Secretary of State Michael Watson says Attorney General Lynn Fitch ghosted him when he asked for help enforcing public tidelands leasing laws, and that her inaction is costing taxpayers and threatening a precious public resource as he hires a private firm to do the work.
“I write once again to express my concerns about matters in which we have requested assistance from your office to no avail,” Watson opened in a letter to Fitch on May 5. “… I have included a chronology below outlining our multiple attempts to obtain assistance from your office, as the state’s ‘law firm’ and its failure to act on behalf of my office to protect the state’s interest.”
Watson’s letter, obtained by Mississippi Today, goes on to outline how Fitch and her office for about a year ignored his requests for help in protecting property belonging to the Mississippi public.
“Having no solution and virtually no assistance from the AGO, I have no option except to retain outside counsel with the Tidelands funds to protect against these unauthorized uses,” Watson wrote to Fitch, adding that he had notified legislative leaders about the issue.
In a recent interview, Watson said Fitch since his May letter has approved him hiring outside lawyers. Watson said he is doing so at a cost up to $75,000, but that he believes that is a cost taxpayers shouldn’t bear because Fitch has a team of staff attorneys on payroll that could do the work.
Mississippi has more than 60 miles of coastline, with 27 miles of man-made public beach. In many areas, there is private ownership of coastline land out to the mean high tide, but water-bottoms subject to the ebb and flow of the tide are owned by the public, held in trust by the state. Upland private landowners have “littoral” rights to the water and can build small piers or docks. Businesses such as casinos, hotels or restaurants and public entities can lease these tidelands from the state if they receive proper environmental permits. These lease payments are returned to local governments on the Coast and used for tidelands management, conservation, reclamation, preservation and enhancement of public access to the water.
Mississippi currently has 152 tidelands leases, and collects between $10 million and $12 million a year from them.
Watson, a Coast native, said he’s run into a problem with “entities both public and private, who have either failed to obtain a lease or failed to make lease payments” on tidelands. He said there are currently about 25-30 entities who are “trespassing,” or using tidelands without a lease. About a dozen entities subleasing tidelands from another state agency have not been paying rent.
At the time he wrote Fitch the letter, Watson said, the Mississippi Maritime and Seafood Industry Museum in Biloxi was behind in its $5,000 annual tidelands rent, but it has since paid up. Watson noted that none of the Coast’s casinos, some of the largest lessors of tidelands, are behind on rent or trespassing without leases.
Fitch through a spokeswoman declined to be interviewed for this article. Her spokeswoman issued a statement that said there is a long history of outside counsel working with Mississippi secretaries of state on tidelands cases.
“Public Trust Tidelands is a unique and complex area of law and there are a number of firms, particularly on the Coast, with expertise and experience in this field,” said Fitch spokeswoman Debbee Hancock.
But Watson said the issues he’s asking with help for are not complex tidelands litigation, but “basic contract and trespass law.” He said the cost of hiring outside lawyers is unwarranted for such simple enforcement.
Watson said Fitch’s office also threw a wrench in his efforts to enforce tidelands leasing laws last year when the AG sided with the Department of Marine Resources over the secretary of state’s office.
DMR is the agency tasked with issuing permits for construction on tidelands. Watson wanted DMR to require entities to have a proper tidelands lease with his office before granting such permits. DMR said it shouldn’t be required to do so, and Fitch agreed.
A recent state Supreme Court ruling, Watson said, adds urgency to the need to enforce public tidelands leasing. Watson’s office in 2021 had filed a lawsuit over a plan by Biloxi and Harrison County to lease property to RW Development to build a new city pier. Watson claimed a state tidelands lease was required for the project — although his office offered one rent-free to help the city project. But the state high court agreed with a lower court ruling that city piers had been built for many decades without requiring a lease, so one wasn’t required.
Watson in his letter to Fitch said this precedent “demonstrates the court’s willingness to forever bar the State’s efforts to enforce rights given it by the Legislature where the State previously failed to act.” He noted that in light of that ruling, “In a desperate attempt to spark some activity from your office, you will recall I emailed you specifically on March 24, 2023, to request a meeting on these matters so that we can move forward and ensure the interests of the state are preserved.”
Watson, like his secretary of state predecessors since legalized casino gambling in the early 1990s sparked a development boom on the Coast, has faced some blowback from trying to enforce state tidelands laws and leasing. Developers, business interests and some local government leaders have claimed it hampers development.
Some environmental groups, however, have decried the state being too willing to lease tidelands and allow development in environmentally fragile tidelands, and said the Mississippi Coast could end up like other coastal cities where private development hampers public access to the water.
Robert Wiygul, an environmental attorney who represents citizens and public interest groups, told Mississippi Today that competing interests with tidelands and who exactly controls the land make for extremely complex scenarios, but state leaders should ultimately ensure that the public’s rights are protected.
“Mississippi law says it’s the public policy of the state to preserve coastal wetlands and ecosystems,” Wiygul said. “That doesn’t mean no commercial development in tidelands, but it does mean that any kind of development has to be very carefully evaluated.”
Last year, the Biloxi Businessmen’s Club wrote Watson a letter asking him to lay off tidelands enforcement and “take a more favorable stance towards economic development and move on to the more pressing business handled by your office.”
Watson responded to that missive by saying he supports Coast development but, “I will not turn from the statutory duty given this office by the Legislature and ‘focus on the other important jobs’ of my office when any municipality, county or region of the state seeks to be creative with the law.”
Watson said dealing with public tidelands is a balancing act, and “the idea behind the public trust tidelands is that the entire Coast and the entire state benefits and people have access to the Lord’s natural resources … That’s incredibly important to balance economic development with preservation. The Coast is a huge economic driver for this state … We have, in my opinion, done a great job balancing that.”
Watson said his fellow Republican Fitch is a good friend and he is uncertain why she has been recalcitrant about helping enforce tidelands laws.
“Enforcing some things can be unpopular or can ruffle some feathers,” Watson said. “I’m not saying that’s the case here, but sometimes people go along to get along.”