Dan S. Collins and Dan S. Collins, CPL & Associates, Inc. VS State of Louisiana, through Department of Natural Resources, Robert Benoit, Individually and in his official capacity as Assistant Director Atchafalaya Basin Program, Louisiana Department of Natural Resources

Annotate this Case

Download PDF

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUtT 2012 CA 1031 DAN S COLLINS AND DAN S COLLiNS CPL ASSOCIATES INC VERSUS STATE OF LOUIS THROUGH DEPnRTMENT OF NA ANA URAL I RESOURCES ROBERT BENOIT IND AND IN HIS OFFICIAL VIDUALLY CAPACITY AS ASS DIRECTOR ATCHAFALAYA BASIN fANT S tAM PROG LOUISIANA DEPARTMENT OF NATURAL RESOURCES Q Judgment MAY 3 0 z013 Rendered APPEALED FROM THE NINETEENTH JUDIC DISTR COURT AL CT IN AND FOR THE PARISH OF EAST BA ROUGE ON I STATE OF LOUISIANA DOCKET NUMBER 592154 SECTION 25 THE HONORABLE WILSON E FIELDS JUDGE J Jill L Craft Crystal G LaFleur Baton Rouge Louisiana t fC d Ps C cl e Attorney for Plaintiffs Appellants Dan S Collins and Dan S Collins CPL Associates Tt e5 c James D Buddy Caldwell Attorneys for Defendant Appellee Attorney General State of Louisiana Through the Department of Natural Resources And Robin L Jones Stephen J Oats George O Luce Special Assistant Attorneys General Lafayette Louisiana BEFORE KUHN PETTIGREW AND McllONALD JJ McDONALD J From 1997 to 2010 Dan S Collins a certified professional landman and Dan S Collins CPL Associates Inc collectively plaintiffs or Collins provided consulting services for land title and environmental research for the Louisiana Department of Natural Resources DNR particularly the Atchafalaya Basin Program and the Coastal Protection and Restoration Program Robert Benoit served as Assistant Director of the Atchafalaya Basin Program 5tarting in 2007 Mr Collins discovered what he believed to be violations of environmental laws rules and regulations pertaining to the dredged water quality project known as the Bayou Pastillion Water Quality Project and the Big Bayou Pigeon Water Quality Project Mr Collins reported his findings to DNR Mr Benoit and Scott Angelle Secretary of DNR Both projects were conducted by the Atchafalaya Basin Program within the basin to improve water quality for fishet and crawfishermen Mr Collins believed that he discovered the real purpose of the projects was oil and gas exploration for the use and benefit of adjacent landowners Collins contract wiYh DNR for 2009 ended and it was not renewed for 2010 Collins filed suit on June 29 2010 naming as defendants the State of Louisiana through DNR and Mr Benoit individually and in his capacity as Assistant Director of the Atchafalaya Basin Program at DNR asserting that defendants have refused to employ Petitioners and denied Petitioners the ability to continue employment with defendant DNR on account of their whistle blowing activities regarding the violations of Federal and State laws rules and regulations Gollins asserted that DNR violated La R 30 the Louisiana S 2027 Environmental Whistleblower Statute and La R 3 the Louisiana S 967 Whistleblower Statute and that DNR and Mr Benoit violated La R 42 S 1169 the Louisiana Code of Covernmental Ethics Whistleblower Statute Collins prayed for judgment in their favor including punitive damages triple damages as allowed by law and attorney fees as well as all other relief to which they were entitled including declaratory and injunctive relief Defendants filed peremptory exceptions raising the objections of no cause of action as to the claims raised pursuant to La R 23 La R 30 and S 967 S 2027 La R 42 169 which were sustained by the district court Defendants also filed S 1 a dilatory exception raising the objection of prematurity as to the claims raised pursuant to La R 42 169 which vas denied as moot The district court gave S 1 plaintiffs thirty days to amend their petition to state a cause of action After plaintiffs timely amended their petition defendants again filed peremptory exceptions raising the objections of no cause of action as to daims under La R 23 La R 30 and La R 42 which were S 967 S 2027 S 1169 subsequently sustained by the district court and the plaintiffs claims pursuant to those staYutes were dismissed The plaintiffs are appealing that judgment and assert three assignments of error 1 The Trial Court erred in concluding that Piaintiffs sic did not state a cause of action in their original and supplemental petirions pursuant to La R 4 et seq the Code of Governmental S ll69 Ethics 2 The Trial Court en in concluding that Plaintiffs sic did not ed state a cause of action in their original and supplemental petitions pursuant to La R 30 the Environmental Whistleblower S 2027 Statute when the law does not require that plaintiffs assert a specific violation or prove an