Gated canal fight

[Lil Mo]

I certainly hope something can be done.

[evinrude]

If anyone wants an example look at Orange Grove in bayou black. Now off limits.

[jcdogfish]

[QUOTE=evinrude;12443373]If anyone wants an example look at Orange Grove in bayou black. Now off limits.

Can't be any clearer than the code of federal regulations that clearly explains navigable watereways and the commerce clause that is governed by the feds.

[PMantle]

[QUOTE=jcdogfish;12445556]

If anyone wants an example look at Orange Grove in bayou black. Now off limits.

Can't be any clearer than the code of federal regulations that clearly explains navigable watereways and the commerce clause that is governed by the feds.

These have nothing at all to do with the issue at hand.

[jcdogfish]

[QUOTE=PMantle;12455976]

These have nothing at all to do with the issue at hand.

You will have to explain to me why the definition of navigable waterways has nothing to do with the issue. That is the issue. Nobody disputes the ownership of the water bottoms.

[PMantle]

[QUOTE=jcdogfish;12456599]

You will have to explain to me why the definition of navigable waterways has nothing to do with the issue. That is the issue. Nobody disputes the ownership of the water bottoms.

Because navigable waterways is a meaningless term in this context. Ownership is strictly a matter of State Law. Navigable in 1812 is all that matters. If you concede ownership of the water bottoms then you've already lost. No different than me hovering over your back yard in my personal drone.

[jcdogfish]

Section 329.8 - Improved or natural conditions of the waterbody
Determinations are not limited to the natural or original condition of the waterbody.
Navigability may also be found where artificial aids have been or may be used to make
the waterbody suitable for use in navigation.
a.Existing improvements: artificial waterbodies.
1.An artificial channel may often constitute a navigable water of the United
States, even though it has been privately developed and maintained, or
passes through private property. The test is generally as developed above,
that is, whether the waterbody is capable of use to transport interstate
commerce. Canals which connect two navigable waters of the United
States and which are used for commerce clearly fall within the test, and
themselves become navigable. A canal open to navigable waters of the
United States on only one end is itself navigable where it in fact supports
interstate commerce. A canal or other artificial waterbody that is subject to
ebb and flow of the tide is also a navigable water of the United States.
2.The artificial waterbody may be a major portion of a river or harbor area
or merely a minor backwash, slip, or turning area (see paragraph 329.12(b)
of this Part).
3.Private ownership of the lands underlying the waterbody, or of the lands
through which it runs, does not preclude a finding of navigability.

[jcdogfish]

The first edition of the CFR was published in 1938, and it has since gone through many changes. These rules are considered legally binding just as any statute. The Office of the Federal Register publishes the CFR annually in 50 titles.

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.

[PMantle]

And yet they have absolutely zero to do with this issue. It is a state issue, period. At best, the federal rules apply to what a land owner may do to change the status of their property. Read any of the La. cases on the controversy. Only the La. Civil Code is cited.

[bankmc]

The absurdity of using an 1812 map for ownership of tidal waters can not be overstated. And why an Alexandria attorney keeps beating what is going to be a dying horse is beyond me.

[jcdogfish]

And yet they have absolutely zero to do with this issue. It is a state issue, period. At best, the federal rules apply to what a land owner may do to change the status of their property. Read any of the La. cases on the controversy. Only the La. Civil Code is cited.

So Louisiana is exempt from the supremacy clause, or any federal navigable waterway laws. Show me in a statute ( not a bought and paid for Judge's ruling) that says that. In louisiana statutes it clearly states any land that falls below the water level can be claimed by the state. No one wants to take their land or property, but landowners have no issue taking the state's flowing water and the fisheries in it and use it for profit. Just dam your land off so it is landlocked and problem is solved. They chose to dig these canals and used the public's resources for their gain now they want to make them private for their gain. Not to mention the tax joke on this property. Corruption at its finest. You can dig these canals and destroy the natural waterways and natural water flow. Then when the natural waterways are destroyed and silted in, you can make the new waterways private. And if our legislature can't get this straightened out, its time for them to tax this property like the rest of the property in the state. Why are we giving tax breaks to out of state corporations that are destroying our natural estuaries. And I use tax break but its almost tax free, like pennies per acre.

