Legal Aspects of Coastal Change

Kelly M. Haggar
Riparian, Inc., P.O. Box 40873, Baton Rouge, Louisiana 708350873

ABSTRACT
Coastal change is unlikely to require new law but properly dealing with its effects
and planning our response to them will require more than just a good understanding of
present law. Statutes rest on fundamentalbut often unstatedsocietal assumptions
favoring some outcomes and denying others. For example, Western societies presume
land should remain in commerce and always be productive.
Virtually all of the major cases and controversies concerning water and/or coastal
issues arising around the nation in recent yearsproperty damage and land loss during
hurricanes due to exploration and production (E & P) canals, increased expenses to levee
boards from a subset of those same E & P canals, diversions affecting oyster beds, beach
front lot owners objecting to beach restoration projects, Anthropogenic climate change
causing increasing hurricane damage were all resolved by applying existing law. Many
of those laws are not just based upon Roman laws going back over 2000 years; some are
almost word-for-word copies of them.
Unfortunately, much of the general public either does not understand the basic
principles of land use and tort or perhaps simply wishes for different outcomes despite
existing (and well-settled) laws. Worse, there does not seem to be sufficient appreciation
of the underlying geological factors driving changes in and along our coasts, marshes,
and swamps.
Law as an institution has never attempted to control nature per se but it most
assuredly attempts to specify and control who gains and who losesand whywhen a
river changes course, when new land forms at the beach, and when a dispute breaks out
as to what is a beach? and who owns it?
A general overview of the major cases and an explanation of why they turned out as
they did will better enable coastal planners to findand stay withinmore realistic
limits of what can and cannot be accomplished within the framework of our existing
laws. Moreover, if American society does determine a new direction in coastal programs
is needed, a fuller understanding of current law will likely allow better choices to be consciously made. However, since law can only help illuminate the choices and assign the
risks to various parties, ultimately geologynot lawis the key to future decisions
about our coastlines.

INTRODUCTION
The law of coast has not changed in any material way in more than 2000 years, in marked contrast to
coasts themselves, which are constantly changing. When Paul invoked the rights of his Roman citizenship (Reid,
1957), the town of Ephesus was a thriving seaport (Russell, 1957), yet today it is several miles inland. However,
the same Roman law which forbade Pauls flogging without a trial also controlled where the emperors domain
ended along the shore and thus private ownership could begin. In Louisiana today, the coast is defined almost
word-for-word as the Romans had written it hundreds of years prior to the end of their Republic and the rise of an
Imperial state.

Haggar, K. M., 2015, Legal aspects of coastal change: Gulf Coast Association of Geological Societies Transactions,
v. 65, p. 125137.

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As will be demonstrated, Americans today resolve even the most modern and novel legal disputessuch as
climate change altering the coast being either a tort or a public nuisanceby many of those same age-old legal
principles. Thus, an appreciation of how and why the law developed as it did ought to help us all cope with
coastal change, regardless of its either its cause or the degree of control we possess over that change.

WHERES THE BEACH?

