No one disputes the existence of property rights in coastal wetlands of Louisiana. People own wetland property. Nevertheless, the federal government destroys this property everyday and does not pay damages. A claim for this damage could be made. Supreme Court Justice Oliver Wendell Holmes said a claim against the federal government required "turning square corners." That may be so, and this claim is complex, but it exists. One of the purposes of this blog is to discuss federal liability for damage to the coastal wetlands in Louisiana. That discussion will take many entries. Today, I begin with the philosophical.
When one owns property, what does one actually own. The Louisiana Civil Code art. 462 speaks of "tracts of land" as constituting immovable property. The coastal wetlands are tracts of land, and the government grants property rights in these wetlands. The coastal wetlands, however, are not typical tracts of land. They exist not as a static thing but as the result of a dynamic process. The wetlands are continuously subsiding, and the flood waters of the Mississippi River were in the past depositing new sediment on that wetlands to offset the subsidence. When that process is disrupted, the land is destroyed. At present, the amount of sediment being deposited by the Mississippi River is not offsetting subsidence and thus, the coastal wetlands are lost to the open water.
I, thus, began wondering if the federal government had ever recognized and protected an interest in real property as a process, and not as a static tract of land. Amazingly, I found an answer to this question, not in a law book, but in a book on the Mississippi River written by landscape architects.
On page 48 of Mississippi River Flooding - Designing a Shifting Landscape by Anuradha Mathur and Dilip da Cunha, the authors describe the Stack Island Supreme Court case.
In 1995, the United States Supreme Court decided the Stack Island case. The case involved 2200 acres of mud in the water course of the Mississippi River. In the early 1800's, the muddy acres were an island near the bank of the river on the Mississippi side. By the time of the case in the 1990's, supposedly the same muddy acres were no longer an island and were instead attached to the bank of the river on the Louisiana side. Nevertheless, the court found that these muddy acres on the Louisiana bank of the river were the same property that was an island in the river in the 1800's. The New York Times reporter, Hubert B. Herring writing about the case on November 5, 1995 asked, “Existential Geology Anyone?”
The Stack Island case gave me a new vision of the coastal wetlands. The coastal wetlands are not static land washing away. They are a dynamic process of subsidence offset previously by sediment deposit from the Mississippi River. Yet to the casual look, the wetlands are perceived as land just as any other land. With the Stack Island case, now in the eyes of the law, perception is reality or in this case "real property." The property owners have a property right in the wetlands even if the soil making up the land changes in the dynamic process of subsidence and sediment deposit. The Louisiana coastal wetlands are an “existential” property and legally protected as such. The wetlands are real property because they are perceived to be real property and not because they are once and always made up of the same soil.
Erich P Rapp
.jpg)
