Steve Crooks v. State of La. Through the Dept. of Natural Resources

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

21-716

STEVE CROOKS, ET AL.

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT

OF NATURAL RESOURCES

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APPEAL FROM THE

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES, NO. 224,262

HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

**********

SHANNON J. GREMILLION

JUDGE

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Court composed of Shannon J. Gremillion, Charles G. Fitzgerald, and Gary J. Ortego,

Judges.

EXCEPTIONS DENIED;

AFFIRMED IN PART; REVERSED IN PART.

Richard Traina

Steeg Law Firm

201 Saint Charles Avenue, Suite 3201

New Orleans, LA 70170

(504) 582-1199

COUNSEL FOR DEFENDANT/APPELLANT:

State of Lousiana, through the Department of Natural Resources

Scott David Johnson

Assistant Attorney General

1200 North Third Street

Baton Rouge, LA 70802

(225) 326-6085

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, through the Department of Natural Resources

Machelle R. L. Hall

Morgan D. Rogers

Ryan S. Montegut

Ryan M. Seidemann

Steven B. “Beaux” Jones

Louisiana Department of Justice

Post Office Box 94005

Baton Rouge, LA 70804-9005

(225) 326-6000

COUNSEL FOR DEFENDANT/APPELLANT:

State of Louisiana, through the Department of Natural Resources

Robert McCuller Baldwin

G. Adam Cossey

Hudson, Potts & Bernstein

Post Office Drawer 3008

Monroe, LA 71210-3008

(318) 388-4400

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

James J. Davidson, III

Christopher Joseph Piasecki

Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards LLP

810 South Buchanan Street

Lafayette, LA 70502

(337) 237-1660

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

J. Michael Veron

Turner D. Brumby

Veron Bice Palermo & Wilson LLC

Post Office Box 2125

Lake Charles, LA 70602-2125

(337) 310-1600

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

Charles S. Weems, III

Robert G. Nida

Gold Weems Bruser Sues & Rundell

Post Office Box 6118

Alexandria, LA 71307-6118

(318) 445-6471

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

V. Russell Purvis, Jr.

Smith Taliaferro & Purvis

Post Office Box 298

Jonesville, LA 71343

(318) 339-8526

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

James L. Carroll

Attorney at Law

107 Riser Street

Columbia, LA 71418

(318) 649-9284

COUNSEL FOR PLAINTIFFS/APPELLEES:

Steve Crooks, et al.

Bernard E. Boudreaux, Jr.

Emma Elizabeth Daschbach

John T. Arnold

Lindsay E. Reeves

Christopher W. Swanson

Jones, Swanson, Huddell

301 Main Street, Suite 1920

Baton Rouge, LA 70801

(225) 810-3165

COUNSEL FOR DEFENDANT/APPELLEE:

Catahoula Lake Investments, LLC, et al.

Gladstone N. Jones, III

Kevin E. Huddell

Jones, Swanson, Huddell

601 Poydras Street, Suite 2655

New Orleans, LA 70130

(504) 523-2500

COUNSEL FOR DEFENDANT/APPELLEE:

Catahoula Lake Investments, LLC, et al.

Dale R. Baringer

William H. Caldwell

Ferdinand P. Leonards

Baringer Law Firm

201 Saint Charles Street

Baton Rouge, LA 70802

(225) 383-9953

COUNSEL FOR DEFENDANT/APPELLEE:

Foster Investment Corporation

Jimmy R. Faircloth, Jr.

Mary Katherine Price

Faircloth Melton Sobel & Bash, LLC

105 Yorktown Drive

Alexandria, LA 71303

(318) 619-7755

COUNSEL FOR DEFENDANT/APPELLEE:

Justiss Oil Company, Inc.

GREMILLION, Judge.

The State of Louisiana, through the Department of Natural Resources (LDNR),

appeals the trial court’s determination of the low-water mark of the Little River in

the Catahoula Basin. LDNR further filed exceptions of lack of subject matter

jurisdiction and no right of action following the appeal. For the following reasons,

LDNR’s exceptions are denied. The trial court’s judgment is affirmed in part and

reversed in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a long history of complex issues surrounding the

classification of a body of water for purposes of determining whether LDNR

wrongfully expropriated and damaged plaintiffs’ lands in various ways, including

obstructing the plaintiffs’ servitude of drainage and the taking of mineral interest

royalties belonging to the plaintiffs. While it has already been held that the body of

water in question is a river rather than a lake, the low-water mark needed to be

determined in order to classify what belonged to the riparian owners versus what

was owned by LDNR. These proceedings pertain to the determination by the trial

court of the low-water mark at 24.08 feet in the Little River located in the Catahoula

Basin. The crux of LDNR’s argument is that the trial court improperly used a

summary proceeding, which is inappropriate for a boundary action, in setting the

low-water boundary and improperly excluded all of its evidence relating to the low-

water mark.

To summarize the lengthy background of this case:

In May 2006, the plaintiffs filed a “Class Action Petition to Fix Boundary, For

Damages and For Declaration [sic] Judgment,” primarily asserting inverse

condemnation, damages to the plaintiffs’ property, and the right to the recovery of

oil and gas royalties and other payments.

Following a ten-day bench trial in January 2015, the trial court rendered a

final judgment in May 2017. That judgment included a reference to its May 16,

2016 Reasons for Judgment1 in which it ruled as follows:

Specifically, and in summary, the court has concluded and does

hereby hold that: (1) the body of water in the Catahoula Basin in

1812 was a permanent river that seasonally overflowed and

covered its banks; (2) the riparian landowners (“Lake Plaintiffs”)

are the legal owners of these river banks; (3) the State is legally

responsible and liable for the wrongful expropriation (inverse

condemnation of the plaintiffs’ lands because of the significant

obstruction of the natural servitude of drainage; (4) these

expropriation damages total $28,745,438.40 (i.e., 22,813.84

acres multiplied by $1260 per acre) for the riparian owners, and

$9,550,800 (i.e., 7,580 acres multiplied by $1,260 per acre) for

the owners of the owners of the overflow lands (“Swamp

Plaintiffs”), all subject to legal interest from the date of judicial

demand until paid; and (5) the riparian landowners are entitled to

a total award of $4,694,309.68 together with legal interest from

the date of judicial demand until paid, which sum represents the

oil and gas royalties attributable to the mineral production from

the river banks between May 2003 and the date of trial.

Based on those rulings, in its May 2017 judgment, the trial court stated in part:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that there be judgment herein recognizing that the class of plaintiffs

identified as the riparian landowner plaintiffs (also known as the “Lake

1

The written reasons issued by Judge Boddie in May 2016 were 66 pages long. Regarding

mineral royalties, he stated:

Because of the court’s holding that the evidence clearly and convincingly

demonstrated that the body of water in the Catahoula Basin in 1812 was a

permanent river that seasonally overflowed and covered its banks, it naturally

follows that the riparian landowners are the lawful owners of these river banks. In

turn, that result mandates that the “Lake Plaintiffs” are entitled to recover the

mineral royalties attributable to the riparian lands and which have erroneously paid

to the state over the years.

At trial, plaintiffs presented Dr. Paige, who was qualified as

an expert in the field of forensic account. The State stipulated to the

authenticity of the data Dr. Paige relied on in reaching his opinions.

It is not disputed that the plaintiffs are only seeking to recover the

royalties attributable to these leases during the three years before

suit was filed as well as royalties to the present. The State agrees

that if the plaintiffs are found to be entitled to any recovery based

on their mineral claims, the proper amount received by the sovereign

in royalties during this time period was the sum of $4,694,309.68.

Thus, since it is undisputed that the state received $4,694,309.68 in

royalties from May of 2003 to the date of trial, the riparian

landowners are entitled and decreed to be the owners of those

designated funds.

2

Plaintiffs”) are the legal owners of the river banks in the Catahoula

Basin, consisting of 22,813.84 acres of lands located between the

ordinary low-water mark of the Little River and the ordinary high-water

of 36 feet mean sea level of the Little River, which lands are depicted

in light blue and referred to as the bed and bottom of the so-called

“Catahoula Lake” on the State’s exhibit introduced into evidence and

identified as FW 202, a copy of which is attached hereto and made part

of this final judgment.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that there be judgment herein recognizing that the class of plaintiffs

identified as the overflow landowners plaintiffs (also known as the

“swamp Plaintiffs’”) are the legal owners of the 7,580 acres of land

patented by the State of Louisiana in the southwestern portion of the

Catahoula Basin, which lands are identified as property listing nos. 29

through 83, and as the lands owned by W.H. Ward Properties, Inc., on

the State’s exhibit introduced into evidence and identified as FW 202,

a copy of which is attached hereto and made part of this final judgment.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that the State is legally responsible and liable for the wrongful

expropriation (inverse condemnation) of the class plaintiff members’

lands- . . .because of the significant obstruction of the natural servitude

of drainage.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that there be judgment herein in favor of the class of plaintiffs identified

as the riparian landowner plaintiffs (i.e. the Lake Plaintiffs), and against

the State, for the wrongful expropriation of their lands in the full sum

of TWENTY EIGHT MILLION SEVEN HUNDRED FORTY FIVE

THOUSAND FOUR HUNDRED AND THIRTY EIGHT DOLLARS

AND 40/100 ($28,745,438.40), together will legal interest from the

date of judicial demand, May 4, 2006, until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that there be judgment herein in favor of the class of plaintiffs identified

as the riparian landowner plaintiffs (i.e. the Lake Plaintiffs), and against

the State, for oil and gas royalties attributable to the mineral production

from the river banks between May 2003 and the date of trial in the full

sum of FOUR MILLION SIX HUNDRED NINETY FOUR

THOUSAND THREE HUNDRED AND NINE DOLLARS AND

68/100 ($4,694,309.68), together with legal interest from the date of

judicial demand, May 4,2006, until paid.

The judgment declared awards of attorney fees, ordered the deposit of funds

into the registry of the court, and made determinations regarding a variety of fees

and incentive awards for the class plaintiffs’ representatives.

3

This judgment was appealed to this court. In Crooks v. State, 17-750, p. 23

(La.App. 3 Cir. 12/28/18), 263 So.3d 540, 557, writ granted, 19-160 (La. 5/6/19),

269 So.3d 691, aff’d in part and rev’d in part, 19-160 (La. 1/29/20), __ So.3d __, we

affirmed the trial court’s finding that the Catahoula “Lake” was “‘a permanent river

that seasonally over-flowed and covered its banks.’” We further found that the

plaintiffs’ claims for inverse condemnation were not prescribed. We noted that one

of LDNR’s arguments on appeal was that the trial court erred in not setting “the

location of the ordinary low-water mark to accurately determine the size of the

allegedly taken property.” Id. at 552. We affirmed the trial court’s rulings relating

to the acreage and value per acre and found no abuse of discretion in the trial court’s

determination of damages. Judge Amy dissented and would have found that the

plaintiffs’ claims for inverse condemnation were prescribed and that LDNR had

acquired the property through acquisitive prescription. Judge Amy would have

remanded with instructions to set the boundary between the Lake plaintiffs’ land and

the state’s land at the thirty-six (36) feet mean level contour.

