American Waste and Pollution Control Co., Matter of

• Decision Date: 11 March 1991
• Docket Number: Nos. CA,s. CA
• Parties: In the Matter of AMERICAN WASTE AND POLLUTION CONTROL COMPANY. In the Matter of CHEMICAL WASTE MANAGEMENT, INC., LAKE CHARLES. CHEMICAL WASTE MANAGEMENT, INC. v. STATE of Louisiana, DEPARTMENT OF ENVIRONMENTAL QUALITY. In the Matter of DRAVO BASIC MATERIALS COMPANY, INC., Pontchartrain Materials Corporation and Louisiana Materials Company. 89 0906, CA 90 0516, 90 0724 and CA 90 1525. 580 So.2d 392, 22 Envtl. L. Rep. 20,207
• Court: Court of Appeal of Louisiana — District of US

Page 392

580 So.2d 392

In the Matter of AMERICAN WASTE AND POLLUTION CONTROL COMPANY In the Matter of CHEMICAL WASTE MANAGEMENT, INC., LAKE CHARLES CHEMICAL WASTE MANAGEMENT, INC. v. STATE of Louisiana, DEPARTMENT OF ENVIRONMENTAL QUALITY In the Matter of DRAVO BASIC MATERIALS COMPANY, INC. Pontchartrain Materials Corporation and Louisiana Materials Company.

Nos. CA 89 0906, CA 90 0516, 90 0724 and CA 90 1525.

580 So.2d 392, 22 Envtl. L. Rep. 20,207

Court of Appeal of Louisiana, First Circuit.

March 11, 1991.

Dissenting Opinions March 15, 1991.

Gerald L. Walter, Jr., and James C. Percy, Schwab & Walter, Baton Rouge, for appellant American Waste and Pollution Control Co.

Paula J. Lawrence, and Roland T. Huson, III, Baton Rouge, for appellee Dept. of Environmental Quality.

J. Arthur Smith, Baton Rouge, for intervenors Marc Oray, Dr. Robert Rush, Inglewood Land and Development Corp. and Rio Rouge Development Corp.

John N. Kennedy, Office of the Governor, Baton Rouge, for Governor.

Gerald L. Walter, Jr., Schwab & Walter, Anne J. Crochet, Baton Rouge, for appellant Chemical Waste Management, Inc.

Raeford Craig Lackey, Ann C. Coco, Gordon Green and John B. King, Dept. of Environmental Quality, Office of Legal Affairs and Enforcement, Baton Rouge, for appellee State of La., Dept. of Environmental Quality.

Marvin Harger and Michael Tritico, Lake Charles, for C.L.E.A.N.

Gernine M. Mailhes, Lake Charles, for Calcasieu Parish Police Jury.

James A. Burton, J. Thomas Hamrick, Jr. and Susan F. Clade, Simon, Peragine, Smith & Redfearn, New Orleans, for appellant Dravo Basic Materials Co., Inc.

John R. Peters, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for appellant Pontchartrain Materials Corp.

Robin B. Durant, in pro per. Louisiana Materials Co., Inc.

Ian Douglas Lindsey, Asst. Atty. Gen., Baton Rouge, for intervenor State of La. through the Dept. of Justice.

Michael Osborne and Christopher Gobert, Osborne & McComiskey, New Orleans, for intervenor Save Our Coast.

Michael D. Conroy, Metairie, for intervenor Lake Pontchartrain Basin Foundation.

Before COVINGTON, C.J., and LOTTINGER, EDWARDS, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN, LEBLANC, FOIL and GONZALES, JJ.

COVINGTON, Chief Judge.

These appeals from the Department of Environmental Quality (DEQ) and from the district court ¹ involve diverse factual and legal issues. They were consolidated for the purpose of addressing the sole question of whether the procedure for appeal of decisions by the DEQ established in LSA-R.S. 30:2024 is constitutional, following the decision by the Louisiana Supreme Court in Moore v. Roemer, 567 So.2d 75 (La.1990). The Moore case held that the legislature was without authority to divest district court of jurisdiction over worker's compensation claims in Act 938 of 1988, because of the constraints of La. Const. art. V, Sec. 16. Following the rationale of Moore v. Roemer, we hold that LSA-R.S. 30:2024 is unconstitutional as violative of La. Const. art. V, Sec. 16.

SUMMARY OF MOORE v. ROEMER

A brief review of the background and holding of Moore is essential to understanding its implications and effect on the cases at bar. Moore arose in the context of worker's compensation claims.

From 1914, when the Legislature first created a worker's compensation scheme, until 1983, an employee was required to initiate a claim for compensation benefits by bringing a civil suit against his employer in district court. In 1983, the Legislature created the Office of Worker's Compensation Administration (OWCA), and required employees to initiate their claims for compensation benefits by filing them initially with the director of the OWCA. The director then issued an advisory recommendation, which could be rejected by any party; the employee thereafter had the right to file a civil suit in the district court.

