Campo v. United States

• Decision Date: 23 December 2021
• Docket Number: 20-55,20-47,20-44
• Court: U.S. Claims Court
• Parties: ROBERT L. CAMPO, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

ROBERT L. CAMPO, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

Nos. 20-44, 20-47, 20-55

United States Court of Federal Claims

December 23, 2021

Motion to Dismiss; RCFC 12(b)(6); Fifth Amendment; Takings; Oysters Compensable Property Right; Surreply; 28 U.S.C. § 1497; Louisiana

Camilo K. Salas III, Salas & Co., L.C., with whom were Michael G. Stag, Ashley M. Liuzza, and Mathew D. Rogenes, all of Stag Liuzza, L.L.C., New Orleans, LA, for plaintiffs.

William J. Shapiro, Senior Trial Attorney, Environment and Natural Resources Division, Department of Justice, of Sacramento, CA, for the government.

OPINION AND ORDER

RYAN T. HOLTE JUDGE

In his 1690 Second Treatise of Government, John Locke famously noted "the labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property." Over 300 years later, this case raises the unique legal issue of whether Louisiana oyster growers may claim property rights in the fruits of their labor-oysters.

Plaintiff oyster farmers allege the United States deprived them of use occupancy and enjoyment of their personal oyster stock and real property (oyster beds and reefs). The farmers allege the government actions resulted in a permanent taking of their property for a public use without payment of just compensation in violation of the Takings Clause of the United States Constitution. The government admits when plaintiffs sell oysters they are "paid for the fruits of [their] effort," and plaintiffs may assert rights to exclude destroy, use, possess, recover for larceny, alienate, sue third parties for damages, and enjoy the fruits of selling oysters. Despite acknowledging those rights, the government moves to dismiss the portion of plaintiffs' claim alleging a taking of the oysters; the government argues plaintiff farmers lack a compensable property right in the oysters. For myriad reasons detailed infra, under Louisiana precedent, federal common law, and Lockean labor theory, plaintiffs undoubtedly have compensable property rights in their oysters. Accordingly, the Court DENIES the government's motion to dismiss in part pursuant to Rule 12(b)(6) of the Court of Federal Claims.

I. Background^[1]

A. Oyster Industry in Louisiana

Oysters are "bivalves," which have two hard outer shells "composed primarily of calcium carbonate (CaCO3)," and which encase "a soft inner [invertebrate] body." Class Action Compl. ("Compl.") at 10, ECF No. 1. Oysters "have been cultivated, grown, farmed, and harvested commercially in Louisiana since the mid[-]1800s" and, today, "Louisiana is the top harvester of oysters in the U.S. Gulf of Mexico ("Gulf") and has led the United States in oyster landings every year since 2000." Compl. at 9-10.

"Louisiana leads the nation in oyster production largely due to the state's successful public-private oyster cultivation partnership developed in the late 1800s and early 1900s." Compl. at 17. "In 1899, the U.S. Bureau of Fisheries (precursor to the U.S. Fish and Wildlife Service) investigated Louisiana's coastal area for possible expansion of oyster culture and made several recommendations for oyster fishery management, including encouraging the state to promote private investment in oyster cultivation." Compl. at 17-18. Parish governments subsequently ceded control of water bottom leases to Louisiana's state government. Compl. at 18. "Over the following decades, Louisiana passed numerous laws to assist and protect oyster leaseholders," and now, "Louisiana's oyster cultivation is governed by both legislative statutes (Louisiana Revised Statutes, Title 56) and rules promulgated by the [Louisiana Department of] Wildlife and Fisheries Commission [("LDWF")] (Louisiana Administrative Code, Title 76)." Id. State law specifies LDWF "[s]hall assist in protecting all lessees of private oyster bedding grounds in the enjoyment of their rights." Id. (citing La. Stat. Ann. § 56:6(16) (2014)).

"[B]y law all [but a few of] the water bottoms in the [S]tate of Louisiana are owned by the [S]tate of Louisiana." Mot. to Dismiss Oral Arg. Tr. ("Tr.") at 20:7-9, 20:23-21:5, ECF No. 26. "Oyster growers apply to lease the state-owned water bottoms through LDWF's Oyster Lease Survey Section," and where water bottoms are privately owned, "oyster farmers . . . obtain private leases from private owners of water bottoms." Compl. at 18. The state-owned water bottom leases are issued "for a typical term of 15 years, currently at a rate of $3.00 per acre (as of January 1, 2016)." Id. Notably, for this price "state law provides the lessee with exclusive use of the water bottoms." Id. at 18-19. Oyster farmers generally "harvest oysters from private leases from May through September when public oyster areas are closed to harvesting oysters for market purposes." Id. "Oyster farmers often transplant seed oysters from public oyster[] areas to their private leases to 'bed' them whenever the public oyster areas are open, most frequently during September, October, March, and April." Id. Louisiana also regulates the oyster industry by requiring "licenses to commercially harvest or possess oysters in Louisiana waters, . . . gear licenses for scrapers and tongs[, and] . . . [t]he captain of the harvest vessel must also have an Oyster Harvesting License." Id. at 19-20. Separate licenses are also required to sell oysters directly to consumers or non-consumers. Compl. at 20.

