author: EZELL, Judge.

text:
    STATE of Louisiana v. Travis BOURDA.
    No. KA 10-1553.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Rehearing Denied Sept. 7, 2011.
    Michael Harson, District Attorney, Aan P. Haney, Assistant District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for PlaintiffAppellant, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellee, Travis Bourda.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

| |Defendant, Travis Bourda, was convicted of possession of marijuana with intent to distribute on October 14, 2009. He was sentenced to serve eight years at hard labor. On October 14, 2009, the State filed a bill of information charging the Defendant as a habitual offender. On August 9, 2010, Defendant entered a plea of not guilty to being a habitual offender.

The bill of information charging the Defendant as a habitual offender enumerated five prior felonies and the underlying conviction. However, at the hearing on August 9, 2010, the State amended the bill to charge him as a third felony offender, with the predicate offenses stated to be carnal knowledge of a juvenile under docket number 98188447 and distribution of marijuana under docket number 97179300.

After completion of the hearing, the trial judge found that the State had proven the Defendant to be a third felony offender, vacated his original sentence, and sentenced him to serve fourteen years at hard labor. From this ruling, the State appeals, arguing that the sentence rendered by the trial court is illegally lenient.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are two errors patent.

First, the trial court imposed an illegally lenient sentence. This error is raised by the State as its sole assignment of error, and it will be discussed below.

Next, the record before this court does not indicate that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La. Code Crim.P. art. 980.8. Thus, the trial court is directed to inform the | ^Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR

Louisiana Revised Statutes 15:529.1 provided at the time of the offense in 2009:

A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In State v. Lindsey, 99-3302, pp. 4-9 (La.10/17/00), 770 So.2d 339, 342-46, (footnotes omitted)(alteration in original) the supreme court stated:

|sThe Legislature enacted the Habitual Offender Law pursuant to its sole authority under Article 3, § I of the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct. State v. Johnson, supra, at 675; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Taylor, 479 So.2d 339, 341 (La.1985). This Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. State v. Johnson, supra; State v. Dorthey, supra. However, courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution even though it falls within the statutory limits provided by the Legislature. State v. Johnson, supra at 676; State v. Sepulvado, 367 So.2d 762, 767 (La.1979).
In State v. Dorthey, we held that this power extends to the minimum sentences mandated by the Habitual Offender Law and that the trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment” or is nothing more than “the purposeful imposition of pain and suffering” and “is grossly out of proportion to the severity of the crime.” State v. Dorthey, supra at 1280-1281.
Thereafter, in a series of writ grants, we acted to curtail the district court’s use of Dorthey in cases in which it appeared that the courts were simply substituting their judgment of what constituted an appropriate penalty for that of the Legislature. See, e.g., State v. Handy, 96-2505 (La.1/5/97), 686 So.2d 36; State v. Bastian, 96-2453 (La.12/13/96), 683 So.2d 1220; State v. Randleston, 96-1646 (La.10/4/96), 681 So.2d 936; State v. Wilson, 96-1600 (La.10/4/96), 680 So.2d 1169; State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d 552; State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669; State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082; State v. Lombard, 95-2107 (La.11/27/95), 662 So.2d 1039.
This effort culminated in Johnson, where we set out guidelines for when and under what circumstances courts should exercise their discretion under Dorthey to declare excessive a minimum sentence mandated by the Habitual Offender Law. We held that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
|4[he] is exceptional, which in this context means 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.
Id. (Citing State v. Young, 94-1636 (La. App. 4 Cir. 10/26/95), 663 So.2d 525, 529 (Plotkin, J., concurring)).
In making this determination, we held that “while a defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.” Id. This is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses. Id.
In addition, we held that the trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism, and, we instructed that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Id. at 677.
Finally, we held that if a trial judge finds clear and convincing evidence which justifies a downward departure, he is not free to sentence the defendant to whatever sentence he feels is appropriate under the circumstances, but must instead sentence the defendant to the longest sentence which is not constitutionally excessive. Id.
In light of the above, we now must determine whether the life sentences imposed by the trial court in each of the consolidated cases were excessive.
Defendant Lindsey
Defendant Lindsey argues that his life sentence is unconstitutionally excessive because his prior convictions, i.e. attempted simple burglary, attempted burglary, and simple burglary, did not involve crimes of violence. However, as the Fourth Circuit recognized, his fourth conviction, for simple robbery, did involve a crime of violence under La. R.S. 14:2(13) and thus was a sufficient basis for the imposition of a life sentence under La. R.S. 15:529.1. Defendant Lindsey argues that while simple robbery under other circumstances would not be out of proportion with a life sentence, as applied to him, it is excessive because he engaged in the simple robbery as an impulse, in a moment of anger, over an employment problem. Further, he argues |sthat over five years had elapsed since his last conviction, no weapon was involved, and the victim received only minor injuries.
Defendant Lindsey argues that these factors are important based on the United States Supreme Court’s holding in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the Court considered a mandatory life term under South Dakota’s recidivist law, imposed upon defendant after he was found guilty of uttering a “no account” check for $100, his seventh felony conviction. The Court agreed with a lower federal court that the sentence was grossly disproportionate under the Eighth Amendment. Id., 463 U.S. at 283-284, 103 S.Ct. at 3006. The Court announced “as a matter of principle,” that a “criminal sentence must be proportionate to the crime for which the defendant has been convicted.” Id., 463 U.S. at 290-291, 103 S.Ct. at 3009-3010. While agreeing that “a State is justified in punishing a recidivist more severely than it punishes a first offender,” nevertheless, the Court explained that the defendant’s “status [ ] cannot be considered in the abstract,” noting that his prior convictions all were nonviolent, relatively minor and that they didn’t involve crimes against the person. Id., 463 U.S. at 296-297, 103 S.Ct. at 3013.
However, Lindsey’s prior criminal history does not put him on par with the offender in Solem, because his instant conviction for simple robbery was a crime of violence and because the victim suffered injuries to her person. Further, as the appellate opinion indicates, the trial court apparently found that Lindsey’s self-serving characterization of the events as an impulsive action of a disgruntled employee fail to distinguish him as that rare and atypical case for whom the Legislature’s enactment of R.S. 15:529.1(A)(l)(b)(ii) should not apply-
We agree with the lower courts that Lindsey’s sentence was not excessive. He has not carried his burden under Johnson. In fact, he is exactly the type of offender that the Habitual Offender Statute intends to punish so severely. He is sentenced to life imprisonment because he continues to commit felony after felony. The fact that his last felony was the only violent crime against a person is not an “unusual circumstance” that would support a downward departure. A person with three prior nonviolent felony convictions who then proceeds to commit a felony involving violence against a person has shown that his criminal conduct is becoming worse. The goals of the Habitual Offender Statute, to deter and punish recidivism, are satisfied by imposing a life sentence against such a person. Therefore, for all the above reasons, we affirm his conviction and sentence.
Defendant Webster
Defendant Webster had two prior convictions for simple burglary and his latest conviction was for purse snatching, defined as a “crime of violence” under La. R.S. 14:2(13). As such the trial court found him to be a third felony offender and sentenced him under La. R.S. 15:529.1(A)|ñl(b)(ii) to life imprisonment without benefit of probation or suspension of sentence. In imposing this sentence, the trial court stated:
The [cjourt further finds that the Dorthey rule, D-O-R-T-H-E-Y, would not be triggered in this case as the [cjourt is not aware of any circumstances that would cause the [cjourt to deviate from the mandatory sentence.
The appellate majority disagreed with the trial court’s determination under Dorthey, concluding:
The life sentence imposed in the instant case is clearly excessive. Although purse snatching, La.Rev.Stat. 14:55.1, is regarded as a violent felony, thus triggering the “three strikes” provision of La.Rev.Stat. 15:529.1(A)(l)(b)(ii), it appears the least heinous of those enumerated in La.Rev.Stat. 14:2(13), which defines “violent felony” for the purpose of the multiple offender statute. Furthermore, the defendant committed the underlying crime in the least reprehensible manner. He was unarmed, the criminal act was limited to reaching out to snatch the purse, the victim was not harmed, and her property was recovered immediately following the offense. Finally, the defendant’s prior convictions for simple burglary were nearly ten years old when he committed the instant offense.
In view of the circumstances, we find the life sentence imposed by the trial court to be grossly out of proportion to the severity of the crime.
746 So.2d at 801-02.
However, the court of appeal failed to analyze this case under the test we enunciated in Johnson, and, in fact, did not even mention Johnson. Because Johnson contains the governing law for determining whether or not the mandatory penalty of life imprisonment dictated by the Habitual Offender Statute is excessive, we remand this case to the court of appeal for reconsideration in light of Johnson.
CONCLUSION
A sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Statute only under rare circumstances, as set forth in State v. Johnson. Defendant Lindsey’s arguments, that this particular crime of violence against a person was really just an impulsive, employment-related dispute, that no weapon was involved, and that the victim suffered only minor injuries, were not accepted by the trial court as sufficient reasons for a downward departure from the mandatory minimum sentence and 17we agree. The fact that he has only committed one “crime of violence,” his latest crime, does not justify a downward departure. In sum, Lindsey failed to carry his burden under Johnson. Finally, because the court of appeal in State v. Webster [98-0807 (La.App. 4 Cir. 11/10/99), 746 So.2d 799] failed to analyze the case under the law as set forth in Johnson, that case must be remanded for reconsideration.

