The opinion
STOP THE DESTRUCTION OF * NO. 2023-CA-0323
ST. BERNARD, INC., ET AL.
*
VERSUS COURT OF APPEAL
*
BOARD OF COMMISSIONERS FOURTH CIRCUIT
FOR THE PORT OF NEW *
ORLEANS AND ST. BERNARD STATE OF LOUISIANA
PORT, HARBOR, AND *******
TERMINAL DISTRICT
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 21-1612, DIVISION “AD HOC”
Honorable Robert H Morrison,
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Rachael D. Johnson)
JENKINS, J., CONCURS WITH REASONS
Sidney D. Torres, III
Erica N. Beck
LAW OFFICES OF SIDNEY D. TORRES, III, APLC
8301 West Judge Perez Drive
Torres Park Plaza, Suite 303
Chalmette, LA 70043
Leonard L. Levenson
Christian W. Helmke
Colleen Boyle Gannon
Donna R. Barrios
LEONARD L. LEVENSON & ASSOCIATES
650 Poydras Street
Suite 2750
New Orleans, LA 70130
L. Blake Jones
Joshua L. Rubenstein
BLAKE JONES LAW FIRM, LLC
701 Poydras Street
Suite 4100
New Orleans, LA 70139
Jacques F. Bezou
THE BEZOU LAW FIRM
534 E. Boston Street
Covington, LA 70433
Edward F. Kohnke, IV
LAW OFFICE OF RICHARD V. KOHNKE
2917 Magazine Street
Suite 201
New Orleans, LA 70015
COUNSEL FOR APPELLANTS
Paul A. Tabary, III
Elizabeth R. Borne
TABARY AND BORNE, LLC
Three Courthouse Square
Chalmette, LA 70043
James M. Williams
Daniel Edwin Buras, Jr.
CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM &
HAYES, LLP
One Galleria Boulevard, Suite 1100
Metairie, LA 70001
L. Etienne Balart
Michael C. Drew
Lauren C. Mastio
Taylor K. Wimberly
JONES WALKER, L.L.P.
201 St. Charles Avenue, 48th Floor
New Orleans, LA 70170-5100
COUNSEL FOR APPELLEE, BOARD OF COMMISSIONERS of the
PORT OF New Orleans
James M. Garner
Ashley Gremillion Coker
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.
909 Poydras Street
28th Floor
New Orleans, LA 70112
COUNSEL for APPELLEE, ST. BERNARD PORT, HARBOR &
TERMINAL DSTRICT
AFFIRMED
October 26, 2023
TFL
RDJ This appeal derives from the trial court’s grant of an exception of
prematurity in favor of the Board of Commissioners for the Port of New Orleans
(“Port NOLA”) and the St. Bernard Port, Harbor, and Terminal District (“St.
Bernard Port”). Appellants, Stop the Destruction of St. Bernard, Inc., Los Islenos
Heritage and Cultural Society of St. Bernard, Violet Cultural & Historical
Association, A.J. Hunt, L.L.C., Charlie’s Restaurant & Catering, L.L.C., The
Parish Diner, L.L.C., Mario L. Williams, and Janet Perez, filed a petition to enjoin
the construction of an international shipping container project (“LIT”) proposed by
the Port of New Orleans and the St. Bernard Port. Appellants alleged that the
proposed LIT project constituted a nuisance and would cause irreparable harm to
the citizens of St. Bernard Parish. Port NOLA and St. Bernard Port1 (collectively,
“Port NOLA”) filed exceptions of lack of subject matter jurisdiction, no cause of
action, no right of action, peremption, and prematurity. Port NOLA argued that
Appellants’ action was premature as no construction had begun on the LIT project
1 St. Bernard Port joined in the exceptions put forth by Port NOLA at the trial level and adopts
Port NOLA’s Appellee brief on appeal.
