Olivier Plantation, L.L.C. v. Parish of St. Bernard

151 So. 3d 965, 2013 La.App. 4 Cir. 0497, 2014 La. App. LEXIS 2610, 2014 WL 5490929
CourtLouisiana Court of Appeal
DecidedOctober 30, 2014
DocketNo. 2013-CA-0497
StatusPublished
Cited by9 cases

This text of 151 So. 3d 965 (Olivier Plantation, L.L.C. v. Parish of St. Bernard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olivier Plantation, L.L.C. v. Parish of St. Bernard, 151 So. 3d 965, 2013 La.App. 4 Cir. 0497, 2014 La. App. LEXIS 2610, 2014 WL 5490929 (La. Ct. App. 2014).

Opinions

ROSEMARY LEDET, Judge.

|¶ This is a commandeering case arising out of Hurricane Katrina. On May 18, 2007, Olivier Plantation, L.L.C.; Park Investments, Ltd.; and Morning Park, Inc. (collectively “Olivier”) commenced this suit against St. Bernard Parish (“St. Bernard”) and the Lake Borgne Basin Levee District (“LBBLD”) seeking just compensation under the Louisiana Constitution. Olivier alleged that St. Bernard and LBBLD commandeered its property, removing an unknown quantity of borrow material from its property, and caused damages through their access and construction activities on its property. Following a trial based upon joint stipulations and deposition testimony, the trial court rendered judgment in favor of Olivier and against St. Bernard and the LBBLD. The trial court found that Olivier was the owner of the borrow material and that it was entitled to be compensated for the taking of the borrow material at the rate of $5.00 per cubic yard as well as attorney’s fees. From this judgment, St. Bernard and the LBBLD appeal. For the reasons that follow, we affirm.

| .FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background of this case was summarized by the federal court in Olivier Plantation, LLC v. St. Bernard, Parish, 744 F.Supp.2d 575, 577-79 (E.D.La.2010) (“Olivier I ”), as follows:

This case arises out of alleged damage to private properties caused by the actions of local and federal government entities while making emergency repairs to a levee damaged by Hurricane Katrina. This levee, the Lake Pontchartrain and Vicinity Hurricane Protection Levee (the “Levee”), located in St. Bernard Parish, Louisiana, was originally erected during the construction of the Mississippi River Gulf Outlet (“MRGO”), which was Congressionally authorized by the River and Harbor Act in 1956 and completed in 1968. On June 18, 1967 and April 15, 1970, Defendant Lake Borgne Basin Levee District (“LBBLD”) issued resolutions appropriating property necessary to create the Levee adjacent to the MRGO. The federal government, in concert with state authorities, obtained rights over the land upon which the Levee was built. On November 20, 1979, the LBBLD adopted a resolution whereby it appropriated borrow areas to construct the Levee. Plaintiffs are the owners of certain property that abuts the Levee.
In August 2005, Hurricane Katrina caused damage to the Levee. Shortly thereafter, Defendant St. Bernard Parish (“St. Bernard”) signed an Executive Order invoking its emergency powers under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La.Rev.Stat. 29:721 et seq. Pursuant to these powers, on Septem[967]*967ber 29, 2005, St. Bernard signed an Order entitled “Commandeering Property and Granting Irrevocable Right of Entry for Borrow, Access, and Construction (Repair and Rehabilitation) of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee, St. Bernard Parish (hereinafter “Commandeering Order”).” Pursuant to the Commandeering Order, St. Bernard commandeered the use of certain private property within the parish near and on the west side of the Mississippi River Gulf Outlet and adjacent to and west of the Levee. The Commandeering Order permitted this property to “be used to obtain borrow materials, gain access, and construct (repair and rehabilitate)” the Levee. The Order also granted St. Bernard “an assignable right and easement to clear, borrow, excavate and remove soil, dirt, and other materials” from the properties. The private property subject to the Commandeering Order lies within and is a part of the properties belonging to Plaintiffs.
Additionally, the Commandeering Order granted LBBLD an irrevocable right of entry to the private properties for its use in [«¡obtaining borrow, access and construction of the Levee repairs and rehabilitation. On September 30, 2005, LBBLD issued an “Authorization for Entry for Borrow, Access, and Construction (Repair and Rehabilitation),” certifying that it had acquired real property interests in the Plaintiffs’ properties pursuant to the Commandeering Order and authorizing “the Department of the Army, its agents, employees, and contractors to enter upon these lands to obtain borrow, access, and construct (repair and rehabilitate) said levee as set forth in the plans and specifications ... (“Authorization”).”
On October 2, 2005, St. Bernard and LBBLD (collectively referred to as the “Defendants”) entered into a “Cooperation Agreement” with the United States of America, represented by Third — Party Defendant, United States Army Corps of Engineers (“USACE”). On October 17, 2005, these parties entered into the “Amended Cooperation Agreement.” (Amended Cooperation Agreement). Both Agreements designate St. Bernard and LBBLD as “Public Sponsors” obligated to provide to USACE “right of entry to all lands, easements, and rights-of-way, including suitable borrow and dredged or evacuated material disposal areas” as may be determined necessary by the USACE. USACE thereafter entered the properties and borrowed, excavated and removed soil, dirt, and other materials from the Plaintiffs’ properties, to repair the Levee.
The Authorization provides that private landowners of the commandeered property “shall be identified and compensated by LBBLD' in accordance with Louisiana State” law via agreement or settlement within twelve (12) months of the use of the property or otherwise LBBLD would file appropriate judicial proceedings. The Amended Cooperation Agreement provides that USACE “shall identify and pay just compensation to the owners” of the commandeered property.
In 2006, Plaintiffs were identified as owners of the properties from which soil, dirt, and other materials were removed pursuant to the Commandeering Order and the Authorization. They were not provided compensation for the removal or damage to their properties, nor were judicial proceedings filed on their behalf. As a result, Plaintiffs filed suit on May 18, 2007, in the 34th Judicial District Court for the Parish of St. Bernard, [968]*968Louisiana, against Defendants St. Bernard and LBBLD. Plaintiffs allege they suffered damages, caused by the actions of the Defendants, due to the removal of borrow material from their properties, the improper disposal of debris, the abandonment of equipment, the spillage of oil and other liquids, and other acts. Plaintiffs seek just compensation for the damage to their properties pursuant to Louisiana Constitution Article I, Section 4.
Subsequently, on May 8, 2009, St. Bernard moved for leave to file an Amended Answer and Third Party Demand, seeking to name LUSACE as a third-party defendant on the basis that USACE may be liable for Plaintiffs’ alleged damages and is indispensable for a just adjudication. The motion was granted, and on May 18, 2009, St. Bernard filed its Amended Answer and Third Party Demand alleging it is entitled to contribution from USACE pursuant to the Cooperation Agreement for any sums awarded Plaintiffs. Then, on May 19, 2009, USACE filed a Notice of Removal to this Court pursuant to 28 U.S.C. §§ 1441(a), 1441(b), 1442(a)(1), 2679(d)(3).

Id. (citations to record omitted).

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151 So. 3d 965, 2013 La.App. 4 Cir. 0497, 2014 La. App. LEXIS 2610, 2014 WL 5490929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivier-plantation-llc-v-parish-of-st-bernard-lactapp-2014.