Amicus Curiae Brief — Parm v. Shumate (No. 07-1289)

(SD FILED

No. 07-1289 JUN 10 2008

OFF

nue Sem RE SEE

Supreme Court of the Anited States

Sf

NORMAL PARM, JR., ET AL.,

Petitioners,

v.

MARK SHUMATE, IN HIS

OFFICIAL CAPACITY AS SHERIFF OF

EAST CARROLL PARISH, LOUISIANA,

Respondent.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF OF AMICUS CURIAE,

WALKER COTTONWOOD FARMS, LLC,

SUCCESSOR-IN-TITLE TO WALKER LANDS, INC.,

IN SUPPORT OF OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

¢

CONSTANCE CHARLES WILLEMS

Counsel of Record

F. SHERMAN BOUGHTON, JR.

McGLINCHEY STAFFORD

A PROFESSIONAL LIMITED

LIABILITY COMPANY

643 Magazine Strect

New Orleans, Louisiana 70130

Telephone: (504) 586-1200

Counsel for Amicus Curiae,

Walker Cottonwood Farms, LLC,

Successor-in-Title to Walker Lands, Inc.

COCKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE CE BASH Ble vecviinnsvccivsevecesevacszatyens ll

INTEREST OF AMICUS CURIAE....................... 1

Ee Ts IY accek ni adic cnserscanzendseieksiyimcnneanuemensas 3

COUNTERSTATEMENT OF FACTS .................. 3

SUMMARY OF ARGUMENT ...........0.... cence 10

PR GREETS Hi Worinty ceccintiivrdnttenouniemeaeel ll

1. The public has no right to recreation on

private property under the Privileges and

RURSTTTARS CANGOD onde siscscinssctansiccemainne 11

2. The public has no right to recreation on

private property under the Public Trust

CII oss cased veopscaceeunborecunnauaeane 13

3. Federal common law does not support

public access to private, non-navigable

UOTE ois consscicnsiuiiucviansemeeest aaa 19

4. Federal statutory law and regulations

also do not support public access to

DUTVELS DEUDOECY 56.65. c0ssscecesarteseaee 22

CINE IN ica bn giccensdcevesindsuinanconeniandepeemscgaeiedian 24

TABLE OF APPENDIX

Walker Lands, Inc. and Hollybrook Land

Company, Inc. v. East Carroll Parish Police

Jury and State of Louisiana No. 17,746 (6th

Jud. Dist. Ct. Parish of East Carroll, Louisi-

ana) Reasons for Judgment, dated May l,

Be vsantsecieten ipeanecsvass cxeseocnedbanatacmamaiaanale App. 1

ll

TABLE OF AUTHORITIES

Page

CASES

A.L.T: Corp. v. Small Business Admin., 801

EE EE SEEN CAE. RONUOD sesrncscsesvocorrseresiesverevenssevectoors 9

Allen v. McCurry, 449 U.S. 90 (1980)................ cece eeeeee 9

Baldwin v. Fish & Game Commission of

SE, OO OF td. D4 L CLOT O) oes cvccoccscccveccscnescessevers 12

Bates v. United States, 522 U.S. 23 (1997) ................ 23

Boyle v. United Technologies Corp., 487 U.S.

ii iin oo ccc aseendaedoanenserimppedescenetwndagenars 20

Coastal Petr. Co. v. United States, 207 Ct. Cl.

FOL, B24 F.24 1206 (Ct. Cl. 19°75) ......0..sorcrerescessveves 18

Danforth v. Minnesota, 128 S.Ct. 1029 (U.S.

MN he cake nie dsp gdereshnsvoucaniewsaveivu sender tea uwien 20

Dardar v. Lafourche Realty Co., 985 F.2d 824

is acs es osasvavsoabedeseeeteimtiinnepnien 14,19

Delinks v. McGowan, 173 A.2d 488 (Conn.

io asin oi wens cuca cu wsuanuibed stom eamad Mea eta anAaawnCe 22

George v. Beavark, Inc., 402 F.2d 977 (8th Cir.

a a aie ie ca eee ia 18

Gibson v. United States, 166 U.S. 269 (1897)............ 18

Indian Bayou Hunting Club, Inc. v. Taylor, 261

So.2d 669 (La. App. 3rd Cir. 1972) ....................c0eee 10

Kaiser Aetna v. U.S., 444 U.S. 164 (1979)...17, 19, 21, 23

Keene Corp. v. United States, 508 U.S. 200

eo sc cae dapuuediadeauicaseaniveneoauee 23

Lawton v. Steele, 152 U.S. 138 (1894)........................ 21

il

TABLE OF AUTHORITIES — Continued

Page

Martin v. Waddell’s Lessee, 41 U.S. 3€7 (1842)......... 12

Montana v. United States, 450 U.S. 544 (1981) ........ 14

Oklahoma v. Texas, 200 U.S. 606 (19238) ................... 14

Phillips Petroleum Co. v. Mississippi, 484 U.S.

NI ahi tics vod ccsviciw seas basco pigesysgsnadul ani thexs 14, 18

Port of Seattle v. Oregon & Washington R.R.,

ee Ge Retaied esse nlect nce oi tiiebaesseontecercbeciercns 19

Scranton v. Wheeler, 179 U.S. 141 (1900)...........0...... 21

Shively v. Bowlby, 152 U.S. 1 (1894)............scccvscoveees 14

Silver Springs Paradise Co. v. Ray, 50 F.2d 356

a NE sae te sak os ncepanancauaaandiieantclancepinovinccuiandes 20

Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) ...12, 14

Snapp v. Unlimited Concepts, Inc., 208 F.3d

ee rn a aad anh cossaunomavasananpensn 23

State v. Barras, 615 So.2d 285 (La. 1993).............. 8, 21

The Daniel Bali, 77 U.S. 587-1870) ..........cccccecccceseses 10

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

Fo 1 SERS SS gG wee nOnTe nies ard fc RONEN oN EIA MS 12, is

Trahan v. Teleflex, Inc., 922 So.2d 718 (La. App.

I aes 10

United States v. Chandler-Dunbar Co., 229

RR > Ee. | 2 RAREDR epee ser ASP er ae rete ey eee he 18

United States v. Claridge, 416 F.2d 933 (9th

Cir. 1969), cert. denied, 397 U.S. 961 (1970).......... 14

1V

TABLE OF AUTHORITIES — Continued

Page

United States v. Harrell, 926 F.2d 1036 (11th

RR CANIN oss oc ovavcruenainsisiinenpiaeesseeiedaanbiias 9,14, 15, 16

United States v. Kansas City Life Ins. Co., 339

Ee es idicncisniiasiisvaperesienskpibtcinnsmeabiae eels 18

United States v. River Rouge Improv. Co., 269

Sie ER anc id iabeanldadaincccesaMtadateontewnnaanioes 19

Vaughn v. Vermillion, 444 U.S. 206 (1979)................ 19

Walker Lands, Inc. v. East Carroll Police Jury,

871 So.2d 1258 (La. App. 2nd Cir. 2004),

writ denied, 903 So.2d 442 (La. 2005),

reconsideration not considered, 916 So.2d 127

Zunamon & Chicago Mill & Lumber Co. v.

United States, 221 Ct. Cl. 835, 1979 WL

SRE FPR ale: WP ieionnidtsnssin ee enn 6

STATUTES

TP Be vvnntvicseccnsesssissvesicesseressseereneinvicass 22

Be ere TR FI ey once esinesiteinrscvenesenecoummeine en 22

Fe I, NE sineticbikciticniccnincnticiianneptaae 23

EE ais ivectisrirrnsceoniasiinceedeneeel 9

Be Ec MEET diya scukionsinersneancctaneouvecetuoses Wauaaeeeee 23

OS 2 SC) Re en ene a DMT 6, 14

Act Of AGG 24, ISTE, FZ Btat. GES covccnscivercevicscsscsccsecess 13

Aah, Ga GOURD GEE. GE CIE. G, concer ceecesccnsnneseccssremeseesnets 8

le Ce Se Ds TO dvicikcbeeccckicvindsndntacsigiicensniiceans 9

Vv

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Floating on Uncharted Headwaters: A Look at

the Laws Governing Recreational Access on

Waters of the Intermountain West, 5 Wyo.

