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Save Our Hills v. Louisiana Department of Environmental Quality

Court of Appeals of Louisiana, First Circuit

November 5, 2018

SAVE OUR HILLS, LOUISIANA ENVIRONMENTAL ACTION NETWORK, AND O'NEIL COUVILLION
v.
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY

          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. C653, 060 The Honorable Todd Hernandez, Judge Presiding

          Elizabeth Livingston de Calderon Lisa W. Jordan New Orleans, Louisiana Attorneys for Plaintiffs/Appellees, Save Our Hills, Louisiana Environmental Action Network, and Oneil Couvillion

          Herman Robinson Courtney J. Burdette Charlotte M. Goudeau Baton Rouge, Louisiana Attorneys for Defendant/2nd Appellant, Louisiana Department of Environmental Quality

          Andrew J. Harrison, Jr. Camille E. Walther Baton Rouge, Louisiana and Daria Burgess Diaz New Orleans, Louisiana Attorneys for Intervenor/ 1St Appellant, Southern Aggregates, LLC

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          PENZATO, J.

         Intervenor, Southern Aggregates, LLC (Southern Aggregates), and defendant, Louisiana Department of Environmental Quality (LDEQ), appeal the district court's judgment vacating an air permit for a gravel and sand mining operation in favor of plaintiffs, Save Our Hills, Louisiana Environmental Action Network (LEAN), and Oneil Couvillion[1], and remanding the matter to LDEQ. For the reasons that follow we reverse the judgment of the district court.

         FACTS AND PROCEDURAL HISTORY

         This matter began on October 24, 2014, when Southern Aggregates filed an application for an initial minor source air permit (air permit)[2] to construct and operate the proposed Plant 10 Easterly (Plant 10) located on Highway 16 in Denham Springs, Louisiana, in order to strip mine sand and gravel. Plant 10 is located adjacent to Oak Hills Subdivision. Save Our Hills is a non-profit corporation representing the over 224 homeowners located in the subdivision. LEAN is a non-profit corporation serving as a statewide network of environmental and citizen member groups, which works to preserve, protect, and improve the state's land, air, water, and natural resources to protect its members from the threats of pollution. Mr. Couvillion is a resident of Denham Springs and a member of LEAN. (Hereinafter, plaintiffs collectively referred to as "Save Our Hills). In its application to LDEQ, Southern Aggregates requested an air permit authorizing emission of air pollutants associated with mining sand and gravel. Southern Aggregates submitted additional materials to LDEQ on February 19, 2015, July 6, 2015, July 27, 2015, October 28, 2015, and January 14, 2016.

         LDEQ received comments from numerous individuals and groups alleging that the sand and gravel mine would cause noise pollution, air and ground water pollution, and health concerns. Many of the complainants also alleged diminution in property values in the Oak Hills subdivision as a result of the Southern Aggregates project. Included with the comments was a study from Ontario, Canada, titled the "Diminution in Price (if any) to Residential Real Estate Located in the Vicinity of an Existing or Proposed Ontario Pit or Quarry." On January 12, 2016, LDEQ conducted a public hearing where several members of the public spoke regarding health, environmental, and economic concerns. LDEQ also received several exhibits pertaining to these same concerns.

         LDEQ granted the air permit to Southern Aggregates on September 27, 2016. On November 22, 2016, Save Our Hills filed a petition for judicial review in the Nineteenth Judicial District Court, seeking to have the air permit vacated. Southern Aggregates intervened in the suit. On August 28, 2017, the district court held a hearing. The court issued a written ruling finding that LDEQ failed as public trustee of the environment as required by law. Specifically, the district court found that LDEQ failed to weigh the cost to the neighboring landowners in Oak Hills subdivision as required by law when performing its environmental cost analysis. Pursuant to that ruling, the district court signed a judgment on October 31, 2017, vacating the air permit issued by LDEQ to Southern Aggregates regarding Plant 10 for gravel and sand mining operations and remanding the matter to LDEQ. It is from this judgment that Southern Aggregates and LDEQ appeal.

         MOTIONS

         We first dispose of several motions filed by the parties in this case, all of which were referred to the merits for consideration.

         Motion to Supplement Record with Local Ordinances

         Southern Aggregates has requested this court to supplement the record with certified copies of three Livingston Parish Code Ordinances: Article 5, Chapter 9, Section 9-111, Number 14-45 (Exhibit A); Article 5, Chapter 9, Section 9-111, Number 16-14 (Exhibit B); and Article 2, Chapter 5.5, Section 5.5-13 (Exhibit C). Southern Aggregates relies on La. C.E. art. 202 and La. R.S. 13:3712(B), asserting that this court take judicial notice of those ordinances. Louisiana Revised Statute La. R.S. 13:3712(B) provides, in pertinent part:

All courts of record in the state shall take judicial cognizance of the municipal ordinances and parochial ordinances which may be enacted by governing authority of any town, city, municipality, or parish within their respective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of said court.

