SUPREME COURT OF LOUISIANA ______
Docket No. 19-C-160 ______
STEVE CROOKS AND ERA LEA CROOKS
VS.
THE STATE OF LOUISIANA, THROUGH THE LOUISIANA DEPARTMENT OF NATURAL RESOURCES ______
On Application for Writ of Certiorari or Review From the Third Circuit Court of Appeal Docket No. 17-00750-CA
9th Judicial District Court Rapides Parish, Louisiana, Case No. 224,262 The Honorable James H. Boddie, Jr., Presiding Judge Ad Hoc
CIVIL PROCEEDING ______
BRIEF IN SUPPORT OF MOTION TO STRIKE OR, IN THE ALTERNATIVE, RESPONSE TO AMICUS CURIAE BRIEFS FILED BY THE RAPIDES PARISH POLICY JURY, THE LASALLE PARISH POLICE JURY, THE RAPIDES PARISH GRAVITY DRAINAGE DISTRICT NO. 1, THE RAPIDES PARISH GRAVITY DRAINAGE DISTRICT NO. 2, THE CATAHOULA LAKE FISH AND GAME COMMISSION, THE NATIONAL SOCIETY OF PROFESSIONAL SURVEYORS, AND THE LOUISIANA CRAWFISH PRODUCERS’ ASSOCIATION – WEST, INC.
PLAINTIFFS/RESPONDENTS ______
J. Michael Veron (#07570) James J. Davidson, III (#4708) J. Rock Palermo III (#21793) Christopher J. Piasecki (#25827) Alonzo P. Wilson (#13547) DAVIDSON, MEAUX, SONNIER, MCELLIGOTT, Turner D. Brumby (#33519) FONTENOT, GIDEON & EDWARDS VERON, BICE, PALERMO & WILSON, LLC P.O. Box 2908 P.O. Box 2125 Lafayette, LA 70502-2908 Lake Charles, LA 70602-2125 Telephone: (337) 237-1660 Telephone: (337) 310-1600 Facsimile: (337) 237-3676 Facsimile: (337) 310-1601
V. Russell Purvis (#10909) SMITH, TALIAFERRO & PURVIS 407 Mound Street P.O. Box 298 Jonesville, LA 71343 Telephone: (318) 339-8526 Facsimile: (318) 339-8528
COUNSEL FOR PLAINTIFFS/RESPONDENTS
TABLE OF CONTENTS
TABLE OF CONTENTS ...... ii
TABLE OF AUTHORITIES ...... iii
INTRODUCTION ...... 1
ARGUMENT AND CITATION OF AUTHORITIES ...... 2
I. The Court should strike the Patent amici’s briefs ...... 2
II. The Patent amici’s claim that the Plaintiffs are collaterally attacking United States Patents and GLO Surveys is unsupported ...... 3
a. No party has attempted to collaterally attack any United States patent or GLO surveys ...... 3
b. The body of water in the Catahoula Basin in 1812 was navigable and state law controls ...... 4
CONCLUSION ...... 5
CERTIFICATE AND VERIFICATION OF SERVICE ...... 7
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TABLE OF AUTHORITY
Cases Page
Barfield v. Bolotte, 2015-0847, p. 4 (La. App. 1 Cir. 12/23/15), 185 So.3d 781 ...... 1, 2, 3 Barney v. City of Keokuk, 94 U.S. 324 (1876) ...... 4 Boudreaux v. State Dep’t of Transp. & Dev., 2001-1329, p. 2 (La. 2/26/02), 815 So.2d 7 ...... 2 Dean v. Southmark Const., 2003-1051, p. 6 (La. 7/6/04), 879 So.2d 112 ...... 2 Kean v. Calumet Canal & Improvement Co., 190 U.S. 452 (1903) ...... 4 Marks v. New Orleans Police Dep’t, 2006-0575, p. 8 (La. 11/29/06), 943 So.2d 1028 ...... 2, 3 Perot v. Police Jury of Natchitoches Parish, 22 So.2d 666 (La. 1945) ...... 1, 2, 3 Pollard v. Hagan, 44 U.S. 212 (1845) ...... 4 Prest v. Louisiana Citizens Prop. Ins. Corp., 2012-0513, p. 18 (La. 12/4/12), 125 So.3d 1079 ...... 2 Shively v. Bowlby, 152 U.S. 1 (1894) ...... 5 State ex rel. Bd. of Comm'rs of Atchafalaya Basin Levee Dist. v. Capdeville, 83 So. 421 (La. 1919) ...... 4 State v. Richardson, 72 So. 984 (La. 1916) ...... 5 Thomas v. Bridges, 2013-1855, pp. 11-12 (La. 5/7/14), 144 So.3d 1001 ...... 2 Vermilion Par. Police Jury v. Williams, 2002-12, p. 5 (La. App. 3 Cir. 7/3/02), 824 So.2d 466 ...... 2, 3
Statutes and Court Rules
LA. CIV. CODE. art. 450 ...... 5 LA. CIV. CODE. art. 456 ...... 5 Rules of the Supreme Court of Louisiana VII, §12 ...... 1
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INTRODUCTION
On or about January 28, 2019, several entities—including the Rapides Parish Policy Jury,
the LaSalle Parish Police Jury, the Rapides Parish Gravity Drainage District No. 1, the Rapides
Parish Gravity Drainage District No. 2, the Catahoula Lake Fish and Game Commission, the
National Society of Professional Surveyors, and the Louisiana Crawfish Producers’ Association
– West, Inc. (collectively, the “Patent amici”)—submitted amicus curiae briefs in support of the
Defendant/Applicant in this case, the State of Louisiana, through the Department of Natural
Resources (the “State”).
