Appendix Vol II — Louisiana Department of Natural Resources v. Avenal
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t — Supreme Court, U.S.
(S/) FILED
No 00 456 SEP 20200
Jn the |
Supreme Court of the Gnited States
STATE OF LOUISIANA,
DEPARTMENT OF NATURAL RESOURCES
Petitioner
VERSUS
ALBERT J. AVENAL, JR., CLARENCE R. DUPLESSIS,
KENNETH A. FOX, FOX OYSTER COMPANY, AND
NICK L. SKANSI
Respondents
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF LOUISIANA
and
LOUISIANA COURT OF APPEAL FOR THE
FOURTH CIRCUIT
APPENDIX VOLUME II
Appendix I - Appendix M
JAMES G. BURKE, JR.
Counsel of Record
ANDREW C. WILSON
DAVID L. CARRIGEE
JEDD S. MALISH
Burke & Mayer
~ 1100 Poydras St., Suite 2000
New Orleans, LA 70163
Telephone: (504) 569-2900
Counsel for Petitioner
GRE CR SRNR A NERS CATT TR TR cee ret ima
Riverside Printing, L.L.C., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000
OFFICE OF THE CLERK
A-93
APPENDIX I
U.S.C.A. Const. Art. VI cl. 2
Clause 2. Supreme Law of Land
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof: and all Treaties made, or
which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwith-
standing.
A-94
APPENDIX J
IN THE UNITED STATES
COURT OF FEDERAL CLAIMS
ALBERT J. AVENAL, JR., ANTHONY
BARTHELEMY, CHRIS. P. BARTHELEMY,
GARY BARTHELEMY, NEAL BESHEL,
ANNA BUTSCHER BURAS, ANNA BESSIE
BODDEN BURAS, NEAL BURAS, RALPH
-BURAS, RALPH J. BURAS, JR., RICHARD
BURAS, DONALD J. CAMPO, DONALD
J. CAMPO, JR., DONALD P. CAMPO, ERNEST
CAMPO, MATHILDA GUERRA CAMPO,
ESTATE OF TONY CAMPO, ANNA
CIBILICH, PERO CIBILIC, RICHARD H.
CLARK, CLEAR WATER OYSTERS,
CRESCENT OYSTERS, INC., IRVIN
CROSS, ESTATE OF JOSEPH CROSS,
MELVIN CROSS, CLARENCE R.
DUPLESSIS, CLARENCE R. DUPLESSIS, JR.
ARTHUR ENCALADE, CARLISS J.
ENCALADE, ESTATE OF JOSEPH
ENCALADE, STANLEY ENCALADE, ENCADE
SEAFOOD, INC., M.J. FARAC, JR., MAJA
FARAC, SINAJKA FARAC, DANIEL R.
FERNANDEZ, ANN P. FOX, CALVIN R.
FOX, CALVIN R. FOX, DALE E. FOX,
KENNETH A. FOX, KENNETH RYAN
FOX, MARIE 0. FOX, RACHEL FOX,
RHONDA FOX, RODNEY FOX, JR.,
RODNEY L. FOX, ROSS LOUIS FOX,
FOX INDUSTRIES, FOX OYSTER CO., |
INC., FOX SEAFOODS, INC., ESTATE
OF M.J. FRANICEVICH, ESTATE OF
* * 2 * * * * * * * + * \* a * + + aa a + * . + + * * + *
A-95
FRANK GANIER, GULF INC.,
MICHAEL GUTTUSO, ABRAHAM
HARNESS, MORRIS HARVEY,
NATHAN G. HARVEY, HOWARD HINGLE,
LAURIE A. DUPLESSIS HOLIDAY,
HERMAN ISADORE, JR., J & P
OYSTERS, INC., ESTATE OF MAYO P.
JONES, JR., ROBERT N. KEENAN,
DONALD J. KENNAIR, JR., RALPH
KIEFF, RALPH J. KIEFF, JR.,
JOSEPH LABRUZZO, ARTHUR L.
LAFRANCE, JOEY G. LATAPIE,
CLIFFORD LEBOUEF, JEAN LEBOUEF,
LINDY LEBOUEF, LORNE LEBOUEF,
ANTE LEPETICH, NATO LEPETICH,
JOHN MARTINEZ, MEDERIC R. MEYER,
MATTHEW DAVID MEYERS, MITCHEL
MEYERS, ALLAN C. MOLERO, JR.,
JANET MOLERO, JR., ELENORA NOOK,
CLADMON NARCISSE, FELIX NARCISSE,
OLIVER B. NARCISSE, NICOLAE
NITICA, OYSTER FISHERIES, INC.,
CURT PANNAGL, PATTI PANNAGL,
RICHARD PATTERSON, PEAN, INC.,
JOSID PIACUN, MARINKO PIACUN,
PASKO PIACUN, ANTON N. POPICH,
ARTHUR A. REDDICK, JR., ARTHUR A.
REDDICK, KEVIN JOSEPH REDDICK,
JOHN DWIGHT RILEY, VAN ROBIN,
ADAM SERIGNE, LIONEL R. SERIGNE,
O’NIEL N. SERIGNE, PHILLIP H.
SIMMONS, HELEN T. SKANSI, NICK L.
SKANSI, FRANK SLAVICH, JR., TACO,
INC., ANN S. TESVICH, FRANCES LYNN
TESVICH, IVO A. TESVICH, JOHN A.
A-96
TESVICH, KUZMA
TESVICH, LISA K. TESVICH, MARIA
TESVICH, NEDO TESVICH,
PETER J. TESVICH, PETER L. TESVICH,
TESVICH OYSTERS, INC., CHARLIE
THOMPSON, STEVE THOMPSON, JOSEPH
TINSON, TINSON SEAFOOD COMPANY,
NIKOLA ANTE VEKIC AND
NIKOLA ZARAK
Plaintiffs
VERSUS
UNITED STATES OF AMERICA,
* + © * * * * * * + + + + * * o
Defendant fi
EKKKKEAKKKKKKAKEKAKKKAKKKEKKAKEKHKKKAKKKKKKKKKKKEKKSE
COMPLAINT — CLASS ACTION
No. 94-261 L
Filed Apr 26, 1994
COMPLAINT ee
NOW INTO COURT, through undersigned counsel,
come plaintiffs, ALBERT J. AVENAL, JR., ANTHONY
BARTHELEMY, CHRIS P. BARTHELEMY, GARY
BARTHELEMY, NEAL BESHEL, ANNA BUTSCHER
BURAS, ANNA BESSIE BODDEN BURAS, NEAL
BURAS, RALPH J. BURAS, RALPH J. BURAS, JR.,
RICHARD BURAS, DONALD J. CAMPO, DONALD J.
CAMPO, JR., DONALD P. CAMPO, ERNEST CAMPO,
MATHILDA GUERRA CAMPO, ESTATE OF TONY
CAMPO, ANNA CIBILICH, PERO CIBILIC, RICHARD
H. CLARK, CLEAR WATER, OYSTERS, INC.,
}
j
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CRESCENT OYSTERS, INC., IRVIN CROSS, ESTATE OF
JOSEPH CROSS, MELVIN CROSS, CLARENCE-R. DUP-
LESSIS, CLARENCE R. DUPLESSIS, JR., ARTHUR
ENCALADE, CARLISS J. ENCALADE, ESTATE OF
JOSPEH ENCALADE, STANLEY ENCALADE,
ENCALADE SEAFOOD, INC., M.J. FARAC, M.J. FARAC,
JR., MAJA FARAC, SINAJKA FARAC, DANIEL R. FER-
NANDEZ, ANN P. FOX, CALVIN R. FOX, CALVIN R.
FOX, JR., DALE E. FOX, GENE L. FOX, JUSTIN RYAN
FOX, KENNETH A. FOX, KENNETH RYAN FOX, MARIE
0. FOX, RACHEL FOX, RHONDA FOX, RODNEY FOX,
JR., RODNEY L. FOX, ROSS LOUIS FOX, FOX INDUS-
TRIES, FOX OYSTER CO., INC., FOX SEAFOODS, INC.,
ESTATE OF M.J. FRANICEVICH, ESTATE OF FRANK
GANIER, GULF QUALITY, INC., MICHAEL GUTTUSO,
ABRAHAM J. HARNESS, MORRIS HARVEY, NATHAN
G. HARVEY, HOWARD HINGLE, LAURIE A. DUP-
LESSIS HOLIDAY, HERMAN ISADORE, JR., J & P OYS-
TERS, INC., ESTATE OF MAYO P. JONES-JR ROBERT
M. KEENAN, DONALD J. KENNAIR, JR., RALPH
J.KIEFF, RALPH J. KIEFF, JR., JOSEPH LABRUZZO,
ARTHUR L. LAFRANCE, JOEY G. LATAPIE, CLIFFORD
LEBOUEF, JEAN LEBOUEF, LINDY LEBOUEF, LORNE
LEBOUEF, ANTE LEPETICH, MATO LEPETICH, JOHN
MARTINEZ, MEDERIC R. MEYER, MATTHEW DAVID
MEYERS, MITCHEL MEYERS, ALLAN C. MOLERO,
JR., JANET MOLERO, ELENORA MOOK, CLADMON
NARCISSE, FELIX NARCISSE, OLIVER B. NARCISSE,
NICOLAE NITICA, OYSTER FIS HERIES, INC., CURT
PANNAGL, PATTI PANNAGL, RICHARD PATTERSON,
PEAN, INC., JOSIP PIACUN, MARINKO PIACUN,
PASKO PIACUN, ANTON N. POPICH, ARTHUR A.
REDDICK, JR. , ARTHUR A. REDDICK, KEVIN
JOSEPH REDDICK, JOHN DWIGHT
~ A-98
RILEY, VAN ROBIN, ADAM R. SERIGNE, LIONEL R.
SERIGNE, O'NIEL N. SERIGNE, PHILLIP H. SIMMONS,
HELEN T. SKANSI, NICK L. SKANSI, FRANK
SLAVICH, JR., TACO, INC., ANN S. TESVICH,
FRANCES LYNN TESVICH, IVO A. TESVICH, JOHN A.
TESVICH, KUZMA I. TESVICH, JR., ESTATE OF
KUZMA J. TESVICH, LISA K. TESVICH, MARIA
TESVICH, NEDO TESVICH, PETER J. TESVICH, PETER
L. TESVICH, TESVICH OYSTERS, INC., CHARLIE
THOMPSON, STEVE FHOMPSON, JOSEPH TINSON,
TINSON SEAFOOD COMPANY, NIKOLA ANTE VEKIC
AND NIKOLA ZARAK, for themselves and all other mem-
bers of the class hereinafter described, who allege as follows:
JURISDICTION
l.
This Court has jurisdiction to hear this matter pur-
suant to 28 U.S.C. 1491, et seq., and the Fifth Amendment of
the United States Constitution which prohibits the taking of
private property without just compensation.
PLAINTIFFS AND PROPOSED Si
CLASS REPRESENTATIVES
‘a
The named plaintiffs and proposed class representa-
tives, and all other members of the class- hereinafter
described, are residents of the State of Louisiana.
DEFENDANT
>.
Made defendant herein is the United States of
A-99
~ America through its agencies including but not necessarily
limited to the United States Army Corps of Engineers.
FACTUAL ALLEGATIONS
4.
In or about the Spring of 1988, defendant, through the
United States Army Corps of Engineers, commenced con-
struction of the Caernarvon Freshwater Diversion Project, as
authorized on October 27, 1965 , by Public Law 89-298, of
the Eighty-ninth Congress, First Session. Construction of the
Caernarvon structure was completed in or about the Fall of
1991.
5.
The stated purposes Caernarvon Project not limited
to, the enhancement of emergent marsh vegetation growth
and the reduction of marsh loss. The United States Army
Corps of Engineers attempts to achieve this stated goal by
allowing fresh water from the Mississippi River to flow
through the Caernarvon structure into the salt water areas.
6.
When the freshwater diverted from the Mississippi
reaches the waterbottoms leased by plaintiffs from the State
of Louisiana, it dilutes the sa linity of the waters and deposits
silt on the waterbottoms. As a direct result of the dilution of
the salinity of the waters wherein plaintiffs’ leases are locat-
ed, as well as, the increased vegetation- and bacteria on or
near the water bo;ttoms wherein plaintiffs' Leases are locat-
ed, and the silt deposits, the productivity of plaintiffs' leases
ag
A-100
has been and is being destroyed, as the altered conditions of
the waters wherein plaintiffs” leases are located make plain-
tiffs’ leases no longer capable of oyster growth and cultiva-
tion.
z
The hereinabove described actions of defendant have
resulted in a permanent and substantial interference with
plaintiffs’ use and enjoyment of their land amounting to a
taking of an interest in plaintiffs' valuable property rights
without compensation in violation of the Fifth Amendment
of the United States Constitution.
6.
Defendant has not instituted any condemnation pro-
ceeding to acquire all or any part of plaintiffs' land, nor has
defendant paid or offered to pay to plaintiffs any amount for
the damages inflicted upon their oyster leases.
THE CLASS ‘
9. ea
This action is brought and may properly be main-
tained as a class action pursuant to provisions of Rule 23 of
the Rules of the United States Court of Federal claims.
Plaintiffs bring this action on behalf of themselves and all
others similarly situated as representative members of the
following proposed class:
All individuals, partnerships, corporations, etc, own-
ing oyster farming leases in the State of Louisiana which
leasehold interests were destroyed or otherwise adversely
affected by the actions of /the United~ States
f
;
/
A-101
government known as the Caernarvon Freshwater Diversion
Project, as more fully explained below.
NUMEROSITY
10.
The proposed class is so numerous that the individual
joinder of all of its members is impracticable. The exact
number of members of the class is not known, but it estimat-
ed that there are not less than ONE THOUSAND (1,000).
members.
COMMON QUESTIONS OF LAW AND FACT
1].
There are common questions of law and fact in the
action that relate to and affect the rights of each member of
the class and the relief sought is common to the entire class,
namely, whether the destruction of plaintiffs’ oyster leases
constitutes a compensable taking within the meaning of the
Fifth Amendment of the United States Constitution.
TYPICALITY OF CLAIMS
12.
Plaintiffs’ claims are typical of the claims of the
members of the class. Plaintiffs and all- members of the class
sustained a loss of property arising out of defendant's con-
duct as explained herein.
FAIR AND ADEQUATE REPRESENTATION
13.
Plaintiffs will fairly and adequately protect the interests of
the members of the class. They have retained attorneys
A-102
experienced and capable in class action and in litigation of
oyster damage claims. There is no conflict between any indi-
vidual named plaintiff and other members of the class with
respect to this action, or with respect to the claims for relief
set forth herein.
RISK OF VARYING ADJUDICATIONS
14.
This action is properly maintained as a class action in
that the prosecution of separate actions by individual mem-
bers of the class would create a risk of varying adjudications
with respect to individual members of the class which as a.
practical matter would be dispositive of the interests of the
other members not parties to the adjudications, or would sub-
stantially impair or impede their ability to protect their inter-
est.
GOVERNMENT HAS ACTED ON GROUNDS
GENERALLY APPLICABLE TO CLASS
15.
The United States has acted or refused to act, as
alleged mor specifically below, on grounds which are gener-
ally applicable to the entire class.
SUPERIORITY OF PROCEEDING
AS A CLASS ACTION
16.
A class action is superior to other available methods
for the fair and efficient adjudication of this litigation, since
individual joinder of' all members is impracticable. Even if
class members could afford individual litigation, it would
be unduly burdensome to the Courts in which the
CL
errr
A-103
individual litigation would proceed. Individual litigation in
this matter would magnify the delay and expense to all par-
ties in the court system. The class action device presents
fewer management difficulties and provides the benefit of
unitary adjudication, economy of scale and comprehensive
supervision by a single court.
RELIEF SOUGHT
17.
