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

Court of Appeals of Louisiana, Fourth Circuit

October 30, 2014

OLIVIER PLANTATION, L.L.C., PARK INVESTMENTS, LTD. AND MORNING PARK, INC.
v.
PARISH OF ST. BERNARD AND LAKE BORGNE BASIN LEVEE DISTRICT

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT. NO. 109-272, DIVISION " B" . Honorable Manuel A. Fernandez, Judge.

Robert E. Couhig, Jr., Jason A. Cavignac, Gary J. Rouse, COUHIG PARTNERS, L.L.C., New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLEES.

William M. McGoey, Corey S. Grant, Attorneys at Law, Chalmette, LA; Thomas P. Anzelmo, Sr., Hilliard F. Kelly, III, Lou A. Milliman, McCRANIE SISTRUNK ANZELMO HARDY McDANIEL & WELCH, LLC, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLANTS.

James D. (" Buddy" ) Caldwell, David A. Peterson, Daniel D. Henry, Jr., Ryan M. Seidemann, LOUISIANA DEPARTMENT OF JUSTICE, Baton Rouge, LA, AMICUS CURIAE/STATE OF LOUISIANA.

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins). JENKINS, J., DISSENTS AND ASSIGNS REASONS.

OPINION

Rosemary Ledet Judge.

Page 966

[2013-0497 La.App. 4 Cir. 1] 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.

[2013-0497 La.App. 4 Cir. 2] 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 September

Page 967

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 [2013-0497 La.App. 4 Cir. 3] 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,

Page 968

Louisiana, 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 [2013-0497 La.App. 4 Cir. 4] USACE 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). Based on the unique circumstances presented in this case of no one court having jurisdiction to hear both claims simultaneously, the federal court in Olivier I granted Olivier's motion to sever its claim from St. Bernard's third-party demand and remanded Olivier's Louisiana state law takings claims against St. Bernard and the LBBLD. Olivier I, 744 F.Supp.2d at 589-90.

Following the remand, this matter was ultimately submitted for trial on the merits upon joint stipulations and deposition testimony. On March 12, 2012, the trial court rendered judgment in favor of Olivier and against St. Bernard and the LBBLD, finding them liable, jointly and in solido, for any damage and loss caused by the inverse condemnation of Olivier's property. The trial court awarded damages for the value of borrow material removed from Olivier's property in the principal amount of $2,045,430.00 together with interest from the date of judicial demand.[1] The trial court further made a separate award for attorney's fees in an amount to be set after a contradictory hearing on the issue. On March 20, 2012, [2013-0497 La.App. 4 Cir. 5] the trial court granted the motion to amend judgment " to solely correct a typographical error" by changing the principal amount awarded to $2,449,930.00.[2]

Thereafter, the parties waived a contradictory hearing on the attorney's fees issue and submitted the matter on written argument. In support of its claim for attorney's fees, Olivier introduced the deposition testimony of an expert, Fred Herman; [3] a copy of its contract with its

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attorneys, the letter of engagement; [4] and a chart of the hours worked by its attorneys.[5] On November 9, 2012, the trial court rendered judgment awarding a total of $832,318.65 for costs and attorney's fees. The total amount of that award for attorney's fees was $808,476.90. This appeal followed.

DISCUSSION

The issues presented in this case are virtually identical to those presented by the same appellants-defendants--St. Bernard and the LBBLD--in Borgnemouth Realty Co. v. Parish of St. Bernard, 13-1651 (La.App. 4 Cir. 5/21/14), 141 So.3d 891, writs denied, 14-1285 (La. 9/26/14), 149 So.3d 266, 2014 WL 5013274, and 14-1351 (La. 9/26/14), 149 So.3d 269, 2014 WL 5013471. We find our holding [2013-0497 La.App. 4 Cir. 6] in the Borgnemouth case dispositive of all the issues in this case with one exception.[6] The exception is the issue of attorney's fees, which we find requires an independent analysis.

In this case, the trial court awarded Olivier attorney's fees in the amount of $808,476.90, which was 33% of the principal amount of the judgment.[7] St. Bernard and the LBBLD contend that the attorney's fee award was unreasonably excessive. As we noted in Borgnemouth, " [w]e review these [attorney's fee award] claims under an abuse-of-discretion standard and decline to modify such awards on appeal unless that standard is met." 13-1651 at p. 17, 141 So.3d at 902 (citing Covington v. McNeese State Univ., 12-2182, p. 6 (La. 5/7/13), 118 So.3d 343, 348). As we further noted in Borgnemouth, " the prevailing party may not recover attorney's fees except where authorized by contract or statute." Id. (citing Rivet v. State, Dept. of Transp. and Dev., 96-0145, p. 10 (La.9/5/96), 680 So.2d 1154, 1160). As we still further noted in Borgnemouth, the

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governing statute providing for attorney's fees in this inverse condemnation case is La. R.S. 13:5111, which provides:

[2013-0497 La.App. 4 Cir. 7] A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding.

