Why are fishermen being arrested in Louisiana? An epic battle over "Sportsman's Paradise" is being waged on Louisiana's water. This is a story about public rights and private power colliding. As more and more of Louisiana’s coast disappears underwater, the state’s two most powerful and iconic forces – fishing and fossil fuels – are waging war over who owns the drowned land.
This episode was hosted and reported by Sea Change's executive producer, Carlyle Calhoun. The episode was edited by Eve Abrams. Additional help from Johanna Zorn, Drew Hawkins, Eva Tesfaye, and Michael McEwan. The episode was fact-checked by Philip Kiefer. Sound design by Dennis Funk, and our theme music is by Jon Batiste.
Sea Change is a WWNO and WRKF production. We are part of the NPR Podcast Network and distributed by PRX. Sea Change is made possible with major support from the Gulf Research Program of the National Academy of Sciences, Engineering, and Medicine. WWNO’s Coastal Desk is supported by the Walton Family Foundation, the Meraux Foundation, and the Greater New Orleans Foundation.
Want to dive even deeper into the legal issues surrounding this story? Beginning with how private ownership of wetlands traces back to the Swamp Land Grant Acts in the 1800s? Then check out property law scholar John Lovett's legal paper.
___________________________________________
TRANSCRIPT
DARYL: Test, test. One, two. Hello. Hello.
Meet Daryl Carpenter.
Yello
Daryl’s a fishing guide and we are standing on his dock on Grand Isle, Louisiana. He runs a fishing charter business here in one of the most popular fishing destinations on the planet.
BOAT AMBI
We hop in Daryl’s boat and pull away from the dock. Behind us is the skinny barrier island of Grand Isle, a slim line on a map between the wide open Gulf on one side, from millions of acres of wetlands, open bays, swamps, and salt marshes on the other.
Daryl has already spent the majority of the day on the water…up at dawn to take a Georgia couple out fishing for red fish & speckled trout. Fun as that sounds, I’m not here to fish. I’m heading into Louisiana’s vast wetlands for another reason…I’m here to get a closer look at an epic battle over a place known as sportsman’s paradise.
CARLYLE: So where are we headed?
DARYL: We are gonna head north across Barataria Bay…I refuse to get any more specific than that because we may or may not trespass while we’re up there.
You ready here we go?
ambient boat taking off
INTRO
I’m Carlyle Calhoun and you’re listening to Sea Change.
This is a story about public rights and private power colliding. As more and more of Louisiana’s coast disappears underwater, the state’s two most powerful and iconic forces -- fishing and fossil fuels -- are waging war over who owns the drowned land.
That’s coming up.
BREAK
Daryl motors us into a wide, open bay. It’s a late afternoon in spring, and the angled light makes the deep green marsh look like it’s lit from within and makes Daryl’s already sun-weathered face look a few shades darker.
We’ve arrived in the first place Daryl wants to show me. Looking out in the distance, I can barely make out marsh on the far side.
DARYL: I’m no land expert but we’re in bay that I would have to guess is at least 30,000 acres. And running right through middle of it is a row of posted signs about every 100 yards.
The current is pulling us close to a row of signs stretching across the wide bay. There are dozens of signs, all printed in the same block letters, stating: “no trespassing, private property.”
DARYL: so for whatever reason, stuff on that side of signs is private…I’m not supposed to go there. I can't go there without the threat of being arrested.
To reiterate: We are in open water. And it’s deep. We boated here from the edge of the Gulf…never touching land. This is no private lake in a backyard. It’s tidal, connected to the ocean.
DARYL: look at it this way, we are on an incoming tide right now. If I let this boat drift, I'm gonna be in touch with the same molecule of water as that tide moves north. But at some point I'm gonna come across one of those signs that says it's Mr.Post Ed property. What? What's changed?
What’s changed is that the wide open bay on the other side of those no trespassing signs is what an oil and gas company claims is private property. I can’t say which company, because again, at any moment, we may or may not be trespassing.
About 40% of our country’s coastal wetlands are here in south Louisiana. Millions of acres known as “America’s Wetlands,” and we are losing them, quickly: there’s sea level rise, subsidence, the dredging of thousands of miles of oil and gas canals
DARYL: We're in the typical marsh of south Louisiana. We've got broken marsh, we've got, you know, banks that are covered with what we call roseau cane. There's smooth cord grass.
