Terrebonne Parish's district attorney is investigating whether oil exploration companies have violated coastal permit laws over a period of decades, by doing damage to land and water, or in some cases not obtaining those permits at all.
District Attorney Joe Waitz Jr. was appointed to the task by Louisiana Department of Natural Resources Secretary Thomas Harris, who says he has the authority to do so under state law. The appointment, which Waitz has accepted, was made in connection with a series of pending lawsuits against oil exploration companies. A total of 11 Louisiana parishes have filed 23 lawsuits against 47 defendant companies. The state is also involved with litigation and potential regulatory penalties should wrong-doing be found.
Harris' letter – which notes that Terrebonne is the only coastal parish to not file a suit or at least investigate potential damages – states that Waitz is not being asked to file a suit, but merely to assist in the assessments. Whatever facts are determined as a result will figure into how the state moves forward in regard to damages potentially done or violations in Terrebonne.
Waitz has contracted with two law firms, Duval, Funderburk, Sundbery, Richard & Watkins, and St. Martin & Bourque, to perform the actual assessment work. The agreement specifically states that the firms are not authorized to
enter into litigation, but merely investigate whether laws have been violated, and, if so, what damages have occurred.
Among reasons these firms were chosen, Waitz said, is the extensive experience of both with large-scale incidents involving environmental damage. Any fees paid to the private firms, Waitz said, will be in a separate award as might be made by a judge or arbitrator, and not paid by the taxpayers. The contract between Waitz, as district attorney of the 32nd Judicial District and the attorneys, specifically bars contingency fees. Waitz is not representing the Terrebonne Parish Consolidated Government.
"I am confident my office, with the help of these seasoned, local attorneys well-versed in environmental matters, will perform a fair and accurate assessment, living up to our statutory responsibility." Waitz said. "Terrebonne Parish has enjoyed beneficial partnerships with oil and gas exploration companies and shall continue to do so. But state law mandates enforcement of coastal zone permits violations. As District Attorney for the 32nd Judicial District I am bound to assist state agencies when they request help within our jurisdiction."
Parish President Gordon Dove, who has repeatedly stated that he does not want Terrebonne involved in any lawsuits against oil companies, challenges the state's authority to bring in Waitz or anyone other than the parish's civil attorney, Julius Hebert, and his assistants, for such a task. Dove also finds the potential that attorneys would do an investigation and not be involved with later litigation disingenuous.
"I will not allow overzealous attorneys to come in here and start suing oil companies while I am parish president" Dove said. "That would be like me telling my lovely wife I have hired a divorce lawyer but I am not divorcing you."
Dove said he is not suggesting Waitz did anything wrong by accepting the assignment, but that he plans to discuss the matter with DNR as well as the district attorney himself.
The parish president says that the parish's own attorneys have – albeit quietly – been auditing coastal zone permits. But no actual investigation of damages appears to have been done as of yet. If anyone is to communicate with oil companies regarding correction for what they have done, he said, it should be the parish's own attorneys. And Dove said the parish's own stable of attorneys will be up to the task. Doing damage assessments at this point, he said, would be putting the cart before the horse.
"If the oil companies would approach us for settlement, Terrebonne Parish would be ready even though I don't think that will happen," Dove said. "I disagree with the contention that we have not done any assessment. And if this litigation doesn't hit for three or four years, damage models done now might be obsolete."
Supporters of Waitz's appointment say that's precisely what he has the contracted attorneys doing, but with no upfront money paid by taxpayers.
Records of past statements from Waitz regarding coastal suits indicate no appetite for oil company lawsuits; at one point, Waitz said that such actions were the prerogative of the parish president. But in regard to the recent developments, he notes that the letter from the LDNR secretary was clear as to what was being requested and why, along with the provision that the assessment work does not mean a lawsuit is required.
The authority for the investigation lies within the Louisiana State and Local Coastal Zone Management Act of 1978. The law states that judicial enforcement actions may be brought by the DNR secretary, the attorney general, "the appropriate district attorney" or local governments with approved coastal programs. According to a DNR official contacted by The Times, Waitz would be the appropriate district attorney in Terrebonne because his 32nd Judicial District lies entirely within the parish's confines.
Dove maintains that a state law regarding civil representation for parishes contradicts that opinion. LA-RS 42:261 requires that the district attorneys of nearly all the state's parishes shall – meaning required – be the "be the regular attorneys and counsel for the parish governing authorities" and other entities. The law contains a specific provision for Terrebonne. It says only the parish attorney, proposed by the parish president and approved by the counsel, may retain or employ an attorney to serve as its regular or special attorney, and goes on to say that "the employment of an attorney under this authorization relieves the district attorney of responsibility."
Supporters of Waitz's involvement maintain that the coastal zone management law governs this situation, in particular because the parish government's publicly stated position is opposition to coastal suits against oil and gas companies, and that the district attorney's duties as requested by LDNR are not the same as representation of the parish government. In two of the lawsuits now in court, district attorneys have filed suit on behalf of their respective judicial districts, rather than specifically on behalf of an individual parish. The office of district attorney, while funded by the parish, is an independent constitutional entity possessing broad powers enjoyed by few other sector of government within the state.