Under Rule VII, Section 12 of this Court, amicus briefs are only permitted if they will be
helpful to the Court in more thoroughly analyzing and deciding the issues presented in a case.
SUP. CT. RULE VII, § 12; see also Barfield v. Bolotte, 2015-0847, p. 4 (La. App. 1 Cir. 12/23/15),
185 So.3d 781, 784, writ denied, 2016-0307 (La. 5/13/16), 191 So.3d 1058 (recognizing that amicus must “meet the basic requirement of stating specific reasons why [its] brief would be helpful to or aid this court in deciding the instant appeal”) (emphasis in original).
The briefs submitted by the Patent amici violate this Court’s rule allowing amicus briefs because they raise new issues and theories of law that have never previously been raised in this case—either before the trial court, the Third Circuit Court of Appeal, or by the State in its writ application to this Court. Because the State may not raise issues for the first time before this
Court, neither can third parties whose appearance in the case as a “friend of the court” is solely by the Court’s indulgence. See, e.g., Perot v. Police Jury of Natchitoches Parish, 22 So.2d 666,
668 (La. 1945) (court could not consider issue raised by amicus “since the questions involved were not raised in the pleadings of the parties themselves nor presented by them to the district court”). Accordingly, the Court should strike the amicus briefs filed by the Patent amici.
Even if considered, however, these amicus briefs are not helpful to the Court because the legal issues they raise are irrelevant and contradicted by the evidence and the law. The Patent amici essentially claim that Plaintiffs/Appellees (the “Plaintiffs”) are improperly attempting to collaterally attack patents issued by the United States. However, the Patent amici are wrong. It is hornbook law that navigable bodies of water, and the land beneath them, are not susceptible to conveyance by the United States. This time-honored law defeats the Patent amici’s argument at the outset. 1
ARGUMENT AND CITATION OF AUTHORITIES
I. THE COURT SHOULD STRIKE THE PATENT AMICI’S BRIEFS.
The Patent amici argue in their briefs that the Plaintiffs’ action below is nothing more
than an impermissible collateral attack on the validity of “the United States Patents that were
granted on land surrounding Catahoula Lake,” and the General Land Office (“GLO”) surveys
upon which the patents were based. The Patent amici further argue that both state and federal
law prohibit such attacks.
The problem for the Patent amici is that neither the Plaintiffs nor the State ever attacked
or otherwise questioned any of the United States patents or underlying GLO surveys. It is not
surprising, then, that there is no evidence of any such “attack” in the record of this case. Beyond
that, the State has never claimed in this case that the Plaintiffs (or anyone else for that matter)
were attacking, questioning, or seeking to modify any United States patent or GLO survey.
This Court has long adhered to the rule that its appellate review is restricted to issues that
were properly submitted to the trial court and contained in the appellant’s assignments of error.
