The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHAD MICHAEL RODGERS, ET AL. CIVIL ACTION
VERSUS NO. 24-2560
BOARD OF COMMISSIONERS FOR THE SECTION: D (1)
LAFITTE AREA INDEPENDENT
LEVEE DISTRICT
ORDER AND REASONS
Before the Court is a Motion to Dismiss for Lack of Jurisdiction under 42
U.S.C. § 1983 and Motion for Summary Judgment, filed by Defendant Board of
Commissioners for the Lafitte Area Independent Levee District (“LAILD”).1 Chad
Michael Rogers, Jr., Christina Rogers, C&C Rogers Rentals, LLP, and Nathan James
Rogers, LLC (“Plaintiffs”) have filed an Opposition,2 and LAILD has filed a Reply.3
Also before the Court are LAILD’s Motion to Exclude Plaintiffs’ Supplemental
Expert Report, Expert Opinions Expressed Therein, the Attachments Thereto and
Proposed Expert and for Sanctions,4 LAILD’s Motion to Exclude Plaintiffs’ Expert,
Michael Gurtler, or alternatively to Limit his Testimony,5 and LAILD’s Omnibus
Motion in Limine to Exclude Plaintiffs’ Documentary Evidence and Testimony
Regarding Same and for Sanctions due to Spoliation of Evidence.6
After a careful review of the parties’ memoranda, the record, and the applicable
law, the Court GRANTS LAILD’s Motion to Dismiss for Lack of Jurisdiction under
1 R. Doc. 47.
2 R. Doc. 56.
3 R. Doc. 58.
4 R. Doc. 35.
5 R. Doc. 49.
6 R. Doc. 59.
42 U.S.C. § 1983 and Motion for Summary Judgment and DENIES AS MOOT
LAILD’s Motion to Exclude Plaintiffs’ Supplemental Expert Report, Expert Opinions
Expressed Therein, the Attachments Thereto and Proposed Expert and for Sanctions,
LAILD’s Motion to Exclude Plaintiffs’ Expert, Michael Gurtler, or alternatively to
Limit his Testimony, and LAILD’s Omnibus Motion in Limine to Exclude Plaintiffs’
Documentary Evidence and Testimony Regarding Same and for Sanctions due to
Spoliation of Evidence.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns real property within the bounds of the Lafitte Area
Independent Levee District in Jefferson Parish, Louisiana.7 Plaintiffs own two pieces
of property in Lafitte, Louisiana.8 Plaintiffs have their primary residence located at
5662 Jean Lafitte Blvd., Lafitte, Louisiana.9 At their primary residence, Plaintiffs
own several commercial shrimp trawlers and are engaged in the commercial
shrimp/fishing industry.10 Plaintiffs’ second piece of property is located at 5644 Jean
Lafitte Blvd., Lafitte, Louisiana, which Plaintiffs use as a rental property.11 Both
properties are either situated directly on or adjacent to Bayou Barataria.12
On January 30, 2023, the New Orleans District of the United States Army
Corps of Engineers (“USACE”) issued Permit No.: MVN-2018-00486-EG (the “USACE
7 R. Doc. 1. The Factual and Procedural Background are taken from Plaintiffs’ Complaint.
8 Id. at p. 2.
9 Id.
10 Id.
11 Id.
12 See id.
Permit”) to LAILD, who is listed as the “Permittee” in the USACE Permit.13 The
USACE Permit describes the project as follows:
Excavate and place fill material to facilitate the construction of a ring
levee system to include lifting a segment of existing earthen levee to 8-
feet, construction of a segment of new earthen levee, and the installation
and maintenance of approximately 6,776-linear feet of bulkhead, four
swing gates, and associated 7.5-foot concrete I-walls, in accordance with
drawings enclosed in nine sheets, undated.14
The USACE Permit lists the project location as “[a]long Bayou Barataria and an
existing earthen levee segment (Latitude: 29.662347, Longitude: -90.110851), in
Lafitte, Louisiana, in Jefferson Parish.”15 More specifically, the drawings attached to
the USACE Permit illustrate that the project is to take place on a ring levee around
the Orange Street Basin in Lafitte, Louisiana (the “Orange Street Basin Ring Levee”
project), thereby encompassing Plaintiffs’ property.16
On May 31, 2023, LAILD passed Resolution No. 447 (“Resolution No. 447”),
which provides in pertinent part:
WHEREAS, the Lafitte Area Independent Levee District has
determined that certain lands situated in the Parish of Jefferson, are
required for the construction of the Lower Lafitte Tidal Projection
Project, Jefferson Parish, Louisiana, as shown on Map attached and
marked Exhibit “A”; and,
WHEREAS, the Lafitte Area Independent Levee District has the
responsibility for providing all lands determined by the Lafitte Area
Independent Levee District to be required for the construction of the
Lower Lafitte Tidal Projection Project; and,
WHEREAS, the Lafitte Area Independent Levee District, pursuant to
delegation and grant of authority by the Louisiana Coastal Protection
13 R. Doc. 47-5.
14 Id. at p. 1.
15 Id.
16 Id. at pp. 11–19.
and Restoration Authority, has the responsibility of acquisition of such
lands;
NOW THEREFORE, BE IT RESOLVED by the Board of
Commissioners of the Lafitte Area Independent Levee District, in legal
session assembled, that:
1. That portion of the lands situated in the Parish
of Jefferson on the Map attached as Exhibit "A", said
lands depicted in shades of blue (permanent
servitude) on the map sheet attached hereto as
Exhibit “A” consisting of one (1) page and made a part
hereof, be and the same are hereby appropriated in
permanent servitude (depicted in shades of blue) all
in accordance with the provisions of the constitution
and laws of the State of Louisiana.
2. The acquisition of said lands shall be in the
name of the Lafitte Area Independent Levee District.
. . . .
BE IT FURTHER RESOLVED, that a certified copy of this resolution
shall be furnished to each known property owner of record affected
thereby, by certified mail, return receipt requested.17
“Exhibit A” to the USACE Permit outlines the location parameters subject to
Resolution 447, which encompass Plaintiffs’ property.18 LAILD, on June 1, 2023, sent
Plaintiffs a copy of Resolution 447, informing Plaintiffs that a “contractor will be on
sight in the coming weeks.”19 Construction, including the staging of heavy equipment
and partial land clearing, on the Orange Street Basin Ring Levee commenced on or
about August 9, 2023.20
17 R. Doc. 47-6 at p. 2.
18 See id. at p. 3.
19 Id. at p. 1.
20 R. Doc. 47-9. In a previous Order and Reasons denying LAILD’s Motion to Dismiss Complaint under
Fed. R. Civ. P. 12(b)(1), the Court, in providing the factual and procedural background of the above-
captioned matter, stated that “[i]n October 2023, LAILD, without providing any formal notice,
resolution, or initiating any expropriation proceedings, entered Plaintiffs’ land and began excavating
On October 25, 2024, Plaintiffs filed suit in this Court asserting three claims
against LAILD.21 First, Plaintiffs assert a 42 U.S.C. § 1983 claim against LAILD for
failure to pay just compensation for taking of property pursuant to the Fifth and
Fourteenth Amendments of the United States Constitution and Art. I, § 4 of the
Louisiana Constitution (Plaintiffs’ “Takings” claim).22 Second, Plaintiffs assert a
violation of the Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution (Plaintiffs’ “Equal Protection” claim).23 Third, Plaintiffs seek a
declaratory judgment based on their Takings and Equal Protection claims.24
According to Plaintiffs, LAILD’s activities on Plaintiffs’ land, as a part of the
Orange Street Basin Ring Levee project, included:
[P]hysical entry onto and permanent occupation of portions of Plaintiffs’
privately owned land, including construction of the floodwall on
Plaintiffs’ property line;
and moving rocks, dirt, and soil as a part of larger levee protection project.” R. Doc. 63 at pp. 1–2. In
its Order and Reasons on LAILD’s Rule 12(b)(1) Motion, the Court only could properly consider “(1)
the complaint alone; (2) the complaint and the undisputed facts in the record; or (3) the complaint, the
undisputed facts in the record, and the court’s own resolution of disputed facts.” Id. at pp. 4–5. As of
the date of that Order and Reasons, the parties had not provided any information regarding Resolution
447. See R. Docs. 1, 17, 18, and 21. As of the date of this Order and Reasons, LAILD has listed that it
passed Resolution 447 as an uncontested material fact in support of the instant Motion, and Plaintiffs
have not provided otherwise. See R. Docs. 47, 56, and 58. The Court therefore accepts such fact as true.