         Southern Aggregates did not include certified copies of the ordinances listed above in the administrative record. However, Southern Aggregates argues that LDEQ was aware of these ordinances, and they were discussed throughout the public comment period. Southern Aggregates also claims that it presented certified copies of the ordinances to this court, which complies with La. R.S. 13:3712(B). In opposing Southern Aggregates' motion, Save Our Hills asserts that La. R.S. 30:2050.21 (E) provides a procedure to supplement the administrative record, which neither Southern Aggregates nor LDEQ followed.

         The very issue before this court was discussed in Word of Life Christian Ctr. v. West, 04-1484 (La. 4/17/06), 936 So.2d 1226, 1231-32. Relying on its previous decision of Klohn v. Louisiana Power & Light, 406 So.2d 577, 578 (La. 1981), the court noted that it had considered La. R.S. 13:3712 and held that the certified copies of the ordinances "should be made part of the record either before its lodging in the appellate court or ... by the filing of a motion to supplement the

         A record in the appellate court." Word of Life Christina Ctr., 936 So.2d at 1231 (quoting Klohn, 406 So.2d at 579). The court also recognized that in 1988, the Louisiana Legislature enacted La. C.E. art. 202, Judicial Notice of Legal Matters, by Acts 1988, No. 515, § 1, which incorporated the approach of La. R.S. 13:3712 but also extended the statute's scope. Louisiana Code of Evidence article 202 provides, in pertinent part:

A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court's territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court.
B. Other legal matters. (1) A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by it to comply with the request, and may take judicial notice without request of a party of:
* * *
(c) Ordinances enacted by any political subdivision of the State of Louisiana.

         Save Our Hills argues that La. C.E. art. 202 provides for judicial notice of ordinances when the ordinance is submitted for a legal matter, i.e., the status of the law, and submits that the court in Word of Life Christian Ctr. took judicial notice of ordinances because they formed the basis of the suit. Word of Life Christian Ctr., 936 So.2d at 1232 (the defendant had argued the case was precluded because the plaintiff-parish had not included in the record the ordinances under which it sought relief). However, Save Our Hills claims that the statute for judicial review, La. R.S. 30:2050.21, and La. Const, art. IX, § 1, LDEQ's public trust duties, form the basis of the present suit, not the three ordinances at issue. Save Our Hills also maintains that La. C.E. art. 202 does not govern instances where ordinances would only be relevant to arguments on factual matters, i.e., what LDEQ considered when it decided to issue the air permit to Southern Aggregates. Save Our Hills argues that Southern Aggregates submits the ordinances to dispute the administrative record that shows LDEQ failed to consider some of the ordinances (Exhibits A and B)[3] and gave limited consideration of a local noise ordinance (Exhibit C).

         Save Our Hills further argues that a court may not take judicial notice of disputed issues and relies upon Constantin Land Trust v. Pitre Industries, LLC, 16-0993 (La.App. 1 Cir. 7/10/17), 225 So.3d 1089, 1093, writ denied, 17-1644 (La. 11/28/17), 230 So.3d 224. However, Constantin Land Trust involved a pending court suit, not ordinances. Louisiana Code of Evidence article 202 mandates that a court take judicial notice of an ordinance of any political subdivision within its jurisdiction either when the proper certified copy has been filed with the clerk of court or when a party "provides the court any information needed by it to comply with the request." La. C.E. art. 202(A) & (B); see Comments-1988 (b). Because Southern Aggregates has requested that this court take judicial notice of three local ordinances and has provided this court with the information needed to comply with the request, we take judicial notice of the three Livingston Parish ordinances, Exhibits A, B, and C, pursuant to La. C.E. art. 202(B), and grant that portion of the motion to supplement the record with those exhibits. City of Hammond v. Parish of Tangipahoa, 07-0574 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 176-77.

         Motion To Supplement Record with Affidavit and Subject Matter Jurisdiction

         Southern Aggregates also requests that this court supplement the record with the affidavit of Kevin Black, the vice president and general manager of Southern Aggregates. Mr. Black's affidavit includes facts that Southern Aggregates was issued a minor source permit on September 27, 2016, and that it completed the construction of Plant 10 before August 28, 2017, the date of the district court hearing. Mr. Black states that Southern Aggregates was issued a Sand & Gravel Permit from Livingston Parish in accordance with ordinance Article 5, Chapter 9, Section 9-111, Number 16-14. He also states facts regarding Southern Aggregates' compliance with the permits and ordinance and the operation of Plant 10.

         Southern Aggregates filed a motion to supplement the administrative record with the affidavit of Mr. Black before the district court hearing pursuant to La. R.S. 30:2050.21(E), but the district court denied the motion. Southern Aggregates now files this motion to supplement the record with the same affidavit of Mr. Black, arguing that because Plant 10 was already complete at the time of the district court hearing on August 28, 2017, the matter was moot, and the district court did not have subject matter jurisdiction. In its appeal, Southern Aggregates also assigns as error that the district court did not have subject matter ...


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