Opposition Brief — Blanchard v. Williams, Inc.

> | Supreme Court, U.S,

C4. FILED

YAN 14 1997

No. 96-948

CLERK

In The

Supreme Court of the United States

October Term, 1996

+

CHARLES R. BLANCHARD, SR. and

WEST LOUISIANA CRAWFISH PRODUCERS

ASSOCIATION, INC.,

Petitioners,

WILLIAMS, INC. and ATCHAFALAYA

CRAWFISH CONSERVATION ASSOCIATION,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

.

BRIEF IN OPPOSITION

¢

NEWMAN TROWBRIDGE, JR. Patrick G. TRAcy, JR.

Biccs, TROWBRIDGE, SUPPLE 600 Jefferson St., Suite 910

AND CREMALDI Post Office Box 54001

Post Office Drawer 565 Lafayette, Louisiana 70505

Franklin, Louisiana 70538 Telephone: (318) 266-2340

Telephone: (313) 828-5480 Attorney for Respondent,

Attorney for Respondent, Williams, Inc.

Atchafalaya Crawfish

Conservation Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

LIST OF PARTIES

Atchafalaya Crawfish Conservation Association

Williams, Inc.

ii

CORPORATE DISCLOSURE STATEMENT

Williams Land Company, L.L.C. and 44 Production

Company, L.L.C are affiliates of Williams, Inc.

iii

TABLE OF CONTENTS

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CORPORATE DISCLOSURE STATEMENT ..........

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REASONS FOR DENYING THE WRIT.............

ARGUMENT AND AUTHORITIES.................

1.

THERE IS NO RIGHT UNDER FEDERAL LAW

TO CRAWFISH ON PRIVATELY OWNED

SWAMPLAND ACCESSIBLE BY BOAT FROM

NAVIGABLE WATERS. THE FIFTH CIRCUIT

DECISION IN THIS REGARD IS CONSISTENT

WITH A LONG HISTORY OF JURISPRU-

DENCE FROM THIS COURT.................

NO INDIVIDUAL FEDERAL RIGHTS ARISE

UNDER THE “PUBLIC TRUST” OR “EQUAL

FOOTING” DOCTRINE. MOREOVER, THAT

DOCTRINE HAS NO APPLICATION TO VIR-

TUALLY ALL OF THE PROPERTY IN DIS-

PUTE IN THIS LITIGATION WHICH WAS

ACQUIRED BY THE STATE OF LOUISIANA,

NOT BY RIGHT OF INHERENT SOVER-

EIGNTY UPON ADMISSION TO STATEHOOD,

BUT BY GRANTS FROM THE UNITED STATES

GOVERNMENT AS SWAMP AND OVER-

FLOWED LANDS OR LANDS OTHERWISE

ABOVE THE LIMITS OF HIGH WATER, AND

LATER CONVEYED BY LOUISIANA INTO

PUR WENEEE TPTURUONUEUEE «900 csrccnereceescncsas

iv

TABLE OF CONTENTS - Continued

Page

A. No Individual Federal Rights Arise Under the

Public Trust or Equal Footing Doctrine... ..

B. The Vast Areas of Swamp and Overflowed

Lands In Which the Crawfishermen Claim

Public Use Rights in This Proceeding Are

Unaffected by the Public Trust Doctrine ..

3. THE ACT OF ADMISSION OF LOUISIANA

IV.

INTO THE UNION RECOGNIZED MERELY

THE RIGHT OF FREE PASSAGE UPON THE

MISSISSIPPI RIVER AND OTHER IMPOR-

TANT NAVIGABLE STREAMS AND WATER-

WAYS WHICH BECAME STATE-OWNED BY

RIGHT OF SOVEREIGNTY IN 1812 AND

ESTABLISHED NO FEDERAL RIGHT OR

INTEREST IN SUCH WATERWAYS SAVE

THAT SURRENDERED TO THE UNITED

STATES GOVERNMENT UNDER THE CON-

PELE MERE ccc cccesobsaeseusbawe eae 4 cHaeeenes

THERE IS NO FEDERAL CONSTITUTIONAL

RIGHT TO FISH ON PRIVATELY OWNED

SUBAQUEOUS LAND, EVEN IF NAVIGABLE-

IN-FACT TO COMMERCIAL CRAWFISHER-

DRG 04 bade a be abenkes da Ce vavedievesdedenstes

THE RIGHT TO CRAWFISH IS A PROPERTY

RIGHT INCIDENT TO THE OWNERSHIP OF

THE LAND AND DOES NOT FOLLOW FROM

ANY PUBLIC RIGHT OF PASSAGE ON

WATERS, EVEN IF NAVIGABLE, WHICH MAY

FLOW OVER PRIVATELY OWNED LAND....

Ae 6 eo hn 6 os ceed nds cncbieeeneKekas

16

17

20

23

Vv

TABLE OF AUTHORITIES

Page

JURISPRUDENCE

Amigo Enterprises, Inc. v. Gonzales, 581 So.2d 1082

CA Ba SS, BOGE 4 ice xaos Ch ecakinebiaxteens 26

Appleby v. City of New York, 271 U.S. 364, 46 S. Ct.

Fe See ocd cukaanenapeebe Gaba ber heee ee bera kes 15

Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877) .... 15

Boykin & Lang v. Shaffer, 13 La. Ann. 129 (1858)..... 20

Brown v. Rougon, 552 So.2d 1052 (La. App. 1st Cir.

SOR 0b 6 SCRE Van tes BEa dah On oR ae to Ae Rae 26

Burns v. Crescent City Rod & Gun Club, 41 So. 249

ls ME < cable chew caw da dawanakhdats theaaeares 19

California v. Sierra Club, 101 S. Ct. 1775 (1981)....... 20

Cardwell v. American Bridge Company, 113 U.S. 205,

a ee NS RES hak uses evap eden chev nde vaneuuras 19

Chauvin v. Louisiana Oyster Commission, 121 La. 10,

Te Ts Be BONNE F565 Oe chic cee civ ecdekebesveees 17

Collins v. Gerhardt, 211 N.W. 115 (Mich. 1926)....... 25

Dardar v. Lafourche Realty Company, Inc., No.

85-1015 (E.D. La. 1991), affirmed in part,

vacated in part and remanded 985 F.2d 824 (5th

Sb RPO Kissy us cducy aewbnvecictrendeianas 19, 26, 29

Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97

S Ct 1760, S2 LB. 2d SOR (1977)... eee cece. 21

Edmiston v. Wood, 566 So.2d 673 (La. App. 2d Cir.

SUP eis Uae h ee Wa aOR eae aRes wend Svat e oh O55 27

Escanaba Company v. Chicago, 107 U.S. 678, 2 S. Ct.

A a ere ene eee ner ree ee 19

vi

TABLE OF AUTHORITIES - Continued

Page

Gibson v. United States, 166 U.S. 269, 17 S. Ct. 578,

a ees Se RD cu 6 dks heen cde oak eke oe ean 20

Hampton v. Vicksburg, S & P.R., Co., 119 U.S. 280, 7

ee ee ee PELs, 6: 4 5 Rawle « vce cb oea eee pee 19

Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 35

Ce Mt NE Ds nn 4 as bib 4 Oo eee eat Eee 8, 23

Hoffman Homes, Inc. v. Administrator, U.S. E.P.A.,

Oe Cee Ee Fe CO Se asi ccs Kennet uxewatuseees 22

Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S.

sR eg _: 5 SIRES Sirgen Pun pa Gpar ng Brive «Mes nCmip To ee 15

Kaiser Aetna v. United States, 444 U.S. 164, 100 S.

Ce. 383, 62 L.Ba2a S32 CIG7G) oo ccncecvess 13, 21, 29

Loving v. Alexander, 745 F.2d 861 (4th Cir. 1984) ..... 21

Manchester v. Massachusetts, 139 U.S. 240, 11 S. Ct.

es ae La. A AMPED co's hawk eee Ree Narn ile ee We 21

Martin v. Waddel, 41 U.S. 367, 10 L.Ed. 97 (1842)..... 7

McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248

Lo: SE Pere Perrys eer oe er 21

McDade v. Bossier Levee Board, 109 La. 625, 33 So.

