Thibodeaux v. Bernhard: The Fifth Circuit’s Expansion of Authority Under Admiralty Jurisdiction
Casenote
By Thomas Natal*
Introduction
With more than forty thousand miles of rivers, streams, and bayous flowing through Louisiana, water is not only a resource but a way of life.[1] Due to the yearly flooding of large navigable bodies of water, such as the Mississippi and the Atchafalaya Rivers, otherwise inaccessible bodies of water located on or surrounded by private property become easily accessible to others.[2] While Louisiana courts typically uphold the rights of private property owners and deny access to these bodies of water, federal courts routinely jeopardize these rights by expanding the reach of federal authority under admiralty jurisdiction.[3]
In Thibodeaux v. Bernhard, the Fifth Circuit addressed the issue of whether a body of water surrounded by private property and with limited seasonal accessibility during crawfish season was a navigable body of water sufficient to exercise admiralty jurisdiction.[4] The Fifth Circuit ultimately affirmed the district court’s decision that Lost Lake, the body of water in question, is a navigable body of water for purposes of establishing admiralty jurisdiction under 28 U.S.C. § 1333.[5]
This Note proposes that the Fifth Circuit misapplied the navigable in fact test and thereby incorrectly expanded the scope of admiralty jurisdiction in its finding that Lost Lake is a navigable body of water. Section II of this Note discusses the facts relevant to the Thibodeaux v. Bernard case. Section III provides a history of the federal court’s expansion of authority under admiralty jurisdiction and a brief history of Louisiana courts’ jurisprudence concerning access to otherwise inaccessible bodies of water through flood waters. Section IV discusses the Fifth Circuit’s reasoning for affirming Lost Lake as a navigable body of water sufficient to establish admiralty jurisdiction. Finally, section V proposes that the Fifth Circuit misapplied the holdings of The Daniel Ball and The Montello, when it held that Lost Lake is a navigable body of water which consequently and erroneously expanded admiralty jurisdiction. This final section also considers Thibodeaux’s impact on future Louisiana jurisprudence.
I. Facts and Holding
In January 2020, Plaintiffs, Devin Thibodeaux (Thibodeaux) and his grandson, Herby Angelle (Angelle) harvested crawfish traps in Lost Lake.[6] Due to Lost Lake residing on top of private land, crawfishing and other forms of fishing were restricted.[7] While they harvested their crawfish traps, Defendant, Adam Bernhard (Bernhard) collided into Thibodeaux’s skiff.[8] After the collision, Thibodeaux and Angelle claimed that Bernhard berated them, informed them of their trespass on his private property, instructed them to pull up their crawfish traps, and ordered the two to leave and never return.[9] Bernhard called a St. Martin’s Parish Sheriff Deputy who later issued Thibodeaux and Angelle a citation for trespass.[10] Due to the roughly 700 crawfish traps and the small size of the skiffs, Thibodeaux and Angelle needed almost three days to remove the crawfish traps from Lost Lake and several more days to reposition them.[11]
Roughly a year later, plaintiffs filed suit seeking damages for lost sales and the conversion of their crawfish traps in federal court, asserting jurisdiction under maritime law because the incident took place on “factually navigable waters.”[12] In response, the defendant filed a motion to dismiss, claiming that the court lacked subject matter jurisdiction over the plaintiffs claim, and also requested that the plaintiff’s amend their complaint to properly identify the location of the incident and defendants alleged actions.[13] Although the district court held that the plaintiff’s claim did not contain sufficient facts to satisfy the location or connectivity test under Grubart needed for admiralty jurisdiction, the court concluded that dismissal was not appropriate as the defendant alternatively sought a more sufficient pleading.[14]. Importantly, for a federal court to exercise admiralty jurisdiction over a tort claim under Grubart, the two pronged location and connectivity test must be satisfied.[15] Therefore, the court denied the plaintiffs’ motion to dismiss without prejudice but granted the right of the plaintiff to amend their complaint.[16]
Plaintiffs next filed an amended complaint in October 2021, and defendant promptly filed an instant motion to dismiss all claims in accordance with 12(b)(6), motion for failure to pledge a maritime tort.[17] The magistrate judge recommended granting the defendant’s motion to dismiss via Rule 12(b)(1), lack of subject matter jurisdiction, namely insufficient facts to establish admiralty jurisdiction.[18]
After a de novo review, the district court, in June 2022, rejected the report and recommendation from the magistrate judge and held that the plaintiffs’ claim demonstrated a sufficient connection to maritime activity needed to satisfy the connectivity prong of the Grubart test.[19] The court then remanded the matter to the magistrate judge for an evidentiary hearing to establish the location of the alleged incident, determine if the location established by the evidentiary hearing was a navigable waterway sufficient to satisfy the location prong of the Grubart test, and issue a report and recommendation to establish a final disposition on the motion to dismiss.[20]
In June 2023, the district court accepted the facts of the report and recommendation but disagreed with its conclusion and found its own.[21] The district court denied the defendant’s motion to dismiss holding that Lost Lake was navigable in fact and thus a navigable waterbody sufficient to establish admiralty jurisdiction.[22] The defendant appealed the ruling, and the Fifth Circuit ultimately affirmed the lower court’s decision holding that Lost Lake was a navigable waterbody for purposes of establishing admiralty jurisdiction pursuant to 28 U.S.C. §1333.[23]
II. Background
An understanding of the bases for admiralty jurisdiction, established more than a century ago, is crucial to understanding the Thibodeaux court’s holding today. Before the American Revolution, the English Crown possessed authority over navigable waters in the Colonies.[24] After the war, Article III of the United States Constitution granted the federal courts exclusive authority over admiralty and maritime jurisdiction.[25] In the early 1800’s, two types of claims, each with different tests, represented the main focus of admiralty jurisdiction.[26] These two types of claims consisted of either maritime contract claims, determined by a subject matter test, or maritime tort claim, determined by the locality test.[27] The determinative factor in the locality test was the location of the alleged incident.[28] During the inception of admiralty jurisdiction, the Supreme Court relied on the limited reach of the locality test exercised by the English court.[29] However, the Supreme Court determined that limiting the scope of admiralty jurisdiction “to all acts and torts done upon the high seas and within the ebb and flow of the tides,” as the English did, would not suffice.[30]
Over the next century, the Supreme Court continued to broaden the scope of admiralty jurisdiction through its rulings.[31] For a current federal court to rule on an alleged tortious act taking place on water, namely a maritime tort, authority must be exercised under admiralty jurisdiction pursuant to 28 U.S.C. § 1333.[32] In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, the Supreme Court established a two-part test stating, “a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1)[33] over a tort claim must satisfy conditions of both location and of connection with maritime activity.”[34] To satisfy the location step, the court must establish that the incident took place on navigable water.[35]
With the historical background established, the next section of this note will address the following topics. Section A will track the Supreme Court’s expansion of admiralty jurisdiction through the nineteenth and twentieth century, and the creation of the navigable in fact test. Next, section B will discuss the Fifth Circuit’s implementation of the expanded scope of admiralty jurisdiction and the navigable in fact test. Finally, section C will highlight the current Louisiana court’s holdings on the navigable in fact test.
