Avenal v. State
| Decision Date | 19 October 2004 |
| Docket Number | No. 2003-C-3521.,2003-C-3521. |
| Citation | 886 So.2d 1085 |
| Parties | Albert J. AVENAL, Jr., et al. v. The STATE of Louisiana and The Department of Natural Resources. |
| Court | Louisiana Supreme Court |
Charles C. Foti, Jr., Attorney General, Burke & Mayer, Andrew C. Wilson, David L. Carrigee, Jedd S. Malish, Special Assistants to Attorney General, Counsel for Applicant.
St. Martin & Williams, Michael X. St. Martin, Joseph G. Jevic, III, Houma, Gauthier, Downing, Labarre, Dean & Sulzer, Charles S. Labarre, Cossich, Belle Chasse, Sumich & Parsiola, Ltd., Philip F. Cossich, Jr., McNabb & Associates, Carolyn A. McNabb, Houma, Counsel for Respondent.
Freddie Pitcher Jr., Thomas B. Calvert, Metairie, Professor Oliver A. Houck, Ruston, Panzeca & D'Angelo, Metairie, Salvadore Panzeca, Gregory G. D'Angelo, Oats & Hudson, William M. Hudson, III, Lafayette, Clifton O. Bingham, Jr., Baton Rouge, Lawrence E. Marino, Lafayette, Lawrence A. Durante, Debra C. Edlredge, James K. McCay, II, William J. Doran, Jr., Roland Dartez, Sherry S. Landry, City Attorney, Deborah M. Henson, Thomas A. Robichaux, Assistant City Attorneys, Pamela Miller Perkins, Baton Rouge, J. Michael Lamers, Michael W. Wascomb, Waltzer & Associates, Joel Waltzer, Harvey, Robert B. Wiygul, Liskow & Lewis, and Gene Lagitte, S. Gene Fendler, H.S. Bartlett, New Orleans, Frederick C. Whitrock, Baton Rouge, Donald E. Puckett, Counsel for Amicus Curiae.
In this case, oyster fishermen holding oyster leases in the Breton Sound area claim they suffered a compensable taking under La. Const. Art. I, § 4 as a result of the State of Louisiana's operation of the Caernarvon Freshwater Diversion Structure ("Caernarvon"), which altered salinity levels in the waters covering the oyster fishermen's leases. After a review of the record and the applicable law, we reverse the judgments of the lower courts and hold that the vast majority of the oyster fishermen are not entitled to compensation under La. Const. Art. I, § 4 because their leases contain clauses holding the State harmless from any loss or damage resulting from this coastal diversion project. Further, we hold that the claims of the oyster fishermen whose leases do not contain hold harmless clauses have prescribed under La. R.S. 9:5624.
Following the flood of 1927, the United States Army Corps of Engineers (the "Corps") expanded the Mississippi River levee system to confine the river to prevent further major floods. Before the levees were built, naturally occurring floods deposited millions of tons of sediments into the marshlands, which allowed marshland and other grasses to grow; without those nutrient-rich sediments, the plants that hold surrounding soils in place disappear and the land turns to open water. In the last fifty years, hundreds of square miles of wetlands along the Louisiana coast have disappeared and scientists have estimated that between thirty-five and forty-five square miles of coastal wetlands are lost each year.
Another effect of the levee system was on the salinity of the water. The coastal waters of Louisiana have historically provided excellent conditions for oyster growth, because the freshwater from the Mississippi River and smaller coastal streams mix with the saltwater of the Gulf of Mexico, creating an ideal ecosystem for oyster cultivation. By keeping fresh water out of the wetlands that surrounded the Mississippi River in the Breton Sound Basin, the levees unexpectedly raised the salinity of the waters covering those wetlands and this change in salinity fostered new oyster growth in the landward region of the basin that had previously been too fresh to sustain oyster growth. However, the changes in salinity that made some previously unproductive waters productive also ruined some oyster grounds that had been extremely productive before the levees were created.