In 1988, the Legislature enacted Act 938, which basically removed worker's compensation disputes from district courts. It vested "exclusive original jurisdiction" to adjudicate these claims in administrative hearing officers. Appeals from their decisions went to an appeals panel ² within the OWCA, and from these panels directly to the courts of appeal. The role of the district courts was thus eliminated entirely.

Act 938 was challenged in district court and its constitutionality upheld. However, on appeal before this court, a majority of a five-judge panel reversed and found Act 938 was in violation of La. Const. art. V, Sec. 16(A) which vests district courts with original jurisdiction of all civil matters except as otherwise authorized by the constitution. Since there was no constitutional authorization to treat worker's compensation differently, the Legislature's act was held unconstitutional.

The Supreme Court affirmed that decision, likewise finding that the Act violated Article 5, Section 16's grant of original jurisdiction to district courts. Justice Lemmon, writing for the court, discussed the meaning of original jurisdiction as follows:

Original jurisdiction refers to jurisdiction in the first instance. The term designates the adjudicative tribunal in which the initial adjudication is made. When the original jurisdiction allocated to the various courts is circumscribed by the Louisiana Constitution, the Legislature may not alter such jurisdiction by statute.

. . . . .

The language of La. Const. art. V, Sec. 16 makes it evident that the drafters of the 1974 constitution intended to vest the district court with at least concurrent original jurisdiction to adjudicate all legal matters, both civil and criminal, except for those matters in which original jurisdiction is "otherwise authorized" by the constitution itself in other courts or in other adjudicate tribunals. La. Const. art. V, Sec. 16(A) uses the term "civil" in direct contrast to "criminal" matters. This terminology indicates an intent by the drafters to include all matters not criminal in nature as "civil matters" under the district court's original jurisdiction. Nothing in the constitution suggests any intent that a separate category of innominate matters should be excluded from these all-inclusive terms.

The constitution's explicit statement that original jurisdiction over all civil and criminal matters is to be in the district courts "unless otherwise authorized by the constitution", along with express authorization elsewhere in the constitution for original jurisdiction in administrative bodies such as the Civil Service Commission and Public Service Commission, further indicates that matters under the original jurisdiction of administrative bodies are civil matters which would otherwise come under the original jurisdiction of the district court.

[Citations and footnotes deleted; emphasis added.] 567 So.2d at p. 79.

In the face of such strong language on the all-inclusive nature of the district court's original jurisdiction, challenges to the direct appeal of DEQ decisions to the Court of Appeal have been raised using some of the same arguments on the exclusion of district courts. Respondents have pointed out the DEQ appeals, like worker's compensation appeals, are not "otherwise authorized" by the constitution in other adjudicate tribunals in the way that Civil Service Commission and Public Service Commission appeals are. Therefore, they argue, LSA-R.S. 30:2024 violates La. Const. art. V, Sec. 16 and its grant of original jurisdiction to the district courts.

STATUTORY HISTORY

A brief review of the history of the pertinent environmental law regulations is also helpful to an understanding of the issues presented herein. Title 30, Revised Statutes of 1950, entitled "Minerals, Oil, and Gas," was amended by La. Acts 1978, No. 334, Sec. 1, to add Chapter 11, entitled "Environmental Affairs" and containing "Part I. Hazardous Waste Control," with sections numbered 1101-1116. Thereafter, Chapter 11 was amended by Acts 1979, No. 449, Sec. 1, to reenact the provisions therein to include sections 1051-1147. LSA-R.S. 30:1072 (the precursor of Section 2024) was first added by this Act, and at that time read as follows:

Any order or any suspension or revocation of a permit, license, or variance issued by the assistant secretary shall become final, unless, no later than thirty days after the order or notice of the suspension or revocation is served, the person or persons named therein request a public hearing. Upon such request, the commission shall promptly conduct a public hearing. ³ [Emphasis added.]

Acts 1982, No. 322, Sec. 1, rewrote the statute to provide for the first time a direct review by the court of appeal, as follows:

A. Any enforcement or permit action taken by the assistant secretary shall be effective upon issuance. Such action shall be final and not subject to further review unless, no later than thirty days after the notice of the action is served by certified mail upon the respondent, he files with the assistant secretary a request for hearing before the commission. Upon timely filing of the request, the assistant secretary shall either grant the relief requested or forward the request to the commission. The commission shall adopt rules governing such appeals.

B. Any person aggrieved by a final decision or order of the commission may appeal therefrom to the Court of Appeal, First Circuit, if a motion for an appeal is filed with the commission within thirty days after the final decision or order is served upon the respondent. Any preliminary, procedural, or intermediate ruling or decision by the commission is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. The Court of Appeal, First Circuit shall promulgate rules of procedure to be followed in taking and lodging such appeals. The provisions of R.S. 49:962 and 964 shall not apply to decisions and orders of the commission. [Emphasis added.]

This statute has been amended...