author: [.SAUNDERS, J. h COOKS, J.,

text:
    STATE of Louisiana v. Christopher ROSS.
    No. 03-0564.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      Charles E. Johnson, Jr., Assistant District Attorney, Alexandria, LA, for Appel-lee, State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Christopher Ross.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   [.SAUNDERS, J.

The issues on appeal to this court arise from the rape of seven year old D.R. on or about November 25, 2000.

PROCEDURAL HISTORY

On February 22, 2001, the Defendant was indicted by the grand jury for the crime of aggravated rape, a violation of La.R.S. 14:42. On August 16, 2002, the Defendant waived his right to a jury trial. As a result, a bench trial was held on August 20, 2002, before the Honorable Harry F. Randow of the Ninth Judicial District Court. On October 29, 2002, the trial court found the Defendant guilty of aggravated rape. On November 18, 2002, the Defendant’s motion for a new trial was denied. On December 19, 2002, the trial court sentenced the Defendant to life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. On February 7, 2003, the Defendant’s motion to reconsider sentence was denied. This appeal followed with the Defendant assigning the following errors:

1.Assigned as error are all errors patent.
2. The evidence was insufficient to support the verdict.
3. It was error to permit the State to improperly bolster the credibility of the victim through the testimony of Dr. Daniel Lonowski.
4. The trial court imposed an excessive sentence.

ASSIGNMENT OF ERROR NUMBER ONE: ERRORS PATENT

The Defendant first assigned as error all errors patent. According to La.Code Crim.P. art. 920 the following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

Rln accordance with La.Code Crim.P. art. 920 and after careful review of the pleadings and proceedings this court finds no errors patent.

ASSIGNMENT OF ERROR NUMBER TWO:

The Defendant’s second assignment of error concerns the claim that insufficient evidence was presented to support the verdict of the trial court. Specifically, the Defendant is challenging whether or not there was sufficient evidence of penile penetration. The Defendant also claims that the evidence offered by the victim was uncorroborated and insufficient. We affirm the holding of the trial court and find that sufficient evidence was presented to support the verdict.

The Defendant contends that;

[I]n the case before this Court, the eight year old victim stated that appellant “tried” to put his “middle part” or “tried to put his thing” in her. Rather than clearly and conclusively describing penile penetration, the child victim was quoted as stating that the incident involved appellant having “touched her ... down there” suggesting the very real possibility that if there was penetration, it was digital. If the penetration was digital rather than penile, the verdict greatly overstated the gravity of the offense.
Significantly, the testimony of the child remained uncorroborated by any of the other people present in the small and crowded [sic] home. If in fact forcible penile penetration had occurred, the young child would have cried out in pain — and yet no one heard [sic] thing. The best the medical experts could offer was testimony that the injury was “consistent with” penetration. As this Court is well aware, however, such testimony does not exclude the very real possibility that the penetration was digital and not penile. The fact remains that the mother of the child examined the child’s genitalia on the morning following the incident and observed nothing, only to note that the child’s genitalia commenced bleeding more than a full week later. Only then did the child indicate pain in her genitalia. These circumstances alone call into question the weight of the proof of aggravated rape by the appellant on the date alleged.

In State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, this court explained:

IsWhen the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126; State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt, (citations omitted).

In State v. Hongo, 625 So.2d 610, 616 (La.App. 3 Cir.1993), writ denied, 93-2774 (La.1/13/94), 631 So.2d 1163, this court explained:

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 452 So.2d 234 (La.App. 1 Cir.1984), writ not considered, 456 So.2d 161, reconsideration not considered, 458 So.2d 471 (La.1984). The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand, 429 So.2d 1385 (La.1982). Thus, in the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion. State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992).

Louisiana Code of Criminal Procedure Article 14:42 provides in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

In State v. Allen, 02-0593, p. 3 (La.App. 3 Cir. 11/6/02), 830 So.2d 606, 608, this court held that “the victim’s testimony, alone, is sufficient to establish the fact of penetration.”

In this case, after the presentation of the evidence and taking the matter under advisement, the trial court found the Defendant guilty of aggravated rape, stating in pertinent part:

The first evidence to be commented on is that of the medical testimony. Dr. Myers and Dr. Yang’s testimony convinces the Court beyond a reasonable doubt that [D.R.] was penetrated. Both of the doctors were clear and emphatic in their testimony regarding their medical finding.
The Court found the testimony of both doctors to be very credible on this issue.
The testimony of a child is always subject to question and doubt because of their age and their susceptibility to being influenced. Are they testifying from actual events or is it just fantasy? The Court has considered the testimony of [D.R.] very closely for these very reasons. The evidence did not show that [D.R.] had been exposed prior to this incident to any sexual material or influences that could be a basis for the story related to this incident.
Further, [D.R.] has been consistent in telling her story of what happened on the night of November 25th, 2000. The only exception to her admission is that she told two people that Chris did not touch her. This admission is significant and the Court has not disregarded it, however, in the totality of her statements to her sister and cousin at the time of the incident, to her mother the next morning, her statement to the doctors, her statement at the Children’s Advocacy Center and her testimony at trial. The Court finds her testimony to be more credible than the admitted denial.
In deliberating on this issue the Court found the testimony of Dr. Daniel Lo-nowski to be helpful. The testimony shows that [D.R.] was confronted by members and friends of Chris’ family to recant. The Court believes that the pressure on this 7 year old child is the most likely explanation for her denial.
The Court also finds that the testimony of her mother and father regarding [D.R.j’s changes in personality on the day and days that | ¿followed the events of November 25th, add to the credibility of the victim’s testimony.
Dr. Lonowski supported the observations of the parents as indications of an incident.
The defendant argues in his brief that the time line of events does not support the State’s case. First he argues that [D.R.] was examined by her mother on the morning of November 25th and she observed no signs of sexual abuse. The Court is not persuaded by this argument. Ms. Holmes is not a person trained in performing such examinations. Further, the Court is not convinced that Ms. Holmes performed anything but a superficial exam. She admitted that she did not know what to look for in indicating sexual abuse. The fact that errors in judgment by the mother in not taking [D.R.] to the hospital that day or sooner and failing to inform the father regarding the incident do not detract from these facts.
The defendant also makes an issue of the delay in [D.R.] being examined by a doctor and the differences in the findings or lack of findings between the doctors. The Court does not find this position persuasive either. The findings of Dr. Myers and Dr. Yang are consistent and they are consistent in regards to the fact that [D.R.] suffered from a penetration.
Some of the differences may well be due to the interval of time between the two exams as well as the more complete exam that was performed by Dr. Yang, but in the final analysis, the opinions of both doctors were consistent in their findings of sexual trauma.
Lastly, the Court did not find the testimony of the other defense witnesses helpful in casting doubt on the State’s case, in fact, the Court attributes little or no credibility to these witnesses’ testimony.
Therefore, this Court is satisfied after considering the totality of the evidence and for the reasons stated this morning, that the State has proven beyond a reasonable doubt that Christopher Ross committed the crime of aggravated rape against [D.R.].

After a careful review of the record we agree with the findings of the trial court. On or about November 25, 2000, F.D.R., the victim’s father, brought the victim, D.R., to G.R. and E.R.’s home to spend the night while F.D.R. went to the RBayou Classic in New Orleans. F.D.R. recalled dropping D.R. off around 5:00 or 6:00 p.m. D.H., the victim’s sister, was already at the Defendant’s home.

The Defendant, the son of G.R. and E.R., was present at the home along with the Defendant’s sister, L.R., the Defendant’s aunt, Kathy Faye Bell, and Charles Swafford.

D.R. testified that she spent the night at her Uncle E.R.’s home around Thanksgiving and while she was alone playing with dolls in L.R.’s room, the Defendant came into the room. D.R. testified that he was wearing boxer shorts and a shirt. D.R. testified that the Defendant laid her across the bed, pulled her panties down, pulled his pants down, and “tried to force — force his middle part in me.” On cross-examination, D.R. stated “[h]e tried to stick his thing between his legs in me.” When asked where is the middle part located on a man’s body, D.R. responded, “[bjetween his legs.” When asked did it go inside of her, the victim responded, “[a] little bit.” According to D.R., the act did not hurt. The victim testified the Defendant was the only person who had ever done this to her.

At trial the State introduced into evidence a video interview of D.R. taken by Ms. Terry Lewis, of The Rapides Children’s Advocacy Center, on December 12, 2000. When shown a drawing of an unclothed girl and asked to name the body parts of the girl, D.R. referred to the genital area of the girl as her “teeny.” When shown a drawing of an unclothed boy and asked to name the body parts of the boy, D.R. referred to the genital area of the boy as his “teeny.” The victim then told Ms. Lewis that while she was alone in L.R.’s room, the Defendant came into the room wearing boxers and a shirt. He pulled his pants down, he pulled her panties down, he pushed her down on the bed causing her to lie on her back and he “tried to stick it” in her |7“teeny.” She stated that the Defendant’s “teeny” felt hard and she felt it touch inside. She described that it felt dry, then, at one point it was wet and the wet went inside. When asked by Ms. Lewis where the wet came from, D.R. indicated to the male genital part on the unclothed drawing of the boy.

