Baca v. Sabine River Auth.

• Decision Date: 27 December 2018
• Docket Number: NO. 2018 CA 1046,2018 CA 1046
• Parties: Marko and Erica Jill BACA, Arlis and Donnia Barrow, Lee and Tina Marie Blackmon, Roy and Vondal Blackmon, Ernestine Boone, Russell Brack, Donald and Pamela Brack, Mastern and June Brack, Mary Clark, Kevin and Diana Connally, Ruby Craft, Bradley Craft, Robert Cryer, Edward Cryer, Katie Evans Daffin, Rusty and Carla Egan, Bobby and Frances Egan, Joel Evans, Jimmy Fleniken, Johnny Nash, Kina Hill, Rodney Jarrell, Scotty Jeane, Toni Jordan, John Lisa Kerr, Susan Knight Mathews, Edward and Elizabeth Knowlton, John Kramer, Robert and Morgan Lewis, Luther Logan, Jr., Katherine Maresh, Brent and Betty Mcbride, Amber Mcneil, Abbie Mitcham, William and Geraldine Mitcham, Kelly Nash, Linda Newsom, Donnie and Mary Parker, Joel Pennington, Kenneth Pennington, Richard Phillips, Von Savell, Max and Donice Shaw, Jeffrey Simmons, Jr., Jeffrey and Alice Simmons, Marvin Smith, Glenna Smith, John Smith, Melvin Smith, Silvia Smith, Emery and Jean Soileau, Wade Stanley, Charles and Geraldine Tilley, Kenneth Vincent, Gregg Walker, Mark Williams, & Lonnie and Yvonne Young v. SABINE RIVER AUTHORITY, State of Louisiana
• Court: Court of Appeal of Louisiana — District of US

271 So.3d 223

Marko and Erica Jill BACA, Arlis and Donnia Barrow, Lee and Tina Marie Blackmon, Roy and Vondal Blackmon, Ernestine Boone, Russell Brack, Donald and Pamela Brack, Mastern and June Brack, Mary Clark, Kevin and Diana Connally, Ruby Craft, Bradley Craft, Robert Cryer, Edward Cryer, Katie Evans Daffin, Rusty and Carla Egan, Bobby and Frances Egan, Joel Evans, Jimmy Fleniken, Johnny Nash, Kina Hill, Rodney Jarrell, Scotty Jeane, Toni Jordan, John Lisa Kerr, Susan Knight Mathews, Edward and Elizabeth Knowlton, John Kramer, Robert and Morgan Lewis, Luther Logan, Jr., Katherine Maresh, Brent and Betty Mcbride, Amber Mcneil, Abbie Mitcham, William and Geraldine Mitcham, Kelly Nash, Linda Newsom, Donnie and Mary Parker, Joel Pennington, Kenneth Pennington, Richard Phillips, Von Savell, Max and Donice Shaw, Jeffrey Simmons, Jr., Jeffrey and Alice Simmons, Marvin Smith, Glenna Smith, John Smith, Melvin Smith, Silvia Smith, Emery and Jean Soileau, Wade Stanley, Charles and Geraldine Tilley, Kenneth Vincent, Gregg Walker, Mark Williams, & Lonnie and Yvonne Young

v.SABINE RIVER AUTHORITY, State of Louisiana

NO. 2018 CA 1046

Court of Appeal of Louisiana, First Circuit.

Judgment rendered DECEMBER 27, 2018

JENNIFER N. WILLIS, NEW ORLEANS, LA AND GARY J. GAMBEL, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFFS-APPELLANTS, MARKO BACA, ET AL.

JOHN P. WOLFF, III, NANCY B. GILBERT, SYDNEE D. MEOU, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT-APPELLEE, SABINE RIVER AUTHORITY, STATE OF LOUISIANA

HARRY J. VORHOFF, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE, STATE OF LOUISIANA

BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

PETTIGREW, J.

In this inverse condemnation suit, the plaintiffs appeal a judgment sustaining the defendant's exception raising the objection of no cause of action and dismissing plaintiffs' petition with prejudice based on federal preemption. For the reasons set forth herein, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Two state agencies jointly regulate the waterways of the Sabine River, which meanders between Louisiana and Texas: the Sabine River Authority, State of Louisiana ("SRA-L") and the Sabine River Authority, State of Texas ("SRA-T"). The SRA-L and the SRA-T applied for and received a license from the Federal Energy Regulatory Commission ("FERC")¹ for the construction, operation, and maintenance of a large reservoir, the Toledo Bend Dam,² a spillway, and a hydroelectric plant. In accordance with the provisions of the Federal Power Act ("FPA"), 16 USC § 791a - 828c, FERC may issue licenses for the construction, operation, and maintenance of dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction. 16 USC 797(e).