Thereafter, LDNR was granted a writ of certiorari on the issue of whether the

lower court “erred in failing to find that the [p]laintiffs’ inverse condemnation claims

have prescribed.” Crooks, 19-160 (La. 1/29/20), __ So.3d at __. LDNR filed a

peremptory exception of no cause of action, asserting that the plaintiffs had no cause

of action for mineral royalties and requested that the award of $4,694,309.68 be

vacated. The supreme court reversed the court of appeal and held that the plaintiffs’

claims for inverse condemnation were barred by the three-year prescriptive period.

In overruling LDNR’s exception of no cause of action pertaining to the mineral

royalties, the supreme court stated:

the State granted mineral leases on plaintiffs’ lands, and received

mineral royalties from those leases. Accepting these facts as true, the

4

plaintiffs have asserted a cause of action against the State for mineral

royalties pursuant to La.C.C. art. 488[.]

Id. at ___.

While the supreme court specifically overruled the sums awarded for inverse

condemnation, it did not make any statements regarding the mineral royalty award,

but did state, “In all other respects, the judgment is affirmed.” Id. at ____.

The Current Matter

The record resumes with the appeal of the current matter, which began with

“Plaintiffs’ Motion Regarding Issues on Remand (With Incorporated Memorandum

of Authorities)” filed on July 6, 2020. In it, plaintiffs argued that the only issues that

were changed on appeal were the award of damages for inverse condemnation and

the allocation of the trial court’s attorney’s fee award between LDNR and the

common fund. The plaintiffs state:

5.

The Court’s now-final judgment on the river bank referred to and

attached a map showing the extent of the land belonging to the plaintiffs.

What remains to be accomplished, however, is the partition of this

property to the individual plaintiffs who are riparian landowners. If the

Court deems it necessary and desirable, this work may include further

delineating the boundaries of both the river bed and river bank.

Plaintiffs thereafter requested the appointment of a special master because

“certainly, partitioning 30,000+ acres of riparian land in a way that provides each

owner with a proportionate share qualified as a ‘complicated factual issue.’”

However, the plaintiffs went on to state in a subsection relating to a motion for

contempt and/or for writ of mandamus:

10.

While the supreme court reversed the award for inverse

condemnation damages on grounds of prescription, neither it nor the

court of appeal reversed, set aside, or modified this Court’s award for

oil and gas royalties wrongly possessed by the State. Thus, the original

5

sum, plus legal interest from May 4, 2006, must be deposited into the

registry of the Court as per the now-final judgment.

On April 16, 2021, plaintiffs filed a notice of video deposition to cover certain

topics including “The dimensions of the bank of the Little River through the

Catahoula Basin property litigated in this case, viz, the land that the final judgment

in this case determined the plaintiffs owned.” On April 26, 2021, LDNR filed a

motion to quash the notice of video deposition stating:

11.

Neither this Court, Third Circuit Court of Appeal, nor the

Louisiana Supreme Court located the Little River. As a result, no

definitive boundary exists at this time.

12.

While the State, like the Plaintiffs, believes that this is an

outstanding issue in the above matter, no work to determine the

public/private boundary has yet been done by the State. Moreover, on

information and belief, the Plaintiffs have not advanced, despite

multiple requests from the State, any reasonable methods to resolve this

outstanding issue.

13.

Thus, the information that might be responsive to Topic Two

does not yet exist and as such, there are no documents to produce.

On May 10, 2021, a hearing was held on LDNR’s motion to quash notice of

1442 deposition.

Plaintiffs filed a “Supplemental Memorandum in Support of Plaintiffs’

Motion Regarding Issues on Remand” on June 3, 2021, urging that it was entitled to

additional funds for mineral royalties. The plaintiffs requested additional funds for

oil and gas lease royalties, changing the sum allegedly owed to $10,129,825.15.

LDNR filed a “Partial Concurrence and Partial Opposition to the Class

Plaintiffs’ Supplemental Memorandum in Support of Motion Regarding Issues on

Remand” on June 2, 2021. In it, LDNR claimed that future royalties were not part

6

of the trial court judgment and do not belong to the Class, but will belong to the

proper landowners once boundaries are established. However, LDNR did not

dispute the finality of the judgment awarding $4,694,309.68 for past royalties.

On June 4, 2021, the trial court held a hearing on the motion for matters on

remand. Plaintiffs had a witness who was prepared to testify regarding the location

of the low-water mark. LDNR stated that it did not believe testimony on the low-

water mark issue would be presented but that “today was to set the process for

determining the low-water mark.” LDNR stated it would be a “complex scientific

process” to determine the low-water mark and that no evidence regarding the low-

water mark had been received during the first part of the trial that only determined

the river-versus-lake issue. Plaintiffs, on the other hand, stated that “the low-water

mark may have been overlooked. I’m not sure what happened to it, but’s simply a

remand matter. We have a Final Judgment saying we own the riverbank. So, all

that’s left for the Court is simply to say, ‘This is where the low-water mark is.’”

Michael Mayeux’s proffered testimony was received.

On June 17, 2021, the trial court rendered a judgment following a June 4, 2021

hearing on the “plaintiffs’ motion regarding issues on remand,” [“Plaintiffs’ Motion

Regarding Issues on Remand (With Incorporated Memorandum of Authorities)”].

The trial court denied the plaintiffs’ motion for mandamus or contempt and granted

plaintiffs’ motion “to determine the low-water mark of the Little River within two

months.” It further denied LDNR’s request for additional time before the trial on

the low-water mark. The judgment set the matter for trial on August 10, 2021.

The trial court’s June 17, 2021 judgment relating to the June 4, 2021 hearing

stated:

IT IS ORDREED, ADJUDGED, AND DECREED that the

plaintiffs’ motion for mandamus or contempt against the Louisiana

State Treasurer the Louisiana Department of Treasury, or the Defendant

7

Department of Natural Resources, are hereby DENIED pursuant to

La.Const. Art. XII, sec. 10 and La.R.S. 13:5109(b)(2);

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

that the plaintiffs’ motion to determine the low-water mark of the Little

River within two months is GRANTED and the Defendant Department

of Natural Resources’ objection and request for additional time before

trial on the low-water mark is DENIED. This matter is set for trial on

the location of the low-water mark on August 10, 2021.

On June 24, 2021, LDNR filed a motion to add one day to the trial and to

continue the August 10, 2021 trial date. LDNR’s memorandum in support argued it

would not have enough time to present its case in one day after the plaintiffs’

presentation and LDNR’s cross-examination of their experts and that the low-water

mark determination was more complex than the plaintiffs claimed and that there was

not one established means of determining the low-watermark as the plaintiffs urged

relying on State v. Cockrell, 162 So.2d 361 (La.App. 1 Cir.), writ refused, 246 La.

343, 164 So.2d 350 (La.1964), and State v. Placid Oil Co., 300 So.2d 154 (La.1973).

On July 2, 2021, the plaintiffs filed an opposition to LDNR’s motion to

continue, stating in part:

10.

The final judgment of this Court, as a matter of res judicata, bars

any location of the river channel to include any portion of the river

banks that the Court previously recognized belonged to the plaintiffs

and for which they were awarded mineral royalties. That finding was

“essential” to the final judgment and cannot be relitigated.

On July 2, 2021, the trial court denied LDNR’s motion for an additional day

and a request to continue in a handwritten notation that the “matter had been pending

since 2006.”

On July 7, 2021, LDNR filed a “Reply in Support of its Motion to Add One

Day To the Trial and to Continue the August 10, 2021 Trial Date And Motion in

Limine Regarding the Scope of the August 10, 2021 Trial.” Neither of these motions

is in this record. LDNR attached the missing motions to its brief. These two motions

8

were filed on June 21, 2021. One of LDNR’s motions in limine sought to restrict

the testimony of Michael Mayeux. In the second motion in limine, LDNR stated in

its memorandum:

I. The parties appear to agree that the Motion in Limine Regarding

the Scope of the August 10, 2021 Trial should be granted.

On page 3, paragraph 9 of their opposition, the Plaintiffs state

they essentially agree with Natural Resources’ position on the scope of

the August 10 trial:

The State has moved in limine for a ruling that the only

issue set for hearing is a determination of the ordinary low-

water mark of the Little River. To the extent this

determination includes both the computation of the

ordinary low-water mark and its location in the Catahoula

Basin, the plaintiffs agree.

Therefore, this Court may grant that motion. The Parties shall not

present evidence to prove which persons own which riparian land,

which persons have oil and gas rights, or the locations of any oil or gas

wells in the banks or bed of the Little River in the Catahoula Basin.

On July 13, 2021, the plaintiffs filed an appeal of the trial court’s denial of

their request for a writ of mandamus. On appeal, a panel of this court reversed the

trial court’s denial of the plaintiffs’ writ of mandamus but did not find LDNR in

contempt. See Crooks v. State, through Dep’t of Natural Res., 21-633 (La.App. 3

Cir. 3/16/22), __ So.3d __.

On July 16, 2021, LDNR filed an exception of nonjoinder.

On July 19, 2021 plaintiffs filed an “Opposition to Louisiana Department of

Natural Resources’ Motions in Limine” regarding the restriction of Mayeux’s

testimony and also the low-water mark issues. The plaintiffs stated in opposition:

The State’s second motion seeks a ruling that the only issue set

for hearing is a determination of the ordinary low-water mark of the

Little River. To the extent this determination includes both the

computation of the ordinary low-water mark and its location in the

Catahoula Basin, the Plaintiffs agree. If, however, the State is seeking

to exclude the location of the ordinary low-water mark of the Little

River from the scope of the hearing, the Plaintiffs disagree. It would

9

make little sense to determine the ordinary low-water mark and not

identify the location of that mark in the Catahoula Basin.

On July 22, 2021, LDNR filed a “reply in support of its motion in limine

regarding the scope of the August 10, 2021 trial and motion in limine” (regarding

expert witness Michael Mayeux). In the memorandum in support of the motions,

LDNR sought to limit scope of the August 10, 2021 hearing as follows:

The August 10, 2021, trial in this matter will be held to determine

only the ordinary low-water stage of the Little River in the Catahoula

Basin (the area formerly known as Catahoula Lake). The Parties may

present evidence relevant to both the computation of the ordinary low-

water stage and its location in the Catahoula Basin. The Parties shall

not present evidence at the trial as to the location of oil or gas wells or

units, the rights of any riparian owners, rights in any mineral interests,

or locations of servitude or other real property issues.

The trial court rendered an order on July 22, 2021 stating that:

It is ordered that the August 10, 2021, trial in this matter will be

held to determine only the ordinary low-water stage of the Little River

in the Catahoula Basin (the area formerly known as Catahoula Lake).