A. Evolution and Expansion of Admiralty Jurisdiction by The Supreme Court
Due to the increased transportation of commerce by water in the nineteenth century, the Supreme Court expanded admiralty jurisdiction to include any action interfering with the transportation of commerce by water or land in United States v. Coombs.[36] The Coomb’s plaintiff contested whether admiralty jurisdiction extended to goods stolen from a ship resting above the high water mark, upon a beach.[37] Prior to United States v. Coombs, jurisprudence limited admiralty jurisdiction to claims which took place below the high watermark.[38] The Supreme Court stated that “[t]he power to regulate commerce, includes the power to regulate navigation …[i]t does not stop at the mere boundary line of a state; nor is it confined to acts done on water[.]”[39] The Supreme Court also held that the power to regulate commerce included all acts interfering with the transportation or navigation of commerce.[40] Thus, the Supreme Court vastly increased the scope of admiralty jurisdiction to include claims above the high water mark, below the high water mark, and even on land which disrupted transportation or navigation of commerce.[41]
Next, the Supreme Court proclaimed that admiralty jurisdiction included the power to regulate navigation in all navigable waters of the United States in Gilman v. Philadelphia.[42] In this case, the Supreme Court stated that:
Commerce includes navigation. The power to regulate commerce comprehends the control for the purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie . . . . This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the State or otherwise . . . .[43]
The Gilman plaintiffs brought suit against the defendant for its construction of a bridge that restricted travel of large vessels on a river contained entirely within the state.[44] The Supreme Court held that the State of Philadelphia acted within its authority.[45] Although bodies of water not connected to other states do not fall under admiralty jurisdiction, this holding expanded the scope to regulation of navigation in all navigable waters of the United States.[46]
Because of the expansion of admiralty jurisdiction to include all navigable waterways, the court needed to developing a test for determining navigability and which bodies of water constituted navigable waters of the United States.[47] Otherwise every trickling stream or river connecting or flowing through multiple states would fall under the control of the federal courts.[48] Thus, in The Daniel Ball, the Court created a test to determine which bodies of water were navigable for purposes of exercising authority under admiralty jurisdiction, as well as distinguished federal navigable waters from state navigable waters.[49]
In The Daniel Ball, the United States sued the defendant for transporting commerce by water without a license.[50] The defendant claimed that the ship did not engage in interstate commerce because the ship only transported goods within state lines.[51] The Supreme Court affirmed the circuit court’s decision holding that even though the steamer only transported goods within state lines, the body of water the steamer traveled on was navigable in fact and thereby subject to admiralty jurisdiction.[52] The Supreme Court declared any river possessing the characteristics needed to be “used, in their ordinary condition, as a highway for commerce” would be deemed navigable in fact.[53] This navigable in fact test remained the starting point for invoking admiralty jurisdiction at this point.[54]
The Supreme Court next further distinguished navigable waters under federal authority from those under state law, holding that any water possessing the ability to unite with other water forming a “continued highway” to transport commerce to other states or foreign countries could be classified as “navigable waters of the United States.”[55] Accordingly, the scope of federal authority under admiralty jurisdiction expanded to include any action taking place on a navigable waters of the United States, namely those waters used for commerce that also span across state lines.[56]
Par the course, the Supreme Court again increased the scope of admiralty jurisdiction in The Montello to include the ability to examine historical documents to prove navigation for purposes of exercising admiralty jurisdiction.[57] In this case, the plaintiff sued for non-compliance of acts of Congress on the Fox River.[58] The defendants contested the authority of the court claiming that Fox River was not part of the navigable waters of the United States because sections of the river were non-navigable.[59] The lower court held that the Fox River was not a navigable body of water under The Daniel Ball’s test because sections of the Fox River were not navigable in the river’s original condition, and the United States appealed.[60] The Supreme Court examined the exact meaning of “in their ordinary condition” from The Daniel Ball.[61] Although the court found certain sections of the Fox River difficult to navigate, historical documents dating back to 1673 showed interstate transportation of commerce took place on the river.[62] The Supreme Court reversed the lower court’s decision and held that the deciding factor in navigability for waters in their ordinary condition was not solely the means which travel or transportation of commerce currently took place on a river, but the capacity for travel or transportation of commerce to take place.[63] Thus, the federal courts gained the ability to use historical documents to prove navigability in fact and thereby sustain admiralty jurisdiction.[64]
In In re Boyer, the Supreme Court’s inclusion of artificial bodies of water as navigable further expanded the scope of admiralty jurisdiction.[65] The defendant sought a writ of prohibition against the district court judge for lack of admiralty jurisdiction because the body of water in question was a manmade canal.[66] Facts showed that the large artificial canal not only connected Lake Michigan and the Chicago River, but also provided vessels transportation for interstate commerce.[67] The Supreme Court rejected the writ holding that the decisions in The Daniel Ball and The Montello are to be applied not only to rivers, but to all bodies of water, natural and artificial.[68] Thus, the Supreme Court expanded admiralty jurisdiction to include any manmade body of water such as a canal, channel, or drainage ditch, if the body of water is used as “a [continuous] highway for commerce.”[69]