This court, in State v. Boutte, 10-928, pp. 3-4 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, 629, stated (alteration in original):

The maximum incarceration period for a conviction for monetary instrument abuse is ten years at hard labor. La. R.S. 14:72.2. Because the maximum sentence is a term less than the defendant’s natural life, the penalty for his fourth offense adjudication is “a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years; and not more than his natural life.” La.R.S. 15:529.1(A)(l)(c). Thus, the defendant’s twenty-year hard labor sentence is the statutory minimum for his adjudication. Nevertheless, the defendant asserts in this assignment of error that the sentence is excessive and that the trial court erred in not deviating from the statutory minimum and imposing a lesser sentence that would not be constitutionally excessive.
Although the minimum sentences imposed upon multiple offenders pursuant to the Habitual Offender Law are presumed constitutional, a court has the power to declare such a sentence excessive under Article I, Section 20 of the Louisiana Constitution. State v. Lindsey, 99-3302 (La. 10/ 17/00), 770 So.2d 339. “A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.” State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676. To rebut the presumption of constitutionality, the defendant must show that he is “exceptional, which in this context means that because of unusual circumstances [he] 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.” Id. at 676.
As pointed out by the state, the defendant presented no evidence to show that his particular case was so exceptional that it deserved a downward departure from the mandatory minimum sentence as set forth in La.R.S. 15:529.1. Therefore, we find no merit in this assignment of error.

At Defendant’s habitual offender hearing, the only witness to testify was Gary Westscot, the agent who supervised the Defendant from January 2008 until the satisfactory termination of his parole on October 11, 2008. Mr. Westscot testified asjjto the two underlying convictions and identified the records pertinent to the charges. The underlying convictions were for carnal knowledge of a juvenile and distribution of marijuana.

The Defendant did not cross-examine the witness or put on any evidence. At the conclusion of the hearing, the trial judge ruled:

THE COURT: All right. I find that the State has carried its burden and I will make the — I will hereby vacate the original sentence in Docket Number— what was the original docket number in the possession with intent to distribute?
MR. HANEY: Judge, that’s Docket Number 123852.
THE COURT: Docket Number 123852. That sentence, if I recall correctly, was eight years at hard labor. I hereby vacate that sentence and I sentence Mr. Bourda to serve fourteen years, fourteen years at hard labor.
Mr. Bourda, look at me, sir, please just one second. Now, sir, the State of Louisiana is requesting significant[sic] more time than I have sentenced you today. But it is within my discretion, in my view, to do that.
The State of Louisiana’s position is that because of your prior convictions, you may be subject to a life sentence. I am going to note for the record on your behalf that I believe a life sentence under the circumstances in these cases, a drug case, a carnal knowledge case, and another drug case would be an unconstitutional sentence regardless of whether the statute is interpreted in that manner with respect to these particular sentences. I believe that fourteen years is more than enough considering the underlying charge was possession with intent to distribute marijuana, and that the amount of marijuana involved was not significant.
Now, sir, at this particular time, now, I am relieving Mr. Martel of any additional representation of you. I’m going to allow him to withdraw as counsel.

In his ruling, the trial judge made no reference to Dorthey, 623 So.2d 1276, or to the analysis mandated by State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, and his reasons for ruling ignore the mandated analysis. More significantly, the Defendant presented no evidence which would tend to reflect that he is exceptional |aso as to rebut the presumption that the mandatory minimum sentence is constitutional, which is necessary to justify a downward departure from the sentence mandated by La.R.S. 15:529.1(A)(l)(b)(ii).

This court could opt to reverse and remand this case to the trial court for reconsideration of the court’s ruling, with instructions to utilize the analytical approach mandated by Johnson, 709 So.2d 672, however we find that approach would be superfluous. As the record is devoid of any evidence which would support a finding that the Defendant is “exceptional” so as to justify a departure from the mandated sentence, there is nothing for the trial court to utilize in performing a Johnson analysis.

CONCLUSION

The trial court is directed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice.

Accordingly, the sentence imposed on the Defendant is vacated, and a sentence of life imprisonment is imposed by this court in accordance with La.R.S. 15:529.1(A)(l)(b)(ii). Further, the case is remanded to the trial court with instructions to make a minute entry imposing a sentence of life imprisonment in accordance with the ruling of this court.

SENTENCE VACATED; SENTENCE IMPOSED; REMANDED.


source: Caselaw Access Project

author: GENOVESE, Judge. COOKS, J.,

license: Public Domain

text:
    Carolyn Plummer SHERIDAN v. Tommy Gordon CASSEL.
    No. 11-162.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Byron A. Richie, Paul D. Oberle, Jr., Richie, Richie & Oberle, Shreveport, LA, for Defendant/Appellant, Tommy Gordon Cassel.
    C. Sherburne Sentell, Jr., Sentell Law Firm, L.L.C., Minden, LA, for Plaintiff/Appellee, Carolyn Plummer Sheridan.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendant, Tommy Gordon Cassel, appeals a grant of summary judgment in favor of Plaintiff, Carolyn Plummer Sheridan, decreeing Ms. Sheridan to be the owner of all oil, gas, and other minerals under a certain 3.27-acre tract in Sabine Parish, Louisiana. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On August 13, 2010, Ms. Sheridan filed a petitory action against Mr. Cassel. Ms. Sheridan prayed for judgment declaring her to be “the true and lawful owner of all mineral rights under 3.27 acres lying in the Northwest corner of the East Half of the Southwest Quarter of Section 35, Township 9 North, Range 14 West, Sabine Parish, Louisiana.” According to Ms. Sheridan’s petition, the mineral rights to the 3.27 acres were sold by Mr. Cassel when he conveyed eighty acres to his sister, Gertrude Ray, on April 5, 1969. Ms. Sheridan alleged that Mr. Cassel “failed to reserve any mineral rights”; therefore, “all minerals under the entire [eighty-jacre tract passed to Gerturde Ray.” According to Ms. Sheridan, after Gertrude Ray’s death, Mr. Cassel sold all of his interest in Gertrude Ray’s estate to her and that she owns all oil, gas, and other minerals under the 3.27-acre tract.

Mr. Cassel answered Ms. Sheridan’s petitory action and alleged that “[t]he 3.27 acres of mineral rights at issue were specifically reserved by him when the surface was taken by the Sabine River Authority in June of 1966.” He further contended that:

The judgment of possession in the succession of Gertrude Ray as well as a quitclaim deed executed concurrent with the “conveyance and assignment of an interest of estate” clearly and absolutely showed the reservation and exclusion of the 3.27 acres of mineral rights under the Toledo Bend Reservoir. These interests were excluded because they were not owned by Gertrude Ray but remained in the ownership of [him] pursuant to the previously executed deed.

