Legal resources for coastal erosion and marsh destruction claims

Also see: Louisiana Levee Board Coastal Erosion Law SuitLouisiana Parish Lawsuits Against the Oil Industry for Wetlands Destruction

Law Professor’s Brief on Louisiana Public Trust Doctrine

Terrebonne Parish Sch. Bd. v. Castex Energy, Inc., 893 So. 2d 789 (La 2005)

“We reverse the First Circuit’s judgment and its holding that the law
and/or the executed contracts in this case impose an implied duty
upon Samson and Bois D’Arc to restore the surface of the leased land
to its pre-lease condition by backfilling the canals, and we vacate
the court of appeal’s order compelling specific performance of this
ostensible duty. We also find that the language of the contractual
assignment to Bois D’Arc did not establish an express duty to restore
the surface. Our resolution of these issues obviates the need to
consider the defendants’ five alternative arguments alluded to
earlier, including the argument that the court erred in finding that
Samson’s attempted assignment to Castex was ineffective.

This was a claim against the oil company for not restoring wetlands that had been leased for oil exploration and development by the school district.

 Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676 (E.D. La. 2006)

Federal district court dismisses claims by plaintiffs that defendant oil companies increased the damage by Hurricane Katrina by destroying wetlands by cutting canals. There is an extensive discussion of the political question doctrine, which the court finds inapplicable. The case was dismissed because there was no duty to protect and because Louisiana does not recognize market share liability (holding a group of defendants liable without showing each individual defendant’s contribution to the injury).

Marin v. Exxon Mobil Corp., 48 So. 3d 234 (LA 2010)

This case deals with the statute of limitations (prescription) on claims based on damages caused by oil and gas exploration and development. This was not reached by the judge in the dismissal because she found no valid claims, thus no need to decide if it was too late to bring them. The courts uses a reasonably should have known standard for starting the clock. Since all the claimed damages have been discussed in the scientific and popular literature since the 1980s, it is likely that it is past time to sue for them for the levee board, which has no legal relationships with the defendants.

DON H. GUNDERSON AND BOBBIE J. GUNDERSON, CO-TRUSTEES OF THE DON H. GUNDERSON LIVING TRUST, Appellants/Cross-Appellees (Plaintiffs below), v. STATE OF INDIANA, INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellees (Defendants below), ALLIANCE FOR THE GREAT LAKES AND SAVE THE DUNES, Appellees/Cross-Appellants (Intervenors-Defendants below), LONG BEACH COMMUNITY ALLIANCE, PATRICK CANNON, JOHN WALL, DORIA LEMAY, MICHAEL SALMON, AND THOMAS KING, Appellees/Cross-Appellants (Intervenors-Defendants below)., No. 46S03-1706-PL-423, 2018 WL 849890 (Ind. Feb. 14, 2018)

A century ago, our Court of Appeals recognized that, among those rights acquired upon admission to the Union, the State owns and holds “in trust” the lands under navigable waters within its borders, “including the shores or space between ordinary high and low water marks, for the benefit of the people of the state.” Lake Sand Co. v. State, 68 Ind. App. 439, 445, 120 N.E. 714, 716 (1918) (quoting Ex parte Powell, 70 Fla. 363, 372, 70 So. 392, 395 (1915)). And Indiana “in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” Id. at 446, 120 N.E. at 716. This Court has since affirmed these principles. See State ex rel. Indiana Department of Conservation v. Kivett, 228 Ind. 623, 630, 95 N.E.2d 145, 148 (1950). But the question remains: What is the precise boundary at which the State’s ownership interest ends and private property interests begin?

Today, we hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary. We therefore affirm the trial court’s ruling that the State holds title to the Lake Michigan shores in trust for the public but reverse the court’s decision that private property interests here overlap with those of the State.