West Baton Rouge levee bike trail work starts with Brusly trailhead _lowres

A 2015 artist rendering by Tipton Associates walking/bike trail showing conceptual drawings of the bike path and trailhead in downtown Brusly.

West Baton Rouge Parish now has all of its ducks in a row for a court fight to clarify the parish government's authority to build a 5-mile recreational trail and bike path on the Mississippi River levee.

Some owners of property that abut the levee are challenging the parish's authority to encroach on their properties, prompting the parish last week to hire a high-profile lawyer to help in its legal fight with the landowners over the issue.

As a first step, though, the parish council had to get the Atchafalaya Basin Levee District to hand over to the parish its state-mandated authority to construct trails on the levee for use by the public. That’s something a state district court judge had said would have to be done to proceed with the litigation.

The hurdle cleared, the parish council moved to hire Tony Clayton, an assistant district attorney for the 18th Judicial District who also maintains a private law practice, to help with the parish’s case. He’ll team up with the parish’s attorney, Louis Delahaye, as the dispute goes forward in court.

Clayton said he’s prepared to knock down any argument against the parish's effort to build this recreational trail, calling the project a benefit to the community.

"Who would be against having a safe place for a child to ride a bike?" Clayton said. "On the opposite side of the river, in Baton Rouge, they have bike paths along the levee. In New Orleans, too. Every major city along the Mississippi have bike paths. They're great for citizens and absolutely safe."

The legal dispute concerns what rights landowners have over property they own that abuts the state's levee system and whether they can prevent the parish from building what is known as the West Baton Rouge Heritage Trailway.

West Baton Rouge Parish in October had to go to Judge Alvin Batiste for a temporary restraining order against four landowners who refused to give construction crews access to the levee to complete work on the projects. The landowners did so through verbal threats and by locking gates to the levee.

The parish was able to complete most of the work on the project, which includes connecting trails stretching into the towns of Brusly and Addis, after obtaining the temporary restraining order.

However, Batiste dissolved the temporary restraining order last month and denied the parish's request for a preliminary injunction. That has left the parish unable to complete finishing touches to the project.

Batiste didn't weigh in on the conflicting state statutes and legal opinions at the heart of the ongoing debate over landowners rights versus those of municipalities and the public when it comes to access and use of the levee system.

But in his decision last month Batiste said the parish had to get the Levee District to either join the lawsuit or grant the parish the authority to stand before the court and argue on its own for its right to build the walking trail and bike path.

The judge noted that state law assigns the right to build levee-top trails to the governing levee and drainage boards, not the Parish Council.

The outcome of the legal battle being waged by West Baton Rouge Parish has potentially broader implications for public access to levees built around the state.

"We are closely watching this," said Nicholas Rockforte, attorney for the Atchafalaya Basin Levee District.

The Levee District is the governing authority that oversees the maintenance of the levee system within an eight-parish jurisdiction that includes parts of West Baton Rouge, Iberville and Pointe Coupee parishes.

The levee board only last week adopted a resolution transferring its authority to build a levee-top trail over to West Baton Rouge Parish government per Batiste's request.

"We're here to protect flooding not build bike paths — even though we think the bike path is good for the community," Rockforte said. "It was probably municipalities who went to the Legislature to put (the state statute) in place so they can build bike paths. Levee boards aren't in the business of doing these type of things."

A day after the Levee District's action cleared the way for the litigation to proceed, the West Baton Rouge Parish Council approved Parish President Riley "Pee Wee” Berthelot’s request to hire Clayton.

Councilman Phil Porto cast the sole vote against hiring Clayton. Porto said he thinks the parish is wasting taxpayer money by hiring outside legal help on a case he feels the parish will lose.

Porto said the parish should have obtained the approval of every landowner along the levee system before proceeding forward with the project, something that was stated in West Baton Rouge's 2012 cooperative endeavor agreement with the levee board to gain the easements the parish needed to build the recreational trail.

"I think government kind of overreached its authority and now we're hiring this hotshot lawyer to fight this case," Porto said.

He said he thinks the state statute will be found to be unconstitutional if it is challenged.

"I don't think the Legislature can give away private property without due process," Porto added.

A trial date has not been set yet on the matter.

Follow Terry Jones on Twitter, @tjonesreporter.