See Dean v. Southmark Const., 2003-1051, p. 6 (La. 7/6/04), 879 So.2d 112, 116 (“We cannot
consider contentions raised for the first time in this Court which were not pleaded or raised in the
court below and which the lower courts have not addressed.”); Boudreaux v. State Dep’t of
Transp. & Dev., 2001-1329, p. 2 (La. 2/26/02), 815 So.2d 7, 9 (same); Thomas v. Bridges,
2013-1855, pp. 11-12 (La. 5/7/14), 144 So.3d 1001, 1009 (refusing to hear issues raised for first
time on appeal); Prest v. Louisiana Citizens Prop. Ins. Corp., 2012-0513, p. 18 (La. 12/4/12),
125 So.3d 1079, 1092 (same).
Because appellate courts may only hear and decide issues based on the record before
them, the courts have logically applied the same rule to amicus briefs and clearly held that
“issues not raised by the litigants cannot be raised by amicus curiae on appeal.” Vermilion Par.
Police Jury v. Williams, 2002-12, p. 5 (La. App. 3 Cir. 7/3/02), 824 So.2d 466, 470; see also
Perot, 22 So.2d at 668 (refusing to consider issue raised for first time on appeal in amicus brief);
Marks v. New Orleans Police Dep’t, 2006-0575, p. 8 (La. 11/29/06), 943 So.2d 1028, 1033 n.5
(same); Barfield, 185 So.3d at 784 (denying leave to file amicus brief that raised new issues and legal theories parties never raised below). Simply put, a purported “friend of the court” is
not entitled to a larger scope of review than the parties to the litigation. 2
In violation of this long-standing rule, the Patent amici’s briefs seek to raise new issues
and theories of law and, in turn, obtain a ruling that this Court cannot legally grant. See
Vermilion Par., 824 So.2d at 470; Perot, 22 So.2d at 668; Marks, 943 So.2d at 1033 n.5;
Barfield, 185 So.3d at 784. As a consequence, their briefs can be of no assistance to the Court in
deciding the issues before it. They should be stricken.
II. THE PATENT AMICI’S CLAIM THAT THE PLAINTIFFS ARE COLLATERALLY ATTACKING UNITED STATES PATENTS AND GLO SURVEYS IS UNSUPPORTED.
As shown above, the Court should strike the briefs filed by the Patent amici because they
raise new issues and theories of law that have never been raised in this case. Nonetheless, even
if their argument on collateral attacks is considered, it is both factually and legally wrong.
a. No party has attempted to collaterally attack any United States patents or GLO surveys.
Contrary to the Patent amici’s unfounded arguments, neither the Plaintiffs nor any other
party to this litigation attacked, questioned, or otherwise sought to modify any United States
patent or GLO survey. Tellingly, none of the Patent amici cites to any evidence in the record
showing that any party made or even attempted to make such an attack. Nor does any such
evidence exist, which is presumably the reason the State never asserted this legal theory as an
assignment of error. In fact, one of the amici—the Louisiana Crawfish Producers Association-
West., Inc.—concedes this point: “Plaintiffs did not assert that the GLO surveys were fraudulent or that the surveyors committed gross error, and more importantly, Plaintiffs made no showing of such.”1
The Patent amici cite several cases and statutes in their briefs that supposedly support
their position. However, many of their cited cases deal with parties asserting that the patents
and/or surveys were irregular, fraudulent, or erroneous. And many of their cited cases involve
non-navigable bodies of water. Neither of these factual scenarios exists in this case. For these
reasons, the cases and statutes upon which the Patent amici rely are irrelevant and certainly do
not support their position.
1 See Amicus Br. of Louisiana Crawfish Producers Association-West., Inc. at 4 (emphasis added). 3
b. The body of water in the Catahoula Basin in 1812 was navigable and state law controls.
The parties stipulated before the trial court that the water body in the Catahoula Basin
was navigable in 1812.2 This stipulation is fatal to the Patent amici’s argument. Because the
body of water in the Catahoula Basin was navigable in 1812, the United States would have never
surveyed the lands at issue here and, in fact, did not survey those lands.
The United States never conducted a survey because the relevant lands were never
susceptible of being owned or conveyed by the federal government. As the United States
Supreme Court has repeatedly explained:
“[W]hilst the ownership of the United States, under the Confederation and under the Constitution, both of the dry land and that covered with water in the public domain, cannot be controverted, from the beginning it was conceded that ownership of the public domain did not carry with it navigable waters or the land constituting the beds thereof, as such waters were considered within the class of public waters to be forever devoted to the public use.”
Kean v. Calumet Canal & Improvement Co., 190 U.S. 452, 479-80 (1903).
