Gulfport Sues Secretary of State Over Harbor Control

Travis M. Clements1

Recently, the City of Gulfport filed a lawsuit against Mississippi Secretary of State Delbert Hosemann, alleging that the Secretary of State lacks authority to execute state tidelands leases and collect revenue on behalf of the city-owned Small Craft Harbor.2 In its complaint, Gulfport alleges it owns and exclusively controls the harbor through a 1935 deed and authority granted under the Small Craft Harbors Act of 1935.

Background
In July 1935, Grace Jones Stewart, daughter of Gulfport co-founder Joseph T. Jones, executed a Deed of Conveyance to the City of Gulfport, conveying the property, lands, reclaimed lands, waters, and areas known as the Gulfport Small Craft Harbor (recently renamed the Bert Jones Yacht Basin). Located on the Mississippi Sound near the intersection of U.S. Highways 49 and 90, the grounds include the Small Craft Harbor and Jones Park, the largest public park on the Mississippi Gulf Coast. The Jones family imposed deed restrictions, requiring Gulfport to use the property for construction and maintenance of playgrounds, modern amusement purposes and recreational parks, and to construct and maintain a harbor for yachts, sail boats, and other watercraft. In the event Gulfport ceases these uses, the property reverts to the Jones family. When Grace Jones Stewart executed the July 1935 deed to Gulfport, it was not recorded until six months later. Gulfport explains the primary reason for this delay is that on December 7, 1935, the Mississippi Legislature enacted the Small Craft Harbors Act, an act for which Ms. Stewart lobbied extensively.
       The Small Craft Harbor and Jones Park experienced total destruction during Hurricane Katrina, and in the ensuing years, Gulfport spent $42 million renovating the facilities for public re-opening. In early 2011, the Secretary of State declared its intent to sign a harbor lease with Gulfport, claiming the water bottoms are state-owned tidelands. Gulfport refused to sign the lease, citing its authority to own and operate its own harbor under the Small Craft Harbors Act. The Secretary of State claims the Tidelands Act supersedes the Small Craft Harbors Act authority.

Tensions Between Two Laws
The central dispute in this lawsuit revolves around two Mississippi laws – the Small Craft Harbors Act and the Public Trust Tidelands Act. The Small Craft Harbors Act gives coastal cities along the Mississippi Sound or Gulf of Mexico the authority to own property “for the purpose of establishing, developing, promoting, maintaining, and operating harbors for small water crafts and recreational parks connected therewith within its territorial limits.”3 The act further requires that any improvements or new construction be maintained and operated under the city’s control.
      On the other hand Mississippi’s Public Trust Tidelands Act gives the Secretary of State control of all state-owned water bottoms and adjacent property subject to the tide’s ebb and flow (tidelands).4 The Tidelands Act grants authority to the Secretary of State to delineate the state’s tideland boundaries and enter into leases for use of public tidelands. Tidelands leases provide revenue to municipalities through boat-slip fees and commercial rent payments, and any lease funds collected from casino development go to the state’s Tidelands Fund for Coast Projects. The Tidelands Act requires all public projects of any governmental entity that serve a higher public purpose to be exempt from any tidelands use or rental fees. Higher public purposes include promoting conservation, reclamation, preservation of the tidelands and submerged lands, public use for fishing, recreation or navigation, or the enhancement of public access to such lands.

The Lawsuit
Gulfport alleges it has the exclusive right to operate and control its harbor by way of the Grace Jones Stewart Deed of Conveyance and under authority granted by the Small Craft Harbor Act and other laws.5 Gulfport built, later rebuilt, and has continuously maintained, owned, and operated a harbor and provided harbor access and recreational activities on the property for the past 75 years. In addition, Gulfport has made numerous improvements to the property over the years, including the addition of docks, slips, wharves, boat launches, piers, parking areas, pavilions, picnic and playground areas, and breakwaters.
      Although the Secretary of State claims the Tidelands Act controls, Gulfport explains that its use of the tidelands serves a “higher public purpose.” Citing recent Mississippi Supreme Court opinions, Gulfport asserts that tidelands follow the doctrine of public trust, and “the only way public trust lands can be disposed of is if it is done pursuant to a ‘higher public purpose,’ while at the same time not being detrimental to the general public.”6 Mississippi recognizes public trust purposes as including navigation, transportation, bathing, swimming, and other recreational activities.

Legislative Solution?
During the 2011 Legislative Session, the Mississippi House of Representatives passed a resolution that would have clarified discrepancies between the Small Craft Harbors Act and the Tidelands Act.7 Under the House Resolution, the Small Craft Harbors Act would continue to grant ownership and control of municipal harbors, ad­joining parks, structures, and areas to certain cities; the properties would not be under control or regulation of the Secretary of State. Furthermore, the resolution specified that the operation and maintenance of these facilities would be consistent with the “higher public purposes” intended by the Public Trust Tidelands Act. However, this resolution failed to pass the Mississippi Senate by a narrow margin, leaving these issues unresolved.

Conclusion
Gulfport is asking the court to declare that it owns and controls the Small Craft Harbor and that the Public Trust Tidelands Act does not supersede the Small Craft Harbors Act. Gulfport further asks that the Secretary of State be prohibited from asserting ownership or authority over the harbor, including the authority to enter into harbor leases on its behalf. However, the dispute with Gulfport has not stopped the Secretary of State from pursuing similar leases with other coastal communities. Using Tidelands Act authority, the Secretary of State recently signed harbor leases with the cities of Pass Christian, Bay St. Louis, and Long Beach, and Jackson County, Mississippi.

Endnotes
1.  2012 J.D. Candidate, Mississippi College School of Law.
2.  Complaint, City of Gulfport v. Sec’y of State of Miss., No. 11-01388(2) (Ch. Ct. Harrison Cnty. June 6, 2011).
3.  Miss. Code Ann. §§ 59-15-1 to -19.
4.  Miss. Code Ann. §§ 29-15-1 to -23.
5.  Complaint, supra note 1, at *4.
6.  Id. at *5.
7.  H.R. Con. Res. 133, 126th Leg., Reg. Sess. (Miss. 2011).

Recommended citation: Travis M. Clements, Gulfport Sues Secretary of
State Over Harbor Control, 31:3 WATER LOG 12 (2011).