Belle Company, L.L.C. VS State of Louisiana, Through the Department of Enviromental Quality, Assumption Parish, Mike McDaniel and Chuck Carr Brown
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2382 BELLE COMPANY LLC VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF ENVIRONMENTAL QUALITY ASSUMPTION PARISH MIKE MCDANIEL AND CHUCK CARR BROWN Judgment Rendered Appealed from June 12 2009 the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Docket Number C559014 Honorable Ross A Timothy Kelley Judge Presiding Counsel for Plaintiff Brupbacher Belle Robert R Broussard Company Appellant LLC LA Lafayette Counsel for Defendant Appellee Assumption Parish Police Jury James P Dore Alan J Berteau Baton E Rouge LA Stephen Counsel for Defendants Appellees State of Louisiana through the Department of Environmental Quality Mike McDaniel and J Oats Patrick B McIntire Square Lafayette LA Gordon Chuck Carr Brown and Elliott Vega Roger K Ward Baton Rouge LA ARTE B 7j d C D DOWNING JJ WHIPPLE J This involves matter by Belle Company suit a Department of Environmental Quality the Louisiana Belle LLC DEQ against seeking declaratory judgment and damages for inverse condemnation pursuant to alleged wrongful refusal to LSA Const grant Belle operate a I art solid s solid IV based sec waste the DEQ s permit application through landfill waste on DEQ filed exceptions of lis pendens lack of subject of action cause the exception and of lis with pendens regard of exception the action for and the action for damages regard we reasons to no cause the Belle no judgment granting of action with alternatively granting with s to The jurisdiction the actions for to judgment granting damages matter From the trial court prescription sought Assumption Parish its property in on which Belle exception declaratory regard of the prescription For the appeals to following affirm FACTS AND PROCEDURAL HISTORY In October 1994 Belle filed and operate to construct landfill in Belle APPEAL League naming the DEQ The district public as a court trustee in On Type August Assumption filed a petition defendant and concluded that the issuing Belle s II with the non 15 Parish DEQ for a permit hazardous solid waste 1997 People the s DEQ granted Environmental for review with the district raising various assignments court of DEQ had satisfied its duties error as the permit but determined that the DEQ had IBelle s permit application has had a protracted procedural history and has been subject of two reported decisions ofthis court See In re Belle Company LLC 2006 the 1077 La 1st 1 Assumption Parish application I and Type permit application s Action a an App 1st La 24 3 08 are 978 So 2d 977 writs denied 977 So 2d 957 958 and In Cir 6 27 01 herein Cir 12 28 07 809 So taken in 2d 225 large part from The these re 2008 0220 2008 0229 Belle Company LLC 2000 0504 La procedural history background prior reported decisions facts and 2 App stated erred in granting a permit LSA R S 30 2157 2 the district reversed the court remanded the compliance DEQ s Accordingly by judgment DEQ dated decision s issue the to decision court to was this court by APPEAL supported by its concluded that the environment and APPEAL In re Belle Company factual this court 242 district court court s Belle to reversal of the permit and the issue of and its articulation of a findings the to appeal DEQ matter was matter for Belle the lack merit 809 So with LSA R S found prior to proceedings statute to 2d 225 30 2157 no error in the grant the permit for failure 30 2157 further found appeal challenging the court to protector of the issuance of the on the issue of LSA R S 30 2157 In re at 245 remanded the revised emergency response 2While this as 6 27 01 comply decision s to Thus permit issued error were an answer with LSA R S Company 809 So 2d of App 1st Cir with the emergency response After the to answer and remanded this compliance assignments 2000 0504 La require compliance permit s finding regarding failure s In response to the to 1998 concluded that the DEQ had performed its duty However Belle filed 239 district on 14 with with LSA R S 30 2157 rational connection between the facts found and the this September DEQ for further proceedings matter to the appeal On ensuring prior compliance Belle without to to plan the DEQ Belle submitted an update that had been submitted to the DEQ pending before the DEQ the legislature enacted LSA RS 30 2157 effective June 20 1997 pertaining to emergency response standards The statute provides that prior to the issuance of a permit the applicant for a solid waste disposal facility shall review and consider the ability ofthe local emergency response agencies and medical care facility to respond to a hazardous material incident at the facility The applicant is further required to obtain certification from the local fire department local emergency medical services agency and the local hospital as to their B ability to respond to such an emergency LSA R S 30 2157 A the effective date of the statute predated the DEQ s permit decision in Although this case the DEQ made no reference to these specific requirements in its decision noting instead that Belle had promised to secure the appropriate emergency response certifications