PLAQUEMINES DIRT CLAY COMPANY V. PLAQUEMINES PARISH GOVERNMENT (2020)

I respectfully concur in part and dissent in part.

As an initial matter, this is not a final, appealable judgment as it lacks sufficient decretal language to invoke this Court's appellate jurisdiction.¹ I would therefore convert the appeal to a writ and exercise this Court's supervisory jurisdiction.²

The government action reviewed in this case stems from Ordinance 17-121 adopted by the Plaquemines Parish Council, for and on behalf of the West Bank Levee District, on September 14, 2017 (“Appropriation Ordinance”). Plaquemines Parish Government (“PPG”) claims to have a legal public servitude on land owned by Plaquemines Dirt & Clay, L.L.C. (“PDC”) for the construction of the New Orleans to Venice, West Bank Hurricane Protection Levee, NOV-NF-W-06A.2: Pointe Celeste to West Point a la Hache, in Plaquemines Parish, Louisiana (“West Bank Levee Project”).

After the Appropriation Ordinance was adopted, PPG informed PDC that the United States Army Corps of Engineers, New Orleans District (“U.S. Corps”) notified PPG that the U.S. Corps require PPG “to provide an unobstructed right of entry prior to initiation of construction.” PPG's letter noted that a portion of PDC's land was “determined by the U.S. Army Corps of Engineers to be necessary for the construction” of the West Bank Levee Project and was part of the levee alignment. The letter continues with an explanation for the appropriation noting that PDC will maintain “title to the property but subject to the right of the levee district to maintain and operate the flood control structure” and “[w]ithin the next 12 months, the takings across the lands will be valued, and upon determination of ownership and clear title, you will be compensated based on the Corps approved fair market value.”

PPG claims that PDC's land on the proposed levee alignment is burdened with a legal public servitude created by either the 2006 amendment of La. C.C. art. 665 (“2006 Levee Servitude”) or the longstanding riparian levee servitude under Article 665 (“Riparian Levee Servitude”). In PPG's previous writ application challenging the district court's denial of its exception of no cause of action, PPG noted that there must be a factual determination “to conclude that the lands at issue are subject to a public servitude under La. C.C. Art. 665 because that property is ‘․ necessary for the building of levees and other water control structures on the alignment approved by the U. S. Army Corps of Engineers as provided by law, including the repairing of hurricane protection levees.’ ” Plaquemines Dirt & Clay Co., LLC v. Plaquemines Parish Gov't, unpub., 18-0601 (La. App. 4 Cir. 9/10/18) (“writ denied”). Such a “necessity fact determination” is required as Article 665’s mandate that the existence of a 2006 Levee Servitude is predicated on whether the U.S. Corps’ levee alignment is “necessary for the building of levees and other public or other water control structures” or whether another alignment can be engineered to avoid substantial damages to PDC's property taking into account economical and technological considerations.

PDC filed a motion for summary judgment seeking a ruling from the district court that PDC's appropriated land was non-riparian and PPG has no authority to acquire a levee servitude on any of PDC's property by an appropriation ordinance. The district court rendered a judgment granting the motion for summary judgment and in its reasons for judgment noted that “[w]hile PPG may not burden PDC's property by way of appropriation, it may do so by expropriation ․” The district court also found that that PDC's land was non-riparian. This appeal followed.

On appeal, PPG urges our Court to find that PDC's land is subject to a public legal servitude, either a Riparian Levee Servitude or a 2006 Levee Servitude under Article 665. Additionally, PPG argues that the district court committed legal error in granting the motion for summary judgment and finding appropriation is improper because any land that the U.S. Corps deems necessary for the rebuilding of levees and other water control structures is subject to PPG's appropriation powers; thus, PPG's taking of a 2006 Levee Servitude on PDC's land was effectuated by the Appropriation Ordinance.

After my de novo review, I would: (1) reverse, in part, the granting of PDC's motion for summary judgment as I find that a 2006 Levee Servitude can burden non-riparian land and that a “necessity fact determination” is required precluding summary judgment at this time ³ and (2) affirm, in part, the granting of PDC's motion for summary judgment as I also find that PDC's land is non-riparian, and thus, not subject to a Riparian Levee Servitude.