D.H., who was age eleven at the time of the trial, testified she also spent the night at the G.R. and E.R.’s home that night. She was in the bathroom with her cousin L.R. when D.R. knocked on the bathroom door and told her “he tried to put his thing in her” while she was in L.R.’s room. L.R., who was age thirteen at the time of the trial, testified that when D.R. knocked on the bathroom door, she said “Chris touched her.”

Kathy Faye Bell testified she was up all night the night of the incident and that early the next morning D.R. came to her and told her that the Defendant touched her “down there.”

Around 8:30 a.m., on the morning after the incident, D.R.’s mother, E.H., arrived and D.R. informed E.H. what had transpired. E.H. testified that she examined D.R.’s vaginal area at the R’s home but observed no swelling, redness, or blood, but did notice a little tenderness. E.R. testified that when D.R.’s mother arrived, he heard D.R. tell her mother that the Defendant had touched her. On Sunday, D.R. went to stay with F.D.R. and was with F.D.R. until the following Saturday. On the following Saturday, E.H. testified D.R. had spots of blood in her panties and she took D.R. to the hospital.

Dr. Deborah Myers, a pediatrician, was accepted by the trial court as an expert in the field of child sexual abuse. Dr. Myers testified that she examined D.R. on December 14, 2000, after the child was referred to her by the Alexandria Police | sDepartment due to a complaint of sexual abuse. D.R. gave Dr. Myers a history stating that on Thanksgiving weekend a seventeen-year-old boy named Chris stuck his thing inside her tee-tee or in her tee-tee. Dr. Myers testified that she conducted a standard exam called a frog-leg labial spread exam. Dr. Myers observed that the victim was “very, very swollen and tender in the clitoral area.” Dr. Myers testified the victim was so swollen she was unable to get “a really good look at things.” Dr. Myers testified that the victim had a gaping vaginal opening but the swelling made it difficult to see further damage. Dr. Myers explained that a normal “virginal seven year old’s vaginal opening is practically closed.” In this ease, Dr. Myers found that the hymen was missing. However, as a result of her inability to perform a more thorough exam due to the swelling of D.R.’s genital area, she referred D.R. to Huey P. Long Hospital for a complete examination. Dr. Myers explained:

I was afraid that there was some internal damage that may need repairing and the only way in a child this age to get an inside look that’s adequate and also possibly having to repair things, is to do something called an exam under anesthesia, which is what I sent her to Huey Long to have obtained.

Dr. Myers further testified that, in her opinion, the injury was compatible with the victim’s story of penetrating sexual activity. Dr. Myers explained that from the trauma she observed something passed through the victim, although she could not say whether it was a “penis ... a broomstick, or ... a Coke bottle top.” When asked whether the swelling, tenderness and inflammation would last twenty days after sexual trauma, Dr. Myers responded that it was possible if the damage was severe enough, if there was ongoing trauma, or if there was an infection. When asked if there was any specific time period for a child to heal from sexual trauma, Dr. Myers explained that every child is different because there are differing amounts and degrees |9of trauma. Finally, Dr. Myers found no sign of infection, and D.R. indicated that she was not a victim of any other incident of sexual trauma.

Dr. Lillie Yang, an Obstetrician/Gynecologist, was accepted by the trial court as an expert in the field of gynecology. Dr. Yang testified that she examined D.R.’s genital area on December 19, 2000, at Huey P. Long Hospital while D.R. was under anesthesia. Dr. Yang testified that she observed that the outer genital area of the victim had extensive abrasions and excoriations. Dr. Yang stated the area was “quite” red and the hymenal room was open and that around the entry point of the vagina she observed abrasions and that the abrasions were consistent with penetration. Dr. Yang testified there were perforations of the hymen and that the hymen ovum was completely open. According to Dr. Yang, in a normal seven year old, with a non-perforated hymen, one would hardly be able to put a finger into it [the vagina], but in this case she observed that the victim’s hymen was “simply a big hole.” This meant that “something large enough to fit through the vagina ... has gone through it.” When asked whether she would have expected those findings nearly a month after the sexual trauma, Dr. Yang responded, ‘Yes.” When asked whether the presence of swelling, tenderness and inflammation twenty days after a sexual trauma was abnormal, Dr. Yang responded: “I would have expected it to have decreased but ... I would not rule it out that it can’t be there.” Additionally, Dr. Yang acknowledged that there was no specific time period for someone who suffered sexual trauma to be completely healed. In response to questioning concerning whether the injury could have been caused by a fall, Dr. Yang explained:

[T]he injury is limited to the introitus area. If it was a fall, I believe that the injury would have been more extensive, meaning that other areas would have been affected. When I examined the patient, |inonly the circular area around the vagina was effected and I did not see any injury outside of that.

In support of his argument that insufficient evidence was presented to prove penile penetration and support the verdict of the trial court, the Defendant cites State v. Marigny, 532 So.2d 420 (La.App. 1 Cir.1988). Marigny was convicted by a jury of carnal knowledge of a juvenile. On appeal, Marigny challenged the sufficiency of the evidence. The court found insufficient evidence was presented to find the defendant guilty of carnal knowledge of a juvenile but found the defendant guilty of the lesser included offense of attempted carnal knowledge of a juvenile. The court explained in pertinent part:

The only evidence introduced at trial relating to proof of sexual intercourse consists of Ms. “A’s” testimony that she and the defendant “had sex” and the testimony of Ms. “A’s” mother that Ms. “A” made the same statement to her. There was no evidence that Ms. “A” understood the phrase “had sex” to mean sexual intercourse. The state did not produce sufficient evidence to indicate that there was any penetration, which is an element of the offense charged. The alleged victim did not sufficiently testify as to penetration. Nor was any medical evidence of penetration presented, although it was stated by other witnesses that the alleged victim had been taken to at least two doctors in connection with this.

Id. at 422.

In State v. Self, 98-0039 (La.App. 3 Cir. 8/19/98), 719 So.2d 100, writ denied, 98-2454 (La.1/8/99), 734 So.2d 1229, the defendant was convicted of the aggravated rape of his eleven-year-old daughter. On appeal, the defendant challenged the sufficiency of the evidence; specifically, he challenged only whether anal or vaginal sexual intercourse occurred alleging:

During the investigation, [P.S.] only described improper “touching” by her father. Debra Waters, Office of Community Services, testified that [P.S.] never said anything about genital contact, and it was not until after the medical examination that they believed genital contact had occurred. Joann Carter, a juvenile officer with the Sabine Parish Sheriffs Office, Instated she knew of no occasion where [P.S.] has said there was genital contact between her and her father. Claudia Triche, a social worker, testified that [P.S.] states that her father touched her private parts and that he climbed on top of her and she has never told me anything other than that.
There was physical evidence of abuse; however, Dr. Ann Springer indicated that she could not testify as to what caused the penetration. Prior to trial, [P.S.] described only “touching.” It was not until trial that [P.S.] answered, “Yes” when asked, “Did he ever put his private part together with yours?” A reasonable doubt exists as to whether or not sexual intercourse occurred.
Id. at 101.

However, the court in Self found that sufficient evidence was presented to support a finding of aggravated rape, stating in pertinent part:

Our Jackson review established that the victim testified that defendant touched her private part with his, that defendant was the only one who touched her privates. Dr. Ann Springer, a pediatrician, who specialized in child abuse, testified that the victim’s vagina had been penetrated.
Id. at 101.

Similarly in this case, the victim testified that the Defendant tried to stick his thing or middle part in her and it went inside of her a little bit. The victim related a similar account to Ms. Lewis where she stated that the Defendant “tried to stick it” in her “teeny” and she felt it touch inside. Moreover, in the history given to Dr. Myers, the victim stated that the Defendant stuck his thing inside her tee-tee or in her tee-tee. Further, the victim testified that the Defendant was the only one who had ever done this to her. Both Dr. Myers and Dr. Yang, based upon their examinations, concluded that the victim’s vagina had been penetrated. In Self, 719 So.2d at 101, this court, quoting State v. Bertrand, 461 So.2d 1159, 1161 (La.App. 3 Cir.1984), writ denied, 464 So.2d 314 (La.1985), noted, “[a]ny penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient.”

11 ¿This court finds no evidence in the record to support the Defendant’s contention that there was only digital penetration. Consequently, this court, viewing the evidence in the light most favorable to the prosecution, finds that the evidence is sufficient to support a conviction of aggravated rape.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

The Defendant contends the trial court erred in permitting the State to improperly bolster the credibility of the victim through the testimony of Dr. Daniel Lonowski. Specifically, the Defendant complains about the following exchange:

Q Is there anything unusual in your experience, about a child who had been sexually attacked later saying that it didn’t happen, even though, in fact, it did, is there anything unusual about that?
A Not at all, it’s common. In fact, it’s almost so common it’s expected.

According to La.Code Crim.P. art. 841(A):

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

The Defendant contends that through this testimony Dr. Lonowski improperly vouched for the victim’s credibility. A review of the record indicates the Defendant did not object to this aspect of Dr. Lonow-ski’s testimony at trial. Consequently, the Defendant cannot raise this issue on appeal.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE:

|13The Defendant contends that the trial court imposed an excessive sentence. The Defendant argues that he was only sixteen years old at the time of the alleged crime and, although his criminal record is not exemplary, he is not the worst of offenders. The Defendant believes this court should set aside his sentence and remand for a sentence “more fairly reflective of the offense and the offender.”