21 R. Doc. 1 at pp. 11–12.
22 Id. at p. 6.
23 Id. at p. 9.
24 Id. at pp. 10–11. Specifically, Plaintiffs contend that they “are entitled to a declaratory judgment
that: (a) the Levee Board's conduct has deprived Plaintiffs of their rights, privileges, and immunities
secured by the Constitution of the United States, 28 U.S.C. § 1983, et seq. and the Louisiana
Constitution; (b) the Levee Board has no existing rights, including but not limited to preexisting,
historical or constitutional, or any right-of-way, servitude and/or easement in the portions of the
Property taken; (c) the Levee Board has no right of appropriation under La. Civil Code Article 665,
since the levee constructed by the Levee Board is not a hurricane protection Levee, the U.S. Army
Corps of Engineers has not approved an alignment related to the property of the Rogers and/or C&C,
and the Levee Board did not undertake proper appropriation proceedings; (d) the Levee Board cannot
enter, take, use or destroy the property of the Rogers and/or C&C absent payment of just compensation
to the full extent of Plaintiffs' loss; and, (e) the Levee Board's activities constitute a physical taking,
taking per se and inverse condemnation.” Id. at pp. 10–11.
[U]se of Plaintiffs’ land for construction staging and access;
[I]nstallation of the floodwall along an alignment that was physically
located on Plaintiffs’ land, followed by removal of installed sheet piles
and relocation of the alignment onto the edge of Plaintiffs’ land—each
requiring additional occupation and disturbance of Plaintiffs’
property[.]25
Plaintiffs allege the following impacts on their property resulting from LAILD’s
activities in conjunction with the Orange Street Basin Ring Levee project:
[O]bservable signs of foundation or structural disturbance that first
appeared after construction began, and intensified after the sheet-pile
alignment was moved and piledriving/ vibration work occurred on and
near to Plaintiffs’ land and improvements;
[E]limination or severe restriction of Plaintiffs’ access to the water,
docks, and portions of their property, including through the placement
of the wall and the absence of a gate where the wall crosses Plaintiffs’
land;
[L]oss of direct waterfront and dock access caused by the levee wall and
the absence of any gate across Plaintiffs’ property, with no public gate
and no reasonably available gate anywhere nearby that would allow
Plaintiffs to reach the water from their land;
[D]irect physical damage to Plaintiffs’ structures, improvements, and
utilities resulting from pile driving and construction activity both on and
off Plaintiffs’ property, including but not limited to damage to a
plumbing line serving the property;
[A] permanent diminution in the fair market value of Plaintiffs’ property
as a result of the physical occupation, loss of access, construction-related
damage, and impairment of the property’s highest and best use; and
[F]ailure to tender or pay just compensation for the taking or damaging
of Plaintiffs’ property.26
25 R. Doc. 56 at p. 3 (citing R. Doc. 1).
26 Id. at pp. 3–4 (citing R. Doc. 1).
LAILD filed the instant Motion to Dismiss for Lack of Jurisdiction under 42
U.S.C. § 1983 and Motion for Summary Judgment on January 5, 2026.27
A. LAILD’s Motion to Dismiss
LAILD claims that this Court lacks subject matter jurisdiction over Plaintiffs’
Takings claim under the Fifth and Fourteenth Amendments of the U.S.
Constitution.28 LAILD asserts that its activities in conjunction with the Orange
Street Basin Ring Levee project did not deprive Plaintiffs of a right secured by the
United States Constitution or any federal law.29 According to LAILD, the United
States Constitution protects rather than creates property interests, and thus
Louisiana law must recognize Plaintiffs’ property interests as actionable under the
Fifth Amendment to the U.S. Constitution if Plaintiffs are to have a claim under the
Fifth Amendment.30
LAILD argues that Louisiana law does not and submits that the record
evidence “clearly establishes that LAILD possessed the right to build the flood wall
under the [Louisiana Coastal Protection and Restoration Authority] and with the
approval of the alignment by the USACE in accordance with Louisiana law, [and]
that there was no ‘invasion’ or violation of any land rights of Plaintiffs.”31 Thus,
LAILD contends that “[e]ven if Plaintiffs’ alleged damages are found to be true, their
remedy lies solely in [s]tate [c]ourt as there are no federal rights, constitutional or
27 R. Doc. 47.
28 Id.
29 R. Doc. 47-1 at pp. 4–5.
30 Id. at p. 8.
31 Id. at p. 6.
otherwise, when the alleged damages are based upon merely negligence or lack of
care in the construction process.”32
Plaintiffs have filed an Opposition and contend that this Court does have
subject matter jurisdiction over their claims under the Fifth and Fourteenth
Amendments because such claims “are properly before this Court pursuant to 42
U.S.C. § 1983.”33 In support, Plaintiffs invoke the U.S. Supreme Court’s decision in
Knick v. Township of Scott, where the U.S. Supreme Court held that “‘[a] property
owner has an actionable Fifth Amendment takings claim when the government takes
his property without paying for it . . . and therefore may bring his claim in federal
court under § 1983 at that time.’”34 Further, Plaintiffs invoke federal subject matter
jurisdiction “on the independent and additional ground that Defendant’s conduct
violates the Equal Protection Clause of the Fourteenth Amendment.”35 Plaintiffs
argue that their “equal protection claim arises directly under the United States
Constitution and therefore supplies an independent federal question sufficient to
establish subject-matter jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983.”36
LAILD has filed a Reply.37 Addressing its Motion to Dismiss, LAILD advises
that:
While Knick very expressly overruled its own precedent that state law
claims must be exhausted before proceeding in federal court, Knick did
not address, alter, change or overrule the longstanding precedent that
the Fifth Amendment “protects rather than creates property interests”
32 Id.
33 R. Doc. 56 at p. 1.
34 Id. at p. 7 (quoting Knick v. Township of Scott, 588 U.S. 180, 185 (2019)).
35 Id. at p. 12.
36 Id.
37 R. Doc. 58.
and to determine whether a property interest exists that triggers the
Fifth Amendment, the Court must look to “existing rules or
understandings that stem from an independent source such as state
law.” Knick simply changed the venue in which a plaintiff may assert a
Fifth Amendment claim if there is a property interest that the Fifth
Amendment protects. It did not strip the Court of the responsibility of
determining whether a property interest exists to give rise to a Fifth
Amendment claim.38
Accordingly, LAILD reiterates that Louisiana law holds that an appropriation of a
levee servitude under Louisiana Civil Code art. 665 (“Art. 665”) is not actionable
under the Fifth Amendment to the U.S. Constitution.39 As further explained by
LAILD:
Plaintiffs [sic] assertion that admission of an appropriation occurring
and no payment being made yet equals a de facto constitutional violation
ignores generations of caselaw and the analysis that must be conducted
to determine whether Plaintiffs have a constitutionally protected
property interest. Plaintiffs sidestep this analysis and issue because the
law is clear that under Louisiana Civil Code Article 665 and U.S.
Supreme Court precedent Plaintiffs do not have a claim for a federal
taking because state law has already imposed a legal levee servitude
limiting their property rights – a legal levee servitude that places this
case outside of this Court’s jurisdiction.40
Thus, according to LAILD, its Motion to Dismiss should be granted.41
B. LAILD’s Motion for Summary Judgment
In the alternative that its Motion to Dismiss is denied, LAILD contends that it
is entitled to summary judgment as to both Plaintiffs’ Takings and Equal Protection
claims.42 As to Plaintiffs’ Takings claim, LAILD alleges that Plaintiffs have failed to
38 Id. at pp. 2–3 (emphasis removed).
39 Id.
40 Id.
41 Id.
42 R. Doc. 47-1.
state a claim under § 1983 because “USACE approved the alignment of the Orange
Street Basin Ring Levee consistent with Louisiana Civil Code Article 665, LAILD
passed a Resolution months before any proposed construction began, Plaintiffs were
sent that Resolution and Notice of Start letter, and Plaintiffs had knowledge of the
ring levee being built.”43 Thus, LAILD asserts that did not violate any Louisiana law
and that Plaintiffs are unable to show that LAILD’s conduct deprived them of a
federally protected right.44
Regarding Plaintiffs’ Equal Protection claim, LAILD contends that Plaintiffs
have failed to offer any evidence that LAILD violated the Fourteenth Amendment’s
Equal Protection clause.45 In support, LAILD explains as follows:
Plaintiffs also complain that they did not receive a gate when others did
and that LAILD violated Plaintiffs’ 14th Amendment rights to equal
protection for “favoring” other residents by providing them gates.
