Opposition Brief — Heirs of Burat v. Board of Levee Commissioners

Supreme Court, U

WiBRARY.

IN THE

Supreme Court of the United S!

OCTOBER TERM, 1974

NO. 74-417

HEIRS OF HUBERT BURAT (BURAS)

Petitioners

versus

BOARD OF LEVZE COMMISSIONERS OF THE OR-

LEANS LEVEE DISTRICT OF THE STATE OF

LOUISIANA, ET AL

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF IN OF POSITION

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO. 74-417

HEIRS OF HUBERT BURAT ‘(BURAS):

Petitioners

versus

BOARD OF LEVEE COMMISSIONERS OF THE OR-

LEANS LEVEE DISTRICT OF THE STATE OF

LOUISIANA, ET AL

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

QUESTION PRESENTED

Whether the District Court has jurisdiction under 28

U. S. Code $1331 of this non-diversity action asserting

title to certain land in Plaquemines Parish, Louisiana

in the possession of the respondents.

STATEMENT OF THE CASE

As in the Courts below, petitioners’ “Statement of the

Case” bears little resemblance to the complaint (See

Appendix). Nevertheless, the District Court and the

2

Court of Appeals generously considered every contention

made by the petitioners in oral arguments ‘and briefs,

though .in large measure based on fresh folklore, in

search of a possible ground for federal question juris-

diction under 28 U. S. Code £1331. None was found.

The complaint was filed by the “Heirs of Hubert Burat

(Buras)”, not otherwise named, as a class action for

decla‘atory judgment, money damages and injunctive

relief. The complaint seeks to establish title based upon

a confirmation by Act of Congress and subsequent patent,

to described lands in Plaquemines Parish, Louisiana; a

money judgment against the Orleans Levee Board and

nine other respondents for $100,000,000 as bad faith

possessors of the lands, and to enjoin the respondents

from possessing the iands. The complaint alleges that

jurisdiction is based upon “28 U. S. C. A. $1331 et seq.”

Each of the respondents filed’a raotion to dismiss for

lack of jurisdiction. Judgment was rendered by the

District Court on April 24, 1974, granting the motion.

The Court of Appeals affirmed the District Court by

judgment entered July 15, 1974, rehearing denied on

August 12, 1974. .

ARGUMENT

This case is an ejectment action (Louisiana petitory

action) by parties out of possession for over 100 years,

against parties who the complaint alleges have long been

in possession. Petitioners allege title under a claim con-

firmed by Act of Congress in 1842 and a patent therefor

which finally issued in 1972.

1Certain respondents also filed motions for summary judgment or

other pleadings claiming no interest in the litigation.

~

3

The arguments made by petitioners in the District

Court in support of federal jurisdiction were:

a) The federal laws and patent under which their

claim of title arose—this does not present a federal

question.”

b) That the respondents’ title is defective for various

reasons—a matter in anticipation of respondents’ sup-

posed defenses, which, under the well pleaded complaint

rule, petitioners may not urge for jurisdiction purposes

in an ejectment action.*

The arguments made by the petitioners in the Court

of Appeals and here are the same, except, in the face of

the long, unbroken jurisprudence contrary to the argu-

ments, their emphasis is now placed almost entirely on

Oneida Indian Nation v. Gneida County, 414 U.S. 661,

39 L. Ed. 2d 73, 94 S Ct. 772 (1974), which was de-

cided shorily before the hearing in the Court of Appeals

and was briefed and argued before that Court.

But Oneida is very careful to affirm the long line of

cases which hold that a federal question is not presented

on the allegation that ownership or possession is claimed

under a United States patent or Act of Congress, and it

2 Shultis vr. McDougal, 225 U.S. 561, 570. 56 L. Ed. 1205, 32 S Ct.

704 (1912); Florida Central & Peninsular R. Co. v. Bell, 176 US. 321,

328-229, 44 L. Ed. 486, 20 S Ct. 399 (1900); Joy vr. City of St. Louis,

201 US. 332, 241-242, 50 L. Ed. 776, 26 S Ct. 478 (1906); Oneida Indian

Nation v. Oneida County, infra.

