United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 23, 2007
Charles R. Fulbruge III
Clerk
No. 07-30086
HASPEL & DAVIS MILLING & PLANTING COMPANY LTD, represented
herein by its President, Karl M Samuels; POYDRAS MINERALS
LLC, successor in interest of Poydras Realty Company, represented
by its co-managers George B Jurgens III & Frank A Tessier, Billie
Breuille, Arthur Q Davis, Lawrence H Iverson, for themselves
and on behalf of all members of a state recognized class action
Plaintiffs - Appellees
v.
BOARD OF LEVEE COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT
Defendant - Appellant
and
STATE OF LOUISIANA
Movant - Appellant
Appeals from the United States District Court
For the Eastern District of Louisiana
Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The defendant, Board of Commissioners of the Orleans Levee
District (the “Levee Board”), appeals the district court’s summary
judgment in favor of the plaintiffs, owners of property
expropriated as part of the Bohemia Spillway (the “landowners”).
The money judgment in favor of the landowners and against the Levee
Board is in the amount of $17,442,332.87, plus interest, costs, and
attorneys’ fees. The Levee Board also appeals the district court’s
denial of its motion to vacate writs of seizure issued by the
district court. The State of Louisiana (the “State”) appeals the
denial of its motion to intervene. For the reasons that follow, we
REVERSE the district court’s judgment and RENDER judgment for the
Levee Board, dismissing the landowners’ takings claim with
prejudice. We VACATE the writs of seizure and AFFIRM the denial of
the State’s motion to intervene.
I. BACKGROUND
In 1924, the State authorized the Levee Board to acquire land
to build the Bohemia Spillway.1 However, in 1984, the Louisiana
legislature directed the Levee Board to return the land to its
former owners and to “provide a thorough accounting . . .
concerning all revenues received from the affected property.”2
After unsuccessfully challenging the constitutionality of this
law,3 the Levee Board issued quitclaim deeds to the landowners (or
their successors). However, the Levee Board did not pay the
landowners the mineral royalties that the Levee Board received
1
1924 La. Acts 99.
2
1984 La. Acts 233; La. Const. art. VII, § 14(B).
3
Bd. of Levee Comm’rs of the Orleans Levee Bd. v. Huls, 852 F.2d 140, 141-43 (5th Cir.
1988); Bd. of Comm’rs of the Orleans Levee Dist. v. Dep’t of Natural Res., 496 So. 2d 281, 285
(La. 1986).
2
between June 1984 and the time the land was returned.
In February 1988, Haspel & Davis Milling & Planting Co., Ltd.;
Jean Connell; Joseph Torre; Bohemia Planting Co., Inc.; Leonie
Rothschild; and Arthur Davis, on behalf of themselves and all other
persons similarly situated, former owners of property expropriated
as part of the Bohemia Spillway or their successors, filed a class
action in state court seeking, inter alia, a declaratory judgment
decreeing that title to the mineral and other royalties vested with
the original owners as of the effective date of Act 233 of 1984.4
The landowners subsequently amended and supplemented their petition
numerous times to assert, inter alia, a claim that an
unconstitutional taking occurred when the Levee Board continued to
collect and failed to return the mineral royalties.
After 12 years of litigation in state court, the parties
entered into a Settlement Agreement (the “Settlement Agreement”),
which was approved by the state court via a Consent Judgment. In
the Settlement Agreement, the landowners settled all their claims
against the Levee Board in return for a payment of $2,318,263.72
immediately and another $18,767,145.26 “as and if funds are
appropriated thereof.” Pursuant to the terms of the Settlement
Agreement, if the Levee Board did not pay at least $2,600,000 per
year, the landowners could exercise their rights to enforce the
4
Haspel & Davis Milling & Planting Co., Ltd. v. Bd. of Levee Comm’rs of the Orleans
Levee Dist., 680 So. 2d 159 (La. Ct. App. 4th Cir. 2002).
3
Consent Judgment “in accordance with this Agreement and law.”