Re CE SINT oss checrresidsccwncais beni Sipe teieierbleeeniceds 22

1

INTEREST OF AMICUS CURIAE'

Walker Cottonwood Farms, LLC (“Walker”), is

the owner of property in East Carroll Parish, Louisi-

ana (“the Property”), on which Petitioners were

arrested for trespassing while engaged in recreational

pursuits on non-navigable water bodies. Walker has a

significant interest in the determination of the issues

presented in this case as those issues directly impact

Walker’s rights as owner to preserve, develop, and

enjoy the Property.

Walker files this amicus brief to protect not only

the decision of the Fifth Circuit Court of Appeals,

but also the final Louisiana state court judgment

that Walker obtained after nine years of state litiga-

tion, which reached a definitive determination of

many of the factual and legal issues that underlie the

Petition. See Walker Lands, Inc. v. East Carroll Police

Jury, 871 So.2d 1258 (La. App. 2nd Cir. 2004), writ

denied, 903 So.2d 442 (La. 2005), reconsideration not

considered, 916 So.2d 127 (La. 2005) (the “State

Court Proceeding”). [Pet. App. at 101] Petitioners and

their supporters, including the Waterways Access

' No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

Counsel of record for al] parties received notice at least 10 days

prior to the due date of amicus curiae’s intention to file this

brief. All parties consented to the filing of briefs of amici curiae.

2

Association, appearing in this Court as one of the

amici, were the driving force in the State Court

Proceeding, in which Louisiana’s former Attorney

General unsuccessfully asserted the rights of the

public to enter and exploit Walker’s Property. This

federal case, therefore, has been in many respects a

reprise of the State Court Proceeding, whose findings

and judgment the Fifth Circuit properly respected

and upheld in resolving the narrow, localized issues

presented by Petitioners’ appeal.

Should Petitioners and their amici succeed in

obtaining the sweeping changes they seek in federal

and state law, Walker, its Property, and countless

other owners of Louisiana properties stand to suffer

permanent and irreparable injury. Fundamental

fairness calls for Walker, as the owner of the Property

that Petitioners seek to use and exploit, to have the

ability to defend its rights against the claims of these

serial trespassers. No less an interest than that of

persons to own and enjoy their private property, free

of the unwanted interference of others, is at stake.

Equally important, and similarly ignored by Petition-

ers, is the federal government’s ability to define the

limits of its jurisdiction over the navigable waters of

America and to control and foster navigation free of

matters that are left to the States to administer and

control.

Moreover, having litigated the access right to this

Property for over twelve years in Louisiana’s state

and federal courts, Walker is uniquely positioned to

provide important facts about the Property and the

3

State Court Proceeding, as well as to supply relevant

legal authority to assist in reviewing the Petition.

Accordingly, Walker welcomes the opportunity to

address this Court and to support the Fifth Circuit’s

decision, which found that Petitioners were on

Walker’s Property in clear violation of Louisiana law

and that no federal law or policy supports their right

to access or use any portion of the Property.

¢

INTRODUCTION

The resolution of the Petition must rest in large

measure on the factual findings and holdings in the

State Court Proceeding, which litigated factual and

legal issues concerning the very Property and ad-

dressed the same activities and arrests that are the

subject of the Petition. The Fifth Circuit properly

relied on the findings and legal conclusions made in

this decision to reject Petitioners’ claims under both

Louisiana and federal law. Nothing in the decision

below, or the State Court Proceeding, implicates

either the federal policies or the interests of states

other than Louisiana that Petitioners and their amici

seek to inject into this action.

+

COUNTERSTATEMENT OF FACTS

Petitioners’ primary arguments rest on the

supposition that they seek to fish on some portion of

the navigable Mississippi River. This inaccurate

4

assertion portrays Walker’s Property and its non-

navigable waters as being directly adjacent to the

Mississippi River shipping channel and in continual

communication with — and perhaps even part of — the

Mississippi River. As found in the State Court Pro-

ceeding and in the courts below, these assertions are

completely incorrect.

Petitioners were and have been arrested after

refusing to leave Walker’s Property while fishing on

non-navigable lakes and temporarily flooded lands

that are situated nearly 3% miles from the Missis-

sippi River in the extreme northeast corner of the

state of Louisiana, far from any coastal or tidal

waters of the Gulf of Mexico.’ [Pet. App. at 104-06] As

the Louisiana court recognized, this Property has

been closed for public fishing at least since the 1960s.

{[Pet. App. 103; App. p. 8] Regardless of the ordinary

levels of the Mississippi River, the shallow water

bodies on the Property are not accessed or accessible

by boating west from the Mississippi River’s channel.

* The Property at issue in this case lies between the levee

constructed by the Corps of Engineers and the Mississippi River

3% miles to the east. To the extent the Property is covered by

ordinary seasonal flood waters, this temporary inundation is a

direct result of the existence of the levee, which retains the

waters on Walker’s Property and does not permit them to spread

farther westward, where they would inundate the homes,

businesses, and properties of others, including Petitioners.

Petitioners thus seek not only to enjoy the protection of the

levee, but also, as a result of the location of the levee on Walker's

Property, to subject the Property to untrammeled public uses,

including fishing and even hunting.

5

Trespassers are able to access the Property only by

road or by launching small boats into Bunch’s Cutoff,

and from there, by making their way — sometimes by

disembarking from, walking alongside, and dragging

their boats — through a man-made drainage ditch and

sometimes over dry land into Lake Gassoway and the

other lakes on the Property.’ [Pet. App. 3] The topog-

raphy of the Property does not change from year to

year as Petitioners suggest in asserting that the

“mighty Mississippi” chooses its path southward,

bounded only by the levees. In reality, the Corps

of Engineers (“Corps”) maintains the Mississippi

within its channel, and except in highly unusual

* The Louisiana trial court findings, which were accepted by

the Louisiana appellate court, included the following findings

concerning this drainage ditch:

The Court further finds that the outlet chan-

nel/drainage ditch is in fact a drainage ditch of Gas-

soway Lake, that has been altered by man and is not

a navigable stream as perceived by the Civil Code... .

(The ditch] makes a ninety degree angle at one point,

due to materials placed by man...

During many times of the year, the ditch has insuffi-

cient water for the smallest of boats to travel from

Bunch’s Cutoff up through the ditch into Gassoway

Lake. ...

{[Tjhe amount of vegetation in the ditch prohibits tra-

versal of this area during certain times of the year

and even during high water, one would have to leave

the banks of the ditch and cross private land and run

along beside the ditch in order to gain access to Gas-

soway Lake.

(App. pp. 10, 13)

6

circumstances, has done so for decades. Based upon

extensive expert testimony, the trial court in the

State Court Proceeding found that the channel of the

Mississippi last flowed over the location of what is

now Walker’s Property more than 100 years ago.

[App. pp. 13-15]

The Louisiana Court of Appeal found that the

area between Lake Gassoway and the Mississippi

River, 3% miles away, is “dry land.” The water bodies

on the Property remain landlocked most of the year

and can serve no useful commercial purpose.’ [Pet.

App. at 104-06] As the Fifth Circuit’s opinion ob-

serves, several buildings and 140-foot-tall trees are

on the Property. [Pet. App. at 3] Walker farms the

Property, and there are roads, airstrips, a concrete

bridge, farm buildings, and hardwood forests, as well

as lakes, ditches, and borrow pits on the Property.

The Property’s elevation reaches 125 feet above mean

sea level. See, e.g., Pet. App. 123 (USGS topographical

map) and the most recent Corps of Engineers naviga-

tional map (1998), in Respondent’s appendix.”