4 Taylor v. Anderson, 234 U.S. 74, 58 L. Ed. 1218, 34 S Ct. 724 ©1914);

Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L. Ed. 656 (1877);

Florida Central & Peninsula R. Co. r. Bell, 176 US. 321, 44 L. Ed. 456,

20 S Ct. 399 (1900); Filhiol v. Maurice, 185 U.S. 108, 46 L. Ed. 827,

22 $ Ct. 560 (1902): Filhiol r. Torney, 194 U.S. 356, 48 L. Ed. 1014, 24

S Ct. 698 (1904); Joy r. City of St. Louis, 201 U.S. 332, 50 L. Ed. 776,

26 S Ct. 478 (1906): White vr. Sparkill Reaity Corp. 280 US. 500, 74

L. Ed. 578, 50 S Ct. 186 (1930): California Powder Works v. Daris, 151

1S. 389, 38 L. Ed. 206, 14 S Ct. 350 (1894); Oneida Indian Nation r.

Oncida County, infra.

d

specifically does not disturb “the well pleaded complaint

rule”,

Petitioners’ claim of title and right to possession is

the same as thousands whose claims were confirmed by

Act of Congress after the Louisiana Purchase. Land

title and possessory actions are not normally the business

of federal courts and there is nothing unusual in this case

to make it so. There is not a remote analogy to Oneida,

which is unique in that it is applicable only to suits in-

volving Indian tribes; nor is there any conflict with

another court of appeals; nor has an important state or

territorial question been decided; nor has a federal law

or federal question been decided which has not already

been similarly decided by this Court time and again, and

thus there has been no departure from the accepted and

usual course of judicial proceedings, and, all considered,

no reason to grant certiorari.

CONCLUSION

For the reasons stated, the Petition should be denied.

Respectfully submitted,

Lawrence K. Benson

1100 Whitney Building

New Orleans, Louisiana 70130

Attorney for The Board of

Commissioners of the Orleans

Levee Board of the State of

Louisiana, Chevron Pipeline

Company and Chevron Oil

Company, and on behalf of the

other Respondents

5

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Brief in Opposition

have been served by depositing three copies of the same

in the United States mail, with first class postage prepaid,

addressed to each counsel of record for petitioners at their

respective post office addresses shown on their Fetition.

November _, 1974.

Lawrence K. Benson

6

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Civil Action No. 72-1798 Section E

HEIRS OF HUBERT BURAT (BURAS),

Plaintiff

versus

BOARD OF LEVEE COMMISSIONERS OF THE OR-

LEANS LEVEE DISTRICT OF THE STATE OF

LOUISIANA, LOUISIANA WILDLIFE AND FISH-

ERIES COMMISSION; GULF REFINING COMPANY;

STANDARD OIL OF CALIFORNIA; SHELL OIL

COMPANY; ESTATE OF WILLIAM G. HELIS, his

heirs and assigns; LOUISIANA POWER & LIGHT

COMPANY (formerly known as PEOPLES UTILITIES,

INC.); PHILIP A. GROVE,

Defendants

COMPLAINT FOR DECLARATORY JUDGMENT,

INJUNCTIVE RELIEF AND MONEY DAMAGES

1.

Jurisdiction is based upon 28 U.S.C. 1331 et seq., and

the amount in controversy exceeds TEN THOUSAND

AND NO 100 ($10,000.00) DOLLARS exclusive of in-

terest and costs.

“eno

7

2.

Plaintiffs bring this action as a class, and appropri-

ately request that the court grant an order permitting

same on the grounds that:

(a) The class consists of the approximately 550

heirs of HUBERT BURAT ‘(BURAS), and ac-

cordingly the class is so numerous that joinder

of all members is impracticable; ag il ll

(b) There are questions of law and/or fact

common to all members of the class;

(c) The claims or defenses of the representa-

tive parties are typical of the claims or defenses

of the class, and;

(d) The representative parties will fairly and

adequately protect the interests of the class.

3.