[2On September 27, 2010, Mr. Cassel filed a Motion for Summary Judgment on the issue of ownership along with a Statement of Undisputed Facts. In his motion, Mr. Cassel asserted that he “retained a permanent, non-prescriptable mineral servitude with respect to the 3.27 acres”; therefore, “there is no genuine issue of material fact with respect to ownership of this mineral servitude as he has never sold or conveyed said mineral servitude to [Ms. Sheridan] or any predecessor and [sic] title of [Ms. Sheridan].” Attached to his Motion for Summary Judgment were the following exhibits: Exhibit 1 — a Warranty Deed, dated December 27, 1965, wherein Mr. Cassel acquired eighty acres from Avis Cassel Thomas; Exhibit 2 — a Cash Sale, dated June 22, 1966, wherein Mr. Cassel transferred the 3.27-acre tract, excluding minerals, to the Sabine River Authority; Exhibit 3 — an Affidavit of Possession, dated June 22, 1966, wherein Mr. Cassel confirmed his possession of the 3.27-acre tract which he conveyed to the Sabine River Authority; Exhibit 4 — a Cash Sale, dated April 5,' 1969, wherein Mr. Cassel transferred eighty acres to Gertrude Ray; Exhibit 5 — a Quitclaim Deed, dated March 18, 1980, wherein Mr. Cassel conveyed to Ms. Sheridan all of his interest in certain real estate belonging to the estate of Gertrude Ray; Exhibit 6 — a Judgment of Possession, dated April 9, 1980; and Exhibit 7 — a Conveyance and Assignment of Interest in [Gertrude Ray’s] Estate dated March 18,1980.

Ms. Sheridan also filed a Motion for Summary Judgment on the issue of ownership. In her motion, Ms. Sheridan reiterated her contention that when Mr. Cassel sold the eighty-acre tract to Gertrude Ray on April 5, 1969, Mr. Cassel did not reserve the mineral rights thereto, and, when she bought Mr. Cassel’s interest in Gertrude Ray’s estate in 1980, she acquired all mineral rights to the 8.27-acre tract. laWith the exception of the Affidavit of Possession dated June 22, 1966, Ms. Sheridan attached to her motion the same exhibits offered by Mr. Cassel and, in addition thereto, Exhibit F — a ninety-nine year lease, dated June 24, 1966, wherein Mr. Cassel leased the surface of 1.84 acres of the 3.27-acre tract from the Sabine River Authority.

On December 8, 2010, the trial court denied Mr. Cassel’s motion and issued an order granting Ms. Sheridan’s Motion for Summary Judgment, wherein it held:

Defendant, in the April 5, 1969 cash sale to Gertrude Cassel Ray, conveyed “all rights” to the subject 80 acres without reservation of the mineral rights he possessed from the sale of the subject 3.27 acres to the Sabine River Authority in 1966. Although Defendant possessed no surface property rights to the 3.27 acres, he did possess its mineral rights. Confined to the four-corners of the cash sale contract, Defendant did convey “all rights” to the property as described that includes said 3.27 acres. Thus, Defendant transferred 76.73 surface acres and 80 mineral acres to [Gertrude Ray] that remained with her until her death.
Mr. Cassel appeals.

ASSIGNMENT OF ERROR

On appeal, Mr. Cassel asserts the following assignment of error:

[T]he trial court erred as a matter of law in denying [his] Motion for Summary Judgment [and] granting the Motion for Summary Judgment of [Ms. Sheridan], finding that [he] conveyed a mineral servitude where this incorporeal immovable was not described in the deed, and [he] did not own the surface at the time the deed was executed.

STANDARD OF REVIEW

The Louisiana Supreme Court has set forth the governing jurisprudence relative to a motion for summary judgment and our appellate standard of review as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A Ins. Co., [06— 363 (La.11/29/06), 950 So.2d 544, see La. Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination |4of whether summary judgment is appropriate; i e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-0337 (La.10/19/04) ], 885 So.2d 540[ ]; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966 provides:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B. The motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1318 within the time limits provided in District Court Rule 9.9. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 1.¡¡point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
D. The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.
E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case; however, a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.
F. When the court determines, in accordance with the provisions of this Article, that a party or nonparty is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or nonparty may not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005.

DISCUSSION

On appeal, Mr. Cassel argues in brief:

[Ms. SheridanJ’s position, in fact this entire lawsuit, is based upon a red herring. Essentially, [Ms. Sheridan] contends that when [he] made a conveyance in 1969 to [Gertrude] Ray of “the East half of the Southwest Quarter ... of Section 35, Township 9 North, Range 14 West, containing 80 acres, more or less,” he conveyed not only the 77 acres that he owned but also a mineral servitude over 3.27 acres of surface interest that he did not own. The red herring relied upon exclusively by [Ms. Sheridan] is that since [he] did not reserve minerals in the 1969 deed, he must have conveyed the mineral rights to the 3.27 acres of surface interest that he did not own.

According to Mr. Cassel, “a reservation of mineral rights is essential when one is transferring surface ownership, but when no surface ownership is transferred, then a | (^reservation of minerals as to the 3.27 acres would be both unnecessary and ... bizarre.”

Ms. Sheridan counters, arguing that when Mr. Cassel purchased the eighty acres from Avis Cassel Thomas on December 27, 1965, “[t]he deed had no mineral reservation. Thereforef,] all minerals under the [eighty-]acre tract were bought by Tommy Cassel.” However, to benefit his position, Mr. Cassel argues that a reservation of the mineral rights within the language of a conveyance was not necessary when he sold the eighty acres to Gertrude Ray in 1969. We disagree.

“Ownership of immovable property (which includes mineral rights) in dispute must be determined from the public records. A conveyance of land carries with it all incidents of ownership, including mineral rights, except such rights as may be expressly reserved.” Texaco, Inc. v. Newton & Rosa Smith Charitable Trust, 471 So.2d 877, 882 (La.App. 2 Cir.1985), writ denied, 475 So.2d 1104 (La.1985) (citing Roemer v. Caplis, 369 So.2d 1186 (La. App. 2 Cir.), unit denied, 371 So.2d 620 (La.1979)).

We find that the trial court correctly granted summary judgment in favor of Ms. Sheridan, finding that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. As correctly stated by the trial court, when Mr. Cassel sold “all rights” to eighty acres to Gertrude Ray in 1969, the oil, gas, and other minerals under the 3.27-acre tract were also conveyed. Therefore, when Mr. Cassel sold all of his “right, title, claim and interest, real and personal, in and to the Estate of Gertrude C. Ray ... including ... all movables and immovables in the State of Louisiana,” to Ms. Sheridan in 1980, the oil, gas, and other minerals under the 3.27-acre tract were included therein and likewise conveyed.

IvDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against Defendant/Appellant, Tommy Gordon Cas-sel.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

| Tommy Gordon Cassel (Cassel) sold 80 acres more or less to his sister, Gertrude Cassel Ray (Ray), in 1969 without a reservation of mineral rights. Prior to that sale, the Sabine River Authority acquired 8.27 acres of that 80 acre tract from Cassel in 1966 with Cassel reserving the mineral rights to himself. After Ray’s death Cas-sel sold all of his interest in Ray’s estate to Carolyn Plummer Sheridan (Sheridan) and recited in the deed he was conveying to Sheridan all of his “right, title, claim and interest, real and personal, in and to the Estate of Gertrude C. Ray ... including ... all movables and immovables in the State of Louisiana.” Sheridan filed a peti-tory action in 2010 claiming ownership of the mineral rights in the 3.27 acre tract by virtue of the cash deed which conveyed 80 acres, more or less, to Ray because, she asserts, that deed did not contain a reservation of mineral rights.