The Parties may present evidence relevant to both the computation of

the ordinary low-water stage and its location in the Little

River/Catahoula Basin. The parties shall not present evidence at the

trial as to the location of oil or gas wells or units, the rights of any

riparian owners, rights in any mineral interests, or locations of

servitudes or other real property interests.

An order rendered on July 22, 2021 by the trial court stated:

the August 10, 2021, trial in this matter will be held to determine only

the ordinary low-water stage of the Little River in the Catahoula Basin

(the area formerly known as Catahoula Lake). The Parties may present

evidence relevant to both the computation of the ordinary low-water

stage and its location in the Little River/Catahoula Lake.

On July 26, 2021, the plaintiffs’ opposition to LDNR’s exception of non-

joinder was filed into the record. That same day, the plaintiffs also filed a

“Peremptory Exception of Res Judicata or Alternative Motion in Limine (with

incorporated memorandum of authorities),” urging that LDNR could not limit the

10

evidence, particularly relating to the location of oil and gas wells, that the trial court

could consider in determining the low-water mark.2 The plaintiffs stated:

5.

While the precise location of the ordinary water mark must be

determined, the fact that those wells were on lands belonging to the

riparian owners (not the State) was determined. Indeed, the royalties-

which are part of the final judgment-could not have been awarded

without a determination that the minerals were produced from wells

located on the Class Plaintiffs’ land.

Plaintiffs further argued:

10.

The Court’s ruling on the State’s motion in limine allows the

State to re-litigate issues already decided in the final judgment in this

case. Specifically, the Court has now excluded evidence of where the

oil and gas wells are located. That evidence is necessary to show that

the river bank where those wells are located has already been

adjudicated to the Class Plaintiffs in the final judgment in this case. In

other words, this land has already been determined to be outside of the

ordinary low-water mark. Therefore, it cannot be part of the river bed

and cannot be owned by the State. At the very least, the land on which

the wells are located defines where the river is not located.

11.

The issue of whether the wells are on the Class Plaintiffs land

was litigated and determined in the final judgment. It cannot be

relitigated. The land where the wells are located has already been

determined to be owned by the Class Plaintiffs and not the State-

meaning that it is necessarily situated above the low-water mark of the

Little River. Thus, the low-water mark cannot be moved in any way

that reaches an oil or gas well.

On July 29, 2021, the plaintiffs filed an “Opposition to Louisiana Department

of Natural Resources’ Exception of Nonjoinder.” They also filed a “Surreply Brief

in Opposition to State Motion in Limine to Restrict Evidence.”

An August 2, 2021 judgment filed on August 30, 2021, denied LDNR’s

exception of nonjoinder.

2

This exception of res judicata is in response to two motions in limine file by LDNR that

are not in the record. The exception noted that the trial court had ruled on July 22, 2021 granting

LDNR’s motion.

11

On August 6, 2021, LDNR filed a dilatory exception of unauthorized use of a

summary proceeding, urging that the August 10, 2021 hearing constituted a

boundary action which required ordinary process. On August 9, 2021, the plaintiffs

filed an “Opposition to State’s Exception of Improper Use of Summary Proceeding.”

On August 9, 2021, LDNR filed an “Opposition to for [sic] trial on the

ordinary low-water stage,” in which it stated that the trial court was competent to

determine the ordinary low-water stage and argued that “nothing prevents this Court

from considering the evidence and making its own decision on the location of the

ordinary low-water stage.” This filing appears to be in response to plaintiffs’

exception of res judicata. LDNR argued that the location of oil and gas wells is

public information and that:

this issue is just not relevant to any honest and earnest determination of

the ordinary low-water stage, and will be a distraction and additional

burden at the August 10 trial. . . . It is prejudicial to expect [LDNR] to

also now hold a trial on the mineral interests in this case at the same

time, particularly after the Court has already ruled that this trial is only

to determine the ordinary low-water stage, and evidence of mineral

rights and wells will not be part of the trial.

On August 9, 2021, plaintiffs filed a “Motion To Exclude the Testimony of

the State’s Expert Witnesses or, Alternatively, to Limit Their Testimony.” LDNR

also filed, on August 9, 2021, a “Pre-Trial Brief for Trial on the Ordinary Low-water

Stage,” a “Reply to the Class Plaintiffs’ Opposition to the State’s Exception of

Unauthorized Use of a Summary Proceeding,” and an “Opposition to Plaintiffs’

Motion to Exclude Testimony of the State’s Expert Witnesses, or Alternatively, to

Limit Their Testimony.”

Following a hearing on August 10, 2021, the trial court rendered judgment

denying LDNR’s exception for unauthorized use of summary proceeding, granting

the plaintiffs’ exception of res judicata, denying the plaintiffs’ motion to

exclude/limit the testimony of LDNR’s expert witnesses, and found that “the

12

ordinary low-water mark of the Little River within the Catahoula Basin is 24.08 feet

above mean sea level.” It further found:

. . . .the contours of that ordinary low-water mark of 24.08 feet

above mean sea level are shown on the surveys prepared by Michael

Mayeux and introduced into evidence as Exhibits P-11 and P-12, which

are hereby adopted as part of this judgment and attached hereto.

ASSIGNMENTS OF ERROR

LDNR now appeals and assigns the following errors:

1. The district court erred by improperly trying a boundary action as a

summary proceeding.

2. The district court erred by not joining all immoveable property and

mineral interest owners whose rights are impacted by the boundary

setting.

3. The district court erred by granting the Plaintiffs’ exception of res

judicata, even though the only operative “claim” was the Plaintiffs’

own oral motion.

4. The district court erred by denying LDNR a right to present

testimony and evidence.

5. The district court erred by applying the law to result in absurd

consequences.

6. The district court erred by post hac ruling that LDNR’s witnesses

would be limited to their deposition testimony.

Subsequent to the filing of appeal, LDNR filed “exceptions of lack of subject

matter jurisdiction and no cause of action on appeal of the defendant/appellant, the

State of Louisiana, Through the Louisiana Department of Natural Resources,”

essentially claiming sovereign immunity from the plaintiffs’ boundary-action claim

on appeal and asserting that a low-water mark boundary is ambulatory and unfixable

by law. For the following reasons, we deny LDNR’s exceptions, affirm in part, and

reverse in part.

13

EXCEPTIONS ON APPEAL

Exception of Lack of Subject Matter Jurisdiction

We will address LDNR’s exceptions of lack of subject matter jurisdiction and

no cause of action on the merits. LDNR first argues that it is entitled to sovereign

immunity relating to the fixing of the low-water mark or, alternatively, that the low-

water mark is “ambulatory and unfixable by law” and any claim to fix such a

boundary in perpetuity does not state a viable cause of action.

Lack of Subject Matter Jurisdiction-Sovereign Immunity

In this exception, LDNR wishes to assert its sovereign immunity from suit

sixteen years into the litigation. LDNR claims that “[b]because the Legislature has

never waived sovereign immunity from lawsuits to determine ownership or

boundaries of public property, the courts do not have subject matter jurisdiction to

decide the boundary dispute claim currently on appeal in the matter.”

Subject matter jurisdiction is the legal power and authority of a

court to hear and determine a particular class of actions or proceedings,

based upon the object of the demand, the amount in dispute, or the value

of the right asserted. La. C.C.P. art. 2. A judgment rendered by a court

which lacks subject matter jurisdiction is void. La. C.C.P. art. 3.

Thornhill v. Cypress Black Bayou Recreation and Water Conservation Dist., 53,843,

pp. 7-8 (La.App. 2 Cir. 4/14/21), 316 So.3d 597, 602, writ denied, 21-674 (La.

9/27/21), 324 So.3d 90. An exception to subject matter jurisdiction can be raised at

any time. Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 14-664 (La. 6/20/14),

156 So.3d 627. In Canal/Claiborne, the supreme court stated:

Although not raised in the lower courts, we find the

Department’s exception of subject matter jurisdiction is properly raised

in this court. Louisiana courts have recognized that such an exception

may be raised at any stage of the proceedings, including at the appellate

level. Piper v. Olinde Hardware & Supply Co., 288 So.2d 626

(La.1974); Colacurcio v. Ledet, 94-1798 (La.App. 4 Cir. 9/28/95), 662

So.2d 65. The jurisdiction of a court over the subject matter of an action

or proceeding cannot be conferred by consent of the parties. La.Code

Civ. Proc. art. 3. Thus, a judgment rendered by a court with no

14

jurisdiction over the subject matter of the action or proceeding is void.

Id.

Id. at 632.

Canal/Claiborne further sets forth the starting point in interpreting

constitutional provisions:

The starting point in the interpretation of constitutional

provisions is the language of the Constitution itself. Louisiana Mun.

Ass’n v. State,00-0374, p. 5 (La.10/6/00), 773 So.2d 663, 667. When a

constitutional provision is plain and unambiguous, and its application

does not lead to absurd consequences, its language must be given effect.

Id. at pp. 5-6,773 So.2d at 667. The Louisiana Constitution of 1974

provides, in Article XII, Section 10(A): “Neither the state, a state

agency, nor a political subdivision shall be immune from suit and

liability in contract or for injury to person or property.” This court has

recognized Section 10(A) as an “unequivocal, self-executing waiver of

sovereign immunity as to suit and liability in contract and tort cases.”

Fulmer v. State, Dept. of Wildlife and Fisheries,10-2779 (La.7/1/11),

68 So.3d 499, 503(quoting Jacobs v. City of Bunkie, 98–2510

(La.5/18/99), 737 So.2d 14, 22). This language is clear and

unambiguous, and we need not rely on the constitutional debates to

infer any qualifications in that waiver.

Id. at 632.

The basis for the LDNR’s assertion of sovereign immunity is the same

provision relied upon in Canal/Claiborne: Louisiana Constitution Article 12, § 10,

which states in pertinent part:

(A) No Immunity in Contract and Tort. Neither the state, a state

agency, nor a political subdivision shall be immune from suit and

liability in contract or for injury to person or property.

(B) Waiver in Other Suits. The legislature may authorize other

suits against the state, a state agency, or a political subdivision. A

measure authorizing suit shall waive immunity from suit and liability.

It is elemental that due process rights of the United States and Louisiana

Constitutions demand the protection of private property rights from unwarranted

governmental intrusion. Louisiana Constitution Article 1, § 2 states: “No person

shall be deprived of life, liberty, or property, except by due process of law.”

Louisiana Constitution Article 1, § 4 states in part:

15

Section 4. (A) Every person has the right to acquire, own, control,

use, enjoy, protect, and dispose of private property. This right is subject

to reasonable statutory restrictions and the reasonable exercise of the

police power.

(B)(1) Property shall not be taken or damaged by the state or its

political subdivisions except for public purposes and with just

compensation paid to the owner or into court for his benefit. Except as

specifically authorized by Article VI, Section 21 of this Constitution

property shall not be taken or damaged by the state or its political

subdivisions: (a) for predominant use by any private person or entity;

or (b) for transfer of ownership to any private person or entity.