Plaintiffs request a judgment of this court in their
favor and against defendant as follows:
a. That in due course this matter be certified as a class
action with an "opt-out" designation; ©
b. For damages as occasioned by the loss in future prof-
its from the sale of oysters from plaintiffs' leases;
a For damages as occasioned by the loss of past invest-
ment in their leasehold interests;
d. For legal interest on all amounts due from the date of
the taking until paid;
e. For recovery of plaintiffs' reasonable costs, disbursements,
and expenses, including attorneys’ fees, damage appraisals,
and expert fees actually incurred because of this proceeding,
in accordance with 28 U.S.C. 1.491 and 42 U.S.C. 4654; and,
f. For all general and equitable relief
A-104
Respectfully submitted,
ST. MARTIN, LIRETTE, SHEA,
WATKINS & MCNABB, APLC
/s/ Michael St. Marti
MICHAEL ST. MARTIN
CAROLYN A. MCNABB
Attorneys for Plaintiffs
3373 Little Bayou Black Road
Houma, Louisiana 70:361-2017
Telephone (504)876-31391
Signed this 22nd day of April, 1994
PLEASE SERVE THE UNITED STATES OF AMERICA
THROUGH DELIVERY TO THE ATTORNEY GENERAL
IN ACCORDANCE WITH RUSCFC 4
A-105
APPENDIX K
25TH JUDICIAL DISTRICT COURT FOR
THE PARISH OF PLAQUEMINES
STATE OF LOUISIANA
NO. 38-266 DIVISION B
ALBERT J. AVENAL, JR., ANTHONY BARTHELEMY,
CHRIS P. BARTHELEMY, GARY BARTHELEMY, ANNA
BUTSCHER BURAS, ANNA BESSIE BODDEN BURAS,
NEAL BURAS, RALPH J. BURAS, RALPH J. BURAS JR.,
RICHARD BURAS, DONALD J. CAMPO JR., DONALD P.
CAMPO, ERNEST CAMPO, MATHILDA GUERRA
CAMPO, ESTATE OF TONY CAMPO, ANNA CIBILICH,
PERO CIBILICH, RICHARD H. CLARK, CRESCENT
OYSTER, INC., IRVIN CROSS, ESTATE OF JOSEPH
CROSS, MELVIN CROSS, CLARENCE R. DUPLESSIS,
CLARENCE R. DUPLESSIS, JR., ARTHUR ENCALADE,
CARLISS J. ENCALADE, ESTATE OF JOSEPH
ENCALADE, STANLEY ENCALADE, ENCALADE
SEAFOOD, INC., M.J. FARAC, M.J. FARAC, JR., MAJA
FARAC, SINAJKA FARAC, ANN P. FOX, CALVIN R.
FOX, CALVIN R. FOX, JR., DALE. E. FOX, GENE L. FOX,
JUSTIN RYAN FOX, KENNETH A. FOX, KENNETH
RYAN FOX, MARIE O. FOX, RACHEL FOX, RHONDA
FOX, RODNEY FOX, JR., RODNEY L. F OX, ROSS LOUIS
FOX,
FOX INDUSTRIES, FOX OYSTER CO., INC., FOX
SEAFOODS, INC., ESTATE OF M. J. FRANICEVICH,
ESTATE OF, FRANK GANIER, ABRAHAM J. HARNESS,
NATHAN G. HARVEY, LAURIE A. DUPLESSIS HOLI-
DAY, HERMAN ISADORE, JR., J & P OYSTERS, INC.,
A-106
ESTATE OF MAYO P. JONES, JR., ROBERT M.
KEENAN, DONALD J. KENNAIR, JR., JOSEPH
LABRUZZO, ARTHUR L. LAFRANCE, JOEY G. LAT-
~ APIE, CLIFFORD LEBOUEF, JEAN LEBOUEF, LINDY
LEBOUEF, LORNE LEBOUEF, ANTE LEPETICH, MATO
LEPETICH, JOHN MARTINEZ, MEDERIC R. MEYER,
MATTHEW DAVID MEYERS, MITCHEL MEYERS,
CLADMON NARCISSE, FELIX NARCISSE, OLIVER B.
NARCISSE, NICOLAE NITICA, RICHARD PATTERSON,
PEAN, INC., IVO N. POPICH, ANTON N. POPICH,
ARTHUR A. REDDICK, ADAM R. SERIGNE, LIONEL R.
SERIGNE, O'NIEL N. SERIGNE, PHILLIP H. SIMMONS,
HELEN T. SKANSI, NICK L. SKANSI, FRANK
SLAVICH, JR., TACO, INC., ANN S. TESVICH,
FRANCES LYNN TESVICH, [VO A. TESVICH, JOHN A.
TESVICH, KUZMA I. TESVICH, JR., ESTATE OF
KUZMA J. TESVICH, LISA K. TESVICH, MARIA
TESVICH, NEDO TESVICH, PETER J. TESVICH, PETER
L. TESVICH, TESVICH OYSTERS, INC., CHARLIE
THOMPSON, STEVE THOMPSON, JOSEPH TINSON,
AND NIKOLA ANTE VEKIC
VERSUS
THE STATE OF LOUISIANA ~
DEPARTMENT OF NATURAL RESOURCES
PETITION FOR DAMAGES - CLASS ACTION
FILED March 29, 1994
NOW INTO COURT, through undersigned counsel, -
come plaintiffs, who respectfully represent:
I.
Plaintiffs, ALBERT J. AVENAL, JR., ANTHONY
BARTHELEMY CHRIS P. BARTHELEMY, GARY
TAEDA ACM MRI RL
A-107
BARTHELEMY, ANNA BUTSCHER BURAS, ANNA
BESSIE BODDEN BURAS, NEAL BURAS, RALPH J.
BURAS, RALPH J. BURAS JR., RICHARD BURAS,
DONALD J. CAMPO JR., DONALD P. CAMPO, ERNEST
CAMPO, MATHILDA GUERRA CAMPO, ESTATE OF
TONY CAMPO, ANNA CIBILICH, PERO CIBILICH,
RICHARD H. CLARK, CRESCENT OYSTER, INC.,
IRVIN CROSS, ESTATE OF JOSEPH CROSS, MELVIN
CROSS, CLARENCE R. DUPLESSIS, CLARENCE R.
DUPLESSIS, JR., ARTHUR ENCALADE, CARLISS J.
ENCALADE, ESTATE OF JOSEPH ENCALADE, STAN-
LEY ENCALADE, ENCALADE SEAFOOD, INC., M.J.
FARAC, M.J. FARAC, JR., MAJA FARAC, SINAJKA
FARAC, ANN P. FOX, CALVIN R. FOX, CALVIN R.
FOX, JR., DALE. E. FOX, GENE L. FOX, JUSTIN RYAN
FOX, KENNETH A. FOX, KENNETH RYAN FOX,
MARIE O. FOX, RACHEL FOX, RHONDA FOX, ROD- |
NEY FOX, JR., RODNEY L. FOX, ROSS LOUIS FOX,
FOX INDUSTRIES, FOX OYSTER CO., INC., FOX
SEAFOODS, INC., ESTATE OF M. J. FRANICEVICH,
ESTATE OF, FRANK GANIER, ABRAHAM J. HARNESS,
NATHAN G. HARVEY, LAURIE A. DUPLESSIS HOLI-
DAY, HERMAN ISADORE, JR., J & P OYSTERS, INC.,
ESTATE OF MAYO P. JONES, JR., ROBERT M.
KEENAN, DONALD J. KENNAIR, JR., JOSEPH
LABRUZZO, ARTHUR L. LAFRANCE, JOEY G. LAT-
APIE, CLIFFORD LEBOUEF, JEAN LEBOUEF, LINDY
LEBOUEF, LORNE LEBOUEF, ANTE LEPETICH, MATO
LEPETICH, JOHN MARTINEZ, MEDERIC R. MEYER,
MATTHEW DAVID MEYERS, MITCHEL MEYERS,
CLADMON NARCISSE, FELIX NARCISSE, OLIVER B.
NARCISSE, NICOLAE NITICA, RICHARD PATTERSON,
PEAN, INC., IVO N. POPICH, ANTON N. POPICH,
ARTHUR A. REDDICK, ADAM R. SERIGNE, LIONEL
A-108
R. SERIGNE, O'NIEL N. SERIGNE, PHILLIP H. SIM-
MONS, HELEN T. SKANSI, NICK L. SKANSI, FRANK
SLAVICH, JR., TACO, INC., ANN S. TESVICH,
FRANCES LYNN TESVICH, IVO A. TESVICH, JOHN A.
TESVICH, KUZMA I. TESVICH, JR., ESTATE OF
KUZMA J. TESVICH, LISA K. TESVICH, MARIA
TESVICH, NEDO TESVICH, PETER J. TESVICH, PETER
L. TESVICH, TESVICH OYSTERS, INC., CHARLIE
THOMPSON, STEVE THOMPSON, JOSEPH TINSON,
AND NIKOLA ANTE VEKIC, all residents of or conducting
business in Plaquemines and St. Bernard Parishes, bring this
action on their own behalf and on behalf of others similarly
situated in the respects described below.
Il.
This is a class action brought pursuant to La.C.C.P.
art. 591 et. seq., on behalf of all individuals, partnerships,
corporations and entities that currently own or have owned
oyster leases located within the parishes of Plaquemines and
St. Bernard that have been damaged as a result of the actions
of the State of Louisiana, acting by and through the
Department of Natural Resources, in diverting fresh water
from the Mississippi River through the Caernarvon
Freshwater Diversion Project into these areas where plain-
tiffs’ oyster leases are located. The freshwater diversion
resulted in lowered salinity levels and a consequent profu-
sion of certain vegetation in the affected areas, killing the
then-extant oysters and rendering the beds unquitable for fur-
ther cultivation. Plaintiffs seek to recover compensation for
the destruction of their leasehold interest which were appro-
priated for public use by the State of Louisiana through the
actions of the Department of Natural Resources.
A-109
IIT.
Made defendants herein are the State of Louisiana
and the Department of Natural Resources.
IV.
The State of Louisiana, acting through the
Department of Natural Resources, and in conjunction with
the United States Army Corps of Engineers, authorized,
funded, constructed, and currently operate and maintain the
Caernarvon Freshwater Diversion Project. After construction-
of the Caernarvon Freshwater Diversion Project structure
was completed, defendants had the ability to dilute with
freshwater the Salinity or salt content in the water bottoms
where plaintiffs’ oyster leases are located. These activities
- have directly caused the destruction of plaintiffs’ leasehold
interests, thereby entitling plaintiffs to just compensation.
V.
The stated purposes of the Caernarvon Project
include, but are not limited to, the enhancement of emergent
marsh vegetation growth and the reduction of marsh loss.
The Department of Natural Resources attempts to achieve
this stated goal by allowing fresh water from the Mississippi
River to flow through the Caernarvon structure into the salt
water areas wherein plaintiffs' leases are located, thereby
reducing the salinity and salt content in the waters where
plaintiffs' leases are located.
VI.
As a direct result of the dilution of the salinity and
salt content of the waters wherein plaintiffs’ leases are
A-110
located, as well as the increased vegetation on or near the
water bottoms wherein plaintiffs’ leases are located, the pro-
ductivity of Plaintiffs’ leases have been damaged, as the
reduced salinity of the waters wherein plaintiffs’ leases are
located makes plaintiffs' leases no longer capable of oyster
growth and cultivation. The hereinabove described actions
of defendant his resulted in a permanent and substantia inter-
ference with plaintiffs' use and enjoyment of their land
amounting to a taking of an interest in plaintiffs’ valuable
property rights without compensation in violation of, Article
I, Section 4 of the Louisiana Constitution of 1974, and the
Fifth Amendment of the United States Constitution.
Vil.
Defendant has not instituted any expropriation or
condemnation proceeding to acquire all or any part of plain-
tiffs' land, nor has defendant paid or offered to pay to plain-
tiffs' any amount for the damages inflicted upon their oyster
leases..
Vill.
As a direct result of the hereinabove described action
of defendants, the productivity of plaintiffs’ leases have been
destroyed, resulting in a permanent and substantial interfer-
ence with plaintiffs’ use and enjoyment of their land amount-
ing to a taking of an interest in plaintiffs’ valuable property
rights without compensation in violation of Article I, Section
4 of the Louisiana Constitution of 1974, and of the Fifth
Amendment of the United States Constitution.
A-11]
IX.
This action is appropriate for determination through
the Louisiana Class Action Procedure (La. C.C.P. art. 591 et
seq.) for the following reasons:
a) The large number of claimants present a level of
numerosity better handled through the class action procedure
as opposed to mass joinder of individual claims.
b) The common issues of law and fact pertaining that
relate to and affect the rights of each member of the class and
the relief sought, namely, whether the damage of the plain-
tiffs’ oyster leases constitute a compensable taking by the
State of Louisiana, predominate over the individual issues or
quantum.
c) Requiring the institution of Separate lawsuits
would pose a serious risk of inconsistent adjudications and
earlier separate determinations with a prejudicial effect on
subsequent litigants. °
d) Prosecution of separate actions would pose a seri-
ous threat of substantially impeding the ability of class mem-
bers to protect their interests.
€) Petitioner's have sustained damages of the nature
described above and are suitable representatives for the class.
f) The plaintiff representatives herein are represented
by skilled attorneys in the field of oyster damage claims, and
have successfully represented claimants in other litigation of
this nature and who may be expected to handle this action in
an expeditious and economical manner to the best
A-112
interests of all the class membership.
g) The class action is a superior procedural vehicle
for the fair and efficient adjudication of this controversy,
because:
1) The vast majority of the class members
have no interest in controlling the litigation;
2) Such a method of proceeding would allow
the Court to process all rightful claims in one proceeding;
3) It is desirable to concentrate all the litiga-
tion in one forum;
4) Class litigation is manageable considering
the opportunity to afford reasonable notice of significant
phases of the litigation to class members and permit distribu-
tion of recovery.
5) The determination of liability and the basis
for the assessment of compensation may be made in the class
action under the provisions of La. C.C.P. art. 593.1 (C) (1)
_ (2) and (3), without the necessity of proof at that time as to
the amount of those damages, thereby establishing guidelines
for settlement and/or subsequent trials in the individual cases
if necessary.
X.
Venue is proper in this parish pursuant to Article 74
of the Louisiana Code Of Civil Procedure and La. R.S.
13:5104, as this cause of action arises in Plaquemines Parish,
as plaintiffs’ leases are located within Plaquemines Parish,
and/or because the wrongful conduct of the State
}
A-113
of Louisiana and the Department of Natural Resources
occurred within Plaquemines Parish.
WHEREFORE, PLAINTIFFS PRAY that defendants
be duly cited to appear and answer this petition; that this mat-
ter be ordered to proceed as a class action and that a suitable
management plan be implemented pursuant to La. C.C.P. 593
(C); and after all legal delays and due proceeding had, that
there be jJudgment in favor of plaintiffs and against defen-
dants for damages, together with legal interest thereon
from the date of the taking of an interest in the plaintiffs’
property until paid, for all costs of these pro-
ceedings and for all general and equitable relief as provided
by law.
Respectfully submitted,
/s/ Philip F. Cossich, Jr
Philip F. Cossich, Jr., (#1788)
8311 Highway 23, Suite 104
Post Office Box 7125
Belle Chasse, Louisiana 70037
Telephone: 504 394-1870
Michael X. St. Martin (#12365)
3373 Little Bayou Black Road
Houma, Louisiana 70361-2017
Telephone: 504 876-3891
A-114
PLEASE SERVE:
The State of Louisiana
through the Attorney General,
Richard P. leyoub
Post Office Box 94005
Baton Rouge, Louisiana 70804-9005
The Department of Natural Resources
State of Louisiana
through its Secretary,
Jack McClanahan
Post Office Box 94396
Baton Rouge, Louisiana 70804-9396
en
A-115
APPENDIX L
25TH JUDICIAL DISTRICT COURT
FOR THE PARISH OF PLAQUEMINES
STATE OF LOUISIANA
NO. 38-266 DIVISION "B"
ALBERT J. AVENAL, JR., ET AL
VERSUS
DEPARTMENT OF NATURAL RESOURCES
FILED: DEC 15 1998 /s/
DEPUTY CLERK
MOTION FOR SUMMARY JUDGMENT UNDER THE
NOW INTO COURT, through undersigned counsel,
comes Defendant, the State of Louisiana, through the
Department of Natural Resources ("DNR"), and moves this
Honorable Court for summary judgment on the basis that the
Plaintiffs’ claims should be dismissed under the equitable
doctrine of collateral estoppel, all for the reasons set forth in
the attached Memorandum in Support of this Motion.