Discovery in this matter, however, demonstrates Plaintiffs’ assertion to
be not only inaccurate but patently false. In fact, testimony revealed
that the decision as to whether a resident or business obtained a gate,
with relation to the Orange Street Basin Ring Levee, laid solely with the
CPRA.46 In fact, the evidence shows that LAILD not only did not make
the decision as to which property obtained a gate, but Timothy Kerner,
Jr., on behalf of LAILD advocated for a gate for Plaintiffs – yet that
request was denied – by the CPRA.47
Thus, LAILD submits that they are entitled to summary judgment on both Plaintiffs’
Takings and Equal Protection claims.48
43 Id. at p. 14.
44 Id.
45 Id. at p. 19.
46 CPRA stands for the Coastal Protection and Restoration Authority.
47 R. Doc. 47-1 at p. 19.
48 Id. at p. 20.
Plaintiffs have filed an Opposition.49 Plaintiffs first contend that LAILD’s
Motion for Summary Judgment “fails at the threshold because it rests entirely on
defenses that were never pleaded in its Answer.”50 Nonetheless, as to their Takings
claim, Plaintiffs assert that “[u]nder Knick, the failure to pay just compensation at
the time of a physical taking is itself the constitutional violation. Whether Defendant
ultimately owes compensation, and in what amount, presents fact-intensive merits
questions inappropriate for summary judgment.”51
Pertaining to their Equal Protection claim, Plaintiffs advise that “[e]qual
protection liability does not require that a defendant be the final or sole decision-
maker; it attaches to any state actor who participates in, enforces, implements,
ratifies, or knowingly acquiesces in a discriminatory outcome.”52 Plaintiffs further
submit that:
LAILD is the entity that appropriated Plaintiffs’ land, constructed and
continues to maintain the flood wall, controls access across it, and
exercises authority over Plaintiffs’ property. Whether CPRA
participated in gate placement decisions does not negate LAILD’s
responsibility for operating and enforcing a system that denies Plaintiffs
access while granting it to similarly situated property owners.53
Thus, Plaintiffs assert that summary judgment should be denied as to both their
Takings and Equal Protection claims.54
49 R. Doc. 56
50 Id. at p. 13.
51 Id. at p. 12.
52 Id. at p. 16.
53 Id.
54 Id.
In Reply, LAILD argues that Plaintiffs “seem to rest their opposition on the
premise that this is an appropriation and no compensation has yet been made – so
therefore, they claim victory.”55 LAILD asserts that Plaintiffs’ position is problematic,
as “the law is clearly contrary to Plaintiffs’ assertions in that Louisiana law secures
the right of appropriation as the right to act first and talk later . . . .”56 Further,
addressing Plaintiffs’ Equal Protection claim, LAILD contends that “the evidence is
uncontroverted that CPRA made the decisions about who obtained a gate, and LAILD
was neither the moving force behind the decision nor caused any alleged deprivation
of Plaintiffs rights.”57 Thus, LAILD submits that it was not responsible for any
discriminatory conduct imposed on Plaintiffs, and thus its Motion for Summary
Judgment should be granted.58
II. LEGAL STANDARD
A. Rule 12(b)(1) Motion to Dismiss
A motion to dismiss filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure allows a party to challenge the subject matter jurisdiction of the district
court to hear a case.59 A case is properly dismissed pursuant to Rule 12(b)(1) “for lack
of subject-matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case.”60 In considering a challenge to subject matter
jurisdiction under Rule 12(b)(1), “the district court is ‘free to weigh the evidence and
55 R. Doc. 58 at p. 6.
56 Id. at p. 7 (citation modified).
57 Id. at p. 8.
58 Id.
59 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
60 Krim v. Pcorder.Com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citing Home Builders Ass'n Of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
resolve factual disputes in order to satisfy itself that it has the power to hear the
case.’”61 Thus, a motion to dismiss for lack of jurisdiction may be decided by the Court
based on: (1) the complaint alone; (2) the complaint and the undisputed facts in the
record; or (3) the complaint, the undisputed facts in the record, and the court’s own
resolution of disputed facts.62 The party asserting jurisdiction carries the burden of
proof when facing a Rule 12(b)(1) motion to dismiss.63 A motion to dismiss under
12(b)(1) should only be granted “if it appears certain that the plaintiff cannot prove
any set of facts in support of his claim that would entitle plaintiff to relief.”64 When a
party seeks dismissal for lack of jurisdiction and, alternatively, a motion for summary
judgment, the Court considers the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.65
B. Rule 56 Motion for Summary Judgment
Summary judgment is appropriate under Federal Rule of Civil Procedure 56
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”66 A dispute is “genuine” if it is
“real and substantial, as opposed to merely formal, pretended, or a sham.”67 Further,
a fact is “material” if it “might affect the outcome of the suit under the governing
61 Krim, 402 F.3d at 494 (quoting Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
62 Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. Tci/Us W. Commc’ns Inc.,
117 F.3d 900, 904 (5th Cir. 1997)) (internal quotation marks omitted).
63 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (citing Ramming, 281
F.3d at 161).
64 Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).
65 See id.
66 FED. R. CIV. P. 56(A); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
67 Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell,
149 F.2d 335, 337 (5th Cir. 1945)).
law.”68 When assessing whether a genuine dispute regarding any material fact
exists, the Court considers “all of the evidence in the record but refrain[s] from
making credibility determinations or weighing the evidence.”69 While all reasonable
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions, or “only
a scintilla of evidence.”70 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.71
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”72 The
non-moving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact or by
“showing that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.”73 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.74 The burden then shifts to the nonmoving party who must go beyond
68 Anderson, 477 U.S. at 248.
69 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
(citations omitted).
70 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotations
omitted).
71 Id. at 399 (citing Anderson, 477 U.S. at 248).
72 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
73 Id. at 1265.
74 See Celotex, 477 U.S. at 322–23.
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”75
III. ANALYSIS
LAILD asserts that this Court lacks subject matter jurisdiction over Plaintiffs’
Takings claim.76 Alternatively, LAILD asserts that it is entitled to summary
judgment over both Plaintiffs’ Takings and Equal Protection claims.77 The Court
addresses the jurisdictional question first. For the reasons set forth below, the Court
finds that it lacks subject matter jurisdiction over Plaintiffs’ Takings claim and
further finds that LAILD is entitled to summary judgment on Plaintiffs’ Equal
Protection claim.78
A. The Court lacks subject matter jurisdiction over Plaintiffs’ Takings
claim.
In order to determine whether the Court has subject matter jurisdiction over
Plaintiffs’ Takings claim, the Court must first address: (1) whether Louisiana law
mandates Fifth Amendment compensation for appropriations of levee servitudes; (2)
whether a levee servitude exists on Plaintiffs’ property under Art. 665; and (3)
75 Id. at 324 (quoting FED. R. CIV. P. 56(E)).
76 R. Doc. 47.
77 Id.
78 The Court notes that if it were to first address Plaintiffs’ Equal Protection claim, it would decline to
exercise supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiffs’ state law Takings claim. A
district court may decline to exercise supplemental jurisdiction over a state law claim under subsection
(a) as defined above if “(1) the claim raises a novel or complex issue of State law, (2) the claim
substantially predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4)
in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C.
§ 1367(c). It is pursuant to § 1367(c)(3) that the Court would decline to exercise supplemental
jurisdiction.
whether LAILD effectuated an appropriation of a levee servitude on Plaintiffs’
property. The Court takes each in turn.
1. Louisiana law does not mandate Fifth Amendment compensation for
appropriations of levee servitudes.
