2
Identity Crisis in Bayou Country

Until we become nomenclators of a place, we can never really enter it.
—William Least Heat-Moon (1991)

On January 27, 1964, Six Mile Lake became a stream. No act of God, no natural disaster, no work of man played a role in the lake's sudden transformation. What sounds like a shift of enormous ecological proportions was really the product of just a few men huddled together in a courtroom somewhere in Baton Rouge.

Six Mile Lake is in southern Louisiana's Atchafalaya basin. It is part of North America's largest river basin swamp, bigger even than the famed Okefenokee. As the sun arches up in the sky and the fog begins to lift, day settles in over bayou country, an aqueous, obscure world of twists and turns. Look down into the water and you will see reflected a battle-worn landscape studded with immense cypress stumps as much as ten feet in diameter. Those trees once towered one hundred feet above the land, the wood now lodged in a decaying cabin or coffin moldering in the ground somewhere. Death weighs heavily on the landscape, but then so does life. The Atchafalaya, home to hundreds of

species of birds and fish, is just brimming with wildlife, with egrets swooping down gracefully over the water, with alligators lurking near to shore, with crawfish, shrimp, clams, mussels, mullet, and shad, with mink, nutria, ducks, turkeys, deer, and on and on, as if a host of Noah's arks descended on the swamp and opened their doors.

Imagine more than three-quarters of a million acres of such life and death, think for a moment about those twisting, mist-enveloped bayous, and you will soon understand the mix of beauty, terror, and mystery that surrounds this place. But of all the many mysteries one finds here, perhaps the most persistent concerns two bodies of water, Grand and Six Mile lakes. These are not average lakes. Some people had trouble believing that they were lakes at all. To the unbeliever they were something altogether different, rivers or streams maybe, but not, let me repeat, not lakes. Why, one might ask, should anyone care what name was used? Because a great deal of property and money rested on the name. For the law in Louisiana attached (and still attaches) great importance to the names given such bodies of water. How they were named would determine who owned them, a point of no small importance. Ever since the 1960s, landowners, oil companies, conservationists, and lawmakers have all been locked in battle over the Atchafalaya's future, a struggle that has hinged on how nature ought to be classified and named. Down in the delta, where the earth looks watery and the water earthy, where land and water come together in strange ways, it was to be no simple task to determine nature's identity. There is a great deal at stake—far more than one might think—in a name.

How does the language of property work to possess nature? What are the consequences of changing the natural

world into property? How well can we capture nature, in all its fluidity and chaos, with a name? With such questions in mind, we venture below into the symbolic life of property.

The ATCHAFALAYA is truly a modern river.^[1] Born sometime around A.D. 1500, the point when historians say that history became—in a word—modern, the Atchafalaya grew to be the most important distributary (bayou) of the Mississippi River. The Mississippi itself has done a good deal of wandering in its day; it has changed course three times over the last fifteen hundred years. Sometime about five hundred years ago, a loop of the Mississippi meandered westward and broke into the Red River basin, giving birth in the process to the Atchafalaya. Modernity and hydrology came together for a brief moment.^[2]

Placed as it was, the Atchafalaya soon became choked with logs, trees, and whatever else came pouring down the Red and Mississippi rivers. Near the head of the Atchafalaya, the debris piled up to form a raft that stretched downstream for roughly forty miles. But beginning in 1831, the raft stopped growing when channel changes were made upstream where the Atchafalaya, Red, and Mississippi rivers came together. Those changes stopped both debris and water from flowing downstream, causing the Atchafalaya to grow smaller. It is said that the Atchafalaya in 1839 could be crossed with the aid of a mere fifteen-foot plank. Barely more than three hundred years old, the Atchafalaya teetered on the verge of hydrological death.^[3]

Then in 1840, the state of Louisiana began dismantling the river raft. It did so to improve water transportation between the Mississippi and the region farther west, rescuing the Atchafalaya's future in the process. The job of tearing apart the raft was not completed until 1861, but when it was

done, the Atchafalaya was given new life as it now had the capacity to divert increasing amounts of water from the Mississippi to the Gulf of Mexico. Indeed, it became clear that, left to its own devices, the Atchafalaya would eventually capture the entire flow of the Mississippi, leaving Baton Rouge and New Orleans stuck in a tidal backwater. The way the numbers work, a trip down the Atchafalaya to the Gulf is roughly two hundred miles shorter than the same trip down the Mississippi. It seemed inevitable that without some kind of human intervention the Atchafalaya would assume a new identity as a reincarnated Mississippi River.

By the twentieth century, the Atchafalaya had gone from being a diminutive stream to a full-fledged distributary of the Mississippi. And it continued to enlarge, especially after the devastating 1927 flood, which drove over a quarter of a million people from their homes and inundated millions of acres of land.^[4] The disaster prompted the federal government to pass flood control legislation in 1928 for the Mississippi valley. The U.S. Army Corps of Engineers then set off to tame the waters of the region. Building miles and miles of levees, dredging millions of cubic yards of earth, the corps tried to expand the carrying capacity of the Atchafalaya so that when the next flood struck, the river could be used to handle the Mississippi's overflow. Seeking to address the need for flood control, while also wary of the Atchafalaya's tendency to run off with the entire Mississippi River, the corps had its hands full, dredging here, building there. Over the course of several decades, the corps gave the entire land- and waterscape a massive reworking, a tremendous face-lift that sketched out a new identity for the Atchafalaya.