One of the earliest definitions of the beach comes to us from The Institutes of the Eastern Roman Emperor
Justinian, many decades after the fall of the Western Roman Empire in 476 CE; The seashore extends as far as
the greatest winter flood runs up. (Tribonian, 535 CE). According to the online Medieval Sourcebook of Fordham University, the Institutes was intended as sort of legal textbook for law schools and included extracts from
the two major works [The Codex Justinianus and The Digest, or Pandects]. Of course Justinian only directed
his legal scholars to assemble and organize all the laws to date; he wrote very few new laws. (Halsall, 1998)
Over 1400 years later, the legal definition of the beach in Louisiana is almost identical to Roman law, as
follows: Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season. (Louisiana, 1978b) Of course, as a matter of physical reality, the highest tide in the Gulf of Mexico
has been known to differ from the highest tide in the Mediterranean since colonial times. In fact, American
courts have long understood that the Roman law arose in what was essentially a tideless lake, which is why numerous U.S. courts refused to follow the English lead that navigation was limited solely to the ebb and flow of
the tide. (Monongahela, 1863) Despite the known physical error, Louisiana courts refused (quite properly) to
change the definition, since that task falls to the legislature. (Roy, 1960)
So how do the 22 U.S. states which border the Atlantic Ocean, the Gulf of Mexico, or the Pacific Ocean
define the beach? Perhaps the best single source graphic compilation is found at Figure 1, the Shoreline Boundaries Diagram of the Marine Boundary Working Group (MBWG), a federal inter-agency committee hosted by
the Office for Coastal Management within the National Oceanic and Atmospheric Administration (NOAA). We
are only concerned with the first three boundaries on far the left side of the MBWG diagram; shoreline boundaries as defined by different states. (Johnson, 2002). The author-added red asterisks within Figure 1 indicate
two changes in the dozen years since the diagram was compiled; one red for Texas and two red for Louisiana.
Louisiana follows the ancient Roman in other areas than the beach itself; what about the situation where a
river empties into the sea (here, the Gulf of Mexico) but after a spit of land grows into the Gulf, a dispute arises
as to who owns this new land. Ownership is actually the second step of such a process. We must first decide
what kind of thing this new land is before we can know to whom it should belong. Justinian phrased it in thusly
in his Article 20 in the Division of Things: Moreover, the alluvial soil added by a river to your land becomes
yours by the law of nations. Alluvion is an imperceptible increase; and that is added so gradually that no one can
perceive how much is added at any one moment of time. (Tribonian, 535 CE) Louisiana law once again copies
Roman law; Accretion formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank..., (Louisiana, 1979a), but [t]here
is no right to alluvion on the shore of the sea. (Louisiana, 1979b)
So, if the land began growing from the bank of the river, the new land belongs to the owner of that bank of
the stream. But, if it began from the beach, from the shore line, then in civil law jurisdictions, but not at common lawthe state as owner of the seashore has the better claim. Since the Louisiana Supreme Court was unable
to determine from the record, briefs, and oral argument from which place the spit had begun to grow, or perhaps
it had originated partly from the river bank and partly from the shore, they sent the case (Davis, 1991) back (a
remand) to the trial court for it to decide what had actually occurredprecisely what a Roman judge would
have done on the same facts over 2000 years ago.
Texas found itself in a similar quandary over where the beach was in relation to a pair of homes purchased as
rental units by an out-of-state investor. In Davis, the law was clear but the facts were not. Severance was the
opposite; the facts were clear but the law was not. The state of Texas, following an Open Beaches Act passed
in 1959, sent Ms. Severance a notice that, since the vegetation line had moved behind her two rental units after a
hurricane (Rita) had struck the beach, her homes were now intruding on a public beach. (Severance, 2009a) She
declined the states offer of $50,000 each to assist her in removing her homes from what the state now considered
to be formerly private property and instead filed suit in the local federal district court, alleging an unreasonable
seizure under the 4th Amendment and a takings under the 5th. (Ibid) From this point on, what lawyers call the
procedural posture of the case became lengthy and somewhat hard to follow. Losing in the federal district
court, Severance appealed to the U.S. 5th Circuit Court of Appeals. However, the panel of assigned judges was
unable to determine what the law of Texas was on the technical points in dispute. (Ibid) As a result, they sent a
trio of certified questions to the Texas Supreme Court, mainly inquiring as to the existence of a rolling public beachfront access easement, which the Texas justices accepted. (Severance, 2009b) After review, Texas

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Figure 1. Shoreline boundaries diagram of the Marine Boundary Working Group, National Oceanic
and Atmospheric Administration (after Johnson, 2002). This article is only concerned with the three
sets of public-private boundary differences at the far left of the diagram among the 22 states bordering
the Atlantic Ocean, the Gulf of Mexico, or the Pacific Ocean.