* Under settled law, such sloughs, creeks, and ditches that

connect with navigable streams are not thereby made navigable

if not used as highways of commerce, and the navigation servi-

tude is not applicable even if navigable waters back up into

them. Zunamon & Chicago Mill & Lumber Co. v. United States,

221 Ct. Cl. 835, 1979 WL 10393 (Ct. Cl. 1979).

* Had the Fifth Circuit applied the “vegetation test” under

33 C.F.R. §329.1l(a), these physical attributes of the Property

easily would have established that it lies above the Mississippi

River’s “ordinary” high water mark, which limits federal!

(Continued on following page)

7

Based on facts as found in the State Court Pro-

ceeding, the Property and water bodies on it are not

part of the Mississippi River. Additionally, the Louisi-

ana courts held that Walker owns the water bottoms

and land on which Petitioners were arrested because

under Louisiana law, the State owns the beds or

bottoms of water bodies in a sovereign capacity only

up to the ordinary low water stage, and evidence in

the State Court Proceeding showed that the Property

lies above the low water stage of the Mississippi

River. [Pet. App. at 105 fn. 7, 115] Thus, the primary

legal issue in the State Court Proceeding was

whether the public, including Petitioners, could go

onto Walker’s privately-owned Property to fish, hunt,

camp, and conduct other activities. The Louisiana

courts decided that issue in Walker’s favor:

Gassoway Lake and surrounding lands be-

tween the lake and the river are sometimes

flooded by the Mississippi River. Privately

owned land does not become part of a navi-

gable body of water when a nearby navigable

body of water overflows its normal bed and

temporarily covers the property. Gassoway

Lake is landlocked and does not now lie in

the bed of the Mississippi River, which is

some three and one-half miles to the east;

jurisdiction at the point on the river bank where there is a clear

demarcation.

8

likewise, it is not a channel of the river, since

it is cut off from it.

[Pet. App. at 111]

Under controlling Louisiana law, non-navigable

water bodies like those on Walker’s Property are

subject to the law governing dry land. See La. Civ.

Code art. 506 cmt. d. [Pet. App. at 113] Louisiana

courts hold that property lying between the river and

the levee is not the “bank” of a navigable river.

“(Flour to five miles distance [between the levee and

a river] cannot, in my view be construed as being in

proximity to the river.” State v. Barras, 602 So. 2d

301, 304 (La. App. 3rd Cir. 1992), aff’d, 615 So. 2d

285 (La. 1993). And, even if the Property were

deemed to be the “bank” of the Mississippi River,

Louisiana law permits use of the river bank only for

purposes of navigation, which do not include fishing

and hunting. [Pet. App. 119-20 fn. 16]

Of direct importance to Petitioners’ § 1983 action,

the Louisiana appellate court ruled unequivocally:

Walker Lands does, however, have a right to

prevent its private property from being ex-

ploited. It has the same rights as all other

owners of private property against a person

or entity who invades its land and that is to

enforce its rights as a private landowner

through use of the trespass statutes, to seek

specific damages against a person or entity

or to ask for an injunction against a specific

person or entity. ... Owners of private prop-

erty may forbid entry to anyone for purposes

| EEE

9

of hunting or fishing and the like. La. C.C.

art. 3413.

[Pet. App. at 118-19] The Louisiana Supreme Court

denied further review of this ruling. 903 So.2d 442

(La. 2005).

The State Court Proceeding that Walker litigated

to finality thus settled the elements necessary to

support dismissal of Petitioners’ federal action chal-

lenging their arrest. The final decision (i) found the

Property and its waterbodies to be non-navigable and

private, (ii) held that temporary flooding by Missis-

sippi River waters does not alter the character of the

Property, (iii) acknowledged the absence of any right

of use by the public for fishing, hunting, or other

activities, and (iv) authorized the arrest of trespass-

ers. This decision cannot be ignored or altered to

serve the mission of Petitioners and their amici to

create heretofore unknown rights under federal law.

The Fifth Circuit properly rejected Petitioners’ collat-

eral assault on the holdings of the Louisiana courts.

See 28 U.S.C. §1738; Allen v. McCurry, 449 U.S. 90

(1980); A.L.T: Corp. v. Small Business Admin., 801

F.2d 1451 (5th Cir. 1986). See also United States v.

Harrell, 926 F.2d 1036, 1044 (11th Cir. 1991) (apply-

ing Alabama law to deny fishermen access to non-

navigable river tributary). Petitioners’ arguments,

which have attained even more hyperbolic propor-

tions in this Court, should be rejected here as well.

.

10

SUMMARY OF ARGUMENT

The most obvious reason why certiorari should be

denied in this case is that Petitioners were arrested

on non-navigable waters.° Under the governing Lou-

isiana law, this factual finding renders Walker’s

Property, including its non-navigable water bodies,

private — even when temporarily inundated by waters

from the Mississippi River. [Pet. App. at 114-15]

Consequently, Petitioners’ refrain that they seek

to protect the right to recreation in the navigable

waters of the U.S., and that the courts below have

struck an unprecedented blow to this right, is a

hollow argument. The Fifth Circuit merely reiterated

long-established law that the federal navigational

servitude has never included recreational fishing.

Indeed, no “recreational use exclusion” could possibly

exist because the right to recreate on navigable

federal waters has never been recognized; therefore,

that right was not “excluded” from the activities that

* Navigability is a factual issue. See Indian Bayou Hunting

Club, Inc. v. Taylor, 261 So.2d 669, 671 (La. App. 3rd Cir. 1972)

(“A test of the navigability of water bottoms is that those which

are navigable in fact must be regarded as navigable in law. .. . ”):

Trahan v. Teleflex, Inc., 922 So.2d 718, 722 (La. App. 3rd Cir.

2006) (“Navigability is a question of fact and must be proven.”).

The test for navigability utilized in the State Court Proceeding

is similar to the test under federal! law as set forth in The Daniel

Ball, 77 U.S. 557 (1870). See Pet. App. 113. (“A body of water is

navigable in fact if it is capable of being used for a commercial

purpose over which trade or travel are or may be conducted in

the customary modes of trade and travel.”).

11

are authorized as “navigation,” as it was never in-

cluded.

As is easily gleaned from a reading of the Peti-

tion, each of Petitioners’ federal law theories pertains

to certain rights to use navigable waters located in a

navigational channel used in commercial navigation.

Therefore, even assuming there were a right pro-

tected by some constitutional, statutory, or common

law theory to fish in navigable waters, such a right

would be irrelevant here. Consequently, because the

decision below does not involve navigational rights in

navigable waters, Petitioners’ arguments do not merit

further consideration.

¢

ARGUMENT

1. The public has no right te recreation on

private property under the Privileges and

Immunities Clause.

Section I of the Fourteenth Amendment provides,

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States.” As in their arguments under other

theories, Petitioners assert that the Privileges and

Immunities Clause protects recreational fishing

rights in navigable waters — a proposition that is not

supported by the cases cited by Petitioners. Those

cases need not concern the Court, however, because

even if the Privileges and Immunities Clause protects

fishing in certain parts of navigable rivers, the Fifth

Circuit’s prohibition to the public use of overflow

12

waters on private, non-navigable property would not

conflict with the jurisprudence under the Privileges

and Immunities Clause.

Petitioners’ cited cases are simply not on point.

Moreover, consistent with the Privileges and Immuni-

ties Clause, the holdings in many of Petitioners’ cases

place limitations on the public’s rights. For example,

Smith v. Maryland, 59 U.S. (18 How.) 71 (1855), cited

as reaffirming the People’s right of “use and owner-

ship of the navigable waters and right to use the

abundance of the fishery therein,” holds that Mary-

land could impose forfeiture of a vessel harvesting

oysters below the low-water mark of Chesapeake Bay;

although the State held the property in trust for

public rights, including fishery, the State could regu-

late exercise of those rights. Martin v. Waddell’s

Lessee, 41 U.S. 367 (1842), cited for the right of all

citizens to “piscary (fishing) in the navigable waters

of America,” holds that the right to maintain oyster

beds in “public rivers and bays” of New Jersey be-

longs to the owner of the soil under the water. The

Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1872),

cited for the constitutional privilege and federal

“common” right of “travel, navigation, and fishing,”

noted, in dicta, only that the “right to use” navigable

waters is protected by the Privileges and Immunities

Clause. The right at issue in The Slaughterhouse

Cases, to practice butchering without restriction, was

not within the clause. Finally, Baldwin v. Fish &

Game Commission of Montana, 436 U.S. 371 (1978),

cited as reaffirming the constitutional right of navi-

gation, held only that big game hunting was not

13

protected by the Privileges and Immunities Clause

and that state game laws are constitutional.’

