Dear Mr. Ventola:
This responds to your letter of January 5, 1999, which we received today.
Your letter attaches a December 16, 1998 letter from A. Wilbert's Sons, L.L.C. recently received by your office and questioning the procedures of the Corps of Engineers pertaining to public notice, response times for comment and the factual basis of prior correspondence from this office.
You asked whether or not the comments of A. Wilbert's Sons, L.L.C. would affect the position of the Attorney General's Office regarding rights of public navigation on the project canal, as stated in the October 14, 1998 letter.
In reviewing that letter, it appears that the purpose of the permit requested by A. Wilbert's Sons, L.L.C. was to prevent trespassing on private property during the hunting season. The letter states that the applicant intends to lock the gate during the Louisiana hunting season and to have it left open during the remainder of the year in order to alleviate trespass problems in the area.
The applicant letter also requests further factual information in the form of proof that the canal was built with public funds and is a public thing susceptible of navigation by the public.
The applicant further states that it is not satisfied that any contentions posed by this office have any factual basis or have been researched adequately or at all.
As the matter has not yet gone to litigation, we have not retained the necessary experts to establish that this navigable waterway furnishes a continuous highway of commerce within the contemplation of state and federal law.
On balance, we believe that the factual basis of our advisory letter is correct and supports our conclusions.
The State Land Office has verified that the subject waters are navigable in fact, as reported by members of the public, and regularly navigated in boats of various sizes. We believe this information to be correct.
We also believe that the citations of cases from the courts of this state, including the Appeals Courts and the Louisiana Supreme Court, as well as the Supreme Court of the United States are fully applicable.
This is the law as we know it today and we believe that the cases cited in the footnotes, as well as the statutes, are controlling under the circumstances.
We hope these additional comments are of assistance to you under the circumstances.
Very truly yours,
RICHARD P. IEYOUB Attorney General
By: ___________________________ GARY L. KEYSER Assistant Attorney General
RPI/GLK:bb Att. cc: State Land Office
October 14, 1998
Mr. Ronald J. Ventola Chief, Regulatory Branch N.O. District, Corps of Engineers P.O. Box 60267 New Orleans, LA 70160-0267
RE: WN-19-980-1017-0