It is undisputed that Plaintiffs have a protectable property interest in their
land.79 Instead, the issue is whether such property interest gives rise to a claim under
the Fifth Amendment of the U.S. Constitution, made applicable to states through the
Fourteenth Amendment of the U.S. Constitution. The Court finds that it does not.
“A property owner may bring a takings claim under § 1983 upon the taking of
his property without just compensation by a local government.”80 However, as the
Supreme Court has “said many times, § 1983 ‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’”81 Similarly, “[t]he Takings Clause protects property interests but does
not create them. Instead, ‘the existence of a property interest is determined by
reference to existing rules or understandings that stem from an independent source
such as state law.’”82 Thus, the Court turns to Louisiana law to determine whether
Plaintiffs have a protectable property interest giving rise to Fifth Amendment
compensation. If Louisiana law provides a property interest giving rise to Fifth
79 See R. Docs. 47, 56, and 58.
80 Knick v. Township of Scott, 588 U.S. at 206.
81 Graham v. Connor, 490 U.S. 386, 393–94 (1989)(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)).
82 Hignell-Stark v. City of New Orleans, 46 F.4th 317, 322 (5th Cir. 2022)(quoting Phillips v. Wash.
Legal Found., 524 U.S. 156, 164 (1998)).
Amendment compensation, then § 1983 is the appropriate procedural vehicle in
which Plaintiffs bring their Takings claim in this Court.83
Throughout the long-winding history of the Art. 665 Louisiana levee servitude,
as discussed infra Part III.A.2., courts have continuously held that the Fifth
Amendment of the U.S. Constitution does not mandate compensation for levee
servitude appropriations.84 In General Box Co. v. United States, the U.S. Supreme
Court held that an appropriation of a levee servitude—coincidentally, a Louisiana
levee servitude—did not effectuate a taking under the Fifth Amendment of the U.S.
Constitution.85 Specifically, the U.S. Supreme Court held that:
The petitioner sought compensation for the destruction of the trees
based upon a claim that the ‘destruction of said timber was (a) taking .
. . within the meaning of the Fifth Amendment to the Federal
Constitution.’ But this property was not taken by the United States in
the exercise of its power of eminent domain. In effect, the timber was
‘owned’ by Louisiana for levee purposes, and the United States
succeeded to that ‘ownership’ by ‘conveyance.’ Louisiana furnished its
batture as required by the law of both the United States and Louisiana
for use in protecting the property in the State from floods.86
Similarly, in DeSambourg v. Board of Commissioners, the Louisiana Supreme Court
explained that:
The constitutional guarantee that 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, does not apply to the taking or appropriation of property
pursuant to the levee servitude. This “levee servitude” exception does
83 See DeVillier v. Texas, 601 U.S. 285, 291 (2024)(“Constitutional rights do not typically come with a
built-in cause of action to allow for private enforcement in courts. Instead, constitutional rights are
generally invoked defensively in cases arising under other sources of law, or asserted offensively
pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U.S.C. § 1983.”).
84 See South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), p. 16, 217 So. 3d 298, 309
(gathering authority).
85 General Box Co. v. United States, 351 U.S. 159, 166–67 (1956).
86 Id. at 167.
not offend the Fifth and Fourteenth Amendments to the United States
Constitution when the servitude is administered impartially since title
to riparian lands have been burdened with the legal servitude for levee
and road use from the time those lands were separated from the public
domain.87
Most recently, the Louisiana Supreme Court in South Lafourche Levee District v.
Jarreau noted that “[a]lthough the Louisiana Constitution and state statutes require
gratuitous compensation for levee servitude appropriations, courts have maintained
that the Fifth Amendment does not mandate compensation.”88
Indeed, this Court agrees with the U.S. Supreme Court, Louisiana Supreme
Court, and other courts that when a levee board exercises its levee servitude via
appropriation, “there is no ‘taking,’ within the meaning of the Fifth Amendment of
the Constitution of the United States . . . .”89 Accordingly, if LAILD has effectuated
an appropriation of a levee servitude under Art. 665, then the Court lacks subject
matter jurisdiction. The Court undertakes such analysis below to determine if LAILD
effectuated appropriate of a levee servitude.
2. A levee servitude under Art. 665 exists on Plaintiffs’ property.
Louisiana Civil Code art. 659 provides that “[l]egal servitudes are limitations
on ownership established by law for the benefit of the general public or for the benefit
of particular persons.”90 A levee servitude is one type of legal servitude, and the levee
87 DeSambourg v. Board of Commissioners, 621 So.2d 602, 606 (La. 1993)(citation modified).
88 South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), p. 16, 217 So. 3d at 309.
89 Vela v. Plaquemines Parish Government, 97-2610 (La. App. 4 Cir. 3/10/99) c/w 97-2611 (La. App. 4
Cir. 3/10/99), p. 3, 729 So.2d 178, 181.
90 LA. CIV. CODE art. 659 (2025).
servitude has been in existence prior to Louisiana’s admission into the Union.91 By
way of background, the Louisiana Supreme Court has provided the following
historical context:
Prior to the Louisiana Purchase, the sovereign governments of France
and Spain included in their land grants both reservations of public
servitudes over riparian land and onerous levee obligations requiring
such owners to build levees and keep them in repair at their own
expense under penalty of forfeiture. Under this regime, the riparian
landowner bore the burden and expense of protecting all people and
property from flooding. The imposition of this obligation on private
parties persisted even after the Louisiana Purchase. It was not until
the mid–19th century that the practice changed due to the need for an
efficient and cohesive state-wide plan for flood protection. The obligation
to build and maintain levees was then shifted from the private
landowner to the state government. The first levee district was formed
in 1852, and since 1878, the construction, maintenance and supervision
of the levee system has been a function of the government.
Despite the shift in responsibility, riparian land remained burdened by
a levee servitude. When the state assumed responsibility for levees, no
right of action for compensation existed for lands appropriated pursuant
to the levee servitude. Recognizing the state's existing right, the United
States Supreme Court in Eldridge noted “the riparian owner enjoys his
property sub modo, i.e., subject to the right of the public to reserve space
enough for levees, public roads and the like” and “never acquires
complete dominion.”
In 1898, the Louisiana legislature, for the first time, provided
compensation to riparian landowners whose property was appropriated
under the levee servitude. However, the effect of this constitutional
provision was limited to the jurisdiction of the Orleans Levee District
and specifically exempted batture. The Louisiana Constitution of
1921 provided compensation for the first time on a statewide basis to
property owners whose lands, excluding batture, and improvements
were used or destroyed for levee or levee drainage purposes. This
provision entitled riparian landowners to receive up to “the assessed
91 See South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), p. 15, 217 So. 3d at 309 (“The
Louisiana Constitution of 1974 reaffirmed the levee servitude as a constitutional, legal servitude.”);
see also LA. CIV. CODE art. 665 (2026).
value of the preceding year” of the land taken and, for many years, was
considered a “mere gratuity.”
The Louisiana Constitution of 1974 reaffirmed the levee servitude as a
constitutional, legal servitude. The new Constitution altered the
measure of the riparian landowner's compensation from the property's
“assessed value of the preceding year” to providing that for “lands and
improvements . . . actually used or destroyed for levees or levee drainage
purposes [compensation] shall be paid as provided by
law.” Implementing the 1974 constitutional provision, the legislature
increased compensation from “assessed value” to “fair market value to
the full extent of the loss” for the actual taking of improvements and all
lands, excluding batture.92
In 2006, in the aftermath of Hurricanes Katrina and Rita, the Louisiana
legislature amended art. VI, § 42 of the Louisiana Constitution to, among other
things, “limit compensation for the appropriation of property for levee purposes to the
amount required by the Fifth Amendment[.]”93 The Supreme Court explained the
rationale of the 2006 amendments:
Following the devastation caused by Hurricanes Katrina and Rita to
Louisiana citizens and property, the legislature wanted to take all
measures necessary to repair and restore the Louisiana coast, and to
protect the State and its citizens from future hurricane and flood events.
