Presentation on theme: "Restoring and protecting Louisiana’s coast David Peterson – La. AG’s Office – Asst. Attorney General Designee to CPRA Irys Allgood – OCPR Counsel and Chief."— Presentation transcript:
restoring and protecting Louisiana’s coast David Peterson – La. AG’s Office – Asst. Attorney General Designee to CPRA Irys Allgood – OCPR Counsel and Chief of Real Estate and Land Rights Division Cliff Bingham – OCPR General Counsel Land Rights and Legislative Update
Integrated Coastal Protection Comprehensive Integrated Coastal Protection must proceed in a manner that recognizes the powers and duties of the State and political subdivisions to fund and manage activities that are consistent with the goals of a comprehensive integrated coastal protection plan. La. R.S. 49:214.1 The legislature has further recognized that a substantial majority of the coastal lands in Louisiana are privately owned and that a significant portion of the projects funded through the Coastal Protection and Restoration Fund either will occur on or in some manner affect private property. La. R.S. 49:214.5.5 The full police power of the state shall be exercised to address the loss and devastation to the state and individuals arising from hurricanes, storm surges and flooding and to address the rapid, ongoing, and catastrophic loss of coastal Louisiana in order to devote the maximum resources of the state to meet these immediate and compelling public necessities of integrated coastal protection. La R.S. 49:214.5.6
Compensation for Use of Private Property Rights Compensation paid for the taking of, including loss or damage to, property rights affected by integrated coastal protection project and programs shall be governed by and limited to the amount and circumstances required by the 5 th Amendment of the Constitution of the United States of America. La. R.S. 49:214.5.6 and Article I Section 4 of the Louisiana Constitution
Access for Integrated Coastal Restoration Projects 1. Servitudes at no cost 2. Servitudes at a cost 3. Full ownership
Acquisition Needs Servitude, access rights, and other property interests for numerous projects in an area generally south of the Interstate 10/12 corridor from Sabine River to the Pearl River, also including the Atchafalaya Basin and other areas south of the Old River Control Structure Limited rights, minimal situations involving full ownership rights Needs likely include property rights for tens of thousands of parcels involving multitudes of owners, including those located in other states and countries Current examples of projects requiring property rights acquisition: N.O. Hurricane Protection (WBV and LPV): Approx. 4,000 to 5,000 parcels of property at cost of approximately $300 million acquired or to be acquired when determined to be necessary by the Corps, including $8 million on WBV and $3 million on LPV for mitigation of approx. 15,000 acres Scofield Island – 38 parcels, indeterminate number of landowners ME-20 – South Grand Chenier – hundreds of landowners, over 50 parcels MRGO Ecosystem Restoration Project (Area from Golden Triangle to Caernarvon) - numerous parcels, multiple landowners
PRE-KATRINA HISTORY State allowed the use of indemnity clauses in servitude documents which usually allowed for indemnity and defense of the landowners for everything except the landowners’ own GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. State policy decision to agree to defend and indemnified landowners for the landowners’ own negligence. State policy decision generally not to expropriate property rights for coastal protection and restoration projects. Expropriation used only for levee and hurricane protection projects at local level under Corps of Engineers agreements mandating local acquisition of LERRDs. This was done for several reasons.
Pre-Katrina Policy Reasons Lack of sense of urgency and funding, i.e. more projects than funds. Piecemeal projects versus current thinking that all projects are part of the whole Move to other projects where land rights acquisition presented problems for a particular project, including uncooperative landowners Prior to Tort Reform Act of 1996 – Landowners were solidary obligors that could be held responsible for 100% of all damages caused to third parties, even if not negligent and thus, landowners could be ordered to pay all of the judgment. This was especially worrisome to the landowners since the State Legislature did not have to pay a judgment against the state or public entity if the legislature did not appropriate funds for the payment of same. Indemnification and defense for a landowner’s own simple negligence provided as an incentive to provide property and as protection for the landowner from liability and make them immune from liability for State actions on landowner’s property.
CHANGE IS GOOD All of this has changed dramatically. Louisiana landowners are now protected by the law, specifically by comparative fault and a new statutory immunity provision. In 1996, the State Legislature instituted tort reform and eliminated “solidary liability” and replaced it with “comparative fault”. Now, under the current provisions of the law the landowners may only be held liable for damages to the degree or percentage that damage was caused by their own fault and not the fault of another obligor like the State. See La. C. C. Art. 2324. The landowners can no longer be held responsible for the State’s or the State’s contractor’s fault or negligence and there is no reason at all for an indemnity and defense provision for the landowner’s own negligence. They are clearly protected by the tort reform of 1996 from any harm State actors may cause.
Immunity with Cooperation The landowners have greater protection with the recent passage of R.S. 49:214.6.10C within Act 734 of the 2010 Legislative Session (eff. August 15, 2010). While not yet cited in the reporters, the statute was enacted in the last legislative session in response to a request by several landowners and their representatives. OCPR and CPRA attorneys had discussions with Louisiana landowners and worked to convince the legislature that willing landowners should be protected from liability to third parties if the third parties were harmed as a result of the project or project activities. La. R. S. 49:214.6.10 C, provides landowners, who without cost to the State, provide land, property, access rights, servitudes, etc. to the State or its political subdivisions, immunity from liability for any damages “resulting from or caused by the construction, operation, or maintenance” of the integrated coastal protection project for which it was granted.”
Insurance and Indemnity In OCPR’s new servitude language, the State agrees to require the State’s contractors to add the landowners as additional insured under the State’s contractors’ insurance policies. The new servitude language provides that the State will indemnify and hold the landowners harmless for “any court cost and reasonable and actual litigation expenses and attorneys’ fees” which the landowners might incur as a result of the project and not from their own fault or negligence.