The majority affirms the trial court’s grant of summary judgment decreeing Sheridan the owner of the mineral rights on the 3.27 acre tract and denying Cassel’s motion for summary judgment. For the reasons stated below I respectfully dissent.

As the majority states, we review motions for summary judgment de novo. I believe the evidence submitted in support of Cassel’s motion for summary judgment demonstrates Cassel is the owner of the mineral rights on the 3.27 acre tract as a matter of law and summary judgment should have been granted in his favor.

|2By cash sale dated June 22, 1966, Cas-sel sold to the Sabine River Authority a 3.27 acre tract in the “east)é of SE1/4, Section 35, T 9 N, R 14 W, Sabine Parish, Louisiana.” This 3.27 acre tract is particularly described by meets and bounds in the cash sale to Sabine carving it out of the original 80 acre tract. Cassel expressly reserved and excepted from that sale and “in perpetuity, all of the oil, gas and other minerals in, on and under said lands ...” This conveyance, with a reservation of mineral rights in favor of Cassel, created a new personal property right, a servitude, belonging to Cassel individually. Sabine became the naked owner of all mineral rights under this 3.27 acre tract subject to the servitude in favor of Cassel. Cassel’s interest in the minerals under this particular tract changed from full ownership to merely a servitude giving him the right to explore for and reduce to his possession minerals found under Sabine’s tract. On the other hand, Cassel’s full ownership interest in the minerals under the remaining 77 acre tract did not change.

Three years later, in a cash sale dated April 5, 1969, Cassel conveyed the following to Gertrude Ray:

Tommy Gordon Cassel, husband of Mary Vergilie Cobb, who declared that he does by theses presents, Grant, Bargain, Sell, and Convey and Deliver with full guarantee of title, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed unto Gertrude Cassel Ray, a widow, the following described property, situated in the Parish of Sabine, Louisiana, to wit: The East half of the Southwest Quarter (El/2 of SE1/4) of Section 35, Township 9 North, Range 14 West, containing 80 acres, more or less, together with all buildings and improvements thereon. To have and to hold said described property unto purchaser her heirs and assigns forever. This sale is made for the consideration of the sum of ($10.00) Ten & no/100 Dollars and other good and valuable considerations, cash in hand paid, the receipt of which is hereby acknowledged.”

In a Quitclaim Deed dated March 18, 1980, Cassel conveyed and delivered to Sheridan “all of his interest including the life estate and/or usufruct in and to” certain described properties which included Tract # 3 described as “The E/2 of the |sSE/4 of Section 35, Township 9 North, Range 14 West, less a 3.27 acre tract in the northwest corner, Sabine Parish, Louisiana, containing 77.0 acres, more or less.” On the same date, in a document entitled “Conveyance and Assignment of Interest in Estate”, Cassel conveyed to Sheridan:

[A]ll of my right, title, claim and interest, real and personal, in and to the Estate of Gertrude C. Ray, deceased, including, but not limited to all real property and all personal property of said estate in the State of Mississippi, and all movables and immovables in the State of Louisiana, including the life estate and/or usufruct on the above properties, and all rents, profits and income heretofore accruing thereon, and all other properties and assets of said estate, wheresoever located, and of whatsoever kind and nature, and all rights and claims of said estate of every kind and character.”

Subsequently, a Judgment of Possession in the estate of Ray was signed on April 9, 1980 which recognized Cassel as owing an undivided one-half interest of a usufruct over the 77 acre tract and recognizing Sheridan as the naked owner of all of the property described therein as “The E/2 of the SE/4 of Section 35, Township 9 North, Range 14 West, less a 3.27 acre tract in the northwest corner, Sabine Parish, Louisiana, containing 77.0 acres, more or less.”

Examining these documents reveals the public record clearly shows a 3.27 acre tract, identified by a meets and bounds description, was sold by Cassel to Sabine prior to his sale of the remaining approximately 77 acres to Ray. In the sale to Sabine, Cassel reserved the mineral rights over that specific tract to himself creating a new mineral servitude in his favor. Louisiana Civil Code Article 727 provides “A predial servitude may be established on a certain part of an estate, if that part is sufficiently described,” and Article 698 of the Louisiana Civil Code provides “Predial servitudes are established on, or for the benefit of, distinct corporeal immovables.” In Cassel’s sale to Sabine, the 3.27 acre tract is particularly described by meets and bounds and it is over this particularly described tract that Cassel establishes a new servitude of |4mineral rights. The Mineral Code, at La.R.S. 31:21 provides “A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” Our courts have held that a sale or reservation of minerals creates a real right in the nature of a servitude. Steele v. Denning, 445 So.2d 94 (La.App. 2 Cir.1984), writ granted 448 So.2d 109, affirmed 456 So.2d 992. The Louisiana Supreme Court has held that servitudes, such as the right to mine minerals, when extending over separate tracts of land, constitute distinct servitudes and therefore held the exercise of the right over one tract will not preserve the right over the other distinct tract. Lee v. Giauque, 154 La. 491, 97 So. 669 (1923). And in Ohio Oil v. Ferguson, 213 La. 183, 34 So.2d 746 (1946) the Louisiana Supreme Court stated that Lee v. Giauque, 154 La. 491, 97 So. 669, is “authority for the proposition that where the mineral rights are reserved on two or more separate tracts of land the effect is to establish as many servitudes as there are tracts of land”.

The sale to Ray did not and could not include the 3.27 acre tract which was carved out of the original 80 acre tract nor did that sale include the separate and distinct mineral servitude in favor of Cassel over that 3.27 acre tract created by his sale to Sabine. Thus, the estate of Ray did not include the 3.27 acre tract nor the mineral servitude in favor of Cassel over that specific tract. Ray’s estate owned approximately 77 acres and the mineral rights appertaining to those acres only.

Therefore, as a matter of law, Cassel created a new and distinct mineral servitude over a particularly described tract of land which he never conveyed to Ray’s estate, nor to anyone else, which still belongs to him. I would reverse the judgment of the trial court and grant summary judgment in favor of Cassel.

      . Although applying the former version of La. Code Civ.P. art. 966, the applicable standard of review remains the same. See 2010 La. Acts No. 690, § 1.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Mareio THOMAS.
    No. 2010-KA-0651.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Samantha Guard, Rule XX, Student Practitioner, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Appellant, Mareio Thomas.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Mareio Thomas, appeals his conviction, arguing that the trial court erred in denying his motion to suppress. After review of the record in light of the applicable law and arguments of the parties, the defendant’s conviction and sentence are affirmed.

Relevant Procedural History

On December 13, 2007, the defendant was charged by bill of information with two counts: (1) possession of cocaine with intent to distribute, a violation of La. Rev. Stat. 40:967(B)(1); and (2) possession of methylenedioxymethamphetamine with intent to distribute, a violation of La.Rev. Stat. 40:966(A)(2). He was arraigned on May 30, 2008, and pleaded not guilty. On October 1, 2009, after taking evidence on defense motions, the trial court found probable cause and denied the motion to suppress evidence. On April 7, 2009, the defendant was tried before a twelve-member jury and found guilty as charged on both counts. The State filed a multiple bill of information but withdrew it on January 6, 2010, and the defendant was sentenced to concurrent terms of fifteen years at hard labor on each count. The defendant’s motions for new trial and to reconsider the sentence were denied. This appeal follows.

12Applicable Law

The State bears the burden of proving the admissibility of evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress the evidence. La.Code Crim. Proc. art. 703(D). A trial court’s decision relative to suppress of evidence is afforded great weight and will not be set aside absent an abuse of that discretion. State v. Wells, 2008-2262, p. 5 (La.7/6/2010), 45 So.3d 577, 581.