The following parties are made defendants herein, and

each is jointly and in solido liable justly and truly unto

each and every heir of Hubert Burat (Buras) as a class

in the full sum of ONE HUNDRED MILLION AND

NO/100 ($100,000,000.00) DOLLARS, together with

legal interest from date of judicial demand until paid

and all cost of these proceedings:

(a) The Board of Levee Commissioners of the

Orleans Levee District of the State of Louisiana,

being a duly authorized and constitutionally

formed governmental agency for the State of

Louisiana, (hereinafter called the Levee Board);

8

(b) The Louisiana Wildlife and Fisheries Com-

mission being a duly authorized and constitution-

ally formed governmental agency of the State of

Louisiana;

(c) The Gulf Refining Company, a corporation

being a corporate citizen of the State of Dela-

ware, but authorized to do and doing business

in the State of Louisiana;

(d) The Standard Oil Company of California,

a corporation being a corporate citizen of the

State of California, but authorized to do and

doing business in the State of Louisiana;

‘e) The Shell Oil Company, a corporation be-

ing a corporate citizen of the State of Dela-

ware, but authorized to do and doing business in

the State of Louisiana;

(f) The Chevron Oil Company, a subsidiary of

the Standard Oil Company of California, being

a corporate citizen of the State of California,

but authorized to do and doing business in the

State of Louisiana;

(g) Cal-Ky Pipeline Company, a subsidiary of

the Standard Oil Company of California, being

a corporate citizen of the State of California,

but authorized to do and doing business in the

State of Louisiana;

(h) Estate of William G. Helis, his heirs and

assigns, doing business as Helis Enterprises,

Inc., a corporate citizen of the State of Dela-

9

ware, but authorized to do and doing business

in the State of Louisiana;

(i) The Louisiana Power & Light Company,

formerly known as Peoples Utilities, Inc., a

domestic corporation with its principal place of

business in the State of Louisiana;

(j) Philip A. Grove, a citizen of the State of

Louisiana.

FIRST CAUSE OF ACTION

4.

This is an action for a declaratory judgment pursuant

to 28 U.S.C. Sec. 2201 for the purpose of determining

a question of actual controversy between the partiees as

hereinafter more fully appears.

5.

For all acts complained of herein, the subject property

is known as St. Helena Meridian, Louisiana, T. 19S., R.

16E., all of Sections 29, 30, 31, and 32 inclusive, being

707.46 acres according to the plat of survey approved

October 24, 1854, on file with the Bureau of Land Man-

agement, United States Government, Department of the

Interior.

6.

Hubert Burat, also known as Hubert Buras (herein-

after referred to as Hubert Burat (Buras), commenced

actual physical possession of the aforesaid lands on or

about the year of 1795.

10

, #

On or about November 22nd, 1837, Hubert Burat

(Buras) commenced his application for a United States

Land Patent by a formal written and acknowledged claim

to the office of the Register and Receiver of the Land

Office for the Southern Eastern District of Louisiana at

New Orleans, said claim being, and also known as, Claim

60.

8.

The Congress of the United States by Section Three

(3) of the Act of July 6th, 1841 (5 Stat. 491) confirmed

the aforesaid Claim #60.

From the Louisiana Purchase until May 24th, 1972,

the United States of America was the only lawful record

owner of the aforesaid properties,

10.

During the period of 1924 through 1930, the Levee

Board in violation of the Constitution of the United

States of America, and by acts exceeding its own au-

thority specifically granted to it by the State of Loui-

siana, and by various acts of expropriation, wrongfully

and illegally seized, sequestered, and otherwise wrong-

fully assumed ownership of the aforesaid lands being the

exclusive property of the United States of America.

11.

On May 24th, 1972, the United States of America

issued the previously applied for Land Patent to the

heirs of Hubert Burat (Buras), the class plaintiffs

herein; said Patent bearing No. 1242435, a copy of

which is attached hereto and marked as “Exhibit A”.

11

SECOND CAUSE OF ACTION

12.

Subsequent to the previously described wrongful acts

of expropriation by the Levee Board, the following persons

and or parties have gained bad faith possession and access

onto the aforesaid property and land:

(a) Board of Levee Commissioners of the Levee

District of the State of Louisiana;

(b) Louisiana Wildlife and Fisheries Commission;

.(e) Gulf Refining Company;

(d

a

Standard Oil Company of California;

(e) Shell Oil Company;

(f) Chevron Oil Company;

(g) Cal-Ky Pipeline Company;

(h) Estate of William G. Helis;

(i) Helis Enterprises, Inc.;

(j) Louisiana Power & Light Company;

(k) Philip A. Grove.