actual violation of state law 3 The Trial Court erred in concluding that Plaintiffs sic did not state a cause of action in their original and supplemental petitions pursuant to La R 23 et seq the Louisiana Whistleblower S 967 Plaintiffs also asserted a 42 U SC 1983 claiin against Mr Bcnoit asserting that he violated their clearly established rights pursuant to the l Amendment to report and oppose unlawful conduct and pursuant to the 14 Amendment to due process of laws and to one good name s and reputation DNR and Mr Benoit later filed a morion for summary judgment to dismiss all of plaintiffs remaining claiins in the suit The district court granted the motion for summary judgment and plainCiffs filed an appeal That matter is pending in a separate appeal 2013 CA 0284 2 DNR also filed a dilatory exception of insufficiency of service of process which was denied as moot 3 Statute or that La R 23 is superseded by La R S 967 S 2027 30 the Environmental Whistleblower Statute THE S OF REVIEW ANUAKD I In reviewing a trial court ruling sustaining an exception raising the s objection of no cause of action the court of appeal should subject the case to de raovo review because the exception raises a question ofi law and the lower court s decision is based only on the sufficiency of the petition In appraising the sufficiency of the petition we follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to eelief The question therefore is whether in the light most favorable to plaintifF and with every doubt resolved in his behalf the petition states any valid cause of action for relief City of New Orleans v Board of Com of Orleans rs evee I Dist 93 La 7 640 So2d 237 253 0690 94 5 ASSIGNMENT OF ERROR NO 1 In this assignment of error plaintifPs maintain that the district court en in ed concluding that their original and supplemental petitions did not state a cause of action pursuant to La R 42 et seq the Code of Governmental Ethics S 1169 Defendants maintained that there is no provision in the Code of Governmental Ethics that provides a private right of action Louisiana Revised Statutes 42 169 1 provides in pertinent part A Any public employee who reports to a person or entity of competent authority or jurisdiction information which he reasonably believes indicates a violation of any law or of any order rule or regulation issued in accordance with aw or any other alleged acts of impropriety related to the scope or duties of public employment or public ofiice within any branch of state govermnent or any political subdivision shall be free fro discipline reprisal or threats of n discipline or reprisal by the public employer for reporting such acts of alleged impropriety No employee with authority to hire fire or discipline employees supervisor agency head nor any elected official shall subject to reprisal or threaten to subject to reprisal any 4 I such public employee because of the employee efforts to disclose s such acts of alleged impropriety B lIf any public employee is suspended demoted dismissed or threatened with such suspension demotion or dismissal as an act of reprisal for reporting an alleged act of impropriety in violation of this Section such employee shall report such act to the Board of ion Ethics 2 An employee who is wrongfully suspended demoted or dismissed shall be entitled to reinstatement of his employment and entitled to receive any lost income and benefits for the period of any suspension demotion or dismissal C The board shall provide written notice of the commencement of an investigation of a report ofa violation of this Section to the agency head of the employee or if the agency head is the defendant then to an agency head of the governmental entity that supervises the agency or if none then to the governing authority of the governmental entity not less than ten days prior to the date set for the investigation If the board determines following an investigation that it shall ofFer a consent opinion or conduct a public or private hearing to receive evidence and determine whether any violation of this Section has occurred the board shall provide written notice of the hearing or consent opinion to the agency head of the employee or if the agency head is the defendant then to an agency head of the governmental entity that supervises the agency or if none then to the governing authority of the governmental entity not less than sixty days prior to the date set for the action by the board The employee agency shall s cooperate in every possible manner in connection with any investigation conducted by the board The agency shall be considered to be an indispensable party to any investigation hearing or consent opinion and may have legal counsel cross witnesses call examine