La. R.S. 13:5111 A. Hence, the attorney's fee award to Olivier was statutorily-mandated. The sole issue presented is whether the quantum of attorney's fees awarded is reasonable.

In making the determination of whether the quantum of attorney's fees awarded is reasonable, the following principles apply:

Attorney's fees should be awarded on a case-by-case basis after examining numerous factors. Covington, 12-2182, p. 6, 118 So.3d at 348. The Louisiana Supreme Court has set out factors to be considered by a court in determining the reasonableness of an award of attorney's fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court's own knowledge. See State, Dept. of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La. 1992). A court may consider a contingency contract as well, but is not bound by such an agreement in determining reasonable attorney's fees. See Rivet v. State, Dept. of Transp. & Dev., 01-0961, p. 6 (La.11/28/01), 800 So.2d 777, 782.

Borgnemouth, 13-1651 at pp. 17-18, 141 So.3d at 903.[8]

In support of their contention that the attorney's fee award was unreasonably excessive, St. Bernard and the LBBLD make the following three arguments. First, they contend that the fee should be based on the discounted hourly rate actually charged and paid by Olivier under the blended contingency fee agreement. Second, [2013-0497 La.App. 4 Cir. 8] they contend that the levee taking statute, La. R.S. 38:387 E, which caps attorney's fees recoverable at 25% of the principal amount awarded, should be applied.[9] Third, they argue, based on the

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factors enumerated in the jurisprudence and other fact-specific cases applying those factors, that the attorney's fee award in this case is unreasonably excessive. We separately address each of these arguments.

Discounted hourly rate

St. Bernard and the LBBLD contend that the attorney's fee award in this case should be limited to the discounted hourly rate that Olivier was billed, and actually paid to his counsel, under the blended contingency fee agreement--$194,694.75. Rejecting this argument, the trial court in its reasons for judgment stated:

Defendants would ignore the contingency portion of the letter of agreement[10] on attorneys fees and submit the Plaintiff attorneys fees should be on an hourly basis only for a period of 1210.5 hours billed for attorney time at the discounted rate $200.00 per hour for [2013-0497 La.App. 4 Cir. 9] attorneys, Couhig and Rouse, and $145.00 per hour for attorney Cavignac and 9.8 hours of paralegal time for a total of $194,694.75, which Defendants label as reasonable and actually incurred in these proceedings. If, indeed, reference to any portion of the fee arrangements between Plaintiffs and their counsel is relevant to and to be considered in the court setting the amount of legal fees for which the non-prevailing parties on the main demand for damages may be cast in judgment to pay then the entire agreement should be considered by the court.

We agree. This argument is unpersuasive.

The levee taking statute

St. Bernard and the LBBLD next contend that the cap in the levee taking statute, La. R.S. 38:387 E, should be applied and that the cap of 25% of the principal amount awarded should be imposed in this case--$612,482.50. Although they acknowledge that this case does not involve an expropriation, they essentially contend that the cap in the levee taking statute should apply by analogy. They explain that due to the exigent circumstances presented by Hurricane Katrina, there was no opportunity to expropriate. Nonetheless, they contend that the public policy underlying the levee taking statute warrants applying the 25% attorney's fee cap to this case involving the taking of property needed for levee purposes.

Olivier, on the other hand, points out that its expert, Mr. Herman, testified that the levee taking statute was not applicable because this is not a levee expropriation case; rather, it is a taking under the Homeland Security Act. Likewise, the trial court noted that " [h]ad the legislature desired to place a limitation on recovery in inverse condemnation cases, they certainly could have done so in R.S. 13:5111, just as they did for expropriation cases in R.S. 38:387." The trial court thus found the governing statutory provision in this case is La. R.S.13:5111 A, which imposes no limit on the amount of attorney's fees other than that the fees be reasonable and actually incurred in the proceeding. We agree. [2013-0497 La.App. 4 Cir. 10] Indeed, as noted above, we found in the Borgnemouth case that the governing statute providing for attorney's fees in this type of inverse condemnation case is La. R.S. 13:5111. This argument is unpersuasive.