First, with respect to the reversal, in part, I concur in the majority's finding that the 2006 amendment of Article 665 added a new category of property subject to the article's legal public servitude to permit a 2006 Levee Servitude to burden non-riparian land. However, I part ways with the majority's reasons in that I disagree with any interpretation of Article 665 that allows for the immediate appropriation of PDC's land upon the U.S. Corps’ approval of a levee alignment without a “necessity fact determination” by the district court.⁴ Such an interpretation encroaches on property owners’ due process and property rights.⁵

The majority noted that “there is no available case law interpreting article 665 as amended.” Being a case of first impression, prior 2006 Levee Servitude appropriations were most likely amicable or not contested and did not require a judicial “necessity fact determination.” However, the particular facts in this case require a factual determination as to the necessity of the levee alignment, given that the alignment substantially deviates from similarly situated tracts and further severs access to the property, leaving it outside of the new levee system, which greatly devalues the property. It should not be overlooked that a portion of the proposed levee alignment deviates from the existing back levee and drainage system ⁶ and transects the center of PDC's property before turning downriver extending to the property line. This deviated tract will condemn nearly 250 acres of the property by severing access to the property and leaving it outside of the new levee system. PDC argues that the levee alignment substantially damages its property and noted in its petition that the “project can still be engineered to avoid the substantial damage.”

S. Lafourche Levee Dist. v. Jarreau, 16-0788 (La. 3/31/17), 217 So.3d 298 is the only case that considers the appropriation of non-riparian land by a levee district. There, the landowner did not elect to challenge the appropriation and was thus “barred from asserting any right or claim contesting the appropriation, except for a claim for compensation in accord with La. R.S. 38:301(C)(2)(h)(ii).” Id., 16-0788, p. 12, n. 9, 217 So.3d at 307. Implicit in this reasoning is the Court's recognition that a landowner of non-riparian land should, and indeed must, challenge any attempt by the government to appropriate non-riparian land if the levee alignment is questionable because it takes part of the landowner's ownership rights protected by Article I of the Louisiana Constitution.⁷

Thus, I adopt the most reasonable, constitutionally-permissible, least restrictive interpretation of this new sentence in Article 665 - that the government can impose a legal public servitude within an alignment approved by the U.S. Corps on non-riparian land; however, it still must be consistent with due process and with respect for property rights, both private and public, taking into account the totality of the circumstances as to each taking of such non-riparian land. When a landowner challenges an appropriation under this provision of Article 665, then the courts must make a factual determination as to the validity of the appropriation when requested.

The 2006 amendment to Article 665 only added the following sentence: “Such servitudes also exist on property necessary for the building of levees and other water control structures on the alignment approved by the U.S. Army Corps of Engineers as provided by law, including the repairing of hurricane protection levees.” This new language does nothing more than specify the prospective location of a public servitude (which, unlike a Riparian Levee Servitude, exists nowhere before the Corps’ approves an alignment), and satisfies the legislative purpose of simplifying the process of acquiring lands for levee purposes by defining the area that the U.S. Corps decides is of public necessity.

More importantly, neither the original nor the amended version of Article 665 speaks to the process to impose the new 2006 Levee Servitude or to the creation of a new servitude by appropriation. Given the pervasive federal regulations relating to any flood control projects, the Court can expect that levee alignments approved by the U.S. Corps will encompass most future levee projects and flood control structures of any significance in the State, riparian or otherwise.

Thus, it is important to recognize that the 2006 amendment preserved the status quo with respect to legal servitudes (whether riparian or non-riparian) by unequivocally stating that “[a]ll that relates to this kind of servitude is determined by laws or particular regulations.” Given the legislature's decision to preserve the law as it existed before 2006, I disagree with any interpretation of the amendment that would strip landowners of any applicable constitutional protections that have always existed for takings of property rights for unencumbered land.⁸

Second, I address the district court's court finding that PDC's land is non-riparian, and thus, not subject to a Riparian Levee Servitude. I agree with this finding of the district court. PPG alleges that the district court erred in finding that there was no issue of material fact that PDC's property was not riparian. I disagree.