1
and that the state and federal permit process had not taken place. The trial court
sustained Port NOLA’s exception of prematurity as to Appellants’ claims for
nuisance and injunctive relief, dismissing those claims without prejudice.2
The record supports that no construction has begun on the proposed LIT
project and the requisite permits have not been issued for its operation. We
therefore find the trial court did not abuse its discretion in granting Port NOLA’s
exception of prematurity and dismissing Appellants’ petition without prejudice.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The St. Bernard Port and the Port of New Orleans reached an agreement for
the Port of New Orleans to develop the LIT project at the St. Bernard Port’s Violet
Dock Port, LLC (“VDP”) site.3 In response, Appellants filed the underlying
lawsuit, asserting that St. Bernard Parish’s infrastructure could not support the LIT
project and that the project would destroy the quality of life, health, safety,
property values, economic interests, and livelihoods of virtually all residents of St.
Bernard Parish, and have a catastrophic impact on the environment. Appellants
alleged nuisance violations under La. C.C. art. 667 and sought permanent
injunctive relief, declaratory judgment, and damages.
2 The remaining exceptions from Port NOLA regarding the nuisance allegations and the request
for injunctive relief were deemed moot.
3 Appellants’ brief provides an extensive account of their version of the facts regarding St.
Bernard Port’s acquisition of its VDP site, the background of the agreement between the St.
Bernard Port and Port NOLA. However, Appellants’ proposed facts are not relevant to this
Court’s determination as to whether the trial court erred in granting Port NOLA’s exception of
maturity, and thus, will not be considered on review.
2
Port NOLA filed exceptions of lack of subject matter jurisdiction, no cause
of action, no right of action, peremption, and/or alternatively, an exception of
prematurity in response to Appellants’ lawsuit. All of Port NOLA’s exceptions
emanated from its position that Appellants’ lawsuit was premature because the LIT
project was only a proposal, emphasizing that the statutory permitting process of
various state and federal agencies, along with other administrative remedies
pertaining to its approval, had not yet been exhausted.
At the hearing on the exceptions, the trial court considered only the
exception of prematurity. The trial court found that all the nuisance and taking
claims were premature and sustained the exception of prematurity. The trial court
iterated that the dismissal of the claims was without prejudice, explaining that “if
they are developed in the course of the proceedings which are necessarily to take
place before different agencies, they can be brought again.”4
This appeal followed.5
4 The trial court’s judgment provided the following:
IT IS ORDERED, ADJUDGED, AND DECREED, that the exceptions of
prematurity be and they are hereby sustained, as to Sub-paragraphs a., b., c., d.,
and e. and h. of the claims for relief in Plaintiffs’ First Amending Supplemental
and Restated Petition, such that these claims are hereby dismissed, without
prejudice. (The nuisance and injunctive claims).
IT IS FURTHER ORDERED, that the remaining exceptions as to those claims
are mooted [at this] time, pending the filing of an amended petition.
5 Appellants initially sought supervisory writ review of the judgment. This Court granted the
writ for the limited purpose of remanding the matter to the trial court to consider Appellants’
notice of intent as a motion for appeal. See Stop the Destruction of St. Bernard Inc., et al., v.
Board of Commissioners for the Port of New Orleans and St. Bernard Port, Harbor & Terminal
District, 2023-C-0213 (La. App. 4 Cir. 4/5/2023). On remand, the trial court signed an order
granting Appellants’ motion for devolutive appeal.
In conjunction with this Court’s order to treat Appellants’ notice of intent as a motion for appeal,
we note that the Port NOLA questions this Court’s subject matter jurisdiction in its Appellee’s
3
ASSIGNMENTS OF ERROR
Appellants argue that the trial court erred in granting the exception of
prematurity in the following respects: (i) applying the exhaustion of remedies
doctrine in its determination that the LIT project must first undergo a permitting
and review process by a number of administrative agencies; and (ii) failing to
identify the administrative remedy or remedies which must be exhausted for
Appellants to obtain the relief requested under Louisiana state law for nuisance,
permanent injunctive relief, and damages.
EXCEPTION OF PREMATURITY/STANDARD OF REVIEW
The dilatory exception of prematurity challenges whether the cause of action
has matured to the extent that it is ripe for judicial determination. See Jefferson
Door Co., Inc. v. Cragmar Const., L.L.C., 2011-1122, p. 3 (La. App. 4 Cir.