These effects were recognized in the 1950s, and the state and federal governments began planning to divert freshwater from the Mississippi River into adjacent marshlands to address these problems. According to a 1959 memorandum issued by the U.S. Fish and Wildlife Service to the Corps, certain man-made and natural causes, over time, had increased the salinity level of the sub-delta marshlands below New Orleans, thereby adversely affecting fish and wildlife, including oysters, waterfowl, and fur animals. This investigation was prompted, in part, by requests from local groups, including the oyster industry, which attended a public hearing in New Orleans on April 25, 1955, concerning the need for freshwater diversions. After finding "a marked reduction [in oyster yield] per unit area" over time, the U.S. Fish and Wildlife Service concluded in the 1959 memorandum that "[i]ntroduction of fresh water to reestablish natural patterns of salinity and alluviation and increase fertility would provide the most effective method of restoring fish and wildlife production." The 1959 memorandum identified four separate areas in Plaquemines Parish as freshwater diversion sites, two of which were located on the west side of the Mississippi, Areas No. 1 and 3, and two on the east side, Areas 2 and 4. The diversion structures were to be designed to benefit both public seed grounds2 and privately held water-bottom leases obtained from the state for oyster leasing. Between 1968 and 1969, the Corps met with local interests, including the Louisiana Department of Wildlife and Fisheries ("DWF") and the Plaquemines Parish Commission Council, to discuss proposed locations for the diversion structures authorized by Congress. During Corps-sponsored public hearings held in 1968, the Corps proposed Caernarvon as the situs of the freshwater diversion structure for Area No. 4 to be located on the east side of the Mississippi.
The 1959 memorandum described the entire area covering Area 4 as "usually too fresh to support an oyster industry ..." The memorandum stated that the pollution resulting from Caernarvon's discharge of silt would "not be a problem in Area No. 4 as in other areas because an oyster fishery is not present." Thus, the 1959 memorandum confirmed that Area No. 4, where Caernarvon would alter salinity levels in the water, coincided with the area of Breton Sound Basin that had been shown to be outside the productive oyster zone as of 1960.
During the 1970s, as land continued to erode and disappear further and further inshore, the zone favorable for oyster growth continued to move landward, due to saline changes. This landward salinity movement spawned an oyster community in the marshlands in the northwest portion of the Breton Sound Basin, which had previously been too fresh to sustain such growth. While creating new oyster grounds, the inland movement of salinity had the deleterious effect of rendering unusable large areas of previously productive oyster grounds, including the public seed grounds. Between 1978 and 1982, the Corps and relevant state and local agencies continued to discuss the construction of a freshwater diversion structure at Caernarvon at informal meetings. On January 21, 1982, the State submitted a letter to the Corps, announcing its intent to participate in the Caernarvon project, and the Corps and the Louisiana Department of Natural Resources (the "DNR") issued a joint public notice about the project. In 1984, the Corps prepared an environmental impact statement suggesting locations of large salinity concentrations (isohalines) at three areas along the southeast Louisiana coast to enhance fisheries and to combat coastal erosion. To create optimal salinity regimes, the environmental impact statement proposed the construction of three freshwater diversion structures in the three areas: (1) the Bonnet Carre Spillway in the Lake Ponchartrain Basin; (2) the Davis Pond Freshwater Diversion Structure in the Barataria Basin; and (3) the Caernarvon Freshwater Diversion Structure in the Breton Basin near Braithwaite, Louisiana. The Caernarvon project, in particular, was designed to abate saltwater intrusion and marine tidal invasion, while promoting coastal restoration and enhancing fisheries and wildlife in the basin. The DNR and DWF set optimal target salinity zones in Breton Sound, which ranged from 5 parts per thousand ("ppt") for the northwest inland area of the basin to 15 ppt for the lower seaward end of the basin. The salinity zones were based upon the fact that below 5 ppt, oysters become stressed and die, while above 15 ppt, oysters are subject to saltwater predators and disease. The optimal salinity regime targeting annual average isohalines in concentration between 5 ppt and 15 ppt allowed oyster propagation and cultivation to continue in an existing zone within Breton Sound, while at the same time fostered coastal restoration by freshening the upper Breton Basin and allowing vegetation to return in an area where little oyster production was occurring. The Corps' 1984 memo also recognized that "the zone where conditions will become too fresh for oyster cultivation as a result of the diversion coincides with an area that was historically (prior to 1960) too fresh and not favorable for oyster cultivation." At a July 31, 1984, public hearing, the President of the Louisiana Oyster Dealers and Growers indicated his support for both the Caernarvon project and freshwater diversion structures generally.
