The Fighting Has Begun Over Who Owns Land Drowned by Climate Change
America’s coastal cities are preparing for legal battles over real estate that slips into the ocean.
'One April morning in 2016, Daryl Carpenter, a charter boat captain out of Grand Isle, La., took some clients to catch redfish on a marsh pond that didn’t use to exist. Coastal erosion and rising seas are submerging a football field’s worth of Louisiana land every hour, creating and expanding ponds and lakes such as the one onto which Carpenter had piloted his 24-foot vessel.
Suddenly, another boat pulled up beside Carpenter’s. “You’re trespassing,” the other driver declared, before chasing him and his clients down the bayou. The sheriff’s office later threatened to arrest Carpenter if he ever returned to the pond. There was just one problem: Under Louisiana state law, any waterways that are accessible by boat are supposed to be public property, argued Carpenter—even what was previously unnavigable swampland.
Carpenter sued the sheriff, as well as Castex Energy Inc., which owns the property around the pond, for interfering with his business. A district court decided against him in March, noting that an earlier ruling found that the territory was unnavigable swampland when the state sold it into private ownership in the 1800s. Carpenter is appealing that ruling.
Carpenter’s suit reflects a legal and political dilemma that’s beginning to reverberate around the country: As seas rise and coasts wash away, who owns the land that goes underwater? Versions of that debate are taking place in courtrooms, legislatures, and government offices, raising the question of whether and when climate change justifies seizing private property. The stakes are enormous, affecting not just ownership of offshore mineral and fishing rights but also potentially trillions of dollars of coastal real estate.
A decade after the global financial crisis popularized the term “underwater real estate,” parts of the U.S. are grappling with a new, more literal version of that problem.
“There’s no question it will be a huge fight,” says Holly Doremus, a law professor at the University of California at Berkeley who specializes in environmental law. “We don’t exactly know the boundaries of what the state can do.” For centuries, a body of law called the public trust doctrine has stipulated that, when it comes to coastal property, anything below the average high-tide line is owned by the government for the use and benefit of the public. Those rules also cover what happens when the high-tide line moves. If that movement happens suddenly—for example, if a portion of beach is washed away by a storm—the land owner retains title to the property provided he or she restores it to dry land.
https://www.bloomberg.com/news/features/2018-04-25/fight-grows-over-who-owns-real-estate-drowned-by-climate-change
= new reply since forum marked as read
Carpenter wants the rule to be that if he can get his boat into a body of water, then it belongs to the state and the public is allowed to use it. Unfortunately for him, that isn't even close to reality. There's a difference between something being navigable "in fact" at a given time (meaning - "I can get my boat there without taking it out of the water"
... and being legally navigable. Then a further stretch for the state to claim ownership and make it usable by the public.
There isn't any evidence that the current case has anything at all to do with climate change. The author tries to hint at that with "took some clients to catch redfish on a marsh pond that didn’t use to exist" - leaving readers with the impression that rising sea levels recently caused it to appear... but the reality is just that the pond isn't on the 1812 maps that form the waterways that the state gained ownership of when it was created. So one could reasonable assume that it's less than 200 years old... but there's no reason to believe that it recently changed.
Note that almost this identical issue (on the same body of water) was argued before the 5th circuit back in the late 80s (Dardar v. Lafourche Realty). Obviously... the pond has been navigable "in fact" for decades.
Lastly - it's a bad idea to look at any case out of LA as part of a larger fight that will soon flood courts around the country (pun intended). Not only is LA geographically different (in terms of the interaction of the sea with the Mississippi delta)... but LA law is unlike any of the other 49 states.
As a first shot guestimate at the real question when it arises (i.e., what happens when climate change actually adds to the total "navigable waters" . Such waters have to be navigable in their "natural state". If actions of man change previously excluded land into a navigable (in fact) body of water... they don't become public land. By that argument, since climate change is caused by out own actions... the newly navigable waters are no longer in their natural state... and no ownership change occurs.