According to the Supreme Court in Kaiser Aetna v. United States, courts must carefully interpret whether the term “navigability” was being applied for the same purpose in the case at hand when relying on judicial precedent.[70] In Kaiser Aetna, the Ninth Circuit reversed the district court’s decision, and the Supreme Court granted a writ of certiorari.[71] On certiorari, the Supreme Court held that despite the marina falling within the juridical definition of “navigable waters of the United States”, the government did not possess federal authority to open the marina to public access.[72] In this case, the defendants dredged Kuapa Ponda, considered private property under Hawaiian law at the time; and a later removal of its barrier wall connected the pond with the Pacific Ocean, thereby converting Kuapa Pond into Hawaii Kai Marina.[73] The district court held that the marina fell under the category of navigable waters of the United States, but the federal government did not have the authority to grant public access to the marina.[74] The Ninth Circuit reversed the district court’s ruling, holding that public access was granted through a navigational servitude.[75] The Supreme Court acknowledged that although the marina falls within the meaning of “navigability” found in The Daniel Ball and The Montello, the word navigability was not used to determine federal authority over the water in this case, but was instead used to determine public access granted by a navigational servitude.[76] The Court reiterated the lower courts statement, “any reliance upon judicial precedent must be predicated upon the careful appraisal of the purpose for which the concept ‘navigability’ was invoked in a particular case.”[77] Although the Supreme Court held that Hawaii Kai Marina was navigable in fact, it assessed navigability only to determine that public access was not granted by a navigational servitude, not for admiralty jurisdiction purposes.[78]
B. Federal Courts’ Implementation of Admiralty Jurisdiction
The Fifth Circuit historically relies upon the holdings of the Supreme Court to determine the navigability of a body of water.[79] Specifically, in Sanders v. Placid Oil, the court directly referenced the navigable in fact test in The Daniel Ball, along with the holding from In re Boyer that states this test may be applied to all bodies of water, natural and artificial.[80] Also, the Sanders court relied upon historical facts to show interstate travel of commerce, despite the fact that court failed to directly cite The Montello.[81]
In Sanders, plaintiffs filed suit for injuries sustained on Catahoula Lake from a collision with an unmarked waterpipe.[82] The trial court rejected the defendant’s motion for summary judgement stating lack of jurisdiction and found in favor of the plaintiffs.[83] Upon appeal, the Fifth Circuit rejected the defendants argument of seasonal non-navigability as a factor that should render Catahoula Lake non-navigable and effectively deny admiralty jurisdiction.[84] The court stated that Catahoula Lake was 1) connected Little River to the Mississippi River, 2) formed a continuous highway for interstate commerce, and 3) used for commercial fishing.[85] The court noted that the Army Corp of Engineers classified Catahoula Lake as a navigable water body, and the Army Corp required permits for structures placed in the water, although these facts were not determinative according to Kaiser Aetna since navigability was used by the Army Corps for permitting purposes, not admiralty jurisdiction, they were still significant.[86] The Fifth Circuit held that Catahoula Lake was “navigable water of the United States” sufficient to establish authority under admiralty jurisdiction.[87]
Although not required, federal courts may and historically do apply state law and jurisprudence to cases within admiralty jurisdiction.[88] Specifically, in Parm v. Shumate, the Fifth Circuit relied upon Louisiana state law and jurisprudence, as well as federal precedent, in a case concerning public access and ability to fish in private, landlocked lake waterway.[89] In Parm, the plaintiffs awaited a final decision in state court and concurrently filed in federal court seeking summary judgement over an incident involving persons fishing on private property submerged by flood waters from the Mississippi River.[90] Following a stay issued by the federal court, the Louisiana Second Circuit Court of Appeal held that private property, including a landlocked lake, does not become part of a navigable body of water when the property is flooded by a nearby navigable body of water.[91] The Fifth Circuit referenced the Louisiana Constitution, the Louisiana Civil Code, and several Louisiana court cases, such as Walker Lands, Edmiston v. Woods, and others, in its reasoning.[92] Ultimately, the Fifth Circuit affirmed the lower court’s decision, holding that neither a state nor a federal servitude existed granting a person the right to fish on private property; furthermore, no Louisiana law existed mandating a landowner to grant public access to a body of water located on private property.[93] At least in part, the Fifth Circuit established a willingness to look into Louisiana jurisprudence in deciding cases of navigability.[94]
The Fifth Circuit also holds that the navigable in fact test is satisfied when a body of water connects two or more navigable bodies of water.[95] In Meche v. Richard, the plaintiffs brought action against the defendant for a maritime tort on Lake Rycade, and the defendant filed a motion to dismiss for lack of admiralty jurisdiction.[96] The Western District of Louisiana emphasized that a body of water’s ability to connect and continue a highway for interstate commerce purposes determines its navigability in fact for purposes of establishing admiralty jurisdiction under 28 U.S.C. § 1333.[97] Citing Sanders, the court dismissed the argument that a body of water rendered non-navigable by seasonal navigability rendered the lake non-navigable.[98] Next, referencing The Montello, the court dismissed the notion of non-navigable based on the size of boat used on Lake Rycade.[99] Further, the court relied upon The Montello when it permitted the use of historical documents to demonstrate Lake Rycade’s historical use for commercial fishing dating back hundreds of years due to its connection with the Atchafalaya River Basin.[100] Although not determinative following Kaiser Aetna, the court noted that the Army Corps of Engineers issued a cease and desist order when digging took place on the lake, “thus inferring jurisdiction by the Corp”, and the state of Louisiana determined Lake Catahoula to be navigable.[101] Finally, the court emphasized that Lake Rycade created a shortcut for interstate commerce to travel by connecting multiple navigable bodies of water in the Atchafalaya Basin.[102] Ultimately, the district court held that Lake Rycade satisfied the navigable in fact test establishing authority under admiralty jurisdiction.[103]
