State's Supreme Court brief - Endangered Species & Wetlands Report

SUPREME COURT
STATE OF LOUISIANA
______________________________________________
NO. 03-C-3521
_______________________________________________
ALBERT J. AVENAL, JR., ET AL., Plaintiffs
VERSUS
THE STATE OF LOUISIANA AND THE,
DEPARTMENT OF NATURAL RESOURCES, Defendants
_______________________________________________________
ON WRIT OF REVIEW TO THE COURT OF APPEAL, FOURTH CIRCUIT, FOLLOWING APPEAL
FROM THE FINAL JUDGMENT OF THE 25 TH JDC FOR THE PARISH OF PLAQUEMINES, THE
HONORABLE WILLIAM A. ROE PRESIDING
BRIEF ON BEHALF OF RELATOR/DEFENDANT, THE STATE OF LOUISIANA, THROUGH THE
DEPARTMENT OF NATURAL RESOURCES
________________________________________________________
ORIGINAL BRIEF IN SUPPORT OF WRIT APPLICATION
RELATED TO THE MERITS
_______________________________________________________
CHARLES C. FOTI, JR.
Attorney General
ANDREW C. WILSON, Lead Counsel - #1162
DAVID L. CARRIGEE - #3892
JEDD S. MALISH - #23846
Special Assistants Attorney General
20th Floor, Energy Center
1100 Poydras Street
New Orleans, Louisiana 70163-2000
Telephone: (504) 569-2900
and
BURKE & MAYER, of Counsel
Attorneys for Relator/Defendant, The State of Louisiana through
the Department of Natural Resources

n. 2.
1
2
INTRODUCTION
This case has created a constitutional catastrophe for the State’s coastline. The Plaintiffs’ claims based upon
constitutional theories of inverse condemnation and due process have now collided head on with the State’s public
trust obligation to save the coast through the use of the State’s police power, causing a virtual “train wreck” under
the Louisiana Constitution. This case boils down to the major, fundamental issue of whether the State has any control
over its own coast and waters, or whether private individuals such as oyster leaseholders who seek to use the State
resources for profit actually control the State’s coast and its destiny. No other state allows private individuals to sue
a State and recover billions of dollars for “restoration” of a state’s own water bottoms.
To put it bluntly, the rulings below were simply wrong. These rulings run contrary to precedent and are
completely inconsistent with federal decisions on the same issues previously followed by this State’s courts. This
is not to mention the fact that these rulings represent not only a ridiculous expense for the State’s taxpayers but
threaten to derail the State’s valiant efforts to save its own coast. Rulings such as these will jeopardize all federal
funding for coastal restoration in Louisiana. No one outside the State will understand why individuals who have a
limited use of the State’s water bottoms for oyster cultivation can bankrupt the State and its coastal restoration
programs, particularly where there had been a complete failure of proof on the issues of causation and damages.
This situation cries out for this Court’s intervention, not only for the claims in this litigation or other similar
pending oyster lease cases against the State, but for all other claims related to fishing interests and other coastal users
of State waters and water bottoms. These complex legal issues are compounded by the scientific and technical data
that raise questions as to how every oyster lease in Breton Sound could possibly have been permanently destroyed
as the Plaintiffs allege, when records show that oyster production is still occurring in Breton Sound.
Despite this obviously complex legal, social and scientific controversy, the Plaintiffs contend that there is
“nothing remarkable about this case,” 1 notwithstanding its judgment value in excess of $1 billion and the Fourth
Circuit’s entirely novel application of “takings law,” different from all of the other State appellate courts, the federal
courts and most importantly this Honorable Court. They claim that if this were an individual oyster damage award
rather than a class action, “this court would not hesitate to deny writs.” 2 In reality, where a handful of oyster
leaseholders previously engineered a nearly identical award for restoration of the State’s own water bottoms, this
Court heeded the dissent of now retired Fourth Circuit Judge Moon Landrieu who said such an award “shocks the
conscience.” Not surprisingly, Fourth Circuit Judge Terry Love repeated Judge Landrieu’s words in her dissent to
the narrow (3-2) decision in this matter. Even the Plaintiffs themselves have acknowledged the utter absurdity of
their aberrational award where they openly admit that “the case must ultimately be resolved below the judgment
Plaintiffs’/Respondents’ Opposition to DNR’s Application for Supervisory Writs at p. 4.
Plaintiffs’/Respondents’ Opposition to DNR’s Application for Supervisory Writs at p. 1,
i

level.” 3 This admission is not surprising given the fact that several of the representative Plaintiffs, if not most of the
class members, received an award per acre which exceeds their entire annual net sales for all of their leases in many
of the years preceding the project!
But aside from the property and constitutional issues and the absurdity of the award is the fact that these
claims should never have proceeded to trial. Had the Trial Court simply recognized that these claims are prescribed,
or, had recognized the effect of the indemnity and “hold harmless” clauses in the Plaintiffs’ oyster leases as well as
the statutes that require that the State be held harmless, or, had it recognized the preclusive effect of the prior federal
judgment dismissing these same Plaintiffs’ inverse condemnation claims based on the same theories, there would
have been no case for trial.
For these reasons, as well as the multiple reasons set forth in greater detail within this brief, this case should
be dismissed in its entirety, or at a minimum, remanded to be decided in accordance with the correct applicable law
which, for unknown reasons, was simply ignored and never applied here throughout the long history of this case.
3
Plaintiffs’/Respondents’ Opposition to DNR’s Application for Supervisory Writs at p. 4.
ii

TABLE OF CONTENTS
Introduction ............................................................................... i
Table of Contents .......................................................................... iii
Index of Authorities Cited ................................................................... iv
Statement of the Case .......................................................................1
Specifications of Errors .....................................................................21
Argument ................................................................................22
Verification .............................................................................. 45
iii

State Cases
INDEX OF AUTHORITIES
Andrepont v. Andrepont, 97-1643 (La. App. 3 rd Cir. 4/1/98), 711 So.2d 759 ............................ 33
Avenal v. State, 2000-1077, 767 So.2d 41 (La. 6/23/00). ...........................................16
Avenal v. State, 99-0127 (La. App. 4 th Cir. 03/03/99), 757 So.2d 1 ...................................15
Avenal v. State of Louisiana, 2001-0843 (La. App. 4 th Cir. 10/15/03), 858 So.2d 697. .... 18,19, 23, 24, 27, 30,
32, 36, 38, 40, 42
Bacon v. Cunningham, 99-135 (La. App. 5 Cir. 5/19/99), 735 So.2d 931 .............................. 29
Bass v. State, 34 La. Ann. 494, 496-497 (La. 1882). ..............................................34
Board of Comm'rs v. Department of Natural Resources, 496 So. 2d 281 (La. 1986) .....................34
Bowditch v. Boston, 101 U.S. 16, 25 L.Ed. 980 (1879) ............................................33
Bristo vs. Christine Oil & Gas Company,139 La. 312, 71 So. 521 (1916). ............................. 23
City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1969) ......................34
City of Shreveport v. Standard Printing Co. of Shreveport, 427 So.2d 1304 (La. App. 2 nd Cir. 1983), writ denied,
434 So.2d 1106 (La. 1983). ............................................................... 37, 38
Columbia Gulf Transmission Co. v. Hoyt, 215 So.2d 114 (La. 1968) .................................26
Constant, 369 So.2d at 706. ............................................................... 36, 37
Crescent City L.S.L. & S.H. Co. v. New Orleans, 33 La. Ann. 934, 939 (La. 1881). ......................34
Edwards v. Daugherty, 97-1542 (La. App. 3 Cir. 3/10/99), 729 So.2d 1112. ............................ 29
Estate of Patout v. City of New Iberia, 98-0961 (La. 7/7/99), 738 So.2d 544. ........................... 27
Evans v. Nogues, 99-2761 (La.App. 4 Cir. 9/13/00), 775 So.2d 471 ..................................29
Exxon Pipeline Co. v. Hill, 00-2535 (La. 05/15/01), 788 So.2d 1154. .................................35
Franklin Southland Printing Co., Inc. v. New Orleans Aviation Bd., 99-60 (La. App. 5 th Cir. 7/27/99), 739 So.2d
977 ..................................................................................25, 26
Holland v. State, DOTD, 554 So.2d 727 (La. App. 2 nd Cir. 1989). ....................................25
Holt v. Bethany Land Co., 36, 888 (La. App. 2 nd Cir. 04/09/03), 843 So.2d 606. ........................31
Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 78 L. Ed. 413, 54 S. Ct. 231 (1934) ............. 34
Huckabay v. Red River Waterway Com’n, 27,113 (La. App. 2 nd Cir. 10/12/95), 663 So.2d 414, 420, writ denied,
95-3007 (La. 3/8/96), 679 So.2d 928 ...........................................................25
I. Q. Investments v. Cartozzo, 98-331 (La. App. 5 th Cir. 9/29/98), 719 So.2d 1155, 1157. ................. 29
Inabnet v. Exxon Corp., 93-0681 (La. 9/6/94) 642 So.2d 1243. .......................18, 20, 24, 25, 36, 37
Jurisich v. Jenkins, 99-0076 (La. 10/19/99), 749 So.2d 597. ...............................19, 21, 27, 28
LeBlanc v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d 766. ...................................... 40
Louisiana Seafood Management v. Louisiana Wildlife and Fisheries Commission, 97-1367 (La. 5/19/98), 715
So.2d 387. ......................................................................15, 22, 30, 31
Lyman v. Town of Sunset, 500 So.2d 390 (La. 1990). .............................................27
iv

Mitchell v. St. Paul Fire & Marine Ins. Co., 98-1924 (La. App. 4 th Cir. 1/27/99), 727 So.2d 1245. ..........29
Monroe Development Agency v. Succession of Kusin, 398 So.2d 1159 (La. App. 2 nd Cir. 1981) ...........37
Naquin v. State, DOTD, 604 So.2d 62 (La. App. 1 st Cir. 1992) ...................................... 26
Pace v. Chevron, U.S.A., Inc., 579 So.2d 494 (La. App. 4 th Cir. 1991). ................................23
Packard’s Western Store v. State, DOTD, 618 So.2d 1166, 1171-1172 (La. App. 2 nd Cir. 1993), writ denied, 629
So.2d 345 (La. 1993). ......................................................................26
Petition of Sewerage and Water Board of New Orleans, 278 So.2d 81 (La. 1983) .......................29
Polk v. Edwards, 626 So.2d 1128 (La. 1993). .................................................... 25
Reeder v. Succession of Palmer, 623 So.2d 1268 (La. 1993). ....................................15, 33
Reymond v. State, Dept. of Highways, 231 So.2d 375 (1970). ....................................... 32
Rochon v. Whitley, 96-0835(La. App. 1 st Cir. 2/14/97), 691 So.2d 189 ................................33
Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La. 1984).
......................................................................................... 34
Skansi Oyster Corp. v. Louisiana Land & Exploration Co., 97-1888 (La. App. 4 th Cir. 3/11/98), 709 So.2d 329
......................................................................................... 32
Soma Enterprises v. State, DOTD, 521 So.2d 829 (La. App. 2 nd Cir. 1988) ............................. 26
State, Department of Transportation and Development v. Chambers Investment Co., Inc., 595 So.2d 598, 603
(La. 1992). ............................................................................ 22, 26
State, DOTD v. Dietrich, 555 So.2d 1355 (La. 1990). .......................................... 35, 40
State, DOTD v. Griffith, 585 So.2d 629 (La. App. 2nd Cir. 1991). ...................................37
State, DOTD v. Lobel, 571 So.2d 742 (La. App. 2 nd Cir. 1990) ...................................... 37
Stewart v. Carter, 33-203 (La. App. 2 nd Cir. 5/10/00), 759 So.2d 297 .................................29
Stone v. Entergy Services, Inc., 99-0236 (La. App. 4 th Cir. 8/18/99), 744 So.2d 144, writ denied, 99-2719 (La.
11/24/99), 750 So.2d 989 ....................................................................33
Trich v. Crescent Turn Key & Engineering, L.L.C., 99-310(La. App. 5 th Cir. 9/28/99), 744 So.2d 689
......................................................................................... 33
Tsatsoulis v. City of New Orleans, 99-2544 (La. App. 4 Cir. 8/30/00), 769 So.2d 137 ....................29
Tye v. Co-Mar Offshore Operators, Inc., 95-0094 (La. App. 1 st Cir. 10/6/95), 669 So.2d 438. .............. 33
Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La. 12/12/03) 2003 La. App. LEXIS 3452. ........30
Waffle House, Inc. v. Corporate Properties, Ltd., 99-2906 (La. App. 1 Cir. 2/16/01) .....................29
West Jefferson Levee District v. Coast Quality Construction Corp., 93-1718 (La. 5/23/94), 640 So.2d 1258. .. 34
Williams v. Insurance Company of North America, 96-0847 (La. App. 4 th Cir. 3/19/97), 692 So.2d 654 ..... 33
Federal Cases
Avenal v. United States, 33 Fed. Cl. 778 (1995); aff’d., 100 F.3d 933 (1996). ......................1, 5, 14
Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 (9 th Cir. 2003). ...................................42
v

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); State v. Foret, 628 So.2d
1116 (La. 1993). .....................................................................19, 21, 42
Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 17 S. Ct. 718, 41 L. Ed. 1165 (1897) ............34
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, n. 16 (1992). ...............................33
Manigault v. Springs, 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274 (1905) .............................. 34
Miller v. Schoene,276 U.S. 272 (1928). ........................................................33
Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S. Ct. 2646 (1978). ... 15, 16, 30, 33
Stone v. State of Mississippi, 101 U.S. (11 Otto) 814, 25 L. Ed. 1079 (1879) ........................... 34
State Constitution
La. Const. art. IX, Sec. 3 (2004). .............................................................. 23
La. Const. art. I, sec. 4 ......................................................................25
La. Const. art. VII, sec. 14 (2004) ............................................................. 23
La. Const. art. IX, Sec. I ....................................................................34
State Statutes
La. C.C.P. art. I, Sec. 4 (2003). ............................................................12, 15
La. C.C.P. art. 2674 (2003) .................................................................. 23
La. C.C.P. art. 966(D) ...................................................................17, 18
La. C.C.P. art. 5053 (1986). .................................................................. 29
La. R.S. 41:1221. .......................................................................... 22
La. R.S. 49:214.5 ......................................................................28, 29
La. R.S. 49:700.10 ......................................................................... 11
La. R.S. 56:306.5 (2000) .....................................................................3
La. R.S. 56:4. ............................................................................. 22
La. R.S. 56:421 ........................................................................... 22
La. R.S. 56:423(A). ......................................................................... 2
La. R.S. 56:423(B)(1) ................................................................ 22, 23, 25
La. R.S. 56:423-432.1 (2003) ................................................................. 2
La. R.S. 56:424 ........................................................................... 22
La. R.S. 56:425 ........................................................................... 23
La. R.S. 56:427.1. ......................................................................... 28
La. R.S. 56:428(A) .......................................................................... 2
La. R.S. 56:433 (1993) .......................................................................2
La. R.S. 56:434 (1991) .......................................................................2
La. R.S. 56:434 (B)(1) (1991) ................................................................. 3
vi

La. R.S. 9:1101. ........................................................................... 23
La. R.S. 9:5624 .................................................................. 19, 21, 26, 27
Acts
Act No. 1295 (2003). .......................................................................35
Act No. 583 (2003). ........................................................................35
State Rules
LAC 76:I.319 (2003) ........................................................................3
Other Authorities
Vujunovich, The Yugoslavs in Louisiana, p. 99, 101 (1974) ........................................ 5
Kennedy, Newell, Eble, The Eastern Oyster, pp. 484-485 (1996) ..................................... 5
vii

