CYNTHIA PERCLE v. LAFOURCHE PARISH GOVERNMENT (2025)

In this case, the Lafourche Parish Government (LPG) appeals a district court judgment in favor of a landowner, Cynthia Percle, and against LPG, finding that 1.359 acres of her property had the same characteristics as fastlands, had no connection to or significant impact upon coastal waters, and no coastal use permit was required. After review, we affirm.

FACTS AND PROCEDURAL HISTORY 1

Ms. Percle owns approximately 21 acres of immovable property in Lafourche Parish located at 848 Choctaw Road in Thibodaux, Louisiana. Ms. Percle's property contains a 1.359 acre portion that is located within the 256-acre Banane Camp Drainage Area, a forced drainage system with ring levees maintained by LPG. LPG previously built the levee system without proper authorization from the U.S. Army Corps of Engineers or the Louisiana Department of Natural Resources (DNR), Office of Coastal Management.

In early 2018, Ms. Percle cleared the 1.359 acre portion of her property to develop a residential homesite. LPG instructed Ms. Percle that she needed to complete and submit an after-the-fact coastal use permit application. On February 1, 2018, Ms. Percle submitted an after-the-fact coastal use permit application to DNR. On that same day, DNR determined that the application was a matter of local concern and that the application would be processed by the LPG Office of Coastal Zone Management. On April 18, 2018, LPG made a field investigation of the property and determined that the impacted area was part of a forced drainage system and was a cypress forest habitat.

On June 17, 2019, Ms. Percle requested that LPG evaluate her property and all property within the levee system for fastlands status. Ms. Percle contended that DNR's Strategic Online Natural Resources Information System (SONRIS) maps showed that the neighboring areas within the levee protection system were marked as fastlands. On June 26, 2019, LPG responded that her request had been forwarded to DNR and that based on DNR's response, the area was not considered fastlands. LPG further stated that “we will continue to process your application as before. [We] will be sending you a letter with the next steps in processing your application.”

On July 2, 2019, LPG's Office of Coastal Zone Management sent a letter to Ms. Percle stating that it had determined compensatory mitigation was required for the loss of the 1.359 acres of cypress forest habitat resulting from the proposed use. The letter further stated that the coastal use permit application on file indicated Ms. Percle was both the applicant and the sole landowner of the impact site and advised that additional information might be required to fully evaluate a mitigation proposal. LPG's Office of Coastal Zone Management sent Ms. Percle a second, nearly identical letter on October 16, 2019.

Ms. Percle filed a petition for judicial review of the coastal use permit issue in the Seventeenth Judicial District Court on November 18, 2019. Ms. Percle maintained that LPG had issued prior decisions that directly conflicted with its decision regarding her property. She maintained that the only distinction between her property and the other property was the ongoing issues from the unauthorized construction of the Banane Camp Drainage levee system by LPG. Ms. Percle asked for a judicial declaration that the property had the same characteristics as fastlands and had no connection to and no significant direct impact on coastal waters, and thus a coastal use permit was not required. Ms. Percle asked that LPG be ordered to reimburse her for all reasonable expenses and pay her damages, attorney fees, legal interest, and costs. She also requested all general and equitable relief provided by law.

LPG filed an answer generally denying the allegations, raising affirmative defenses, and maintaining that, if the district court determined that Ms. Percle had failed to exhaust her administrative remedies, judicial relief was precluded, and her petition was premature. LPG prayed that the petition and cause of action be dismissed with prejudice at Ms. Percle's costs, or, alternatively, if judgment were rendered in favor of Ms. Percle, that any recovery be reduced in proportion to her fault, the fault of a third party, and her failure to reasonably mitigate her damages. LPG also asked for all general and equitable relief.

The matter was submitted to the district court for judicial review. After review, the district court rendered judgment in favor of Ms. Percle and against LPG. The district court determined that the 1.359 acres at issue had the same characteristics as fastlands. It also determined that the land had no connection to and no significant direct impact on coastal water, and therefore, a coastal use permit was not required.² LPG was cast with costs of the proceedings. That judgment was signed on September 30, 2022. LPG filed a suspensive appeal from that judgment.

