Family: Business closures illegal looks like trouble on the bayou

 

 

 

Family: Business closures illegal

THE ASSOCIATED PRESS

BATON ROUGE, La. -- Two Zachary residents argue that Louisiana wildlife officials cannot stop them from charging recreational vehicle owners who use their property to access the Comite River.

Richard Shane Rush and Betty Holmes Rush want a federal court to award them damages for loss of dirt sales, timber sales and money they received from recreational vehicle owners.

The Advocate reports (http://bit.ly/1euWIhi) the lawsuit was filed this week in Baton Rouge federal court.
Read more here: http://www.miamiherald.com/2013/11/09/3741967/family-business-closures-illegal.html#storylink=cpy

 

READ COMPLAINT

 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

 

* CIVIL ACTION NO. 13-723

 

COMITE DIRT PIT, INC.,

RICHARD SHANE RUSH,

AND BETTY H. RUSH

v.

ROBERT J. BARHAM

 

JUDGE BRIAN A. JACKSON

MAGISTRATE JUDGE

RICHARD L. BOURGEOIS

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

 

AMENDED

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

AND/OR DAMAGES, EXPENSES AND ATTORNEY FEES

 

Now into court, through undersigned counsel, comes COMITE DIRT PIT, INC.,

which pursuant to FRCP 65 and 42 USC §§ 1983, et seq. for all injuries incurred as a

result of the actions of defendants in deliberate indifference to constitutional rights or

other causes as follows:

 

1.

JURISDICTION

The jurisdiction of this Honorable Court is invoked Pursuant to 28 USC § 1331

"Federal Question" and accordingly plaintiff specifically seeks relief pursuant to the 28

USC § 1983 for injuries, damages and other losses as well as supplemental jurisdiction

pursuant to 28 USC § 1367 over all state law claims.

 

2.

VENUE

Venue is proper pursuant to 28 USC § 1391 (b)(D(2) in that the Plaintiff and

Defendant reside and are located in East Baton Rouge Parish as is the res at issue and

all acts and the events or omissions giving rise to the claims herein occurred in East Baton

Rouge Parish which is within this judicial district.

 

Parties

PLAINTIFF:

COMITE DIRT PIT, INC., is a Louisiana corporation, in good standing and owner

of a certain tract of land adjacent to, along, an/or within that part of the Comite River which

as a non-navigable waterway "in fact" does not fall within the designation as a Natural and

Scenic River pursuant to La. R.S. 56:1847 (8) and which is located in East Baton Rogue

Parish, La, at 9038 Zachary Deerford Road, GPS Coordinates N30 38.533 W91 05.562,

where the property borders the Comite River, on the left descending bank of the Comite

River. [Ex 25]

RICHARD SHANE RUSH is a major who is domiciled on the property owned by

COMITE DIRT and who derives all livelihood from operations and revenues from COMITE

DIRT. SHANE RUSH owns 51% of the stock in COMITE DIRT.

BETTY HOLMES RUSH is a major who is domiciled in the same division as is the

property owned by COMITE DIRT and who derives all livelihood from operations and

revenues from COMITE DIRT. BETTY RUSH owns 49% of the stock in COMITE DIRT.

 

3.

DEFENDANT:

ROBERT J. BARHAM, is a major, who is employed by the Louisiana Department

of Wildlife & Fisheries in the position as Secretary and who was acting within the course

and scope of his employment during all material times herein and under the color of state

law.

 

4.

GENERAL ALLEGATIONS

According to the Mortgage and Conveyance Records of the Clerk of Court, in and

for the Parish of East Baton Rouge, COMITE DIRT PIT, INC. is the current "record owner"

of the property described more fully in the deed attached hereto as [Ex 20, 27 and 28], but

generally known in the tax records as Lot R-2-C Richard O. Rush subdivision; Tract R-2-C

Containing 108 acres more or less, resubdivided of Tracts R-1-A Richard O. Rush Property

in Sec. 2, 3, 8 & 10, T5S, R1E. 740-9814 (2-18-86). [Ex 28]

 

5.

