United States Court of Appeals,
Fifth Circuit.
Nos. 94-30444, 94-30538.
Summergill DARDAR, et al., Plaintiffs,
Raymond Serigney, et al., Plaintiffs-Appellants,
v.
LAFOURCHE REALTY CO., INC., et al., Defendants,
Lafourche Realty Co., John Plaisance & Sons, Inc. and Alex J.
Plaisance, Jr., Defendants-Appellees.
Summergill DARDAR, et al., Plaintiffs,
State of Louisiana, Intervenor-Appellant,
v.
LAFOURCHE REALTY CO., INC., John Plaisance & Sons, Inc. and Alex
Plaisance, Defendants-Appellees.
June 28, 1995.
Appeals from the United States District Court For the Eastern
District of Louisiana.
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
POLITZ, Chief Judge:
With today's disposition we bring to closure litigation with
the dubious distinction of being one of this circuit's oldest
continual actions. Before us is the appeal of Raymond Serigney,
Luke Billiot, Joe Billiot, Whitney Billiot, and Deborah Taylor of
the district court's judgment declining to find certain waterbodies
in south Louisiana subject to the federal navigational servitude.
For the reasons assigned, we affirm.
Background
1
This senescent litigation involves a large tract of marshlands
in southeastern Louisiana owned or under the control of Lafourche
Realty. In 1948, after securing the requisite approval from the
United States Army Corps of Engineers, Lafourche Realty began the
process of dredging the Tidewater Canal across its holdings. Over
the next two decades the Tidewater Canal was extended and other
canals were developed and added to the system which, eventually,
embraced many of the natural waterbodies within Lafourche Realty's
holdings via small canals, some dug by trespassers.
Concerned with salt water intrusion, erosion, and damage to
the canal network, Lafourche Realty sought and secured Corps
approval for a marsh management program encompassing approximately
12,800 acres. Lafourche Realty also secured permits for
construction of a series of levees and gates limiting public access
to the management area.
Denied free access, the commercial fishermen
plaintiffs-appellants filed suit demanding unfettered access to and
use of the waterways in the management area. The State of
Louisiana intervened, claiming title to the waterbottoms and the
right of public access to the waterways. Lafourche Realty
counterclaimed, seeking recognition of its title to all property
located within its patents. After lengthy litigation,1 the permits
issued to Lafourche Realty were upheld, the State's claims to title
1
The history of this case is discussed in two of our prior
decisions, Dardar v. Lafourche Realty Co., Inc., et al., 985 F.2d
824 (5th Cir.1993) ("Dardar III"), and Dardar v. Lafourche Realty
Co., Inc., et al., 885 F.2d 868 (5th Cir.1989) (unpublished
opinion) ("Dadar II ").
2
were rejected, and the Tidewater Canal was declared exempt from
public ownership or public use.
On our most recent review we remanded to the district court
for the determination whether a federal navigational servitude
encumbered certain waterbodies2 within the management area.3 We
directed the district court to determine whether the waterbodies
were navigable in their natural state or as the direct result of
dredging. Any waterbody found naturally navigable was to be
examined under the rubric in Kaiser Aetna v. United States4 to
determine its susceptibility to the federal navigational
servitude.5
On remand, the district court ruled that none of the
waterbodies at issue were subject to the navigational servitude.
It found that Bayou John, Branch of Bayou Ferblanc, portions of
Mink Bayou, and connecting waterbodies with Mink Bayou and Bay
Jacque were not navigable in fact. It also found that Bayou
Ferblanc and Bayou Rambo were made navigable by dredging and thus
were not amenable to the federal servitude. Finally, noting the
evidence indicating that the remaining waterbodies over which it
2
These waterbodies were: Lac de L'Isle, Lac a Roman, Bayou
Ferblanc, Branch of Bayou Ferblanc, portions of Mink Bayou, Bayou
John, Bayou Rambo, and portions of Bay Jacque, Bay Rambo,
Palmetto Bayou, and Redfish Bayou.
3
See Dardar III.
4
444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1978).
