Looking into the future the Pelican feeding its young from a self-induced wound in its own breast (as depicted, mysteriously, on the state flag of Louisiana) is accepted as an appropriate symbol of both self-sacrifice and rebirth. Through his selfless efforts, man is raised from the slavery of ignorance to the condition of freedom conferred by wisdom. Given the current state of affairs in Louisiana, one hopes that the understanding of the Pelican as a symbol shall point the way towards a new consciousness of ourselves as a whole, and lead us to face our futures with strength, grace, wisdom and faith, to learn from our mistakes and carry our successes and zest for living to future generations.

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Lawsuit Filed in U.S. Federal District Court Neal Foy & SOWL vs. Orleans Levee Board & U.S. Army Corps of Engineers, New Orleans Division 1976

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION
No. 76-3998 SECTION “H”

NEAL FOY & SAVE OUR WETLANDS, INC. (SOWL, INC.)

Versus

GUY LeMIEUX, PRESIDENT OF THE BOARD OF LEVEE COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT

WILLIAM GUSTE, LA. STATE ATTORNEY GENERAL

LYLE ST. AMANT, WILDLIFE AND FISHERIES

COL. EARLY RUSH, DISTRICT ENGINEER, U.S. ARMY CORPS OF ENGINEERS, NEW ORLEANS DIVISION

JOHN L. McLUCAS OF THE FEDERAL AVIATION ADMINISTRATION

RUSSEL TRAIN OF THE ENVIRONMENTAL PROTECTION AGENCY

LTC. JOHN W. MORRIS, CHIEF ENGINEER OF THE CORPS OF ENGINEERS

MARTIN R. HOFFMAN, SECRETARY OF THE ARMY

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I.

MANDATORY INJUNCTION AND/OR DECLARATORY JUDGEMENT.

II.

JURISDICTION

Jurisdiction of this Court is invoked under:

1. 28 USC 1331 (Federal Question);
2. 28 USC 2201-2202 (Declaratory Judgment Act);
3. 28 USC 1391 (Venue);
4. 28 USC 1343 (3) and (4);
5. 42 USC 1983;
6. National Environmental Policy Act (hereinafter, “NEPA”);
7. 43 USC 4331, 28 USC 2201-2202 (Declaratory Judgment Act);
8. 28 USC 1391 (Venue);
9. 28 USC 1343 (3) and (4);
10. 42 USC 1983
11. National Environmental Policy Act (hereinafter, “NEPA”);
12. 43 USC 4331, et seq.;
13. The Fish and Wildlife Coordination Act;
14. 16 USC 661, et seq;
15. Federal Water Pollution Control Act as amended in 1972 (33 USC 1151, et seq.)
16. Administrative Procedure Act, 5 USC 702(a);
17. Due Process and Equal Protection clause of the Fourteenth Amendment to the United States Constitution;
18. Louisiana Civil Code, Articles 449, 450, 453, 481, 482, and 483;
19. Louisiana Constitution, Article 4 §2;
20. Lousiana Constitution of 1974, Article 9 §3;
21. LSA R.S. 9:5661;
22. Controversy exceeds $10,000.00

III.

PARTIES

PLAINTIFFS:

1. Save Our Wetlands, Inc. (SOWL, Inc.) is a nonprofit membership organization. The purpose of SOWL is to explore, enjoy and preserve the State’s wetlands, estuaries, water bottoms and wilderness especially the Lakes-Maurepas, Pontchartrain, Catherine and Borgne (MPCB) ecosystems. Some members of SOWL are primarily employed as commercial fishermen. Their livelihood depends upon the estuaries and water bottoms of Lake Pontchartrain and the continuation of Lakes-Maurepas, Pontchartrain, Catherine, and Borgne ecosystems (hereinafter known as MPCB ecosystem).
2. Plaintiffs SOWL and Neal Foy allege they will sustain irreparable injury in the face of a legally cognizable interest being threatened and will sustain individualized harm if defendants are permitted to contine their actions. Plaintiff’s damage by the acts of defendants will be direct, economic and permanent. Plaintiffs actually use, enjoy, photograph, fish, hunt, and otherwise undertake other activities in the area of construction and in the area to be impacted by impending construction of the hereinafter enumerated projects.
3. Furthermore, Plaintiff Neal Foy, a resident of New Orleans, Louisiana, alleges that his complaint is also specifically directed against the State individuals Guy LeMieux, Attorney General William Guste, and Lyle St. Amant. Mr. Foy is not only alleging environmental degradation, nor is he merely attempting to elevate environmental degradation to constitutional l evels; but he alleges that the actions of these State defendants are resulting is an unconstitutional taking away of his public owned water bottoms, causing injury in fact and within the zone of interests to be protected or regulated; by 42 USC 1983. Mr. Foy alleges a distinct and palpable injury to himself, and in fact, the asserted injury (illegal) taking and destruction of his public owned water bottoms is a consequence of the State defendants unreasonable actions and/or non-actions; and prospective relief will remove this harm. Mr. Foy alleges he has a personal stake and interest in the out come of this controversy.