Since 1960, the family, through Blackwater Estates and COMITE DIRT had

uninterrupted ownership of the property, performed farming, sold timber and mined the

property for Dirt since 1983. [Ex 31, 21, 22]

 

6.

In 2009, Robert J. BARHAM ordered COMITE DIRT through summons not to farm

any timber or dig or perform and actions on a portion of its property on the basis that

COMITE DIRT was on State Property. COMITE DIRT contested on the basis that the

property was private. The prosecution of the matter remains pending. [Ex 23]

 

7.

In 2011, Robert J. BARHAM arrested the owner and ordered COMITE DIRT not to

farm any dirt on any of its property between the access road and Comite River on the basis

that COMITE DIRT was operating on State Property. [Ex 24]

 

8.

In 2011, Robert J. BARHAM ordered COMITE DIRT not to farm any timber on its

property on the basis that COMITE DIRT was on State Property. BARHAM claims state

ownership of the river bed on behalf of the state. [Ex 26]

 

9.

By December 2010, COMITE DIRT had completed a contract for over $809,520.00

for dirt mining. [Ex 37] BARHAM though his continuous interference obstructed COMITE

DIRT from entering other contracts because BARHAM would not allow dirt mining on the

property. This has caused significant economic losses to COMITE DIRT.

 

10.

During the summer of 2011, COMITE DIRT began a commercial operation of

allowing commercial access by motor vehicles on the property for a profit. This commercial

business including allowing access by ATVs to the Comite River and the dirt mounds

owned by COMITE DIRT for recreational riding. See e.g. [Ex 3A-D]

 

11.

On October 29, 2013, Mr. Robert J. BARHAM (hereafter BARHAM) caused a

Compliance Order #CO10292013 (hereafter CO) to be served on COMITE DIRT by

certified mail COMITE DIRT, through its registered officer B.J. Rush. The CO ordered

COMITE DIRT owners to stop allowing access by motor vehicles to the Comite River over

its property. [Ex 25]

 

12.

The CO [Ex 25] provides that Betty Rush has violated the Louisiana Scenic Rivers

(Act La. R.S. 56:1840 et. seq.) [Ex 30] and rules promulgated thereunder by "Allowing

commercial access to a Natural and Scenic River without a permit as required by La.

Administrative Code Title 76:DC.117."

 

13.

Pursuant to La. R.S. 56:1852 BARHAM has never made any attempt to comply with

the Regulations. [Ex 38: § 111] BARHAM has never held any hearings, provided public

notice or made any determination that the Comite River is covered by the Act. No

management Plan was done by 1991 following the 1988 enactment of the Louisiana

Scenic Rivers Act. [Ex 38]

 

14.

BARHAM knows he has a duty to create management plan for all rivers included

before the Act, because LWLF has completed only one management plan and that was

recent and for Bayou Manchac. [Ex 1 and 2]

 

15.

BARHAM has no statutory basis to declare the Comite River a navigable waterway

or to include it in the Scenic Rivers Act absent compliance by LWL&F with the Act.

 

16.

LDWF has never complied with the Act with regard to the Comite River and

BARHAM knows this.

 

17.

Additionally, even if BARHAM had complied with the Act, which is denied, the

Louisiana Scenic Rivers Act La. R.S. 56:1852, entitled "privately owned streams; copies

of rules" recognizes the rights of private landholders provides as follows:

A. Recognizing that some few of the streams recommended for inclusion as

natural and scenic rivers may not be state owned but owned by adjacent

landowners, the state legislature encourages riparian owners to grant to the

system administrator scenic servitudes and surface servitutes. [no emphasis

added]

B. Except as provided in R.S. 56:1853 and R.S. 56:1853, no provision of

this Part shall restrict the normal activities of landowners within the

boundaries of their own property unless a mutual agreement has been

entered into with the system administrator. [no emphasis added]

* * * *

 

18.

