THE POTENTIAL FOR PROMINENCE: HOW MUCH DOES THE CHOICE OF WORDS MATTER?

• Author: Breuhl, Bailey

Table of Contents I. INTRODUCTION 24 II. GENERAL PRINCIPLES OF EXPROPRIATION 24 A. CONSTITUTIONAL ROOTS 24 i. FEDERAL 24 ii. STATES 26 B. LOUISIANA 26 i. WHO CAN EXPROPRIATE? 27 ii. WHAT IS THE PROCEDURE? 28 iii. JUST COMPENSATION 28 III. KEY CASES 28 A. KELO V. CITY OF NEW LONDON 29 B. ST. BERNARD PORT V. VIOLET DOCK PORT 30 IV. PORT CITY MARITIME INDUSTRY STATISTIC COMPARISONS 33 A. HOUSTON 33 B. TAMPA 34 C. JACKSONVILLE 35 D. MIAMI 36 E. MOBILE 37 F. SAVANNAH 37 V. STATE EMINENT DOMAIN PROCEDURES COMPARISONS 38 A. TEXAS 38 B. FLORIDA 39 C. ALABAMA 41 D. GEORGIA 41 VI. HOW DOES NEW ORLEANS COMPARE 43 A. STATISTICS 43 B. DIFFERENCES AMONG CITIES 43 C. PROPOSAL 44 VII. CONCLUSION 45 I. INTRODUCTION

New Orleans is a city known for its culture. That culture includes world-renowned restaurants, Mardi Gras parades, all types of festivals, and a feeling of southern hospitality that cannot be found anywhere else. One of the core reasons for New Orleans' unique culture is its location on the Mississippi River. One of the primary reasons behind Thomas Jefferson's decision to engage in the Louisiana Purchase in 1803 was New Orleans' location on the river and the need for a functioning port city on the Gulf Coast. (1) This port city was home to merchants from around the world, including a mixture of Spanish and French people, seeking new lives and employment opportunities. (2) From the time of its acquisition in 1803, New Orleans has been a widely respected and highly productive port city.

As time went on, and as industrialization consumed the country, new port cities began establishing their dominance. This Comment will attempt to answer the question of how the Port of New Orleans can remain competitive in the ever-expanding competitive nature of the maritime transportation industry. To address this question, this Comment will begin with a general explanation of eminent domain and expropriation law. (3) Expropriation is a tool used by the government, and the constitutional, jurisprudential, and statutory rules will be explored. Once that topic is fully examined, this Comment will discuss two cases to explain how expropriation takes place and how courts decide whether all the requirements necessary for the taking have been satisfied.

Next, this Comment will inform the readers of maritime and port-specific statistics regarding employment rates, the size of various ports, and economic contribution to their respective states and the nation. The cities chosen for comparison to New Orleans are Gulf Coast and Southern Atlantic port cities typically involved in the same trade market. From this selection of cities, the Comment will discuss the eminent domain laws of each state and will finally address the main issue holding New Orleans back from its potential position as the top port city in America.

2. GENERAL PRINCIPLES OF EXPROPRIATION

   1. CONSTITUTIONAL ROOTS

      The taking of private property by the state is justified and empowered not only in individual state constitutions but also in the United States Constitution. To understand how eminent domain and expropriation function, one must look at the documents from which the power originates.

      i. FEDERAL

      Within the Bill of Rights of the United States Constitution, the Fifth Amendment contains what is known as the Takings Clause. (4) The essential principle of the Fifth Amendment is that the Federal Government is unable to take private property for public use unless just compensation is provided. (5) For clarity, the Fifth Amendment establishes two requirements for taking private property: (1) the taking has to be for public use, and (2) just compensation must be paid from the entity taking the property to the property owner. (6)

      A principle purpose of the Fifth Amendment is to ensure that the government cannot force only some of the population to "bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (7) Further, the Takings Clause is intended to protect private property, rather than allow the State to take and create its own. (8) As such, when determining which pieces of property are subject to protections found in the Fifth Amendment, courts will look to existing rules stemming from several sources, but for the purpose of this Comment, the source considered will be state law. (9)

