Waste Management of Louisiana, L.L.C. v. River Birch, Inc. et al

Filing 523

ORDER AND REASONS granting in part and denying in part 469 Motion for Summary Judgment. IT IS FURTHER ORDERED that Waste Management's claim for damages allegedly incurred on or after December 3, 2006 is DISMISSED. IT IS FURTHER ORDERED that River Birch's Motion is otherwise DENIED. Signed by Judge Carl Barbier on 5/19/20. (cg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF
LOUISIANA, LLC

CIVIL ACTION

VERSUS

NO: 11-2405

RIVER BIRCH, INC., ET AL.

SECTION: “J”(4)

ORDER & REASONS
Before the Court is a Motion for Summary Judgment Due to the Mayor’s
Lack of Authority to Suspend Zoning Laws (Rec. Doc. 469) filed by defendants
River Birch, LLC f/k/a River Birch, Inc., Highway 90, LLC, Frederick R. Heebe, and
Albert J. Ward’s (collectively, “River Birch”). Plaintiff Waste Management of
Louisiana, LLC (“Waste Management”) filed an opposition (Rec. Doc. 506), and River
Birch replied (Rec. Doc. 515). This Court heard this matter on the briefs and without
oral argument. After considering the parties’ arguments, the summary judgment
record, and the applicable law, the Court will partially grant and partially deny River
Birch’s motion for the reasons set forth below.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Waste Management filed this civil RICO action, see 18 U.S.C. § 1962(c) & (d),
against River Birch in 2011, claiming that River Birch “participated in a long-running
conspiracy to limit and exclude competition for landfill disposal services in and
around New Orleans.” (Third Am. Compl. ¶ 2, Rec. Doc. 140). Relevant here is Waste
Management’s allegation that River Birch bribed Ray Nagin, the former mayor of

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New Orleans,1 to prematurely close the Chef Menteur landfill. Waste Management,
which operated the Chef Menteur landfill, asserts this closure caused it to lose
business that accrued to the benefit of River Birch, which operated competing
landfills.
On August 29, 2005, Hurricane Katrina devastated the New Orleans levee
system and caused massive flooding. Two days prior, Mayor Nagin declared a local
state of emergency pursuant to La. R.S. 29:727. That statute grants a parish
president (or in the case New Orleans/Orleans Parish, the mayor) certain additional
powers during the declared emergency. See La. R.S. 29:727(F) & 29:723(13). Under
the then-existing version La. R.S. 29:727(D), “[N]o state of emergency may continue
for longer than thirty days unless extended by the parish president.” Nagin renewed
the emergency declaration on a monthly basis fifteen times.
Katrina’s destruction created a need for additional landfill capacity. In early
2006, Waste Management submitted a proposal to open the Chef Menteur landfill in
New Orleans East. Such a landfill would typically require a conditional use permit
from the New Orleans City Council. However, on February 9, 2006, Mayor Nagin
issued Executive Order CRN 06-03, which purported to suspend portions of the city’s
1

As recounted by the Fifth Circuit:
Nagin was the Mayor of the City of New Orleans from May 2002 to May 2010. In 2013,
a federal grand jury returned a 21-count indictment against Nagin, charging him with
one count of conspiracy to commit honest-services wire fraud and bribery; six counts of
bribery; nine counts of honest-services wire fraud; one count of conspiracy to commit
money laundering; and four counts of filing false tax returns. After trial, the jury
returned guilty verdicts on all counts of the indictment, except for one count of bribery.
The district court sentenced Nagin to ten years in prison.

Waste Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d 958, 961 n.1 (5th Cir. 2019) (citing United
States v. Nagin, 810 F.3d 348 (5th Cir. 2016)).
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zoning ordinance so that the Chef Menteur landfill could open without first obtaining
a conditional use permit. The Executive Order stated that it would be effective “for a
period of six months unless earlier rescinded by me or by other operation of law.”
(Rec. Doc. 469-7). The Executive Order cited La. R.S. 29:727 and the Mayor’s
emergency declarations as the source of its authority.
A few days after issuing Executive Order CRN 06-03, Nagin, on behalf of the
City of New Orleans, signed an agreement with Waste Management allowing it to
open the Chef Menteur landfill without having a conditional use permit in hand on
day one. Furthermore, the agreement stated, “As required, Waste Management shall
apply for a conditional use permit through the City Planning Commission.” (Rec. Doc.
469-18). That same day, the Mayor’s office sent the Louisiana Department of
Environmental Quality (“LDEQ”) an Emergency Disaster Cleanup Site Request,
requesting that Chef Menteur landfill operate for the “duration of the Hurricane
Katrina disaster cleanup efforts, at this time estimated to be 12 months.” (Rec. Doc.
506-14).
On April 6, 2006, the New Orleans City Council issued a unanimous resolution
condemning Executive Order CRN 06-03. Noting “overwhelming community
opposition” to the Chef Menteur landfill, the City Council “strongly urge[d] Mayor C.
Ray Nagin to immediately rescind Executive Order CRN 06-03 and to halt any
ongoing negotiations relative to an agreement with Waste Management” to operate
the landfill. (Rec. Doc. 469-7). The resolution also urged the LDEQ to disapprove “the
permitting application currently under consideration relative to the proposed . . .