Although the Levee Board made numerous payments under the
Settlement Agreement, the payments were less than the $2,600,000
per year called for by the Settlement Agreement.5
In July 2006, the landowners filed this action in federal
court, alleging that the Levee Board’s failure to pay the amount
contemplated by the state court Consent Judgment was an
unconstitutional taking of their property. In response, the Levee
Board filed a Rule 12(b)(6) motion to dismiss on grounds that,
inter alia, the Levee Board’s failure to discharge its obligations
under the Consent Judgment and Settlement Agreement did not give
rise to a takings claim. According to the Levee Board, the
landowners chose to compromise their takings claim and, in doing
so, converted any takings claim into a claim for breach of
contract.6
Citing our decision in Vogt v. Board of Commissioners of the
Orleans Levee District (“Vogt I”),7 the landowners filed a Motion
for Partial Summary Judgment, maintaining that the Levee Board’s
intentional failure to satisfy the state court judgment did
5
In June 2005, the parties entered into a second Settlement Agreement, which was
subsequently set aside by the state court. This second Settlement Agreement has no bearing on
the instant suit.
6
This argument was the basis of the Levee Board’s opposition to the landowners’ motion
for summary judgment.
7
294 F.3d 684 (5th Cir. 2002).
4
constitute a violation of the Takings Clause.
The district court agreed with the landowners, and denied the
Levee Board’s motion to dismiss and granted the landowners’ motion
for summary judgment.8 The district court then entered a judgment
awarding the landowners $17,442,332.96, plus unquantified
prejudgment interest, post-judgment interest, costs, and attorneys’
fees.
The Levee Board filed a conditional notice of appeal from the
district court’s judgment, although it disputed that the district
court’s judgment constituted a final, appealable judgment under 28
U.S.C. § 1291.9
While this appeal was pending before us, the Levee Board moved
in the district court for an automatic stay of execution without
bond of the court’s judgment, pursuant to Fed. R. Civ. Proc. 62(f),
which was denied by the district court. We affirmed the district
court’s denial, concluding that Rule 62(f) was inapplicable to this
case.
The landowners then began taking steps to execute the judgment
by arranging for the issuance of writs of fieri facias and
garnishment orders, which the Levee Board moved to vacate as a
8
Concluding that the matter was “ripe for a full and final judgment,” the district court
considered the landowners’ Motion for Partial Summary Judgment to be a Motion for Summary
Judgment.
9
The Levee Board previously objected in the district court to the judgment on the ground
that, inter alia, the judgment did not calculate the amount of prejudgment interest.
5
violation of Fed. R. Civ. Proc. 69(a) and La. Const. art. XII, §
10. Alternatively, the Levee Board sought a stay pending appeal
under Fed. R. Civ. Proc. 62(d). Around this time, the State also
moved to intervene in the action solely to enforce State laws
prohibiting the seizure and garnishment of public property and
funds. The district court denied all motions.
The State and the Levee Board appealed these rulings.
However, we subsequently dismissed the appeal on the ground that
the district court’s judgment was not final because it failed to
calculate prejudgment interest.10
On remand, the Levee Board again moved the district court to
vacate its writs of seizure and related orders. Although the
district court granted the Levee Board’s motion, it made clear
that, upon entry of a final judgment and expiration of the
requisite delays, the landowners could again seek execution of the
judgment. The district court then entered an amended judgment
awarding the landowners $17,442,322.87, along with prejudgment
interest in the amount of $205,331.98, and post-judgment interest,
costs, and attorneys’ fees. The Levee Board then filed the instant
10
In response to a request from the Fifth Circuit Clerk’s office that the parties address
whether we had jurisdiction over the appeal, the Levee Board filed a motion to dismiss the appeal
for lack of jurisdiction. As a result, the appeal was initially dismissed by the Clerk pursuant to 5th
Cir. R. 42.1, which permits dismissal where the appellant files an unopposed motion to dismiss.