On October 30, 1986, Congress authorized the funds for construction of Caernarvon, and the State entered into a formal cooperation agreement with the Corps on June 10, 1987. The agreement recognized Caernarvon as one of the four sites originally authorized by the Flood Control Act of 1965. In anticipation of the operation of Caernarvon, in 1989, DWF inserted a clause in its lease form, requiring that the State be indemnified and held harmless for any claims related to coastal restoration.3
Also, in response to an October 26, 1990, letter from Bill Good, Ph.D., acting...
To continue reading
Request your trial
-
U.S. v. Sid–mars Rest. & Lounge Inc.
... ... Before DENNIS, OWEN and SOUTHWICK, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge: SidMar's Restaurant filed suit in state court demanding compensation from the State of Louisiana for the commandeering of its real property following Hurricane Katrina. While the state ... State Through Dep't of Transp. & Dev. v. Chambers Inv. Co., 595 So.2d 598, 602 (La.1992); see also Avenal v. State, 886 So.2d 1085, 1104 (La.2004) ( Inverse condemnation claims derive from the Takings Clauses contained in both the Fifth Amendment of the ... ...
-
Phillips v. Montgomery Cnty.
... ... Accordingly, we reverse the judgment of the Court of Appeals dismissing the property owners' complaint alleging a state constitutional regulatory takings claim and remand this matter to the trial court for further proceedings consistent with this decision. I. Factual ... (Alaska 2001) (recognizing that the Alaska Constitution offers property owners broader protection than under the United States Constitution); Avenal v. State, 886 So.2d 1085, 110308 (La.2004 ) (recognizing that the Louisiana Constitution requires compensation for property damaged as well as ... ...
-
Crooks v. Department Of Natural Resources
... 263 So.3d 540 Steve CROOKS and Era Lea Crooks v. State of La., DEPARTMENT OF NATURAL RESOURCES 17-750 Court of Appeal of Louisiana, Third Circuit. December 28, 2018 Ronald J. Fiorenza, Joseph J. Bailey, ... "is well settled under Louisiana law that when conflicting statutes are applicable, the one more specifically directed to the matter applies." Avenal v. State , 03-3521, p. 33 (La. 10/19/04), 886 So.2d 1085, 1108 n.29 (citing Estate of Patout v. City of New Iberia , 98-0961 (La. 7/7/99), 738 ... ...
-
State v. La. Land & Exploration Co.
... ... Further, our supreme court has recognized the public trust doctrine at least twice. Once in Save Ourselves, Inc. v. Louisiana Environmental Control Comm'n , 452 So.2d 1152 (La.1984), and a second time in Avenal v. State , 03-3521 (La. 10/19/04), 886 So.2d 1085. In Save Ourselves, Inc. , the supreme court gave notice to the presence of the public trust doctrine in La.Const. art. 9, 1 when it found that Louisiana coastal wetlands were a protected natural resource under La.Const. art. 9, 1. In doing so, ... ...
-
A River Used to Run Through It: Protecting the Public Right to a Sustainable Water System
...power may properly regulate the use of property where uncontrolled use would be harmful to the public interest”); Avenal v. States, 886 So. 2d 1085, 1107 n.28 (La. 2004) (quoting Lucas and rejecting a takings claim based on water diversion, because saving the coastline was “an actual necess......
-
The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time
...of an owner’s application to develop property in tidelands did not effect an unconstitutional taking). 138. See, e.g. , Avenal v. State, 886 So. 2d 1085 (La. 2004); Klass, supra note 45, at 708–13. 139. See Peloso & Caldwell, supra note 11, at 69–82. 140. See GRANNIS, supra note 10, at 36–4......
-
Ednotes
...James G. Wilkins & Michael Wascom, The Public Trust Doctrine in Louisiana , 52 LA. L. REV. 861, 863-64 (1992). 124 Avenal v. Louisiana, 886 So.2d 1085, 1091-92 (La. 2004). 125 Id. at 1091. 126 Id. 127 Id. at 1101-02. 128 Id. at 1102. 129 FED. R. CIV. PRO. 23(c)(1)(B) (For purposes of this a......