before becoming operational s permit application was 3 the during revised the of the pendency contingency However the public hearings hazardous that Belle that application were conducted emergencies materials update and supplement was unrelated to on some of the emergency Issue On June 29 2005 a for plan DEQ also requested the data contained in its response and appeal a notice of request that Belle provide 33 VlI 521 A l 33 VII 521 A l f landfill did if the applicable existing applicable Thereafter that time was issued which contained wetlands determination a wetlands a violate not 33 VII 519 N ii e deficiency demonstration use proposed by letter dated September 20 LAC to requirements pursuant Louisiana Administrative Code LAC to pursuant and documentation that the land LAC to pursuant provisions 2005 the at DEQ informed Belle that the Water and Waste Permits Division had discontinued permit application pending receipt by review of its wetlands demonstration documentation from the local governing body determination violate the existing land In response 22 2005 use that in emergency response issue remand and had a petition it was waste the proposed entitled to a While the district or process use proper did not to to the concluded that related to the scope of the directing the DEQ s request for s a contrary a writ of mandamus because of the discretion afforded the 4 September under LSA R S immediately grant Belle cause on Belle contended that requirements writ of mandamus show court not DEQ had acted beyond the reopened the entire permit disposal permit inappropriate that the making additional requests secretary and assistant secretary solid and applicable for writ of mandamus since it had fulfilled its emergency response 30 2157 DEQ of the wetlands requirements Belle filed contending if the DEQ this court was on concluded that because the secretary of the appeal a final decision within the deadline was entitled 30 2050 29 within directing 1 st noted that the In of time 978 So Cir 12 28 07 2008 0229 La 3 24 08 order of remand prior limited In statute to re the issue of Belle Belle court matter to writ of mandamus days Meanwhile the on Moreover this court further the DEQ s Belle 3 In its to court finality not but rather emergency response Thus this with instructions render to DEQ did court a to final decision of the court s opinion issue the on In Belle re s Belle at 986 September issue the original the petition for writ of mandamus 7 2007 Belle filed the instant suit DEQ for declaratory relief and damages in regard wrongful refusal to permit application compliance with the s of the Company LLC 978 So 2d entire the district directing within 30 s writs denied 2008 0220 the district court denial of Belle s and remanded the application 985 to act 2006 1077 Company LLC LLC 978 So 2d at 985 986 Company reversed the district Belle re 2d 977 by LSA R S to authorized assistant secretary 977 So 2d 957 958 authorize reconsideration of Belle was or Belle forth in LSA R S 30 2022 B writ of mandamus pursuant a the secretary specified period a App La the issuance of to set DEQ had failed to render Type I and and amended Type II to the DEQ s against alleged sanitary landfill permit petitions Belle to sought judgment declaring in pertinent part that 3In its original petition Mike McDaniel in his official his official capacity as Belle also named capacity Assistant as Secretary Secretary of as defendants of DEQ DEQ Assumption Parish and Chuck Carr Brown in However in its first amended petition Belle amended the original petition to list the named defendants as only DEQ Belle s claims against Assumption Parish involved certain and Assumption Parish ordinances passed by the Assumption Parish Police Jury which Belle contended interfered with its ability and right to use its property as a solid waste landfill These claims are the subject ofthe related appeal of Belle Company LLC v State of Louisiana through the Department of Environmental Quality 2008 CA 2381 also handed down this date 5 The judgments rendered 1 Belle 225 are law of the 2 2000 0504 LLC Company case Belle has La between the complied R S a Type court I and constraints s compliance II 6 s s set bound the by the constraints of LSA discretion with regard the to 30 2022 and the provisions illegally expanded DEQ illegally expanded the regard the to court and the to 27 2002 mandatory applicable time Louisiana the scope of its review as 2005 letter is 20 2005 letter is referenced in the requirement inapplicable to Belle s set Belle s existing land use DEQ s DEQ s permit application requirement inapplicable to forth in the set forth in the and permit application requirement of providing documentation that violate s 20 2005 letter the wetlands demonstration 9 the scope of its review of Belle additional conditions the wetlands determination September not emergency permit application September 20 8 no its inaction with by forth in LSA R S September 7 does are with the mandates of the district permit application by adding DEQ by its sanitary landfill permit effective May DEQ Administrative Code of Belle 30 2157 entitles it ipso facto without any additional consideration Type the 5 2d 809 So of same 4 Belle appellate Cir 6 