When most jurisdictions reacted to the U.S. Supreme Court's decision in Kelo v. City of New London, 545 U.S 469 (2005), they -- naturally being aghast at the result -- adopted legislation that either purported to make it easier on landowners, or harder on condemnors. Understandable, as the public uproar which Kelo caused has yet to settle down completely even a decade later.
But not Louisiana. Oh no, that state's legislature apparently decided that Kelo was a good opportunity to make it harder for a property owner to recover compensation. We're not even going to pretend to understand all that is going on in South Lafourche Levee District v. Jarreau, No. 2016-C-0788 (Mar. 31, 2017), with its differences between "expropriation" and "appropriation," compensation measured by "full extent of the loss" versus merely "just compensation," and the like. Louisiana, after all, can be a whole 'nother brand of law, sometimes.
Suffice it to say that we found the decision good reading, and interesting, because it walked through the history of Louisiana's levee servitude (each riparian owner was required under French and Spanish law to maintain levees on their property at their own expense), how that eventually by statute became a compensable property interest, and how, after Kelo, the Louisiana legislature revised the statutes to reduce the compensation awarded for a taking in these cases to just compensation, and not the "full extent of the loss." What that means is the owner only can recover the fair market value of the property, and not business and other "incidental" losses caused by the taking.
The case mostly involves statutory history and interpretation, and the court rejected the Levee District's argument that the post-Kelo statutory amendments totally eliminated, rather than reduced, the amount of compensation available to a property owner. Thus, the riparian owner's claim, which included claims for loss of business and dirt, was only partially successful; he was compensated for the taking of the land, but not for the dirt and business losses (something which he should have been able to recover under the "full extent" standard).
We also found the dissenting Justice's opinion to be refreshingly blunt, if a bit short:
Defendant is in the dirt business and owns land from which he digs and sells dirt. The government is entitled to “appropriate” defendant’s land, but must pay him fair compensation mandated by the Constitution. This court affirms an award of $11,869 despite evidence in the record that the dirt taken from the land has a value in excess of $100,000. Even if the most restrictive measure of compensation is applied, this value should be considered in determining the award to defendant. When the government can take private property without paying the landowner, something is wrong.
"Something is wrong," indeed.
South Lafourche Levee District v. Jarreau, No. 2016-C-0788 (La. Mar. 31, 2017)
