Consolidated Grain & Barge, Inc. v. Anny et al
Filing
483
ORDER AND REASONS: IT IS ORDERED that Plaintiff's 458 motion is DENIED WITHOUT PREJUDICE, to be reurged if Defendant violates the 2015 Judgment or this Order and Reasons in the future, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/18/2017. (Reference: All Cases)(jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CONSOLIDATED GRAIN & BARGE, INC.
CIVIL ACTION
VERSUS
NO. 11-2204
REFERS TO:
11-2615 and
13-5827
RANDY ANNY, ET AL.
SECTION "B"(1)
ORDER AND REASONS
Plaintiff American River Transportation Company (ARTCO) moved
to hold Defendant Randy Anny in contempt of court and to sanction
Defendant for violating the 2015 Judgment (Rec. Doc. 376) in this
case. Rec. Doc. 458. Defendant timely filed an opposition.1 Rec.
Doc. 461. Plaintiff sought, and was granted, leave to file a reply.
Rec. Doc. 462-2. The Court subsequently held a conference and
directed the parties to meet in good faith and attempt to resolve
the dispute. See Rec. Doc. 472. The parties submitted a Joint
Status Report (Rec. Doc. 482) indicating that they could not fully
resolve the dispute, but that Defendant had withdrawn the permit
application that gave rise to Plaintiff’s motion.
For the reasons discussed below,
IT IS ORDERED that Plaintiff’s motion is DENIED WITHOUT
PREJUDICE, to be reurged if Defendant violates the 2015 Judgment
or this Order and Reasons in the future.
1
Defendant’s passing mention of Rule 11 sanctions in his Opposition (Rec. Doc.
461 at 4) is so cursory that it does not merit discussion. See Fed. R. Civ. P.
11.
1
IT IS FURTHER ORDERED that Defendant (1) attach the judgment
and injunction (Rec. Doc. 376) entered in this case to any future
permit applications so the U.S. Army Corps of Engineers (Corps) is
aware of same and (2) notify ARTCO with copies of any future permit
applications at least forty-five days prior to submission to the
Corps.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff and Defendant own neighboring properties on the
Mississippi River. See Rec. Doc. 376 at 1-2. This case arose out
of a dispute over where Defendant’s property ends and Plaintiff’s
property begins. See id. The 2015 Judgment fixed the property line
between the two pieces of land and permanently enjoined Defendant
from
engaging
in
certain
activities
that
interfere
with
Plaintiff’s use of its property. See id.
Two prohibitions are relevant to the instant motion. The first
prohibits Defendant “from conducting any activities upon the ARTCO
property or on any bed of any navigable river, lake or stream
adjacent to or adjoining the ARTCO property,” even when permitted
by the relevant government authorities. Id. at 3. The second
prohibits Defendant “from applying for or seeking from . . . any
. . .
governmental
body
. . .
a
permit,
permission,
or
authorization to undertake any activity upon the ARTCO Property or
on any bed of any navigable river, lake or stream adjacent to or
adjoining the ARTCO Property.” Id. at 3-4.
2
Defendant
conducts
various
activities
on
his
property,
including barge fleeting, ship mooring, sand dredging, and the
operation of a borrow pit. See Rec. Doc. 458-2 at 8. On June 30,
2015, Defendant filed an application with the Corps for a permit
to continue these activities and expand operations on his property
via the excavation of a new borrow pit and establishment of a new
stockpiling area. Rec. Doc. 458-2 at 7-12. Defendant submitted
revised drawings in support of his application in January 2017.
Rec. Doc. 458-2 at 2. Plaintiff repeatedly objected to Defendant’s
application with the Corps before filing the instant motion to
hold Defendant in contempt and impose sanctions. See Rec. Docs.
458-2 at 14-17, 458-3 at 4-13.
LAW AND ANALYSIS
The parties do not appear to disagree on the law that governs
Plaintiff’s civil contempt claim. See Rec. Docs. 458-1 at 6-8, 461
at
5.
Rather
they
disagree
about
whether
Defendant’s
permit
application violates the 2015 Judgment. See Rec. Docs. 458-1 at 8,
461 at 5-8. To prevail on its civil contempt claim, Plaintiff must
show by clear and convincing evidence that Defendant “violate[d]
a definite and specific order of the court requiring him to perform
or refrain from performing a particular act or acts with knowledge
of the court’s order.” Hornbeck Offshore Servs., L.L.C. v. Salazar,
713 F.3d 787, 792 (5th Cir. 2013). A plaintiff meets this burden
by offering evidence sufficient to “produce[] in the mind of the
3
trier of fact a firm belief or conviction so clear, direct and
weighty and convincing . . . [that] the fact finder [can] come to
a clear conviction, without hesitancy, of the truth of the precise
facts of the case.” Id. (some alterations omitted).