Ultimately, in the absence of a plaintiff’s ability to prove a body of water satisfies the navigable in fact test, federal law cannot govern via admiralty jurisdiction.[104] For example, in Newbold v. Kinder Morgan SNG Operator, the plaintiffs sought damages for an injury sustained on a boating accident in a wildlife refuge.[105] The defendant filed for summary judgement, claiming the location of the accident transpired on water governed under Louisiana law, not federal law.[106] Following the district court’s grant of summary judgement in favor of defendants, plaintiffs appealed claiming the body of water in question was navigable in fact.[107] Citing The Daniel Ball and The Montello, the Fifth Circuit concluded that the body of water in question did not previously nor presently possess the capacity for interstate commerce.[108]
C. Louisiana Courts’ Application of Navigitability and the Increased Preservation of Private Property
No person or citizen has the power to limit or obstruct navigation in a navigable body of water, according to a Louisiana appellate court in D’albora v. Garcia.[109] The D’Albora plaintiff sought an injunction restraining the defendant from blocking access through a canal into Lake Pontchartrain.[110] The trial court held that the canal was navigable in fact, and the defendant appealed.[111] The Louisiana Fourth Circuit determined that the ultimate question was the “navigability of the canal.”[112] Further, the court cited the Supreme Court’s holdings in The Daniel Ball and The Montello in its analysis.[113] The Louisiana Fourth Circuit affirmed the lower court’s decision holding the canal was navigable in fact; thus, no person could rightfully restrict or obstruct navigation through the canal.[114]
Although navigation may not be blocked or obstructed on navigable bodies of water, the ability to restrict access on a non-navigable body of water is allowed, according to Edmiston v Wood.[115] The Edmiston case also provided that privately owned land does not become subject to public use when submerged by nearby flood waters from a navigable body of water.[116] In Edmiston, the plaintiff brought a suit for a declaration of private property subject to public use when flooded by nearby waters from the Mississippi River.[117] The district court held that private land does not become subject to public use when flooded by nearby navigable bodies of water.[118] The Louisiana Second Circuit distinguished the case from D’Albora where the plaintiff owned the bed and bottom of a specific section the canal passed through. In comparison in Edmiston, the water on top of privately owned bed and bottom was not a navigable body of water.[119] The district court held, and the Louisiana Second Circuit affirmed, that private property does not become subject to public use when flooded by nearby waters from navigable body of water.[120]
In State v. Barras, the court upheld the rights of private property owners to restrict the trespass of others onto private property through flood waters of a nearby navigable body of water.[121] In this case, the plaintiffs charged the defendants with trespass after the defendants entered their private property through flood waters to commercially crawfish.[122] The district court found the defendants guilty of trespass, and the Louisiana Third Circuit Court of Appeal affirmed.[123] The holding in Barras underscores the importance Louisiana law places on the rights of property owners’ to without hold access to their land.[124] The Louisiana Supreme Court affirmed the lower court’s decision and held that the defendants trespassed on private property.[125]
Additionally, in Walker Lands v. East Carroll Parish Police Jury, a landlocked body of water cannot form a continuous highway for interstate commerce to travel.[126] This case further strengthened the non-navigable classification of a body of water only accessible through flooded waters.[127] In this suit, the plaintiff sought a declaratory judgement of their private ownership of Gassoway Lake to prove that the lake and drainage ditch, used to access Gassoway Lake, were not subject to public use.[128] Gassoway Lake only became accessible through a drainage ditch when flooded by waters from the nearby Mississippi River.[129] First, the Louisiana Second Circuit emphasized that a landlocked lake does not serve any purpose to commerce.[130] Second, it emphasized a body of water used solely during crawfish season does not constitute being used for commerce.[131] Third, the court noted that the State never claimed ownership over the water bottoms of Gassoway Lake.[132] Therefore, the Louisiana Second Circuit affirmed the trial court’s decision and held that Gassoway Lake and the drainage ditch were not navigable bodies of water.[133]
III. The Thibodeaux Court’s Decision
In Thibodeaux v. Bernhard, the court examined the facts and judicial precedent to determine if Lost Lake was a navigable body of water. Because the Fifth Circuit previously considered whether a body of water was navigable for purposes of exercising admiralty jurisdiction in Sanders, the Thibodeaux court relied on this case as binding precedent.[134] According to Sanders, maritime tort jurisdiction is limited to torts taking place on navigable waters.[135] For Lost Lake to be determined as a navigable body of water, the navigable in fact test from The Daniel Ball needed to be met.[136] The court compared Lost Lake to Catahoula Lake in Sanders and Lake Rycade in Meche, both deemed navigable bodies of water.[137]
The Thibodeaux court referenced three specific holdings regarding Catahoula Lake in Sanders.[138] First, seasonal navigability did not preclude a body of water from being navigable waters of the United States.[139] Second, Catahoula Lake connected multiple navigable interstate waterbodies which formed a “continuous highway.”[140] Third, historical documents showed commercial trappers and fishmen traveled and fished Catahoula Lake on small boats.[141] Therefore, the Thibodeaux court reasoned that Lost Lake was seasonally navigable, connected to a navigable waterbody through a drainage ditch, and historical documents identified Lost Lake supported commercial crawfishing.[142]