Under both federal and state constitutions, a warrantless arrest must be based on probable cause that the citizen has engaged in criminal conduct and police detention or interrogation of an individual must be based on a reasonable, articulable suspicion that the individual has engaged in, is engaging in, or is about to engage in criminal conduct. State v. Tucker, 92-2093, 92-2130 (La.5/24/1993) 626 So.2d 707, 710 (citations omitted). Notably, a citizen’s protection in Louisiana against unreasonable search and seizures is broader under the state constitution than the federal constitution. Tucker, 626 So.2d at 711 (citing La.Code Crim. Proc. art. 215.1 and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An unconstitutional seizure occurs, rendering the evidence inadmissible, “when the police, without reasonable suspicion, either actually stop an individual or create a situation wherein an actual stop of the individual is imminent.” Tucker, 626 So.2d at 713. Determination of whether an actual stop is imminent is “ascertained by examining the extent of police force employed in attempting the stop.” Tucker, 626 So.2d at 712. The following non-exhaustive list of factors is useful in assessing the extent of police force employed and determining whether that force was virtually certain to result in an “actual stop” of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) lawhether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Tucker, 626 So.2d at 712-713 (citations omitted).

Discussion

In his sole assignment of error, the defendant contends that because the police lacked reasonable suspicion to conduct an investigatory stop, the evidence he discarded in face of an actual imminent stop must be suppressed.

The following evidence was adduced at the motion hearing and at trial. On the afternoon of December 14, 2006, due to an increase in violent crimes believed to be associated with narcotics transactions, members of the Special Operations Division were on patrol in the Seventh District. The patrol consisted of three or four vehicles and nine officers, including Officers Chad Gagnon and Travis Ward in the lead vehicle. They were attired in tactical clothing, not standard issue police uniforms. After passing an “econoline” style van parked in a driveway on North Nem-ours Street, Officers Gagnon and Ward observed two men standing next to the van. At the point perpendicular to the van, approximately twenty feet from the men, Officers Gagnon and Ward observed that the defendant, who was standing with his back to the van, had his right hand extended towards the other man with his palm up and both men were looking at the defendant’s upturned hand. When the defendant saw the police vehicle, he quickly closed his fist, turned, and walked up the driveway towards the residence. At this point, Officer Gagnon, who was driving, stopped the vehicle to further investigate. The other man, subsequently | ^identified as Gennard Taylor, looked up, saw the officers, and began walking in the same direction as the defendant.

As the officers exited the vehicle, the men began to flee towards the rear of the residence and the defendant discarded something underneath the van. Officer Gagnon observed the defendant’s arm and shoulder as he made a sweeping motion towards the van. The object fell underneath the van where it was partially hidden. At this point, Officer Gagnon believed that he had possibly interrupted a narcotics transaction or one that had already occurred. Focusing on the discarded object, Officer Gagnon recovered a clear plastic bag containing nine ecstasy pills, nine rocks of cocaine, and three bags of powdered cocaine. In the meantime, his partner pursued the defendant into the backyard where he apprehended him.

Officer Manuel Castellón and his partner Officer Valentine Emory were in the second vehicle behind Officers Gagnon and Ward. From the passenger seat, Officer Castellón observed Officer Gagnon stop his vehicle and walk toward the residence. When Officer Emory stopped their vehicle and got out to follow Officer Gagnon, Officer Castellón saw a man on the side of the van running towards the house.

At the motion hearing, the defendant related his version of events as follows. On the day in question he was playing basketball with a few family members and some friends in the park on North Nem-ours Street. An acquaintance of the defendant operated a makeshift mechanic shop across the street from the park. During the game, a friend of the defendant arrived who needed automotive work done on his car and who, accordingly, was directed to the mechanic. While he was talking to the mechanic, the basketball game broke up and the men decided to play a game of dice. The men asked the mechanic if it would be all right if they played |sdice in his house and he allowed them to do so. While the men were playing dice, however, three or four police cars arrived outside. According to Thomas, the officers began harassing a man across the street who then pointed to the house where the dice game was in progress. Believing the police were on their way into the house, Thomas and his associates discontinued the dice game. Soon, according to Thomas, the police kicked the door to the house open and entered. The police ordered everyone to the ground, and they complied. One of the men, Taylor, told the police that he had a gun and, after retrieving the weapon, the police handcuffed Taylor and everyone else in the room. Because Taylor was armed, they beat him and everyone else in the room and used a Taser gun on two of the men. After harassing one of the other men, the officers picked the defendant up and searched his pockets, recovering $1,200. According to the defendant, he planned to use this money to purchase Christmas gifts for his family. While the police were counting the money, one officer stated that they were going to plant ecstasy on him. Then they took the defendant outside, placed him in a police car, and told him that he was going to jail. Later, Thomas explained, the police recovered car keys from all the men inside and began searching all the vehicles. He heard them exclaiming as they recovered evidence in various vehicles. Next, the police removed four or five subjects from the house, telling them that drugs had been found in their vehicles. Finally, the police took everyone to jail.

At trial, George and Luthicia Grayson testified on behalf of the defendant. The Graysons, residents in the area, were out walking on the day in question. As they approached the park, they observed three police vehicles come around the corner fast and stop at the “Mexican mechanic’s shop.” Mr. Grayson believed it was approximately 3:00 p.m. The officers spoke with a man who was seated in a 16car, who then pointed at the house that belonged to the mechanic. Mr. Grayson believed it was about six or seven officers. He stated that the officers went right to the house when the man pointed. Mr. Grayson explained that he was quite interested in what was happening because his son frequently plays basketball in the park, and he wanted to make sure that his son was not involved with what was going on. From outside the house, the Graysons heard people screaming and hollering. Then the police started bringing people out. The men were saying that they were hurt and that the police had robbed them. Mrs. Grayson saw the police bring the defendant out of the house. They could see that a few of the men were injured. Some of the men were arrested; others were released. At this time, additional police cars arrived on the scene. Mr. Grayson admitted to a 2005 aggravated battery conviction and a 1992 burglary conviction.

Clearly, the trial judge found the officer’s version of events more credible than that of the defendant and the Graysons. Upon observing the defendant engaged in activity consistent with drug activity, the police officer stopped his vehicle to investigate further. The defendant, seeing the patrol car, closed his fist and began walking away and, as Officer Gagnon exited the vehicle, discarded the contraband. Based on this evidence, we do not find that the trial court abused its great discretion in denying the motion to suppress. At the point the contraband was discarded, Officer Gagnon had observed what appeared to be a drug transaction and, reasonably, stopped and exited his vehicle. Although the situation was fluid, at the point the officer exited his vehicle and the defendant discarded the contraband, the level of force displayed was short of the requisite virtual certainty that a stop would occur. The defendant was not surrounded by police or his path blocked; the officers’ weapons were holstered; and the police were some twenty |7feet from the defendant when he discarded the contraband. Thus, the defendant’s decision to fling the bag of drugs underneath the van was not the proximate result of an overwhelming police presence impinging upon his right to be left alone, but simply the split second decision of the defendant, who was utterly surprised by the sudden appearance of a police car at the base of the driveway at the worst possible moment. This assignment of error is without merit.

Errors Patent Review

A review of the record for errors patent reflects that the trial court failed to require that the first two years of defendant’s sentence on count one be served without benefit of parole as mandated by La.Rev.Stat. 40:967(B)(4)(b). Also, the trial court failed to require that the first five years of defendant’s sentence on count two be served without benefit of parole as mandated by La.Rev.Stat. 40:966(B)(2). However, La.Rev.Stat. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Accordingly, we need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Methylenedioxymethamphetamine is commonly referred to as MDMA and/or Ecstasy.


author: GUIDRY, J.

text:
    In the Matter of General Permit for Discharges from OIL & GAS EXPLORATION, DEVELOPMENT, & PRODUCTION FACILITIES, PERMIT NUMBER: LAG260000.
    No. 2010 CA 1640.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Stuart H. Smith, Joanne M. Ryan, New Orleans, LA, for Plaintiff/Appellant Louisiana Environmental Action Network (LEAN).
    Herman Robinson, Ann B. Hill, Jackie Marve, Claudia Rush, Baton Rouge, LA, for Defendant/Appellee Louisiana Department of Environmental Quality.
    G. William Jarman, M. Dwayne Johnson, Esteban Herrera, Jr., Baton Rouge, LA, for Intervenor/Appellee Louisiana Mid-Continent Oil and Gas Association.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

|gThe Louisiana Environmental Action Network (LEAN) appeals a judgment of the district court affirming a decision of the Louisiana Department of Environmental Quality (the LDEQ) to re-issue a National Pollutant Discharge Elimination System (NPDES) permit for discharge of pollutants from oil and gas production into the territorial seas of Louisiana as a Louisiana Pollutant Discharge Elimination System (LPDES) permit. The permit, issued October 13, 2009, and effective January 1, 2010, governs the discharge of deck drainage; produced water; well treatment, completion, and workover fluids; treated sanitary and domestic waste; hydrostatic test wastewater; other miscellaneous discharges from oil and gas exploration, development, and production facilities located in the territorial seas of Louisiana; and the discharge of produced water to the territorial seas of Louisiana from oil and gas exploration, development, and production facilities located in the Outer Continental Shelf waters off the coast of Louisiana.

