Case 1:10-cv-01849-SMH-MLH Document 37-1 Filed 02/15/11 Page 1 of 9 PageID #: 744

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

THE CITY OF ALEXANDRIA, § CIVIL ACTION

LOUISIANA and THE CITY OF §
PINEVILLE, LOUISIANA §
§
VERSUS § CASE NO.: 10-01849
§
THE FEDERAL EMERGENCY §
MANAGEMENT AGENCY, THE §
UNITED STATES DEPARTMENT § JUDGE: HAIK
HOMELAND SECURITY, W. CRAIG §
FUGATE in his Official Capacity as §
Administrator of the Federal Emergency §
Management Agency, THE UNITED § MAGISTRATE: HORNSBY
STATES ARMY CORPS OF §
ENGINEERS, and LIEUTENANT §
GENERAL ROBERT L. VAN §
ANTWERP in his Official Capacity as §
Chief of Engineers and Commanding §
General of the United States Army §
Corps of Engineers §
___________________________________________________________

PETITION TO INTERVENE
___________________________________________________________

COMES NOW, THE STATE OF LOUISIANA through the ATTORNEY

GENERAL JAMES D. “BUDDY” CALDWELL, the GOVERNOR OF

LOUISIANA, BOBBY JINDAL, the LOUISIANA COASTAL PROTECTION AND

RESTRORATION AUTHORITY (“CPRA”), the LOUISIANA OFFICE OF

COASTAL PROTECTION AND RESOTRATION (“OCPR”), and the

LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

(“DOTD”) (hereinafter collectively referred to as “the STATE”), who, for the reasons
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herein and accompanying memorandum, assert the following claims in intervention as

party plaintiffs under Federal Rule of Procedure 24(a)(2).

1.

Made defendants in intervention are:

a.

The Department of Homeland Security is a department within the Executive

Branch of the United States. Defendant the Federal Emergency Management Agency

(“FEMA”) is an agency within the Department of Homeland Security, and Defendant W.

Craig Fugate is its Director/Administrator; and

b.

The United States Army Corps of Engineers (“USACE”) is an administrative

agency within the Executive Branch of the United States. Defendant Lieutenant General

Robert L. Van Antwerp is the U.S. Army Chief of Engineers and Commanding General

of the USACE; and

2.

Plaintiffs in intervention are:

a.

The State of Louisiana is a sovereign state of the United States. Pursuant to the

public trust doctrine the State, as public trustee, is both authorized and obligated to take

affirmative action in order to protect those resources that it holds in trust for the benefit of its

citizens.

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b.

The Attorney General is the chief legal officer of the State of Louisiana pursuant

to La. Const. Art. IV, Sec. 8, and in order to assert or protect any right or interest of the

State, the Attorney General has the authority to institute, prosecute, or intervene in any

civil action or proceeding on behalf of the State.

c.

Louisiana brings this action on its own behalf to protect the State’s economic and

environmental resources and revenue, and as parens patriae on behalf of the citizens of

Louisiana who have been, and will continue to be, impacted by the decertification of levees

by FEMA and USACE. Louisiana has standing, as parens patriae, to seek relief related to

the impacts of FEMA and USACE acts and omissions upon the State as well as Louisiana’s

citizens.

d.

The Governor of Louisiana, in accordance with La. R.S. 38:84, is statutorily

authorized, with regard to flood control, to ensure that the interests of the State and its

subdivisions, the rights and interests of its citizens and their property are adequately

safeguarded and protected. The governor may utilize, to whatever extent they are

empowered by law to function, the various levee boards or boards of levee

commissioners of this State, DOTD, CPRA, OCPR, or any other State board,

commission, agency, or political subdivision. These authorities shall, to the fullest extent

of their capacity, fully cooperate and coordinate their efforts under the Governor’s

direction in carrying out and accomplishing the obligations and requirements of the

agreements and undertakings.

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e.

CPRA was created and designated as the State’s organization assigned to address

hurricane protection, flood control, and coastal protection and restoration. CPRA is

authorized, and empowered to carry out any and all functions necessary to serve as the

single State entity responsible to act as the local sponsor for construction, operation and

maintenance of all of the hurricane, storm damage reduction, and flood control projects in

areas under its jurisdiction, including the greater New Orleans and southeast Louisiana

area.

f.

OCPR is the implementation and enforcement arm of CPRA. OCPR has

oversight jurisdiction of all levee districts in the coastal area for the State of Louisiana

and would be the entity to assist the coastal area levee districts in any construction and

maintenance of the levees if the local levee districts are to be required to raise the levees

to meet the new FEMA and USACE requirements.

g.

DOTD, through the Office of Public Works (“OPW”), administers the State’s

participation in the National Flood Insurance Program (“NFIP”). OPW is required to

cooperate with the Federal Insurance Administrator of FEMA in the planning and

carrying-out of State participation in the NFIP and shall aid, advise, and cooperate with

parishes and municipalities endeavoring to qualify for participation in said program.

OPW also shall render all engineering, economic, and other advisory services within the

scope of its functions to port and terminal districts and other local governmental

subdivisions and special districts, not located in the coastal area.

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3.