Other factors

Finally, as in Borgnemouth, St. Bernard and the LBBLD cite the factors

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enumerated in the jurisprudence and other fact-specific cases applying those factors in support of their contention that the attorney's fee award in this case is unreasonably excessive. Olivier counters that the reasonableness of the fee was established by the testimony of its expert, Mr. Herman, who opined that under the circumstances of this case an even higher fee of up to 40% of the $2.4 million award would be reasonable. Moreover, as Olivier points out, the trial court in its reasons for judgment enumerated multiple facts that it considered in determining the attorney's fee award, which included:

o The issues presented were novel and of first instance involving the right of a government to engage in a permanent taking of private property without compensation under a commandeering order issued in connection with an emergency declaration under the Louisiana Homeland Security and Emergency Assistance Act, La. R.S. 29:727.
o The precedential effect of this case on several other cases pending in this judicial district court.
o There was no attempt to acquire the property or to settle the controversy nor to expropriate in the state or federal courts by the Levee Board or the United States Corps of Engineers.
o The litigation lasted almost five years in both the state and federal district courts.
o There were many docket calls and exceptions and motions for summary judgment including those on liability and valuation.
o Olivier's attorneys were competent and well prepared at every stage of the proceeding.
[2013-0497 La.App. 4 Cir. 11] o Olivier's attorneys expended their time and legal skills making a substantial investment in the litigation by registering over 1,200 hours at a discounted hourly rate in return for the court to award attorney's fees that would be reasonable.

As in Borgnemouth, we conclude that " the trial judge had the most familiarity with the issues involved in this appropriation matter and the time, diligence, and skill of the attorneys pursuing just compensation for [Olivier] in the face of unyielding resistance on the part of the political subdivisions to acknowledge any liability." Borgnemouth, 13-1651 at p. 18, 141 So.3d at 903. Based on the particular facts of this case, we cannot conclude that the trial court's award of 33% of the principal amount of the judgment in attorney's fees was unreasonable. We thus find no abuse of the trial court's discretion in setting the attorney's fee award.

DECREE

For the foregoing reasons, we affirm the trial court's judgment in favor of Olivier Plantation, L.L.C.; Park Investments, Ltd.; and Morning Park, Inc., and against the Parish of St. Bernard and the Lake Borgne Basin Levee District, in solido, up to the remaining indebtedness of $1,428,335.00, and for attorney's fees in the amount of $471,350.55, all with interest, and for all costs of these proceedings, including the costs of the appeal. See La. C.C.P. art. 2164.

AFFIRMED

DISSENT

[2013-0497 La.App. 4 Cir. 1] JENKINS, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority's holding in the instant case. I further disagree with this Court's recent decision in Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 13-1651 (La.App. 4 Cir. 5/21/14),

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141 So.3d 891, writ denied, 14-1285 (La. 9/26/14), 149So.3d 266 and 14-1351 (La. 9/26/14), 149 So.3d 269.[1] Upon de novo review of the facts of this case and the questions of law presented, which are substantially the same in Borgnemouth, I find the trial court erred as a matter of law in finding the Parish of St. Bernard (" the Parish" ) and the Lake Borgne Basin Levee District (" Levee District" ) liable for the taking of plaintiffs' property under Louisiana law.

Both cases present the legal question of whether a taking of private property has occurred under Louisiana law. Louisiana Constitution Article I § 4 provides, in pertinent part, " [p]roperty shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid [2013-0497 La.App. 4 Cir. 2] to the owner or into court for his benefit." However, where the state or its political subdivisions have no control or direction over the actual taking or damaging of the private property, our Louisiana jurisprudence does not support a claim for compensation from the state and its political subdivisions. See Cooper v. City of Bogalusa, 195 LA. 1097, 198 So. 510 (La. 1940); Vuljan v. Bd. of Com'rs of Port of New Orleans, 170 So.2d 910, 912 (La.App. 4th Cir. 1965); Petrovich v. State of Louisiana, 181 So.2d 811 (La.App. 4th Cir. 1966); Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-0796 (La.App. 4 Cir. 1/10/07), 950 So.2d 55. As a matter of law, the state and its political subdivisions cannot be held liable for the taking and damaging of private property under circumstances in which the federal government carries out the taking and damaging of the private property as part of a federal project.

[T]he issue of whether a particular entity has taken property within the meaning of the Constitution is to be decided on the facts of the individual case. There simply is no bright line by which it can be determined that an entity did or did not cause an inverse condemnation of property. ... whether an action will lie under the Louisiana eminent domain provision or the Fifth Amendment to the United States Constitution depends entirely upon whether the public project is state or federal, and which government was acting under its power of eminent domain in carrying out the public project.

Holzenthal, 06-0796, p. 15, 950 So.2d at 66.

The facts and evidence in this case reveal that the Emergency Repair and Rehabilitation project of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee (" LPLV levee" ) was planned, executed, and completed under the power and authority of the federal government through the United States Army Corps of Engineers (" USACE" ). Furthermore, an historical review of the laws providing for the creation, maintenance, and repair of this levee under the

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federal Flood Control Act reveals that the LPLV levee is designated as a federally [2013-0497 La.App. 4 Cir. 3] constructed Hurricane/Shore Protection Project subject to emergency repair by the federal government. See Flood Control Act of 1965, Public Law 89-298; 33 U.S.C. § 701n. Based on my review of the law, facts, and evidence in this case, I find the taking of the plaintiffs' property was the result of an exclusively federal project for which the Parish and the Levee District cannot be held liable under a state constitutional takings claim.