A waiver of sovereign immunity cannot be implied; it is strictly construed.

West Jefferson Med. Ctr. Med. Staff ex rel. Boraski v. State, 11-1718 (La.App. 1 Cir.

4/16/13), __ So.3d __ (unpublished opinion). However, LDNR does not enjoy

sovereign immunity from self-executing constitutional commands such as that found

in Art. 1, § 4 of the Louisiana Constitution. In Avenal v. State, 03-3521, p. 26 (La.

10/19/04), 886 So.2d 1085, 1103-04, cert. denied, 544 U.S. 1049, 125 S.Ct. 2305

(2005)(footnote omitted), the Louisiana Supreme Court reviewed the law relating to

self-executing causes of action for inverse condemnation:

In Chambers, we recognized that “our constitution requires

compensation even though the State has not initiated expropriation

proceedings in accordance with the statutory scheme set up for that

purpose.” 595 So.2d at 602. This “inverse condemnation” action

“provides a procedural remedy to a property owner seeking

compensation for land already taken or damaged against a

governmental or private entity having the powers of eminent domain

where no expropriation has commenced.” Id. Inverse condemnation

claims derive from the Takings Clauses contained in both the Fifth

Amendment of the U.S. Constitution and Art. I, § 4 of the Louisiana

Constitution. “The action for inverse condemnation is available in all

cases where there has been a taking or damaging of property where just

compensation has not been paid, without regard to whether the property

is corporeal or incorporeal.” Id. (Cites omitted.) The constitutional

command of Art. I, § 4 is self-executing, such that the cause of action

arises whenever a state commits a taking without justly compensating

the victim. Id.

The supreme court in Crooks, __So.3d at __, affirmed that the constitutional

command of Art. I § 4 is self-executing, “such that the cause of action arises

16

whenever a state commits a taking without justly compensating the victim.” Other

courts of this state have confirmed the supreme court’s holding authorizing the self-

executing nature of an inverse condemnation claim even though “the legislature has

not provided a procedure whereby an owner can seek damages for an uncompensated

taking or damaging[.]” St. Tammany Parish Hosp. Serv. Dist. No. 2 v. Schneider,

00-247, p. 6 (La.App. 1 Cir. 5/11/01), 808 So.2d 576, 582. Moreover, the legislature

has provided the award of attorney fees in inverse condemnation matters. The court

in St. Tammany noted,

Although the measures and mechanisms for providing

compensation to the full extent of the loss are still being developed by

the jurisprudence, the entire body of law related to this subject

presumes that property was taken or damaged by: (1) an expropriation

action that proceeded to final judgment in favor of the expropriating

entity; or (2) an uncompensated taking after which a property owner

brought an inverse condemnation action resulting in a judgment in

favor of the property owner.

Id. at 583.

In St. Tammany, there was no judgment in favor of the property owner because

it dismissed its expropriation suit. Therefore, no damages in the form of lost rentals

were allowed unless the State acted in bad faith or abused its appropriation powers.

LDNR argues that a boundary action is neither a suit in contract nor in tort

and that it is not authorized under any other constitutional or statutory provision and

therefore plaintiffs had to obtain a specific legislative waiver of sovereign immunity

in order to file a boundary claim. LDNR characterizes the proceedings as an

“ownership determination.”

In Crooks, __ So.3d at __, the supreme court noted that the “it is well settled

that ‘[t]he taking of property, by flooding or otherwise, without proper exercise of

eminent domain, is not a tort but is considered an appropriation.” It reversed a panel

of this court’s finding that the inverse condemnation was a continuing tort. Id.

17

While the inverse condemnation claim was found to be prescribed, the plaintiffs’

cause of action for the appropriated mineral interests and future mineral royalties

was not. The unlawful taking of the plaintiffs’ mineral interests arose out of the

inverse condemnation, or the uncompensated taking of the plaintiffs’ property.

LDNR relies on Two O’Clock Bayou Land Co., Inc. v. State of La., 415 So.2d

990 (La.App. 3 Cir. 1982), for the proposition that ownership disputes are subject to

sovereign immunity unless a legislative waiver has been granted. In Two O’Clock,

a landowner sued the state seeking a declaratory judgment that it owned the bed and

bayou of a certain area of land. Citing La.Const. art. 12, §10, a panel of this court

held that “suits against the State to determine ownership of land [were not] included

in its waiver of sovereign immunity from suits in contract or injury to property.” Id.

at 992. Instead, it considered that such actions were within the classification of

“other suits” mentioned in subsection (b), which require legislative authorization for

institution.” Id. The court granted the exception of sovereign immunity in favor of

the state. However, the court noted:

The nature and effect of the present declaratory judgment suit, like a

petitory action, is to determine the title and ownership of land. It is not

one for damages which may have arisen from the breach of any contract

with the State nor for the specific performance thereof.

Nor is this a suit for the value of any property taken or

appropriated by the State. Such question can only arise after the title

and ownership of the bed of the stream is determined.

Id. at 993.

We find the present case distinguishable as its origination is in inverse

condemnation rather than just a declaration of ownership (a petitory action). The

constitutional command of Article 1, § 4 requires no legislative authorization to sue

and, LDNR does not enjoy sovereign immunity under these circumstances. The

exception of lack of subject matter jurisdiction is denied.

18

No Cause of Action

If that argument fails, LDNR argues that the plaintiffs have failed to assert a

cause of action because a permanent boundary cannot be determined, as waterway

boundaries are ambulatory and non-fixable. The supreme court addressed the law

pertaining to exceptions of no cause of action when LDNR asserted a no cause of

action for the first time at the supreme court level in Crooks, __ So.3d at __:

As used in the context of a peremptory exception, a “cause of

action” refers to the operative facts which give rise to the plaintiff's

right to judicially assert an action against the defendant. MAW

Enterprises, L.L.C. v. City of Marksville, 2014-0090, p. 6 (La. 9/3/14),

149 So. 3d 210, 215, citing Scheffler v. Adams and Reese, LLP, 2006-

1774, p. 4 (La. 2/22/07), 950 So. 2d 641, 646; Everything on Wheels

Subaru, Inc. v. Subaru South, Inc., 616 So. 2d 1234, 1238 (La. 1993).

The peremptory exception of no cause of action is designed to test the

legal sufficiency of the petition by determining whether the plaintiff is

afforded a remedy in law based on the facts alleged in the pleading.

Fink v. Bryant, 01-0987, pp. 4-6 (La. 11/28/01), 801 So. 2d 346, 349-

50; Louisiana Paddlewheels v. Louisiana Riverboat Gaming

Commission, 94-2015 (La. 11/30/94), 646 So.2d 885. The exception is

triable on the face of the pleadings and for the purposes of determining

the issues raised by the exception, the well-pleaded facts in the petition

must be accepted as true. Vince v. Metro Rediscount Company, Inc.,

2018-2056 (La. 2/25/19), 264 So. 3d 440; City of New Orleans v. Board

of Commissioners, 93-0690 (La. 7/5/94), 640 So.2d 237. All reasonable

inferences are made in favor of the nonmoving party in determining

whether the law affords any remedy to the plaintiff. La. C.C. P. arts.

927, 931; Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La. 1984).

The burden of showing that the plaintiff has stated no cause of action is

upon the exceptor. City of New Orleans v. Bd. of Directors of Louisiana

State Museum, 98-1170, pp. 9-10 (La. 3/2/99), 739 So. 2d 748, 755-56.

Generally, under La. C. C. P. art. 931, no evidence may be

introduced to support or controvert the exception of no cause of action.

MAW Enterprises, L.L.C., 2014-0090 at 7, 149 So. 3d at 215. However,

an exception to this rule has been recognized by the jurisprudence, and

a court may consider evidence admitted without objection to enlarge

the pleadings. Id., citing City of New Orleans, 98-1170 at 10, 739 So.

2d at 756. Thus, where, as here, the exception has been raised for the

first time after trial on the merits, a determination by this court of

whether the plaintiff may maintain a cause of action against the

defendant may be made by a review of all the facts supported by the

record. See id. A court appropriately sustains the peremptory exception

of no cause of action only when, conceding the correctness of the facts,

the plaintiff has not stated a claim for which he or she can receive legal

19

remedy under the applicable substantive law. Id.; Industrial Companies,

Inc. v. Durbin, 2002-0665, p. 7 (La. 1/28/03), 837 So. 2d 1207, 1213.

LDNR argues its exception is:

based on the plain language of the Louisiana Civil Code and existing

jurisprudence, thus requiring no evidence from the record for its support.

Pursuant to LA.C.C. art. 456 (in pertinent part), [t]he bank of a

navigable river or stream is the land lying between the ordinary low and

the ordinary high stage of the water.

We have reviewed the entire record of this case. First LDNR claimed it did

not have enough time to determine the low-water mark, then it arrived at a low-water

mark of 28 feet, and now it claims the low-water mark cannot be determined because

it is ambulatory and non-fixable. While we do not doubt that the low-water is subject

to fluctuation, a low-water mark based on an average of the low-water over an

extended period of time is a method used by experts in determining a boundary for

legal purposes.

LDNR had its chance to provide expert testimony as to the alleged ambulatory

and unfixable nature of the low-water mark on August 10, 2021, yet it did not do so.

The time to advance this argument has long since passed. Plaintiffs’ petition sets

forth a valid claim to determine the low-water mark boundary. Accordingly,

LDNR’s exception of no cause of action is denied.

Boundary Action

LDNR argues that an action to set a low-water stage is a boundary action

which must be via an ordinary proceeding, and the boundary dispute is not a mere

incidental question. The plaintiffs, on the other hand, argue that the issue of the low-

water mark is merely incidental to the supreme court’s judgment affirming the

finding that Catahoula Basin is actually a river.

20

The Louisiana Code of Civil Procedure is quite clear when it comes to the

type of proceeding required for a boundary action: “An action to fix the boundary is

an ordinary proceeding.” La.Code Civ.P. art. 3691.

The setting of a low-water mark is a boundary action with significant

consequences:

As to navigable rivers and streams, the State still holds in its sovereign

capacity all the land below the ordinary low-water mark, but the banks

(the areas between the ordinary low-water and ordinary high-water

marks) now belong to the riparian landowners. LSA-C.C. arts. 450, 456;

State v. Placid Oil Co., 300 So.2d at 173. As to lakes, however, the

State still holds the land all the way up to the ordinary high-water mark.

McCormick Oil & Gas Corp. v. Dow Chem. Co., 489 So.2d 1047, 1049 (La.App. 1

Cir. 1986).

All parties concede that the timeline from the June hearing to the one-day trial

on August 10, 2021 was without ordinary trial delays and was, therefore, summary

in nature. Plaintiffs even phrase their argument in brief as “[t]he ordinary low-water

mark was an ‘incidental’ issue that was properly tried in a summary proceeding.”