But in 1952 there came a prediction that left the corps anxiously scratching its collective head. According to a

Atchafalaya Basin

study prepared by the corps itself, sometime before 1975 the Atchafalaya would become the new route for the Mississippi River. With no time to lose, the corps started building structures to forestall that eventuality. In the meantime, roughly 25 percent of the yearly flow of the Mississippi was going down the Atchafalaya, and that number would grow higher during the 1950s.^[5] But more than just water was washing down the Atchafalaya. With the water came whatever sediment happened to be in the river at the time. The amount of such sediment was hardly inconsequential, not with the Mississippi River basin draining 41 percent of the continental United States plus two Canadian provinces for a total of over a million square miles. A Kansas farmer who threw seed on his land before a heavy rain was likely never to see that seed again, nor for that matter was his counterpart in Iowa or Nebraska who did the same. For that seed and more was headed south to bayou country where it would either settle or flow out to the Gulf of Mexico. Tons and tons of silt and sediment found its way into the Atchafalaya basin, especially after the 1930s when the federal government finished an extensive dredging project that carved a single channel forty feet deep through the river above Grand Lake. The newly dredged channel increased the amount of water and silt that now coursed into the lower part of the Atchafalaya basin.

That water, loaded with the remains of the Mississippi watershed, then made its way to Grand and Six Mile lakes. Together, the lakes acted as a vast stilling basin. As the water moved through the lakes, they slowly filled up with silt. Between 1930 and 1952, more than sixty square miles of new land appeared within the lake, so much land that one could now rightly wonder whether the name "lake" made any sense at all. The average sediment load passing by

Simmesport, Louisiana, at the head of the Atchafalaya, was more than a quarter of a million tons per day between 1964 and 1974.^[6] That is a lot of material, enough to make these lakes slowly vanish in a single lifetime. Seventy-eight-yearold Alcide Verret, who still hunted squirrels for his breakfast in 1979, had this to say about the changing nature of the Atchafalaya basin.

Lord, how this swamp has changed! Years back I could stand on the shore of Grand Lake and barely see across to the other shore. Just open water. Why that lake was so big they had to have lights to guide the boats. Now it ain't nothing but willer bars and silt. All these young people are crying, "Save the Atchafalaya." Hell, ain't nothing left to save!^[7]

The Atchafalaya River may well be a modern river. But beginning in the 1930s, it started to undergo a fundamentally postmodern experience  a crisis of meaning and identity. It looked much like a river might for its first hundred miles or so. Then the trouble began as the river approached what some now called "the Grand-Six Mile Lake segment." Before the dredging done in the thirties, the river, for roughly fifty miles north of Grand Lake, had dispersed into many small, shallow streams that ultimately emptied into the lake. With the dredging of a single channel through this area, the nature of this part of the river changed, and so did the look of Grand and Six Mile lakes. What were once termed lakes were by the middle decades of the twentieth century hardly so any longer. The Corps of Engineers had worked a massive disappearing act, a vast series of manipulations that had stolen the identity of this part of the basin right from under it.

Meanwhile, the culture within the basin was changing as

well. By the twenties, in what was once the heart of a multimillion-dollar lumber industry, loggers were cutting the last of the region's red cypress.^[8] With the cypress swamps now cut over, entrepreneurs had nowhere left to go but down, beneath the now barren land to the oil and gas reserves below. The discovery of oil in the swamps along Bayou Teche early in the twentieth century brought oilmen and their companies into Louisiana, eager, calculating, and full of hope as they drilled down into the earth. The search paid off, and by the thirties, Louisiana ranked as one of the most productive oil-producing states in the nation. There was oil under Grand and Six Mile lakes, or what was left of them, and some of America's biggest corporations—Gulf, Texaco, Amerada, and others—wanted to own and profit from it. The problem was that the oil lay beneath an uncertain terrain, under land that was slowly emerging as silt poured down from the north. It was by no means clear who owned the newly created land and the oil below. The oil boom and the fast-changing land- and waterscape had combined to bring oil companies and private landowners into a struggle with the state over who had the legal right to the lucrative property.

That struggle was mainly over how to name nature. The names inscribed on Louisiana's waterscape—put there by cartographers and explorers who had ventured through the region in the nineteenth century—produced nary a word of dissent or objection and would have continued along this peaceable path were it not for an obscure statute that lay buried in the Louisiana Civil Code. Article 509, enacted in 1870, reads in part, "The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion." Title to the alluvion belonged to "the owner of the soil situated on

the edge of the water."^[9] Under the code, the legal meaning of alluvion seemed clear: accretions that had formed on the shores of rivers and other streams. Much less clear was what constituted such bodies of water. Article 509 thus raised the question of how water would be classified under the law. If Six Mile Lake was indeed a lake, then the statute would not apply and the state would retain title to the newly formed land. For no one disputed the state's title to the bottoms of all navigable waters, a property right that it held from 1812 when Louisiana joined the Union.^[10] Otherwise, if Six Mile Lake was understood to be a river or stream, the oil companies and private landowners (from whom they leased land) would gain title to the new oil-rich property.

