1 United States Court of Appeals,

Fifth Circuit.

Nos. 94-30444, 94-30538.

Summergill DARDAR, et al., Plaintiffs,

Raymond Serigney, et al., Plaintiffs-Appellants,

v.

LAFOURCHE REALTY CO., INC., et al., Defendants,

Lafourche Realty Co., John Plaisance & Sons, Inc. and Alex J.

Plaisance, Jr., Defendants-Appellees.

Summergill DARDAR, et al., Plaintiffs,

State of Louisiana, Intervenor-Appellant,

v.

LAFOURCHE REALTY CO., INC., John Plaisance & Sons, Inc. and Alex

Plaisance, Defendants-Appellees.

June 28, 1995.

Appeals from the Uni ted States District Court For the Eastern

District of Louisiana.

Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit

Judges.

POLITZ, Chief Judge:

With today's disposition we bring to closure litigation with

the dubious distinction of being one of this circuit's oldest

continual actions. Before us is the appeal of Raymond Serigney,

Luke Billiot, Joe Billiot, Whitney Billiot, and Deborah Taylor of

the district court's judgment declining to find certain waterbodies

in south Louisiana subject to the federal navigational servitude.

For the reasons assigned, we affirm.

Background1 The history of this case is discussed in two of our prior

decisions, Dardar v. Lafourche Realty Co., Inc., et al., 985 F.2d

824 (5th Cir.1993) (" Dardar III "), and Dardar v. Lafourche Realty

Co., Inc., et al., 885 F.2d 868 (5th Cir.1989) (unpublished

opinion) (" Dadar II ").

2 This senescent litigation involves a large tract of marshlands

in southeastern Louisiana owned or under the control of Lafourche

Realty. In 1948, after securing the requisite approval from the

United States Army Corps of Engineers, Lafourche Realty began the

process of dredging the Tidewater Canal across its holdings. Over

the next two decades the Tidewater Canal was extended and other

canals were devel oped and added to the system which, eventually,

embraced many of the natural waterbodies within Lafourche Realty's

holdings via small canals, some dug by trespassers.

Concerned with salt water intrusion, erosion, and damage to

the canal net work, Lafourche Realty sought and secured Corps

approval for a marsh management program encompassing approximately

12,800 acres. Lafourche Realty also secured permits for

construction of a series of levees and gates limiting public access

to the management area.

Denied free access, the commercial fishermen

plaintiffs-appellants filed suit demanding unfettered access to and

use of the wa t erways in the management area. The State of

L ouisiana intervened, claiming title to the waterbottoms and the

right of public access to the waterways . Lafourche Realty

countercl aimed, seeking recognition of its title to all property

located within its patents. After lengthy litigation, 1 the permits

issued to Lafourche Realty were upheld, the State's claims to title2 These waterbodies were: Lac de L'Isle, Lac a Roman, Bayou

Ferblanc, Branch of Bayou Ferblanc, portions of Mink Bayou, Bayou

John, Bayou Rambo, and portions of Bay Jacque, Bay Rambo,

Palmetto Bayou, and Redfish Bayou.

3 See Dardar III.

4 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1978).

5 Boone v. United States, 944 F.2d 1489 (9th Cir.1991).

3 wer e rejected, and the Tidewater Canal was declared exempt from

public ownership or public use.

On our most recent review we remanded to the district court

for the determination whether a federal navigational servitude

encumbere d certain waterbodies 2 within the management area. 3 We

directed the district court to determine whet her the waterbodies

were navigable in their natural state or as the direct result of

dredging. Any waterbody found naturally navigable was to be

examine d under the rubric in K aiser Aetna v. United States 4 to

determine its susceptibility to the federal navigational

servitude. 5

On remand, the di strict court ruled that none of the

waterbodies at issue were subject to the navigational servitude.

It found that Bayou John, Branch of Bayou Ferblanc, portions of

Mink Bayou, and connecting waterbodies with Mink Bayou and Bay

Jacque were not navigable in fact . It also found that Bayou

Ferblanc and Bayou Rambo were made navigable by dredging and thus

were not amenable to the federal servitude. Finally, noting the

e vidence indicating that the remaining waterbodies over which it6 The district court properly noted that the southern portion

of Bay Jacque, the eastern and southern sections of Bay Rambo,

portions of Mink Bayou, Palmetto Bayou, and Redfish bayou are not

within the subject area of the lawsuit and were beyond its

jurisdiction.