…but there’s another reason we’re losing this celebrated saltwater landscape, because it’s increasingly blocked off as private property
DARYL: there's a concept that even though it's connected to the public body of water, it can be privately owned. In my mind. Property is terra firma. This is water. This is the Gulf of Mexico. It just took it about an hour and a half to get up here on a tide.
When it comes to tidal water, – you know: water that rises and falls with the tide, the general rule of thumb is: if you can float it, you can boat it. Meaning it's open to the public. This right is protected by something called the public trust doctrine …A legal concept that traces back to the Romans. The Public Trust Doctrine has been affirmed by state courts all the way to the Supreme Court, starting from the earliest days of this country. But it’s primarily enforced on a state level and shows up differently depending on which state you’re in. In essence, the public trust doctrine protects natural resources, things like air, tidal water, seashores, for the benefit and use of the public.
But this idea and its catchy motto – if you can float it, you can boat it – doesn’t always stand in Louisiana, where large, powerful landowners are increasingly blocking access to tidal water adjacent to their land. Expanses like the one I’m currently floating in with Daryl.
Daryl: I’ve been run off many many times from areas that they tell me I’m trespassing on.
All afternoon, we motor from steel cables strung across bays to wooden fences half submerged, to metal gates – all kinds of ways the water is blocked off – private property signs nailed to pilings left and right.
Daryl explains this has been going on for years. But it’s just gotten worse. What he sees as the illegal privatization of one of the world’s greatest estuaries.
Daryl knows fishermen like him are up against a powerful opponent
And this battle isn’t just being waged on water, it’s also reached the state capital.
Daryl: When it comes to magnitude of this fight, I think best summarized by what oil and gas told us a first organized meeting at capital. rep from oil and gas stood up at the podium and said let me explain something to yall—you all are riding around in your bateaux and pireauxs…we have warships. He said, if it ever looks like you are gaining ground on this our warships are going to come over the horizon and blow you out of the water.
MUSIC
Mark Davis directs Tulane University’s Institute on Water Resources Law and Policy. He says: to understand what’s going on, first, you need to know one important fact:
MARK: roughly 80% of you know, the wetlands in South Louisiana are privately owned and they're privately owned in by oil companies overwhelmingly.
The largest private wetlands owner in Louisiana is Conoco-Philips, Another big landowning company Continental Land & Fur, got its wealth from muskrat pelts before transitioning to oil.
MARK: you know, companies that are primarily interested in what is underneath it.
Underneath it, is oil and gas. And in Louisiana, whoever owns the surface, owns what’s underneath.
MARK: If I'm in Texas, you know, I may own a million acres and if I may not own anything underneath, and the person who owns those minerals has a right to come on and access them without asking my permission. but in Louisiana ownership of oil, gas, whatever, is controlled by who controls the surface.
So– even as this land turns into water – which has already happened to over a million acres of coastal Louisiana – these companies claim they still own it – because of what’s underneath.
Taylor Darden, an affable if no-nonsense attorney who's been named “lawyer of the year” for his oil and gas litigation, says his clients – the landowners – have clear title to the land. In fact, they receive tax bills for this land – which they pay! Why wouldn’t they assume they’re the owners?
He tells me what his clients want straight up.
DARDEN: They want their minerals. They want to retain their minerals.
Taylor says maybe one day new technology will emerge that can squeeze out more oil and gas from that submerged land. Or perhaps carbon sequestration will offer big money. In the meantime, landowners make money off leasing the water to duck hunters. Even to fishermen – so they can have their own private fishing hole.
DARDEN: So what does the future hold? I don't know, but those are reasons I believe that the landowners wanna preserve it for future generations.
Preserve their rights to now-submerged property.
This is what this battle is really about. It’s a turf war. Except the turf happens to be water.
MARK: and when the mere presence of those boats is a direct challenge to the ownership of the minerals, it’s not going to go well.
And why would a fisherman out in a boat challenge ownership?
MARK: because under Louisiana law, all navigable waters, with a handful of exceptions, belong to the state. And the bottoms of those waterways belong to the state, and if they own the water bottoms, they own the minerals.
So According to Mark Davis, aside from that handful of exceptions, Louisiana law is clear: if we’re talking about navigable water, it’s owned by the state. It’s public. Even when that water was recently land.
MARK: So you can see as the coast disappears, what was once land, you know, private land at some point turns into public waters and public water bottoms.