DEFENDANTS:

4. Guy LeMieux is President of the Orleans Levee Board. The Orleans Levee Board has previously filled six and one-half miles of waterfront along the lake in Orleans Parish under the alleged cover of State Law. Mr. LeMieux plans to fill and additional 3,381 acres of water bottoms with 125 million cubic yards of hydraulic fill (Exhibit 1, Page 3). Subject applicant has recently applied and obtained a permit to expand the existing New Orleans Lakefront Airport into the water bottoms of Lake Pontchartrain.
5. William Guste is the Attorney General of the State of Louisiana. His job is to protect the rights of Louisiana citizens, enforcing the laws and constitution of this “outdoorman’s paradise”. His nonenforcement actions in protecting public owned water bottoms and estuaries in the MPCB ecosystem is resulting not only in a violation of Mr. Foy’s constitutional rights, but actual damage to Mr. Foy. Mr. Foy alleges the actions of William Guste are arbitrary, illegal and unwarranted in the law and in fact.
6. Lyle St. Amant is Director of the Louisiana Wildlife and Fisheries Commission. His job is to protect the public owned water bottoms and estuaries of Louisiana. Mr. St. Amant’s actions are arbitratry, illegal, unwarranted in law and in fact, resulting in massive damage, destruction, development, seizure and pollution of our Lousiana wetlands, estuaries and water bottoms. The actions of Mr. St. Amant is resulting not only in a violation of Mr. Foy’s constitutional rights, but in an actual damage to Mr. Foy.
7. The U.S. Army Corps of Engineers is sued through the person of Colonel Early Rush, who is serving in his capacity as District Engineer for the New Orleans Division. Colonel Rush recently issued a permit to the Orleans Levee Board, permitting said defendant to expand the present Lakefront Airport, which will result in a definite detrimental impact, if not complete elimination of approximately 356 acres of lake bottom.
8. The Federal Aviation Administration is sued through the person of John L. McLucas, who is serving in his present capacity as Administrator. The Federal Aviation Administration is responsible for various segments of the Lakefront Airport expansion funding.
9. The Environmental Protection Agency (EPA) is sued through the person of Russell Train, who is serving in his present capacity as Director. Under Section 404 of the Federal Water Pollution Control Act (FWPCA), the Environmental Protection Agency is obligated to assure protection of the public’s interest hereinafter described.
10. The U.S. Army Corps of Engineers is sued throught the person of Lieutenant Colonel John W. Morris in his capacity and seving as Chief Engineer.
11. The U.S. Army is sued through the person of Martin R. Hoffman in his capacity as Secretary of the Army.

IV.

DESCRIPTION OF ACTION IN REGARD TO EXPANSION OF LAKEFRONT AIRPORT AND OTHER ACTIVITIES IN LAKE PONTCHARTRAIN

Under Public Notice LMNOD-SP (Lake Pontchartrain) 279, Guy LeMieux, President of the Orleans Levee Board, applied and obtained a permit to dredge and install and maintain bulkheads, a seaplane ramp, a runway approach lighting system, drainage outfall structures and a fill in Lake Pontchartrain, adjacent to the New Orleans Lakefront Airport.

V.

This proposed expansion is termed Phase I, and would permanently remove 156 acres of estuarine habitat that supports fishery resources, severly alter another 200 acres, and reduce the quality of additional acreage in this soil disposal area. Future airport expansion plans, termed as Phase II and Phase III would involve the destruction of an additional 235 acres of lake bottom, as hereinafter explained. The final Environmental Impact Study (hereinafter, “EIS”), was primarily set forth to enable an administrative action on Phase I. Phases II and III were not subject for approval at that time. Various governmental agencies have decided to require a new Environmental Impact Study at the time the Orleans Levee Board requests permits for Phases II and III.

VI.

Therefore, the proposed work under Phase I would eliminate or alter approximately 356 acres of lake bottom. The existing airport would be extended lengthwise approximately 1,300 feet resulting in a fill which would extend 7,300 feet into the lake. Phase II and III would involve the destruction of an additional 235 acres of lake bottom.

VII.

