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Joseph v. Secretary, Louisiana Department of Natural Resources

Court of Appeals of Louisiana, Fifth Circuit

January 30, 2019

PASTOR HARRY JOSEPH, SR., GENEVIEVE BUTLER, HUMANITARIAN ENTERPRISE OF LOVING PEOPLE, GULF RESTORATION NETWORK, ATCHAFALAYA BASINKEEPER, AND BOLD LOUISIANA
v.
SECRETARY, LOUISIANA DEPARTMENT OF NATURAL RESOURCES

          ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 38, 163, DIVISION "E" HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, PASTOR HARRY JOSEPH, SR., GENEVIEVE BUTLER, HUMANITARIAN ENTERPRISE OF LOVING PEOPLE, GULF RESTORATION NETWORK, ATCHAFALAYA BASINKEEPER, AND BOLD LOUISIANA Elizabeth Livingston de Calderón Lisa W. Jordan C. Tristan Danley, Student Practitioner representing Pastor Harry Joseph, Sr. and Genevieve Butler

          COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, DEPARTMENT OF NATURAL RESOURCES, OFFICE OF COASTAL MANAGEMENT Jeffrey M. Landry Harry J. Vorhoff Ryan M. Seidemann Michelle M. White

          COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, BAYOU BRIDGE PIPELINE, LLC James C. Percy Nicole M. Duarte Marjorie A. McKeithen

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg

          STEPHEN J. WINDHORST JUDGE

         The Louisiana Department of Natural Resources ("DNR") and Bayou Bridge Pipeline, LLC ("Bayou Bridge") (collectively "appellants") seek review of the district court's judgment in favor of plaintiffs and remanding this matter to DNR for further proceedings as set forth in its reasons for judgment. For the following reasons, we reverse the district court's judgment and uphold the validity of the Coastal Use Permit ("permit" or "CUP") issued to Bayou Bridge for the construction and operation of a crude oil pipeline, two pump stations, and other ancillary facilities (the "proposed pipeline").

         FACTS AND PROCEDURAL HISTORY

         On February 22, 2016, Bayou Bridge submitted an application to DNR for a permit for the construction and operation of the proposed pipeline. The proposed pipeline is designed to safely carry 280, 000 barrels or more of light or heavy crude oil per day from the existing Clifton Ridge Terminal facility in Lake Charles, Louisiana, to various existing crude oil terminals located in St. James, Louisiana. The Clifton Ridge Terminal and most of the proposed pipeline are outside the Coastal Zone. The proposed pipeline ends at existing crude oil terminals located in St. James, within the Coastal Zone. After arriving in St. James, the crude oil will be transported via other pipelines to refineries located along the Gulf Coast. One purpose of the proposed pipeline is to connect two existing oil terminals.

         During its evaluation regarding whether to issue the permit, DNR made nine separate requests for additional information from Bayou Bridge before holding a public hearing in St. James Parish, Louisiana. After the public hearing, DNR received numerous comments regarding the proposed pipeline. As a result, DNR made three additional requests for information from Bayou Bridge. In addition, prior to DNR's final action on the application, the proposed pipeline obtained a permit from the Bayou Lafourche Fresh Water District to cross Bayou Lafourche. Moreover, in letters dated August 2, 2016, and February 6, 2017, St. James Parish stated that it "has no objection and supports the project." After completing a thorough analysis of the proposed pipeline and finding that Bayou Bridge has modified, avoided or reduced all adverse environmental impacts to the maximum extent practical, DNR issued the permit for the proposed pipeline on April 3, 2017.

         Plaintiffs/Appellees, Harry Joseph, Sr., Genevieve Butler, Humanitarian Enterprise of Loving People, Gulf Coast Restoration Network, The Atchafalaya Basinkeeper, and BOLD Louisiana, timely filed petitions for reconsideration with DNR. The Secretary of DNR denied their petitions, but addressed the concerns raised in each petition in a written response.

         On June 2, 2017, Appellees filed the instant action, a petition for judicial review, in the Twenty-Third Judicial District Court for the Parish of St. James, Louisiana, alleging that DNR had violated the Louisiana Constitution and its own Guidelines by issuing the proposed permit to Bayou Bridge. Appellees asserted that (1) DNR did not consider the potential adverse environmental impacts of the proposed pipeline on St. James Parish; (2) DNR ignored its constitutional and regulatory duties to consider the cumulative impact of the proposed pipeline on St. James Parish; (3) DNR ignored evidence that the people of St. James Parish may be trapped in the event of an emergency with no viable evacuation plan; and (4) DNR misapplied its own Guidelines.

         After a hearing, the district court rendered judgment in favor of plaintiffs/appellees, and remanded the matter to DNR for reasons set forth in its reasons for judgment dated April 26, 2018. In sum, the district court found that DNR did not apply Coastal Use Guidelines 711(A) and 719(K), that these guidelines apply, and ordered Bayou Bridge "to develop effective environmental protection and emergency or contingency plans relative to evacuation in the event of a spill or other disaster, in accordance with guideline 719(K), PRIOR to the continued issuance of said permit." DNR and Bayou Bridge appealed this judgment.

