DEWEY AUCOIN AND LISA AUCOIN v. STATE OF LOUISIANA THROUGH THE TERREBONNE LEVEE AND CONSERVATION DISTRICT AND COASTAL PROTECTION AND RESTORATION AUTHORITY (2026)

Plaintiffs, Dewey A. Aucoin and Lisa R. Aucoin, appeal the trial court's judgment, partially granting a cross-motion for summary judgment and dismissing plaintiffs’ claims against defendant, Coastal Protection and Restoration Authority (“CPRA”), with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 19, 2021, plaintiffs filed a petition for damages, asserting an inverse condemnation action against the Terrebonne Levee and Conservation District (“TLCD”) and CPRA. Plaintiffs own a camp situated on leased property in Dulac, Louisiana, and alleged that defendants constructed and operated “water control structures”¹ in Terrebonne Parish, Louisiana, including those structures associated with the Morganza to the Gulf Hurricane Risk Reduction System (collectively, “MTG System”).² As alleged in the petition for damages and amended petition for damages, the use of the MTG System caused damage to plaintiffs’ property and property interests by raising water levels during storm events, increased flooding, and increased frequency, duration, and volume of flood waters impounding and impacting plaintiffs’ property. Specifically, plaintiffs alleged that these recurrent flooding and impoundment events caused water damage to their wharf, caused the camp's foundation to deteriorate, destroyed landscape, and impaired plaintiffs’ ability to freely access and use their camp and leased property.

On October 17, 2024, plaintiffs filed a motion for partial summary judgment on the issue of taking. Plaintiffs sought a declaratory judgment finding that defendants’ operation of the MTG System took “a permanent right of access to [p]laintiffs’ protected property interests by depriving them of the right to exclude tidal floodwaters attributable to the [MTG] System's operation.” In response, defendants jointly filed both an opposition to plaintiffs’ motion and a cross-motion for summary judgment on November 22, 2024. Defendants argued that plaintiffs would bear the ultimate burden of proof at trial that the MTG System caused increased flooding on their property, rising to the level of a taking; that the defendants’ conduct caused the injury or invasion complained of; and that in the ordinary course of events, absent government action, plaintiffs would not have suffered the injury. Defendants asserted that plaintiffs’ motion for partial summary judgment must fail and further asserted that plaintiffs lacked factual support sufficient to meet their evidentiary burden to prove causation, such that defendants were entitled to summary judgment on plaintiffs’ claims and a dismissal of plaintiffs’ petition with prejudice.

At the conclusion of the hearing on the motions, the trial court denied plaintiffs’ motion for partial summary judgment and denied defendants’ cross-motion for summary judgment in part. The trial court granted defendants’ cross-motion in favor of CPRA. dismissing all of plaintiffs’ claims against CPRA, with prejudice. A judgment in conformity with the trial court's ruling was signed on February 21, 2025. Plaintiffs appealed and assign the following assignments of error: (1) the trial court erred in concluding there was not a triable issue concerning CPRA's liability; (2) the trial court legally erred in concluding CPRA was entitled to summary judgment as a matter of law in view of CPRA's authority over activities in Louisiana's Coastal Zone; and (3) the trial court erred in adjudicating CPRA's negligence when it was not properly raised for adjudication in the statement of undisputed material facts.³

LAW AND DISCUSSION

A ruling on a motion for summary judgment is reviewed under a de novo standard, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So.3d 1034, 1038 (per curiam).