When imposing the sentence, the trial court stated in pertinent part:

You heard my reasons for judgment in which I went over the evidence and it was my considered judgment that the evidence was sufficient to convict you of the offense of aggravated rape. As a result the Louisiana Legislature has instructed the courts of this State as to what that sentence must be, and so, following the mandate of the Louisiana Legislature as found in Revised Statute 14 Section 42.1:
It is the sentence of this court that you, Christopher Ross, having been found guilty of committing the crime of aggravated rape, you shall be sentenced to the Louisiana Department of Corrections to serve a life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.

In January 2003, the Defendant filed a Motion to Reconsider Sentence asserting that his sentence, as applied to him, was in violation of La. Const, art. 1, § 20 because the sentence was grossly disproportionate to the seriousness of the offense, made no measurable contribution to acceptable goals of punishment, and was nothing more than the purposeless imposition of pain and suffering. Additionally, the Defendant asserted that the sentence imposed, although within the statutory limits, was a manifest abuse of discretion and that the trial court failed to articulate the factual basis for the imposition of the sentence. Moreover, the Defendant averred that the trial court failed to consider applicable mitigating circumstances and failed to li4advise him whether the sentence was subject to diminution for good behavior, parole eligibility or enhancement and, if so, what would be the prospective release dates.

Louisiana Revised Statute 14:42 provides a mandatory life sentence for a defendant convicted of aggravated rape.

In State v. Paddio, 02-0722, pp. 16-17 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, 1131, this court explained:

[A] sentence, although within the statutory limit, is considered to be excessive if “the penalty is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Kitchen, 94-0900, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1227, 1229, writ denied, 95-0537 (La.6/23/95), 656 So.2d 1012 (quoting State v. Bonanno, 384 So.2d 355, 357 (La.1980)). A mandatory life sentence is not per se unconstitutional. Richardson v. La. Dept. of Public Safety and Corrections, 627 So.2d 635 (La.1993). However, a trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Dorthey, 623 So.2d 1276 (La.1993). Further, this review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274.
Nevertheless, a court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739 (2001). To rebut the presumption, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting from Judge Plotkin’s concurrence in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223). (citations omitted).

In State v. Johnson, 97-1906, p. 9 (La.3/4/98), 709 So.2d 672, 677, the supreme court explained:

|1sWe emphasize to sentencing judges that departures downward from the minimum sentence ... should occur only in rare situations. As Chief Justice Ca-logero noted in a prior case:
The substantive power to define crimes and prescribe [sic] punishments lies in the legislative branch of government. [citation omitted]. Our decision in State v. Dorthey, 623 So.2d 1276 (La. 1993), did not purport to grant a district court the power to usurp that legislative prerogative or to impose what the court believes is the most appropriate sentence for a particular offender in a particular case. Dorthey gives the district court the authority to depart from the mandatory minimum sentences provided by the legislature only in those relatively rare cases in which the punishment provided violates the prohibition of La. Const, art. I, § 20 against excessive sentences, (citations omitted).

In this case, the Defendant has failed to prove by clear and convincing evidence unusual circumstances that demonstrate that this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Furthermore, the Defendant failed to prove any unusual circumstances warranting a departure from the mandatory minimum sentence provided by the legislature. Consequently, this court finds that the sentence imposed upon the Defendant is not constitutionally excessive.

Accordingly, this assignment of error is without merit.

CONCLUSION:

The Defendant’s conviction and sentence are affirmed.

AFFIRM

COOKS, J., dissents in part and assigns written reasons.

h COOKS, J.,

dissents in part.

While I agree with the portion of the majority opinion affirming Defendant’s conviction, I would vacate Defendant’s sentence and remand the matter for a Dor-they hearing to determine whether the minimum life sentence mandated for the crime this particular defendant committed is constitutionally excessive.

It appears that the trial judge felt compelled, without more, to impose the mandatory life sentence. However, the Supreme Court has instructed in Dorthey and its progeny that in certain rare instances the district court may be required to do more. I am not comfortable with affirming Defendant’s life sentence without clear expression from the trial judge that he considered Defendant’s young age at the time of the offense, his propensity to engage in future violent acts, the gravity of the offense on the victim, Defendant’s maturation level at the time of the crime in light of his “special” education classification, and any other factor which might establish by clear and convincing evidence that requiring this sixteen year old Defendant to serve life in prison is constitutionally excessive.

I would caution that a decision to remand this matter for resentencing should not be viewed as a beacon for others to demand a Dorthey hearing in every case where a life sentence is imposed. ■ In this rare instance, the age of the Defendant and the absence of a well developed record requires a remand for resentencing.

      . Because the father of the victim has the same initials as the victim, he will be referred to as F.D.R.

      . At trial, the Defendant testified he was seventeen years old at the time of the incident.


source: Caselaw Access Project

author: | .THIBODEAUX, Judge.

license: Public Domain

text:
    Myrtle K. LATIGUE v. CHRISTUS ST. PATRICK HOSPITAL.
    No. 03-871.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      Robert Thomas Jacques, Jr., Lake Charles, LA, Counsel for Plaintiff/Appel-lee, Myrtle K. Latigue.
    Todd Michael Ammons, Stockwell, Sie-vert, Vicellio, Clements & Shaddock, Lake Charles, LA, Counsel for Defendant/Appellant, Christus St. Patrick Hospital.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   | .THIBODEAUX, Judge.

In this workers’ compensation case, the claimant, Ms. Myrtle K. Latigue (Ms. Lati-gue), claims that the defendant, Christus St. Patrick Hospital (St. Patrick), failed to authorize a neuropsychological examination. St. Patrick denied the referral for the examination because the claimant (1) had not chosen the psychologist and (2) was not diagnosed with a mental injury or illness by a licensed psychiatrist or psychologist. The workers’ compensation judge found that reasonable and necessary treatment was requested and St. Patrick did not reasonably controvert the claimant’s request to consult a neuropsychologist. A $2,000.00 penalty was imposed and an attorney fee of $2,000.00 was awarded.

We agree with the workers’ compensation judge and, thus, affirm the judgment. We also award an additional $3,000.00 for work done on appeal pursuant to the answer filed by the claimant.

I.

ISSUES

We shall decide:

1) whether the workers’ compensation judge properly decided that defendant failed to authorize a neuropsy-chological examination;

2) whether the workers’ compensation judge was manifestly erroneous in awarding penalties and attorney fees to the claimant.

II.

FACTS

On September 15, 2000, Ms. Latigue injured her lower back at St. Patrick Hospital. Ms. Latigue was an employee of St. Patrick working in the course | ¡.and scope of her employment at the time of injury. She is presently receiving workers’ compensation benefits.

Following the injury, Dr. John Noble, an orthopedic surgeon, treated Ms. Latigue. On March 14, 2002, Dr. Noble referred Ms. Latigue to Dr. Kevin Gorin, a pain management specialist. Dr. Gorin treated Ms. Latigue for a brief period of time and then referred her to Dr. Charles Robertson for a neuropsychological evaluation. St. Patrick declined the request for the neuropsychological examination. After St. Patrick declined to authorize the visit with Dr. Robertson, Ms. Latigue filed a disputed claim for compensation alleging that medical treatment with Dr. Charles Robertson was denied. The claim for compensation also included a claim for penalties and attorney fees.

A mediation conference was held on August 16, 2002. As a result of the mediation conference, St. Patrick chose Dr. Kevin Bianchini, a psychologist, to evaluate Ms. Latigue. An appointment was subsequently scheduled with Dr. Bianchini. Ms. Latigue did not attend the appointment. St. Patrick filed a motion to compel Ms. Latigue to attend the appointment. Judgment ordering Ms. Latigue to attend the appointment with Dr. Bianchini was rendered in open court on February 6, 2003. The order conditioned Ms. Latigue’s appointment with Dr. Bianchini on her having the opportunity to be examined by a psychiatrist or psychologist of her choice. Subsequently, St. Patrick scheduled an appointment with Dr. Robertson for April 14, 2003.

Ms. Latigue’s claim for penalties and attorney fees proceeded to trial on April 4, 2003, resulting in a $2,000.00 penalty and a $2,000.00 attorney fee award against St. Patrick Hospital. Thereafter, this appeal was filed.

_b.ni.

LAW AND DISCUSSION

Standard of Review

“Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/02/97), 704 So.2d 1161, 1164. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 704 So.2d at 1164. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the factfinder’s determinations regarding the credibility of witnesses “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Since the findings of fact in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review, they will only be reversed if they are clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375.

Applicable Law

St. Patrick contends that the workers’ compensation judge erred in finding that it failed to approve a neurop-sychological examination for Ms. Latigue. It further argues that the workers’ compensation judge erred in finding it did not reasonably controvert Ms. Latigue’s claim.

|4St. Patrick’s position is that La.R.S. 23:1121 is applicable to this case. This position is untenable. This section focuses on the examination of an injured worker by an employer’s choice of physician and an employee’s choice of physician. The present case is not about choice of physician; it is one of failure to authorize under La.R.S. 23:1201 and 23:1203.

