Stop the Destruction of St. Bernard, Inc. v. Board of Commissioners for the Port of New Orleans and St. Bernard Port, Harbor, and Terminal District

• Court: Louisiana Court of Appeal
• Decided: October 26, 2023
• Docket: 2023-CA-0323
• Status: Published

Opinion

STOP THE DESTRUCTION OF * NO. 2023-CA-0323 ST. BERNARD, INC., ET AL. * COURT OF APPEAL VERSUS * FOURTH CIRCUIT BOARD OF COMMISSIONERS FOR THE PORT OF NEW * STATE OF LOUISIANA ORLEANS AND ST. BERNARD PORT, HARBOR, AND * TERMINAL DISTRICT * *******

SCJ JENKINS, J., CONCURS WITH REASONS

I respectfully concur in the result. I agree with the majority that the trial

court did not err in granting Port NOLA’s exception of prematurity, because

plaintiffs/Appellants’ claims for injunctive relief to prohibit nuisances that could

result from the LIT project are not ripe for judicial determination. However, I

disagree with the trial court’s stated reason that plaintiffs have failed to exhaust

administrative remedies. The implication from the trial court’s statement is that

plaintiffs bear the burden to pursue a course of administrative action and relief.

And I find it is important to clarify that defendants, not plaintiffs, bear the burden

to proceed through the administrative process. Defendants, Port NOLA and St.

Bernard Port, must proceed to obtain the necessary permits for the proposed LIT

project through the administrative process set forth for each of the permitting

federal and state agencies. But, in the course of that administrative process,

plaintiffs will have the opportunity to prohibit nuisances from the proposed LIT

project by raising objections to and, potentially, defeating defendants’ applications

for permits, thereby obtaining “administrative remedy.”

At this time, the LIT project is currently only a proposal with no requisite

permits to proceed into an actual development, and, consequently, plaintiffs’

allegations of nuisance are speculative and their claims for injunctive relief to prohibit nuisances are premature. Although plaintiffs are not required by law to

participate in the administrative process to attempt to defeat the LIT project, at this

stage, the administrative process provides adequate access and sufficient relief to

parties seeking to object to and defeat the proposed project. If defendants obtain

the requisite permits to proceed with construction of the LIT project, plaintiffs

have the right and opportunity to re-urge their claims for relief in the district court.