The Privileges and Immunities Clause has noth-

ing to do with the right Petitioners ask this Court to

create: the right to come upon and use the private

property of a fellow citizen. Indeed, if anything, such

a right would be antithetical to the right of every

citizen, including Walker, “to acquire and possess

property of every kind,” a right enumerated in The

Slaughterhouse Cases, 83 U.S. at 76, as protected by

the Privileges and Immunities Clause.

2. The public has no right to recreation on

private property under the Public Trust

Doctrine.

Petitioners distort the Public Trust Doctrine by

pulling isolated phrases from inapplicable judicial

decisions. The Public Trust Doctrine holds only that

upon admission to the Union by Act of April 14, 1812,°

2 Stat. 641, 642, Louisiana acquired sovereignty of

" Although the Petition cites no authority for the right to

hunt on navigable waters, Petitioners and others have, in fact,

sought to use Walker’s Property for hunting, an activity that

could be encompassed within the right of “recreational use,”

which could be construed to encompass myriad activities.

* The water bodies on the Property did not exist in 1812.

[Pet. App. at 7! Therefore, in addition to other reasons, Petition-

ers’ arguments fail because even if the Property were navigable

(it is not), Louisiana would not have acquired ownership

through the Equal Footing Doctrine.

14

the navigable water bottoms in the state on equal

footing with the original 13 states, limited only by

“the paramount power of the United States to ensure

that such waters remain free to interstate and foreign

commerce.” Montana v. United States, 450 U.S. 544,

551 (1981). See also Dardar v. Lafourche Realty Co.,

985 F.2d 824 (5th Cir. 1993). Petitioners’ reliance on

the Public Trust Doctrine rests on a series of invalid

premises: first, they incorrectly characterize the

Property as Public Trust waters; second, they contend

that the federal navigational servitude burdens the

Property; and third, they assert that the federal

navigational servitude would allow them to fish,

hunt, and pursue other recreational activities on the

Property.

The Public Trust Doctrine does not apply to

Walker’s non-navigable property. Phillips Petroleum

Co. v. Mississippi, 484 U.S. 469, 479 (1988) (citing

Smith v. Maryland); Shively v. Bowlby, 152 U.S. 1, 26

(1894). As the Fifth Circuit recognized, “The naviga-

tional servitude does not burden land that is only

submerged when the river floods.” [Pet. App. at 15

(citing Oklahoma v. Texas, 260 U.S. 606, 632 (1923);

United States v. Harrell, 926 F.2d 1036, 1041-43 (11th

Cir. 1991); United States v. Claridge, 416 F.2d 933,

934 (9th Cir. 1969), cert. denied, 397 U.S. 961 (1970))!

This rule derives from the principle that naviga-

bility for the purposes of the federal navigational

servitude extends only to a river’s “ordinary” high

water mark as defined under 33 C.F.R. §329.11(a),

under which federal jurisdiction ends at the clear

15

demarcation on the river bank between the river and

the uplands — as seen by destruction of terrestrial

vegetation, litter or debris, changes in the character

of the soil, or similar characteristics. As shown by

maps and photographs in evidence, this test places

Walker’s Property entirely above the “ordinary” high

water mark and, therefore, outside the federal navi-

gational servitude.”

Petitioners’ argument for application of the

federal navigational servitude over temporarily

flooded property was refuted in United States uv.

Harrell, 926 F.2d 1036, which the Fifth Circuit cited

with approval. [Pet. App. at 15, 16] In that case,

similar to Petitioners’ contentions, the Corps argued

that the federal navigational servitude included

Lewis Creek, a privately owned non-navigable tribu-

tary subject to overflow from the navigable Tombig-

bee River. Based on the Corps’ assertion, a group of

sportsmen claimed access to Lewis Creek during

times of high water. The Eleventh Circuit soundly

rejected the attempt to extend the federal naviga-

tional servitude over the temporarily submerged

property:

The definition of “ordinary high water mark”

advanced by [the Proponent] would extend

* Although the Fifth Circuit was not able to make a defini-

tive determination of the federal high water mark on the

Property, the court observed, based on available evidence, that

“it is unlikely that it includes much of the Property.” [Pet. App.

16 fn. 4 (citing Harrell, 926 F.2d at 1043)]

16

the regulatory jurisdiction of the United

States to farmland and hardwood forests in

these bottom lands simply because the Tom-

bigbee River periodically floods its banks

during the winter and spring wet months. To

argue that the [U.S.] government’s jurisdic-

tion should extend laterally as much as three

miles on either side of the Tombigbee River is

ludicrous.

Id. at 1043 (emphasis added). The court recognized

that the Corps’ proposed definition “would recognize

no horizontal limits to the ‘bed’ of a navigable river in

those areas where the banks are relatively low and

flat....” Id. As the Harrell court acknowledged,

arguments for such a limitless federal servitude must

be rejected — not only because unsupported by law

but for obvious practical reasons as well.

If Walker’s Property were subject to the federal

navigational servitude, hundreds of thousands of

acres of other privately-owned property in Louisiana

also would suddenly be subject to recreational fishing,

hunting, and “other uses.” The property rights of any

owner whose premises may be seasonally flooded

would be threatened. Some of this property is resi-

dential, such that homeowners would be faced with

strangers fishing and even hunting in their back-

yards. Shipping facilities and manufacturing plants

on the banks of navigable rivers would be accessible

to anyone carrying a fishing rod or rifle — with obvi-

ous security risks. The taxpayers would bear the

brunt of funding the compensation that would be paid

17

for such “takings,” while state and local jurisdictions

could lose millions of dollars in property tax reve-

nues.” Titles to all seasonally flooded property would

be clouded, complicating real estate sale and loan

transactions. Plainly, Petitioners’ short-sighted ar-

guments do not warrant such radical changes to

fundamental principles of property law.

Moreover, even assuming that a navigational

servitude were to apply, its imposition would be

limited by Kaiser Aetna v. United States, 444 U.S. 164

(1979), in which this Court held that the Corps’

regulatory jurisdiction does not allow public access to

privately-owned property incapable of use as a con-

tinuous highway of commerce. As the Court held in

Kaiser, “while Kuapa Pond may be subject to regula-

tion by the Corps of Engineers, ... it does not follow

that the pond is also subject to a public right of

access.” 444 U.S. at 172-73. Because the State Court

Proceeding found Walker’s Property incapable of

serving any useful commercial navigation purpose,

under Kaiser, there can be no public right of access

even if the Property were subject to federal regula-

tion.

'° Riparian owners face the risks of loss of valuable property

due to natural changes in the river course; however, this risk

does not include extensions of the navigational servitude to

include recreational fishing and Ff inting. The navigational

servitude cannot be extended without compensation to private

landowners.

18

Finally, in addition to not providing public access

to private property, the federal navigational servitude

does not afford Petitioners with the right to fish,

hunt, camp, or pursue similar activities. Such activi-

ties do not constitute navigation and, indeed, would

interfere with navigation. While some cases recognize

that the federal right of navigation encompasses

federal interests such as flood control, these cases do

not extend that interest to recreational fishing and

hunting. None of the cases cited by Petitioners stand

for the novel proposition that they are entitled to

conduct recreational activities in all waters governed

by the federal navigational servitude." Indeed, the

case law is to the contrary. See Phillips Petroleum,

484 U.S. at 482-84 (acknowledging that fishing is not

related to navigability); George v. Beavark, Inc., 402

F.2d 977, 981 (8th Cir. 1968) (“Although the rule on

navigability has been at times liberalized, to our

knowledge none of the authoritative cases has liberal-

ized the rule so as to indicate that mere pleasure

fishing on a stream of water is such usage as would

" The Petition’s reliance on decisions that define the extent

of private ownership rights in property burdened with the

federal servitude for navigation, including the right to compen-

sation in “takings” cases, misreads those decisions, which do not

address the recreational rights Petitioners seek in property that

is not burdened with the servitude. See United States v. Kansas

City Life Ins. Co., 339 U.S. 799 (1950); United States v. Chan-

dler-Dunbar Co., 229 U.S. 53 (1913); Gibson v. United States,

166 U.S. 269 (1897); Coastal Petr. Co. v. United States, 207 Ct.

Cl. 701, 524 F.2d 1206 (Ct. Cl. 1975).