The original NPDES permit issued by the United States Environmental Protection Agency (EPA) in 1997 expired on December 3, 2002, but was administratively continued by the LDEQ, pending its review of the application for [^renewal of the permit. Opponents to the permit contend that the testing and monitoring requirements for the discharge of produced water imposed in the permit are insufficient to adequately insure that environmental costs are being minimized or avoided as much as possible consistent with the public welfare.

The Louisiana Constitution mandates that “[t]he natural resources of the state, including air and water, and the -healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people.” La. Const, art. IX, § 1. Moreover, applicable water quality regulations provide:

No substances shall be present in the waters of the state or the sediments underlying said waters in quantities that alone or in combination will be toxic to human, plant, or animal life or significantly increase health risks due to exposure to the substances or consumption of contaminated fish or other aquatic life. The numerical criteria (LAC 33:IX.1113.C.6) specify allowable concentrations in water for several individual toxic substances to provide protection from the toxic effects of these substances.

[4LAC 33:IX.1113.B.5.

As has been routinely held since the Louisiana Supreme Court’s landmark decision in Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La.1984), a decision of the LDEQ must satisfy the issues of whether: (1) the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible; (2) a cost-benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former; and (3) there are no alternative projects or alternative sites or mitigating measures which would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. See e.g. In re Belle Co., L.L.C., 00-0504, pp. 16-17 (La.App. 1st Cir.6/27/01), 809 So.2d 225, 238. Furthermore, as a public trustee, the LDEQ is duty-bound to demonstrate that it has properly exercised the discretion vested in it by making basic findings supported by evidence and ultimate findings that flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the order, or in this case, the permit issued. See Save Ourselves, Inc., 452 So.2d at 1159-60.

When reviewing a decision of the LDEQ, the court may affirm or remand the case for further proceedings. The court may also reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation |fiof constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of the evidence as determined by the reviewing court. La. R.S. 49:964(G); see also La. R.S. 30:2050.21(F) (providing that the standard of review contained in La. R.S. 49:964(G) shall apply to an appeal of a final permit action).

The main concern raised in this matter is the fact that the permit does not provide for any direct testing of the sediments and marine life of the territorial seas to verify that no significant environmental impacts are being caused by produced water discharges. At the time the original NPDES permit was issued in 1997, there was no regulatory authorization of such discharges to the area of the territorial seas. However, at the time the LDEQ reviewed the NPDES permit for re-issuance as an LPDES permit, such regulated discharges had been allowed for several years under the existing NPDES permit. The LDEQ maintains that the imposition of effluent limitations, monitoring requirements, and toxicity testing adequately address bioac-cumulation concerns. In replying to public comments raising concerns regarding the cumulative impact of discharges of produced water on the hypoxic zone, marine organisms, and sediment quality, the LDEQ issued the following responses:

A. Bioaccumulation was one of the factors considered in the establishment of water quality criteria. The nature of the discharges included in the general permit coupled with technically sound permit limits provide reasonable assurance for compliance with water quality standards of the receiving water bodies.
Produced water does not contain large amounts of oxygen demanding substances (mostly oil and grease and toxic pollutants), therefore limitations or monitoring requirements for biological | fioxygen demand, 5-day (BOD5) are not included in the general permit for produced water. Produced water has not been attributed to the “dead zone.” The dead zone is mostly attributed to a nutrient overload from the Mississippi River. A report published by John A. Veil, Todd A. Kim-mell, and Abbey C. Rechner of the Environmental Assessment Division, Argonne National Laboratory, in August 2005[,] looked at the dead zone and considered the contribution of produced water. The report provided this information: “It is also important to consider that offshore platforms discharge to open ocean environments that are subject to wind and wave action. Discharges that are made anywhere near the surface will receive abundant reoxygenation due to the natural processes. More than half of the platforms identified as discharging produced water to the hypoxic zone discharge at or above the surface of the ocean. About 93% of those platforms discharge in the top 20 feet of the water column. This should provide effective mitigation for some of the oxygen-demanding pollutants .... ”
B. The provisions in the draft permit were developed primarily utilizing the Effluent Guidelines and New Source Performance Standards for the Offshore Subcategory of the Oil and Gas Extraction Point Source Category (See 40 C.F.R. § 435). Additional provisions based on state regulations were included to further protect the environment.
An Environmental Impact Statement (EIS) ... was completed on August 5, 1996. The territorial seas of Louisiana are high in energy and tend to be turbid and well-mixed because of the effects of the river discharges, waves and currents. Comprehensive biological assessments of the impacts of produced water discharges and bioaccumulation of toxic chemicals by marine organisms in the territorial seas of Louisiana have been conducted through the EIS and other studies. The EIS found that the discharges from the general permit would not cause impacts to be significantly greater than those resulting from a single discharge from different sources; or cause impacts cumulatively to cross an environmentally significant threshold. Other studies have taken fish tissue samples from reef fish located around oil and gas rigs in the territorial seas of Louisiana and found that these fish are less likely to have mercury in the tissue. Studies have shown that Radium is not a significant problem in fish in the territorial seas of Louisiana. Additionally, toxicity testing has been established in the general permit for [Outfall 002-pro-duced water].... Toxicity testing records lethal and sub-lethal, such as reproduction and growth, effects of produced water and chemically treated seawater and freshwater on marine organisms.
The permit limitations, monitoring frequencies, and conditions were established in the permit to be protective of the environment. LDEQ|7included limitations for parameters not listed in the federal guidelines (See 40 C.F.R. § 435), such as Benzene, Total Lead, Total Phenol, and Total Thallium for Outfall 002 (Produced Water), because these pollutants were found to be the most problematic in produced water.
The Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Offshore Subcategory of the Oil and Gas Extraction Point Source Category ... and EIS ... researched numerous studies and conducted studies when developing the guidelines for the offshore subcategory at 40 C.F.R. [§ ]435 and in drafting the 1995 NPDES permit. The limits in the general permit are consistent with 40 C.F.R. § 435, the previous permitf,] and other similar offshore permits.

In its “Basis for Decision,” the LDEQ further maintained that:

EPA completed an [EIS] ... on August 5, 1996.[] The EIS found that the discharges from the general permit would not cause cumulative impacts to be significantly greater than those resulting from a single discharge from different sources; or cause impacts cumulatively to cross an environmentally significant threshold. The EIS further found that Radium is not a significant problem in fish in the territorial seas of Louisiana.

As stated, the LDEQ relied on general offshore studies that have shown that the discharge of produced water has had no significant environmental impact to support its decision to issue the LPDES permit without requiring any direct testing or studies of the impact of produced water discharges in the area of the territorial seas. Two reports submitted by the LDEQ to support its permitting decision discussed a study that examined the impact of produced water discharges on the hypoxic zone in the Gulf of Mexico. Those reports basically concluded that nutrient loading to the hypoxic zone from produced water discharges was insignificantly small as compared to the degree of nutrient loading from the Atchafalaya and Mississippi Rivers and the “predicted incremental impacts of |sproduced water loads on dissolved oxygen conditions in the northern Gulf of Mexico ... were small.”