27 01 DEQ 30 2022 and LAC 33 1505 and have application st with LSA R S DEQ and its secretary the App 1 re parties response submittals to the 3 court and this court in In by the district the proposed requirements is inapplicable to use Belle s permit application In addition to its contended that the DEQ s request for declaratory judgment actions in failing 6 to issue Belle s Belle also permit by May 27 application Belle permit application right an control to use and upon remand violated Belle enjoy its land as Thus Belle contended that the IV sec s inverse condemnation of Belle DEQ s actions conditions or constitutional s LSA Const art I were tantamount to property without due process s or just sought judgment against the DEQ Belle Accordingly compensation guaranteed by permit of the reVIew adding additional requirements upon remand and to the scope of its illegally expanding 2002 awarding Belle damages for inverse condemnation DEQ responded The of lis objections action and to the petitions by filing exceptions raising lack of pendens regard With prescription subject DEQ averred that the gist of Belle damaged Belle by not issuing to s to matter the jurisdiction Belle the of lis exception lawsuit herein no cause was pendens that the which identical at to that time dismissal without With the allegations were regard to requesting action In over pending the exception means 4In damages was on its memorandum in case DEQ sought the the of the subject of action not the provide matter a cause of any claim for petition exception of lis filing exception applications were pending before 7 an jurisdiction Belle with pendens this court had rendered but writ permit DEQ asserted that DEQ contended that the face of the support the declaratory judgment action Belle no cause Alternatively prescribed that at the time of mandamus the subject matter jurisdiction which the district court did not have under these circumstances the law did damages Thus suit of lack of of this 4 were proceedings that the district court in effect issue the landfill support of its exception of action for appea1 on the requested landfill permit The forth in the mandamus prejudice of the instant DEQ contended that by was set of DEQ had DEQ contended that the allegations and claims in the instant suit virtually the the DEQ noted its decision in the the Louisiana Supreme Court Following hearing a on the district court rendered exceptions the judgment maintaining the exception of lis pendens with regard actions declaratory judgment for those dismissing thereby maintaining the exception of no cause of action with regard i damages alternatively maintaining and action the to regard the inverse condemnation claim e 5 damages claim dismissed in their the Thus Belle claims of against the DEQ committed legal despite result of the Belle s and maintaining the DEQ condemnation action of Belle and s a s actions art denial 2004 1316 La 6Belle with were s silence exception occur as against the DEQ and the full the interpreting extent which constituted of its loss of committed legal error in Belle court the fact that the DEQ the earliest until inverse s s taking September 20 2005 prescriptive period is three years from 6 exception of lack of subject matter jurisdiction exception See Wood v Brian Harris Autoplex to the of that Cir 8 3 05 no cause prescription regarding of at to 4 of taking delays against the DEQ despite rejection App 1st sec 1 the district a and exception discovery of the taking or I compensated the district 2 not s inverse condemnation action s the fact that the applicable 5The judgment is deemed s property did despite the date of maintaining the DEQ that Belle be DEQ property in LSA Const fact that jurisprudence require as a error Belle regarding the that entirety judgment Belle appeals contending that of action the action for prescription From this court actions thereby dismissing exception s to the to 923 So 2d 17 21 n 3 maintaining of the exception of lis pendens and resulting dismissal of its declaratory judgment claims herein Accordingly the portion of the district court s judgment dismissing Belle s claims for declaratory judgment is not before us We further note that in an additional assignment of error Belle challenges the district court s June 12 2008 judgment maintaining the exception of res judicata filed by the Assumption Parish Police Jury However that judgment is the subject of the related appeal of Belle Company LLC v State of Louisiana through the Department of Environmental Quality 2008 CA 2381 and that additional assignment of error is has not challenged the district court addressed therein 8 s DISCUSSION The function of the peremptory test the affords legal sufficiency a remedy Stores Inc La 2 6 09 to 2005 1228 plaintiff s right the La 1 App Generally no exception raising st in the of the the objection must petition to the relief exception raises maintaining action de be taken a novo of purposes and with 7 2004 1459 La an A of action for cause as the action of law to support at 998 or controvert LSA C C P only issue 12 4 Subsection B Acts 2006 No 851 v 05 all facts at the trial petition the plaintiff is legally So appellate 2d at 298 courts Inc Because the review judgment a no cause