5
Boone v. United States, 944 F.2d 1489 (9th Cir.1991).
3
had jurisdiction6 were made navigable by dredging, the court found
them not navigable in fact because of their inaccessibility to the
public. The court declined to impose the federal navigational
servitude and the plaintiffs and the State timely appealed.
Analysis
Appellants maintain that the trial court erred in finding that
the subject waterbodies were either not navigable or otherwise not
subject to the federal navigational servitude.7 We are not
persuaded.
At the threshold we note that, generally, "a navigational
servitude is ordinarily imposed on a naturally navigable
waterway."8 The servitude is not visited upon a waterway made
navigable by the direct actions of man which does not displace a
6
The district court properly noted that the southern portion
of Bay Jacque, the eastern and southern sections of Bay Rambo,
portions of Mink Bayou, Palmetto Bayou, and Redfish bayou are not
within the subject area of the lawsuit and were beyond its
jurisdiction.
7
Appellants also claim that the district court erred in
failing to address their rights to use the "thousands of acres of
unnamed" and "emerging" waterways in the subject area. We do not
agree. The only evidence relating to the navigability of these
unnamed bodies is a statement in the report of one of plaintiff's
experts, and is only a non-specific assertion that all of the
waters within the area are navigable "if for no other reason than
because they are subject to the ebb and flow of the tide." As
noted by the district court, this evidence made no specific
reference to the waterbodies involved in the litigation. Because
of this lack of evidence, the district court did not err in
declining to address this issue. See Fed.R.Civ.P. 61; Mundy v.
United States, 22 Cl.Ct. 33 (Cl.Ct.1990); State ex rel Guste v.
Two O'Clock Bayou Land Co., Inc., 365 So.2d 1174 (La.App.1978),
writ denied, 367 So.2d 387 (La.1979).
8
Dardar III at 834.
4
naturally navigable waterway.9 Waters so encumbered are subject to
public use as "continuous highways for the purpose of navigation in
interstate commerce."10 Although this servitude "recognizes the
important public interest in ... interstate waters that in their
natural condition are in fact capable of supporting public
navigation,"11 this interest is not absolute and the imposition of
the servitude is not automatic. A landowner whose properties
contain navigable waterways may escape this servitude by showing
either that the waterways were not navigable in their natural state
or, if naturally navigable, by demonstrating that his interests
outweigh those of the public. In evaluating these competing
interests, courts must determine whether: the waterway was
navigable in its natural state and is comparable to other
waterbodies upon which the servitude has been imposed; is on
private property and made navigable with private funds; and was
made navigable by actions approved by the Corps of Engineers.
We first inquire whether the waterbodies at issue are
navigable. Waterbodies are navigable when, in their ordinary
condition, they can serve as "highways for commerce, over which
trade and travel are or may be conducted in customary modes...."12
Navigability is a question of fact, and findings thereon are
9
See Vaughan v. Vermillion Corp., 444 U.S. 206, 100 S.Ct.
399, 62 L.Ed.2d 365 (1978).
10
Kaiser Aetna at 178.
11
Dardar III at 832, citing Kaiser Aetna at 175.
12
The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999
(1870).
5
subject to review under the clearly erroneous standard.13 A
waterbody deemed navigable in fact is also deemed navigable in
law.14
Appellants' challenge to the district court's factual
findings on navigability primarily rest on the testimony of one of
their experts. It is abundantly clear that the district court
disregarded this testimony and credited the testimony of area
residents intimately familiar with the local waterways and the
expert offered by Lafourche Realty who had been studying the region
for an extended period. Such credibility assessments by the trial
court are accorded great deference. We find no basis for rejecting
that assessment herein.
The trial court's findings that Bayou John, Branch of Bayou
Ferblanc, portions of Mink Bayou, and waters adjoining Bay Jacque
are not navigable are not clearly erroneous. Longtime local
residents testified that the two discontinuous segments of Bayou
John were part marsh and not suitable for travel in their normal
state. This is buttressed by the testimony of plaintiffs' expert
that the depth was 18 inches and of defendant's expert that the
waterway was isolated in its natural state and connected to
outlying bodies of water only by man-made ditches.