1/25/21), 81 So.3d 1001, 1004. The exception does not challenge or attempt to
defeat the substantive merits of the plaintiff’s underlying cause of action; instead,
the exception is a procedural mechanism whereby the defendant contends that the
plaintiff has not taken the preliminary steps required to make the controversy ripe
for judicial review. See LaCoste v. Pendleton Methodist Hosp. L.L.C., 2007-008,
p. 6 (La. 9/5/07), 966 So.2d 519, 523. An action is deemed premature if it is
brief. Port NOLA maintains that the judgment herein was a not final judgment and was not
designated a partial final judgment in accordance with La. C.C.P. art. 1915(B)(1).
Notwithstanding, La. C.C.P. art. 3216(B) provides, in part, that “[a]n appeal may be taken as a
matter of right from an order or judgment relating to a preliminary or final injunction.” Given
that the trial court’s judgment dismissed Appellants’ request for a permanent injunction, the trial
court’s judgment is appealable; and accordingly, this Court has jurisdiction to review Appellants’
appeal.
4
brought before the right to enforce it accrues. La. C.C.P. art. 423.6 See also
Alexander v. Louisiana State Board of Private Investigator Examiners, 2019-
0778, p. 11 (La. App. 4 Cir. 4/1/20), 293 So.3d 1243, 1252. “Prematurity is
determined by the facts existing at the time suit is filed.” Servier v. U.S. Fidelity &
Guar. Co., 497 So.2d 1380, 1382 (La. 1986).
Appellate courts review a judgment sustaining a dilatory exception of
prematurity for manifest error, except in those matters when resolution of the
exception involves a question of law, in which case the appellate court undertakes
a de novo review. Alexander, 2019-0778, p. 12, 293 So.3d at 1252. The exceptor
has the burden of proving prematurity. LaCoste, 2007-0008, p. 6, 966 So.2d at
523.
DISCUSSION
Appellants argue that the trial court’s decision to grant the exception of
prematurity was based on the erroneous premise that the trial court lacked subject
matter jurisdiction because Appellants had failed to exhaust statutorily required
administrative remedies. Appellants contend that the requirement to exhaust all
administrative remedies for a claim to be actionable applies only in those matters
when an agency has exclusive jurisdiction. They argue that the requirement does
not apply in matters, such as the case sub judice, where plaintiffs seek injunctive
relief under La. C.C. art. 667,7 a statutory code provision, rather than
6 La. C.C.P. art. 423 states, in part, that “[w]hen an action is brought on an obligation before the
right to enforce it has accrued, the action shall be dismissed as premature, but it may be bought
again after this right has accrued.”
7 La. C.C. art. 667 provides, in relevant part, the following:
5
administrative statutes. Appellants rely, in part, on McCastle v. Rollins
Environmental Services of Louisiana, Inc., 415 So.2d 515, 519 (La. App. 1 Cir.
1982).
In McCastle, the plaintiffs sought injunctive relief pursuant to La. C.C. art.
667 against the defendant for nauseous odors emitted from the defendant’s landfill.
On appeal, the defendant argued that the trial court lacked authority to grant
injunctive relief because the provisions of the Louisiana Environmental Affairs Act
(“Environmental Affairs Act”) vested the Environmental Control Commission
(“ECC”) with exclusive jurisdiction in the areas of air quality, water quality, solid
waste, nuclear waste and hazardous waste; and moreover, as the defendant was
operating under the specific orders of the ECC, the plaintiffs could not bring their
suit for injunctive relief. Id., 415 So.2d at 517. In rejecting the defendant’s
arguments, the First Circuit found that the plaintiffs were not required to first
exhaust administrative remedies inasmuch as the Environmental Affairs Act did
not prevent plaintiffs from filing suit and the plaintiffs’ appeal was not from a
decision of an administrative body. Id., 415 So.2d at 519.