concluded the answer to all three questions was, No; there were no rolling easements available to the General
Land Office. (Severance, 2010) But, Texas did grant a motion for re-hearing and oral argument was heard on
April 19, 2011. However, before Texas could rule on the case a second time, Ms. Severance sold her last rental
house to the City of Galveston under a federal flood damage reduction (buyout) program. Texas then moved to
dismiss the entire case as moot (nothing left to act upon) plus vacate (void; cancel) the original judgment of November 5, 2010. Ms. Severance objected since she still had unresolved damage claims against Texas.
The Texas Supreme Court did not make anyone happy. They neither granted nor denied either sides petitions, but instead abated making any decision. They sent a reverse certified question back to the U.S. 5th
Circuit. In effect, they asked, Now its your turn to tell us what your law is. Did the buyout render this case
moot, or was there still a federal claim to be tried? (Severance, 2011) The U.S. 5th Circuit replied that the case
was not moot; some claims (example: who should pay the attorneys fees?) still existed. (Severance, 2012a)
Texas thus issued a second opinion in the case (which also revoked and replaced the original ruling), but which
nonetheless again found for Ms. Severance, but on different grounds. (Severance, 2012b) However, the final
opinion did not end the case because Texas only held that the states attempted legal theory did not work. They
declined to say no other theory could work, with these words, New public easements on the adjoining private

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properties may be established if proven pursuant to the Open Beaches Act or the common law. As a result, Texas and Ms. Severance had a strong both motivation to settle the case, which was then dismissed with prejudice
(neither side could open the case again) on October 11, 2013. (Breemer, 2013)
However, the conclusion of Severance did not resolve the larger issues of beach access and future ownership
upon the next round of coastal change, so at the following session of the legislature, Texas amended its Open
Beaches Act to allow the Land Commissioner to temporarily suspend the line of vegetation rule for up to 3
years when a meteorological event results in avulsion, erosion, accretion, or other impacts to the shoreline that
alter the location of the line of vegetation. (Texas, 2013) It appears that the travails of Texas were largely a
function of being the only jurisdiction to use a vegetation line shift as a means of transferring property out of
private hands and into the states. This matter of public easements in Texas may not resolve soon, since the
Brannan case was reversed by the Texas Supreme Court in 2013 and the state subsequently lost a second time at
the Texas 1st Circuit in 2014, all based upon having to reconsider all future beach cases in light of the final Severance ruling from 2012. (Brannan, 2010, 2013, 2014)
Turning to Louisianas legal and legislative attempts to cope with coastal change, that state found itself in an
awkward position when it demanded a better deal from the United States than it offered its own citizens. In keeping with both ancient Roman statutes and the prevailing law around the worldthat no one may own the bottom
of the seaLouisiana does not allow a private person to re-claim land completely lost to the ocean; no land
which lies below the elevation of ordinary low water shall be considered emergent land. (Louisiana, 1978c).
However, as the effects of land loss and the delta cycle became more vividly apparent, Louisiana attempted to
freeze its coastline (chiefly for revenue purposes) when it enacted R.S. 49:3.1, 1, Legislative intent and purpose, which read in part, Under no circumstances shall the coast-line of Louisiana be nearer inland than the
baseline established by [the coordinates set forth in U.S. v. La, 422 U.S. 13 (1975), Exhibit A.] (Louisiana,
2011) That measure placed the state in a situation where if the coast retreated north, inland, totally past a private
tract, that lot became the property of the state by automatic operation of law, yet the states ownership of the bed
beneath the Gulf would remain fixed at a series of points in a case from 1975. The legislature must have realized
the difficulty of its position since the Act also specified that it would not take effect unless and until the U.S.
Congress acknowledges the boundary described herein by an Act of Congress or any litigation with respect to
the legal boundary of [Louisiana] is resolved and a final non-appealable judgment is rendered. (Ibid)

WHO OWNS IT?