COMITE DIRT and its predecessor in title have never granted a servitude to the

State. There is no mutual agreement or attempt by BARHAM to reach same with COMITE

DIRT. All action taken by BARHAM has been through criminal prosecutions.

 

19.

To the extent that BARHAM may claim he, in good faith relied, upon the

recommendation that the Comite River was a Navigable River issued by the State Land

Office. The State Land Office has issued a disclaimer on any river bed that it has declared

State owned, [Ex 18] that provides as follows:

 

DISCLAIMER

This information is intended to serve only as an initial reference for research

of water bottom information and does not purport to provide evidence of

legal title to property. This information does not substitute for the need

to conduct complete title analyses and should be viewed merely as a

reference that does not represent a final agency determination or a

judicial determination of ownership, unless otherwise noted. The

information and data on this site are dynamic and will change over time. We

strive, in good faith, to provide current, reliable and accurate information;

however, we fully recognize the possibility of human and/or mechanical error

occurring. We, the Office of State Lands, Division of Administration, State of

Louisiana, its employees, officers and agencies, deny any warranty

(expressed or implied) of accuracy, completeness, reliability or

timeliness of any information published via this site and shall not be

held liable for any losses caused by usage and reliance upon the

accuracy, completeness, reliability or timeliness of such information.

Any person or entity that relies upon such information

obtained from this site does so at his or her own risk.

By proceeding further, the user acknowledges that he/she has read the

foregoing statement and understands that any actions taken by the user

based on the information provided in this website are undertaken at user's

own risk.

 

20.

Any reliance by BARHAM on the declarations of the State Land Office as to

ownership of Comite River river bed was not reasonable, particularly, where is here,

BARHAM has personal knowledge that the Comite River section owned by COMITE DIRT

is no more than knee deep and nonnavigable in fact.

 

21.

BARHAM, personally, or through others has been to the property on numerous

occasions and has seen that the water in the Comite River on the COMITE DIRT property

is knee deep at best. [Ex 3 A-D]

 

22.

COMITE DIRT is able to trace their ownership in the Comite River river bed at issue

back to the Spanish and through the Sovereign. [Ex 31]F

 

23.

The only economic benefit being derived from the property at this time is the

allowance of commercial recreational vehicles to ride on the property. BARHAM is taking

the last of the economic benefits and this last action constitutes a full and final taking of all

economic benefit with no compensation and without legal right while acting under the color

of state law.

 

24.

The conduct sought to be restrained is unconstitutional and unlawful.

 

25.

BARHAM's actions have been callous and indifferent to constitutional rights in that

he has targeted COMITE DIRT under color of state law.

 

26.

In the absence of a reasonable basis in fact, BARHAM is deriving his purported

jurisdiction over the property by claiming state ownership of the river bed. COMITE DIRT

avers that the river bed is nonnavigable in fact and privately owned and has always been

privately owned.

 

27.

Nonnavigable river beds are not subject to State ownership. [Exs. 4, 5, 6, 7, 8, 12,

13, 14, 15, 17, 29, 32, 39]

 

28.

COMITE DIRT is seeking an temporary, preliminary and permanent injunction

against BARHAM from coming on the property and otherwise exercising jurisdiction over

the property and thereby violating constitutional rights.

 

29.

COMITE DIRT is further claiming damages for the losses of revenues caused by the

actions of BARHAM in violation of constitutional rights.

 

30.

The CO avers that the activities of COMITE DIRT are in violation of the Louisiana

Scenic Rivers Act in that COMITE DIRT has allowed "commercial access to a Natural and

Scenic River without a permit as required by La. Administrative Code Title 76:IX.117." [Ex

25]

 

31.

The CO caused COMITE DIRT to lose profits over the weekend from motor vehicle

operations and threatens to close the business now operated by COMITE DIRT.

 

32.

Actions of BARHAM have deprived COMITE DIRT of all economic value of its

property and has injured the owners of the company and is forcing them into bankruptcy.

 

33.

