Terrebonne Parish Consolidated Government v. Louisiana Department of Natural Resources and Secretary Thomas Harris Joseph L. Waitz, District Attorney Terrebonne Parish 32nd JDC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2021 CA 0486

TERREBONNE PARISH CONSOLIDATED GOVERNMENT

VERSUS

LOUISIANA DEPARTMENT OF NATURAL RESOURCES AND
SECRETARY THOMAS HARRIS, JOSEPH L. WAITZ, DISTRICT
ATTORNEY TERREBONNE PARISH 32ND JDC

Judgment Rendered: DEC 3 0 2011

Appealed from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Suit Number 185576

Honorable Randall L. Bethancourt, Presiding

Julius P. Hebert, Jr. Counsel for Plaintiff/Appellant
Brian J. Marceaux Terrebonne Parish Consolidated
Christian St. Martin Government
Houma, LA
and

Patrick H. Yancey
Houma, LA

Christopher H. Riviere Counsel for Defendant/ Appellee
William N. Abel Joseph L. Waitz, District Attorney
Todd M. Magee
Thibodaux, LA

J. Blake Canfield Counsel for Defendants/ Appellees
Donald W. Price Louisiana Department of Natural
Baton Rouge, LA Resources and Thomas Harris
and

Megan K. Terrell
Baton Rouge, LA

Patrick S. Ottinger Amicus Curiae
David K. McCrory
William H. L. Kaufman
Lafayette, La

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
GUIDRY, J.

In this declaratory judgment action, plaintiff, Terrebonne Parish Consolidated

Government ( TPCG), appeals from a trial court judgment sustaining exceptions

raising the objection of no cause of action filed by defendants, Louisiana Department

of Natural Resources ( DNR) and its Secretary, Thomas F. Harris, and Joseph L.

Waitz, Jr., District Attorney for the Thirty -Second Judicial District, Terrebonne

Parish, and dismissing TPCG' s action against them with prejudice. For the reasons

that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 28, 2019, Harris wrote a letter to Waitz appointing Waitz as his

special designee to conduct an investigation pursuant to La. R. S. 49: 214. 26( B)( 2).

R. 39) Waitz was appointed for the limited purpose of investigating potential

violations of the Louisiana State and Local Coastal Resources Management Act of

1978, La. R.S. 49: 214. 21 et seq. ( SLCRMA) by oil and gas exploration and

production companies in Terrebonne Parish and evaluating what damages have

arisen related to those violations. Waitz subsequently entered into a legal services

contract with two private law firms to conduct an investigation for the purposes of

determining whether any persons or legal entities have violated any of the provisions

of La. R.S. 49: 214. 21 et seq. as applied to uses or activities in the coastal zone of

Terrebonne Parish and to make recommendations to Waitz as to the appropriate legal

action or actions to be taken in order to pursue claims, including but not limited to

claims for land loss, environmental damage, restoration costs, injunctive relief, and

other claims pursuant to La. R.S. 49: 214.21 et seq. ( R. 16, 41)

Thereafter, TPCG filed a petition for declaratory judgment and ancillary

injunctive relief, naming as defendants DNR, Harris and Waitz and attaching copies

of the letter and contract. ( R. 5) TPCG alleged that Harris may authorize his

designee to conduct investigations and/ or make recommendations for appropriate

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enforcement measures and measures to obtain civil relief as provided by La. R. S.

49: 214. 36( D). However, TPCG alleged that Harris is only authorized to have as his

designee his deputy secretary or assistant secretary, and that there is no authority

from the legislature to appoint Waitz as a " special designee" for investigations and

recommendations under La. R. S. 49: 214. 26( B)( 2) and ( 5). TPCG further alleged

that Harris has essentially retained Waitz as special counsel to investigate possible

violations of SLCRMA for civil enforcement claims, but according to the Louisiana

Constitution, Waitz is limited to his duties as a criminal prosecutor and as otherwise

specifically provided by state law, and the coastal zone statutes were never intended

nor do they authorize Harris to retain Waitz to represent DNR for civil enforcement

remedies. Accordingly, TPCG asserted that the letter constitutes a contract, which

is in violation of the separation of powers doctrine because Waitz, a quasi- judicial

officer under the judicial branch of government, cannot represent DNR, a

department under the executive branch of government. Furthermore, TPCG asserted

that this contract, and resulting contract between Waitz and the two private law

firms, creates a legal monetary obligation on TPCG without the approval of TPCG

by ordinance or by an appropriation of the legislature in violation of La. Const. Art.

VI § 14A.