While the law seems clear, it’s a law based on a static situation: private land and public water. But what about when one turns into the other? This is where things get confusing. The state supreme court ruled on this way back in the 1930’s in a case called Miami Corps vs State, and Louisiana’s highest court said: the state becomes the owner when land is lost by natural causes. But in recent years, courts have been reluctant to reaffirm or expand on this precedent.
It also doesn’t help that Louisiana courts disagree on what navigable water even is! There’s no precise definition for “navigable water” – even though whether water is navigable – or not – determines whether that water is private or public! It's confusing! And so, without clarity from the courts, the two sides interpret the law differently. Mark says it’s a murky situation.
MARK: when you go from private to public, it's not like you have a court or a surveyor or somebody coming down, passing judgment.
So if you’re a big oil and gas landholding company and your private land turns to public navigable water…what do you do when faced with this murkiness? You double down.
MARK: So you really have, oil and gas companies trying to maintain their claims by putting up no trespassing signs.
Posted in water, on former land that companies maintain is still private. Like the ones I saw with Daryl.
But fishermen believe it is their right to fish that tidal water.
Mark says the situation on our coast is a dangerous range war. Pitted against each other: two entities deeply woven into Louisiana culture.
MARK: we strongly, strongly support, you know, fishing and, you know, access to our waters. But we're we're absolutely, you know, in bed with the extractive industries, the conflicts are baked in.
Fishing vs fossil fuels.
So far, an irreconcilable battle. Maybe a law could solve this?
Coming up, the battlefield moves to the state capital.
BREAK
Who owns the land when it vanishes beneath the sea? Who has the right to access this new patch of water? These are tricky questions for Louisiana lawmakers. Because, they’re also asking: whose side are you on? The powerful, wealthy companies or the huge contingent of the voting public who are die-hard fishermen?
Here in the capital, I was about to witness which side the politicians are on.
The first time I met Daryl Carpenter, the fishing guide who boated me to undisclosed locations, was in a wide hallway outside the House Chamber. It was the spring of 2018.
Daryl: Today we are at the Louisiana state capital. going to the house floor will be debated and then a final vote.
A final vote on House Bill 391. The purpose of the bill is quote: “Provides for public access to the running waters of the state.” Running waters for the purpose of this bill, means navigable tidal waters…which as you now know make up a substantial part of southern Louisiana.
I ask Daryl how he’s feeling.
Daryl: well, we were feeling pretty good with all the intel and then the opposition, the landowners and big corporations flew in all their big money guys and at this point we are just anxiously awaiting this vote.
Daryl is in one of those pastel-toned fishing shirts – standing in a sea of other candy-colored -shirt-wearing men, sunglasses hanging around their necks. They are fired up. They tell me story after story of the battle on the water. Like this one from Don Hutchinson
ambient crowd
I brought a kid fishing my grandson two weeks ago. We got ran out by an overseer, he said, and he said, you can't be here. I said, why not? He said, because this is private land. I'm sitting out there on four feet of water and I'm, I'm brought a kid fishing. half of 'em got a shotgun or a pistol on the side and they'll put their hand over there on the pistol. I got round out with a shotgun several years ago.Another guy had a, uh, uh, uh, an AR 15 on his lap. And he just sit there with it and said, you need to leave. What you going to do? Somebody's gonna get killed for. It's over with.
A guy in a dark suit saddles up to our little circle of fishermen.
Rep. Jerry Gisclair: I’m State Representative Jerry “Truck” Gisclair district 54.
Representative Gisclair goes by “Truck.” His District 54 includes Grand Isle, where Daryl runs his fishing charter business. . I ask Truck if this issue is a big deal in his district.
Truck: uh very big…I have barataria bay, etc., and some of the best fishing areas in the world.
Some of the best fishing areas in the world …and also a hotspot for posted waterways.
Carlyle: are you hearing from both sides?
Truck: oh I’m hearing from all sides.I’m talking to all sides. It's a very touchy and sensitive area, and it’s affecting a lot of people. Sportsman’s Paradise isn’t Sportsman's Paradise. It’s turning into rich man’s paradise. We're trying to get it back to a place where Joe Weekender can go fishing. So, we’re working on it and it’s going to be a pretty contested issue today, so.
I look over to Daryl who is standing off with another fisherman. They look nervous. Daryl keeps tapping his leg with an empty diet coke bottle.