Given the overall general legal principles that no one may own the bottom of the sea, that river (riparian)
owners may nonetheless own the banks of rivers, and that the law has long recognized neither river banks nor
beaches are fixed things, when disputes inevitably arise, how do American courts sort out ownership questions
while using those general principles?
A good place to start might be a very brief memory refresher from your first class in Civics; the organization
and structure of our federal system. The national government did not create the states; the 13 colonies became 13
states by winning a war with England during a 13 year span of time during which there was no such thing as a
United States. Only after the war, and only after a general feeling became a strong consensus that the Articles
of Confederation were not working particularly well, only then did the 13 states draft a Constitution to create a
federal government with a national-state division of authority.
From the earliest days (some would argue still today) weve had fierce disputes over where any given activity or right fell; state or federal (national)? One of the earliest cases resolving that question when it came to
coastal property arose on the edge of Mobile Bay in 1845. Could the U.S. grant title to a lot at the edge of the
City of Mobile and the Bay, or did the land actually belong to the State of Alabama? Whose deed was correct;
the one from the U.S.? Or from Alabama? The U.S. Supreme Court faced an additional problem because there
was no Alabama in 1776 or 1789; it did not become a state until 1817. What rights and powers did Alabama
have as compared to the original 13 colony-states, andfor that matterwhat did any of the states own as compared to what the United States owned? The justices settled these questions in Alabamas favor, by means of
the equal footing doctrine, establishing these general conclusions: First, the shores of navigable waters,
and the soils under them, were not granted by the Constitution to the United States, but were reserved to the
States respectively. Secondly, the new States have the same rights, sovereignty, and jurisdiction over this subject
as the original States. (Pollard, 1845)
Next door in Mississippi, almost 150 years later, a dispute over oil royalties resulted in the U.S. Supreme
Court expanding the reach of Pollard much further landward, when it agreed with the Mississippi Supreme
Courts affirmation of a lower state courts holding that by virtue of becoming a State, Mississippi acquired
fee simple title to all lands naturally subject to tidal influence, inland to todays mean high water mark [at
common law, fee simple meant absolute ownership; no terms or conditions]. (Phillips, 1988) Phillips result-

