Louisiana Record

Friday, February 28, 2020

Appeals court revives Toledo Bend Dam inverse condemnation suit


By Karen Kidd | Jan 21, 2019

Clyde's Crossing on the Louisiana side of the Sabine River. | srala-toledo.com

BATON ROUGE — The inverse condemnation claims of Louisiana property owners along the Sabine River downstream of the Toledo Bend Dam has been revived and will remain in state court following recent appeals.

A Louisiana First Circuit Court of Appeal three-judge panel reversed an East Baton Rouge Parish District Court judge's decision to dismiss the case, according to the court of appeal's 11-page judgment issued Dec. 27.

The judgment was issued by John Pettigrew, Wayne Ray Chutz and Jewel "Duke" Welch. The decision is unpublished, which means it is not to be cited or used as precedent in future cases. The case stems from applications by both Sabine River authorities for a Federal Energy Regulatory Commission license under the Federal Power Act to build, operate and maintain a large reservoir, the Toledo Bend Dam, a spillway and a hydroelectric plant. The Sabine River meanders between Louisiana and Texas and is jointly regulated by agencies in both states, both called "Sabine River Authority." The Louisiana Sabine River Authority is the named defendant in the case.

In March 2017, plaintiffs in the case -- dozens of Vernon Parish and Beauregard Parish owners of property downstream from the Toledo Bend Dam -- petitioned a state court for compensation for the taking of their property. The property owners alleged that building of the Toledo Bend Dam "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," the background portion of the judgment said. "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."

Those changes amounted to a taking of their property without formal expropriation proceedings and without just compensation, a violation of Louisiana's Constitution. 

In the month after the petition was filed, Louisiana's Sabine River Authority filed to have the case moved to U.S. District Court for the state's Middle District of Louisiana, and then filed its motion to dismiss the petition. The plaintiffs filed to have the case remanded back to state court, which the U.S. District Court did, in addition to denying the motion for dismissal.

The Louisiana Sabine River Authority next filed for a peremptory exception, claiming no cause of action and nonjoinder of a party. East Baton Rouge Parish District Court Judge Timothy Kelley ruled the petition is preempted under federal law and granted the exception based on no cause of action and dismissed the case with prejudice for failure to state a cause of action.

The plaintiffs appealed, arguing the trial court was wrong to conclude their claims were preempted under federal law since the case had already been rejected by the U.S. District Court.

In its judgment, the appeals court judges ruled that just because a federal court remanded the case back to state court doesn't mean that no federal question is presented by the case.

"The presence of conflict preemption does not establish federal question jurisdiction," the judgment said. "Rather than transmogrifying a state cause of action into a federal one -- as occurs with complete preemption -- conflict preemption serves as a defense to a state action."

In the case the federal court, lacking removal jurisdiction, cannot resolve the dispute with regards to preemption and must remand it back to the state, according to the judgment.

"In this case, the United States District Court remanded plaintiffs' suit to the state court due to a lack of federal question jurisdiction, which prevented the United States District Court from determining the issue of preemption," the judgment said. "This does not equate to a finding that the claim is not preempted. Thus, the issue before us is simply whether the plaintiffs' state law claim for the inverse condemnation of their property by the [Louisiana Sabine River Authority] is preempted by federal law."

The appeals court ruled the plaintiffs' claims are not preempted by federal law.

"Accepting the allegations of the plaintiffs' petition as true, and in light of the strong presumption against federal preemption, we cannot say that the [Louisiana Sabine River Authority] carried its burden of proving that plaintiffs' petition fails to state a cause of action," the judgment said.

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U.S. District Court for the Middle District of LouisianaLouisiana First Circuit Court of Appeal

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