FACTUAL BACKGROUND

The location of plaintiffs' property is a highly relevant fact in this case. Plaintiffs own private immovable property in St. Bernard Parish located along the west side of the Mississippi River-Gulf Outlet (" MR-GO" ) and immediately adjacent to, and on the protected landside of, the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee (" LPLV levee" ).

The MR-GO was constructed by the USACE pursuant to Congressional authority, Public Law 84-455, to operate as a navigation channel between the Port of New Orleans and the Gulf of Mexico. In Vuljan v. Bd. of Com'rs of Port of New Orleans, 170 So.2d 910, 912 (La.App. 4th Cir. 1965), this Court found the MR-GO to be an exclusively federal project, over which the federal government through the USACE had exclusive jurisdiction and control.

The LPLV levee was also authorized by Congress, under the Flood Control Act of 1965, and constructed by the USACE, to provide hurricane protection to areas around Lake Pontchatrain and along the MR-GO. Pub. L. No. 89-298, § 204, 79 Stat. 1073, 1077 (1965). The LPLV levee is designated as a federally authorized flood control project, formally known as a Hurricane/Shore Protection Project (" HSPP" ) and it is subject to the federal statutory scheme under which it was created. See 33 U.S.C. § 701 et. seq ; 33 U.S.C. § 2213(j). Under this federal [2013-0497 La.App. 4 Cir. 4] scheme, the states and their levee districts agree to assume responsibility for operation and maintenance upon the completion of the project, but the federal government maintains authority and responsibility to conduct emergency operations and rehabilitation activities. See 33 C.F.R. § 203.82. In the event that a federally authorized HSPP has been " damaged or destroyed by wind, wave, or water action of other than an ordinary nature," the USACE is authorized and funded to repair and rehabilitate that federally authorized HSPP and may assume 100 percent of the costs for rehabilitation.[2] 33 U.S.C. § 701n; See

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also 33 C.F.R. § 203.82(f). As set forth in detail in the Cooperation Agreement between the USACE and the Parish and the Levee District, the USACE invoked its authority to complete the emergency repairs and rehabilitation of the LPLV levee due to the unforeseen, substantial damage from Hurricane Katrina.

In Borgnemouth, the Court stated " [r]esponsibility for the ongoing maintenance and repair of the MR-GO levees remained with the Levee District." This statement oversimplifies the statutory framework, regulations, and [2013-0497 La.App. 4 Cir. 5] federal/state cooperation agreements under which this levee was created and continues to be governed. See 33 U.S.C. § 701 et. seq. As I have discussed above and will outline below, the USACE had the authority to conduct this emergency repair and rehabilitation project and, under that authority, the USACE directed, planned, controlled, and executed every aspect of this project.

This Court acknowledges in Borngemouth that if the levee repairs are a federal project, then, as a matter of law, the Parish and Levee District would be relieved from providing just compensation to plaintiffs. 13-1651, p. 20, 141 So.3d at 904. In this case, the majority did not review and consider all of the pertinent facts and evidence in this case because it held the reasoning within Borgnemouth dispositive on all issues. The Court's reasoning in Borgnemouth on this issue of the taking relies solely on the fact that the Commandeering Order and the Authorization for Entry invoked state law to quickly expropriate the land and authorize the project to be performed by the USACE. Again, I find this to be an oversimplification of the facts and evidence necessary to make the determination of whether this project was state or federal in nature. Thus, I now review the facts of this case which lead me to the conclusion that the LPLV levee repair and rehabilitation following Hurricane Katrina was a federal project and, consequently, the Parish and Levee District are not liable to compensate the plaintiffs.

The Commandeering Order & the Cooperation Agreement

When Hurricane Katrina made landfall on August 29, 2005, portions of the LPLV levee adjacent to plaintiffs' property sustained significant damage. From that moment, the USACE began organizing, planning, and overseeing the repair and rehabilitation project for the LPLV levee. Prior to the issuance of the Commandeering Order and Authorization to Entry, on September 19, 2005, the Chief of the Real Estate Division of the USACE sent a letter to the Levee District stating that the USACE proposes to perform repairs to the LPLV in St. Bernard [2013-0497 La.App. 4 Cir. 6] Parish, pursuant to the provisions of P.L. 84-99 (the Flood Control Act of 1965). The letter particularly describes the location of lands, including " borrow areas," required for the USACE to perform the necessary repairs and states that the rights of entry are required as soon as possible in order to begin the work.

On September 29, 2005, the Parish President signed the Commandeering Order for the use of certain private immovable property to be used " to obtain borrow materials, gain access, and construct (repair and rehabilitate)" the LPLV levee.

