                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 August 22, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk

                              04-30634



  LAKES OF GUM COVE HUNTING & FISHING L.L.C.; LAKES OF GUM COVE
                           LAND L.L.C.
                                          Plaintiffs - Appellants

                               Versus


                     WEEKS MARINE, INC., ET AL.
                                                            Defendants

                                 USA

                                               Defendant - Appellee



  Appeal from the United States District Court for the Western
               District of Louisiana, Lake Charles
                          No. 2:00-CV-65


Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL, District Judge.*

PER CURIAM:**

     Plaintiffs Lakes of Gum Cove Hunting & Fishing, L.L.C and

Lakes of Gum Cove Land, L.L.C. (collectively “LGC”) appeal the



     *
      District Judge of the Northern District of Texas, sitting
by designation.
     **
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 -1-
district court’s dismissal of their trespass claims against Weeks

Marine, Inc. (“Weeks”) and the United States for damages

allegedly resulting from the deposit of dredged material on LGC’s

property.   Because the district court did not err in concluding

that LGC consented to the defendants’ entry onto LGC’s property,

we affirm the district court’s dismissal of plaintiffs’ trespass

action.

                                  I.

     In November 1998, two brothers, Anthony and Joseph Palermo,

formed LGC as a Louisiana limited liability company to purchase

land in Louisiana to lease for hunting and fishing.   In December

1998, LGC purchased a tract of land in Cameron Parish, Louisiana,

bordering the Calcasieu River Ship Channel from Amoco Production

Company (“Amoco”).   Included in the purchased property was Brown

Lake, which is located two miles west of the Calcasieu River and

south of Lake Charles.   The deed included a provision notifying

the purchaser that the land was encumbered by a “Temporary

Easement or Servitude” that Amoco granted to the South Lake

Charles Harbor & Terminal District (“District”) so that the

district could finish dredging the Calcasieu River Ship Channel.

     The dredging project was part of an ongoing jointly funded

state and federal project by the District and the United States

Army Corp of Engineers (“ACE”).    Pursuant to the Calcasieu River

Ship Channel plan, dredged material from the Calcasieu River Ship

Channel was deposited on adjacent land to create cells to

                                  -2-
minimize saltwater intrusion into Brown Lake.     These deposits

were thought to have the added benefit of restoring the marshland

and improving the habitat for fish and other wildlife.     The

dredging was conducted by the DREDGE TOM JONES pursuant to a

contract between ACE and Weeks, the owner of the dredging

vessel.1

     In April 1999, the dredging project was not completed within

the period of the original easement between the District and

Amoco.     Marc Rosamano (“Rosamano”), ACE’s attorney, drafted a

temporary right of entry entitled “Right of Entry for

Construction” (“Right of Entry”), so the project could continue.

Rosamano learned that the property was now owned by LGC, and

forwarded the Right of Entry instrument to both Palermo brothers.

After receiving the document, Anthony Palermo contacted Rosamano

to discuss the dredging project.     After talking with Rosamano,

Anthony signed the Right of Entry, which granted the District and

its agents (which included Weeks and the ACE) the right to

continue depositing dredged material on LGC’s property for a

period of three months under the same terms and conditions as the




     1
      Phase I of the Calcasieu River Ship Channel plan was
completed in 1993, during which dredged material from the channel
was used to create five cells on the east side of Brown Lake.
Phase II of the project began in April 1998 according to the
easement obtained from Amoco, with the goal of creating three
cells on the west side of Brown Lake.

                                  -3-
prior easement.2

     The dredging project resumed on May 19, 1999, and continued

until Phase II was completed on June 28, 1999.   Some time after

the dredging stopped, the Palermo brothers perceived a decline in

the amount of fish and other wildlife around Brown Lake.   Because

the Palermos believed that the change was caused by the dredging

activities and the deposit of dredged material on their land,

they filed suit on behalf of LGC in October 1999 against Weeks,

the District, and the captain of the dredging vessel.   LGC

alleged that, because the defendants did not obtain proper

consent to enter LGC’s property and dispose of the dredged

material, they committed trespass and were liable for any damages

resulting from their activity.   According to the complaint, the

dredged material deposited on LGC’s property contained toxins and

pollutants that severely diminished the wildlife population on

the property, decreasing LGC’s ability to lease the property and


     2
      The Right of Entry provided in part:

          The undersigned, hereinafter called the “Owner,”
     in consideration of the work to be performed...for
     servitude rights hereinafter described...grants an
     irrevocable right to enter upon the lands...any time
     within a period of three (3) months from the date of
     this instrument, or until a new servitude agreement is
     entered into, whichever is shorter, in order to do
     work necessary to locate, construct, operate,
     maintain, alter, repair and patrol a dredged material
     disposal area, under the same terms and conditions as
     the attached Temporary Easement or Servitude Agreement
     dated April 28, 1998, which the [District] and the
     Owner are in the process of renewing. R. 103.

