St. Bernard Parish Gov't v. United States

• Decision Date: 04 April 2019
• Docket Number: No. 15-1072C,15-1072C
• Court: Court of Federal Claims
• Parties: ST. BERNARD PARISH GOVERNMENT, Plaintiff, v. UNITED STATES, Defendant.

ST. BERNARD PARISH GOVERNMENT, Plaintiff, v. UNITED STATES, Defendant.

No. 15-1072C

United States Court of Federal Claims

April 4, 2019

Motion to Dismiss; Breach of Contract; Monetary Damages; Equitable Relief; Indemnification; Standing; Equal Access to Justice Act.

Robert E. Couhig, Couhig Partners, LLC, New Orleans, LA, for plaintiff. Of counsel were Jason A. Cavignac and Cory S. Grant, Couhig Partners, LLC, New Orleans, LA, and William M. McGoey, St. Bernard Parish Government, New Orleans, LA.

Steven C. Hough, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division, Department of Justice.

OPINION

HORN, J.

The above-captioned case was filed in the United States Court of Federal Claims on September 25, 2015. Relevant federal district court proceedings concluded in March 2018 and relevant State court proceedings concluded in February 2017. In this court, plaintiff St. Bernard Parish Government (St. Bernard Parish), a political subdivision located in the State of Louisiana, asserts that the United States, acting through the United States Army Corps of Engineering (Army Corps), breached a contract between St. Bernard Parish and the Army Corps related to the repair of levees in Louisiana following Hurricane Katrina.

FINDINGS OF FACT

On September 1, 2005, the President of St. Bernard Parish, Henry Rodriguez, Jr., issued an Executive Order under the Louisiana Homeland Security and Emergency Assistance and Disaster Act. See LA. STAT. ANN. § 29:721, et seq. (2005). In the September 1, 2005 Executive Order, Mr. Rodriguez stated that Hurricane Katrina had "struck" the State of Louisiana and caused severe flooding and damage to southeastern Louisiana, including St. Bernard Parish. After noting in the Executive Order that the Governor of the State of Louisiana had declared a state of emergency for the entire State of Louisiana, Mr. Rodriguez declared a state of emergency "for the entire Parish." Mr. Rodriguez also stated in his Executive Order:

I am hereby authorized to commandeer or utilize private property during this local disaster pursuant to the authority of the Parish President under La. [Louisiana Revised Statute] R.S. 29:727 and grant rights of entry for usage for this purpose: emergency hurricane protection work, including access, borrow, disposal, construction and any other required work.

The Louisiana Homeland Security and Emergency Assistance and Disaster Act, cited by Mr. Rodriguez in the September 1, 2005 Executive Order, provides that, "[i]n addition to any other powers conferred upon the parish president by the constitution, laws, or by a home rule charter or plan of government, such authority may," "[s]ubject to any applicable requirements for compensation, commandeer or utilize any private property if he finds this necessary to cope with the local disaster." See LA. STAT. ANN. § 29:727(f)(4) (2005).¹

According to an October 10, 2005 memorandum authored by Steven Stockton, a Deputy Director of Civil Works at the Army Corps, Mr. Stockton met with John Paul Woodley, who plaintiff states was an "Assistant Secretary of the Army (Civil Works)," on October 3, 2005. The October 10, 2005 memorandum indicates that the purpose of the October 3, 2005 meeting was to provide John Paul Woodley with "information regarding options for recommended policy deviations to the Corps policy regarding local sponsor requirements to provide all lands, easements, rights-of-way, and disposal or borrow areas (LERRD)[²] associated with rehabilitation of damaged federal and non-federal hurricane protection and flood control projects at no cost to the federal government." Steven Stockton's October 10, 2005 memorandum states that John Paul Woodley verbally approved two "potential deviations to policy" during the October 3, 2005 meeting. Specifically, the October 10, 2005 memorandum indicates that John Paul Woodley verbally approved a "[w]aiver for the LERRDs on the federal Chalmette levee in St. Bernard Parish" and a "[w]aiver for the LERRDs on the non-federal St. Bernard levee interim level of protection to 10 feet." According to the October 10, 2005 memorandum,Mr. Woodley also requested information "regarding the project sponsors ability to pay the required LERRD costs and the estimated cost to federal government for the recommended policy deviations."