However, the next day, the Clerk received a motion from the landowners opposing the dismissal.
We subsequently vacated the Clerk’s order and granted the Levee Board’s motion to dismiss for
lack of jurisdiction. In doing so, we also dismissed the Levee Board’s motions to stay execution
and vacate seizure.
6
appeal.
The Levee Board again moved the district court to stay the
judgment without bond and to prohibit further seizures, which were
denied. The Levee Board then moved this court to stay execution
without bond and to vacate seizure orders. We granted the Levee
Board’s stay of execution, but carried the motion to vacate the
seizure orders with the case.
The Levee Board appeals the district court’s money judgment in
favor of the landowners and the denial of its motion to vacate the
writs of seizure. In addition, the State appeals the denial of its
motion to intervene.
II. TAKINGS CLAIM
We review both the district court’s grant of summary judgment
and its denial of the motion to dismiss de novo.11
The Levee Board argues that its failure to fulfill its
obligations under the Settlement Agreement and the Consent Judgment
only gives rise to a breach of contract claim and, thus, the
landowners have no valid 42 U.S.C. § 1983 takings claim. According
to the Levee Board, the instant suit is nothing more than an
attempt by the landowners to have a federal court enforce the state
court Consent Judgment approving the Settlement Agreement.
The landowners, on the other hand, maintain that the Levee
Board’s alleged intentional failure to satisfy the state court
11
Coop. Benefit Adm’rs, Inc. v. Ogden, 367 F.3d 323, 328 (5th Cir. 2004).
7
judgment constitutes an unconstitutional taking. The landowners
contend that we previously rejected the Levee Board’s argument in
Vogt I.12
The instant case is distinguishable from the situation we
faced in Vogt I. Prior to filing suit in federal court, the
landowners in Vogt I brought suit in state court requesting, inter
alia, (1) a declaratory judgment confirming their ownership of
disputed mineral royalties; (2) an accounting of all mineral
royalties paid to the Levee Board after June 29, 1984; and (3) a
money judgment for the royalties that the Levee Board collected.
After the Levee Board produced an accounting of revenues received
from the subject property, the state trial court granted the
landowners’ motion for summary judgment and ordered the Levee Board
to pay $2,853,358.44.13 When the Levee Board refused to pay the
royalties in spite of this judgment, the landowners unsuccessfully
sought writs of mandamus and seizure in the state court.
In a further attempt to collect the royalties due, the
landowners filed suit in federal court, claiming that the Levee
Board’s refusal to pay the judgment was an unconstitutional taking.
The district court subsequently dismissed the suit on Eleventh
12
294 F.3d 684.
13
Vogt v. Bd. of Comm’rs of the Orleans Levee Dist., 738 So. 2d 1142 (La. Ct. App. 4th
Cir. 1999), writ denied, 748 So. 2d 1166 (La. 1999).
8
Amendment immunity grounds.14
On appeal, after determining that the Levee Board was not
immune from suit, we rejected the Levee Board’s argument that the
landowners’ “property” - in the form of a judgment - had not been
taken and that the landowners’ takings claim was nothing more than
a suit to enforce a judgment against the Levee Board. Although we
expressed no opinion on the ultimate outcome of the takings claim,
we found “no support for the [L]evee [B]oard’s premise that a
decree of the Louisiana courts somehow converted private property
(the mineral royalties) into public funds subject to an
unenforceable lien.”15
Unlike the Vogt I plaintiffs, the landowners in the instant
case asserted a takings claim in state court based on the withheld
mineral royalties. In addition, instead of litigating their
claims, as the landowners in Vogt I chose to do, the landowners
here entered into a comprehensive settlement agreement to
“compromise” and “settle all claims,” which encompasses their
takings claim, against the Levee Board.16 In exchange, the
14
Vogt v. Bd. of Comm’rs of the Orleans Levee Dist., No.
Civ.A. 00-3195, 2001 WL 664580 (E.D. La. June 12, 2001).
