Terrebonne Parish sues its District Attorney and the state

The Terrebonne Parish Consolidated Government is suing the parish’s district attorney, Joe Waitz Jr., the Louisiana Department of Natural Resources, and its secretary, seeking to halt evaluations by them of coastal damage, allegedly due to oil and gas exploration as well as other potential causes.

Court papers filed Monday allege that Waitz has no authority to have the evaluation performed and does not have the authority to contract with two law firms to perform the actual work.

The suit lists numerous reasons why the parish maintains Waitz should not be involved. Among them is Terrebonne’s status as a parish with a Home Rule Charter which – unlike many other parishes – has opted out of representation by the district attorney. Waitz is not authorized, the suit contends, to act on Terrebonne Parish’s behalf.

The court action does not seek money, but rather seeks a judge to make a declaration of whether certain actions taken by Waitz are permitted.

The District Attorney says that he is not acting on behalf of the Terrebonne Parish Consolidated Government, but on behalf of the LDNR, in accordance with state law which compels him to do so. Contacted for comment Monday afternoon, Waitz said he is still in the process of reviewing the parish’s 34-page legal document, a petition for an injunction to be signed by a state district court judge. The district attorney’s authority, Waitz said, is contained in state law within RS 16:1, which provides the office’s powers and duties.

“I don’t understand why they have even filed this,” Waitz said. “All I have been appointed to do is file a damage model. I don’t intend to file any type of litigation. I shall give the state and the local government whatever the results of this damage model are. I was asked to do this because the state has asked every coastal parish to do a uniform damage model. The one parish that is not doing the same damage model is Terrebonne.”

Parish President Gordon Dove said Monday night that the action he has taken is not intended to cause hard feelings, but to get a judge to decide if the district attorney has the authority to work on behalf of LDNR in this matter, and to hire outside counsel to do the assessing.

“I believe we have the statutes on our side, and I believe we have the constitution,” Dove said. “The Terrebonne Parish Consolidated Government is within its right to have the parish president appoint attorneys for civil cases and that the Council shall ratify them.”

Waitz maintain that he is not representing the parish in a civil matter, nor any other kind of matter. He learned that he was Secretary Harris’ choice to oversee assessments of damage to the Terrebonne coast in a letter dated Jan. 28. In it, Harris referenced lawsuits brought by all but two coastal parishes against oil companies for alleged damage. Lafourche has not filed a suit but has authorized an attorney to assess damages. Terrebonne, Harris alleged, is the only parish to not bring such a lawsuit.

In the letter, Harris acknowledged that Terrebonne’s parish attorney has done “some preliminary work.”

“We are not aware of any experts retained or findings they have produced,” Harris wrote. “The work thus far appears to be inadequate and will not produce a useful damages model consistent with the damage models being developed by other coastal parishes.”

All of the filed cases, currently in federal court, may be moved to state courts later this month, if a federal judge in the Western District of Louisiana opts to do so with those in that jurisdiction.

At the crux of the damages question is whether oil companies properly filed for permits that are required in the state’s coastal zone for activities related to oil and gas exploration, or obtained permits whose provisions they violated.

Dove has repeatedly stated he does not wish to bring lawsuits against oil companies, citing their high impact on Terrebonne’s economy and related jobs. Additionally, Dove says he is not convinced that the bulk of damages in Terrebonne are due to wrong-doing by oil and gas companies. He said other factors are in play, such as the digging of the Gulf Intracoastal Waterway and also damage to wetlands for reasons ranging from the proliferation of nutria to the damming of Bayou Lafourche in 1927.

The parish council has enacted a resolution stating as a body that it does not wish to sue oil companies.

Complicating matters is the intervention into the suits of the state itself – through LDNR – and also the office of Attorney General Jeff Landry.

Although the parish has through two branches, legislative and executive made clear that it is not suing, its attorneys have been auditing permits for 2 ½ years, according to various statements by Dove and correspondence from Parish Attorney Julius Hebert. Copies of the legal bills from that work are a source of contention between the TPCG and The Times, which was refused a public records request for them. A complaint from the newspaper was made to Waitz, as state statutes permit. Because of a potential conflict due to his role in the coastal assessment, Waitz sent the complaint to 23rd Judicial District Attorney Ricky Babin, who is researching whether the complaint of a public records law violation or any part of it is valid.

Attorneys for LDNR had not yet reviewed the parish’s extensive filing Monday.

The state, the suit alleges, has overstepped its authority under its complex set of coastal management statutes. State officials, based on some documents and interviews by telephone, appear to maintain that the LDNR and local parishes with a coastal program have equal authority to bring actions and bring forth assessments.

“The secretary, the attorney general, an appropriate district attorney, or a local government with an approved program may bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the coastal zone for which a coastal use permit has not been issued when required or which are not in accordance with the terms and conditions of a coastal use permit,” the statute under whose authority Waitz’s appointment was made reads.

The suit also alleges that under statutes and the Louisiana Constitution, the powers of a district attorney are limited, in stark contrast to Waitz’s interpretation of the law.

Dove has expressed strong concerns that if the private attorneys Waitz contracted with become involved with an action against any oil companies, the parish could be stuck with the bill for the companies’ attorneys if any such suit is lost.

Even if Waitz or the attorneys he contracted with do not get involved with litigation on behalf of the parish – action Waitz has made clear he does not plan to undertake – Dove notes that the District Attorney’s office is funded by the parish. To him, that means the parish still may have to pay for actions it does not welcome, by someone it he maintains should have no part in the matter.

Also, the parish’s suit contends that without an appointment approved by the Attorney General, other statutes would disallow Waitz’s involvement.

Parish Council members are expecting to hear details of the administration’s suit, the lawsuits brought by other coastal parishes against oil companies, a late add to the agenda of their Wednesday night meeting. The items says that the matters will be discussed, possibly in an executive session, from which the public would be barred. In order for an executive session to be permitted, 2/3 of the council members present will need to approve.

At least one parish council member says he will have questions about the action the parish is taking.

“Why are we spending parish money to file a lawsuit against a district attorney who is going to have to defend himself with parish money,” said Councilman Gerald Michel. “That’s one of the questions I will have.”

Gordon Dove and Joe Waitz

Follow Casey on Twitter for more. 

https://twitter.com/casey_gisclair