Here's the latest in a case we've been following out of Louisiana, involving a local Port's power to seize a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a "hand-picked" private operator.
In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking of VDP's property by the Port so that the Port could run it itself. The owner challenged the power to take, as well as the compensation awarded. The Supreme Court held that the Port has the power to take the docking facility so that the Port could operate the facility, but on the issue of just compensation, the court agreed with the owner that it was undercompensated. The owner argued that because its property is unique, the lower courts' sole reliance on fair market value as the only applicable valuation standard was wrong, and that evidence of replacement cost should have been admitted.
The owner has now sought rehearing on the power to take issue, arguing:
Nevertheless in a 4-3 decision, the Majority permits an astonishing new governmental power -- the power to take a fully-functioning private business, use its assets and customer revenues to expand government operations, and share those revenues with a favored private actor. Further, the Majority holds that a local trial judge is the only check on that power, deferring to the trial judge's factual findings unless they are manifestly erroneous. The Majority's analysis overlooks the fact that neither the trial judge nor the Court of Appeals made any factual findings regarding the Constitutionality of the taking or whether StBP took any of VDP's assets "for the purpose of operating that enterprise or halting competition with a government enterprise" in violation of La. Const. art. 1, Section 4(B)(6).
Br. at 1.
As we always say, stay tuned.
Application for Rehearing of Violet Dock Port, Inc., LLC, St. Bernard Port, Harbor & Terminal District v. V...