I. FACTS
4
STATEMENT OF THE CASE
The Caernarvon freshwater diversion project (“Caernarvon”) diverts freshwater and its accompanying
nutrients and sediments from the Mississippi River to coastal bays and marshes in the Breton Sound estuary primarily
for shellfish, finfish and wildlife enhancement. Caernarvon is located at the northernmost end of the Breton Sound
estuary which is bordered by the Mississippi River Gulf Outlet (“MRGO”) to the east and the levees of the
Mississippi River to the west. The Breton Sound estuary remains exposed and subject to wave action, tidal
conditions, storms and hurricanes approaching from the Gulf of Mexico into Breton Sound, and is subject to
numerous sources of freshwater aside from Caernarvon, particularly in high river conditions. Breton Sound is
therefore a dynamic ecosystem encompassing an area of over 1,000 square miles, subject to an entire spectrum of
natural and man-made conditions of which Caernarvon is just one small factor. 4
Caernarvon became operational in 1991 and has been operated by the Louisiana Department of Natural
Resources (“LDNR”) through the present, having helped to achieve significant benefits as intended. Caernarvon was
primarily intended to reverse the long recognized deterioration of the marshes below New Orleans which stems from
factors such as subsidence, erosion, and saltwater intrusion. These conditions resulted primarily from the
construction and enhancement of the extensive Mississippi River levee system following the disastrous 1927 flood.
While the enhanced levee system prevents floods, the system also causes negative effects by preventing the seasonal
overflow of the Mississippi River which had formerly nourished the Mississippi River Delta area, including the
Breton Sound estuary with sediment, freshwater and nutrients for plants, which had historically resulted in the
creation of land. The federal levee system eliminated this beneficial function of the Mississippi River for the most
part, except in conditions of extreme high water levels in the river when the river could overflow at certain times and
places. This in turn, caused or created periodic and isolated “freshets”, the sudden infusion of freshwater into an
estuary or other confined water body caused by river overflow, heavy rainfall, run-off and/or flooding. Absent the
introduction of freshwater, the Mississippi Delta has continued to disappear at the rate of over 25 square miles per
year, replaced by saltwater which continues to intrude and encroach closer and closer to the ever receding shoreline.
This history leading up to and surrounding Caernarvon is reiterated in several opinions
of the Courts that have addressed the Plaintiffs’ claims. Avenal v. United States, 33 Fed. Cl. 778 (1995);
aff’d., 100 F.3d 933 (1996); Avenal v. State, Dept. of Natural Resources, 99-0127 (La. App. 4 th Cir.
03/15/00); Avenal v. State, Dept. of Natural Resources,2001-0843 (La. App. 4 th Cir. 10/15/03) 898 So.2d
697, reh. denied, 2003 La.. App. LEXIS 3261 (La. App. 4 th Cir. 11/21/03), writ granted, 2003-3521 (La.
1/30/04), 864 So.2d 638; and, is set out in greater detail in the report of Coastal Environments, Inc.,
Exhibit A in folder for exhibits 5 of 7. This report was submitted in support of the State’s Motion for
Summary Judgment on Takings, R. 960.
1

5
6
7
8
9
10
La. R.S. 56:433 (1993), La. R.S. 56:434 (1991).
R 2293; U.S. Army Corps of Engineers New Orleans District Press Release (3/11/98).
La. R.S. 56:423-432.1 (2003).
La. R.S. 56:428(A).
La. R.S. 56:423(A).
The State’s Oyster Leasing System
One of, if not the, primary, intended beneficiaries of the Caernarvon project was, is and remains, the oyster
industry. After the completion of the federal levee construction and enhancement program which began in 1927,
oyster production in Louisiana waters, particularly in Breton Sound, began to deteriorate. By 1990, just prior to the
operational phase of Caernarvon in 1991, oyster production in Breton Sound had been reduced to a small fraction
of its peak in the 1920's and 1930's. This includes a decline in production on the State’s public seed grounds, an area
where properly licensed oyster harvesters can take oysters for free from Labor Day to April 1 st of each harvesting
year, pursuant to the program administered by the Louisiana Department of Wildlife & Fisheries (“LDWF”). 5 Before
Caernarvon, this common resource was nearly wiped out by predators and disease which accompanied the saltwater
intrusion allowed by the enhanced levee system. Following Caernarvon, production on the public seed grounds has
increased by over three orders of magnitude, an enormous benefit to the oyster industry. 6
The public seed grounds serve three critical needs for the oyster industry. First, they bear the name “seed
grounds” because they provide young “seed” oysters free of charge for use by oyster harvesters to create new oyster
beds on water bottoms they lease from the State for $2 per acre, per year from the State pursuant to the State’s oyster
leasing program. This program is also administered by LDWF pursuant to the oyster leasing statutes. 7 At this rental
rate the system is obviously not being run for profit. To obtain a lease an oyster fisherman need only apply for a
lease of a particular area, arrange to have the area surveyed and then pay the application and rental fees. If the lease
application is approved, leases generally issue for terms of 15 years on lease forms containing terms consistent with
the oyster lease statutes. 8 The oyster harvester then has the exclusive use of the water bottoms for oyster cultivation
purposes, but the State still remains the owner of the water bottoms and the oysters. 9 The leaseholder can unilaterally
terminate his lease at any time by notice or by simply ceasing rental payments. 10
The second purpose of the public seed grounds is to provide substrate to which oysters can attach. Oyster
harvesters who hold private leases can go to the public seed grounds and, at no cost, take not only seed oysters but
take “cultch,” the substrate made up of oyster shells to which oysters cling to form clusters and colonies and
eventually reefs. This free cultch allows oyster fishermen to avoid the cost of laying artificial cultch or substrate
made of limestone or construction aggregates on their leases. The third major purpose of the seed grounds is that
If LDWF unilaterally terminates a lease and takes it back to create new seed grounds,
LDWF must compensate the leaseholder but only for “oysters, seed oysters, shells and other
improvements. La. R.S. 56:434 (B) (1991).
2

oyster harvesters can also take free market size oysters during the months from Labor Day to April 1 st of each year
(the so-called “R” months). Any licensed harvester can take oysters from this resource during this time period for
sale directly to seafood dealers or place them on their private leases to create new oyster beds. 11
The State’s oyster seed grounds therefore provide a three-fold benefit to the oyster industry in the form of:
(1) young seed oysters, which can be used to create oyster beds on private leases; (2) cultch for establishing new
reefs; and, (3) larger market-sized oysters, which can be sold directly to licensed seafood dealers. Again, this is all
for free.
11
12
13
14
15
16
17
La. R.S. 56:433(B)(1) (1993).
LAC 51:IX. 139, 333,345 (2002).
Exhibit D 4-8.
Id.
La. R.S. 56:306.5 (2000).
Seafood Dealers and Pollution
Seafood dealers play a significant role in the oyster industry and not just by purchasing oysters. Seafood
dealers indirectly keep track of sales through records they are required to maintain by the Louisiana Department of
Health & Hospitals’ (“LDHH”) Office of Public Health in the event of an isolated illness or outbreaks of multiple
cases of illness or disease from oysters taken from polluted areas. 12 LDHH takes periodic water samples to measure
fecal coliform levels and issues seasonal “closure” maps rendering certain oyster areas off-limits for harvesting
purposes due to disease concerns. While the closure line and areas within those lines moved ever so slightly on each
season, 13 much of the northern and western areas of Breton Sound already had been closed to oyster harvesting due
to pollution long before 1991, when Caernarvon became operational. 14
These LDHH records generated and kept by seafood dealers show oyster production not only from certain
areas in the public seed grounds, but also from specific leases. The records when tabulated can also be used to
determine oyster production over the years from specific leases or areas within the public seed grounds. LDWF also
tracks production from public and private leasing areas, but only in terms of larger geographic areas, not by specific
leases. 15 Any detailed information as to production by specific harvester, leaseholder or lease is kept secret and
confidential by specific statute and regulation, 16 and, therefore, absent release of this information by oyster
leaseholders or seafood dealers it is impossible to determine production levels.
LDNR repeatedly attempted to obtain production information from the Plaintiffs, eventually having to file
motions to compel, 17 all of which proved futile. Eventually, LDNR attempted to obtain production information via
subpoena but the Trial Court quashed the subpoenas, or would not allow them to issue. Writ applications were filed
La. R.S. 56:306.5 (2000), LAC 76:I.319 (2003).
R 372, 507, 918, 1618; Supplemental Volumes: 187, 384.
3

seeking appellate relief on at least two occasions but these were denied as well. 18 Consequently, the production
information for the most part remained undisclosed and under the control of the Plaintiffs and the seafood dealers,
although some limited records were obtained. These limited records showed that before the Caernarvon project,
oyster production from private leases had significantly diminished to a small fraction of its prior production. This
was because prior to Caernarvon’s initial test runs in August, 1991, oyster production in nearly all of Breton Sound
had been wiped out by a freshet that had occurred earlier that year. 19 After Caernarvon had gone on-line, production
eventually returned with the Plaintiffs records showing significant sales through 1999. 20
18
CA No. 99-0319 (La. App. 4 th Cir. 12/15/99); writ denied, CA No. 01-C-0165 (La.
2/9/01); CA No. 98-C-2764 (La. App. 4 th Cir. 11/25/98); writ denied, 98-CC-3164 (La. 1/15/99).
19
20
21
22
Why Did Oyster Production In Breton Sound Increase After Caernarvon?
Perhaps the greatest impediments to successful oyster cultivation and production under otherwise favorable
salinity and bottoms conditions are disease and predation. Once larval oysters or “spat”are created through the
reproductive process, the spat are migratory and move with the ebb and flow of the tides and the currents of the water
body within which they spawn. They are subject to significant mortality rates until they “set” or attach themselves
to a hard surface such as cultch or other oysters. As they grow, they still remain vulnerable to predators from the
sea, primarily associated with more saline areas with salinity concentrations in excess of 15 parts per thousand (ppt)
and above, a condition where oysters would thrive but for predators. These saltwater predators include black
drumfish 21 and other bottoms dwellers such as stone crabs, starfish, and, most significantly, gastropods, i.e., snails,
conchs and/or oyster drills. These predators can decimate oyster populations. The latter can rapidly reproduce in
higher salinity conditions and infest and destroy entire oyster reefs and beds. 22 At times, snails, conchs and drills
have infested the public seed grounds due to high salinity conditions, destroying that common resource to the
R. 2771.
D 10, 11, 50, 79, 80, 81, 82, 83, 84.
R 2634-2635.
R. 2634-2635.
4

detriment of the oyster industry. 23 A related adverse affect associated with saltwater is the increase in parasites and
diseases, including perkinsus marinus, a protozoan parasite the oyster industry refers to as “dermo”. 24
When the first Yugoslavian oyster fishermen from the Adriatic area came to Louisiana in the 1800's, they
noted that huge “wild” oyster reefs existed along the then unleveed Mississippi River, where the freshwater from the
river mixed with the saltwater from the Gulf of Mexico, creating an ideal salinity regime unfavorable for saltwater
predators and disease, but rich in nutrients. 25 Although oysters would not grow in the purely freshwater of the
Mississippi River, since oysters cannot endure long periods of freshwater or salinity conditions below 5ppt, oysters
could thrive to produce massive populations naturally in the mixing areas of the south Louisiana estuaries,
particularly those found where the Mississippi River meets the Gulf.
Over the years, the oyster industry and gulf coast scientists, particularly those from Louisiana, have reached
the conclusion that oysters will thrive in Louisiana waters at salinity conditions between 5 - 15 ppt. 26 Also of
significance is that the higher gulf water temperature accelerates the metabolism of oysters and allows oysters to
reach market size as early as 18 months after spat set and usually no longer than 3 years, much sooner than in
northern climates. 27 This overall situation makes Louisiana one of the top oyster producing states in the country. 28
23
24
25
26
27
28
29
R. 2634-2636.
R 2634-2635.
Vujunovich, The Yugoslavs in Louisiana, p. 99, 101 (1974).
R. 2961-2962.
History Of Freshwater Diversion In Louisiana
Given this factual and scientific backdrop, it is not surprising that not long after 1927, the oyster industry
recognized that oyster harvesting areas along the Mississippi River would continue to suffer adverse affects from
the levee system from saltwater intrusion, resulting predators and disease unless the beneficial effects of the
Mississippi River somehow returned. Governmental officials familiar with both the oyster industry and the situation
recognized this need to reverse the adverse effects of the Mississippi River levee system, particularly saltwater
intrusion, by somehow reintroducing freshwater from the river to the affected areas. 29
In subsequent years, State and federal officials continued to meet among themselves and with Parish and
oyster industry officials to discuss the proposed freshwater diversion structures. All the while, saltwater from the
Gulf of Mexico continued to intrude into Breton Sound and other coastal areas. In response, as land continued to
Kennedy, Newell, Eble, The Eastern Oyster, pp. 484-485 (1996).
Vujunovich, The Yugoslavs in Louisiana, p. 99 (1974).
Avenal v. United States, 33 Fed. Cl. 778 (1995); aff’d., 100 F.3d 933 (1996); Avenal v.
State, Dept. of Natural Resources, 99-0127 (La. App. 4 th Cir. 03/15/00); Avenal v. State, Dept. of Natural
Resources,2001-0843 (La. App. 4 th Cir. 10/15/03) 898 So.2d 697, reh. denied, 2003 La.. App. LEXIS
3261 (La. App. 4 th Cir. 11/21/03), writ granted, 2003-3521 (La. 1/30/04), 864 So.2d 638; Report of
Coastal Environments, Inc., Exhibit A in folder for Exhibits 5 of 7. This report was submitted in support
of the State’s Motion for Summary Judgment on Takings, R. 960.
5

erode and disappear further and further inshore and favorable oyster cultivation areas moved further inshore closer
to pollution sources, the band of unpolluted waters favorable for oyster cultivation became narrower and narrower.
By the early 1980's, the narrow band of suitable areas for oyster cultivation had encroached well into historically
fresh areas in the northern part of Breton Sound, just ahead of the advancing saltwater.
At the same time, the public seed grounds had essentially become a useless resource for the oyster industry
due to saltwater intrusion and its accompanying invasion of oyster drills, snails and/or conchs. Long before
Caernarvon, the State built and began to operate a significant freshwater diversion structure at Bayou Lamoque along
the west side of Breton Sound. The structure allowed freshwater from the east bank of the Mississippi River to flow
into the west side of Breton Sound in an effort to save the public seed grounds. The structure had little, if any, effect
on the private oyster leasing areas landward of the public seed grounds. Something much more massive was needed
if the private leasing areas were to be saved or if the public seed ground areas were to be made truly productive as
a universal resource for the entire oyster industry to obtain seed, cultch and marketable oysters.
This urgent need resulted in the Corps’ issuance of the 1984 Environmental Impact Statement (“EIS”) three
massive freshwater diversion structures to be constructed in southeast Louisiana. One was to be located near the
Bonnet Carre Spillway so as to freshen Lake Ponchartrain and the oyster cultivation areas where the Lake flows into
the Biloxi marsh area. Another was to be located at the head of the Barataria estuary on the west bank of the
Mississippi River at Davis Pond near Luling, Louisiana; and, the third, the Caernarvon Project, was to be located at
the head of the Breton Sound estuary. Caernarvon was intended to freshen the northern part of the Breton Sound
estuary, not the entire basin as its effects would be quickly diluted by the existing saltwater. Thus its major
freshening efforts were limited to a target area bounded by a 5 part per thousand (5 ppt) salinity concentration line
which would be monitored by data collection platform located along or on that line. 30 This area was already polluted
by the 1980's according to DHH records. 31 Consequently, there was no documentation of significant oyster
production, if any, from this area by the 1980's, and certainly no documentation at the trial of this matter.
It should also be noted that in 1989, in anticipation of the operation of Caernarvon, LDWF inserted a clause
in its lease form, requiring that the State be indemnified and held harmless for any claims related to coastal
restoration. All leases in 1989 to 1995 contain the same clause while leases after 1995 to the present contain an even
more detailed indemnity clause. These clauses serve a two-fold purpose of additional notice of possible effects from
such projects but also allow for the State to be indemnified. Nearly all of the leases in this case contain such a clause.
30
31
D-64, D-73, D-74.
D-4.
The Caernarvon Project Arrives
Caernarvon was completed in February 1991. Caernarvon operates based on gravity and hydrostatic pressure
from the river and consists of five culverts equipped with gates that can be raised or lowered to regulate the rate of
6

