Louisiana Case Law

OAKVILLE COMM. v. PLAQUEMINES PARISH, 2005-1501 (La.App. 4
Cir. 9-27-06) OAKVILLE COMMUNITY ACTION GROUP v.
PLAQUEMINES PARISH COUNCIL, BENNY ROUSSELLE, IN HIS
OFFICIAL CAPACITY AS EXECUTIVE BOARD MEMBER AND PARISH
PRESIDENT, AND JOSEPH CLARK, AMOS CORMIER, RICK FREMIN,
JOHN FRIEDMAN, AND JERRY HODNET, ET AL. No. 2005-CA-1501.
Court of Appeal of Louisiana, Fourth Circuit. September 27,
2006. Page 1

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 50-697,
DIVISION “A”, HONORABLE ANTHONY D. RAGUSA, JUDGE.

CORINNE VAN DALEN, Tulane Environmental Law Clinic New
Orleans, LA, Counsel for Plaintiff/Appellant, Oakville
Community Action Group.

KEVIN D. CONNER, EDWARD MARKLE Belle Chase, LA, Counsel
for Defendant/Appellee, Plaquemines Parish Council.

(Court Composed of Chief Judge JOAN BERNARD ARMSTRONG,
Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, Jr.)

LEON A. CANNIZZARO, Jr., Judge.

This case involves an appeal from a trial court judgment
granting the exceptions of no cause of action and no right
of action raised by the defendants, who are (1) the
Plaquemines Parish Council, (2) Benny Rousselle, in his
official capacity as executive board member and parish
president, and (3) Joseph Clark, Amos Cormier, Rick Fremin,
John Friedman, and Jerry Hodnet, in their official
capacities as members of the Plaquemines Parish Council
(all defendants being referred to collectively as the
“Council”). The plaintiff, Oakville Community Action Group
(“Oakville’), is appealing the trial court judgment.

FACTS AND PROCEDURAL HISTORY

The Council conditionally approved an application by
Industrial Pipe, Inc. (“Industrial Pipe”) for a coastal use
permit to expand a landfill it owned in Plaquemines Parish,
Louisiana. Oakville, a nonprofit organization whose mission
was to protect the Oakville community in Plaquemines Parish
with respect to environmental, health, and safety issues,
filed suit against the Council requesting that the trial
court review all records compiled by the Council in
connection with Page 2 its consideration of the coastal
use permit for the expansion of the Industrial Pipe
landfill.

In its suit, Oakville alleged that the Council’s decision
to conditionally approve an application for a coastal use
permit for the expansion of Industrial Pipe’s landfill into
coastal wetlands adjacent to the Oakville community would
directly and irreparably harm the wetlands. Oakville also
contended in its petition that, because a solid waste
landfill is not a wetlands dependent land use, the Council
had improperly granted the application for a coastal use
permit for the proposed landfill expansion. Additionally,
Oakville claimed that the Council had improperly issued a
coastal use permit without complying with the applicable
provisions of the Louisiana Administrative Code. Finally,
Oakville asserted that the Council failed to comply with
both statutory and constitutional mandates applicable to
the approval of the application for a coastal use permit
for the proposed landfill expansion.

In response to the petition filed by Oakville, the Council
filed peremptory exceptions of no cause of action and no
right of action. The Council contended that because
Oakville had not first brought its claims before the
Secretary of the Louisiana Department of Natural Resources
(the “DNR”) for review or sought the Council’s
reconsideration of the Industrial Pipe permit, Oakville did
not have a right of action or cause of action. After a
hearing on the exceptions filed by the Council, the trial
court judge granted the exceptions and transferred the
matter “to Page 3 the Louisiana Department of
Environmental Quality for a reconsideration and review. . .
.”[fn1]

DISCUSSION

Standard of Review

Whether a plaintiff has a cause of action and whether a
plaintiff has a right of action are questions of law.
Therefore, this Court is required to conduct a de novo
review in determining whether the trial court was legally
correct in granting the exceptions raised by the Council.
See, e.g., Badeaux v. Southwest Computer Bureau, Inc.,
05-0612, 05-719 (La. 3/17/06), 929 So.2d 1211, 1217; Cmty.
Land Ass’n of Louisiana, Inc. v. Zeno, 05-1489, p. 1
(La.App. 4 Cir. 6/21/06), ___ So.2d ___, 2006 WL 1752433.

