Opinion Number ( 2009 )

Dear Secretary Barham:

You have requested an opinion of the Attorney General regarding the responsibility of the Department of Wildlife and Fisheries ("DWF") in issuing and renewing oyster leases located on certain water bottoms based on water bottom ownership data recently released by the State Land Office ("SLO").

Your request specifically asked:

1. For existing oyster leases located on water bottoms identified as "dual claimed," "publicly accessible," and on water bottoms not included in any of the other categories, is the Department obligated to not renew these leases at the time of renewal, where the Department would otherwise issue a renewal lease?

2. For lease applications over previously unleased water bottoms, is the Department obligated to refuse to issue leases over the dual claimed water bottoms?

In answering your questions, we must consider the source and accuracy of the "ownership data" released by the SLO being referred to in your request. In recent years, the SLO was directed by the Legislature to develop an inventory of state water bottoms.¹ Pursuant to the State Legislature's urging, requesting, as well as directing the SLO to compile and publish a map of the state's claims to water bottoms, the SLO reluctantly published the online data at issue in 2007.² The SLO included numerous disclaimers as well as explanations of the lack of data accuracy along with the data when it completed the online project in May of 2007.

The disclaimer included on the SLO water bottoms Web site states:

The purpose of this site is to provide immediate access to public information on water bottoms in the State of Louisiana, pursuant to Senate Resolution 115 of the Regular Session of 2006. This information is intended to serve only as an initial reference for research of land use and water bottom information and does not purport to provide evidence of legal title to property. This information does not substitute for the need to conduct complete title analyses and should be viewed merely as a reference that does not represent a final agency determination or a judicial determination of ownership, unless otherwise noted. The information and data on this site are dynamic and will change over time. We strive, in good faith, to provide current, reliable and accurate information; however, we fully recognize the possibility of human and/or mechanical error occurring.

We, the Office of State Lands, Division of Administration, State of Louisiana, its employees, officers and agencies, deny any warranty (expressed or implied) of accuracy, completeness, reliability or timeliness of any information published via this site and shall not be held liable for any losses caused by usage and reliance upon the accuracy, completeness, reliability or timeliness of such information. Any person or entity that relies upon such information obtained from this site does so at his or her own risk. By proceeding further, the user acknowledges that he/she has read the foregoing statement and understands that any actions taken by the user based on the information provided in this website are undertaken at user's own risk.³

Therefore, with regard to the SLO land inventory Web site, and the disclaimers to the Web site as provided above, the Web site is intended for informational purposes only and is not to be used for any legal purpose. Any legal purpose would clearly include the issuance and/or renewal of oyster permits by DWF.

The application for and issuance of oyster leases by DWF is regulated by La.R.S. 56:425. La.R.S. 56:425 (A) states:

[n]o lease shall be granted until a reasonable investigation into the question of ownership is complete and, based on the findings, a determination is made that the state owns the water bottoms to be leased. Any lease for the taking of oysters granted by the secretary prior to June 15, 2006 which affects privately owned water bottoms shall be subordinate to the rights of the private landowner or recorded land title owner effective on that date.

Accordingly, the law requires that a reasonable investigation into the question of ownership to be completed. As the disclaimer, referenced above, provides, on the SLO Web site, the information on the SLO land inventory Web site "does not substitute for the need to conduct complete title analyses and should be viewed merely as a reference that does not represent a final agency determination or a judicial determination of ownership, unless otherwise noted."

The map data on the SLO water bottoms Web site is not intended to and cannot serve as a "reasonable investigation" into the question of ownership of property to be leased for oyster purposes. For that reason, the data provided on the SLO Web site may only be used as an initial reference and not an actual ownership investigation.

With regard to what actually constitutes a "reasonable investigation," your request provides:

[p]rior to the moratorium, the [DWF] would request a determination from the SLO for each oyster lease application. If the SLO determined the water bottom was state owned, the [DWF] issued the lease. If the SLO did not provide such determination, the [DWF] did not issue the lease.