flow from the river. Caernarvon was initially tested from an operational standpoint in August 1991, but could not
be operated in accordance with its intended flow regime at that time since the entire Breton Sound area had been
heavily impacted in early 1991 by the aforementioned heavy rains, resulting run-off and the high river conditions
which had overflowed the Mississippi River’s east bank directly into Breton Sound at the Bohemia Spillway. These
adverse freshwater affects had created a freshet which had decimated the oyster population in Breton Sound to the
point where by August of 1991, somewhere between 75-100% of the oysters in Breton Sound had been wiped out
by freshwater effects. 32 This prompted a Corps’ project engineer, Dom Elgazabel, to issue a letter to LDNR’s Coastal
Restoration Administration, Dr. Bill Good, indicating that the intended flow of 5,000 cubic feet per second (“cfs”)
at that time would only cause further adverse effects on the oyster population in Breton Sound. 33 The Caernarvon
project’s flow regime was therefore not implemented in 1991. Nevertheless, this did not stop the oyster industry
from claiming that the Caernarvon project had destroyed oysters in Breton Sound in 1991; the representative
Plaintiffs in this matter claim that their damages began as soon as Caernarvon became operational in 1991. 34 One
of the original named Plaintiffs, Donald Campo, claimed that his leases were damaged even before the structure even
became operational. 35
In 1992, in the colder months when oysters are more capable of withstanding reduced salinities due to a
slower metabolism, LDNR, at the recommendation of the Caernarvon Interagency Advisory Committee (“CIAC”),
the advisory group of agency representatives and “stakeholders” who determine the flow rate of Caernarvon, began
operating the structure in accordance with the recommended flow regime. This action appeared to achieve some of
the intended effects of the project but not all. As freshwater diversion was and is a new and innovative concept, there
32
33
34
35
D-60.
P-110.
R. 2861.
See, e.g., An Investigation of the Complaint of Donald Campo, (State’s Proffer No. D-
65, excluded on grounds of relevancy).
7

was still an open question as to exactly what could be achieved with the Caernarvon project. Various models,
monitoring efforts and scientific data were all incomplete. As a result, the CIAC eventually voted to increase the
flows of the Caernarvon project in 1993 significantly, resulting in greater freshening in the Breton Sound basin.
While this greatly improved oyster production on the public seed grounds, the oyster industry complained that there
were adverse affects on their oyster leases located landward or north of the public seed grounds and closer to the
structure. As a result, a group of oyster leaseholders filed the instant class action on behalf of all oyster leaseholders
in Breton Sound who believed that their oyster leases on State water bottoms were adversely affected by the
Caernarvon project.
Meanwhile, in 1996, the new Secretary of LDNR, Jack Caldwell, began to investigate the possibility of
reducing the flow regime for the Caernarvon project. By late 1996, the CIAC voted to cut back the flow rate to the
original flow regime, beginning in the early winter months of 1997. As the oysters’ life cycle in the warmer waters
in the Gulf of Mexico allows oysters to reach market size within 18 months to 3 years, both the State and the oyster
industry began to see evidence of a rebound of the oyster population in Breton Sound as early as late 1998 which
continued well into 2000 as the operational or flow regime for the Caernarvon structure remained relatively
unchanged. In fact, significant oyster production was occurring not only on the public seed grounds, which had
increased by three orders of magnitude, 36 but also on private oyster leasing areas on State water bottoms in Breton
Sound as well as evidenced by the Plaintiffs’ sales. 37
DNR continued to monitor the effects of the Caernarvon project throughout this period of time from 1996
through the present, keeping the annual average salinity within the 5ppt target area or isohaline (area of equal salinity
concentration). This target line was closely monitored by permanently placed data collection platforms (“DCP’s”)
which generated constant salinity data that was relayed in real time via satellite in some cases or at other stations by
periodically gathered hard copies of data. These data allowed DNR to determine when to cut back the flow so as to
keep the project impacts inside or at the target 5 ppt salinity line from 1997 through the present. 38 These scientific
data also show that the majority of the leases which are the subject of this class action lie in a band of ideal salinity
conditions of between 5-15 ppt located outside or seaward of the project’s 5ppt target line but inside or landward
36
37
38
R. 2990.
D-79, D-81, D-82, D-83.
D-64, D-73, D-74.
8

of the public seed grounds. 39 Limited records obtained from seafood dealers show that leases in this band were and
are still producing significant amounts of oysters, although the Plaintiffs still allege they are permanently destroyed. 40
39
40
D-64.
As will be more fully shown below, the Trial Court quashed subpoenas to seafood
dealers which would have obtained more records showing significant oyster production. Thus DNR’s
evidence at trial was severely curtailed. Yet, DNR was still able to show that even some of the
Plaintiffs’ representative leases were still producing oysters after the Caernarvon project became
operational.
41
42
43
R 2661.
Exhibit P-47.
R 3957-3958.
Davis Pond
During the pendency of this litigation, the second, much larger, freshwater diversion structure was designed,
funded and constructed near Luling, Louisiana at Davis Pond. In anticipation of the operational date of the Davis
Pond project in 2002, LDNR’s Secretary Jack Caldwell convened a “workshop” in 1996 soon after his appointment.
The purpose of the workshop was to bring together a broad spectrum of interests to determine a uniform method for
evaluating relocation expenses for oyster leases existing or still being issued in the path of planned coastal restoration
projects.
This workshop chaired by Texas A & M - Galveston, Professor Dr. Sammy Ray, resulted in a report setting
forth a consensus that a “cultch currency matrix” could be utilized to evaluate oyster leases. 41 Indeed, LDWF had
been using a formula to address damage to the public seed grounds caused by third-parties for years. A memo issued
by LDWF indicated that for every acre of the public seed grounds in Breton Sound damaged by third-parties,
LDWF’s damage formula required that the damaging party apply cultch at the rate of 150 cubic yards per acre to
form a layer of cultch 3/4 of an inch thick to replace the damaged area of cultch. 42 The State, as owner of the water
bottom and its substrate, had the right to make this demand.
Subsequent to the workshop, meetings were held between members of the oyster industry and LDNR to
devise a similar formula for use in evaluating oyster leases within the 5ppt target area, which was to be freshened
in accordance with the Davis Pond planned operational regime, to produce benefits in the Barataria estuary and the
adjoining Barataria Bay, much like Caernarvon. Eventually, in order to avoid litigation over impacts from Davis
Pond, LDNR agreed to a compromise allowing for “relocation costs” based upon a greater amount of cultch in
“cultch currency” than the formula devised by LDWF. The compromise allowed for 187 cubic yards of cultch for
every acre of cultch or hard bottom on “active and productive” oyster leases located in the target or “project area”
for the Davis Pond project. 43 Further, oyster leases would only qualify for evaluation under a proposed “cultch
currency” formula if they agreed to undergo a side-scan sonar survey using an acoustic remote-sensing device to
determine the amount of cultch, reef or hard bottom in each lease which would form the basis for any cultch currency
9

evaluation. Of particular significance was the fact that they would be compensated only for cultch, reef or hard
bottom, not sand, mud, dirt or scattered shell. It should be noted that despite Plaintiffs’ contentions to the contrary
throughout this litigation which were accepted by the Courts below, the Plaintiffs’ own expert, Mike Voisin testified
that, “DNR actually didn’t develop the formula.” 44 Consequently, there was no legal or factual basis for saddling
LDNR with any version of the formula.
At trial and in post-trial memoranda and briefs, Plaintiffs have claimed that it was unfair for the Davis Pond
leaseholders to receive relocation costs, while they did not. Yet, prior to trial, the Plaintiffs in this matter rejected
out of hand a similar offer to compensate leaseholders in the Caernarvon project impact area. 45 Subsequently, at trial,
it became obvious that the Plaintiffs’ oyster leases in all probability would not qualify for a Davis Pond type program
anyway. In marked contrast to the leaseholders in the Davis Pond program, the Plaintiffs in this matter failed to
produce any production records which would show that their leases were “active and productive” before the
Caernarvon project became operational. Additionally, it was shown that their leases for the most part lie outside of
the “project area” for the Caernarvon project. Perhaps most importantly, the Plaintiffs also objected at trial to the
use of side-scan sonar survey information to evaluate their leases, thus making it impossible to use a “cultch
currency” formula to evaluate their leases. Finally, they demanded compensation for any bottom conditions,
including the State’s own unimproved mud.
Compounding these distinctions, at the trial, these Plaintiffs turned the “cultch currency” concept into a farce,
by simply quadrupling the 187 cu. yd. Davis Pond formula to 806 cubic yards per acre to supposedly produce a 6 inch
layer of cultch which they demanded for every inch of every acre of every lease in Breton Sound. The cost of
applying such a layer is $21,345 per acre which is what the jury eventually awarded for nearly every claimant within
the class area, resulting in an award in excess of $1,000,000,000 as the class action area encompasses well over
63,000 acres of oyster leases. Even lead Plaintiff, Albert Avenal, who purchased several of his leases on the same
day he filed suit and admitted that he had no idea whether any of his leases ever produced any oysters, 46 was allowed
to recover this same amount when the Fourth Circuit majority reversed the jury on this issue.
44
45
46
R. 2661.
R 3985-3986.
R. 3455-61.
10

In complete contrast to the approach taken by the Plaintiffs in this matter, the Davis Pond claimants, whose
leases were all “active and productive,” accepted the 187 cubic yard per acre proposal and did not demand
compensation for areas within their leases which did not consist of cultch, reef or hard bottom. In systematic fashion,
these claimants’ leases were evaluated by side-scan sonar surveys, the amount of cultch reef or hard bottom was
scientifically determined and a cultch currency and correlative dollar figure was then calculated. The Davis Pond
oyster leaseholders all accepted the proposed cash compensation. There was 100% participation, with all oyster
leaseholders agreeing to and accepting the side-scan sonar survey calculation of the value of their leases. Again in
contrast, the Plaintiffs’ had rejected a settlement offer for a similar approach prior to trial. 47
47
48
49
50
51
R. 3986.
La. R.S. 49:700.10, et seq.
R. 3947-3950; D-66.
R. 2658-2660; 2668-2670; 2681-2682; 2687-2688.
R 3980-3982.
The Oyster Lease Damage Evaluation Board
While this litigation remained pending and the Davis Pond negotiations continued, the oil and gas industry
had sought help from the Legislature to facilitate the implementation of oil and gas projects which were often being
held up by the presence of oyster leases or by potential liability and exposure associated with protracted oyster lease
litigation in local courts. The Legislature responded by enacting a novel statutory scheme creating the “Oyster Lease
Damage Evaluation Board” (“OLDEB”). 48 This Board was supposed to mediate disputes between the oil and gas
industry and individual oyster leaseholders to allow certain projects to go forward without delay and avoid possible
litigation, while at the same time compensate oyster leaseholders for any resulting damage. Without DNR’s
involvement, approval or consent, these two industries agreed by and between themselves for the limited purposes
of OLDEB to double the Davis Pond cultch currency formula to 403 cubic yards per acre resulting in a 3 inch layer
of cultch for any areas of any lease adversely affected by an oil and gas project. 49 The result of this calculation was
to then be reduced by any applicable offsetting factors related to adverse locations, adverse salinity conditions or less
suitable bottom conditions such as sand, mixed shell, or mud in which oysters would sink and die.
The OLDEB program has not worked as intended. The oyster industry has chosen instead to litigate in local
courts to seek awards such as in this matter rather than the lesser but still lucrative compensation available under the
OLDEB formula. Insofar as this litigation is concerned, the OLDEB formula has little significance other than the
fact that it exists, and, that it caused tremendous confusion at the trial since neither the jury nor the presiding judge
nor even the Plaintiffs’ expert witness, Mike Voisin, 50 knew which formula was being discussed at any given time.
Further, this was a formula that was negotiated by two industries based upon their own respective agencies and was
never approved by LDNR. 51 This failed formula has no necessary relationship whatsoever to the constitutional
11

standard for just compensation. More importantly, the amount the oyster industry might have received in
compensation for damages inflicted by the oil and gas industry does not bear any logical relationship or nexus to what
oyster growers should receive as a result of coastal restoration projects, particularly where the oyster industry is the
primary beneficiary.
Finally, the eventual formula which the Plaintiffs used at trial was essentially double the OLDEB formula,
four times the value of the Davis Pond formula, and over five times the value of the LDWF formula with no rational
basis given for why the other three earlier formulas (150,187 or 403 cu. yds. per acre) were all rejected by the
Plaintiffs. This error was extrapolated geometrically at trial when the ridiculous cultch currency calculation was
applied to every inch of every lease regardless of the history of the lease.
Neither the OLDEB formula nor the formula used by the Plaintiffs at trial have ever been used by the State
of Louisiana, any other State government or, for that matter, any other court in the country, federal or State. Yet,
on the basis of this abstract formula, the representative Plaintiffs and every member of the subject class were allowed
to recover $21,345 per acre of every oyster lease in Breton Sound, the cost to apply 806 cubic yards per acre to form
a layer of cultch 6 inches thick over every inch, of every acre, of every oyster lease in Breton Sound at the taxpayer’s
expense. This is a condition that never existed in Breton Sound and never will.
B. Proceedings Below
On March 29, 1994, a group of 106 oyster leaseholders filed this class action against LDNR and the State
on behalf of a class of oyster leaseholders who claimed that their leases “ have been damaged” by Caernarvon such
that they were “no longer capable of oyster growth and cultivation.” 52 On this basis, Plaintiffs claimed a “taking”
of their valuable property rights “without compensation” had occurred in violation of Article I, Section 4 of the
Louisiana Constitution of 1974 and the Fifth Amendment of the United States Constitution. No temporary taking
was ever alleged nor were any claims in tort under either negligence or strict liability/absolute liability theories ever
raised. 53
52
53
R. 1165-66.
In the remainder of the brief when “taking”is used, unless stated otherwise, this refers to
claims for both a “taking” and “damaged for a public purpose,” both of which are available under Art. I,
Sec. 4 (2003).
12