The ability of the state and local levee districts to protect life and
property is directly impacted by its right-of-way acquisition costs, a
major component of a hurricane and flood protection project's overall
cost. Given the “full extent of loss” provisions of the 1974 Constitution,
the state and levee districts were faced with daunting expropriation or
appropriation costs. The legislature had to take steps to contain those
costs for Louisiana to qualify for federal funds for hurricane protection
and flood control projects. While the legislature wanted to significantly
reduce acquisition costs, it also sought to protect an owner's right to
compensation for the taking, loss or damage to, his property for use in
hurricane protection projects.94
92 See South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), pp. 14–16, 217 So. 3d at 308–
09 (citation modified).
93 Id., 2016-0788 (La. 3/31/17), p. 19, 217 So. 3d at 311.
94 Id.
Further attempting to protect the Louisiana coast from flooding events, the Louisiana
legislature amended Art. 665 by passing Act No. 776 of the 2006 Regular Legislative
Session (“Act 776”).95 Prior to Act 776, Art. 665 provided levee servitudes only on
riparian lands, reading as follows:
Servitudes imposed for the public or common utility relate to the space
which is to be left for the public use by the adjacent proprietors on the
shores of navigable rivers and for the making and repairing of levees,
roads, and other public or common works.
All that relates to this kind of servitude is determined by laws or
particular regulations.96
After the passage of Act 776, the levee servitude was extended to non-riparian
property.97 Art. 665 now provides:
Servitudes imposed for the public or common utility relate to the space
which is to be left for the public use by the adjacent proprietors on the
shores of navigable rivers and for the making and repairing of levees,
roads, and other public or common works. Such servitudes also exist on
property necessary for the building of levees and other water control
structures on the alignment approved by the U.S. Army Corps of
Engineers as provided by law, including the repairing of hurricane
protection levees.
All that relates to this kind of servitude is determined by laws or
particular regulations.98
Art. 665, as amended, “provides for the same type of servitude, that was previously
only imposed on riparian property, to now exist on non-riparian property that is
‘necessary for the building of levees and other water control structures’ if that
95 See 2006 La. Acts. 776.
96 See, e.g., LA. CIV. CODE art. 665 (2005).
97 See 2006 La. Acts. 776.
98 LA. CIV. CODE art. 665 (2026)(emphasis added).
property is located in the alignment approved by the Corps.”99 The Louisiana Fourth
Circuit has stated that “[i]t is evident that the plain language of the 2006 amendment
to La. C.C. art. 665 eliminated the requirement that land be riparian in order for a
servitude to be established if, that property is located in the alignment approved by
the Corps.”100
Here, Plaintiffs’ property is not riparian in nature, as such property is not
“fronted on a navigable river when the tract was first separated from the
sovereign[.]”101 Instead, Plaintiffs’ property is non-riparian land that is adjacent to
Bayou Barataria in Lafitte, Louisiana.102 Therefore, in this case, an Art. 665
servitude may exist only if Plaintiffs’ “property [is] necessary for the building of levees
and other water control structures on the alignment approved by the U.S. Army
Corps of Engineers.”103 The Court finds that an Art. 665 servitude exists on Plaintiffs’
property.
On January 30, 2023, the USACE issued the USACE Permit, authorizing
LAILD, as the “Permittee[,]” to construct a ring levee system on Plaintiffs’ land.104
The USACE Permit authorized LAILD to:
Excavate and place fill material to facilitate the construction of a ring
levee system to include lifting a segment of existing earthen levee to 8-
feet, construction of a segment of new earthen levee, and the installation
99 Plaquemines Dirt & Clay Company, L.L.C. v. Plaquemines Parish Government, 2019-0831 (La. App.
4 Cir. 6/3/20), pp. 4–5, 364 So. 3d 274, 277.
100 Id., 2019-0831 (La. App. 4 Cir. 6/3/20), p. 5, 364 So. 3d at 277.
101 Taylor v. Board of Levee Com’rs of Tensas Basin Levee Dist., 332 So. 2d 495, 497 (La. App. 3d Cir.
1976); see Vela, 97-2610 (La.App. 4 Cir. 3/10/99) c/w 97-2611 (La. App. 4 Cir. 3/10/99), p. 3, 729 So. 2d
178, 181 (“Riparian lands, i.e., lands fronting on rivers and streams, have been burdened with a public
servitude for levees ever since the land was first separated from the public domain.”).
102 See R. Docs. 1 and 56-2 at pp. 6–7.
103 LA. CIV. CODE art. 665 (2026).
104 R. Doc. 47-5 at p. 1.
and maintenance of approximately 6,776-linear feet of bulkhead, four
swing gates, and associated 7.5-foot concrete I-walls, in accordance with
drawings enclosed in nine sheets, undated.105
The work was to take place “[a]long Bayou Barataria and an existing earthen levee
segment (Latitude: 29.662347, Longitude: -90.110851), in Lafitte, Louisiana, in
Jefferson Parish.”106 In Figure 1, attached to the USACE Permit, a topographical
vicinity map outlines the location parameters of the entire Lower Lafitte Orange
Street Basin Ring Levee project.107 The location parameters encompass Plaintiffs’
property located at 5644 Jean Lafitte Blvd., Lafitte, Louisiana and 5662 Jean Lafitte
Blvd., Lafitte, Louisiana.108 Pursuant to the USACE Permit, LAILD passed
Resolution 447 on May 31, 2023.109 Exhibit A attached to Resolution 447 illustrates
that the property subject to Resolution 447 is identical to the location parameters set
forth in the USACE Permit, which both encompass Plaintiffs’ property.110
Accordingly, the Court finds that Plaintiffs’ land is subject to a levee servitude
under Art. 665 because Plaintiffs’ land is “property necessary for the building of
levees and other water control structures on the alignment approved by the U.S.
Army Corps of Engineers[,]”111 as evidenced through the USACE Permit issued to
LAILD.112
105 Id. at p. 1.
106 Id.
107 Id. at p. 11.
108 See id.; R. Doc. 1 at p. 2.
109 R. Doc. 47-6.
110 See R. Docs. 47-5 and 47-6.
111 LA. CIV. CODE art. 665 (2026).
112 See R. Doc. 47-5.
3. LAILD appropriated a levee servitude on Plaintiffs’ property through
Resolution 447.
The Court, having determined that a levee servitude under Art. 665 exists on
Plaintiffs’ property, next addresses whether LAILD effectuated an appropriation of
such levee servitude on Plaintiff’s property. The Court finds that LAILD has done as
much.
An appropriation of a levee servitude implicates various constitutional rights
and property rights unique to the State. Article I, § 4 of the Louisiana Constitution
provides, in pertinent part:
(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.
. . . .
(G) Compensation paid for the taking of, or loss or damage to, property
rights for the construction, enlargement, improvement, or modification
of federal or non-federal hurricane protection projects, including
mitigation related thereto, shall not exceed the compensation required
by the Fifth Amendment of the Constitution of the United States of
America. However, this Paragraph shall not apply to compensation paid
for a building or structure that was destroyed or damaged by an event
for which a presidential declaration of major disaster or emergency was
issued, if the taking occurs within three years of such event. The
legislature by law may provide procedures and definitions for the
provisions of this Paragraph. Addressing compensation for property
used or destroyed, Article VI, § 42 of the Louisiana Constitution.113
Article VI, § 42 of the Louisiana Constitution provides as follows:
113 LA. CONST. Art. I, § 4.
(A) Compensation. Notwithstanding any contrary provision of this
constitution, lands and improvements thereon hereafter actually used
or destroyed for levees or levee drainage purposes shall be paid for as
provided by law. With respect to lands and improvements actually used
or destroyed in the construction, enlargement, improvement, or
modification of federal or non-federal hurricane protection projects,
including mitigation related thereto, such payment shall not exceed the
amount of compensation authorized under Article I, Section 4(G) of this
constitution.
. . . .
(B) Appropriation. Nothing in this Section shall prevent the
appropriation of such property before payment.114
Additionally, Louisiana Revised Statute § 38:301 provides, in pertinent part:
C. (1)(a) All lands, exclusive of batture, and improvements hereafter
actually taken, used, damaged, or destroyed for levee or levee drainage
purposes shall be paid for at fair market value to the full extent of the
loss.
(b)(i) The owner shall be given written notice of the appropriating
resolution by the levee board within ten days of the date of its passage.
. . . .