witnesses and present evidence on its behalf D Any employee with the authority to hire fire or discipline employees supervisor agency head or elected official who violates this 5ection shall be subject to the same fines and penalties provided for other violations of this Chapter In addition if the board following a public hearing finds there is probable cause to believe that a person has violated a criminal law of this state pursuant to R 42 I 156 the S board shall forward a copy of its findings to the district attorney of the parish in which the violation occurred for appropriate action Thereafter notwithstanding any other provision of this Chapter such district attorney shal have access to all records ofhe board relative to such findings E Upon notification by the employee the employee agency the s defendant or the defendant agency that the employee has s commenced a civil action in a dist or federal court or with a federal ict agency with adjudicatory authority over employment complaints against his agency pursuant to R 23 or other relevant state S 967 B or federal statutes at any time prior to the board final determination s 5 as to whether a violation of this Secrion has occurred the board shall stay any action pending before the board until a final order in the civil or adjudicatory action is issued and the prescriptive period provided for in R 42 for action shall be suspended while such civil or S 1163 adjudicatory action is pending and shall resume when such tinal order is issued The final order of the court in the civil action or agency in an adjudicatory action except if the action is dismissed by the plaintiff shall resolve all matters the employee has pending before the board regarding this Section Emphasis added Plaintiffs contend that the last sentence of La R 42 S 1169 Eprovides for a private right of action In support of their contention the plaintiffs maintain that the language used in Goldsby v State Dept of Corr 2003 La App 1 Cir 0343 7103 11 861 So 2d 236 writs denied 2004 2004 La 4 870 0328 033 04 8 So 2d 271 implies that there is a right of action under both La R 23 and S 967 La R 42 S 1169 In Goldsby this court found there was no cause of action under La R S 1169 42 because the whistleblower statute pertained to violations or alleged violations of the Code of Governmental Ethics and the plaintiff did not report the matter to the thics Commission Goldsby 861 So at 238 The plainriffs in the 2d present case contend that because they did report the matter to the Ethics Commission they have a cause of action We find that their reliance upon Goldsby is misplaced An employee remedy under the Code of Governmental Ethics is through s the Board of Ethics See Nolan v Jefferson Parish Hosp Service Dist No 2 175 O1 La App 5 Cir 6 790 So 725 732 3 L Revised Statutes O1 27 2d ouisiana 1E 4 169 merely provides that the final order of the court in a civil acrion shall resolve all matters the employee has pending before the board regarding this Section Louisiana Revised Statutes 42 refers to civil actions brought E 1169 In Nolan the court concluded that w find no provision for a private right of action under e iy the Code of Governmental Ethics the employee sremedy is to complain to the Board of Ethics which then investigates and takes action to protect the employee if appropriate Nolan 790 2d So at 732 6 pursuant to R 23 or other relevant state or federal statutes Louisiana S 967 B Revised Statutes 42 does not provide an independent right of action E 1169 rather it relies upon otl statutes to ptovide a right of action er After a de novo review we find that the plaintiffs fail to state a cause of action pursuant to La R 42 S 1169 ASSIGNMENT OF ERROR NO 2 In this assignment of error plaintiffs assert that the district court erred in concluding they did not state a cause of action in their original and sUpplemental petitions pursuant to La R 30 the Environmental Whistleblower Statute S 2027 when the law does not require that plainriffs assert a specific violation or prove an actual violation of state law Louisiana Revised Statutes 30 provides 2027 A No firm business private ar public corporation partnership individual employer or federal state or local governmental agency shall act in a retaliatory manner against an employee acting in good faith who does any of the following I Discloses or threatens to disclose to a supervisor or to a public body an activity policy practice of the employer or another employer with whom there is a business relationship that the employee reasonably believes is in violation of an environmental law rule or regulaYion 2 Provides infonnation to or testifies before any public body or conducting an investigation hearing inquiry into any