Plaintiffs allege that this work is but one of the many existing and proposed projects which cumulatively could decrease fishery resources by eliminating thousands of acres of the lake’s bottoms,marshes and swamps. Recenly, the Corps of Engineers expressed similar concerns by publishing procedures for processing, Permits for Activities in Navigable of Ocean Water, (Federal Register, July 25, 1975, Section 209.130(g) (3) (iii), page 31328). These guidelines stated that the cumulative effects of projects which would impact wetland resources must be considered. It was also noted that, “Although a particular alteration of wetlands may constitute a minor change, the cumulative effect of numerous such piecemeal changes often results in a major impairment of wetlands resources. Thus, the particular wetland site for which an application will be made will be evaluated with the recognition that it is part of a complete and inter-related wetland area”. Plaintiffs allege that this directive had not been followed by defendants, either severally or individually, and request that this Court take judicial notice of such fact. (Exhibit 1, pp. 2-3).

VIII.

Plaintiffs allege that a study of land reclamation in the Louisiana coastal zone indicated that urban encroachment into wetlands is one of Louisiana’s most critical problems and that this problem is most severe in the vicinity of New Orleans. It was also noted that reclamation projects in and around Lake Pontchartrain have eliminated thousands of acres of lake bottoms, marshes and swamps. In describing the numerous existing and planned reclamation projects in and around the lake, the study noted that the Orleans Levee Board has previously filled six and one-half miles along the lake in Orleans Parish and plans to fill an additional 3,381 acres with 125 million cubic yards of hydraulic fill. Some of the fish and shellfish species in Louisiana are being harvested at their maximum sustainable yield and additional loss of estuarine habitat would result in a proportional decrease in production. (Exhibit 1, page 3).

IX.

The Final Environmental Impact Statement (FEIS) filed by the Federal Aviation Administration (FAA) for the proposed work, discussed plans to expand the subject airport by filling over 235 acres of the lake. The FEIS also noted that the Lakefront Airport was constructed on a 315 acre lake fill, constructed with material dredged from the lake bottom. The Department of Commerce (DOC) in the October 17, 1973, response to the draft EIS stated that the FEIS, “… should be expanded to fully consider the adverse effects of the project on aquatic life caused by the loss of approximately one-half square mile of lake bottom…”, and that, “it should be recognized that nationally hundreds of thousands of acres of irreplaceable shallow submerged lands adjoining marshes have been destroyed over the past several decades.” In response to the Department of Commerce comments contained in the FEIS, the Federal Aviation Administration stated that: “Some effect to fishing will be experienced in the immediate vicinity of the airport during the period of dredging construction. This will only have a temporary effect on the commercial and recreational resources of the lake and no permanent destruction will occur to the aquatic life.” The FEIS, however, failed to provide data substantianting the Federal Aviation Administration’s views or to account for the cumulative effects of this and similar projects on fishery resources. (Exhibit 1, page 3).

X.

Defendant, Guy LeMieux, shortly afterwards, received his permit to thus encroach on the aforedescribed 356 acres of Lake Pontchartrain water bottom, and subsequently lodged a massive program to, in addition to the airport project, lease away approximately 600 additional acres of water bottoms adjacent to the airport and the eastern shoreline. Guy LeMieux is requiring prospective bidding developers in the lease to provide for over 1,000 boat launch slips in each bidable tract. These marina facilities are projected to include boathouses, hotels, apartment complexes, boat sales facilities, swimming, fishing and other related facilities, as well as restaurants and related commercial shops along with recreational areas and condominiums. The FEIS in regard to the airport expansion fails to mention any of what, if any, impact this grandiose developing scheme would have on the Pontchartain water bottoms.

XI.

Plaintiffs have given notice of an interst to sue under the relevant provisions of Section 505 of the Federal Water Pollution Control Act (FWPCA) by registered mail to all defendants on September 27, 1976.

PLAINTIFF SEEKS DECLARATORY AND INJUNCTIVE RELIEF ON THE FOLLOWING CAUSE OF CAUSES OF ACTION:

XII.