Although a proprietor may do with his estate whatever he pleases, still he cannot
make any work on it, which may deprive his neighbor of the liberty of enjoying
his own, or which may be the cause of any damage to him. However, if the work
he makes on his estate deprives his neighbor of enjoyment or causes damage to
him, he is answerable for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his works would cause
damage, that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.
6
Here, Appellants maintain that the trial court “admitted” during the hearing
that it had subject matter jurisdiction to hear Appellants’ state law claims for
nuisance, permanent injunctive relief, and damages when it declared that “I’m not
contesting that I have subject matter jurisdiction. I don’t think that’s necessarily an
issue. I just want to deal with the prematurity issue first.” Similar to the McCastle
plaintiffs, Appellants suggest that no statutory authority exists to require
Appellants to first exhaust administrative remedies before they can enjoin the LIT
project where their claims for relief are based on state law rather than
administrative law. Therefore, in applying McCastle’s tenets, Appellants aver that
the trial court’s “admission” of subject matter jurisdiction over Appellants’ La.
C.C. art. 667 nuisance/injunctive relief claim meant the trial court committed legal
error in granting the prematurity exception on the basis that Appellants had not
exhausted administrative remedies. However, our review concludes this argument
lacks merit.
At the outset, we discount Appellants’ contention that this Court must
conduct a de novo review because the trial court erroneously granted the exception
premised on a lack of subject matter jurisdiction. The record directly contradicts
this contention. We note that although Port NOLA raised an exception of lack of
subject matter jurisdiction as one of its numerous exceptions, the trial court, as
referenced herein by Appellants, did not consider the subject matter jurisdiction
exception in deciding the prematurity exception. At the hearing, the trial court
specifically stated it would “first” consider Port NOLA’s exception of prematurity.
7
Upon considering and sustaining the prematurity exception, the trial court did not
review the remaining exceptions, including the exception of lack of subject matter
jurisdiction. Accordingly, as the trial court did not expressly rule on the exception
of lack of subject matter jurisdiction, this Court shall employ the manifest error
standard in our review of the judgment.
At the hearing on the exception, the uncontested facts presented to the trial
court were that no construction work had begun on the LIT project and that the
project had not undergone the permitting process to receive authorization to begin
construction. Port NOLA emphasized that the permitting process required
oversight by various state and federal agencies. Upon questioning by the trial
court, Appellants acknowledged that the LIT project could not circumvent the
permitting process.8 Nevertheless, Appellants asserted that the mandatory permit
8 The following exchange took place between the trial court and counsel for Appellants:
THE COURT:
Mr. Levenson, let me ask you just a couple of questions here. I
know your part has been present here in an evidentiary standpoint
as far as the notice that has been introduced this morning. Do you
contest the fact that there is a mandatory review process by such
agencies including DEQ, DNR, DOTD, Wildlife and Fisheries.
Do you contest that there would not need to be that type of
determination prior to the issuing of a construction permit.
MR. LEVENSON:
I believe that they have to go through permitting process. They
can’t circumvent the permitting process.
THE COURT:
That’s really not a factual issue that they would have to go through
the permitting process.
MR. LEVENSON:
That’s correct.
8
process does not prevent Appellants from proceeding with its nuisance action and
seeking injunctive relief pursuant to La. C.C. art. 667. In addition to McCastle,
Appellants have relied primarily on Salter v. B.W.S., Corp., Inc., 290 So.2d 821
(La. 1974) in support of their position.
In Salter, the defendant, B.W.S., an industrial waste disposal company, was
granted a permit from the Louisiana Department of Health to carry on its proposed
disposal operations at a site near DeQuincy, Louisiana. 290 So.2d at 823. After
the defendant began to truck barrels of chemical wastes onto the site, the Calcasieu
Parish district attorney, a police jury and the mayor of DeQuincy obtained a
temporary restraining order. Id. Two neighbors intervened in the lawsuit, seeking
an injunction because of the alleged imminent danger of the pollution of their wells
and pond by lethal substances placed on the defendant’s landfill site. Id. In
considering whether injunctive relief was appropriate, the Court opined that “[n]o
one may prevent the establishment of a lawful business because of [f]ear that it
will cause damage to neighboring estates.” Id., 290 So.2d at 825. The Court
noted that suit had been filed at the beginning of the defendant’s operation before
the disposition of any waste material. Id. Nonetheless, based on the
circumstances, the Court found that the intervenors had a right of action to seek
injunctive relief under La. C.C. art. 667. Id. The Court determined that the
consequences of failure to exercise great care to prevent the escape of poisonous
material were so serious that it directed the issuance of a qualified injunction. Id.
