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Louisiana Oyster Leases:. Louisiana v. Federal Takings Laws in the Oyster Lease/Relocation Conflicts and the Oyster Lease Relocation Program Lisa C. Schiavinato Legal Coordinator
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Louisiana Oyster Leases: Louisiana v. Federal Takings Laws in the Oyster Lease/Relocation Conflicts and the Oyster Lease Relocation Program Lisa C. Schiavinato Legal Coordinator LA Sea Grant Legal Program
Penn Central Factors: Character of the government’s action; Economic impact on the claimant; and The extent to which to government’s action (s) has interfered with the claimant’s reasonable investment-backed expectations regarding the use of the property. Chambers Factors: Has a person’s legal right to a thing or object been affected? Has the property been damaged or taken in a constitutional sense? Was the taking or damage for a public purpose? Federal Takings Law v. Louisiana Takings Law
Why was there a taking according to Louisiana law and no taking according to Federal law? According to Avenal v. United States, the 5th Circuit Court of Appeals held that the plaintiffs failed the third prong of the Penn Central test, i.e., that they did not have reasonable investment-backed expectations in their oyster leases because they “knew” or “should have known” that the government had been planning the Caernarvon freshwater diversion project for many years. In effect, the plaintiffs had sufficient notice of the project and that it would affect their oyster leases. On the other hand, the plaintiffs prevailed in their lawsuit against the State because, according to Chambers and the 4th Circuit, reasonable investment-backed expectations is not a factor for consideration in a Louisiana takings analysis.
Avenal and Alonzo Appeals • Earlier this fall, a 3-judge panel of the 4th Circuit Court of Appeals for the State of Louisiana handed down a ruling in Avenal. It was a 2 to 1 decision to modify or reverse with 1 judge dissenting. Under Louisiana rules of appellate court, the case had to be re-heard by a 5-judge panel. Oral arguments were heard on November 20, 2002, and a decision is pending. • In Alonzo, the 4th Circuit ruled that the trial court had improperly handled a recusal motion and ordered that the motion be reassigned on a random basis.
Options: Exchange Relocation Retention Purchase 2001 Amendments: La. R.S. 56:430.1 requires Oyster leaseholders to submit a form to LDWF annually containing The leaseholder’s name, harvest Grid numbers, amount of marketable oysters removed, amount of seed oysters removed, amount of cultch material placed, the amount of seed oysters placed, and whether the seed oysters were from a private lease or state seed grounds. Oyster Lease Relocation Program
The ORLP and Davis Pond Diversion Project • Funds are to be distributed on a pro rate basis until exhausted. Davis Pond funds were sufficient for full compensation to lessees in the primary impact area. • The OLRP prohibits an aggrieved lessee from filing a lawsuit until all remedies have been exhausted under the OLRP. • There was no funding to compensate leaseholders in the cumulative impact area, and at least one lawsuit has been filed by a leaseholder in this area. However, the State and the Oyster Task Force are currently seeking from the federal government an additional $18M to fund compensation for leaseholders in this area. • According to La. Admin. Code Tit. 43: I, Section 875, the 2000 regulations for the OLRP are only applicable to Davis Pond and supercede the 1998 regulations if any conflict between them exists. Therefore, the 2000 regulations only apply to lease within Davis Pond. Leases located anywhere else are subject to the 1998 regulations.
Slavich Lawsuit and Oyster Lease Indemnity Clauses • This lawsuit challenges the validity of the indemnity clauses in the statute and in the oyster lease agreements themselves. The statute and leases state that all existing leases are subject to indemnity. • La. R.S. 56:427.1, which established that a “hold harmless” clause be included in all oyster leases, extensions, and renewals issued after July 1, 1995, states that “the state of Louisiana, its political subdivisions, and its agents or employees shall be held free and harmless from any claims for loss or damages to rights arising under any oyster lease, renewal, or extension granted to any individual or other entity for any purpose from [authorized coastal restoration activities].” • Slavich is still an ongoing lawsuit that has yet to be resolved.