IE 6c) nd tekueee cusnieedeweukaadeeredes 16

McGilvra v. Ross, 215 U.S. 70, 30 S. Ct. 27, 54 L.Ed.

Rs So ak eda hind Chbwdkkae be eae wees cnek nes 14

Moore v. Hampton Roads Sanitation, 557 F.2d 1030

(4th Cir. 1976), cert. denied, 434 U.S. 1012, 98 S.

oe Be eit ee rey er veel yay 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Ne-Bo-Shone Association v. Hogarth, 7 F. Supp. 885

Cae ME EE 0K hala een en baVe tis an Reh earded oes 24

New Orleans Steamship Association v. Plaquemines

Port Harbor & Terminal District, 874 F.2d 1019

Se ee. REG FE cine aNidesededsnaddubeeecdweneas 19

Oregon ex rel. State Land Board v. Corvallis Sand and

Gravel Co., 429 U.S. 363, 97 S. Ct. 582, 50 L.Ed.2d

DP SEOTEE scapkaeras sh and banees We kpanaesecehcns 14

People For Open Waters, Inc. v. Estate of Gray, 643

$0.20 415 (La. App. 3rd Cir. 1994)................ 26

Phillips Petroleum Company v. Mississippi, 484

U.S. 469, 108 S. Ct. 791, 98 L.Ed.2d 877

SEED 5s Cad bsAks Rac edek ne seein waa 10, 15, 24, 26, 28

Pollard’s Lessee v. Hagen, 44 US. 212, 11 L.Ed. 565

SRE Snaces Vin en kncne dss dkchantees ia bie been oes 14, 18

Port of Seattle v. Oregon & W.R. Co., 255 U.S. 56, 41

pe 8 + rye Tr re te rere ore Ee 9

Shively v. Bowlby, 152 U.S. 1, 14S. Ct. 458, 38 L.Ed.

Ra: RR reer cere er pen oe 8, 14, 19

Smith v. Maryland, 18 How. 71, 15 L.Ed. 269 (1855) 21, 23

State v. Barras, 615 So.2d 285 (La. 1993)....... 4, 18, 27

State v. Danzy, 527 So.2d 68 (La. App. 3rd Cir.

Sed bi dees dobus 04040 0s wax seebasy WeecesssVabees

State v. Richardson, 140 La. 329, 72 So. 984 (1916) . .3, 26

State v. Sweet Lake Land and Oil Co., 164 La. 240,

ee OM g-carotene cree

Vili

TABLE OF AUTHORITIES - Continued

Page

United States v. Appalachian Electric Power Co., 311

U.S. -377, GF 5. SR. SOR CIPS) on nc aviccewssee seeves 21

United States v. Cress, 243 U.S. 316, 37 S. Ct. 380

rs ee te tere ee eee TE er eee. rete 14

Vaughn v. Vermilion Corporation, 444 U.S. 206, 100

S. Ct. 999, 62 L.Ed.2d 365 (1979)........... 12, 13, 29

Warner v. Clarke, 232 So.2d 99 (La. App. 2d Cir.

og ETE See rr EPC TOTS Te eC rT eee etsy pepe ee 26

Weber v. Commissioners, 18 Wall. 57 (1873)........ Te

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) ........... 22

STATUTES

Se Sis Sts hed o's £0 ek ceeea cr RELs wip enbeoe esate 17

go 2 5 ade ||) peer rmnrere re rere sy TF 22

SE rey tee Beeps ear Pere en es ee 22

SS WA. GOs OE OO. soo 05 ie cneks Keen aned ose vebrane 16

Act of February 20, 1811, 2 Stat. 642................ 17

Act of March 2, 1849, C. 87, 9 Stat. 352.........000> 16

Act of September 28, 1850, C. 84, 9 Stat. 519........ 16

EM, Fe Se Oe RC a eek ecince cicavicvackwheeueceants 16

Silks TAS Te OE A est o0s hon caeenbeeeneens neeskinnee 16

Li. BEE Bee TE BPA sche spvcadrnass otacckastesaonse 16

Os FE FE Oe Fake hi woven Opie vgdncess cee eewenses 16

ka. © oeee Cee eee See ck vn ok es oteee dear akikie 27

ix

TABLE OF AUTHORITIES —- Continued

La. Civil Code Article 456............. er

SA, Bedc EE MEE» Gr Lei oc 4a 6 $005 as bheerss es hee

ee 6 5 pep remeron arr rr here tree

Ne Seer es Pr er ree PCr ere

a. PR. SO FOE Mikes once in daccepecccapnene

OTHER AUTHORITIES

“The Right to Take Fish and Game in Navigable, Non-

Tidal Waters,” 27 Harvard Law Review 750

CN cid La tebe sania Shenae eh laa eke bes i a¥6

A.N. Yiannopoulos, La. Civil Law Treatise, Vol. 2,

Property, §§56-61, 85 (3rd Ed., 1991)...........

Hargrave, “The Public Trust Doctrine: A Plea for

Precision,” 53 La. Law Rev. 1535 (1993).........

Louisiana State Law Institute’s Advisory Legal Opin-

ion Relative to Non-Navigable Waterbottoms, 53

ee Dee REOUEEE 6 6 vind c cede eo Save bees edes

Madden, Federal and State Lands in Louisiana (1973) ....

Opinion of the Attorney General of the State of Louisi-

Tree CTE ETO C ETRE ET Eee

Submerged Lands Act, House Report No. 215 to

accompany H.R. 4198, Appendix I, 83d Cong.,

1st Sess. (1953), reprinted in 1953 United States

Code Congressional and Administrative News

oP ee Sere errr rT errs Tie eee reer ee

1

STATEMENT OF THE CASE

Introduction

Respondents Williams, Inc. (“Williams”) and

Atchafalaya Crawfish Conservation Association

(“ACCA”), sometimes hereinafter referred to collectively

as the “Landowners,” jointly file this brief in opposition

to the petition for review filed by Charles R. Blanchard,

Sr. (“Blanchard”) and West Louisiana Crawfish Producers

Association, Inc. (“Producers”), sometimes hereinafter

collectively referred to as the “Crawfishermen.”

The Crawfishermen instituted this proceeding seek-

ing a declaratory judgment {.xing the extent and nature

of their rights to commercially crawfish on privately-

owned swamplands comprising in excess of 95,000 acres

situated within the Atchafalaya Basin of Louisiana. The

Crawfishermen also claimed that the Landowners’ acts of

posting, patrolling and threatening trespass actions in

these contested areas were illegal and sought to enjoin

the Landowners from interfering with the alleged public

rights to crawfish in these areas.

Asserting federal question jurisdiction of the matter,

the Crawfishermen claim that there are federally pro-

tected fishery rights in these areas and that they are

protected under the Civil Rights Act from posting and

threatening enforcement of state criminal trespass laws

which may operate to preclude them from their alleged

public right to use and enjoy these lands for their craw-

fishing activities. The Crawfishermen further alleged

pendent jurisdiction of state property law claims to craw-

fish in the contested areas.

Williams is an owner of lands within the Atchafalaya

Basin, some of which are leased to others for commercial

crawfishing. ACCA is a corporation which has as its

principal business the conduct of commercial crawfishing

operations on lands leased from others, including Wil-

liams. The Landowners deny that lands they own or lease

are subject to any public right of access or use for com-

mercial crawfishing purposes. The Landowners filed a

motion for summary judgment. Finding no basis in fed-

eral law for the rights claimed by the Crawfishermen, the

United States District Court for the Western District of

Louisiana issued a memorandum ruling and final judg-

ment in favor of the positions asserted by the Land-

owners, granting the motion for summary judgment and

dismissing the Crawfishermen’s claims, without preju-

dice to their right to pursue their state law claims in the

state courts of Louisiana. 7

On appeal by the Crawfishermen asserting the same

federal rights claimed on this petition for review, the

United States Court of Appeals for the Fifth Circuit

affirmed the District Court judgment, finding no revers-

ible error. The Fifth Circuit did not designate its opinion

for publication, implicitly recognizing that the case was

decided on the basis of well-settled principles of law and

concerned no legal issues of significant public interest.

