Marston v. Red River Levee & Drainage District

464 F. Supp. 1228, 12 ERC (BNA) 1916, 1979 U.S. Dist. LEXIS 14717
CourtDistrict Court, W.D. Louisiana
DecidedJanuary 31, 1979
DocketCiv. A. No. 770571
StatusPublished
Cited by1 cases

This text of 464 F. Supp. 1228 (Marston v. Red River Levee & Drainage District) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marston v. Red River Levee & Drainage District, 464 F. Supp. 1228, 12 ERC (BNA) 1916, 1979 U.S. Dist. LEXIS 14717 (W.D. La. 1979).

Opinion

OPINION

DAWKINS, Senior District Judge.

Here we are called upon to decide, under Louisiana law, the nature of compensation, if any, due to a riparian landowner whose land is appropriated (not expropriated) for bank stabilization. In 1976, an 8100 foot trenchfill revetment was constructed on plaintiff’s property, and in 1977 he brought this action for compensation and damages, claiming he is entitled to full compensation for loss of land and crops and for loss of a new fence. For the reasons hereinafter given, we hold that plaintiff is entitled to compensation for the full market value of his land and to attorney’s fees and interest.

Plaintiff originally sued the Red River-Bayou Pierre Levee and Drainage District (Levee District),1 the Red River Waterway Commission (Waterway Commission),2 and the Louisiana Department of Public Works (Department).3 After the Levee District third-partied the United States Army Corps of Engineers (Corps), plaintiff amended his complaint to add the Corps. Plaintiff claimed that the revetment was constructed for navigational purposes4 and that, in essence, the defendants had conspired to classify the project as bank stabilization in order to deprive him of full, just compensation. Motions to dismiss plaintiff’s demand, filed by the Department and the Corps, both were granted. However, similar motions by the Waterway Commission were denied, as was a motion by the Corps to dismiss the Levee District’s third party complaint.

At the close of trial, which was limited to the issue of liability, we granted defendants’ renewed motions under Rule 41(b), having earlier denied these at the close of plaintiff’s evidence. At this point, plaintiff took a new position attacking the propriety of appropriation under due process. Because the constitutionality of the taking had been alleged, albeit in a conclusory manner, in plaintiff’s complaint, we agreed that the parties could file briefs. The briefs have been received and the liability aspect of the suit is now ready for decision.

FINDINGS OF FACT

We affirm our finding at the end of the trial that the Abington Revetment was a bona fide bank stabilization project and [1230]*1230not a navigation project in disguise. In January of 1973, Mr. Richard L. Bennett, District Engineer for DOPW, wrote to the Levee District recommending that it request the Corps to construct bank stabilization works. (Exhibit LD-1.) The recommendation stated that the relatively rapid caving of the bank was a threat to the existing levee (which previously had been set back at least three times),5 and Bennett provided the following factual basis for his assertion:

DATE DISTANCE FROM TOE OF LEVEE TO TOP' BANK OF RIVER SOURCE
9/23/65 445' Aerial Photographs
10/ 7/66 400' Aerial Photographs
8/ 1/67 390' Aerial Photographs
8/27/68 390' Aerial Photographs
9/28/69 380' Aerial Photographs
4/15/70 366' Bankline Measurement
11/20/70 300' Bankline Measurement
2/16/72 182' Bankline Measurement
2/27/72 77' Bankline Measurement

The Table shows conclusively steady acceleration of caving and the necessity for some form of bank stabilization.

In response to Bennett’s recommendation, the Levee District requested the Corps of Engineers to make an immediate study to determine the most suitable plan and to construct the necessary bank protection works. (Unanimous resolution of January 17, 1973. — Exhibit LD-2.) The Levee District further resolved and agreed that it would

A. Provide without loss to the United States all lands, easements, and rights of way necessary for the construction of the project;
B. Hold and save the United States free from damages due to the construction work; and
C. Maintain and operate all the works after completion in accordance with the regulations prescribed by the Secretary of the Army. (Exhibit LD-2.)

After preliminary investigations and plans were completed, the Corps informed the Red River Waterway District of its proposed construction of the revetment and requested that the necessary “takings” be accomplished.6 The Waterway District immediately transferred the notice and request to the Levee District,7 which made the requested appropriation.8 In September of 1976, the Levee District requested that the project be funded as a navigation rather than a bank stabilization project,9 but the request was denied on the basis that the project was properly funded.10

Plaintiff’s own testimony shows that his contention that the land was taken for navigational purposes is at best mere speculation. (Transcript pp. 28-29, 33-35, 37, 41.) He stated that it looked like a navigational project to him but that he had never consulted an engineer. He admitted that the bank was in need of stabilization, and he also admitted that his conspiracy theory was at best an assumption. (Transcript pp!. 34-35.)

Donald Kranz, a civil engineer for the Corps and Chief of the Channel Stabilization Division, testified that the sole purpose [1231]*1231of the Abington Revetment was to protect the levee system and that navigation was not a factor. (Transcript pp. 72-74.) Furthermore, his testimony is representative of the three other engineers who testified.

CONCLUSIONS OF LAW

Because of the failure of this “conspiracy theory,” plaintiff’s claim against the Waterway District must be dismissed. The District played no part in planning, development, or construction of the Abington Revetment.

The third-party claim of the Levee District against the Corps may also be summarily dismissed, based upon the hold-harmless agreement in the January 17, 1973, resolution11 and an earlier, similar hold-harmless agreement.12

As to plaintiff’s demands for full compensation, we do not agree that he is constitutionally entitled to compensation.13 However, we do conclude that he is entitled to compensation under La.Acts 1978, No. 314, codified as La.R.S. 38:281. Act 314 enacted a new Subsection (B) of Section 281, which provides:

B. All lands and improvements, Orleans Parish excepted, hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for fair market value to the full extent of the loss, and just compensation for both the land and improvements taken or destroyed and for damages suffered by reason thereof, shall be paid to the owner or into the court for his benefit.

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Bluebook (online)
464 F. Supp. 1228, 12 ERC (BNA) 1916, 1979 U.S. Dist. LEXIS 14717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marston-v-red-river-levee-drainage-district-lawd-1979.