Navigable Waters: What Law is Applicable? State Law vs. Federal Law

Newbold v. Operator, L.L.C., 2023 U.S. App. LEXIS 6059 *; __ F.4th __; 2023 WL 2487267 (5th Cir, March 14, 2023)

            The U.S. government has a dominant servitude over the “navigable waters” of the United States pursuant to the commerce clause. 2023 U.S. App. LEXIS 6059 at *4. No obstructions to navigation may be placed in these waters without the express permission of the U.S. government. Id.  But, what is the extent of this federal servitude? At what point, if any, does the federal servitude end and thus the applicability of federal (maritime) law and state law apply? Why does it matter?

            It matters in Louisiana as the Louisiana Recreational Use Statute, LSA-R.S. 9:2791, essentially grants the owner of property used for recreational purposes immunity from liability. The U.S. Fifth Circuit Court of Appeals just recently addressed the applicability of this statute to a boating accident in the D'Arbonne Wildlife Refuge which resulted in the death of one of the passengers in the fishing boat. Id. at *2. The parties agreed that if the location of the accident was not within the federal navigation servitude, the Recreational Use Statute bars recovery.

            The parties agreed that the U.S. Army Corps of Engineers has not permanently flooded the area. Id. at *7.  The plaintiff proposed three bases in support of the proposition that the waterway is federal navigable waters: 

                        (1)   Whether, due to rights procured by the Army Corps of Engineers, the navigational servitude for the Refuge is 65 feet above mean sea level; Id. at *5-6.

                        (2)   Whether the allision occurred below the ordinary high-water mark of the Bayou D'Arbonne; and; Id. at *7.

                        (3)   Whether the location is navigable in fact. Id. at *11.

            Judge Engelhardt authored the unanimous opinion and affirmed the grant of summary judgment for the defendant. First, the area is not permanently flooded by the Corps. Id. at *7. Second, the area is usually dry with vegetation which requires regular mowing. Id. at *10. Third, there was no evidence that the area is used for a commercial purpose as simple navigation and recreational fishing is not commerce. Id. at *12.