United States District Court, E.D. Louisiana
CONSOLIDATED GRAIN & BARGE, INC.
RANDY ANNY, ET AL.
ORDER AND REASONS
American River Transportation Company (ARTCO) moved to hold
Defendant Randy Anny in contempt of court and to sanction
Defendant for violating the 2015 Judgment (Rec. Doc. 376) in
this case. Rec. Doc. 458. Defendant timely filed an
opposition. Rec. Doc. 461. Plaintiff sought, and was
granted, leave to file a reply. Rec. Doc. 462-2. The Court
subsequently held a conference and directed the parties to
meet in good faith and attempt to resolve the dispute.
See Rec. Doc. 472. The parties submitted a Joint
Status Report (Rec. Doc. 482) indicating that they could not
fully resolve the dispute, but that Defendant had withdrawn
the permit application that gave rise to Plaintiff's
reasons discussed below, IT IS ORDERED that
Plaintiff's motion is DENIED WITHOUT
PREJUDICE, to be reurged if Defendant violates the
2015 Judgment or this Order and Reasons in the future.
IS FURTHER ORDERED that Defendant (1) attach the
judgment and injunction (Rec. Doc. 376) entered in this case
to any future permit applications so the U.S. Army Corps of
Engineers (Corps) is aware of same and (2) notify ARTCO with
copies of any future permit applications at least forty-five
days prior to submission to the Corps.
BACKGROUND AND PROCEDURAL HISTORY
and Defendant own neighboring properties on the Mississippi
River. See Rec. Doc. 376 at 1-2. This case arose out
of a dispute over where Defendant's property ends and
Plaintiff's property begins. See Id. The 2015
Judgment fixed the property line between the two pieces of
land and permanently enjoined Defendant from engaging in
certain activities that interfere with Plaintiff's use of
its property. See id.
prohibitions are relevant to the instant motion. The first
prohibits Defendant “from conducting any activities
upon the ARTCO property or on any bed of any navigable river,
lake or stream adjacent to or adjoining the ARTCO property,
” even when permitted by the relevant government
authorities. Id. at 3. The second prohibits
Defendant “from applying for or seeking from . . . any
. . . governmental body . . . a permit, permission, or
authorization to undertake any activity upon the ARTCO
Property or on any bed of any navigable river, lake or stream
adjacent to or adjoining the ARTCO Property.”
Id. at 3-4.
conducts various activities on his property, including barge
fleeting, ship mooring, sand dredging, and the operation of a
borrow pit. See Rec. Doc. 458-2 at 8. On June 30,
2015, Defendant filed an application with the Corps for a
permit to continue these activities and expand operations on
his property via the excavation of a new borrow pit and
establishment of a new stockpiling area. Rec. Doc. 458-2 at
7-12. Defendant submitted revised drawings in support of his
application in January 2017. Rec. Doc. 458-2 at 2. Plaintiff
repeatedly objected to Defendant's application with the
Corps before filing the instant motion to hold Defendant in
contempt and impose sanctions. See Rec. Docs. 458-2
at 14-17, 458-3 at 4-13.
parties do not appear to disagree on the law that governs
Plaintiff's civil contempt claim. See Rec. Docs.
458-1 at 6-8, 461 at 5. Rather they disagree about whether
Defendant's permit application violates the 2015
Judgment. See Rec. Docs. 458-1 at 8, 461 at 5-8. To
prevail on its civil contempt claim, Plaintiff must show by
clear and convincing evidence that Defendant
“violate[d] a definite and specific order of the court
requiring him to perform or refrain from performing a
particular act or acts with knowledge of the court's
order.” Hornbeck Offshore Servs., L.L.C. v.
Salazar, 713 F.3d 787, 792 (5th Cir. 2013). A plaintiff
meets this burden by offering evidence sufficient to
“produce in the mind of the trier of fact a firm
belief or conviction so clear, direct and weighty and
convincing . . . [that] the fact finder [can] come to a clear
conviction, without hesitancy, of the truth of the precise
facts of the case.” Id. (some alterations
2015 Judgment strikes a balance between Plaintiff's and
Defendant's rights. It limits Defendant's activities
to protect Plaintiff's use of its property, but it does
not prohibit those activities that are consistent with
Plaintiff's property rights. See Rec. Doc. 376.
Specifically, Defendant is prohibited from (1)
“entering upon or conducting any activity upon the
ARTCO Property;” (2) “conducting any activities .
. . on any bed of any navigable river, lake or stream
adjacent to or adjoining the ARTCO Property, ” even if
permitted by the relevant governmental bodies; and (3)
“applying for or seeking” a permit that would
allow activities inconsistent with (1) or (2). Rec. Doc. 376
at 3-4. Whether the Judgment prohibited the Defendant's
application therefore turns on the location of the
result, the Court must define the phrases “upon the
ARTCO Property” and “on any bed of any navigable
river, lake or stream adjacent to or adjoining the ARTCO
Property.” Defining the first phrase is relatively
straightforward because the “ARTCO Property” was
precisely defined in the 2015 Judgment. Rec. Doc. 376 at
1. On the other hand, defining the second phrase requires
examination of the various property rights that accrue to
those whose property abuts the Mississippi River.
State of Louisiana owns the bed of a navigable river such as
the Mississippi. See Wemple v. Eastham, 90 So. 637,
638 (La. 1922); see also, 2 Ronald J. Scalise, Jr.,
La. Civ. L. Treatise, Property § 4:13 (5th ed. 2017).
The bed of a river is that land covered by water at the
river's “ordinary low stage.”
Wemple, 90 So. at 638. The area from this low water
mark to the comparable high water mark is known as the banks
of the river and belongs to the “owner of the adjacent
land.” Id. These owners, and their lessees,
have “the right to erect and maintain [various
commercial structures] on the batture or banks owned or
leased by them and in the bed of the navigable river . . .
adjacent to or adjoining such batture or banks . . . .”
La. Stat. § 9:1102.1.
to show that Defendant has violated the 2015 Judgment,
Plaintiff must show by clear and convincing evidence that
Defendant is conducting or seeks a permit to conduct
activities on the “ARTCO Parcel” itself or on the
banks and river bed that extend out from the “ARTCO
Parcel” into the Mississippi River. Plaintiff argues
that Defendant sought a permit that, in addition to allowing
new and expanded activities on Defendant's land, would
have allowed some “ongoing activities.”
See Rec. Docs. 458-1 at 5 (referring to Rec. ...