COMITE DIRT was ordered to perform as follows:

1. Immediately cease and desist allowing commercial access by motor

vehicles or other wheeled or tracked vehicle into the Comite River, in

a location where it is a designated Natural and Scenic River. [Ex 25]

 

34.

The order from BARHAM alleges that it was issued under the authority of La. R.S.

56:1851 (B) and threatens civil penalties and criminal fines and imprisonment.

 

35.

PROBABLE SUCCESS ON THE MERITS

BARHAM ACTING UNDER COLOR OF STATE LAW

BARHAM posing as Director of the Louisiana Department of WildLife & Fisheries

has violated Plaintiffs' constitutional rights as he has no authority or jurisdiction over the

property at issue, because the property at issue is not on a navigable waterway. The

waterway at issue is non-navigable in fact and not state owned.

 

36.

At all material times herein, BARHAM was acting under color of state law.

 

37.

BARHAM HAS NO BASIS TO INTERFERE WITH OWNERSHIP

BARHAM had no reasonable basis to believe that he has jurisdiction over the

property. Any reliance on any determination by the Louisiana State Land Office was

unreasonable.

 

38.

BARHAM has allowed and/or failed to interfere with similar business operations on

the Comite River within a mile north of the COMITE RIVER DIRT property. [Ex 19] The

google maps evidence dirt mining on the bank of the Comite on October 29, 2010.

 

39.

RIVER NOT NAVIGABLE IN FACT

Property that is not navigable in fact is subject to private ownership. [Exs. 4, 5, 6,

7, 8, 12, 13, 14, 15, 17, 29, 32 and 39]

 

40.

For the State to own the River, it must be navigable in fact and then declared scenic.

BARHAM may have jurisdiction over State owned Rivers, but he does not have jurisdiction

over privately owned waterways. [Exs. 4, 5, 6, 7, 8, 12, 13, 14, 15, 17, 29, 32 and 39]

 

41.

The waterway at issue is private. The waterway at issue is nonnavigable. The

waterway at issue is owned by COMITE DIRT. [Exs. 9, 10, 11, 16, 31, 33, 35, 36]

 

42.

La. C.C. art. 450 allows the state to own running waters, the waters and bottoms of

natural navigable water bodies. La. C.C. art 456 allows the State to exercise ownership

over the banks of navigable rivers.

 

43.

To claim jurisdiction the BARHAM must show that the Comite River traversing the

property at issue is navigable in fact in that it may be used to transport goods in commerce.

 

44.

No public need may be shown by BARHAM for him to exercise any ownership rights

over COMITE DIRT's property.

 

45.

The Comite River is not navigable in fact is susceptible to private ownership. [Ex

3 A-D]

 

46.

For BARHAM to legally claim ownership to the bed of the Comite River waterway,

it must be navigable in fact.

 

47.

The determination of navigability asserted by BARHAM is not a judicial

determination and not reasonably based upon any facts.

 

48.

As recent as 2011-2012, the United States Army Corp of Engineers federal

designation states the Comite River as a un-navigable waterway in the Louisiana Almanac

2011-2012, Water Resources. See page 327.2. [Ex 16, 33]

 

49.

There are similar determination made by the United States Army Corp. of Engineers

in 2008 and 2009.

 

50.

The depth of the Comite River on the COMITE DIRT property and extending nearly

the entire river is virtually knee deep for thirty (30) miles rendering it unnavigable, see (2)

color photos labeled (3 A-D).

 

51.

Evidence in support of the fact that proves the innavigability of the Comite River, see

photo labeled (3 A-D) showing the unnavigable depth of Comite River area situated south

of the Rush property.

 

52.

The Louisiana Scenic Rivers Act was formed by the Louisiana Department of

Wildlife and Fisheries (LDWF).

 

53.

In 1970, the Louisiana Legislature passed Act 398, which declared the Comite River

to be instantaneously scenic. This arbitrary designation ignored the real ownership that

the State passed to private owners with land claims and patents dating back in some cases

before 1812.

 

54.