See 5th Cir. R. 47.5.

Statement of Facts

Contrary to the suggestions contained in the Craw-

fishermen’s petition to this Court, the area in controversy

is not a large navigable waterway fished by these Craw-

fishermen or their ancestors since time immemorial. The

area in controversy is swampland situated entirely within

the Atchafalaya Basin Floodway (the “Floodway”). The

Floodway is a vast area more than 130 miles long which

contains a network of channels, lakes and forested

swamps. There are interstate highways which cross the

Floodway and state roads which exit the interstate and

provide access to trailer parks and campsite develop-

ments which exist throughout the Floodway. Guide

levees now artificially define the area directly affected by

the Floodway’s major water course, the Atchafalaya River.

The area in controversy corsists of about 95,000 acres

of privately owned land located in the lower regions of

eS ARATE

3

the Floodway. The Crawfishermen claim no ownership

interest in these lands. The majority of these lands were

originally acquired by the State of Louisiana from the

United States as swamp and overflowed lands pursuant

to the Swamp Land Grants of 1849 and 1850, prior to

transfer by the State into private ownership.

Moreover, the area claimed by the Landowners and

over which dominion is being exercised does not extend

below the level of ordinary low water.! Not only are the

activities of the Crawfishermen occurring within the for-

ested privately owned portions of the Floodway, those

activities require the actual use of the privately owned

bottom and/or privately owned timber resources. The

activities for which the Crawfishermen seek federal pro-

tection are neither traditional fishing activities nor acts of

navigation. Rather, those activities, which require the

placement of traps on the bottom of the swamp for weeks

at a time and further require the anchoring of the trap to

a tree or stake embedded in the soil, constitute impedi-

ments to navigation.

Throughout this proceeding, the Crawfishermen

have attempted to mask their claims as an effort to recog-

nize a public right to navigate on and use waterways.

Their claims, however, have nothing to do with rights of

1 The area between ordinary low water and ordinary high

water on rivers and streams is defined in Louisiana law as the

“bank.” La. C.C. art. 456. The bank along the riparian

swampland, pursuant to Louisiana law, is privately owned.

Ibid.; see also State v. Richardson, 140 La. 329, 72 So. 984 at

990-991 (1916). The pleadings in this litigation and the

Statement of Material Undisputed Facts filed in connection with

the motion for summary judgment confirm that the activities of

the Crawfishermen occur above ordinary low water.

4

navigation on waterways; rather, they seek a public right

to access and use private swampland, to tie boats and |

nets to trees growing on those lands and to otherwise |

conduct commercial crawfishing operations thereon.? |

In 1990, ACCA embarked on a legitimate business

venture of leasing private property for the purpose of

engaging in commercial crawfishing activities. Many

crawfishermen participated in its leasing/permit pro- |

gram. In order to protect its property rights and those of |

its permittees, ACCA, through its representatives,

brought trespass complaints under Louisiana state law

against crawfishermen placing traps on these private

lands without permission who refused after several

requests to obtain permits or cease crawfishing on the

private swamplands. In both lower courts, these peti-

tioners advanced a groundless civil rights complaint

founded on a naked claim that the District Attorney of

Iberia Parish “presumptively” agreed to prosecute indi-

viduals pursuant to ACCA’s enforcement of its leasing

program and carried out that concerted plan to their

detriment.> That claim was properly dismissed by the

courts below and has been abandoned by the Crawfisher-

men in this petition for review.

2 Thus, contrary to the question for review posed by the

Crawfishermen in their petition to this Court, the real issue in

this case, as recognized by the District Court, is whether federal

law permits the public at large to conduct commercial

crawfishing activities on privately-owned waterbottoms

accessible from navigable waters.

3 In fact, only one prosecution has been pursued by the

District Attorney’s office on complaint of a Williams, Inc. lessee

on lands in controversy in this proceeding outside the ACCA

area, which prosecution was affirmed as legally proper in the state

courts of Louisiana. See State v. Barras, 615 So. 2d 285 (La. 1993).

Five arrests made on complaint of ACCA in the area in

controversy have not been prosecuted beyond bill of

information to date.

5

Finally, it should be noted that behind this effort to

convert private property rights of the Landowners into free

public domain are the Crawfishermen’s objections to permit

fees, seasonal limitations on crawfishing use and the imposi-

tion of statutorily-required mesh size restrictions on the craw-

fishing activities allowed on these private swamplands by

the Landowners in order to conserve and manage the craw-

fish resource. Since the inception of this litigation, the State

of Louisiana through its Department of Wildlife and Fish-

eries has imposed similar limitations upon publicly owned

swamplands within the Sherbourne Wildlife Management

Area of the Floodway in Iberville Parish north of the acreage

in dispute in this proceeding. Emergency regulations

adopted May 4, 1995 include provisions which close certain

tracts of recently forested land to crawfishing, set a crawfish

season on the remainder of the property, require a crawfish

permit and set a fee therefor and restrict use of motor boats

on some of the property (which often occasion damage to the

levees and small trees requiring expensive repair). See La.

Admin. Code 76: VII.177, reprinted at Volume 21 Louisiana

Register No. 5. These regulations were deeined necessary

due to the negative impact on wildlife and timber resources

from unregulated commercial and recreational crawfishing

on the public property. These regulations further demon-

strate that, as properly recognized by the courts below,

crawfishing is an inherently land-based activity which not

only requires use of waterbottoms but often occasions dam-

age to private land resources.

REASONS FOR DENYING THE WRIT

The decision of the United States Court of Appeals

for the Fifth Circuit in this matter affirms a United States

District Court finding that no federal law confers a public

right to crawfish on privately-owned swampland acces-

sible from navigable water, a property law question dic-

tated by state law and properly resolved in the state

courts of Louisiana. That decision creates no conflict with

6

any other United States Circuit Court of Appeals’ deci-

sion or with any relevant decision of this Court. It

involves no conflicting principles of federal law, the set-

tlement of which is of importance to the public.

In their effort to create a’ federal right where none

exists, the Crawfishermen invoke ancient principles of

English law and the Magna Charta, attempt to impress

property law principles of other states upon Louisiana

under the guise of federal common law and to transform

statehood acts intended to assure that navigable water-

ways remain free highways of transportation among the

citizens of the states into a federal right in the public to

create commerce from the private property of others. At

the same time, they ignore modern pronouncements of

the United States Supreme Court and of the Congress of

the United S‘ates, of the Louisiana Supreme Court and of

the Legislature of the State of Louisiana which recognize

that crawfishing rights on privately owned swamplands

are matters of state property law.

As indicated by the argument which follows and by

the disposition of this case by the Fifth Circuit below,

there is no compelling reason for this Honorable Court to

review this case on writ of certiorari inasmuch as the

decision of the lower courts comports with settled federal

law, specific Congressional legislation and over a century

of Supreme Court pronouncements.

7

ARGUMENT AND AUTHORITIES

1. THERE iS NO RIGHT UNDER FEDERAL LAW TO

CRAWFISH ON PRIVATELY OWNED SWAMPLAND

ACCESSIBLE BY BOAT FROM NAVIGABLE

WATERS. THE FIFTH CIRCUIT DECISION IN THIS

REGARD IS CONSISTENT WITH A LONG HISTORY

OF JURISPRUDENCE FROM THIS COURT.

The Crawfishermen argue that questionable princi-

ples of English common law‘ have become federal com-

mon law impressing upon Louisiana’s civil law of

property a federal right to crawfish on privately owned

lands beneath navigable waters. A long line of jurispru-

dence from this Court and specific Congressional legisla-

tion clearly reject such a notion.

