Avenal v. State

• Decision Date: 03 March 1999
• Docket Number: No. 99-C-0127,99-C-0127
• Citation: 757 So.2d 1
• Parties: Albert J. AVENAL Jr., et al. v. The STATE of Louisiana and the Department of Natural Resources.
• Court: Court of Appeal of Louisiana — District of US

Page 1

757 So.2d 1

Albert J. AVENAL Jr., et al. v. The STATE of Louisiana and the Department of Natural Resources.

No. 99-C-0127

Court of Appeal of Louisiana, Fourth Circuit.

March 3, 1999.

Opinion on Rehearing March 15, 2000.

Writ Denied June 23, 2000.

Richard P. Ieyoub, Attorney General, Andrew C. Wilson, David L. Carrigee, Donna M. Young, Jedd S. Malish, Burke & Mayer, Special Assistants Attorney General, New Orleans, LA, Attorneys for Relator/Defendant, the State of Louisiana, through the Department of Natural Resources.

Wendell H. Gauthier, Scott Labarre, Gauthier & Murphy, Metairie, Louisiana and Michael St. Martin, Michelle Mayne Davis, St. Martin & Williams, Houma, LA, Carolyn A. McNabb, McNabb & Mire, Houma, LA, and Philip Cossich, Lawrence Dyess, Cossich & Sumich, Belle Chasse, LA, Attorneys for Respondents/Plaintiffs.

Wendell H. Gauthier, Scott LaBarre, Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, Louisiana and Michael St. Martin, Joseph Jevic, St. Martin & Williams, Houma, LA, Carolyn A. McNabb, McNabb & Mire, Houma, LA, and Philip Cossich, Les Martin, Cossich, Sumich & Parisiola, Belle Chasse, LA, Attorneys for Respondents/Plaintiffs on rehearing.

Court composed of Chief Judge ROBERT J. KLEES, Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY HI, Judge Pro Tempore PHILIP C. CIACCIO and Judge Pro Tempore JAMES C. GULOTTA.

WALTZER, Judge.

The state, defendant, seeks review of the denial of summary judgment. The state argues that a federal judgment, dismissing all claims by these same plaintiffs against the United States' government, precludes re-litigation of the same issues against the state in this second action.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, oyster leaseholders/fishermen, filed the present class action on 29 March 1994 on behalf of all persons holding oyster leases on state water bottoms in Breton Sound. Plaintiffs alleged that a taking had occurred without just compensation in violation of the Fifth Amendment to the U.S. Constitution and Article 1, § 4 of the Louisiana Constitution because their oyster leases were adversely affected by the freshwater outflow from the Caernarvon freshwater diversion structure, located on the east bank of the Mississippi River in Plaquemines Parish.

On 26 April 1994, Avenal and virtually all of the same representative plaintiffs in the present state suit, with some new ones, filed suit in the U.S. Court of Federal Claims against the United States and its agencies, including but not limited to the U.S. Army Corps of Engineers, which designed financed and built the Caernarvon freshwater diversion structure. In that suit, the plaintiffs alleged a taking under the Fifth Amendment to the U.S. Constitution, one of the two claims raised in the present suit, and sought a class certification.

Defendant in the federal suit moved for summary judgment on several grounds. The Court of Claims granted summary judgment in August 1995.¹ On appeal to the Court of Appeals for the Fifth Circuit, that decision was affirmed in November 1996.²

Following the Avenal Fifth Circuit decision, defendant in the present state suit filed a motion for summary judgment arguing that collateral estoppel barred the re-litigation of the issues decided by federal judgment. The trial court denied the motion for summary judgment on 5 January 1998, "for the reasons set forth at the hearing" held that same date. (No transcript of the hearing is attached to defendant's writ application.)

Both the Court of Claims and the Fifth Circuit decisions are rich in facts. The undisputed facts, as taken from those decisions, show that federal and state government action was being planned as far back as the 1950's and 1960's to divert freshwater from the Mississippi River into adjacent marsh lands to improve oyster habitats and to reduce the mortality rate associated with increased salinity levels. According to a 1959 memorandum by the U.S. Fish and Wildlife Service to the U.S. Army Corps of Engineers, this action would benefit existing oyster-rich marshlands which had, over time, become too saline as a result of man-made and natural causes. Based on that memorandum, in 1965 Congress authorized certain freshwater diversion structures to be built in and around the Breton Sound Basin, which lies east of the Mississippi River and south of New Orleans. In 1968, the Corps proposed Caernarvon as a situs for a freshwater diversion control structure.