environmental violation by the employer ar another employer with whom there is a business relationship of an environmental law rule or regulation B 1 Any employee against whom any action is taken as a result of acring under Subsection A of this Section may commence a civil action in a district court of the employee parish of domicile and s shall recover from his employer triple damages resulting from the action taken against him and all costs ofpreparing filing prosecuting appealing or otherwise conducting a law suit including attorney s fees if the court finds that Subsection A of this Section has been violated In addition the employee shall be entitled to all other civil and criminal remedies available under any other state federal ar local law 7 a 2 The term actioil is taken shall include firing layoff lockout loss of promotion loss of raise loss of present position loss of job duties responsibilities imposition of onerous duties or responsibiliries or any other action or inaction the court finds was taken as a result of a ceport of an environmental violation or b Damages to be tripled pursuant to Paragraph B of this 1 Secrion shall be for the period of the damage but not to exceed three years and shall include but not be limited to lost wages lost anticipated wages due to a wage increase or loss of anticipated wages which would have resulted from a lost promotion and if the period of the damage exceeds three years the employee shall thereafter be itled en to actual damages In addition to the above damages shall also indude any property lost as a result of lost wages lost benefits and any physical or emotional damages resulting therefrom C This Section shall have no application to any employee who acting without direction from his employer or his agent deliberately violates any provision of this Subtitle or of the regulations or permit or license terms and conditions in pursuance thereof Plaintiffs filed an unlawful retaliation claim under La R 30 S 2027 Defendants maintain that the plaintiffs do not have a cause of action under La R S 2027 30 for three reasons 1 plaintiffs failed to allege a violation of a specific environmental law 2 plaintiffs did not suffer an adverse action covered under the purview of La R 30 and 3 plaintiffs are not employees that are covered S 2027 under the purview of La R 30 We consider each of these arguments in S 2027 turn 1 Plaint sfailed to allege a violation ofa specific environrnerztal la1v First defendants contend that the plaintiffs have failed to allege a violation of a specific environmental law The language of La R 30 supports S 2027 1 A five requireinents for a cause of action l employee acts in good faith 2 employee reports or threatens to report a violation 3 employee reasonably believes the activity policy or practice undertaken by his employer or another employer with whom there is a business relationship with his employer is a violation of an environmental aw 4 employee reports or threatens to report the violation to a supervisor or to a public body 8 of the employer and 5 employer acts I in retaliatory manner because the employee reported or threatened to report a violation To require a plaintiff to know specifically what law is being violated would seem to render the good faith and reasonably believe portions of the law superfluous These two requirements would serve no purpose if the employee had to know exactly what provision of the law was being violated The purpose ofthe I ouisiana Environmental Whistleblower Statute La R S 302027 is to protect employees from retaliatory action or other adverse employment action by em far reporting possible environmental violations loyers Chiro v Harmony Corp 99 La App t Cir 11 745 So 1198 0453 99 5 2d 1200 writ denied 99 La 1 753 So 840 emphasis added lt 3346 00 28 2d would frustrate the purpose of the law to require the specificity that the defendant asks for In their petitions the plaintiffs asserted in part 8 Indeed Petitioners submit that defendant DNR allowed the Bayou Postillion dredge project to proceed knowing that the inforination submitted foi the Anny Corps of Engineers ACOE Permit was incorrect Specifically the permit listed the name of Sandra Thompson Decoteau individually instead of DNR and intentionally listed the incorrect Parish of St Martid instead of beria meaning that the public and opponents that had submitted complaints that the Bayou Postillion Project was in reality the crearion of an oil and gas access canal to the State Land Office prior to dredging were deliberately mislead and the ACOE pennit was issued on a false and incomplete basis 9 Petitioners submit that defendant DNR intentionally withheld the fact that the Bayou Postillion Project primary purpose was