St. Patrick also argues that La.R.S. 23:1021(7)(d) is applicable to this case. This section requires a diagnosis by a licensed clinical psychologist or psychiatrist of mental illness before an employer becomes responsible for any medical treatment. The hospital’s reliance on La.R.S. 23:1021(7)(d) is equally untenable. This case has not yet developed into a case of mental injury in which La.R.S. 23:1021 would apply. Nor is this a dispute involving a diagnosis of a mental injury which would involve the use of a licensed psychiatrist or psychologist under La.R.S. 23:1021(7)(d).

Additionally, St. Patrick cites Johnson v. St. Patrick Hospital, 02-0828 (La.App. 3 Cir. 12/11/02), 832 So.2d 1162 to bolster its position that a mental health diagnosis by a licensed clinical psychologist or psychiatrist is a prerequisite to employer liability. Johnson involved a claim which was decided after a trial on the merits and after a determination that the plaintiffs mental condition was not employment-related. Johnson was a case of causation. The claim in this case, at least at this juncture, is not one of causation. Ms. Latigue’s mental condition has not been litigated and is not an issue at this time. In addition, Johnson did not involve a dispute over the failure to authorize a medical consultation.

Louisiana Revised Statutes 23:1201 and 23:1203 are applicable to this case. In Authement v. Shappert Engineering, 02-1631(La.2/25/03), 840 So.2d 1181, the supreme court recognized that failure to authorize comes under La.R.S. 23:1203(A). IsThe court noted that although “the workers’ compensation statute does not address a failure to authorize medical treatment as such, ... [the inclusion of ‘failure to authorize’ is] reflective of the benevolent goals of the workers’ compensation law to ensure prompt medical attention to injured workers.” Authement, 840 So.2d at 1186. Additionally, the court noted that inclusion of “failure to authorize” in the title of a statute may be instructive in determining legislative intent. Id. The court stated,

[although the language of the statute itself is not instructive regarding the consequences of a failure to authorize medical treatment, with the addition of “failure to authorize” in the title, the legislature apparently contemplated that a failure to authorize medical treatment would be a consideration in determining whether to subject the payor to penalties. Id.

“One purpose of the workers’ compensation statute is to promptly provide compensation and medical benefits to an employee who suffers injury within the course and scope of employment.” Authement, 840 So.2d at 1186-87. The employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” La.R.S. 23:1203(A). Thus, a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Authement, 840 So.2d at 1187. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment. Id.

In this case, St. Patrick failed to authorize the neuropsychological examination for Ms. Latigue. This failure to authorize amounted to a failure to furnish treatment under La.R.S. 23:1201(A).

| (¡Penalties and Attorney Fees

When an employer refuses to authorize medical treatment for an injured worker which is reasonable and necessary, penalties and fees are warranted. Thibodeaux v. Sunland Const., 00-1472 (La.App. 3 Cir. 4/4/01), 782 So.2d 1203. However, La.R.S. 23:1201(F)(2) states, in part, that the penalty and attorney fee provisions “shall not apply if the claim is reasonably controverted.” Based on this language, a penalty and attorney fee can be imposed for the failure to authorize treatment except where the claim is reasonably controverted.

In this case, the workers’ compensation judge stated in her oral reasons for judgment, “the court finds that in this case, reasonable and necessary treatment was recommended by the claimant’s treating pain management specialist, Dr. Gorin, and that treatment was not authorized. To simply deny is not reasonable contr-oversion of the request.” St. Patrick refused to authorize the requested examination despite a written request for approval. St. Patrick provided no evidence to controvert Ms. Latigue’s claim.

The appropriate standard of review to be applied by the appellate courts in determining whether a defendant should be cast with penalties and attorney fees is the manifest error-clearly wrong standard. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Guidry v. Doctors’ Hosp. of Opelousas, 93-1233 (La.App. 3 Cir. 5/4/94), 640 So.2d 548. The record available to the workers’ compensation hearing officer contained sufficient factual information from which to conclude the employer/insurer failed to provide medical treatment as recommended by the claimant’s physician. “Failure to authorize medical treatment equates to failure to provide benefits in accordance with the provisions of the workers’ compensation law.” Authement, 840 So.2d at 1189. Failure to authorize the ^neuropsychological examination under the facts and circumstances of this case was a failure to provide treatment, thus triggering the imposition of penalties and attorney fees.

Accordingly, we find that the workers’ compensation judge was not manifestly erroneous or clearly wrong in awarding penalties and attorney fees to Ms. Latigue. The workers’ compensation judge was correct and, therefore, we affirm both the $2,000.00 penalty St. Patrick was ordered to pay Ms. Latigue and the award of attorney fees in the amount of $2,000.00 to Ms. Latigue’s attorney.

Request of Additional Attorney Fees

Ms. Latigue has asked for an additional award of attorney fees for work performed on this appeal. As Ms. Latigue correctly noted, a workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer’s/insurer’s unsuccessful appeal. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017; Aguillard v. Indus. Const. Co., 542 So.2d 774 (La.App. 3 Cir.1989). Accordingly, we award an additional $3,000.00 in attorney fees for the successful handling of this appeal.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. We award an additional attorney fees of $3,000.00 for work done on appeal. Costs of this appeal are assessed to Christus St. Patrick Hospital.

AFFIRMED.


author: ! THIBODEAUX, Judge.

text:
    Betty Jean HARGROVE, individually and as Natural Tutrix of Jessica Banks v. MISSOURI PACIFIC RAILROAD CO., et al.
    No. 03-818.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      Elizabeth Sheridan Hardy, Thomas & Hardy, Lake Charles, LA, for Plaintiff/Appellant, Betty Jean Hargrove.
    Sera Hearn Russell, III, Lafayette, LA, for Appellee, Ricky Haley.
    John Edmund McElligott, Jr., Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendants/Appellees, Southern Pacific Transportation Company, Tommy Comeaux, Union Pacific Railroad Company, Missouri Pacific Railroad Company, and Tommy Comeaux.
    Thomas Joseph Solari, Woodley, Williams, Boudreau, Norman, Brown & Doyle, Lake Charles, LA, for Defendant/Appellee, Progressive Security Insurance Company.
    LaVon Denise Raymond, Bureau of Legal Services, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana, Department of Health & Hospitals.
    Thomas E. Townsley, Lake Charles, LA, for PlaintiffAppellant, Betty Jean Har-grove.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   ! THIBODEAUX, Judge.

This appeal arises out of an automobile/train accident which occurred at the intersection of Cary Avenue and Union Pacific Railroad Company’s (Union Pacific) mainline track in Jennings, Louisiana. On September 26, 1996, a vehicle operated by Ricky J. Haley (Haley), collided with a Union Pacific train. Betty Jean Hargrove, individually and as natural tutrix of Jessica Banks, who were passengers in the Haley vehicle, filed suit for personal injuries against both Haley and Union Pacific. One of their claims is that the warning devices at the crossing were inadequate and that Union Pacific should be held liable. Union Pacific countered that the crossing warnings and signage were installed pursuant to a federally-funded project and, therefore, any state law claims that the plaintiffs have with respect to inadequate warning devices at the crossing are preempted by federal law. Union Pacific filed a motion for partial summary judgment and motion in limine requesting that the trial court dismiss the plaintiffs’ claims regarding inadequate railroad crossing warning signals and to preclude the plaintiffs from addressing any issues with respect to the crossing signals at trial.

The trial court concluded that the project to install the advance warning signs at the Cary Avenue railroad crossing in Jennings, Louisiana, used federal funds and, therefore, any state claims against the railroad with respect to the inadequacy of the signage was preempted by federal law. Therefore, the trial court granted Union Pacific’s motions for summary judgment and in limine. The plaintiffs now appeal. For the reasons stated below, we reverse the summary judgment granted by the trial court, affirm the trial court judgment on the use of documents relating to highway safety information pursuant to 23 U.S.C. § 409, and remand for trial on the merits.

_kL

ISSUES

We shall consider:

(1) whether the trial court erred in finding that Union Pacific met its burden of proving that federal law preempted state law in this railroad crossing collision case; and,

(2) whether 23 U.S.C. § 409 creates a privilege which prohibited Union Pacific from introducing documents related to highway safety information to show the source of funds used to install warning signage at a railroad crossing.

II.

LAW AND DISCUSSION

Federal Railroad Preemption Requirements Under 23 C.F.R. §§ 646.214(b)(3) and (4)

Recently, the Supreme Court in Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 348, 120 S.Ct. 1467, 1471, 146 L.Ed.2d 374 (2000), explained the enactment of-the Federal Railroad Safety Act (FRSA) as follows:

In 1970, Congress enacted the ... FRSA “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The FRSA grants the Secretary of Transportation the authority to “prescribe regulations and issue orders for every area of railroad safety,” § 20134(a). The FRSA also contains an express pre-emption provision, which states:
“Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.” § 20106.

|3The court further explained the purpose of the enactment of the Highway Safety Act of 1973, § 203, which created the Federal Railway-Highway Crossings Program (Crossings Program) at issue in the present case:

[The Crossings Program] makes funds available to States for the “cost of construction of projects for the elimination of hazards of railway-highway crossings.” § 130(a).

Shanklin, 120 S.Ct. at 1471.