A lot more than just oil revenue was tied up in the identity of this water. Beginning in the sixties, as the Louisiana courts struggled to divide lakes from streams, the curtain went up on what would be a long battle over the Atchafalaya basin's future.^[11] In 1963, the Corps of Engineers proposed enlarging the main channel of the Atchafalaya to neutralize the sedimentation problem and enhance the river's flood control capacity. That plan worried sportsmen and conservationists, who feared for the basin's fragile habitat. Later in the decade the Louisiana legislature endorsed the creation of a national recreation area to protect the region's environment. Yet the creation of any state or federally regulated area would hinge on wresting control of the basin away from private landowners along Six Mile Lake and elsewhere. Call it a lake and state coffers would jingle with the extra oil revenues, not to mention the control the state would have over the region's ecological destiny. Call it a stream and private landowners would experience a windfall, not just in oil but in the money the state would have to pay them should their land be taken by eminent domain.

"Tell me how you classify," wrote Roland Barthes, "and

I'll tell you who you are."^[12] Barthes's point was that there are always great stakes involved in how things are ordered. With the Atchafalaya's "lakes" filling in with silt, their identities unclear, the Louisiana courts searched for the right nomenclature to describe the state's waterscape. And so did the parties in the legal cases that developed as they strove to answer something many had thought they had learned in grade school. What is a lake? turned out to be no simple question. For how did one set about proving the identity of a body of water, much less one that was in the process of disappearing?

SIX MILE LAKE became a stream in 1964; the decision in State v. Cockrell said so.^[13] The case began five years before when the state of Louisiana and Gulf Oil Company, which leased mineral rights from the state, brought an action for trespass against Ernest Cockrell, Jr., a Texas oil entrepreneur, and the Southern Natural Gas Company. Cockrell had drilled an oil well near the southern shore of Six Mile Lake in 1959. The state claimed ownership of the land on which the well had been drilled, land it believed to be part of the bed of Six Mile Lake. The defendants, however, argued that the well had been drilled on alluvion. In their view, Six Mile Lake was a river or other stream under the meaning of article 509.

Prior to the court of appeal's decision, the case was tried before Judge E. L. Guidry in the district court of the Parish of St. Mary.^[14] Witnesses began testifying in March 1960. There were many witnesses called to the stand, but by far the most important ones were the scientific experts employed by both sides to identify the body of water in question. The defendants' star witness in this regard was Reinhard Steinmayer.

Not just any old geologist but the man who founded Tu-

lane University's geology department in 1922, Reinhard August Steinmayer cut a very impressive figure. He was sixty-eight when the Cockrell trial began. A highly regarded academician, a consulting geologist, and above all, an expert on sedimentation in lakes, Steinmayer was exactly the man the defendants were looking for. When he was called to testify, the defendants' lawyer, S. W. Plauche, wasted no time in getting to the point. In the months that you spent studying the Atchafalaya River basin, Plauche asked Steinmayer, did you reach an opinion on whether Grand-Six Mile Lake was a lake or stream? Yes, indeed he had, replied Steinmayer. That lake was a stream. The Grand-Six Mile Lake segment, Steinmayer believed, was a "running body of water." From this it followed "that the Atchafalaya River—and I am referring now to the lake segment—is both competent and has the capacity to transport and did transport a considerable amount of material." He had other reasons to support his conclusion. For example, he found that a thalweg, or channel, existed in the area. Thalwegs apply to running bodies of water, Steinmayer explained; he had never heard the term used in connection with a lake. In studying historical documents dating back to the eighteenth century, Steinmayer discovered that the area in question had maintained a "sinuous shape," again suggesting "that it was formerly a running body of water that meandered in its channel." He also noted that lakes have waves and deposits of peat on their bottoms, but he could find evidence of neither in the Grand-Six Mile Lake segment. There seemed to be no doubt about it: What Steinmayer had on his hands was a stream.

That was not, however, a view shared by Leo Odom, who testified for the plaintiffs. A civil engineer who had once worked for the Corps of Engineers in New Orleans, Odom believed the body of water in question was a bona fide lake.

From the outset of his testimony, Odom adopted a historical tack. He reviewed for the court what had happened in the Atchafalaya River basin over the last century or so. He explained how the discharge of the Atchafalaya had grown after 1839 as efforts were made to remove the river raft that blocked the progress of water downstream. He noted how in the 1930s the corps had excavated one hundred million cubic yards of earth over a fifty-mile span north of Grand Lake, causing more water and material to flow down into the lake area. But he also pointed out that whatever filling in had taken place, Six Mile Lake was still three miles wide and Grand Lake roughly eight miles at its widest point. In contrast, the Mississippi River at Baton Rouge was a mere two thousand feet across. Those statistics presumably proved that Grand-Six Mile Lake was a lake, at least if one took width to be what divides lakes from streams. Nor could he find any signs in the area of natural levees, the buildup that can occur where a stream flows into a lake, thus further supporting his contention. But he did, contrary to Steinmayer, find wave action, exactly as he expected of a lake. All of this added up to one inescapable conclusion: These bodies of water were just what their names said they were.

Of course, Plauche, the defendants' attorney, was unprepared to accept such a conclusion. In his cross-examination, he forced Odom to admit the presence of a substantial current in the water. There was no denying that fact. Then he tried to undermine Odom's point that a width of three or more miles was indicative of a lake. Citing from no less an authority than the Times Atlas of the World, Plauche administered a geography lesson.

PLAUCHE: The Hudson River, forty miles upstream from its mouth, at Bayonne, is three and a half miles wide. You apparently were not aware of that?

