The judge and the developer lost. The levee won says the Court of Appeal.
A three-judge panel of the state 5th Circuit Court of Appeal has ordered a St. John the Baptist Parish judge to grant the expropriation of 364 acres of private land needed to build portions of the West Shore Lake Pontchartrain Hurricane Levee. Once Judge Vercell Fiffie complies with the order, construction can continue on the Pontchartrain Levee District’s $760 million, 18½-mile-long levee system, which is designed to protect St. John the Baptist, St. Charles and St. James parishes from storm surges like those that devastated their east banks during Hurricane Ida earlier this year and Hurricane Isaac in 2012. A three-judge panel including Judges Hans Liljeberg, Fredericka Wicker and Marc Johnson ruled that Fiffie erred in attempting to combine the levee district’s expropriation request with a lawsuit filed by Nature Land Co. LLC, a company owned by a former judge and a prominent New Orleans developer, that challenged the expropriation process. In their ruling, the trio of judges concluded that state law requires the local trial court to issue an order of expropriation if the levee district follows the law’s requirements, which include depositing money equal to the property’s estimated value in the court’s registry.
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This is not the end. First is it in time for the Corps of Engineers to act? Also the and owners can contest the price offered for the land.
In this case, the levee district was prepared to deposit $492,800 for the land, an amount determined by appraisers hired by the levee district. State law still allows the owners to contest the value of the land in court following its expropriation. On Friday, Fiffie had held a hearing in which he confirmed his earlier decision to combine the two cases, but a hearing date had not yet been set. The property owned by Nature Land include land to be used for two access roads and for part of the levee. Nature Land’s controlling partner is Thomas Kliebert Jr., of Paulina, a former judge of the 23rd Judicial District Court. New Orleans lawyer and developer John Cummings III is also a partner. Attorneys representing the landowners did not respond to a request for comment. A spokeswoman for the state Coastal Protection and Restoration Authority, which acts as the official local sponsor for the levee project, said officials there were still in the process of reviewing the order. In its request to the 5th Circuit, the levee district said that if it does not gain control of the disputed property by Dec. 23, contracts already awarded by the Army Corps of Engineers for access road construction will have to be rebid or renegotiated, which could delay the project and drive up its cost. In its ruling, the 5th Circuit ordered Fiffie to issue the expropriation before Dec. 23, which might help the Corps avoid having to rebid or renegotiate its contracts.
The initial ruling seems to hang on if the District actually talked to the land owners.
In his earlier ruling, Fiffie said there was no proof that the levee district had attempted to negotiate with Nature Land. But in their ruling, the 5th Circuit judges said the board’s petition for expropriation had letters attached that it had forwarded to Nature Land with its property purchase offer, and the statement of the levee board that it received no response from Nature land. The state law “does not require evidence of negotiations to be included in the petition,” the 5th Circuit ruling said.
It is sad that, with the flooding we have and the proven effectiveness of levees, that it should be so hard to build them.