of 938 So 2d at 728 inverse condemnation claim its the art 931 In addition 728 of the Louisiana Constitution or the against Tammany Parish Council Thus the true the face of the Ourso state 298 operative facts that the of action 2d 938 So provides authority Property shall not be political subdivisions except for public just compensation paid Suire 7 by on 2d 295 938 So 2d 724 728 Bayou Liberty Association damaged by the his benefit assert St v as Wal Mart v 998 So peremptory exception raising the objection of bringing or Inc no cause accepted question a of Inc sought Article I section 4 B for the judicially evidence may be introduced exception is whether entitled to Cir 6 9 06 Bayou Liberty Association pled 999 So 2d 785 Bayou Liberty Association defendant 08 peremptory exception is defined purposes of the give rise 14 11 to whether the law Ourso pleading App 1st Cir 2008 0780 La writ denied 2008 2885 in the alleged of action is no cause petition by determining of the the facts on exception of to the owner or into the court for Lafayette City Parish Consolidated Government 907 So 2d 37 60 One aim of article I of article I section 4 of the Louisiana Constitution However the above quoted provision 9 remained sec was 4 was amended unchanged to that the State and its subdivisions compensate assure taking or taking and Transportation Development its or constitution our subdivision has has legislature damages for well as as for any Department of State requires compensation initiated not provided not Company Inc command to pay 2d So out procedural remedy or for that purpose procedure whereby of the self or an damaging executing an a owner property damaged against a Chambers Investment Company or a at damaging was damaged for a in public constitutional a provides a has commenced 602 must party recognized species of property right has been affected or Inc private entity having expropriation no To establish inverse condemnation been taken Company seeking compensation for land 595 So 2d Inc seek of the constitutional nature governmental the powers of eminent domain where can action for inverse The action for inverse condemnation to in the Although owner Chambers Investment just compensation 602 at taken a the though even expropriation proceedings set up uncompensated taking an condemnation arises already things Chambers Investment v accordance with the statutory scheme 595 to 2d 598 602 La 1992 Moreover State respect damaging of the objects of those rights or 595 So with damaging of their rights for any owners 2 and sense show that 1 a the property has 3 purpose under LSA Const art I the taking sec 4 or Suire 907 So 2d at 60 In the instant to the landfill p ermit its land Belle s were p ermit review of the Belle alleged and its in its amended rights case by May p ermit 27 a that its control to adversely affected by petition the use DEQ actions in s enjoy and protect illegally expanding the 2002 pplication 10 and rights not issuing scope of its adding conditions to Belle s actions which Belle contended p ermit tantamount to were in Accordingly s Belle has stated of action for inverse condemnation whether these or a a cause rights property that Belle contends of recognized species condemnation claim and whether these rights Suire 907 So 2d must we affected constitute address property property right within the purview of an inverse they do constitute recognized property rights if have been taken at 60 were whether determining condemnation of Belle inverse an or damaged Chambers Investment in a constitutional 595 So Inc Company sense 2d at 603 In support of its contention that the rights asserted do condemnation claim the is property subject exercise of the to police permit takings itself argues Belle of a to s health LSA Const power cases do not expand property at 511 U S that right as to against use 94 and that the State has I arena the notion of property The to safety allow the property in thus it Belle DEQ further points out that because of the The issues to 114 S Ct 2100 reasonable DEQ not United States 7 1106 private issue is the real estate permit is granted by the DEQ v art power in the environmental constitutionally protected right Arms Inc own and inverse be considered the property which has been taken and a an support to use constitute reasonable statutory restrictions and the reasonable permit from the DEQ public would DEQ contends that the right lawfully exercised its police argues that that right of property recognized species not state a manner involved build a no landfill property on 212 217 regulation that is public 11 has a a cert denied 1994 the DEQ contends no one injurious owner Quoting Mitchell Fed Cir 1993 128 L Ed 2d 662 expectation his property unless See LSA R S 30 2155 3d F s has to the a legally protected safety of the general On the other hand Belle argues that its lawful purposes Citing Annison 519 denied is a recognized species Hoover v App La and Rivet 1988 La 94 2d 397 635 So 2d 295 Belle further form of zoning or rather a state ingress and permit at takings court and not was use and for three mobile homes permit permit affected right taking occur and concluded that city plaintiffs located of Denham on constitute were was access to at