7 Appellants also claim that the district court erred in

failing to address their rights to use the "thousands of acres of

unnamed" and "emerging" waterways in the subject area. We do not

agree. The only evidence relating to the navigability of these

unnamed bodies is a statement in the report of one of plaintiff's

experts, and is only a non-specific assertion that all of the

waters within the area are navigable "if for no other reason than

because they are subject to the ebb and flow of the tide." As

noted by the district court, this evidence made no specific

reference to the waterbodies involved in the litigation. Because

of this lack of evidence, the district court did not err in

declining to address this issue. See Fed.R.Civ.P. 61; Mundy v.

United States, 22 Cl.Ct. 33 (Cl.Ct.1990); State ex rel Guste v.

Two O'Clock Bayou Land Co., Inc., 365 So.2d 1174 (La.App.1978),

writ denied, 367 So.2d 387 (La.1979).

8 Dardar III at 834.

4 had jurisdiction 6 were made navigable by dredging, the court found

them not navigable in fact because of their inaccessibility to the

public. The court declined to impose the federal navigational

servitude and the plaintiffs and the State timely appealed.

Analysis

Appellants maintain that the trial court erred in finding that

the subject waterbodies were either not navigable or otherwise not

subject to the federal navigational servitude. 7 We are not

persuaded.

At the threshold we note that, generally, "a navigational

servitude is ordinarily imposed on a naturally navigable

waterway." 8 The servitude is not visited upon a waterway made

navigable by the direct actions of man wh ich does not displace a9 See Vaughan v. Vermillion Corp., 444 U.S. 206, 100 S.Ct.

399, 62 L.Ed.2d 365 (1978).

10 Kaiser Aetna at 178.

11 Dardar III at 832, citing Kaiser Aetna at 175.

12 The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999

(1870).

5 naturally navigable waterway. 9 Waters so encumbered are subject to

public use as "continuous highways for the purpose of navigation in

i nterstate commerce." 1 0 Although this servitude "recognizes the

important public interest in

... inte rstate waters that in their

natural condition are in fact capable of suppor ting public

navigation," 11 this interest is not absolute and the imposition of

the servitude is not automatic. A landowner whose properties

contain navigable waterways may escape this servitude by showing

either that the waterways were not navigable in their natural state

or, if naturally navi gable, by demonstrating that his interests

outweigh thos e of the public. In evaluating these competing

interests, courts must determine whether: the waterway was

navigable in its natural state and is comparable to other

waterbodies upon which the servitude has been imposed; is on

private property and made navigable with private funds; and was

made navigable by actions approved by the Corps of Engineers.

We first inquire whether the waterbodies at issue are

navigable. Waterbodies are navigable when, in their ordinary

condition, they can serve as "highways for commerce, over which

trade and travel are or may be conducted in customary modes...." 12

Navigability is a question of fact, and findings ther eon are13 United States v. Harrell, 926 F.2d 1036 (11th Cir.1991).

14 The Daniel Ball.

6 subject to review under the clear ly erroneous standard. 1 3 A

waterbody deemed navigable in fact is also deemed navigable in

law. 14

Appellants' ch allenge to the district court's factual

findings on navigability primarily rest on the testimony of one of

their experts. It is abundantly clear that the district court

disregarded this testimony and credited the testimony of area

residents intimately familiar w ith the local waterways and the

expert offered by Lafourche Realty who had been studying the region

for an extended period. Such credibility assessments by the trial

court are accorded great deference. We find no basis for rejecting

that assessment herein.

The trial court's findings that Bayou John, Branch of Bayou

Ferblanc, portions of Mink Bayou, and waters adjoining Bay Jacque

are not navigable are not clearly erroneous. Longtime local

residents testified t hat the two discontinuous segments of Bayou

John were part marsh and not suitable for travel in their normal

state. This is buttressed by the testimony of plaintiffs' expert

that the depth was 18 inches and of def endant's expert that the

waterway was isolated in its natural state and connected to

outlying bodies of water only by man-made ditches.