The regulations implementing the Crossings Program which was promulgated by the Secretary through the Federal Highway Administration (FHWA) at issue in this case are 23 C.F.R. §§ 646.214(b)(3) and (4). These regulations address the adequacy of warning devices installed under the Crossings Program.

At the time of the accident, the Cary Avenue crossing was equipped with advance warning signs and an oversized stop sign. The plaintiffs assert that this signage was inadequate and brought personal injury claims based on Louisiana law.

LUnion Pacific urges that the plaintiffs state law claims are preempted. The Shanklin decision dealt with the State of Tennessee’s installation of warning devices at a railroad crossing and preemption of state law. The Supreme Court concluded:

Sections 646.214(b)(3) and (4) “cover the subject matter” of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA pre-empts respondent’s state tort claim that the advance warning signs and reflectorized crossbucks installed at the ... crossing were inadequate. Because the TDOT used federal funds for the signs’ installation, §§ 646.214(b)(3) and (4) governed the selection and installation of the devices. And because the TDOT determined that warning devices other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHWA. Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee ... law addressing the same subject, thereby pre-empting respondent’s claim.

Shcmklin, 120 S.Ct. at 1477 (emphasis added).

Guided by the above principles, it is clear that if federal funds were used to install warning devices at the Cary Avenue crossing, then §§ 646.214(b)(3) and (4) governed the selection of those devices. Thus, state laws regarding the adequacy of those devices are preempted by federal law. In the present case, since the warning devices, other than automatic gates and flashing lights, were present at the Cary Avenue crossing, approval of the project by the FHWA was necessary and “[o]nee the FHWA approved the project and the warning signs were installed with federal funds, the federal standard for adequacy displaced [Louisiana law] addressing the same subject, thereby preempting [Plaintiffs’] claim.” Shcmklin, 120 S.Ct. at 1477. Thus, in this case, it is not the mere source of funding of a crossing project that is the determinant of whether state law is preempted by federal regulations regarding the adequacy of railroad crossing warning devices; rather, it is also whether the warning | ¡¡signs used were approved by the FHWA. With this in mind, we turn our attention to whether the trial court’s grant of summary judgment was proper.

Summary Judgment

In Louisiana, summary judgment is now favored and it shall be used to secure the just, speedy, and inexpensive determination of all actions, except those specifically excluded in La.Code Civ.P. art. 969. La. Code Civ.P. art. 966(A)(2). A summary judgment shall be rendered if the pleadings, depositions, interrogatory responses, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Material facts are those that have the potential to insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. Rambo v. Walker, 96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30. Appellate courts review summary judgments de novo applying the same criteria as the trial court to determine whether summary judgment is appropriate. Schroeder v. Bd. of Sup’rs, 591 So.2d 342 (La.1991).

Despite the legislative mandate now favoring summary judgments, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, all allegations of the party opposing the motion must be taken as true, and all doubt must be resolved in his favor.” Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Therefore, the party moving for summary judgment has the burden of affirmatively showing absence of genuine issue of material fact and any doubt as to whether the moving party has met that burden should be resolved against granting the motion. Bradford v. Louisiana Downs, Inc., 606 So.2d 1370 (La.App. 2 Cir.1992). Thus, according to the prior jurisprudence of this court and of others, summary | ¿judgment is not appropriate in cases where questions of subjective facts such as motive, intent, malice, good faith and/or knowledge will determine the outcome. Nor does the likelihood that a party will prevail on the merits constitute a basis for granting a motion for summary judgment. Claiborne v. Conagra, Inc., 96-482 (La.App. 3 Cir. 10/30/96), 682 So.2d 851.

A hearing was held regarding Union Pacific’s federal preemption claim at which both Union Pacific and the plaintiffs presented exhibits. Following a review of the exhibits, the trial court determined that Union Pacific proved the expenditure of federal funds at the Cary Avenue crossing so as to support a claim of federal preemption. We disagree with the trial court’s conclusions.

The principles of summary judgment are clear that the burden to prove the nonexistence of material factual issues is on the party moving for summary judgment. In this case, it is Union Pacific. To support its motion, Union Pacific presented voluminous documents from the files of the Louisiana Department of Transportation and Development (DOTD) as well as the affidavit of Lester LeBlanc, a District Construction Engineer in the DOTD’s district 07 office. A thorough review of the DOTD documents reveals merely that a federal grant to fund the Cary Avenue crossing project was submitted. Although the affidavit of Lester LeBlanc states that the Cary Avenue crossing project was implemented “pursuant to and as part of the Federal Railroad Safety Program,” there is nothing to show that any federal money was used to install warning devices specifically at the Cary Avenue crossing. Further, the documents do not reveal whether the warning devices used at the Cary Avenue crossing, project number 737-04-14, were ever approved by the federal government pursuant to its Crossings Program. Thus, even if during the installation of the warning devices at the Cary Avenue crossing a federal funds grant was under ^consideration, it is unclear from the evidence presented whether any federal funds were utilized to pay for the work done at that particular crossing.

Shanklin makes it clear that state tort claims are preempted when warning devices at railroad crossings are installed with the participation of federal funds and, in some instances, the approval of the FHWA. However, the evidence presented by the defendants does not support an unequivocal conclusion that the warning devices used at the Cary Avenue crossing in Jennings, Louisiana was installed with federal funds or approved by the FHWA. In the absence of such proof, we cannot say that the plaintiffs’ state law negligence claims are preempted by federal law at this juncture of the proceedings. Summary judgment was, therefore, inappropriately granted.

23 U.S.C.A. § 409 Privilege

Although we have determined that the trial court erred in granting Union Pacific’s motion for summary judgment on the basis that the plaintiffs’ state law claims are preempted by federal law, we will address the plaintiffs’ argument that the documents used by Union Pacific to support its motion -should not have been considered by the trial court pursuant to 23 U.S.C.A. § 409. That statute provides:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying evaluating, or planning the safety enhancement of ... railway-highway crossings, ... or for the purpose of developing any highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceedings or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

In Palacios v. Louisiana & Delta R.R. Inc., 98-2932, p. 6 (La.7/2/99), 740 So.2d 95, 98, the Louisiana State Supreme Court explained:

[Cjourts throughout the nation have surmised that section 409 was enacted to encourage active evaluation of highway and railway safety hazards. We have previously held that, by enacting section 409, Congress intended to “[floster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil suits. The interest to be served by such legislation is to obtain information with regard to the safety of roadways free from the fear of future tort actions.” Reichert [v. State Dep’t of Transp. & Dev.], p. 4 [96-1419 (La.5/20/97)], 694 So.2d [193] at 197, quoting Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487, 584 N.E.2d 794 (1989). See also, Fry v. Southern Pacific Transp. Co., 30, 540 (La.App. 2 Cir. 6/24/98), 715 So.2d 632. The statute serves to “facilitate candor in administrative evaluations of highway safety hazards.” Stephens v. Town of Jonesboro, 25,715, p. 6-7 (La.App. 2 Cir. 8/19/94), 642 So.2d 274, 279, quoting Robertson v. Union Pacific Railroad Co., 954 F.2d 1433, 1435 (8th Cir.1992) and Duncan v. Union Pacific Railroad Co., 790 P.2d 595, 597 (Utah Ct.App.1990), aff'd 842 P.2d 832 (Utah 1992). Additionally, the statute has been considered to prohibit the use of federally required record-keeping from being used as a tool in private litigation. Stephens, supra citing Robertson, supra. See also, Harrison v. Burlington Northern Railroad Co., 965 F.2d 155, 156 n. 3 (7th Cir.1992); Light v. State, 149 Misc.2d 75, 560 N.Y.S.2d 962, 965 (N.Y.Ct.Cl.1990); and Taylor v. St. Loins Southwestern Railway Co., 746 F.Supp. 50, 54 (D.Kan.1990).

In Kitts v. Norfolk & Western Railroad Co., 152 F.R.D. 78 (S.D.W.Va.1993), the court faced the issue of whether 23 U.S.C.A. § 409 should be liberally or strictly construed. After stating the general principle that “the public ... has a right to every man’s evidence, except for those persons protected by a constitutional, common-law, or statutory privilege,” Kitts, 152 F.R.D. at 80, quoting, United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the Kitts court concluded that because 23 U.S.C.A. § 409 deprives factfinders of some relevant evidence, it should be strictly construed to accord protection for documents and data prepared for safety purposes. However, a strict construction interpretation should not apply to ^documents compiled for some other purpose, even if the contents of those other documents become a part of a safety enhancement program or project.

The reasoning expressed in Kitts reveals that it is the purpose for which the documents were compiled and/or prepared that determines whether the privilege of 23 U.S.C.A. § 409 attaches to those' documents. In Shanklin, the introduction of the documents, similar to those in the present case were not barred from discovery or admission by the provisions of Section 409 because those documents were compiled or collected for the purpose of obtaining approval from the Secretary of Transportation of particular warning devices at the crossing as opposed to safety enhancement purposes. The Palacios court set out four criteria for determining when the protection offered by Section 409 will apply to certain documents:

(1) reports, surveys, schedules, lists or data,
(2) compiled or collected,
(3) for the purpose of identifying, evaluating, or planning the safety enhancement of ... railway-highway crossings,
(4) pursuant to 23 U.S.C. § 130.