15
Vogt I, 294 F.3d at 697 (citation omitted).
16
The description of the claims covered by the Settlement Agreement expressly included
all claims asserted against the Levee Board in the state litigation:
Plaintiffs’ Counsel, the Levee Board, and the Participating Class Plaintiffs intend
that payments made by the Levee Board under this Settlement Agreement will fully
and completely settle any and all Released Claims against the Levee Board upon
9
landowners specifically agreed to accept $2,318,263.72 immediately
and another $18,767,145.26 “as and if funds are appropriated
thereof.”
In an attempt to avoid the conclusion that, after they
compromised their takings claim, they were relegated to a suit to
enforce the Settlement Agreement and Consent Judgment, the
landowners rely on a provision in the Settlement Agreement stating
that if the Levee Board failed to pay at least $2,600,000 per year,
the landowners could exercise their rights to enforce the Consent
Judgment “in accordance with this Agreement and law.” The
landowners correctly point out that the Levee Board did not pay the
requisite $2,600,000 per year. But, the landowners’ argument
ignores the provision’s reference to the “Agreement.” Importantly,
under the terms of the Settlement Agreement, the Consent Judgment
full and final payment. The claims of Participating Class Plaintiffs against the fully
and completely funded Settlement Fund shall be the exclusive remedy of all
Participating Class Plaintiffs against the Levee Board with respect to the Released
Claims.
The term “Released Claims(s)” is defined in the Settlement Agreement as:
any liability of the Levee Board to the Participating Class Plaintiffs; their
successors, assigns, or beneficiaries, and any person or entity entitled to assert any
claim on behalf of any Participating Class Plaintiff, or any person or entity who or
which derives or obtains any right from or through any Participating Class Plaintiff,
arising out of, related to or connected in any way with the Class Action. The term
“Released Claim(s)” expressly includes, without limitation, any and all such claims,
demands, liens, debts, obligations and causes or rights of action against the Levee
Board for damages and for compensation from any source including but not
limited to leases, oil and gas revenues.
Settlement Agreement, ¶ 2.16 (emphasis added).
10
was to be paid only “as and if funds are appropriated thereof.”
The Settlement Agreement contained no provision providing that the
agreement was rendered invalid if the Levee Board failed to pay the
yearly $2,600,000. Indeed, the Consent Judgment specifically
stated that the state court was to retain jurisdiction over the
matter “for the purpose of effectuating, enforcing and
implementing” its judgment.
Because we conclude that, by entering into the Settlement
Agreement, the landowners compromised their takings claim against
the Levee Board, and thus, extinguished any takings claim they may
have had, the landowners’ only legal recourse is to enforce their
rights under the Settlement Agreement and Consent Judgment.
Accordingly, the district court erred in rendering summary judgment
in favor of the landowners.17 We, therefore, reverse the judgment
of the district court and render judgment in favor of the Levee
Board, dismissing the landowners’ takings claim with prejudice.
III. MOTION TO VACATE SEIZURE ORDERS
The Levee Board argues that La. Const. art. XII, § 10(C) and
La. Rev. Stat. Ann. § 13:5109(B)(2) prohibit the landowners from
seizing any Levee Board assets, described as “public property” or
“public funds,” to satisfy their judgment against the Levee Board.
The district court denied the Levee Board’s motion to vacate the
17
Because we conclude that the instant suit should be dismissed on the ground that the
landowners fail to state a takings claim, we need not address the Levee Board’s additional
arguments concerning res judicata, prescription, and class certification.
11
seizure orders, concluding that Louisiana’s anti-seizure provisions
did not apply to the judgment against the Levee Board.