      The federal government first addressed eminent domain in Kohl v. United States. (10) This case arose in response to an 1872 Act of Congress which allowed the Secretary of the Treasury to buy a site located in Cincinnati. (11) The Secretary wished to construct a building on this land for several different governmental uses. (12) In its analysis, the court addressed the Fifth Amendment and its disallowance of taking private property without giving just compensation. (13) Upon reflection, Justice Strong wrote "what is that but an implied assertion, that, on making just compensation, it may be taken?" (14) According to Justice Strong:

      So far as the general government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions,--as must sometimes be necessary in the case of forts, lighthouses, and military posts or roads, and other conveniences and necessities of government,--the general government may exercise the authority as well within the States as within the territory under its exclusive jurisdiction: and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties or of any other authority. (15) Ultimately, the Court held that this taking was proper and must be allowed for the government to remain independent and perpetual. (16)

      ii. STATES

      While the Takings Clause is applicable to the actions of the federal government, the amendment also applies to the states through the Fourteenth Amendment. (17) The two are distinct, however. (18) The Fifth Amendment is only a basis for protection when the United States is the actor taking the property. (19) As such, through the Fourteenth Amendment and in accordance with specific laws of the states, state actors will be subject to takings requirements as well, just not through the Fifth Amendment. (20)

   2. LOUISIANA

      As is typical of Louisiana, the term used to describe these takings is different than most other states. In Louisiana, instead of eminent domain, the taking of private property for public purposes is known as expropriation. (21)

      Article One, Section Four of the Louisiana Constitution governs expropriation. (22) It states that "property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit." (23) The section goes on to say that there are two prohibited takings: (1) "for predominant use by any private person or entity," and (2) "for transfer of ownership to any private person or entity." (24)

      Subsection 2 lists several examples of public purposes such as roads, drainage, levees, and more. (25) However, for this Comment, subsection (B)(2)(b)(vi) is of particular interest. (26) This section explains that "public ports and public airports to facilitate the transport of goods or persons in domestic and international commerce" are enumerated public purposes for the sake of expropriation. (27)

      In addition to Louisiana Constitution, Title 19 of the Louisiana Revised Statutes discusses more specific laws on expropriation for the State of Louisiana. (28)

      i. WHO CAN EXPROPRIATE?

      Section 2 of Title 19 details which entities can expropriate, listing the twelve types of corporations that are granted this power. (29) First, and perhaps most obviously, the State and its subdivisions can expropriate. Beyond the State, those who can expropriate include: corporations who are in the business of constructing tolls and canals, (30) corporations involved in constructing railways, (31) corporations that construct "waterworks, filtration and treating plants, or sewerage plants to supply the public with water and sewerage, (32) and corporations engaged in constructing and maintaining pipelines for the sake of supplying natural gas to the public. (33) For these pipeline corporations, the provision specifically lists entities such as a "common carrier or contract carrier or any domestic or foreign corporation, limited liability company, or other legal entity" as included in the pipeline allowance. (34)

      In addition, the following complete the enumerated corporations that may expropriate: corporations whose business is related to the transmission of intelligence either through telegraph or telephone, (35) corporations involved in electricity and steam used for power and other uses, (36) common carrier pipelines, (37) companies involved in the coal and lignite business, specifically for piping and marketing those resources, (38) and corporations undertaking projects to transport carbon dioxide. (39) The eleventh enumerated entity is a catch-all for "any domestic or foreign corporation, limited liability company, or other legal entity engaged in any of the activities otherwise provided for in this Section." (40) Lastly, businesses focused on the injection of carbon dioxide underground for storage upon approval "by the commissioner of conservation" can expropriate. (41)

      ii. WHAT IS THE PROCEDURE?

      To expropriate, the plaintiff, the person or entity doing the taking, must file a petition in the district court of the specific parish where the property at issue is located. (42) There are two brief exceptions or caveats to this rule. First, if the property subject to expropriation crosses parish lines, and the owner of the property lives in one of the parishes, "the petition shall be filed in the...