This procedure which presumably includes obtaining a letter from the SLO that describes all pertinent sources on which a determination is made, would appear to satisfy the statutory requirement of a "reasonable investigation" delineated in La.R.S. 56:425 (A). While the information on the SLO Web site may serve as a valuable initial reference in determining the ownership of water bottoms, it is the opinion of this Office that the prior procedure of requesting a determination from the SLO for each oyster lease application, should be the one followed.

While a reasonable investigation into the question of ownership is required, after such an investigation is made and the leases are granted, the presumption of water bottom ownership is given to the State and no other claims are valid until adjudicated upon by a court of competent jurisdiction. La.R.S. 56:423 states:

D. No claim to any water bottoms suitable for oyster culture by any person shall be valid until adjudicated upon by a court of competent jurisdiction in a suit between the state and the claimant. The claimant by virtue hereof may institute suit against the state in any court of competent jurisdiction for the legal determination of the validity of his claims, without the necessity of a special legislative act authorizing suit. The effect of the judgment is limited to an adjudication of the question of title.

La.R.S. 56:423(D) essentially creates a presumption of ownership for the State after a reasonable investigation into the question of ownership is complete and, based on the findings, a determination is made that the State owns the water bottoms to be leased. While this presumption exists, La.R.S. 56:423(D) also provides the appropriate procedural remedy for anyone who to assert a claim to the property at issue.

In summary, it is the opinion of this Office that the DWF should not use the SLO online inventory map for purposes of determining whether to issue or renew oyster leases, and should only use the site as an initial reference. The prior procedure of requesting a determination from the SLO for each oyster lease application qualifies as reasonable investigation into the question of ownership as required by law. It is further our Opinion that once a reasonable investigation into the question of ownership is complete and, based on the findings, a determination is made that the State owns the water bottoms to be leased, no claim to any water bottoms suitable for oyster culture by any person shall be valid until adjudicated upon by a court of competent jurisdiction in a suit between the state and the claimant pursuant to La.R.S. 56:423 (D).

We trust this adequately responds to your request. If you should have any questions about the response contained herein, please feel free to contact our office.

Yours very truly,

JAMES D. "BUDDY" CALDWELL Attorney General

By: __________________________ DANIEL D. HENRY Jr. Assistant/Attorney General

JDC/DDH/jv

¹ La.R.S. 39:13, Senate Concurrent Resolutions 24 and 25 of the 2004 Louisiana Regular Session, Senate Concurrent Resolution 111 of the 2005 Regular Session, and Senate Resolution 115 of the 2006 Regular Session.

² The SLO website (http://doa.louisiana.gov/slo/waterbottomsdataaccess.htm) states: ABOUT THE DATA — STATE WATER BOTTOMS The State Land Office uses a set of criteria, based on a review of historical maps and documents on file in the State Land Office, to uniformly select water bottoms throughout the state for inclusion in the water bottoms database. Once a waterway has been selected by this process, the extent of the water bottom is then digitized from USGS Digital Orthophotos (DOQQ). It is important to keep in mind that the extent of the water bottoms shown on this web site is only a representation of the extent of water as shown on the DOQQ and not the legal extent of the state's claim. The extent of the water bottoms shown on this web site may be of sufficient accuracy to determine an approximate acreage for the waterway but not of sufficient accuracy to determine a property boundary. The State Land Office does not have the extensive information required to determine a location of the legal boundary for each waterway claimed by our office. Users should be aware that a statewide inventory of state claimed water bottoms has not been completed at this time. Information regarding waterways which are claimed by the state and the adjoining land owner may have been received in the State Land Office but may not be currently posted on this web site. Information will be updated and added to this web site on a monthly basis until the statewide inventory is complete. After the statewide inventory has been completed, the data shown hereon is subject to revisions as additional information is received by the State Land Office. Users should check this web site from time to time for revisions.

³ There are two versions of the disclaimer, which both ultimately state the same thing. One located athttp://199.188.2.155/gis/statelands/disclaimer.html and the other athttp://doa.louisiana.gov/slo/waterbottomsdataaccess.htm.