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ed in both a deep division of legal opinion and a great concern in Louisiana that it might mean tens of thousands
of acres of private property might become state water bottoms due to the outcome in Mississippi. For the
tidelands are now state lands due to Phillps view, see Wilkins and Wascom, 1992. The opposite view was set
out by Donohoe and Tracy, (also 1992). The legislature adopted the Donohoe and Tracy position by enacting
R.S. 9 1115.1 et seq. (Louisiana, 1992) Although this Phillips does not apply in Louisiana position was never challenged in court, with rising oceans, the delta cycle (Frazier, 1967; Penland, 1988), alterations in surface
hydrology (Chambers, 2005; Shaffer, 2009), and subsiding land (McLindon, 2014), no one can say with confidence how a future court might rule on this text from R.S. 9 1115.1B: as to lands not covered by navigable
waters including the sea and its shore, which are subject to being covered by water from the influence of the tide
and which have been alienated under laws existing at the time of such alienation, the Phillips decision neither
reinvests the state, or a political subdivision thereof, with any ownership of such lands .
Of course the states do not win every case; especially since when a state law conflicts with national law, the
U.S. law is supreme. If a dispute arises as to which jurisdictions law controls, when the answer affects coastal or
national functions such as navigation, its virtually certain to be the U.S. These precedents [such as Pollard] are
the basis for the equal-footing doctrine, under which a States title to these lands was conferred not by Congress
but by the Constitution itself. It follows that any ensuing questions of navigability for determining state riverbed
title are governed by federal law. (PPL Montana, 2012)
Another example of federal (national) law overriding state law on a beach ownership issue, and perhaps sufficient reason to doubt Texas prospects with its vegetation line, is the outcome of Hughes v. Washington.
(Hughes, 1967) Mrs. Hughes traced her title to a federal grant issued prior to Washington becoming a state.
Therefore, unlike, Pollard or Phillips, her title was controlled by federal-national law, not by state law. That
made her the owner of the gradual accretion, even though her lot bordered the beach and not a river. (Ibid) This
was consistent with common law, but not with civil law, where the usual rule in Louisiana would be that accretion does not accrue from the sea, only from rivers. Still, Hughes was not only an 8-0 opinion, but it further cited
a long line of unvarying U.S. Supreme Court cases which allocated accretion from a federal land grant to the
beach lot owner going back to 1856. (Ibid) (Note in passing that the concurring opinion by Justice Potter Stewart, as long as the case itself [both were 4 pages], in Hughes contained two reservations about future takings
claims which were ignored in subsequent cases until both were rejected almost 50 years later in Stop the Beach,
2010.)
Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection et al. was a widely
watched case with several twists; Justice John Paul Stevens recused himself from taking any part in the case because he owned beachfront property in Florida and thus could be personally affected by the outcome. Additionally, many court watchers hoped this case would answer a question which had long awaited an answer; could a
judicial act be a taking? (Stop the Beach, 2010) Florida was restoring and enhancing a shoreline in front of private homes whose owners feared what had previously been their private beach would become both accessible to
the public as well even become public property itself. Unsuccessful in stopping the permits administratively to
fill about 75 feet of beach out into the Gulf, the beach owners filed suit to halt the project, winning at the state
circuit but losing at the Florida Supreme Court. The U.S. Supreme Court took the case but upheld Florida, for
many reasons. However, this author believes this rather complex case can nonetheless be understood from this
single sentence: There is no taking unless [Stop the Beach] can show that, before the Florida Supreme Courts
decision, littoral-property [beach; ocean] owners had rights to future accretions and contact with the water superior to the States right to fill in its submerged land. Private persons may not own the bottom of the Gulf of Mexico. Not at common law; not under civil law. Florida filling its own state water bottoms neither took land away
from nor added land to the beach front owners lots. They didnt own the ocean before the project started and
they couldnt own it after it was complete. Would Texas, Louisiana, Mississippi, or Alabama hold otherwise?
This author doubts it, and strongly.
Thus far, we have largely considered either ownership of stable land or gains to land; Hughes (1967), Citrus
(1991), and Stop the Beach (2010) were all about increases in land. What about losses of land? If land disappears, especially if a coastline changes, does it matter why? Does a natural driver change the legal outcome, or
do courts rule the same way regardless the cause?
The Goose Creek Field, only a few miles southeast of Houston, provides a good lesson (Fig. 2). There used
to be a Gaillard Peninsula extending out into San Jacinto Bay between Tabbs Bay and Hog Island. It sank beneath the waves in barely two years; 1918 to 1920. (Pratt, 1926) Why? These first generation drilled wells were
in shallow, unconsolidated formations no more than about 2000 ft deep. From the first weeks of production, local subsidence was observed, leading to the entire peninsula and much of the shore line and the banks of Goose
Creek becoming open water.
Because entire tracts were no longer above any level of the tide, much less the higher high line used by Texas, the state sued the lessors and operators for the royalties, as well as title to the now totally submerged lands.
(Ibid) Pratt was the chief geologist of the then Humble Oil and Refining Co., while Johnson was his expert wit-

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ness. Humbles defense prevailed; the district (trial) court held that the state could not take title to land lost as a
result of an artificial event; something caused by an act of man. (Ibid) (There is no record of this case, so it
must not have been appealed, since district (trial) court proceedings are not included in the reports of cases.)
(Richards, 2015)
At least where the navigability of rivers and tidelands bordering the Gulf of Mexico are concerned, Louisiana follows the same rule. A private person may own the bottom of a non-navigable water and will retain ownership of the bottom if the body subsequently becomes navigable by an artificial means, such as dredging, a lock, or
a dam. (Louisiana, 1978a; Yiannopoulos, 2001; Seidemann, 2006). However, if a water becomes navigable by
natural means, ownership passes to the state. (Yiannopoulos, 2001; Seidemann, 2006) Geologist readers would
be well advised at this point to consider Figures 24 a second time in light of this legal distinction: natural or
artificial change? If the ocean were in a stillstand, or perhaps barely rising, but the land was subsiding say
from tectonic factors beyond the control of man?would submerged properties still remain private in Texas?
Would R.S. 9 1115.1 (Phillips does not apply here) still control ownership in Louisiana?

