Board of Commissioners of Southeast Louisiana Flood Protection Authority-East On Behalf of the Orleans Levee District VS Louisiana Department of Natural Resources

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STATE OF LOU SIANA COURT OF APPEAL FIRST CIRCUIT NU 2011 CA 0262 BOARD OF C OF THE SOUTHEAST MMISSIONERS LQUISIANA FLOOD PROTECTION AUTHORITY EAST ON BEHALF OF AND THE ORLEANS LEVEE DISTRICT VERSUS LOUISIANA DEPARTMENT F NATURAL RESOURCES Judgment Rendered SEP 2 2011 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State o Louisiana Trial Court No 561 176 r Honorable Janice Clark Judge Presiding Sara E Mouledoux Attorneys for Plaintiffs Appellants C Peck Board of Commissioners of the Southeast New Hayn Jr Orleans LA Louisiana Flood Protection Authority East on behalf of and the Orleans Levee District Thomas Baton E Balhoff Rouge Attorney for Defendant Appellee Louisiana Department of Natural Resources LA Stephen O Scandurro Timothy D Scandurro New Orleans LA Attorneys for In ervenor Eileen 1VI Bordelon Administratix of th Succession of Helen Katz Wife of and Sam Mermelstein Mary Olive Pierson Baton Rouge LA BEFORE J CARTER C PARRO AND HIGGINBOTHAM JJ HIGGINBOTHAM J The Board of Comznissioners of the Southeast Louisiana Flood Protection East Authority on behalf of and the Orleans Levee District OLD filed a petition to r review of udicial J a certification bY the DePartment of Natural Resources DNR concernin the return of land in Plaquemines Parish to the Succession of Helen Katz Wife o Sam Me rmelsteiz and The district court affirmed the decision of the DNR and trom that judgment the OLD appeals Far the following reasons we vacate the judgment of the district court and dismiss the appeal for lack o fa pp ellate urisdiction FACTS An act of sale dated March 1 b 1928 and recorded March l 9 1928 conveyed land described as located in Section 17 Township 18 South Range 16 East containing 293 acres in Plaquemines Parish from Sam Mermelstein to the 89 Board o L Commissioners of the Orleans Levee District In November 2006 vee Ms Eileen Mermelstein Bordelon granddaughter af Sam Mermelstein and the appointed court administratrix of the re Succession of Helen Katz Wife opened and of Sam Mermelstein the succession asserted a claim to the DNR for certification to recover this land pursuant to the Return of Lands Act Act 233 of 1984 The DNR pursuant to the authority vested in them by Act 233 of 1984 s ssion approved the succ application In a letter to the OLD attorney dated October 16 2007 the DNR concluded that the succession provided sufficient nce evid to establish its right to the return of the property and certitied that the and should be returned 100 to the succession On November 19 2007 the OLD submitted to the 19th Judicial District Court a petition for judicial review of the certification by the DNR The OLD ass jurisdiction of the court pursuant to rted th Louisiana Administrative Procedure Act the APA specifically La R S 964 49 On December 20 2010 the district caurt signed a judgment affirmin the 2 decision of the DNR and denying the petition for judicial review It is from this ment jud that the OLD appeals DISCUSSION Subject matter jurisdiction is a threshold issue because a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void La C art 3 Bordelon v Dehnert 99 La 1 st P 2625 App Cir 9 770 So 433 435 writ denied 2000 La 7 So 00 22 2d 2923 3 01 19 2d 995 For the purpose of judicial review of administrative action district courts are courts of limited jurisdiction and only have appellate jurisdiction to revi w administrative decisions as provided by the legislature or the constitution Metro Riverboat Assoc lnc v Louisiana Gaming Control Board 2001 rates 0185 2d 01 16 10 La 79 So 656 660 Se La Canst art V 16B The APA governs judicial review of an agency final decision or order in an adjudication s proceeding See Metro Riverboat Associates Inc 797 So at 662 2d The APA defines adjudication as an agency process for the formulation of a decision or order La R S 1 951 49 Decision or order is definEd in pertinent part as the whol or any part of the final disposition whether affirmative negative injunctive or declaratory in form of any agency in any matter other than rulemaking required by constitution or