BY:
A-116
RESPECTFULLY SUBMITTED,
RICHARD P. IEYOUB
Attorney General
/s/_ Andrew C. Wilson _
ANDREW C. WILSON - #1162 ~
DONNA M. YOUNG - #20936
Special Assistant Attorneys General
20th Floor, Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
Telephone: (504) 569-21900
and
BURKE & MAYER, Of Counsel
Attorneys for State of Louisiana
Department of Natural Resources
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and forego-
ing document has been served upon all counsel of record by
- depositing same in the U.S. Mail, postage pre-paid,
addressed to them at their offices, this 15th day of December,
/s/ James Savoy
- A-117
25TH JUDICIAL DISTRICT COURT
FOR THE PARISH OF PLAQUEMINES
STATE OF LOUISIANA
NO. 38-266 DIVISION "B"
ALBERT J. AVENAL, JR., ET AL .
VERSUS
DEPARTMENT OF NATURAL RESOURCES
FILED: l
DEPUTY CLERK
MAY IT PLEASE THE COURT:
On November 12, 1996, the Court of Appeals for the
Federal Circuit dismissed the claims originally raised by
these same Plaintiffs on the same issues in the Court of
Federal Claims, holding that no taking took place.! DNR
now moves for summary judgment dismissing these same
Plaintiffs" claims based upon the same issues under the doc-
trine of defensive collateral estoppel.
' Avenal v, United States. 100 F.3d 933 (Fd. Cir. 1996).
A-118
FACTS
On March 29, 1994, the Plaintiffs in this matter filed
the instant class action alleging a taking under the Fifth
Amendment of the United States Constitution and Article 1,
Section 4 of the Louisiana Constitution of 1974.2 The
Plaintiffs alleged that their oyster leases on State water bot-
toms had been damaged by the freshwater outfall from the
Caernarvon freshwater diversion project. Shortly thereafter,
on April 26, 1994, Plaintiffs filed what amounts to a nearly
identical lawsuit in the Court of Federal Claims against the
United States Army Corps of Engineers ("the Corps").3 A
comparison of the allegations set forth in the Federal
Complaint and the Petition filed in the 25th Judicial District
Court reveals that the cases deal with the same major issue:
Whether a taking occurred as a result of the operation of the
Caernarvon freshwater diversion structure.
For example, paragraph 5 of the Federal Complaint
reads as follows:
5. ee
The stated purposes of the Caernarvon Project
include, but are not limited to, the enhancement of the
emergent marsh vegetation growth and a reduction of
marsh loss. The United States Army Corps of
Engineers attempts to achieve this stated goal by
allowing fresh water from the Mississippi River to
flow through the Caernarvon structure into the salt-
water areas.4
2 Exhibit "A". : 3
3 Complaint in C.A. No. 94-261 (L) filed 4/26/94 (Exhibit"B").
4 Exhibit "B". /
/
/
A-119
The State Court Petition reads similarly:
V.
The stated purposes of the Caernarvon Project
include, but are not limited to, the enhancement of the
emergent marsh vegetation growth and a reduction of
marsh loss. The Department of Natural Resources
attempts to achieve this stated goal by allowing fresh
water from the Mississippi River to flow through the
Caernarvon structure into the salt water areas where-
in plaintiffs’ leases are located, thereby reducing the
salinity and salt content in the waters where plaintiffs’
leases are located.5
The sixth paragraph of both pleadings also reads sim-
ilarly:
6.
When the freshwater diverted from the Mississippi
reaches the water bottoms leased by plaintiffs from the State
of Louisiana, it dilutes the salinity of the waters and deposits
silt on the water bottoms. As a direct result of the dilution of
the salinity of the waters wherein plaintiffs’ leases are locat-
ed, as well as the increased vegetation and bacteria on or near
the water bottoms where plaintiffs' leases are located, and the
silt deposits, the productivity of plaintiffs’ leases has
been and is being destroyed, as the altered conditions
of the waters wherein plaintiffs’ leases are located
5 Exhibit "A
A-120
makes Plaintiff's leases no longer capable of oyster growth
and cultivation.®
VI.
As a direct result of the dilution of the salinity and
salt content of the waters wherein plaintiffs’ leases are locat-
ed,, as well as the increased vegetation on or near the water
bottoms wherein plaintiffs' leases are located, the productiv-
ity of plaintiffs' leases have been damaged, as the reduced
salinity of the waters wherein plaintiffs’ leases are located —
makes plaintiffs’ leases no longer capable of oyster growth
and cultivation. The hereinabove described actions of defen-
dant has resulted in a permanent and substantial interference
with Plaintiffs’ use and enjoyment of their land amounting to
a taking of an interest in Plaintiffs' valuable property rights
without compensation in violation of Article I, Section 4 of
the Louisiana Constitution of 1974, and the Fifth
Amendment of the United States Constitution.”
Finally, paragraph 7 of the Federal Complaint and paragraph
VIII of the State Petition also read similarly:
7.
The hereinabove described actions of defendant
have resulted in permanent and substantial interfer-
ence with plaintiffs' use and enjoyment of their land
amounting to a taking of an interest in plaintiffs’
6 Exhibit "B"
7 Exhibit “A”
A-121
taking of an interest in plaintiffs' valuable property
rights without compensation in violation of the Fifth
Amendment of the United States Constitution.8
8.
As a direct result of the hereinabove described
action of defendants, the productivity of plaintiffs'
leases have been destroyed, resulting in a permanent
and substantial interference with plaintiffs’ use and
enjoyment of their land amounting to a taking of an
interest in plaintiffs’ valuable property rights without
compensation in violation of Article I, Section 4 of
the Louisiana Constitution of 1974, and of the Fifth
Amendment of the United States Constitution.
APPLICABLE LAW
Takings Law
Based upon the comparison set forth above, the issue
in both cases is whether the freshwater outfall from the
Caernarvon freshwater diversion structure has resulted in a
taking under constitutional law. Both cases involve a taking
under the Fifth Amendment of the United States
Constitution. The United States Supreme Court has indicated
that the "takings" test acquires that a claimant first demon-
Strate a compensable property interest, and
8 Exhibit "B'
9 Exhibit "A"
A-122
afterwards the Court then applies three factors involving:
(1) The character of the governmental actions;
(2) | The economic impact on the claimant; and
(3) The extent to which the governmental
actions interfere with reasonable invest-
ment-backed expectations.1@
The Louisiana takings test consists of the following
inquiries:
(1) Whether the property rights have been
effected;
(2) | Whether the property has been taken or
damaged in a constitutional sense; and
(3) | Whether the taking or damage is for a public
purpose. !!
In analyzing the second prerequisite of the Louisiana
three prong takings test, i.e., in determining whether the
property has been taken or damaged in a constitutional sense,
the Louisiana Supreme Court draws freely upon jurispru-
dence interpreting the Fifth Amendment of the United States
Constitution and makes direct parallels between the Fifth
Amendment of the United States Constitution and Article 1,
Section 4 of the Louisiana Constitution.!2
10 Penn Central Transp. v. New York City, 483 U.S. 104, 124, 98 S.Ct-
2646, 2659 (1978).
12
Wildlife and Fisheries Comm'n, 97-1367 2729198) 115 So.2d 387, 301-
392.
j
/
A-123
Accordingly, both the factual and legal issues before the
Court in the instant matter are the same.
COLLATERAL ESTOPPEL
The Louisiana Supreme Court has unequivocally
stated that when a Louisiana state Court is required to deter-
mine the preclusive effects of a judgment rendered by a
Federal Court on a federal question, it is federal law which
must be applied.!3 As a result, where prior proceedings takes
place in Federal Court, the preclusive effect of those prior
federal proceedings is an issue of federal law.!4 The Federal
rule of preclusion governs any federal judgment, even when
the Court renders a decision of state law issues.15
Accordingly, the preclusive effect of the prior federal judg-
ment in the Avenal federal proceedings is determined accord-
ing to federal law (the law of the Court i issuing the initial
decision), regardless of whether the second suit has been
filed in state Court.
Although the civil law does not look favorably upon
equitable doctrines such as estoppel, federal law specifical-
T3 Reeder v. Succession of Palmer, 92-2965, 92-3002 (La. 9/3/93) 623
So.2d 1268, 1271 (La. 1993), cert. denied, 5 10 U.S. 1165 (1994).
14 Nagle v. Lee, 807 F.2d 435, cert. denied, (Sth Cir. 1987); Chemtron
Com. v. Business Funds, Inc., 682 F.2d 1149 (5th Cir. 1982), vacated on
other grounds, 460 U.S. 1007, cert. denied, 406 U.S. 1013 (1983); Stovall
y. Price Waterhouse Co., 652 F.2d 537, 540-41 (Sth Cir. 1981);
623 F.2d 371, 373 (Sth
Commercial Box & Lumber Co. v. Uniroyal. Inc.,
Cir. 1980); Aerojet General Co. v. Askew, 511 F.2d 710 (Sth Cir), dis-
missed, 423 U.S. 908, (1975); Restatement (2d) of Judgments Section 87
(1982).
15 Recoveredg L.P. v. Pentecost, 44 F.M. 1284, 1290 n. 11 (Sth Cir.
1995.).
A-124
ly recognizes a doctrine of collateral estoppel, in fact, defen-
sive collateral estoppel, applicable herein.
Collateral estoppel depends on three elements:
(1) The issue at stake must be identical to the
one involved in the prior action;
(2) The issue must have been actually litigated
in the prior action; and
(3) The determination of the issue in the prior
action must have been a necessary part of the
judgment in that earlier action.!6
The United States Supreme Court has specifically
held that collateral estoppel may be asserted by a party even
if that party was not involved in the prior litigation.!7 This is
known as defensive collateral estoppel wherein a plaintiff is
estopped from asserting a claim that the plaintiff has previ-
ously litigated and lost against another defendant.!® Stated
succinctly defensive collateral estoppel may be urged by a
party to the second suit who was not even a party to the first
suit.29
16 Recoveredge L.P; 44 F.3d at 1290; Sheerin v. Davis, 3 F.3d 113, 114
(Sth Cir. 1993).
7 Parklane Hosiery Co.. Inc. v. Shore, 439U.S. 322, 326-333, 99 S.Ct.
649-52 (1979).
18 ig
19 Id.
A-125
Under the circumstances of the instant matter, DNR
can apply the doctrine of defensive collateral estoppel such
that the Plaintiffs’ claims in these State proceedings should
be dismissed in their entirety. First, the takings issue is iden-
tical.29 Second, the takings issue was actually litigated in the
Federal Circuit which found there was no taking.?! Finally,
the takings issue was a necessary part of the Federal
Judgment. In fact, the decision on the takings issue was the
core of the dispute. Accordingly, the doctrine of defensive
collateral estoppel requires the dismissal of the Plaintiffs’
claims in the instant state litigation as well.
CONCLUSION
Inasmuch as federal law controls on the issue of the
preclusive effect of the prior federal decision, DNR submits
the doctrine of defensive of collateral estoppel has direct
application herein. This doctrine disposes of Plaintiffs’
claims in their entirety and, therefore, this litigation should
be at an end.
20 Flowers v, Phelps, 964 F.2d 400, 401 (Sth Cir. 1992) (amended opin-
ion).
21 Avenal v, United States, 100 F.3d 933, 938 (Fed. Cir. 1996).
A-126
RESPECTFULLY SUBMITTED,
RICHARD P. IEYOUB
Attorney General
BY: /s/ Andrew C. Wilson _
ANDREW C. WILSON - #1162
DONNA M. YOUNG - #20936
Special Assistant Attorneys General
20th Floor, Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
Telephone: (504) 569-21900 —~
and
BURKE & MAYER, Of Counsel -
Attorneys for State of Louisiana
Department of Natural Resources
CERTIFICATE OF SERVICE
-
I hereby certify that a copy of the above and forego-
ing document has been served upon all counsel of record by
depositing same in the U.S. Mail, postage pre-paid,
addressed to them at their offices, this 15th day of December,
1998,
/s/ illesibl
A-127
APPENDIX M
SUPREME COURT OF LOUISIANA \
WRIT APPLICATION FILING SHEET
No. 00 CC 1077
ALBERT J. AVENAL, JR., ET AL.,
Plaintiffs-Respondents
VERSUS
THE STATE OF LOUISIANA AND THE,
DEPARTMENT OF NATURAL RESOURCES,
Defendants-Applicants
APPLICATION FOR WRITS OF CERTIORARI OR
REVIEW (CIVIL) FROM THE
MARCH 15, 2000 DECISION OF THE FOURTH CIR-
CUIT COURT OF APPEALS,
CIVIL APPEAL NO. 99-C-0127
ON REVIEW FROM THE 25TII JDC FOR THE PARISH
OF PLAQUEMINES, CA. NO.
38-266, DIVISION "Bt'
HONORABEE WILLIAM A. ROE, JUDGE PRESIDING
FILED ON BEHALF OF DEFENDANTS/APPLICANTS
THE STATE OF LOUISIANA AND THE DEPARTMENT
OF
NATURAL RESOURCES
A-128
EXPEDITED CONSIDERATION AND STAY ORDER
REQUESTED
RICHARD P. IEYOUB Attorney General
ANDREW C. WILSON - # 1162
DAVID L. CARRIGEE - #3892
DONNA M. YOUNG - #20936
JEDD S. MALISH - #23846
Special Assistants Attorney General
20th Floor, Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163-2000
Telephone: (504) 569-2900
and “
BURKE & MAYER, of Counsel
Attorneys for The State of Louisiana through the
Department of Natural Resources
April 14, 2000
A-129
LOUISIANA SUPREME COURT
CIVIL
PRIORITY FILING SHEET
Applicant's Name
What is the nature of the priority? Application made
by:
PLAINTIFF DEFENDANT OTHER (Circle one)
Is a hearing or trial date set? NO YES
DATE: Status Conference on 4/17/00
TIME: 1:00 p.m,
Jury trial? NO YES Any out of state
witnesses? NO YES
Was relief applied for in the trial court? NO YES
By: PLAINTIFF
Stay: DENIED/GRANTED Until:
Ruling of Dist. Court: Stay Denied _
A-130
Was an application made to the Court of Appeal? NO
: YES
Which Circuit? 1ST 2ND 3RD 4TH 5TH
Application was made by: PLAINTIFF
-DEFNDANT OTHER
Date of Court of Appeal action: 4/12/00
Court of Appeal action: Stay denied
If you did not apply to the Circuit Court of Appeal
state why:
Ds How and when will applicant be adversely affected
if relief is not granted?
6. List of Lead Counsel & Judge involved in case:
Name: Scott LaBarre (Plaintiffs/Respondents)
Home (504) 286-5828
Night Bus (_ )
PHONE #’s -- Day Bus (504) 456-8600
A-131
Name: Andrew C. Wilson (Defendants/A pplicants)
Home (504) 737-4405
Night Bud (_)
PHONE#’s -- Day Bus (504) 569-2900
Name:
PHONE #s -Day Bus (_ )
Dist. Ct. -- Judge: ili
PHONE?#’s - Bus Day (504) 392-6690
.
