Appeals court upholds dismissal of Alligator Bayou suit

Attorneys for a shuttered swamp tour business said Thursday they are weighing their options after losing yet another round in court in their fight to revive their business.

An appeals court backed the dismissal of a lawsuit challenging a 2009 decision by officials in Ascension and Iberville parishes to open a floodgate separating Alligator Bayou from Bayou Manchac.

That action caused the water levels to become too low for Alligator Bayou Swamp Tours to operate its tours.

Early last year state District Judge Thomas Kleibert Jr. threw out the suit filed by Frank Bonifay, one of the owners of the Spanish Lake Wildlife Refuge and Botanical Gardens Inc. The business ran the popular swamp tours from 1996 until 2009.

Kleibert ruled in January 2013 that the parishes acted within their authority when they opened the floodgate.

A three-judge panel of the state 1st Circuit Court of Appeals in Baton Rouge agreed Wednesday.

“We find no duty on the part of the Parishes to maintain an artificially high water level in Alligator Bayou for benefit of ABST’s business,” Circuit Judge Mike McDonald wrote for the panel that included Circuit Judges John Pettigrew and Page McClendon.

Attorneys for the swamp tour owners expressed disappointment in the result and said they’ll consider their options.

“A state court may award damages ... for violation of a federal law or regulation,” Glenn Peterson, one of the attorneys, said in a statement. “If this ruling stands, no one has any civil recourse if the US decides not to enforce a federal law.”

The 1st Circuit said the owners’ attorneys contend that draining the navigable waterway without federal approval violated federal law because the federal government has exclusive jurisdiction over Alligator Bayou.

But the panel said it ruled previously in the case that the parishes did not direct the water to flow anywhere other than its natural course.

Like the appellate court, Kleibert found that the parishes had no duty “to maintain the artificially high water level of Alligator Bayou, regardless of whether or not a promise was made or inferred to do so.”

“To the contrary, with regard to the floodgate, the parishes’ duty is to protect its citizens from flooding, as supported by its authority to regulate drainage,” the judge stated. “It is clear that the parishes’ decision to open the floodgate was directly related to drainage and flood prevention and control.

“While the loss of the Plaintiff’s eco-tourism business is admittedly a tragic consequence stemming from the opened floodgate, it cannot be said to have been an unforeseeable possibility,” Kleibert added.