- The Washington Times - Thursday, May 10, 2018

NEW ORLEANS, La. — Louisiana officially calls itself a “sportsmen’s paradise.” It’s becoming something closer to a sportsmen’s headache.

Flush with their success prying billions of dollars out of BP in the wake of the Deepwater Horizon disaster, Louisiana trial lawyers have their scopes trained on new prey: the oil and gas industry as a whole. In the process, the state’s famous fishing grounds are turning increasingly off-limits.

Coastal lawsuits, as they are known in the Pelican State, are a novel approach to the problem of Louisiana’s retreating shoreline.

The oil and gas industry is blamed for leaving the coast looking like an emphysema patient’s X-ray by cracking open the land searching for black gold, heightening erosion in the process and destroying the land-sea balance. That’s the argument of plaintiff lawyers, anyway, who with Gov. John Bel Edwards’ tacit blessing are pursuing a raft of lawsuits between the Mississippi and Texas borders seeking billions purportedly to restore the coast.

But as the new legal frontier begins its path through the courts, it is already creating some unexpected economic blowback for Louisiana.

Worried they might get dragged into the proceedings themselves, private landowners have begun barring passage on more and more of Louisiana’s intricate network of brackish or freshwater bayous and canals. So have oil and gas industry players.

Nothing has changed in Louisiana’s archaic legal system — landowners have always been permitted to bar access to waterways on their property and aren’t required to post signs — but the former laissez faire attitude toward sportsmen is vanishing.

“A big part of this is the litigation environment,” said Gifford Briggs, president of the Louisiana Oil and Gas Association. “Every time a boat goes down a canal there’s a wake, there could be erosion, and there could be more liability.”

The biggest casualty has been Bass Anglers Sportsman Society (BASS), the major leagues of professional fishing and the world’s largest fishing organization, which announced it will no longer hold Bassmaster tournaments in coastal Louisiana, blaming the crazy-quilt patchwork of fishable or banned water, as well as the difficulty of determining which is which.

For a group that’s held two of its Super Bowl-equivalent events in the rich waters near New Orleans, it was a major statement.

“For the foreseeable future, we can’t have a level playing field there because of the access problems,” said BASS Conservation Director Gene Gilliland. “Louisiana just has some very peculiar laws that don’t mesh well with tournaments and that are going to deter a lot of recreational fishermen as well. Who knows how much they’ll lose?”

A considerable amount, according to the state’s figures. In 2016, officials said outdoor recreation creates more jobs in Louisiana (103,000) than the combined branches of the energy industry (65,000). Recreational fishing licenses brought in another $13.4 million that year, according to the state’s Wildlife and Fisheries.

In addition, Louisiana trumpets its “sportsmen’s paradise” motto in advertising campaigns. In 2016, visiting anglers brought $453 million in tourism revenue, the state said. As a whole, the state says outdoor recreation accounted for $12.2 billion in consumer spending and $893 million in state and local tax revenue in 2016.

Like most major sporting events, the economic impact of Bassmaster tournaments can be hard to quantify but it’s undeniably real. BASS believes local tournaments can be worth between $2 and $3 million to host areas, while its Bassmaster Classic can bring in as much as $25 million.

Last month, BASS announced Louisiana waters would be off-limits in its Bassmaster tournament on the Sabine River along the border with Texas and just south of Lake Charles, Louisiana, the area that gets the greatest concentration of visiting anglers, according to state figures.

Trial lawyers insist their goals align with sportsmen. The oil and gas industry’s dredging and dumping have ruined marshland in which fish breed and created dead zones for both fishermen and oyster farmers from Plaquemines Parish in the east to Cameron Parish’s border with Texas, said John Carmouche, one of the principal plaintiffs’ attorneys pursuing coastal suits.

“That doesn’t make sense,” Mr. Carmouche said of the notion those suits would put him at odds with anglers. “We’re trying to bring back vibrant marshes, bring back the ecological life for bass fishermen. A redfish swirls now and it kicks up a sheen because so much of the bottom is contaminated.”

He insisted trial lawyers aren’t blaming the energy industry exclusively for Louisiana’s land loss. But it’s absurd to think they don’t shoulder some blame, he said.