This is a ruling from the Carolinas on navigable waters
[T]he controlling law of navigability concerning the body of water ‘in its natural condition’ reflects only upon the manner in which the water flows without diminution or obstruction,” wrote the court. “Therefore, any waterway, whether manmade or artificial, which is capable of navigation by watercraft constitutes ‘navigable water’ under the public trust doctrine of this state.”

[PMantle]

The absurdity of using an 1812 map for ownership of tidal waters can not be overstated. And why an Alexandria attorney keeps beating what is going to be a dying horse is beyond me.

This is a discussion, is it not? I mean, someone has to point out the problems with some of these arguments.

[PMantle]

So Louisiana is exempt from the supremacy clause, or any federal navigable waterway laws. Show me in a statute ( not a bought and paid for Judge's ruling) that says that. In louisiana statutes it clearly states any land that falls below the water level can be claimed by the state. No one wants to take their land or property, but landowners have no issue taking the state's flowing water and the fisheries in it and use it for profit. Just dam your land off so it is landlocked and problem is solved. They chose to dig these canals and used the public's resources for their gain now they want to make them private for their gain. Not to mention the tax joke on this property. Corruption at its finest. You can dig these canals and destroy the natural waterways and natural water flow. Then when the natural waterways are destroyed and silted in, you can make the new waterways private. And if our legislature can't get this straightened out, its time for them to tax this property like the rest of the property in the state. Why are we giving tax breaks to out of state corporations that are destroying our natural estuaries. And I use tax break but its almost tax free, like pennies per acre.

This is a ruling from the Carolinas on navigable waters
[T]he controlling law of navigability concerning the body of water ‘in its natural condition’ reflects only upon the manner in which the water flows without diminution or obstruction,” wrote the court. “Therefore, any waterway, whether manmade or artificial, which is capable of navigation by watercraft constitutes ‘navigable water’ under the public trust doctrine of this state.”

You'll never find the current status of our law on this in any statute. You can dismiss court cases all you want, and I wish I could as well. The problem is, the law is what the courts say it is. And I'll say it one more time: federal law has zero to do with land ownership, and land ownership is what the courts are basing this upon. As to your philosophy on the overall issue, I simply disagree, as do many others. Your views on this look to me like someone who favors state sanctioned trespassing.

[jcdogfish]

You'll never find the current status of our law on this in any statute. You can dismiss court cases all you want, and I wish I could as well. The problem is, the law is what the courts say it is. And I'll say it one more time: federal law has zero to do with land ownership, and land ownership is what the courts are basing this upon. As to your philosophy on the overall issue, I simply disagree, as do many others. Your views on this look to me like someone who favors state sanctioned trespassing.