WHO WINS IN COURT, AND WHY?

More than simple ownership of land or receipt of oil and gas royalties has given rise to bitter disputes from
changes in coastlines; sometimes a petition for damagesa tort in lawis premised on some public body or a
private person being at fault in harming another. So, we will next turn our attention to some of the major tort
and/or nuisance cases driven by coastal changes.
First, oyster leases becoming unproductive in near shore Louisiana waters due to the state operating a Mississippi River diversion. (Avenal, 2004) The procedural reason why the oystermen lost should not hold the attention of geologists for very long because it could just have well been a car accident or a ride on a roller coaster
gone bad. Some of the oyster leases contained hold harmless clauses from any and all losses due to the Caernarvon river diversion project. However, the holders of leases which lacked such a clause filed their suit too late.
As a result, none of the damaged oystermen had a valid claim against the state; slip opinion at page 2. (Ibid)
However, much later, at slip opinion page 30, the court discussed a policy implication which not only had great
legal significance to the Avenal case but also ought to hold the attention of geologists when the court said:
Further, the oyster statutes do not guarantee the oyster lessees with a vested right to an optimal salinity regime in
the States own waters, nor that the state maintain a certain salinity regime favorable for oyster cultivation. (Ibid) Thus, Louisiana has not guaranteed anyone that a river wont change course, that a shoreline will
not migrate, not even that the salinity of the ocean will not change.
Second, both land loss and increased property damage supposedly caused by exploration and production (E
& P) canals across roughly the southern third of Louisiana. (Barasich, 2006) The trial court saw no merit in one
of the oil industry defenses, a thing known as the political question doctrine, but did agree (at page 692) that
the plaintiffs faced an insurmountable barrier to recovery: For plaintiffs to recover in this matter, they must
demonstrate as a matter of law that defendants had a duty to these hundreds of thousands of plaintiffs to protect
them from the results of coastal erosion allegedly caused by operators that were physically and proximately
[meaning close in time] remote from plaintiffs or their property. Some states hold to a legal of market share
industry liability, seen in cases involving such things as asbestos and breast implants, but Louisiana close not to
adopt any such doctrine. As a result, the case was dismissed; the harm claimed is simply too remote in both and
space to attach tort liability to the oil industry.
Third, of the many Climate Change/Anthropogenic Global Warming cases filed in recent years, two stand
out as illustrative of why claims that storms and coastal damage have been made worse by the refining and sale of
products by oil companies have fared so poorly in court. They are Kivalina (2012) and Comer (2013).
A band of Native Americans living on a barrier island in Alaska sued Exxon-Mobil because they believed
selling gasoline caused their land to erode, threatening their homes. The trial court dismissed the case in 2009
and the 9th Circuit agreed in 2012 because a 2011 U.S. Supreme Court case (American Elec. Power v. Conn.) had
extinguished Kivalinas federal common law public nuisance damage action, along with the federal common
law public nuisance abatement actions. Kivalina, 696 F.3d at 857 (2012). Simply put, when Congress passed
the Clean Air Act, it displaced the type of private claim the villagers tried to raise.
Comer is the other case geologists ought to keep in mind. As with Avenal, Comer ended on a procedural
basis, res judicata (meaning a thing already judged), so the law part of the case presented very little geologists to care about. True, the procedural history of Comer was about as convoluted as the Severance Saga, and
there were several very interesting inside baseball issues for lawyers to think about, but the physical and causal
questions presented to geologists were pretty straightforward. In essence, the Comer plaintiffs accused a large
collection of oil, coal, electric, and chemical companies of making Hurricane Katrina worse. The power they
produced and the gasoline they sold released very large amounts Green House Gases (GHG), which caused the