         ASSIGNMENTS OF ERROR

         DNR presents the following assignments of error: (1) the district court erred in not deferring to DNR's findings that CUP guidelines 711(A) and 719(K) do not apply to the proposed pipeline; (2) the district court erred in finding that DNR did not comply with guideline 711(A) because it ensured that the pipeline route is, to the maximum extent practicable, either on lands 5 feet or more above sea level or otherwise within an existing utility; (3) the district court erred in finding that DNR did not comply with guideline 719(K) as it received emergency response plans for operation of the pipeline; and (4) the district court erred in finding DNR is mandated to require from Bayou Bridge an evacuation plan for the community living on Burton Lane in St. James Parish. Bayou Bridge asserts substantially similar assignments of error, including: (1) the district court erroneously held that it was arbitrary and capricious for DNR to fail to apply guideline 719(K); (2) even if guideline 719(K) applied, this guideline has been satisfied and/or is preempted, and the district court incorrectly held that it requires an evacuation plan prior to issuance of the permit; (3) the district court erroneously held that it was arbitrary and capricious for DNR to fail to apply guideline 711(A); and (4) even if guideline 711(A) applied, this guideline has been satisfied and/or is preempted.[1] Appellees request that this Court address the issue of whether DNR violated its public trust duty and reverse and vacate DNR's issuance of the permit for the proposed pipeline.

         LAW AND ANALYSIS

         Judicial review of this case falls under the Louisiana Administrative Procedure Act. La. R.S. 49:950, et seq.; La. R.S. 49:214.35F; La. R.S. 49:964. La. R.S. 49:214.35D states that "Any person authorized by this Subpart to appeal a coastal use permit decision or any local government aggrieved by a final decision on approval of a local program may seek judicial review of that decision whether or not a petition for reconsideration has been filed under this Section." La. R.S. 49:214.35E provides that "Proceedings for review may be instituted by filing a petition in the district court of the parish in which the proposed use is to be situated…."

         La. Const. art. V, Sec. 16 states that "A district court shall have appellate jurisdiction as provided by law." Judicial review of an administrative agency's decision is an exercise of a district court's appellate jurisdiction pursuant to La. Const. art. V, Sec. 16; Metro Riverboat Assocs., Inc. v. Louisiana Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So.2d 656, 660. For the purpose of this type of judicial review, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution. Id., (citing Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La. 1987)). Thus, when reviewing a final administrative decision, the district court functions as an appellate court. Doc's Clinic, APMC v. State, through Dep't of Health & Hospitals, 07-480 (La.App. 1 Cir. 11/2/07), 984 So.2d 711, writ denied, 07-2301 (La. 2/15/08), 974 So.2d 665; Bless Home Health Agency v. State, Dep't of Health and Hospitals., 99-936 (La.App. 1st Cir. 5/22/00), 770 So.2d 780. An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. La. R.S. 49:965.

         In Metro Riverboat, the court addressed whether Metro had sought to invoke the district court's appellate jurisdiction or its original jurisdiction. See Metro Riverboat, 797 So.2d at 660. Applying that analysis here, we find that appellees sought review of DNR's decision under the district court's appellate jurisdiction. First, appellees titled their petition a "petition for judicial review." Second, in the petition, appellees assert that jurisdiction exists under La. R.S. 49:214.35D and E, which provide for judicial review of a coastal review permit decision in the district court of the parish in which the proposed use is to be situated. Id. Third, appellees' prayer asks the district court to reverse DNR's decision and vacate the permit, which indicates that appellees are seeking direct review of DNR's decision. Finally, the hearing transcript from the district court shows that the district court's review of this matter was primarily based on the record like an appellate court conducts a review. Based on this, we find the district court exercised its appellate jurisdiction under La. Const. art. V, Sec. 16 in reviewing DNR's decision to issue the permit to Bayou Bridge. Now, appellants/defendants seek review of the district court's judgment from this Court.

         La. R.S. 49:964(G) states that:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of the evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

         On review of the district court's judgment, which is one of record review and not of trial, the court of appeal owes no deference to the factual findings or legal conclusions of the district court, just as the Louisiana Supreme Court owes no deference to factual findings or legal conclusions of the court of appeal. Carpenterv. State, Dep't of Health and Hospitals., 05-1904 (La.App. 1 Cir. 9/20/06), 944 So.2d 604, 608, writ denied, 06-2804 (La. 1/26/07), 948 So.2d 174. Louisiana law provides that a reviewing court should afford considerable weight to an administrative agency's construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless the court finds it to be arbitrary, capricious, or manifestly contrary to its rules and regulations. Ford v. State, Dep't of Health and Hospitals, 14-1262 (La.App. 4 Cir. 03/06/15), 166 So.3d 332, 337, writ denied, 15-774 (La. 06/11/15), 171 So.3d 264, citing Rachal, ex rel. Regan v. State, ex rel. Dep't of Health and Hospitals, 09-0786 (La.App. 1 Cir. 10/27/09), 29 So.3d ...


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