19

constitute navigability.”). The Fifth Circuit did not

create new law in following these cases.

The federal navigational servitude exists only by

virtue of the Commerce Clause for the purpose of

allowing the U.S. government to preserve “navigation

in interstate commerce.” Kaiser, 444 U.S. at 178;

Vaughn v. Vermillion, 444 U.S. 206 (1979); Dardar v.

Lafourche Realty Co., 985 F.2d 824, 832 (5th Cir.

1993). The right of the government in navigable

waters is “limited to the control thereof for the pur-

poses of navigation.” Port of Seattle v. Oregon &

Washington R.R., 255 U.S. 56, 63 (1921). A federal

navigational servitude may not arbitrarily destroy or

impair the rights of riparian owners absent a real or

substantial relation to control of navigation. United

States v. River Rouge Improv. Co., 269 U.S. 411, 419

(1926). The Fifth Circuit correctly followed this

jurisprudence. [Pet. App. at 16-17]

3. Federal common law does not support pub-

lic access to private, non-navigable property.

Failing a right to pursue their activities under

constitutional, statutory, or regulatory law, Petition-

ers next assert a federal common law right to recrea-

tion on private water bodies under the “broad and

flexible” common law right of navigation. Neither

Petitioners nor their amici, however, cite any consti-

tutional, statutory, or jurisprudential provision that

would require the federal courts to make common law

in contravention of specific state laws in an area that

20

is subject to regulation by the various states. The

Fifth Circuit properly declined to create such law.

Contrary to Petitioners’ contentions, the federal

common law may not supplant state law in areas that

are of no interest or concern to Congress. See Dan-

forth v. Minnesota, 128 S.Ct. 1029, 1046 fn. 24 (U.S.

2008) (citing Boyle v. United Technologies Corp., 487

U.S. 500, 504 (1988) (““[WJe have held that a few

areas, involving ‘uniquely federal interests,’ are so

committed by the Constitution and laws of the United

States to federal control that state law is pre-empted

and replaced, where necessary, by federal law of a

content prescribed ... by the courts — so-called ‘fed-

eral common law’”). Federal common law may be

created only when state law would significantly

conflict with “uniquely federal interests.” Boyle, 487

U.S. at 508. The right to recreation on private, non-

navigable property is not a uniquely federal interest.

As the Fifth Circuit held after reviewing Petitioners’

arguments under Louisiana and federal law, “In any

event, as things now stand, the right to fish on public

trust lands is governed by Louisiana law, and there is

no reason for us to displace that law by adopting a

federal rule of decision in this context.” [Pet. App. at

18] This conclusion is eminently correct.

Petitioners argue that a federal common law

right to hunt and fish on submerged riparian lands

was found in cases such as Silver Springs Paradise

Co. v. Ray, 50 F.2d 356 (5th Cir. 1931). Silver Springs

is inapplicable because it involved a claim by riparian

landowners to land beneath waters that met the

21

Daniel Ball navigability “commerce test.” Petitioners’

citation to dicta in other cases is equally unavailing.

In Lawton v. Steele, 152 U.S. 1383 (1894), which Peti-

tioners cite for the alleged common law right to fish

navigable waters, the Court held that a fisherman’s

constitutional rights were not violated by the State’s

confiscation of his fishing gear under fish and game

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

(1900), held that no compensation was due a riparian

owner whose access to a public, navigable river was

obstructed by a pier constructed by the United States.

Finally, Kaiser Aetna, 444 U.S. 164, holds only that

Congress has authority under the Commerce Clause

to legislate access to navigable waters, not that it

must do so.

Petitioners’ contention that the Fifth Circuit’s

holding is in conflict and may interfere with the laws

of various states is not supported by the very authori-

ties Petitioners cite. Indeed, because state law deter-

mines the rights of the public and private owners in

non-navigable waters, federal law is not implicated at

all. In particular, it is difficult to fathom how Louisi-

ana’s uniquely civilian law, derived from the laws of

France, Spain, and ultimately, Rome, could impact

the property and navigational laws of other states,

which derive from the law of England. Petitioner’s

cited Louisiana case, State v. Barras, 615 So.2d 285

(La. 1993), held, consistent with the Fifth Circuit’s

reasoning, that there was no public right to crawfish

on temporarily flooded, private swampland. The law

of the other Fifth Circuit jurisdiction that Petitioners

22

cite, Mississippi, also is not threatened by the Fifth

Circuit’s holding. Exemplary of Petitioners’ other

cited cases, Delinks v. McGowan, 173 A.2d 488 (Conn.

1961), found only that a statute authorized the State

to purchase property for public access to a navigable

river. Significantly, however, the court recognized that

“the upland owner has the right to prevent the public

from crossing the private lands which border on these

public domains and are above the high-water mark.”

Id. at 491. And, as recognized by the commentator the

Petition cites, “Absent federal preemption under the

commerce clause, states have been free to make their

own navigability determinations of waters within

their boundaries.” See Comment: Floating on Un-

charted Headwaters: A Look at the Laws Governing

Recreational Access on Waters of the Intermountain

West, 5 Wyo. Law Rev. 561, 567 (2005). Clearly, what

the Fifth Circuit decided with regard to Walker’s

Property, which is non-navigable and private under

Louisiana law, has no practical or legal impact on the

laws of other states.

4. Federal statutory law and regulations also

do not support public access to private

property.

Finally, Petitioners rely on several federal

conservation and wildlife protection statutes that

purportedly grant a federal right to hunt and fish.

See Fish and Wildlife Coordination Act of 1985, 16

U.S.C. §§661-668; The Fish and Wildlife Act of 1956,

16 U.S.C. §§742a-742};; The Magnuson-Stevenson

23

Fisheries Management and Conservation Act of 1996,

16 U.S.C. §1801 et seg.; and the Clean Water Act, 33

U.S.C. §1251 et seq. Neither these statutes, nor any

others, provide public access to the Walker Property.

While portions of some of the statutes Petitioners

cite mav promote, protect, or recognize the impor-

tance of recreational fishing, none of the statutes

create, or even mention, the right Petitioners seek to

go onto overflow waters located from time to time in

the “shallows” on property owned by another for the

purpose of pursuing recreational activities. As Peti-

tioners correctly acknowledge, it is for Congress to

decide whether it will regulate a particular sphere of

activity. Tellingly, Congress enacted the laws Peti-

tioners cite to protect natural resources, but Congress

chose not to enact legislation providing access to

privately-owned property for recreational hunting

and fishing. As observed in Kaiser Aetna, 444 U.S. at

174, Congress’s expansive authority under the Com-

merce Clause allows it to legislate access to specific

waters if it chooses to do so. Therefore, the fact that

Congress chose not to speak on the subject is consis-

tent with the principle that public access and fishery

rights may not be inferred from these statutes. See

Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e

ordinarily resist reading words or elements into a

statute that do not appear on its face.”). Courts have

a duty to refrain from reading a phrase into a statute

when Congress has left it out. Keene Corp. v. United

States, 508 U.S. 200, 208 (1993); Snapp v. Unlimited

Concepts, Inc., 208 F.3d 928, 936 (11th Cir. 2000)

24

(“[W]e should not be quick to conclude that Congress

either neglected to consider an issue related to its

enactments, or decided to avoid the issue and leave

its resolution to the courts.”).