                                 -4-
generate income.    LGC later filed a separate lawsuit against the

United States based on ACE’s participation in the dredging

activity, and the two cases were consolidated for trial.

     Before trial, the district court granted ACE’s motion for

summary judgment and dismissed the claims against the United

States as time-barred, but found that the government must

indemnify Weeks for any damages Weeks was required to pay.    The

court also dismissed the claims against the District and the

captain of the DREDGE TOM JONES.

     The main issue at trial was whether LGC consented to the

defendants’ entry onto LGC’s property so as to defeat the

trespass claims.3   Following the bench trial, the district

court’s findings first considered whether Anthony Palermo’s

signature on the Right of Entry instrument as an agent for LGC

bound LGC to its terms.   Because both LGC entities were limited

liability companies created in Louisiana, the district court

determined that Anthony’s ability to consent for LGC was governed

by Louisiana law.   The court concluded that under Louisiana law,

an individual member of an L.L.C. can bind the company for all


     3
      In an earlier ruling the district court found that LGC’s
claims were properly labeled “marine trespass” claims governed by
the “general common law of trespass,” under which the court
applied the Second Restatement of Torts. The parties agree that
the landowner’s consent defeats a trespass under the Second
Restatement. See RESTATEMENT (SECOND) OF TORTS § 892A (1977) (“One
who effectively consents to conduct of another intended to invade
his interests cannot recover in an action of tort for the conduct
or harm resulting from it.”).

                                 -5-
matters “in the ordinary course of business other than the

alienation, lease, or encumbrance of its immovables” unless

otherwise provided in the articles of organization.4   The court

concluded that if the articles of organization do not authorize

an individual member to alienate, lease, or encumber company

property, such actions require a majority vote of the company

members.5   The district court found that, because Anthony

Palermo’s signature on the Right of Entry did not purport to

alienate, lease, or encumber LGC’s immovable property, his lone

signature was sufficient to bind LGC to the terms of the

instrument, which allowed the defendants to enter the property

and continue to deposit dredged material onto LGC’s land.     The

court held that such consent to enter the property defeated LGC’s

trespass claims as a matter of law, and rendered judgment for the

defendants.   This appeal followed.

                                II.

     LGC argues on appeal that the district court erred in

failing to classify the Right of Entry as an encumbrance under

Louisiana law, thus requiring the signatures of both Palermo

brothers to permit entry onto LGC’s property.   Because the

instrument purporting to authorize the defendants to enter


     4
      LA. REV. STAT. § 12:1317 (A). LGC’s articles of organization
did not purport to enhance the authority of the members to
alienate, lease, or encumber company property.
     5
      LA. REV. STAT. § 12:1318 (B)(5).

                                -6-
company property was signed by only one member of LGC, LGC argues

that it was ineffective to grant defendants any right of entry.

     The defendants argue that, even if the Right of Entry

purported to encumber company property, evidence in the record

demonstrates that both brothers consented to the defendants’

entry onto LGC’s property to deposit dredged material.

     After reviewing the record, we agree with the defendants

that the evidence is uncontradicted that both Palermo brothers

consented to the defendants’ entry onto LGC’s property.    It is

therefore unnecessary for us to decide whether the Right of Entry

purported to encumber LGC’s property.

     The record shows that both Anthony and Joseph Palermo

participated in meetings in late 1998 with Clay Mitkiff, an

engineer with the ACE, to discuss the dredging project on LGC’s

property.    According to Anthony Palermo’s testimony, Mitkiff

showed them drawings depicting the work already done and

described how the plan would create cells that would restore the

marshland.   Joseph Palermo testified that, after meeting with

Mitkiff and several agents from the Department of Wildlife and

Fisheries to discuss dredging activities at Brown Lake, Anthony

was “all hipped up” by the fact that these projects would restore

the marshland without any cost to the landowner.6   Joseph stated

that although he was not as excited as his brother, he went along


     6
      1 Tr. at 120.

                                 -7-
with the proposed plans because he believed they would improve

hunting and fishing around Brown Lake.

     Anthony Palermo also testified that in May 1999, while bass

fishing in Brown Lake, he observed the defendants “bumping a

bunch of mud” into the middle of the marsh.7    He further

testified that it was clear to him at that point that the

defendants’ dredging activities had altered the character of the

marshland situated in Brown Lake.     He admitted, however, that he

never contacted anyone from the District or the ACE to complain

that this activity was unauthorized.