LPG filed a peremptory exception raising the objection of peremption with this Court, asserting that it notified Ms. Percle by mail on July 2, 2019, of its final decision requiring a permit for the unauthorized clearing of cypress forest habitat. LPG maintained that the date of filing of Ms. Percle's petition for judicial review, November 18, 2019, was not within the 30-day period from the date of mailing of notice of the final decision in accordance with La. R.S. 49:214.35(E). Thus, LPG asserted that Ms. Percle's right to file for judicial review expired prior to her filing. Ms. Percle opposed LPG's exception and filed a motion to remand the matter for a trial on the exception. This Court remanded the matter to permit the parties to develop evidence on the peremption issue. Percle v. Lafourche Parish Government, 2022-1276 (La. App. 1 Cir. 7/12/23), 371 So.3d 25, 28. On November 21, 2023, the district court held a hearing, sustained LPG's exception of peremption, and ordered Ms. Percle to amend her petition within thirty days of the hearing date. That judgment was signed on December 15, 2023.

On December 8, 2023, Ms. Percle filed a first amended petition for judicial review, maintaining that review was sought pursuant to La. R.S. 49:214.35(D) as the matter was “immediately reviewable under the determination of local concern and of no direct and significant impact under La. R.S. 49:214.34 as the final permit decision or action would not provide an adequate remedy.” LPG filed an answer, asserting all of its previous answers and defenses. On December 20, 2023, Ms. Percle filed a second amended petition for judicial review, stating that, additionally, La. R.S. 49:214.34(A)(10) provides that a coastal use permit shall not be required when a use does not have a significant impact on coastal waters, which she contended DNR had determined to be the case in this matter.

Thereafter, the district court judge signed a judgment on August 12, 2024, adopting the September 30, 2022 judgment “as if copied in extenso.” LPG filed a suspensive appeal from that judgment. This Court issued an order on June 20, 2025, stating that the judgment did not contain decretal language and was therefore not an appealable judgment. This Court remanded the matter to the district court to sign an amended judgment remedying the defects.³

On July 1, 2025, the district court judge signed an amended judgment in favor of Ms. Percle and against LPG finding that the 1.359 acres in question “has the same characteristics as fastlands ․ [and] has no connection to, and no significant direct impact on coastal waters, and therefore a [c]oastal [u]se [p]ermit is not required.”

STANDARD OF REVIEW

Any aggrieved person or other person adversely affected by a coastal use permit decision may appeal the decision by filing a petition in the district court of the parish in which the proposed use is to be situated. La. R.S. 49:214.30(D); La. R.S. 49:214.35(D) & (E). Judicial review shall otherwise be pursuant to the Louisiana Administrative Procedure Act (APA), La. R.S. 49:950 et seq., provided that all such cases shall be tried with preference and priority. Trial de novo shall be held upon request of any party. La. R.S. 49:214.35(F). In the absence of a request for trial de novo, the district court's review is generally confined to the record as developed in the administrative proceeding. La. R.S. 49:978.1(A)(1) & (F).⁴ In conducting its review, the district court functions as an appellate court. See Verida, Inc. v. Division of Administration, 2023-1259 (La. App. 1 Cir. 5/31/24), 391 So.3d 1061, 1067, writ denied, 2024-00955 (La. 11/14/24), 395 So.3d 1185; ASG Technologies Group, Inc. v. Office of Technology Services, 2021-1046 (La. App. 1 Cir. 6/30/22), 344 So.3d 136, 149; Avoca, Inc. v. State Dept. of Natural Resources, 2016-1677 (La. App. 1 Cir. 9/15/17), 2017 WL 4081624, at *2 (unpublished). The district court may affirm the agency decision or remand the case for further proceedings. La. R.S. 49:978.1(G). The court may also reverse or modify the agency decision, if substantial rights of the appellant are prejudiced because of the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) arbitrary, capricious, an abuse of discretion, or a clearly unwarranted exercise of discretion; or (6) not supported by a preponderance of evidence. La. R.S. 49:978.1(G). In the application of this rule, the district court shall make its own determination and conclusions of fact by a preponderance of the evidence based on its own evaluation of the entire record. Avoca, Inc., 2017 WL 4081624, at *2.