ODOM: That's right.

PLAUCHE: Is that right?

ODOM: I didn't know how wide it was. I know it has a wide place there in it.

PLAUCHE: You know it has a wide place up there? Do you know that the Delaware River, twenty-five miles upstream from Cohansey Creek to Delaware Strait, [is] two and one-half miles wide. Did you know that, sir?

ODOM: No.

Unimpressed by Odom, Judge Guidry, who delivered the district court's opinion in 1962, embraced Steinmayer's views instead. And it is no wonder that Guidry found Steinmayer more credible. For his testimony neatly matched what Guidry took to be the meaning of the words lake and stream. Where did Guidry turn to find the meaning of these words? To perhaps the most obvious place of all, the dictionary. Using a variety of law and other dictionaries, Guidry concluded "that the basic difference between a river or other stream and a lake is that, in the one case, the water has a natural motion or current, while in the other, the water in its natural state is substantially at rest, that is, without a perceptible flow."^[15]

There one had it. In one body of water a current existed; in the other there was none to speak of. It was that simple. Steinmayer, of course, had discovered a running body of water. So had John P. McDowell, assistant professor of geology at Tulane University, who also testified. Odom had noted the presence of a current. Even the plaintiffs' own witnesses, Columbus Voisin and Ervin Anslum, men who had hunted and fished in the area, admitted the fact. There was indeed a current in that body of water, and what flowed—if you will forgive me—from this fact seemed clear to Judge

Guidry. "Regardless of the alleged facts and arguments advanced in support of the proposition that Six Mile Lake is a lake and not a stream, I am constrained to hold that it is a stream and not a lake in the technical sense of the law."^[16]

For the moment, the decision stopped the plaintiffs from pursuing their cause. But it did not stop the silt that was rushing into the Atchafalaya basin from filling in what the law had now ruled to be a stream. Guidry's decision did not sit well with the state of Louisiana. It had much to lose if the decision stood—thousands of acres in the Atchafalaya basin, one of the country's most beautiful wetlands, not to mention lots of money in oil revenues. The plaintiffs felt that the lower court had simply adopted Steinmayer's views wholesale. Steinmayer, as the plaintiffs saw it, had relied largely "on the speed of water in Grand Lake . . . but he did not pretend to lay down a rule as to a 'speed limit' of water which results in the classification of a lake as a stream." If the waters in question were not lakes, wrote the plaintiffs on appeal, "then one must say there is just no such thing in Louisiana."^[17] There were lakes, to be sure, in Louisiana. There just were not a lot of them that could be legally defined as such—at least that is one way of understanding the lower court's decision in Cockrell.

Cockrell was not the first time that the Louisiana court system had wrestled with the identity of a body of water. Similar questions had arisen in State v. Erwin, a case involving Calcasieu Lake in the extreme southwest corner of the state. Although the Calcasieu River flowed into and through the lake, the Supreme Court of Louisiana in 1931 ruled "such a vast expanse of water as Calcasieu Lake as being in fact a lake."^[18] But the court cited no case law to support this conclusion, and thus the "vast expanse" rule lay open to criticism.^[19]

The initial blow to Erwin came in 1943 with Amerada Petroleum Corporation v. State Mineral Board, or First Amerada. That case involved Arm of Grand Lake, a body of water west of Lake Chicot at Grand Lake's northern end. Citing the trial court's opinion, the supreme court held that a lake is a stagnant body of water without current. A river differed from a lake, the court continued, "in that it flows, more or less, in a permanent bed or channel between defined banks or walls with a current, whereas streams are bodies of flowing water including rivers."^[20] Without explicitly overruling Erwin, the court shifted from an emphasis on physical dimensions to a focus on the current. And in 1946, the court reaffirmed this new standard in Amerada Petroleum Corporation v. Case (Second Amerada).^{[ 21]}

When the state and Gulf Oil appealed the lower court's decision in Cockrell, these earlier cases were construed against them. The Erwin case had indeed been overruled, chiefly by First Amerada, concluded the court of appeal. It was the current, or lack thereof, the court believed, that mattered most in determining the identity of bodies of water. The court noted that Steinmayer, who based his view on both historical maps and personal observation, believed Six Mile Lake was a stream from before 1812 until the present. And the court agreed. Impressed, perhaps overly so, with Steinmayer and his testimony, the court found that Six Mile Lake had a current, that it had a thalweg or channel, that it lacked peat deposits, and that it once had natural levees—all the major signs of a stream.^[22]

If one believed Steinmayer and the court, Six Mile Lake had long been a stream. But what evidence supported this conclusion? One person the court drew on for support was William Darby. Darby had ventured through the Atchafalaya basin in the early nineteenth century. In 1816, he pub-

lished a map of Louisiana along with a "geographical description" of the state. There was little question that Darby observed a current in the Atchafalaya. Darby, the court noted, had written that "the rapidity of the current of the Atchafalaya, and the quantity of water drawn by its efflux from the Mississippi, is almost inconceivable."^[23]

The court of appeal also mentioned the work of James Leander Cathcart. A few years after Darby published his work, Cathcart too journeyed to the Atchafalaya basin. A navy agent acting under the authority of the U.S. government, Cathcart went there in search of timber to build new military ships. While in Lake Chetimaches, the name then in use for Grand and Six Mile lakes, Cathcart observed a current of one mile per hour. The court of appeal then was able to show that a current existed in Six Mile Lake long ago, making it a stream under the law.^[24]