Plaintiffs characterize these proceedings as “incidental” to the supreme court’s

remand. First, the supreme court did not remand the case for any proceedings. It

rendered a final judgment that did not address the boundary issue or remand for a

determination of the boundary issue.

Second, plaintiffs use of the term “incidental” confuses the nature of the

proceedings because summary proceedings are only for those issues expressly

designated by law such as incidental questions, including the award of attorney fees.

La.Code Civ.P. art. 2592. Louisiana Code of Civil Procedure Article 2592 sets forth

when summary proceedings can be used:

Summary proceedings may be used for trial or disposition of the

following matters only:

21

(1) An incidental question arising in the course of judicial

proceedings, including the award of and the determination of

reasonableness of attorney fees.

(2) An application for a new trial.

(3) An issue which may be raised properly by an exception,

contradictory motion, or rule to show cause.

(4) An action against the surety on a judicial bond after judgment

has been obtained against the principal, or against both principal and

surety when a summary proceeding against the principal is permitted.

(5) The homologation of a judicial partition, of a tableau of

distribution or account filed by a legal representative, or of a report

submitted by an auditor, accountant, or other expert appointed by the

court; and an opposition to any of the foregoing, to the appointment of

a legal representative, or to a petition for authority filed by a legal

representative.

(6) A habeas corpus, mandamus, or quo warranto proceeding.

(7) The determination of the rank of mortgages, liens, and

privileges on property sold judicially, and of the order of distribution of

the proceeds thereof.

(8) The original granting of, subsequent change in, or termination

of custody, visitation, and support for a child; support for a spouse;

injunctive relief; support between ascendants and descendants; use and

occupancy of the family home or use of community movables or

immovables; or use of personal property.

(9) An action to compel an accounting at termination of parental

authority; and an action to seek court approval to alienate, encumber,

or lease the property of a minor, to incur an obligation of a minor, or to

compromise the claim of a minor.

(10) An action to annul a probated testament under Article 2931.

(11) An action to enforce the right to a written accounting

provided for in R.S. 9:2776.

(12) An action for dissolution or specific performance of a

compromise entered pursuant to Article 1916(B) or by consent

judgment.

(13) All other matters in which the law permits summary

proceedings to be used.

Plaintiffs argue in brief:

22

What could be more “incidental” to these proceedings than

identifying and locating the ordinary low-water mark as mandated by

the final judgment in this case? Were it not for the final judgment, there

would be no reason to identify or locate the ordinary low-water mark.

By definition, that issue is “incidental” to the course of these

proceedings.”

Plaintiffs set forth various examples of summary proceedings after a final

judgment has been rendered that do not relate to the setting of a boundary. We agree

with LDNR that a boundary determination cannot be by summary proceedings.

Moreover, the setting of a property boundary, as a matter of law, is simply not an

“incidental” question. If it were, the code would not require that it be heard by

ordinary proceedings. See La.Code Civ.P. art. 3691. While the setting of the

boundary may be a natural consequence of the prior ruling determining that the

waterway is a river, it is not an incidental matter under La.Code Civ.P. art. 2592.

In 1 La.Civ.L. Treatise, Civil Procedure §5:3 (2d ed.)(citations omitted),

Frank L. Maraist has noted how the confusion can arise:

The summary proceeding, as described in the Code,

encompasses two separate concepts: (1) a summary proceeding by

which the parties obtain a trial on the merits without the formalities and

delays of the ordinary proceeding, and (2) a summary procedure which

is used to determine incidental issues arising in the course of an

ordinary, executory, or summary proceeding. Unfortunately, the Code

uses the term “summary proceeding” to describe both concepts.

We find that these proceedings were not a “summary proceeding.” While this

portion of the litigation was by “summary procedure,” the trial of the low-water mark

determination was merely a continuation of the ordinary proceedings instituted in

2006 when the initial petition stated it was a “class action petition to fix boundary.”

The petition states (emphasis added):

23

FIRST CAUSE OF ACTION TO FIX BOUNDARY

7.

Plaintiffs and the members of the class own property along the

banks of Little River or its tributaries, which are situated within Rapides,

LaSalle, Grant and Catahoula Parishes.

8.

The State of Louisiana is the owner of the bed and bottom of

Little River and its tributaries. Plaintiffs and the members of the class

are the riparian owners of the banks of Little River and its tributaries

and their property is bounded by the mean low-water mark of Little

River and its tributaries.

9.

The boundaries (i.e. the mean lower water mark of Little River

and its tributaries”) separating plaintiffs and the members of the class

properties from the bed and bottom of Little River and its tributaries

owned by the State has never been fixed and/or established.

....

11.

In fact, the “Catahoula Basin, is owned by plaintiffs, the riparian

landowners adjacent to Little River and/or its tributaries through the

mean low-water mark and a bare minimum, the “Catahoula Basin” is

the bank of Little River or the bank of one of its tributaries, and is,

therefore, owned by the riparian owners who are plaintiffs and the

members of the class. The boundary between the property of the

members of the class and the bed and bottom of Little River or its

tributaries owned by the State should be set at the mean low-water mark

of these streams.

The ordinary proceeding instituted in 2006 gave notice that the setting of the low-

water mark boundary was a central claim of the class action. This is an ongoing

matter bearing the same docket number today as it has since its inception.

LDNR was served with the citation and has long known that the fixing of the

low-water mark boundary would be an issue. In brief, LDNR attempts to distinguish

the setting of the boundary from the exact location of the low-water mark. It states:

24

The trial court did in fact set the boundary at the ordinary low in

the same judgments classifying the waterway as a river in 2016 and

2017. However, the specific location of that boundary, which is by law

ambulatory and unfixable, had never been prayed for, pled, or set at any

time before June 4, 2021. The original trial court heard no evidence on

the exact location of the ordinary low throughout the proceedings.

We find this distinction irrelevant from the standpoint of a pleading. There is

no purpose in setting a boundary without delineating its location. Moreover, the

petition clearly prayed for the setting of the exact low-water mark. LDNR, by its

own admissions and motions over the years as noted in the factual summary, has

known that the low-water mark boundary would need to be determined. While

LDNR states the focus of the previous years of litigation related only to the lake

versus river issue, based on the original pleadings and the subsequent litigation, it

would be unreasonable for LDNR to not anticipate that the boundary setting was

forthcoming. LDNR had many years to prepare for this issue. At the very least, in

June 2020 (over a year before the June 4, 2021 hearing setting the boundary matter

for trial on August 10, 2021), LDNR knew that the boundary determination was

imminent when plaintiffs filed their motion “regarding remand matters.” LDNR had

sufficient notice and time to gather evidence and testimony of expert witnesses

pertaining to the low-water mark boundary. Accordingly, we find no error in the

trial court’s denial of the LDNR’s exception of improper use of summary

proceedings. This assignment of error is without merit.

Joinder

LDNR argues that all immovable property owners whose property will be

changed by the setting of the ordinary low boundary must be joined before a trial to

set the boundaries can commence.

25

At the hearing, LDNR argued that the federal government had never been

served and that there are others affected such as mineral interest owners who are not

landowners.

In brief, LDNR argues that the United States is the largest riparian owner in

the Catahoula Basin and that Tensas Delta Exploration Company, L.L.C., who is not

a party in the matter, claims all mineral interests under both the federal and state

properties through various mineral leases, “making it the largest mineral rights

holder in the Catahoula Basin.” LDNR states that while the United States may have

opted out of the class action, “it did not opt out of its immovable property interests.”

LDNR further argues that mineral rights holders who are not landowners were never

class members and must be joined before their property boundaries are changed.

LDNR opines that the “opt-out” plaintiffs, including Saline Hunt Club, Church and

Charity, Inc, and the Louisiana Department of Wildlife and Fisheries must be joined

before their riparian boundaries are changed. It further argues that “just because

someone chose to opt out of joining a class-action lawsuit, that does not mean they

are unaffected by a judgment setting their property boundaries.” Finally, LDNR

states that the absence of these parties renders the August 2021 judgment null.

On appeal, we review the trial court’s denial of an exception of non-joinder

using the abuse of discretion standard. Foster v. City of Leesville, 17-1106 (La.App.

3 Cir. 6/13/18), 250 So.3d 302. In La.Code Civ.P. art. 641, joinder of parties needed

for just adjudication is addressed:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among

those already parties.

(2) He claims an interest relating to the subject matter of the

action and is so situated that the adjudication of the action in his absence

may either:

26

(a) As a practical matter, impair or impede his ability to protect

that interest.

(b) Leave any of the persons already parties subject to a

substantial risk of incurring multiple or inconsistent obligations.

A panel of this court recently addressed joinder of parties needed for just

adjudication:

In Two Canal Street Investors, Inc. v. New Orleans Building

Corp., 16-825 (La.App. 4 Cir. 9/23/16), 202 So.3d 1003, 1011-12

(citation omitted), the court observed that pursuant to Article 641:

“Parties needed for just adjudication in an action are those who have an

interest relating to the subject matter of the action and are so situated

that a complete and equitable adjudication of the controversy cannot be

made unless they are joined in the action.” The court continued, noting:

“A person should be deemed to be needed for just adjudication only

when absolutely necessary to protect substantial rights.” Id. at 1012.

When considering whether a party is needed, the court must conduct

“an analysis of the interests of the joined and nonjoined parties” and

determine whether the action can proceed to judgment. Lowe’s Home

Constr., LLC v. Lips, 10-762, p. 6 (La.App. 5 Cir. 1/25/11), 61 So.3d

12, 16; writ denied, 11-371 (La. 4/25/11), 62 So.3d 89.

Johnson v. Strange, 21-12, p. 4 (La.App. 3 Cir. 6/9/21), 323 So.3d 444, 446

(emphasis added).

Moreover, the facts, rather than allegations, must leave no doubt that complete

relief cannot be accorded without the joinder of the parties alleged by the exceptor:

The jurisprudence of this state holds that a party is indispensable only

when the facts clearly establish that no complete and equitable

adjudication of the controversy can be made in his absence. State v.

Lamar Advertising Co., 279 So.2d 671 (La.1973). Because of the lack

of evidence in the record, a factual analysis of the rights of the parties

and absent persons could not have been made.

The burden of proving an exception is on the party asserting it.

Town of Grand Isle v. Dynamic Constructors, Inc., 374 So.2d 703

(La.App. 1st Cir.1979).

Carter v. Baton Rouge City-Parish Employees’ Ret. Sys., 612 So.2d 765, 767

(La.App. 1 Cir. 1992).

27

The absence of a necessary party results in an absolute nullity, and we must

remand the matter for retrial once the absent party has been joined. Johnson, 323

So.3d 444.

In its reply brief, LDNR states:

And while the federal government and other opt-out plaintiffs did

not want to be part of the class, they did not opt out of their property

rights. When the United States opted out years ago, it did so without

knowing that the Class Plaintiffs would someday ask to reset

boundaries on its properties without informing it.