54
1/26/96).
55
1/26/96).
56
57
58
C.A. No. 95-C-0836 (La. App. 4 th Cir. 4/17/95); writ denied, C.A. No. 96-C-0198 (La.
C.A. No. 95-C-2421 (La. App. 4 th Cir. 11/3/95); writ denied, C.A. No. 96-C-0198 (La.
Reasons for Judgment on Certification, at p. 3. R. 780.
Id.
Class Certification
In response, LDNR filed various exceptions including one of improper venue based on the fact that all of
the State’s ministerial actions related to the project were conducted in Baton Rouge. This exception was denied by
the Trial Court and all relief was denied at the appellate levels. 54 Subsequently, Plaintiffs sought to certify a class.
To effectively oppose the certification, LDNR sought to obtain basic discovery from the Plaintiffs to determine which
oyster leases in Breton Sound were actually still producing oysters and should therefore be excluded from the class.
The Trial Court denied LDNR the right to obtain this basic discovery and LDNR’s Writ Applications for relief from
this ruling were denied at both levels. 55
On February 6, 1996, a hearing on the certification of the proposed class was held and on April 18, 1996,
the Trial Court certified a class generally, overruling LDNR’s objection that each lease must be individually analyzed
given the fact that there were several other potential causes of oyster mortality for leases located within the Breton
Sound area. The Trial Court concluded that “the value of oysters which may have died as a result of the freshwater
infusion from Caernarvon” was irrelevant. Simply because the Plaintiffs had alleged a taking of their leases, the
inquiry was over. The Trial Court stated that “regardless of how productive or unproductive they may have been
prior to the opening of the structure, or under production at all, the future productivity of those leases has been
destroyed by the Defendant’s actions.” 56 The Trial Court also ignored LDNR’s contentions that a taking is
determined by loss of value. In fact, the Trial Court stated that “these Plaintiffs have property rights regardless of
the issue of oyster production.” 57 This is a fundamental statement of the Plaintiffs’ limited but exclusive use of the
State’s water bottoms for oyster production defined and expressed by statute (La. R.S. 56:423) as will be shown infra.
Yet, the Trial Court also concluded that there would be varied, not uniform, impacts in Breton Sound, hardly suitable
for the eventual “one-size fits all” damage formula used at trial, “There is no question that the evidence presented
at the certification hearing indicates that some potential class members have leases which are arguably affected to
different degrees. Some have leases which may not be affected by the Caernarvon project at all.” 58
Reasons for Judgment on Certification, at p. 4.(emphasis added) R.781.
13

Despite these inconsistent findings, on August 16, 1996, the Trial Court issued a Judgment certifying a class
with the following definition,
59
C.A. No. 96-C-1453 (La. App. 4 th Cir. 6/20/96), writ denied, C.A. No. 96-CC-2080 (La.
8/27/96); C.A. No. 96-C-2457 (La. App. 4 th Cir. 11/14/96), writ granted related to stay, C.A. No. 96-CC-
2777 (La. 12/6/96), writ denied related to class certification, C.A. No. 97-CC-2747 (La. 1/16/98).
60
61
62
63
All persons, corporations, or other legal entities who have held, or who now have
ownership interests in oyster leases located in that part of Breton Sound west of the
“red line” that is, that boundary or line established by the Louisiana Department of
Wildlife and Fisheries designated in the western most limits of this State’s oyster
seed grounds; south of the Mississippi River Gulf Outlet and north of Kelly Gap.
This definition essentially incorporated nearly every oyster lease in Breton Sound, an area encompassing over 550
square miles. DNR appealed and applied for writs related to both the Reasons for Certification and the judgment of
certification, but relief was denied at both levels. 59
Avenal v. United States, 33 Fed. Cl. 778, 788-790 (1995).
Id.
Id. at 790-791. (emphasis added)
The Federal Litigation
Meanwhile, in the same Plaintiffs’ separate litigation filed in the United States Court of Federal Claims
against the United States and more particularly the United States Army Corps of Engineers, related to the same
Caernarvon project and the same “takings” theories, the government had filed a Motion for Summary Judgment
seeking a dismissal of all claims on a number of theories. The Court of Federal Claims concluded that the Plaintiffs
lacked a legally recognizable, compensable property interest in the artificially elevated salinity levels of Breton
Sound caused by the federal levee system. 60 In its ruling, the Court stated that, “salinity may be construed as a
benefit outside the property, like fish in the sea, and therefore compensation is not warranted.” 61 The Court also
ruled that the Plaintiffs’ claims were also eliminated by the hold harmless and indemnity clause in their leases. 62
Subsequently, on appeal, the Federal Circuit affirmed, but on different grounds, holding that the Plaintiffs did not
have, “ . . . the right to be free from the planned and announced efforts of the Government to act in ways that would
affect their uses of their after-acquired property interests . . . . “[P]laintiffs as a matter of law must be assumed to
have known that their rights to use the bottom-lands for oystering were subject to the inevitable changes that the
anticipated government program would bring about.” 63
Avenal v. United States, 100 F.3d. 933, 938 (Fed. Cir. 1996), reh. denied, 1997 U.S. App.
LEXIS 1891 Fed. Cir. (1/30/97).
14

64
65
66
67
68
C.A. No. 98-C-1661 (La. App. 7/2/98).
C.A. No. 99-C-0127 (La. App. 1/15/99).
Avenal v. State of Louisiana, 99-0127 (La. App. 4 th Cir. 03/03/99), 757 So.2d 1.
Reeder v. Succession of Palmer, 623 So.2d 1268, 1271 (La. 1993).
757 So.2d at 6.
69
Id., citing Louisiana Seafood Management v. Louisiana Wildlife and Fisheries
Commission, 97-1367 (La. 5/19/98); 715 So.2d 387, 393.
70
Id., citing Penn Central Transportation Company v. New York City, 438 U.S. 104, 98 S.
Ct. 2646 (1978).
71
757 So.2d at 7.
Back to State Court
Subsequently, the LDNR attempted to bring the Federal Circuit’s ruling before the Trial Court using a variety
of procedural vehicles, but only one was successful, albeit temporarily. This was an exception of no cause of action,
based upon the jurisprudential effect of the decision, which had concluded that these same Plaintiffs had no
constitutional cause of action for a “taking”. This exception was denied by the Trial Court as were LDNR’s Writ
Applications. 64 The State then moved for summary judgment on the doctrine of collateral estoppel since the
preclusive effect of a prior federal judgment is a matter of federal law. This motion was denied and the State applied
for writs. 65 This Writ was granted in a 3-2 decision, dismissing the entire case. 66
In the majority opinion by Judge Miriam Waltzer, the Court noted that federal law determined the preclusive
effect of a prior federal judgment, citing Louisiana Supreme Court precedent. 67 The Court then applied federal law
as to collateral estoppel, noting that Louisiana Courts have also consistently considered federal law in analyzing
whether particular facts constituted a taking of property in similar inverse condemnation suits. 68 The Court then
noted the Louisiana Supreme Court’s analysis in another commercial fishermen case in which this Court framed the
takings inquiry as one of whether the commercial fishermen had “a justifiable investment-backed reliance interest,
” 69 noting the obvious connection to the U.S. Supreme Court’s takings test and three part analysis of the U.S.
Supreme Court’s Penn Central decision. 70 On this basis, the majority concluded that the Federal Circuit’s analysis
was correct, concluding that there could be no recovery, “The case before us presents a textbook example of a
situation in which the Plaintiffs, in the face of established public concerns and while governmental efforts to address
those concerns were well known, moved to take advantage of the existing conditions for their own economic
benefit.” 71
The Plaintiffs then filed a Petition for Rehearing and an Application for Writs of Review and Certiorari. The
latter was granted and on rehearing, a new majority voted 3-2 not only to deny the State’s original Writ but to
actually affirm the judgment of the Trial Court on the merits of this issue, precluding further relief on this issue at
15

the Fourth Circuit level. 72 Despite the existence of specific Louisiana Supreme Court precedent requiring the
application of federal law to determine the preclusive effect of a prior federal judgment, as well as precedents from
the Fourth Circuit, the new majority held without precedent that collateral estoppel could not be applied under any
circumstances in a Louisiana State Court. 73 Curiously, after finding that collateral estoppel had no application, the
new majority inexplicably recognized and relied upon that portion of the Federal Circuit’s holding that the Plaintiffs
had “a protected property interest in their leases.” 74
Next, the new majority then merged the concept of expropriation, in which the State admits an intention to
“take” property, with the concept of inverse condemnation situation in which the government contests whether a
“taking” has occurred. 75 Having merged these two completely contrasting concepts, the new majority then
concluded, contrary to all other takings law, that because the only bar to compensation in an expropriation case is
the bad faith of the claimant, the only bar to compensation in an inverse condemnation situation is the bad faith of
the claimant, essentially eliminating all defenses to a taking. 76 Finally, the new majority concluded that, despite the
use of Penn Central considerations by other Louisiana Appellate Courts as well as this Court, 77 the “distinct
investment-backed expectations” of Penn Central were simply “irrelevant to the question of whether a taking has
occurred under Louisiana law.” Judge Waltzer then issued a strong dissent pointing out the controlling authority and
multiple precedents in the jurisprudence which were all contrary to the new majority’s new law. The State then
applied for Writs with this Honorable Court, which were denied. 78
72
73
74
75
76
77
78
79
Id. at 9.
Id at 11.
Id. at 12.
Id.
Id.
Id. at 13.
Pre-Trial Motions
In addition to the devastating effect of the Fourth Circuit’s ruling, nearly all of the State’s remaining defenses
were systematically eliminated, ignored, or dismissed 79 or made impossible to prove due to discovery limitations as
was the case with oyster production records. These defenses included prescription. Particularly damaging to the
State’s case was the Trial Court’s refusal to decide the State’s Motion for Summary Judgment on the validity and
effect of the indemnity and hold harmless clauses in the Plaintiffs’ lease forms and the Trial Court’s exclusion of all
evidence related to that language within those lease forms. Despite a request for expedited consideration prior to
trial, the Fourth Circuit would not decide the latter issues in the State’s Writ Application until nearly two years later,
Avenal v. State, 2000-1077, 767 So.2d 41 (La. 6/23/00).
R 164, 165, 1422, Supplemental Volume 1 of 9, R. 14-M, 15-M.
16

on the final day of the trial when the jury returned its verdict. At that time, the Fourth Circuit belatedly indicated that
the Trial Court had erred and violated La. C.C.P. art. 966(D) in failing to decide the State’s Motion for Summary
Judgment related to the indemnity and hold harmless clauses prior to trial. 80 The Plaintiffs did not challenge this
ruling. Had the issue been decided prior to trial, a favorable ruling in the Trial Court or on appeal would have
obviated a trial, since 192 of the 204 oyster leases presented at trial (or 94%) contained some type of indemnity
clause, 81 and the statutory requirement that the State be held harmless was retroactive in nature. 82
80
81
82
83
84
85
C.A. No. 99-C-0317 (La. App. 4 th Cir. 12/15/00).
Exhibit D-99.
R. 2640-2641.
See, e.g., R 2640-2641.
P. 237.
R. 2801.
The Trial
During the pendency of that Writ Application as well as several others, the matter had indeed proceeded to
a jury trial on December 5, 2000. During the trial, the Plaintiffs failed to present any specific evidence of actual loss
of income or investment from or for specific leases. Instead, they spoke in generalities of loss of oyster production,
but could produce no documents to support their claims. Given this apparent absence of proof, the Plaintiffs chose
instead to rely upon the aforementioned “cultch currency matrix” of their own creation, which required 803 cubic
yards per acre to form a uniform layer of cultch six inches thick at a cost of $21,345 per acre.
Much of the evidence the Plaintiffs presented on their own behalf, including the testimony of their own
expert, indicated that none of their leases had ever been entirely covered with a layer of 6 inches of cultch; 83 yet, they
were compensated for “restoration damages” allowing them to receive the equivalent of a layer of 6 inches of cultch
over all of their leases, as compensation for restoring the State’s water bottoms. In fact, the Plaintiffs presented a
chart specifically showing limited percentages of cultch 84 which had been created using the guesswork of the
Plaintiffs, based, in turn, on their observations from the surface. As representative Plaintiff, Clarence Duplessis
admitted, he couldn’t see the bottom through the brown water of Breton Sound so he had to “guess” at what was on
the bottom. As he testified, “when we say ‘percent’ this is not an accurate --- this is more or less a guess.” 85 This
17

guesswork, inconsistent with their own theory of entitlement to a six inch layer of cultch over all of their leases,
found the basis for the cultch currency formula and their eventual billion dollar recovery.
n. 4.
The LDNR’s defense was further hamstrung by the limited oyster production information LDNR was allowed
to gather due to the Trial Court’s discovery rulings, and by the Trial Court’s exclusion of side-scan sonar survey
evidence, which would have shown that very few of the Plaintiffs’ leases contained cultch or reef and thus were not,
had not, and never could have been economically productive. The end result was an award to the representative
Plaintiffs of $48,000,000. The verdict form, prepared by the Court over LDNR’s objection, does not refer to
permanent destruction only “damage.” 86 LDNR filed Motions for New Trial shortly thereafter which were denied.
In the meantime, the Trial Court extrapolated the judgment class-wide to the 63,000 acres of oyster leases comprising
the class, resulting in an award of over $1,000,000,000. The Plaintiffs were never required to explain how the impact
could have extended over such an area when the Environmental Impact Statement for the project projected impacts
to just 5,000 acres according to the Plaintiffs’ own presentation at trial. 87 The State’s motions for new trial, filed after
this judgment, were also denied as were the State’s writ applications related to those motions, including those related
to the indemnity and hold harmless clauses. 88
On appeal, a divided three judge panel was enlarged to a five judge panel, which issued its opinion nearly
three years after the original judgment, affirming that judgment except for a footnote which increased the award to
lead Plaintiff Albert Avenal to over $17,000,000 simply because the majority concluded he is “a well-established
oyster fisherman.” 89 In the remainder of the opinion issued by the 3-2 majority, the Court reversed established
takings precedent from this Honorable Court and the other Louisiana Appellate Courts, indicating that “the Louisiana
Constitutional imperative of full compensation favors replacement cost, when that is greater than market value, as
the measure of compensation to be applied.” 90 The majority then ruled that this Court’s opinion in the oyster lease
damage case, Inabnet v. Exxon Corp., 91 was inapplicable since Inabnet was a tort case, 92 despite the fact that the
86
87
88
89
90
91
92
R 1953.
R. 2709.
2001-C-0542 (La. App. 4 th Cir. 5/22/01).
Avenal v. State of Louisiana, 2001-0843 (La. App. 4 th Cir. 10/15/03), 858 So.2d 697, 703
Id. at 702.
93-0681 (La. 9/6/94), 642 So.2d 1243.
Id.
18

