Commandeering of Property Use—Inter Harbor
Navigation Canal Project
WHEREAS, the Louisiana Homeland Security and Emergency Assistance and Disaster Act, R.S. 29:721, et seq., confers upon the governor of the state of Louisiana emergency powers to deal with, respond to, or recover from emergencies and disasters, including those caused by fire, flood, earthquakes, or other natural or man-made causes;
WHEREAS, Proclamation No. 51 BJ 2008, issued on August 27, 2008, and subsequently extended by Proclamation No. 58 BJ 2008, declared a state of emergency for the state of Louisiana due to Hurricane Gustav’s potential to cause severe storms, high winds, storm surges and torrential rain that could cause flooding and damage to private property and public facilities, and threaten the safety and security of the citizens of Louisiana;
WHEREAS, subsequently, Hurricane Gustav struck the state of Louisiana on September 1, 2008, causing widespread damage which continues to threaten the safety, health, and welfare of the citizens of the state of Louisiana, along with private property and public property;
WHEREAS, Proclamation No. 52 BJ 2008, issued on September 7, 2008, and subsequently extended by Proclamation No. 60 BJ 2008, declared a state of emergency for the state of Louisiana due to Hurricane Ike’s potential to cause severe storms, high winds, storm surges and torrential rain that could cause flooding and damage to private property and public facilities, and threaten the safety and security of the citizens of Louisiana;
WHEREAS, subsequently, Hurricane Ike struck the state of Louisiana on September 13, 2008, causing widespread damage which continues to threaten the safety, health, and welfare of the citizens of the state of Louisiana, along with private property and public property;
WHEREAS, in response to the damages and destruction wrought to Louisiana in the wake of Hurricanes Katrina and Rita, the Federal Government has authorized and directed the United States Army Corps of Engineers (Corps) to design and construct the “IHNC Hurricane Protection Work” (Project), also known as the Inner Harbor Navigation Canal Hurricane Risk Reduction System Closure Structure Project, Orleans and St. Bernard Parishes, Louisiana, HPO IHNC-02, State Project No. 579-36-0001, to provide a comprehensive, integrated protection system that will reduce the imminent and continuing threat to life, health, and property posed by flooding from hurricanes and other tropical storm events and improve protection at the Inner Harbor Navigation Canal from storm surges with a one percent annual exceedance probability as generally described in the Project Description Document;
WHEREAS, on April 1, 2008, the Louisiana Coastal Protection and Restoration Authority (CPRA) entered into an Agreement with the United States Department of Army for the design and construction of the Project;
WHEREAS, CPRA is required under the terms of the Agreement to provide the lands, easements, and rights-of-way necessary for construction, operation, and maintenance of the Project and is expected under Article III, Section D of the Agreement to obtain and provide rights of entry to the Corps to public and private lands by securing executive commandeering order(s) in accordance with La. R.S. 29:721, et seq., to accommodate the Corps’ construction schedules for the Project;
WHEREAS, Hurricane Gustav produced a 10 foot storm surge (based upon NVD88 datum) in the Inner Harbor Navigation Canal (IHNC) overtopping its flood and storm surge protection structures in several areas, and Hurricane Ike produced a 7.5 foot storm surge in the INHC as it passed by Louisiana’s coast, again challenging the IHNC structures and highlighting its critical vulnerability;
WHEREAS, it is necessary to acquire the lands, easements, and rights-of-way required for the construction of the Project as soon as reasonably possible in an effort to alleviate, repair, or eliminate or reduce the threat to the health, safety, and welfare of the citizens of the state of Louisiana posed by future hurricanes;
WHEREAS, pursuant to R.S. 29:724(D)(4), and subject to applicable requirements for compensation, the governor may commandeer or utilize any private property if he finds this necessary to cope with a disaster or emergency;
WHEREAS, on October 22, 2008 the Corps, via letter and attached documents and maps (Attachment A), requested that the CPRA, within the strict deadlines imposed by the Corps in its “ROW Construction Timeline w/Phase Descriptions” (Attachment A, p. 4), acquire and grant to the Corps the use of certain property in the parishes of Orleans and St. Bernard, state of Louisiana, for the construction of IHNC Hurricane Protection Work, as depicted in “HPO IHNC-02, IHNC HURRICANE PROTECTION, ORLEANS AND ST. BERNARD PARISHES, LOUIDIANA, SEGMENT MAP,” dated September 15, 2008, and revised October 22, (Attachment A, pp. 5-6); and
WHEREAS, the CPRA has determined that it is unable to acquire and grant all of the necessary rights of entry, including ingress and egress, required to assure compliance and consistency with the Corps ’ ROW Construction Timeline and that the temporary commandeering of property rights is necessary to provide the Corps the requested rights of entry within the strict deadlines set forth by the Corps in its letter of October 22, 2008, attached hereto as Attachment A, and to allow the CPRA sufficient time to reasonably acquire those property rights by voluntary acquisition, or expropriation, appropriation, or any other involuntary acquisition method available under any applicable federal or state law, including but not limited to La. R.S. 19:1, et seq. and La. R.S. 38:351, et seq. CPRA has further determined that construction and completion of the Project within the Corps ’ construction deadlines is necessary to accelerate the construction of the Project to timely cope with the effects of Hurricanes Katrina, Rita, Gustav, and Ike as well as future hurricanes that pose a threat to the health, safety, and welfare of the citizens of the state of Louisiana, and
NOW THEREFORE I, BOBBY JINDAL, Governor of the state of Louisiana, by virtue of the authority vested by the Constitution and the laws of the state of Louisiana, do hereby order and direct as follows:
SECTION 1: The state of Louisiana, through the Coastal Restoration and Protection Authority, hereby commandeers the use of certain public and private lands in the area depicted in Attachment A, pp. 5-6, including the rights to enter, utilize, and ingress and egress, the lands, easements, and rights-of-way necessary for construction, operation, and maintenance of the Project as set forth in the documents and maps attached hereto as Attachment A and specifically those necessary to assure compliance with the Corps ’ ROW Construction Timeline at page 4 of said attachment, and the right to authorize appropriate local, state, or federal governmental entities and their contractors to access, enter, and utilize public and private lands in the area depicted in Attachment A as necessary for the completion of the Project.
SECTION 2: Any entry upon or work performed by government employees or their contractors upon private property shall be in accordance with Louisiana Attorney General Opinion Nos. 05-0360, 05-0360A, and 05-0373, and any compensation for property taken shall be in accordance with the requirements of the Fifth Amendment of the Constitution of the United States of America.
SECTION 3: The Division of Administration, State Land Office, shall take immediate steps to grant the rights of entry, including ingress and egress, to the property commandeered for the above purposes pursuant to this Order and as requested by the Corps in its letter of October 22, 2008 and associated documents and maps set forth in Attachment A to ensure completion of the Project without delay and to provide necessary safeguards to the citizens of the Orleans and St. Bernard Parish areas.
SECTION 4: This Order is subject to any right, title, interest, or claim of the state of Louisiana in relation to any of the real property affected hereby, including but not limited to any water bottoms within the boundaries of such real property. Nothing herein affects or is intended to affect any such right, title, interest, or claim of the state of Louisiana.
SECTION 5: This Order is effective upon signature and shall continue in effect until February 23, 2009, unless extended, amended, modified, terminated, or rescinded by the governor, or terminated by operation of law .
IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of Louisiana, at the Capitol, in the city of Baton Rouge, on this 23rd day of October, 2008.
Secretary of State