We disagree. This argument also rests on the underlying premise that LDNR

and/or the other opt-out plaintiffs could not anticipate that a boundary determination

would result from the class action petition which sought to “Fix Boundary, For

Damages and For Declaration [sic] Judgment.”

In May 2014, LDNR filed a joint motion with the plaintiffs to permit the

Catahoula National Wildlife Refuge and the U.S. Fish and Wildlife Service to “opt-

out” out of the class, which was granted by the trial court. These parties will not

now be forced to join in the litigation. Regarding the mineral interest owners,

particularly Tensas Delta who, according to LDNR, owns more mineral interests

than anyone else in the Catahoula Basin, we are certain that a sophisticated party of

this nature would be well aware of the lengthy litigation over an area in which it has

a significant financial interest. More importantly, the absence of Tensas Delta from

the litigation fifteen years into the litigation has no effect on the class members

achieving complete relief. La.Code Civ.P. art. 641(1). Assuming the accuracy of

LDNR’s allegations, Tensas Delta has other remedies at law that it can pursue if

necessary.

Finally, as to any other parties that LDNR claims should be joined, “[a]

definitive judgment on the merits rendered in a class action concludes all members

of the class, whether joined in the action or not, if the members who were joined as

28

parties fairly insured adequate representation of all members of the class.” La.Code

Civ.P. art. 597. Accordingly, we find the trial court did not abuse its discretion in

denying the exception of non-joinder, and this assignment of error is without merit.

Res Judicata

In this assignment of error, LDNR argues the trial court’s grant of plaintiffs’

peremptory exception of res judicata was procedurally erroneous. We agree.

The first issue addressed at the August 10, 2021 hearing was a motion in

limine to limit the testimony of a Michael Philip Mayeux, a surveyor. The plaintiffs

argued that “it is a matter of res judicata that the bank, the low bank, cannot be higher

than the lowest of those oil well elevations.” LDNR argued that the oil well locations

were not relevant to the ordinary low-water mark. The trial court ruled:

Well, with regard to any evidence of oil and gas wells or units, if

it’s not necessary in determining the low-water mark, then I don’t need

to hear it. I’m here today for one purpose, that’s to determine the low-

water mark.

Thereafter, the trial court granted the plaintiffs’ exception of res judicata and

again stated it would only be determining the low-water mark.

“An exception is a means of defense, other than a denial or avoidance of the

demand, used by the defendant, whether in the principal or an incidental action, to

retard, dismiss, or defeat the demand brought against him.” La.Code Civ.P. art. 921

(emphasis added). “The function of the peremptory exception is to have the

plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence

this exception tends to dismiss or defeat the action.” La.Code Civ.P. art. 923. The

purpose of a peremptory exception of res judicata is to bar relitigation of a matter

determined in a previous lawsuit. We recently summarized the law pertaining to res

judicata in McCalmont v. McCalmont, 19-738, pp. 6-8 (La.App. 3 Cir. 4/29/20), 297

So.3d 1057, 1063-64:

29

“The standard of review of a peremptory exception of res

judicata requires an appellate court to determine if the trial court’s

decision is legally correct.” Fletchinger v. Fletchinger,10-0474, p. 4

(La.App. 4 Cir. 1/19/11), 56 So.3d 403, 405. “[T]he doctrine of res

judicata is stricti juris and, accordingly, any doubt concerning the

applicability of the principle must be resolved against its application.”

Id., at 406.

Res Judicata

“An exception is a means of defense, other than a denial or

avoidance of the demand, used by the defendant, whether in the

principal or an incidental action, to retard, dismiss, or defeat the

demand brought against him.” La.Code Civ.P. art. 921. “The function

of the peremptory exception is to have the plaintiff's action declared

legally nonexistent, or barred by effect of law, and hence this exception

tends to dismiss or defeat the action.” La.Code Civ.P. art. 923. The

exception of res judicata is properly raised as a peremptory exception.

La.Code Civ.P. art. 927(A)(3). “The peremptory exception may be

pleaded at any stage of the proceeding in the trial court prior to a

submission of the case for a decision and may be filed with the

declinatory exception or with the dilatory exception, or both.” La.Code

Civ.P. art. 928(B). “On the trial of the peremptory exception pleaded at

or prior to the trial of the case, evidence may be introduced to support

or controvert any of the objections pleaded, when the grounds thereof

do not appear from the petition.” La.Code Civ.P. art. 931. If the

grounds of the peremptory exception cannot be removed by amending

the petition, the claims shall be dismissed. La.Code Civ.P. art. 934.

Res judicata promotes the dual purposes of judicial efficiency

and the final resolution of disputes by preventing needless relitigation.

Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654 (La.

1/16/96), 666 So.2d 624. Louisiana Revised Statutes 13:4231states:

Except as otherwise provided by law, a valid and

final judgment is conclusive between the same parties,

except on appeal or other direct review, to the following

extent:

(1) If the judgment is in favor of the plaintiff, all

causes of action existing at the time of final judgment

arising out of the transaction or occurrence that is the

subject matter of the litigation are extinguished and

merged in the judgment.

(2) If the judgment is in favor of the defendant, all

causes of action existing at the time of final judgment

arising out of the transaction or occurrence that is the

subject matter of the litigation are extinguished and the

judgment bars a subsequent action on those causes of

action.

30

(3) A judgment in favor of either the plaintiff or the

defendant is conclusive, in any subsequent action between

them, with respect to any issue actually litigated and

determined if its determination was essential to that

judgment.

“‘The burden of proof is upon the pleader to establish the

essential facts to sustain the plea of res judicata.’” Mundell v. Mundell,

03-631, p. 2 (La.App. 3 Cir. 11/5/03), 858 So.2d 768, 770 (quoting Ins.

Assocs., Inc. v. Francis Camel Constr., Inc.,95-1955 (La.App. 1 Cir.

5/10/96), 673 So.2d 687); see also Louisiana Workers’ Comp. Corp. v.

Betz, 00-0603, p. 3 (La.App. 4 Cir. 4/18/01), 792 So.2d 763, 765. If “all

essential elements are present and each necessary element has been

established beyond all question,” res judicata may be invoked. Id.

Moreover, the res judicata doctrine must be strictly construed, and any

doubt concerning its applicability is resolved against the party raising

the objection. Berrigan v. Deutsch, Kerrigan & Stiles, LLP, 01-0612

(La.App. 4 Cir. 1/2/02), 806 So.2d 163,writs denied, 02-338, 02-341

(La. 4/12/02), 813 So.2d 410.

We find it was procedurally inappropriate for the plaintiffs to file an exception

of res judicata in this matter. The plaintiffs’ reasons for filing it were:

Out of an abundance of caution, the class plaintiffs filed an

exception of res judicata or, alternatively, motion in limine in the trial

court after remand. They did so to avoid re-litigating any issues that

were settled in the final judgment, as well as to pre-empt any claim by

the State that they had in any way waived res judicata by failing to

assert it.

Plaintiffs go on to state that the ruling granting the exception “caused no harm.”

The relationship of the exact location of the low-water mark to the location of gas

wells has not been litigated. While the former trial court did, in fact, award the

plaintiffs $4,694,309.68 in mineral interests attributable to mineral production from

May 2003 through the date of trial, it made no finding as to the location of the gas

wells in relation to the low-water mark. As LDNR points out, the location of the oil

and gas wells is a matter of public record.

While plaintiffs strenuously argue that we must necessarily find that these

wells are above the low-water mark, there is simply insufficient evidence in the

record to make such a determination. The low-water mark boundary and the location

31

of the oil and gas wells are two separate independent findings that may or may not

correlate. We have combed through the entire record in this case to determine if the

former trial court made any findings regarding the low-water mark based on

scientific evidence and the location of gas wells. We simply cannot find any

evidence in the record of such a finding. While we do not disagree that the legal

conclusion must be that the profit from the wells already awarded was above the yet-

to-be-determined low-water mark, we cannot substitute that legal finding for the

scientific one that establishes the actual low-water mark, the sole reason for the

August 10, 2021 hearing.3

Moreover, in reading through the transcript relating to the exception of res

judicata filed by plaintiffs, we are unsure upon what grounds the trial court based its

grant of the exception. Plaintiffs’ exception was combined with a motion in limine

to limit the testimony of some of LDNR’s witnesses. Initially, the trial court

declared it would deal with those issues as they arose. Then, at the end of the hearing,

it granted the exception of res judicata without discussion. Nor did it provide written

reasons for judgment. The trial court made it very clear it was uninterested in the

location of oil and gas wells and was only going to be determining the location of

the low-water mark. Accordingly, we find the trial court legally erred in granting

plaintiffs’ exception of res judicata.

Evidence-Assignments four and six

In assignments of error four and six, LDNR argues the trial court erred in

prohibiting testimony and evidence at the summary proceeding because it was not

disclosed during discovery and the trial court systematically and consistently

3

Undoubtedly, the previous award of mineral interests is res judicata as all parties

conceded that that final judgment has not been appealed and no party is relitigating that finding in

the current proceedings.

32

prevented the presentation of almost all of LDNR’s testimony and evidence. LDNR

argues that the trial court misapplied Daubert and excluded any evidence that was

contrary to the plaintiffs’ theory of the case.

The trial court addressed the plaintiffs’ motion to exclude witness testimony

by LDNR’s experts. The plaintiffs argued none of these witnesses would be able to

testify as to the location of the low-watermark, claiming they were still “working on

it.” The plaintiffs noted that LDNR did not even contact some of the witnesses until

five weeks after the June 4, 2021 hearing that set the August 10, 2021 trial date.

LDNR, on the other hand, argued that since these were summary proceedings there

was no deadline for expert reports and they were not due and the witnesses were

now ready to testify. LDNR stated:

And some of the things they may not quite have finished, because they

had a very limited amount of time, even yet today. But they can present

to this Court the work that they have done. Their information and their

expertise to help this Court understand what is happening out there and

where the ord – and where the water ordinarily sits during the low

season.

The trial court did not exclude the witnesses at the start of the hearing, instead

stating it would listen to the witnesses “in light of their deposition testimony, and

make rulings.” As the hearing continued, none of LDNR’s witnesses would testify

as to an exact low-water mark. The trial court excluded the testimony of the LDNR’s

final witness, William Finley, whose testimony was thereafter proffered for the

record.

Louisiana Code of Evidence Article 702 governs the admissibility of expert

testimony in pertinent part:

A. A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion

or otherwise if:

33

(1) The expert's scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and

methods; and

(4) The expert has reliably applied the principles and methods to

the facts of the case.

A trial court has vast discretion in determining the admissibility of evidence.