Because we conclude that the district court erred in rendering
judgment in favor of the landowners, we vacate the writs of seizure
issued by the district court in execution of that judgment.18
IV. THE STATE’S MOTION TO INTERVENE
In the district court, the State filed a motion to intervene
pursuant to, inter alia, Fed. R. Civ. Proc. 24 for the limited
purpose of enforcing Louisiana’s anti-seizure provisions found in
La. Const. art. XII, § 10(C) and La. Rev. Stat. Ann. §
13:5109(B)(2).19 The district court denied the State’s motion,
concluding that the State did not have an unconditional right to
intervene, and that any interest the State had was adequately
represented by the existing parties.
Fed. R. Civ. Proc. 24(a) allows certain interested parties to
intervene as of right. The State relied on both subsections of
Rule 24(a) in its motion to intervene. We review the district
court’s ruling denying intervention of right de novo.20
18
Since we vacate the writs of seizure on the ground that the underlying judgment is
erroneous, we do not decide whether the district court erred in concluding that Louisiana’s anti-
seizure provisions do not apply to the judgment against the Levee Board.
19
The State also sought to intervene pursuant to La. Const. art. IV, § 8. Article IV,
Section 8 merely defines the powers of the Attorney General, providing that “[a]s necessary for
the assertion or protection of any right or interest of the state,” the Attorney General shall have
the authority, inter alia, “to intervene in any civil action or proceeding.” Article IV, Section 8
confers no right on the Attorney General to intervene in this matter.
20
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc).
12
A. INTERVENTION OF RIGHT PURSUANT TO FED. R. CIV. PROC. 24(a)(1)
Fed. R. Civ. Proc. 24(a)(1) allows intervention of right
“when a statute of the United States confers an unconditional right
to intervene.” The State argues that 28 U.S.C. § 2403(b) confers
upon it an unconditional right to intervene in the instant suit
because the constitutionality of La. Const. art. XII, § 10(C) and
La. Rev. Stat. Ann. § 13:5109(B)(2) were called into question by
the landowners’ efforts to seize public property and funds.21
We agree with the district court that this case does not
challenge or question the constitutionality of La. Const. art. XII,
§ 10(C) or La. Rev. Stat. Ann. § 13:5109(B)(2), and thus, 28 U.S.C.
§ 2403(b) does not provide the State an unconditional right to
intervene. In granting the landowners’ requests for writs of
seizure and subsequently denying the Levee Board’s motion to vacate
such writs, the district court merely found the relevant provisions
inapplicable to the instant case, thus raising only questions of
the proper interpretation of Louisiana law, and not its
constitutionality.
21
28 U.S.C. § 2403(b) provides, in pertinent part:
In any action, suit, or proceeding in a court of the United States to which a State
or any agency, officer, or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting the public interest is drawn
into question, the court shall certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation of evidence, if evidence is
otherwise admissible in the case, and for argument on the question of
constitutionality.
13
The district court correctly concluded that 28 U.S.C. §
2403(b) does not provide the State an unconditional right to
intervene.
B. INTERVENTION OF RIGHT PURSUANT TO FED. R. CIV. PROC. 24(a)(2)
To intervene of right under Fed. R. Civ. Proc. 24(a)(2), an
applicant must meet four requirements:
(1) the application for intervention must be timely; (2)
the applicant must have an interest relating to the
property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may, as a practical matter,
impair or impede his ability to protect that interest;
(4) the applicant’s interest must be inadequately
represented by the existing parties to the suit.22
Failure to satisfy any one requirement precludes intervention of
right.23
The landowners make two arguments in support of the district
court’s denial of the State’s motion to intervene of right under
Fed. R. Civ. Proc. 24(a)(2): (1) the motion was untimely; and (2)
the State’s interests were adequately represented by the Levee
Board. Because we conclude that the State’s interests were
adequately represented by the Levee Board, we do not consider the
timeliness issue.
The burden of establishing inadequate representation is on the
22
New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.
1984) (quoting Int’l Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.
1978)).