Plaintiffs had utilized, or more accurately doubled, a damage formula utilized by OLDEB to resolve tortious disputes
between private parties. 93
The majority then went on to hold that, contrary to existing precedent requiring proof of specific damages
in takings cases, “so long as the Plaintiffs prove generally that their leases were productive before CFDS
(Caernarvon) came online, and that they were productive after CFDS came online, and that CFDS caused the loss
of oyster productivity, proximate cause has been proven.” 94 The majority next affirmed the Trial Court’s exclusion
of side-scan sonar surveys taken by the State prior to trial under the Daubert/Foret line of cases, 95 while at the same
time ironically noting that “the use of side-scan sonar itself is well-established.” 96 The end result was that the
majority had approved the use of the cultch currency formula from the Davis Pond application but not the use of the
side-scan sonar which formed the basis for and was the measuring component for the use of the same formula. 97
The majority then affirmed the Trial Court’s denial of the State’s exceptions of prescription based upon the
two year prescriptive period of La. R.S. 9:5624, ruling that this was purely a “takings” case and not a “damages”
case, despite the specific allegation of “damage” in the Plaintiffs’ Petition. The majority then found that the loss was
permanent “because CFDS will be operated at its normal full flow on a permanent basis,” although there was no
evidence to this effect, nor was “full flow” ever defined. 98
In addition to other adverse rulings related to jury selection, the proper party in interest, and the lease acreage
computation which formed the basis for the jury’s award, the majority ruled that the Trial Court’s refusal to rule upon
the State’s Motion for Summary Judgment on the “indemnity clauses” was of no moment since the majority believed
this Court had ruled in the unrelated Jurisich oyster lease matter 99 that the “unilateral insertion by the State of onerous
clauses in oyster leases is legally invalid, 100 a suggestion that LDWF’s Secretary’s action in inserting such a clause
was illegal or unconstitutional. The majority skipped over the fact that the indemnity clauses were not at
93
94
95
858 So.2d at 703.
Id. (emphasis added).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993);
State v. Foret, 628 So.2d 1116 (La. 1993).
96
97
98
99
100
858 So.2d at 704.
Id., at 704-705.
Id.
Jurisich v. Jenkins, 99-0076 (La. 10/19/99), 749 So.2d 597.
858 So.2d at 706.
19

issue in this Court’s Jurisich ruling. The majority also ruled that the Legislature’s specific directive to include such
indemnity clauses in the leases at issue simply “does not apply.” 101
Shortly after the issuance of this opinion, Chief Judge William Byrnes passed away and retired Judge Moon
Landrieu, who had issued the strong dissent when the earlier Inabnet oyster lease case was at the Fourth Circuit level,
was appointed by this Court to replace Judge Byrnes on the same five judge panel. In response to the State’s Petition
for Rehearing, Judge Landrieu and Judge Max Tobias, who had issued a comprehensive 61 page dissent in this
matter, both voted for rehearing, but were outvoted 3-2.
From the denial of the Petition for Rehearing, and the previous rulings of the Fourth Circuit for which Writs
were denied by this Court, the States seeks relief. Specifically, the State seeks a dismissal of all claims based upon
collateral estoppel, the absence of a taking and the hold harmless and indemnity clauses within the Plaintiffs’ lease
forms. If the claims are not dismissed in their entirety, at a minimum, the State seeks a remand to allow for the
complete exploration of all Constitutional issues including those associated with the Legislature’s action in 1995,
2000 and 2003 requiring indemnity and hold harmless clauses in the State’s oyster lease form and requiring that the
State be held harmless by statute, for such claims as are asserted in this litigation. The State also seeks full
exploration of the effect of the Constitutional Amendment to Art. I, Sect. 4 and related statute just passed in the 2003
legislative session during the pendency of the earlier appeal, in line with the State’s Peremptory Exceptions related
to same filed in the record before this Honorable Court. The latter legislative actions limit the level of compensation
in coastal restoration matters to that associated with Fifth Amendment of the U.S. Constitution. Finally, if this
lawsuit survives these changes, and is remanded, the State also seeks a remand for a determination of any recoverable
or provable damages in accordance with existing jurisprudence based upon the market value of the leases, loss of
income, if any, from these leases, or any change in value, as these are the only bases for determining or recognizing
value for the Plaintiffs’ oyster leases under the applicable jurisprudence and the circumstances presented in this case.
101
Id.
20

SPECIFICATIONS OF ALLEGED ERRORS
1. The lower Court’s erroneously applied the wrong prescriptive period rather than that associated with property
“damaged for a public purpose” under La. R.S. 9:5624.
2. The lower Courts erred by refusing to apply the preclusive effect of a prior federal decision in subsequent
State proceedings, and/or collateral estoppel.
3. The Court of Appeal’s majority erred in overruling another Fourth Circuit panel to affirm the Trial Court’s
improper refusal to abide by La. C.C.P. art 966(D), while also violating the rule of “the law of the case.”
4. The lower Courts erred in finding that the Plaintiffs’ leases were “taken”.
5. The lower Courts erred in applying a flawed damage formula.
6. The lower Courts erred when they recognized a vested property right for the Plaintiffs in the State’s waters
and water bottoms in derogation of the State’s police power.
7. The lower Courts erred in holding that the only defense to a “taking” is a claimant’s “bad faith” and that this
defense is overcome if the claimant is “well established.”
8. The lower Courts erred by rejecting the application of federal takings Law.
9. The lower Courts erred when they created new law on the burden of proof for the existence of a “taking” as
well as for causation and damages in inverse condemnation claims.
10. The lower Courts erred by holding that the Plaintiffs had a right to recover damages, including alleged
“restoration costs” for the State’s own water bottoms.
11. The lower Courts erred in holding that the Louisiana Constitution favors replacement cost, when that is
greater than market value, as the measure of damages in takings cases.
12. The lower Courts erred when they excluded evidence of side-scan sonar surveys of the Plaintiffs’ leases in
violation of the Daubert/Foret standards for admissibility.
13. The lower Courts erred in using a class action in an inverse condemnation action thus obviating and
distorting the Plaintiffs’ burden of proof on causation and damages.
14. The Fourth Circuit erred in ruling that the hold harmless clauses in the Plaintiff’s leases were “legally
invalid” or unconstitutional, and it was improper for this issue to be raised for the first time on appeal.
21

102
State, Department of Transportation and Development v. Chambers Investment Co., Inc.,
595 So.2d 598, 603 (La. 1992).
103
104
105
106
107
108
La. R.S. 56:4.
La. R.S. 41:1221.
La. R.S. 56:421, et seq.
La. R.S. 56:424.
La. R.S. 56:423(B)(1).(emphasis added)
Louisiana Seafood Management Council v. La. Dept. of Wildlife & Fisheries, 97-1367
(La. 5/19/98); 715 So.2d 387.
109
ARGUMENT
I. Plaintiffs Failed To Establish The Taking Of A Protected Property Interest In The Maintenance Of
Specific Environmental Conditions In The Vicinity Of Their Leases Sufficient To Support Their
Takings Claims.
In order to recover under a “takings” or inverse condemnation claim under the Louisiana Constitution the
Plaintiffs had to establish each of the three prongs of the test set out by this Court:(1) whether a person’s recognized
species of property right with respect to a thing or object has been affected; (2) if a property right is affected, whether
the property, either a right or a thing, has been taken or damaged in a constitutional sense; and (3) whether the taking
or damage is for a public purpose under Article I, Section 4. 102 Although Caernarvon was obviously operated for a
public purpose, LDNR and the State submit that the Plaintiffs have failed to meet the first two of the prongs of the
takings test which defeats their claims in their entirety.
A. Plaintiffs’ Property Interest Is One Of Exclusive “Use”, Not Ownership.
Central to the Plaintiffs’ claim is the nature of the property interest in their oyster leases. The oyster leasing
system is entirely a creature of the Louisiana legislature. In other words, the lessee’s narrow property interest is
defined exclusively by these statutes, and without the statutes, it does not exist.
Briefly stated, the State owns “all oysters and shellfish and parts thereof grown thereon, either naturally or
cultivated, and all oysters in the shell after they are caught and taken therefrom.” 103 LDWF has the statutory right
to issue oyster leases on State water bottoms 104 and all oyster leases issued on State water bottoms are governed by
the “oyster statutes”, a statutory scheme found within Title 56. 105 Oyster leases on State water bottoms are governed
exclusively by this statutory scheme. No person is permitted to take oysters from Louisiana State water bottoms
unless they do so in accordance with this statutory scheme. 106 Title 56 grants an oyster leaseholder “the exclusive
use of the water bottoms leased and of all oysters and cultch grown or placed thereon, subject to the restrictions and
regulations” of the statutory scheme. 107 This is much like the commercial fisherman’s non-exclusive use of State
waters granted by his fishing license, 108 except that it is exclusive. The limited nature of an oyster lessee’s property
interest is best defined in Pace v. Chevron, U.S.A., Inc. 109 , which states, “The Oyster Statutes confer upon the holder
579 So.2d 494, 496 (La. App. 4 th Cir. 1991).
-22-

of a state oyster lease the exclusive privilege to exploit the state’s water bottoms and reduce to possession oysters
growing within the limits of the lease.” For this exclusive use, a lessee pays the State only two dollars per acre for
plots of up to 2,500 acres (formally 1,000 acres). 110 This exclusive use is not a right of ownership, as the State may
not alienate its own water bottoms 111 , nor can this right of use be viewed as a lease in perpetuity, which is also
proscribed. 112
This exclusive use and the lease which form the basis for that use are incorporated into a lease form issued
by LDWF. This form may contain such stipulations as the Secretary of LDWF deems fit and proper in order to
promote the oyster industry. 113 The lease by specific statute is also required to remain subject to the applicable law
which is incorporated into the lease form by statute and into the wording of the lease. 114 The lease is also subject to
any changes in the law, again by specific statute. This is the extent of the leaseholder’s property interest.
Title 56 does not grant to the oyster lessee any ownership rights in State owned waters. 115 Accordingly, the
Plaintiffs “had absolutely no constitutionally protected interest in the water itself.” 116 Further, water from Caernarvon
did not deprive the Plaintiffs of “the exclusive use of the water bottoms leased and of all oysters and cultch grown
or placed thereon” 117 nor did it cause any physical damage to the beds themselves. The State never took back the
Plaintiffs’ leases and the Plaintiffs still have their leases where they chose to keep them, and many continue to harvest
oysters from their leases. The only possible change in the situation is that fresh water from Caernarvon allegedly
altered the salinity of the water over the Plaintiffs’ leases, water in which Plaintiffs have no proprietary interest.
Significantly, the Legislature does not guarantee the Plaintiffs a vested right to an optimal salinity regime in the
State’ own waters, or guarantee a productive lease. Likewise, the Legislature does not mandate that the State
maintain a certain salinity regime favorable for oyster cultivation. The Legislature merely granted to the Plaintiffs
a very narrow property interest, an “exclusive use” as defined in Title 56.
B. The Plaintiffs Have No Right to Recover Damages for the State’s Own Water Bottoms.
The majority opinion defies this Court’s decision in Inabnet v. Exxon Corporation. 118 In Inabnet, this Court
barred an oyster leaseholder from recovering the cost of restoring State owned water bottoms in an oyster lease
110
111
112
521 (1916).
113
114
115
116
117
118
La. R.S. 56:423(A); La. R.S. 56:432 (2003); Act 449 of 2003.
La. Const. art. VII, sec. 14 (2004); Art. IX, Sec. 3 (2004).
La. C.C.P. art. 2674 (2003); Bristo vs. Christine Oil & Gas Company,139 La. 312, 71 So.
La. R.S. 56:425.
See, e.g., P-4.
La. R.S. 9:1101.
Avenal, 858 So.2d at 741.
La. R.S. 56:423(B)(1).
93-0681 (La. 9/6/94), 642 So.2d 1243.
-23

damage case, holding that the State alone owned the water bottoms and held the right to recover for damage to them.
As this Court found, it is the State, as “the party with the real and actual interest in restoring or rebuilding the
damage,” that holds the legal right to recover restoration damages, not the oyster lessee 119 and that the Plaintiff could
have no recovery for “the destruction of the marsh mat which provided the foundation for the seed oysters.” 120 The
issue in Inabnet was not whether this was a tort or inverse condemnation claim as the Court of Appeals suggested
below, but rather who had the legal right to raise the claim.
Furthermore, this Court in Inabnet specifically held that no private oyster leaseholder has the legal right to
recover the cost of restoring the State’s own water bottoms. 121 This Court indicated that La. Rev. Stat. 56:423 B(1)
recognizes an oyster lessee’s right to recover his own damages for injury to his oyster beds from negligent third
parties. The awards for loss of seed oysters and loss of income from anticipated production were based on this right
of recovery. However, the statute cannot reasonably be construed to authorize recovery from the State for damages
sustained by the State. As noted in Judge Tobias’s dissent in this matter, these Plaintiffs put forth no evidence that
they made significant improvements to their leases over the years or that they have a greater interest than the State
in restoring the State’s damaged water bottoms. 122 Indeed, as discussed below, the Plaintiffs made no effort to make
these improvements in the years, and in some cases, decades, that they have had these leases. Since Inabnet remains
the law, these Plaintiffs lacked a “recognized species of property right” to recover for restoration of water bottoms.
Simply put, the Plaintiffs failed the first prong of the taking test for which they were awarded damages here.
C. The Majority Impermissibly Granted a Vested Property Right In The State’s Water To The
Plaintiff In Derogation Of The State’s Police Power.
The Fourth Circuit’s ruling allowed the Plaintiffs to recover damages for the restoration of the State’s own
water bottoms based upon changes in the water column over the Plaintiffs’ leases. The only way for such a ruling
to issue would be if the Plaintiffs held a property interest in both the water bottoms and the water column. As set
forth above, the lessee’s narrow property interest is defined exclusively by the oyster statutes, and is a limited
privilege of exclusive use 123 acquired subject to the State’s police power to protect the lives, health, morals, comfort,
and general welfare of the people. 124 There was never a warranty as to suitability, water conditions, bottom
conditions, or guaranteed production. The Plaintiffs still have their leases, they continue to exercise the exclusive
119
120
121
122
123
124
Id.
Id. See also La. R.S. 56:434(B).
642 So.2d at 1255.
858 So.2d at 728.
La. R.S. 56:423 (1995).
Polk v. Edwards, 626 So.2d 1128, 1142 (La. 1993).
-24

use of their leases, they continue to make claims for damages for natural occurrences 125 and against third parties, 126
and continue to harvest oysters from them. 127 The only alleged event was that fresh water from Caernarvon
supposedly altered the salinity of the water over the Plaintiffs’ leases, water in which Plaintiffs have no proprietary
interest. As shown above, under Inabnet they cannot recover for damage to the water bottoms themselves.
Accordingly, Plaintiffs can have no claim for inverse condemnation of their leaseholds under the circumstances as
described. The Fourth Circuit majority clearly erred by vesting the Plaintiffs with a right to a salinity regime in the
State’s waters and over the State’s water bottoms.
II. The Majority Clearly Erred in Holding that the Plaintiffs’ Leases Were Taken.
The Plaintiffs also failed in the second prong of the takings test by failing to present the necessary proof that
any recognizable property interest was taken. Generally, a lease is a compensable property interest under La. Const.
Art. I, sec. 4 when the State takes or damages property that is the subject of the lease. 128 Inverse condemnation
takings claims associated with a lease are usually raised when leased property is expropriated or purchased by the
State from its owner, leaving the lessee to bring a claim for inverse condemnation for lost revenues or for the cost
to reestablish his lease or business elsewhere. This scenario is not present here, as the water bottoms at issue are as
they were, still owned by the State.
Applying the correct analysis, the State did not take, expropriate, or otherwise acquire any tangible property
(i.e., its own water bottoms) that is the subject of the Plaintiffs’ leases. The Plaintiffs still hold their leases where
they chose to do so and many are still harvesting oysters. 129 Although Plaintiffs claim oyster mortality as a result
of freshwater, the State did not actually damage any property, tangible or intangible, because it did not exercise its
power to acquire its own water bottoms or the Plaintiffs’ leaseholds, thereby diminishing the value of either. By
introducing fresh water from Caernarvon into the more saline waters of Breton Sound, also owned by the State,
LDNR simply did not effect a taking of property in a constitutional sense. The Plaintiffs’ claims can only be
construed as a basis for a claim for crop damage. This triggers the prescription issue.
III. The Plaintiffs’ Claims Are Prescribed.
The majority erroneously applied the wrong prescriptive period for inverse condemnation law rather than
La. R.S. 9:5624 for “damage for a public purpose.” If the correct two year prescriptive period for damage is applied
125
126
D 86-90, D 20-44.
Indeed, in one year representative Plaintiff Kenneth Fox recovered on repeated claims
amounting to over $410,000 in just one year (1998) for alleged seismic damage to oyster leases in this
litigation with no proof of oyster mortality. (Exhibit D86).
127
128
D 82.
Franklin Southland Printing Co., Inc. v. New Orleans Aviation Bd., 99-60 (La. App. 5 th
Cir. 7/27/99), 739 So.2d 977, 982; Huckabay v. Red River Waterway Com’n, 27,113 (La. App. 2 nd Cir.
10/12/95), 663 So.2d 414, 420, writ denied, 95-3007 (La. 3/8/96), 679 So.2d 928; Holland v. State,
DOTD, 554 So.2d 727 (La. App. 2 nd Cir. 1989).
129
D82.
-25