Palacios, 740 So.2d at 99. Thus, as it pertains to the present case, if any of these four factors are absent, the protections afforded by Section 409 are inapplicable regardless of whether it is the defendant or plaintiff who wishes to use the documents.

Factor number three is relevant here. If the documents were compiled or collected for the purpose of obtaining approval of the crossing project at the Cary Avenue crossing, then the documents are not protected from discovery or admission into evidence by Section 409. However, if the documents were compiled or collected for safety enhancement purposes, Section 409 protects its discovery and admission. In the present case, it appears that the documents were compiled and used by Union ImPacific to show compliance with 23 C.F.R. §§ 646.214(b)(3) and (4). Thus, we cannot say that the trial court improperly allowed Union Pacific to use the documents to support its summary judgment motion.

IV.

CONCLUSION

For the reasons above, the judgment of the trial court granting Union Pacific’s motion for summary judgment and motion in limine is reversed and set aside. Costs of this appeal are assessed to the defendant, Union Pacific.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED FOR TRIAL ON THE MERITS.

      . Sections 646.214(b)(3) and (4) provide in full:
      (3)(I) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
      (A) Multiple main line railroad tracks.
      (B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
      (C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
      (D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
      (E) Either a high volume or vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
      (F) A diagnostic team recommends them.
      (ii) In Individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
      (4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.


author: 1,COOKS, Judge.

text:
    Eroll EBEY, et al. v. AVOYELLES PARISH SCHOOL BOARD and State of Louisiana.
    No. 03-765.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.

      Rodney M. Rabalais, Marksville, LA, for Appellant Errol Ebey.
    James T. Lee, Bunkie, LA, for Appellee Avoyelles Parish School Board.
    Burton P. Guidry, Baton Rouge, LA, for Appellee State of Louisiana.
    Court composed of NED E. DOUCET, Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   1,COOKS, Judge.

STATEMENT OF THE CASE

This case involves a dispute over the management of approximately thirty-six hundred acres of timbered school property located in Avoyelles Parish. Plaintiff, Errol Ebey, a parent of school-age children, objects to the way the property is currently being managed by the Avoyelles Parish School Board (School Board). Particularly, Mr. Ebey’s petition alleges the School Board has allowed school lands to be used for free recreational purposes, primarily hunting and fishing, when the leasing of the lands to private or public entities (i.e., timber companies/private hunting clubs) at public bid would “maximize income and obtain full market value from the resources on the school lands.”

Mr. Ebey premises his cause of action on Congressional statutes admitting Louisiana into the United States (the Enabling Acts), the Louisiana Trust Code and Louisiana Revised Statutes. Alternatively, Mr. Ebey relies on Louisiana Civil Code articles governing a stipulation pour autri. Mr. Ebey contends the transfer from Congress to Louisiana, with the stipulation that the lands be used for the support of public education, created a trust; the State of Louisiana is the trustee of Section 16 lands; the Avoyelles Parish School Board is the designated administrator of the trust lands through legislative act; and the school children are the beneficiaries of the trust. Mr. Ebey contends the current management policies of the State of Louisiana (the State) and the School Board violate the trust principles established by these provisions.

We have examined the facts alleged in Mr. Ebey’s petition, with attached documents, and conclude Mr. Ebey has stated no facts to support a cause of action against the State of Louisiana or the Avo-yelles Parish School Board for violating the ^directives of the Enabling Act and Louisiana Revised Statutes which govern the management of school lands nor do we find Mr. Ebey states a cause of action under the provisions of the Louisiana Trust Code, or the Louisiana Civil Code articles governing a stipulation pour au-tri. Therefore, for the reasons assigned below, we affirm the decision of the trial court.

LAW AND DISCUSSION

Exception of No Right of Action

The School Board filed an Exception of No Right of Action, alleging Mr. Ebey has no standing to pursue a claim against the School Board. The trial court found Mr. Ebey, as a parent of children currently attending school in Avoyelles Parish, has standing to pursue a grievance against the School Board. We find no error in this decision.

Exception of No Cause of Action

The School Board filed an Exception of .No Cause of Action. The School Board characterizes Mr. Ebey’s suit as a Writ of Mandamus to compel the School Board to lease the land to private hunting clubs and timber companies. The School Board contends these duties are non-mandatory, discretionary duties and a writ of mandamus will not lie to compel performance of these duties. La.Code Civ.P. art. 3863 and 3864. Citizens Organized for Sensible Taxation (C.O.S.T.) v. St. Landry Parish Sch. Bd., et al., 528 So.2d 1048 (La.App. 3 Cir.1988). The trial court treated Mr. Ebey’s suit as a Writ of Mandamus and dismissed the petition on a No Cause of Action exception. We will review Mr. Ebey’s petition as one in ordinary process to determine whether he has stated a cause of action.

A peremptory exception of no cause of action presents a question of law which an appellate court will review de novo. Hawkins v. Evangeline Bank & Trust Co., 01-12924 (La.App. 3 Cir. 2/06/02), 817 So.2d 141 writ denied, 02-658 (La.5/24/02), 816 So.2d 308. No evidence may be introduced to support or controvert the exception. Rather, the exception is tried on the face of the petition, with supporting documentation. For the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. La. Code Civ.P. art. 931; Hawkins, 817 So.2d 141; City of New Orleans v. Bd. of Comm’rs, 93-690 (La.7/5/94), 640 So.2d 237. This exception is designed to test the legal sufficiency of the petition to determine whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South Inc., 616 So.2d 1234 (La.1993); Hawkins, 817 So.2d 141. In order to determine whether the Plaintiff has stated a cause of action, we must examine the legal principles on which he relies.

History of Trust Doctrine over Section 16 Lands in Louisiana

We accept as true the allegations of Mr. Ebey’s petition that the State of Louisiana has recognized Section 16 lands are held in trust for the benefit of public education. However, as the School Board notes, the language of the Enabling Act does not mention a “trust.” Rather, it provides that Section 16 lands are “reserved in each township for the support of schools within the same ...” (Ninth Congress Sess. I CH 39 1806). An early Louisiana case, State v. Humble Oil & Refining Co., 195 La. 457, 197 So. 140 (La.1940), speaks only in terms of a “moral” obligation by the State:

The history of the sixteenth sections lands reveals that the Federal Government set aside and dedicated them for the use of public education, and it was not until many years after this State was admitted into the Union that the title to the lands was finally determined. If it be conceded that the title to these sixteenth section is in the State, there is a moral, if not a clear legal obligation, resting upon the State to dedicate the revenues derived from such lands to public education....
_k- • • •
For more than one hundred years it has been the settled policy of this State, as reflected in various constitutional and statutory provisions, to treat sixteenth section lands as separate and distinct from all other State lands and to place them under the control of the school authorities.

Id. at 143,144.

State ex rel. Plaquemines Parish School Board v. Plaquemines Parish Government, 93-2339 (La.App. 4 Cir. 12/15/94), 652 So.2d 1, writ denied, 95-1049 (La.6/23/95), 656 So.2d 1015 provides an historical background:

In 1785, the Continental Congress set aside Sixteenth Section lands for the exclusive use of public education (1 Stat. 563). In 1789, Article IV Section 3 Clause 2 of the United States Constitution was adopted providing that “... Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ...” (emphasis added). On May 18, 1796, Congress passed the act creating a rectangular survey system (1 Stat. 464). On April 30,1803, France sold the Louisiana territory to the United States upon execution of the Treaty of Cession. The reservation of Sixteenth Section lands attached to the Louisiana territory at this point. On April 21, 1806, Congress authorized the President of the United States to sell lands within the Louisiana territory, subject to a reservation of Sixteenth Section lands for public education purposes, specifically stating that the Sixteenth Section “shall be reserved in each township for the support of the schools within the same” (2 Stat. 391). On March 3,1811, Congress again authorized the President of the United States to sell further lands within the Louisiana territory, again subject to a reservation of Sixteenth Section lands for public education purposes, specifically stating that the Sixteenth Section “shall be reserved in each township for the support of the schools within the same” (2 Stat. 662). The Louisiana territory was admitted to the United States by three Congressional Acts, to-wit: 2 Stat. 641 of February 20, 1811, 2 Stat. 701 of April 8, 1812, and 2 Stat. 708 of April 14,1812.

Id. at. 2-3.

Nowhere in any of these grants was the word “trust” or “trustee relationship” used. However, various states, including Louisiana, began using trust language in statutes regulating the use of Section 16 lands. Riedel v. Anderson 70 P.3d 223 (Wy.2003) discusses the evolution in the use of trust language in the various state constitutions and statutes including Louisiana.