CERTIFICATION
I am requesting Priority consideration of this applica-
tion. Pursuant to Supreme Court Rule 10. Section 2(e), I have
notified all counsel and unrepresented parties by telephone or
other equally prompt means of communication that said writ
application has been or is about to be filed in this court and
that I have served on all parties at interest of their counsel, by
a means equal to the means used to effect filing in this court.
/s/ illegible
SIGNATURE
A-132
SUPREME COURT OF LOUISIANA
WRIT APPLICATION FILING SHEET
NO.
TO BE COMPLETED BY COUNSEL
or PRO SE LITIGANT FILING APPLICATION
TITLE
ALBERT J. AVENAL, JR., ET AL
VS.
THE STATE OF LOUISIANA
THROUGH THE DEPARTMENT
OF NATURAL RESOURCES
Applicant:La. Department of Natural Resources
Have there been any other filings in this
Court in this matter? _X__ Yes No
Are you seeking a Stay Order? Yes_
Priority Treatment? Yes
If so you MUST complete & attach a Priority
Form
Attach a list of additional counsel/pro se itiganta, t their
addresses, phone numbers and the parties they represent.
Tribunal/Court: Docket No.
Judge/Commissioner/Hearing Officer:
Ruling Date:
Parish and Judicial District Court: Plaquemines Parish, 25th
JDC Docket Number: 38-266
Judge and Section: Hon. William A. Roe, Div. B
Date of Ruling/Judgment: January 5, 1999
Circuit: Fourth Filing Date: January 15, 1999 (writ
Docket No. 99-C-0127 Applicant in Appellate Court: State
isi Ruling Date:
March 3, 1999 Panel of Judges: Waltzer, Gulotta. Ciaccio,
Klees & McKay En Banc: __
REHEARING INFORMATION
Applicant: Plaintiffs, Albert J. Avenal, Jr, et al. Date Filed:
March 17, 1999 Action on Rehearing: Granted Ruling Date:
March 15.2000 Panel of Judges: Waltzer, Gulotta, Ciaccio,
Klees & McKay En Banc: i
A-134 _
X Pre-Trial, Hearing/Trial Scheduled dated: status confer-
ence set for Monday, April. 17,2000 , Trial in
Progress, Post Trial
Is there a stay now in effect? No Has this pleading been filed
simultaneously in any other court? No_
If so, explain briefly:
VERIFICATION ;
I certify that the above information and all of the information
contained in this application is true and correct tot eh best of
my knowledge and that all relevant pleadings and rulings, as
required by Supreme Court Rule X, are attached to this fil-
ing. I further certify that a copy of this application has been
mailed or delivered to the appropriate court of appeal (if
required), to the respondent judge in the case of a remedial
writ, and to all other counsel and unrepresented parties.
ls/_ ANDREW C, WILSON
A-135
INDEX
Statement of Considerations for the Granting of
oa RNIN Av ome, ce Se eae ili
repessirercspmatighamansie sea ns l
A. The Parallel Proceedings in State and
sincdanarinerdlie dtmsriecc.., NCY TO eT l
B. Ultimate Determination in Federal Court............ 4
C. State Court Proceedings to Date........................ 5
“ensian. sessssignsoirancipeninen ct eT TE EES 8
eictinismen’ Sine smsge. get et EEG, 9
ve, comnscocaargg ne EN MENU tT TOR 10
I. The Trial Court and Later the
Court of Appeals Should Have
Dismissed the Plaintiffs’ Claims
Under the Doctrine of Collateral
Estoppel Pursuant to Applicable
Federal Common Law...........ccececce0e0......... 10
A. The Preclusive Effect of
a Prior Federal Decision Is an
Issue of Federal Law....................... 10
B. Application of the Federal
Common Law of Collateral
Estoppel Results in the
Dismissal of Plaintiffs’ Claims......13
II.
II.
A-136
The Fourth Circuit’s Majorit
Opinion Attempts to Eliminate
“Investment-Backed Expectations’
9
from Consideration in the Analysis
of Inverse Condemnation Claims
Contrary to Established
Constitutional Precedent...............:cccceeee 14
A. “Investment-Backed Expectations”
Form the Second Element of the
Three Pronged Test for Takings
Under Established
Constitutional Law...................0000+ 14
The Louisiana Supreme Court
and the Lower Courts Have
Consistently Applied United
States Constitutional Law to
Determine Whether a “Taking”
Has Occurred in the Context of
Inverse Condemnation
JUN sii chp esssiveniovien ..16
“Distinct Investment-Backed -
Expectations” Are Not Only
Relevant, But Also Constitute
a Critical and Requisite
Consideration for Any Analysis
of a “Takings” Claim..................... 19
The Fourth Circuit Erred in Eliminating
All Governmental Defenses to a Taking
Save for “Bad Faith”... ,............cccscscsssssssees 20
A-137
A. The Fourth Circuit’s Opinion
Renders All Louisiana
Government Defenseless to
EMME: SCUIMINB i ccscescosssaciscssseeis 20
B. The Fourth Circuit’s Action
Renders Recovery On a
“Takings” Theory Well-Nigh
NIL colahieditiiesinsntoniscarncescas 22
%. To Reach Its Result, The
Fourth Circuit Inexplicably
Merged the Distinct Concepts
of Expropriation and Inverse
RPI NNINNIIDIIER sscsassescencnnocannssassbiesene 23
Be IIIs cscdecains cexitorscnaseucoes 23
2. Inverse Condemnation................ 24
asia scueinicdisaprbnkiscnneint 25
ie I a dah hnestnsastibansdasinncasnaill 26
acelin cl scissile aseanonchen ve@saneseanhaionesenes 27
A. Trial Court’s Judgment dated
January 5, 1999.
B. Original Opinion, CA No. 99-0127
(La.App. 4 Cir. 3/3/99).
C. Opinion on Rehearing, CA No.
99-0127 (3/15/00), So.2d__ dissent
of Judge Miriam Waltzer.
A-138
Trial Court’s Denial of Stay, CA
No. 38-266 “B” (4/11/00).
Denial of Stay, CA No. 00-0855 (La.
App. 4m Cir. 4/12/00).
State Petition, CA No. 38-266, 25th
JDC, Parish of Plaquemines.
Albert J. Avenal, Jr. et al. v. The United
States of America, United States Court
of Federal Claims, No. 94-261-L.
Avenal v. United States, 33 Fed.Cl.
778, 781 (Fed. Cl. 1995).
Avenal v. United States, 100 F.3d
933 (Fed. Cir. 1996).
Order Granting Certiorari, CA No.
99-0127 (La.App. 4m Cir. 3/26/99).
A-139
Pursuant to Rule X, Sections 1 and 3, of the Rules of
the Supreme Court of Louisiana, Defendants/Applicants, the
State of Louisiana and the Department of Natural Resources
(collectively “DNR”), respectfully suggest that this Writ
Application presents the following considerations for the
granting of writs:
1.The decision of the Fourth Circuit Court of Appeals
presents a direct conflict with the decisions of sever-
al bodies of jurisprudence. Specifically, insofar as
the choice of federal common law, the Fourth
Circuit’s decision conflicts not only with other con-
stitutional law decisions of the Fourth Circuit!
itself, but with constitutional law decisions from the
other Louisiana appellate courts” and the
1 Stone v, Entergy Services, Inc., 99-0236 *3 (La.App. 4th Cir.
8/18/99), 744 So.2d 141, 142; writ denied, 99-2719 (La. 11/24/99), 750
So.2d 989; McCollough v, Dauzat, 98-1293 *3 (La.App. 3rd Cir. 3/3/99),
736 So.2d 914, 915; Schlesinger v. Herzog, 95-1127 *21 (La. App. 4th
Cir. 4/3/96), 672 So.2d 701, 714; City of New Orleans v. Badine Land
Ltd., 94-2631 *6 (La.App. 4th Cir. 6/29/95), 657 So.2d 770, 773; Tolis v.
Mechanical College, 94-1444 *8 (La.App. 4th Cir. 5/16/95), 655 So.2d
747, 753.
2 ITrich v, Crescent Tum Key & Engineering, L.L.C., 99-310
*5 (La.App. Sth Cir. 9/28/99), 744 So.2d 689, 692; Andrepont _v.
Andrepont, 97-1643 *3 (La.App. 3rd Cir. 4/1/98), 711 So.2d 759, 761;
96-0847 *3 (La.App.
4th Cir. 3/19/97), 692 So.2d 654, 656; Rochon v, Whitley, 96-0835 *4
(La.App. Ist Cir. 2/14/97), 691 So.2d 189, 192; Tye v, Co-Mar Offshore
Operators, Inc., 95-0094 *3 (La.App. Ist Cir. 10/6/95), 669 So.2d 438,
439.
A-140
Louisiana Supreme Court.> The Fourth Circuit’s
elimination of consideration of a claimant’s “distinct
investment-backed expectations” in the context of tak-
ings law conflicts directly with the body of jurispru-
dence emanating from the United States Supreme
Court,4 the Louisiana First Circuit Court of
Appeals? and, the courts of all the other States that
have considered this issue. Insofar as the Fourth
3 Terrebonne Fuel & Lube, Inc. v, Placid Refining Company,
95-0654 *14 (La. 1/16/96), 666 So.2d 624, 632-3; Reeder v. Succession
of Palmer, 623 So.2d 1268, 1271 (La. 1993); Pilie & Pile y. Metz, 547
So.2d 1305, 1308 (La. 1989).
4 Penn Central Transportation Co. -v. City of New York, 438
U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Good v. United States,
189 F.3d 1355, 1360 (Fed.Cir. 1999), citing Loveladies Harbor, Inc. v.
United States, 28 F.3d 1171 (Fed.Cir. 1994), cert. denied, 529U.S. _,
es: - St... . (47RD.
5 Layne v, City of Mandeville, 93-0046 (La.App. Ist Cir.
12/29/93), 633 So.2d 608, 610, writ denied, 94-0268 (La. 3/25/94), 635
So.2d 234.
6 See e.g. (1) Alaska: State of Alaska v. Arctic Slope Regional
Corp., 834 P.2d 134, 139 (Alaska 1991); (2) Arizona: Laidlaw Waste
Systems, Inc. v. City of Phoenix, 815 P.2d 932, 935 (Ariz.Ct.App. 1994);
(3) California: Kavanau v. Santa Monica Rent Control Board, 941 P.2d
851, 862-863 (Calif. 1998); (4) Colorado: U.S, West Communications v.
City of Longmont, 948 P.2d 509, 523 (Colo. 1997); (5) Connecticut:
Bauer v. Waste Management of Connecticut, 662 A.2d 1179, 1198 (Conn.
1995); (6) Florida: Golf Club of Plantation, Inc. v, City of Plantation,
717. So.2d 166, 170 (Fla. 4th DCA 1998); (7) Idaho: Sprenger, Grubb &
Assoc., Inc, v, City of Hailey, 903 P.2d 741, 747 (Idaho 1995); (8)
Indiana: Ragucci v. Metro. Dev. Comm’n of Marion County, 702 N.E.2d
677, 683-684 (Indiana 1998); (9) Iowa: Bormann v, Board of Supervisors
for Kossuth County, 584 N.W.2d 309, 316 (Iowa 1998); (10)Kentucky:
Commonwealth of Kentucky v, Steams Coal and Lumber Co., 678
S.W.2d 378, 381 (Kentucky 1984); (11) Maryland: Offen v. County
Council of Prince Georges County, 625 A.2d 424, 442
N.E.2d 1300, 1303 (Mass. 1996); (12) Massachusetts: Leonard v._
j
A-141
Circuit’s ruling suggests that the jurisprudence inter-
preting the United States Constitution should not be
used in analyzing a “taking” under the Louisiana
Constitution, the Fourth Circuit’s ruling conflicts
(footnote 6 continued)
Town of Brimfield, 666 (13) Minnesota: Zeman vy, City of Minneapolis,
$52 N.W.2d 548, 552 (Minn. 1996); (14) Missouri: Clay County, County
Commission of Clay v. Harley and Susie Bogue, Inc., 988 S.W.2d 102,
107 (Mo.Ct.App. 1999); (15) Nebraska: Whitehead Oil Co. v. City of
Lincoln, 515 N.W.2d 401, 408 (Nebraska 1994); (16) Nevada: Kelly v.
Tahoe Regional Planning Agency, 855 P.2d 1027, 1034 (Nevada 1993);
(17) New Hampshire: Quirk v. Town of New Boston, 663 A.2d 1328,
1334 (N.H. 1995); (18) New Jersey: Bernardsville Quarry, Inc. v.
Borough of Bernardsville, 608 A.2d 1377, 1386 - 1388 (N.J. 1992); (19)
North Carolina: Sherrill v. Town of Wrightsville, 334 S.E.2d 357
(N.C.App. 1986); (20) North Dakota: Southwest Cass Water Resource
Dist. v. Burlington Northern R.R. Co., 527 N.W.2d 884, 894 - 895 (N.D.
1995); (21) Ohio: State v. State Teachers Retirement Board, 697 N.E.2d
644, 650 -651 (Ohio 1998); (22) Oregon: Dodd v. Hood River County,
855 P.2d 608, 615 -616 (Oregon 1993); (23) Pennsylvania: Mock v.
Dept. of Environmental Resources, 623 A.2d 940, 945-949 (Penn. 1993);
(24) Rhode Island: Woodland Manor Ill Assoc. v. Keeney, 713 A.2d
806, 813 (R.I. 1998); (25) Texas: Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 935-938 (Texas 1998); (26) Vermont:_Chioffi v. City of
Winooski, 676 A.2d 786, 790 (Vermont 1996); (27) Virginia: Board of
Supervisors of Prince William County v. Omni Homes, Inc., 481 S.E.2d
460, 465- 466 (Virginia 1997); (28) Washington:_Presbytery of Seattle
-y. King County, 787 P.2d 907, 915 (Washington 1990); (29) Wisconsin:
Zealy v. City of Waukesha, 534 N.W.2d 917, 921 - 924 (Wis.Ct.App.
1995), rev’d on other grounds, 548 N.W.2d 528 (Wis. 1996); (30)
Wyoming: Cheyenne Airport Board v, Rogers, 707 P.2d 717, 731
(Wyoming 1985).
A-142
directly with the Louisiana Supreme Court,’ other
Louisiana — courts,® as well as the Fourth
Circuit itself.
2.The Fourth Circuit’s ruling presents significant
unresolved issues of law insofar as the newly creat-
ed defense of the Claimants’ “bad faith” in the con-
text of inverse condemnation law. The issues associ-
ated with a claimant’s prior knowledge of govern-
mental action as a governmental defense to a “tak-
ings” claim has never been addressed by this
Honorable Court. Over the strong dissent of Judge
Miriam Waltzer, arguably one of the more experi-
enced Fourth Circuit judges insofar as takings are
7 Louisiana Seafood Management Council v. Louisiana
Wildlife & Fisheries Commission, 97-1367 (La. 5/19/98), *8-9, 715
So.2d 387, 392.
8 LaSalle v. Iberia Parish Council, 99-216 *10 (La.App. 3rd
Cir. 6/2/99), 741 So.2d 812, 818 - 819; Standard Materials, Inc. v. City of
Slidell, 96-0684 (La.App. Ist Cir. 9/23/97), 700 So.2d 975; Layne v., City
of Mandeville, 93-0046 (La.App. Ist Cir. 12/29/93), 633 So.2d 608, 610,
writ denied, 94-0268 (La. 3/25/94), 635 So.2d 234; Annison v. Hoover,
517 So.2d 420, 423 (La.App. Ist Cir. 12/22/87); writ denied by 519 So.2d
148 (La. 2/12/88); Ursin v. New Orleans Aviation Board, 506 So.2d 947,
955 (La.App. 5 Cir. 4/15/87); reversed for different reasons by 515 So.2d
1087 (La. 1987).