Far from flouting Congress’s plenary authority to

legislate over navigable waters, the Fifth Circuit’s

decision recognized that its authority is limited to

federal navigable waters where commercial naviga-

tion takes place. Petitioners cite no statute or deci-

sion evidencing that the Walker Property is used or

usable for commercial navigation. The State Court

Proceeding produced evidence that the Property was

not capable of cominercial navigation. Plainly, Peti-

tioners have no federal right for this Court to enforce.

¢

CONCLUSION

Petitioners ask the Court to make sweeping new

law that whenever waters from navigable rivers cover

the land between the Corps of Engineers levees,

private property rights vanish, allowing unfettered

public access to hunt, fish, trap, camp, and even

commercially exploit private property. Such a deter-

mination would overrule centuries of state and fed-

eral law. The Fifth Circuit and the Louisiana courts

correctly rejected this unwarranted extension of

public access law and destruction of private property

rights.

25

WHEREFORE, amicus curiae Walker Cottonwood

Farms, LLC respectfully requests that this Court

deny the Petition.

Respectfully submitted,

CONSTANCE CHARLES WILLEMS

(#13846)

Counsel of Record

F. SHERMAN BOUGHTON, JR.

(#24030)

MCcGLINCHEY STAFFORD PLLC

643 Magazine Street

New Orieans, LA 70130

Telephone: (504) 586-1200

Counsel for Walker Cottonwood

Farms, LLC, Successor-in-Title

to Walker Lands, Inc.

App. 1

WALKER LANDS, INC. SIXTH JUDICIAL

AND HOLLYBROOK DISTRICT COURT

LAND COMPANY, INC. — parioy OF EAST

VERSUS CARROLL

STATE OF LOUISIANA STATE OF LOUISIANA

NO. 17,746

FILED: MAY 1, 2003 s/ Charlotte B. Herrington

DEPUTY CLERK

REASONS FOR JUDGEMENT

This matter came on for hearing before this

Court as a result of a lawsuit filed originally by

Walker Lands, Incorporated and Hollybrook Land

Company, Incorporated, hereinafter referred to as

Walker and Hollybrook or Plaintiffs, against the East

Carroll Parish Police Jury. The State of Louisiana

was later joined in the suit. The suit seeks an injunc-

tion against certain individuals from using the lake

for certain activities including hunting, fishing,

trapping, and for commercial, as well as for recrea-

tional pursuits. The plaintiffs assert that the property

in question, an area in East Carroll Parish, which lies

east of the levee adjacent to Highway 65, and in-

cludes an unnamed, unpaved road running from

Highway 65 to Lake Gassoway, as well as the bed,

bottoms, and waters of Lake Gassoway, and a ditch or

outlet channel, along with certain other lakes is

privately owned and not subject to any right of public

access or use. The Attorney General issued an opinion

on May 25, 1996, Opinion 26-906, which concluded

App. 2

that “Lake Gassoway is a naturally navigable body of

water under both State and Federal law and actually

supports navigation for such purposes as hunting,

fishing, trapping, and for limited commercial pur-

poses” in addition to recreational purposes. The

opinion further states that the Lake constitutes a

navigable “highway of commerce.”

On June 10, 1996, the plaintiffs filed the Injunc-

tive suit which is the subject of this opinion. In sup-

port of their claims, Plaintiffs pleaded their titles to

the Property and the Road and the absence of any

right of public use over either the road or Lake Gas-

soway itself. Plaintiffs sought injunctive relief based

upon the violation of their right to own private prop-

erty and their constitutional rights to due process and

equal protection.

On June 12, 1996, this Court issued a temporary

restraining order prohibiting the Police Jury and all

other persons or governmental agencies from remov-

ing the fences placed across plaintiffs’ privately-

owned roadways and from using such roads or other

means of access to Lake Gassoway and from going

upon or using Lake Gassoway and the ditch for any

purpose, including boating, fishing, and b:inting. 'This

restraining order was extended by consent of all

parties.

Following the filing of its Answer, the Police Jury

filed a third-party demand against the State of Lou-

isiana. This Court ruled that the State of Louisiana

was an indispensable party to the suit based on the

App. 3

alleged duty of the State to defend title to all public

lands and any alleged rights of public access to, and

use of, Lake Gassoway. On March 11, 1997, Plaintiffs

filed an Amended and Supplemental Petition seeking

a declaratory judgment declaring that 1) Plaintiffs

are the owners of the Road; and 2) are the owners of

the bed, bottoms, and waters of Lake Gassoway and

of the surrounding land as described in its title.

Plaintiffs’ Amended and Supplemental Petition also

sought a judgment declaring and confirming that

certain definitive judgments entered in 1918, 1963,

and 1967, which adjudicated the ownership and title

to the property at issue to private owners, have res

judicata effect, and that the Road and the Lake are

not subject to any right of public use or to express or

tacit public dedication. On October 13, 1997, Plain-

tiffs joined the State as a direct Defendant, asserting

the same claims and demanding the same relief

against the State as against the Police Jury.

Upon the filing, briefing, and hearing of three

motions for summary judgment filed by Plaintiffs,

this Court ruled in favor of Walker and Hollybrook

on March 16, 1998, and granted Plaintiffs’ request

for an injunction. The State appealed this judgment.

The Second Circuit Court of Appeal reversed this

Court’s decision on the summary judgment motions

and remanded the case, finding that summary judg-

ment was not an appropriate vehicle to establish the

issues of this case. Plaintiffs’ application for review

was denied by the Louisiana Supreme Court. The

App. 4

injunction’s continued validity was confirmed by this

Court by Order of September 24, 1999.

The State in its Answers denied that the bed,

bottoms, and waters of Lake Gassoway are free and

clear from public use and denied that the Lake was

privately owned, but only “to the extent” such owner-

ship was “contrary to the provisions of La. R. S.

9:1101.” On October 29, 1999, the State filed a Motion

for Leave to File a Supplemental and Amending

Answer and Reconventional Demand, alleging that

the State owns all running waters in Lake Gassoway

and in a number of other lakes, and that the State

owns unnamed islands and bars “not attached to the

bank at the time of formation and formed in the beds”

of the Mississippi River “in the vicinity of the dis-

pute.”

The State also claimed ownership or servitudes

to Little Gassoway, Doe Lake, Mud Lake, Lost Lake,

Snag Lake, and any other lakes or water bodies on

the Property (collectively “the other lakes”). In addi-

tion, the State claimed Gin Lake and Little Snag

Lake, although they are located in Arkansas. The

State claims Snag Lake in its entirety, although the

State line runs through Snag Lake and only a portion

of the southern part is in Louisiana. The State’s

Motion for Leave was heard on December 30, 1999.

This Court denied the State’s motion, but because

Plaintiffs had claimed possession and ownership, the

Court allowed the State, over Plaintiffs’ objections, to

present any evidence it desired to prove the issues

App. 5

raised in the State’s proposed, but unfiled, amended

answer.

The original defendant, the Police Jury, in its

defense to Plaintiffs’ claims, asserted that the Road

was publicly owned and/or impliedly or tacitly dedi-

cated to the public as a result of alleged construction

and maintenance of the Road by the Police Jury. By

Judgment of September 27, 2000, the Police Jury

dismissed all its claims to the Road, and this Court

confirmed that the Road was privately owned and

maintained. The Police Jury also dismissed its third-

party demand against the State. Thus, the issue of

the ownership of the Road was resolved in favor of

Hollybrook and Walker prior to trial by this Court’s

Judgment confirming the private ownership of the

Road. Therefore, the ownership of the Road was not

considered at the trial. Hollybrook’s dismissal was

confirmed by Judgment dated September 25, 2001,

which Judgment fully reserved Walker’s rights to

pursue all of its claims.’

The case was tried on January 10-14, 1999 [sic],

and on January 24-27, 1999 [sic], when it was ad-

journed due to a severe snowstorm. Trial resumed on

September 24, 2001, and was completed on Septem-

ber 26, 2001. A total of 40 witnesses testified at the

trial, producing a transcript of 2,115 pages. A total of

‘ Since Hollybrook Land Company, Incorporated, had been

dismissed as of September 25, 2002 [sic], Walker Lands, Incor-

porated, will be referred to as Walker or Plaintiff.