these claims are time based. As to the usual leasehold inverse condemnation claim, in Packard’s Western Store v.
State, DOTD 130 , the Court set forth the general law relative to the damaging and/or taking of a lessee’s leasehold
and/or business losses. The action for “inverse condemnation” under Art. I, Sect. 4, provides a procedural remedy
to a property owner seeking compensation for land allegedly (1) “damaged” or (2) “taken” in a constitutional sense
against a governmental entity where no expropriation has commenced. 131 The term “property” encompasses both
tangible and intangible property rights such as a lessee’s leasehold interest. 132 Property is “taken” when the State
acquires it for a public purpose, whether by amicable purchase from the owner or by an expropriation action or by
inverse condemnation. 133 Property is “damaged” in a constitutional sense when the action or inaction of the State,
in the exercise of its police power to acquire property for a public purpose, diminishes the value of the tangible
property or the intangible property right. 134 Claims for “damage” have a two year prescription period under La. R.S.
9:5624.
1993).
If anything, the Plaintiffs’ allegations of oyster mortality, while not admitted by the State, could only amount
to claims for “damage” to their leaseholds or, in reality, “crop damage” resulting from the operation of a public
project. Simply said, the allegation is that oyster production has been reduced or eliminated. The leases and the
lands associated with them are as they were. La. R.S. 9:5624 provides that when private property is damaged for
public purposes, any and all actions for such damages are prescribed by the prescription of two years, which shall
begin to run after the completion and acceptance of the public works. The purpose of the statute is to limit the
exposure of the State and its political subdivisions to liability in connection with the construction of public works
to a reasonable period of time. 135 The statute also applies to damage caused by the “operation” of a project. 136 These
“trigger” dates were of no significance as they were the same in this matter, since Plaintiffs allege the damage
occurred as soon as the project became operational in 1991.
It is well settled under Louisiana law that when conflicting statutes are applicable, the one more specifically
directed to the matter at issue trumps the more general statute. 137 As the Plaintiffs’ claims do not amount to an
inverse condemnation, the more generalized three year prescriptive period under La. R.S. 13:5111 is not applicable.
130
131
132
133
618 So.2d 1166, 1171-1172 (La. App. 2 nd Cir. 1993), writ denied, 629 So.2d 345 (La.
Id.; State, DOTD v. Chambers, supra, at 602.
Id., State, DOTD v. Jacob, 483 So.2d 592 (La. 1986).
Naquin v. State, DOTD, 604 So.2d 62, 65 (La. App. 1 st Cir. 1992); and Franklin, supra at
982; Soma Enterprises v. State, DOTD, 521 So.2d 829 (La. App. 2 nd Cir. 1988).
134
135
136
137
Id., citing Columbia Gulf Transmission Co. v. Hoyt, 215 So.2d 114 (La. 1968).
Lyman v. Town of Sunset, 500 So.2d 390, 391-393 (La. 1990).
Id.
Estate of Patout v. City of New Iberia, 98-0961 (La. 7/7/99), 738 So.2d 544, 549.
-26

The Plaintiffs’ claims are more properly characterized as damage to private property for a public purpose under La.
R.S. 9:5624 and its two year prescriptive period. Caernarvon was completed in August 1991 and became operational
in September 1991, and Plaintiffs allege their damages occurred immediately thereafter. 138 Any alleged damage to
the Plaintiffs’ leasehold interest would have been a necessary consequence of the public project. 139 As the Plaintiffs
did not file suit until March 29, 1994, their claims are prescribed under La. R.S. 9:5624.
IV. The State Must Be Held Harmless For Claims For Financial Compensation Against The State Based
On The Effects Of Coastal Restoration Projects.
Nearly all, 192 of the 204 oyster leases at issue in this matter contain an hold harmless and indemnity clause
in favor of the State. The Legislature has also determined that the State is to be “held harmless” by statute regardless
of the clause for claims stemming from coastal restoration projects including freshwater diversion. The lower Courts
denied the State the opportunity to have this issue heard. A sufficient record exists for this Court to grant this relief.
The Plaintiffs’ contention that this Court’s earlier decision in Jurisich v. Jenkins controls are wholly without merit.
The Fourth Circuit majority reads this Honorable Court’s decision in Jurisich v. Jenkins to say that insofar
as “hold harmless” and “indemnity” clauses in State oyster lease forms are concerned, this Court ruled that “such
unilateral insertion by the State of onerous clauses in oyster leases in legally invalid.” 140 The Fourth Circuit majority
could not have been more inaccurate, as no such blanket ruling occurred. In reality, this Court confirmed that its
138
139
140
R. 2834, 3423.
858 So.2d at 742.
Id. at 706.
-27-

consideration in Jurisich was limited to only the Navigation and Oilfield Clause not once but five times. 141
Consequently, the Fourth Circuit’s analysis of this issue was off base from the outset.
A. The Fourth Circuit Erred In Failing To Recognize The Retroactive Nature And Effect Of The
Legislative Acts Amending And/Or Enacting And/Or Re-enacting, La. R.S. 49:214.5 And La.
R.S. 56:427.1.
Both before and after this Court’s opinion in Jurisich the Legislature had specifically instructed LDWF to
include a “hold harmless” and indemnity clause in favor of the State in all of LDWF’s oyster lease forms, which issue
was never addressed by this Court in Jurisich. These legislative Acts took place in 1995, 2000 and 2003. 142 These
legislative Acts all require that the State be “held harmless” from claims such as those brought in this litigation. 143
Most importantly, contrary to the Fourth Circuit majority’s conclusion, these legislative directives do not apply “only
to oyster leases renewed or extended after July 1,1995,” as the Fourth Circuit majority states. To the contrary,
although the provisions of both statutes which date back to 1995 require a “hold harmless” and indemnity provision
to be included in leases granted after July 1, 1995, the Legislature’s intent to have the State held harmless is
retroactive in nature, 144 and therefore applies to all of the oyster lease forms issued in connection with this litigation
and which form a part of the record.
B. The “Hold Harmless” Clause Is Not “Onerous”, As Without The Clause There Can Be No
Oyster Leasing.
As was indicated in the Peremptory Exceptions accompanying LDNR’s Writ Application, the “hold
harmless” and “indemnity” clauses were originally inserted in the LDWF oyster lease form for the benefit of the
oyster industry. More specifically, in 1989, two years before Caernarvon was to become operational, LDNR
objected to the issuance of oyster leases in Breton Sound or elsewhere in the vicinity of planned coastal restoration
projects because of the possibility that there could be lawsuits. 145 A compromise was therefore confected by then
Chairman of the Louisiana Coastal Activities Committee, Manuel Fernandez, to allow oyster leases to issue as long
as they contained a “hold harmless” and “indemnity” clause in favor of the State. It was only with this clause that
the oyster leases were allowed to issue, which was solely for the benefit of the oyster industry. Subsequently, the
Legislature retroactively authorized the inclusion of such clauses in all oyster leases and, in fact, directed that all
oyster leases contain such a clause. 146 The Legislature even went further to require that the State be “held harmless”
141
Jurisich v. Jenkins, 99-0076 (La. 03/12/99), 739 So.2d 212; 99-0076 (La. 11/17/99) * *
1, 749 So.2d at 61.
142
La. R.S. 49:214.5 (1995) (Acts 1995, No. 936, Sect.1) (Acts 2003, No. 652 Sect.1); La.
R.S. 56:427.1 (2000) (Acts 2000, first ex. sess., No. 107, Sect. 1).
143
144
Id.
La. R.S. 49:214.5 (1995) (Acts 1995, No. 936, Sect.2) (Acts 2003, No. 652 Sect.2); La.
R.S. 56:427.1 (2000) (Acts 2000, first ex. sess., No. 107, Sect. 2).
145
146
Memorandum in Support of Peremptory Exceptions, at pp. 7-8..
La. R.S. 49:214.5.
-28

y statute even without the clause. Without this clause and/or the related statute, oyster leases would not issue.
Consequently, this clause is not “onerous” as the Fourth Circuit majority implied, as without the clause there would
be no leases.
D. This Issue Should Have Been Decided Under La. C.C.P. art. 966(D) Prior To Trial.
In this matter, the Trial Court refused to decide LDNR’s motion for summary judgment on the indemnity
clauses within the Plaintiffs’ oyster leases, ruling that the motion “is deferred to a later time.” 147 The Trial Court's
action constituted a direct violation of Article 966(D) of the Louisiana Code of Civil Procedure that judgment on all
motions for summary judgment shall be rendered at least 10 days prior to trial. 148 The Louisiana Code of Civil
Procedure makes it clear that, “the word ‘shall’ is mandatory, and the word ‘may’ is permissive.” 149
In line with the above authorities, the courts have consistently interpreted the timing requirements of Article
966 of the Louisiana Code of Civil Procedure as mandatory 150 and violation “constitutes reversible error.” 151 A
previous panel of the Fourth Circuit has already ruled in this same case that the Trial Court committed reversible
error by violating Article 966(D). 152 DNR submits that the Trial Court and the later panel of the Fourth Circuit were
both bound by the doctrine of "the law of the case" to recognize and abide by the earlier Fourth Circuit panel’s ruling
of December 15, 2000, holding that the Trial Court had violated Article 966(D) of the Louisiana Code of Civil
Procedure. 153 This was an error of law. 154
C-0317.
147
148
149
150
Reasons for Judgment dated February 1, 1999, attached to Writ Application No. CA 99-
La. C.C.P. art. 966(D) (1996) as amended (1997).
La. C.C.P. art. 5053 (1986).
Stewart v. Carter, 33-203 (La. App. 2 nd Cir. 5/10/00), 759 So.2d 297, 299; Bacon v.
Cunningham, 99-135 (La. App. 5 Cir. 5/19/99), 735 So.2d 931, 932; I. Q. Investments v. Cartozzo, 98-
331 (La. App. 5 th Cir. 9/29/98), 719 So.2d 1155, 1157.
151
Mitchell v. St. Paul Fire & Marine Ins. Co., 98-1924 (La. App. 4 th Cir. 1/27/99), 727
So.2d 1245, 1247.
152
153
Decision on Writ Application 99-C-0317 (La. App. 4 th Cir. 112/15/00), Exhibit 5.
Edwards v. Daugherty, 97-1542 (La. App. 3 Cir. 3/10/99), 729 So.2d 1112, 1119
(emphasis original).
154
Petition of Sewerage and Water Board of New Orleans, 278 So.2d 81, 83 (La. 1983);
Waffle House, Inc. v. Corporate Properties, Ltd., 99-2906 (La.App. 1 Cir. 2/16/01); Evans v. Nogues, 99-
2761 (La.App. 4 Cir. 9/13/00), 775 So.2d 471, 476-77; Tsatsoulis v. City of New Orleans, 99-2544
(La.App. 4 Cir. 8/30/00), 769 So.2d 137, 139.
-29

E. The Majority Opinion Of The Fourth Circuit Court Of Appeals Erred In Raising A
Constitutional Issue For The First Time On Appeal.
The majority cast the Legislature’s attempt to authorize and require “hold harmless and indemnity” clauses
in the State’s oyster lease form as “legally invalid,” suggesting that the Legislature acted unconstitutionally or
illegally. Neither party previously raised the constitutionality of the Legislature’s or the Secretary’s action and it
was improper for the Court of Appeals to raise this issue, sua sponte, for the first time on appeal, particularly in its
final decision, at which point none of the parties could brief the issue. 155 This case should therefore be remanded for
briefing of this constitutional issue for this issue to be developed in proceedings below. 156
V. The Fourth Circuit Erred In Creating An Entirely New Body Of Inverse Condemnation Law.
A. The Fourth Circuit’s Rulings Eliminated Major Defenses To Takings Recognized Under
Federal And Louisiana Law.
155
Vallo v. Gayle Oil Company, 94-1238 (La. 1994) 646 So.2d 859; Johnson v. Carter, 97-
1800 (La. App. 4 th Cir. 03/04/98), 707 So.2d 1366.
156
LEXIS 3452.
157
158
Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La. 12/12/03) 2003 La. App.
Avenal 757 So.2d at 9.
Id., Judge Waltzer’s dissent at p. 1. See also Sanchez v. Board of Zoning Adjustments,
488 So.2d 1277 (La. App. 4 th Cir. 1986); Tubbs v. City of Shreveport, 584 So. 2d 380 (La. App. 2 nd Cir.
1991); Lakeshore Harbor Condominium Dev. v. New Orleans, 603 So. 2d 192 (La. App. 4 th Cir. 1993).
159
1. Application of Federal Takings Law
The Fourth Circuit has stated that “the ‘distinct investment backed expectations’ of Penn Central... is
irrelevant to the question of whether a taking has occurred under Louisiana law.” 157 Numerous Louisiana courts,
however, including the Fourth Circuit itself and this Honorable Court, have used the Penn Central test and/or drawn
freely from related federal cases in determining whether a taking has occurred under Louisiana law. 158 Indeed in the
context of the takings claims of commercial fishermen, this Court has framed the issue as whether the fishermen have
a “justifiable investment backed reliance interest.” 159 There is certainly no Constitutional, statutory or jurisprudential
authority which rejects the Penn Central test as the Fourth Circuit has. Therefore the Fourth Circuit majority’s
decision stands as an anomaly under Louisiana inverse condemnation law.
In Judge Love’s dissent, she correctly notes that oyster leases are “investments”. 160 Accordingly,
consideration of the Plaintiffs’ reasonable investment backed expectations related to the effects Caernarvon would
have to the waters over their leases is not only extremely relevant, but also endorsed under Louisiana law.
Moreover, as this Court observed, quoting U.S. Supreme Court precedents,“ . . .[G]overnmental regulation - by
definition- involves the adjustment of private rights for public benefit. To require compensation whenever the law
curtailed the potential for economic exploitation ‘would effectively require the government to regulate by purchase’...
Louisiana Seafood Management, 715 So.2d at 393.
160 858 So.2d at 708.
-30-

government could hardly go on if to some extent values incident to property could not be diminished without paying
for such change in the general law.” 161
Finally, inasmuch as the Plaintiffs have no guarantee from either the State or Mother Nature that their
investments in their oyster leases will be lucrative, this Court’s statement is particularly poignant in this case, “Loss
of future profits- unaccompanied by any physical property restriction- provides a slender reed upon which to rest a
takings claim.... The interest in anticipated gains has traditionally been viewed as less compelling than other property
related interests.” 162 The Fourth Circuit majority’s decision, if allowed to stand, would effectively require the
government to pay any citizen who claims to have suffered an economic loss resulting from any type of governmental
regulation or action, unless the government can prove that the property owner is acting in bad faith, i.e.,
fraudulently. 163 Such an extraordinary burden would effectively paralyze governmental action, no matter how
beneficial, so as to avoid automatic payment to citizens who may be remotely affected and suffer some degree of
economic loss as a result.
2. The Fourth Circuit Created New Law on the Government’s Defenses to a Taking Claim
The majority’s rejection of federal takings law and its misapplication of Louisiana expropriation law led the
Court to conclude that the only defense to a taking under Louisiana law is the “bad faith” (i.e., fraud) of the property
owner. 164 Prior to this decision, not a single Louisiana court recognized or applied this “bad faith” defense to an
inverse condemnation claim, let alone deemed it the only defense available to the government under Louisiana law.
The majority reached this aberrant and singular result by applying the “bad faith” defense available in expropriation
cases to this inverse condemnation case. 165 Ironically, as far as the State’s defenses were concerned, what the
majority “lefteth,” the majority thereafter “taketh away,” by enhancing Albert Avenal’s award by $17,000,000
through the use of a mere footnote, because the jury supposedly did not give sufficient consideration to Avenal’s
reputation in the community, yet another error of law and fact.
161
162
163
164
165
Louisiana Seafood Management Council, 715 So.2d at 392.
Id., quoting Andrus v. Allard, 444 U.S. 51, 66, 62 L.Ed.2d 210, 100 S.Ct. 318 (1979).
Holt v. Bethany Land Co., 36, 888 (La. App. 2 nd Cir. 04/09/03), 843 So.2d 606.
Avenal, 757 So.2d at 12.
Id.
-31