See La.Code Civ.P. art. 1631; Wood v. Am. Nat. Prop. & Cas. Ins. Co., 07-1589

(La.App. 3 Cir. 12/23/08), 1 So.3d 764. We find the trial court did not err in

excluding the testimony of LDNR’s witnesses, who all admitted they could not give

an elevation representing the low-water mark, the sole reason for the hearing. While

the trial court did not conduct a traditional Daubert style analysis, it did so informally

and found that none of LDNR’s witnesses would be helpful in determining the issue

at hand. While the witnesses did testify to an actual low-water mark number later in

the day, the trial court cannot be faulted because of LDNR’s witnesses’ sudden

knowledge after the hearing. It was clear at the hearing that none of LDNR’s

witnesses were going to testify to an actual low-water mark, that they had

insufficient knowledge to testify to an actual low-water mark, and that they did not

set forth any methodologies to determine a low-water mark.

LDNR makes vague arguments on appeal that appear to claim that had its

witnesses been allowed to testify, they would have proven either that the low-water

mark was at 28 feet or that the low-water mark is insusceptible of determination due

to a variety of conditions. Without stating the obvious conundrum of these

diametrically opposed claims, LDNR’s various allegations are unsupported by any

testimony of its witnesses, who failed to assist the trier of fact in making these

conclusions.

34

A review of the testimony at the hearing and the proffered evidence makes

clear that the trial court did not abuse its discretion, and that the admission of the

evidence would not have changed the outcome of the trial court’s ruling. Further, in

the interest of justice and in an effort to dispel any notion that the LDNR was

deprived of its right to present evidence, we will review all of LDNR’s proffered

testimony. See Uniform Rules-Courts of Appeal, Rule 1-3; Waller v. Wal-Mart

Stores, Inc., 563 So.2d 1346 (La.App. 4 Cir.), writ denied, 568 So.2d 1059 (La.1990).

The following testimony and evidence was gathered through depositions preceding

the hearing, testimony at the hearing, and proffered testimony following the hearing:

Plaintiffs’ Witnesses

Dr. Joseph Suhayda

Dr. Suhayda testified that he has a bachelor’s degree in physics and a PhD in

physical oceanography. He is retired from teaching at LSU. He testified that his

expertise is in coastal processes, including the land, land features, which are lakes

and rivers, and also the nursery area where oil platforms are located and ports are

developed. He defined coastal hydrology as the application of the principles of

physics to the study and modeling of coastal processes, in this particular case, water-

related processes including currents, waves, and water level change. Dr. Suhayda

has testified as an expert for the State of Louisiana. He testified in the 2015 trial of

this matter and was tendered as an expert in hydrology, including the movement of

water and flooding. Dr. Suhayda admitted this was the first time he applied his

physics background and experience in determining the low-water mark, although he

had done quite a bit of work in determinations of the ordinary high-water mark. The

trial court accepted Dr. Suhayda as an expert in the field of hydrology, including the

movement of water and flooding.

35

Dr. Suhayda determined the low-water mark to be 24.08 feet. He used a

methodology involving the average of the measurements of the annual low-water

elevation over a sufficient period of time. The measurements are computed from

gauges that the Army Corps of Engineers routinely uses to measure water level

activity in waterways. In the Catahoula Basin, there are three gauges. Dr. Suhayda

did not use readings from two of the gauges because one was too far away from the

subject area and the other gauge was located at surface level and did not measure

low-water level conditions. Moreover, these two gauges only provided twenty years

of data, which Dr. Suhayda deemed insufficient.

Dr. Suhayda relied on the gauge located at the Diversion Canal Control

Structure because it measures water levels at the structure in the diversion canal.

The Diversion Canal is directly connected to Little River and the hydraulic

connectivity is excellent. Dr. Suhayda testified that this gauge was installed in 1973

specifically to measure water levels in the Little River, and the gauge was

continuously operated through 2020 at the point when he used the data. Thus, Dr.

Suhayda had forty-eight-years-worth of data to work with in determining the low-

water mark. Dr. Suhayda used the lowest water elevation reading for each of the 48

years to determine the ordinary low-water mark. The average annual low-water was

computed by summing the annual low-water measurements for the 48 years and then

dividing by 48 or, in other words, the sum of all the information divided by the total

number of observations.

On cross examination, Dr. Suhayda was asked about whether he took stream

slope into consideration, given that the location of the gauge was a mile-and-a-half

from the Little River. Dr. Suhayda testified that he did not include it because he did

not believe it could be taken at face value.

36

Michael Philip Mayeux

Mayeux, a licensed registered land surveyor for 37 years, testified that he

locates real property on the ground, determines elevations of the ground and records

measurements, and prepare plats. He further stated that he determines elevations of

the ground and bottoms of water bodies, which is known as topographic (land) or

hydrographic (water) surveying. Mayeux testified that he has been recognized as an

expert in many courts, and has testified for the State of Louisiana about ten times,

even determining the low-water mark in one case. He testified as an expert in this

case at the 2015 trial. Mayeux performed a hydrographic survey to identify the

location of the ordinary low-water mark. Mayeux agreed with the methodology

employed by Dr. Suhayda. Mayeux had previously found that the ordinary low-

water mark of the Little River was 25.32 feet based on the data from 1972 through

2013. However, Mayeux testified that he made a calculation error and that Dr.

Suhayda’s figure was the same he arrived at after using the correct column of figures.

Mayeux surveyed the area by boat over the course of 7 days in mid-July 2021.

LDNR’s Witnesses

Deposition Testimony of Dr. George Losonsky

Dr. Losonsky was questioned via deposition on July 21, 2021. Plaintiffs’

counsel inquired if he had ever been permitted to testify as an expert in any field,

and Dr. Losonsky replied, “I don’t remember.” He was further asked if he had ever

been permitted to testify about the location of the ordinary or mean lower water mark

of a surface river to which he replied, “I don’t know.” He also was not sure if any

court had every excluded or limited his testimony for any reason. Counsel continued

to ask questions to determine Dr. Losonsky’s familiarity with the background of the

case as well as the area in question. For example, the following colloquies occurred:

37

Q. Do you understand the significance of the final judgment that the

body of water in the Catahoula Basin in 1812 was not a lake, but a

permanent channel known as the Little River?

A. Repeat that, please?

Q. Do you understand the significance of the final judgment that the

body of water in the Catahoula Basin in 1812 was not a lake, but a

permanent channel known as the Little River?

A. No.

Dr. Losonsky did not know who owned the land above the low-water mark,

that the parties had agreed that the ordinary high-water mark was 36 feet above sea

level, or that the area consisted of about 22,813 acres. He was later questioned:

Q. Okay. Do you understand and agree that the State only owns the land

lying between the ordinary low-water mark on each side of the bed of

the Little River as it channels though the Catahoula Basin?

A. Please repeat that.

BY MR. VERON:

Q. Do you understand and agree that the State only owns the land lying

between the ordinary low-water mark on each side of the bed of the

Little River as it channels though the Catahoula Basin?

A. No.

BY MR. VERON:

Q. Okay. Do you disagree with that?

A. I don’t know.

Dr. Losonsky refused to identify the Little River Channel in photographs after

being repeatedly asked by counsel. Counsel asked whether the water at the location

of the gauge was hydraulically connected to the Little River as it runs though the

Catahoula Basin, to which Dr. Losonsky replied that it was. He was then asked if

that includes the Little River, and he replied, “I don’t know.” Moreover, he could

not remember what the lowest water level in the Little River was although he knew

the gauges took measurements daily. Dr. Losonsky was asked point-blank:

38

Q. . . . Are you able to tell us today what you understand the ordinary

low-water mark of [the] Little River to be?

A. No.

Further questioning revealed he knew nothing about the locations of the

gauges in relation to the Little River and what they measured. He did not know that

the center gauge would never measure the lowest water levels because it was

intended to determine the highest water levels.

Deposition Testimony of William Finley

The transcript of the deposition of William Finley taken on August 3, 2021,

was also proffered. Finley, a geologist and geoscientist, has never testified in court,

never been asked to identify or locate the ordinary or mean low-water mark of a

stream or water body, and did not know anything about this case until a month before

the deposition. He said he was asked by LDNR’s counsel to “review and comment

on the methodology for determining low-water.” He said he was “still formulating

an opinion.” He was unfamiliar with accepted methodology used by Louisiana

courts to determine low-water marks of a river (i.e., Cockrell). Finley was

questioned:

Q. Mr. Finley, what were your preliminary opinions that you expressed

to the State?

....

A. Yeah. As a preliminary opinion, they’re in flux because I’m still

waiting to get additional information, but I was, in essence, looking at

the gauge data in different ways to see if we could see a pattern that

might be representative of how to determine the data to be used for

determining low-water. That’s still preliminary because I haven’t seen

the rest of the data yet.

Q. Have you made any effort to look at the lowest water mark in each

year –

A. Yes, sir.

39

Q. –as measured on a hydraulically connected water gauge to the Little

River Channel and then added all that up and divided by the number of

years?

A. Yes, sir.

Q. Okay, And what number did you get?

A. I don’t recall the specifics of that number. This is information that

I’ve been working on spreadsheets, et cetera, and I haven’t committed

to memory specific numbers.

Q. It’s the number. It’s only one number. You can’t remember it?

A. I’m sorry, I was looking at a lot of different information.

When questioned what additional information he was waiting on, Finley

stated that he was “trying to get some determination as to the geology, the geoscience

of the Catahoula Basin so that I can put into reference the expected low-water versus

high-water.” He was unaware that there was an approved method to determine the

low-water mark. In fact, before this case he did not even know what low-water mark

meant, but he did state, “If you have data, you can figure out how to get to that

number,” even if you do not know what it is. Finley did not know the location of

the gauges in relation to the Little River. He testified that he was given some data

in documents authored by an unknown source, relating to a gauge that was used by

Placid Oil during their oil and gas operations in the lake, and this was the data he

was using to formulate opinions. He had no idea how many gauges were in the

Catahoula Basin. The following exchange occurred:

Q. So it’s your opinion that it is an intellectually honest thing to do to

selectively choose the dat[a] that supports your opinion and ignore the

data that contradicts it?

A. It’s not ethical, but it’s done.

40

Testimony at the Hearing

John Steven Smith, Jr.

Smith, the biologist program manager of the Louisiana Department of

Wildlife and Fisheries, testified that he regularly visited the Catahoula Lake area

until 2016, when he began handling a different area of the state as part of his job

position. He stated he would go to the area two to three times per week. Smith was

asked a variety of questions about dredging, silt, cleaning out the canal, and the

opening and closing of gates, but he did not produce any testimony related to the

low-water mark. On cross-examination, Smith recalled that in his deposition six

days before the trial, he stated that he was unable to determine the low-water mark,

that he had never been responsible for identifying the low-water mark during his

career, and that he did not think the trial was about anything other than the low-water

mark of the Catahoula Lake.

Jared Anthony Couvillion

Couvillion, a registered land surveyor, testified that he has participated in

surveying related to water bodies such as in setting gauges for the Army Corps of

Engineers, monitoring surveys on the Three River Control Structures, and aiding

some hydrographic crews. He was accepted as an expert in surveying. On cross-

examination, Couvillion admitted that as of a week before trial he did not know what

the low-water mark was and he could not be definite in his answer because there

were “some other factors that I have to explore first.” He knew the trial was for the

purpose of determining the low-water mark. He admitted he had never surveyed the

ordinary low-water mark of a river or stream. Further, as of August 3, 2021, he had

not done any survey or field work in this case. He stated that he was not contacted

by LDNR until July 13, 2021. On re-direct, Couvillion testified he would able to

survey the water bottom but he just had not had time.

