Judges: JAMES D. \"BUDDY\" CALDWELL, Attorney General
Filed Date: 2/14/2011
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Austin:
You have requested an opinion from this Office related to the ownership of certain dedicated streets within the geographical jurisdiction of the Sewerage Water Board of New Orleans ("the Board"). In order to fully answer your questions, we here present the factual scenario that you have provided to us.
The Bayou Bienvenue Wetland Triangle is bounded by Florida Avenue on the south, the Main Outfall Canal on the north, and the Parish [line] on the east.1 Historically, the region was not open water but rather a cypress swamp characteristic of much of the region. Hydrologic modifications, capped by the opening of the Mississippi River-Gulf Outlet (MRGO) significantly degraded the area, changing its elevation and hydrology rendering it brackish and tidal.
At some point in the past, the Triangle was slated for a different fate. While still a swamp, the area was platted, subdivided and sold off in individual lots. Incidental to those development plans, a grid of City streets was laid out and dedicated. None of those streets were ever developed and they are now entirely submerged. Despite their inundation by tidal waters, the submerged lands have *Page 2 not been claimed as state lands (neither does it disclaim the lands either [sic], however, to the best of our knowledge).
In recent years the City, State, and community leaders have expressed an interest in an ecological restoration/rehabilitation for the region. Plans have been developed under various programs including the Coastal Impact Assistance Program, the Coastal Wetlands Planning, Protection and Restoration Act, and the MRGO closure mitigation program. Currently various exciting plans are being developed by the Sewerage and Water Board, community organizations and environmental groups that have the potential to reinvigorate the [T]riangle and the surrounding neighborhoods, a fact attested to by the recent visit to the Triangle by the head of the White House Council on Environmental Quality.
Central to any restoration of the wetlands of the Triangle is the matter of acquiring the necessary permissions and property rights. In particular, the question of the legal status of the dedicated but inundated streets looms large. In this regard we ask your assistance in answering the following questions regarding those streets:
1. Who owns the lands shown in the dedicated streets?
2. In what ways may those lands be used (specifically can their elevation be restored and can they be revegetated)?
3. Could they be used and managed as part of a carbon sequestration program?
Therefore, should the State Land Office make a claim to the subject property as a State-owned navigable water bottom, your questions related to the ownership of the roads would be moot, as all of the claimed property would vest in the sovereign ownership of the State (absent a successful challenge to such a claim). However, because the State Land Office has made no such claim, we now turn to your specific questions.
You note that the property has never been put to use for its intended purpose — the creation of a neighborhood. However, such a failure does not divest the original owners of their ownership rights where the property was merely dedicated and not sold (or given). Ownership is not lost through anything other than acquisitive prescription;8 thus, regardless of the lack of use of the subject property, absent a determination that it has become a State-owned water bottom, the property remains in the ownership of the record owners.
In the absence of fee ownership by a governmental entity or ownership as a navigable water bottom, the property, as noted above, is likely merely burdened with a right of public use or access for the purpose of terrestrial transport (i.e., roads). In this event, the use of the property would likely be restricted to what is explicitly stated in the dedication. Again, in the absence of such documentation, it is impossible to determine what those limitations may be.
Of further import to this question, we direct you to Act
Any monetary compensation derived from the sequestration of carbon on the surface of land or water bottoms . . . is the property of the owner of the land or water bottom upon which such sequestration occurs, unless (a) contractually assigned to another party; or (b) the sequestration, uptake, or prevention of emission of greenhouse gases is directly related to the avoided conversion or avoided loss attributable to a project carried out or sponsored by the Coastal Protection and Restoration Authority including use of public resources as provided in R.S.
49:214.5.4 . In such instance, the monetary compensation is the property of the state.
Under this provision, even if the Board comes to an agreement with the owner of the roads in the Triangle to operate a carbon sequestration operation thereon, absent an agreement to the contrary, any funds realized by such operation will inure to the land owner.
4. Assuming the lands shown as dedicated streets can be used inconnection with a wetland restoration project, are there restrictions onwho might conduct that work? Specifically, could the work be undertakenby the Sewerage and Water Board of New Orleans, the East Bank ProtectionAuthority, the Louisiana State Office of Coastal Protection andRestoration, and/or the Army Corps of Engineers?
We are aware of no restrictions regarding what entity might conduct wetland restoration work on the subject property, provided that the entity has the authority to conduct the project itself. If the property is ultimately determined to be State-owned, the question of which party could conduct such work would merely be limited by any agreements between the State and the entity tasked with performing the work. If the property is privately owned, any such work would depend on limits of a grant of access by the private landowner to the appropriate entity. Further, under La.R.S.
We hope this sufficiently answers your inquiry; however, if we may be of further assistance please do not hesitate to contact our office.
Sincerely yours,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY: __________________________ RYAN M. SEIDEMANN Assistant Attorney General
JC/RMS/tp
cc: Mark S. Davis, Esq., Inst. on Water Res. Law Policy, Tulane University
12 South, Range 12 East: 21, 22, 28, 54, 55, 66, 67, 69, 70, 71, and 72.