Comite River dispute at standstill

Federal suit fights property rights, ATV ban

Locked metal gates were no match for dogged ATV riders prepared to scale any obstacle to gain access to the Comite riverbed.

At one point, the frustrated private property owner installed surveillance cameras, thinking he might be able to catch trespassers on video.

But the cameras disappeared, just as his livelihood has over the past few years.

“They’re determined, no matter what, to get past these gates,” said Shane Rush. He owns a majority stake in more than 300 acres of prime real estate along the Comite in northeastern East Baton Rouge Parish, featuring about 5,000 feet of riverfront land up to and including portions of the river itself.

So a few years ago, after the state effectively shut down his decades-old dirt mining business, Rush and his family made a financial decision that has made them a lot more enemies than it has money. They opened an all-terrain vehicle park on their property.

“If you can’t beat ’em, join ’em,” Rush joked of the mentality behind the decision, emphasizing that he had no other viable options.

That move spawned a pitched battle over use of the river, ultimately leading to a state ban on four-wheeling there. More recently, Rush has taken his frustration to the courts, launching a new fight over what he believes is the government’s violation of his property rights.

After the 2011 opening of the Mudd Pits ATV Park, as it’s called, the popularity of four-wheeling on the placid river spiked. Large groups, numbering as many as a few dozen motor vehicles and sometimes more than 100 people, powered up and down the river in snorkel-equipped ATVs, sometimes accompanied by loud sound systems blaring music. In some instances, the crews left messes of litter or broken down trucks and ATVs in their wake, neighbors said.

Environmentally conscious landowners along the river grew incensed. They banded together in attempt to shoo away the four-wheelers, saying their presence was destroying the river’s ecology.

The outcry led biologists with the Louisiana Department of Wildlife and Fisheries to conduct a study in an effort to prove four-wheelers were terrorizing wildlife, displacing river bugs and scaring off — or killing — other animals.

Recently, it seems the anti-ATV campaign has paid off. In March, a new rule approved by the Louisiana Wildlife and Fisheries Commission went into effect, banning most use of motor or tracked vehicles on waterways belonging to the state’s Natural and Scenic River System, which includes the Comite River, a windy, sand-bottom river with plentiful recreation-friendly beaches along its shores.

While spurts of heavy rain have kept water levels unusually high — too high for proper four-wheeling — and summertime heat has only recently begun to reach levels conducive to river recreation, many residents along the river seem to agree the new rule has dramatically reduced four-wheeling on the river.

“It’s been remarkably quiet since that happened,” said John W. Day, a professor emeritus at LSU’s School of the Coast and Environment whose property is a decent paddle upstream from Rush’s land.

As the popularity of four-wheeling increased over the years, a spike Day attributed in part to the opening of Rush’s ATV park, erosion has become more of a problem on the riverbanks, and some critters fled their habitats, the scientist said.

Turtles are particularly vulnerable to the ATVs because of the reptile’s nesting habits, he said.

“They’ll just disappear in the sand,” Day said. “Those are the kinds of things they would’ve just killed.”

Kyle Balkum, a Wildlife and Fisheries biologist, said the department recently approved a study to find out whether ATV use has hurt the turtles. A previous study done prior to the approval of the ATV ban showed that high-traffic areas had fewer river critters altogether, and less diversity in the fish and bug species that were collected.

Scientists hope the ban will spur an ecological renaissance in areas they say were most affected by ATV riders. For example, spotted bass, a popular game fish that showed up in low-traffic areas but not high-traffic areas, should rebound, Balkum said.

“What we were most concerned about was the destruction of the habitat,” said Joel Lindsey, a neighbor of Day’s who has been active in supporting the effort to ban ATV use on the river.

A bird watcher, Lindsey said he hasn’t seen as many blue herons or kingfishers near the river as he used to.

But while habitat destruction has been a big driver in the push to rid the river of four-wheelers, other issues, most notably noise pollution, also have played a factor.