House Bill 391 is about to be introduced by Representative Kevin Pearson, who wrote this bill in response to a constituent complaint. Daryl and other fishermen jumped in to help him craft the language. Daryl says they made sure the bill didn't challenge ownership or mineral rights. They only want the ability to access all the areas that are now water. But Pearson’s gotten pushback.
Daryl: I have fairly good information that Representative Pearson has been asked multiple times to pull this bill now, because they just don't wanna vote on it.
Representatives don’t want to vote on it because…
Daryl: It's a lose lose for them because the oil companies are, the, the landowners and the oil companies are vindictive as hell.
Daryl says the companies have already threatened politicians with pulling their campaign contributions. On the other hand, politicians know the fishermen are the ones in the voting booths.
Daryl: So they're looking at our faces and they're, it's, then they're looking at the campaign checks, then they're looking at our, and everything's like, uh oh, what do we do? And nobody wants to touch it.
Ambi
It's time for the session to start.
Fisherman: should we start heading upstairs?
I follow the group of fishermen upstairs …to the balcony overlooking all the representatives milling about.
Gavel
Speaker of the House: Representative Pierson, your bill.
Rep Pierson: Thank you Mr. Speaker. I had no idea it was going to be so contentious. might as well be called the lobbyists employment bill. I had no idea it would be such a contentious issue
All morning long, as I was talking to fishermen, I saw men in suits. Dozens of lobbyists darting around the crowded hallway. A flurry of shiny shoes. As Daryl said, the big money guys.
Rep Pierson makes his argument for the bill. Others make their arguments against. One says you can’t fix 200 hundred years of problems in 3 and a half pages, another says this bill was just going to drown the state in lawsuits from landowners. Amendment after amendment is introduced. It’s feisty in here. And then, finally, votes are cast.
Ambi voting
The bill fails. It’s not even close.
A couple weeks later, I head to Daryl’s house to talk to him about what happened at the capital. He’s been out on his boat all day, and we sit down in his AC’d living room.
Ambient
Opening beer
Daryl cracks a Michelob Ultra
Daryl: cheers!
He leans back in his reclining chair. I can see the open water through the windows behind him. I ask him how he feels about House Bill 391 failing. About representatives like Truck Gisclair. -- the guy who wanted to protect Joe Weekender -- voting against the bill.
Daryl: I think a lot of our legislators were holding hands very tightly with oil and gas…and they voted that way.
By the way, neither Gisclair or Pearson are still in the legislature today. Gisclair explained his vote by saying he’d been working with a taskforce on the issue and felt Pearson’s bill was premature and would just invite lawsuits from landowners. Anyway, Daryl reminds me Sportsman’s Paradise is written on Louisiana license plates! So what gives? I ask Daryl why he thinks so few representatives voted for a bill that simply allows what every other state in the country does: the right to take a boat on navigable water.
Daryl: Well, it's, it's quite possible that the, the past influence and the, and the fact that the oil and gas industry provides so much income in jobs in the state. But there again, my question is how long are you gonna cow town to 'em? I mean, go look at the, go. Look at the skyline of the city of New Orleans. None of 'em are headquartered there anymore. They've all left and gone to Texas. They’ve already abandoned the state.
Daryl’s right. Over the decades, there’s been an exodus of dozens of energy companies leaving Louisiana. There’s very little drilling in Louisiana’s wetlands these days. In fact, The oil and gas industry has faded here since the booming early 80’s, when oil and gas revenues once made up close to half of the state budget. Most production left for deeper federal waters, jobs are a shadow of the boom days. Revenue now accounts for around 5% of the budget.
Yet the industry’s power remains deeply felt in the state. A large Shell sign welcomes visitors to Jazz Fest each spring and the capitol building is backdropped by a giant Exxon refinery.
The trade group Louisiana Mid-Continent Oil and Gas Association says the oil and gas industry still supports 15% of the state’s employment, yet only 1.6% is direct employment – jobs working in oil and gas. But despite the industry’s waning economic contribution, their influence is far from waning.
DARYL: And I think that they're willing to throw a lot of money in finances at fighting this.
Here's another thought: maybe those state legislators are intimidated not just by the power of oil and gas, but also by their mess? Oil and gas companies have left thousands of abandoned oil and gas wells in the wetlands – along with a rat's nest of pipes, storage pits, and industrial debris. They are an environmental nightmare, and a hazard to fishermen. If the state claims this open water as publicly owned, then the state might take on the liability for cleaning up the mess. And the cost of plugging one well in just four feet of water can be $400,000.
