would include deposition of fill on State -owned water bottoms, thereby changing their character 

 to dry land, or emplacement of boat barricades across State owned water bodies, preventing the 

 public's right of access. The use of weirs may be permitted as long as the obstruction does not 

 hinder boat traffic that could normally travel the water body (Morgan, pers. comm.). The owner 

 or operator of the weir, however, is required by DSL to purchase a waterway right of way grant 

 (easement) from the State for maintaining the structure on a State-owned water bottom (La. R.S. 

 41:1702). The DSL opposes levees and dams for impoundments and water control in State-owned 

 water bottoms, even when associated with marsh management plans (Morgan, pers. comm.). 

 Although DSL has no enforcement authority, it has the authority to comment to CMD, and CMD 

 has denied applications for CUP's based on DSL objections (Clark, pers. comm.). In addition, 

 DSL refers cases to the Louisiana Attorney General Office for enforcement of this prohibition 

 (Morgan, pers. comm.). 



As mentioned above, Louisiana has always claimed ownership in public trust of the beds of 

 navigable natural water bodies. The State defines "navigable natural water bodies" as a water body 

 susceptible of use as a highway of commerce by customary modes of water transportation as of 

 Louisiana's admission to statehood in 1812, regardless of whether or not it remains so today (Stage 

 v. Aucoin, 206 La. 787, 855, 20 So. 2d 136, 158(1944)). A recent U.S. Supreme Court decision, 

 however, indicated that under Federal law, Louisiana was granted more land in public trust at 

 statehood than just the navigable natural water bottoms to which it claims ownership today. In the 

 case of Phillips Petroleum Co. v. Mississippi, the U.S. Supreme Court decided an issue of State 

 ownership of tidelands by giving a broad interpretation to the doctrine (Phillips Petroleum Co. v. 

 Mississippi, 56 USLW 4143(1988)) that says that all States were admitted to statehood on an equal 

 footing. The Court held that equal footing meant all lands subject to the influence of the tides, 

 whether or not navigable, as well as all other natural water bodies that were navigable were 

 transferred, at statehood, to each State in public trust in its capacity as a sovereign (Phillips 

 Petroleum Co. v. Mississippi, 56 USLW 4143(1988)). As Mississippi had never alienated these non- 

 navigable tidelands and had always claimed ownership to all land under tidally influenced water, 

 the title of Phillips Petroleum, which could be traced back to pre-statehood Spanish land grants, 

 was null and void. 



The effect of this decision on Louisiana property law has yet to be decided. Some legal scholars 

 theorize that Phillips Petroleum could pave the way for Louisiana to reclaim ownership in public 

 trust to privately owned lands under non-navigable natural water bodies which are tidally influenced 

 (subject to the ebb and flow of the tide) (Yiannopoulos 1988). The reasoning of this theory is that 

 the State of Louisiana, like Mississippi, has never affirmatively alienated the lands in question. This 

 is due in part to confusing definitions under Louisiana law of swamplands subject to tidal overflow 

 and water bottoms subject to tidal ebb and flow; the former of which could be alienated while the 

 latter could not (Yiannopoulos 1988). It is also due to the fact that in the 1800's large tracts of 

 unsurveyed land were sold by the State to private parties. These tracts often contained navigable 

 water bodies and lands subject to tidal influence and the question arises as to whether or not the 

 State intended to alienate them (Yiannopoulos 1988). Alternatively even if it had alienated them, 

 to do so was against the public trust and public policy of the State and therefore such alienations 

 are void (Yiannopoulos 1988). Currently under Louisiana Constitution Article IX §3 which 

 prohibits the alienation of navigable water bodies and under the case of Gulf Oil Corporation v. 

 State Mineral Board 317 So. 2d 576 (La. 75) the State may assert its ownership to navigable water 

 bodies that it has alienated (Yiannopoulos 1988). This would appear to form a foundation for the 

 State to assert its ownership of the non-navigable tidelands that it has alienated, because both 

 navigable water bodies and non-navigable tidally influenced waters were part of the public trust 

 lands given to the State under Federal law. Therefore, the same public policy should apply to 



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