A current may well have existed in the body of water back in the early nineteenth century. But did that alone make it a stream when Louisiana entered the Union in 1812? What should be made of the fact that Cathcart called the body of water Lake Chetimaches, or that Darby used that same inscription on his map of the area? Lafon's map of 1805, Graham and Tanner's map (1834), Graham's map (1838), Bayley's map (1853), all submitted into evidence by one side or the other in the case, inscribe the water as a lake.^[25] To be sure, the names given this area vary: Lake Chetimaches, Lake Sale, Grand Lake, Grand Lac, but a lake no less. It was not, however, the names on these maps that interested Steinmayer or the court of appeal. Mere names did not concern them. Their minds were fixed on the current, a feature that if present proved—according to Steinmayer and his scientific standards—that this body of water was a stream, despite what others in the past had chosen to call it.

All that was left standing between Steinmayer, the Louisiana courts, and total unanimity on what constituted lakes and streams was Judge G. Caldwell Herget, who dissented from the court of appeal's decision.^[26] Steinmayer, Herget seemed to say, could believe whatever he wished about lakes and streams. What was important was the "plain meaning" of such words. The Louisiana Civil Code itself advised that words were "to be understood in their most usual signification." When article 509 pertaining to alluvion was adopted, wrote Herget, all surveys and maps "alluded to the body of water herein involved as a lake." It appears illogical to me, he remarked, that "the Legislature intended to classify such body of water as a river or stream." "Indeed," he continued, "to accept the definition accorded to the word 'stream' by the majority would mean that the Atlantic Ocean through which the Gulf stream flows at a rapid rate and without question makes imperceptible accretions on the shores thereof is not in fact an ocean but a stream."^[27] Surely nobody, not even the grand master of streams, Steinmayer himself, would be willing to go that far.

Perhaps better than anyone, Herget sensed that this case was a battle over meaning and interpretation. How was it possible to classify a body of water when there were so many different ways of investing that water with meaning? Meanings piled up, one upon the other, as cartographers, travelers, surveyors, and geologists all put forth their own ideas about what constituted a lake or stream. Sometimes those meanings overlapped to form some common ground. And sometimes they did not. But it is the history of those different meanings that may well be most important. For in that history lay a simple truth. None of the meanings given the words lake and stream adequately represented the body

of water in question. In regard to classification, Michel Foucault once wrote, "We shall never succeed in defining a stable relation of contained to container."^[28] Of course, that has never stopped anyone from trying.

ON JUNE 10, 1974, Six Mile Lake became a lake—again; or so ruled the Supreme Court of Louisiana in State v. Placid Oil Company.^[29] The case had a very long history. In 1963, while the courts were still wrestling with Cockrell, the state of Louisiana and its lessee, Gulf Oil Company, filed another action for trespass, this time against Placid Oil and J. Ray McDermott & Company, another oil firm. The year before, the defendants in the suit had drilled three wells west of the Cockrell Well in Six Mile Lake. Over the next year, they produced more than half a million dollars worth of oil. The state was asking for the return of that money and, more important, that it be declared the owner of the property on which the wells had been drilled. The plaintiffs in this case were the same as in Cockrell, and although the defendants were different, the issues involved were largely the same. The stakes, however, were higher. As the case made its way through the courts, the debate over the future of the Atchafalaya began in earnest. By the end of the sixties, state sponsorship of a plan to turn part of the Atchafalaya swamp into a national recreation area focused attention on the newly created land along Six Mile Lake. It would save the state a whole lot of time and money if it already owned the new land, money that would fall directly into the hands of landowners and oil companies should they be declared in possession. So once again, the Louisiana courts struggled with the identity issue to see who would retain title to the oil-rich property.

The case was tried for three weeks in 1967 before Judge

Edward A. de la Houssaye III. Not until three years later did he make his decision. Ruling in favor of the defendants, he determined Six Mile Lake to be a stream in accordance with Louisiana law.^[30]

Once again Reinhard Steinmayer made a court appearance and laid out the same familiar story about Six Mile Lake's status as a stream. Put simply, it was a running body of water that flowed in a channel and had the ability to transport sediments. Indeed, it had all the features that Steinmayer expected a stream to have. Historical documents— travelers' accounts and survey reports—noted the presence of a current. It meandered, a point Steinmayer developed by using a series of maps, laying them one upon the other. It sloped downstream and had a thalweg. It had a great discharge capacity as well as natural levees. It had no significant signs of any peat deposits. Moreover, no less an authority than the Corps of Engineers considered it a stream. Steinmayer noted that the corps had continuous river mileage figures for the Atchafalaya River. His point was that they did not break off the numbering when they reached the Grand-Six Mile Lake segment. Instead, they forged ahead, a full one hundred thirty-five miles from the start of the Atchafalaya River to the Gulf of Mexico.

Although he made a convincing witness, Steinmayer's testimony was not without its faults. Not long after taking the stand, Steinmayer made a slip of the tongue. The Corps of Engineers, he said, has considered Six Mile Lake to be "a lake—I mean, as a running body—correction—running body of water." Is it possible that deep down, somewhere in his unconscious, the indubitable Steinmayer felt a shadow of a doubt?