3. The Majority Created New Law on Causation in Inverse Condemnation Claims
When a plaintiff attempts to recover under a takings theory for physical invasion or damage to property, the
plaintiff must prove that the damage was proximately caused by the public works or activity “as designed and
constructed or must be the probable, the immediate, the direct, and the necessary results and effect of the
activities.” 166 Likewise, when damages to an oyster lease are alleged, the Plaintiff must also establish that the damage
was proximately caused by the defendant. 167 Contrary to these well settled principles, the majority created new law
in finding that the Plaintiffs proved proximate cause by simply demonstrating “generally that their leases were
productive before CFDS came on line, and that they were not productive after CFDS came on line, and that CFDS
caused the loss of oyster productivity.” 168 While all three of these elements cannot be proven “generally” under the
applicable law, and must be proven with specificity as to each element, these Plaintiffs don’t even do that. The lower
Courts only required proof of ownership to recover.
The class boundaries in which the Plaintiffs’ leases are located comprise 348,469 acres, or nearly 550 square
miles. As these leases are located throughout an area roughly twice the size of Orleans Parish, the Trial Court had
previously acknowledged that in a geographic area this vast, leases will be affected by Caernarvon to different
degrees, if at all. Unlike the Fourth Circuit majority, the Trial Court, thus initially recognized that proximate cause
must be proven on a lease by lease basis to determine if Caernarvon directly caused damage to a particular lease.
Nevertheless, the Fourth Circuit majority ignored this burden of proof for individual leases. For example, despite
Albert Avenal’s admission that oysters were never harvested from some of his allegedly damaged leases even before
Caernarvon went on line, 169 he was still allowed to recover over $17,000,000. In sum, by rejecting the usual standard
of specific damage related to a proximate cause, the majority awarded damages to Plaintiffs who could neither prove
causation nor establish actual economic losses resulting from Caernarvon.
B. The Lower Courts Were Bound By The Preclusive Effect Of The Prior Federal Circuit
Decision.
This same suit brought by the same Plaintiffs against the United States government was dismissed by the
Federal Circuit on the basis that no compensable taking occurred since the Plaintiffs had taken advantage of favorable
salinity conditions created by prior projects, i.e. the building of the Mississippi River Levee System, and knew or
should have known of the expected retention freshwater through the proposed diversion project that could adversely
affect their oyster leases. Consequently, they could not have had a legitimate investment-back expectation that
166
167
Reymond v. State, Dept. of Highways, 231 So.2d 375, 384 (1970).
Skansi Oyster Corp. v. Louisiana Land & Exploration Co., 97-1888 (La.App. 4 th Cir.
3/11/98), 709 So.2d 329, 332.
168
169
858 So.2d at 705. (emphasis added).
R. 3419, 3432-3434, 3457-3458.
-32-

conditions would remain favorable for oyster cultivation. 170 The lower courts in this matter rejected this theory, the
Fourth Circuit ruling that despite specific Louisiana Supreme Court precedent to the contrary, collateral estoppel
would not be applied under any circumstances in a Louisiana Court. 171 The law of this Court is clear that the
preclusive effect of a prior federal judgment is a matter of federal law not State law. 172 Until now, the Appellate
Courts have followed this rule of law, even the Fourth Circuit. 173 Accordingly, the Plaintiffs’ claims should have
been dismissed under the doctrine of collateral estoppel.
VI. The State’s Support For And Involvement In The Caernarvon Project Was Justified By The Public
Necessity For The State To Address A Serious Risk Of Harm To Life And Property Using Its Police
Power.
It is common knowledge based upon Louisiana’s “America’s Wetland” Campaign and through other sources
that the State loses close to 25 square miles annually along the coast to erosion. In fact, since the 1950's it has been
estimated that the State has lost an area equivalent to the size of the State of Rhode Island.
The United States Supreme Court has long recognized that “in cases of actual necessity” the government had
the right to destroy real and personal property as an element of the “police power” without facing liability for such
action. 174 In fact, "takings" challenges have also been held to be without merit in a wide variety of situations when
the challenged governmental actions prohibited a beneficial use to which individual property interests had previously
been devoted and thus caused substantial individualized harm to the owners of the property involved. 175 For instance,
in Miller v. Schoene, 176 the Supreme Court rejected a takings claim based on the fact that State officials had
authorized the destruction of cedar trees which harbored pests threatening the State’s apple crop. There, a unanimous
Court held that the State had not exceeded "its constitutional powers by deciding upon the destruction of one class
of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater
value to the public." 177 This Court has historically applied such reasoning, and in particular, with regard to the
adverse effects of yet another Mississippi River project:
170
171
172
173
100 F.3d 1933 (Fed. Cir. 1996).
757 So.2d at 9.
Reeder, supra, at 1271.
Stone v. Entergy Services, Inc., 99-0236 (La. App. 4 th Cir. 8/18/99), 744 So.2d 144, writ
denied, 99-2719 (La. 11/24/99), 750 So.2d 989; Trich v. Crescent Turn Key & Engineering, L.L.C., 99-
310(La. App. 5 th Cir. 9/28/99), 744 So.2d 689, 692; Andrepont v. Andrepont, 97-1643 (La. App. 3 rd Cir.
4/1/98), 711 So.2d 759, 761; Williams v. Insurance Company of North America, 96-0847 (La. App. 4 th
Cir. 3/19/97), 692 So.2d 654, 656; Rochon v. Whitley, 96-0835(La.App. 1 st Cir. 2/14/97), 691 So.2d 189,
191; Tye v. Co-Mar Offshore Operators, Inc., 95-0094 (La. App. 1 st Cir. 10/6/95), 669 So.2d 438, 439.
174
Bowditch v. Boston, 101 U.S. 16, 25 L.Ed. 980 (1879); Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1029, n. 16 (1992).
175
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 125 (1978).
176 276 U.S. 272 (1928).
177
262 U.S. at 279.
-33

178
179
Bass v. State, 34 La. Ann. 494, 496-497 (La. 1882).
La. Const. IX, Sec. I; Save Ourselves, Inc. v. Louisiana Environmental Control
Commission, 452 So.2d 1152, 1156-57 (La. 1984).
180
City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1969); Home
Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 78 L. Ed. 413, 54 S. Ct. 231 (1934); Manigault v.
Springs, 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274 (1905); Long Island Water Supply Co. v. Brooklyn,
166 U.S. 685, 17 S. Ct. 718, 41 L. Ed. 1165 (1897); Stone v. State of Mississippi, 101 U.S. (11 Otto) 814,
25 L. Ed. 1079 (1879). Board of Comm'rs v. Department of Natural Resources, 496 So. 2d 281, 293 (La.
1986); Crescent City L.S.L. & S.H. Co. v. New Orleans, 33 La. Ann. 934, 939 (La. 1881).
181
West Jefferson Levee District v. Coast Quality Construction Corp., 93-1718 (La.
5/23/94), 640 So.2d 1258, 1275.
182
183
There exists an implied assent on the part of every member of society, that his own
individual welfare shall, in cases of public necessity, yield to that of the community,
and that his property, his liberty and even his life shall, in certain cases, be placed
in jeopardy, or even sacrificed for the public good. . . . Hence it is, that a private
mischief is to be endured, rather than a public inconvenience or calamity, and that
in such cases, individuals sustain injury for which the law gives no redress. . . . 178
Assuming, arguendo, that the Caernarvon project did affect the oysters on the State’s water bottoms leased
to the Plaintiffs, and that the Plaintiffs could overcome the hurdle of demonstrating that their property interest in the
State’s water bottoms was something more than a mere right of “use”, the Plaintiffs’ rights are still subject to the
lawful and reasonable exercise of the State’s police power under the public trust doctrine as codified under the
Louisiana Constitution to protect the State’s resources and to balance the interest of competing uses and user
groups 179 including that asserted under the necessity doctrine, as they too share in the public good created by the
Caernarvon project. The State may not bargain away its police power nor may the police power ever be abridged. 180
Under such circumstances, the State cannot be held liable.
VII. Even If The Finding Of A Taking Were Justified, The Award Of Compensation Was Grossly
Excessive.
A. Standard of Review
A jury’s award of damages in an expropriation or inverse condemnation is subject to review under a standard
of manifest error. 181 In expropriation or inverse condemnation proceedings, the burden imposed upon the claimant
is to establish his claims by a legal certainty, and by a reasonable preponderance of the evidence; speculation,
conjecture, mere possibility and even unsupported probability are not sufficient to support a judgment. 182 Finally,
business losses sought under an inverse condemnation or expropriation theory are not recoverable absent proof of
actual losses. 183 This award should not only be reviewed and heavily scrutinized since not one but two appellate
judges have criticized the award, one indicating that it “shocks the conscience”. More importantly, the Plaintiffs
themselves have indicated that they should never have been compensated at this level.
B. Allowable Inverse Condemnation Damages
Article I, Sec. 4 of the Louisiana Constitution provides that where is property is taken or damaged by the
Id.
State, DOTD v. Dietrich, 555 So.2d 1355, 1359 (La. 1990).
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State, “the owner shall be compensated to the full extent of his loss.” 184 As the State has pointed out in its peremptory
exceptions, the Electorate approved an Amendment to Act I, Sec. 4 allowing for the Legislature to limit the State’s
liability with respect to coastal restoration projects. 185 At the same time the Legislature did so by limiting recovery
for inverse condemnation claims in coastal restoration situations to that available under the Fifth Amendment of the
United States Constitution. 186 These legislative actions are retroactive in nature and consequently, if federal law were
applied, the Federal Circuit’s opinion would control and the claims should be dismissed. Otherwise, at best, the
Plaintiffs’ recovery, if any, would be limited to that available under federal law. The former law, if applicable
indicates that the basic purpose in all expropriation (and inverse condemnation) cases is to determine the “full extent
of the loss” as required by our Constitution. 187 This Court has noted that although there is no specific formula set
forth by the Legislature which may aid courts in determining the “full extent of loss”, fair market value is a relevant
consideration in determining just compensation.” 188 Fair market value has consistently been defined as the price a
buyer is willing to pay after considering all of the uses that the property may be put to where such uses are not
speculative, remote, or contrary to law. 189 Allowing a property owner to be compensated to the “full extent of his
loss” permits a landowner to remain in an equivalent financial position to that which he enjoyed before the taking. 190
There is no basis under the law for the State to compensate a claimant with an award for the State’s property nor is
there a legal basis for allowing “restoration damages” for something that was never present beforehand. Both of
these considerations have occurred here.
184
185
186
187
188
189
190
Exxon Pipeline Co. v. Hill, 00-2535 (La. 05/15/01), 788 So.2d 1154, 1159.
Act No. 1295 (2003).
Act No. 583 (2003).
Hill, supra, at 1159.
Id. at 1159-1160.
Id.; see also Coast Quality, supra.
Dietrich, supra, at 1358.
-35-

Insofar as oyster lease damages are concerned, this Court previously has made it unmistakably clear that the
elements of damages for an oyster lease must relate to an oyster leaseholder’s own damages for injuries to his oyster
bed, which should be based upon the value of seed oysters, any improvements and loss of income from anticipated
oyster production. 191 Further, the evidence must be based on the value of the plaintiff’s oyster leasehold interest
before and after the damage based upon considerations of the rental price of the lease, the money, time and effort
expended by the lessee in developing the lease, the availability of comparable leases, and other relevant factors. 192
Moreover, the Legislature has made it clear that if an oyster lease must be “abandoned and surrendered” for the
purposes of establishing new oyster seed grounds, a leaseholder will only be compensated for “oysters, seed oysters,
shells, and other improvements” found on the private oyster lease. 193 None of these factors or elements of
compensation was ever considered here. Instead each leaseholder received a windfall based upon the cost of a
uniform, “one-size fits all” layer of cultch six inches in thickness.
Justice Knoll’s concurring opinion in Hill noted that important public policies and fundamental rights in
expropriation cases must be carefully analyzed under the individual facts and circumstances of each case. Justice
Knoll noted that abuses can occur by both the expropriating authority, as well as by property owners who “sometimes
abuse their power by demanding far more than their property is worth”. 194 Furthermore, “inaccurate evaluations run
rampant and we must strive to find valuations that serve the purpose of protecting property rights while allowing
public interests to be served.” 195 This case presents an opportunity for this Court to rectify a judgment which wildly
overcompensated the Plaintiffs despite the absence of any specific proof qauntifiable of oyster mortality lost income
or financial loss attributable to Caernarvon. The Plaintiffs simply never offered such evidence.
C. The Trial Court Erred In Awarding Damages Based On Replacement Costs Rather Than
Actual Loss
The majority’s pronouncement that the Louisiana Constitution favors replacement cost, when that is greater
than market value, as the measure of damages in takings cases 196 , attempts to reverse the existing law. The Fourth
Circuit’s new standard runs completely contrary to basic inverse condemnation law. In Constant, supra this Court
stated that, “[W]e do not, by these rulings, announce any general principle that replacement cost is always the most
appropriate measure of awarding a landowner compensation for the taking of a physical asset... Generally, we
assume, the landowners may be compensated fully by other approaches than by awarding them [the] replacement
191
192
193
194
195
196
Inabnet, 642 So.2d at 1255.
Id.
La. R.S. 56:434(1991).
Hill, supra, at 1166.
Id.
858 So.2d at 702.
-36-

cost.” 197
Other Courts have followed this reasoning. For instance, the Second Circuit has stated that, “[A]lthough
there have been several reported cases in which replacement cost, not market value, was found to be appropriate
compensation, these cases, like Constant, have involved unique situations in which the businesses would likely have
been destroyed, or at least affected to a suitably detrimental extent, were the expropriated property not replaced.” 198
That Court has also stated more succinctly that “[A]n award of replacement value is the exception, not the rule.” 199
The Plaintiffs contend that the appropriate measure of damages is $21,345 per acre, the cost to cover every
inch of their leases with six inches of cultch, a condition that was never on any of their leases by the Plaintiffs’ own
admissions 200 and as well as that of their experts. 201 As discussed below, Courts which have awarded replacement
costs instead of market value under Constant, the landowner is entitled to replacement only where it will avoid the
destruction of a business. 202 This rule of law does not allow these Plaintiffs to be awarded “replacement costs” to
“restore” the State’s own water bottoms as this action will never be done 203 nor is it a remedy that makes any sense.
Further, the Plaintiffs argue both that they are entitled to replacement/relocation costs, and that their leases
have been permanently taken by the operation of Caernarvon. An award of replacement costs in this case could not
have prevented these Plaintiffs from losing their businesses, as several Plaintiffs claimed that their businesses were
already lost by the time of trial, despite the fact that they presented no evidence of a change in net income or seafood
sales as a result of Caernarvon. Accordingly, an award of replacement costs is wholly contrary to Louisiana inverse
condemnation law on damages.
Finally, the majority gave no consideration whatsoever to the uniqueness (i.e., historical production, location,
water depth, amount of cultch present, etc.) of the individual leases such that replacement cost should trump market
value as the measure of damages. Indeed, following the original class certification the Trial Court specifically noted
that these leases would all be affected differently, if at all. 204 There was no evidence presented that this was an
unusual case where the market value, as established by rental rate of $2.00 per acre, the testimony of Plaintiff Nick
197 Constant, 369 So.2d at 706.
198
State, DOTD v. Lobel, 571 So.2d 742, 744-745 (La. App. 2 nd Cir. 1990); City of
Shreveport v. Standard Printing Co. of Shreveport, 427 So.2d 1304 (La. App. 2 nd Cir. 1983), writ
denied, 434 So.2d 1106 (La. 1983).
199
200
201
202
State, DOTD v. Griffith, 585 So.2d 629, 632 (La. App. 2nd Cir. 1991).
Exhibit P237.
R. 2640.
Monroe Development Agency v. Succession of Kusin, 398 So.2d 1159 (La. App. 2 nd Cir.
1981); City of Shreveport v. Standard Printing Co. of Shreveport, Inc., 427 So.2d at 1306; Lobel, supra,
at 745.
203
204
Inabnet, Landrieu, J., dissent.
Reasons for Judgment on Class Certification at p. 4.
-37

