**American Whitewater**

**Louisiana Navigability Report**

__**Summary**__

Navigable streams in Louisiana are those that have been or are capable of being used in their ordinary condition for interstate commerce.  In navigable rivers, the state owns the riverbed, and the public can use the banks up the ordinary high water mark for activities related to navigation.  Acceptable activities include boating, fishing and canoeing.  

__**State Test of Navigability**__

Louisiana, through its case law, has adopted a state test of navigability that considers streams navigable that are "navigable in fact," very similar to the federal commerce test.((  	Ramsey River Road Property Owners Association, Inc. v. Reeves, 396, So. 2d 873, 876 (La. 1981). ))  A body of water is navigable-in-fact if "it is capable of being used for a commercial purpose over which trade and travel are or may be conducted in the customary modes of trade and travel."((  	Walker Lands, Inc. v. East Carroll Parish Police Jury, 871 So. 2d 1258, 1265 (2004), citing, Ramsey River Road Property Owners Association, Inc. v. Reeves, 396, So. 2d 873, 876 (La. 1981).))  The court goes on to say that "simply stated, a water course is navigable when by its depth, width and location it is rendered available for commerce."((  	See id. ))  However, the courts in Louisiana distinguish the fact that a stream "navigable in fact by canoes, row boats and other small craft", but "not navigable by larger boats and vessels, does not make it a navigable stream."((  	See id.))  

Navigability is not presumed and the burden of proof rests with the party seeking to establish it.((  	Shell Oil Company v. Pitman, 476 So. 2d 1031, 1036 (1985).))  In Louisiana, a body of water can also be held navigable despite its natural or man-made obstructions.((  	State ex rel. Guste v. Two O’Clock Bayou Land Co., Inc. 365 So. 2d 387 (1978).))  The public trust doctrine applies in Louisiana to navigable waters.  The public trust doctrine maintains that the state holds certain lands and waters for the public's reasonable use.  

__**Extent of Public Rights in Navigable and Non-Navigable Rivers**__

Louisiana follows the federal navigational servitude test which grants the public the right to use and access navigable waters as continuous highways for the purpose of navigation in interstate commerce.((  	Dadar v. LaFourche Realty Co. Inc., 985 F. 2d 824, 832 (1993) citing the Kaiser Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 392 (1979).))  However, the courts in Louisiana distinguish from this test by fact that not all navigable waters enjoy a navigational servitude as there may be instances non-navigable waters are made navigable by private owners.((  	See id.))  For example, if there is a shallow lake that is non-navigable, and the owner of the lake dredged the bottom to make it navigable for boat travel, the public does not have a navigational servitude to access the lake.  

The beds of navigable waters are "insusceptible of private ownership."((  	State v. Barras, 615 So. 2d 285, 287 (1993).))  Banks((  	The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high state of water. Id. )) of a navigable river are "private things subject to public use."((  	See id.))  The public may not utilize the bank of a river or a stream for any activity other than incidental use as it relates to navigation.((  	Op. Atty. Gen. No. 90-663 (January 24, 1991).))  Riparian landowners have the right to reasonable use of the waters but cannot restrict the actual use of a navigable river or stream.((  	See id.))  Courts have not formally addressed the issue of portage outside of the use of navigable rivers banks.

Criminal trespass in Louisiana states that "no person shall remain in or upon property, movable or immovable, owned by another without express, legal or implied authorization."((  	Louisiana State Revised Statues 14:63.))  There is an exception to trespass in the statute for an "occupant of a watercraft or vessel traveling on salt water engaged in an emergency purpose for the purpose of retrieval of his property or for obtaining assistance in an emergency."((  	See id.))

__**Miscellaneous**__



For more information on water rights in Louisiana, please refer to the Louisiana Department of Natural Resources, found at [http:%%//%%dnr.louisiana.gov/].  Regulation of all fishing and boating activities falls under the exclusive control of the Louisiana Wildlife and Fisheries Commission, found at [http:%%//%%www.wlf.louisiana.gov/].