to s facilitate oil and gas exploration activities witllin the Atchafalaya Basin and not water quality and on the adjacent lands including the Kyle Management tracts Peterman 14 Defendant DNR failed to follow the law and regulations specifically leading to mitigation violations loss of wetland ecologies and inappropriate and insufficient compensatory mitigation creating 9 hundreds of thousands to millions of dollars in mitigation costs within the Atchafalaya Basin all constituting serious violations of State and Federal environmental laws rules and regulations 35 Petitioners contend that the Defendants violated Federal and State law rules and regulations based on the aLlegations contained herein including but not limited to the following 1 The Clean Water Act 40 CFR 230 etseg 33 USC 403 404 2 The False Claims Act 3 La R 30 et seq and 302071 et sey Louisiana Water S 61 Control Law 4 La R 30 30 30 and 30 regarding S 123 126 128 1 4 148 registration of prospective leaseholders advertisements for lease application for fee inspection quantity of land and transfers or assignments of interest 5 Louisiana Administrative Code 43 Subchapter B Sections 701 I 707 709 711 717 and 719 regarding various coastal guidelines use 6 Louisiana Administrative Code 43 ISubchapter A Sections 901 903 regarding nomination bidding and assignments and other transfers of interest 7 Louisiana Administrative Code 43 ISubchaptei C Sections 723 724 regarding Coastal Use Permits and Mitigation and 8 La Const Art IX Sec 4 A We find that the petitions adequately specified possible environmental law violations 2 Plaintiffs have raot sufJer an adverse actiofz under ttie pter of La R ec view S 2027 30 In their second argument defendants contend that the plaintiffs have not suffered an adverse acrion under the purview of La R 30 The defendants S 2027 cite Chiro v Harmony Corp 745 So 1198 as authority that the non 2d renewal of an employment contract is not an adverse action However we find that Chiro is disringuishable In Chiro the plaintiff voluntarily quit his job as a means of 10 I protest and then sued after the company did not rehire him until six months later This court in Chiro found that the plaintiff was not an employee whenever the alleged wrong occurred failure to rehire for reporting violations to OSHA Further this court stated that even if we were to conclude that Chiro remained an employee under the statute after he resigned his employment there is nothing in the record to indicate that Hannony refused to hire him Chiro 745 So at 2d 1201 n 5 In the present case plaintiffs did not quit as a means of protest their contract simply lapsed They also sought to have their contract renewed immediately not months later Finally and most importantly the present plaintiffs contract was based term and was not renewed while in Chiro it did not matter if the plaintiffs conYract was term because he quit based Under the plain language of La R 30 the defendants do not S 2027 a 2 have to perform an affirmative act to be liable If the plaintiffs can prove that their contract was not renewed an inaction on the part of the defendants because of their reporting of an environmental violation then they would have a cause of action assuming they rneet the rest ofthe statutory requirements 3 Plc are not employees tdaat are covered urader the purview of La R intiffs S 2027 30 Defendants contend that the plaintiffs are not employees that are covered under the purview of La R 30 The term employee is not defined in La S 2027 S 2027 R 30 In their petition plaintiffs state that fi 1997 through the present Petitioners acted in the capacities as public employees cont parties of acting defendant DNR providing consulting land related research and duties a In Chiro the plaintiff was eventually rehired albeit for less money then he was previously paid Chiro 745 So af 1199 2d 11 Taking this assertion in the light most favorable to the plaintiffs and with every doubt resolved on their behalf we cannot say that the plaintiffs do not state a cause of action under the purview of La R 30 S 3027 Therefore after a de novo review we find that the district court erred in finding that the petition failed to state a cause of action pursuant to La R S 2027 30 This assignment of error has merit ASSIGNMENT OF ERROR NO 3 The plaintiffs contend that the trial court erred in finding that they had no cause of action under La R 23 the Louisiana Whistleblower 5tatute S 967 Plaintiffs maintain that La R 23 is not superseded by La R 30 S 967 S 2027 Louisiana Revised Statutes 23 states in pertinent part 967 A An employet shall not take reprisal against an employee who in good faith and after advising the employer of the violation of law 1 Discloses or