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ONLINE EXTRA:
See The DNR Letter appointing Waitz. CLICK HERE:
See the District Attorney Contract with Law Firms. CLICK HERE:
See Page 1 of Hebert’s letter to law firms. CLICK HERE:
See Page 2 of Hebert’s letter to law firms. CLICK HERE:
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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’S DEMURRER
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.
The state’s coastal management program descended from federal coastal management law, which contains unique provisions. The coastal states are given wide berth in regulation and issuance of permits, to the point of their approvals being required even for certain federal agencies.
Louisiana’s State and Local Coastal Resources Management Act of 1978 includes the state’s public policy, which provides that the public policy of the state is to “protect, develop, and where feasible, restore or enhance the resources of the state’s coastal zone.”
Permits, therefore, are required for activities that can impact earth and water in the coastal zones, including dredging, pipeline construction, mineral exploration and production, the siting and construction of buildings and other structures, and others.
Responsibility for enforcing the coastal zone laws lies with the state as well as the local governments, like Terrebonne, which have approved Coastal Zone Management plans.
The Office of Coastal Management, under the aegis of LDNR, oversees coastal zone permitting and enforcement.
While the OC is technically part of the LDNR for budgetary and staffing purposes, it is deemed quasi-independent agency organizationally located within the LDNR, as there exists a legal firewall between LDNR and the OC with respect to the core functions of the OC. Until recently, both the LDNR and OC have been subject to considerable influence by the oil and gas industry.
Louisiana divides coastal zone permitting responsibility between local governments and the State. The State issues permits relating to “uses of state concern” in the coastal zone, and local governments with approved programs issue permits for “uses of local concern.” Oil and gas activities involve “uses of state concern” that are conducted pursuant to “state concern permits.”
Parish governments with such plans have authority equal to that of the state, its attorney general and local district attorneys to bring enforcement actions.
Applicable law authorizes courts to impose liability, assess damages, order payment of restoration costs, require in some cases restoration of disturbed areas and authorize attorney fees to whichever party in such an action wins.
Although no contract with attorneys has been made by Waitz that authorizes litigation on behalf of the 32nd Judicial District, the parish of Terrebonne nor any other entity, how such involvement might end up, perhaps in settlement agreements – will likely be steered by how existing lawsuits pan out.
LITIGATION ON HOLD
From the standpoint of trial attorneys who have brought lawsuits against oil companies on behalf of Louisiana parishes currently pending, the central focus is on Louisiana’s land-loss crisis.
Victor Marcello, a partner in the Baton Rouge firm Talbot, Carmouche & Marcello – a firm considered anathema by oil companies and their supporters in government – is the lead representative of nearly all entities that have brought suit against oil and gas companies in the state since 2013. He maintains that the suits will be an important component of funding work to restore the coast.
“In just 80 years, some 2,000 square miles of its coastal landscape have turned to open water, wiping places off maps, bringing the Gulf of Mexico to the back door of New Orleans and posing a lethal threat to an energy and shipping corridor vital to the nation’s economy,” Marcello states in a widely-circulated position paper, which iterates the now-familiar statistic of the state losing a football field’s worth of land every hour. He cites a report by the Louisiana Mid-continent Oil and Gas Association, the trade association for major oil companies, which appears to lay responsibility for damage in some coastal areas at the feet of the industry. He cites, as well, a 2001 U.S. Geological Survey study, which included oil industry scientists. That study concludes that 36 percent of Louisiana’s land loss was caused by the industry.
In 2013 the parishes of Plaquemines and Jefferson filed 28 separate lawsuits, 21 Plaquemines and seven in Jefferson, against over 100 oil companies alleging claims for restoration and damages arising from the violation of coastal use permits, or arising from the failure to obtain a permit when required, the latter being the most prevalent. Those suits, filed in state courts, were moved to federal court, due to claims that certain federal laws regarding jurisdiction were in play.
More suits were filed – from every coastal parish except Terrebonne and Lafourche, although Lafourche retained an attorney, Jerald Block, to represent its interests.
In these lawsuits, the state is an active party because, under the interpretation of coastal law advanced by attorneys for the plaintiffs, the standing to bring an action is equal among all potential parties.
The complex web of case-law relating to these issues of jurisdiction is daunting, especially to laymen.
The question of whether the cases will remain in federal court – an outcome preferred by the oil companies – or be moved to state courts, an outcome preferred by attorneys for the parishes, is expected to be resolved in April. Attorneys say that all federal judges before whom the coastal suits are being litigated are expected to follow the decision that will be made by a federal judge in the Western District of Louisiana. That judge has the option of removing the cases to the state courts, a potential favored by the plaintiffs and their lawyers. Until that decision is made the cases are essentially on hold.
In his position paper, Marcello notes that Louisiana’s Master Plan for coastal restoration ranges “from $50 billion to $92 billion dollars.”
“The state is unable to fund the plan, and federal funds are limited,” Marcello said. “The very survival of Louisiana’s coast depends in large part on the success of these coastal cases. Considering the immense power and influence of the oil and gas industry in Louisiana, the members of the parish governing authorities in Plaquemines and Jefferson parishes demonstrated tremendous courage in authorizing the filing of the parish coastal lawsuits. The parish coastal lawsuits offer the last hope for saving Louisiana’s coast.”
Parish President Gordon Dove strongly disagrees.
DOVE DIGS IN
In 2016 both Dove and Lafourche Parish President Jimmy Cantrelle co-signed a letter to Gov. John Bel Edwards rejecting his request that they join the state in pursuing coastal law suits against oil companies.
The letter states that suing oil and gas companies could have devastating effects on local economies, and that doing so amounts to taking an action against valued corporate citizens.