Additionally, TPCG asserted that Waitz is not an " appropriate district

attorney" for civil remedies in the enforcement or investigation of possible

SLCRMA violations under La. R.S. 49: 214. 36( A), ( D), and ( E). TPCG asserted that

as a home rule charter form of government, the appropriate attorney for civil

enforcement is the parish attorney. As such, TPCG requested that the trial court

declare: Waitz is not an appropriate designee to act on behalf of DNR; the legal and

constitutional right to represent the State and its departments for civil matters is the

attorney general; Harris has no right to contract with Waitz as outside special counsel

for DNR and therefore, the letter contract is an absolute nullity; the parish attorney

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for TPCG has the authority to represent TPCG for any civil claims arising under

SLCRMA; and Waitz is not an appropriate district attorney under La. R. S.

49: 214. 36( D) to handle any civil matters for DNR in Terrebonne Parish. ( R. 36)

Thereafter, Waitz, in his official capacity as district attorney for Terrebonne

Parish, and DNR and Harris each filed peremptory exceptions raising the objection

of no cause of action. ( R. 50, 70) They alleged, pursuant to La. R. S. 49: 214. 36( D),

Waitz is authorized to bring enforcement actions for coastal permit violations;

however, Waitz was merely appointed pursuant to La. R.S. 49: 214. 26 as designee to

investigate and report on potential violations. They alleged that the mere

appointment of Waitz did not usurp any authority from TPCG and his appointment

was not a contract that can be invalided by TPCG. Accordingly, they asserted that

TPCG does not have a cause of action against DNR or Waitz to interfere with

Harris' s designation of Waitz, because the designation is explicitly authorized by

statute and is completely consistent with the state' s constitutional obligation to

protect the environment and the authority conferred by the constitution. ( R. 73)

The trial court held a hearing on the exceptions on November 18, 2020. ( R.

636) Thereafter, the trial court signed a judgment sustaining Waitz and DNR and

Harris' s exceptions and dismissing TPCG' s petition for declaratory judgment and

ancillary injunctive relief with prejudice. ( R. 614) In written reasons for judgment,

the trial court noted it had considered the argument of counsel, exhibits admitted into

evidence', and law and found that TPCG did not have a valid legal argument against

the appointment of Waitz by Harris under SLCRMA. ( R. 610) The trial court found

Harris acted within the explicit authority granted by La. R. S. 49: 214. 26( B)( 2) and

appointed Waitz as his designee to investigate and report on possible SLCRMA

violations and related damages arising in Terrebonne Parish. Further, the trial court

We note that the record does not indicate that evidence was admitted at the hearing on the
exceptions.

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found SLCRMA' s empowerment of district attorneys for enforcement is consistent

with La. Const. Art. 5 § 26 and is consistent with the constitutional duty of the

legislature and state government to protect natural resources of the state for the

welfare of its citizens. ( R. 610) Accordingly, the trial court found that SLCRMA

and Harris' s designation of Waitz are consistent with Louisiana state government' s

duty and nothing in the designation violates any applicable constitutional or statutory

provision. ( R. 611) Therefore, the trial court found that TPCG lacked a cause of

action to interfere with the designation.

TPCG now appeals from the trial court' s judgment.

DISCUSSION

As used in the context of the peremptory exception, a " cause of action" refers

to the operative facts which give rise to the plaintiff' s right to judicially assert the

action against the defendant. Scheffler v. Adams and Reese, LLP, 06- 1774, p. 4 ( La.

2/ 22/ 07), 950 So. 2d 641, 646. The purpose of the peremptory exception raising the

objection of no cause of action is to test the legal sufficiency of the petition by

determining whether the law affords a remedy on the facts alleged in the petition.

Scheffler, 06- 1774 at p. 4, 950 So. 2d at 646. No evidence may be introduced to

support or controvert the exception of no cause of action. La. C. C. P. art 931. The

exception is triable on the face of the petition and any attached documents, and, for

purposes of resolving the issues raised by the exception, the well -pled facts in the

petition must be accepted as true. See Misita v. St. Tammany Parish Government,

18- 1595, p. 6 ( La. App. 1st Cir. 9/ 11/ 19), 286 So. 3d 440, 443- 444, writ denied, 19-

01877 ( La. 1/ 28/ 20), 291 So. 3d 1060. The issue at the trial of the exception is

whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.

Scheffler, 06- 1774 at p. 5, 950 So. 2d at 646. The burden of demonstrating that a

petition fails to state a cause of action is upon the mover. Scheffler, 06- 1774 at p. 5,

950 So. 2d at 646- 47.

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 Because the exception of no cause of action raises a question of law and the

trial court' s decision is based solely on the sufficiency of the petition, review of the

trial court' s ruling on an exception of no cause of action is de novo. The pertinent

inquiry is whether, in the light most favorable to the plaintiff, and with every doubt

resolved in the plaintiff' s favor, the petition states any valid cause of action for relief.

Scheffler, 06- 1774 at p. 5, 950 So. 2d at 646- 47.