I also dissent from the majority opinion in that the majority opinion does not review this pertinent finding of the district court and decides instead that “there is no need to determine the correctness of the trial court's determination that the Property is non-riparian.” PPG maintains that “PDC's lands did not front or directly abut the Mississippi River but offered evidence that Grand Bayou, a navigable water body abuts and at one time traversed PDC lands to classify them as riparian.”⁹

I find that PDC's land is non-riparian, and thus, not subject to a Riparian Levee Servitude. The Supreme Court provided historical perspective for the Riparian Levee Servitude as follows:

From the earliest Colonial days, when the Louisiana Territory was in the possession of France and Spain, no grants of lands were ever given without a specific reservation being made therein for the common use of the public of all rights to the shores of rivers upon which they might front. These two countries never divested themselves of title to lands lying immediately adjacent to navigable streams. This policy, during the Spanish occupation of the territory, became merged with the law relative to servitudes to be found in the ancient Las Siete Partidas of Spain and, in time, found its way into the First Civil Code adopted by the Territory of Orleans (comprising what is now known as the State of Louisiana) in 1808, after the Louisiana Territory had been acquired by the United States, the basic principles relative to servitudes in Las Siete Partidas being included therein almost verbatim, thus insuring that the shores of navigable rivers and streams in this state would always be kept free for the public for levee and other public purposes. These provisions remain in our codal law today, with the result that while in all of the remaining states of the Union lands necessary for levee purposes can only be used after expropriation and proper indemnification, in Louisiana the state has the right to act first, i.e., the authority to appropriate such land to a use to which it is subject under its very title, and talk later.

Dickson v. Bd. of Comm'rs of Caddo Levee Dist., 210 La. 121, 131–32, 26 So. 2d 474, 478 (1946).

The Supreme Court has continually recognized that the “legal servitude for levees and levee purposes has been maintained through the transitions of the Civil Code” and only applies to that portion of lands that are riparian and “necessary for the control of flood waters from the river to which the land taken is riparian.” DeSambourg v. Bd. of Comm'rs for Grand Prairie Levee Dist., 621 So. 2d 602, 607 (La. 1993) (citing Delaune v. Board of Comm'rs, 87 So.2d 749, 754 (La. 1956) (other citations omitted). Courts of this State have found “nothing in the history of the servitude, ․ which indicates the servitude was reserved beyond the limits of riparian concessions.” Deltic Farm & Timber Co. v. Bd. of Comm'rs for Fifth Louisiana Levee Dist., 368 So.2d 1109, 1112 (La. App. 3d Cir. 1979), writ denied, 371 So.2d 833 (La. 1979).

“As early as 1893, it was recognized riparian lands needed for levee purposes could be ‘taken’ without formal expropriation procedures because such lands are subject to a servitude under La. C.C. art. 665.” Wynat Dev. Co. v. Bd. of Levee Comm'rs for Par. of Orleans, 97-2121, p. 4 (La. 4/14/98), 710 So.2d 783, 785. In Peart v. Meeker, Peart v. Meeker, 45 La. Ann. 421, 422-23, 12 So. 490, 490 (1893), the Louisiana Supreme Court stated:

[W]e consider the law of Louisiana too well settled to admit of further dispute to the following effect: That under article 665 of our Civil Code riparian property on navigable rivers in this state is subject to a servitude or easement imposed by law for the public or common utility, authorizing the appropriation by the government, under proper laws, of the space required for the making and repairing of levees, roads, and other public works; that the state is charged with the administration of this public servitude; that in locating and building levees she does not expropriate the property of the citizen, but lawfully appropriates it to a use which it is subject under the title itself; that in so doing she acts, not under the power of eminent domain, but in the exercise of the police power․.