Evidence overwhelms that Branch of Bayou Ferblanc was
non-navigable. Plaintiffs' expert conceded the waterbody was
impassable at some points. Defendant's expert testified that this
13
United States v. Harrell, 926 F.2d 1036 (11th Cir.1991).
14
The Daniel Ball.
6
waterbody was composed of discontinuous ponds and was accessible
only through man-made ditches. Other testimony reflected that the
waterbody was only seven inches deep at some points. The record
also supports the finding that the connecting waterbodies
surrounding Bay Jacque are non-navigable as they are either too
shallow for passage along much of their length or terminate in
marsh.
The relevant sections in and around Mink Bayou are largely
non-navigable. Lay and expert testimony established that the
northern and middle areas are clogged and are composed of
discontinuous ponds. Lower sections are impassable and fade to
naught near the Tidewater Canal.15 As all of the foregoing
waterbodies are not navigable, the district court properly declined
to impose the federal navigational servitude.
Nor are we persuaded that the district court erred in
declining to impose a navigational servitude on the other named
waterways. The record reflects that both Bayou Ferblanc and Bayou
Rambo were made navigable through private dredging. The area
residents testified that Bayou Ferblanc was passable only after
dredging in the 1950s. Other evidence reflects that Bayou Rambo
was made passable largely due to its dredging in the 1950s and
1960s. Thus, as these bodies were not naturally navigable, and the
15
Appellants maintain that the district court, in finding
Mink Bayou to be non-navigable, disregarded our holding that
"Mink Bayou was not navigable until 1948, when the Tidewater
Canal intersected it." Dardar III at 833 n. 7. The evidence
overwhelms that Mink Bayou does not, as a continuous waterway,
intersect the Tidewater Canal. Appellants' reliance on the
quoted footnote language provides no surcease.
7
record contains no showing that they displaced naturally navigable
waterways, the district court properly concluded that the public
had no right to their free use.
Appellants contend that the remaining waterbodies within the
subject area are both naturally navigable and accessible through
public waterways and, thus, are subject to the federal navigational
servitude. The district court's findings to the contrary result
from its crediting the defendant's photographic and cartographic
exhibits, and the testimony of its expert. Our review of the
record does not leave us with the definite and firm conviction that
a mistake has been committed. Rejection of the trial court's
findings of fact is therefore inappropriate. The evidence credited
by the district court established that the portions of the
waterbodies in the subject area were accessible only through the
privately-owned canal network or through man-made ditches on
private property not owned by the plaintiffs. Accordingly, as
these waterbodies were inaccessible to the public, the district
court was not clearly erroneous in concluding that they were exempt
from the servitude because they were unsuitable as a highway for
travel or commerce.
Assuming, arguendo, that these bodies were navigable, the
remaining Kaiser Aetna factors would militate against imposition of
the servitude. The shallow depth and discontinuous nature of the
waterways within the Lafourche Realty management area prevent them
from being considered akin to "the sort of great navigable stream
that ... has [been] previously recognized as being incapable of
8
private ownership."16 The record clearly reflects that all of the
remaining waterways at issue are privately owned and that their
owners exclude others from entry. The record also reflects that
the waterbodies presently navigable were not navigable in their
natural state.17 Finally, the improvements making these bodies
navigable were accomplished with private funds after receipt of
approval from the Army Corps of Engineers. Therefore, even if the
waterways in the instant litigation were found to be navigable,
application of the Kaiser Aetna test inexorably leads to the
conclusion that the federal navigational servitude should not be
imposed.
Finding no merit in any assignment of error, the judgment of
the district court is in all respects AFFIRMED.
16
Kaiser Aetna at 178-79.
17
The Army Corps of Engineers concluded that prior to the
construction of the Tidewater Canal system, none of the waters in
the subject area were naturally navigable. The evidence also
reflects that the actions of man rendered these waterways
passable; Lac de L'Isle, for example, was made navigable due to
its being directly deepened by increased water flow from segments
of the man-made canal system that penetrated it.
9