The qualified injunction enjoined the defendant to conduct its operations to comply
9
with the standards recommended by its experts to prohibit the escape of noxious
substances on the property of its neighbors. Id. In alignment with Salter,
Appellants also argue that their complaint is not premature. They contend that
their claim is ripe to obtain injunctive relief under La. C.C. art. 667 against Port
NOLA for the alleged anticipatory nuisance that will result from the construction
of the LIT project. We disagree.
The facts of Salter are clearly distinguishable from the instant matter as to
prematurity in one important aspect. In Salter, the defendant had obtained a permit
to begin operations; and moreover, had taken steps to truck barrels of chemical
waste onto the site. Id., 290 at 823. Likewise, in McCastle, 415 So.2d at 517, the
plaintiff’s action was not premature as the defendant had obtained authority to
operate its landfarm business from the ECC at the time that the plaintiffs sought to
enjoin the defendant’s release of noxious fumes in the atmosphere. Here, in
contrast, Port NOLA has not received permits and has not begun construction on
the LIT project. The parties do not know when or if the requisite permits will
issue. In the event the various agencies permit the LIT project, the final
configuration of the project is also presently unknown. Accordingly, the
uncertainty as to whether the administrative process will address any, some, or all
of Appellants’ concerns means the present scope of any judicial controversy is
undetermined, and hence, not ripe for judicial review.
The trial court addressed the above issues in its written reasons for judgment
as follows:
10
This action was filed by various plaintiffs over the proposed Louisiana
International Terminal (“LIT) proposed for construction and operation
in St. Bernard Parish. This facility, if constructed and implemented,
would certainly impact the parish. Plaintiffs contend that this impact
would be negative, and make various claims, including that the LIT
would constitute a nuisance, would impact parish infrastructure,
environmental quality of life, property values, etc., and seek to have
the project halted, through injunctive relief and other claims.
At the present time, certain property has been assembled for this
purpose, but it is undisputed that no actual construction or operation
has commenced, and that the project is to first undergo a permitting
and review process. This process would include examination, review,
including public input, by a number of agencies, including the
Department of Environmental Quality, Department of Natural
Resources, Department of Transportation and Development, Corps of
Engineers, etc., before any permits would be granted or any
construction or operations could commence.
This review process has not yet commenced as of the time of this
hearing. Defendants have therefore filed exceptions, including that of
prematurity. Before this Court could accurately determine the merits
of plaintiffs’ claims, extensive information would have to be compiled
and presented, including the evaluations of administrative experts.
Further, if Plaintiffs can establish their contentions before the
administrative bodies, it is possible that the LIT project would never
be permitted or constructed, and this entire litigation would be
rendered moot.
These issues have been extensively briefed by all parties, and
reviewed by this Court. From this review, the Court felt it clear that
as to these issues, Plaintiffs had failed to exhaust their administrative
remedies, and until that was done, the Court could not be in a realistic
position to rule on same.
Exceptors cited, among other authorities, the ruling from Daily
Advertister v. Trans-La, a Div. of Atmos Energy Corp., 612 So.2d [7,
28] (1993), which stated in part:
. . . the need for factual development, importance of
reflecting the agency’s expertise or policy preferences in
the final result, probability that the agency will
satisfactorily resolve the controversy without judicial
review, protection of agency processes from impairment
by avoidable interruption, conservation of judicial energy
the agency to correct its own errors.
This would seem to sum up the exact basis for this Court’s present
ruling.