App. 6

240 exhibits were introduced. This Court allowed the

State to raise all issues and introduce any evidence it

thought to be helpful to its position. As this Court

stated at trial, the Court has received extensive

evidence. In addition, as part of the trial, this Court

made a site visit to the Property together with repre-

sentatives of the State and Walker on March 9, 2000,

and again on February 8, 2002. On the date of the

first site visit, the elevation of the Mississippi River

was 97.6 feet, NGVD, and 24.6 on the Vicksburg

gauge. On the date of the second site visit, the stage

elevation of the Mississippi River on the Vicksburg

gauge was 36.2, which is equivalent of an elevation of

109.2, NGVD.

Both the Plaintiff and the Defendant agree that

in 1812 when Louisiana was admitted to the Union,

Lake Gassoway was not in existence, but was either

woods or farm land. The parties agree that the area of

dispute was patented to private owners during the

1830’s. The parties agreed that the patents were

properly issued and the tax records indicate that

taxes on the property in question have been paid by

private owners. During a period of time between the

1860’s and 1870’s the Mississippi River system began

moving in a westernly direction toward the geo-

graphical site now occupied by Gassoway Lake. When

the witnesses from the Louisiana State Land Office

were called by Plaintiffs at the beginning of the trial,

they declared that their department has not made

any claims that the State owns any of the lakes or

lands on the property in question in its sovereign

capacity.

App. 7

The private owners presented proof that they

have been in corporeal and civil possession of the

Property, as shown by the conveyance and mortgage

records of the Parish of East Carroll and by the

testimony of the witnesses. Under La. Code Civ. Proc.

art. 3653, Plaintiff had to show only that it has

“better” title. Plaintiff has proven that it has title and

that Plaintiff and its predecessors-in-title have pos-

sessed the Property. Non-navigable lakes on property

are subject to the law governing dry land. La. Civ.

Code. art. 506, comment (d). Lakes, therefore, need

not be described separately in titles.

Before Walker acquired the Property in 1974, it

was used and maintained by pr/vate predecessors-in-

title. Prior to 1960, the Property was farmed, used for

cattle grazing, and for other purposes, as established

by testimony of Mr. Robert Amacker, Jr., which owned

and acquired increasingly larger sections of the

Property since the early 1900’s. Documents filed in

the public records establish that all of Walker’s

predecessors-in-title used the Property to its fullest

extent. The Property records show the inscriptions of

timber leases and deeds, farm leases, tax sales,

mortgages, title disputes among private owners, and

grants of railroad, highway and levee servitudes.

It was not uncommon at that time, prior to the

late 1950’s the then-owners did not prohibit people

from fishing on the Lake. However, the owners at all

times exercised their ownership interests and domin-

ion over the Property and defended their title. (PI.

Exh. 10). In the 1940’s and prior to the late 1950's, an

App. 8

ungraveled, unpaved, mud ramp provided access to

the lake from Highway 65, and the owners did not

prohibit access over this muddy ramp, when it was

passable. Since 1960, however, the owners and their

lessees have prohibited access other than upon their

terms, such as by imposing a fee. They built and

maintained a fence around the Property.

Mr. James Shepherd was 80 years of age when he

testified at trial. He had lived in the immediate

vicinity of Lake Gassoway from 1954 until 1980 and

testified that he and others knew that the lake was

privately owned. The Nyanza Hunting Club obtained

a lease on the Property in 1960. Mr. Shepherd was

the President of the Club. The Club graveled and

graded the mud ramp leading from Highway 65 to the

lake and also maintained it. The Club also graded a

boat launch on the western shore of Lake Gassoway

in Section 15 so patrons who paid a fee could launch

their boat. Fees were charged by the club to fish on

the Lake and collected at a bait stand on behalf of the

Club. These fees varied depending upon whether one

fished standing on the shore of the Lake, launched

one’s own boat, or rented a boat. State witnesses

confirmed that they paid a fee to access the Lake:

“(t]he little house there where you go through the

gate and you pay your fee right there,”; “[w]here you

went in at that little store they had there where the

gate is - that little store — they charged $2.00 to

launch the boat.” One of the State’s fishermen wit-

nesses, Mr. Jerry Anderson, not only admitted that he

had paid for access to the Lake in the past, but also

App. 9

that he was a member of the Walker fishing club as

late as 1998, well after the filing of this lawsuit, and

that he paid Walker for the right to fish. Neverthe-

less, Mr. Anderson claimed that the Lake is public.

Mr. Shepherd testified that the Property was

fenced and posted. The Club continued to lease and

maintain the Property, and charge fees for access to

the Lake, until Walker acquired the Property, the

rental of boats continued until the mid 1980’s. Walker

employees kept the property posted and removed

trespassers from the Property. State witnesses ac-

knowledged that the Property was posted. Some of

the State witnesses admitted that they had been

arrested for trespassing more than once. “I knew the

landowners did not want me there.”

Walker presented the testimony of Sam House,

who was the Sheriff of East Carroll Parish from July

1, 1968 to July 1, 1980, and Earl Fortenberry, both of

whom were members of the Club. They testified that

the Club restricted access to the Property to its own

members for hunting, fishing and other purposes, and

allowed access to Lake Gassoway by non-members

only for the purpose of fishing, but not hunting, for a

fee, the proceeds of which were used to build and

maintain roads and the ramp. Others, including those

who attempted to enter the Lake through the ditch,

were considered trespassers and were asked to leave,

or, if they did not leave, were arrested. Walker pre-

sented the testimony of 72 year old Reverend Arthur

L. Thomas, a member of the Police Jury from 1974

to 1993, who has lived in the area all his life and

App. 10

testified that it was generally known that Hollybrook

owned the Property and that his constituents did not

complain about the Lake not being accessible. Judge

Charles Brackin, who lived most of his adult life in

the area, testified that, when still in private practice,

he handled the sale of the Property to Walker. He also

confirmed the private nature of the Property. “Gasso-

way was a privately owned lake .. . |The fact that the

waters came in from the Mississippi River did not in

my opinion ... change [the private] character [of

Lake Gassoway. |” |

_ As to the testimony received by the Court as it

relates to various fisherman fishing in Gassoway

Lake over various periods of time, the Court finds

that those fishermen generally recalled paying a fee

to launch their boats at Gassoway Lake at the end of

the dirt road from US 65 over the levee to the lake.

Those fishermen who fished Gassoway Lake by

coming in through the outlet channel and/slash [sic]

ditch at the bottom of the south end of Gassoway

Lake recall encountering various obstacles in enter-

ing the Lake through that means. Thusly, the Court

does not find that the testimony of these individuals

who testified concerning fishing in the Lake in any

way reflect upon whether Gassoway Lake is a navi-

gable stream. The Court further finds that the outlet

channel/ditch is in fact a drainage ditch of Gassoway

Lake, that it has been altered by man and is not a

navigable stream as perccived by the Civil Code in

defining a navigable stream. Captain Disler was

offered by the State as an expert and the Court

App. 11

viewed and read his deposition even though the Court

felt at times he expressed his views outside his exper-

tise as a navigator. Captain Disler, in his video and

deposition, testified as to the navigability of the

outlet ditch. On the date Captain Disler visited the

Lake Gassoway area, the river was at the same level

of 24.6, Vicksburg gauge, as when the Court visited

the lake and the ditch on March 9, 2000. The Court

will note that Captain Disler never made it in his

boat all the way into Gassoway Lake, but relied on

the declaration of some local fisherman that they had

gone all the way into the lake from the Rock Pile near

Buncnes Cutoff. On March 9, 2000, when the river

was at 24.6, Vicksburg gauge, the Court viewed the

lake and the drainage ditch and observed that the

ditch could not be considered navigable. The observa-

tions and opinions of the Court as to the navigability

by Captain Disler simply did not exist to the view of

this Court when it observed the lake and the ditch at

the same level as when Captain Disler viewed the

ditch and observed the lake from an aerial view in a

plane.