A third report titled “Findings of the Offshore Operators Committee Produced Water Bioaccumulation Study,” presented at the Society of Petroleum Engineers International Conference on Health, Safety, and Environment in Oil and Gas Exploration and Production in June 1998, discussed the results of a three-year study conducted from 1994 to 1997, that assessed the “potential for bioaccumulation to marine organisms of selected target compounds associated with produced water, and to evaluate the human health risk to seafood consumers.” The study involved measuring chemical concentrations in the edible tissues of marine organisms collected near 12 platforms discharging more than 4,600 barrels of produced water per day and comparing the results to the measurement of chemical concentrations in the edible tissues of marine organisms collected near 12 non-discharging platforms.

The target compounds measured were three volatile organics (benzene, toluene, and ethylbenzene), four semi-volatile organics (phenol, fluorene, benzo[a]pyrene, and bis(2-ethylhexyl)phthalate), three metals (arsenic, cadmium, and mercury), and two radionuclides ( 226 Radium and 228 Radium). Eleven species of fish, three species of mollusks, and one species of crustacean were collected for measurement in the study. The report concluded that based on the study, “it appears that produced water discharges into U.S. waters under the current regulatory requirements, do not pose an unacceptable risk to the environment or human consumers.”

|While the territorial seas are considered offshore waters, the LDEQ makes no mention of the fact that the territorial seas are of considerably less depth than offshore waters extending beyond the borders of the territorial seas that are the subject of the studies cited by the LDEQ. However, the EPA, in issuing the original NPDES permit, gave the following response to a comment suggesting that, based on the study conducted by the Offshore Operators Committee, monitoring for arsenic and benzene in produced water should be waived:

The Industry-wide Bioaccumulation Study has provided detailed information about bioaccumulative effects of produced water discharges at several offshore platforms; however, none of those platforms are located in shallow water,[] such as that which makes up a great percentage of the territorial seas off Louisiana. The potential for bioaccumulation is expected to be much greater in shallow water where the effluent receives less dilution, than it is in the deeper water examined under the Industry-wide Bioaccu-mulation Study. Therefore, the study did not provide information which can be applied to discharges authorized by this permit to ensure compliance with Ocean Discharge Criteria and water quality standards. [Emphasis added.]

According to the EIS produced by the EPA in 1996, which supported the EPA’s decision to issue the original NPDES permit, the ecosystem of the territorial seas of the Gulf of Mexico supports a variety of marine life, and the area is a part of a nationally important breeding, spawning, nursery, and feeding area for many types of finfish and shellfish. The EPA also expressed the following pronouncements in the EIS:

EPA considers that additional data are required prior to making any regulatory proposals regarding naturally occurring radium in produced [1flwater. Onshore disposal of oil and gas wastes contaminated with naturally occurring radioactivity is an ongoing concern which is beginning to be addressed through State regulatory programs.
Public health and other impacts. EPA is studying the possibility that a public health risk exists due to consumption of finfish and shellfish that are exposed to produced water that may contain radion-uclides; the general NPDES permit includes a requirement for radioactivity monitoring.
Cumulative impacts. Impacts from discharges authorized by the proposed general NPDES permit are evaluated in combination with EPA’s permits for coastal and outer continental shelf waters. At this time, EPA has not identified any aspect of the actions which the NPDES permit will authorize in the Territorial Seas which could interact with actions authorized in other ways, and which would either: cause impacts to be significantly greater than those resulting from the simple addition of the impacts from different sources; or cause impacts cumulatively to cross an environmentally significant threshold.

Although the EPA approved the present LPDES permit LAG260000, based on the foregoing statements, it appears some degree of follow-up testing was intended in the original NPDES permit.

The LPDES permit does provide for regular monitoring and reporting of discharges. Most of the effluents monitored and reported have established effluent limitations mandated under state and federal water quality standards. Monitoring and reporting of those substances with established effluent limitations under state and federal guidelines is understandably needed to ensure compliance with the guidelines; however, with regard to radium, it appears something more would be required to determine if the amounts of radium being discharged, as documented by monitoring and reporting requirements, are having any environmental impact, as there are no effluent limitations provided for that substance.

More interestingly, the evidence submitted by the LDEQ appears to buttress the assertion advocated by the opponents to the permit that there should be a Inrequirement for some type of follow-up direct bio-monitoring of the effects of the discharges. The reports the LDEQ submitted describing the results of the produced water hypoxia and bioaccumulation studies all reference the fact that the studies were conducted as a requirement for the issuance and re-issuance of NPDES General Permit GMG 290000 (for discharges from offshore oil and gas operations in the western portion of the Outer Continental Shelf of the Gulf of Mexico) by the EPA. Thus, there is precedent for mandating such follow up testing and studies as a part of the permitting process.

In a letter to the LDEQ dated January 16, 2009, the United States Department of the Interior, Fish, and Wildlife Service submitted comments regarding the permit LAG260000. In the letter, the agency stated that “[f]ederally listed species that are known to occur in [the] discharge area include endangered West Indian manatee (:Trichechus manatus), threatened Gulf sturgeon (Acipenser oxyrhynchus desotoi) and its critical habitat, as well as endangered and threatened sea turtles.” In regard to the West Indian manatee, the agency concurred in the LDEQ’s determination that issuance of LAG260000 “is not likely to adversely affect any federally listed species or their critical habitats in Louisiana.” As for the endangered and threatened sea turtles, the agency advised that “[t]he National Marine Fisheries Service ... is responsible for aquatic marine threatened or endangered species” and informed the LDEQ of whom to contact for information concerning the turtles. However, in regard to the Gulf sturgeon, the agency stated the following:

The primary constituent elements essential for the conservation of Gulf sturgeon are those habitat components that support feeding, resting, sheltering, reproduction, migration, and physical features necessary for maintaining the natural processes that support those habitat components; those elements should be considered when determining potential project impacts. The primary constituent elements for Gulf sturgeon critical habitat include:
112* water quality, including temperature, salinity, pH, hardness, turbidity, oxygen content, and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages;
• sediment quality, including texture and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages;
... Should issuance of the draft permit directly or indirectly affect the Gulf sturgeon or its critical habitat in Louisiana, further consultation with [the National Marine Fisheries Service] will be necessary.

In a document titled “Produced Water Permit Explained,” the LDEQ gives the following rationale for why it does not provide for additional follow-up testing or studies of the effects of the discharge of produced water in the territorial seas of Louisiana:

It is important to note the receiving body of water for produced water is the Gulf of Mexico. The open waters of the Gulf, along with the environmental influences of currents, tides, wind and water depth, allow for the produced water to be assimilated into the environment. As the result of past [LDEQ] studies, which showed that produced water was not easily assimilated when discharged in coastal and inshore habitats, the department banned the discharge of produced water in coastal and inshore habitats. There have been no studies brought to [the LDEQ’s] attention that details adverse [effects] related to discharging produced water into the open waters of the Gulf.
If [the LDEQ] had information that showed the discharge of produced water into the Gulf would cause adverse effect on human health or the environment, then the department would take the necessary actions needed to offer the appropriate protection as it did when it banned the discharge of produced water in [coastal] and inshore habitats back in the 1990s. [Emphasis added.]

As the LDEQ notes, it conducted actual studies of the effect of produced water discharges in coastal and inshore habitats and discovered that produced water was not easily assimilated when discharged in coastal and inshore habitats. As a consequence, the LDEQ banned the discharge of produced water in coastal and inshore habitats.

JjWe certainly agree with the LDEQ’s assertion that the permit contains several requirements and restrictions to help diminish and guard against unreasonable degradation of the environment by the permitted activity. However, reviewing the evidence presented and relied on by the LDEQ, it appears the LDEQ reached the decision to issue the LPDES permit procedurally, without individualized consideration or a fair balancing of environmental factors.