(hereinafter all of which and all of whom being called

the bad faith possessors).

13.

The bad faith possessors have installed various arti-

facts of no use to the plaintiffs, all against and without

12

their consent. Additionally, the aforesaid property has

been viciously destroyed and/or obliterated with canals,

pieplines, large metal tanks, and other such heinous

structures; all of which has caused ONE HUNDRED

MILLION AND NO 100 ($100,000,009.00) DOLLARS

in damages to the plaintiffs.

THIRD CAUSE OF ACTION

14,

Plaintiffs reasonably fear and believe that any, each

and every one of the bad faith possessors are in present

intent of further altering, destroying and/or otherwise

disposing of the aforesaid property in the proximate

future, and indeed, that such actions are being negotiated

and planned for presently, and accordingly pray that

the Court timely grant, after declaring the rights of the

plaintiffs as given them by the United States of America,

and the money damages demanded above, a preliminary

injunction and ultimately a permanent injunction order-

ing the bad faith possessors to cease and desist actual

and implied possession of the aforesaid property.

WHEREFORE, plaintiffs pray for and demand as

a class that after due proceedings had, the Court ad-

judge, declare, render and decree:

1. That the Act and or Acts of Expropriation by the

Board of Levee Commissioners of the Orleans Levee

District of the State of Louisiana against all of Sections

29, 30, 31, 32, inclusive, of Township 19 South, Range

16 East, St. Helena Meridian, Louisiana, be declared

null, void, in violation of the Constitution of the United

States of America, and otherwise of no lawful effect as

having been an unconstitutional act of seizure by a State

13

Sovereign against the Federal Sovereign, without due

process of law.

2. That all persons comprising that class of persons

known as the heirs of Hubert Burat (Buras) received gocd,

full and perfect title to the aforesaid lands from the

United States of America on May 24, 1972 with retro-

active effective to July 6, 1842.

3. That defendants, Board of Levee Commissioners

of the Levee District of the State of Louisiana; Loui-

siana Wildlife and Fisheries Commission; Gulf Refining

Company; Standard Oil Company of California; Shell

Oil Company; Chevron Oil Company; Cal-Ky Pipeline

Company; Estate of William G. Helis, his heirs and

assigns; Helis Enterprises, Inc.; Louisiana Power &

Light Company, ‘formerly known as Peoples Utilities,

Inc.); Philip A. Grove, be condemned to pay unto the

plaintiffs as ~ class by judgment rendering them liable

jointly and in solido, the full sum of ONE HUNDRED

MILLION AND NO 100 ($160,000,000.00) DOLLARS,

together with legal interest from date of judicial demand

until paid, and for all costs.

4. That there be issued a permanent injunction order-

ing the defendants, Board of Levee Commissioners of the

Levee District of the State of Louisiana; Louisiana

Wildlife and Fisheries Commission; Gulf Refining Com-

pany; Standard Oil Company of California; Shell Oil

Company; Chevron Oil Company; Cal-Ky Pipeline Com-

pany; Estate of William G. Helis, his heirs and assigns;

Helis Enterprises, Inc.; Louisiana Power & Light Com-

pany, ‘formerly known as Peoples Utilities, Inc.)- Philip

A. Grove, or any heir, successor or assign of each, and

any other person to cease and desist possession of the

ae

14

aforesaid property without the express consent of the

heirs and assigns of Hubert Burat (Buras).

5. That the remedies prayed for and sought herein

be granted by summary proceedings where available and

applicable, and that, all of the defendants herein be

duly cited to appear as necessary parties to said pro-

ceedings.

6. And all other general and equitable relief.

PETER C. LA DART

Attorney for Heirs of

Hubert Burat (Buras)

3714 Westbank Expressway

Building 8—Suite 4

Harvey, Louisiana 70058 347-6241

ROSS P. LA DART

Curator Ad Hoc for Absent Heirs

3714 Westbank Expressway

Building 8—Suite 4

Harvey, Louisiana 70058 347-6241

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