In interviews on Saturday, Dove stated that any quarrel he has is not with Waitz, but potentially with DNR's interpretations of the law. He has not yet indicated how far he will go to prove that belief, but did say that he has long enjoyed a good relationship with DNR, dating back to his years as a state representative.
A QUESTION OF LAW
Louisiana's coastal management program has existed since 1978 and authorizes the state's coastal management agency, the attorney general, local district attorneys and parish governments to file civil actions for various types of relief, including court-ordered restoration of damaged areas and declarations of findings by the courts, and damages related to them. It stems from federal coastal management laws and under their provisions required approval from NOAA and other federal agencies. Neither the state nor parish governments, attorneys familiar with current litigation state, have exercised their rights to take action until recently.
Louisiana divides coastal zone permitting responsibili
Lafourche District Attorney Kristine Russell issued an opinion Wednesday, which said the parish president cannot raise his pay without having it approved by the parish council, via a budget amendment.
However, hours later, Lafourche Parish President Jimmy Cantrelle released a press release detailing the terms of a lawsuit which he filed against the parish council on Monday, regarding his pay.
The issue of Cantrelle's pay stems from the Feb. 24 Lafourche Council meeting, where Councilwoman Luci Sposito questioned Cantrelle as to why his salary, and the salary of Brent Abadie, the parish risk manager, had a 29 percent increase during the first two pay periods of this year.
A video of the meeting backs Sposito's claim that "she was just doing her job" when she questioned Cantrelle.
However, Cantrelle felt Sposito was attacking him, and in the video he tells her, "Miss Luci, save it for the campaign."
And later when he was questioned about the incident, he referred to the council as a "Gang of Bullies."
Cantrelle also tells Sposito in the video, "I never look at my check."
In the video, Lafourche Legislative Auditor Reggie Bagala points out his findings on Cantrelle and Abadie's salary, saying that based on a 26 week pay period count (being paid bi-monthly for a year), the salary of the parish risk manager grew to $91,000 from $65,250. Also, the salary of the parish president saw an increase to $160,000 from $113,100.
"Both of these jobs are on pace to pay these salaries for the year," he said.
But later, Cantrelle said the council has been playing "ping-
pong" with his salary, first day in office.
Russell said in her memo that Cantrelle was fully in his rights to award Aha die the pay increase, as he had desired (Cantrelle said he felt Aha die has been doing the job of three people.)
However, Russell took issue with Cantrelle and his pay.
"The parish president cannot unilaterally increase or decrease his salary amount in the enacted budget without an amendment brought before the council," Russell wrote. 'It is my understanding that for any salary adjustment to be made within the parish accounting system, supervisor approval is required. In this instance, the parish president is the only person who could order a change in his salary amount. So. contrary to what the parish president stated at the meeting on Tuesday, Feb 38, he would have had to have been aware of the change in salary amount for the change in the parish's accounting system to take place."
"In any event, it appears as though an error was made in the enacted amount for the pariah president's salary" she continues. "The salary of the pariah president is set either within the charter or by ordinance of the parish council pursuant to the procedure laid out in the charter. But in neither instance may the parish president set his own salary."
"She's wrong. Everyone will see that. I filed suit against the parish council cm Monday, so we're going to have an opportunity see how a judge feds the parish president's salary should be calculated," he s said
The federal judge overseeing a lawsuit that may result in a change to how Terrebonne Parish elects its judges has announced her decision on the choice of a special master – a legal expert recognized in specific fields – to help her resolve the case's remaining issues.
David R. Ely, one of two candidates proposed by the NAACP Legal Defense Fund, which is litigating the case for the Terrebonne Parish Branch of the NAACP and related plaintiffs, was the choice of U.S. District Court Judge Shelly Dick, who is presiding over the case. The decision means that the special master candidates proposed by Attorney General Jeff Landry, one of the defendants in the suit, was rejected. After an eight day trial the court found that Louisiana, by furthering the practice of electing Terrebonne Parish judges at-large, is in violation of the federal Voting Rights Act. The judge who handled the case from its 2014 filing until his death, the late Hon. James Brady, ruled in addition that the practice was intentional and arose from a history of racial discrimination.
Judge Dick must now fashion a remedy.
The plaintiffs have proposed at least one sub-district if not more, with one sub-district comprised of a non-white majority.
They describe Ely in materials they filed to the judge as a professional whose qualification and experience satisfy the considerations the court must consider.
Ely has been the President and Founder of Compass Demographics, a consulting and database management firm specializing in "projects in
volving census and election data, redistricting projects, demographic analysis, and analysis of voting behavior."
He previously served for more than two decades as the Director of Research for the Redistricting and Reapportionment practice of Pactech Data and Research where he "testified or consulted to counsel in a variety of litigation involving the configuration of election districts as well as providing database construction and redistricting consulting for numerous jurisdictions."
"Mr. Ely possesses the technical expertise necessary to assist the Court as a Special Master," plaintiff attorneys wrote in one of their numerous briefs on the topic and the judge appears to agree,
Ely will have until June to present the court with his findings.
"This brings us one step closer to justice," said Terrebonne NAACP resident Jerome Boykin,
Attorneys on both sides are not commenting at the present time.
Both Landry and Gov. John Bel Edwards are defendants. Landry has been the more vociferous litigant.
The case is being heard at the U.S. District Court in Baton Rouge.