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Figure 2. Subsidence induced by oil, gas, and water withdrawal from shallow (about 2000 ft),
unconsolidated material at Goose Creek, Texas. Merge of two original figures from Pratt and
Johnson (1926). Yellow bar added to highlight better the sunken peninsula.

planet to become warmer, which resulted in elevated sea surface temperatures, which resulted in sea level rise, all
of which combined to intensify Hurricane Katrina, which damaged their homes and businesses more than it otherwise would have, which both increased their insurance premiums and lowered the resale value of their homes,
and additionally the GHG emitted by the defendant companies was also an unreasonable invasion of the plaintiffs property rights.
Notice that the plaintiffs are claiming that the voluntary sale of a series of completely lawful products was
nevertheless a fault; an irresponsible thing for which these companies could be found to be both blameworthy and
liable. Suppose thats true. If making and selling the gasoline is a tort, why isnt buying the gasoline a tort? In
fact, if the courts had accepted the plaintiffs causation chain as correct, then the vast bulk of the harm did not
occur until the gasoline was burned in the cars of drivers all over the world. This author submits it was no great
challenge to dismiss this suit.
The final case is a variation of Barasich; instead of landowners claiming E & P canals (and production itself) damaged homes, a levee board claimed that a smaller subset of those same E & P canals and that same production associated with them increased their costs of building and maintaining levees. (Bd of Comm, 2015)
Procedurally, this case began in state court but the oil industry defendants removed (transferred) the case to
federal court, where it was dismissed in mid-February of 2015. While the trial court found several major reasons
why the levee board lacked any claims to present, only two apply here. First, the levee board was not a third
party beneficiary to the various federal and state permits obtained over decades by the energy companies to
dredge E & P canals or produce the oil and gas. Second, the case turned on federal law questions, not Louisiana
law, yet none of the three federal laws governing these acts (Rivers and Harbors Act of 1899; Clean Water Act
amendments of 1977; Coastal Zone Management Act of 1972) were intended to give the board the benefit of the
any of the obligations and duties arising from obtaining those permits.
Thus, we have seen that coastal change is unlikely to require new law. Virtually all of the recent major cases
concerning coastal issues and tort damages have been resolved by applying existing law, most of which is literally thousands of years old. While law has never attempted to control nature, it most assuredly controls who

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Figure 3. Projection of Delta 17 and the Balize Islands some 500 years ahead, after the current
active delta (16 in Frazier, 1967) becomes fully abandoned (modified after McLindon 2014, taking
both Frazier [1967] and Penland [1988] into account). The yellow dashed lines are faults, although
tectonics as a primary driver of coastal change is beyond the scope of this paper.

gains and who loses with change, as well who is liable for what. Therefore, coastal planning, development, and
adaptation ought to stay within the realistic limits of what can be accomplished within our existing laws and
our budgets!
But if not if we as coastal Americans wish to plot a different course in dealing with coastal change .

WHERE TO FROM HERE?

In 2009, a team of academics and regulators, federal and state, finished an 8 year study which tried to anticipate the likely future development patterns on the Atlantic seaboard from Miami to Massachusetts. (Titus et al.,
2009a) One of their chief concerns was that bulkheads and other forms of hardened shore protection would prevent the inland migration of tidelands and wetlands which would otherwise naturally occur due to rising sea levels. They contacted the local planning and zoning boards of every coastal county on the Atlantic in an attempt to
develop a probability model, yielding charts of the likely future of that coast. (Titus et al., 2009b)
It so happened that a real world case reflecting the exact fact pattern feared by Titus et al. played out on the
opposite coast, the Pacific, in that same year. (U.S. v. Milner, 2009) (Fig. 5). In Milner, the homeowner had
leased some shoreline between the home and the surf from an Indian tribe, the Lumni Nation. As part of that
lease, riprap was placed and a bulkhead was installed decades ago, well upslope of high tide line at the time. It
was undisputed that neither action required either a Section 10 (of the Rivers and Harbors Act of 1899) permit or
a wetlands permit (under Section 404 of the 1977 amendments to the Clean Water Act) at the time of installation,
nor for many years thereafter. However, in time, coastal change resulted in the sea lapping at the riprap and the
sea wall/bulkhead. Further, the lease from the tribe expired because a different federal law limited tribal leases to
a maximum period of 25 years. Moreover, because the ocean had moved, the bulkhead and a portion of the back