9 State Department of Social Services v. City of New Orleans,
95-1757, 1758 *7 (La.App. 4th Cir. 5/29/96), 676 So.2d 149, 154.
jf
A-143
concerned, !0 the Fourth Circuit has also created new
law unsupported by legal authority through the cross-
application of the defense of “bad faith” from expro-
priation law and reinsertion of this concept in the
context of “takings” or inverse condemnation litiga-
tion. The Fourth Circuit has also gone one step fur-
ther in its creation of new law by ruling that the only
defense to a “takings” claim brought against any
Louisiana governmental entity is the Claimant’s “bad
faith.” If this becomes the law, this essentially makes
a Claimants’ recovery automatic merely upon (1) an
allegation of a “taking,” and, (2) a prima facie show-
ing that a claim is not fraudulent, which is the gov-
€mment’s burden of proof for “bad faith” in an expro-
priation proceeding. l Such a rule of law has never
been applied or perhaps even considered by
10 See; e.g.
P ist., 95-0233 (La.App. 4th Cir.
9/4/96), 680 So.2d 159, 135 Oil & Gas Rep. 513 (La.App. 4th Cir.,
9/4/96); : ist., 95-1187
(La.App. 4th Cir. 9/4/96), 680 So.2d 149; :
iri ist., 95-2477 (La.App. 4th Cir. 6/ 12/96, 676
So.2d 199; i i i Ww ,
95-1757, 1758 *7 (La.App. 4th Cir. 529/96), 676 So.2d 149, 154;
_ ist., 94-1493
(La.App. 4th Cir. 2/23/95), 650 So.2d 1249, 131 Oil & Gas Rep. 298;
Henry v. State, 94-0658 (La.App. 4th Cir. 11/30/94), 646 So.2d 519:
0n Hall Authority v. Missouri
Pacific Railroad Co., 625 So.2d 1070 (La.App. 4th Cir. 9/22/93), writ
denied, 627 So.2d 638 and 630 So.2d 802 (La. 1994) and cert. denied,
512 U.S. 1220, 114 S.Ct. 2707 (1994).
11 i
Co., 249 So.2d 161, 171 (La. 1971).
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any Louisiana Court in inverse condemnation cases.
3.The Fourth Circuit’s opinion also has the effect of
overruling or modifying controlling precedents from
the Louisiana Supreme Court related to the preclu-
sive effect of a prior federal decision as issued by the
Louisiana Supreme Court!2 and the Courts of
Appeal!3 including the Fourth Circuit itself. 14
4.The Fourth Circuit’s opinion is based upon an erro-
neous interpretation and application of the United
States Constitution and law applicable thereto
including the Supremacy Clause, and federal com-
mon law, as well as the Louisiana Constitution, Article
I Section 4, related to “takings” and applicable
Louisiana law. The State is the party Defendant
herein; thus, if the Fourth Circuit’s decision is
allowed to stand, the decision will cause material
injustice to the State and the people of the State
which will, in turn, significantly affect the public
interest by creating a chilling effect upon all govern-
mental action for fear of provoking “takings” claims.
Under the Fourth Circuit’s opinion a “takings” claim
cannot be overcome unless the government can
1993).
12 Reeder v, Succession of Palmer, 623 So.2d 1268, 1271 (La.
13 Trich v. Crescent Tum Key & Engineering, L.L.C., 99-310
*5 (La.App. Sth Cir. 9/28/99), 744 So.2d 689, 692; Andrepont _v.
Andrepont, 97-1643 *3 (La.App. 3rd Cir. 4/1/98), 711 So.2d 759, 761;
Williams v, Insurance Company of North America, 96-0847 *3 (La.App.
4th Cir. 3/19/97), 692 So.2d 654, 656; Rochon v, Whitley, 96-0835 *4
(La.App. Ist Cir. 2/14/97), 691 So.2d 189, 191; Tye v. Co-Mar Offshore
Operators, Inc., 95-0094 *3 (La.App. Ist Cir. 10/6/95), 669’So.2d 438,
439.
14 Stone v, Entergy Services, Inc,, 99-0236 *3 (La.App. 4th
Cir. 8/18/99), 744 So.2d 141; writ denied, 99-2719 (La. 11/24/99), 750
So.2d 989; McCollough v, Dauzat, 736 So.2d at 915.
j
/
/
A-145
prove fraud on the part of the Claimant. This chill-
ing effect will extend far beyond bankrupting the
State’s coastal restoration projects with claims such
as those presented here for oyster lease damages. The
Fourth Circuit’s ruling will allow every special inter-
est group or isolated individual to bring a claim for
inverse condemnation or a “taking” whenever some
type of allegedly adverse economic ripple occurs fol-
lowing any form of governmental action.
5.DNR also submits that review is warranted under
the applicable law. DNR’s reasoning is based upon
the premise that when the lower courts’ action is
arguably incorrect, and a reversal will terminate the
litigation, and when there is no disputed fact to be
resolved, judicial efficiency and fundamental fairness
to the litigants dictates that the merits of the applica-
tion for supervisory writs should be decided in an
attempt to avoid the waste of time and expense of a
possibly useless future trial on the merits.!> Further,
this Honorable Court has recognized that due to their
unique nature, issues related to class actions such as
the instant matter, require supervisory review. |6
6.Next, in light of Act. 483 of 1997 which amended
La. C.C.P. Art. 966 related to summary judgment
proceedings, it is respectfully suggested that this
Honorable Court should review this matter since a
reversal of the Fourth Circuit will be dispositive of
the entire case. Those amendments are to be applied
15 i j
New Iberia, Inc., 396 So.2d 878 (La. 1981).
16 Cotton v. Gaylord Chemical, 680 So.2d 1187 (La. 1996).
A-146
retroactively as well as prospectively. ! 7 Review at
this time is consistent with the legislative intent in
that the summary judgment procedure is designed to
secure the just, speedy, and inexpensive determina-
tion of actions such as this, and the procedure is
favored and shall be construed to accomplish these
ends.!8 This Honorable Court’s review of this mat-
ter at this time accomplishes all of these legislative
aims and goals.
7.Finally, DNR respectfully requests expedited con-
sideration given the fact that immediately after the
Fourth Circuit’s adverse ruling, the Plaintiffs moved
to set this matter for trial. A status conference was
thereafter immediately set in this matter at which
time it is contemplated based upon the history of
prior proceedings in this matter that a trial date will
be set within months. With the setting of the status
conference, DNR has timely ih 9 a stay which
was denied by both the Trial Court!9 and the Fourth
Circuit29 despite the implications of this writ appli-
cation and the fact that there are still six writ applica-
tions pending before the Fourth Circuit. DNR there-
fore seeks expedited relief as well as a stay of all
proceedings in the Trial Court and in the Fourth
Circuit.
17 Perry Waller v. American Seafoods Company, 97-0302, p. |
1 (La.App. 4th Cir. 10/1/97), 700 So.2d 1306, 1307, writ not considered, “7
97-2769 (La. 1/30/98), 709 So.2d 693.
18 La. C.C.P. Art. 966 A(2) (1997).
19 Exhibit “D,” Trial Court’s Denial of Stay, CA No. 38-266
“B” (4/11/00).
20 Exhibit “E,” Denial of Stay, CA No. 00-0855 (La.App. 4th
Cir. 4/12/00).
A-147
STATEMENT OF THE CASE
A. THE PARALLEL PROCEEDINGS IN STATE
AND FEDERAL COURTS BELOW.
Albert J. Avenal, Jr. and other oyster
leaseholders/fishermen filed the present class action in the
25th Judicial District Court for the Parish of Plaquemines on
March 29, 1994 on behalf of all persons holding oyster leas-
es on state water bottoms in Breton Sound.2! These
Plaintiffs alleged that a “taking” had occurred without “just
compensation” in violation of the Fifth Amendment of the
U.S. Constitution and Article I, Section 4, of the Louisiana
Constitution because their oyster leases were adversely
affected by the freshwater outflow from the Caernarvon
freshwater diversion structure, located on the east bank of the
Mississippi River in Plaquemines Parish.
Meanwhile, on April 26, 1994, Albert Avenal and
these same representative Plaintiffs filed suit in the U.S.
Court of Federal Claims22 against the United States, i.e., the
United States Army Corps of Engineers, which had designed,
financed and built the Caernarvon freshwater diversion struc-
ture. In that suit, these same Plaintiffs alleged the same “tak-
ing” under the Fifth Amendment of the U.S. Constitution, the
very issue raised in the state court proceeding, and also
sought class certification.
A comparison of the allegations set forth in the feder-
al Complaint and the Petition filed in the 25th Judicial
21 Exhibit “F,” State Petition, CA No. 38-266, 25th JDC,
Parish of Plaquemines.
22 Exhibit “G,” i
of America, United States Court of Federal Claims, No. 94-261-L.
p A-148
District Court reveals that the cases deal with the identical
issue: whether a taking occurred as a result of the operation
of the Caernarvon freshwater diversion structure.
For example, paragraph 5 of the federal Complaint
reads as follows:
5.
The stated purposes of the Caernarvon Project
include, but are not limited to, the enhance-
ment of the emergent marsh vegetation
growth and a reduction of marsh loss. The
United States Army Corps of Engineers
attempts to achieve this stated goal by allow-
ing fresh water from the Mississippi River to
flow through the Caernarvon structure into
the saltwater areas.23
The state court Petition reads similarly:
V.
The stated purposes of the Caernarvon Project
include, but are not limited to, the enhance-
ment of the emergent marsh vegetation
growth and a reduction of marsh loss. The
Department of Natural Resources attempts to
achieve this stated goal by allowing fresh
water from the Mississippi River to flow
through the Caernarvon structure into the salt
water areas wherein plaintiffs’ leases
23 Id.
— _ srg ‘ | )
A-149
are located, thereby reducing the salinity and
salt content in the waters where plaintiffs’
leases are located.24
The sixth paragraph of both pleadings also reads sim-
ilarly:
6.
When the freshwater diverted from the
Mississippi reaches the water bottoms leased
by plaintiffs from the State of Louisiana, it
dilutes the salinity of the waters and deposits
silt on the water bottoms. As a direct result of
the dilution of the salinity of the waters
wherein plaintiffs’ leases are located, as well
as the increased vegetation and bacteria on or
near the water bottoms where plaintiffs’ leas-
es are located, and the silt deposits, the pro-
ductivity of plaintiffs’ leases has been and is
being destroyed, as the altered conditions of
the waters wherein plaintiffs’ leases are locat-
ed makes Plaintiffs’ leases no og capable
of oyster growth and cultivation.2
VI.
As a direct result of the dilution of the salini-
ty and salt content of the waters wherein
plaintiffs’ leases are located, as well as the
increased vegetation on or near the water
24 Exhibit “F,” State Petition.
25 Exhibit “G,” Federal Complaint.
A-150
bottoms wherein plaintiffs’ leases are located,
the productivity of plaintiffs’ leases have been
damaged, as the reduced salinity of the waters
wherein plaintiffs’ leases are located makes
plaintiffs’ leases no longer capable of oyster
growth and cultivation. The hereinabove
described actions of defendant has resulted in
a permanent and substantial interference with
Plaintiffs’ use and enjoyment of their land
amounting to a taking of an interest in
Plaintiffs’ valuable property rights without
compensation in violation of Article I, Section
4 of the Louisiana Constitution of 1974, and
the Fifth Amendment of the United States
Constitution.2©
Finally, paragraph 7 of the federal Complaint and
paragraph VIII of the state Petition also read similarly:
a
The hereinabove described actions of defen-
dant have resulted in permanent and substan-
tial interference with plaintiffs’ use and enjoy-
ment of their land amounting to a taking of an
interest in plaintiffs’ valuable property rights
without compensation in violation of the Fifth
Amendment of the United States
Constitution.27
26 Exhibit “F,” State Petition.
27 Exhibit “G,” Federal Complaint.
A-151
Vil.
Asa direct result of the hereinabove described
action of defendanis, the productivity of
plaintiffs’ leases have been destroyed, result-
- ing in a permanent and substantial interfer-
ence with plaintiffs’ use and enjoyment of
their land amounting to a taking of an interest
in plaintiffs’ valuable property rights without
compensation in violation of Article I, Section
4 of the Louisiana Constitution of 1974, and
of the Fifth Amendment of the United States
Constitution.28
With the exception of the identity of the named gov-
ernmental defendant, the Petition filed in the 25th Judicial
Court is virtually indistinguishable from the Complaint filed
in federal court. Although the names of the Defendants were
changed, the issue remains identical - whether a “taking” has
occurred as a result of the operation of the Caernarvon fresh-
water diversion structure.
In response to the federal Complaint. the United
States moved for summary judgment on several grounds, all
related to the “takings” issue. Among these, the United
States asserted that the Plaintiffs had no compensable
expectancy or property interest in continued saltwater intru-
sion or elevated salinity levels associated with the
Mississippi River levee system. The United States also
argued that the Plaintiffs had no reasonable investment-
backed expectations in any oyster leases in historically fresh
28 Exhibit “F,” State Petition.
A-152
areas of the Breton Sound Area which was the subject of the
litigation. In support of its motion for summary judgment,
the United States provided the court with a detailed and com-
prehensive analysis of the history of freshwater diversions
for environmental enhancement and coastal restoration,
including the Caernarvon Project. The evidence presented
significant information and documentation in support of the
United States’ position that there were no reasonable invest-
ment-backed expectations in those leases since the Plaintiffs
were put on notice as to the planning and construction of the
project decades ahead of time.
The Plaintiffs filed a lengthy opposition memoran-
dum, fully addressing the issues raised in the United States’
motion for summary judgment. As the lower federal court
would eventually note, Plaintiffs conceded many of the fac-
tual issues related to notice. Significantly, the court noted the
undisputed effect that the freshwater diversion structure to
be constructed at Caernarvon would have on the oyster fish-
ermen:
“The zone where conditions will become too
fresh and not favorable for oyster cultivation_
as a result of the [Caernarvon] diversion coin-
cides with an area that was historically (prior
to 1960) too fresh and not favorable for oys-
ter cultivation.” Def’s Proposed Findings of
Fact No. 8, filed Feb. 7, 1995 (citations omit-
ted). Plaintiffs do not dispute this fact.
(Emphasis added)2?
29 Avenal v. United States, 33 Fed.Cl. 778, 781 (Fed. Cl.
1995). See Exhibit “H”.
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The court further noted:
The Caernarvon project was designed not
only to abate saltwater intrusion, but also to
abate marine tidal invasion. At the July 31,
1984 public hearing, the President of the
Louisiana Oyster Dealers and Growers indi-
cated his support for both the Caernarvon
project and freshwater diversion structures
generally. (Emphasis added)>9
B. ULTIMATE DETERMINATION IN FEDERAL
COURT.
On August 2, 1995, the Court of Federal Claims
granted the United States’ Motion for Summary Judgment,
finding that the leaseholders hold no compensable property
interest in the salinity of the waters above their leased
acreage, an area which had been historically too fresh for
oyster cultivation prior to the construction of the Mississippi
River levee system.>! The lower court’s opinion also specif-
ically addressed the United States’ argument related to the
lack of reasonable investment-backed expectations in the
subject leases.
On November 12, 1996, the U.S. Court of Appeals
for the Federal Circuit affirmed the lower court’s judgment,
but on different grounds. 32 The Court held that these same
oyster lessees could not have had reasonable investment-
backed expectations such that their oyster leases would give
30 Id. See Exhibit “H”.
31 Id. See Exhibit “H”.
32 Avenal v. United States, 100 F.3d 933 (Fed. Cir. 1996). See
Exhibit “I”.