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landfill.” (Id.) Despite the City Council’s resolution, LDEQ did authorize the Chef
Menteur landfill to operate as a “temporary C&D [construction and demolition]
disposal facility.” (Rec. Doc. 506-22 (emphasis in original)).
The Chef Menteur landfill opened in April 2006. Then, “[o]n July 13, 2006,
Nagin announced in a court affidavit—in a lawsuit secretly financed by [River
Birch]—that he would not extend his February 9 executive order authorizing the Chef
Menteur landfill and would allow it to expire on August 14, 2006.” Waste Mgmt. of
La., L.L.C., 920 F.3d at 962. As advertised, the Mayor did not renew Executive Order
CRN 06-03. On August 14, 2006, the City of New Orleans sent Waste Management a
cease and desist letter, effectively closing the Chef Menteur landfill. That same day,
Waste Management applied for a conditional use permit for the Chef Menteur
landfill. However, Waste Management withdrew its application in January 2007.
Although Nagin allowed Executive Order CRN 06-03 to expire in August 2006,
he did renew his emergency declarations for several more months. His last emergency
declaration was made on November 3, 3006. Consequently, any emergency powers
that existed pursuant to La. R.S. 29:727 terminated on December 3, 2006.
As mentioned, Waste Management filed this civil RICO action in 2011
claiming, inter alia, that River Birch bribed Mayor Nagin to prematurely close the
Chef Menteur landfill. The case was assigned to another section of this Court. In
2017, the Court granted summary judgment in favor of River Birch and dismissed
Waste Management’s claim regarding the Chef Menteur landfill.2 (Rec. Docs. 372,

2

The parties settled Waste Management’s other claims. (See Judgment, Rec. Doc. 445).
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445). Waste Management appealed. In 2019, the Fifth Circuit vacated the dismissal.
Waste Mgmt. of La., L.L.C., 920 F.3d at 973. The case was remanded and re-assigned
to this section (the district judge originally assigned to this case has been elevated to
the Fifth Circuit).
II.

PRESENT MOTION

River Birch presents two arguments in its motion for summary judgment.
First, River Birch contends that the mayor did not have lawful authority to dispense
with the need for a conditional use permit; therefore, Executive Order CRN 06-03 was
invalid when it issued in February 2006 and could not be lawfully renewed in August
2006. From this premise, River Birch argues that even if it did bribe Nagin, that act
could not have caused harm to Waste Management.
River Birch’s second argument is made in the alternative. River Birch contends
that even if the mayor had authority to suspend city-council zoning requirements,
any such authority terminated on December 3, 2006, when Nagin’s last emergency
declaration expired. Therefore, at a minimum the Court should grant partial
summary judgment as to any damages allegedly incurred on or after December 3,
2006, claims River Birch.
III.

DISCUSSION

A court must grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

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A.

Constitutionality of La. R.S. 29:727 and Executive Order CRN 0603

Executive Order CRN 06-03 relied on La. R.S. 29:727(F)(1), part of the
Louisiana Emergency Assistance and Disaster Act. That statute provides:
(F) In addition to any other powers conferred upon the [the mayor of
New Orleans] by the constitution, laws, or by a home rule charter or
plan of government, such authority may do any or all of the following:
(1) Suspend the provisions of any regulatory ordinance prescribing
the procedures for conduct of local business, or the orders, rules, or
regulations of any local agency, if strict compliance with the
provisions of any ordinance, order, rule, or regulation would in any
way prevent, hinder, or delay necessary action in coping with the
emergency.
River Birch contends that, as applied here, La. R.S. 29:727(F)(1) is unconstitutional;
consequently, Executive Order CRN 06-03 was invalid.
New Orleans is governed by a home rule charter. That charter allocated legal
authority over zoning issues to the City Council. The city’s Comprehensive Zoning
Ordinance, which is a product of legislation passed by the City Council, makes the
City Council the “final decision-maker” on applications for conditional use permits.
River Birch argues that because the home rule charter pre-existed the state’s
1974 constitution, Article VI, Section 4 of the constitution grants the city the power
to initiate local legislation and immunity from control by the state legislature. River
Birch further contends that Article VI, Section 6 of the constitution prohibits the state
legislature from interfering with the powers of a municipal authority governed by a
home rule charter. River Birch concludes, then, that “[r]egardless whether La. R.S.
29:727(F)(1) may be constitutionally applied in other scenarios, as applied here, the