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The Order also granted an irrevocable right of entry to the property to the Levee District with the stated understanding that " the Levee District will tender an Authorization for Entry for Borrow, Access and Construction (repair and rehabilitation) to the United States Army Corps of Engineers ... to enter upon these lands to repair and rehabilitate said levee as set forth in the plans and specifications held in the U.S. Army Corps of Engineers' District Office, New Orleans, Louisiana." On September 30, 2005, the day after the Parish President signed the Commandeering Order, the Levee District signed the Authorization for Entry to allow the USACE to complete the necessary repairs and rehabilitation of the levee.

On October 2, 2005, before the USACE began the repair and rehabilitation project on plaintiffs' property, the USACE, the Levee District, and the Parish entered into and signed a Cooperation Agreement for " Rehabilitation of a Federal Hurricane/Shore Protection Project." The Cooperation Agreement, formally amended on October 17, 2005, declares the federal authority under the Flood Control Act of 1965, generally, and 33 U.S.C. 701n, specifically for the construction, repair, and rehabilitation the LPLV levee--a federally authorized Hurricane/Shore Protection Project (HSPP).

The following provisions of the Cooperation Agreement outline the terms, conditions, and obligations of each party to the agreement and make clear that the [2013-0497 La.App. 4 Cir. 7] repair and rehabilitation of the LPLV levee in St. Bernard Parish is a federal project.

1. Article I.A defines the " Rehabilitation Effort" as all repairs, rehabilitation, and replacement of portions of the LPLV levee as described in the Project Report prepared and approved by the USACE District Engineer.
2. Article I.B specifies that the " Rehabilitation Effort costs" incurred by the federal government " shall include, but is not necessarily limited to: actual construction costs, including supervision and inspection costs; costs of contract dispute settlements or awards; the costs of lands, easements, rights of way, borrow, and relocations that are not owned, claimed, or controlled by the Public Sponsors; ... ."
3. Article II outlines the obligations of the federal government and the Public Sponsors. " The [USACE] ...shall expeditiously construct the Rehabilitation Effort, applying those procedures usually followed or applied in Federal projects, pursuant to Federal laws, regulations, and policies." While allowing the Public Sponsors to review and comment on the issuance of contract bids, the USACE retains all control, stating, " [t]he District Engineer will, in good faith, consider the comments of the Public Sponsors, but award of contracts, modifications or change orders, and performance of all work on the Rehabilitation Effort shall be exclusively within the control of the District Engineer."
4. Article III.A.3, specifically provides the manner in which the Public Sponsors acquire and provide rights of entry to the privately owned lands, easements, and rights of way (referred to as Private LERD) necessary for the rehabilitation effort. The provision states that the Public Sponsor " shall secure" a commandeering order from the Parish [2013-0497 La.App. 4 Cir. 8] President " which said order or orders shall commandeer Private LERD, ... as determined by the [USACE] to be necessary for the

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construction, operation, and maintenance of the Rehabilitation Effort." After which, the " Public Sponsors shall tender a right of entry to the [USACE] for the Private LERD."
5. The USACE further obligates itself, in Article II.B.1 and restated in Article III.B, to " identify and pay just compensation to the owners of a compensable interest in the [Private] LERD described in Article III.A.3."
6. Article IV.A sets forth the payment requirements under the agreement, revealing that the full cost of the Rehabilitation effort is assumed by the federal government. " Rehabilitation Effort costs are currently estimated to be $57, 780,000. In order to meet the Public Sponsors' cash payment requirements, the Public Sponsors must provide a cash contribution estimated to be $0.0."

The Cooperation Agreement invokes the power and authority of the federal government to plan and execute the rehabilitation project with very limited involvement of the Public Sponsors--the Parish and the Levee District--by furnishing the Private LERD for which the USACE agreed to compensate the private property owners.

Letters and Offer of Compensation from USACE to Plaintiffs

The USACE further acknowledged their responsibility for this project in written correspondence with the plaintiffs. The USACE identified plaintiffs as the property owners of the land affected and used in the course of the project and began sending written correspondence to plaintiffs in January, 2006. In January, 2006, the USACE sent a letter to plaintiffs stating that they had been identified as the owners of private property affected by federally authorized repairs to the hurricane protection levee. The letter states that, due to the June 1, [2013-0497 La.App. 4 Cir. 9] 2006 deadline for performing the necessary repairs to the levee, the USACE took " extraordinary measures" by asking the Parish President to exercise his authority under the Louisiana Homeland Security and Emergency Assistance and Disaster Act to commandeer certain private property needed for the repair work. The letter also informs plaintiffs that the USACE agreed to provide just compensation to property owners. Finally, the plaintiffs were directed to contact the USACE with any questions regarding this matter.