The United States Supreme Court held as early as 1845 that “[t]he shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectfully ….” Pollard v. Hagan, 44 U.S. 212, 230 (1845).
Further, “[a] right to the shore between the high and low water-mark is a sovereign right, not a proprietary one.” Id. at 215. Because these lands were specifically reserved to the states, the states were empowered to determine rights and ownership pertaining to these lands rather than the federal government. As the Supreme Court explained in Pollard:
“This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs exclusively to the states within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it.”
Id. at 230.
When admitted into the Union in 1812 “on an equal footing with the original states,”
Louisiana (like all other states) acquired title to the beds of navigable water bodies in its
boundaries by virtue of its inherent sovereign. See Barney v. City of Keokuk, 94 U.S. 324, 338
(1876); State ex rel. Bd. of Comm'rs of Atchafalaya Basin Levee Dist. v. Capdeville, 83 So. 421,
425 (La. 1919). Thus, upon admission, Louisiana acquired title to all lands within its boundaries
2 See R. at 11:2560, 11:2564 (Trial Court’s Written Reasons at 1, 5). 4
below the ordinary high-water mark of navigable bodies of water, along with the power to
determine the rights of riparian owners. See LA. CIV. CODE. art. 450; Shively v. Bowlby, 152
U.S. 1, 40 (1894); State v. Richardson, 72 So. 984, 989-90 (La. 1916).
Because navigable waters and the lands under them were expressly reserved to—and became sovereign property of—the states, Louisiana law applies to the lands at issue here. The
State later adopted what is now codified under article 456 of the Louisiana Civil Code. Article
456 declares that, if a navigable water body is a river, the riparian landowners own their banks
(i.e., the area of land lying between the ordinary low and high water mark).
When considering article 456 and the facts and evidence presented during trial, the trial
court found that article 456 applied and held that the Plaintiff riparian owners owned the relevant lands located between the ordinary low and high water mark (also known as the banks of Little
River in 1812). Significantly, the State’s primary expert (Dr. Frank Willis) agreed:
Q: Would you agree with me in the case of a river, the land that exists between the ordinary low water … [and] high water would be owned by the riparian landowners?
A: On a navigable river, yes, sir. If it’s a river, yes.3
The State owned all navigable bodies of water and underlying lands, and thus the lands at issue were not owned—or susceptible to conveyance—by the United States. As a result, collaterally attacking any United States patent or GLO survey is not possible.
CONCLUSION
The Patent amici’s briefs should be stricken because they raise issues and theories of law that were never previously raised in this case. Even if considered, these amicus briefs are not helpful to the Court because their purely legal arguments are irrelevant. Specifically, there is no evidence in the record that the Plaintiffs (or any other party) attacked, questioned, or sought to modify any United States patent or GLO survey.
3 R. at 18:4093 (Jan. 28, 2015 Tr. at 215, Test. of Willis) (emphasis added). 5
Respectfully submitted,
VERON, BICE, PALERMO & WILSON, LLC
J. MICHAEL VERON (#7570) J. ROCK PALERMO III (#21793) ALONZO P. WILSON (#13547) TURNER D. BRUMBY (#33519) 721 Kirby Street/P.O. Box 2125 Lake Charles, LA 70602-2125 Telephone (337) 310-1600 Facsimile (337) 310-1601
SMITH, TALIAFERRO & PURVIS 407 Mound Street/P.O. Box 298 Jonesville, Louisiana 71343 Telephone (318) 339-8526 Facsimile (318) 339-8528
DAVIDSON, MEAUX, SONNIER, McELLIGOTT, FONTENOT, GIDEON & EDWARDS JAMES J. DAVIDSON, III (#4708) CHRISTOPHER J. PIASECKI (#25827) 810 South Buchanan St./P.O. Box 2908 Lafayette, LA 70502-2908 Telephone (337) 237-1660 Facsimile (337) 237-3676
/S/ CHRISTOPHER J. PIASECKI CHRISTOPHER J. PIASECKI ATTORNEYS FOR PLAINTIFFS/RESPONDENTS
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CERTIFICATE AND VERIFICATION OF SERVICE