BARHAM had no reasonable basis to believe that he has jurisdiction over the

property. Any reliance on any determination by the Louisiana State Land Office without

a factual basis was unreasonable.

 

55.

Louisiana State Land Office [LSLO] has in the past erroneously declared other

waterways to be navigable so that LDWL could declare them scenic and State owned. For

example, the Tangipahoa River was declared to be navigable. The determination to

navigability permits the inclusion of a stream into Louisiana scenic system which requires

state ownership of the bed of that waterway. The Louisiana Supreme Court found the

Tangipahoa River non-navigable in fact. See Amite Gravel and Sand Co. v. Roseland

Gravel Co., 148 La. 704, 707, 87 So. 718, 719 (1921). [Ex 5]

 

56.

In Webster Parish, Louisiana, LSLO erroneously declared Bayou Dorcheat

navigable. See MINUTES OF THE REGULAR MEETING WEBSTER PARISH POLICE

JURY, June 1, 2010, where it was admitted to be nonnavigable. [Ex 6]

 

57.

In yet another example found in a Houma Times news article, the State was

presented with another example of haphazard claims by the state to unnavigable

waterbottoms in Louisiana. See, "State no longer can claim ownership of Bayou Dorcheat".

[Ex 7]

 

58.

Relevant opinion from a legal review of comparable unnavigable waterways like the

Comite River, stipulates that a waterway is unnavigable in fact which makes it unnavigable

as a matter of law. See, Lawrence E. Donohoe Jr. and Patrick G. Tracy Jr., Phillips

Petroleum Co. v. Mississippi: The Louisiana State Law Institute's Advisory Opinion Relative

to Non-Navigable Water-bottoms, 53 LA. L. REV. (1992). [Ex 8]

 

59.

Original Surveys from the Louisiana State Land Office show the manner in which

tracts were designed around navigable waterways with tracts fronting on navigable

waterway for means of transportation and water use with the boundaries stopping at the

bank. [Exs 9 and 10] Boundaries of non-navigable waterways pass across the waterway.

 

60.

In the instance of this waterway, the Original Survey from the Louisiana state Land

Office shows the River included in the entire tract and there is no indication that the river

is not owned by the property owner. [Ex 11]

 

61.

As shown by Ex 11, from the map from LA Office of State Lands, Sec 10 T5 R1E11,

the Rush property (subdivided to COMITE DIRT) has been in private ownership with a

continuous title to centerline of Comite River beginning in 1960. [Ex 11] The Title includes

the river bed.

 

62.

Supporting chronological evidence supporting a claim to the Rush property

(subdivided to COMITE DIRT) was acquired through an unbroken chain of title.

a. Benjamin Thompson Allen's first private land certificate receipt number 3668

from the General Land Office of the US dated March 24, 1860. [Ex 31]; and

b. BARHAM is not able to show title in the State.

 

63.

As a riparian owner, COMITE DIRT, may successfully challenge the LDWF permit

requirement; supporting evidence, see page 47, Legal and Institutional Analysis of

Louisiana's Water Laws with Relationship to the Water Laws of other States and the

Federal Government, April 20, 1983. Volume 1 pages 42-48, 113-115. [Ex 16]

 

64.

In 1970, mutual agreements where supported in La R.S. 56:1852 by the Louisiana

Legislature, which urged LDWF to obtain scenic and surface servitude with private riparian

owners if the stream was privately owned before the stream was included into the

Louisiana Scenic Rivers system.

 

65.

BARHAM is unable to show that he had any good faith belief or reasonable basis

to believe that any mutual agreements were pursued by LDWF regarding the Comite River.

Rush (subdivided to COMITE DIRT) private property is situated within the scenic section

of the Comite River.

 

66.

As a matter of law, BARHAM had no reasonable basis to believe he had jurisdiction

over the COMITE DIRT property. La. R.S. 56:1852, entitled, "Privately owned streams;

copies of rules" provides that "except as provided in R.S. 56:1853 and R.S. 56:1854, no

provision of this Part shall restrict the normal activities of landowners within the boundaries

of their own property unless a mutual agreement has been entered into with the system

administrator.

a. No Scenic servitude exist; and

b. No Surface servitude exist.