This Court echoed these longstanding civilian principles in Gravolet v. Bd. of Comm'rs for Grand Prairie Levee Dist., 598 So.2d 1231, 1234 (La. App. 4th 1992):

Because servitudes are in derogation of the public policy against encumbered property ownership, language providing for them must be strictly construed. Arcuri v. Cali, 244 So.2d 309 (La. 1971). The public levee servitude provided by law in La. C.C. art. 665 is no less in derogation of that public policy than are private servitudes. The codal language in La. C.C. art. 665 providing for the public levee servitude must likewise be strictly construed, keeping in mind the historic purpose of the servitude—the making and repairing of the levee immediately riparian to the navigable river or stream to prevent flooding from that river or stream.

The Riparian Levee Servitude that PPG alleges burdens PDC's land would be in derogation of the public policy against encumbered property ownership and should be strictly construed against PPG and in favor of PDC. Thus, doubt as to the existence, extent, or manner of the exercise of a legal public servitude shall be resolved in favor of the landowner and against levee boards. The historic purpose of the servitude was for the making and repairing of the levee immediately riparian to a navigable river or stream to prevent flooding from that river or stream. The West Bank Levee Project does not involve the construction of a levee immediately adjacent to a navigable river or stream as contemplate by Article 665. Thus, PDC's land is not subject to a Riparian Levee Servitude because, as found by the district court, the land subject to appropriation is non-riparian.

FOOTNOTES

1.   The judgment merely grants the motion for summary judgment. It does not, however, specify the dispositive relief granted; one can only discern that relief from the motion for summary judgment. In order for the judgment to be considered as a final appealable judgment, this Court “must be able to determine from the judgment itself—without any reference to an extrinsic source—the specific relief granted.” Tsegaye v. City of New Orleans, 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710 (finding the district court's certification of the judgment as final insufficient where the result of granting the motion for partial summary judgment was not specified in the judgment). Moreover, “the district court's oral or written reasons for judgment form no part of the judgment, and [ ] appellate courts review judgments, not reasons for judgment.” Wooley v. Lucksinger, 09-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (citations omitted).

2.   PPG timely filed its motion for appeal within the thirty-day period allowed for the filing of applications for supervisory writs, such that this Court could convert the pending appeal to a writ application under its supervisory jurisdiction. See Favrot v. Favrot, 10-0986, p. 6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104.

3.   I also disagree with the district court's finding that PPG's only remedy in this case is to expropriate PDC's land. I find that, pursuant to La. R.S. 38:351, PPG must first attempt to appropriate or amicably acquire immovable property needed for levees purposes before it “may acquire the property by expropriation prior to judgment” in accordance with Title 38, Chapter 3-A, Part V of Louisiana Revised Statutes.

4.   The majority opinion could be broadly interpreted. The majority cites S. Lafourche Levee Dist. v. Jarreau, 16-0788 (La. 3/31/17), 217 So.3d 298 for the proposition that the Louisiana Supreme Court “explained that an appropriation is carried out by a resolution of the appropriating authority, without the need for a judicial proceeding; and involves the taking of a servitude.” In addition, footnote 3 of the majority opinion states that there are “distinct differences in how compensation is determined” as to appropriation and expropriation for levee construction. However, through constitutional and statutory enactments, the legislature has chosen to treat property owners similarly as to compensation whereby each receive compensation which “shall not exceed the compensation required by the Fifth Amendment of the Constitution of the United States of America,” regardless of whether the property was expropriated or appropriated. La. Const. art. I, § 4(G); La. Const. art. VI, § 42(A) (citing La. Const. art. I, § 4(G)). See Jarreau, 16-0788, p. 12, 217 So.3d at 307 (citing La. Const. art. VI, § 42(A); La. R.S. 38:301(C)(1)(h)-(i)); id., 16-0788, p. 20, 217 So.3d at 311 (stating that the “legislature intended to treat property owners the same, allowing them compensation for the fair market value of their property whether it was expropriated or appropriated for a hurricane protection project”); see also id., 16-0788, p. 25, 217 So.3d at 314 (citing La. R.S. 38:301(C)(2)(f) relative to attorney's fees). I also note that this Court granted leave to the Louisiana Landowners Association, Inc. to file an amici curiae brief. In its brief, the association defends property owners’ due process and property rights when the government appropriates a levee servitude on non-riparian land in Louisiana.