The Court heard from several experts concerning

the formation of Gassoway Lake. All of the experts

testified that Gassoway Lake was not in existence in

1812, when Louisiana joined the Union and is thusly

not controlled by the law that the State owns the beds

of all rivers and lakes in existence at the time Louisi-

ana became a State. Dr. Kemp testified to his theory

of the creation of Gassoway was a result of a chute

cutoff as contemplated by article 503 of the Civil

App. 12

Code. The Court does not find that the evidence and

maps support the position of Dr. Kemp that the lake

was created as a result of a chute being silted at one

end. Both Dr. Kesel and Dr. Kemp, experts called by

the Plaintiffs’ [sic] and Defense, respectively, agree

that the lake was fully formed at the latest by 1908,

however, based on a map supplied by the State, Dr.

Kesel testified that the Lake was formed by 1894. All

the experts further agreed that the lake was not

formed as a result of an avulsion or neck cut off,

which is the creation of an oxbow type lake, which is

common along the Mississippi River

The Court carefully listened throughout the trial

to all the experts and their theories on how Gassoway

Lake was formed. The Court considered their educa-

tional backgrounds, their knowledge, their hands on

training, their testimony as it related and interacted

with the testimony of lay witnesses and persons who

were knowledgeable of the area. The Court also

considered their manner and demeanor while on

stand, the assertiveness which they had in expressing

their views, and the likelihood or probability of their

testimony being accurate as it relates to all other

evidence presented at the trial. The Court also con

sidered their studies of the Mississippi River and

knowledge of the river whether in the upper river

(Lake Providence) or lower river (South Old River.) In

considering and weighing all of this expert testimony

as it relates to the forty witnesses who were called to

testify, and considering the 240 exhibits which were

introduced, which resulted in a transcript of 2,115

App. 13

pages, the Court is firmly convinced that Dr. Kesel’s

opinion as to the formation of Gassoway Lake is a

correct recitation of how Gassoway Lake was formed.

Examples as to why the ditch is not a navigable

stream is that the ditch has been altered by man in

that it makes a ninety degree angle at one point, due

to materials placed by man, which causes the ninety

degree turn. During many times of the year, the ditch

has insuffizient water for the smallest of boats to

travel from Bunch’s Cutoff up through the ditch into

Gassoway Lake. There are man made objects, such as

the lip which was man made, that prohibits the

passage of this body of water during certain times of

the year. The Court has also noted that the amount of

vegetation in the ditch prohibits traversal of this area

during certain times of the year and even during high

water, one would have to leave the banks of the ditch

and cross private land and run along beside the ditch

in order to gain access to Gassoway Lake. Also, the

fact that even though the ditch serves as a drain for

the lake into a navigable waterway, Bunch’s Cutoff,

that does not make the drainage ditch from the lake a

navigable stream.

Dr. Kesel convinced the Court that Lake Gasso-

way was not formed as a result of a chute cutoff, as

speculated by Dr. Kemp, but the lake was created

when the Mississippi river moved slowly and imper-

ceptibly back eastward, which caused through accre-

tion growing from the banks and closing what is now

Gassoway Lake in the area which was previously

farmland. The Court will note that Gassoway Lake is

App. 14

a very shallow lake, ranging from four feet deep at

low water to twelve feet in high water, which has not

changed since it’s [sic] formation and that the depth

of the lake as compared to the depth of the Missis-

sippi channel indicates that it was not a channel of

the Mississippi River. Today, the channe! of the

Mississippi River is approximately three and a half

miles east of Gassoway Lake, which again indicates

that the Mississippi River, during the 1860’s and

1870’s, moved slowly and imperceptibly westwardly,

washing away the west bank of the river. A map

which was supplied by the State to Dr. Kesel indi-

cates that the Mississippi River in the 1880’s again

imperceptibly began to move in a southeastwardly

direction from whence it has previously come and left

behind a swale, which was then, due to accretion, left

a landlocked swale. According to the 1894 map it

shows that Gassoway Lake was fully formed as a

shallow swale, having been created by the slow

movement of the Mississippi River back eastward

from the same direction which it had come from in

the 1860’s and 1870's, forming Gassoway Lake on the

land which was previously farmland and timberland.

As it relates to Dr. Kemp’s position that Gassoway

Lake was formed as a result of a chute cutoff,

whereby the ends of the chute would silt and close,

the Court was not convinced that there was any

evidence, maps, or otherwise, to support the position

that a chute cutoff created Gassoway Lake. There

was no credible evidence presented at trial that any

accretion which formed on the bank was ever cut off

at the location of Gassoway Lake or that the river

ever opened a new channel at the location. The Court

App. 15

further finds that the outlet channel/ditch is in fact a

drainage ditch of Gassoway Lake, that it has been

altered by man and is not a navigable stream as

perceived by the Civil Code in defining a navigable

stream. The Court further finds that Dr. Kesel’s

testimony regarding the other lakes is likewise credi-

ble and convincing and the lakes are land locked

lakes, subject to private ownership.

As it relates to the position of the State that the

public has a right to access Gassoway Lake during

flood waters because it becomes a stream or channel

of the Mississippi River is erroneous. Just because

flood waters from a navigable stream cause private

property to become accessible by boat from the navi-

gable stream does not allow public access to that

private property. The lake bed, the drainage ditch

from the lake are all private property and therefore

are not accessible to the public during high water or

flood water.

The evidence clearly showed but for the actions of

man, ie [sic] landowners, Gassoway Lake would

virtually be non-existent during the low water of the

Mississippi and during the drought months of the

summer. The structures, such as the rocks, ninety

degree turn, and other man made structures keep the

lake from completely draining when no water is

incoming.

Further support of the fact that Gassoway Lake

is privately owned, the Court looks to the reports and

testimony of the State Land Office, an agency of the

defendant, State of Louisiana, who is charged with

App. 16

the management of publicly owned property. The

State Land Office does not lay claim to Gassoway

Lake and that Gassoway Lake is landlocked and

inaccessible by boat.

' The State attempted to show that it owns the

lake and it’s [sic] waters pursuant to the provision of

Louisiana Revised Statute 9:1101, which provides

that the beds and waters of lakes not under the direct

ownership of any person on August 12, 1910, were

declared to be property of the State. The testimony

and evidence received in the case that the predeces-

sors in title to the land in question were in private

ownership of the iand in question on August 12, 1910.

Also, the statute indicates that acquisition of prop-

erty under Revised Statute 9:1101 does not affect

acquisition of property by alluvion er accretion and

that it was specifically testified to by Dr. Kesel that

alluvion or accretion was involved in the creation of

Gassoway Lake.

Although the Court finds that Gassoway is not a

publicly owned body of water and is privately owned

and that the ditch is not a navigable stream, the

Court further notes that this particular tract of land

has been in litigation before and previous courts have

ruled that this land was subject to private ownership.

Judgments of 1911, 1918, 1963, and 1967 support the

position that the lands at issue had been adjudicated

to Plaintiff and it’s [sic] predecessors in title against

the State and Fifth Louisiana Levee District. (Plain-

tiff’s exhibits 75, 76, 77, and 78).

App. 17

Therefore, this Court finds that the land subject

to this lawsuit is privately owned by the Plaintiffs,

that the lake and ditch are not navigable by law, that

the State has never claimed this land in the past, and

cannot do so now, that these matters have been

litigated before and the Supreme Court affirmed that

this land was subject to private ownership. Therefore,

the Court finds that the Plaintiff has met its burden

of proof and grants a judgment in favor of Plaintiff

and the Court enters a permanent injunction enjoin-

ing the State or the general public from going on or

about property subject to this litigation, which in-

cludes Gassoway Lake and the drainage ditch which

runs from Bunch’s Cutoff northward into the Gasso-

way Lake. Court will maintain jurisdiction cf this

case to enforce any provisions of a judgement which

will be signed by this Court on proper presentation.

s/ John R. Joyce

JUDGE

AD HOC 6th JUDICIAL DISTRICT