Next, the Thibodeaux court compared Lost Lake to Lake Rycade in Meche where the district court held Lake Rycade was navigable in fact.[143] The court pointed to the similarities in both lakes’ location in the Atchafalaya Basin, their limited seasonal navigability and accessibility only through flood waters in a small channel limiting the size of the craft able to enter, and the fact that the lakes supported commercial fishing.[144] The Thibodeaux court noted that the Meche district court utilized the following reasoning, similar to its own, when underscoring Lake Rycade’s seasonally limited access as a factor contributing to its navigability: “the manner and mode of access to the [lake] . . . is unique to the Atchafalaya Basin itself and is one which has been developed for and adapted to the unique nature of the Basin and the unique nature of the commerce conducted within the Atchafalaya Basin.”[145]
Further, the court rejected the defendant’s comparison of Thibodeaux to Parm[146] and distinguished the two cases based on two key differences in Lost Lake and Gassoway Lake.[147] First, the court stated that flood waters directly connected Lost Lake to the Atchafalaya River via a roughly twenty foot canal, whereas Gassoway Lake only experienced “sporadic flooding” not connecting it to any navigable body of water.[148] Second, Gassoway Lake neither currently nor historically supported commercial fishing, unlike Lost Lake.[149] Ultimately, the Thibodeaux court claimed that the Parm case did not determine the navigability of Gassoway Lake for purposes of establishing admiralty jurisdiction for federal courts, but instead only considered whether a “federal navigational servitude extended on flooded private property,” an unconsidered issue in Thibodeaux.[150]
Finally, citing Kaiser Aetna, the court uphold that relied upon precedent must be evaluated to clearly understand why the court utilized the concept of navigability in the first place.[151] Under this rule, the Thibodeaux court rejected the defendant’s reliance on other cases such as Barras and Newbold, two cases which only addressed navigability for other purposes than to impose admiralty jurisdiction.[152] Accordingly, the court found that the district court did not err in its findings that sufficient historical facts proved commercial fishing transpired on Lost Lake, seasonal navigability of Lost Lake coincided with the profitable crawfish season, and the drainage canal connected Lost Lake and a navigable body of water, the Atchafalaya River.[153] Based of these findings, the Fifth Circuit affirmed the district court’s holding that Lost Lake was navigable in fact and thereby a navigable body of water for purposes of exercising admiralty jurisdiction under 28 U.S.C. § 1333.[154]
IV. Analysis
The Fifth Circuit’s decision in Thibodeaux incorrectly expanded the scope of admiralty jurisdiction to include bodies of water that do not form a continuous highway for interstate commerce. First, the Fifth Circuit misapplied the navigable in fact test from The Daniel Ball, discussed in Part A. Second, the Fifth Circuit possessed insufficient facts to apply the holding from The Montello, discussed in Part B. Finally, Part C will discuss the Fifth Circuit’s disregard for Louisiana jurisprudence and the effect of the court’s decision moving forward on the private property rights of Louisiana citizens.
A. The Fifth Circuit’s Misapplication of the Navigable In Fact Test
The Fifth Circuit’s decision expanded the scope of admiralty jurisdiction by an incorrect application of the navigable in fact test. In Thibodeaux, the court emphasized the similarities of Lost Lake to Catahoula Lake in Sanders and Lake Rycade in Meche.[155] The court correctly pointed to each of the three lakes being limited in accessibility during portions of the year and having connection to a navigable body of water. The court further compared Lost Lake to Lake Rycade for the factual similarities of being located within the Atchafalaya Basin, accessible through flood waters from the Atchafalaya River, and historically fished for crawfish.[156] Relying upon these factual similarities and pointing directly to the holdings in Sanders and Meche, the Fifth Circuit held Lost Lake to be navigable in fact and thus sufficient to exercise admiralty jurisdiction under 28 U.S.C. § 1333.[157]
However, the Fifth Circuit overlooked the largest distinction between the lakes.[158] Unlike Lake Rycade and Catahoula Lake, Lost Lake cannot connect multiple navigable bodies of water together because the lake is surrounded by private property.[159] In Sanders and Meche, the courts highlighted both lakes’ ability to connect two navigable body of waters and form a continuous highway.[160] The only access to Lost Lake is through a drainage ditch.[161] According to the Cambridge Dictionary, the word continuous means “without a pause or interruption.”[162] If a boat were to travel into Lost Lake through the drainage ditch from the Atchafalaya River flood waters, the boat would have no other means of exit except through the drainage ditch. Since Lost Lake is landlocked and only accessible through a drainage ditch when the Atchafalaya River floods, it is not possible for Lost Lake to form a continued or continuous highway. Thus, the Thibodeaux court incorrectly compared Lost Lake to Lake Rycade or Catahoula Lake in its conclusion that Lost Lake constituted a continuous highway. Further, the court’s mistaken comparison led the court to incorrectly apply the navigable in fact test. As stated in The Daniel Ball:
[A] river is a navigable body of water of the United States when it forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States of foreign countries in the customary modes in which such commerce is conducted by water.[163]
Following the strict wording in The Daniel Ball, Lost Lake cannot form a continuous highway.[164] For the purpose of travel or transportation, Lost Lake would be equivalent to a cul-de-sac.[165] Once entered, there is no outlet, and no means of connection to another road or lake. At some point Lost Lake comes to a dead end, just as a person traveling towards a cul-de-sac does. Therefore, Lost Lake does not have the ability to connect with another lake and cannot form a continuous highway. The Fifth Circuit’s decision has added bodies of water into the navigable in fact test which do not meet the well-established criteria.
