Avoyelles Police Jury's 'ditch dirt issue' may be resolved

After years of discussion, debate, head-slapping, eye-rolling and shoulder-shrugging, the issue of whether the parish can “give” dirt to a private landowner appears to be resolved.

To paraphrase Barack Obama: “Yes they can.”

The Attorney General’s most recent opinion agrees with what Avoyelles Parish police jurors have been saying all along in trying to get District Attorney Charles Riddle to put his stamp of approval on giving drainage ditch dirt to private individuals.

Riddle has maintained that past AG opinions declared such dirt to be a “public thing” and a “thing of value,” both of which are prohibited by state law from being given to a private party without compensation.

That stance has been questioned, with the same answer, two or three times a year for the past few years. Every time, Riddle gave the same answer: “It’s against the law.”

Every time, jurors had the same reaction: “It costs us more in gas and employee time to take the dirt back to the Parish Barn in Mansura than anyone would be willing to pay for it.”

The opinion handed down April 7 was issued in response to a request from Rapides Parish Assistant District Attorney Tom Wells on behalf of the Rapides Police Jury. Wells asked whether a policy allowing the donation of dirt or other debris to a private landowner would violate state law.

COST OUTWEIGHS VALUE
“The basic premise of the policy on which you seek an opinion is that the cost of hauling and disposal of waste dirt excavated from drainage ditch maintenance by the Rapides Parish Highway Department far outweighs any value that such dirt may have for the parish,” Assistant Attorney General Ryan M. Seidemann wrote in the opinion. “Accordingly, the parish now seeks, through the proposed policy, to dispose of the dirt in favor of private parties in order to realize substantial cost savings.”

Seidemann didn’t leave Riddle out on a limb by himself. He admitted past opinions reached a different conclusion.

“The question of whether such dirt is a ‘public thing’ and is a ‘thing of value’ such that its donation by a public entity to a private party” has been addressed by the AG’s Office on numerous occasions, he noted.

The most recent opinion on this question, prior to this opinion, was on Jan. 7, 2012. That request was submitted by Richland Parish District Attorney’s Office on behalf of the Richland Police Jury.

In that opinion, the AG’s Office said the Police Jury had to attempt to sell the dirt to determine its fair market value. If the jury were unable to sell the dirt, or if the dirt had a “negative value,” the jury could dispose of it without violating state law.

In the recent opinion, the AG’s office revisited that familiar ground, stating, “The conclusion of this office is that such dirt is a ‘public thing’ and that the dirt may also be a ‘thing of value,’ the donation of which -- with no other consideration -- would violate” state law.

It is at this point in the opinion that the AG’s Office starts crawfishing and offering alternative interpretations, noting that the above conclusion “may not apply to your specific inquiry."

PUBLIC OR PRIVATE

“Whether dirt is a ‘public thing’ depends on the original source of the dirt,” the opinion continues. “If the dirt is removed from public property, then it is clearly a ‘public thing.’ “Conversely, if the dirt is removed from private property that is subject to a servitude or right of drain, then such dirt is likely private property.”

If the dirt is “private property,” then it cannot trigger the state law against giving away public property without receiving fair compensation, the opinion states.

This tracks previous jurors’ logic in questioning why the parish couldn’t give dirt from a drainage ditch to the adjacent landowners who needed the dirt to fill in holes or level an uneven place or other purpose.

The April 7 opinion further states that even if the dirt in question came from public property, “whether the value of such dirt is offset by other factors must be considered by the relevant public body -- here, the Police Jury -- when determining what the most cost-effective means is of disposition of such public things.”

The AG’s opinion states that the AG “cannot substitute its own economic judgment for that of the Police Jury. If the Police Jury has determined that it saves money with regard to dealing with its drainage ditch debris and dirt by avoiding disposal fees, only a court can review that factual judgment.

“With regard to the law, this office is of the opinion that the balancing test undertaken by the Police Jury to determine whether the fair market value of its drainage ditch debris and dirt is outweighed by the disposal costs of that material is proper and appropriate under the law and that such an approach is consistent” with state law.

In addition, the opinion notes that the parts of the 2012 opinion that conflict with this one “is hereby recalled as erroneous” regarding the applicability of the state law.

DEBRIS REMOVAL POLICY

A “Debris and Material Removal Policy” will be developed and presented to the jury for adoption.

A preliminary proposal would require the landowner to sign a “cooperative endeavor agreement” with the jury. In that agreement, the Police Jury states the “costs of transporting the ditch dirt to the Avoyelles Parish Police Jury Highway Department storage facility outweighs the value of the ditch dirt.”

The landowner/dirt recipient must agree to waive any claim for a dumping or disposal fee. The landowner/recipient must acknowledge they will accept the dirt “in the condition it is in at the time of the removal from the ditch” and that the Police Jury “makes no warranty as to the quality of the ditch dirt.

“Once the ditch dirt is placed on the described land, the ditch dirt becomes the property of the landowner and the Avoyelles Parish Police Jury shall have no further obligation under this agreement,” the agreement adds.

In short, if the dirt has a funny smell, that funny smell now belongs to the landowner. If the wife didn’t agree to having a pile of dirt in the front yard, the husband can’t call the Police Jury to have the pile hauled away.

It is a “no return” policy.

The landowner/recipient signs the agreement, as does the parish employee supervising the project.