In need of a witness to match Steinmayer in expert ability, the plaintiffs this time chose Charles R. Kolb. A geol-

ogist employed by the Corps of Engineers since the 1940s, Kolb had helped to prepare one of the most important documents ever written on the Atchafalaya basin, Geological Investigation of the Atchafalaya Basin and the Problem of Mississippi River Diversion. That was the study published in 1952 that predicted the Atchafalaya would capture the Mississippi sometime before 1975. Well aware of what the corps had done in the way of dredging and other work in the basin, Kolb had some strong opinions of his own about the identity of the water in question. Relying on what the basic geological textbooks said, Kolb defined a lake as "a fairly sizeable body of water that occupies a depression in the earth." A lake, he added, "can have an outlet on one or more sides or it can be entirely closed." Under this definition, there seemed little question that to his eye, Six Mile Lake was exactly that, a lake.

Kolb thought Steinmayer was all wrong on the lake versus stream question. Steinmayer said a high volume of discharge flowing through a body of water indicated a stream. Kolb offered statistics to show that this was not always true.^[31] Steinmayer believed the presence of a current suggested that Six Mile Lake was a stream. Kolb argued that currents could be present in both lakes and streams. Steinmayer attached great importance to the absence of peat deposits. Kolb argued that many large lakes in Louisiana had no peat in them at all. Steinmayer pointed to the corps' river mileage figures; Kolb called Steinmayer's point "presumptuous." And Kolb ought to have known, having worked for that institution for over two decades. On down the list Kolb went, offering in the end his own version of what constituted a lake. If Grand-Six Mile Lake was wider than the Atchafalaya River that entered it, which it was, if the current decreased as it flowed into Grand Lake, which it did, if av-

erage channel volume was diminishing, which it was (from the filling in of the lake area), and if the sediment load decreased in a downstream direction, which it did, then what you had, plain and simple, was a lake.

Judge de la Houssaye, however, had this to say about Kolb and his opinions: "The Court has carefully considered the testimony of Dr. Kolb, and finds that it is not entitled to much if indeed any weight." Kolb had erred in one very important regard. He had set forth his own standards of"lakeness," not those sanctioned by Louisiana law. Yet it was what Louisiana jurisprudence took to be a lake that counted. And under that law, as lately articulated in the Cockrell case, if a body of water had a current with the ability to form accretions, then it was a stream. In fact, Kolb himself had admitted the presence of a current, a substantial one, in Grand-Six Mile Lake. Kolb, as de la Houssaye noted, had tried to argue that the presence of a current was something that could be found in either a lake or a stream. "This may be," wrote the judge, "but in any case in Louisiana wherein this issue is raised, where the facts establish that a particular water body does have flowing currents of such power and velocity as to form accretions, then that water body is going to be judicially determined to be a stream until such time as the Supreme Court or the Legislature changes these criteria."^[32] Case closed.

It would take another four years before the supreme court changed its mind. In the meantime, the plaintiffs appealed, only to lose again. Affirming de la Houssaye's decision, the court of appeal cited the earlier decisions in First Amerada and Cockrell to show that a body of water with a current capable of depositing soil was a stream under Louisiana law.^[33]

Only Judge Paul B. Landry, Jr., chose to dissent from the opinion.^[34] It was an odd—and some might say brave—dis-

sent as Landry had been the author of the court's opinion in Cockrell. Much more impressed with Kolb's testimony than his colleagues on the court, Landry reviewed it to show how the basin had been manipulated by engineers and others over the last century or so. But what he wanted most, it seemed, was a return to the rule laid down in Erwin. To his mind, the "vast expanse" rule articulated in that case was still good law. As he put it, "large, expansive bodies of water, having relatively shallow channels and ill-defined banks, are characterized as 'lakes' notwithstanding a river or stream flows through it." Thirty miles long and three to ten miles wide, Grand-Six Mile Lake was in its "natural condition"—before, that is, the corps and others got through with it—"more characteristic of a lake than a stream."^[35] In 1964, at the time of Cockrell, Landry had contemplated this same body of water. Then he thought he saw a stream. Now after eight more years of siltation, as GrandSix Mile Lake was slowly disappearing, Landry looked again, reviewed the history of this body of water, and found it to be a lake. Or maybe that was just wishful thinking on his part.

Their plea rejected by the court of appeal, there was only one other place for the plaintiffs to turn in their struggle—the state's highest court, the Louisiana Supreme Court. With over one hundred thousand acres of property ultimately at issue, the stakes were high, the legal briefs voluminous. William Guste, the state attorney general, reminded the court "that it is the future of the Atchafalaya basin as a great wilderness that is at stake, one of the very few remaining in the State and in the country."^[36] That future hung in wait as the court tried to sort out what kind of water body this really was. It was hardly an easy job, and when it was all over there would still be no unanimity.^[37]

The opinion in the narrow four-to-three decision was written in 1973 by Judge Walter F. Marcus. He saw it as the court's task to determine the identity of Grand-Six Mile Lake when Louisiana entered the Union in 1812. In making this determination, Marcus felt that the rule laid down in Erwin— holding a "vast expanse" of water to be a lakewas "unworkable and arbitrary." "The use of such a standard," as he put it, "would make it next to impossible to determine when a water body was wide enough to be classified as a lake and narrow enough to be considered a river or stream."^[38] And in any event, he continued, Erwin had been overruled by First Amerada, which established the presence of a current capable of forming accretions as the standard. Legal precedent and scientific evidence, mostly that of Steinmayer, suggested that the court of appeal be affirmed, or so thought Marcus and the others who joined him in the ruling.

