The Louisiana Department of Wildlife and Fisheries, on Its Own Behalf and on Behalf of the State of Louisiana as Public Trustee and on Behalf of the Louisiana Wildlife and Fisheries Commission Versus Bp Oil Pipeline Company

THE LOUISIANA DEPARTMENT OF NO. 24-C-275
WILDLIFE AND FISHERIES, ET AL.
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
BP OIL PIPELINE COMPANY, ET AL.
STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 848-368, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

November 20, 2024

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED; RULING ON EXCEPTIONS REVERSED;
EXCEPTIONS GRANTED; REMANDED WITH INSTRUCTIONS
JGG
SMC
FHW

COUNSEL FOR PLAINTIFF/RESPONDENT,
THE LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES, ET AL.
Antonio M. Clayton
D'Ann R. Penner
Ulysses Gene Thibodeaux
Bernard E. Boudreaux, Jr.
James R. Swanson
Harvey S. Bartlett, III
Lance C. McCardle
Isabel Englehart
Gladstone N. Jones, III
Michael P. Arata
Kevin E. Huddell
John T. Arnold
T. Taylor Townsend

COUNSEL FOR DEFENDANT/RELATOR,
BP OIL PIPELINE COMPANY
George I. Arceneaux, III
Court C. VanTassel
John S. Troutman
Randee V. Iles
William J. Heaton
Kelly B. Becker
Mark R. Deethardt
Laura S. Brown
Denice Redd-Robinette

COUNSEL FOR DEFENDANT/RELATOR,
CHEVRON PIPE LINE COMPANY
Michael R. Phillips
Claire E. Juneau
Anne C. Lemelin
Vicki A. Elmer
Charles S. McCowan, III
Pamela R. Mascari
Eric J. Mayer
Alexandra White
Johnny W. Carter
Laranda M. Walker
Hayden Q. Hawkins

COUNSEL FOR DEFENDANT/RELATOR,
PLAINS PIPELINE, LP
Carl D. Rosenblum
Alida C. Hainkel
Lauren C. Mastio
Michael A. Chernekoff

COUNSEL FOR DEFENDANT/RELATOR,
ARROWHEAD GULF COAST PIPELINE LLC
Craig Isenberg
Kyle W. Siegel
Alexandra L. Gjertson

GRAVOIS, J.

BP Oil Pipeline Company, Chevron Pipe Line Company, Arrowhead Gulf

Coast Pipeline, LLC, and Plains Pipeline, LP (referred to herein collectively as

“defendants” or “relators”), seek this Court’s supervisory review of the trial court’s

May 23, 2024 judgment which overruled (denied) defendants’ dilatory exceptions

of lack of procedural capacity, relative to plaintiffs’ claims for damages and

injunctive relief against defendants. For the following reasons, on the showing

made, we grant the writ application, reverse the trial court’s judgment which

overruled (denied) the exceptions of lack of procedural capacity pled by

defendants, and grant the exceptions. We further remand the matter to the trial

court with instructions to allow plaintiffs an opportunity to further amend their

petition, if they can, to remove the grounds of the objections.

FACTS AND PROCEDURAL BACKGROUND

The Louisiana Department of Wildlife and Fisheries (the “LDWF”), suing

on its own behalf, on behalf of the Louisiana Wildlife and Fisheries Commission

(the “Commission”), and on behalf of the State of Louisiana as public trustee of the

Elmer’s Island Wildlife Refuge (referred to herein collectively as “plaintiffs” or

“respondents”), asserted in their original and amended petitions for damages and

injunctive relief, that LDWF oversees conservation and management of over

800,000 acres of public lands in the State’s coastal zone, which provide quality

habitats for fish and game, and offer opportunities for public use and enjoyment.

Defendants/relators are oil and gas pipeline companies and/or their successors in

interest who, according to their original and amended petitions, entered into rights-

of-way agreements (ROWs) with plaintiffs’ predecessors in interest, the previous

owners of the Elmer’s Island Wildlife Refuge, a wetlands area in lower Jefferson

Parish, in the 1950s and 1960s to build buried oil and gas pipelines and the access

canals over the pipelines. Plaintiffs allege in this suit that defendants breached the

24-C-275 1

ROWs in multiple ways, in particular that they knew that without protective

safeguards and regular maintenance, the canals would widen and severe loss of

land would result. Instead of implementing regular maintenance of the canals, the

defendant pipeline companies allegedly undertook no significant measures to

prevent or lessen the resulting loss of surrounding lands. By failing to institute

regular maintenance, the petitions allege the pipeline companies’ wrongful conduct

has led to the erosion and subsidence of land, causing major land loss, financial

losses, and losses of economic opportunities to plaintiffs.

In their exceptions of lack of procedural capacity, defendants asserted that

the LDWF, which asserted these claims not only on its own behalf, but also in a

representative capacity “on behalf of” the State of Louisiana, is a distinct legal

entity with separate juridical capacity to sue it its own name, but is not

interchangeable with the State of Louisiana for litigation purposes. Hence,

defendants argue that the LDWF cannot step into the shoes of and represent the

State of Louisiana in this litigation. Defendants further asserted in their exceptions

that plaintiffs must be represented by the Louisiana Attorney General, citing the

mandatory language of La. R.S. 49:257(A).