LThe specific language of the grants varied somewhat among the early states’ enabling laws, but generally was “for the use of schools” with no mention of trusts, fiduciary obligations, or restrictions on the sale, lease, or other use of the lands. See, Sally K. Fairfax, et al., The School Trust Lands: A Fresh Look at Conventional Wisdom, 22 Envtl. L. 797, 810 (1992). Substantially the same pattern was used for land grants in the admission of Louisiana, Indiana, Mississippi, Illinois, Alabama, Missouri and Arkansas, See, Budge, supra, at 226. Courts have consistently ruled that Congress had not encumbered these early land grants with a common law trust, but had merely entered into a “solemn agreement” with the states that the lands would be used as intended. See, e.g., Branson Sch. Dist. Re-82 v. Romer, 161 F.3d 619, 633 (10th Cir.1998)(citing Alabama v. Schmidt, 232 U.S. 168, 173-74, 34 S.Ct. 301, 58 L.Ed. 555 (1914), and Cooper v. Roberts, 59 U.S. (18 How.) 173, 181-82, 15 L.Ed. 338 (1855)).
However, beginning with Michigan in 1837, a pattern evolved by which the states through their own constitution imposed restrictions on the use of the land or its sale proceeds....
With the admission of Colorado in 1876, Congress began to include in the states’ enabling acts some of the same restrictions on the use of the school lands that prior states had constitutionally imposed upon themselves.

Id. at 227 (footnote omitted).

The concept that Section 16 lands are held by Louisiana in trust was recognized in State ex rel. Plaquemines Parish School Board, 652 So.2d 1, where in the court stated:

[T]he existence of a school trust has long been established in both Louisiana and Federal jurisprudence and it has been consistently held that the school trust lands can be alienated only where it is of benefit to school in some manner such as payment of the sale or lease price to the school fund or school board.

Id. at 4.

In so holding, the Plaquemines court cited the United States Supreme Court case of Andrus v. Utah, 446 U.S. 500, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980) in which the Court stated:

Congress also imposed upon the States a binding perpetual obligation to use the granted lands for the support of public education. All revenues from the sale or lease of the school grants was impressed with a trust in favor of the public schools. No State could divert school lands to other public uses without compensating the trust for the full market value of the interest taken.

| Ud. at 1814-15(emphasis deleted).

Regardless of whether the Enabling Act intended to create a common law trust over Section 16 lands in Louisiana, the concept of a trust has been written into Louisiana statutes and recognized by the courts. State ex rel. Plaquemines Parish Sch. Bd., 652 So.2d 1; City of Baker Sch. Bd. v. East Baton Rouge Parish Sch. Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291.

La.R.S. 41:981(A) provides in relevant part:

[Lands] granted, appropriated, or reserved by Congress in trust to the state of Louisiana, for school purposes.

La.R.S. 41:642(A) provides in relevant part:

The trustee title of the State of Louisiana to those 16th Section or indemnity lands granted by Congress to the State of Louisiana as trustee for the benefit of school children....

The management of these trust lands is vested by the State in the local school boards. See La.R.S. 17:100.6 and La.R.S. 41:638. In City of Baker School Board, 754 So.2d at 293, the court stated:

Public education is a function of the sovereign. La. Const, art. 8, § 1; see also Terrebonne Parish School Board v. St. Mary Parish School Board, 131 So.2d 266, 270 (La.App. 1 Cir.1961). School boards perform the function of the sovereign implementing the constitutional mandate to provide public schools and to administer public education. Shaw v. Caddo Parish School Board, 347 So.2d 39,41 (La.App. 2 Cir.) writ denied, 350 So.2d 676 (1977). School boards are agencies of the state. Rousselle v. Plaquemines Parish School Board, 93-1916, p. 6 (La.2/28/94), 633 So.2d 1235, 1241. The task of educating the children of Louisiana rests with the individual school boards throughout the state. See Drouin v. Board of Directors of Public Schools of Parish of Avoyelles, 136 La. 393, 398, 67 So. 191, 192 (1915). The ownership, management and control of property within a school board’s district is vested in the district, in the manner of a statutory trustee, for the accomplishment of its duty. See Orleans Parish School Board v. City of New Orleans, 56 So.2d 280, 284 (La.App.Orleans 1952). The general rule of ownership of property of school districts was stated in 68 Am.Jur.2d, Schools § 74 (1993), as follows:
The ownership of school property is generally in the local district or school board as trustee for the public at | ¡¡large. School property is thus considered public property and is not to be regarded as the private property of the school district by which it is held or in which it is located [footnotes omitted].

In State v. Humble Oil & Refining Co., 195 La. 457, 197 So. 140 (La.1940), the court stated that “the right of a school board to control and administer, for the benefit of the public schools, the sixteenth section lands situated in its parish was never questioned.” Id. at 144.

We conclude Section 16 lands are held in trust by the State and managed by school boards “in the manner of a statutory trustee” for the benefit of public education. The School Board “shall have the right to administer and use the property for public school purposes,” subject to statutory regulations regarding its sale or lease. La. R.S. 41:638; La.R.S. 41:631 et seq.

The management of Section 16 lands is but one aspect of the power of the school board. As a creature of the legislature, the school board is entrusted with the administration of the public schools, including the right to budget funds, promulgate rules for the hiring of personnel, establish the curriculum and formulate policies affecting every aspect of the school system. La.R.S. 17:51; La.R.S. 17:81 et seq. This power necessarily includes management of all school property, including Section 16 lands. It follows, then, that school board decisions relating to Section 16 lands are to be treated as any other school board decision. Absent “a clear showing of abuse of the authority granted to the board under the statutory law” courts should not interfere in discretionary management decisions of the board. Earnest v. Caldwell Parish Sch. Bd., 368 So.2d 801, 803 (La.App. 2 Cir.1979). “Any other rule would charge the court with the difficult task of operating the public school system .... [and] would result in confusion inimical to the welfare and efficiency of our public school system.” Estay v. Lafourche Parish Sch. Bd., 230 So.2d 443, 449 (La.App. 1 Cir.1969). In Louisiana Ass’n of Educators v. Iberia Parish School Board, 476 So.2d 1086, 1092 (La.App. 3 Cir.1985), this court held the “budgeting of funds is a matter within the sound discretion of the School Board and absent a clear abuse of its legal authority and discretion, the Court will not interfere with decisions of the School Board.”

Mr. Ebey contends the decisions of the School Board with regard to the management of Section 16 lands should be treated differently from other decisions of the School Board. He has not alleged a statutory violation by the School Board, only a breach of the trust obligation. However, even measuring the School Board policy against the general principles of the trust code, we do not find an abuse of the School Board’s discretionary authority. Under the general principles of trust, a trustee is required to “administer the trust as a prudent person would administer it. In satisfying this standard, the trustee shall exercise reasonable care and skill, considering the purposes, terms, distribution requirements, and other circumstances of the trust.” La.R.S. 9:2090(A). With regard to trust property, La.R.S. 9:2127 provides in relevant part:

[A] trustee shall invest and manage trust property as a prudent investor. In satisfying this standard, the trustee shall consider the purposes, terms, distribution requirements, and other circumstances of the trust. A trustee’s investment and management decisions are to be evaluated in the context of the trust property as a whole and as part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
La.R.S. 9:2115 provides in relevant part:
If discretion is conferred upon a trustee with respect to the exercise of a power, its exercise shall not be subject to control by the court, except to prevent an abuse of discretion by a trustee.

Mr. Ebey takes a very restricted view of the choices available to the School Board as a prudent administrator of school lands. Mr. Ebey contends by refusing to |inlease the property for the harvesting of the timber, the School Board is failing to “maximize income and obtain full market value from the resources on the school lands.” The concept that “maximizing income” is the only valid goal in school land management was introduced in Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128 (1919) and expanded in Lassen v. Arizona, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967). These two cases, cited by the Plaintiff, interpreted the provisions of the New Mexico-Arizona Enabling Act.

In Ervien, the issue was whether New Mexico could use funds obtained from school lands to advertise New Mexico’s amenities for the purpose of enticing new residents. The United States Supreme Court looked to the New Mexico-Arizona Enabling Act and held funds obtained from school lands must be used for educational purposes. To divert the funds to general public use, as New Mexico was proposing, was a breach of trust. In 1967, the United States Supreme Court, in Lassen, held the Arizona State Highway Department must compensate the school fund at the full appraised value for use of the land for the construction of a highway. Prior to this decision, the Arizona Highway Department was granted rights-of-way over school trust lands without compensating the school fund for use of the land. The Lassen court relied on Ervien and the New Mexico-Arizona Enabling Act and concluded “[a]ll these restrictions in combination indicate Congress’ concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust.” Lassen, 87 S.Ct. at 589.

Although the New Mexico-Arizona Enabling Act was more restrictive than that of the other states, after Lassen, “state court decisions universally precluded state land managers from managing for public purposes or for promotion of public policies Inother than those supporting public education.” Subsequent decisions, following Ervien and Lassen, focused on income maximization to the exclusion of all other concerns. However, in “1980, the California legislature abandoned dominant use philosophies by mandating multiple use for public school lands management, and expressly including conservation and rehabilitation of the lands as recognizable uses.”