Plaintiffs are all owners of property located in Louisiana in Vernon Parish or Beauregard Parish near the Sabine River, downstream from the Toledo Bend Dam. Defendant, the SRA-L, is an agency and instrumentality of the State of Louisiana. La. R.S. 38:2324(A). In March 2017, plaintiffs filed a Petition for Compensation for Taking of Property, in which they alleged that the erection of the Toledo Bend Dam by the SRA-L caused significant changes to the Sabine River, downstream from the dam, and that those changes to the river increased the risk of flooding in the property near the Sabine River. Plaintiffs alleged that the changes to the river caused catastrophic flooding in the watershed below the Toledo Bend Dam on March 10, 2016, including plaintiffs' properties, and that their properties will continue to flood in the future due to the changes to the river. Plaintiffs contend that the SRA-L's actions causing changes to the river and the resultant flooding constituted a taking of their property without formal expropriation proceedings and without just compensation, in violation of Article I, § 4 of the Louisiana Constitution.

On April 24, 2017, the SRA-L filed a Notice of Removal to the United States District Court for the Middle District of Louisiana, alleging federal question jurisdiction under 28 U.S.C. § 1331³ and 16 U.S.C. § 825p⁴ . Thereafter, the SRA-L filed a motion to dismiss the plaintiffs' petition, and the plaintiffs filed a motion to remand the matter to the state court. The United States District Court concluded that federal jurisdiction did not exist in this case under either § 1331 or § 825p and remanded the matter to the state court. The United States District Court also denied the SRA-L's Motion to Dismiss as moot.

Following remand, the SRA-L filed a peremptory exception raising the objections of no cause of action and nonjoinder of a party. After a hearing, the trial court concluded that plaintiffs' suit is preempted under federal law and granted the SRA-L's exception of no cause of action. Because the court dismissed plaintiffs' suit with prejudice for failure to state a cause of action, the exception of nonjoinder was denied as moot. Plaintiffs appealed.

DISCUSSION

The purpose of an exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the petition. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La. 7/5/94), 640 So.2d 237, 241 ; see La. C.C.P. arts. 927 and 931. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. See La. C.C.P. art. 853 ; Cardinale v. Stanga, 01-1443 (La.App. 1 Cir. 9/27/02), 835 So.2d 576, 578. The burden of demonstrating that no cause of action has been stated is on the exceptor. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692, p. 5 (La.App. 1 Cir. 9/24/99), 754 So.2d 1057, 1060.

In ruling on an exception of no cause of action, the trial court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition and annexed documents at trial. Adams v. Owens-Corning Fiberglas Corp., 04-1296, p. 3 (La.App. 1 Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 05-2501 (La. 4/17/06), 926 So.2d 514. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. When a petition is read to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Brister v. GEICO Ins., 01-0179, p. 6 (La.App. 1 Cir. 3/28/02), 813 So.2d 614, 617. When an exception of no cause of action is based on an affirmative defense, such as federal preemption, the exception should not be sustained unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based. Adams, 04-1296 at pp. 3-4, 921 So.2d at 976 ; Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir. 2012), cert. denied, 568 U.S. 941, 133 S.Ct. 427, 184 L.Ed.2d 258 (2012).

The reviewing court conducts a de novo review of a trial court's ruling sustaining an objection raising the exception of no cause of action, because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. Adams, 04-1296 at p. 4, 921 So.2d at 976.

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. 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. 1900 Highway 190, L.L.C. v. City of Slidell, 15-1755, p. 6 (La.App. 1 Cir. 6/3/16), 196 So.3d 693, 698.

The well-pleaded facts of the plaintiffs' petition seeking just compensation for the inverse condemnation of their property under La. Const. Art. I, § 4 and La. R.S. 13:5111⁵ are as follows: the SRA-L's construction of the Toledo Bend Dam caused significant changes to the Sabine River, downstream from the dam, which changes caused an increased risk of flooding in the property near the river. The changes to the river resulting from the erection of the dam caused catastrophic flash flooding in the watershed below the Toledo Bend Dam on March 10, 2016, including the property belonging to the plaintiffs. The Toledo Bend Dam was constructed for a public purpose, including providing recreation, irrigation, and flood control for the area. The modification of the watershed so as to cause flooding constituted a taking, in a constitutional sense, of plaintiffs' property by causing increased flooding in the past, which will continue to occur in the future, preventing the plaintiffs from using their properties to their highest and...