(e) Notwithstanding any other provision to the contrary, the various
levee districts shall also have the authority to appropriate lands and
improvements for temporary servitudes for levee construction purposes.
As to these temporary servitudes, the “fair market value” shall mean
the use value of the lands actually used for the period of time utilized by
the appropriating agency.
(f) It shall be the duty of the appropriating agency to specify and
delineate at the time of the appropriating resolution, whether areas
taken shall be burdened with a permanent levee servitude or a
temporary servitude for levee construction purposes.
(g) “Use” shall be deemed to occur at the time the levee board formally
adopts its resolution specifically describing an area to be utilized for
114 LA. CONST. Art. VI, § 42.
levees and levee drainage purposes through the exercise or acquisition
of a permanent levee servitude or a temporary servitude provided that
actual use of the property commences within two years of the adoption
of the resolution. Notice by certified mail shall be given to the owner
within five days of the adoption of the resolution.115
The Louisiana Supreme Court has held that an “[a]ppropriation, as opposed to
expropriation, is carried out by a resolution of the appropriating authority, without
the need for a judicial proceeding.”116 The Louisiana Supreme Court further noted
that “appropriation involves the taking of a servitude, whereas expropriation may
involve the taking of ownership.”117
On numerous occasions, the Louisiana Supreme Court has determined a levee
board’s passing of a resolution is what constitutes an appropriation. In A.K. Roy, Inc.
v. Board of Commissioners for Pontchartrain Levee District, the Louisiana Supreme
Court held that “[i]n 1948 and 1949, the defendant Levee Board, in pursuant of
Article XVI, Section 8 of the Louisiana Constitution, making it their mandatory duty
to erect a levee along the shores of Lake Pontchartrain and, to that end, authorizing
the Board to float a bond issue for two million dollars, began the appropriation of
lands necessary for the construction of such levee, and by resolution adopted on
March 24, 1949, appropriated all lands . . . .”118
Similarly, in Wynat Development Co. v. Board of Levee Commissioners for
Parish of Orleans, the Louisiana Supreme Court explained that “[i]n the instant case,
115 La. R.S. §§ 38:301(C)(1)(a), (b)(i), (C)(e)–(g).
116 South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), p. 9, 217 So. 3d 298, 305 (citing
Richardson & Bass v. Board of Levee Commissioners, 226 La. 761, 77 So. 2d 32 (1954)).
117 Id., 2016-0788 (La. 3/31/17), p. 10, 217 So. 3d at 305.
118 A.K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee Dist., 111 So. 2d 765, 766–67 (La.
1959).
as both parties correctly contend, [Plaintiff’s] land was appropriated by the Levee
Board when it passed the appropriating resolution on July 20, 1983. Thus, the Levee
Board's resolution effected an appropriation of [Plaintiff’s] property for levee
purposes.”119 The Louisiana Supreme Court in Wynat Development Co. further
explained that a “landowner’s right to enforce the obligation, i.e., to file a suit to
determine damages owed, and to obtain a judgment awarding damages, accrues with
the passage of the resolution and not with the occurrence of any term or suspensive
condition.”120 And again, most recently, the Louisiana Supreme Court held that
“[a]ppropriation, as opposed to expropriation, is carried out by a resolution of the
appropriating authority, without the need for a judicial proceeding.”121
Here, applying the above principles, the Court finds that LAILD carried out an
appropriation of a levee servitude under Art. 665 on May 31, 2023 – the date in which
it passed Resolution 447. As explained supra Part III.A.1, “[a]lthough the Louisiana
Constitution and state statutes require gratuitous compensation for levee servitude
appropriations, courts have maintained that the Fifth Amendment does not mandate
compensation.”122 The Court therefore does not have subject matter jurisdiction over
Plaintiffs’ Takings claim.
Notably, in a similar case involving the LAILD, this Court found that the
LAILD engaged in an unconstitutional taking for its levee construction activities on
119 Wynat Development Co. v. Board of Levee Commissioners for Parish of Orleans, 97-2121 (La.
4/14/98), p. 5, 710 So. 2d 783, 785–86 (La. 1998).
120 Id., 97-2121 (La. 4/14/98), p. 15, 710 So. 2d at 791.
121 South Lafourche Levee District V. Jarreau, 2016-0788 (La. 3/31/17), p. 9, 217 So. 3d 298, 305 (Citing
Richardson & Bass V. Board Of Levee Commissioners, 226 La. 761, 77 So.2d 32 (1954)).
122 South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), p. 16, 217 So. 3d at 309.
another landowner’s property also located in Lafitte, Louisiana.123 That case, CMP,
LLC v. Board of Commissioners for the Lafitte Area Independent Levee District,124 is
readily distinguishable.
In the case at bar, LAILD passed Resolution 447 roughly two months prior to
entering Plaintiffs’ property and commencing work on the Orange Street Basin Ring
Levee project.125 In CMP, LLC, LAILD passed Resolution 495 to provide for an
appropriation of a portion of that plaintiff’s land.126 Crucially, in CMP, LLC, LAILD
did not pass Resolution 495 until three months after commencing work on that
plaintiff’s land to raise an existing levee.127
The timing of the resolution is the fundamental distinction. Here, when LAILD
passed Resolution 447 prior to entering Plaintiffs’ property, LAILD invoked its
appropriating authority under Art. 665 “for the building of levees and other water
control structures on the alignment approved by the U.S. Army Corps of
Engineers.”128 Again, the Louisiana Supreme Court has routinely determined that it
is the passing of a resolution that effectuates an appropriation of a levee servitude.129
It is in this vein that a levee board has “the right to act first and talk later[,]”130 which
allows a levee board “to pass a resolution and then occupy the land while discussions
123 See CMP, LLC v. Board of Commissioners for the Lafitte Area Independent Levee District, Civil
Action No. 24-2298, 2026 WL 171813, at *1 (E.D. La. Jan. 22, 2026)(Vitter, J.). The parties are well
aware of the Court’s rulings in that matter as each side is represented by the same counsel.
124 See CMP, LLC, 2026 WL 171813, at *1.
125 See R. Docs. 47-6 and 47-9.
126 CMP, LLC, 2026 WL 171813, at *1.
127 Id.
128 LA. CIV. CODE art. 665.
129 A.K. Roy, Inc., 111 So. 2d at 766–67; Wynat Development Co., 97-2121 (La. 4/14/98), p. 5, 710 So. 2d
at 785.
130 Wynat Development Co., 97-2121 (La. 4/14/98), p. 5, 710 So. 2d at 785.
continue regarding the amount of compensation to be paid for the appropriated
land.”131 The “act first and talk later” axiom does not give a levee board carte blanche
to first occupy property and then past an appropriating resolution, in violation of La.
R.S. § 38:301, without incurring additional liabilities.132
In CMP, LLC, LAILD violated the plain language of La. R.S. § 38:301 when it
occupied that plaintiff’s property and passed Resolution 495 three months after.133
Thus, in that case, there was an approximate three-month period where LAILD
occupied that plaintiff’s land without a resolution. Since the Louisiana Supreme
Court has routinely found that the resolution is what effectuates an appropriation of
a levee servitude, that three-month period in CMP, LLC did not constitute an
appropriation or an expropriation.134 Instead, that period constituted a partial taking
under the theory of inverse condemnation, which allows a property owner to “‘recover
131 CMP, LLC v. Board of Commissioners for the Lafitte Area Independent Levee District, Civil Action
No. 24-2298, 2026 WL 171813, at *5 (E.D. La. Jan. 22, 2026)(Vitter, J.).
132 See LA. CONST. art. VI, § 42. In CMP, LLC, this Court disagreed with the Louisiana Fifth Circuit
of Appeal in Magee v. West Jefferson Levee District, 17-294 (La. App. 5 Cir. 12/13/17), 235 So.3d 1230.