A-154
them rights protected from the planned freshwater diversions
of the state and federal governments.2> The Federal Circuit
held that under entrenched constitutional law the absence of
reasonable investment-backed expectations barred the
Plaintiffs’ recovery.>4 In reaching this conclusion, the
Federal Circuit restated and confirmed the federal position
regarding regulatory takings under the federal law as set out
by the U.S. Supreme Court.35
The Court reiterated the lower court’s findings with
respect to Plaintiffs’ prior notice of the Caernarvon project
and its effects on the oyster industry, resulting in their lack of
reasonable investment-backed expectations:
It is hard for them [the Plaintiffs] to claim sur-
prise, however, that the pre-existing salinity
conditions, created at least in part by earlier
government activity, were not left alone, but
were again tampered with to their (this time)
disadvantage.
... (T)hey cannot here insist on a guarantee of
non-interference by government when they_
well knew or should have known that, in
response to widely shared public concerns,
including concerns of the oyster industry
itself, government actions were being planned
that would directly affect their new economic
investments. These concerns and
33 Id. at 937. See Exhibit “I”.
34 Id.
35 Id. citing, Penn Central Transportation Co. v. New_York
City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659 (1978).
/
/
A-155
plans date back to the early part of the centu-
ry, and beginning in the 1950’s and 1960’s
were actively being pursued by state and fed-
eral agencies. They were certainly a part of
the environment in which the raising and har-
. vesting of oysters in the Louisiana marshes
were conducted. (Emphasis added).3®
The Court concluded by stating:
In light of the history of events in this case,
plaintiffs, as a matter of law must be assumed
to have known that their rights to use the bot-
tom-lands for oystering were subject to the
inevitable changes that the anticipated gov-
ernment program would bring about. 7
C. STATE COURT PROCEEDINGS TO DATE
While the federal proceedings had terminated, the
State court proceedings in the 25th JDC, Parish of
Plaquemines continued. In accordance with the court’s pre-
trial scheduling order, on December 15, 1998, DNR filed
several motions for summary judgment, including one based
on the issue of collateral estoppel.38 DNR asserted that the
decision in the federal proceeding dismissing Plaintiffs’
36 - Id. at 937.
37 _Ayenal, 100 F.3d at 937. See Exhibit “I”.
38 Judge Roe took DNR’s other motions for summary judge-
ment under advisement. Thus, the issues raised on those motions are not
made a part of this Writ Application.
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claims on summary judgment had a preclusive effect upon
the state court proceedings and thus, the present suit against
the State should likewise be dismissed. This matter came for
hearing before the Honorable William A. Roe on January 5,
1999. Judge Roe denied all of DNR’s Motions including
DNR’s Motion for Summary Judgment Based Upon the
Doctrine of Collateral Estoppel.39 From the Trial Court’s
adverse decision, DNR filed an application for supervisory
writs and/or writs of review before the Fourth Circuit Court
of Appeals on January 15, 1999. The Fourth Circuit then
issued a stay order regarding further proceedings pending its
action on the writ application.
On March 3, 1999, a five judge panel for the Fourth
Circuit issued a 3-2 opinion authored by Judge Miriam
Waltzer granting the writ application, and reversed the Trial
Court’s denial of summary judgment.49 The Fourth Circuit
panel found that the issue of the preclusive effect of a prior
federal decision was a matter of federal law, and on this basis
determined that the Plaintiffs’ claims were barred by the fed-
eral common law of collateral estoppel.4! All five
39 See Exhibit “A”.
40 Exhibit “B,” Original Opinion, CA No. 99-0127 (La.App.
4th Cir. 3/3/99), Majority opinion by Judge Waltzer in which Judge Pro
Tempore James C. Gulotta and Judge Pro Tempore Philip C. Ciaccio
joined; Judge James F. McKay, III issued a separate opinion in which he
concurred in part and dissented in part. Chief Judge Robert J. Klees
joined in Judge McKay’s opinion. The five judge panel apparently result-
ed from the preliminary decision of the original three judge panel to over-
rule the Trial Court, all in accordance with Uniform Appellate Rule | - 5.
41 ]d at6- 11.
A-157
judges agreed that the Plaintiffs’ inverse condemnation
claims under the Fifth Amendment of the United States
or one were barred by the doctrine of collateral estop-
pel.
The Plaintiffs thereafter sought rehearing on March
17, 1999, requesting that the panel compare the facts in the
two cases to see if the elements of collateral estoppel had
been met, i.e., whether the fact situations matched. On
March 26, 1999 the Fourth Circuit issued a writ of certiorari
to the 25th JDC43 so as to allow the Court “to consider
whether the issue actually litigated in the prior federal action
is identical to an issue at stake in this subsequent state
action.”44
Following oral argument on September 15, 1999, the
same five judge panel of the Fourth Circuit reversed itself 3-
2, not on the basis of a comparison of the two Courts’
records, but rather on entirely legal bases. Essentially Judge
Ciaccio changed his vote issuing written reasons in a con-
curring opinion accompanying the majority opinion. The
Fourth Circuit panel’s majority opinion created new law to
overrule its prior opinion, holding that: (1) collateral estop-
pel is inapplicable under any circumstances in any Louisiana
Court despite federal and state law to the contrary; (2) the
legal standard applicable to “takings” under Louisiana con-
stitutional law differs from that under federal constitutional
law; (3) the United States Supreme Court’s requisite consid-
42 Id. See concurring/dissenting opinion of Judge James
McKay, III.
43 Exhibit “J”.
44 Exhibit “C,” Opinion on Rehearing, CA No. 99-0127
(3/15/00), _ So.2d__ dissent of Judge Miriam Waltzer at p. 2.
A-158
eration of reasonable or distinct investment-backed expecta-
tions to determine whether a taking has occurred is simply
“irrelevant” under Louisiana law; and, (4) the only bar to
compensation under either an expropriation or inverse con-
demnation action in Louisiana is the “bad faith” of the
claimant.
From this adverse ruling based entirely upon new
law, DNR seeks review. Given the import of this decision on
the State’s entire coastal restoration program as well as the
potential exposure of all governmental entities at every level
in Louisiana for inverse condemnation claims as a result of
this ruling, DNR seeks expedited review. DNR also seeks
herein a stay order as regards all proceedings in this matter
since there are presently six pending writ applications at the
Fourth Circuit, and, the Trial Court has set this matter for an
immediate status conference to set a trial date which could be
within months. DNR has previously sought and obtained
stays at the Fourth Circuit level on this matter but was denied
such relief at this time.4> DNR had also exhausted all stay
remedies at the Trial Court level.46
ASSIGNMENT OF ERRORS
Defendants/Applicants submit that the Trial Court
and/or the Fourth Circuit have erred as follows:
1.The lower courts erred by failing to dismiss the
Plaintiffs’ claims which were barred by the doctrine
45 Exhibit “E”.
46 Exhibit “D”.
—a ee oe ee
A-159
of collateral estoppel as applied under the federal
common law applicable to the state court proceeding,
and by failing to give full faith and credit to a prior
federal decision.
2.The Fourth Circuit erred by creating an artificial
distinction between what constitutes a “taking” under
the United States and Louisiana Constitutions.
3.The Fourth Circuit committed a gross departure
from the established and existing jurisprudence of the
United States Supreme Court and many of the courts
of the United States as well as the Louisiana courts by
eliminating consideration of reasonable and/or dis-
tinct investment-backed expectations from a court’s
. analysis of “takings” or inverse condemnation
claims.
4.The Fourth Circuit erred in eliminating all govern-
mental defenses to claims for “takings” or inverse
condemnation claims except for the defense of “bad
‘ faith.”
47 Exhibit “B,” Albert J. Avenal, Jr., et al. v. The State of
Louisiana, The Department of Natural Resources, CA No. 99-C-0127,
original opinion dated 3/3/99 granting DNR’s writ and reversing Trial
Court judgment, p. 6.
48 Exhibit “C,” Opinion on rehearing, CA No. 99-C-0127, dis-
sent, *2 (La.App. 4th Cir. 3/15/00).
A-160
SUMMARY OF ARGUMENT
The Fourth Circuit’s ruling presents a frontal assault
on three major entrenched areas of constitutional law: (1) the
supremacy of federal law; (2) the constitutional analysis of a
“taking” or inverse condemnation claim; and, (3) the legal
concepts of expropriation and inverse condemnation under
Louisiana law.
If allowed to stand, this decision will completely
transform the law related to inverse condemnation or “tak-
ings” in Louisiana by eliminating all governmental defenses
available to State, Parish and local government for “takings”
claims except for a new defense of “bad faith,” or fraud,
heretofore never applied in the context of inverse condemna-
tion. Absent proof of fraud, all “takings” claims are valid,
and any governmental action is now subject to challenge and
compensation. Such challenges will include regulatory rul-
ings, zoning changes, physical proximity or occupation
claims, delays or detours, wetland regulation, permit
issuance, and in fact, any governmental decision which
might have any economic impact whatsoever, no matter how
slight, as long as the claims are based on a “takings” or
inverse condemnation theory.
The Fourth Circuit not only eliminated governmental
defenses, but also jettisoned the United States Supreme
Court’s second fundamental requirement for a takings claim
to proceed: that the claimant have reasonable “investment-
backed expectations” in the property that is allegedly taken.
To reach this result the Fourth Circuit merged statutory con-
cepts of expropriation with inverse condemnation, a concept
defined by a fast growing body of jurisprudential law, pri-
marily federal in origin.
a ee ee ee ae
A-161
Lastly, the Fourth Circuit refused to apply the federal inter-
pretation of the doctrine of collateral estoppel to the
Plaintiffs’ claims in these proceedings which are identical to
those brought by these same Plaintiffs in a parallel federal
proceeding. Had the Fourth Circuit done so, the Plaintiffs’
claims would have been dismissed.
ARGUMENT
I.THE TRIAL COURT AND LATER THE
COURT OF APPEALS SHOULD HAVE DIS-
MISSED THE PLAINTIFFS’ CLAIMS UNDER
THE DOCTRINE OF COLLATERAL ESTOP-
PEL PURSUANT TO APPLICABLE FEDERAL
COMMON LAW.
A. The Preclusive Effect of a Prior Federal
Decision Is an Issue of Federal Law.
Judge Miriam G. Waltzer of the Fourth Circuit suc-
cinctly explained in her original majority opinion why the
Fourth Circuit was bound to apply federal common law relat-
ed to collateral estoppel in this matter, citing precedent from
this Honorable Court:
We must apply federal law to determine the
effect of the judgment, rendered in the feder-
al action, on the proceedings in state court.
Reeder v. Succession of Palmer, 623 So.2d
1268, 1271 (La. 1993). We must apply feder-
al law to “determine the preclusive effects
A-162 ,
of a judgment rendered by a federal court
exercising federal question jurisdiction.”
14.47
After the 3-2 opinion issued reversing the original
Fourth Circuit Judgment and Judge Waltzer’s scholarly opin-
ion, Judge Waltzer set out the applicable law which formed
the basis for her original reasoning in the dissent she pre-
pared in which Judge James C. Gulotta joined: |
In deciding the preclusive effect of a federal
judgment, we are bound by Louisiana law
(and arguably the United States Constitution)
to apply federal law. Reeder v. Succession of
Palmer, 623 So.2d 1268, 1271 (La. 1993).
Collateral estoppel, or issue preclusion, is a
concept firmly entrenched in federal law.
Recoveredge, L.P. v. Pentecost, 44 F.3d 1284,
1291 (Sth Cir. 1995). Although the leasehold-
ers did not sue the State of Louisiana in the
prior federal suit, such an identity of parties is
not required to apply the doctrine of collater- -
al estoppel, or issue preclusion. Blonder -
Illinois Foundation, 402 U.S. 313, 91 S.Ct.
1434, 28 L.Ed.2d 798 (1970).48
eee ee ee ee eee Pe eT
47 _ Exhibit “B,” Albert J. Avenal, Jr., et al. v. The State of
Louisiana, The Department of Natural Resources, CA No. 99-C-0127,
original opinion dated 3/3/99 granting DNR’s writ and reversing Trial
Court judgment, p. 6.
48 Exhibit “C,” Opinion on rehearing, CA No. 99-C-0127, dis-
sent, *2 (La.App. 4th Cir. 3/15/00).
A-163
Judge Waltzer’s original opinion written for the
majority as well as her dissent to the eventual 3-2 opinion en
rehearing both frames and capsulizes DNR’s position on this
issue. In line with this Honorable Court’s opinion in Reeder,
Louisiana courts have repeatedly and consistently held that
the preclusive effect of a prior federal decision is an issue of
federal common law, not Louisiana State law.4? The major-
ity opinion on rehearing mistakenly relied upon cases deal-
ing with the preclusive effect of prior state, not federal, deci-
sions.>9
The preclusive effect of a prior federal decision
emanates from the United States Constitution’s Supremacy
Clause?! and Full Faith and Credit Clause>2 as well as the
federal “full faith and credit” statute>> all of which require
each State to give the same effect to the judgments of feder-
al courts as those judgments have in the jurisdictions where
49 j i ,
95-0654 *14 (La. 1/16/96), 666 So.2d 624, 632-3: Trich v. Crescent Turn
Key & Engineering, L.L.C., 99-310 *5 (La.App. 5th Cir. 9/28/99), 744
So.2d 689, 692; Andrepont v. Andrepont, 97-1643 *3 (La.App. 3rd Cir.
Williams v, Insurance Company of North
4/1/98), 711 So.2d 759, 761; Willi
America, 96-0847 *3 (La.App. 4th Cir. 3/19/97), 692 So.2d 654, 656;
Rochon v, Whitley, 96-0835 *4 (La.App. Ist Cir. 2/ 14/97), 691 So.2d
189, 191; Schlesinger v. Herzog, 95-1127 *21 (La.App. 4th Cir. 4/3/96),
672 So.2d 701, 714; Tye v. Co-Mar Offshore Operators, Inc., 95-0094 *3
(La.App. Ist Cir. 10/6/95), 669 So.2d 438, 439; City of New Orleans vy.
Badine Land Ltd,, 94-2631 *6 (La.App. 4th Cir. 6/29/95), 657 So.2d 770,
773: Toli : as ae
j , 94-1444 *8 (La.App. 4th Cir.
5/16/95), 655 So.2d 747, 753.
50 Steptoe v, Lallie Kemp Hospital, 634 So.2d 331, 335 (La.
1994); Welch » Crown Zellerbach Corp.. 359 So.2d 154, 156 (La. 1978).
51 Art. VI, Section 2.
52. Art. IV, Section 1.
53 28 U.S.C. $1738.
A-164
rendered.>4 Indeed, in Pilie & Pilie v. Metz,> 5 this
Honorable Court noted that “the principle that a state court
must apply federal law in deciding upon at least the central
core of res judicata effects of any federal court judgment is
immanent within the constitution and laws establishing our
federal system”. 56 The collateral estoppel component of res
judicata is included within the full faith and credit mandate
of this principle. 57
Consistent with this rule of law, the Louisiana courts
have likewise recognized the preclusive effect of a prior fed-
eral court determination or decision and have — the fed-
eral common law rule of collateral estoppel.-° In fact, an
earlier opinion by Judge James McKay, III, the author of the
majority opinion in this matter, applied a collateral estoppel
analysis under federal common law based upon his conclu-
sion that, “federal law governs the preclusive effects of a fed-
eral judgment.”>? Moreover, the entire panel in this matter
recognized the applicability of collateral estoppel by dis-
54 Heck v. Humphrey, 512 U.S. 475, 488 n. 9, 114 S.Ct. 2364,
2373 n. 9 (1994); Magnolia Petroleum Company v. Hunt, 320 U.S. 430,
437- 438, 64 S.Ct. 208, 212- 213 (1943); Stoll v, Gottlieb, 305 U.S. 165,
167 - 171, 59 S.Ct. 134, 135 - 138 (1938); Crescent City Livestock
Landry & Slaughter-House Co, v. Butchers’ Union Slaughter-House &
Live-Stock Landing Co., 120 U.S. 141, 160, 7 S.Ct. 482, 474 (1887);
Embry v. Palmer, 107 U.S. 3, 9 - 10, 2 S.Ct. 25, 27 - 30 (1872).