In Martin v. Waddel, 41 U.S. 367, 10 L.Ed. 97 (1842),

cited by the Crawfishermen, the Court had this to say:

We do not propose to meddle with the point

which was very much discussed at bar, as to the

power of the King, since Magna Charta, to grant

to a subject a portion of the soil covered by the

navigable waters of the kingdom, so as to give

him an immediate and exclusive right of fishery,

either for shell-fish or floating fish, within the

limits of his grant. The question is not free from

doubt, and the authorities referred to in the

English books cannot, perhaps, be altogether

reconciled. ... And we the more willingly for-

bear to express an opinion on this subject,

because it has ceased to be a matter of much

interest in the United States. For when the revolu-

tion took place, the people of each state became them-

selves sovereign; and in that character hold the

absolute right to all their navigable waters, and the

soils under them, for their own common use, subject

* Note Justice Thompson’s dissent in Martin v. Waddel, 41

U.S. 367 at 418-434.

8

only to the rights since surrendered by the constitu-

tion to the general government. A grant made by

their authority must, therefore, manifestly be tried

and determined by different principles from those

which apply to the grants of the British Crown, when

the title is held by a single individual, in trust for

the whole nation. See 41 U.S. 367 at 410-411

(emphasis added).

In Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 35

L.Ed. 428 (1891), the Court observed, with respect to title

to and use of state sovereignty lands:

Such title being in the state, the lands are subject

to state regulation and control, under the condi-

tion, however, of not interfering with the regula-

tions which may be made by Congress with

regard to public navigation and commerce. The

state may even dispose of the usufruct of such lands,

as is frequently done by leasing the oyster beds in

them, and granting fisheries in particular

localities;. . . . Sometimes large areas so

reclaimed are occupied by cities, and are put to

other public or private uses, state control and

ownership therein being supreme, subject only to the

paramount authority of Congress in making regula-

tions of commerce and in subjecting the lands to

the necessities and uses of commerce... . but it

depends on the law of each state to what waters and

to what extent this prerogative of the state over the

lands under water shall be exercised. See 140 U.S.

381, 382 (emphasis added).

In Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L.Ed.

331 (1894), the Court clarified the nature of the so-called

“public trust” or “equal footing” title by which the fed-

eral government held territory like that of Louisiana prior

to its admission to statehood, observing that:

The new states admitted into the Union since

the adoption of the Constitution have the same

rights as the original states in the tide waters,

9

and in the lands under them, within their

respective jurisdictions. The title and rights of

riparian or littoral proprietors in the soil below high

water mark, therefore, are governed by the laws of

the several states, subject to the rights granted to the

United States by the Constitution.

The United States, while they hold the country

as a territory, having all the powers both of

national and of municipal government, may

grant, for appropriate purposes, titles or rights

in the soil below high water mark of tidewaters.

But they have never done so by general laws,

and, unless in some case of international duty or

public exigency, have acted upon the policy, as

most in accordance with the interest of the peo-

ple and with the object for which the territories

were acquired, of leaving the administration and

disposition of the sovereign rights in navigable

waters, aiid in the soil under them, to the control of

the states, respectively, when organized and admit-

ted into the Union. See 152 U.S. 1, 57-59

(emphasis added).

In Port of Seattle v. Oregon & W.R. Co., 255 U.S. 56, 41

S. Ct. 237 (1921), Justice Brandeis, speaking for a unani-

mous Court, stated:

The right of the United States in the navigable

waters within the several states is limited to the

control thereof for purposes of navigation... .

The character of the state’s ownership in the

land and in the waters is the full proprietary

right. The state, being the absolute owner of the

tidelands and of the waters over them, is free in

conveying tidelands either to grant with them rights

in the adjoining water area or to completely withhold

all such rights. Whether a conveyance made by the

state of land abutting upon navigable water does

confer upon the grantee any right or interest in those

waters or in the land under the same is a matter

10

wholly of local law. Shively v. Bowlby, 152 U.S. 1,

14 S. Ct. 548, 38 L.Ed. 331. Upon such questions

the provisions of the Constitution and statutes of the

state and the decisions of its highest court are

accepted by us as conclusive. 255 U.S. 56 at 63

(emphasis added).

Finally, in its most recent pronouncement on the subject,

this Court, after a lengthy review of the history of law in this

area, stated in Phillips Petroleam Company v. Mississippi, 484

U.S. 469, 108 S. Ct. 791, 98 L.Ed.2d 877 (1988), that:

. . . But it has been long established that the

individual States have the authority to define

the limits of the lands held in public trust and to

recognize private rights in such lands as they

see fit. [citing Shively v. Bowlby]. Some of the

original States, for example, did recognize more

private interests in tidelands than did others of

the 13 - more private interests than were recog-

nized at common law, or in the dictates of our

public trust cases.

... Many coastal States, as a matter of state law,

granted all or a portion of their tidelands to

adjacent upland property owners long ago. Our

decision today does nothing to change owner-

ship rights in States which previously relin-

quished a public trust claim to tidelands such as

those at issue here. See 484 U.S. 475-476, 483.

Consistent with this long history of Supreme Court

pronouncements, the Congress of the United States in

1953 confirmed the ownership and dominion of the States

to the lands beneath navigable waters within their respec-

tive boundaries and of the fisheries resources therein,

declaring in the Submerged Lands Act that:

“Title to and ownership of the lands beneath navi-

gable waters within the boundaries of the respec-

tive States, and the natural resources within such

lands and waters, and the right and power to manage,

administer, lease, develop, and use the said lands and

11

natural resources all in accordance with applicable State

law be, and they are hereby, subject to the provi-

sions hereof, recognized, confirmed, established,

invested in and assigned to the respective States or

the persons who were on June 5, 1950 entitled thereto

under the law of the respective States in which the land

is located, and the respective grantees, lessees or

successors in interest thereof;” See 43 U.S.C.

§1311(a).

“Natural resources” is defined at Section 1301(e) to

include fish, shrimp, oysters, crabs, lobsters and other

marine animal life. The legislative history of the Sub-

merged Lands Act contains the following observations

with respect to the Congressional intent:

The earliest assertions by the States of proprietary

rights in their submerged lands arose in connection

with the regulation of fishing. Except in a few

instances, where international treaties were

involved, State control of fishing in navigable

waters, within the State’s boundaries, has been

exclusive. The principal basis for this right to con-

trol fishing rests upon the proprietary rights of the

State to the waters and the soil thereunder.

* * *

The repeated assertions by our highest Court for

a period of more than a century of the doctrine

of State ownership of all navigable waters,

whether inland or rot, and the universal belief

that such was the settled law, have for all practi-

cal purposes established a principle which the

committee believes should as a matter of policy

be recognized and confirmed by Congress as a

rule of property law.

State control of fishing, especially for sedentary fish,

such as shrimp, oysters, clams, crabs, lobsters, etc.,

has been based upon the State’s ownership of the

12

soil.> Regulations by many States are based upon

the statutory declaration of the state’s owner-

ship of the waters and the fish in them.

(emphasis added)

* *

The uses to which these lands are put are essen-

tially local in character, and are of primary con-

cern to the people of the particular locality. Any

conflict of interests arising from the use of the

submerged lands should be and can best be

solved by local authorities. See Submerged Lands

Act, House Report No. 215 to accompany H.R.

4198, Appendix I, 83d Cong., Ist Sess. (1953),

reprinted in 1953 United States Code Congres-

sional and Administrative News 1385 at

1426-1437.

The suggestion by the Crawfishermen of a conflict

with the decision of this Court in Vaughn v. Vermilion

Corp., 100 S. Ct. 399 (1979), is wholly without merit. The

Vaughn decision is inapposite as a matter of fact and law.

