The Western crescent rises — a verticality dimension in Louisiana’s mixed legal space

Abstract

The legal literature discussing mixed jurisdictions has mainly focused on horizontal law mixtures, especially those involving the Civil Law and the Common Law. Harnessing the legal questions raised by land loss in Louisiana’s landscape of waterbodies as a case study, this Article illustrates how American federal law, whether constitutional, statutory or judge-made, has interacted with the allocation of property rights under Louisiana state law. Among the various stakeholders, the legal implications of erosion and subsidence play out in two relationships: firstly, the relationship between private property owners and the State of Louisiana with regard to lakeshore, banks of rivers, bays and streams, and seashore; and secondly, the relationship between the State of Louisiana and the Federal Government with regard to their rights in the territorial sea. In the first relationship, the equal footing doctrine enunciated by the U. S. Supreme Court declares that, because the original thirteen states in the American Union owned the land under their natural navigable water bodies, subsequent entrants would likewise take ownership of such land. Based on the federal equal footing doctrine, Louisiana state law has enjoyed a margin of maneuver to make its own dispositions for the lakeshore, the bank of a river, bayou or stream, and the seashore. Also, when allocating ownership under state law, Louisiana courts have traditionally looked to the federal admiralty definition of navigability. The federal-state interface dominating the second relationship has come to be known as the “tidelands controversy” over submerged lands, along with the wealth of resources, seaward of the low-water mark on Louisiana’s coast. This led to a dance between the U. S. Supreme Court, the U. S. Congress and the State of Louisiana. Although Louisiana ultimately secured jurisdiction up to three nautical miles, its maritime belt still does not match Texas and Florida’s boundaries.