Exception of No Cause of Action and Exception of No Right
of Action

The exceptions of no cause of action and no right of
action are both peremptory exceptions,[fn2] the function of
which is “to have the plaintiff’s action Page 4 declared
legally nonexistent, or barred by effect of law, and hence
this exception tends to dismiss or defeat the action.” La.
C.C.P. art. 923. In the Badeaux case, the Louisiana Supreme
Court discussed these two exceptions. The Supreme Court
stated that “one of the primary differences between the
exception of no right of action and no cause of action lies
in the fact that the focus in an exception of no right of
action is on whether the particular plaintiff has a right
to bring the suit, while the focus in an exception of no
cause of action is on whether the law provides a remedy
against the particular defendant.” 929 So.2d at 1216-17.

The Supreme Court further explained that the function of
an exception of no right of action is to determine whether
a plaintiff is included in the class of persons to whom the
law has granted the cause of action that is asserted in the
plaintiff’s petition. Id. at 1217. The Supreme Court also
discussed the function of an exception of no cause of
action and stated that an exception of no cause of action
“questions whether the law extends a remedy against the
defendant to anyone under the factual allegations of the
petition.” Id.

In considering the merits of an exception of no cause of
action, the trial court is required to decide whether to
grant or deny the exception on the basis of the face of the
petition. Id. To resolve the issues raised by an exception
of no cause of action, “each well-pleaded fact in the
petition must be accepted as true.” Id. In the case of an
exception of no right of action, however, evidence is
admissible at a hearing on the exception to either support
or rebut the exception. Eubanks v. Hoffman, 96-0629
(La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600. Page 5

Assignments of Error

Authority of the Department of Environmental Quality

In its first assignment of error, Oakville asserts that
the trial court judge erred in transferring this case to
the Louisiana Department of Environmental Quality (the
“DEQ”). Oakville argues that the agency that oversees
coastal use permits is the DNR, not the DEQ.

The State and Local Coastal Resources Management Act of
1978, La. R.S. 49:214.21 et. seq. (the “Act”), provides for
the management of the state’s coastal waters and adjacent
shorelands. Both the Council and Oakville agreed at the
oral argument of this case that it is the DNR, not the DEQ,
that has the authority under the Act to review the approval
of an application for a coastal use permit. It is clear
that this position is correct, because throughout the Act,
all agency references are to the DNR, not the DEQ. Further,
the Act defines the term “secretary” to mean “the secretary
of the Department of Natural Resources or his designee.”
La. R.S. 49:214.23(10). Additionally, La. R.S.
49:214.26(A)(1) states that “[a] coastal management program
is hereby established within the Department of Natural
Resources.” Finally, that statute provides that “[t]he
secretary or his designee shall administer the coastal
management program.”

This assignment of error clearly has merit. The references
in the judgment of the trial court to the DEQ should have
been to the DNR. Page 6

Granting the Exceptions of No Cause and No Right of Action
to Decline Jurisdiction

In its second assignment of error Oakville argues that the
trial court improperly declined to exercise its
jurisdiction. As a result, the trial court granted the
Council’s exceptions of no cause of action and no right of
action.

Oakville contends that the trial court erred in finding
that Oakville was required to seek agency review of the
approval of Industrial Pipe’s application for a coastal use
permit prior to seeking judicial review. La. R.S. 49:214.35
establishes two methods by which a decision regarding a
coastal permit may be reviewed. La. R.S. 49:214.35(B)
provides in relevant part that “[a] decision or
determination shall be subject to reconsideration by the
secretary [the secretary of the DNR] if a petition for
reconsideration is filed in writing with the secretary
within ten days following public notice of a final coastal
use permit or local program approval decision. . . .”
Additionally, La. R.S. 49:214:35(D) provides that “[a]ny
person authorized . . . to appeal a coastal use permit
decision . . . may seek judicial review of that decision
whether or not a petition for reconsideration has been
filed. . . .”

Thus, La. R.S. 49:214.35(B) provides for agency
reconsideration of the approval of a permit application,
whereas La. R.S. 49:214.35(D) provides for judicial review.
Although the trial judge concedes in his reasons for
judgment that La. R.S. 49:214.35(B) and (D) confer apparent
concurrent jurisdiction on both the DNR[fn3] and the court,
he cites the “Louisiana . . . strong public policy of
allowing state government agencies to judge matters which
fall within their field of Page 7 expertise when it is
appropriate.” Thus, he held that Oakville’s claims should
first be considered by the DNR,[fn4] because the DNR has
special expertise in the management of coastal zones.

In the instant case, Oakville asserted in its petition
that the Council, acting as the permitting authority for
the local coastal management program in Plaquemines Parish,
failed to comply with the Plaquemines Parish Coastal Zone
Management Program by conditionally approving an
application for a coastal use permit for a use that is not
an appropriate use. Oakville further claimed in its
petition that the Council failed to comply with the
requirements set forth in La. Admin. C. 43:I.723, which
establishes the rules and procedures to be used in
connection with, among other things, the issuance of
coastal use permits.