Skansi at trial of $1,000 per acre 205 for a productive lease, or by LSU economist, Dr. Walter Keithly of $150-$200
per acre 206 for a productive lease, would be insufficient compensation. The Plaintiffs lose sight of the fact that they
do not own the State’s water bottoms; that their leases were not granted in perpetuity but for a maximum of 15 years;
or, that their leases only had value insofar as they ever produced oysters and thus income. There was no proof of loss
of income at trial as shown by the Plaintiffs’ own records of gross sales, and thus there is no claim.
D. The Use Of A Class Action To Award Uniform One-Size Fits All, Generalized Damages For
A “Taking” Violated Well Settled Law.
As set forth above, as early as the class certification hearing in this matter, it was apparent that none of the
oyster leases in this matter could have been affected in the same way by the Caernarvon project “if at all,” as the Trial
Court noted. Consequently, each individual oyster lease would require separate proof of causation and damages as
would each individual oyster lessee. Moreover, in order to recover under the “taking” or inverse condemnation
theory, the Plaintiffs were required, as set forth above, to demonstrate individual damage to particular property and
not generalized damages. The second majority opinion from the Fourth Circuit specifically allowed proof
“generally” to establish both causation and damages, while at the same time admitting that oyster production was
continuing, 207 a finding that cries out for individual analysis as to which leases are still producing. By applying a
uniform formula, the situation was made even worse insofar as the conflict with the existing law since by its very
nature, a uniform formula has to be “generalized”. Consequently, the Trial Court’s use of a class action to award
uniform damages based upon generalized proof was completely antithetical to inverse condemnation law’s
requirement of specific proof. The Fourth Circuit majority erred as a matter of both fact and law in not reversing
the Trial Court’s use of a class action in this fashion, where the property at issue only had value as a revenue source
and no extrinsic value as with realty. The Fourth Circuit simply affirmed the Trial Court’s erroneous reasoning, that
these Plaintiffs have property rights regardless of the issue of oyster production. 208 The law is actually the reciprocal
205
206
207
208
R. 3535-3538.
R. 4156-57, 4170-75.
858 So.2d at 704.
Id.
-38-

of this as these lease only have value insofar as they could produce oysters. The lower Courts’ legal reasoning was
flawed from the start.
E. There Were No Damages
It is clear that the award of restoration costs to the Plaintiffs bears no rational relation to the actual economic
output of their leases. It is a basic tenet of economics that the value of any business is determined by the income it
generates less the cost of doing business. 209 Although the Plaintiffs did not submit into the evidence their tax returns
demonstrating their expenses incurred in harvesting oysters from their leases prior to Caernarvon, an analysis of their
gross sales of oysters for this time period is instructive.
For example, Clarence Duplessis’s company, CCC Seafood, Inc., had, prior to Caernarvon, gross sales of
oysters of $18,000 (1988), $28,000 (1989), $34,195 (1990), and $36,184 (1991). 210 In other words, his pre-
Caernarvon gross sales averaged $29,000. Between 1991 and 1999, his company, CCC, had average yearly gross
sales of $28,000. 211 The jury awarded Mr. Duplessis $5,442,975 in damages. Using Mr. Duplessis pre-Caernarvon
average gross sales of $29,000, it would take him over 180 years to earn in gross sales what the jury awarded him
in damages. Further, all of these are gross sales figures, not net sales. Clearly, it would take considerably longer
for Mr. Duplessis to earn an equivalent amount when factoring in the costs and expenses associated with harvesting
these oysters, as under basic takings law, these must be deducted from his gross sales figures to determine the amount
at issue.
Similarly, Nick Skansi, in the years 1987 to 1991, averaged $160,000 per year in gross sales. 212 Between
1992 and 1998, Skansi Oyster Co. averaged $157,000 in gross sales. Although Nick Skansi’s average income post-
Caernarvon represents a negligible 2% drop from pre-Caernarvon sales, he was awarded $5,571,045 in damages.
Assuming, arguendo, this drop in gross sales in oysters could be attributable to Caernarvon, his losses for the years
1992 through 1998 would total around $21,000, or, approximately the same amount the jury awarded him for damage
to just one acre of water bottoms under lease from the State. Likewise, representative Plaintiff, Albert Avenal
testified that he did not know if any of his leases had ever produced oysters prior to Caernarvon, 213 primarily because
he purchased four of them on March 27, 1994, the day he filed suit, 214 nearly three years after Caernarvon became
operational in August 1991. Lastly, the gross sales of the representative Plaintiffs associated with the Fox family
209
210
211
212
213
214
Testimony of Walter Keithly, R. 4150-70.
See R. 2826, D-83.
Exhibit D-83.
Exhibit D-83.
R. 3455-61.
R. 3470-71.
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usiness showed a net increase from 1991 of just over $2,200,000 to nearly $4,000,000 by 1999. 215 Consequently,
there were no losses, which explains why the Plaintiffs focused their efforts on the cultch currency formula.
Nevertheless, there can be no recovery where there are no losses.
VIII. The Fourth Circuit’s Standard Of Proof Of Damages “Generally” Constitutes A Gross Departure
From Oyster Law.
The Fourth Circuit indicates that the Plaintiffs were only required to prove their damages “generally with
no legal support whatsoever.” 216 In doing so, the Fourth Circuit majority applied a new standard of proof indicating
that it was enough that “the Plaintiffs proved generally that their leases were productive before CFDS came on line,
and that they were not productive after CFDS came on line and that CDFS caused the loss of oyster productivity.”
On this basis “proximate cause had been proven.” 217 This conclusion runs completely contrary to well settled
Louisiana inverse condemnation law and constitutes an error of law, reviewable de novo. 218 The majority’s decision
relieves the Plaintiffs of having to prove specific and actual economic losses 219 or that the damages they sustained
were peculiar to their particular property. This new goal of uniform or consistent compensation for oyster
leaseholders regardless of actual loss, if any, yields them a $21,345 per acre windfall without ever having to prove
that a single oyster was ever harvested from a particular lease.
Perhaps the worst manifestation of this reasoning was the case of lead Plaintiff, Albert Avenal, who
purchased four leases at auction from LDWF nearly three years after Caernarvon was operational on the very date
he filed this lawsuit. 220 Mr. Avenal admitted, however, that one of those leases, No. 30766, was not, in fact, damaged
by Caernarvon. 221 Furthermore, Mr. Avenal admitted that he did not know if any of these leases had ever produced
a single oyster before Caernarvon went online. 222 The jury awarded Mr. Avenal $1,000 per acre for his 826 lease
acres, the fair market value established by fellow Plaintiff, Nick Skansi. The Fourth Circuit majority, in a mere
footnote subsequently increased Mr. Avenal’s award to only $17,000,000, because he was “well established” in the
commercial fishing community. 223 Since this is by no means a legal standard of review, or “additur,” the action of
the Fourth Circuit should certainly be overturned. Even the jury’s original award of $1,000 per acre is exorbitant
for admittedly worthless leases which, prior to Caernarvon, had no documented history of production or an income
215
216
217
218
219
220
221
222
223
Exhibit D-11.
858 So.2d at 704.
Id.
LeBlanc v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d 766.
Dietrich, supra.
D-16 - 19.
R. 3457-3458.
R. 3457-3460.
Avenal, supra at 703, n. 4.
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stream.
Another error related to damages is the Plaintiffs’ suggestion that DNR Secretary Jack Caldwell admitted
that the Plaintiffs’ leases were worth at least $7,000 per acre. A review of the record, however, demonstrates that
Secretary Caldwell testified, he, working with the Plaintiffs’ expert, Mike Voisin, went to Washington to
“beg”Congress for money to relocate oyster leases that would be affected by the Davis Pond project. 224 Secretary
Caldwell testified before Congress that “quantum studies and court valuations indicate a average acre value at $7,000
per acre in Plaquemines Parish.” 225 In other words, Secretary Caldwell informed Congress of what Courts had
awarded oyster leaseholders $7,000 per productive acre or acre of cultch, not for every acre of every lease, productive
or unproductive. If the percentage of cultch had been determined by side-scan or even by the Plaintiffs’ own
fictitious chart 226 at 10% cultch then a lease acre would average $700 per lease acre. Remand is therefore warranted.
Furthermore, Secretary Caldwell testified that those valuations did not refer to relocation costs for all leases,
productive or unproductive over the entire Breton Sound, which is what the Plaintiffs were seeking at trial. 227 The
Plaintiffs’ contentions simply prove the old adage that “no good deed goes unpunished”.
In sum, the Plaintiffs’ leases, if productive prior to Caernarvon, were shown to have a maximum worth of
$1,000 from a market value standpoint. At minimum they were nothing if worthless, unimproved mud, such as those
useless leases purchased by Albert Avenal at a LDWF auction the day he filed suit. In between these values, Dr.
Keithly showed oyster leases, if productive, averaged $150-200 per acre in value. However, since Plaintiffs failed
to produce any recognizable evidence that their leases at issue were ever productive prior to Caernarvon, there can
be no recovery.
IX. The Exclusion Of Side-Scan Evidence Contravenes The Law On Expert Testimony Technology
The Trial Court abused its discretion and clearly erred in excluding DNR’s evidence and testimony related
to side-scan sonar surveys of the Plaintiffs’ leases. Assuming, arguendo, a cultch currency matrix is the appropriate
measure of damages in this case, which is denied, then side-scan sonar must be used in conjunction therewith to map
the State’s water bottoms leased to the Plaintiffs. Even if a cultch currency matrix is not used, this evidence is still
vital to show the jury, based upon scientifically accepted principles, exactly where reef and cultch on the Plaintiffs’
leases is located to simply see what is actually there and properly assess their takings claims. Otherwise, the trier
of fact in this or any other case is limited to the Plaintiffs’ “guestimate” on the percentage of reef, cultch, scattered
shell and mud, that were wholly unscientific, unsubstantiated and lacked correlation to the theory of Plaintiffs’ own
224
225
226
227
R. 2758-2761.
R. 2719, 2723.
P237.
R. 2719.
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experts. 228
As Judge Tobias explained in his dissent, DNR proffered evidence that the application of the cultch currency
matrix for purposes of estimating damages to an oyster reef entails the use of both side-scan sonar and ground
truthing, both of which are generally accepted in the scientific community in estimating aquatic habitats. Indeed,
the Trial Court stated that side-scan sonar is well respected and accepted in the scientific community. 229 Furthermore,
the evidence showed that both methodologies have a rate of error when used together, but that the side-scan sonar
methodologies have a 90 percent accuracy rate. 230 Most importantly, this was the exact same technology used by
the State with the consent of the industry to evaluate oyster leases for the Davis Pond project.
For reasons which remain unclear, the majority states that this technique has not been the subject of peer-
reviewed publication. 231 In truth, DNR submitted two peer reviewed articles during the Daubert hearing, The
Application of Hydroacoustics to the Mapping of Subtidal Oyster Reefs and An Improved Method for Mapping
Oyster Bottom Using a Global Positioning System and an Acoustic Profiler, which confirms the use of this type of
data for mapping oyster leases. 232 Furthermore, DNR’s experts, Dr. Harry Roberts and Dr. Charles Wilson, have also
published articles on the use of side-scan sonar studies. 233 All of these published articles were written in the context
of research independent of the litigation, which Courts consider a “very significant fact” within the Daubert
factors. 234 Expert testimony on oyster mortality has been found admissible on far less substantive grounds. 235
228
229
230
231
232
233
R. 2640.
R. 4452.
858 So.2d at 718, n. 14.
Id. at 705.
Vol. 1 of 1, Second Supplemental Record, R. 29.
Proffer of testimony of Dr. Charles Wilson, Dr. Harry Roberts, and Mr. Bud Brodtmann,
R. Vol. No. Exhibits 1 of 7 filed 5/3/01, pp. 8, 10-11.
234
235 Id.
Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 (9 th Cir. 2003).
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Finally, Judge Tobias notes the inherent contradiction of excluding the State’s side-scan sonar and related
ground truthing evidence. The majority affirmed the Trial Court’s application of a cultch currency matrix that was
predicated on the use of side-scan sonar technology and ground truthing in Barataria Bay for the Davis Pond project.
Inexplicably, the Trial Court excluded that same exact evidence when the State attempted to prove the actual amount
of reef and cultch on the Plaintiffs’ leases. This resulted in the jury’s improper award of the cost to “pave” every inch
of every acre of every lease in Breton Sound with six inches of cultch, a condition which never existed either before
or after Caernarvon or anywhere on the Gulf. It is critical that this technology be recognized and legally admissible
for this and all other coastal restoration projects, not only to help the trier of fact quickly reach the truth in this or
any other oyster lease cases, but to allow the technology to be used as an evaluative tool as in the Davis Pond
situation, to prevent litigation from arising in the future.
CONCLUSION
There is no question that an award of this nature clearly “shocks the conscience” as at least two Fourth
Circuit Judges have so indicated. A third was so moved by this aberrational award that he penned a 61 page dissent.
Even the Plaintiffs have admitted that they did not deserve this award! Consequently, there is no question that the
award should be thrown out.
Plainly stated, the rulings below were wrong. The Plaintiffs simply failed to carry their legal burden that they
suffered any compensable injury much less the specific amount of any alleged injury on an individual basis as the
law requires. The case should be dismissed in its entirety or at a minimum reversed and remanded.
RESPECTFULLY SUBMITTED:
__________________________________________
ANDREW C. WILSON, Lead Counsel - #1162
DAVID L. CARRIGEE - #3892
JEDD S. MALISH - #23846
Special Assistants Attorney General
20th Floor, Energy Center
1100 Poydras Street
New Orleans, Louisiana 70163-2000
Telephone: (504) 569-2900
and (138590)
BURKE & MAYER, of Counsel
Attorneys for The State of Louisiana through the Department of
Natural Resources
-43-

STATE OF LOUISIANA
PARISH OF ORLEANS
VERIFICATION
BEFORE ME, the undersigned authority, personally came and appeared:
who did attest that:
ANDREW C. WILSON
1. He is lead counsel of record in this matter for the State of Louisiana and the Department of Natural
Resources;
2. As lead counsel for the State of Louisiana and the Department of Natural Resources, he verifies that
the allegations contained in this Original Brief are true and correct to the best of his knowledge,
information and belief; and
3. A copy of this Original Brief has been delivered via U.S. Mail to Plaintiffs’ counsel, Scott LaBarre,
Esq., Gauthier, Downing, LaBarre, Beiser & Dean, 3500 North Hullen Street, Metairie, LA 70002,
(504) 456-8600; Phillip F. Cossich, Esq., Cossich, Sumich & Parsiola, 8056 Hwy. 23 - Suite 200,
Belle Chasse, LA 70037, (504) 394-9000; Carolyn A. McNabb, Esq., 8026 Main St., Suite 520,
Houma, LA 70360-3407, (985) 876-3885; and Joseph G. Jevic, III, Esq., St. Martin & Williams,
4084 Highway 311, P. O. Box 2017, Houma, LA 70361-2017, (985) 876-3891.
Sworn to and subscribed before me
this _____ day of _________, 2004.
NOTARY PUBLIC
ANDREW C. WILSON
-44-