55 547 So.2d 1305, 1308 (La. 1989).
56 Id. at 1308, citing 18 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure, section 4468 (1981).
57 United States v. Silliman, 167 F.2d 607, 612, 620 - 621 (3rd
Cir.), cert. denied, 335 U.S. 825, 69 S.Ct. 48 (1948).
58 See, e.g., McCollough v, Dauzat, 98-1293 *3 (La.App. 3rd
Cir. 3/3/99), 736 So.2d 914, 915.
59 Stone v. Entergy Services, Inc,, 99-0236 *3 (La.App. 4th
Cir. 8/18/99), 744 So.2d 141; writ denied, 99-2719 (La. 11/24/99), 750
So.2d 989.
ee
A-165
missing the Plaintiffs’ claims based upon the Fifth
Amendment “taking” theories. Thus, the majority has
already acknowledged that the facts necessary to prove a tak-
ing are missing from this matter, and should have dismissed
federal and state claims.
“Application of collateral estoppel in this matier is
also consistent with the general principles or policy reasons
behind the concept of res judicata of which collateral estop-
pel forms a part, i.e., to promote judicial efficiency and final
resolution of disputes by preventing needless relitigation.
Indeed, not too long ago the Louisiana legislature spoke on
the viability of this policy, by relaxing the rules of res judi-
cata.°0 In this same vein, as former Chief Justice John A.
Dixon, Jr. had written well before those amendments:
It is implicit in the concept of a judicial sys-
tem that controversies be finally resolved so
that parties may enjoy their rights and so that
conflicting legal obligations may not be
imposed on an individual; litigation must end
at some point. Precluding relitigation pre-
vents inefficient use of the courts’ resources,
reduces the possibility of harassment through
vexatious suits, and helps maintain respect for
the judicial process by guarding against
inconsistent decisions.
If this Honorable Court should choose to apply appli-
cable federal common law, i.e., the doctrine of collater-
60 Acts 1990, No. 521 §1, eff. Jan. 1, 1991 amending La. R.S.
13:4231 (see also comments related to same).
61 Dixon, Booksh, Zimmering, Res Judicata in Louisiana
Since Hope v. Madison, 51 Tul.L.Rev. 611 (1977), (footnotes in quota-
tion omitted.)
A-166
al estoppel, in accordance with the applicable federal consti-
tutional and statutory law and consistent with prior opinions
of the Louisiana courts, DNR submits that the Plaintiffs’
claims must be dismissed under the applicable federal com-
mon law associated with the federal courts’ interpretation of
the doctrine of collateral estoppel, here defensive collateral
estoppel.
B. Application of the Federal Common Law
of Collateral Estoppel Results in the
Dismissal of Plaintiffs’ Claims.
The federal law of collateral estoppel, which the trial
court is required to apply, consists of four elements:
(1)The issue at stake must be identical to the one
involved in the prior action;
(2)The issue must have been actually litigated in the
prior action;
(3)The determination of the issue in the prior action
must have been a necessary part of the judgment in
that earlier action; and
(4)There is no special circumstance that would make
it unfair to apply the doctrine.©2
All of the factors necessary for the court to apply the
federal law of collateral estoppel have been met. First, as can
be seen from the federal Complaint and the state court
Petition, the takings issue is identical. Second, the takings
“62 Copeland, supra, at 1423.
A-167
issue was actually litigated in both the federal trial court and
federal appellate court, with the appellate court specifically
affirming summary judgment based on the fact that the
Plaintiffs had no reasonable investment-backed expectations
in their leases.°3 More importantly, the Fourth Circuit’s
opinion on rehearing does not indicate that there is any fac-
tual distinction between the two cases. As to the third ele-
ment of the collateral estoppel test, the takings issue was a
necessary part of the federal judgment. In fact, the decision
on the takings issue was the core of the dispute. Fourth and
finally, there is no special circumstance that would make it
unfair to apply the doctrine of collateral estoppel.
The United States Supreme Court has specifically
held that collateral estoppel may be asserted by a party even
if that party was not involved in the prior litigation.°* This
is known as defensive collateral estoppel wherein a plaintiff
is estopped from asserting a claim that the plaintiff has pre-
viously litigated and lost against another defendant. As
the United States Fifth Circuit has held, “collateral estoppel
bars a plaintiff from assailing the defendants for proceeding
without change upon a course of conduct previously held
lawful against plaintiff’s identical attack.”©® In other words,
the defensive use of collateral estoppel precludes a plaintiff
from relitigating identical issues by merely “switch-
63 See Exhibit “I”.
64 Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326-333,
99 S.Ct. 649-52 (1979).
65 Id.
66 Exhibitors Poster Exch., Inc. v, National Screen S.C., 517
F.2d 110, 114 (Sth Cir. 1975).
A-168
ing adversaries.”©7 ~ Stated succinctly, defensive collateral
estoppel may be urged by a party to the second suit who was
not even a party to the first suit.
As the Federal Circuit affirmed the Court of Federal
Claims’ dismissal of the Plaintiffs’ complaint on summary
judgment and all of the elements of collateral estoppel have
been met, the Trial Court should have applied the doctrine of
defensive collateral estoppel, thereby dismissing the
Plaintiffs’ claims in the instant litigation in their entirety.
Il. THE FOURTH CIRCUIT’S MAJORITY OPIN-
ION ATTEMPTS TO ELIMINATE “INVEST-
MENT-BACKED EXPECTATIONS” FROM
CONSID ERATION IN THE ANALYSIS OF
INVERSE CONDEMNATION CLAIMS CON-
TRARY TO ESTABLISHED CONSTITUTION-
AL PRECEDENT.
A. “Investment-Backed Expectations” Form
the Second Element of the Three Pronged
Test for Takings under Established
Constitutional Law.
The Federal Circuit dismissed the Plaintiffs’ claims
- based upon the fact that the Plaintiffs had no reasonable
investment-backed expectations in their oyster leases as
required under the United States Supreme Court decision,
P. i v. New
67 Parklane Hosiery, supra, at 329, 651, citing Bernhard v.
Bank of America Nat. Trust & Savings Assn., 19 Cal.2d 807, 813, 122
P.2d, 892 at 895.
«68s Id. /
69 438 U.S. 104, 98 S.Ct. 2646 (1978).
A-169
The Penn Central inquiry entails a balancing test in which
(1) the economic impact, (2) reasonable investment-backed
expectations, and (3) the character of the governmental
action at issue are weighed to determine whether compensa-
tion is mandated.’2 As part of its burden of proof, the
claimant must show that the effects of the governmental
action — the property at issue frustrated reasonable expec-
tations.’* As recently as last year, the Federal Circuit reaf-
firmed the requisite takings analysis that “for any regulatory
takings claim to succeed, the Claimant must show that the
government’s regulatory restraint interfered with his invest-
ment-backed expectations in a manner that requires the gov-
ernment to compensate him. 12 Moreover, a reasonable
investment-backed expectation must be more than a “unilat-
eral expectation or an abstract need.”/3 Given the impor-
tance the Courts have placed on this concept, “investment-
backed expectations,” the requisite second element of the
constitutional “takings” test has proved so important that
70 Penn Central, 438 U.S. at 124 - 128, 98 S.Ct. 2646, 2659
(1978). |
71 Florida Rock Industries, Inc, v. United States, 45 Fed.Cl. 21,
38 (1999).
72 Good v. United States, 189 F.3d 1355, 1360 (Fed.Cir. 1999),
cert. denied, 529U.S._,_—s——s S.Ct. __—— (4/3/00), citing Loveladies
Harbor, Inc. v. United States, 28 F.3d 1171 (F (Fed.Cir. 1994).
73 Ruckelshaus v. Monsanto, 467 U.S. 986, 1004 - 1006, 104
S.Ct. 2862, 2874 (1984); Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155, 161, 101 S.Ct. 446, 451 (1980).
A-170
it has been the subject of repeated and extensive comment. /4
The Fourth Circuit’s ruling suggests that Louisiana
does not follow United States Constitutional law in any
shape or form. This is not the case. In reality, like the estab-
lished federal taking test, Louisiana has a formula for recov-
ery under an inverse condemnation theory. In determining
whether a claimant is entitled to eminent domain compensa-
tion in an action for inverse condemnation, our Louisiana
Supreme Court has adopted a three-prong analysis:
(1)Whether a person’s legal right with respect
to a thing or an object has been affected;
United Statca. No. 97-5138 (Fad. Ck: Aus. 31, 1999), 14 No. 9 NAAG
Nat’! Envtl. Enforcement J. 27, October 1999; Washburn, “Reasonable
nvestment-Backed xpectation
Interest, 49 Wash. UJ. Urb. & ‘Contain: L. 63, Summer 1996:
Friedmann, Taking Claim Fails When Landowner Had No Investment-
Backed Expectations, 10 NO. 4 N.Y. Real Est. L. Rep. 3, February 1996;
Mandelker, Investment-Backed Expectations In Taking Law, 27 Urb.
seep 215, Pie 1995; i sees Fa Ay COR
a aa resting Wands And Restnable Invent
Picadas 54 a LJ. 1219, Fall, 1987,
A-171
(2)If it is determined that property is
involved, whether the property, either a right or thing
has been taken or damaged in a constitutional sense;
and
(3)Whether the taking or damaging is for a
public purpose under Article I, Section 4 of the
Louisiana Constitution. ’>
Thus, to recover on an inverse condemnation in
Louisiana, a claimant must establish that property “has been
taken or damaged in a constitutional sense,” the same burden
of proof as is set out under the three-pronged federal consti-
tutional test for recovery on an inverse condemnation theory.
Not surprisingly, Louisiana courts look to the immense body
of federal “takings” jurisprudence to determine whether a
“taking” has occurred.
B. The Louisiana Supreme Court and the
Lower Courts Have Consistently Applied
United States Constitutional Law to
Determine Whether a “Taking” Has
Occurred in the Context of Inverse
Condemnation Jurisprudence.
As Judge Waltzer observed in her original majority
opinion in this matter, “Louisiana courts have consistently
considered federal law in analyzing whether particular facts
constitute a taking of property in similar inverse condemna-
tion suits.”7© For example, in, Annison v. Hoover, ”’ the
Court took the opportunity to study the issue of inverse con-
75 Id. at 603.
76 Exhibit “B,” Original Opinion at p. 8 (emphasis original).
77 517 So.2d 420 (La. App. Ist Cir. 1987).
A-172
demnation with respect to a zoning ordinance enacted by the
City of Denham Springs. The Court analyzed the inverse
condemnation issue not under expropriation law, but rather
under the United States Supreme Court precedents of First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, California’* and Keystone Bituminous Coal
Association v, DeBenedictis .”? Importantly, the Annison
Court also cites the United States Supreme Court case of
Agins v. Tiburon,®9 which applies the Penn Central balanc-
ing test, the same test the Federal Circuit applied in affirm-
ing the lower court’s grant of summary judgment in Avenal,
to an inverse condemnation case.
Other Louisiana courts have similarly decided tak-
ings/inverse condemnation cases, relying upon the most
recent United States Supreme Court decisions WRAP f
that issue. For example, in Layne v. City of Mandeville®2
the plaintiffs filed a takings claim alleging that a zoning :—-
ulation denied them the business use of their property.
Plaintiffs in that matter initially contended that the Erie doc-
trine, which dictates that the substantive laws of States must
govern, even where federal constitutional precepts-are at
issue controlled. Plaintiffs further argued that Louisiana case
law and property concepts should override federal takings
jurisprudence. The Court rejected such assertions, stating:
78 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).
79 480 U.S. 263, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).
80 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).
81 Annison, 517 So.2d at 423. Both First Evangelical and
DeBenedictis also cite the Penn Central decision.
82 633 So.2d 608 (La. App. Ist Cir. 1993).
2 ae eo ee
A-173
The Erie doctrine is a federal rule which
requires federal courts sitting in diversity to
apply the substantive law of the States in
which they are sitting. Erie has no application
in state court. Moreover, because of the
supremacy Clause, all state law is subordinate
to and may not detract from federal consti-
tutional rights. U.S. Const. art. VI, cl. 2.
Thus, we cannot agree with plaintiffs’ sug-
gestion that we are not bound by federal con-
stitutional law in this case. (Emphasis
added)83
The Layne Court then analyzed the plaintiffs” takings
claim under the recently decided United States Supreme
Court decision in Lucas v. South Carolina Coastal
Council ®4. The trial court in Layne had granted defendant’s
motion for summary judgment by interpreting Lucas as stat-
ing a rule that a taking occurs only when an owner is
deprived of all economically beneficial use of his land. The
First Circuit disagreed, pointing out that Lucas also states
that an owner not deprived of all use must undergo a fact spe-
cific determination of the economic impact of the regulation
on the claimant and the extent to which the regulation has
interfered with distinct investment-backed expectations.85
In other words, the First Circuit held that the trial
83 Id, at 610.
84 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).
85 Layne, 633 So.2d at 611, citing Lucas v. South Carolina
Coastal Council, 112 S.Ct. at 2895.
A-174
court should have applied the Penn Central balancing test,
the same test the Federal Circuit applied in affirming the
lower court’s grant of summary judgment in Avenal.
The First Circuit again surveyed federal constitution-
al law in deciding an sate ere case in Standard
Materials v. City of Slidell.8® The Court began its analysis
by illustrating the similarities between the Fifth Amendment
to the Constitution of the United States, made a ca to
the States through the Fourteenth Amendment®’, and the
Louisiana equivalent, Article I, Section 4 of the Lovliiens
Constitution. The Court then affirmed the dual structure of
federal takings law, noting that a constitutional “taking” can
be a physical taking or a regulatory taking. 88 The Court also
cited with approval the holding in Layne, supra, that the
determination of whether a taking has occurred is a factual
determination,®? ie. the same test the Federal Circuit
applied in affirming the lower court’s grant of summary
judgment in Avenal.
More recently, this Honorable Court applied federat
inverse condemnation/“takings” law in Louisiana Seafood
Management Council _v. Louisiana Wildlife & Fisheries
Commission”? in determining whether a compensable tak-
1
86 700 So.2d 975 (La. App. Ist Cir. 1997).
87 Id. at 984, citing Dolan v. City of Tigard, 512 U.S. 374, 383-
384, 114 S.Ct. 2309, 2316 129 L.Ed.2d 304 (1994).
88 Id. at 990, n. 11, citing Yee v,. City of Escondido, California,
503 U.S. 519, 522, 112 S.Ct. 1522, 1526, 118 L.Ed.2d oA pl and
Johnson City. 473 US. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126
(1985).
89 Id. at 984.
90 715 So.2d 387 (La. 1998).
A-175
ing of property interests of commercial fishermen had
occurred as a result of the recently enacted gill net ban law.
This Court initially noted the parallels of the “takings” clause
under the Fifth Amendment of the United States Constitution
and its counterpart under Article I, Section 4 of Louisiana
Constitution.?! This Court then focused on the interplay
between federal takings law and state takings law under the
Louisiana Constitution. Citing the United States Supreme
Court case of "Pennsylvania Coal v. Mahon, ?2 this Court rec-
ognized the similarities and parallels between federal “tak-
ings” law and Louisiana takings law, echoing the Mahon
decision as follows:
Indeed, the takings clause of the State
Constitution expressly provides that the state
has the right in the exercise of its police pow-
ers to impose reasonable regulations on pri-
vate property.?9
Finally, this Court applied federal constitutional law
concepts in rejecting the Plaintiffs’ argument that the gill net
ban law diminished the economic value of their equipment.
Quoting Andrus v. Allard,?4 this Court stated that:
(L)oss of future profits - unaccompanied by
any physical property restriction - provides a
slender reed upon which to rest a taking
91 Id, at 391-392.
92 260 U.S. 393, 413, 43 S. Ct. 158, 159, 67 L.Ed. 322 (1922).