This Honorable Court has subject-matter jurisdiction pursuant to 28 U.S.C. §

1331 because this action arises under the Constitution and laws of the United States, and

sovereign immunity is waived for the purpose of reviewing a final agency action under 5

U.S.C. § 701, et seq. Further, this Court may issue an injunction and further relief

pursuant to 28 U.S.C. §§ 2201-02.

4.

The State hereby incorporates and adopts all facts, claims, counts, and allegations

alleged in the City of Alexandria and the City of Pineville’s Original Complaint. [Rec.

Doc. 1]

5.

As a result of Hurricane Katrina, FEMA is now seeking to enforce a levee

certification policy that has been dormant and a low priority for it and for the USACE for

over forty years.

6.

The FEMA and USACE efforts center on revising and updating FEMA’s Flood

Insurance Rate Maps (“FIRMs”) and FEMA’s Draft Flood Insurance Rate Maps

(“DFIRMs”), which determine insurance rates for the NFIP. As a result of the new

FEMA flood maps, many communities around the State (and the Nation) find themselves

on an expired timeline to either qualify for levee recertification or repair the levees to the

100-year flood level standard of protection at local and/or State expense under a new

standard that was not applicable at the times many, if not all, of the levees were built.

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7.

The local levee districts and the State are faced with the choice of repairing the

levees at an unbearable expense or having the citizens affected by the new FEMA flood

maps pay usurious flood insurance premiums.

8.

The citizens of Louisiana cannot and should not bear the responsibility for

ensuring that federal levees are in compliance with the regulatory requirements of another

federal agency.

9.

These new FEMA and USACE requirements stifle economic development State-

wide, threaten public safety, and violate the Tenth Amendment of the United States

Constitution.

10.

Currently, in Lafourche Parish, the South Lafourche Levee District has over 40

miles of levees for which they have received notification from the USACE that their

levees have been decertified. (See attached “Exhibit A” and “Exhibit B”).

11.

There are hundreds of miles of Mississippi River levees in northern Louisiana that

are on the verge of being decertified, including the Tensas Levee District and the Fifth

Levee District. (See attached “Exhibit C”).

12.

Thus, the State of Louisiana is submitting this request to intervene in this

litigation under Federal Rule of Procedure 24(a)(2) on the grounds that this is a State-

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wide issue affecting hundreds of thousands of Louisiana citizens and involves a matter so

situated that disposing of the action may as a practical matter impair or impede the State

of Louisiana’s ability to protect its interests. Alternatively, the State submits that they

have a right for permissive intervention under Federal Rule of Procedure 24(b)(2), in that

the State shares common claims with other plaintiffs which have common questions of

fact and law. Furthermore, the State’s intervention would not delay or prejudice the

adjudication of any of the existing parties’ claims.

WHEREFORE, THE STATE OF LOUISIANA through the ATTORNEY

GENERAL JAMES D. “BUDDY” CALDWELL, the GOVERNOR OF

LOUISIANA, BOBBY JINDAL, the LOUISIANA COASTAL PROTECTION AND

RESTRORATION AUTHORITY, the LOUISIANA OFFICE OF COASTAL

PROTECTION AND RESOTRATION, and the LOUISIANA DEPARTMENT OF

TRANSPORTATION AND DEVELOPMENT prays that after due proceedings had,

that there be judgment in their favor and against defendants, the Federal Emergency

Management Agency, the United States Department of Homeland Security, W. Craig

Fugate in his Official Capacity as Administrator of FEMA, the United States Army Corps

of Engineers, and Lieutenant General Robert L. Van Antwerp in his Official Capacity as

Chief of Engineers and Commanding General of the USACE for judgment as follows:

A. For entry of a temporary restraining order, immediately and

without bond, enjoining FEMA from issuing the preliminary

FIRMs and/or DFIRMs panel for all levee systems State wide for

14 days, or as thereafter extended in accordance with Federal

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Rule of Civil Procedure 65, pending a hearing and determination

by the Court on Plaintiffs’ request for preliminary injunction;

B. For a declaration of rights and obligations under the NFIA and

the Flood Control Acts;

C. For an order declaring FEMA’s administration of the NFIP

unconstitutional as applied herein;

D. For a preliminary and, in due course, permanent injunction

enjoining FEMA from de-accrediting all levee systems State

wide from the NFIP based on levee conditions for which the

federal government is responsible; and

E. For all other relief this Honorable Court deems just and proper.

Respectfully Submitted,

JAMES D. “BUDDY” CALDWELL

ATTORNEY GENERAL

BY: _/s/ David A. Peterson __________________

David A. Peterson (La. Bar Roll #22591) (Trial Attorney)
Ryan M. Seidemann (La. Bar Roll #28991)
Jackson D. Logan III (La. Bar Roll #31843)
Assistant Attorneys General
Louisiana Department of Justice
Civil Division/Lands & Natural Resources
Post Office Box 94005
Baton Rouge, Louisiana 70804-9005
TEL: (225) 326-6000
FAX: (225) 326-6099
Attorneys for the State of Louisiana

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 15, 2011, a copy of the foregoing Petition

to Intervene has been filed electronically with the Clerk of Court and served using the

CM/ECF system. Notice of this filing and a copy of same will be sent to all counsel of

record by operation of the court’s electronic filing system.

_/s/ David A. Peterson_____

David A. Peterson