MARK: so the state has never shown a huge interest in claiming all the land that is turning into open water unless there was a real financial reason to do it.
That’s Mark Davis again, from Tulane Law. Mark says The State Land Office did try once. About 20 years ago, the legislature directed the Land Office to inventory state-owned property. To assess what land was now under navigable water, and therefore open to the public. And there was a lot of it. After years of study, they claimed nearly 300,000 acres as newly state-owned. But right away, the landowners strongly objected, and the state backed off. They compromised. The result is what’s called dual-claimed land – which keeps ownership ambiguous. Both private landholders AND the state claim the same property as theirs. In fact, today, official state maps even reflect this. Printed on the maps is a disclaimer. It says: these property lines quote ”can’t be used as evidence in court.” Not very helpful for anyone trying to go fishing without getting arrested. To sum this all up: the state chose not to fight, to not provoke lawsuits from powerful landowners they would have to battle in court. It wasn’t worth it to them.
Since the land office finished their inventory in 2017, even as more land has disappeared – lots of it – the land office has conducted no new inventory.
So if the state won’t claim this newly submerged land for the public, and if Louisiana’s elected officials won’t pass a law protecting public access to the newly navigable water, that leaves it up to individuals to take on the court battles on their own.
That’s coming up.
So… passing a new law didn’t work. Now we head to another battlefield: the courthouse. First, meet a true Louisiana sportsman .
Eddie: My name is Eddie Lambert. I am an attorney, graduated from LSU Law School in 1982. I'm a very avid outdoorsman, I hunt a lot, I fish a lot, and I've been doing it basically since I was a little boy.
And through a fishing buddy, Eddie heard about this case. – involving a sportsman like himself
Eddie: and he introduced me to Rodney
Rodney: I've been fishing all of these waters. Literally since, oh geez. I mean, I was a kid, you know,
Rodney Wagley is in his late 60's now, but Rodney used to be a professional angler. He was on the BASS fishing circuit and competed on one of the top national teams.
These days he fishes for fun. But one day back in 2021 a day out on his boat was decidedly not fun. It’s the day his legal nightmare began. Rodney was out in one of his usual fishing spots.
Rodney: this is one of my favorite places.
Rodney takes me to where it all went down. He says the bass fishing is so good here, he once ran his boat 129 miles one way in a tournament just to fish here. He knew if he could get to this spot, he could win. We’re floating in a sheltered expanse of water, kind of a bay, right off the intracoastal waterway. In Eddie’s legal terminology:
Eddie: clearly navigable running waters,
In other words, in both Rodney and Eddies’ opinion, an area that should be owned by the state and open to public access. Rodney remembers perfectly what happened that day on the water. He’s out with his friend, Bob.
Rodney: I come in just like, we just come in, except I come in from that corner.
and a boat comes shooting from around that corner,
An airboat, and it was heading straight for them.
Rodney: I immediately told Bob, here comes Crawford.
Dwayne Crawford
Rodney: He's just the son of Old Man Crawford and he thinks he owns and has the rights to all of this. He actually is the, the guy that manages it for Continental land and Fur.
Continental Land and Fur. I mentioned them before. They’re one of the large landowning oil companies.
This isn’t the first time Rodney has had a run-in with Dwayne Crawford.
Rodney: I'd had enough of me and him having the same conversation over and over. He don't want to hear my side of it.
Carlyle: What are you both saying?
Rodney: He says, we're trespassing. It's his water, his fish, Continental Land and Fur owns it. And I tell him, no, it's tidal water. It's our fish. Uh, go look at the law.
The law being? Eddie?
Eddie: Louisiana Civil Code Article 450 basically says public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea and the seashore.
Clearly, to Rodney, he was floating his boat in “public things:” running, navigable water.
But on that day back in 2021, Rodney’s not in the mood to try to convince Crawford of his legal rights.
Rodney: So I said, look, Bob, I, I don't even feel like talking to him today. Bob said No. So we just turned, made a U-turn. And tried to just go right back out,
But while Rodney was turning his boat to leave, Crawford turned his boat too. Following them. Rodney hit the throttle…
Rodney: I was probably going 40, maybe 42 miles an hour,
But he couldn’t lose Crawford
Rodney: and he literally run that airboat in front of us.
Rodney braced himself
Rodney: Almost caused a collision.
and thought fast
Rodney: I turned a hard left.
Collision averted! But Crawford wasn’t giving up
Rodney: He made a circle here.
