In bayou, whose water is it?
A legal battle brews over whether fishermen are trespassing when they fish in the flooded bottomlands.
BAYOU COCODRIE, La. — On a recent morning, locals reported a bizarre, but increasingly common, sight out here on Bayou Cocodrie.
A man with a cellphone yelled at a man emptying crawfish traps, to get off his property. The curse-spiced argument over land rights took place with both men standing in boats.
Waving writs, deeds, and sometimes even shotguns, Mississippi Delta landowners say they're warning off fishermen who traverse flooded, but privately owned, bottomlands that can stretch for miles on either side of a main channel on the Mississippi.
But chugging past "no trespassing" signs nailed high on cypress trunks here in the swampy Atchafalaya Basin, boats of cajun crawfishermen just keep on coming. The fishermen, along with a growing number of sport fishermen, say these landowners can't infringe upon what they see as their traditional and legal right to go anywhere the water can carry them.
"Disputes are getting more and more common, because landowners really want to press their rights, and crawfishermen really think they have a right to be there without having to pay," says Charlie Dugal, a biologist with the Louisiana Department of Wildlife and Fisheries in Baton Rouge.
Since Louisiana landowners first confronted crawfishermen in 1991, a series of lawsuits has failed to resolve arguments often carried out in rapid-fire French patois. The epicenter of the conflict is here in the cypress-and-tupelo bottomlands of the Atchafalaya Basin, which is flooded about eight months out of the year. The wild and swampy outback is best known for being a 1.4-million-acre crawfish pond that produces nearly all of the 10 million or so pounds of wild crawfish sold in the US each year.
Courts siding with landowners
The courts have sided mostly with landowners, who have been able to show proof of ownership from deeds and government surveys of the bottomlands. In 1859, the US transferred ownership of the area to the state of Louisiana, which, in turn, sold the land to timber speculators in an effort to bolster the economy of the poverty-stricken lower delta. But some judges have also sided with the rights of fishermen to ride the flooded across banks to fresh fishing grounds.
The problem is not solely about the legal definition of "bank," but also about where, exactly, to put a property line in tide- and flood-lands. Low- and high-water marks, after all, move from season to season. In a related decision, the Michigan Supreme Court in 2005 ruled that Lake Huron beach-walkers traversing private beaches below the high-water mark were not trespassing.
So far, Louisiana is refusing to wade into what some lawyers see as a cultural and legal swamp. "Every one of these areas has a unique history. They're very idiosyncratic in terms of hydrology, ownership, everything, and they're not something [the state] wants to take sides on," says Ryan Seidemann, Louisiana's assistant attorney general.
Origin of landowners' complaints
Landowners trace their complaints to the 1930 flood control locks put in by the US Army Corps of Engineers to control the Atchafalaya River. These flood locks decreased the value of their properties because they increased the duration of annual floods. At the same time, the locks created a crawfish paradise, the catch from which helped create international demand for a succulent crustacean used in everything from gumbos to étouffées.
After watching crawfishing operations grow larger and more sophisticated, landowners in 1989 banded together to promote better management and take a share of the profits. An attempt in 1991 to lease the bottomlands to crawfishermen failed. Since then, powerful county sheriffs and land-use lawyers have supported the landowners.
"Even if you do have the right to use the state-owned water bottom for commerce, it doesn't include the right to come miles onto my property when it's flooded, ... harvest thousands of dollars of crawfish each year, and leave me the empty bait boxes," says Rudy Sparks, vice president of lands and timber at Williams Inc., in Patterson, La., the major landowner in the area.
But it's a case outside the Atchafalaya, in the Mississippi drainage area of East Carroll Parish, that is now the focus, drawing recreational fishermen into the crawfish alliance. It began when two bass fishermen were arrested in 2001 for trespassing on private property as they were casting lures in 20 feet of water. Last year, presiding US District Court Judge Robert James ruled that boaters can breach flooded private banks to travel, but not to fish.
What many Americans – and some judges – don't understand, is the peculiar hydrology of many of the country's most fecund backwaters, says Paul Hurd, a lawyer in Monroe, La., who will make the fishermen's case to the US Fifth Circuit Court of Appeals on Sept. 3.
Not only are such bottomlands the best fishing grounds, he argues, but he plans to cite both state and federal laws dating back to America's founding that support a citizen's right to traverse "navigable waters," however they may occur, and use them for subsistence and commerce.
"Every once in a while we have to reaffirm ... common rights for citizens," says Mr. Hurd.
The issue is complicated by the intersection of US law and historically marginalized Acadian, or Cajun, culture, says Barry Jean Ancelet, a folklorist at the University of Louisiana in Lafayette. In these parts, Acadian ideals of communal property often clash with the capitalistic – and divisive – potential of delta resources. "This is Cajuns with money fighting Cajuns without a whole lot of money," says Mr. Ancelet.
Fishermen: Need to earn a living
Yet many people believe this standoff is bigger than a few Cajuns getting hot under their flannel collars, says Mike Bienvenu, president of Louisiana Crawfish Producers Association-West.
He portrays the scattered communities of fishermen – numbering 2,000 – who earn their living in these tupelo bottoms as a small platoon of Davids challenging the corporate Goliaths who want the timber, seafood, and energy resources of the Atchafalaya for themselves.
Crawfisherman Jody Meche, an outspoken town councilor in the basin town of Henderson, La., knows the stakes. While fishing several years ago, he claims that he and his son were fired upon by a landowner. Mr. Meche filed a lawsuit against the man, which is expected to go to court later this year.
As Meche floats his flat-bottomed boat past the "no trespassing" signs, he points to where fishermen have hung wooden bait boxes on stumps in protest. The contested water spreads out in all directions, the silence punctuated by screeching ospreys and loudly burping bullfrogs.
"[Landowners] don't have clear title to this area, only a claim," he says. "This water connects to the waters of the world."