Lawyers for the Port of New Orleans will be in court again on Feb. 27 to argue that a judge should dismiss a public records lawsuit filed by residents in Holy Cross, where a controversial grain terminal is expected to open by the summer on land owned by the Port.
The lawsuit, filed late last year, focuses on a Dec. 30 informational hearing held to collect public input on whether the Port's Board of Commissioners should issue $100 million in bonds. If approved, the money would be used, in part, to pay for infrastructure upgrades to the Alabo Street Wharf, where Canada-based Sunrise Foods International is expected to open the terminal.
In their lawsuit, residents with the Holy Cross Neighborhood Association tried unsuccessfully to stop the meeting, arguing that Port officials violated state laws governing how to properly notice the hearing. Residents also said that when they called a local law firm for more information -- as they were instructed to do in the Port notice -- no lawyers were available ahead of the meeting because of the holiday season.
In a new response to the lawsuit filed last month, attorney Chris Ralston, who is serving as outside council for the Port, argued that the lawsuit should be dismissed because Port officials did not violate the law.
Ralston argued the hearing was not a "meeting" as defined by state open meeting laws, which say that to be considered a meeting, there must be "a 'convening of a quorum of a public body' to deliberate, act upon or receive information regarding a matter over which the public body has jurisdiction."
"Not only was there no quorum, there were no Port Commissioners present... because that hearing was held for the sole purpose of providing a forum for members of the public to receive information and express their views on the Board's proposed bond issue, not for the Board to consider, deliberate or take action on any matters," Ralston argued.
Though the notice said residents should visit the law firm Foley & Judell for more information, Ralston argued residents should have submitted any requests for records directly to the Port. But even if they had, Ralston further argued that the lawsuit was premature because it was filed before officially submitting that request and waiting the five days the Port has to respond.
Scott Sternberg, who serves as general counsel to the Louisiana Press Association and advises news organizations, including The Advocate | The Times-Picayune, on public records law issues, said even if a judge sides with residents, this decision might not impact the progress of the controversial grain terminal as residents hope.
"The remedy would be to invalidate the meeting and to have it again properly noticed," Sternberg said. "But that remedy might just be delaying the inevitable."
This is the second time the Port has faced a public records lawsuit in relation to the grain terminal project, records show.
Another lawsuit filed in March accusing the Port's records custodian of failing to turn over documents related to the project. The lawyer who filed that lawsuit declined to comment or say on whose behalf he filed the request and subsequent lawsuit.
Kimberly Curth, press secretary for the Port, said the lawsuit was halted once it was revealed that the Port did respond to the records request and no further action was taken.
The Port Board was expected to vote on the bond issue at the heart of the more recent lawsuit at its Jan. 30 meeting, but Curth said the vote was delayed due to the historic snow storm that impacted much of south Louisiana the week before. Now a vote is expected at the Board's Feb. 20 meeting.
A public notice has also been filed for a supplemental hearing related to the bond issue. The meeting will be held at 10 a.m. Tuesday at 1350 Port of New Orleans Place.
"There was additional information that was provided in the December meeting that had not been previously published," said Stacey Schexnayder, director or communications for the Port. "Following the meeting, we decided to file notice specifically including the additional information and schedule a second meeting. (Tuesday's) meeting will essentially be the same as the December meeting."
Residents have called for the grain terminal project to be cancelled, citing concerns that the terminal will be bring dangerous grain dust, pest control issues, noise and could lower their property values.
Residents will likely file an amended complaint to broaden the scope of the lawsuit to probe how the Port has noticed previous meetings and responded to other records requests, said Jeffrey Wittenbrink Sr., the attorney representing the Holy Cross Neighborhood Association.
"Any way we can make this Port responsive to the public, we'll pursue it," he said. "Their mission doesn't take public into account and that's got to change."