Gaudet facing new charges
March 20, 2019
PLAYER OF THE WEEK
March 22, 2019
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.
Louisiana divides coastal zone permitting responsibili
Terrebonne District Attorney Joe Waltz is commencing his environment damage probe to get the parish into the oilfield fray. For a full story, see: www.houmatimes.com