It involved an alleged right of public access to private

navigable canals for travel and fishing. On the questions

certified for review, this Court held that (1) although

channels built on private property with private funds

ultimatly join with other navigable waterways, no general

right of use in the public arises by reason of the authority over

navigation conferred upon Congress by the Commerce Clause

of the Constitution and (2) if, however, the construction

5 La. R.S. 9:1101 declares Louisiana’s ownership of

navigable waters and the beds thereof not under the direct

ownership of any person on August 12, 1910, and its right to the

possession of same, subject only to the paramount right of the

United States to control navigation on such waters. See,

generally, 53 Louisiana Law Review 35 at 43-77. Note also that

La. R.S. 41:1701 recognizes the public fishery interests of the

State in, and its management authority over, state-owned

navigable waterbottoms.

cng ——

13

of the artificial waterways destroyed the navigability of

the surrounding natural waterways, they could become

substituted therefor and subject to public use under the

limitations and guidelines established by the Court's

decision in Kaiser Aetna v. United States, 444 U.S. 164, 100

S. Ct. 383, 62 L.Ed.2d 332.

In this litigation, the Crawfishermen admit in their

complaint that none of the waterbottoms at issue are

private canals which destroyed former navigable water-

ways and that crawfishing and other commercial fishing

is not done to any significant extent in canals. Moreover,

the use of the private waterbottoms was not at issue in

Vaughn.

There is no federal statutory or common law right to

crawfish on private property beneath navigable waters

within the State of Louisiana. On the contrary, the juris-

prudence of this Court and federal statutes confirm that

these are matters of individual state law and policy.

2. NO INDIVIDUAL FEDERAL RIGHTS ARISE UNDER

THE “PUBLIC TRUST” OR “EQUAL FOOTING”

DOCTRINE. MOREOVER, THAT DOCTRINE HAS

NO APPLICATION TO VIRTUALLY ALL OF THE

PROPERTY IN DISPUTE IN THIS LITIGATION

WHICH WAS ACQUIRED BY THE STATE OF LOUI-

SIANA, NOT BY RIGHT OF INHERENT SOVER-

EIGNTY UPON ADMISSION TO STATEHOOD, BUT

BY GRANTS FROM THE UNITED STATES GOVERN-

MENT AS SWAMP AND OVERFLOWED LANDS OR

LANDS OTHERWISE ABOVE THE LIMITS OF HIGH

WATER, AND LATER CONVEYED BY LOUISIANA

INTO PRIVATE OWNERSHIP.

A. No Individual Federal Rights Arise Under the

Public Trust or Equal Footing Doctrine

As previously noted, each state obtained ownership

of and dominion over lands covered by tide waters and

navigable waterbottoms within its limits at the time of

14

sovereignty, with the consequent right to use or dispose

of any portion thereof subject to the right of Congress to

control their navigation so far as may be necessary for the

regulation of commerce with foreign nations and among

the states. Upon statehood, the federal trust title was

relinquished. See also Pollard’s Lessee v. Hagen, 44 U.S.

212, 11 L.Ed. 565 (1845); Weber v. Commissioners, 18 Wall.

57 (1873); McGilvra v. Ross, 215 U.S. 70, 30 S. Ct. 27, 54

L.Ed. 95 (1909); United States v. Cress, 243 U.S. 316, 37

S. Ct. 380 (1917). A century ago, this Court, in examining

the disposition of public use and ownership rights made

by the respective States in waterbottoms acquired by

right of inherent sovereignty, observed “that there is no

universal and uniform law upon the subject, but that each

state has dealt with the lands under the tide waters

within its borders according to its own views of justice

and policy, reserving its own control over such lands, or

granting rights therein to individuals or corporations,

whether owners of the adjoining upland or not, as it

considered for the best interest of the public.” See Shively,

supra, 157 U.S. 1, at 26, 14 S. Ct. 548 at 557.

In Oregon ex rel. State Land Board v. Corvallis Sand and

Gravel Co., 429 U.S. 363, 97 S. Ct. 582, 50 L.Ed.2d 550

(1977), this Court rejected the application of federal com-

mon law to determine ownership rights in waterbottoms

acquired by the State of Arizona upon its admission to

the Union, observing that once the equal footing doctrine

vested title in the States, upon their admission to the

Union, in the lands underlying navigable waters within

their boundaries, the force of the doctrine was spent.

Citing Pollard’s Lessee v. Hagen, the Court affirmed the

absolute title of the states to the beds of navigable waters,

“which neither a provision in the Act admitting the State

to the Union nor a grant from Congress to a third party

was capable of defeating.” Citing Shively v. Bowlby, the

Court affirmed that the title and rights of riparian propri-

etors in the soil below the high water mark is governed

by the laws of the several states, subject only to the rights

15

granted to the United States by the Constitution, under

which Congress by virtue of its commerce power pos-

sesses a navigational servitude with respect to navigable

waters for the purpose of regulating and improving navi-

gation. The Court also affirmed that riparian rights in the

banks and shores of waterways are governed not by

federal law but rather by the laws of the several States,

citing with approval its observation in Barney v. Keokuk,

94 U.S. 324, 24 L.Ed. 224 (1877), that if the States choose

to resign to the riparian proprietor rights which properly

belong to them in their sovereign capacity, it is not for

others to raise objections.

In Appleby v. City of New York, 271 U.S. 364, 46 S. Ct.

569 (1926), the Court expressly recognized that the power

of a state to part with property under navigable waters to

private persons, free from subsequent regulatory control

of the water over the land and the land itself, is a state

question to be determined from the law of the state at the

time the deeds to the property were executed. Comment-

ing specifically with regard to the Court’s earlier decision

in Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S. Ct.

110 (1892), the Court affirmed that the public trust doc-

trine does not impose any limitation upon the power of a

state to dispose of public trust property as an incident

and part of its sovereignty, whether the disposition be in

full ownership or subject to public easement, provided

the disposition is reasonable and can fairly be said to be

for the public benefit or without substantial impairment

of the public interest in the lands and the waters remain-

ing. See 271 U.S. 364 at 393-395, 46 S. Ct. 569 at 578.

In its recent re-examination of the public trust doc-

trine in Phillips Petroleum v. Mississippi, supra, the Court

reaffirmed its long-established rule that the individual

States have the authority to define the limits of lands held

in public trust and to recognize private rights in such

lands as they see fit. There is accordingly no federal right

which may be claimed by these Crawfishermen under a

16

federal public trust doctrine to fish in the areas in dis-

pute, those rights being dictated by state law and policy.

B. The Vast Areas of Swamp and Overflowed

Lands In Which the Crawfishermen Claim Pub-

lic Use Rights in This Proceeding Are

Unaffected by the Public Trust Doctrine

Moreover, the vast areas of swamp and overflowed

lands within the high water areas claimed by these plain-

tiffs were not acquired by the State of Louisiana by right

of inherent sovereignty under the equal footing or public

trust doctrine. Many of these lands passed directly into

private ownership after Louisiana statehood by grant from

the United States as public lands above the limits of high

water. Most were transferred by the United States to the

State of Louisiana after its admission to the ends of

private reclamation and development under the federal

swamp land grants of 1849 and 1850.6 The very purpose

of these grants was to aid the State of Louisiana, through

the revenues to be generated by the sale and subsequent taxa-

tion of such lands, in constructing the necessary levees and

drains to protect the valuable agricultural lands, planta-

tions and settlements along the Mississippi River and its

major distributaries from annual floods and to reclaim

the swamp and overflowed lands within the State. See |

Act of March 2, 1849, C. 87, 9 Stat. 352 and Act of }

September 28, 1850, C. 84, 9 Stat. 519; see 43 U.S.C. §981

et seq.; see also La. Acts 74 of 1892, 18 of 1894, 160 of 1900 |

and 205 of 1910; and Madden, Federal and State Lands in

Louisiana (1973) at pages 291-296. The Crawfishermen do

not and cannot challenge the disposition of these lands by |

the State of Louisiana as public lands above the limits of

6 In McDade v. Bossier Levee Board, 109 La. 625, 33 So. 628

(La. 1902), the Louisiana Supreme Court affirmed that even

permanently overflowed swamps, or so-called shallow lakes,

were included within the federal swamp land grants.

17

high water which were susceptible to private ownership.

