May 12, 2014 07:06

Sen. Bret Allain has much more in common with the levee board than he lets on.

State Sen. Bret Allain's staunch opposition to the New Orleans levee board's lawsuit must exist only within the walls of the state Capitol, because a lawsuit filed by his family company in 2007 reveals that he has much more in common with the levee board than he lets on.

Sen. Bret Allain  

Like Gov. Bobby Jindal and Sen. Robert Adley, Allain, a Republican from Franklin in St. Mary Parish, has worked hard this legislative session to kill the lawsuit filed last year by the Southeast Louisiana Flood Protection Authority-East against 97 oil and gas companies. Allain's S.B. 469 would retroactively end the levee board's suit.

But outside the state Capitol, Allain's treatment of the oil and gas industry seems more in line with the actions of the levee board. As president of the Allain Land Company, Allain in 2007 filed suit against Gulf South Pipeline Co. Not only is Gulf South Pipeline included among the 97 oil and gas companies being sued by the levee board, but like the levee board suit the one filed by Allain Land Co. also centered on the violation of drainage servitudes.

According to Allain's lawsuit, which eventually made its way to federal court, Gulf South's pipeline had been on his family's land since 1959. Essentially, Allain's lawsuit was filed because Gulf South failed to properly live up to its agreement with the family, and allowed its pipeline to interfere with drainage on the family's sugar farm.

In 2011, the lawsuit was settled out-of-court, but Allain claims he received no money from the settlement.

"I collected no money in that," says Allain. "No money was paid at all, not even on attorney fees. I just made them fix the drainage because they were threatening my crop."

Sound familiar? Like Allain's claim that an oil and gas company was threatening his crop, the levee board's lawsuit is centered on the same premise: Make the industry repair what it's responsible for damaging.

"It's interesting that he did personally what he is preventing approximately 1 million people in metro New Orleans from doing."  - former levee board Vice President John Barry

Yet Allain doesn't see it that way, telling The IND, "These are totally different things."

Allain's argument - an overly technical spiel not easily translatable into laymen's terms - centered on the issue of drainage servitudes and acts of God. According to Allain, the difference between his lawsuit and the levee board's is that in his case, he was the dominant estate, and his right-of-way was being blocked by Gulf South, which he calls the servient estate. The servient estate, claims Allain, cannot legally block the flow of water to the dominant estate.

Here's why, according to Allain's reasoning, the levee board's suit is different from his: "The levee board, to apply for damages, they need a cause of damage, so they made coastal landowners the dominant estate, and the argument that you have coastal lands that are obviously lower as the dominant estate is a twist of the law. They had nothing else to base their damages on, so they created something."

Allain is not a lawyer, and, according to Jim Swanson, one of the attorneys representing the levee board, it's obvious he lacks legal expertise in this matter.

"His argument is complete nonsense; he doesn't know what he's talking about," says Swanson. "There are cases that go way back in law that establish a couple of different points that he doesn't understand. He's not a lawyer; he used the same servitude theory that we're using in our lawsuit."

The point Allain is missing, says Swanson, is that water can flow from property A to property B, while also flowing from property B to property A, adding that no one property has more ownership over the water than the other.

Contrary to Allain's claim is a treatise written by one of Louisiana's leading authority's on property law, Tulane professor A.N. Yiannopoulous, who argues that two estates can be both dominant and servient at the same time.

"It's interesting that he did personally what he is preventing approximately 1 million people in metro New Orleans from doing," says former flood board Vice President John Barry (whose support of the lawsuit led to his removal from the board by Gov. Bobby Jindal). "I find that hypocritical to the extreme. He's doing it to seek money, and the flood authority's doing it to save people's lives. I met with him, I like him, but I don't understand what he's doing. It makes no sense."

After a few sneaky maneuvers, Allain's bill was approved in the Senate last week, and now awaits approval in the House.

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