Rodney points
Rodney: He come back, cut us off to the point to where I had to stop. He turned the fan of that airboat into, into the side of us and gunned it.
Rodney and Bob had to duck as a torrent of water and wind blew back across him. Crawford disputes this part, but he says yes, they sure as heck weren’t going slow. But that’s only because Rodney wouldn’t stop when Crawford gestured and yelled for him to stop.
Anyway. Rodney says he just wanted to get out of there.
Rodney: I took off again eventually.
Escaping through a cut in the trees. Crawford says that’s when he stopped following Rodney. Something underwater in that spot made it too dangerous.
Rodney: It was a bad scene. It was something like you'd see in a movie.
And in that high-speed chase, Crawford and a coworker that was with him got close enough to take pictures of Rodney’s boat and his boat numbers.
Rodney: And I think it was two days, two or three days later, I got a call from the Terrebonne Parish Sheriff's Department. A young deputy wanted me to come meet with him and uh, and I met him and he gave me a ticket for trespass. And I followed it.
Rodney paid his ticket but he was really upset about it.
Rodney: I can tell you it was mentally, it was a nightmare.
This is where Eddie comes into the picture. A mutual friend tells Rodney to call this lawyer.
Rodney: and Eddie said, we're gonna fight it. I said, well, Eddie, you don't understand…fighting Continental Land and Fur and all of this and that… He said, listen to me,, we are going to fight it. I said, well, if you put it that way, I'm your guy. He knew how passionate I was about it.
I ask Eddie,
Carlyle: Did you see this case and say well that’s a slam dunk?
Eddie: I saw it as a case to set the standard. I mean, I thought this was the case that hopefully the Supreme Court would take it up.
The state supreme court. Eddie says inside this seemingly insignificant trespass ticket is something explosive. Eddie thinks Rodney’s case is THE ONE the state’s highest court will use to declare -- once and for all -- that open, navigable water is owned by the state and open to the public. And so Eddie takes on the case pro bono.
Rodney gets his arraignment date. And then Eddie and Rodney went and entered a plea of not guilty. About a year later, the case goes to trial.
Eddie: Basically, the state of Louisiana was against Rodney because it was a criminal proceeding, but basically Continental Land was the person who had instigated the complaint through the sheriff's office and the DA's office in Terrebonne Parish.
Eddie and Rodney arrived at the massive, columned courthouse and Rodney was nervous. It was quite a scene for a misdemeanor trial. There were all kinds of lawyers there. He says one of them...
Rodney: actually kinda had me off to the side and he actually told me, do you understand by you pleading. Not guilty and fighting us what this is going to personally cost you? And before I could even answer, Eddie overheard that, stepped up there and said, it's not gonna cost Mr. Wagley nothing.
Under normal circumstances, to hire a lawyer for a case like this is really expensive.
Eddie: Oh, I would say 10, $20,000 easily.
So you can see why hardly anyone fights a trespassing charge.
I ran the encounter by Continental Land and Fur’s Attorney, and he has no memory of coming up to Rodney talking about legal costs.
Anyway, back to the trial. It lasts almost 7 hours. Almost unheard of for a misdemeanor trial. Eddie puts up an expert witness and lays out all kinds of scientific analysis – that he believes – together prove Rodney was in navigable tidal waters.
EDDIE: we had testimony that the water variation in the lake was anywhere from two to six feet.
Deep enough for boats at any time…meaning: navigable.
EDDIE: that it was subject to an astronomical tide of five inches absent wind
Meaning: it’s tidal.
EDDIE: it's all connected
To the Gulf of Mexico. Together, all this means: legally, this water should be open to the public.
EDDIE:That's my feeling. Yes,
But all the expert testimony wasn’t enough
Rodney: Well, the judge didn't want to hear that, so they found me guilty, but we knew we had proven the case.
Rodney was found Guilty. But Eddie and Rodney weren’t surprised, nor were they deterred. Terrebonne Parish pulls in hundreds of millions annually from the oil and gas industry.. Rodney says that means officials will go out of their way to avoid stepping on the industry's toes. By the way, neither the Terrebonne Parish District Attorney nor the judge who presided over Rodney’s case responded to our questions about this story.
So. Rodney and Eddie challenge the decision. They appeal to a higher court.
Rodney: So it went to the court of appeals and they looked at it and said. The man's innocent. It's tidal water.
Carlyle: Wow. So what did you say? What did Rodney say? Were y'all like high fiving?