Pursuant to La. Code Civ. P. art. 966(D)(1), the initial burden is on the mover. The mover's supporting documentary evidence must prove the essential facts necessary to carry its burden. See La. Code Civ. P. art. 966(A)(3). However, if the mover will not bear the burden of proof at trial on the issue before the court, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. Code Civ. P. art. 966(D)(1). This “pointing out” must be more than a bare assertion in a motion for summary judgment or brief. Sheppard v. City of Baton Rouge, 2002-2421 (La. App. 1st Cir. 9/17/04), 897 So.2d 25, 30, writ denied, 2004-2566 (La. 1/14/05), 889 So.2d 268; LeBlanc v. Michael E. Powers Constr., Inc., 2021-0267 (La .App. 1st Cir. 10/18/21), 2021 WL 4844340, *8 (unpublished) (“A mover who does not support his motion with any affidavits, depositions, or other evidence to point out the alleged lack of support for this element of the plaintiff's case or identify those portions of the pleadings that he believes demonstrates the absence of a genuine issue of material fact does not meet his initial burden of proof.”). Once the mover's burden is met, the burden shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. Code Civ. P. art. 966(D)(1); see also Keller v. Case, 1999-0424 (La. App. 1st Cir. 3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La. 9/29/00), 770 So.2d 3 54.

As mover, CPRA bore the initial burden; however, as to the issue of CPRA's liability to plaintiffs for inverse condemnation, plaintiffs would bear the ultimate burden at trial.⁴ St. Bernard Par. Gov't v. United States, 887 F.3d 1354, 1362 (Fed. Cir. 2018), cert. denied, 586 U.S. 1069, 139 S.Ct. 796, 202 L.Ed.571 (2019) (“It is well established that a takings plaintiff bears the burden of proof to establish that the government action caused the injury.”) Accordingly, CPRA needed only to point out the lack of factual support for one or more elements essential to plaintiffs’ inverse condemnation claim against CPRA.

Inverse Condemnation

Article I, § 4 of the Louisiana Constitution provides that property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner. La. Const. art. I, § 4(B)(1). The procedural remedy for a property owner seeking compensation for land already taken or damaged against a governmental or private entity having the powers of eminent domain where no expropriation has commenced is through an action for inverse condemnation. Baca v. Sabine River Auth., 2018-1046 (La. App. 1st Cir. 12/27/18), 271 So.3d 223, 228, writ denied, 2019-0149 (La. 3/18/19), 267 So.3d 95 (citing State Through Dept. of Transp. & Development v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992)). The action for inverse condemnation is available in all cases where there has been a taking or damaging of property where just compensation has not been paid, without regard to whether the property is corporeal or incorporeal. Id. To establish a claim for inverse condemnation, a party must show that: (1) a recognized species of property right has been affected; (2) the property has been taken or damaged in a constitutional sense; and (3) the taking or damaging was for a public purpose under La. Const. art. I, § 4. Id. (citing 1900 Highway 190, L.L.C. v. City of Slidell, 2015-1755 (La. App. 1st Cir. 6/3/16), 196 So.3d 693, 698).

At issue in this appeal is the second prong of the inverse condemnation analysis, i.e., whether the property has been taken or damaged in a constitutional sense. Takings liability arises from an authorized government activity. St. Bernard, 887 F.3d at 1360. In other words, a property loss compensable as a taking only results when the asserted invasion is the direct, natural, or probable result of authorized government action. Id. Moreover, on a takings theory, the government cannot be liable for failure to act, but only for affirmative acts. Id. In physical takings, government liability has uniformly been based on affirmative acts by the government or its agent. Id. at 1361; see also Chambers, 595 So.2d at 601 (“[Eminent domain] always involves the taking or damaging of property interests by the state or some alter ego of the state.”). However, most takings claims turn on situation-specific factual inquiries, and no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23, 31-32;133 S.Ct. 511, 518; 184 L.Ed.2d 417 (2012).

