Flood authority discusses appeal of judge’s smackdown to its oil and gas lawsuit

 Give up, or fight all the way to the U.S. Supreme Court if necessary?

That’s the question the east bank levee authority discussed Thursday after its historic lawsuit against oil and gas companies for wetlands damage suffered a resounding defeat on procedural grounds in a ruling by U.S. District Judge Nannette Jolivette Brown last week.

Brown slapped down the Southeast Louisiana Flood Protection Authority-East late Friday, saying they didn’t have standing to sue.

Yet it might be cheaper for the authority not to take “No” for an answer and appeal her ruling.

That’s because of a standard feature in the type of contingency contract the board signed with the three law firms pressing its case. If they win, the lawyers get a fat percentage of any award – but nothing if they lose.

However, if the flood authority decides to kill the effort when the lawyers still want to pursue the case, then the public board must pay all fees and costs. That’s because such a decision would prevent the lawyers from recovering their expenses.

That point was the focus of discussion at the authority’s board meeting Thursday. Gladstone Jones, head of Jones Swanson that is leading the three-firm effort for the board, said the team plans to appeal the ruling to the U.S. 5th Circuit Court of Appeal in New Orleans because it believes Brown’s ruling is filled with errors.

But board members appointed by Gov. Bobby Jindal to oppose the suit, such as vice-president Joe Hassinger, a lawyer, questioned the wisdom of that move. Hassinger told the board that reversals by 5th Circuit were rare, and that the higher court might hand down decisions the board isn’t considering. One such surprise, Hassinger said, could be an order requiring the losers to pay the legal fees of the winners.

Hassinger also said he wasn’t convinced that Brown’s decision couldn’t be used to end the lawsuit without owing the firms money.

Kelly McHugh, another of Jindal’s appointees, requested that Jones meet with the board and present the legal expenses before the 30-day deadline for appeal expires.

“I want to know what the bill is before making a decision,” he said.

Jones said the current bill is around $1.7 million, and reiterated the contract with the board would require that payment if it ordered the firm not to appeal.

“If they gave us those instructions – which the client is obviously  entitled to do – it would mean they were terminating the case, and they would owe us fees and costs,” Jones said.

“We can’t force them to agree to an appeal. But it’s our judgment, after careful reading of Judge Brown’s decision, we have a good chance on appeal.”

In fact, Brown didn’t rule on the central issue of the case — whether the energy companies caused significant damage to the wetlands.

Instead she agreed with the defendants on procedural objections:

  • That as a third party, the Southeast Louisiana Flood Protection Authority-East did not have standing to sue for violations of state and federal permits issued for the wetlands activities.
  • That its third-party status removed its standing to seek damages under a federal law prohibiting actions that impair the effectiveness of levees.
  • That the flood authority had not substantiated its claim that the removal of wetlands increased storm surge against the levees.

John Barry, former vice-president of the board who was instrumental in bringing the suit, said Brown’s legal reasoning on the board’s standing would be brought into question.

“She claims we don’t have standing because they are federal levees, but we own the levees now,” he said. “Some of her reasoning is, frankly, bizarre.”

Steve Estopinal, president of the board, left no doubt what his position would be if the issue comes to a vote.

“We have nothing to lose by appealing,” he said, “but we owe a lot of money if we quit.

“We started this fight, and we owe it to the people to continue – even if it goes all the way to the Supreme Court.”

Jones said that was unlikely. Whatever the three-judge panel at Fifth Circuit rules, the losing side will appeal to a hearing before the full court.

“If we lose both, then I think that will be it,” Jones said.

And if he gives the flood authority that advice?

“Then they don’t owe us anything.”

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About Bob Marshall

From 2013 to 2017, Bob Marshall covered environmental issues for The Lens, with a special focus on coastal restoration and wetlands. While at The Times-Picayune, his work chronicling the people, stories and issues of Louisiana’s wetlands was recognized with two Pulitzer Prizes and other awards. In 2012 Marshall was a member of the inaugural class inducted into the Loyola University School of Communications Den of Distinction.

  • nickelndime

    Some of Nannette Jolivette’s reasoning is “…frankly bizarre.” Who knew?! I have a better word – CORRUPT. Tongue Twister: NANNETTE JOLIVETTE IS CORRUPT. NANNETTE JOLIVETTE IS CORRUPT. NANNETTE JOLIVETTE IS CORRUPT. Don’t stop me now, Kelly Haggar. I M on a roll. My eye itches, and the LADY IS A TRAMP. 02/20/2015 1:54 AM

  • nickelndime

    Are all the Hassingers attorneys? Jesus H. Holy Christ. What happened to Tim? Was he the indicted one? 02/20/2015 1:59 AM

  • dimdingledon

    What a gig, give bad advice and they have to pay you to try to correct your own mistakes. This will not be the first entity the SLFPAE has allowed to do this. They allowed the Corps to do it after Katrina. Now they are allowing the attorney who said before the case that they would win and had good legal standing. I’m not a lawyer but looks to me like the good legal standing slipped and fell. I’d better be careful using those words, more attorneys might show up. The number of firms sued dropped. The basis the suit was filed was dismissed. And they want to go forward?

  • Kelly M. Haggar

    Don’t have the heart to spoil it for you. If you’re getting your jollies out of making totally unfounded accusations pulled out of your six, well, have fun.
    Just don’t plan on anyone banking on your thinking about some matter.
    And if your pet Asp is also amused, then it’s a double good day for you two.

  • Darren McKinney

    The bayou shysters are wagging the dog. What a clown shown the SLFPA-East is proving itself to be. Cut your losses, kids. Your 15 minutes and delusions of grandeur have come to an end.

  • BigAl1825

    Exactly how does it help the wetlands to pay law firms 45% (typical fee) of any settlement? This lawsuit is idiocy on so many levels. There are much better ways to go about restoring the wetlands than in a courtroom. Pretty much anything is better than this.

  • nickelndime

    Whenever anybody out there finds an attorney who tells you that you DON’T have a chance (in hell – or in a courtroom), let me know. Either this is the most positive group of professionals around, or they look at (perceive) most individuals (who retain them) to believe they have the winning Powerball ticket and by some miracle, will walk away with the prize. One cannot blame the attorneys. If they can convince anyone to stay in the game (and not add to the losses), then I would say they have done that part of their job well (convincing the client). Attorneys do not lose in a courtroom – if you get my drift. They just need to make sure they get there. As far as Nannette Jolivette, she is no different than any judge. They live for technicalities and procedural loopholes. 2/21/2015 1:54 PM

  • nickelndime

    I have paid many an attorney for their mistakes and bad advice, and this includes overcorrecting after some of the trash that has come from judges. 02/21/2015 2:00 PM