passage such as is traditionally

associated with exercise of the navigation servitude. Rather,

access is sought to permit Petitioners to conduct shrimping

and fishing activities for their private gain on what the courts

of Louisiana have historically and consistently held to be

private property subject to the usual and customary incidents

of private ownership. To open Respondent’s canal system to

exploitation by Petitioners for private gain, without compen-

sation to Respondent, under the guise of invoking the servi-

tude of navigation would be a perversion of that doctrine,

unwarranted in law and indefensible in practice. Perhaps it is

best to recall the admonition once given by Justice Holmes

when he said:

We are in danger of forgetting that a strong public

desire to improve the public condition is not

enough to warrant achieving the desire by a shorter

cut than the constitutional way of paying for the

change. Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 416 (1922).

CONCLUSION

In conclusion, first, Petitioners’ application to this court

for relief is procedurally deficient because of their failure to

raise a claim to rights and privileges under the Louisiana Or-

ganic Act in the state court proceeding and because no pri-

vate right of action insures to their benefit under the Rivers

and Harbors Act. Therefore, the writ should be dismissed.

his control as Icng as his property remains private. | Subjecting private

property to public use emasculates the owners ability to control the

usage and therefore prevent the erosion and destruction of his property.

ace Ri Ss Ne Bg te See OER hit Ae oct | aM

Second, Petitioners’ application lacks legal merit because

the navigation servitude sought to be invoked by them is not

coextensive with the Federal power to regulate the use of

navigable waters, but is narrower and is limited by the con-

straints of due process and the necessity for compensation

when private property is taken for public purposes.

Third, Respondent's canal system, having been dredged

through private land, using private funds, for private purposes

and having at all times been maintained and used as a private

system, constitutes private property not subject to the Fed-

eral navigation servitude.

Finally, apart from and in addition to these purely legal

reasons, there are compelling practical considerations mili-

tating the affirmance of the judgment of the Louisiana Court

of Appeal for the Third Circuit.

For all of these reasons, the judgment sought to be review-

ed should be affirmed. iin one

Respectfully submitted,

HARRY McCALL, JR.

L. HAVARD SCOTT, III

CHAFFE, McCALL, PHILLIPS,

TOLER & SARPY

1500 First N.B.C. Building

New Orleans, Louisiana 70112

Telephone: (504) 568-1320

CHARLES R. SONNIER

SILAS B. COOPER, JR.

JOHN E. ORTEGO

COOPER, SONNIER, ORTEGO,

HEBERT & WOODRUFF

Post Office Box 519

Abbevill: , Louisiana 70510

Telephone: (318) 8934766

COUNSEL FOR RESPONDENT

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