La. Admin. C. 43:I723(8)[fn5] requires the Council to
consider all information in connection with a coastal use
permit application to insure that there is an appropriate
balancing of social, environmental, and economic factors.
Additionally, pursuant to La. Admin. C. 43:I.723(C)(8), the
Council is required to prepare a statement explaining the
basis of its decision on all permit applications. Oakville
also contended in its petition that the Council violated
its duty to act as a public trustee of the environment by
failing to consider and address the potential Page 8
adverse effects the expansion of Industrial Pipe’s landfill
would have on the environment.

Therefore, we find that Oakville has on the face of its
petition stated a cause of action based on its allegations
that the Council has failed to comply with applicable laws
and regulations in granting Industrial Pipe’s application
for a coastal use permit. Thus, the Council’s exception of
no cause of action was improperly granted by the trial
court.

With respect to the exception of no right of action, we
find that Oakville was within the group of plaintiffs with
the right to assert the cause of action stated by Oakville.
In La. R.S. 49:214.30(D), the Act expressly provides that
“any aggrieved person or any other person adversely
affected by a coastal use permit decision” may appeal the
decision. Oakville’s members lived within the Oakville
community in Plaquemines Parish and claimed to be adversely
affected by the Council’s permit decision. Therefore, we
find that the exception of no right of action was
improperly granted by the trial court.

The trial court judge stated in his reasons for judgment
that Oakville improperly relied on La. R.S. 49:214.35(D) to
seek judicial review, rather than administrative
reconsideration, of the Council’s decision to conditionally
grant Industrial Pipe’s application for a coastal use
permit. The trial court judge stated in his reasons for
judgment that “agencies promote uniformity and consistency
in the regulation of business entrusted to them; offer
expertise in cases raising issues not within the
conventional experience of judges. . . .” The trial court
judge further said in his reasons for judgment that “[t]he
Court believes that whenever possible it should tap into
their vast experience, knowledge base, and uniformity of
rule making and regulatory power.” Finally, based on the
foregoing statements, the Page 9 trial court concluded
that “[a]s a result of the above logic, this court believes
that it has the inherent option to invoke this doctrine
whenever the circumstances are appropriate, as in this
case.”

In the instant case, however, Oakville has based its cause
of action on the failure of the Council to comply with the
regulatory requirements set forth in La. Admin. C.
43I.723(8) and other applicable laws and regulations in
connection with the Council’s granting of Industrial Pipe’s
application for a coastal use permit. Thus, the issues upon
which Oakville’s cause of action in the instant case are
based are legal issues, and legal issues are squarely
within the conventional experience of the courts, not
government agencies such as the DNR. For this reason, we
conclude that the trial court erred in transferring this
case to an agency for consideration. The trial court should
consider the instant case to determine whether the Council
complied with all applicable laws and regulations,
including La. Admin. C. 43:I.723(C)(8), in approving
Industrial Pipe’s application for a coastal use permit.

CONCLUSION

The judgment of the trial court is reversed. The case is
remanded to the trial court for further proceedings in
accordance with this opinion.

REVERSED AND REMANDED

[fn1] The trial court judge erroneously referred to the
Louisiana Department of Environmental Quality as the agency
to which a request for reconsideration should have been
directed. At the oral argument of this case, both the
Council and Oakville agreed that the DNR was the
appropriate agency and that the reference to the Department
of Environmental Quality was in error.

[fn2] La. C.C.P. art 927 provides in relevant part:

A. The objections which may be raised through the
peremptory exception include but are not limited to the
following:. . . .

(4) No cause of action.

(5) No right of action, or no interest in the plaintiff
to institute the suit.

[fn3] As discussed above, the trial court judge actually
referred to the DEQ, but the reference should have been to
the DNR.

[fn4] As discussed above, the trial court judge actually
referred to the DEQ, but the reference should have been to
the DNR.

[fn5] La. Admin. C. 43:I.723(8) provides in relevant part
as follows:

Permit decisions will be made only after a full and fair
consideration of all information before the permitting
body, and shall represent an appropriate balancing of
social, environmental, and economic factors. The
permitting body shall prepare a short and clear statement
explaining the basis for its decision on all
applications. This statement shall include the permitting
body’s conclusions on the conformity of the proposed use
with the guidelines, the state program and approved local
programs. The statement shall be dated, signed, and
included in the record prior to final action on the
application.