B. The Fifth Circuit’s Insufficient Factual Findings of Lost Lake’s Historical Navigability
While the Fifth Circuit did not expressly reference The Montello, the court misapplied its holding to Lost Lake and further expanded the scope of admiralty jurisdiction. In Meche, the district court relied upon the Supreme Court’s holding in The Montello that “historical records of commercial navigation” were sufficient to find navigability.[166] The Montello contained documented factual findings of explorers traveling the Fox River dating back over hundreds of years, and evidence of commercial trappers dating back multiple decades.[167] Similarly in Meche, the factual findings demonstrated a “rich and colorful history” of the use and navigation of Lake Rycade in the history of the Atchafalaya Basin dating for the past one hundred years.[168] There is neither an extensive history of Lost Lake playing a part in the history of the Atchafalaya Basin nor documented evidence showing decades of use for commercial fishing. The report and recommendation followed by the district court to show Lost Lake was commercially crawfished for generations largely relied upon the testimony of the plaintiff and the plaintiff’s family members.[169] Despite the date of the canal connecting Lost Lake to the Atchafalaya being unknown, the Thibodeaux court relied on these facts to establish commercial navigation as set forth in The Montello.[170] However, there is not enough historical data for a sufficient comparison of Lost Lake to Lake Rycade or the Fox River to establish commercial navigation in Lost Lake.
It is inappropriate to give the same weight to the testimony of only two recent generations who commercially fished on Lost Lake as the hundreds of years of historical evidence of commercial fishing on Lake Rycade or the documented hundreds of years of transported commerce on Fox River when considering historical navigability of a body of water.[171] If courts continue to allow insubstantial historical evidence to prove commercial navigation, this will result in bodies of water falling under federal authority that do not belong. The court’s failure to distinguish these factual historical differences between Lost Lake from Lake Rycade and Fox River was in error and, again, incorrectly expanded the scope of admiralty jurisdiction.
C - The Lasting Effect Of The Thibodeaux Court’S Rejection Of Louisiana Jurisprudence
Unlike prior cases heard by the Fifth Circuit, Thibodeaux rejected Louisiana jurisprudence.[172] In State v. Barras, the Louisiana Third Circuit held and the Louisiana Supreme Court affirmed that private property flooded by waters from a navigable body of water do not become a navigable body of water.[173] Specifically, “crawfish bottoms … do not qualify as navigable waters.”[174] In Walker Lands, the court held the drainage ditch and Gassoway Lake, which was landlocked similar to Lost Lake, were non-navigable and subject to private ownership.[175] Also, in Sanders, the Fifth Circuit noted the Army Corps of Engineers considered Lake Catahoula to be a navigable body of water.[176] Further, in Meche, the court considered the state of Louisiana and the Army Corps of Engineers considered Lake Rycade to be navigable.[177] Unfortunately, the Fifth Circuit refused to consider that Louisiana held Lost Lake to be non-navigable, nor did it reference any opinions of the Army Corp on this matter.[178] Louisiana jurisprudence clearly points to Lost Lake being non-navigable and being classified as a private thing[179] susceptible to private ownership.[180]
Considering the court’s reasoning, thousands of rivers, lakes, streams, and bayous located in Louisiana are now susceptible to federal authority. If simply showing that historically people fish or harvest crawfish for years in a body of water, even if done by trespass, sufficiently establishes that the water is capable of use for commercial fishing, every Louisiana citizen owning property containing a pond, stream, or swamp should be worried. Such a holding essentially strips Louisiana property owners of their right to withhold access to private property.
Moving forward, federal courts need only limited historical facts to establish commercial fishing and apply the expanded navigable in fact test to exercise federal authority under admiralty jurisdiction. The broadened scope will lead to more cases filed in federal court, and the refiling of settled state cases. Finally, any Louisiana citizen contesting federal authority will undoubtably be faced with summary judgement.
Conclusion
The Fifth Circuit’s decision accidentally expanded the scope of federal authority under admiralty jurisdiction. The unintentional expansion will mistakenly subject countless bodies of water contained or surrounded by private property to federal authority. The navigable in fact test will now be applied to waterbodies not forming or even capable of forming a continuous highway. Also, the court’s decision grants future courts the ability to use limited historical facts to establish commercial navigation on bodies of water for the purpose of exercising admiralty jurisdiction. Ultimately, this decision continues the expansion of the scope of federal authority under admiralty jurisdiction and will undoubtably leave Louisiana citizens with little option when contesting its authority.
Footnotes:
* By Thomas Natal, J.D. Candidate 2027 Loyola University New Orleans College of Law; MBA 2024, Loyola New Orleans University. Special thanks to Professor Benjamin Allums for the recommendation of the case, and Aubrey Rector and Anna Gilbert for their help through the editing process. Most importantly, I want to extend a special heartfelt thank you to my wife, Jennifer Natal, for her unconditional love and support through this process and for being my inspiration to enter law school from the start.
[1] See Louisiana, Nat'l Wild & Scenic Rivers Sys., http://www.rivers.gov/Louisiana/.
[2] See e.g., Thibodeaux v. Bernhard, No. 2330405, 2024 WL 3181458, at *1 (5th Cir. 2024); Parm v. Shumate, 513 F.3d 135, 138 (5th Cir. 2007); State v. Barras, 615 So. 2d 285, 287 (La. 1993); Walker Lands, Inc. v. E. Carroll Par. Police Jury, 38,376 (La. App. 2 Cir. 4/14/04), 871 So. 2d 1258, 1261, writ denied, 2004-1421 (La. 6/3/05), 903 So. 2d 442; Meche v. Richard, No. 05-0385, 2007 WL 634154, at *2 (W.D. La. Feb. 26, 2007).
[3] See infra Section II(A)–(C) for exemplary cases in each scenario.
[4] Thibodeaux, 2024 WL 3181458, at *1.
[5] Id. at *6.
[6] Thibodeaux v. Bernhard, No. 6:21-CV-00061, 2023 WL 3897987, at *3 (W.D. La. June 8, 2023) (“Lost Lake was first identified by name in 1968, but it has been cartographically identified as a ‘low-lying, swampy area with numerous iterations over the years.’”). The lake is described by the court as a perched lake located near the community of Butte LaRose, connected to water by a small canal to the Atchafalaya River but as otherwise inaccessible by water and surrounded by private property. Id. The canal connecting Lost Lake to the Atchafalaya River is roughly 20 feet wide, but it is unknown as to when or how the canal first developed. Id.
