This right to exclude the public from privately owned rivers, streams, and canals has been 

 challenged both in court and by legal writers. One theory is that since the State owns all the 

 running waters in public trust, it is illegal for the owners of the bed and banks of these water 

 bodies to deny public access to the water in them (Ketchum 1988). This is a questionable theory 

 as the language relied on in the cited case is dictum (a statement made by the court not necessary 

 for adjudication of the case) and not the holding of the case (Chaney v. State Mineral Board 444 

 So. 2d 105 (La. 1983)). The theory is also in contravention to other Louisiana cases and opinions 

 by the Louisiana Attorney General's Office (Op. Attorney General 81-785 (1981); Op. Attorney 

 General 81-873 (1981); Op. Attorney General 82-102 (1982)). 



An alternative theory supporting the right of public access to private canals has been presented 

 in two important cases. In Vaughn v. Vermilion Corp., a Louisiana case, the U.S. Supreme Court 

 held that, under Federal law, the owner of a private canal could deny public access even though 

 the canal was navigable and joined with navigable waters of the United States (Vaughn v. Vermilion 

 Corp. 444 U.S. 206). The court's holding, however, made an exception to this rule: when a private 

 canal diverts or destroys a preexisting natural navigable waterway the canal may be subject to public 

 right of use (Vaughn v. Vermilion Corp. 444 U.S. 209). 



The holding in Vaughn forms part of the basis for the State of Louisiana's current suit against 

 the Lafourche Realty Company over the closure of the Tidewater Canal System (Summersgill 

 Dardar, et al. v. Lafourche Realty Co., et al., No. 85-1015 (E.D. La. filed 6 August 1985)). The 

 Lafourche Realty Co. (defendant) had obtained a CUP and a §404 permit to establish a marsh 

 management plan by erecting water control structures in a privately owned wetland area undergoing 

 serious degradation from saltwater intrusion. The defendant also obtained a §10 permit from the 

 Corps to erect barricades to control boat traffic through the Tidewater Canal System. The 

 defendant then erected barricades, posted armed guards at them and began selectively denying 

 access to the canal. This canal system had been dug in the privately owned marsh and provided 

 access to the marsh by connecting to natural navigable waterways. It also had been used by the 

 public for many years as a short cut to prime fishing grounds. The blockage of the canal system 

 was ostensibly to prevent vandalism to the water control structures so that the marsh management 

 plan could operate properly (Summersgill Dardar, et al. v. Lafourche Realty Co., et al., No. 85-1015 

 (E.D. La. filed 6 August 1985)). 



The State is arguing as part of its case that the construction of the Tidewater Canal System, 

 along with other human activities in the area, has diverted or destroyed the system of natural 

 navigable waterways that had previously existed: the canal system has superceded the natural 

 system. Thus, under Vaughn the public has a right of use which cannot be denied by the 

 defendants (Summersgill Dardar, et al. v. Lafourche Realty Co. et al., No. 85-1015 (E.D. La. filed 

 6 August 1985)). 



The water control structures themselves are either on privately owned water bottoms or are 

 constructed on State owned water bottoms in such a way that normal boat traffic can pass. The 

 DSL, therefore, did not initially object to these structures or the barricades. Under the theory 

 mentioned earlier that the State may prevent blockage of any running waters, the barricades and 

 the water control structures would be illegal. 



The legal issues and technical aspects of State property ownership and public access rights are 

 relevant to marsh management because certain practices associated with marsh management are 

 considered by DSL to be an unconstitutional alienation (divesting or loss of ownership by sale, 

 donation, or other transfer) of State property (K. Morgan, DSL; pers. comm.). Such activities 



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