In the case of In re West Pearl River Navigation Project, 94-2260 (La.App. 1st Cir.6/28/95), 657 So.2d 640, writ denied, 95-2049 (La.11/17/95), 663 So.2d 720, this court reversed a decision of the LDEQ to issue a revised water quality certification to the United States Army Corps of Engineers, because there was “insufficient evidence in the record” for the agency to conclude that the proposed activity would pose no environmental problems or threats to water quality. The court reasoned that the LDEQ could not verify that water quality standards would be met based on the toxic testing of sediment samples from only five of the twenty-one proposed dredging sites. In re West Pearl River Navigation Project, 94-2260 at 5, 657 So.2d at 642. The court remanded the action to the LDEQ to analyze sediments from all of the proposed dredging sites to ensure that state water quality standards would be met if the permit were issued.

Pursuant to the criteria listed in LAC 33:LX.6307.C, a LPDES permit can be issued, even though the state administrative authority has insufficient information to determine that there will be no unreasonable degradation of the marine | ^environment pursuant to LAC 33:IX.6305; however, one of the criteria listed in LAC 33:IX.6307.C for issuance of a permit under such circumstances is that the permit must comply with all of the conditions established in paragraph D of LAC 33:IX.6307. One of the conditions listed in LAC 33:IX.6307.D is that the permit shall “specify a monitoring program, which is sufficient to assess the impact of the discharge on water, sediment, and biological quality including, where appropriate, analysis of the bioac-cumulative and/or persistent impact on aquatic life of the discharge^]” LAC 33:IX.6307.D,2 (emphasis added). See also LAC 33:IX.6309 (which provides that the state administrative authority may require an applicant to provide pertinent information, including “analysis of the location where pollutants are sought to be discharged, including the biological community”).

Based on the record before us, we find that LEAN has borne its burden of showing that the evidence relied on by the LDEQ does not support its determination by a preponderance of the evidence that the proposed permit has minimized or avoided potential and real adverse environmental impacts to the maximum extent. Instead, it appears the LDEQ abused its discretion in failing to address the potential environmental impacts identified by the EPA in issuing the initial NPDES permit, since the evidence submitted has not been shown to support the LDEQ’s basic finding that the discharge of produced water to the territorial seas of Louisiana will cause no significant bioaccumula-tive impacts.

CONCLUSION

Accordingly, we find the LDEQ abused its discretion in issuing LPDES permit LAG260000 without providing for some type of direct testing or bio-monitoring requirements to verify that the discharge of produced water to the area of the territorial seas of Louisiana causes no significant environmental impacts. We therefore remand this matter to the LDEQ with instructions to modify Lathe permit in a manner consistent with this opinion, such that the permitting decision will suitably evaluate whether the existing monitoring and testing requirements adequately insure that the environmental costs of discharging produced water directly into the territorial seas of Louisiana are being minimized or avoided as much as possible consistent with the public welfare. All costs of this appeal in the amount of $1,538.82 are assessed against the Louisiana Department of Environmental Quality.

REMANDED WITH INSTRUCTIONS.

      . NPDES means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of the Clean Water Act (33 U.S.C. §§ 1251-1387). 40 CFR § 122.2.

      . As stated in the EPA's 1996 Environmental Impact Statement (EIS), the territorial seas of Louisiana are located between the ordinary low water line along the coast of Louisiana, which is in direct contact with the open sea extending seaward to a distance of three miles. The territorial seas are shallow waters measuring from a zero depth at the coastline to typically 25 to 50 feet deep at the outer limit, although the depth can be up to 130 feet near the mouth of the Mississippi River. See 33 U.S.C. § 1362(8) and LAC 33:IX.708.B.

      .LPDES means those portions of the Louisiana Environmental Quality Act and the Louisiana Water Control Law and all regulations promulgated under their authority that are deemed equivalent to the NPDES under the Federal Water Pollution Control Act, otherwise known as the Clean Water Act, and for which Louisiana is the delegated authority. La. R.S. 30:2073(1).

      . Federal regulations suspended issuance of federal permits for activities subject to an approved state program under the NPDES of the federal Clean Water Act. See 40 CFR § 123.1(d)(1). A memorandum of agreement between the LDEQ and the EPA transferred permit responsibility to the LDEQ upon assumption of the NPDES program by the LDEQ. Valid NPDES permits held by facilities became LPDES permits with an expiration date consistent with the original NPDES permit. See La. R.S. 30:2011(D)(11); LAC 33:IX.2301.D.l.

      . In addition to LEAN, the Lake Pontchartrain Basin Foundation, the Oakville Community Action Group, the Gulf Restoration Network, the Sierra Club-Delta Chapter, the Louisiana Bayoukeeper, the Atchafalaya Ba-sinkeeper, the Lower Mississippi Riverkeeper, and Oneil Couvillion also filed objections to the permit issued by the LDEQ.

      . Specifically, LEAN asserts the following allegations on appeal of the district court's judgment affirming the decision of the LDEQ on judicial review:
      1. The judgment is contrary to law because LDEQ’s decision to issue the General Permit was in violation of its constitutional obligations as public trustee.
      2. The [j]udgment is contrary to law because LDEQ’s decision to issue the General Permit was in violation of the Clean Water Act and Louisiana water quality regulations anti-degradation policies.
      3. The [jjudgment is contrary to law because LDEQ’s factual findings in its basis for decision are not supported and sustainable by a preponderance of the evidence and thus the conclusions derived [therefrom] are arbitrary and capricious.
      4. [The judgment] is contrary to law because [while] produced waters are generally exempt from the radiation regulations, the produced waters cause radium to accumulate in sediments which are not exempt from radiation regulations. Thus[,] LDEQ’s inappropriate approval of the General Permit without requiring monitoring of aquatic organisms or sediments is thus contrary to state law.

      . On review, an appellate court should not reverse a substantive decision of the LDEQ on its merits, unless it can be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. However, if the decision was reached procedurally, without individualized consideration and balancing of environmental factors conducted fairly and in good faith, it is the court’s responsibility to reverse. The test for determining whether an action was arbitrary or capricious is whether the action taken was “without reason.” Dow Chemical Co. Louisiana Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission v. Reduction Credits, 03-2278, p. 8 (La.App. 1st Cir.9/17/04), 885 So.2d 5, 10, writ denied, 04-3005 (La.2/18/05), 896 So.2d 34.

      . The hypoxic zone is the area of low dissolved oxygen that forms in the shallow waters of the Gulf of Mexico from the Mississippi River Delta westward to near the Texas/Louisiana border.

      . Specifically, these concerns were mainly raised in public comments 11, 14, 19, 26, 27, and 28.

      . The record contains a "Final Environmental Impact Statement” issued by the EPA that is dated June 1996. On the second page of that document, it is noted that comments on the Final EIS were due August 5, 1996.

      . Hypoxia occurs when nutrients enter a body of water and stimulate the growth of phytoplankton. As the phytoplankton dies, it falls to the bottom of the body of water where it is decomposed by microorganisms. The decomposition process consumes oxygen from bottom waters to create hypoxic conditions.

      . The commenter also suggested that ”[a]c-tual data on the edible tissue, as gathered by the bioaccumulation study, is a more direct measure for assessing the potential to impact human health.”

      . We note that the Offshore Operators Committee report, based on the study, states that two of the platform pairs (one a discharging platform and one a non-discharging platform) used in the bioaccumulation study were located in shallow waters less than 10 meters in depth. The report further noted that of the BTEX compounds (term used for benzene, toluene, ethylbenzene, and xylene-volatile aromatic compounds typically found in petroleum products) studied, only benzene was detected at a concentration above the practical quantification level (the lowest level that can reliably be achieved with specified limits of precision and accuracy during routine laboratory operations) in marine animal tissues. This detection was made in three specimens taken from two locations in shallow waters of depths less than 10 meters.

      . See LAC 33:IX.6303, which defines "unreasonable degradation of the marine environment” as:
      1.significant adverse changes in ecosystem diversity, productivity and stability of the biological community within the area of discharge and surrounding biological communities;
      2. threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms; or
      3. loss of esthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived from the discharge.