To Judge Mack E. Barham, however, the majority opinion was not merely wrong. It was nothing short of foolish, not to mention "catastrophic" in its effect "upon the public fisc, our natural resources, our ecology, our environment, and the public in general." Barham was stunned by what his colleagues on the court had done. "The majority has decided that these cases," he wrote, referring to the earlier court decisions on lake classification, "force a conclusion that a lake is not necessarily a lake, that a lake may be a river or stream." Humbug, he thought. "Amazingly, the majority has said, oh, of course, Grand Lake is not a river (a large body of water) it is a stream (a very small running riverlet or creek). It is impossible for my mind to conclude that a body of water, which is as much as 30 miles in length and 10 miles in width, is a mere stream or riverlet." For his mind and lots of others we might suppose. Not a geologist, a hy-

drologist, or any sort of scientist for that matter, Barham could nonetheless say what constituted a lake. And he could say it forcefully.

I am of the opinion that lakes may exist even though they have current consistently in a portion of their confines. I am of the opinion that lakes exist even when rivers or streams source them and empty them continuously. I am of the opinion that the geological information about velocity, capacity, power, force and thalweg, do not change a lake into a stream.^[39]

But say what he would, Barham alone could not change the majority ruling. Although two of his fellow jurists, Albert Tate and Pascal Calogero, joined him in dissenting, the rule still stood: If it had a current and could carry silt, it was for all legal intents and purposes a stream.

Defeated once again, the plaintiffs marched back to their briefs and in a last-ditch effort forced a rehearing of the case. The briefs continued to pile up, including one especially worth noting, by W. Scott Wilkinson on behalf of the Placid Oil Company, a defendant in the suit. Wilkinson took issue with Barham's dissent in the original hearing. As he understood it, Barham was "saying that the name of a water body determines its characteristics and the laws applicable to it." Wilkinson knew better, or thought he did. "This is just the reverse of good logic, because in all things it is the nature and characteristics of a thing that determine what it is. From all of its parts we determine what a thing is."^[40]

If it were only that simple. What Wilkinson overlooked was the enormous economic and political stakes involved in the case. Never mind that if the area in question were declared a stream, Dow Chemical Company would gain tre-

mendously at the state's expense, having filed a similar suit alleging title to over fifty thousand acres of the former Grand Lake. Never mind that while the court was reconsidering the matter, Louisiana's governor, Edwin Edwards, raised the political stakes by declaring the newly formed land at issue part of a state wildlife refuge. One newspaper called Edwards's action "an empty gesture."^[41] But it was, in fact, a solid indication that the governor wanted the body of water to be pronounced a lake.

No doubt such matters were on the judges' minds when they reheard the case. As it turned out, the new opinion, issued by Chief Justice Joe Sanders, overruled Cockrell, the earlier Placid decisions, and Reinhard Steinmayer and his views on lakes. According to Sanders, the court had been mistaken in two respects. It had erred in holding that First Amerada had overruled Erwin, and it had given "undue weight" to the presence of a current in classifying water bodies. How then would the state's judiciary proceed on the matter of classification? The court elected a more pluralistic route, supporting a "multiple-factor test." Size (especially the width of the stream), depth, banks, channel, current, and last but not least, "its historical designation in official documents" were all to be considered. Such a standard had at least one virtue: It attached some importance to how the water had been named. The decision can be understood to mean that names really do matter. With the new multiplefactor test, Grand-Six Mile Lake became a lake again under the law. Its physical features suggested such a classification, and so did the fact that from early on it had "been designated on official maps as a lake."^[42]

More than anyone, it was Justice Sanders who sealed the state's victory. When he first heard the case in 1973, Sanders ruled the water a stream; six months later, he changed

his mind. Some years before the ruling, Sanders wrote in an article entitled "The Anatomy of Proof in Civil Actions" that justice depended on "the best fact finding" our judicial system could offer.^[43] The facts for him were out there in the world; all judges and juries need do was discover them. But Sanders's flip-flop on the lake versus stream question suggests that, on the contrary, legal facts are not discovered but created.^[44] Moreover, his ambivalence in the case embodies the very indeterminacy of trying to neatly classify the natural world.

As the water slipped back into its older identity, Attorney General Guste summed up what it would mean for the citizens of Louisiana. The decision was a "landmark," he said, that "will result in many millions of dollars of additional income to the state." Just as important, it would allow the state to preserve the ecology of the region's water bottoms without having "to buy rights or obtain permission for public use of these properties" from hundreds of private landowners.^[45] And finally, the decision left the state in a much better position to defend its title to the new land against Dow Chemical Company.