Once the district court renders a final judgment, an aggrieved party may appeal the judgment to the appropriate court. The appellate court owes no deference to the district court's factual findings or legal conclusions; rather, on appeal of an agency decision, the appellate court reviews the agency's findings and conclusions under the standards set forth in La. R.S. 49:978.1(G). Under La. R.S. 49:978.1(G)(6), the appellate court makes its own factual determinations and conclusions by a preponderance of the evidence based on the entire record. And, under La. R.S. 49:978.1(G)(5), the appellate court uses the arbitrary and capricious test to review the agency's conclusions and exercises of discretion. An action is arbitrary and capricious if it is taken without reason. Avoca, Inc., 2017 WL 4081624, at *2.⁵

In its review under La. R.S. 49:978.1(G), a reviewing court should afford considerable weight to an agency's construction and interpretation of its rules and regulations adopted under a statutory scheme the agency is entrusted to administer. An agency is owed this deference in interpreting its rules because the agency typically is in a superior position to determine what it intended when it issued a rule, how and when it intended the rule to apply, and the most reasonable interpretation of the rule given the agency's purpose in issuing it. Avoca, Inc., 2017 WL 4081624, at *3.

THE APPEAL

On appeal, LPG maintains that the district court erred in ruling that Ms. Percle is not required to obtain a coastal use permit for clearing the 1.359 acres. LPG further maintains that DNR and LPG are in the best position to apply the applicable rules and regulations. Ms. Percle maintains that a coastal use permit is not required in this situation, that there are no direct and significant impacts to coastal waters from her property, and that due to the exceptional circumstances created by LPG, even if a coastal use permit were required, she should be given a variance that does not require mitigation.

DNR determined that:

The area within the boundary of the image, Banane Camp Drainage System, under normal circumstances would be considered a Fastland as there is no water exchange/connections from outside of the system and [it] is under a pump that drains into a tributary of a nearby bayou [then] ultimately into [the] adjacent cypress swamp.

This system has a 36” diesel pump for discharge with a 30,000 gal/min capacity. Water is discharged in wetlands behind levee.

This area should NOT be considered a Fastland based on E2012082 whereby a portion of the levee was constructed without USACOE or LA DNR/OCM authorization. Currently, P20180548 is applied for to restore the area of the unauthorized levee and move the new levee closer to the highway.

Thus, this is not a valid existing levee and NOT a Fastland.

Louisiana Revised Statutes 49:214.34(A) provides, in part, for activities not requiring a coastal use permit:

Whether or not the activity occurs within the geographical boundaries of the coastal zone, the following activities shall not require a coastal use permit:

* * * * *

(2) Activities occurring within fast lands except when the secretary finds, subject to appeal, that the particular activity would have direct and significant impacts on coastal waters.

* * * * *

(7) Construction of a residence or camp.

* * * * *

(10) Uses which do not have a significant impact on coastal waters.

LPG changed the character of Ms. Percle's land without proper authority to do so, according to DNR's evaluation. LPG's field investigation report determined that the area was not part of a forced drainage system, was not permanently flooded with little or no water exchange, was not permanently flooded with other water exchange, and was not under natural hydrology that temporarily flooded, seasonally flooded, or semi-permanently flooded. Now LPG's Office of Coastal Zone Management requires Ms. Percle to apply for an after-the-fact coastal use permit for clearing 1.359 acres to build a residence on her land and to spend money on mitigation because, based upon LPG's actions, her property is no longer fastlands, although her property has no significant impact on coastal waters. We find that under these circumstances the substantial rights of Ms. Percle were prejudiced because the administrative findings of LPG's Office of Coastal Zone Management were an abuse of its discretion in requiring her to obtain an after-the-fact coastal use permit and do mitigation work due to the changed nature of her land after LPG's actions, which were taken without proper authority. See La. R.S. 49:978.1(G). The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. See La. C.C.P. art. 2164. Therefore, the July 1, 2025 amended district court judgment in favor of Ms. Percle and against LPG, finding that no coastal use permit is required, is affirmed.

CONCLUSION

For the foregoing reasons, we affirm the district court's amended judgment, dated July 1, 2025, in favor of Cynthia Percle and against the Lafourche Parish Government. Costs of the appeal in the amount of $1,719.41 are assessed against the Lafourche Parish Government.

AFFIRMED.