See Chauvin v. Louisiana Oyster Commission, 121 La. 10, 46

So. 38 (La. 1908); State v. Sweet Lake Land and Oil Co., 164

La. 240, 113 So. 833 (La. 1927) and State v. Danzy, 527

So.2d 68 (La. App. 3rd Cir. 1988), writ denied.

3. THE ACT OF ADMISSION OF LOUISIANA INTO

THE UNION RECOGNIZED MERELY THE RIGHT

OF FREE PASSAGE UPON THE MISSISSIPPI

RIVER AND OTHER IMPORTANT NAVIGABLE

STREAMS AND WATERWAYS \WHICH BECAME

STATE-OWNED BY RIGHT OF SOVEREIGNTY IN

1812 AND ESTABLISHED NO FEDERAL RIGHT

OR INTEREST IN SUCH WATERWAYS SAVE THAT

SURRENDERED TO THE UNITED STATES GOV-

ERNMENT UNDER THE CONSTITUTION.

The Crawfishermen argue that under the Act of

Admission of 1812, they have a federally conferred civil

right to crawfish on the Landowners’ property.” The Act

for the admission of Louisiana into the Union included

the provision “that the river Mississippi, and the naviga-

ble 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 in the territories of the United

States, without any tax, duty, impost or toll therefor,

imposed by the said state.” Act of February 20, 1811; see 2

Stat. 642; see also 33 U.S.C. §10.

From the simple, unambiguous language of the Act,

it is clear that the enjoyment of navigable waters leading

7 Faced with the absence of any express or otherwise

reasonable suggestion of fishing rights within the language of

this statute, the Complaint by these Crawfishermen inferred

that this Act created a federal navigational servitude which protects

public fishery rights, although they later disclaimed any

dependency of fishing rights on navigational uses.

18

to the Mississippi River and the Gulf of Mexico as “com-

mon highways” contemplates nothing more than the

enjoyment of the water for purposes of navigation — of

passing and repassing, as a public highway, like a public

highway on land. It is not the use of the waterbodies for

any public purpose but for purposes of navigation and such

other uses as are incident to the enjoyment of the water

body as a public highway. That enjoyment creates no

rights or benefit in the public to the soil of the navigable

stream, which remains subject to any lawful private or

public control or use as does not impede or interfere with

the use of the water body as a public highway. Crawfish-

ing, as manifested in the deposition testimony of peti-

tioner Blanchard and acknowledgments of his counsel, is

an activity which peculiarly takes place on the bed or soil

of the waterbottom and requires the anchoring of a trap

to a tree, stake or other potential obstruction to the use of

the waters as a public highway in navigation. Thus,

waterbottom areas susceptible to crawfishing are inher-

ently insusceptible to use as public highways within the

intent of the Act of Admission.

A similar provision to Louisiana’s Act is found in the

compact entered into between the United States and Ala-

bama as a condition of its admission into the Union. That

compact was interpreted by this Court in Pollard’s Lessee

v. Hagen, supra, as creating no federal power or right, but

as merely evidencing the regulatory authority over com-

merce given to the United States under the Constitution.

The Court affirmed the exclusive right of sovereignty in

the States to dispose of or otherwise regulate use and

enjoyment of the shores and soils under navigable waters

within their respective jurisdictions, subject only to the

power conferred upon Congress under the Commerce

8 See the stipulation by the Crawfishermen noted at page 16

of the Memorandum Ruling of the District Court in this

proceeding, appended to the writ petition herein. Note also

State v. Barras, 615 So.2d 285 at 287.

EE Se OR ee ee TE

19

Clause of the United States Constitution. Thus, as a mat-

ter of federal law, the Act of Admission confers no greater

right in those navigable waters within the State of Louisi-

ana to which it applies, than exists under the Commerce

Clause authority which, as addressed below, creates no

individual federal rights in the Crawfishermen to fish in

the contested areas.

Shively, supra, and Burns v. Crescent City Rod & Gun

Club, 41 So. 249 (La. 1906), cited by the Crawfishermen as

recognizing a public trust fishery right implemented

under authority of the Act of Admission, are inapposite.

Shively’s references to the various acts establishing terri-

torial government or admitting states into the Union

reflect merely the design to preserve navigable water-

ways as public or common highways. Burns makes no

mention of public trust fishing rights (since none exist)

and cites the Act of Admission only in passing without

any holding thereon. More importantly, Burns ties the

right to fish upon a determination of whether the water-

bodies were navigable and state-owned (i.e., “it is because

navigable rivers afford a way of communicating that the

legislature has placed them in the public domain”), as to

which only one of the waterbodies at issue in that case

qualified.

New Orleans Steamship Association v. Plaquemines Port

Harbor & Terminal District, 874 F.2d 1019 (5th Cir. 1989) is

similarly inapposite, the authorities relied upon in that

decision clearly indicating that the Act’s proscription of

duties, imposts or tolls relates solely to the privilege of

navigating through the waters to insure a highway equally

open to all. See Hampton v. Vicksburg, S & P.R., Co., 119

U.S. 280, 285, 7 S. Ct. 206, 208 (1885); Cardwell v. American

Bridge Company, 113 U.S. 205, 5 S. Ct. 423 (1885); Escanaba

Company v. Chicago, 107 U.S. 678, 2 S. Ct. 185 (1883).9

9 Furthermore, Dardar v. Lafourche Realty, supra,

determined that the Act of Admission does not apply to all

20

4. THERE IS NO FEDERAL CONSTITUTIONAL

RIGHT TO FISH ON PRIVATELY OWNED SUB-

AQUEOUS LAND, EVEN IF NAVIGABLE-IN-FACT

TO COMMERCIAL CRAWFISHERMEN.

It is settled law that the ownership of, and dominion

and sovereignty over, navigable waterbottoms within the

limits of the states belong exclusively to the respective

States in which they are found, including the right to

recognize private rights in such lands as each state sees

fit, subject only to the paramount right of Congress to

control their navigation so far as may be necessary for the

regulation of commerce among the states and with for-

eign nations. See authorities previously cited herein.

Clause 3 of Section 8 of Article 1 of the Constitution

recognizes that Congress shall have the power to regulate

commerce with foreign nations and among the several

states. Congress possesses by virtue of its commerce

power a navigational servitude with respect to navigable

waters for the purpose of regulating and improving navi-

gation.!° See Gibson v. United States, 166 "J.S. 269, 17 S. Ct.

578, 41 L.Ed. 996 (1897). The exercise of the Commerce

Clause authority of Congress is, in turn, subject to the

prohibition of the Fifth Amendment of the United States

waterways leading to the Gulf of Mexico, but only to waterways

which were navigable in fact at the time of its enactment in 1812.

The statute was also never intended to apply to waterways only

capable of an imperfect navigation in times of floods and very

high water. See Boykin & Lang v. Shaffer, 13 La. Ann. 129, 130-131

(1858).

10 The removal of any obstruction to navigable waters of

the United States lies within the authority delegated by

Congress to the United States Army Corps of Engineers.

California v. Sierra Club, 101 S. Ct. 1775 (1981), affirmed that the

Congressional prohibition against obstruction of navigable

waters of the United States under Section 10 of the Rivers and

Harbors Act of 1899 does not confer a private right of action to

contest such obstructions.

Ee EN ee eT emo

21

Constitution against the taking of private property for

public use without compensation. See Kaiser Aetna v.

United States, 444 U.S. 164, 100 S. Ct. 383, 62 L.Ed.2d 332

(1979).

Precedents of the United States Supreme Court also

recognize that while the title of each State in the beds of

navigable and tide waters within its jurisdiction is subject

to a paramount right of navigation granted to the United

States for the regulation of foreign and interstate com-

merce, federal Commerce Clause authority does not pre-

empt the substantial proprietary interest of a state in the

control of fisheries and other natural resources within its

boundaries, except to preclude state restrictions which

discriminate in favor of its own citizens and against those

of other states or which violate a federal statute or treaty

on the subject. See Smith v. Maryland, 59 U.S. 71, 15 L. Ed.

