By Keith Burton 3/22/07 GCN
GulfCoastNews.com has learned that Mississippi’s Secretary of State has failed to act to assert the park’s grounds is state property, even though the agency has done so in numerous properties in Biloxi where casinos are located.
The issue of state ownership of the property at Jones Park is not an unknown or new legal question. GCN has confirmed that the entire site appears on the bottom land survey maps by the Secretary of State as filled in property. These maps were compiled to deal with the tidelands ownership issue that developed during the 1990's when casinos were approved for Mississippi. GCN was told by an official with the state agency that the Secretary of State’s Office just “chose not to send a letter to the city of Gulfport regarding the ownership issue,” as the state had done to other property holders, “because the site was at the time in public use.” At the time, the filled-in property at Jones Park had numerous private businesses including the White Cap Restaurant, a bait shop, and Marine Life, among others. All paying leases to the city.
Biloxi has a lease for its bottomlands from the state at Point Cadet as do other users of state bottom lands as well as numerous casinos and the Broadwater Marina. Leases that the state has not required of Gulfport.
The ramifications over this duel class of uses of state-owned tidelands could change dramatically where casinos can be built along the shoreline. It could also change Gulfport Mayor Brent War’s plans to turn the park into some sort of racetrack, garden-retail store village, all without state participation or lease.
In researching the issues around where casinos can be placed and the tidelands regulations, GCN found that a landmark case from Hancock County, Mississippi before the United States Supreme Court in 1986 that came to be called the Cinque Bambini case (Cinque Bambini-"Five children"), is the controlling law on coastal bottomland ownership. The Cinque Bambini ruling determined that the state has ownership of all bottomlands up to where the historic shore existed when Mississippi became a state, which was 1817. Cinque Bambini has been used since 1988 as the foundation for all states over issues of ownership of coastal bottomlands.
The ruling means that no one, even if they have claimed the land for years and paid taxes, can take true title or ownership of lands that are owned by the state, even where lands were added by filling in. The actual boundaries are the historic shoreline, and not the shoreline that exists today as a result of filling.
GCN has confirmed with officials with the Secretary of State, who wished to not be quoted by name, that Jones Park is filled-in property and belongs to the State of Mississippi, even though the state has not asserted its right of ownership. GCN has confirmed that based on the Cinque Bambini ruling, that no one can acquire title to property by adverse possession against a state. This is even after years of occupation and use. They are technically squatters on state-owned property.
In addition, as the true shoreline of the state is not the current shoreline, but the shoreline as it existed at the time Mississippi became a state according to the Cinque Bambini ruling, the actual locations where the new land-based casino laws will allow casinos to be built, is different.
GCN has also confirmed that the state cannot deed over or sell state-owned bottomlands without legislative authority.
As a result of the Secretary of State failing to act on its existing ownership of Jones Park, the state has lost millions of dollars in potential lease monies from businesses at the site. Whether or not the state acts upon it rightful ownership does not diminish the Cinque Bambini ruling.
Biloxi currently leases its tideland areas from the state. Throughout the casino development phase, the issue of state owned bottomlands developed into numerous agreements with squatting property owners, even though the state could simply claim rightful ownership and evict them. Officials with the Secretary of State told GCN that the state went into the negotiations with the existing property owners to move development forward and prevent numerous delaying lawsuits.
Over the years, many coastline states, including Mississippi, have ignored their rightful ownership of coastal bottomlands. After the Cinque Bambini ruling, coastal states have slowly begun to reassert ownership.
Officials with the Secretary of State would not offer an explanation as to why it chose not to exercise state ownership in Gulfport, but did so everywhere else. The duplicity of the Secretary of State’s actions over a period of years have created a suspect, two-class system of ownership and requirements, which is typically prohibited by law.
As the true shoreline boundaries of the state are the historic boundaries prior to the land being filled in, the new casino regulations, passed by the state legislature after Hurricane Katrina, could actually allow gaming properties to be well onshore from the current shoreline. The regulations allow casinos to by placed within 800 feet of the shoreline excluding the highway 90 rightaway where it touches the shore. As a result, the measurement begins at the historic shoreline, where the state actually owns the bottomland.
In Biloxi, this could mean casinos on Back Bay could be built nearly up to Division Street in some places, near the center of the Biloxi Peninsula. In Gulfport, the historic line begins just south of U.S. 90, which would mean casinos could actually be constructed almost to 14th street in front of the Hancock Bank tower, replacing the numerous churches and businesses that were destroyed by the hurricane. Zoning changes would have to take place to locate casinos in these areas.
Many in Gulfport will be shocked that the Jones Family, which deeded the Jones Park property to Gulfport and, on occasion has asserted a reversionary right, did not have true ownership. The question is not even one that can be litigated. The Cinque Bambini ruling is the controlling law, and that case is no longer subject to question, short of the United States Supreme Court reversing its recent reaffirmation of long standing law.
What is clear is that Gulfport does not own Jones Park, the state of Mississippi does. While the state has not enforced its ownership, it still owns the property and has a stake in its development, as do the taxpayers throughout Mississippi.
The full nature of the plans for Jones Park, by a very secretive Mayor Warr, has yet to be announced. But he has taken the park out of public use since Katrina and recently has allowed tons of dirt to be placed throughout the park without City Council approval, according to Ward 7 Councilwoman Barbara Nalley. What Warr has indicated are such things as retail shops, an auto racetrack, restaurants, and even a casino. All are activities that are outside the public use provisions typical of a park. His plans are like a commercial development such as Biloxi pursued at Point Cadet.
Warr says his plans require nearly $33 million dollars, of which the city currently only has $20 million available. Clearly a development of this size legally requires that the state assert its ownership of this property the same way it did in Biloxi.
Supreme Court Finds for Mississippi's Tidelands: Phillips Petroleum Co. v. Mississippi
108 S. Ct. 791 (1988), 98 L. Ed. 2d 877. The U.S. Supreme Court in this important tidelands decision ruled that all tidelands in Mississippi, and not only shorelands to navigable waters, are subject to the public trust interests. The oil company and others argued that only shorelands to navigable waters are subject to public, rather than private, ownership. The court found for the state that the public trust had attached to these lands under the sovereignty of the state as vested upon entry into the Union. The Court reached back to, e.g., the seminal public decision in Shively v. Bowlby, 152 U.S. 1 (1894) (Oregon's title to submerged lands in the Columbia River mouth near Astoria, Or.) to confirm Mississippi's interest. The decision will affect more than 9 million acres of coastal wetlands. 98 L. Ed. 2d at 897 (dissenting opinion of O'Conner et al.). For the opinion of the Mississippi Supreme Court see Cinque Bambini Partnership v. Mississippi, 491 So.2d 508 (Miss. 1986).
Island View Casino and Future Gulfport Casino Plans - Southern Gaming Magazine
Plans Emerge (Warr's vision for Gulfport's Harbor and Port Area) - MississippiRenewal.com
Harbor Project Picking Up Speed - Sun Herald