In a letter dated October 24, 2006, addressed to plaintiffs' attorney, the USACE informed the plaintiffs of the efforts to appraise the land affected by the repair work and ensured the plaintiffs that " it has always been our intention to compensate the landowner(s) for property commandeered for emergency repair and rehabilitation of the Lake Pontchartrain and Vicinity, Chalmette Loop, Hurricane Protection Levee post Katrina." In August, 2007, the USACE sent letters to plaintiffs informing them that property appraisals had been completed for the tracts of plaintiffs' property affected by the repair work and the USACE was prepared to make its offer of just compensation, in accordance with federal law.[3]

Page 978

In the deposition testimony of plaintiffs' representative, Lewis Frank, I find further support that the plaintiffs knew that the levee repairs were under the direction and control of the USACE rather than the Parish or the Levee District. [2013-0497 La.App. 4 Cir. 10] Mr. Frank stated that, before receiving any written communication, he was contacted by Janet Cruppi, with the USACE's Task Force Guardian, who stated to him, " we have commandeered your property." Mr. Frank stated that the discussion did not " get into particulars" but Ms. Cruppi did reference compensation for the taking of plaintiffs' property. Mr. Frank stated that he, on behalf of the plaintiffs, discussed and attempted to negotiate with the USACE, but never the Parish or the Levee District, regarding compensation for the value of the plaintiffs' property used and removed. Furthermore, when asked if he knew who did the work to rebuild the levee, he stated it was Granite Construction on a contract through the USACE.

Louisiana Jurisprudence

The facts and evidence reveal that the USACE acted under federal law to effect the taking of plaintiffs' property for a federal project. " [I]f the public improvement is a federal project, the State cannot be sued directly merely because the State contributed to the cost of the project. The test, therefore, is whether or not the project is State or Federal." Vuljan v. Bd. of Com'rs of Port of New Orleans, 170 So.2d 910, 912.

In Vuljan, this Court considered whether a cause of action properly lied against the State for the taking or damaging of oyster leases caused by the construction of the MR-GO channel. There, as in this case, the State was required by the federal government to furnish all lands, servitudes, and rights-of-way necessary for the construction, maintenance and operation of the project. Thereafter, the USACE executed the plans it had designed to construct the channel. " The federal government alone constructed it after deciding where the project would be built, what spoil disposal areas it would need, their direction and width, and what land, navigation servitudes or easements were required. The State took nothing." Vuljan, 170 So.2d at 912. The Court found that the damage to the oyster [2013-0497 La.App. 4 Cir. 11] beds, and thus the leaseholders' interests, did not result from the taking by the State but were brought about by the activities of the USACE in furtherance of the federal project. [4] This Court held that the plaintiffs

Page 979

did not have a cause of action for inverse condemnation against the State because the construction of the MR-GO channel was a completely federal project under the exclusive jurisdiction and control of the United States through the USACE.

In Holzenthal v. Sewerage & Water Bd. of New Orleans, this Court again addressed this issue of federal or state liability for inverse condemnation of private property. 06-0796 (La.App. 4 Cir. 1/10/07), 950 So.2d 55. " [T]he issue of whether a particular entity has taken property within the meaning of the Constitution is to be decided on the facts of the individual case. There simply is no bright line by which it can be determined that an entity did or did not cause an inverse condemnation of property." Id., 06-0796, p. 15, 950 So.2d at 66. This Court reviewed the facts in Vuljan, finding in that case the State's participation in the project was limited to its agreement to furnish the necessary lands, servitudes and rights-of-way, and " to use its inherent power of eminent domain to save the United States harmless against claims arising out of the Outlet's construction, maintenance, and operation." Id. 06-0796, p. 16, 950 So.2d at 67. " There is no indication that the State of Louisiana had any participation in project design, [2013-0497 La.App. 4 Cir. 12] monitoring, financing or otherwise." Id. By contrast, the facts in Holzenthal established that the Cooperation Agreement between the federal government and the Sewerage & Water Board (" SWB" ) specified continuing input, consultation, and shared responsibilities for the project. The SWB co-chaired a coordination team that oversaw issues related to design, planning, scheduling, contract awards, costs, inspections, and more. Finally, the SWB was responsible to contribute a minimum of 25 percent but not more than 50 percent of the costs of the total project. The Court found these facts distinguishable from Vuljan, and from Petrovich v. State of Louisiana,[5] in that the exclusivity of jurisdiction and control was not present in Holzenthal. Id., 06-0796, pp. 18-19, 950 So.2d at 68.

Trial Court Reasons for Judgment

In the instant case, before the trial court, the Parish and the Levee District relied on the reasoning in both Vuljan and Holzenthal in arguing that this levee repair and rehabilitation project was federal in nature. In addressing this issue, the trial court acknowledged that only the USACE planned, developed, and executed all the necessary steps of the levee project, " save and except the signatures of the local officials." The trial court stated, " [i]t is abundantly clear the plan was 'hatched' by the Corps of Engineers" and " the Corps was clearly 'driving the bus'." The trial court, however, still held the Parish and Levee District liable for the taking,

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stating that they " actively participated in concert" with the USACE.