Following a hearing held on April 17, 2024, the trial court overruled

(denied) the exceptions of lack of procedural capacity. A written judgment to this

effect was signed on May 23, 2024.1

In their writ application, relators argue: 1) the trial court erred in finding that

the LDWF has procedural capacity to assert claims in this action “on behalf of” the

State of Louisiana; and 2) the trial court erred in finding that plaintiffs have the

procedural capacity to assert breach of contract and tort claims against relators

1
The written judgment cited to the trial court’s reasons for judgment orally assigned at
the hearing. A transcript of that hearing was not included in this writ application.

24-C-275 2

despite not being represented by the Attorney General’s Office, in accordance with

the mandatory language of La. R.S. 49:257(A).

ANALYSIS

FIRST ASSIGNMENT OF ERROR

Lack of Procedural Capacity – Authority to Sue in a Representative Capacity

The dilatory exception of lack of procedural capacity challenges the

authority of the plaintiff to institute suit. La. C.C.P. art. 926(A)(6). Council of

City of New Orleans v. Donation, 23-01106 (La. 3/22/24), 382 So.3d 27, 31, reh’g

denied, 23-01106 (La. 5/10/24), 384 So.3d 890. Ostensibly, this includes the

authority of a plaintiff who appears in a purely representative capacity. Because

the determination of whether the plaintiff has capacity to institute suit presents a

question of law, we review it under the de novo standard of review. Id. Lack of

capacity is not synonymous with no right of action. Kennard v. St. James Par.

Sch. Bd., 16-603 (La. App. 5 Cir. 4/12/17), 218 So.3d 680, 683. The burden of

proof on an exception of lack of procedural capacity is on the party challenging the

other party’s competence. Walcott v. La. Dept. of Health, 20-611 (La. App. 1 Cir.

3/31/2022), 341 So.3d 696, 700.

La. C.C.P. art. 855 provides that the procedural capacity of a party to sue in

a representative capacity is presumed unless challenged by the dilatory exception.

La. C.C.P. art. 700 provides that when a plaintiff’s qualification to sue as a legal

representative is challenged via dilatory exception, “the plaintiff shall prove his

authority or qualification on the trial of the exception.”

Relators argue that even though in La. R.S. 36:602(A)2 the Legislature

designated the LDWF as a distinct legal body corporate “with the power to sue and

be sued,” such authority is not interchangeable with the State of Louisiana. This

2
La. R.S. 36:602(A) provides, in pertinent part: “The Department of Wildlife and
Fisheries is created and shall be a body corporate with the power to sue and be sued. …”

24-C-275 3

language, relators argue, is critical to the issue, because “it specifies that

governmental units created under statute may be designated as legal entities

distinct from the State for litigation purposes,” citing Canal/Claiborne Ltd. v.

Stonehenge Dev. LLC, 14-0664 (La. 12/9/14), 156 So.3d 627, 639. Thus, relators

argue, the State must assert any claims it has on its own.

In response, the LDWF argues that it has more than one capacity; it has its

private capacity, from which it asserts rights for various things like commercial

matters, and it has representative capacity as the State’s public trustee, from which

it now seeks “to restore and preserve the corpus of the land it is charged with

protecting.” The LDWF argues that it is a “public trustee” of the Elmer’s Island

Wildlife Refuge and thus appears on behalf of the State. The LDWF argues that

the public trust doctrine gives it the standing to sue not only on its own behalf, but

also on behalf of the State, citing La. Const. Art. IX § 1,3 which sets forth a public

policy to protect Louisiana’s natural resources.4

The LDWF argued to the trial court that recent courts have found that the

Attorney General does not have exclusive authority to institute civil proceedings to

assert the substantive rights of the State, citing Parish of Plaquemines v. Total

Petrochemical & Ref. USA, Inc.105, 64 F.Supp.3d 872, 888 (E.D. La. 2014) and

Stutes v. Gulfport Energy Corp., 2017 WL 4286846 (W.D. La. 2017). However,

those cases are distinguishable. In the former, the plaintiff, the Parish of

Plaquemines, had a specific legislative grant of authority, in La. R.S. 49:214.36(D)

of the Coastal Zone Management Laws, to assert the State’s rights. Plaintiffs in

3
La. Const. Art. IX § 1, entitled “Natural Resources and Environment; Public Policy,”
provides: “The natural resources of the state, including air and water, and the healthful, scenic,
historic, and esthetic quality of the environment shall be protected, conserved, and replenished
insofar as possible and consistent with the health, safety, and welfare of the people. The
legislature shall enact laws to implement this policy.”
4
See also State v. McHugh, 630 So.2d 1259, 1265 (La. 1994) (“The state constitution
establishes a public trust doctrine requiring the state to protect, conserve and replenish all natural
resources, including the wildlife and fish of the state, for the benefit of its people. La. Const.
1974, Art. IX, §§ 1, 7.”)