Although I agree with the majority's ultimate conclusion, I write separately to (again) note the inconsistent approach taken by this circuit with regard to the standard of review applied to judgments of the district court ¹ rendered on “judicial review” pursuant to the Louisiana Administrative Procedure Act (APA).² See La. R.S. 49:214.3 5(F); La. R.S. 49:978.1; and La. R.S. 49:979. In particular, I write to address whether this court affords deference to the evaluations and determinations of the district court.

In the instant case, Ms. Percle initiated judicial review by filing a petition in the district court pursuant to La. R.S. 49:214.35(E). Once before the district court, Ms. Percle had the option to request a trial de novo. See La. R.S. 49:214.35(F). A person aggrieved by an agency decision is entitled to judicial review under the APA without limiting “utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law.” La. R.S. 49:978.1(A)(1). In the absence of a request for a trial de novo, such as in the instant case, judicial review is confined to the administrative record, unless procedural irregularities before the agency are alleged, in which case, the district court may take proof. La. R.S. 49:978.1(F). The district court is then charged with reviewing the agency decision, which it may reverse or modify if substantial rights of the appellant have been prejudiced because the agency's decision fell within any of the six categories found in La. R.S. 49:978.1(G). The sixth such category applies when the agency's decision is not supported and sustainable by a preponderance of evidence. In order to make this determination, the district court “shall make its own evaluation of the record.” La. R.S. 49:978.1(G)(6).

Taken together, these rules establish the trial court as a fact finder when conducting judicial review. Given that La. R.S. 49:978.1(G)(6) requires that the district court act as a fact finder, this court has given deference to the district court's findings when this court conducts its appellate review. See La. R.S. 49:979. In Multi-Care, Inc, v. State, Department of Health & Hospitals, 2000-2001 (La. App. 1st Cir. 11/9/01), 804 So. 2d 673, the court explained:

We note that Acts 1997, No. 128, § 1, effective June 12, 1997, amended paragraph (G)(6) to make the trial court a fact finder who weighs the evidence and makes its own conclusions of fact by preponderance of the evidence. Before this amendment, the trial court reviewed the ALJ's factual findings for manifest error.

Accordingly, while we do not defer to the trial court's legal conclusions, see State, Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355, p. 5 (La. App. 1 Cir. 8/21/96), 694 So.2d 316, 319, we do defer to the trial court's factual determinations and use a manifest error standard of review where the legislature has empowered it with the function of fact finding. See Virgil v. American Guarantee and Liability Insurance Company, 507 So.2d 825, 826 (La. 1987). In Virgil, the Louisiana Supreme Court observed that the manifest error standard of review applies to the trial court's factual findings even when the evidence before it consists solely of written reports, records and depositions. Id. The supreme court discussed the allocation of fact finding in Louisiana's three-tiered court system as follows:

Louisiana's three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court's normal procedure of evaluating live witnesses), great deference is accorded to the trial court's factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court's judgment. Id.

Multi-Care, Inc., 804 So. 2d at 675 (emphasis added) (footnote omitted).

The Multi-Care court noted that the cases finding that no deference was owed to the district court's findings of fact were either before the effective date of Acts 1997, No. 128, or relied on Donnell v. Gray, 215 La. 497, 41 So.2d 66 (1949), wherein the Supreme Court held that no deference was owed to the factual findings of the appellate court, and by analogy, the appellate court thus owes no deference to the trial court when it is exercising appellate jurisdiction on judicial review. Multi-Care, Inc., 804 So. 2d at 675 n.l. The Multi-Care court distinguished those cases explaining that when a district court is exercising its function as a fact finder, the appellate court must give its factual determinations great deference. See Multi-Care, Inc., 804 So. 2d at 675 n.l.³

I believe the approach taken in Multi-Care recognizing the trial court's role as a fact finder lays the foundation for this court's appellate review. Thus, on appeal, this court operates in the ordinary manner - with no deference to the trial court's legal conclusions but with deference to the trial court's factual determinations applying a manifest error standard of review.

FOOTNOTES

2.   In its reasons for judgment, the district court stated that LPG caused the problem for Ms. Percle and unnecessarily refused to recognize its fault or address the issue.

3.   A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 2017-1250 (La. App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046 (en banc), citing Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365-366.