In this case, plaintiffs alleged that both CPRA and TLCD constructed and operated the MTG System, causing damage to their property and property interests through increased flooding. See Arkansas Game, 568 U.S. at 26; 133 S.Ct. at 515 (holding that recurrent floodings, even if of finite duration, are not categorically excepted from Takings Clause liability). In their motion for summary judgment on the issue of taking, plaintiffs argued that they possessed a protected property interest, offering the affidavit of Dewey Aucoin in support of the first prong of the inverse condemnation analysis.⁵ Focusing on the second prong, plaintiffs then argued that their property was taken in a constitutional sense, arguing that the construction and operation of the MTG System caused plaintiffs’ land to be invaded by floodwaters during non-storm conditions and that “Defendants” were aware that the MTG System was elevating surface water levels during tidal events outside its boundaries. Plaintiffs provided a detailed account of the TLCD's involvement with the MTG System, relying in part on the corporate depositions of TLCD in which TLCD representatives explained the MTG System's purpose and construction, and identified actions taken by TLCD in response to flooding events. Further, while plaintiffs expressly claimed that “TLCD has responsibility for maintaining and operating” the MTG System, no such claim was made regarding CPRA. In fact, plaintiffs did not point to any specific action of CPRA in their motion for partial summary judgment on the issue of taking.

In the cross-motion for summary judgment, CPRA maintained that plaintiffs’ own motion for partial summary judgment established that they lacked evidence of any conduct by CPRA such that the inverse condemnation claim against CPRA should be dismissed.⁶ CPRA pointed out that plaintiffs lacked any evidence that CPRA took affirmative acts that caused increased flooding on plaintiffs’ property. In support, CPRA referred to the exhibits, in globo, submitted in support of plaintiffs’ motion for partial summary judgment on taking, which CPRA submitted, along with additional documents, in support of the cross-motion for summary judgment in addition to other documents.⁷

Pursuant to our de novo review, we evaluate whether there is any genuine issue of material fact and whether CPRA is entitled to judgment as a matter of law (plaintiffs’ first and second assignments of error). See Murphy, 282 So.3d at 1038. In reviewing plaintiffs’ exhibits, included in support of the cross-motion for summary judgment, we note that there is no evidence of CPRA's conduct relative to construction, maintenance, or operation of the MTG System. The affidavit of Dewey Aucoin did not provide any information on the actions of CPRA, failing to mention CPRA at all. Further, the corporate depositions of TLCD did not provide evidence of CPRA's involvement in constructing and operating the MTG System. Reggie Dupre, corporate representative and former executive director of TLCD, mentioned CPRA a few times in his deposition, testifying that “TLCD [was] a signatory, along with CPRA [of] the PPA, Project Partnership Agreement.”⁸ Dupre indicated that CPRA was the main non-federal partner, noting that the federal government did not use the term “local sponsor.”⁹ Dupre also testified that when the MTG System is operating under normal conditions, “everything is open unless you're doing maintenance closures once a month[.]” During storm conditions when there is a declaration of emergency, all floodgates and environmental gates are closed as is dictated in an emergency contingency plan and at which time TLCD coordinates with federal, state, and local authorities, with its main contact with the state being CPRA. Nothing in Dupre's testimony implicated CPRA's involvement in constructing and operating the MTG System. Moreover, the testimony of Mitchell Marmande and Angela Hidalgo did not provide any evidence of CPRA's involvement in constructing and operating the MTG System.¹⁰

In further support of the cross-motion for summary judgment, CPRA attached the Certified Acceptance and Substantial Completion for Reach G-2B, as well as the Certified Substantial Completion and Acceptance for HNC Floodgate Steel Gate and Receiving Structure.¹¹ While neither document listed CPRA as an owner, engineer, or contractor, the Certified Substantial Completion and Acceptance for Reach G-2B identified the inspection attendees, which included two CPRA representatives: James McMenis and Brian Babin. No other mention of CPRA is made in these documents.

Also attached to the cross-motion for summary judgment was the 2023 Master Plan. The 2023 Master Plan provides that the master plan process develops and evaluates project concepts to generate regionally significant impacts over decades that complement local and parish-level efforts and helps respond to specific events. The master plan process allows the state to be prepared when funding becomes available by evaluating project concepts and advancing promising ideas. While it is the CPRA Board that is charged with developing a master plan for integrated coastal protection pursuant to La. R.S. 49:214.5.3(E), the CPRA Board coordinates with CPRA, state agencies, political subdivisions, including flood protection authorities, levee districts, and federal agencies, to jointly coordinate the master plan so as to maximize the effectiveness of integrated coastal protection efforts.¹² La. R.S. 49: 214.1(E). According to the 2023 Master Plan, once approved by the Louisiana Legislature, the master plan becomes the guiding document for the state's coastal activities and provides a path forward for billions of dollars of investment in the design, implementation, and operation of large-scale restoration and risk reduction solutions.