11
Inherent in the trial court’s finding that Appellants’ nuisance action is
premature because Appellants have not exhausted administrative remedies is the
fact that Port NOLA also has not gone through the administrative process to
receive the necessary permitting to construct the LIT project. As such, as argued
by the Port NOLA, Appellants prematurely seek to enjoin consideration of a
proposal or an idea. Louisiana jurisprudence is well-established that a cause of
action is premature and not ripe for judicial review because of an unmet
prerequisite condition. See Williams v. Wood, 2019-0894, p. 5 (La. App. 4 Cir.
3/25/20), 294 So.3d 581, 585. In this case, the unmet prerequisite condition is that
the proposed LIT project has not yet come into existence.
The facts herein are analogous to Berry v. Volunteers of America, Inc., 2008-
184, pp. 3-4 (La. App. 5 Cir. 9/16/08), 996 So.2d 299, where landowners brought
an action against Jefferson Parish (the “Parish) alleging that the Parish’s
implementation of a zoning study and the resulting moratorium on the issuance of
building permits was arbitrary and capricious and sought injunctions to restrain the
re-zoning of their property and to prohibit the requirement of a building permit for
construction on their property. The trial court granted the Parish’s exceptions of
prematurity. Id., 2008-184, p. 3, 296 So.2d at 301. On appeal, the Fifth Circuit
determined that the trial court erred in finding that portion of the landowners’
lawsuit alleging that the zoning study and resulting moratorium was arbitrary and
capricious and had the effect of making the planned sale of their property
impossible was premature, noting that the moratorium had already been initiated.
Id., 2008-184, p. 4, 996 So.2d at 301. However, the appellate court affirmed the
trial court’s grant of the Parish’s exception of prematurity regarding that portion of
12
the landowners’ suit which sought injunctive relief to restrain the re-zoning of their
property and requiring the issuance of a building permit for construction of a
development on their property. Id. In its affirmation, Berry cited the trial court’s
findings that the Parish had not yet re-zoned the property and that plaintiffs had not
yet applied for the building permit. Id.
Similarly, in the instant case, the trial court found that Appellants’ other
requests in their petition that did not request injunctive relief—an order to declare
the dation of the VDP property to Port NOLA as contrary to law and an order that
the development of the LIT facility is prohibited by Louisiana law and the state
and federal constitutions—were not premature. Therefore, Appellants may
proceed with litigation of those claims. However, as in Berry, Appellants’ request
for injunctive relief to prohibit nuisances that could result from the LIT project is
premature as the project has not received any authorized permits to begin
construction or operation.
Appellants also allege error premised on their representation that the trial
court was unclear in identifying the specific administrative remedies they were
required to exhaust. However, this argument is not persuasive. The trial court’s
reasons for judgment clearly provide that Appellants must exhaust all necessary
administrative remedies until the LIT project receives authority from the necessary
administrative agencies to begin operation and the parameters of its operation are
defined.
This Court recognizes the seriousness of the adverse consequences that
Appellants allege could result to St. Bernard Parish residents in the event that the
LIT project is permitted to go forward and the Appellants’ urgency to take
proactive measures to prevent those consequences. However, as established case
13
law provides, the prematurity exception does not defeat the underlying elements of
a plaintiff’s cause of action. See LaCoste v. Pendleton Methodist Hosp. L.L.C.,
2007-008, p. 6, 966 So.2d at 523. By its very nature, an exception of prematurity is
a dilatory exception which “merely retards the progress of the action” but does not
“tend[] to defeat the action.” See La. C.C.P. art. 923. Hence, the trial court’s grant
of Port NOLA’s prematurity exception is not a ruling on the merits of Appellants’
claim that the catastrophic consequences of the LIT project demand injunctive
relief to protect St. Bernard Parish residents. Indeed, the trial court’s dismissal
without prejudice preserves Appellants’ right to re-urge their complaint in the
event Port NOLA receives the requisite permits to make the LIT project
operational and Appellants allege damages as a result.
DECREE
Upon review, the trial court properly granted Port NOLA’s exception of
prematurity and dismissed Appellants’ nuisance and injunctive relief claims
without prejudice. Based on the foregoing reasons, we find no manifest error on
the part of the trial court. Accordingly, the judgment is affirmed.
AFFIRMED
14