Louisiana Code of Civil Procedure article 1871 provides for the scope of

declaratory judgments, stating that "[ c] ourts of record within their respective

jurisdictions may declare rights, status, and other legal relations whether or not

further relief is or could be claimed." A person interested under a deed, will, written

contract or other writing constituting a contract, or whose rights, status, or other legal

relations are affected by a statute, municipal ordinance, contract or franchise, may

have determined any question of construction or validity arising under the

instrument, statute, ordinance, contract, or franchise and obtain a declaration of

rights, status, or other legal relations thereunder. La. C. C. P. art. 1872.

The purpose of the declaratory judgment articles of the Louisiana Code of

Civil Procedure is to settle and afford relief from uncertainty and insecurity with

respect to rights, status, and other legal relations, and they are to be liberally

construed and administered. La. C. C. P. art. 1881; Goodwin v. City of Mandeville,

18- 1118, p. 7 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 822, 828, writ denied, 19- 01083

La. 10/ 8/ 19), 319 So. 3d 856. A person is entitled to relief by declaratory judgment

when his rights are uncertain or disputed in an immediate and genuine situation, and

the declaratory judgment will remove the uncertainty or terminate the dispute.

Goodwin, 18- 1118 at pp. 7- 8, 277 So. 3d at 828. Moreover, there must exist a

concrete, justiciable controversy framing the facts in order to avoid the rendering of

an advisory opinion. Goodwin, 18- 1118 at p. 8, 277 So. 3d at 828.

VA
 In the context of a petition for declaratory judgment, a " justiciable

controversy" connotes an existing actual and substantial dispute, as distinguished

from one that is merely hypothetical or abstract, and a dispute that involves the legal

relations of parties with real adverse interests, upon which the judgment of the court

may effectively operate through a decree or conclusive character. Goodwin, Is -

1118 at pp. 8- 9, 277 So. 3d at 828.

TPCG' s petition for declaratory judgment requested that the trial court

interpret the laws and constitution of Louisiana, particularly La. R.S. 49: 214.26 and

49: 214. 36, to determine who is authorized to investigate and civilly enforce

violations of SLCRMA in the instant case. Louisiana Revised Statute 49: 214. 26

provides, in pertinent part:

A. ( 1)
A coastal management program is hereby established within the
Department of Natural Resources. The secretary or his designee shall
administer the coastal management program.

2) The secretary is authorized to employ such additional staffing as
may be necessary to carry out the coastal management program.

B. The secretary may authorize his designee to administer the program
and/ or:

1)Receive, evaluate, and make recommendations to the secretary
concerning applications for coastal uses permits.

2) Conduct or cause to be conducted investigations, studies, planning,
and research.

3) Systematically monitor and conduct surveillance of permitted uses
to ensure that conditions of coastal use permits are satisfied.

4) Coordinate closely with the secretary and local, state, regional, and
federal agencies with respect to coastal management.

5) Make recommendations to the secretary relative to appropriate
enforcement measures for violations of this Subpart and measures to
obtain civil relief, as provided by R. S. 49: 214. 36( D).

6) Provide advice and technical assistance to the secretary and local
governments.

7) Conduct such activities or make such decisions as may be delegated
or authorized by the secretary.

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 Louisiana Revised Statute 49: 214. 36, providing for enforcement of the

management program, further provides, in pertinent part:

D. The secretary, the attorney general, an appropriate district attorney,
or a local government with an approved program may bring such
injunctive, declaratory, or other actions as are necessary to ensure that
no uses are made of the coastal zone for which a coastal use permit has
not been issued when required or which are not in accordance with the
terms and conditions of a coastal use permit.

From our review of the facts as pled in TPCG' s petition, and accepting those

facts as true for purposes of the exception raising the objection of no cause of action,

we find that TPCG has set forth a cause of action for declaratory judgment,

requesting that the court interpret the above statutory provisions, in conjunction with

other statutory laws, the Louisiana Constitution, and TPCG ordinances, to determine

who is authorized to investigate and civilly enforce violations of SLCRMA in the

instant case .2

CONCLUSION

For the foregoing reasons, we reverse the February 11, 2021 judgment of the

trial court and remand this matter for further proceedings consistent with this

opinion. All costs of this appeal, in the amount of $4, 128. 00, are assessed one- half

to the Louisiana Department of Natural Resources and Secretary Thomas Harris and

one-half to Joseph Waitz, Jr., District Attorney for Thirty -Second Judicial District

Terrebonne Parish.

REVERSED AND REMANDED.

2 We note that the trial court, in rendering its judgment, apparently addressed the merits of TPCG' s
declaratory judgment action. However, whether a plaintiff will prevail on the merits is not an
appropriate consideration on an exception raising the objection of no cause of action. Bergen
Brunswig Drug Company v. Poulin, 93- 1945 ( La. App. 1 st Cir. 6/ 24/ 94), 639 So. 2d 453, 458.
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