 

67.

In order to encourage security of title, "the La. L. passed Act of 1912, On the basis

of this statute, it has been held that conveyances which included beds of navigable waters

without reserving title to them in the state are valid and no longer assailable. It is in this

way that Louisiana arrived at private ownership of the bottoms of navigable waters." A. N.

Yiannopoulos, Navigable Waterbottoms, Private Law: Property, 31 LA.L.REV. (1971) [Ex

15 at 196, 197]

 

68.

The evident fact that BARHAM under color of state law is seeking to unlawfully

claimed ownership of the Comite River created a regulatory takings of nearly 40 acres of

the COMITE DIRT property, which has caused the closure of COMITE DIRT. BARHAM's

unreasonable actions attempting to force COMITE DIRT into complying with his demands

to stop all activities has caused and is causing damages which resulted in a total loss of

value to property from which COMITE DIRT is unable to recover.

 

69.

The constitutional guarantee of due process of law, found in the Fifth and

Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from

arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty,

and property.

 

70.

The due process clause of the Fifth Amendment, asserts that no person shall "be

deprived of life, liberty, or property, without due process of law." This amendment restricts

the powers of the federal government and applies only to actions by it.

 

71.

The Due Process Clause of the Fourteenth Amendment, declares, "[N]or

shall any State deprive any person of life, liberty, or property, without due process of law".

This clause limits the powers of the states, rather than those of the federal government.

BARHAM is acting under color of state law.

 

72.

The actions of BARHAM will, if successful, have a direct and substantial adverse

impact on COMITE DIRT's Protected Interests, in violation of Federal constitutional and

statutory protections.

 

73.

BARHAM is legally responsible for the unconstitutional actions he has taken, which

threaten to severely, directly and unlawfully impact COMITE DIRT's Constitutionally

Protected Interests.

 

74.

The BARHAM issued CO indicates that BARHAM has engaged in and/or there is

a real and immediate threat that he will engage in actions that seek to invalidate the public

contractual rights and ownership rights from which COMITE DIRT has a Constitutionally

Protected Interests derive, in violation of U.S. Const. Art. I, 10.

 

75.

Additionally, and/or in the alternative, BARHAM's actions constitute action under

color of state law which constitutes a taking, without due process or just compensation, of

constitutionally protected property rights, in violation of the 5th and 14th Amendments to

the U.S. Constitution and 42 U.S.C. § 1983.

 

76.

Thus, COMITE DIRT's Constitutionally Protected Interests will be directly and adversely

impacted by BARHAM's attempts to usurp ownership rights and deny COMITE DIRT the

opportunity to use its land in commerce.

 

77.

IMMEDIATE HARM

COMITE DIRT and Plaintiff are suffering serious and immediate harm. Being

denied all viable economic use of their property had and is forcing them into bankruptcy.

Foreclosure proceedings have been initiated against them.

 

78.

The Plaintiffs allow the commercial vehicles to traverse their property on the

weekends. If this order is not granted, the Plaintiffs will not be able to earn a living.

 

79.

Plaintiffs are unable to afford any interruption in their business.

 

80.

INJUNCTIVE RELIEF

COMITE DIRT seeks injunctive relief to prevent the retroactive impairment of its

contract rights, which derive from the rights of ownership in the property held by COMITE

DIRT and to protect the Plaintiffs from further violation of constitutional rights.

 

81.

VIOLATION OF CIVIL RIGHTS

Plaintiff seeks relief pursuant to 42 USC § 1983, et seq.

Under the color of State and local law, COMITE DIRT's Constitutional Rights under

the 14th and 5th Amendments as set forth above have been violated.

 

82.

Plaintiff seeks relief in the form of damages for all lost profits caused by the violation

of rights and attorneys fees and cost pursuant to 42 USC § 1988 and punitive damages

pursuant to 28 USC § 1983, et seq.

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