“It sounds like a big party going on,” Lindsey said, “especially if they’ve got guns.”

Debbie Pearson, who lived about a quarter-mile away from the river for nearly 15 years before she recently moved away, said the noise would often keep her up into the wee hours of the night.

“Cars sounded like jetliners,” Pearson said. She and other residents said one ambitious adventurer even brought a military surplus vehicle weighing at least a ton into that river.

Melinda Michaels, a current riverside resident, said people on the four-wheelers, or in some cases larger trucks, often were inconsiderate and belligerent.

“You’re sitting there on your beach and here comes a monster truck,” Michaels said.

And at the root of it all, for some landowners at least, sits Rush’s operation.

“We’re blamed for every bit of it,” Shane Rush said.

Wildlife and Fisheries forced Rush to shut down his mining operation a few years ago, claiming he was mining river silt within 100 feet of the Comite River, which would constitute a violation of the Scenic Rivers Act. Rush denies the charge, saying he never dug within 100 feet. Even if he did, Rush says the state agency denied him proper due process and should not regulate his use of the river, which he considers his private property.

“I love that river,” Rush said. “I’m not trying to destroy it.”

In addition, he claims in a federal lawsuit filed in November that the Comite River never should have been included in waterways that receive special protections under the Scenic Rivers Act because it is a non-navigable waterway — meaning it should be treated not as the state’s property but as private property, seeing as he pays taxes on it.

The state has tried, unsuccessfully thus far, to have the lawsuit dismissed on an array of legal justifications. At the very least, the state says in federal filings, the suit should be heard in state court, where a similar lawsuit filed by Rush against LDWF is pending.

If a judge were eventually to side with Rush, it’s possible that the recent ATV ban could be deemed unenforceable. But if that were to happen, local law enforcement still could arrest people for trespassing on the river, something that for years has been done in East Feliciana Parish.

“The Sheriff’s Office writes the tickets, and we enforce it,” said Sam D’Aquilla, district attorney for the Feliciana parishes, adding that they consider the river non-navigable and, therefore, private property that can’t be trespassed upon.

Since the motor vehicle ban went into effect, Wildlife and Fisheries agents have issued 18 citations — 17 in one stop.

“They had a pretty big group out there that day,” said Adam Einck, a spokesman for the department’s enforcement division.

Einck said agents are relying heavily upon tips about the presence of ATV riders from concerned landowners to most efficiently patrol the river. In some cases, agents likely will have to ride ATVs near the river to properly patrol the rugged terrain, he said.

“If people are out there using the waterways improperly, we’re going to try to put a stop to it,” Einck said.

Only Wildlife and Fisheries agents can issue the citations, which will be handled by the District Attorney’s Office similar to other tickets, said East Baton Rouge Parish District Attorney Hillar Moore III.

A spokeswoman for the East Baton Rouge Parish Sheriff’s Office said deputies will arrest people trespassing on private property near the river if landowners want to press charges. But Casey Rayborn Hicks, the spokeswoman, said there have been cases where by the time deputies arrived on scene, the alleged trespassers were long gone.

Ultimately, Rush said he hopes he can return to his mining business to make a living off his property. But, for that, he will need a court victory with the help of his attorney, Donna Grodner.

Until then, he’ll keep the ATV park open just to pay the bills. Riders there can take advantage of the acres of trails and water-filled pits. But they are required to sign a waiver acknowledging Rush warned them not to leave his property — something he hopes shields personal liability when ATV riders enter the river on his land and travel along the waterway.

In keeping the park going, Rush will be forced to continue cleaning up after four-wheelers who come onto his property both legally — after paying a flat $10 fee for a daily permission to ride — and illegally.

Just the other day somebody brought down a power line trying to finagle a way around a locked metal gate. The electrician who came out to take care of the problem said whoever did it was a lucky soul. Had the power line fallen a few feet lower, an attempt to sneak onto Rush’s property likely would’ve ended in a fatal shock.

Follow Ben Wallace on Twitter, @_BenWallace.