Defendants have jointly, severally and in solido, acted in an arbitrary, capricious, illegal and unwarranted in law and in fact manner, hereinafter described as illustrative but not necessarily exlusive:

1. Federal defendants and the Orleans Levee Board through Guy LeMieux, singly or severally, have failed to comply with the requirement of NEPA and the FWPCA, specifically, Sections 301(A), 403 and 404; 33 USCA 1151 et seq., by failing to consider this airport project in relation to other projects in the Lake Pontchartrain ecosystem.
2. NEPA has also been violated in that the final EIS does not adequately cover Phases II an III of this project.
3. The Wildlife Coordination Act has been violated in that the National Marine Fisheries Service and the Untied States Fish and Wildlife Service have not been consulted adequately on all three phases of the airport expansion plan plus the adjacent plans of the Orleans Levee Board to lease and adjacent 600 acres of four water bottoms for commercial development.
4. Guy LeMieux, Attorney General Williams Guste and Lyle St. Amant are acting under color of State Law, permitting and playing an active part in the alienation of public owned water bottoms in violation of Louisiana Civil Code, Articles 449, 453, and 481-483; Louisiana Constitution, Article 4 §2; Louisiana Constitution of 1974 Article 9, §3 (See 317 So.2d 576), resulting in a denial of Neal Foy’s rights as enumenrated in USC 42: 1983; and such conduct deprives plaintiff of rights secured to him by the Constitution and laws of the United States, as well as violating the conditions enumerated under LSA R.S. 38:1235.1, prohibiting further expansion of the lakefront. Damages is occurring to Neal Foy as stated in Paragraph IIIC (supra).
5. Such act of Guy LeMieux, William Guste and Lyle St. Amant results in violations of Neal Foy’s due process and equal protection as guaranteed under the United States Constitution; consequently causing Neal Foy to suffer a violation of rights as spelled out in USA 42:1983, and Article VI, §2 of the United States Constitution and Article I, §8 of the United States Constitution. Actual damage is occurring to Neal Foy. Neal Foy alleges the acts of William Guste, Lyle St. Amant and Guy LeMieux to be arbitrary, capricious, illegal, unwarranted in law and in fact.
6. NEPA was violated in that he FEIS failed to provide adequate data as alleged in Paragraph IX, supra. Furthermore, the FEIS not only failed to provide data substantiating the FAA’s views, but also to account for the cumulative effects of this and similar projects on fishery resources.

XIII.

Plaintiff alleges that unless a preliminary and permanent injunction is issued agains the airport project, plaintiffs will suffer immediate and irreparable damage and havoc.

WHEREFORE, plaintiffs pray:

1. That the Court issue a declaratory judgment that Federal defendants and the Orleans Levee Board through Guy LeMieux have failed to comply with the requirement of NEPA, Wildlife Coordination Act, and with the requirements of the Federal Water Pollution Control Act;

2. That the Court issue a declaratory judgment that the decision of the defendants to proceed with the airport expansion of the Lakefront Airport plan was arbitrary, capricious and unwarranted in fact and in law;

3. That the Court issue a declaratory judgment that the expansion of the Lakefront Airport will be an alienation of public owned water bottoms in violation of the laws and Constitution of the State of Louisiana and the United States of America;

4. That the Court order Col. Early Rush, to abide by the U.S. Army Corps of Engineers regulations found in Federal Register, July 25, 1975, Section 209.120(g)(3)(iii), page 31328, requiring the Corps to consider cumulative impacts upon wetland resources;

5. That the Court order William Guste and Lyle St. Amant to protect and preserce the public owned water bottoms and estuatries of Lake Pontchartrain and the MPCB ecosystem.

6. That the Court forbid Guy LeMieux, President of the Orleans Levee Board forom alienating public owned water bottoms in Lake Pontchartrain;

7. That the Court order the Federal Aviation Administration, the U.S. Army Corps of Engineers and the Orleans Levee Board to consult immediately with the National Marine Fisheries Service and the United States Fish and Wildlife Service in regard to all three phases of the Airport Expansion Plan, plus the adjacent water bottom projects proposed for commercial developments;

8. That the Court appoint the Center for Wetland Resources, Louisiana State University, Baton Rouge, Louisiana, as a special master in this matter, to advise and recommend to the Court the steps necessary to insure the protection of preservation of Lake Pontchartrain and the MPCB ecosystem.

9. That the Court appoint Professor Yiannopoulos, esteemed professor of property law, Louisiana State University, as a special master, to prepare a report and study on alienation of water bottoms occurring in Lake Pontchartrain to be used by this Court as a tool and guide.

10. That the Court order a Special Grand Jury to investigate the possible illegal alienation and destruction of public owned water bottoms, estuaries, and wetlands within the MPCB ecosystem; and

11. That the Court award attorney fees, costs and any and all other general and equitable relief.

Respectfully submitted by:

JOSEPH NEVES MARCAL, III
Attorney for SOWL, Inc.

PHILIP R. JOHNSON
Attorney for SOWL, Inc.

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See also: Lawsuit filed in U.S. Civil District Court for the Parish of Orleans State of Louisiana: Save Our Wetlands vs. Orleans Levee Board 1977