Indemnity Clause VII. To the extent permitted by Louisiana law, STATE shall, indemnify, and hold harmless GRANTORS against and from all costs, expenses, claims, demands, penalties, suits, fines, and actions of any kind and nature arising from the Project and caused by the actions and fault of STATE or its agents, employees, contractors, successors, assigns and transferees, including any court costs and reasonable and actual litigation expenses and attorneys' fees. However, nothing herein shall be construed as indemnifying or holding GRANTORS or any third person not a party hereto harmless against its own fault or negligence or that of its agents, employees, contractors, successors, assigns and transferees. Should work on said Lands be performed via contract, STATE shall ensure that the contractor lists GRANTORS as additional insured on any policies carried by the contractor, including completed operations coverage. This clause shall survive the term of this agreement. The STATE acknowledges, declares and stipulates that GRANTORS have provided this Agreement at no cost to the STATE under the provisions of La. R.S. 49:214.6.10 C, as amended by 2010 Acts No. 734.”
Land Rights Acquisition Options Survey Notice Statute Voluntary, at no cost to State Conventional Purchase Taking
Survey Notice Statute Act 523 of 2009 Regular Legislative Session enacted La. R.S. 49:214.6.9. which grants authority for integrated coastal protection surveying Applies to OCPR and its authorized agents and employees Can include other state, local, or federal project partners if OCPR provides “authorization” Authorized persons may enter upon any lands, waters, and premises in the state for the purpose of making such surveys, soundings, drillings, and examinations as may be necessary or convenient for carrying out the purposes of integrated coastal protection Entry is not considered trespassing Requires written notice be sent five days prior to entry for resident owners and fifteen days prior to entry for nonresident owners Owner = record property owner as reflected in the parish assessment rolls Written notice is provided by certified mail to the last known address of the owner as shown in the current assessment records. Landowner is indemnified for any loss or injury resulting from entry upon the property Landowner is to be reimbursed for any actual damages resulting to lands, waters, and premises as a result of activities of authorized persons. OCPR policy is to provide contact information in notice letters and if landowner requests, will provide at least 48 hours advance notice to landowner before entry onto property. Current OCPR notice letter also provides owner with a list of activities that will be conducted on the property and locations thereof on the property. Current OCPR policy is to attempt to work with landowners to obtain voluntary survey rights, if circumstances and time constraints allow, and will agree to reasonable accommodations that may be requested by landowners Patterned off of similar long existing language in DOTD and Levee surveying statutes
Voluntary Benefit of Indemnity Benefits of Project to Landowner No cost to State Reasonable Accommodations Negotiated conditions Reasonable Accommodations to landowner to allow variety of activities to co-exist on property with integrated coastal protection projects and programs
Conventional Purchase Pay only for those rights necessary to carry out project Normally a limited servitude Only limited situations where fee title / full ownership would need to be acquired but mineral rights always reserved No benefit of immunity statute, immunity provision not applicable Generally retain ability to negotiate reasonable accommodations
Taking Last resort Numerous undeterminable and absent owners Inability to negotiate reasonable conditions or payment for conventional acquisition Limited time needed to acquire property, i.e. emergency situations or other time constraints imposed by outside factors Acquire only property rights necessary to accomplish project No benefit of immunity provision No ability to negotiate reasonable accommodations Compensation limited to that allowable under the 5 th Amendment to the U.S. Constitution
La R. S. 38:301.1 Coastal Levee and Conservation Districts C. Every levee district located wholly or partially in the coastal area may, in addition to any other powers and duties provided by law for the boards of commissioners of levee districts, establish on its own behalf or for the areas or the levee districts under its authority adequate drainage, flood control, water resources development, and integrated coastal protection, including but not limited to the studying, engineering, designing, planning, maintenance, operation, and construction of erosion control measures, marsh management, coastal restoration, reservoirs, diversion canals, gravity and pump drainage systems, and other flood control works as such activities, facilities, and improvements related to tidewater flooding, riverine flooding, hurricane protection, conservation, and saltwater intrusion. Levee districts located wholly or partially in the coastal area may enter into contracts or other agreements, including cooperative endeavor agreements, with any public or private person or persons, corporation, association, or other entity, including the Coastal Protection and Restoration Authority, office of coastal protection and restoration, the state and other agencies thereof, public corporations, port authorities, levee districts, parishes, other political subdivisions, or the United States government or agencies thereof, or any combination thereof, or with instrumentalities of any kind to provide such adequate drainage, flood control, water resources development, and integrate coastal protection, and to this end, may contract for the acceptance of any grant of money upon the terms and conditions, including any requirement of matching the grants in whole or in part, which may be necessary. D. If specially provided for by the Coastal Protection and Restoration Authority in a cooperative endeavor agreement, levee districts located wholly or partially in the coastal area may expend funds for projects and programs outside of their normal jurisdictional bounds on the condition that the funds are used consistent with the purposes and intent expressed in R.S. 49:213.1 and will benefit the jurisdiction from which the funds are derived. Act 225 of 2010 Regular Legislative Session
La R. S. 49:214.5.2 Coastal Parish Authority The CPRA has the authority to enter into any agreement with a parish governing authority located wholly or partially within the coastal area but which is not part of a levee district for the construction, operation, maintenance, repair, rehabilitation, or replacement of any coastal protection, conservation and restoration, hurricane protection, infrastructure, storm damage reduction, or flood control project. The authority has the power to provide in the agreement for the use and exercise by the parish governing authority of any and all powers of levee districts or levee and drainage districts. Power can only be granted by CPRA in an agreement. Act 320 of the 2010 Regular Legislative Session