In 1998, the United States Court of Appeals for the Tenth Circuit, in Branson School District Re-82 v. Romer, 161 F.3d 619 (10 Cir.1998) cert. denied, 526 U.S. 1068, 119 S.Ct. 1461, 143 L.Ed.2d 546 (1999), was called upon to test the constitutionality of a school land use amendment to Colorado’s Constitution against the provisions of Colorado’s Enabling Act. The Branson decision represents a more enlightened approach to school land management policies. In Branson, school districts and public school students sued to enjoin the implementation of an amendment to the school trust lands article of the Colorado Constitution. The court framed the issue as such: “[WJhether the voters of Colorado may alter the management principles guiding the state’s trusteeship of public lands without violating the terms of a century-old trust established by Congress when the state entered the Union.” Id. at 626. At the core of the dispute was Amendment 16, which deleted the requirement that the Colorado land board manage its holdings “in such a manner as will secure the maximum possible amount” for the public schools. This language was replaced with a directive requiring land managers to “produce reasonable and consistent income over time.” The change in language was significant |1{!and represented a departure from the rigidity of the “maximum income” standard. Additionally, Amendment 16 included the establishment of a “Stewardship Trust” over several hundred acres of school land. The Branson court explained:

The philosophical heart of Amendment 16 — and the provision that seems to have prompted the greatest opposition from the plaintiffs — is the initiative’s declaration of a principle of “sound stewardship” which should guide the new State Board of Land Commissioners in its management of the school lands. This provision declares:
that the economic productivity of all lands held in public trust is dependent on sound stewardship, including protecting and enhancing the beauty, natural values, open spaces and wildlife habitat thereof, for this and future generations. In recognition of these principles, the board shall be governed by the standards set forth in this section 10 in the discharge of its fiduciary obligations, in addition to other laws generally applicable to trustees.
Rather than reading this provision as changing the exclusive purpose of the school lands trust, as the plaintiffs argue, we believe that the “sound stewardship” principle merely announces a new management approach for the land trust. The additional requirement to consider beauty, nature, open space, and wildlife habitat as part of the whole panoply of land management considerations simply indicates a change in the state’s chosen mechanism for achieving its continuing obligation to manage the school lands for the support of the common schools. A trustee is expected to use his or her skill and expertise in managing a trust, and it is certainly fairly possible for a trustee to conclude that protecting and enhancing the aesthetic value of a property will increase its long term economic potential and productivity. The trust obligation, after all, is unlimited in time and a long-range vision of how best to preserve the value and productivity of the trust assets may very well include attention to preserving the beauty and natural values of the property.

Id. at 638.

Branson does not depart from the fundamental principle that funds generated from school lands must be used for the support of public education; rather, Bran-son recognized “beauty, nature, open space, and wildlife habitat” are legitimate goals for determining school land use and in the long term may be “how best to preserve the value and productivity of the trust assets.” Id.

h ¡¡Likewise, we do not find the School Board may depart from its fundamental responsibility to use funds generated from the sale or lease of school lands for public education. However, we do find the Louisiana Enabling Act and state statutes governing school lands broad enough to allow the State and the School Board a myriad of management choices, which often involve balancing several competing interests, to determine what best suits the particular tract of school land.

It is clear Mr. Ebey is aligned with the timber industry and would have the School Board consider only its interests to the exclusion of all other concerns. Mr. Ebey relies on the report of Joel Sanders, a forestry consultant. Mr. Sanders inspected the property for the purpose of assessing standing timber values on the acreage. He estimated the aggregate worth of the standing timber at two million dollars. However, this income could only be realized by a one-time clear-cut of the timber. Mr. Sanders’ report does not advocate this action by the School Board. Instead, Mr. Sanders’ report advocates select cutting, timber management and, more importantly, addresses the problems associated with harvesting the timber on each tract. With |uregard to the tract referred to as Sabine Lake, Mr. Sanders’ writes:

The best potential for this tract is recreational lease. On a long term basis this tract probably would not generate very much income from timber production. I think the type of soil has a lot to do with the low productivity of this tract.... My recommendation is the timber could be sold if the school board needed to generate some money. This would really be the only reason for doing this because it is small and there is really nothing on this tract that is a favorable species. If the Wildlife wanted to purchase or exchange this property I would let them come up with a more favorable piece of land for an exchange. The reason for this is.because it is not a high producer of timber it has more of a recreational use and the access is through a private landowner and it is probably three or four miles of private gravel road for the access.

With regard to the Gin Lake tract, Mr. Sanders recommends “to let it grow for another ten years. At this time the portion left on the south end should be of a size that select cut would be beneficial.”

Mr. Sanders assessed the standing timber value on the Bayou Cocodrie tract at $250,000. However, he notes the following:

This tract is cut up in several portions by bayous. It fronts on Little River and has a bayou extending south down into the property and winding through the property.... There are a few factors associated with this tract. The main one being access. The way I went into the tract was by a small wooden bridge. I do not know if it would support a loaded log truck. With the bayous located on this property, they divide it into several portions. Access to the east would need to be different from access to the west and I think there is almost an island located in the center of the north end of the property. All of these access problems would need to be resolved before any of the timber could be sold....

Mr. Sanders inspected the Bayou Natch-itoches tract, with standing timber valued at $250,000, and found a significant amount of bitter pecan trees, which is “one of the lowest valued species.” The bitter pecan trees would have to be removed to allow more valuable trees to grow and mature. He writes:

My recommendation would be to remove all of the bitter pecan to release the more favorable reproduction underneath. This would remove a lot of the timber value and volume. The cutting rotation between the next timber cutting would be longer on this tract than with other tracts. 11fiThe reason being the remaining trees would have to grow longer before they are merchantable.

It is apparent from Mr. Sanders’ report the School Board has many legitimate concerns regarding the harvesting of the timber, including the effect of harvesting on drainage, the cost of harvesting timber in the low lying areas, the cost of cutting and removing undesirable trees, the cost of stump removal, the effect of large scale tree removal on erosion, the destruction of the aesthetic value and recreational use of the land, wildlife preservation, the cost of building access roads and bridges on the property, and future use of the land. The School Board has requested, on numerous occasions, inspection and recommendation reports on Section 16 lands from the Louisiana Department of Agriculture and Forestry in order to formulate a land management plan. Mr. Ebey’s petition and Mr. Sanders’ report do not support a finding the School Board’s policy of cautious and conservative land management is unreasonable or arbitrary. In fact, just the opposite is shown. The difficulties facing the School Board regarding when and how to harvest the timber efficiently and profitably become very apparent from a reading of Mr. Sanders’ report. The School Board must be given the opportunity to make those decisions without judicial interference. We do not find the Enabling Act, Louisiana Revised Statutes or the Louisiana Trust Code mandate an obligation on the part of the State of the School Board to lease school lands to the timber industry when such a course, in the judgment of the School Board, as a prudent administrator, is not in the best interest of the school system.

CONCLUSION

We conclude land management decisions of the School Board with regard to [^Section 16 lands are like any other discretionary school board decision. Courts will not interfere absent a specific violation of a state statute or a clear abuse of discretionary authority.

As a prudent administrator, the School Board is charged with implementing a plan for the trust lands which may legitimately include a concern for clean air and water, species preservation, family recreational activities, as well as providing consistent income for the support of public education. We recognize Avoyelles Parish is a rural area with hunting and fishing a mainstay of family activities and social gatherings. It is the primary obligation of the School Board, within the dictates of state and federal statutes, to use the land to provide income for schools and preserve the trust asset for future generations of children. The conclusory allegations of Mr. Ebey’s petition do not state facts to support a breach of that obligation. Therefore, we do not find a cause of action against the State of Louisiana or the Avoyelles Parish School Board under the Enabling Act, Louisiana Revised Statutes or the Louisiana Trust Code. Louisiana Civil Code articles governing a stipulation pour autri are not applicable to this dispute.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Mr. Errol Ebey.

AFFIRMED.

      .Sean E. O'Day, School Trust Lands: The Land Managers’s Dilemma Between Educational Funding and Environmental Conservation, A Hobson’s Choice?, 8 N.Y.U Environmental Law Journal, 163, 191 (1999).

      . Id. alp. 188.

      . Id. atp. 191, fn. 170.

      . Although Errol Ebey and his children are named plaintiffs, standing in the shadows are private hunting clubs and timber companies who would ultimately benefit financially from a change in School Board policy. See, Ebey Exhibit # 3, a letter dated August 26, 2002, from the Paradise Land and Lake, LLC to the Avoyelles Parish School Board which provides: "We understand the School Board is considering leasing Section 16 lands.... I have been authorized by our Board of Directors to offer $20.00 per acre, and we are prepared to take possession immediately.... We also understand the School Board is considering implementing timber management on Section 16 lands, which may include a select timber cut.” The trial judge noted a blind copy of this letter was sent to Mr. Ebey's attorney two months prior to suit being filed.

      . A letter dated July 29, 2002 from the Avo-yelles Wildlife Federation to the Avoyelles Parish School Board reflects the competing interests involved in this land management case: "The Avoyelles Wildlife Federation officers, Board of Directors and many of the sportsmen who use these lands, would agree to support select cutting of the School Board timberlands, providing that these are select cuts, while keeping the best interest of our environmental concerns, wildlife, long term timber management, and that these lands would not be put out for long term leases to private individuals for profit.... We feel there is a happy medium that can be reached with all concerned, that would benefit all.”

      .Minutes of the June 17, 2002 meeting of the School Board reflects the following: "Board member John Lemoine referred to a recent article which appeared in The Town Talk concerning cutting of timber on Board owned lands. Mr. Lemoine stated that in order for the Board to generate $2 million, it would be necessary to clear cut the land and as a result there would no longer be any large timber on the lands for another 75-100 years.”

      . The record indicates some of the tracts are currently designated as State Wildlife Management Areas.