concluded that 298 does not affect its right regulatory physical receiving lot rental payments when the Board of Springs adopted ordinances annexing zoning the property DEQ in fact issued the However Belle contends that the to inverse programs Annison 517 takings their property concedes in brief to this court that the to Belle in June 2008 but impaired the court Rivet 635 So 2d not in the requested permit substantially property into the city of Denham Springs 8Belle may 646 So in Annison addressed the distinction between In Annison the Aldermen for the App 5th Cir La disposal permit waste develop his property the a writ Thus because the denial of highway state regulatory takings at 423 solid and the property that affect property values mayor may So 2d a the to 369 governmental taking to egress Cir 1987 8 State of Louisiana in the form of the denial of a issue the landowner had established This a at 298 ability s or that Rivet 635 So 2d highway landowner asserts driveway permit was a st 298 writ denied 94 1606 La 11 29 94 rezoning In Rivet the 1 v Department of Transportation and Development 93 16 3 its property for use right that has been affected 2d 420 517 So 2d 148 So of to right condemnation damages DEQ for the s the R 1 requested issuance of the DEQ s unilateral and summary act of discontinuing its review of Belle s permit application in September 2005 given that the the DEQ s discontinuing of review of Belle s application caused Belle a Belle notes that the United States temporary loss of use of its property Court in First English Evangelical Lutheran Church of Glendale v County of Supreme Angeles Los 1987 California 482 U S held that a 304 318 compensation pursuant a Ct 2378 regulatory taking may claim ofinverse condemnation temporary to 107 S 12 2388 96 L Ed 2d 250 require the payment of just residential and restricting the Annison 517 So 2d use of mobile homes within the at 427 On review of the district court officials this against city court English Evangelical in First rejection of s claims plaintiffs the noted that the United States Lutheran Church of Glendale v Supreme Court held that governmental taking a rezomng Annison 517 So regulatory program such the zoning ordinances adversely affects property values does destroys major portion of the property a zoning issue therein at constitute not s 1987 or This court then held that 2d at 422 423 as in the form of occur may of Los County California 482 U S 304 107 S Ct 2378 96 L Ed 2d 250 Angeles limits city value a that unless it taking Annison a 517 So 2d at 423 Thus in Annison this may state a cause regulatory taking that the facts recognized the possibility that of action for inverse condemnation in certain limited circumstances alleged herein which consideration of this cannot court support a exception we must take over a dispose of it within Inc 595 So subject the art to police 2d true we a conclude for purposes of claim for inverse condemnation authority LSA Const the result of However as plaintiff readily distinguishable and simply are Ownership is the right that confers exclusive as a I thing The on a owner person direct immediate and of a thing may use enjoy and the limits and under conditions established 94 LSA C C at 603 art However 477 the Chambers Investment rights of a land owner by law Company are always reasonable statutory restrictions and the reasonable exercise of power LSA Const art I 94 Article IX section 1 of the Louisiana Constitution 13 provides The natural of the resources state air and including the healthful scenic historic and esthetic environment shall be protected conserved water and quality of the and replenished and consistent with the health safety and welfare of the people The legislature shall enact laws to insofar as possible implement this policy As part of the State created and given jurisdiction environment disposal within the LSA R S 30 2011 for protecting been the directive given environment caused by The In 3163 La 15 9 94 has been empowered a landfill land on his regulation of the regulation of solid waste the gave the the environment and the to solid control waste 642 So 2d 1258 owner the legislature and to grant does not regulate pollution To carry out this to of the LSA R S Company 93 duty the DEQ Company 642 So 2d recognized right a was DEQ has specifically deny environmental permits or have DEQ DEQ the primary disposal practices 1262 American Waste and Pollution Control such power American Waste and Pollution Control 3 re including the police affecting matters over state responsibility 30 2154 A exercise of its s In at 1262 re As build and operate property without prior approval by the DEQ a See LSA R S 30 2155 In Allied General Nuclear Services Fed 1988 Cir a denied 488 U S the United States Court of the Nuclear of cert Regulatory corporation reprocessing plant s 819 refusal s application for constituted the Ct 61 109 S 102 L Ed Appeals addressed the Commission a 14 to to of a 2d 39 issue of whether recommence permit taking 839 F 2d 1572 United States v operate consideration a plutonium property right for which compensation was due 9 protected property right relied court regulation that is injurious to Services 839 F 2d Similarly to operate the