The trial court also reasoned that the issue of federal versus state liability had already been considered and decided within a related federal case, stating " the federal district court determined this very levee project was a [sic] not a federal [2013-0497 La.App. 4 Cir. 13] project." [6] The trial court referenced, as does the majority in this case, the Order and Reasons of the United States District Court for the Eastern District of Louisiana in Olivier Plantation L.L.C. et al. v. St. Bernard Parish et. al., 744 F.Supp.2d 575 (E.D.La. 2010), relating to the removal of the instant case to federal court. In order to understand the Order and Reasons of the U.S. District Court remanding this case to state court, it is important to consider the original petition and procedure of this case.

The plaintiffs in this case originally filed suit only against the Parish and the Levee District in state court, the 34th Judicial District Court in St. Bernard Parish, on May 18, 2007. That petition alleges that the Parish and the Levee District acted in concert with each other to effect the taking of plaintiffs' property under state law. The petition does not include any allegations referring to the Cooperation Agreement between the Parish, the Levee District, and the USACE. Plaintiffs' petition makes one reference to the actions of the USACE stating, " [p]ursuant to the Authorization, the Department of the Army, its agents, employees, and contractors entered upon the Properties and removed large quantities of borrow material and caused damages through their access and construction activities." Plaintiffs claim, however, that the actions of the Parish and the Levee District caused the damages from the access and construction activities on plaintiffs' property and, therefore, owe compensation for the taking of borrow material pursuant to Louisiana Constitution Article I, § 4. Plaintiffs' petition does not state a cause of action under any theory of liability, under state or federal law, against the USACE.

[2013-0497 La.App. 4 Cir. 14] Order and Reasons for Remand from Federal District Court

Before the action proceeded to trial, the Parish filed an amended answer and a third party demand against the USACE. The Parish alleged that the damages to plaintiffs' property were caused by the actions of the USACE and the USACE owed contribution for all damages that may be awarded plaintiffs based on the terms of the Cooperation Agreement.

Once named as a third party defendant in the suit, the USACE filed a Notice of Removal to the U.S. District Court for the Eastern District of Louisiana. In the federal court action, plaintiffs filed a motion to sever, motion to dismiss, and motion to remand.[7]

Page 981

The U.S. District Court ruled to sever and dismiss the third party demand and to remand plaintiffs' Louisiana state law claims to state court. See Olivier Plantation L.L.C. et al. v. St. Bernard Parish et. al., 744 F.Supp.2d 575 (E.D.La. 2010) (hereinafter Olivier II ). In its order and reasons, the District Court reviewed the bases upon which the action was removed to federal court and examined whether the court held subject matter jurisdiction over any of the claims within plaintiffs' petition. In a thorough discussion of subject matter jurisdiction under the Federal Tort Claims Act,[8] the Tucker Act, and the federal officer removal [2013-0497 La.App. 4 Cir. 15] statute,[9] the District Court determined that it lacked subject matter jurisdiction over the claims alleged within the plaintiffs' petition and over the third party demand. Olivier II, 744 F.Supp.2d at 583-589.

The District Court also determined that the Court of Federal Claims had no jurisdiction over the principal action based on the claims alleged within plaintiffs' petition.[10] Id. at 588. The District Court found that the petition contained no allegations of a Fifth Amendment Takings claim against a federal agency, that the exceptions to the well-pleaded complaint rule do not apply in this case, and a state law takings claim is not completely preempted by federal law. Furthermore, even though the Parish and Levee District raise defenses invoking federal law and a Fifth Amendment taking by the USACE, " determination of jurisdiction starts with the complaint" and " federal defenses to a claim ... are not sufficient to confer subject matter jurisdiction." Olivier II, 744 F.Supp.2d at 584. Finally, the District Court found that a transfer of the Parish's third party demand against the USACE would be premature because it is entirely dependent upon the resolution of the plaintiffs' claims under Louisiana state law. Id. at 589.

Ultimately the District Court found the matter could not be transferred to the Court of Federal Claims, and neither could the District Court address any of the issues within the petition; consequently, the District Court held that it did not have any subject matter jurisdiction. Contrary to the trial court's statement that the federal district court made a finding that this very levee project was not a federal project, the U.S. District Court made no findings regarding

Page 982

the factual or [2013-0497 La.App. 4 Cir. 16] substantive legal issues in this case. Rather, the District Court's order and reasons thoroughly discusses and explains the inability of the court to review any issues in the case due to the lack of subject matter jurisdiction. The District Court reviewed the allegations within plaintiffs' petition and the third party demand and determined it could not exercise any federal jurisdiction in the case. " Under the well-pleaded complaint rule, the plaintiff is the master of the claim and may avoid federal jurisdiction by exclusively relying on state law, even where a federal claim is also available." Olivier II, 744 F.Supp.2d at 584 citing Hoskins v. Bekins Van Lines, 343 F.3d 769, 772-72 (5th Cir. 2003)(" A plaintiff with a choice between federal- and state-law claims may elect to proceed in state court on the exclusive basis of state law, thus defeating the defendant's opportunity to remove, but taking the risk that his federal claims will one day be precluded." ). Federal jurisdiction is not determined on the substantive merits of a claim. See Fragumar Corp., N.V. v. Dunlap, 685 F.2d 127, 129 (5th Cir. 1982). Thus, I find the trial court erroneously stated that the federal district court found that the levee repair and rehabilitation project was not a federal project, because the District Court did not make any factual findings.