269 (1855); McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248

(1877) [regarding the authority of Virginia to regulate

oyster cultivation in its tidal rivers: “[T]here is here no

question of transportation or exchange of commodities,

but only of cultivation and production. Commerce has

nothing to do with land while producing, but only with

the product after it has become the subject of trade.”];

Manchester v. Massachusetts, 139 U.S. 240, 11 S. Ct. 559, 35

L.Ed. 159 (1891); Douglas v. Seacoast Products, Inc., 431 U.S.

265, 97 S. Ct. 1740, 52 L.Ed.2d 304 (1977); note also Moore

v. Hampton Roads Sanitation, 557 F.2d 1030 (4th Cir. 1976),

cert. denied [harvesting of oysters from leases issued by

Virginia is a purely local activity subject to Virginia state

law, as recognized by Congress in the Submerged Lands

Act] and Loving v. Alexander, 745 F.2d 861 (4th Cir. 1984)

[the federal navigational servitude under the Commerce

Clause does not include public fishing rights, a matter

governed by state law].

While United States v. Appalachian Electric Power Co.,

311 U.S. 377, 61 S. Ct. 548 (1940) indicates that the Com-

merce Clause power of the United States over navigable

waters is not limited to control for navigation and can

22

include such interests as flood protection, watershed

development and the production of power, the express

reservation of these rights in the Submerged Lands Act

[see 43 U.S.C. §1311(d)], coupled with the express con-

firmation of the authority of the States over shell-fish

cultivation and harvesting in the same Act [43 U.S.C.

§1311(a)], leaves beyond question the conclusion that no

individual federal fishing rights under the Commerce

Clause or other provision of the United States Constitu-

tion were contemplated to exist either in 1953 or today.

Thus, Section 1314 of the Act declares that the United

States retains all its navigational servitude and rights in

and powers of regulation and control of said lands and

navigable waters for the constitutional purposes of com-

merce, navigation, national defense and international

affairs, all of which shall be paramount to, but shall not be

deemed to include, proprietary rights of ownership, or the

rights of management, administration, leasing, use, and devel-

opment of the lands and natural resources which are speci-

fically recognized, confirmed and vested in and assigned

to the respective States and others by Section 1311.

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cited by the

Crawfishermen to suggest a Commerce Clause public

fishing right, is not only distinguishable on its facts (no

fishing interest at issue or considered by the Court) but

its conclusion that the Commerce Clause authority

extends to regulating use of private submerged riparian

property for conservation purposes (i.e., to protect wildlife)

because “the destruction of fish and wildlife in our

estuarine waters does have a substantial, and in some

areas a devastating, effect on interstate commerce” has

been properly criticized as perfunctory dicta made with-

out any analysis and accordingly should be given no

weight. See Hoffman Homes, Inc. v. Administrator, U.S.

E.P.A., 961 F.2d 1310 at 1321 n. 8 (7th Cir. 1992). Moreover,

the Commerce Clause application suggested by the Craw-

fishermen would completely emasculate the express pro-

visions of the Submerged Lands Act.

ee |

23

Neither the Commerce Clause nor the 14th Amend-

ment"! of the United States Constitution confers any right

upon an individual citizen to fish on privately owned

subaqueous land within the boundaries of the State of

Louisiana. Neither Louisiana’s property law nor the use

and protection by these Landowners of their private

property rights violates any federal law or treaty or dis-

criminates against citizens of another state or otherwise

impairs any federal interest in interstate commerce. In

fact, federal law (including Supreme Court jurispru-

dence) specifically sanctions the private property rights

and interests of these Landowners under Louisiana state

law.

5. THE RIGHT TO CRAWFISH IS A PROPERTY

RIGHT INCIDENT TO THE OWNERSHIP OF THE

LAND AND DOES NOT FOLLOW FROM ANY

PUBLIC RIGHT OF PASSAGE ON WATERS, EVEN

IF NAVIGABLE, WHICH MAY FLOW OVER PRI-

VATELY OWNED LAND.

The Crawfishermen’s naked claim that public trust

fishing rights are a protected use of navigable waters

independent of land ownership is contradicted by the very

authorities which they cite in support of their alleged

rights. Smith v. Maryland notes that, among the possible

state interests, “public trust lands may be used for fishing

for both shell-fish [and] floating fish” and observes that

“the soil [below the low water mark] is held by the state

for the enjoyment of certain public rights, among which is

the common liberty of taking fish.” See also Hardin ».

11 The Slaughterhouse Cases, 16 Wall.36, 83 U.S.36 (1873),

lend no support to the rights claimed by the Crawfishermen.

The dicta cited by the Crawfishermen bears neither the meaning

(i.e., “use” = “fish”) nor weight (i.e., established a constitutional

right to fish) ascribed by them to that decision.

24

Jordan and particularly Phillips v. Mississippi, cited to rec-

ognize a state’s public trust interest in lands beneath tidal

waters for uses not related to navigability such as fishing,

bathing, swimming, recreation and mineral development.

Even the 1934 Michigan property law decision cited

by the Crawfishermen to support the independent nature

of the right to fish from the right of navigation [Ne-Bo-

Shone Association v. Hogarth, 7 F. Supp. 885 at 889-890]

supports that observation by reference to a 1914 Harvard

Law Review article entitled “The Right To Take Fish and

Game in Navigable Non-Tidal Waters,” which affirms

that the right to fish in navigable waters is properly an

incident of the land ownership:

“While no one can obtain absolute property in

fish and game except by reduction to posses-

sion, and therefore their ownership while

uncaptured does not go with the realty; the right

to take creatures ferae naturae, transiently upon

land, is recognized as a valuable property right

incident to its ownership. So in ancient times,

the right to fish in the sea was the exclusive

prerogative of the King and lord of the soil; but

either by Magna Charta, or by the gradual

encroachment upon royal prerogative as the

representative character became recognized, the

King’s right to the sea came io be regarded as

held in trust for the public, and the right to fish

became free and common to all. This right

though arising independently of the public own-

ership of the soil, thus chanced here to be co-

extensive with the right of navigation. In

English non-tidal streams, however, the exclu-

sive right of fishery is in the riparian proprietor

of the soil. Inasmuch as these inland waters are

subject to a public easement of navigation, it is

clear that the right to hunt and fish has no connec-

tion with the right of navigation, but is an incident

of the land.

25

* * *

Not only is there no historical connection

between the right to hunt and fish and the right

of passage, but there is no basis on reason or

analogy for the connection. Although other ser-

vitudes in the nature of easements may be

annexed by custom or prescription to an ease-

ment of passage, the right to take fish and game

cannot be thus annexed because it is not an

easement but a profit a’ prendre, which the public

cannot acquire by customary or prescriptive

user. Aside from annexed incidents, a public

right of passage upon land includes only those

rights reasonably necessary for the enjoyment of

the easement. According one who uses a public

way as a vantage ground for observing the

training of horses in adjoining fields, . . . or

shooting his game, becomes a trespasser upon

the servient tenement. And one in the pretended

exercise of an easement of navigation over pri-

vately owned subaqueous land, who takes ice

from the surface or gravel from the bed of the

stream is likewise clearly a trespasser. The argu-

ment that as fish and game have no owner,

anyone has a right to take them wherever he has

a right to be, is thus answerable in that the taker

has no right on the highway for that purpose.

On these grounds the majority of the courts

have reached a result opposite to that of the

principal case.” See 27 Harvard Law Review,

Page 750-752 (emphasis added).12

12 Some states, like Michigan, pursued a different policy.

Note Collins v. Gerhardt, cited by the Crawfishermen, in which

the Michigan Supreme Court decided “that the common law

doctrine, viz., that the right of fishing in navigable waters

follows ownership of the soil, does not prevail in this state.” The

concurring opinion in that case also indicated that, even under

26

In Louisiana, the right to hunt and fish has always

been regarded as a property right incident to the owner-

ship of the land. As recently affirmed by the Louisiana

State Law Institute and by the Louisiana Legislature in

light of the Phillips pronouncements, navigability — not

fisheries use — has been the hallmark of Louisiana’s pub-

lic trust interest in its sovereignty lands since statehood,

public rights to hunt and fish being limited to public

lands, including navigable waterbottoms which have

remained under ownership by the State of Louisiana.’

