Associate Richard Traina clarifies a recent court ruling on a case about expanding a time-honored servitude to create a more expeditious and economical way to access property needed for hurricane protection.

Plaquemines Parish Dirt & Clay Co., L.L.C. v. Plaquemines Parish Gov’t

Plaquemines Dirt & Clay Company, L.L.C. (“PDC”) owns approximately six hundred (600) acres of land within the existing levee system of Plaquemines Parish, Louisiana.  PDC’s property is divided into a north pit and a south pit with a large Parish-maintained levee at the rear portion of the Property along a manmade drainage canal.  In a letter dated June 14, 2017, the U.S. Army Corps of Engineers, New Orleans District (the “Corps”), notified the Plaquemines Parish Government (“PPG”) that it proposed to construct 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. 

Then, on September 14, 2017, the Plaquemines Parish Council, for and of behalf of the West Bank Levee District, adopted Ordinance 17-121, which purportedly appropriated easement(s) over and across PDC’s property for the Corps’ project.

Shortly thereafter, PDC filed a petition for declaratory judgment, challenging the attempted taking, pursuant to the appropriation ordinance, of a permanent levee servitude on its property.  In its petition, PDC sought declarations from the trial court on:

  1. whether its land was riparian;
  2. whether its land was subject to appropriation; and
  3. whether the ordinance passed by PPG was premature because the Corps had not finalized the levee design. 

Next, PDC filed a motion for summary judgment seeking a ruling from the trial court that PDC’s property was non-riparian and PPG has no authority to acquire a levee servitude on PDC’s property by appropriation ordinance. After hearing arguments on the motion for summary judgment, the trial court rendered a judgment granting the motion. The judgment further declared that PDC’s property “is not riparian.” 

Appeals followed. Plaquemines Parish Dirt & Clay Co., L.L.C. v. Plaquemines Parish Gov’t, 2019-0831 (La. App. 4 Cir. 6/3/20), – – So. 3d – -, writ denied, 2020-00972 (La. 12/8/20). 

Key to the case were the 2006 amendments to Louisiana Civil Code article 665, the levee servitude article.

Civil Code article 665 recognizes the “levee servitude” under Louisiana law. Before 2006, the article provided:

Art. 665.  Legal public servitudes

Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works.

All that relates to this kind of servitude is determined by laws or particular regulations.

A legal servitude like the levee servitude is a limitation on ownership established by law for the benefit of the general public.  La. Civ. Code art. 659.

In 2006, the Louisiana Legislature amended and reenacted Civil Code article 665 by adding the article’s second sentence (in italics):

Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works.  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.

All that relates to this kind of servitude is determined by laws or particular regulations.

La. Civ. Code art. 665. At issue in the litigation was whether the amendment added a new category of property subject to the legal public servitude of article 665. In the amicus curiae briefs that the author filed, the Louisiana Coastal Protection and Restoration Authority argued that the 2006 amendment to Civil Code article 665 added a new category of property subject to the article’s legal public servitude.

In a three to two decision, a five-judge panel of the Louisiana Fourth Circuit Court of Appeal agreed. The majority opinion by Judge Belsome concluded that

[h]ere, we have clear, unambiguous language that aligns with the legislative intent. A review of the legislative history reveals that the necessity to introduce the amendment arose after the devastation Hurricanes Katrina and Rita inflicted on Louisiana. In furtherance of an effort to protect the State and its citizens from future hurricanes and flood events, allowing for appropriation of non-riparian property pursuant to article 665 created a more expeditious and economical way to access properties needed for that hurricane protection.

It is evident that the plain language of the 2006 amendment to La. C.C. art. 665 eliminated the requirement that land be riparian in order for a servitude to be established if, that property is located in the alignment approved by the Corps.

The concurrence/dissent[1] disagreed with the majority’s ultimate conclusion, finding that appropriation of non-riparian property necessary for the building of levees and other water control structures on the alignment approved by the Corps is not proper absent judicial involvement; that is, “without a ‘necessity fact determination’ by [a] district court.” PDC seized on that finding to file a writ application with the Louisiana Supreme Court.

A split Supreme Court denied the writ application. Justice Crain would have granted the writ and docketed the case. He assigned reasons. Justice Crichton would have granted the writ and docketed the case for the reasons assigned by Justice Crain. Justice Crain wrote:

 [t]he proper interpretation of Louisiana Civil Code article 665 has significant state-wide impacts, particularly across south Louisiana, and warrants granting and docketing this writ application for closer scrutiny of the 2006 amendment to that provision.  Historically, the appropriation of a levee servitude on riparian property was not a “taking” of the owner’s property under the 5th and 14th Amendments of the U.S. Constitution, because the government owned the servitude since the property’s separation from the public domain. . . .  In those instances, the government is not taking anything it does not already own; it is simply using a right reserved when the property first entered private ownership.  The use of that right is suited for the more streamlined appropriation procedure.  A much different scenario is presented by a servitude purportedly created on non-riparian property privately owned in full and complete ownership and previously unburdened by the right the government seeks to acquire and exercise.  The Constitutional ramifications of such governmental action has not previously been addressed by this court.  While I would grant the writ application at this time, I recognize the issue may be more appropriately reviewed after the parties have developed a complete evidentiary record at trial.

The issue remains unresolved. Given its significant statewide impacts, it likely will be litigated for some time (perhaps in different venues) before again reaching the Supreme Court.

Read Richard’s more detailed article on this case >

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[1]  The author filed amicus curiae briefs on behalf of the Louisiana Coastal Protection and Restoration Authority in the discussed case in both the Louisiana Fourth Circuit Court of Appeal and the Louisiana Supreme Court.
 
[2]  Judge Lobrano concurred in part, dissented in part, and assigned reasons.  Judge Brown concurred in part and dissented in part, for the reasons assigned by Judge Lobrano.
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