On October 17, 2005, the Army Corps sent a letter to George Lopez, the President of the Lake Borgne Basin Levee District (Lake Borgne). According to plaintiff, Lake Borgne "is a statutorily created political subdivision of the State of Louisiana charged with the duty of overseeing and maintaining flood protection levees in the Parish of St. Bernard." In the October 17, 2005 letter, the Army Corps requested that Lake Borgne provide the Army Corps with a right of entry to a 6.51-acre area of land located in St. Bernard Parish in order for the Army Corps "to perform surveys, soil borings, environmental clearances on, and obtain borrow material." The Army Corps' letter stated that:

Should the investigations conclude that the material in the proposed area be suitable for use as borrow material, the material will be excavated and used in association with restoring the Verret to Caernarvon Levee located in St. Bernard Parish, Louisiana. The property proposed for this work consists of 6.51 acres and is located in Section 31, Township 13 South, Range 13 East, St. Bernard Parish Louisiana . . . .

The Army Corps' October 17, 2005 letter stated that the Army Corps' work would consist of surveys, soil borings, and cultural resource investigations. The October 17, 2005 letter indicated that the Army Corps would "[a]ccess, obtain borrow, and construct (repair and rehabilitate) the Verret to Caernarvon Levee in St. Bernard Parish to design grade prior to Hurricane Katrina." The Army Corps' letter also stated that "[t]his right of entry is required immediately in order to complete the emergency work before next hurricane season. The right of entry will remain valid until completion of construction."

On October 19, 2005, George Lopez, the President of Lake Borgne, issued a document titled "AUTHORIZATION FOR ENTRY FOR ACCESS, SURVEYS, SOIL BORINGS, ENVIRONMENTAL CLEARANCES, BORROW, and CONSTRUCTION (Repair and Rehabilitation)." (capitalization in original). The October 19, 2005 document stated that Lake Borgne "has acquired the real property interests required by the Department of the Army as requested via letter dated October 17, 2005, from Linda C. Labure, Chief, Real Estate Division." The October 19, 2005 document stated:

The property interests in part are via Henry Rodriguez, Jr.'s Parish President of St. Bernard Parish, invoking emergency powers of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, R.S. 29:721 et. Seq. and commandeering of certain private property which private owners of real property shall be identified and compensated by LBBLD [Lake Borgne Basin Levee District] in accordance with Louisiana State law and which compensation to private landowners should be via agreement or settlement that shall not exceed the fair market value of the interest in real property commandeered or utilized at the time of the use.

Should such an agreement or settlement not be reached within twelve months of the use of the property then the LBBLD will file appropriate judicial proceedings. The LBBLD is otherwise vested with sufficient title and interest in lands, to support repair and rehabilitation of the Lake Pontchartrain Louisiana and Vicinity, Hurricane Protection Levee in its jurisdiction and is described as follows and shown on attached maps.

Additionally, George Lopez authorized the Army Corps to enter the above-described 6.51 acres of land "for access, surveys, soil borings, environmental clearances, borrow, and construction as set forth" in the Army Corps' plans and specifications.

Five days later, on October 24, 2005, Henry Rodriguez, Jr., issued a document titled "Commandeering Property and Granting Right of Entry for Access, Surveys, Soil Borings, Environmental Clearances, Borrow, and Construction in Connection with the Emergency Repairs of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee, St. Bernard Parish."³ The October 24, 2005 document issued by Henry Rodriguez, Jr., stated that Mr. Rodriguez was taking certain actions in accordance with St. Bernard Parish's September 1, 2005 Executive Order. Henry Rodriguez, Jr., stated in the October 24, 2005 document that he was "commandeer[ing] the use of certain private immovable property generally located in Section 31, Township 13 South, Range 13 East, St. Bernard Parish, Louisiana . . . . Said private property consists of approximately 6.51 acres." Henry Rodriguez, Jr., then stated:

Said immovable property shall be used to gain access, obtain surveys, soil borings, cultural resources investigations, HTRW [hazardous, toxic, and radioactive waste] assessments, borrow, and construct (Repair and Rehabilitate) for the potential use in emergency levee restoration work. The work associated with the potential use of this site consists of obtaining borrow materials, gaining access, and constructing (repair and rehabilitating) the Verret to Caernarvon Levee in St. Bernard. As such, the Parish hereby obtains an assignable right and easement to gain access and obtain surveys, soil borings, cultural resources investigations, and HTRW assessments from said private immovable property, reserving however to the landowners, their heirs and assigns, all such rights and privileges in said land as may be used without interfering with or abridging the rights hereby acquired.

Second, I hereby tender and grant an irrevocable right of entry to these

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