We are actually talking about 2 different things. Navigable water and land ownership. Nobody disputes the land ownership. That's the problem in this state, the rulings here say you can't separate the 2 where other states rulings do as in the rulings in the carolinas. And no, i don't support trespassing, but I also don't support a private land owner digging a canal and using the public's resources, water and fisheries for profit while destroying the natural estuaries that were public. Do you think its OK for a landowner to dig a canal and basically steal the public's water and destroy natural bayous? Dig a pond and let rain fill it from runoff on your property is one thing, but when you dig a canal and steal and divert the flow of public waters that's something totally different. Fill in the canals and its your land, invite the water on your land and the public should have access to its fisheries and water. Simple solution is stop the flow of water over your property if you want to keep it private. You dug it to allow the water flow, reverse what you did to take the water and all is good with me. Diverting and taking the public water and fisheries is having the exclusive use of a public resource, and that is prohibited. I don't think anyone is 100% right on this issue but both sides are clearly impacted. There are a few land deeds from way back that mention numerous waterways not included. Landowners and lawyers are using the letter of the law on these old land sales which I don't blame them and they are correct. But, common sense tells us in 1812 there was no truly accurate way to identify everything that was there. So, if it wasn't there in 1812 that means if its there now it has fallen below the water line at some time later. Wouldn't that put some of it under the statute currently on the books that says the state can claim the land if the landowner does not rebuild it??. I am not for the state taking anyone's land above or below the water line. Both sides need to use a little common sense and come to some type of compromise. I would agree marsh areas should not have public access even when some of it is navigable. I disagree with the state being able to claim land that falls below the water line. I think that title should stay with the landowner and the marshland classification should be used for tax purposes. The only thing I truly disagree with is the ability for the owners of the water bottoms to stop the public from using the public's water. Especially when the landowner made the choice to invite the public's water over its land for use and profit. I also (and most people I talk to) agree if there is no solution to the access issue this land should not get any tax breaks and the state needs to start using their authority under current statute to claim these bottoms for the state.

[jcdogfish]

BTW,,,good discussion

[PMantle]

OK, so the public fish(let's be honest-none of you actually care about the water) swim into the public canal and that's bad. How is it not bad that our public deer walk onto large tracts of private woodlands?

And yes, it's a great discussion!

[bankmc]

So if I own 10 acres next to Bayou Teche and have a 3 acre pond on it that does not connect to public water, there is no limit on the number of bass I can keep in a day. If I cut a canal from my pond and connect it to Bayou Teche, then go launch my boat from the landing in Patterson and fish the pond that I can now access with my boat, the limit is 10 bass.

[jcdogfish]

One difference with the deer is the land they walk on is private land, the fish are in the public's water. They could not have gotten on private property unless them and the water was invited in by the landowner.

[PMantle]

One difference with the deer is the land they walk on is private land, the fish are in the public's water. They could not have gotten on private property unless them and the water was invited in by the landowner.

I don't see that as being different at all.

[jcdogfish]

I don't see that as being different at all.

Really......So you don't see a problem with someone digging a canal that causes natural waterways to silt in because the flow was diverted in the dug canal,,,then once the natural waterways are not able to be used putting a gate on the dug canal that close off miles of bayous and lakes? Most fish can't walk on land, they can't live on land. The only reason they and the water is over private property is because the landowner put them there by taking it from the public waterways. Basically, this issue was caused by the landowners by digging these canals and not filling them back in when done with them. Because they are deeper than the surrounding waterways and usually straighter they took most of the flow from the natural waterways. Google earth shows miles and miles of silted in waterways that used to be natural waterways. Then to top it off,,once these natural waterways become silted in and land forms they then become the property of the landowner. Seems to me if waterways that become land pass to the surrounding landowner, land that becomes water should pass to the public. When the code that is referenced in Louisiana was adopted you had to be a white male and own a bunch of acres of land to vote. So basically rich white men made the laws. It's no surprise these laws favor large land owners, its just a surprise it hasn't been questioned more because of its orgins. In the case of the marina in Hawaii that is used in most of these cases it was ruled that the dredged area could certainly be deemed public. But, because of the investments made the owners would have to be compensated. What would be fair compensation for land that is classified marshland/wasteland, that was dredged for the specific reason of oil and gas exploration. They used it for oil and gas so their return on investment was met so there is no value there. Then after used for that most were basically abandoned and left to destroy the estuary around them. The compensation should be we won't sue the crap out of you for destroying the marsh areas if access is allowed. I don't think the 2 sides are as far apart as it seems on the issue. If the legislature would decide to eliminate the marshland/wasteland classification for all owners that do not allow access to their waterways (not their property) and tax them for what they are, commercial enterprises. Then if the legislature would enact a freeze statute to set the property boundaries on bottoms that eroded I think that would solve 90% of the issues.