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yard was trespassing on the tribes land. On these facts, the U.S. brought suit on behalf of the tribe to require the
homeowner to remove the riprap and bulkhead, at no expense to the U.S. or the tribe, and against the homeowners for violating both Section 404 (wetlands) and Section 10 (navigable waters).
How did the court rule? The homeowners were not liable on the Section 404 complaint because they did not
place and dredge or spoil material into a wetland. When they laid down the material, its location was an upland.
The Corps authority does not extend to uplands. Since the homeowner did not add any new material to the site
after the ocean had shifted, there was no wetland issue. By contrast, the homeowners were liable for both a trespass at common law against the tribe and for violating Section 10 of the Rivers and Harbors Act of 1899. Trespass occurred because the tribes property line was ambulatory; it moved when the ocean moved. As a result,
the court looked to where the waterline would have intersected the shore, absent the bulkhead. The limit of Section 10 authority is the ebb and flow of the tide, whether such areas are wetlands or uplands. Thus it was quite
possible that a mowed back yard with no wetland features would not be in violation of Section 404, yet be below
where the tide would have reached without the bulkhead. Since the bulkhead interfered with the flow of the tide,
it needed a Section 10 permit but of course did not have one. The reach of Section 10 therefore goes to the landward projection of where the sea and tide would be if the bulkhead had never been installed.
Thus, the legal response to the future which concerned Titus et al. in 2009 only resulted in several violations
being found. The court did not forbid the homeowner from applying for a Section 10 permit to retain the bulkhead; neither did it forbid the Corps of Engineers from issuing such a permit. Nothing prevented the homeowner
and the tribe from negotiating a second 25 year lease. Milner only told us which laws applied and thaton those
factsthe bulkhead was not in compliance. Milner is only a roadmap for becoming legal; get a permit or take
down the bulkhead. It told no one what to do; it spoke to everyone on how to proceed, once a decision is reached
on where the parties wish to be in the days ahead.

SUMMARY
The world has never been a static place; no sensible, informed person can reasonably expect it will become a
static place. Regardless of our degree of cause or control over sea level, every first year geology student quickly
realizes that glaciers come and go, that sea level rises and falls (and by hundreds of feet), that mountains rise and
are worn away, that rivers change course. Law has given us the tools to control how we deal the consequences of
those changes. We have a well-settled, very stable set of rules for how we dealin courtwith coastal change.
If we as a society come to conclude that we dont like the outcomes described here, and prefer a new set of rules
in order to obtain different results, then American society needs to hold some adult conversations about how we
want to manage (or cope with) coastal change. Geologists as a profession need to play a leading role in any such
national conversation. A lawyer can only tell us what ought to happen from a given set of facts in a particular
jurisdiction. However, I believe its more important to know and understand what is likely to happen along our
coasts, and especially why our coasts behave as they do. How much of that change can be altered by human action, and at what price, depends on a proper understanding of what is actually happening. Law can help illuminate the choices and assign the risks to various parties, but ultimately geologynot lawis the key to future
decisions about our coastlines.

ACKNOWLEDGMENTS
My wife, Kathy Haggar, contributed substantially by looking at coastal law through a geologists eyes
Whats the Big Picture here? Chris McLindon, another geologist, generously allowed me to use (and modify)
one of his slides from a 2014 edition of his Rethinking Coastal Restoration presentations. Professor Ed Richards of the LSU Law School searched for the unreported Texas v. Humble Oil case from the early 1920s and obtained a digital copy of Pratt 1926.

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Figure 4. Preliminary classification of wetlands types in the Lake Maurepas swamp. Red areas
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