     Joseph Palermo testified that he first learned that the

defendants had resumed dredging operations when Anthony called

him after Anthony saw the above described activity while fishing

in Brown Lake.   At the time of this conversation with Anthony,

Joseph stated that he knew from his earlier contacts with the

defendants that they wanted to continue depositing dredged

material on the property.   Shortly after Anthony’s phone call

informing him of the defendants’ activity, Joseph flew over Brown

Lake and personally observed the dredging activity.    Even after

observing the defendants’ activity, Joseph did not notify the

defendants that their presence on LGC’s property was unauthorized

or demand that they stop dredging operations at Brown Lake.

     On August 24, 1999, the Palermo brothers hosted a barbecue


     7
      1 Tr. at 33-34.

                                -8-
at LGC’s facilities for the representatives from the ACE, the

District, and Weeks to discuss continuing dredging activities

into “Phase III.”   Although both Anthony and Joseph Palermo were

present at the meeting and took part in the discussions regarding

further dredging activities on their company’s land, neither

voiced any concerns or notified any of the representatives

present that their work on Brown Lake was unauthorized.    To the

contrary, the parties left the barbeque with a preliminary plan

in place to move ahead with “Phase III” of the dredging

operations at Brown Lake.

     It is uncontradicted from all of the testimony that the

first time the Palermo brothers notified the defendants that they

objected to the defendants’ activity on LGC’s property was when

they filed this lawsuit in October of 1999.    As the only members

of LGC, the Palermo brothers were the sole representatives of LGC

and the only persons with whom the defendants were able to

communicate about this project.    The Palermo brothers’ conduct

before and after the dredging deposit operations clearly shows

that they consented to the defendants’ entry onto LGC’s land.8

This consent defeats LGC’s trespass claims.

                               III.

     LGC also argues that any failure by the Palermos to object


     8
      This consent is not negated by uncommunicated reservations
the two brothers may have had about the effect the deposit of
spoil on their land might have on hunting and fishing.

                                  -9-
to the defendants’ operations on LGC’s property was the result of

substantial misrepresentations from government employees to the

Palermos, and renders ineffective any possible consent to their

activities.   LGC contends that, while meeting with the Clay

Mitkiff in 1998 to discuss the dredging project, the Palermo

brothers were told that the continued depositing of dredged

material at Brown Lake would enhance the population of fish and

other wildlife.   LGC also contends that, while attempting to

secure the Right of Entry to extend dredging operations, Marc

Rosamano made similar predictions to Anthony Palermo.      Because

these misrepresentations induced them to allow the dredging

project to continue, LGC argues, their consent was vitiated and

their trespass claims are not precluded.

     Assuming that these predictions were made, the record simply

does not support a conclusion that the government representatives

knew or had reason to know that these statements were inaccurate,

which LGC must show to vitiate their consent in this context.9

     9
      See RESTATEMENT (SECOND) OF TORTS § 892B (1977) (“If the person
consenting to the conduct of another is induced to consent by a
substantial mistake concerning the nature of the invasion of his
interests or the extent of the harm to be expected from it and
the mistake is known to the other or is induced by the other’s
misrepresentation, the consent is not effective for the
unexpected invasion or harm.”); RESTATEMENT (SECOND) OF TORTS § 173
(1977) (“The rules stated in § 892B as to consent induced by
misrepresentation or mistake apply to entry or remaining on
land.”); RESTATEMENT (SECOND) OF TORTS § 526 (1977) (providing that a
fraudulent misrepresentation occurs when “the maker knows or
believes that the matter is not as he represents it to be, does
not have the confidence in the accuracy of his representation
that he states or implies, or knows that he does not have the

                                -10-
LGC concedes that the additional dredged material placed on the

property from 1993 to 1999 improved hunting and fishing at Brown

Lake.     There is no evidence that any of the defendants’ employees

knew or should have known that the deposit of additional dredged

material would not continue to have the same positive effect.    In

order to demonstrate that their consent was vitiated by the

defendants’ predictions, LGC was required to show that the

defendants either intentionally or negligently misrepresented

what effect the additional dredged material would have on hunting

and fishing at Brown Lake.10    Without such evidence, LGC’s

consent was effective and defeats their trespass claims.



                                  IV.

     For the reasons stated above, we AFFIRM the district court’s

judgment in favor of the defendants.

AFFIRMED.




basis for his representation that he states or implies”);
RESTATEMENT (SECOND) OF TORTS § 552 (1977) (providing that a
negligent misrepresentation occurs when “[o]ne who, in the course
of his business, profession or employment, or in any other
transaction in which he has a pecuniary interest, supplies false
information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss caused
to them by their justifiable reliance upon the information, if he
fails to exercise reasonable care or competence in obtaining or
communicating the information”).
     10
          Id.

                                 -11-
-12-