plutonium reprocessing plant the that premise corporation a the safety of the general public at to legally protected right use when faced with the question importation under the Fifth Amendment the federal was not Inc v to support a of whether the of assault rifles arena selling entered into and control noted that the firearms by suspension the Bureau compensable taking court concluded that the assault rifles in the United States The court held that enforceable one which s expectation of expectation flowed from Thus the in the court arise in an start is subject to at 7 216 The import governmentally controlled concluded that the firearms selling assault rifles in the United States which the A TF permits could not be said right protected under the Fifth Amendment Mitchell 9We cannot entered the firearms importer voluntarily importation note that Allied General Nuclear a it also contended that the rights The United States Constitution and of art I private property shall not be taken for 517 So 2d at 423 and we language sec a property 7 F 3d at claim brought While Belle in its asserting its inverse had violated its Louisiana and of both the Fifth Amendment of the 4 of the Louisiana Constitution public find the federal DEQ be taking Fifth Amendment of the United States Constitution pursuant relied primarily upon Louisiana Constitution art I sec 4 in petitions United States constitutional to Arms Inc Services involved to the condemnation claim rights 3d F from the Mitchell Arms Inc thereby knowingly placing itself of firearms importer appellate a taking claim against the government pervasive government business of at 217 3d F United States 7 voluntarily court a manner property right protected by the Fifth Amendment Mitchell Arms a sufficient area expectation s property in state Allied General Nuclear of Alcohol Tobacco and Firearms A TF constituted importer legally 1576 and revocation of permits for the firearm no reasonable against as has no one had concluding the basic upon that the In use cases we 15 without provides that just compensation Annison discuss herein to be instructive 216 the Additionally actions the right to sell assault weapons in domestic right inherent in the firearm that right comes Consequently into importer constitute because the firearms the DEQ a actions waste 7 Belle to right come landfill power any entirely subject Rather the rifles and to the ATF import permits did from the 3d F lOThe art I from the DEQ voluntarily sought 10 s not Mitchell operate to operate to enter into solid a we was being only waste sec solid into landfill waste an is not state upon the issuance of the conclude that because Belle at a arena As such the interest affected control all times did s not s right Rather permit by to the DEQ submission of constitute 4 of the Louisiana Constitution a by ability to operate entirely subject expectation arising from Belle disposal permit application protected by Inc all times a import permit ability to import s ownership of immovable property in this s Consequently regulatory waste the would right solid at permit a pervasive government s the DEQ a seeking its property inherent in Belle such was importer an not s 7 F 3d at 217 on to of those weapons property right protected by the Fifth Amendment a Likewise in subject ownership expectation arising power any Arms Inc landfill s ATF is commerce upon the issuance of being only sell them in the United States regulatory by the noted that the interest affected court a a s solid property right See Mitchell Arms at 217 court further noted that in revoking the permits the ATF withdrew its prior sell the assault rifles in the United States but importer that otherwise the firearms importer retained complete control over the rifles and could have done anything it wished with the rifles except import them into the United States authorization for the firearms Mitchell Arms Inc to Similarly while the DEQ s refusal to continue permit application prevented Belle from gaining the necessary 7 F 3d at 217 consideration of Belle s permission to operate a solid waste landfill on its property Belle nonetheless retained complete control over its property and could use the property for any lawful purpose 16 While Belle does have permit application its regulated and nature within the for a waste issues concerned safety context of authorizes the re Belle Accordingly portion against II Inc it a given is seek not Indeed Belle it filed proceeding health property right a a 30 2050 29 RS remedy which requiring timely and received sought on public Moreover writ of mandamus a the September 22 2005 just See 978 So 2d at 985 court of action and 11 right considering of the district no cause find that such by the DEQ of given the heavily 2 and application Company 30 2022 B disposal practices we to that relief in the mandamus In consideration right is provided in LSA applicant consideration of the timely to inverse condemnation claim an violation of that right LSA R S see of solid a s the foregoing we judgment maintaining dismissing Belle s find the no DEQ s error in the exception of claims for inverse condemnation Having found that the maintaining of the exception of no cause recognize there is no blanket rule that