93 Id., citing, Louisiana Constitution Article I, Section 4.
94 444 US. 51, 65, 100 S.Ct. 318, 326-27, 62 L.Ed. 2d. 210
(1979).
3 A-176
claim... The interest in anticipated gains has
traditionally been viewed as less ne
than other property-related interests.?
Consistent with the approach this Honorable Court
and the First Circuit have followed, but prior to this matter,
the Fourth Circuit also followed or relied upon federal con-
stitutional precedents and authority.96 Accordingly, there
was no jurisprudential authority for the Fourth Circuit to
depart from existing federal and state constitutional jurispru-
dence in this matter and attempt to create an entirely new
body of Louisiana constitutional law. 4
c “Distinct Investment-Backed
Expectations” Are Not Only Relevant,
But Also Constitute a Critical
and Requisite Consideration for
Any Analysis of a “Takings” Claim.
In the majority opinion on rehearing, Judge McKay
wrote that the, “‘distinct investment-backed expectations’ of
Penn Central Transportation Co. v. City of New York, 438
U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), is irrelevant
to the question of whether a “taking” has occurred under
Louisiana law.”27 No authority, jurisprudential or other-
wise, is cited for this pronouncement. Certainly no
Louisiana Court prior to the Fourth Circuit’s majority opin-
ion has ever reached such a conclusion. In fact, as shown
95 _Id. at 392-393, citing Andrus, 444 U.S. at 66, 100 S.Ct. at
327.
96 State D f Social Servi City of New Orl
supra, at *7, 154.
97 Exhibit “C,” Majority Opinion at p. 9 (emphasis added).
:
:
:
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: A-177
above, at least one other Louisiana appellate court has con-
sidered reasonable or distinct “investment-backed expecta-
tions” to be relevant.98
A review of the jurisprudence from the other forty-
-nine States reveals that the highest courts of twenty-four (24)
States explicitly consider or recognize the requirement of
“reasonable investment-backed expectations” in a “takings”
analysis. 99 The intermediate appellate Courts of Appeal in -
six other States, Arizona, Florida, Missouri, North Carolina,
North Dakota and Wisconsin have also used the factor. 100
Significantly, DNR has been unable to locate any state court
which has rejected consideration of “reasonable” or “dis-
tinct” “investment-backed expectations” in a “takings”
analysis.
When the absence of such a finding is coupled with
the authorities cited, supra, it becomes readily apparent that
the Fourth Circuit’s attempt to eliminate consideration of
“investment-backed expectations” from a “takings” analysis
represents not only a total departure from the established
constitutional law of the United States Supreme Court, but
98 Layne v. City of Mandeville, 93-0046 (La.App. Ist Cir.
12/29/93), 633 So.2d 608, 610, writ denied, 94-0268 (La. 3/25/94), 635
So.2d 234.
99 See footnote 4, supra.
100 Arizona: Laidlaw Waste Systems, Inc, v, City of Phoenix,
~ $15 P.2d 932, 935 (Ariz.Ct.App. 1991); Florida: Golf Club of Plantation,
Inc. v. City of Plantation, 717 So.2d 166, 170 (Fla. 4th DCA “(Fa. th DCA 1998)
Missouri:
Bogue, Inc., 988 S.W.2d 102, 107 (Mo.Ct.App. 1999); North Carolina:
Sherrill v. Town of Wrightsville, 334 S.E.2d 357 (N.C.App. 1986); North
Dakota: Southwest Cass Water Resource Dist. v, Burlington Northern
RR. Co,, 527 N.W.2d 884, 894 - 895 (N.D. 1995); Wisconsin: Zealy v.
City of Waukesha, 534 N.W.2d 917, 921 - 924 (Wis.Ct.App. 1995), rev'd
on other grounds, 548 N.W.2d 528 (Wis. 1996).
A-178
also a departure from the jurisprudence of well over a major-
ity (thirty) of the United States, as well as at least one lower
appellate court of Louisiana. Accordingly, the Fourth
Circuit’s pronouncement comes without any authority what-
soever and should be overruled.
Iii. THE FOURTH CIRCUIT ERRED IN
ELIMINATING ALL GOVERNMENTAL
DEFENSES TO A TAKING SAVE FOR
“BAD FAITH.”
A. The Fourth Circuit’s Opinion Renders All
Louisiana Government Defenseless to
“Takings” Claims.
Not unlike the recent tornado that swept through
Houma, the Fourth Circuit’s ruling has swept through the
citadel of entrenched constitutional law, obliterating every
known governmental defense and replacing them with a sin-
gle heretofore unheard of defense in inverse condemnation,
i.e., “bad faith.” The Court has merged the distinct concepts
of expropriation and inverse condemnation to conclude that,
“the only bar (complete or partial) to compensation in either
of these situations is bad faith.”!0!
_ The Fourth Circuit’s ruling cuts a wide swath through
governmental defenses, eliminating such exceptions to gov-
ernmental “takings” as the “government action require-
ment;” per se and total “takings” analyses; the “parcel as a
whole” defense; considerations of temporary moratoria and
prohibitions; forfeiture and fines; abatement of
101 Exhibit “C,” Majority Opinion at p. 9.
A-179
nuisances; emergency actions; zr! — of rights” excep-
tion, and, categorical immunity. !0 2 In addition, the Fourth
Circuit’s ruling eliminates the navigable servitude
defense, !3 the relative benefits doctrine!94 and the scope
of wetland regulatory authority, !95 all of which were or
should be available to any state governmental entity. All of
these defenses vanish under the Fourth Circuit’s ruling.
Likewise, without any authority whatsoever, the Fourth
Circuit has not only wiped out these defenses but also any
consideration of “reasonable investment-backed expecta-
tions,” a claimant’s hurdle that has been critical to federal
and state “takings” law analysis for decades.!96 The Fourth
102 See, e.g., Sugameli, Lucas _v. South Carolina Coastal
“ ; ”
> (9 ae
Envtl.L. 939, 944 - 958 (1999).
103 Avenal v, United States: Does the State of Louisiana Have
a Property Interest in the Salinity of Its Waters?, 2 Ocean & Coastal L.J.
153, 160 - 163 (1996); Murphy v. Department of Natural Resources, 837
F.Supp. 1217, 1221 (S.D. Fla. 1993); Donnell v. United States, 834
F.Supp. 19, 26 (D. Me. 1993).
104 Hendler v. United States, 175 F.3d 1374, 1379 (Fed. Cir.
105 See, e.g.,
Council, 1995 WL 941370 (R.I. S.Ct. 1/5/95) (appeal pending).
106 See, e.g., Forrest Properties, Inc, v, United States, 177 F.3d
1360, 1367 (Fed.Cir.), cert. denied, = U.S.__, 120 S.Ct. 373 (1999)
(rejecting an investment-backed expectations claim because the property
was purchased in 1988, years after the Corps’ wetland guidelines went
into effect); Creppel v. United States, 41 F.3d 627, 632 (Fed.Cir. 1994)
(“One who buys with knowledge of restraint assumes the risk of eco-
nomic loss”); Brunelle v. Town of South Kingstown, 700 A.2d 1075,
1083 (R.I. 1997) (“(W)e do not believe that compensation is required for
the simple reason that Brunelle, when he purchased the lot, did so with
full knowledge [of the restrictions]’’); Williams v. City of Central, 907
P.2d 701, 707 (Colo.Ct.App. 1995) (“If the landowner has
1999).
A-180
Circuit’s action effectively reduces “takings” law in
Louisiana to a system of automatic payments regardless of
the merits of a “takings” claim, unless the governmental enti-
ty can prove “bad faith,” i.e., fraud, a defense inexplicably
somehow extracted from expropriation law.!
B. The Fourth Circuit’s Action Renders
Recovery on a “Takings” Theory Well-
Nigh Automatic.
As this Honorable Court has recently observed, quot-
ing several authorities:
Governmental 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
compel the-government to regulate by pur-
chase.”!98 As a result, economic restraints
do not rise to the level of a taking because, in -
(footnote 106 continued)
notice [at the time of purchase] of the extent of the government’s regula-
tory authority over the property, the landowner’s reasonable investment-
backed expectations is the dispositive factor in the takings analysis.”);
Buechel_v. Department of Ecology, 884 P.2d 910, 918 - 919
(Wash.Ct.App. 1994) (finding that the landowner could not claim that
State Shoreline Management Act diminished the value of his property as
he had acquired it after the Act was enacted).
107 i
Co,, 249 So.2d 161, 171 (La. 1971).
108 Lawrence H. Tribe, American Constitutional Law, 596-97
Andrus v, Allard, 444 U.S. 51, 65, 100 S.Ct. 318,
(2dEd. 1988) (quoting
326, 62 L.Ed.2d 210 (1979) (emphasis in original)).
A-181
the off-quoted words of former Justice
Holmes, ‘(g)overnment hardly could go on if
to some extent values incident to property
could not be diminished without paying for
every such change in the general law.’ 109
The Fourth Circuit’s action flies in the face of this
sound reasoning. Specifically, the Fourth Circuit’s ruling
eliminates all known governmental defenses and replaces
them with a single defense of “bad faith,” i.e., fraud, which
has never been considered a defense in inverse condemnation
by any state or federal court in Louisiana. DNR is unaware
of any other court which has limited government entities to
such a defense or even considered such a defense. If the
Fourth Circuit’s ruling is allow to stand, Louisiana govern-
ment at every level, State, Parish or local, will be subjected
to takings claims for which there will be no defenses other
than fraud, bringing government at every level to a halt. This
means that governmental officials will have to prove fraud
against their own constituents and electorate or, alternative-
ly, pay any claim presented to them.
oe To Reach Its Result, The Fourth Circuit
Inexplicably Merged the Distinct Concepts
of Expropriation and Inverse
Condemnation.
The term “inverse condemnation” is neither synony-
mous nor interchangeable with “expropriation.” Yet the
109
Louisiana Seafood Management Council v, Louisiana
Wildlife & Fisheries Commission, 97-1367 (La. 5/19/98), *8-9, 715
So.2d 387, 392, citing, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922).
A-182
Fourth Circuit has incorrectly treated the two as one concept
to conclude that the only defense to a “taking” is that avail-
able under expropriation, i.e., bad faith. As will be shown
below, the two concepts are separate and distinct legal con-
structs under Louisiana law.
1. Expropriation
The power of expropriation or eminent domain is the
right of the state or its subdivisions to take private property
for public | aga which is inherent in the police power of
the state.!11 The Louisiana expropriation \aws are a crea-
ture of statutory lav and provide in detail how the expropri-
ation proceedings must take place. ! 12 For example, La. R.S.
19:2.2 provides that before exercising its rights of expropri-
ation, the state or its political subdivisions must provide the
owner with certain information from its appraisal as to the
amount of compensation due. The required information
includes the name, address, and qualifications of the apprais-
ers, the amount of the appraisals, and a description of the
methodology used in the appraisal. Additionally, the state
must offer to compensate the owner in an amount equal] to at
least the lowest appraisal. 113 Obviously, the major differ-
ence between expropriation and inverse condemnation is that
the government intends to take property and institutes expro-
priation proceedings toward that end. In
contrast, with inverse condemnation, it is unclear
whether property has been taken. Therefore, the Claimant
must prove the property has been taken or damaged and -
the government should be allowed to disprove
111 Hobgood v, Parish of East Baton Rouge, 563 So.2d 413
(La. App. Ist Cir. 1990), writ denied, 567 So.2d 105.
112 La. R.S. 19:1, et seg.
113 See, Board Of Commissioners 625 So.2d at 1073 - 1074,
;
/
Pease ee eet. ge
: , i.
DN age Le ee ye, eee
A-183
such a claim. An analogy can be made to the difference
between stipulated liability in tort and an injured Plaintiff's
burden of proof when liability in tort is contested.
The “bad faith” defense can arise when an expropri-
ation proceeding has been undertaken by the State. Plaintiffs
have repeatedly acknowledged that this is not an expropria-
tion case, but an inverse condemnation case. In expropria-
tio, the State acknowledges that the property is being taken
for a public purpose and only “bad faith” will justify a denial
of, or reduction in, recovery. In contrast, an inverse con-
demnation action requires the Plaintiff to show that his prop-
erty interest has been taken in a constitutional sense and all
aspects of his property interest or economic expectations are
placed directly at-issue. Thus the Plaintiffs’ prior knowledge
or notice of the proposed government action is relevant to
whether a “taking” actually occurred. Accordingly, the
expropriation cases relied upon by the Plaintiffs in proceed-
ings below completely contradict their self-described inverse
condemnation suit against DNR. A careful review of inverse
condemnation cases under Louisiana law reveals this impor-
tant distinction.
ie Inverse Condemnation
The legal standard used in determining an action for
inverse condemnation differs sharply from that used in a ©
statutory expropriation proceeding. This Court has recog-
_ nized the action for inverse condemnation arises out of the
self-executing nature of the constitutional command to pay
nS
A-184
ust compensation. 114 The action for inverse condemnation
provides a procedural remedy to a property owner seeking
compensation for land allegedly taken or damaged in a con-
stitutional sense against a governmental or private entity hav-
ing the powers of eminent domain where no expropriation
has commenced.!!5 Where no expropriation has taken
place, Plaintiffs must prove that a “taking” has occurred.
They must therefore prove the elements of a taking and over-
come the defenses thereto. Plaintiffs have never cited and
DNR has never found a case in which a Louisiana Court has
applied the statutory law of expropriation in an inverse con-
demnation suit, or the law of inverse condemnation to a
statutory expropriation proceeding. To do so would directly
violate this Honorable Court’s recognition of the clear dis-
tinction between the two concepts. ! © The Fourth Circuit’s
original opinion recognized the unique characteristics of
each-proceeding, and correctly applied the law of inverse
condemnation to Plaintiffs’ inverse condemnation suit. The
Fourth Circuit’s final opinion on rehearing did not, and
should therefore be reversed. _—
CONCLUSION
The Fourth Circuit’s 3-2 decision has obliterated
decades of constitutional law in one fell swoop. Worse still,
114
State, Through Dept. of Transportation and Development
+ Chambers Investment €o,, Ine. ee So.2d 598, 602 top 12). See
679 So.2d 928 (La. App. 3rd Cir. 1996)
115 Id. at 602.
116 State through Department of Transportation and
Development v. Chambers, 91-1202 (La. se 595 So.2d 598, 602.
/
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— Se ee
Te Pee ee ee ee en
PG I ee Ee Le NS Se et nee Seat ee a ce ee ere ee
A-185
the Fourth Circuit was unable to cite any controlling author-
ity to support its action. This was because all controlling
authority actually runs contrary to every aspect of the Fourth
Circuit’s ruling.
DNR submits that this Honorable Court should
restore the legal landscape to what it was prior to the Fourth
Circuit’s devastating decision. This will, in turn, allow all
levels of Louisiana government to remain functional rather
than be forced “to regulate by purchase.” DNR will also be
able to return to the difficult task of restoring one of
Louisiana’s most valuable economic resources, its wetlands
and coastal areas.
The decision of the Fourth Circuit should be reversed
and judgment should be rendered in favor of DNR, dismiss-
ing all claims just as in the parallel federal proceedings.
Pending this Honorable Court’s decision, given the far-
reaching impacts of the Fourth Circuit’s decision on all
aspects of government, DNR respectfully requests a stay of
proceedings and expedited consideration.
A-186
RESPECTFULLY SUBMITTED,
RICHARD P. IEYOUB
Attorney General
BY:/s/_ Andrew C, Wilson
ANDREW C. WILSON - #1162
DAVID L. CARRIGEE - #3892
DONNA M. YOUNG - #20936
JEDD S. MALISH - #23846
Special Assistant Attorneys General
20th Floor, Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
Telephone: (504) 569-2900
and
BURKE & MAYER, Of Counsel
Attorneys for State of Louisiana
Department of Natural Resources
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Set ne GS Oy te tt SP a ee ate Pe ee, =
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.