5.   The “power of the State and private entities authorized by law to take property competes with the sacred and fundamental rights of citizens to own, control, use, enjoy, protect, and dispose of property.” Exxon Pipeline Co. v. Hill, 00-2535, p. 18 (La. 5/1/01), 788 So.2d 1154, 1166 (Knoll, J., concurring) (emphasis added). The Louisiana Constitution provides that “[e]very person has the right to acquire, own, control, enjoy, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.” La. Const. Art. I, § 4(B).

6.   PPG acquired the back levee and drainage in 2012.

7.   See also 4 La. Civ. L. Treatise, Predial Servitudes § 11:15 (4th ed. 2019)(citing Verdun v. Scallon Bros. Contractors, 255 So. 2d 808, 815 (La. App. 1 Cir. 1971), writ issued, 260 La. 400, 256 So. 2d 288 (1972), and aff'd, 263 La. 1073, 270 So. 2d 512 (1972)(recognizing landowner's cause of action to challenge alleged abuse in government exercise of appropriation and stating that “[i]f as a matter of fact there are other lands available which should be appropriated in lieu of the use of the previously appropriated property, the burden rests with the party complaining to establish the necessity therefor, including the economical and technological reasons for doing so.”).

8.   The imposition of a levee servitude on non-riparian land has always been considered a constitutional taking of a private property right. Delaune v. Board of Comm'rs, 87 So.2d 749, 752-753 (La. 1956). However, the exercise of a Levee Riparian Servitude is not a taking because a levee servitude or burden on riparian land is already on the property at the time the property was separated from public domain. See Town of Vidalia v. McNeely, 274 U.S. 676,684,47 S. Ct. 758,762,71 L. Ed. 1292 (1927) (“This servitude had existed in Louisiana since before the creation of the state, and has been recognized by this court and held consistent with the Fourteenth Amendment”); Gen. Box Co. v. United States, 351 U.S. 159, 164, 76 S. Ct. 728, 732, 100 L. Ed. 1055 (1956); Eidridge v. Trezevant, 160 U.S. 452,465, 16 S. Ct 345, 347,40 L. Ed. 490 (1896). “Riparian lands are regarded as burdened with this servitude at the time they are severed from the public domain.” Maynard v. U.S. Through U.S. Corps of Engineers, Dep't of Army, 587 F.2d 788,790 (5th Cir. 1979). For that reason, the State or its political subdivisions may exercise that preexisting property right for the construction of levees through appropriation, which consists solely of a council resolution or local ordinance. In contrast, a 2006 Levee Servitude does not burden property until it comes into existence at some later date, if ever. The new 2006 Levee Servitude is quite different from the longstanding Riparian Levee Servitude and will requires different legal analysis refraining from effectively rewriting of the Civil Code, which is a prerogative that belongs to the legislature under our system of government. The 2006 amendment of Article 665 resulted in the need for thoughtful review regarding the manner in which to process this drastically new type of expansive servitude and one that does not fit well with the laws of predial servitudes and riparian land.

9.   Although inapplicable in this case in that it does not involve littoral or riparian rights, for a discussion of the application of federal and state laws to the sea and seashore, see Riceland Petroleum Co. v. N. Am. Land Co., 03-0241, pp. 13-14 (La. App. 3 Cir. 2/18/04), 869 So.2d 894, 902-03; compare littoral lands, which border an ocean, sea, or lake at the time the property was separated from public domain, Id., 03-241, p. 9, 869 So.2d at 900-01, with riparian lands, which border on rivers or streams, Dickson v. Bd. of Comm'rs of Caddo Levee Dist., 210 La. 121, 131, 26 So. 2d 474, 478 (1946) (“no grants of lands were ever given without a specific reservation being made therein for the common use of the public of all rights to the shores of rivers upon which they might front.”).

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.