Still not quite ready to give up the fight, however, the defendants sought yet another rehearing of the case. The "multiple-factor test," wrote Wilkinson, "is not authorized or approved by any law or court decision or any text book on physical geography, geology, or other scientific publication." It was instead, Wilkinson continued, "a figment of Dr. Charles R. Kolb's imagination—Plaintiffs' so-called expert." It was, of course, no more a figment than Steinmayer's, or anyone else's view for that matter. But what really annoyed Wilkinson was the court's decision to include "historical designation" as a valid classifying standard. Wilkinson put his point of view thus: "What's in a name? Par-

adise, Arizona, is as hot as hell in the summertime, and Hell's Hole in Nevada freezes over in the wintertime! The law does not attach any importance to a name which misnames the object to which it is applied." Even the U.S. Supreme Court, he claimed, "stated that the names applied to water bodies do not determine their character." As Wilkinson concluded, "because some old-time native or past historian attached the name of 'lake' to the water body here involved does not make it a lake when it possesses all the characteristics of a stream."^[46]

Of course, an old-timer, even one who happened to be a historian, was as able to invest the waterscape with meaning as Reinhard August Steinmayer. Perhaps even more able. Whether someone like Wilkinson or his colleagues chose to credit how these people named the waterscape is another matter. The tendency to trust in science, to somehow imagine that a man like Steinmayer possessed of a lifetime of technical knowledge and experience could settle a simple factual dilemma—is it a lake or not?—is tantalizing. It is also a misplaced faith. For over a decade, Steinmayer had cornered the market in lakes and streams; his definitions, adopted by the courts, ruled. Now his monopoly on the subject had come to an end. It was not so much Kolb who triumphed here, as Wilkinson suggested. The victors, if such can be spoken of, were a far more disparate lot. They were countless mapmakers, surveyors, and others, their names obscure, who had somehow come to imagine this body of water as a lake and inscribed it as such. The words of the French critic Tzvetan Todorov are especially apt: "To represent or to say a thing is already to bring it into existence."^[47]

THERE MUST BE SOMETHING about Louisiana water that makes people curious about names. Not long before the

courts started wrestling with the identity issue, the novelist Walker Percy wondered how names come to mean what they do. As he sat thinking one Louisiana summer, sometime in the 1950s, Percy recalled a well-known scene from Helen Keller's life, the one in which Miss Sullivan puts Helen's hand under a waterspout, spelling the word water in her other hand. That was the day Helen Keller learned that names have meaning. If only one knew what really went on that day with Helen Keller, thought Percy, one could perhaps discover the key to language. Clearly something important had taken place. The word water was no mere sign; it was now, to Helen at least, a symbol, a word that denoted the substance called water.^[48]

Louisiana is a big place, and who knows if Percy ever met his neighbors there—Wilkinson, Steinmayer, or anyone else involved in the Six Mile Lake debate. But if he had, Percy might have pointed out that naming is not a straightforward process. Naming, as Percy would have it, consists of a pairing, of the apposition of name and object, of symbolizing entity and symbolized. But it is the essence of that pairing, the relationship between the name and the object it represents, that Percy wondered about. "The symbol," he wrote, "has the peculiar property of containing within itself in alio esse, in another mode of existence, that which is symbolized."^[49] When a body of water is called a lake and has for many years been known as such, that meaning tends to harden, to develop a rhetorical force all its own, and a powerful one at that. It would not be easy to call it something else, even if it was just for the purposes of legal classification (a common strategy in the briefs). The symbolic world knows no such boundaries.^[50]

"The notion of giving something a name," Susanne Langer has written, "is the vastest generative idea that ever was conceived."^[51] To name something is a way of comprehending

it. But naming is more than simply a way of knowing. It is also an act of appropriation and control. And it is this aspect of the naming process that is central to law and property relations. To be sure, the nineteenth-century surveyors and cartographers who trudged through the Atchafalaya basin did so in search of knowledge about this obscure land. That, however, was not their only task. They were also on a mission of conquest, whether they admitted it or not. By the twentieth century, as a result of their work and that of others, that very same waterscape was a vast expanse of names, of such and such a lake, bayou, stream, and so forth. Could one sink an oil well in the midst of a nameless waterscape? Not under the strictures imposed by the economic culture of capitalism. To name is to know, but it is also to own.

Classifying and naming are part of what might be called the symbolic technology of property law. They fall into the same category as other symbolic acts that we use to declare our ownership over nature—surveying and marking boundaries, writing and registering deeds, and so forth. Names are used to order and mark nature so it can be owned. Of course, the interesting thing about names—something the participants in the legal cases learned in the end—is that their history can be extraordinarily important. Call something a lake long enough, let that meaning dominate, and it builds up a reality as real and authentic as the physical entity that rests out there on the ground, whatever it might look like at any given time.

Any name will do in the act of appropriation. But it is how well something, such as a body of water, is named that counts as far as property rights and the law are concerned. Names impose order on a disorderly natural world, but that world is so fluid and chaotic that it often defies classifica-

tion. No name, no matter how accurate, precise, or well chosen, will succeed in totally capturing and appropriating a physical reality 100 percent. Ownership over the earth is thus not as straightforward or commonsensical as one might think. Whatever the power of the law, in all its impeccable logic, it was unable to contain the contradictions that emerged in bayou country where nature (and the Corps of Engineers) pushed ownership to its limit. Let the area in question look like a lake and the law fancied it a stream; encounter a stream and the law says it is a lake. So much for logic and intuition.

"We order the world according to categories that we take for granted simply because they are given," writes the historian Robert Darnton. "We classify a Pekinese and a Great Dane together as dogs without hesitating, even though the Pekinese might seem to have more in common with a cat and the Great Dane with a pony. If we stopped to reflect on definitions of 'dogness' or on the other categories for sorting out life, we could never get on with the business of living."^[52] But think for a moment about the category of "lakeness," as we have, and see just how much living is dominated by the business of owning. Something to think about on a stroll around a lake.