Louisiana Coastal Wetlands Lawyer & Attorney : Erich P. Rapp : Kean Miller Law Firm : Serving New Orleans, Baton Rouge, Shreveport, Louisiana

Although efforts to stem coastal wetland loss in Louisiana are already grossly underfunded, the Corps of Engineers is seeking reimbursement for a part of the cost of dredging the Mississippi River to maintain the navigation channel from the budget for coastal restoration projects authorized and funded pursuant to the Breaux Act. See the editorial in the New Orleans Time Picayune on Monday February 18, 2008 and the related article in the New Orleans Times Picayune on Thursday February 14, 2008.

The Mississippi River Commission, which is related to and controlled by the Corps of Engineers, is taking the position that the State of Louisiana and the Corps of Engineers must pay for any increase in dredging costs that result from any coastal restoration project in Louisiana that diverts water and sediment from the Mississippi River.

Officials for the State of Louisiana believe that the transfer of this cost to the Breaux Act coastal restoration projects will effectively shut down the restoration projects.

Interestingly, Garret Graves, the Chairman of the Louisiana Coastal Protection and Restoration Authority and member of the Breaux Act task force suggested that perhaps the Corps should be responsible for the damage to the Louisiana coastal wetlands that resulted from the Corps management of the Mississippi River.

Melanie Goodman, the Corps' Breaux Act program manager replied that actions related to navigation "a century ago" which are damaging the coastal wetlands in Louisiana are in the past and not subject to reimbursement.

Of course, this entire blog is dedicated to the idea that the Corps is making decisions and undertaking actions everyday that adversely impact the Louisiana coastal wetlands and that the continuing series of interconnected decisions dating back many years is, in fact the responsibility of the Corps of Engineers and the federal government.

The Corps' two part defense is that it did not know they were damaging the coastal wetlands of Louisiana many years ago when they built dams and levees on the Mississippi River and its tributaries. This is, of course, not true. The Corps has known since the 19th century that the coast of Louisiana was subsiding and that the sediment from the Mississippi River offset the subsidence.

The additional implication from the Corps' claim about the past is that the Corps is not taking new actions today that adversely impact on the coast of Louisiana. This is also not true. The Corps makes management decisions about the Mississippi River and its tributaries such as the Missouri River and the Ohio River, everyday that deny or reduce sediment transport to the coast of Louisiana. In many ways, an analytical disconnect exists between management of the more northern portions of the Mississippi River drainage basin and the coast of Louisiana. The analysis of Corps projects in the Missouri River or the upper Mississippi River or the Ohio River almost never consider the impact of these projects on sediment transport to the coast of Louisiana, and those decisions and actions continue day after day and year after year up to the present and likely far into the future. The Corps' suggestion that the damage they have caused to Louisiana's coast is the result of actions far in the past is simply not true. It is also the result of events planned and executed in the present.

Erich P. Rapp.

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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

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