[7] Thibodeaux, 2024 WL 3181458 *1.
[8] Thibodeaux v. Bernhard, No. 6:21-0061, 2021 WL 4314746 *1 (W.D. La. Sept. 22, 2021). See also Skiff, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/skiff (defining “skiff” as “a small, light boat for rowing or sailing, usually used by only one person”).
[9] Id.
[10] Id.
[11] Thibodeaux v. Bernhard, No. 6:21-0061, 2022 WL 2426688, at *1 (W.D. La. March 23, 2022).
[12] Thibodeaux, 2021 WL 4314746, at *1.
[13] Id. at *2.
[14] Id. at *4. See infra text accompanying notes 32–34, discussing Grubart.
[15] Id. at *2 (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).
[16] Id. at *4. Further, the court noted there was an issue with deficient notice as to the alleged location of the complaint. Id.
[17] Thibodeaux, 2022 WL 2426688, at *2.
[18] Thibodeaux, 2024 WL 318458, at *1.
[19] Id.
[20] Thibodeaux v. Bernhard, No. 6:21-CV-00061, 2022 WL 2046134, at *1 (W.D. La. June 8, 2022).
[21] Thibodeaux, 2023 WL 3897987 *2.
[22] Id.
[23] Thibodeaux, 2024 WL 3181458, at *6.
[24] Sackett v. Env’t Prot. Agency, 598 U.S. 651, 686 (2023).
[25] U.S. Const. art. III, § 2, cl.1 (“The judicial power shall extend to all Cases, In Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . to all Cases of admiralty and maritime Jurisdiction.”).
[26] Thomas J. Schoenbaum, Admiralty and Maritime Law § 1:1, at 2 (6th ed. 2018).
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 2–3.
[31] See e.g., U.S. v. Coombs, 37 U.S. 72, 74 (1838); Gilman v. Philadelphia, 70 U.S. 713, 724-25 (1865); The Montello, 87 U.S. 430, 438 (1874); In re Boyer, 109 U.S. 629, 632 (1884).
[32] Thibodeaux, 2024 WL 3181458 at *2.
[33] 28 U.S.C. §1333(1) (stating that “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled”).
[34] Grubart, 513 U.S. at 534.
[35] Id.
[36] See Schoenbaum, supra note 27, § 1:1 at 3; Coombs, 37 U.S. at 74.
[37] Coombs, 37 U.S. at 74-75. See also High Water Mark, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/high-water-mark (defining “high water mark” as “a mark that shows the highest level that the sea or river reaches at a particular place”).
[38] Coombs, 37 U.S. at 74–75
[39] Id.
[40] Id. at 81 (emphasis added).
[41] Id. at 79–80.
[42] Gilman v. Philadelphia, 70 U.S. 713, 724–25 (1865).
[43] Id.
[44] Id. at 717–18.
[45] Id. at 732.
[46] See id. at 731–32.
[47] See The Daniel Ball, 77 U.S. 557, 560–61 (1870).
[48] Id. at 560.
[49] Id. at 563.
[50] Id. at 558.
[51] Id. at 559.
[52] Id. at 564-65.
[53] Id. at 563.
[54] Schoenbaum, supra note 27, at § 1:1 at 14-15; Brian K. McNamara, “Navigable Waters of the United States:” A Call for Transparency, Clarity, and Uniformity, 9 LOY. MAR. L.J. 1, 5 (2011).
[55] McNamara, supra note 54, at 5.
[56] See id.
[57] See The Montello, 87 U.S. 430, 438 (1874).
[58] Id. at 434.
[59] Id.
[60] Id. at 435.
[61] Id. at 439-40.
[62] Id. at 440-42.
[63] Id. at 441; Schoembaum, supra note 27, at § 1:1 at 14–15.
[64] See The Montello, 87 U.S. at 441.
[65] In re Boyer, 109 U.S. at 632.
[66] Id. at 631.
[67] Id.
[68] Id. at 631–32.
[69] Id. at 632.
[70] See Kaiser Aetna v. U.S., 444 U.S. 164, 171 (1979).
[71] Id. at 166.
[72] Id. at 168.
[73] Id. at 165–66.
[74] Id. at 169.
[75] Id. at 166.
[76] Id. at 171.
[77] Id. (emphasis added).
[78] Id. at 180.
[79] See, e.g., Georgia Power Co. v. Fed. Power Comm’n, 152 F.2d 908, 912 (5th Cir. 1946); Sanders v. Placid Oil Co., 861 F.2d 1374, 1377 (5th Cir. 1988); Dardar v. Lafourche Realty Co., 55 F.3d 1082, 1086 (5th Cir. 1995); U.S. v. Abbott, 110 F.4th 700, 717 (5th Cir. 2024); Newbold v. Kinder Morgan SNG Operator, L.L.C., 65 F.4th 175, 181-82 (5th Cir. 2023).
[80] Sanders, 861 F.2d at 1377.
[81] Id. at 1378.
[82] Id. at 1375.
[83] Id. at 1376.
[84] Id. at 1377–78.
[85] Id.
[86] Id. at 1378.
[87] Id..
[88] Schoembaum, supra note 27, at § 2:1 at 66–67. The reasoning for this application is beyond the scope of this Note.
[89] See Parm v. Shumate, 513 F.3d 135, 145 (5th Cir. 2007).
[90] Id. at 139.
[91] Id. (citing Walker Lands Inc. v. East Carroll Parish Police Jury, 871 So.2d 1258, 1264 (La. Ct. App. 2d 2004)).