23
Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
14
applicant for intervention.24 This burden is “minimal” and “is
satisfied if the applicant shows that representation of his
interest ‘may be’ inadequate . . . .”25 However, “it cannot be
treated as so minimal as to write the requirement completely out of
the rule.”26 In addition, “when the party seeking to intervene has
the same ultimate objective as a party to the suit, the existing
party is presumed to adequately represent the party seeking to
intervene unless that party demonstrates adversity of interest,
collusion, or nonfeasance.”27
The State argues that it is not seeking “the same ultimate
objective” as the Levee Board because its objective is more
expansive in that the State is seeking to ensure that Louisiana’s
anti-seizure provisions are uniformly applied to prevent the
seizure of public property and funds in satisfaction of any
judgment, and not merely a judgment against the Levee Board.
Nevertheless, even assuming that the State’s interest is broader
than that of the Levee Board, the more narrow issue regarding
execution of the judgment against the Levee Board is the only
matter currently before us. Thus, the Levee Board and the State
24
See Hopwood v. Texas, 21 F.3d 603, 605 (5th Cir. 1994).
25
Edwards, 78 F.3d at 1005 (citing Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972)).
26
Id. at 1005 (citation and internal quotations omitted).
27
Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1288 (5th Cir. 1987)
(citation omitted).
15
have the same ultimate objective in this case.
The State does not allege collusion, nonfeasance, or adversity
of interest. The State only asserts that the Levee Board cannot
adequately represent its interests because it is now dissolved28
and, even when it was in existence, it had no juridical authority
to represent the State because it was a political subdivision and
not an agency of the State. Contrary to the State’s assertions,
the State concedes that the Levee Board “has very able and
persuasive counsel.” Furthermore, even assuming that the Levee
Board does not have the “juridical” authority to represent the
State, when evaluating a motion to intervene, our concern is
whether the Levee Board adequately represents the State’s
interests, and not whether the Levee Board is actually representing
the State as a party (which the Levee Board does not purport to
do). In addition, because we conclude that it was error for the
district court to render judgment against the Levee Board, we do
not reach the seizure issue which is the concern of the State.
28
Acts 1 and 43 of the First Extraordinary Session of 2006 of the Louisiana Legislature
together with the state constitutional amendments adopted by the Louisiana voters collectively
provided that, effective January 1, 2007, the Orleans Levee District is to be governed by the
newly-created boards of commissioners of the Southeast Louisiana Flood Protection Authority -
East and the Southeast Louisiana Flood Protection Authority - West, except that “non-flood
control assets” of the Orleans Levee District “shall be managed and controlled by the state,
through the division of administration,” and, for such purposes, “the division of administration
shall be the successor to the board of commissioners of such levee district;” and that any
previously-filed legal proceeding to which the Orleans Levee District is a party “shall retain its
effectiveness and shall be continued in the name of the district.” See La. Const. art. VI, §§ 38-
38.1 (1974); La. Rev. Stat. Ann. §§ 38:291(K), 330.1(A)-(B), 330.2, 330.3(A)(1)(a), 330.10,
330.12.
16
The district court properly concluded that the Levee Board
adequately represents the State, and thus, we affirm the court’s
order denying the State’s motion to intervene as a matter of right
pursuant to Fed. R. Civ. Proc. 24(a)(2).29
V. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
district court and RENDER judgment for the Levee Board, dismissing
the landowners’ takings claim with prejudice at the landowners’
cost. We also VACATE the writs of seizure and AFFIRM the district
court’s denial of the State’s motion to intervene.
29
In its Reply Brief, the State also argues that it should be allowed to intervene on grounds
of permissive intervention under Fed. R. Civ. Proc. 24(b). This argument does not appear to have
been made to the district court. Although the State identified Fed. R. Civ. Proc. 24(b) as the
authority for its motion to intervene, it quoted the language of Fed. R. Civ. Proc. 24(a), and thus,
the district court evaluated the State’s motion only on the basis of intervention of right. The
State’s permissive intervention argument also did not appear in its opening brief. We will not
consider a claim raised for the first time in a reply brief. See Price v. Roark, 256 F.3d 364, 369
n.2 (5th Cir. 2001).
17