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mayor could not lawfully use it to usurp the City Council’s ‘final decision-maker’ role
over the issuance of a conditional use permit.” (Mem. in Supp. of Summ. J. at 14, Rec.
Doc. 469-1). Consequently, Executive Order CRN 06-03 was invalid when it issued,
and the Mayor could not lawfully renew it, urges River Birch.
Waste Management counters that La. R.S. 29:727(F)(1) is constitutional (both
on its face and as applied here) and Executive Order CRN 06-03 was a valid exercise
of the mayor’s emergency powers. However, Waste Management also argues that the
Court need not and should not decide the constitutional issue. The Court agrees with
the latter argument; therefore, it does not reach the former.
The record is clear that the mayor’s authorization of the Chef Menteur landfill
and request for LDEQ approval as an Emergency Disaster Clean-up Site were
sufficient for the agencies directing the clean-up activity and would have been
sufficient for the continued use of the Chef Menteur landfill. Even the City Council’s
resolution “strong[ly] urg[ing]” Nagin to rescind Executive Order CRN 06-03 omits
any suggestion that the mayor acted ultra vires. In other words, while the City
Council plainly believed Nagin’s decision to open the Chef Menteur landfill was
unwise, even it appeared to believe that Nagin had the authority to do so.
More to the point, there is no dispute that Waste Management could not have
opened the landfill in April 2006 had the mayor not issued Executive Order CRN 0603. Nor is there any dispute that the immediate reason the landfill closed in August
2006 is because the mayor did not renew the executive order. Lawful or not, the
reality in 2006 was that Executive Order CRN 06-03 was the alpha and the omega of

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the Chef Menteur landfill. The question for trial is whether “the payment to Nagin
was the but for cause and proximate cause of his decision” to not renew the Executive
Order and thus “shutter the landfill.” Waste Mgmt. of La., L.L.C., 920 F.3d at 965.
Even if the Court were to hold, fourteen years later, that Nagin did not have the
authority to issue Executive Order CRN 06-03, it would not change the fact that the
Chef Menteur landfill rose and fell with Executive Order CRN 06-03. If a jury
determines that River Birch made illegal payments to Nagin and those payments are
the but for and proximate cause of CRN 06-03’s non-renewal, and thus the landfill’s
closure, then River Birch will be liable to Waste Management—even if it were also
determined that Nagin did not have the authority to allow the landfill to open in the
first place.
Accordingly, the Court will deny River Birch’s motion for summary judgment
with respect to its argument that La. R.S. 29:727 and Executive Order CRN 06-03
were unconstitutional and unlawful. The Court does not express any view as to
whether La. R.S. 29:727 and/or Executive Order CRN 06-03 are constitutional. See,
e.g., United States v. Int’l Union United Automobile, 352 U.S. 567, 590 (1957) (“The
impressive lesson of history confirms the wisdom of the repeated enunciation, the
variously expressed admonition, of self-imposed inhibition against passing on the
validity of an Act of Congress unless absolutely necessary to a decision of the case.”
(internal quotations and citation omitted)).
B.

Waste Management’s Damages After December 3, 2006

There is no dispute that the mayoral-declared state of emergency in New

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Orleans ended on December 3, 2006. Without a declared state of emergency, Nagin
was powerless to exempt Waste Management from the comprehensive zoning
ordinance. Therefore, even if River Birch had corruptly persuaded the mayor to no
longer exempt the Chef Menteur landfill from the zoning laws, that corruption could
have had effect only until December 3, 2006. From that point forward, Waste
Management needed a conditional use permit from the City Council in order to
operate the Chef Menteur landfill.
Waste Management failed to obtain that permit, and it has no evidence that
Defendants’ alleged bribery caused this failure. Waste Management applied for a
conditional use permit in August 2006, but unilaterally withdrew that application in
January 2007. Furthermore, in April 2006, before the allegedly illegal payments to
Nagin began, the City Council unanimously condemned Nagin’s decision to allow the
Chef Menteur landfill to move forward without a permit. No evidence exists that the
City Council would have changed its mind.3
Consequently, any claimed injury after December 3, 2006, relies on conjecture
and speculation that is without any support in the record. There is no genuine dispute
that River Birch was not the legal or factual cause of Waste Management’s losses
after December 3, 2006. Accordingly, the Court will partially grant River Birch’s
motion for summary judgment.

Waste Management cites Bieter Co. v. Blomquist, 987 F.2d 1319 (8th Cir. 1993). There, however, the
allegedly corrupted mayor actually sat on and voted as a member of the city’s five-member council. So
did two other allegedly corrupted council members. Here, Nagin did not sit on the City Council; there
is no evidence that Nagin influenced the City Council’s decision; and as mentioned above, the City
Council unanimously voiced its disapproval of the Chef Menteur before the alleged bribes to Nagin
were made.
3

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IV.

CONCLUSION

For the reasons set forth above,
IT IS ORDERED that River Birch’s Motion for Summary Judgment Due to the
Mayor’s Lack of Authority to Suspend Zoning Laws (Rec. Doc. 469) is GRANTED IN
PART and DENIED IN PART.
IT IS FURTHER ORDERED that Waste Management’s claim for damages
allegedly incurred on or after December 3, 2006 is DISMISSED.
IT IS FURTHER ORDERED that River Birch’s Motion is otherwise DENIED.
New Orleans, Louisiana, this 19th day of May, 2020.

___________________________________
United States District Judge

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