4.   Louisiana Revised Statutes 49:978.1 was redesignated from La. R.S. 49:964 by Acts 2022, No. 663, § 1.

5.   As the concurring opinion points out, this Court has inconsistently stated the applicable standard of review to be used by a court of appeal when it reviews a district court's factual findings after that district court renders a judgment in an appellate capacity under the APA. However, herein, we need not resolve this inconsistency, because regardless of the standard of review applied, the outcome remains the same - that is, we affirm the district court's July 1, 2025 amended judgment. In other words, whether we give deference to the district court's factual findings, or we instead find LPG abused its discretion, we still affirm the district court's judgment. Thus, we leave the question regarding the proper standard of review for another day, when this Court's deference or lack of deference to the district court's factual findings will result in a different outcome on appeal.

1.   We use “district court” and “trial court” interchangeably to comport with the statutes and jurisprudence referenced herein.

2.   This inconsistency has been recognized in numerous opinions. See Louisiana Board of Ethics in Matter of Barnett, 2023-0321 (La. App. 1st Cir. 1/26/24), 383 So. 3d 1010, 1026-1027, Miller, J., dissenting opinion, n.l, writ granted, 2024-00500 (La. 6/25/24), 386 So. 3d 1076, and reversed, 2024-00500 (La. 10/25/24), 395 So. 3d 752; see also Multi-Care, Inc, v. State, Department of Health & Hospitals, 2000-2001 (La. App. 1st Cir. 11/9/01), 804 So. 2d 673, 675 n.1; Carpenter v. State, Department of Health and Hospitals, 2005-1904 (La. App. 1st Cir. 9/20/06), 944 So. 2d 604, 608 n.2, and Downing, J., concurring opinion, writ denied, 2006-2804 (La. 1/26/07), 948 So. 2d 174; Wild v. State, Department of Health and Hospitals, 2008-1056 (La. App. 1st Cir. 2/23/08), 7 So. 3d 1, 5 n.4, and Downing, J., concurring opinion.

3.   Subsequent cases following Multi-Care have applied this standard of review giving deference to the district court's findings in conducting its judicial review. See Bueche v. State, 2000-1473 (La. App. 1st Cir. 6/21/02), 822 So. 2d 25, 27; Universal Placement International, Inc, v. Louisiana Workforce Commission, 2011-1353 (La. App. 1st Cir. 7/26/12), 97 So. 3d 1154,1158, writ denied, 2012-1974 (La. 11/9/12), 100 So. 3d 845; Dow Chemical Company Louisiana Operations Complex Cellulose & Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications & Emission v. Reduction Credits, 2003-2278 (La. App. 1st Cir. 9/17/04), 885 So. 2d 5, 10, writ denied sub nom. Dow Chemical Company v. Reduction Credits, 2004-3005 (La. 2/18/05), 896 So. 2d 34; St. Martinville, L.L.C, v. Louisiana Tax Commission, 2005-0457 (La. App. 1st Cir. 6/10/05), 917 So. 2d 38,41-42; and Tewelde v. Louisiana Board of Pharmacy, 2011-2244 (La. App. 1st Cir. 6/14/12), 93 So. 3d 801, 808, writ denied, 2012-1642 (La. 10/26/12), 99 So. 3d 652.Meanwhile, like the majority herein, other cases have held that on review of the district court's judgment, the appellate court owes no deference to the factual or legal conclusions of the district court just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. See ASG Technologies Group, Inc, v. Office of Technology Services, 2021-1046 (La. App. 1st Cir. 6/30/22), 344 So. 3d 136,150; Blair v. Stadler, 99-1860 (La. App. 1st Cir. 1/31/01), 798 So. 2d 132, 139; Blanchard v. Allstate Insurance Company. 99-2460 (La. App. 1st Cir. 10/18/00), 774 So. 2d 1002, 1005, writ denied, 2001-0285 (La. 3/23/01), 787 So. 2d 997; Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La. App. 1st Cir. 5/26/04), 879 So. 2d 815, 817-818; Blair v. Stalder, 1999-1860 (La. App. 1st Cir. 1/31/01), 798 So. 2d 132, 139; Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121 (La. App. 1st Cir. 2/20/98), 710 So. 2d 799, 803, n.5, writ denied, 98-0780 (La. 5/8/98), 719 So. 2d 51, citing Donnell v. Gray, 215 La. 497, 41 So. 2d 66, 67 (1949).

GREENE, J.

Miller, J. concurring with reasons.