Pursuant to La. R.S. 49:214.6.1(A), CPRA is the implementation and enforcement arm of the CPRA Board and “may perform every act necessary, convenient, or incidental to the exercise of its power and authority, the discharge of its duties, or the performance of its functions.” CPRA is charged with oversight of the design, construction, extension, improvement, repair, and regulation of hurricane protection and flood control projects in the coastal area. La. R.S. 49:214.6.3(A)(4). Additionally, with respect to hurricane protection and flood control, CPRA's duties and responsibilities include, in part: (1) overseeing the administration of all matters related to the studying, planning, engineering, design, construction, extension, improvement, repair, and regulation of a hurricane protection and flood control system; (2) inspecting hurricane protection and flood control levees and structures within the coastal area; and (3) overseeing and approving the exercise of any authority with respect to hurricane protection and flood control by a political subdivision within the coastal area. La. R.S. 49:214.6.3(B).

The 2023 Master Plan contained a chapter entitled, “Regional Approach,” which provided information about five regions across the coast, including Terrebonne and those 2023 Master Plan projects selected for each region. Relative to the Terrebonne region, the 2023 Master Plan stated that 17 projects were selected. According to the 2023 Master Plan, federal funding had only recently been provided and “progress on the [MTG System] has been spearheaded by the [TLCD] and [CPRA] using local and state funds.”

Similar to the language of CPRA's enabling statutes, the 2023 Master Plan contains action language, with CPRA describing itself as an implementation agency and stating “we do not just plan projects, we build them.” The 2023 Master Plan generally stated that, for decades, the state and CPRA's partners “have moved projects forward from conception to construction” and that “CPRA has completed more than 140 projects to benefit coastal Louisiana.” The 2023 Master Plan also noted that “[f]ollowing construction, CPRA or its partners are responsible for project operation, maintenance, and monitoring.” Notwithstanding the language used in the 2023 Master Plan or CPRA's enabling statutes, nothing in the document or the statutes indicate that CPRA constructed and operated the MTG System as alleged by plaintiffs.

In response to the cross-motion for summary judgment, plaintiffs argued that there were genuine issues of material fact as to CPRA's liability for flooding caused by the MTG System. However, plaintiffs claimed that they did not need to address this issue because it was not listed in the issues of undisputed material facts. On appeal, plaintiffs maintain that reasonable minds could disagree on whether CPRA was involved in the construction or operation of the MTG System, pointing to the language of the 2023 Master Plan, CPRA's enabling statutes, the testimony of Dupre, and the Certified Substantial Completion and Acceptance for Reach G-2B; however, based on our de novo review, we do not find any evidence of affirmative actions by CPRA to take or damage plaintiffs’ property or that CPRA constructed or operated the MTG System that would create a genuine issue of material fact. Plaintiffs’ first and second assignments of error lack merit.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court's February 21, 2025 judgment, partially granting Coastal Protection and Restoration Authority's cross-motion for summary judgment and dismissing all claims of plaintiffs, Dewey F. and Lisa R. Aucoin, against Coastal Protection and Restoration Authority, with prejudice. Costs of this appeal in the amount of $12,764.00 are assessed to plaintiffs, Dewey F. and Lisa R. Aucoin.

AFFIRMED.

FOOTNOTES

1.   Plaintiffs averred that these “water control structures” included “a complex scheme of levees, drainage levees, T-Walls, navigation structures, floodwalls, and floodgates located in Terrebonne Parish.”

2.   According to defendants, the MTG System is “a massive system of levees and floodgates whose alignment spans nearly 100 miles across Terrebonne and Lafourche Parishes[.]”