To survive and thrive, oysters must attach to the water bottoms. Id. at 12. Soft-bodied, hard-shelled oysters "cannot attach themselves to the mud[dy] . . . water bottoms," Tr. at 8:18- 24, rather oysters require "hard, clean substrate, including existing oyster reef as well as non-native substrates such as limestone rock, concrete, dock pilings, and bulkheads," Compl. at 10. Thus, after securing an oyster lease, an oyster grower must fix the "generally muddy" water bottoms, Tr. at 9:18-20, by ensuring the oysters have a hard substrate "to attach themselves to." Tr. at 9:2; Compl. at 32. The government "note[s] that the hard surface on which the oysters may attach . . . is sometimes called cultch." Tr. at 12:8-11. Leaseholders "get rock material, small rocks, and they will go and lay . . . rocks at the bottom, so that they will create a hard surface on which the oysters can grow." Tr. at 9:6-10. Also, "the shells that are . . . left over after the oysters have been removed . . . can be thrown back on the beds . . . to create the beds." Tr. at 9:11-15.

After "fixing" the beds, the oyster grower must obtain "tiny oysters," or "seed," from "public seeding areas" and "bring [the seed] down to [their] water bottoms." Tr. at 10:6-22. "[T]ypically the time period between . . . bringing the tiny little oysters and the time where they can be actually harvested is approximately four years or five years." Tr. at 10:22-11:2. The government states laying cultch, seeding, and harvesting "takes a lot of labor effort," "it's pretty difficult work," Tr at 15:13-16, and "[i]f you have to put the cultch down, that can be quite expensive," Tr at 13:19-20 See also Avenal v State, 886 So.2d 1085, 1110 (La 2004) (Weimer, J, concurring) (footnote omitted) ("Oyster farming has historically been arduous, backbreaking work requiring a special dedication. . . . Louisiana has historically leased water bottoms for a nominal value because this property had little intrinsic value. Through hard work and dedication, many oyster fishermen built reefs with materials referred to as cultch over the muddy water bottoms, turning unproductive lands into an area producing bountiful crops of oysters.").

B. The Bonnet Carré Spillway

"[I]n response to the Great Mississippi flood of 1927," Compl. at 23, "the [United States Army Corps of Engineers ('Corps')] authorized the construction of the Bonnet Carré Spillway in 1928," Tr. at 30:5-8. In 1931, the spillway was completed as "a flood control structure in the Lower Mississippi Valley." Compl. at 20. "Located in St. Charles Parish, Louisiana about 32.8 miles west of New Orleans, [the spillway] allows floodwaters from the Mississippi River to flow into Lake Pontchartrain and thence into the Lake Pontchartrain Basin, including Lake Pontchartrain, Lake Borgne, the Biloxi Marshes, Chandeleur Sound, Breton Sound, the Mississippi Sound and ultimately the Gulf of Mexico." Id. The spillway "has a design capacity of 250, 000 cu ft/s (7, 100 m³/s)." Id. at 21.

"The decision to operate or 'open' the Bonnet Carré Spillway is the responsibility of the Mississippi River Commission ('MRC') president." Id. at 22. "The MRC president relies heavily on the recommendations of the Corps' New Orleans District Engineer, who is responsible for the actual operation of the control structure and the floodway of the Bonnet Carré Spillway." Id. The MRC predates the Bonnet Carré Spillway, having been established by "an Act of Congress on June 28, 1879." Id. "The decision to operate the Bonnet Carré Spillway is made when existing conditions, combined with predicted river stages and discharges, indicate that the mainline levees in New Orleans and other downstream communities will be subjected to unacceptable stress from high water." Compl. at 22. The Bonnet Carré Spillway was "first opened during the flood of 1937, and twelve times thereafter through February 2019, to lower river stages at New Orleans." Id. at 23-24.

C. Environmental Factors Affecting Oyster Mortality in Louisiana

Eastern Oysters are a variety of oysters home to the "East Coast of North America from the Gulf of St. Lawrence in Canada to the Yucatan Peninsula in the Gulf," including the...