When discussing what to do about wetlands, landowners are often not present. How odd. The very folks who have the most to gain are normally considered the enemy of society in wetlands issues. Since they have personal gain at stake, they are considered “impure in motive.” Certainly, America was founded on the basis of individual freedoms and the rights of property owners. There have been some owners who have truly abused wetlands for personal gain without regard to laws, regulations, and the public good. However, most responsibly want to realize gain from their holdings while protecting the wetlands environment. The argument remains, what kind of protection and how much is enough. That is a totally different discussion that may have no solution. Property owners may work individually, or through such membership groups as the Louisiana Land Owners Association. They may also advocate through business/product groups such as Louisiana Mid-Continent Oil and Gas Association.
CONTROVERSIAL COURT RULINGS THAT AFFECT WETLANDS
1. Phillips Petroleum v. Mississippi
It has historically been believed that the beds and bottoms of all non-navigable bodies of water, including lakes, bayous, rivers, streams, ponds, tide lands, and other water bodies, may be held in private ownership. Based solely on state sovereignty, the beds and bottoms of navigable waterways are owned by the state in which they reside.
In a relatively recent U.S. Supreme Court case (Phillips Petroleum v. Mississippi, 108 S.Ct. 791, February 1988), the interpretation of ownership of coastal tidelands has changed. This decision holds that the original thirteen states, by their own agreement at our country's founding, own title to all non-navigable waterbeds subject to the ebb and flow of the tides. According to "equal footing doctrine," all states subsequently admitted to the Union would have the same entitlement. One can only imagine the anxiety this has caused to landowners in all coastal states!
Although Phillips establishes federal law that addresses the issue, it is very clear that, after the state is admitted to the Union, state law will determine title rights. Phillips further recognizes that some states have given the tidal wetlands rights over to private ownership. This sent lawyers in all coastal states scurrying about to establish that their state was one that had received the private ownership rights. Louisiana was no exception. In fact, with her vast holdings, Louisiana was among the first, if not the first, to the line.
The Louisiana Attorney General's office, on March 5, 1990, issued an opinion (No. 90-35) that stated that, based on Phillips, a waterbody is owned by the state if it "was subject to tidal ebb and flow in 1812 even though not navigable in fact." After receiving disagreement from the state's landowners, the Attorney General's office further maintained that the state's tidal wetlands must be "held in public trust for the benefit of all citizens" and that these lands "cannot be alienated except directly by the people themselves." With this stance, the Attorney General's office has taken the position that private ownership is null and void. One can imagine how this has excited the landowners!
It was apparent that the only long-term answer to this issue in Louisiana was to acquire legislative clarification. The result was the 1992 passing of Senate Bill. No. 1073. It distinguishes between Mississippi and Louisiana law; its intent was to establish that existing ownerships are valid. The result is that present Louisiana landowners have had their deeds revalidated and the ownership of Louisiana tidal wetlands remain as they existed before Phillips Petroleum v. Mississippi.
During the Louisiana legislative session of 1992, the above referenced legislation sparked all sorts of controversies. Chief among them was that the purpose of Senate Bill 1073 was to allow tidal wetlands owners to prevent public use of their waterways. The public argument was that landowners would be able to prevent fishing, canoeing, and other low-impact enjoyment of the out-of-doors. There was a very loud outcry from the crawfishing industry, which feared that landowners in the Atchafalaya Basin might refuse access to their land. Louisiana landowners deny that this was the intent. As stated, they simply wanted to reaffirm the validity of their deeds. The following statement in the bill should at least address those fears of being denied use: Page 2, first paragraph: "Furthermore, it is the intent of the legislature by the enactment of this Part that no provision herein shall be interpreted to create, enlarge, restrict, terminate, or affect in any way any right or claim to public access and use of such lands, including but not limited to navigation, crawfishing, shellfishing, and other fishing, regardless of whether such claim is based on existing law, custom and usage, or jurisprudence." Of course, the oyster industry was protected by the statement ". . . without affecting the provisions of the state Oyster Statutes passed by the legislature since 1886."
There is a feeling among some landowners that they should have the right to lease the use of natural resources on their land. Of course, they already do this with oil and gas, duck hunting, and trapping. They contend that they should be able to do the same with shrimping, crawfishing, etc. This will be an interesting discussion!
2. Lucas v. South Carolina Coastal Council (see Turner and Kalen, 1998)
In 1986, David Lucas purchased a large beachside lot on South Carolina's coast for $975,000. His intention was to build two beach houses, keeping one and selling the other. In 1988, the state passed a law barring construction on his and similar sites in order to prevent environmental damage and danger resulting from coastal storms. Lucas considered that this new regulation, after he bought his property at a time when development was legal, constituted the state taking the rights of use of his property from him. He sued using a little known aspect of the Fifth Amendment - a clause that prevents government from taking private property "without just compensation."
A court in South Carolina agreed and awarded him $1.2 million. The South Carolina Supreme Court then overruled, stating that a law passed to prevent serious public harm doesn't require compensation. Not satisfied, Lucas took his argument to the U.S. Supreme Court (case No. 91-453) which, in a 6-3 vote (June 29, 1992), ruled that, in this case the new law deprived Lucas of the entire value of his land and that the state must compensate him (unless they found exceptions such as those mentioned later in this paragraph). Justice Antonin Scalia opined that even in the case of serious harm, the state's high court did not have the right to deny Lucas "all economically viable use of his land." The Justice indicated, however, that there are exceptions. As an example, if the legal title of the land forbids the use the landowner is trying to make of his/her land, then he/she is not eligible for compensation. There are also some exceptions that will be allowed with certain types of legislative and agency directives. These must be ruled on one-by-one.
Due to the state of South Carolina passing a law, after the Lucas case was initiated, that allowed the state to make variances for such issues, The U.S. Supreme Court sent the case back to the state Supreme Court. The state granted variances for construction on the lots formerly owned by Lucas, sold them on the open market, and used the money received to pay Lucas what he was owed from the Supreme Court decision. How ironic is this?
It is interesting that the ruling was hailed as a victory by both developers and environmentalists. There followed many cases that awaited judgments in lower courts throughout the nation. The fervor has abated, but the controversy is not gone.
The bottom-line question is: who pays, taxpayers or land owners?
What are the ramifications? The central argument is that rights can be limited only at a price. One of the people writing briefs for the Lucas case, Clint Bolick, said, "If the government can't afford it, then government shouldn't do it." It is possible that any and all government constraints placed on the public can be called into question, including housing codes, zoning, and more. Environmentalists consider this ruling to signal "open season" on wetlands protection, Endangered Species Act, etc. Most scholars on the subject don't think that polluters can seek compensation due to regulation by the Clean Water Act or Clean Air Act. Let's hope they are correct!