statute to be determined on the record afte notice and oppot for art agency hearing La R tunzty S 3Emphasis added Absent a constitutional or statutory requirement of a 951 49 hearing an agency disposition is not a or order under the APA And if decision decision aor order does not z from the proceeding then the proceeding is not an adjudication as defined by the APA Government Computer Sales Inc v State Through Div of Admin 9 La 1 st Cir 9 720 0224 App 25 2d So 53 56 Finally if the agency action is not a or order in an decision 3 I adjudication proceeding then the district court does not have appellate jurisdiction to review the action See Metro Riverboat Associates Ine 797 So at 662 2d The Return of Lands Act ordered the OLD to return the ownership of property within the Bohemia Spillway to the owners or their successors from whom the praperty was acquired by expropriation or by purchase under threat of expropriation 1985 La 4 19 La 1 Section 2 of Act 233 as amended by Acts No 233 2 vested rule and procedure authority making making Acts No 819 in the DNR to establish procedures and uidelines for the orderly implementation of the return of such property by the OLD and order the DNR to evaluate d applications submitted by owners or and their successors The secr of the tary DNR was made responsible for certifying to the OLD the owners or their successors 819 trom whom such property 4 amending Section was so acquired 4 of Act 233 of See 1985 La Acts No 1984 Playuemines Parish Government v Department of Natural Resources 2008 La App 1 st Cir 2094 09 10 9 23 So 357 360 writ denied 2009 La 12 23 So 920 3d 2127 09 11 3d Pursuant to this mandate the DNR created the procedure required to apply for the return of land in Title 43 Chapter l 3 1305 of the Louisiana Administrative Code the LAC The LAC requires the DNR after completion of the evaluation of an application to determine if the application and accompanying documentazy evidence establishes an apparent valid claim for return of title to the tract LAC 43 XIII 1305 2 E There is no constitutional or statutory provision requiring that the DNR give notice or provide the opportunity for a hearing prior to certifying to the OLD that the land should be returned in accordance with the Return of l Act ands Zn fact The amendment also included that any applicant wha is aggrieved by the OLD action may s seEk judicial review by tiling suit in the Twenty Judicial District Court FiFth Z This section ofi the LAC has been repealed however it was the applicable provision at the time that the succession submitted the application tor certification 4 the DNR certitication pursuant to the rules laid out in the LAC was made solely s on the evidence presented by the succession The OLD was not given notice prior to receiving the lett rcertifying that the land should be returned to the succession The DNR did not dispute the lack of a contradictory hearing Therefore the s DNR certification that the land be returned to the succession is not a decision or order in an adjudication proceeding Thus the district court could not obtain appellate jurisdiction and lacked jurisdiction to judicially review the OLD appeal s of the DNR c s rtification Having concluded that the district court did not have appellate jurisdiction over the OLI appeal we also conclude that this court has no appellate s jurisdiction Our jurisdiction in this case is limited to the sole purpose of correcting the district court error of entertaining the petition for judicial review s Thus we vacate the district court judgment and cannot consider the merits of this s appeal See Metro Riverboat Associates Inc 797 So at 663 2d CONCLUSION For the foregoing reasons we vacate the judgment of the district court and dismiss this appeal The costs of this appeal ar assessed to the Board of rsof the Southeast Louisiana Flood Protection Authority on Commissiort East behalf of the Orleans Levee District in the amount of 4 and 50 123 JUDGMENT VACATED APPEAL DISMISSED We recc that the fourth circuit has reached a different result in Vo v Board af nize t Commissioners of Orlcans Levee District 98 La App 4th Cir 6 738 So 1142 2379 99 9 2d writs denied 99 and 99 La 10 748 So 1166 2024 2025 99 29 2d 5

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