A very important public use case from the Louisiana Court of Appeals.
In Ryan v. Calcasieu Parish Police Jury, No. 17-00016 (Sep. 27, 2018), the court upheld a preliminary injunction issued by the trial court "barring the [Lake Charles Harbor and Terminal] District from expropriating a tract of [the Meyers'] property in Westlake Louisiana." Slip op. at 1.
The map above shows the property (M & D Construction), and its proximity to what is known as the "Sasol Megaproject." Barista's note: it looks like the P.R. people didn't get a hand in naming the project - when you name your chemical factory "the Megaproject," you should probably not be surprised when there's objection.
Sasol needs/wants Meyer's five acres, and tried for several years to buy it. No deal. So the District adopted a resolution which provided "certain assurances with respect to the acquisition of the property needed" for the Megaproject. The District had already done the same regarding another much larger parcel, so why not this one? Keeping Sasol in the area and not letting it move the Megaproject -- with its "$16-$1 billion capital investment" -- to Canada was critical. As the court put it, "[t]he Resolution stated that Sasol had purchased the majority of properties within the proposed site of the Megaproject and that it needed the District's help in acquiring the remaining twenty-four privately owned properties." Slip op. at 2 (emphasis added).
Not content for waiting for the other shoe to drop, Meyer and another adjoining landowner (Ryan) sued to enjoin what they asserted was an unconstitutional private taking, for Sasol's benefit. After an evidentiary hearing -- at which the only witness was the District's Executive Director -- the court issued a preliminary injunction "enjoining and barring" the District from taking the property. The District appealed, arguing that it could not be enjoined from exercising its power to take.
The Louisiana Court of Appeals affirmed. The Louisiana Constitution requires "public purposes" for an expropriation, and after Kelo, the constitution was amended to expressly prohibit "economic development, enhancement of tax revenue, or any incidental benefit to the public" from being considered in a public purpose challenge to a taking.
The District's main point in the appeal was that the public purpose question could only be resolved during an expropriation case -- and not preemptively by way of a property owner's petition -- and that had not happened (yet). You can't enjoin a taking that has not yet happened, it asserted.
The court agreed with the property owners, who countered that the District can't undertake unconstitutional action, and thus a peremptory strike is ok.
On the merits, the court found this the most important fact supporting the conclusion the owners made out a prima facie showing of unconstitutionality:
The Meyers called one witness at the August 31, 2016 hearing on their motion for preliminary injunction, William J. Rase, III, Executive Director of the Port of Lake Charles (the Port). Mr. Rase testified that he was present at the November 17, 2014 meeting during which the Board approved the Resolution. According to Mr. Rase, the Port had “entered into an agreement with Sasol for a lease on a dock and then to provide what was required to have them go forward with their expansion” before it passed the Resolution. Mr. Rase confirmed that were it not for Sasol’s Megaproject, the District would not have looked at acquiring the Meyers’ property.
Slip op. at 8-9 (boldface original). See also slip op. at 10 ("Finally, we find it important to note that the District put the Meyers between a rock and a hard place by threatening to expropriate their property if they refused to accept what the trial court found to be a low-ball offer.").
One final procedural note. The opinion also notes that "Our conclusion is bolstered by the fact that the United States Supreme Court has chosen to review, on a petition for certiorari, Violet Dock, despite the fact that the St. Bernard Port made a stronger, yet arguably questionable, argument as to the existence of a valid public purpose for expropriation in that matter." Slip op. at 10.
Not correct. Although a cert petition has been docketed, the Court has not yet determined whether to actually review the Violet Dock case. We won't know that until a few days after October 12, 2018, at the earliest. Disclosure: we filed an amicus brief in Violet Dock.