3.   We find no merit to plaintiffs’ third assignment of error. Defendants’ cross-motion for summary judgment expressly stated, “[p]laintiffs also lack evidence of any conduct by CPRA, and the inverse condemnation claim against CPRA should also be dismissed on that additional basis.” Moreover, in the memorandum in support of the cross-motion for summary judgment defendants asserted the lack of evidence of any conduct by CPRA resulting in increased flooding on plaintiffs’ property and asserted that plaintiffs could not carry their burden of proof on the inverse condemnation claim against CPRA. Pursuant to La. Code Civ. P. art. 966(F), summary judgment may only be rendered as to those issues set forth in the motion under consideration by the courts at that time. The issue of CPRA's liability and lack of evidence of any conduct by CPRA was clearly set forth in the cross-motion for summary judgment and further advanced in the memorandum in support thereof. Therefore, the issue was properly raised, and the trial court did not err in ruling on this issue.

4.   While the cross-motion for summary judgment was jointly filed by defendants, we hereinafter refer to CPRA as mover as only CPRA was dismissed through summary judgment and is the defendant at issue in this appeal.

5.   In support of the motion for partial summary judgment on the issue of taking, plaintiffs attached the petition for damages, the amended petition for damages, the affidavit of Dewey Aucoin, and the corporate depositions of TLCD through its representatives - Reggie Dupre, Mitch Marmande, and Angela Hidalgo.

6.   Notably, in its exceptions, answer, and affirmative defenses, CPRA denied plaintiffs’ allegations that it chose to move forward with the MTG System, denied acting in concert with TLCD and sharing the responsibility for the MTG System. While admitting that it provided “certain funding for portions” of the MTG System, CPRA denied plaintiffs’ allegation that it participated in the “acquisition, construction, improvement, maintenance, and operation” of the MTG System.

7.   In support of the cross-motion for summary judgment, CPRA attached plaintiffs’ motion for partial summary judgment on the issue of taking, the memorandum in support thereof, and all of plaintiffs’ exhibits. CPRA also attached as exhibits the affidavit of Mitch Marmande, both TLCD's and CRPA's exceptions, answer, and affirmative defenses to plaintiffs’ petition for damages and amended petition for damages, certified copies of acceptance and substantial completion for two portions of the MTG System (the Reach G-2B levee and the HNC Floodgate), a certified copy of Louisiana's Comprehensive Master Plan for a Sustainable Coast, a certified copy of LUMCON's final report on Grappling with Flooding in an Era of Accelerating Sea-Level Rise, and the affidavit of Dr. Joseph Suhayda.

8.   The Project Partnership Agreement was not included as an exhibit to either of the motions for summary judgment.

9.   In the petition for damages attached as an exhibit to the cross-motion for summary judgment, plaintiffs alleged that TLCD and CPRA were “local sponsors.” However, in its exceptions, answer, and affirmative defenses also attached as an exhibit to the cross-motion for summary judgment, CPRA responded that its “characterization as a ‘local sponsor’ [was] a legal conclusion that require[d] no response” but denied the allegation to the extent a response was required.

10.   The only reference to CRPA in Marmande's testimony was when he was asked to read the following from a document he described as “completed internally by the [United States Army] Corps [of Engineers]”: “In coordination with [TLCD], [CPRA Board], North Lafourche Levee District, South Lafourche Levee District.”

11.   According to the affidavit of Marmande, attached as an exhibit to the cross-motion for summary judgment, “[t]he MTG Project floodgate that is nearest to Plaintiffs’ Property is the Houma Navigation Canal Floodgate” (also referred to as the HNC Floodgate) and “the MTG Project's levee reach that is nearest to Plaintiffs’ Property is Reach G-2B.”

12.   The CPRA Board was established through La. R.S. 49:214.1 and is authorized and empowered to carry out any and all functions necessary to serve as the single entity responsible to act as the local sponsor for construction, operation and maintenance of all of the hurricane, storm damage reduction and flood control projects in areas under its jurisdiction.

HESTER, J.