During the 1970's, the zone favorable for oyster growth continued to move landward, due to salinity changes, spawning an oyster community in marshlands which had previously been too fresh to sustain such growth. However, this inland movement of salinity had the deleterious effect of rendering unusable large areas of previously productive oyster grounds. The evidence showed that the representative plaintiffs in the federal suit, with few exceptions, the same representative plaintiffs in the present state action, had acquired their leases for oyster farming at the earliest, in 1976. These leases covered those areas which had previously been unsuitable for oyster growth.

Between 1978 and 1982 the Corps and relevant state and local agencies continued to discuss at informal meetings the construction of a freshwater diversion structure at Caernarvon. The Corps issued a final report in September 1984, proposing that one large freshwater diversion structure be constructed at Caernarvon. In October 1986, Congress authorized funds for the construction of the Caernarvon project.

Although the State of Louisiana expressed its intent to participate in the Caernarvon project as early as January 1982, the State did not enter into a formal agreement with the Corps until June 1987. The agreement provided that the State was to be responsible for 25 percent of the total costs of construction, and would maintain and operate the facilities following construction. Construction of the Caernarvon freshwater diversion project commenced in June 1988 and was completed in February 1991. The Caernarvon project was modeled after smaller state and local diversion structures constructed in the 1950's and 1960's, which had proved effective in restoring oyster production previously destroyed by excessive salinity levels.

Plaintiffs in both the federal suit and the present suit claim that the freshwater diverted from the Mississippi River by the Caernarvon project dilutes the salinity of the waters where their oyster leases are located, increases the growth of vegetation and bacteria on or near the water bottoms there, and causes silt to deposit there, rendering plaintiffs' leases incapable of oyster growth and cultivation.

In their motion for summary judgment filed in federal court, the United States alleged several grounds, including that the plaintiffs had no compensable expectancy in continued saltwater intrusion or a particular salinity level, and that the plaintiffs had no reasonable investment-backed expectations to continuation of the saltwater intrusion or a particular salinity level which was caused by earlier diversion of freshwater from its historic flows.

The Court of Claims ruled that the plaintiffs lacked a compensable property interest in the salinity of the water for purposes of the Fifth Amendment's taking clause and dismissed the suit. The Fifth Circuit affirmed that judgment on other grounds. The federal appellate court found that the plaintiffs did have a property interest, created by the state, which was protected by the Fifth Amendment, and that the federal and state project had altered the salinity conditions to the detriment of oyster cultivation. However, the court found that no compensable taking occurred since the plaintiffs had taken advantage of favorable conditions created by prior projects, and knew or should have known of the expected freshwater diversion that would adversely affect their oyster leases, and thus could not have had a legitimate investment-backed expectation that conditions would remain favorable for oyster cultivation.

SUPERVISORY JURISDICTION

Clearly, the denial of a motion for summary judgment is an interlocutory judgment from which the parties do not have the right to appeal. LSA-C.C.P. art. 1841. However, our exercise of supervisory jurisdiction is purely discretionary. LSA-C.C.P. art. 2201.

In Scott v. Pontchartrain Materials Corp., 98-1611, p. 3 (La.App. 4 Cir. 8/12/98), 717 So.2d 682, 684, this court stated:

Appellate courts must review summary judgments de novo. Act No. 483 of 1997 amended LSA-C.C.P. art. 966 effective August 15, 1997, and it is to be applied retroactively as well as prospectively. Perry Waller v. American Seafoods Co., 97-0302, p. 1 (La.App. 4 Cir. 10/1/97), 700 So.2d 1306, 1307, writ not considered, 97-2769 (La.1/30/98), 709 So.2d 693.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966 A(2). A summary judgment 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 a material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. 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 does not require him to negate all essential elements of the adverse party's claim, but rather to 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. LSA-C.C.P. art. 966 C(2).

Id.

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." LSA-C.C.P....