41

Dr. George Losonsky

Dr. Losonsky has a PhD in geology, hydrogeology, and physical and chemical

processes. Dr. Losonsky gave an extensive history in expert opinions but admitted

that he had only testified as an expert witness one time. On cross-examination, Dr.

Losonsky was questioned about his deposition testimony indicating he knew little

about the area in question. At the end of the questioning, the trial court questioned

him:

Q. Dr. Losonsky, are you able to tell the Court today what the low-

water mark is within that channel?

A. (By the witness) That’s not the Little River Channel.

By Mr. Veron: Your Honor, I’m – I’m not gonna [sic] waste anymore

of your time, after that answer.

Plaintiffs’ counsel then renewed their objection, and the trial court issued

reasons for judgment on the plaintiffs’ exception to exclude Dr. Losonsky as a

witness stating:

Based upon the State’s questioning of this witness and the

traversal done by Mr. Veron, the Court is of the opinion that his

scientific test – technical and specialized knowledge will not help the

Court in this case. That to understand, it’s not based on sufficient facts

of this case. It’s not the product of reliable principles and methods, and

he has not reliably applied principles and methods, that this Court is

aware of that is utilized in this very issue to the facts of this case.

So, I – I don’t see where his testimony would help the trier of

fact in it, so.

....

So I will not accept him as an expert to – to tell this Court what

the low-water mark is. He hasn’t even, I mean, his – based upon what

he said, I’m not even sure he know [sic] the method of determining it.

The trial court later stated regarding Dr. Losonsky, when LDNR was

discussing its final witness Mr. Finley, “I didn’t find that his testimony would be

42

reliable, because I didn’t find that his it was based upon the facts of the case. I found

that his knowledge of facts of the case were deficient.”

Thereafter, all parties agreed to proffer the testimony of Finley, the State’s

final witness.

The trial court then ruled on the low-water mark stating:

[T]he Court found that the testimony of Dr. Joseph Suhayda and the

testimony of Mr. Mayeux were reliable; and that testimony was logical,

and corroborated by data and substantiated by data; it consisted of years

of data that was obtained from the Army Corps of Engineers. And I

think the years of data over the forty-eight years was the most reliable.

. . . And the Court accepts the testimony that the ordinary low-

water mark is 24.08 feet.

And, also, the Court wants to note that their – Mr. Suhayda’s

testimony regarding why he used the Diversion Gauge was, um, it was

the most logical. As the Archie Gauge was ten miles away, the Center

Gauge cannot measure annual lows, because it sits higher than the

annual lows. So the Diversion Gauge, to me – this Court, was the most

reliable source of the information, in assisting the experts and, and

informing this Court as far as making their determinations.

LDNR’s Proffered Testimony

Proffered Testimony of John Steven Smith, Jr.

Smith testified that aquatic vegetation makes it difficult to tell exactly where

the water ends and the land begins.

Proffered Testimony of Jared Anthony Couvillion

Couvillion testified that the Little River channel identified by Mayeux appears

to have been dredged in the 1970s. Couvillion testified that Mayeux surveyed “a

channel that, that is served to route water from the entrance to the exit of Catahoula

Basin.” He stated that he had a preliminary assumption that Mayeux surveyed a

manmade canal rather than a natural river. He did not offer any testimony regarding

the low-water mark.

43

Proffered Testimony of Dr. George Losonsky

Dr. Losonsky testified that he believed the ordinary low-water mark is 28 feet

based on gauge readings from both the Lakeside Diversion Canal Structure Gauge

and the Middle of Lake or Center Lake Gauge over the entire period since the

construction of the control structures in 1972. He stated that he also looked at:

lidar elevations of the landscape around the entire Catahoula Basin.

And I studied the USGS’s bathymetry work. I took the available

bathymetry from the USGS. I blended that in with surrounding lidar

landscape topography, to create a complete map of the area.

I then looked at – I then modeled the extent of water at various

elevations, elevations that sprang out of the analysis of daily reading on

those two gauges that I mentioned. And I also looked at the water levels

from a standpoint of navigability of the river to arrive at my conclusion.

He further stated that he studied the effects of the water table and interviewed

someone at the Army Corps of Engineers.

Proffered Testimony of William Finley

Finley disagreed with Dr. Suhayda’s determinations “[b]ecuase he used

information based upon an assumption that I don’t think works for this particular

circumstance because of the geology involved. There was no input, from a geologic

aspect, that has a factor that should have been considered in this case.” Finley said

the fluvial system needs to be understood “so that we can then apply an analysis of

the data that allows us to understand the mechanics of the system,” which he claimed

Dr. Suhayda did not do. He further disagreed with the methodology used by Dr.

Suhayda to determine the low-water mark because it did not use enough data points

and “doesn’t represent ordinary conditions for the river system.” Finley was then

asked if he had an opinion on the low-water stage, but he replied that he was not

asked to find a number only evaluate the methodology for determining low-water.

Nevertheless, he arrived at a number of 28 feet “based on the data distribution

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patterns that work for this river system.” He also arrived at a low-water stage of 27

feet based on keeping it maintained at an artificial basis.

Even from a cold record, the plaintiffs’ experts were far more credible in their

determinations regarding the low-water mark. The methodology used was an

accepted one in Louisiana courts comprised of over fifty years of data from the U.S.

Army Corps of Engineers. See State v. Cockrell, 162 So.2d 361 (using daily

recorded water stages by the U.S. government, determine the lowest depth in each

year, compute the average of said lows and arrive at a mean low-water level). That

methodology was explained. On the contrary, LDNR’s experts provided no

methodologies to arrive at their conclusions of twenty-eight feet. Instead, they

testified about collecting all kinds of information without relating what it had to do

with the ordinary low-water mark. Moreover, there is no explanation as to why they

could not tell the trial court a specific number earlier in the day, but were able to

provide one in the proffered testimony taken that same evening. This seriously

undermines the credibility of LDNR’s witnesses. LDNR’s own brief sets forth the

reasons that the testimony was easy to discredit once considered (footnotes omitted):

Mr. Couvillion’s proffered testimony was competent, relevant, and

would have helped the court understand the computation and location

of an appropriate, science-based ordinary low. He offered opinion

testimony within the field of his expertise that addressed the following:

• The importance of examining historical documents

such as the General Land Office maps as a starting point

to understanding the waterbody to be surveyed;

• That the location of the Little River within the

Catahoula Basin identified by Plaintiffs’ experts was

actually a manmade canal that was dredged by the U.S.

Corps of Engineers in 1972 and 1975;

• That the Plaintiffs’ survey did not accurately

represent the historical path of the Little River within the

Catahoula Basin.

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We find no connection between the above information and the determination

of the ordinary low-water mark nor does LDNR or its witnesses make the connection

in proffered testimony or in brief. LDNR claims that these witnesses’ expertise was

valid regardless of whether they testified to an actual number representing the low-

water mark. This is simply nonsensical. Without relating how the historical

information affects the ordinary low-water mark today, the sole purpose of the

hearing, LDNR’s experts were simply giving a history lesson. LDNR makes claims

that if they had been given the opportunity, the “diversity of information would have

allowed the court to fairly determine the ordinary low as other courts have

consistently done in the past.” However, LDNR cites no cases where “other courts

have consistently done so in the past.” This equates to bombarding a trial court with

an assortment of scientific and historical information without connecting its

relevance to the determination of the low-water mark. This tactic fails.

LDNR makes sweeping claims about the importance of a “conservation pool

protected by international treaties among dozens of landowners.” The validity of

this claim is impossible to determine from this record. LDNR’s failed attempt to

connect all of its various allegations through testimony and evidence of how it relates

to the low-water mark is a red herring. The hearing’s purpose was to set an actual

number representing the ordinary low-water mark. LDNR failed to present any

credible evidence disputing the plaintiffs’ expert testimony. Accordingly, we find

no error in the trial court’s exclusion of witness testimony, and even after

considering it, we find no error in the factual finding that the low-water is located at

24.08 feet.

Absurd Result

Finally, relying on La.Civ.Code art. 9, LDNR claims that the factual finding

of the low-water mark boundary at 24.08 feet will lead to absurd results based on

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previous findings by the court. Louisiana Civil Code Article 9 provides: “When a

law is clear and unambiguous and its application does not lead to absurd

consequences, the law shall be applied as written and no further interpretation may

be made in search of the intent of the legislature.” This assignment appears to be a

catch-all argument that the result is wrong.

LDNR then goes on to discuss how the finding of the low-water mark at 24.08

feet will lead to absurd consequences in the river bed stating:

Despite the trial court’s finding in 2016 that the bed (land) of the river

in the Catahoula Basin was at 27 feet, the court impossibly set an

ordinary low almost three feet below the land level, at 24.08 feet. This

finding creates a grossly unnatural relationship between the high bank

of the river at 36 feet, and the weird, intermittent drizzle of a low bank

at 24.08 feet. Because the court’s finding is entirely based on one

annual low data point for each year from a gage outside the river in a

purposely lower artificial drainage canal, and because the court would

permit no rebuttal to this nonsense, the court accepted that the top of

the water lies beneath the prior court’s determination where the land is.

Thus, the only place the water can fit within that impossibly low

standard is in the bottom of a dredged canal, and even then in only less

than half of that canal as it traverses the Basin. The court refused to

hear any evidence supporting a low that made any scientific sense. This

absurdity should be corrected. This Court should remand the case to be

reset for an ordinary trial schedule and give LDNR and the people of

Louisiana a fair trial.

We note that Judge Boddie’s opinion found that “[t]he lowest portion of the

lake’s bed of any appreciable extent is at elevation 27 feet m.s.l. [mean sea level]. . . .”

We considered all of LDNR’s proffered testimony and find that conclusions alleged

cannot be reached based on that evidence. The veracity of these allegations cannot

be determined from the record. LDNR’s proffered expert testimony failed to address

the alleged absurdities and their effect on the waterway. We can only rely on

evidence in the record, and there is none. Accordingly, this assignment of error is

without merit.

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CONCLUSION

The exceptions of lack of subject matter jurisdiction and no cause of action

filed by the defendant-appellant, the State of Louisiana, through the Department of

Natural Resources, are denied. The judgment of the trial court setting the low-water

mark boundary of the Little River at 24.08 feet is affirmed. The trial court’s grant

of res judicata in favor of the plaintiffs-appellees, Steve Crooks et al., is reversed.

All costs of this appeal are assessed against the defendant-appellant, the State of

Louisiana, through the Department of Natural Resources.

EXCEPTIONS DENIED;

AFFIRMED IN PART; REVERSED IN PART.

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