threatens to disclose a workplace act or practice that is in violation of state law 2 Provides infonnation to or testifies before any public body conducting an invesfigation hearing or inquiry into any violation of law 3 Objects to or refuses to participate in an employment act or practice that is in violation of law B An employee may commence a civil action in a districY court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section If the court finds the provisions of Subsection A of this Section have been violated the plaintiff may recover from the employer damages reasonable attorney fees and court costs C For the purposes of this Section the following terms shall have the definitions ascribed below 1 Reprisal includes firing layoff loss of benefits or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section however nothing in this Section shall prohibit an employer from enforcing an established employment policy procedure or practice or exempt an employee from compliance with such 12 2 Damages include compensatory damages back pay benefits reinstatement reasonable attorney fees and court costs resulting from the reprisal D If suit or complaint is brought in bad faith or if it should be determined by a court that the employer act or practice was not in s violation of the law the employer may be entitled to reasonable attorney fees and court costs from the employee The scope of La R 23 is broad It proYects employees who disclose S 967 or threaten to disclose acts in violation of law employees who testify or provide information about acts in violation of law or employees who refuse to participate in an act which violates the law Louisiana Revised Statutes 30 states in pertinent part 2027 A No firm business private or public corporatio partnership l individual employer or federal state or local govermnental agency shall act in a retaliatory manner against an employee acting in good faith who does any ofthe following 1 Discloses or threatens to disclose to a supervisor or to a public body an activity policy practice of the em or another loyer employer with whom there is a business relationship that the employee reasonably believes is in violation of an environmental law rule or regulation 2 Provides information to or testifies before any public body conducting an investigation hearing or inquiry into any environmental violation by the employer or another employer with whom there is a busiiless relationship of an environmental law rule or regulation The scope of La R 30 is more specific It only protects employees S 2027 who disclose or threaten to disclose acts in violation of an environmental law or employees who testify or provide information about acts in violation of an environmental law As stated under well principles of statutory construction where established there is a general statute and a specific statute addressing the same subject matter such as La R 30 and La R 23 the more specific statute should S 2027 S 967 govern Barber v Marine Drilling Management lnc 01 E La 1986 D 13 02 l5 2 2002 WL 237848 unpublished Thus we find that La R 30 S 2027 supersedes La R 23 in regard to this claim S 967 Therefore after a de novo review we find that plaintiffs failed to state a cause of action under La R 23 This assignment of error has no merit S 967 DECREE For the foregoing reasons that portion of the district court judgment ruling that the plaintiffs failed to state a cause of action pursuant to La R 42 169 is S 1 affirmed that portion of the judgment ruling that the plaintiffs failed to state a cause of action pursuant to La R 30 is reversed and that portion of the S 2027 judgment tuling that the plaintiffs failed to state a cause of action pursuant to La S 967 R 23 is af ed firn the Thus districY court judgment is affirmed in part reversed in part and remanded to the district court Costs are assessed against plaintiffs AFFIRMED IN PART REVERSED IN PART AND REMANDED 14 DAN S COLLINS ET AL FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA STATE OF LOUISIANA THROUGH NO 2012 CA 1031 DEPARTMENT OF NATURAL RESOURCES ET AL MAY 3 1 2013 K 7 concurring I agree that because defendants have asserted a peremptory exception raising the objection of no cause of action we are bound to review the allegations of the petition in the light most favorable to plaintiffs and therefore their barebones claim of a public employee capacity must be accepted as true Nevertheless in their appellate brief plaintiffs have conceded that their claims arise out of a contractual relationship rather than that of employer Thus I believe employee that plaintiffs will be unable to recover any relief against defendants Accordingly I must concur

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.