11.11.2008

Hurricane Protection: Closing MRGO - Takings and Servitudes

A modern Jean-ah Poquelin rises from the marshes of St. Bernard Parish:

Representing himself in court filings, Fernandez [landowner] said the levee authority did not have the right to take the land because the MR-GO closure was a navigation issue, not a coastal restoration issue.

"By alleging that this is a levee and not a navigation structure, the state will decrease the compensation it must pay to landowners, business interests and the citizens of St. Bernard Parish," Fernandez wrote. "The government has paid businesses in New Orleans for their losses caused by the closure of the MR-GO to deep-draft navigation, but the state is unwilling to do so in St. Bernard Parish."

Interestingly, a friend points out that under Louisiana civil law, the usual 5th Amendment takings rule that would usually apply is complicated by the issue of levee servitudes, where riparian land along waterways is held as essentially being public land held in trust for possible public use, merely "appropriating instead of expropriating" for levee purposes down the road.  Modern statutes and case law do impose a compensation requirement of fair market value, however, in the state.

It brings to mind George Washington Cable's classic gothic tale of early New Orleans:

"We shall fill that ditch," said the men in mud boots, and brushed close along the chained and padlocked gate of the haunted mansion. Ah, Jean-ah Poquelin, these were not Creole boys, to be stampeded with a little hard swearing."