CMP, LLC, 2026 WL 171813, at *5. This Court explained that “insofar as LAILD asserts that the
Louisiana Fifth Circuit Court of Appeal held in Magee v. West Jefferson Levee District that non-
compliance with La. R.S. § 38:301 did not entitle the Magee plaintiffs to additional compensation, the
Court finds such reasoning unpersuasive. Notedly, in Magee, the appropriating agency complied with §
38:301’s resolution and notice requirements that LAILD, here, has failed to do. Again, LAILD neither
passed a resolution nor notified the owner of said resolution until after they had begun to occupy
Plaintiff's property. Case law and the plain text of the statute demonstrate that an appropriation
occurs at the time of the resolution. Without a resolution, no appropriation can occur. Second, LAILD
contends that Magee held that § 38:301 is directive, as opposed to mandatory, and thus no additional
compensation for the plaintiffs was warranted even though the Magee defendant violated the plain
language of the statute. This Court is skeptical of using such methods of statutory interpretation.” Id.
at *5 (emphasis original).
133 CMP, LLC v. Board of Commissioners for the Lafitte Area Independent Levee District, Civil Action
No. 24-2298, 2026 WL 171813, at *4–5 (E.D. La. Jan. 22, 2026)(Vitter, J.).
134 “Appropriation, as opposed to expropriation, is carried out by a resolution of the appropriating
authority, without the need for a judicial proceeding . . . . Furthermore, appropriation involves the
taking of a servitude, whereas expropriation may involve the taking of ownership.” South Lafourche
Levee District, 2016-0788 (La. 3/31/17), pp. 9–10, 217 So. 3d at 305 (citation modified). The parties do
not contend that an expropriation occurred. See R. Docs. 1, 47, 56, and 58.
the value of property which has been taken in fact by the governmental defendant,
even though no formal exercise of the power of eminent domain has been attempted
by the taking agency.’”135 Here, however, no such period exists.
As a final point, Plaintiffs further argue that:
A physical taking without just compensation is not a discretionary act.
It is not insulated by sovereign immunity. And it is not rendered
nonjusticiable by labeling the project “hurricane protection” or by
invoking a purported “servitude,” whether valid or invalid. Louisiana
law provides no license to take private property without paying for it.136
Such argument misses the forest for the trees. In this part of its analysis, the Court’s
ruling is narrow. The Court, having found that a levee servitude exists on Plaintiffs’
property and now finding that LAILD has effectuated an appropriation of such
servitude by passing Resolution 447, determines it lacks subject matter jurisdiction
over Plaintiffs’ Takings claim. This finding does not go further to determine whether
Plaintiffs are entitled to compensation under state law or under some other theory.
LAILD’s Motion to Dismiss under Rule 12(b)(1) is granted.137
135 CMP, LLC, 2026 WL 171813, at *7 (quoting United States v. Clarke, 445 U.S. 253, 257 (1980)
(citation modified)).
136 R. Doc. 56 at p. 5.
137 R. Doc. 47.
B. LAILD is entitled to summary judgment on Plaintiffs’ Equal
Protection claim.138
LAILD argues that it is entitled to summary judgment on Plaintiffs’ Equal
Protection claim, as “the evidence is uncontroverted that CPRA made the decisions
about who obtained a gate, and LAILD was neither the moving force behind the
decision nor caused any alleged deprivation of Plaintiffs rights.”139 Plaintiffs, in turn,
argue that LAILD “cannot insulate itself from constitutional liability by delegating
design authority to another agency and then implementing, enforcing, and benefiting
from the resulting deprivation. LAILD is the entity that appropriated Plaintiffs’ land,
constructed and continues to maintain the flood wall, controls access across it, and
exercises authority over Plaintiffs’ property.”140
As an initial matter, the parties dispute whether LAILD, as a municipality,
can be held liable for a violation of an Equal Protection clause under the Fourteenth
Amendment for the alleged discriminatory conduct.141 The Court finds that dispute
of no moment because, even assuming LAILD could be held liable as the appropriate
138 Insofar as Plaintiffs contend that LAILD waived defenses by failure to pleading such defenses in
its Answer, the Court finds such argument unpersuasive. R. Doc. 56 at p. 13. The Fifth Circuit has
“long recognized that technical failure to comply precisely with Rule 8(c) is not fatal where a party
raises the defense in the trial court in a manner that does not result in unfair surprise . . . . Specifically,
if a defendant raises an affirmative defense at a pragmatically sufficient time, and the plaintiff was
not prejudiced in its ability to respond, the defense is not waived.” Buchanan v. Harris, No. 23-20128,
2024 WL 1927651, at *4 (5th Cir. May 2, 2024)(citation modified). The Court finds that LAILD has
raised such defenses at a pragmatically sufficient time. See, e.g., Vanhoy v. United States, 514 F.3d
447, 450–51 (5th Cir. 2008) (finding that an affirmative defense was not waived when raised for the
first time in pretrial motions three months before trial); see also Lafreniere Park Found. v. Broussard,
221 F.3d 804, 808 (5th Cir. 2000) (finding that an affirmative was not waived when raised for the first
time via summary judgment and plaintiff was not prejudiced in its ability to respond to the issue).
139 R. Doc. 58 at p. 8.
140 R. Doc. 56 at p. 16.
141 See R. Docs. 47, 56, and 58.
actor, Plaintiffs have failed to a raise a genuine issue of material fact as to the merits
of their Equal Protection claim.
“The purpose of the equal protection clause of the Fourteenth Amendment is
to secure every person within the State's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by express terms of a statute or by its
improper execution through duly constituted agents.”142 “[A] violation of equal
protection occurs only when the government treats someone differently than others
similarly situated; if the challenged government action does not appear to classify or
distinguish between two or more relevant persons or groups, then the action—even if
irrational—does not deny them equal protection of the laws.”143 To that end, “an equal
protection claim depends on either identifying a class . . . or showing that the
aggrieved party is a ‘class of one[.]’”144
“In the instant case, [Plaintiffs] do[] not claim that [they] [were] discriminated
against on the basis of [their] membership in any particular class and, therefore, must
rely on the class of one theory.”145 Plaintiffs allege LAILD disparately refused “to
build a floodgate or other access to the dock and facilities from the property”146 of
Plaintiffs and “favored other nearby landowners and/or neighbors by building
142 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(citation modified).
143 Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988)(citing Arceneaux v. Treen, 671 F.2d 128,
137 (5th Cir. 1982)).
144 Gil Ramirez Group, L.L.C. v. Houston Independent School Dist., 786 F.3d 400, 419 (5th Cir.
2015)(quoting Village of Willowbrook, 528 U.S. at 564).
145 Gil Ramirez Group, L.L.C., 786 F.3d at 419.
146 R. Doc. 1 at p. 9.
gates/floodgates for them, providing/leaving waterfront access for them, and by
building the levee wall in the water so as not to destroy the neighbors' property.”147
“A class-of-one equal-protection claim lies ‘where the plaintiff alleges that [it]
has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.’”148 “To show an equal
protection violation in its ‘class of one’ claim, [a plaintiff] must prove that (1) it ‘has
been intentionally treated differently from others similarly situated’ and (2) ‘there is
no rational basis for the difference in treatment.’”149 Plaintiffs have failed to do so.
As to the first element, “‘[t]here is no precise formula to determine whether an
individual is similarly situated to comparators.’”150 Instead, courts consider “‘the full
variety of factors that an objectively reasonable . . . decisionmaker would have found
relevant in making the challenged decision.’”151 In Brown v. Board of Commissioners
Fifth Louisiana Levee District, the Western District of Louisiana noted that “cases
involving land-use permits and regulation show that an alleged comparator's lot must
be similar in size, scope, and use. If a comparator receives a permit or license and the
plaintiff does not, the applications and documentation must be extremely similar.”152
147 Id. at p. 10.
148 Integrity Collision Center v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016)(quoting Village of
Willowbrook, 528 U.S. at 564).
149 Hackbelt 27 Partners, L.P. v. City of Coppell, 661 Fed. Appx. 843, 848 (5th Cir. 2016)(quoting Village
of Willowbrook, 528 U.S. at 564).
150 Hackbelt 27 Partners, L.P., 661 Fed. Appx. at 848 (quoting Lindquist v. City of Pasadena, Tex., 669
F.3d 225, 233 (5th Cir. 2012)).
151 Id. (quoting Lindquist, 669 F.3d at 234).
152 Brown v. Board of Commissioners Fifth Louisiana Levee District, Civil Action 3:12-CV-00289, 2017
WL 3911001, at *7 (W.D. La. Aug. 1, 2017), report and recommendation adopted, Civil Action No. 12-
289, 2017 WL 3908916, at *1 (W.D. La. Sept. 6, 2017).