Eddie: Yeah, pretty much. But we knew that that was not gonna be the end,
And it wasn’t. The state now challenged the decision. The case went to the Supreme Court of Louisiana. Which, remember, is exactly what Eddie wanted. But…
Eddie: Well, basically the Supreme Court said we're not touching it.
Actually, two justices wanted to hear the case –because they said it was of high interest to the state, but they were overruled. Instead, the state supreme court let the lower court’s narrow ruling stand – saying only… .
Eddie: The court of Appeal, we don't have an issue with it. Not guilty.
Finally, after all the legal drama, Rodney was innocent. The money he paid for the trespassing ticket was refunded. But that was it. There was no broader ruling. No clarity. No settling the fate of navigable water and public access once and for all
Carlyle: What was the reaction to the Supreme Louisiana Supreme Court?
Eddie: Mixed. Mine was, we're glad we're not convicted, but we kinda wish you would've addressed the issue and kind of give us some light
Rodney: And then it was over with.
But it's not over with. Motoring around Terrebonne Parish with Rodney some 2 years after the court’s decision, he showed me new expanses of open water posted with no trespassing signs.
Rodney: In just this area alone, we're talking hundreds of thousands of acres that are literally being closed to us.
Rodney says, to this day, Dwayne Crawford still harasses him. When I talk to Dwayne about this, he says yes, he continues to tell Rodney he’s trespassing. That he’s gotta leave. Dwayne says he believes Rodney is breaking the law, but also Rodney’s motor – every fisherman’s motor – can severely damage the delicate root systems in the area and cause even more land loss.
I also talk to the lawyer for Continental Land and Fur. He says even though Rodney was deemed innocent, the court didn’t explain why. Just that the prosecution didn’t prove criminal trespass beyond a reasonable doubt. He says if Rodney is caught in the same spot, he’ll be arrested again and they will pursue charges all over again.
RODNEY: I opened up a can of worms is what I done. But I'd done it for all the right reasons. So we've got to make a stand and I'm being told, you know, by my lawyer to, to make a stand. Don't flee.
Eddie advises Rodney to try to have a civil conversation.
RODNEY: If they give you a, a, a ticket, take it to, uh, you know, court and fight it.
And by the way –those tickets? Mark Davis, from Tulane Law, says the reason local law enforcement gives them in the first place is because in these rural, coastal areas, oil and gas companies are often the biggest taxpayers.
MARK: if you have a, you know, landowner, an oil company who's paying taxes that pay for the roads, hospitals, and schools, then maybe when they call the parish sheriff to say there's a trespasser. Well, the parish might well say, of course you're the taxpayer. Why don't we show up and tell that trespasser to leave?
It’s in the local governments’ and landowners’ mutual self interest to continue the status quo.
MARK: there's a reason for local governments to align with them because that fills the local coffers.
So, every government entity has very real reasons to kick the can down the road. To not stand up for the rights of the public and provide clarity to the situation. It’s a hot potato no one wants to touch.
Local parish governments want their tax dollars. The legislators want contributions from oil and gas companies and big landowners. And it seems, the Louisiana Supreme Court doesn’t want to wade into this thorny political issue with powerful interests.
So, left out to dry is the public. Eddie says, without any government action, why would landowners change?
EDDIE: Well, I mean, they're gonna, you're gonna go as far as you can till somebody stops you. And I think that's basically is their position.
The oil and gas landowner companies agree with that. Landowner's Association attorney Taylor Darden says his clients see their property as private, a fundamental constitutional right. full stop.
Taylor Darden: until a court tells me otherwise, I'm still gonna pay taxes on it, I'm still gonna have the rights that allows me to restrict access to it. And I'm still gonna treat it as private property until a court rules that it's not.
I mean, this makes sense. If you're a landowner and you're paying taxes every year and you have a title to the property, and no one tells you otherwise, why wouldn’t you act as if you still own it? I ask Taylor:
ME: So really the position is until a judge rules on every different bit of land that's now water, then landowners can continue to claim it as privately owned.
DARDEN: Exactly.
Taylor says Go ahead and prove it. Case by case by case. Meaning, unless the legislature or courts finally act on this conflict, a whole lot of Rodneys will have to fight – ticket by ticket – to declare each bit of land that has turned into navigable water – as public.
DARDEN:if they have that argument that it is, should, that it is and should be open to the public because it is naturally navigable. Then I invite them to file their suit.