Evidence overwhelms that Branch of Bayou Ferblanc was

non-navigable. Plaintiffs' expert conceded the waterbody was

impassable at some points. Defendant's expert testified that this15 Appellants maintain that the district court, in finding

Mink Bayou to be non-navigable, disregarded our holding that

"Mink Bayou was not navigable until 1948, when the Tidewater

Canal intersected it." Dardar III at 833 n. 7. The evidence

overwhelms that Mink Bayou does not, as a continuous waterway,

intersect the Tidewater Canal. Appellants' reliance on the

quoted footnote language provides no surcease.

7 waterbody was composed of discontinuous ponds and was acc essible

only through man-made ditches. Other testimony reflected that the

w aterbody was only seven inches deep at some points. The record

also supports the fin ding that the connecting waterbodies

surrounding Bay Jacque ar e non-navigable as they are either too

shallow for passage along much of their length or terminate in

marsh.

The relevant sections in and around Mink Bayou are largely

non-navigable. Lay and expert testimony established that the

n orthern and middle areas are clogged and are compo sed of

discontinuous ponds. Lower sections are impassable and fade to

naught near the Tidewa ter Canal. 1 5 As all of the foregoing

waterbodies are not navigable, the district court properly declined

to impose the federal navigational servitude.

Nor are we persuaded that the district court erred in

declining to impose a navigational servitude on the ot her named

waterways. The record reflects that both Bayou Ferblanc and Bayou

Rambo were made navigable through private dredging. The area

residents testified that Bayou Ferblanc was passable only after

dredging in the 1950s. Other evidence reflects that Bayou Rambo

was made passable largely due to its dredging in the 1950s and

1960s. Thus, as these bodies were not naturally navigable, and the8

record contains no showing that they displaced naturally navigable

waterways, the district court properly concluded that the public

had no right to their free use.

Appellants contend that the remaining waterbodies within the

subject a rea are both naturally navigable and accessible through

public waterways and, thus, are subject to the federal navigational

servitude. The district court's findings to the contrary result

from its crediting the defendant's photographic and c artographic

exhibits, and the testimony of its expert. Our review of the

record does not leave us with the definite and firm conviction that

a mistake has been committed. Rejection of the trial court's

findings of fact is therefore inappropriate. The evidence credited

by the district court established t hat the portions of the

waterbodies i n the subject area were accessible only through the

privately-owned canal network or through man-made dit ches on

private property not owned by the plaintiffs. Accordingly, as

these waterbodies were inacc essible to the public, the district

court was not clearly erroneous in concluding that they were exempt

from the servitude because they were unsuitable as a highway for

travel or commerce.

Assuming, arguendo, th at these bodies were navigable, the

remaining Kaiser Aetna factors would militate against imposition of

the servitude. The shallow depth and discontinuous nature of the

waterways within the Lafourche Realty management area prevent them

from being considered akin to "the sort of great navigable stream

that

... has [been] previously recognized as b eing incapable of16 Kaiser Aetna at 178-79.

17 The Army Corps of Engineers concluded that prior to the

construction of the Tidewater Canal system, none of the waters in

the subject area were naturally navigable. The evidence also

reflects that the actions of man rendered these waterways

passable; Lac de L'Isle, for example, was made navigable due to

its being directly deepened by increased water flow from segments

of the man-made canal system that penetrated it.

9 private ownership." 16 The record clearly reflects that all of the

remaining waterways at issue are private ly owned and that their

owners exclude others from entry. The record also reflects that

the waterbodies presently navigable were not naviga ble in their

natural state. 17 Finally, the improvements making these bodies

navigable were accomplished with private funds after receipt of

approval from the Army Corps of Engineers. Therefore, even if the

waterways in the instant litigation were found to be navigable,

application of the Kaiser Aetna test inexorably leads to the

conclusion that the federal navigational servitude should not be

imposed.

Finding no merit in any assignment of error, the judgment of

the district court is in all respects AFFIRMED.