24-C-275 4

the instant case have not pointed to any such authority here. In Stutes, the

Louisiana Attorney General had in fact intervened on behalf of intervenor-plaintiff,

the State of Louisiana.

Upon de novo review, in light of the above, we conclude that while the

public trust doctrine gives the LDWF procedural capacity to sue on its own behalf,

the LDWF has not borne its burden of proof regarding its procedural capacity to

sue on behalf of the State of Louisiana. Accordingly, the trial court erred in

overruling (denying) the exceptions of lack of procedural capacity in this regard.

SECOND ASSIGNMENT OF ERROR

Lack of Procedural Capacity – Requirement of
Representation by the Attorney General

Next, relators argue that even if the LDWF has the procedural capacity to

sue on behalf of the State of Louisiana, which relators deny, the trial court erred in

finding that plaintiffs had the procedural capacity to sue because the trial court

ignored the mandatory language of La. R.S. 49:257(A), which states:

A. Notwithstanding any other law to the contrary and in addition to
any other powers, duties, or authority granted to the attorney
general and the Department of Justice by the constitution and laws
of the state, the attorney general shall represent the state and all
departments and agencies of state government in all litigation
arising out of or involving tort or contract.
(Emphasis added.)

It is clear that the provisions of La. R.S. 49:257(A) are mandatory, as it

employs the word “shall.” It appears undisputed that the LDWF and the

Commission are departments or agencies of state government. Plaintiffs argue,

however, that they have received the Attorney General’s “concurrence” to file this

lawsuit. However, a concurrence, asserted by another, on behalf of a nonparty to

the suit, does not fulfill the mandatory requirement of La. R.S. 49:257(A).

24-C-275 5

Plaintiffs also argue that they are allowed to hire independent counsel for the

purposes of this litigation, citing the provisions of La. R.S. 49:257(E), which

provides:

E. Nothing in this Section, in R.S. 49:258, and in Chapter 16-A of
Title 39 of the Louisiana Revised Statutes of 1950 shall prohibit
any department of state government from employing a general
counsel and such other attorneys as may be necessary to provide
legal consultation, representation, and such other legal services as
are not provided for under such provisions of law. However, all
private legal counsel shall be chosen only in accordance with the
provisions of R.S. 49:258, and subject to the authority granted to
the attorney general by Article IV, Section 8 of the Constitution of
Louisiana.

Upon de novo review, we conclude that Subsection (E) of La. R.S. 49:257

does not supersede Subsection (A) thereof. Reading these two sections together, as

we must, and in order to find an interpretation of the statute that effectuates both

sections, it is clear that the State of Louisiana, and the LDWF and the Commission,

as departments or agencies of state government, are required to be represented by

the attorney general in tort or contract litigation.5 Accordingly, the trial court also

erred in overruling (denying) the exceptions of lack of procedural capacity in this

regard.

CONCLUSION

For the foregoing reasons, on the showing made, we conclude: 1) that the

Louisiana Department of Wildlife and Fisheries has failed to meet its burden of

proof relative to its authority to act on behalf of the State of Louisiana in this

matter; and 2) that plaintiffs have failed to meet their burden of proof relative to

their authority to act in this matter without the attorney general’s representation as

required by the mandatory language of La. R.S. 49:257(A). Further, in accordance

with La. C.C.P. art. 933(B),6 plaintiffs are allowed an opportunity to further amend

5
This does not prohibit the attorney general from employing outside counsel to assist in
handling this litigation, as has occurred here.
6
La. C.C.P. art. 933(B) provides: “When the grounds of the other objections [i.e., want of
amicable demand and prematurity] pleaded in the dilatory exception may be removed by

24-C-275 6

their petition, if they can, to remove the grounds of the objections made in the

exceptions of lack of procedural capacity.

DECREE

For the following reasons, on the showing made, the writ application is

granted, the trial court’s May 23, 2024 judgment which overruled (denied) the

exceptions of lack of procedural capacity pled by defendants are reversed, the

exceptions are granted, and the matter is remanded to the trial court with

instructions to allow plaintiffs an opportunity to further amend their petition, if

they can, to remove the grounds of the objections made in the exceptions of lack of

procedural capacity.

WRIT GRANTED; RULING ON EXCEPTIONS
REVERSED; EXCEPTIONS GRANTED;
REMANDED WITH INSTRUCTIONS

amendment of the petition or other action by plaintiff, the judgment sustaining the exception
shall order plaintiff to remove them within the delay allowed by the court; and the action, claim,
demand, issue or theory subject to the exception shall be dismissed only for a noncompliance
with this order.”

24-C-275 7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 20, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-275
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
HARVEY S. BARTLETT, III (RESPONDENT) KEVIN E. HUDDELL (RESPONDENT) LANCE C. MCCARDLE (RESPONDENT)
GEORGE I. ARCENEAUX, III (RELATOR) KELLY B. BECKER (RELATOR) MARK R. DEETHARDT (RELATOR)
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