The court in Brown, applying the above rationale in the levee context, provided as
follows:
Brown alleges that other landowners along the levee have been treated
differently, and submitted aerial pictures of homes with adjacent
buildings along the levee. Apparently Brown is contending those
landowners have placed buildings on the Levee District's right-of-way.
However, Brown has not shown precisely where those structures are
located in relation to the right-of-way and the Bondurant fill, has not
provided copies of their applications and documentation (or designated
which buildings were built without permits), and has not shown those
lots are similar in size and use to his. More specifically, Brown has not
alleged or shown that he was similarly situated to any other subdivision
developer along the levee and that the Levee District undertook
different permitting actions for those developers.153
Accordingly, that court granted the Levee District’s motion for summary judgment.154
On appeal, the Fifth Circuit affirmed the Western District, noting that “Brown has
not demonstrated that he was situated similarly to these landowners or that the other
landowners’ property is similar to his.”155 The Fifth Circuit further noted that “‘mere
conclusory allegations are not competent summary judgment evidence, and such
allegations are insufficient, therefore, to defeat a motion for summary judgment.’
Accordingly, Brown has failed to carry his burden.”156
Here, Plaintiffs have failed to offer any evidence of how they are similarly
situated to their adjacent landowners except for stating that such landowners are
“similarly situated[.]”157 One of the Plaintiffs, Christine Rogers, provided by affidavit
153 Id. (internal citations omitted).
154 Id. at *8, report and recommendation adopted, Civil Action No. 12-289, 2017 WL 3908916, at *1
(W.D. La. Sept. 6, 2017).
155 Brown v. Board of Commissioners Fifth Louisiana Levee District, No. 17-30808, 726 Fed. Appx. 227,
228 (5th Cir. June 6, 2016).
156 Id. (quoting Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996)(internal citations omitted)).
157 R. Doc. 56 at p. 16; see R. Doc. 1.
that “[t]he lack of a gate has disproportionately and uniquely burdened our [p]roperty
compared to surrounding parcels that retained controlled access” and that “[o]ur
[p]roperty now bears a disproportionate burden compared to surrounding parcels
because levee structures, walls, and access restrictions were placed directly across
our land.”158 Indeed, similar to the Plaintiff in Brown, Plaintiffs have submitted
pictures of their property but have not explained how the adjacent landowners are
similarly situated in size or in use of their property.159 In fact, the record suggests
that some adjacent landowners may have been using their land for different uses
compared to Plaintiffs.160 Put simply, the record is silent as to the size, scope, and use
of Plaintiffs’ property compared to that of the alleged similarly situated
landowners.161 Accordingly, the Court finds that Plaintiffs have failed to meet their
burden as to the first element.
Even if Plaintiffs’ Complaint contained allegations sufficient to satisfy the first
element, the Court finds that Plaintiffs have failed to provide any evidence to show
that there was no rational basis for LAILD’s alleged discriminatory activity. A
rational basis review in an equal protection analysis “‘is not a license for courts to
judge the wisdom, fairness, or logic of legislative choices.’”162 Nor does it authorize
“the judiciary to sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations made in areas that neither affect fundamental
158 R. Doc. 56-2 at p. 4.
159 See R. Doc. 56-2 at pp. 6–7.
160 See R. Doc. 47-8 at pp. 8–10.
161 See, e.g., Hackbelt 27 Partners, L.P., 661 Fed. Appx. at 848 (“The stark differences in size and
proposed use make plain that Hackbelt and The Avenue were not similarly situated.”).
162 Heller v. Doe by Doe, 509 U.S. 312, 319 (1993)(quoting F.C.C. v. Beach Communications, Inc., 508
U.S. 307, 313 (1993)).
rights nor proceed along suspect lines.”163 Thus, “a classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong
presumption of validity.”164 Indeed, “a classification ‘must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification[,]’”165 and “the State need not articulate
its reasoning at the moment a particular decision is made.”166
As established by the Fifth Circuit, Plaintiffs, as the challenging parties, have
the burden “to negative ‘any reasonably conceivable state of facts that could provide
a rational basis.’”167 Plaintiffs have failed to do so. Nowhere in their Complaint or
briefing have Plaintiffs attempted to negate conceivable circumstances that could
provide a rational basis for LAILD’s refusal to build a floodgate, provide waterfront
access, and refusal to build a levee in the water.168 Instead, Plaintiffs merely allege
that they have suffered from “disparity of treatment[.]”169
It is conceivable such refusals were due to costs or due to the size, elevation, or
location of Plaintiffs’ property. Additionally, the record suggests that the refusal to
provide Plaintiffs a floodgate was due to the potential costs associated with installing
the floodgate.170 This is fatal to Plaintiffs’ Equal Protection claim, as the Fifth Circuit
has held that “[a]s long as there is a conceivable rational basis for the official action,
163 Id. (citation modified).
164 Id.
165 Id. at 320 (quoting Beach Communications, Inc., 508 U.S. at 313).
166 Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 367 (2001).
167 Integrity Collision Center, 837 F.3d at 589 (quoting Board of Trustees of University of Alabama, 531
U.S. at 367).
168 See R. Docs. 1, 47, 56, and 58.
169 R. Doc. 1 at p. 10.
170 See R. Doc. 47-8 at p. 14.
it is immaterial that it was not the or a primary factor in reaching a decision or that
it was not actually relied upon by the decisionmakers or that some other nonsuspect
irrational factors may have been considered.”171 Furthermore, the State, through its
“power to control and regulate a levee district in in the performance of its function of
providing flood protection,” has a “duty to protect citizens from damage by flood.”172
Such duty is “inherent within [the State’s] police power[]” and helps further a
legitimate government interest.173
Because the Court finds that Plaintiffs have failed to proffer evidence raising
a genuine issue of material fact with respect to whether LAILD intentionally treated
Plaintiffs differently from those similarly situated, the Court could grant LAILD’s
Motion for Summary Judgment on that sole basis. Nonetheless, the Court still finds
that Plaintiffs have failed to negate all conceivable rational bases of LAILD’s alleged
discriminatory conduct and therefore determines that LAILD is entitled to summary
judgment as to Plaintiffs’ Equal Protection claim.
IV. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that LAILD’s Motion to Dismiss for Lack of
Jurisdiction under 42 U.S.C. § 1983 and Motion for Summary Judgment174 is
GRANTED.
171 Reid v. Rolling Fork Public Utility Dist., 854 F.2d 751, 754 (5th Cir. 1988)(emphasis original).
172 Board of Com’rs of Orleans Levee Dist. v. Department of Natural Resources, 496 So. 2d 281, 289 (La.
1986).
173 Id.; see Unique Properties LLC v. Terrebonne Parish Consolidated Government, 150 Fed. Appx. 313,
314 (5th Cir. 2005)(“Land use classifications have a rational basis if they are rationally related to a
legitimate government interest.” (internal quotation marks omitted)).
174 R. Doc. 47.
IT IS FURTHER ORDERED that Plaintiffs’ Takings claim is DISMISSED
WITHOUT PREJUDICE. 17
IT IS FURTHER ORDERED that LAILD’s Motion to Exclude Plaintiffs’
Supplemental Expert Report, Expert Opinions Expressed Therein, the Attachments
Thereto and Proposed Expert and for Sanctions!”* is DENIED AS MOOT.
IT IS FURTHER ORDERED that LAILD’s Motion to Exclude Plaintiffs’
Expert, Michael Gurtler, or alternatively to Limit his Testimony!77 is DENIED AS
MOOT.
IT IS FURTHER ORDERED that LAILD’s Omnibus Motion in Limine to
Exclude Plaintiffs’ Documentary Evidence and Testimony Regarding Same and for
Sanctions due to Spoliation of Evidence!’8 is DENIED AS MOOT.
New Orleans, Louisiana, August 4, 2026.
Vctte
WENDY B. VITTER
United States District Judge
175 See In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010)(“[I]f the district
court had held that it lacked subject matter jurisdiction, it should have entered dismissal without
prejudice to allow the Claimants to retry their claims in a court with jurisdiction to hear them.”).
176 R, Doce. 35.
177 R, Doce. 49.
178 R, Doc. 59.
38