Could St. Bernard Parish regulate waterfront structures in territory assigned to its port district?

Plain-English summary

The St. Bernard Port district asked about a parish ordinance regulating permits, location, and construction of wharves, piers, slips, and other waterfront structures outside the Forty Arpent Levee System. The AG said the geographic wording did not avoid the port district’s jurisdiction over waterways and banks within St. Bernard Parish. It concluded the ordinance infringed the port commission’s statutory authority. The opinion suggested a cooperative agreement between the parish and district, which the district’s statute permitted.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the parish require permits for private structures on waterways and banks in the port district?
The AG said the ordinance's regulation of those structures infringed the port district's authority over the waterways and banks described.

Did placing the ordinance outside the levee system solve the jurisdiction issue?
No. The AG said the covered structures and waters remained within the port district’s jurisdiction.

What alternative did the AG suggest?
It pointed to the district’s power to contract with the parish and suggested a cooperative agreement.

Background and statutory framework

The opinion discussed R.S. 34:1701, R.S. 34:1703, and R.S. 34:1705. It applied those provisions to the specific parish permitting ordinance described in the request.

Citations and references

• The authorities discussed appear in the reproduced opinion below.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0121

Original opinion text

~t~zte o~ ~oui~i~n~
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. Box 94005
TEL.: (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

M/~Y 0 9 2002
OPINION 02-121

90-1 - Port Commi.ions
84 - Parishes

Mr. Robert J. Scafidel
R.S. 34:1703, 34:1705
Executive Director
An ordinance that infringes upon
St. Bernard Port, Harbor &
the authority of St. Bernard Port,
Terminal District
Habor & Terminal District would
P.O. Box 1331
be invalid and the solution may
be a cooperative indeavor.
Chalmette, LA 70044-1331

Dear Mr Scafidei:

This office is in receipt of your request for an opinion of the Attorney General in regard to the legality of the St. Bernard Parish Council Ordinance SBPC #510-11-01 relative to the authority and jurisdiction of the St. Bernard Port. You state the ordinance seeks to establish rules and regulations regarding wharves, piers, docks, boat slips and other structures in, over, on or along water. You believe this ordinance is in conflict with R.S.
34:1701 et seq which grants the power to regulate traffic, commerce and to approve plans and specifications for such structures or battues and banks along waterways to the St.
Bernard Port.

We note that the ordinance in question provides in part as follows:

INTENT AND PURPOSE

A. The intent and purpose of this section is to establish an effective regulatory program for permitting the location and construction of wharves, piers, boat slips and other structures in the areas of St. Bernard Parish located outside of the Forty Arpent Levee System over or on waterways or water bodies. This section shall establish the following:

1. Regulations regarding construction standards and structure location.
2. Permitting requirements.
3. Permit fees
4. Enforcement.

As noted by this office in Atty. Gen. Op. 98-160 in accordance with Lake Charles Harbor & Terminal District v. galcassieu Parish Police Jury_, 613 So. 2d 1031 (La. App. 3rd Cir, 1993) the legislature has created and incorporated the deep-water port, harbor and

Page 2

Mr. Robert .l. Scafidel
OPINION 02-121
Page 2

terminal district to exercise the state’s superior police power over the navigable watenmays and their banks and shores and other such state public property statutorily entrusted to it. In this regard we find pursuant to R.S. 34:1701 the St. Bernard Port, Harbor and Terminal District is created as a political subdivision of the State, and the territorial limits and jurisdiction shall be the territory within the limits and boundaries of St. Bernard Parish. This statute gives the board of commissioners of the district =complete jurisdiction to regulate all domestic, coastwise, and intercoastal commerce and traffic of said district and all commerce and traffic within the district including cargo bound for and/or in and/or coming out of international commerce where such commerce is conducted by or through a facility wholly owned by the district."

Thereafter, in accordance with R.S. 34:1703, Powers of the board, it provides in part that the board =shall be empowered to own and have charge of, to administer, construct, operate and maintain wharves, warehouses, landings, docks shed, belt and connection railroads, shipwa-ys, canals, channels, slips, basins, locks, elevators and other structures and facilities necessary and proper for the use and development of the business of such district, including buildings, storage, equipment for the accommodation of passengers and those used in the handling, storage, transportation and delivery of freight, express and mail." It is further provided therein that riparian owners of property along the banks of navigable waterways within the district may, =with the consent of the board, and in conformity to plans and specifications approved by the board, erect and maintain on the batture or banks owned by them such wharves, buildings, or improvements as may be required for public or private purposes."

It would appear that the ordinance in question, wherein it provides for a regulatory program to control the location and construction of camps, wharves, piers, boat houses, boat slips, and other structures in, over, on or along waterways, their shores, banks or sides in the area of St. Bernard Parish located =outside of the Forty Arpent Levee System" was an attempt to place the regulation outside of the District, but despite this provision this office would have to conclude that the ordinance infringes upon the authority of the Port Commission, being a political subdivision of the State. There is an inconsistency in stating the ordinance is to establish a regulatory program outside of the Forty Arpent Levee System and at the same time state it is to control the construction of "camps, wharves, piers, boat houses, boat slips and other structures over, on or along waterways, their shores, banks or sides." Control of these areas clearly are within the jurisdiction of the St. Bernard Port, Harbor and Terminal District.

We find support for this conclusion by the fact that it is provided in the ordinance that prior to applying for a permit from the Parish, the applicant shall obtain all necessary federal and state permits from the agencies designated therein and includes in the list "the St. Bernard Parish Port Authority’.

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Mr. Robert .l. Scafidel
OPINION 02-121
Page 3

Moreover, the authority of the District is pertinent wherein R.S. 34:1705A(2) provides as follows:

The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall also have and exercise the powers granted to deep water port commissions pursuant to R.S. 9:1102.1 in all cases where riparian owners of property on navigable rivers, lakes, or streams within said district desire to construct wharves, buildings, or improvements on the batture or banks owned by them, which are designed for and/or used for such commerce and traffic domestic, coastwise, or intercoastal commerce, including cargo bound for and/or in and/or coming out of international commerce where such is conducted by or through a facility owned by the district.

It would seem a possible solution to the problem that the St. Bernard Parish government attempts to remedy may be to enter into a cooperative endeavor with the St. Bernard Port, Harbor and Terminal District. In ths regard R.S. 34:1705(B) is pertinent wherein it is provided as follows:

The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall have the right to enter into any and all contracts and agreements with the Parish of St. Bernard, the board of commissioners of the Port of New Orleans, and any other public subdivisions or authorities relative to any and all matters which lie within the jurisdiction of the district and the board of commissioners thereof.

We hope this sufficiently responds to your inquiry.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BARBARA B. RUTLEDGE
Assistant Attorney General

RPI/bbr