The 2015 Judgment strikes a balance between Plaintiff’s and
Defendant’s rights. It limits Defendant’s activities to protect
Plaintiff’s use of its property, but it does not prohibit those
activities that are consistent with Plaintiff’s property rights.
See Rec. Doc. 376. Specifically, Defendant is prohibited from (1)
“entering upon or conducting any activity upon the ARTCO Property;”
(2) “conducting any activities . . . on any bed of any navigable
river, lake or stream adjacent to or adjoining the ARTCO Property,”
even if permitted by the relevant governmental bodies; and (3)
“applying for or seeking” a permit that would allow activities
inconsistent with (1) or (2). Rec. Doc. 376 at 3-4. Whether the
Judgment prohibited the Defendant’s application therefore turns on
the location of the Defendant’s activities.
As a result, the Court must define the phrases “upon the ARTCO
Property” and “on any bed of any navigable river, lake or stream
adjacent to or adjoining the ARTCO Property.” Defining the first
phrase is relatively straightforward because the “ARTCO Property”
was precisely defined in the 2015 Judgment.2 Rec. Doc. 376 at 1.
2
The “ARTCO Property” is the property “acquired by Act of Cash Sale from Export
Elevation Properties, Inc., dated March 24, 2011, and recorded as Conveyance
4
On the other hand, defining the second phrase requires examination
of the various property rights that accrue to those whose property
abuts the Mississippi River.
The State of Louisiana owns the bed of a navigable river such
as the Mississippi. See Wemple v. Eastham, 90 So. 637, 638 (La.
1922); see also, 2 Ronald J. Scalise, Jr., La. Civ. L. Treatise,
Property § 4:13 (5th ed. 2017). The bed of a river is that land
covered by water at the river’s “ordinary low stage.” Wemple, 90
So. at 638. The area from this low water mark to the comparable
high water mark is known as the banks of the river and belongs to
the “owner of the adjacent land.” Id. These owners, and their
lessees, have “the right to erect and maintain [various commercial
structures] on the batture or banks owned or leased by them and in
the bed of the navigable river . . . adjacent to or adjoining such
batture or banks . . . .” La. Stat. § 9:1102.1.
Therefore, to show that Defendant has violated the 2015
Judgment, Plaintiff must show by clear and convincing evidence
that
Defendant
is
conducting
or
seeks
a
permit
to
conduct
activities on the “ARTCO Parcel” itself or on the banks and river
bed
that
Mississippi
extend
out
from
the
River. Plaintiff argues
“ARTCO
Parcel”
that
Defendant
into
the
sought
a
permit that, in addition to
Instrument No. 153435, Book 447, Page 324, of the Conveyance Records for the
Parish of St. James . . . .” Rec. Doc. 376 at 1.
5
allowing new and expanded activities on Defendant’s land, would
have allowed some “ongoing activities.” See Rec. Docs. 458-1 at
5
(referring
to
Rec.
Doc.
458-2
at
7-12),
462-2
at
2-5.
Plaintiff must establish that these continuing activities are
ones that fall within the scope of the 2015 Judgment.
Plaintiff addresses the relevant question most directly in
its Reply Memorandum. There, Plaintiff asserts that the updated
drawings submitted to the Army Corps of Engineers in January and
September 2017 “show[] that [Defendant] intended to continue to
perform
operations
on
ARTCO’s
property”
and
“still
seeks
to
continue the operations” forbidden by the 2015 Judgment.3 Rec. Doc.
462-2 at 5.
occurred
Rec.
50
Doc.
activities
Defendant states that his activities would have
to
461
would
200
feet
at
4,
have
up
river
from
6.
Arguably,
been
confined
Plaintiff’s property.
Defendant
to
alleges
Defendant’s
his
property.
See Rec. Docs. 458-2 at 4-6, 461-1 at 21.
3
The permit in question here was filed in June 2015, before the Court issued
the Judgment that restrained Defendant’s activities. See Rec. Docs. 376;
458-2 at 7-12. It is unclear whether Defendant pursued the permit before
submitting the revised drawings to the Army Corps of Engineers in January 2017.
See Rec. Doc. 462-2 at 5.
6
Plaintiff
revisions
urges
to
his
the
Court
permit
to
interpret
application
as
Defendant’s
evidence
of
Defendant’s intention to violate the 2015 Judgment, but these
revisions could simply represent Defendant’s efforts to better
respect Plaintiff’s property rights. See Rec. Doc. 462-2 at 5-6.
That being the purpose of the 2015 Judgment, the Court will not
at
this
time,
without
more,
find
that
Defendant’s
conduct was contemptuous. Plaintiff can again seek enforcement
of
the
2015
Judgment
and
this
Order
and
Reasons
if
Defendant’s activities in fact run afoul of Plaintiff’s rights
as found in that Judgment and above ordered notice requirements.
Defendant is
warned that failure to fully comply with court
orders will lead to severe sanctions for future violations.
New Orleans, Louisiana, this 18th day of December, 2017.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
7
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