one may never prevail on a takings claim if participating in a heavily regulated industry Maritrans Inc v United States 40 Fed Cl 790 795 797 1998 but that the asserted claim may be considered in the context of reasonableness of the property owner s expectation and the safety issue underlying the regulation See for example NRG Company v United States in which the owners of mineral prospecting permits that 24 Cl Ct 51 52 53 1991 for coal on an Indian reservation brought actions claiming that authorized them to explore the government s cancellation ofthe permits pursuant to the Cancellation Act constituted a taking under the Fifth Amendment On cross motions for summary judgment the court held that the cancellation of the permits constituted a taking ofplaintiffs property The court found that the appropriate standard for evaluating a taking claim was set forth in Connolly v Pension Benefit Guaranty Corp 475 U S 211 106 S Ct 1018 89 L Ed 2d 166 1986 where the Court listed three factors of particular significance to the inquiry 1 the economic impact of the regulation on the claimant 2 the extent to and which the regulation has interfered with distinct investment backed expectations 3 the character of the government action Evaluating these factors the court determined that a federal taking of private property had occurred therein Regarding the first factor the court found that plaintiffs had invested substantial sums and had suffered significant economic hardship Regarding the second factor the court determined that the government had modified established rules after pertinent agreements had been entered into which was not reasonably foreseeable However as noted therein and unlike the instant case regarding the character of the governmental action the court noted that there were no issues of safety involved NRG Company 24 Cl Ct at 60 63 In so holding we See also United Nuclear Corporation v United States 912 F 2d 1432 1433 Fed Cir 1990 in which a mining company alleged that the failure of the Department of the The Interior to approve its mining plan was a taking without just compensation company had been awarded uranium leases on reservation land by the Navajo Tribal Council but the Council later objected to the 17 mining plan The Secretary ofthe Interior of action alternate was legally correct we pretermit consideration of the trial court s ruling maintaining the exception of prescription CONCLUSION For the above and the district court Costs of this foregoing dismissing appeal are Belle assessed the June 27 2008 reasons s claims against the against Belle Company judgment of DEQ is affirmed Inc AFFIRMED refused to approve the before been required In finding listed above that mining plan a taking without tribal approval approval had occurred the court looked to the which had never Connolly factors Allied General Nuclear Services Inc v distinguished United States the nuclear fuel reprocessing permit case noting that Allied General involved issues of national safety and thus the court had found no legally protected property right However because the Secretary s actions did not involve national safety and the property interest taken was the plaintiffs leasehold interest in the minerals not a mere expectation that plaintiff would be permitted to engage in mining the court found that a taking had occurred United Nuclear Corporation 912 F 2d at 1437 1438 See further Acceptance Insurance Companies Inc v United States 84 Fed Cl 111 2008 where an insurance holding company brought suit against the U S alleging that a regulatory taking had occurred when the government had blocked the proposed sale of certain crop insurance policies to a private third party purchaser The federal appellate court found that the plaintiff did not have a cognizable property interest in selling its property to a third party purchaser under the terms of a proposed non binding agreement Acceptance Insurance Companies Inc 84 Fed Cl at 116 See also American Pelagic Fishing Company v United States 379 F 3d 1363 1366 1368 Fed Cir 2004 where the owner of the vessel which had been transformed for use as a commercial fishing vessel suit alleging that the revocation of permits allowing it to conduct fishing brought operations for mackerel and herring in the Exclusive Economic Zone EEZ ofthe United States in the Atlantic Ocean constituted a taking The federal appellate court concluded that the owner did not have a protected property interest in the permits and authorizations or in the right to use its vessel to conduct fishing operations American Pelagic Fishing Company In The court also 379 F 3d at 1366 1367 1374 finding no protected property interest did not and could not have the federal interest in the appellate court held fishery permits and that that a property plaintiff plaintiff likewise did not have a property interest in the use of its vessel to fish in the the EEZ Citing Mitchell Arms Inc v United States 7 F 3d 212 Fed Cir 1993 denial of the permit to import weapons case the court noted that the right to use the vessel to fish in the EEZ was not inherent in the ownership of the vessel American 3d Pelagic Fishing Company 379 F at 1381 1383 18
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