The opinion
STOP THE DESTRUCTION OF * NO. 2023-CA-0323
ST. BERNARD, INC., ET AL.
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
BOARD OF COMMISSIONERS
FOR THE PORT OF NEW * STATE OF LOUISIANA
ORLEANS AND ST. BERNARD
PORT, HARBOR, AND *
TERMINAL DISTRICT
*
*******
SCJ
JENKINS, J., CONCURS WITH REASONS
I respectfully concur in the result. I agree with the majority that the trial
court did not err in granting Port NOLA’s exception of prematurity, because
plaintiffs/Appellants’ claims for injunctive relief to prohibit nuisances that could
result from the LIT project are not ripe for judicial determination. However, I
disagree with the trial court’s stated reason that plaintiffs have failed to exhaust
administrative remedies. The implication from the trial court’s statement is that
plaintiffs bear the burden to pursue a course of administrative action and relief.
And I find it is important to clarify that defendants, not plaintiffs, bear the burden
to proceed through the administrative process. Defendants, Port NOLA and St.
Bernard Port, must proceed to obtain the necessary permits for the proposed LIT
project through the administrative process set forth for each of the permitting
federal and state agencies. But, in the course of that administrative process,
plaintiffs will have the opportunity to prohibit nuisances from the proposed LIT
project by raising objections to and, potentially, defeating defendants’ applications
for permits, thereby obtaining “administrative remedy.”
At this time, the LIT project is currently only a proposal with no requisite
permits to proceed into an actual development, and, consequently, plaintiffs’
allegations of nuisance are speculative and their claims for injunctive relief to
prohibit nuisances are premature. Although plaintiffs are not required by law to
participate in the administrative process to attempt to defeat the LIT project, at this
stage, the administrative process provides adequate access and sufficient relief to
parties seeking to object to and defeat the proposed project. If defendants obtain
the requisite permits to proceed with construction of the LIT project, plaintiffs
have the right and opportunity to re-urge their claims for relief in the district court.