BEFORE ME, the undersigned authority, personally came and appeared,
CHRISTOPHER J. PIASECKI, who, being duly sworn did depose and state that he is an attorney for the plaintiffs/respondents STEVE CROOKS, ERA LEA CROOKS, AND ALL
OTHERS SIMILARLY SITUATED in the above entitled and numbered proceeding, and that he has prepared and read the foregoing Brief in Support of Motion to Strike, or in the
Alternative, Response to Amicus Curiae Briefs filed by the Rapides Parish Police Jury, the
LaSalle Parish Police Jury, the Rapides Parish Policy Jury, the Rapides Parish Gravity
Drainage District No. 1, Rapides Parish Gravity Drainage District No. 2, the Catahoula Lake
Fish and Game Commission, the National Society of Professional Surveyors and the Louisiana
Crawfish Producers’ Association – West, Inc., and that all of the allegations contained therein are true and correct to the best of his information, knowledge, and belief,
Further, on this 27th day of February, 2019, a copy of the foregoing has been served on all known interested parties as follows:
The Honorable James H. Boddie, Jr. Judge Ad Hoc 9th Judicial District Court 701 Murray Street, 5th Floor Alexandria, LA 71301 (via regular mail) District Court Judge
The Honorable Robin L. Hooter Clerk of Court Rapides Parish 701 Murray Street, Suite 102 Alexandria, LA 71301 (via regular mail)
District Court Clerk of Court
The Honorable Renee R. Simien Clerk of Court Louisiana Third Circuit Court of Appeal 1000 Main Street Lake Charles, LA 70615 (via regular mail)
Appellate Court Clerk of Court
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Ryan M Seidemann ([email protected]) Harry J. Vorhoff ([email protected]) Michelle Marney White ([email protected]) ASSISTANT LOUISIANA ATTORNEYS GENERAL P.O. Box 94005 Baton Rouge, LA 70804-9005 (via e-mail)
Sean Porter ([email protected]) Scott Johnson ([email protected]) LOUISIANA DIVISION OF ADMINISTRATION 1200 North Third St. Baton Rouge, LA 70802 (via e-mail)
Joseph J. Bailey ([email protected]) PROVOSTY SADLER & DELAUNAY, APC 934 Third Street, Suite 800 P.O. Box 1791 Alexandria, LA 71309 (via e-mail)
Counsel for Defendant/Appellant
Mark A. Begnaud McCoy Roberts & Begnaud, Ltd. P.O. Box 1369 Natchitoches, LA 71458 (via regular mail)
Counsel for Amicus Curiae, Red River Waterway Commission
J. Ryan Vivian David Peterson Jason L. Placke Louisiana Coastal Protection and Restoration Authority P.O. Box 44027 Baton Rouge, LA 70804 (via regular mail)
Counsel for Amicus Curiae, Louisiana Coastal Protection and Restoration Authority
Thomas O. Wells Gregory L. Jones Phillip Terrell, District Attorney, Rapides Parish P. O. Box 7358 Alexandria, LA 71306 (via regular mail)
Counsel for Amicus Curiae, the Rapides Parish Policy Jury, the LaSalle Parish Policy Jury, Rapides Parish Gravity Drainage District No. 1, Rapides Parish Gravity Drainage District No. 2 and the Catahoula Lake Fish and Game Commission
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Jackson D. Logan Attorney at Law 511 Queensberry Drive Lafayette, LA 70508 (via regular mail)
Counsel for Amicus Curiae, the National Society of Professional Surveyors
Gordon L. Schoeffler ([email protected]) Attorney at Law 900 South College Road, Suite 204 Lafayette, LA 70503 (via e-mail)
Counsel for Amicus Curiae, Louisiana Crawfish Producers Association – West, Inc.
Steven B. (“Breaux”) Jones ([email protected]) Baldwin, Haspel, Burke & Mayer, LLC 1100 Poydras Street, Suite 3600 New Orleans, LA 70163 (via e-mail)
Counsel for Amicus Curiae, Louisiana Wildlife Federation, Backcountry Hunters & Anglers, and Delta Waterfowl Foundation
Nicholas T. (“Cole”) Garrett ([email protected]) Louisiana Department of Wildlife and Fisheries 2000 Quail Drive, Suite 453 Baton Rouge, LA 70808 (via e-mail)
Counsel for Amicus Curiae, the Louisiana Department of Wildlife and Fisheries and the Louisiana Wildlife and Fisheries Commission
/S/ CHRISTOPHER J. PIASECKI CHRISTOPHER J. PIASECKI
THUS DONE AND SIGNED at Lafayette, Louisiana, this 27th day of February, 2019.
/S/ HOA NGUYEN #66302 NOTARY PUBLIC MY COMMISSION EXPIRES AT DEATH.
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