The lawsuits, which many of the parishes have joined as plaintiffs, charge that the energy industry failed to maintain the waterways they created, or to return them to the state in which they were before exploration as required by state permits. The expanding liquid network and furious activity increased erosion and injected more saltwater into some environments, killing off the plants and trees that served both to catch sediment and as storm buffers, according to trial lawyers and some environmentalists.

Tort reformers, on the other hand, said that masks the plaintiffs’ real goals.

“This is just the beginning of the fallout from these coastal suits, and the consequences are going to extend far beyond the immediate parties being unfairly targeted,” said Melissa Landry, who heads Louisiana Lawsuit Abuse Watch, an advocacy group seeking tort reform. “We’re in an era of total unpredictability and it’s the coastal lawsuits that have created it, and that are going to completely change the cultural heritage of the state.”

She contends that what Mr. Carmouche wants — namely, backfilling the canals and thus destroying the valuable natural water assets — is a remedy they hide from the general public, lest Louisiana’s strong sporting voice rise in opposition.

“He’s saying we must backfill every canal in Louisiana, all while having people being sued for permitted activity,” she said.

Some of those trying to solve the water access problem point to other issues in addition to active trial lawyers. There is the question of who will control mineral rights on the property, especially because once an area becomes open water and is classified as part of the Gulf of Mexico, ownership automatically reverts to the state.

Republican state Rep. J. Kevin Pearson introduced a bill in the just-concluded legislative session that would have resolved some of the issues. He professed surprise the bill attracted so much high-priced lobbying efforts to defeat it. His bill made it out of committee then failed on the floor.

“We certainly are a unique state with all that water,” Mr. Pearson said. “Something like 80 percent of it is considered private, although a lot of landowners have always said, ‘OK, they can fish it.’”

Indeed, a permissive attitude about using water widely perceived to be in the public domain existed in Louisiana for decades. The adage “if you float it, you can boat it,” largely prevailed.

But in the past two to three years, sportsmen said, chains or phone poles blocking the entrances to canals and bayous have proliferated. Mr. Gilliland said he was stunned last November by how many he saw in a private fishing trip he made to Venice, Louisiana, close to the Gulf.

“I can’t tell you exactly what’s going on, but we are seeing a noticeable increase in access restrictions,” he said. “It’s increased rather dramatically in the last few years.”

Among the victims of the newfangled restrictions is Bob’s Bayou Black Marina, a popular spot in Gibson, Louisiana, the eastern edge of Cajun country and roughly 70 miles southwest of New Orleans. In duck season, Bob’s is so busy a weekend will see between 400 and 500 boats launched, said owner Bobby Breaux.

But Williams Inc., which owns a canal that serves to connect the marina toward the Gulf, is closing it off. It’s given Bob’s a year to prepare but then the access will be blocked, essentially landlocking the marina and putting Bob’s out of business after more than a quarter century serving sportsmen.

“I have no idea why all this came up at once,” Mr. Breaux insisted. “But we’ve got oil companies out here, leasing companies, hunters, tourists — the state’s going to lose all that money. And we’re talking about canals that in some cases were dug by oil companies in the 1800s.”

That’s long been part of the industry’s defense: it points to a nearly spotless record in terms of permit violations handed out by the state and argues it shouldn’t have to pay astronomical sums after decades of legally conducted business.

Just what that liability may be is unclear. Trial lawyers in the Eastern District of Louisiana were stunned last week when U.S. District Judge Jane Triche Milazzo awarded a paltry $1,102 in damages in a Plaquemines Parish canal maintenance case against Tennessee Gas Pipeline Co. The lawyers sought more than $30 million in that suit, which was widely viewed as a template for the sprawling litigation after Milazzo awarded summary judgment for the plaintiffs last August.

Tennessee Pipeline, now a subsidiary of Kinder Morgan, was also ordered to restore 9.6 acres of wetlands ruled lost by the pipeline which, since it was opened 1953, had eroded and is now wider than originally permitted.

In a statement issued by LOGA, Mr. Briggs said, “it is refreshing to see a decision in which the judge rejected the ridiculous damage claims alleged by the plaintiffs. For once, the industry and the environment won out over financial pursuits of a cottage industry of trial lawyers.”

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