The plaintiffs in this case strategically plead allegations against state entities under state law and avoided any federal jurisdiction. Plaintiffs' procedural maneuvering does not, however, offer any support for the proposition that a federal Fifth Amendment takings claim asserted by these plaintiffs against the USACE would have failed and found no liability of the USACE. Rather, the United States Court of Federal Claims has held the USACE exclusively liable for the taking of private property in Plaquemines Parish in a factually similar, " closely related" case. National Food & Beverage Co., Inc. v. U.S, 10-152L, 96 Fed.Cl. 258 (2010) (" National Food I " ) (denying motion to dismiss); National Food II, 10-152L, 103 Fed.Cl. 63 (2012) (granting partial summary judgment on issue of liability); [2013-0497 La.App. 4 Cir. 17] National Food III, 10-152L,105 Fed.Cl. 679 (2012) (awarding just compensation and damages for the USACE's taking of plaintiff's property).

The underlying facts in National Food are substantially similar to the instant case and Borgnemouth. The case arose out of the same events following Hurricane Katrina. Plaquemines Parish issued a Commandeering Order for the plaintiff's property and an Authorization for Entry to allow the USACE to repair and rehabilitate the levee adjacent to plaintiff's property. National Food I, 96 Fed.Cl. at 261. Plaquemines Parish also entered into a Cooperation Agreement with the USACE by which the United States government agreed to identify and pay just compensation to the owners of the commandeered private property. Id. The USACE then entered upon plaintiff's property and proceeded to remove substantial amounts of clay in the process of its repair and rehabilitation project.

Distinguishing it from the instant case and Borgnemouth, the plaintiff in National Food filed a complaint in the Court of Federal Claims in May, 2010, raising a Fifth Amendment takings claim against the USACE. The USACE filed a motion to dismiss arguing that any liability for the taking lies with Plaquemines Parish because it was the state entity that issued the Commandeering Order under Louisiana state law. The court, however, found,

[t]he commandeering order effected a right of entry to the property. However, that order was not issued for a non-federal purpose. Rather, it was issued

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by Plaquemines Parish to support the Federal Hurricane Protection Project, as the Amended Cooperation Agreement provides. ... the commandeering order itself can be attributed to the federal government.

National Food I, 96 Fed.Cl. at 264. In denying the motion to dismiss the claims against the USACE, the Court of Federal Claims also noted,

The Parish only issued the order because the Corps had in the Cooperation Agreement asked the Parish to take that step. Most importantly, the Parish had no part in physically removing the clay from National Food's land. That effort was entirely undertaken by the Corps, pursuant to its own plan and for its own purpose.

[2013-0497 La.App. 4 Cir. 18] National Food I, 96 Fed.Cl. at 266.

In a separate ruling on the plaintiff's motion for partial summary judgment on the issue of liability, the Court of Federal Claims found the federal government/USACE " liable under the Fifth Amendment for the temporary occupation of plaintiff's land and the permanent appropriation of plaintiff's clay." National Food II, 103 Fed.Cl. at 70.

I find the analysis and reasoning of the Court of Federal Claims on the issue of liability for the taking of private property is the same as applied by this Court in Cooper, Vuljan, Petrovich, and Holzenthal. However, I find this analysis missing from this Court's decision in Borgnemouth and the majority opinion in the instant case.

Based on an analysis as formerly applied by this Court, I have reviewed the record de novo and found that the facts and evidence in this case clearly establish that the federal government through the actions of the USACE effected the taking of plaintiffs' property as part of an exclusively federal project under federal law. Although the use of the Commandeering Order invoked the power and authority of the Parish President under the Louisiana Homeland Security and Emergency Assistance and Disaster Act and uniquely distinguishes this case from Cooper, Vuljan, Petrovich , or Holzenthal, the analysis remains the same.[11] The act of signing these agreements is not the one determinative fact upon which the Court makes its finding of state or federal liability for the taking. " [W]hether a particular entity has taken property within the meaning of the Constitution is to be decided on the facts of the individual case." Holzenthal, 06-0796, p. 15, 950 So.2d at 66.

[2013-0497 La.App. 4 Cir. 19] The totality of the facts and circumstances must be examined to determine which government actually effected the taking and damaging of private property. Under the facts and circumstances of the instant case, as well as in Borgnemouth, I find the taking and damaging of plaintiffs' property was for a federal purpose and conducted as a federal project. Consequently, the Parish and the Levee District cannot be liable for an exclusively federal project.


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