In the riparian land use case, West Baton Rouge Parish Council v. Tullier, the Louisiana First Circuit Court of Appeal ruled on the constitutionality of the statute providing for bicycle paths and walkways atop the Mississippi River levee, deciding that the statute did not expand the permanent levee servitude or create an additional servitude.
Can You Bike, Run, or Walk Atop a Levee Path?
Say that you live near the Mississippi River levee anywhere from Baton Rouge downriver through Plaquemines Parish. Without ever giving it much thought, you often use the paved path atop the levee to bike, run, or walk. One day you head to the path and are greeted by something new—the riparian landowner has blocked the path with vehicles and has erected a gate across the path. Worse, when you make your way around the obstructions the riparian landowner brandishes a handgun and tells you that you have no right to use his property. You wisely turn around and head home to your Peloton.
The blocked path/handgun scenario occurred in April 2017, when a contractor hired by the West Baton Rouge Parish Council attempted to construct a bicycle path and walkway atop the Mississippi River levee in West Baton Rouge Parish. The riparian landowners over whose property the path would run were not happy and took the extreme measures noted above to prevent the construction. Without a shot being fired, litigation ensued.
Louisiana Statute Provides for Bicycle Paths and Walkways Atop the Mississippi River Levee
In West Baton Rouge Parish Council v. Tullier, 2018-1722 (La. App. 1 Cir. 1/11/21), 317 So. 3d 782, writ denied, 2021-00389 (La. 5/4/21), the Louisiana First Circuit Court of Appeal considered the constitutionality of the statute providing for bicycle paths and walkways atop the Mississippi River levee, La. R.S. 38:301A(3) and (4). The statute provides:
(3) Along the main line levees of the Mississippi River in Ascension, East Baton Rouge, Iberville, Jefferson, Orleans, Plaquemines, St. Bernard, St. Charles, St. James, St. John, and West Baton Rouge parishes, levee boards and levee and drainage boards may construct bicycle paths and walkways along the top of the levees. The legal servitude granted to a levee board and a levee and drainage board pursuant to law shall include the construction of bicycle paths and walkways along the top of levees as provided in this Section.
(4) Levee boards or levee and drainage boards, or the governing authority where a levee district does not exist, may allow the public to utilize for recreational purposes as long as the structural integrity of the levee or flood control structure is not compromised, levees under the jurisdiction of the board, or by the governing authority where a levee district does not exist, and may construct or permit bicycle paths and walkways.
The riparian landowners’ property in Tullier is burdened with a permanent levee servitude in favor of the Atchafalaya Basin Levee District. In 1931, the District appropriated the landowners’ property for levee purposes. The landowners asserted that La. R.S. 38:301(A)(3) and (4) was unconstitutional because it sought to expand the permanent levee servitude under which land was appropriated for levees purposes to encompass recreational purposes, resulting in the taking of their property in violation of the Louisiana and United States Constitutions. The Louisiana First Circuit Court of Appeal disagreed.
Legal Servitudes and the Limitations on Ownership
The court noted that the “legal servitude” referenced in La. R.S. 38:301(A)(3) is the permanent levee servitude of Civil Code article 665, which burdens all riparian land and permits the “making and repairing of levees, roads, and other public or common works.” The permanent levee servitude is an “ancient servitude” codified in article 665 that has burdened riparian land ever since the land first was separated from the public domain and has been maintained through the transitions of the Civil Code since 1808.
Legal servitudes are limitations on ownership established by law for the benefit of the general public. La. Civ. Code art. 659. The permanent levee servitude burdening the landowners’ property is not only a legal public servitude, but a predial servitude. See La. Civ. Code arts. 646 and 654. The use and extent of servitudes, such as the permanent levee servitude, are regulated by the title by which they are created. See La. Civ. Code art. 697.
Louisiana First Circuit Court of Appeal’s Findings
The legal servitude burdening the riparian landowners’ property was appropriated in 1931 through a resolution of the Atchafalaya Basin Levee District. That resolution vested the District with the right to use the lands within its territorial limits “for levee purposes along the Mississippi River.” The First Circuit reasoned that any limitations on the use of the appropriated land by either the owner or the appropriating authority must be expressed, and, in this case, the expression necessarily would have been in the 1931 resolution. The court found that no provision of the resolution limited the District’s use of the appropriated riparian land. Thus, there was no limiting regulation by title.
In the absence of a limiting regulation by title, Civil Code article 665 (the levee servitude article) provides that “[a]ll that relates to this kind of servitude is determined by laws or particular regulations.” La. R.S. 38:301 sets forth the law governing levee servitudes along the Mississippi River in the parishes listed in La. R.S. 38:301A(3) and states that bicycle paths and walkways atop the levee may be constructed in those parishes in accordance with the permanent levee servitude. Because no other provision in the levee servitude articles indicated otherwise, La. R.S. 38:301 governed and permitted West Baton Rouge Parish to construct bicycle paths and walkways along the top of levees and allowed the public to utilize the levee for recreational purposes.
Accordingly, the First Circuit found that La. R.S. 38:301(A)(3) and (4) do not impermissibly expand the permanent levee servitude nor do they create any additional servitude. The statute merely provides that the Civil Code article 665 permanent levee servitude “shall include the construction of bicycle paths and walkways along the top of levees.”
The court also noted that La. R.S. 38:301 is neutral regarding the public’s use of levees for recreational purposes and the construction of bicycle paths or walkways on levees; the statute specifically does not encourage or require such use or construction. See La. R.S. 38:301F. Additionally, La. R.S. 38:301 provides immunity to a riparian landowner from liability for personal injury, property damage, or other loss to individuals occurring while a person enters onto such property for recreational purposes. See La. R.S. 38:301E(1). Also, La. R.S. 38:301 does not restrict a riparian landowner from “the normal, reasonable, and foreseeable use of levee property upon which a bicycle path or walkway is constructed.” La. R.S. 38:301E(2). Finally, riparian landowners can seek compensation for the use of their property as bicycle paths/walkways. La. R.S. 38:301E(3). Taking all those points into account, the court concluded that La. R.S. 38:301A(3) and (4) are constitutional and did not result in a taking of the landowners’ property in violation of the Louisiana or United States Constitutions.
Notably, Tullier was a 2-1 split decision. In dissent, Judge Guidry found that by providing that land appropriated for levees purposes may be used for building bicycle paths and walkways (purely recreational purposes), the legislature improperly expanded the constitutional right of appropriation. Thus, according to Judge Guidry, that unlawful expansion results in a taking of property in violation of the Fifth Amendment to the United States Constitution.
The Louisiana Supreme Court denied writs in Tullier. However, the issue could arise again in one of the parishes listed in La. R.S. 38:301A(3) outside of the First Circuit’s jurisdiction. Any such new case might even involve a servitude-appropriating resolution that (unlike the resolution in Tullier) limited the appropriating authority’s use of the appropriated riparian land. As such, users of the bicycle path/walkways atop the Mississippi River levee outside the First Circuit’s jurisdiction might want to keep their Peloton subscriptions current.
Additional Articles on Servitudes
 The author represented the state of Louisiana in Tullier to argue that La. R.S. 38:301A(3) and (4) is constitutional. The State had no other interest in the lawsuit.