[92] Id. at 145. The Parm court first cited the Louisiana Constitution which reserves the right of private property owners to refuse entry to a person fishing. Id. (citing to LA. CONST. art 1, § 27). Next, the court emphasized that the Louisiana Civil Code does not give people the right to fish on property regardless of if the property is entirely on the bank of a navigable river. Id. (citing LA. CIV. CODE ANN. Art. 452). Additionally, the court referenced the Walker Lands holding which noted that “a person fishing on the banks of the Mississippi River does not meet the definition of a navigational use.” Id. (quoting Walker Lands, 871 So. 2d at 1268 n.6); see also text accompanying notes 126–30 (discussing Walker Lands). Finally, the court emphasized “that fishing [is] not incidental to navigation,” to support its holding that fishing is not essential to navigation. Parm, 513 F.3d at 145 (citing Edmiston v. Wood, 566 So.2d 673, 675-76 (La. Ct. App. 2d 1990)); see also text accompanying infra notes 115–20 (discussing Edmiston).
[93] Parm, 513 F.3d at 145.
[94] See id.
[95] See infra text accompanying notes 99–107.
[96] Meche v. Richard, No. 05-0385, 2007 WL 634154, at *1 (W.D. La. Feb. 26, 2007).
[97] Id.
[98] Id. at *5.
[99] Id.
[100] Id.
[101] Id. at *8, 11.
[102] Id. at *12.
[103] Id.
[104] Newbold, 65 F.4th at 182.
[105] Id. at 177–78.
[106] Id. at 178.
[107] Id. at 178–79.
[108] Id. at 181-182.
[109] D’Albora v. Garcia, 144 So.2d 911, 915 (La. Ct. App. 4 Cir. 1962).
[110] Id. at 912.
[111] Id. at 913, 915.
[112] Id. at 913.
[113] Id. at 914.
[114] Id. at 915.
[115] See Edmiston v. Wood, 566 So.2d 673, 676 (La. Ct. App. 2 Cir. 1990).
[116] See id. at 675–76.
[117] Id. at 674.
[118] Id.
[119] Id. at 675.
[120] Id. at 676.
[121] See State v. Barras, 615 So.2d 285, 288 (La. 1993).
[122] Id. at 286.
[123] Id.
[124] See id. at 287.
[125] Id. at 288.
[126] See Walker Lands Inc. v. East Carroll Parish Police Jury, 871 So.2d 1258, 1266 (La. Ct. App. 2d 2004).
[127] Id. at 1264.
[128] Id.
[129] Id. at 1262.
[130] Id. at 1266 (citing Fitzsimmons v. Cassity, 172 So. 824, 829 (La. Ct. App. 2 Cir. 1937)).
[131] Id.
[132] Id.
[133] Id. at 1268–69.
[134] Thibodeaux, 2024 WL 3181458, at *4.
[135] Id. at *3.
[136] Id.
[137] Id. at *4.
[138] Id.
[139] Id. (citing Sanders, 861 F.2d at 1378).
[140] Id.
[141] Id.
[142] Id.
[143] Id.
[144] Id.
[145] Id. (citing Meche, 2007 WL 634154, at *4).
[146] Parm, 513 F.3d at 135.
[147] Thibodeaux, 2024 WL 3181458, at *4.
[148] Id. at *5.
[149] Id.
[150] Id. The Thibodeaux court also stated that had it determined whether a federal navigational servitude existed on Lost Lake, such a finding would not ‘necessarily permit Plaintiffs to harvest crawfish there’ since such servitudes do not prohibit fishing on private land. Id. (quoting Parm, 513 F.3d at 143).
[151] Id. (citing Kaiser Aetna, 444 U.S. at 171).
[152] Id. (stating “[m]ost authority the Bernhards cite in support of their argument does not address jurisdictional issues; it addresses public servitude rights or other navigability questions arising under different sources of law. See, [Parm, 513 F.3d at 143] (considering the reach of federal navigational servitude); State v. Barras, 615 So.2d 285 (La. 1993) (applying Louisiana law to determine whether swamp land susceptible to overflow was a public or private thing); Newbold v. Kinder Morgan SNG Operator, L.L.C., 65 F.4th 175, 178 (5th Cir. 2023), cert. denied, 144 S. Ct. 186 (2023) (discussing navigational servitude)”).
[153] Id.
[154] Id.
[155] See id. at *4.
[156] Id.
[157] Thibodeaux, 2024 WL 3181458, at *5.
[158] Id. at *4–5.
[159] Id. at *3.
[160] Sanders, 861 F.2d at 1377–78 (emphasis added); Meche, 2007 WL 634154, at *12 (emphasis added).
[161] Thibodeaux, 2024 WL 3181458, at *6.
[162] Continuous, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/continuous.
[163] The Daniel Ball, 77 U.S. at 563 (emphasis added).
[164] The Montello affirmed the strict wording used to define navigable waters of the United States. The Montello, 87 U.S. at 439.
[165] See cul-de-sac, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/cul-de-sac (defining “cul-de-sac” as “a short road that is blocked off at one end”).
[166] Meche, 2007 WL 634154, at *3 (citing The Montello, 87 U.S. at 443).
[167] The Montello, 87. U.S. at 44–41.
[168] Meche, 2007 WL 634154 at *5.
[169] Thibodeaux, 2023 WL 3897987, at *3.
[170] Id. at *5.
[171] See text accompanying supra notes 62 & 100.
[172] Thibodeaux v. Bernhard, 2024 WL 318 1458, at *5 (5th Cir. 2024).
[173] Barras, 615 So.2d at 288.
[174] Id.
[175] Walker Lands, 871 So. 2d at 168.
[176] Sander, 861 F.2d at 1378.
[177] Meche, 2007 WL 634154, at *8, 11.
[178] Thibodeaux, 2024 WL 3181458, at *4.
[179] La. Civ. Code Ann. art. 453 (2024) (“Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.”).
[180] Brief of Louisiana Landowners Association, Inc. as Amicus Curiae Supporting Appellants, Thibodeaux, 2023 WL 6964964, at *13 (No. 23-30405).