He says landowners will be there to fight each one.
And their legal argument for that fight?
Remember Eddie and the law he used to successfully argue Rodney’s innocence? That the public owns...
EDDIE: ... running waters, the waters and bottoms of natural navigable water bodies.
CARLY: natural navigable water bodies.
DARDEN: the question is, what is naturally navigable? Did man cause it or did it naturally occur?
Taylor’s saying land becoming water – because of levees, carving up the wetlands with canals – those things are done by man. NOT natural.
DARDEN: Even you could argue, taking the environmentalist viewpoint, that the rise in sea level has been caused by the emissions of carbon dioxide through the atmosphere causing the polar caps to melt, which has resulted in sea level rise.
Is that natural? Well, the argument is no.
In other words: the companies own actions that helped the land disappear in the first place? Those actions weren’t natural. They were man made – in part by the oil companies. So all this land transformed into water that everyone’s fighting over... Taylor says, it isn’t naturally navigable. Therefore, it’s not public.
To sum up: oil and gas companies’ destruction of the wetlands is their defense.
music
Out in the Atchafalaya Basin with Rodney, he points out places he used to hunt deer, that are now under 5 feet of water. In the next 25 years, it’s estimated that about 75% of Terrebonne Parish will be underwater.
But the ways Louisiana has brought in business to utilize that water – like the big pro bass fishing tournaments that bring in visitors on the level of Superbowls – they’ve pulled out of South Louisiana, once one of the most popular destinations. These water skirmishes make it too hard to hold competitions here. Because they don’t want their contestants to get arrested.
Most years, over the last decade, fishermen have helped put forward a bill allowing for water access. But not this year. I asked Daryl why. He said they just don’t think they stand a chance right now, politics being what they are.
And remember Kevin Pearson? The representative who introduced this bill at the legislature back in 2018? He says he was trying to do the right thing for the people of Louisiana.
Pearson: I still say there was more support than opposition. The only difference is, is the opposition was primarily from multimillionaires.
He says: if decisions were made based on popular support, public access to tidal water would be an easy victory.
Pearson: if you polled the people of Louisiana, I'd have to believe it's one of those 80-20 issues if not even further.
But that's not the way it works. Pearson tells me: the governor at the time, John Bel Edwards, told him he got more phone calls about the bill than any other that year.
Pearson: I mean, the money's on the wrong side of the issue.
Music
MARK: oil and gas is winning.
Mark Davis, from Tulane University’s Institute on Water Resources Law and Policy.
MARK: there's a, a tendency to believe that this is between landowners and fishermen. It's not. This, by and large, it is about minerals against the world.
That’s how it looks in Louisiana. But sea level rise is, of course, a global issue. By 2050, 4.4 million acres of private property in the United States are projected to be underwater–The vast majority of it in the South. We haven’t begun to grapple with the implications.
Private land turning into public water is happening now. It’s just happening the fastest in south Louisiana. Where the stakes are unique and acute. Especially to fishermen like Daryl Carpenter.
Daryl: I mean, we're, we're, we're called America's wetlands. Uh, maybe 20% of it's America's wetlands. The rest of it, quote unquote, belongs to somebody else. If you don't have his permission to be there, you may have some drunk Coon ass pulling a gun on you or a Sheriff's deputy kicking your door in. So is it America's wetlands?
It's a fair question.
CREDITS
Thanks for listening to Sea Change! This episode was hosted and reported by me, Carlyle Calhoun. It was edited by Eve Abrams with help from Johanna Zorn, Drew Hawkins, Eva Tesfaye, and Michael McEwan. I’m the executive producer. The episode was fact-checked by Philip Kiefer. Sound design by Denis Funk and our theme music is by Jon Batiste.
Special thanks to John Lovett for sharing his legal expertise, which by the way, if you’d like to dive even deeper into, check out our show notes where you’ll find a link to his legal paper on this issue.
Sea Change is a WWNO and WRKF production. We are part of the NPR Podcast Network and distributed by PRX. And to help others find our podcast, hit subscribe wherever you get your podcasts.(OR: And to help others find our podcast, please share this episode with a friend!)
Sea Change is made possible with major support from the Gulf Research Program of the National Academy of Sciences, Engineering, and Medicine. WWNO’s Coastal Desk is supported by the Walton Family Foundation, the Meraux Foundation, and the Greater New Orleans Foundation.
We’ll be back in two weeks.