Furthermore, the idea that public navigation and fishery

rights arises from the public nature of “running water”

has been considered and rejected in the state courts of

Louisiana and by the Fifth Circuit. See Brown v. Rougon,

552 So.2d 1052 (La. App. Ist Cir. 1989), writ denied (recog-

nizing that although subject to public use, the water

running naturally in a private canal does not give the

public the right to navigate and fish in the canal); Amigo

Enterprises, Inc. v. Gonzales, 581 So.2d 1082 (La. App. 4th

Cir. 1991); Dardar v. Lafourche Realty Co., Inc., No. 85-1015

(E.D. La. 1991), affirmed in part, vacated in part and

remanded, 985 F.2d 824 at 834 (5th Cir. 1993); People For

Open Waters, Inc. v. Estate of Gray, 643 So.2d 415 (La. App.

3rd Cir. 1994). Louisiana courts have also consistently

recognized that the public at large enjoys no right of

access for fishing on private land simply because that

land becomes flooded by a navigable stream. See State v.

Richardson, 72 So. 984 (La. 1916); Warner v. Clarke, 232

Michigan law, no public trust fishing rights affect swamplands

acquired under the Swamp Lands Acts which are overflowed so

as to be covered by navigable waters. Note also the Collins

dissent. See 211 N. W. 115 at 118, 123-128.

13 See the Louisiana State Law Institute’s Advisory Legal

Opinion Relative to Non-Navigable Waterbottoms, 53 La. Law

Rev. 35 at 66-67 (1992); La. R.S. 9:1115.1; Hargrave, “The Public

Trust Doctrine: A Plea for Precision”, 53 La. Law Rev. 1535

(1993).

27

So.2d 99 (La. App. 2d Cir. 1970), writ denied; Edmiston v.

Wood, 566 So.2d 673 (La. App. 2d Cir. 1990); see also La.

Civil Code Article 3413; official comment (b) to La. Civil

Code Article 456, as revised in 1978; Louisiana Attorney

General Opinion No. 88-649; A.N. Yiannopoulos, La. Civil

Law Treatise, Vol. 2, Property, §§56-61,85 (3rd Ed., 1991).

State v. Barras, 615 So.2d 285 (La. 1993), considered

the validity of trespass charges brought against two mem-

bers of Producers for actively conducting commercial

crawfish harvesting on lands within the presently contested

area of the Atchafalaya Basin without permit and after

being orally forbidden to remain on such lands. The lands

involved were flooded swamp lands, inundated by

waters of the Atchafalaya River and its distributaries for

up to six months of each year with depths of water in the

crawfishing areas ranging from 6" to 6', the same charac-

teristics alleged by the Crawfishermen over the other lands in

controversy in this proceeding. The crawfishermen claimed

that the lands were public lands subject to public use. The

Louisiana Supreme Court affirmed the trespass convic-

tions, properly recognizing that the area in question was

backwater swamp land within the Atchafalaya River’s

floodplain which did not, by its mere susceptibility to

crawfish activity and navigation during flood conditions,

become public navigable waters or render the private

property subject to public use.

The shallow depth of legal analysis and historical

perspective by these Crawfishermen is perhaps best

exemplified in their attack on the Louisiana Supreme

Court’s Barras decision, referring to the Court’s protec-

tion of the private nature of “flooded swampland” as

“semantic legerdemain.” The very fact that the United

States government in 1849 and 1850 authorized the grant

to Louisiana of all swamp and all overflowed lands

within its borders for private sale to aid the State in

constructing the necessary levees and drains to reclaim

such lands indicates quite clearly that neither the federal

nor state sovereigns ever considered flooded swampland

28

to be inalienable sovereignty lands affected by any notion

of public trust right or interest and that both sovereigns

fully intended all rights inherent in the private ownership

of such lands to pass to the purchasers thereof.

The Submerged Lands Act expressly recognizes that

the use of submerged lands beneath navigable waters of

the United States for crawfishing was vested either in the

State of Louisiana or the private individuals in ownership

of the lands or the right to fish thereon as of the effective

date of that legislation, negating any notion of a para-

mount federal statutory, common law or constitutional

right or interest in that activity. This Court emphatically

stated in Phillips that post-statehood public trust uses of

sovereignty lands and waters are matters of state law and

policy subject to the constitutional powers reserved to the

federal government. Both specific Congressional legisla-

tion and long-standing pronouncements of this Court

affirm the propriety of the Fifth Circuit and the District

Court in dismissing this complaint as a matter of federal

law.

“CONCLUSION

The Crawfishermen are not concerned with any

obstruction of their navigation in the major navigable

bayous and streams which make up the Atchafalaya

River system and its distributaries in this portion of the

Floodway, as no such obstruction exists nor can any be

shown by them.!4 They admit that their activities take

place outside the beds of these bayous and streams. In

essence, these Crawfishermen are asking the federal

courts to declare vast areas of privately owned swamp-

land to be subject to public crawfishing use as a matter of

federal law in derogation of the aforestated principles of

Louisiana law and of the titles and ownership rights

14 See page 15 of the Memorandum Ruling of the District

Court in this proceeding, appended to the writ petition herein.

29

lawfully transferred by the State of Louisiana and/or the

United States government long ago to private parties.

Moreover, these Crawfishermen do not seek access to

the many thousands of acres of overflowed swamp

involved in this litigation for purposes of navigation as

public highways in interstate commerce.!5 Only capable

in part of an imperfect navigation for crawfishing uses

when flooded at periods of high water, these tree-choked

swamps are wholly insusceptible of use in navigation in

interstate commerce in their ordinary condition. They

have long been recognized as private property and were

sold by the State of Louisiana and federal government as

such. Accordingly, any attempt to recognize a general

public right of access and use for crawfishing under the

Commerce Clause of the United States Constitution

would run afoul of the Fifth Amendment and amount to a

taking of private property without compensation. See

Kaiser Aetna, supra; Vaughn, supra; Dardar v. Lafourche

Realty, supra. As recognized in Kaiser Aetna, the “right to

exclude” is universally held to be a fundamental element

of the right of private property, falling clearly within the

category of interests that the government cannot take

without compensation.

The issue of a public right to fish on privately-owned

submerged land is not new. It has been raised, studied

and addressed in numerous state and federal forums by

legislators, legal practitioners, legal scholars and the

15 The Landowners will contest whether these overflowed

swamp lands are navigable in fact so as to be navigable in law

should trial on the merits become necessary. For purposes of

this motion only, the Landowners do not raise the fact issue of

navigability, since even allowing the assumption that the

overflowed swamp were navigable in fact to these

Crawfishermen, federal law does not recognize a crawfishing

right in the public on these submerged privately owned lands.

30

courts, all of which have reached the same conclusion -

that the District Court and the Fifth Circuit were unde-

niably correct in finding no basis in federal law for the

rights claimed by these Crawfishermen and dismissing

the action for consideration by the state courts of Louisi-

ana based upon state law and policy applicable to this

property issue, should the Crawfishermen choose to

advance their state law claims to these crawfishing rights.

The decision of the Fifth Circuit in this matter is

grounded in well-settled principles of law which the Fifth

Circuit has properly recognized concern no issues of sig-

nificant public interest. For that reason, and for all of the

foregoing reasons, certiorari should be denied.

Respectfully submitted,

Patrick G. Tracy, Jr. — 12888

600 Jefferson Street, Suite 910

Post Office Box 54001

Lafayette, Louisiana 70505-4001

Telephone: (318) 266-2340

Attorney for Williams, Inc.

NEWMAN TROWBRIDGE, JR. — 12930

Biccs, TROWBRIDGE, SUPPLE

AND CREMALDI

Post Office Drawer 565

Franklin, Louisiana 70538

Telephone: (318) 828-5480

Attorney for Atchafalaya

Crawfish Conservation Association