Iberville and Ascension parishes should compensate the owners of Alligator Bayou Swamp Tours for opening the bayou’s floodgate in 2009 and ruining the company’s business, an attorney for the firm told a state appellate court Thursday.
“They (Iberville and Ascension governments) destroyed the swamp tour business. They (the company’s owners) should be compensated,’’ Clay Garside, who represents Alligator Bayou Swamp Tours co-owners Frank Bonifay and Jim Ragland, argued to a three-judge panel of the 1st Circuit Court of Appeal in Baton Rouge.
But an attorney for Iberville Parish countered that the floodgate in Iberville was opened to protect nearby landowners.
“One property owner in the area doesn’t like it — one,’’ Ryan Ours, who represents Iberville, told the 1st Circuit panel.
Ours also argued it is a “privilege’’ to use public waterways, not a “right.’’
Bonifay, who attended the court hearing, said afterward that he is “praying a lot.’’
“We lost all of our bookings. We’ve had no income for three years,’’ he said.
The floodgate between Alligator Bayou and Bayou Manchac was built in 1951 and had generally been kept closed since its construction.
Bonifay and Ragland, who own land adjacent to Alligator Bayou, shut their business down shortly after the gate was opened and the water receded from their land and the bayou.
Garside told Circuit Judges Edward “Jimmy’’ Gaidry, Michael McDonald and Jeff Hughes that Alligator Bayou Swamp Tours started in the mid-1990s.
McDonald noted that the floodgate was in existence when the swamp tour owners bought their property.
“To me it’s like moving next to an airport and then complaining about the noise from the airplanes,’’ the judge said.
Garside argued that Alligator Bayou’s navigability could have been maintained if the water level had merely been lowered to 3.8 feet to 4 feet — what he called the historical bank level — but the opening of the floodgate “drained’’ the bayou and left just six inches of water.
Before the gate was opened, water in the bayou was high enough to permit Alligator Bayou Swamp Tours to offer the public pontoon boat tours of the scenic bayou area.
The decision by the governments of Iberville and Ascension to open the gate stemmed from complaints from nearby landowners that the closed gate kept too much water on their properties, limiting what they could do with their land and interfering with the natural rhythm of the swamp ecosystem.
State District Judge Thomas J. Kliebert Jr. ruled in June that Alligator Bayou Swamp Tours is not entitled to compensation because the company had no private property rights on the bayou.
Kliebert concluded that Alligator Bayou Swamp Tours “doesn’t have a protected, private right in a public waterway.’’
Bonifay and Ragland are seeking compensation on the basis of “inverse condemnation,’’ a legal term in which a private party can seek payment for land taken by a government entity for public use.
“This (the opening of the floodgate) is not a legal action,’’ Garside argued Thursday.
“Where is the protected constitutional right? They don’t have it,’’ Ours countered.
Gaidry, McDonald and Hughes took the arguments under advisement.
Garside said outside the 1st Circuit courthouse that Alligator Bayou Swamp Tours lost millions of dollars in capital investment and hundreds of thousands of dollars in future revenue.