Dove noted that oil and gas companied own more than 60 percent of the land and mineral rights in Terrebonne, and that thousands of jobs had already been lost due to industry downturns.
Suit supporters counter that oil and gas companies should be held responsible and pay for hundreds of millions of dollars in damage to the coast rather than have taxpayers foot the bill.
In a meeting with Edwards Dove and Cantrelle furthered their arguments that the state should explore all administrative cures under the law rather than resort to litigation.
The state’s own failure to properly safeguard barrier islands, the federal government’s damming of Bayou Lafourche nearly a century ago and failure to provide freshwater paths to local lands, paths and canals cut by the sugar cane and timber industries and the erosion furthered by rampant nutria populations, Dove maintains, are all factors that show oil companies, while certainly bearing some responsibility, is far from along in causing or allowing damage to the coast.
“Why would we jeopardize Terrebonne’s economy and the relationships with the oil companies for a quick payday scheme, because that’s what this is, going after deep pockets,” Dove said Saturday. “You can’t sue a nutria they have no assets and there have been millions of them.”
Waitz and representatives of the law firms counter that the only action being taken is a timely and rapid evaluation as requested by LDNR, and that the method chosen is the most expeditious for determining if damage attributable to oil companies, or anyone, exists.
More than two years after somewhat strained dialogue between Dove and Edwards, there appears to be an impasse, as evinced by the DNR letter. However, Dove maintains that DNR officials were advised last year of progress on auditing permits. Dove’s critics maintain that auditing permits is one thing, and assessing damage is another. Dove says he doesn’t see why there should be a sudden rush to perform damage assessments.
Dove’s positions – and those of parish attorney Julius Hebert, his legal right hand – has been well-telegraphed to the oil companies and to the governor. The letter appointing Waitz from the LDNR secretary is dated Jan. 28. Individual letters were sent to oil and gas companies on Julius Hebert’s stationery, dated Jan. 30, affirming to them that he and his assistants are the only attorneys with whom they should discuss coastal zone issues. Among those sent copies of the Hebert letter were Gov. Edwards, Joe Waitz and Attorney General Landry.
Dove, the letter says, asked Hebert to affirm that “he has not authorized litigation nor retained or authorized any other attorneys to represent the local government, Terrebonne Parish Consolidated Government, concerning coastal permitting and possible related litigation.”
Citing the parish’s Home Rule Charter and other laws, as well as what he maintains are relevant court decisions, Hebert notes that the parish has not sued any energy firms for coastal violations.
The letter warns oil companies not to accept claims from anyone other than Hebert that they represent the Terrebonne Parish Consolidated Government. It also contains an advance olive branch that appears to assure the companies that Hebert means them no harm.
CORPORATE CITIZENS
The letter does leave a door open for companies to discuss the matter, however.
“Various energy entities … own large property acreage and/or rights to oil extraction in Terrebonne Parish and have been issued coastal permits,” the letter states. “Terrebonne Parish Consolidated Government recognizes the extreme importance of these entities’ operations for its local economy, labor market and its citizens. Parish President Dove is willing to meet with your clients to discuss coastal permitting issues. Please advise if your clients are interested in engaging in formal discussion with the parish president and me.”
Dove maintained in recent interviews that the hiring of any law firm by the district attorney requires approval from the state’s attorney general. Several local attorneys whose opinions were sought by The Times maintain that because of the district attorney’s unique standing in the constitution, that he would not be subject to the same restriction that other entities might be required to follow.
Attorneys noted that a state statute, RS 42:263 bars parish governments, levee boards, school boards and other entities defined as boards, with certain specific exceptions, from retaining or employing a special attorney or counsel “unless a real necessity exists” and only if approved by the attorney general.”
Attorney interviewed over the weekend with knowledge of the statute’s operation said they doubt it would apply to district attorneys.
The parish is paying lawyers to do the work which Dove said has been assigned, under the aegis of Hebert’s law firm. Patrick Yancey, Vincent Dagate, Chad Luke and James Erny – who is an assistant district attorney – are the attorneys working on the project, according to Dove. The TIMES is seeking billing information to determine how much the parish government has had to lay out up to this point for those legal bills.
At the same time, Dove gives no indication that he would ever approve a lawsuit, even if evidence indicated it was warranted.
“Why get Terrebonne involved in these lawsuits,” Dove said. “Shell is building a 100,000-square foot building over by Village East. We are going to have their offshore operations out of Terrebonne. BP and Chevron are in Terrebonne Parish and small local companies like Baywater Drilling and Hillcorp are all here. Conoco is here, and has 350,000 acres, Apache, and other firms. The end result of any litigation will be that the leveeing off of the Mississippi River was the reason for the coast’s demise. Why would you even approach oil companies over something that has not been to court yet? For damage models, we don’t need another law firm to do a damage or drainage model. We do drainage models all the time.”
Terrebonne Parish Council members said they are still studying the matter, although those interviewed acknowledge that in their minds the district attorney’s dealings on behalf of the state do not require action or consideration by them at this point. Nonetheless, as each learns about the development, they have expressed a keen interest in following how the issue will shake out.
“As a parish we have to maintain a balance of holding oil companies accountable while recognizing that oil companies generate an economic development value for our parish,” said Councilman Gerald Michel. “But the bottom line is if they have done wrong, things that have caused damage to the parish, and those things are illegal, they are responsible to be accountable for them.”
Councilman Dirk Guidry of Chauvin said based on what has so far been told, he does not share suspicions nor criticisms that have been advanced in the discussion of Waitz’s choice to proceed as requested by DNR.
“I have no problem,” Guidry said. “I think Joe Waitz is a fine individual and for whatever reason the state is going with the district attorney I have no problem with it.”
