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Avenal v. State

ELR Citation: 34 ELR 20122
Nos. No. 03-C-3521, (La., 10/19/2004)

The Louisiana Supreme Court threw out a $1.3 billion takings judgment awarded to oyster fishermen holding oyster leases in the Breton Sound area who allegedly suffered a compensable taking under the Louisiana Constitution as a result of the state's operation of a coastal restoration project that altered salinity levels in the waters covering the fishermen's leases. The vast majority of the fishermen are not entitled to compensation because their leases contained hold harmless and indemnity clauses that released the state from liability as a result of the project. Nor are the fishermen whose leases do not contain hold harmless clauses entitled to compensation. The state owns the water bottoms as well as the oysters and cannot "take" its own property. Further, no other private party can use these bottoms to fish for oysters, and the oyster statute under which the leases were issued neither mentions nor suggests that lessees are entitled to profits. Thus, their claims are "damages" claims rather than "takings" claims and the prescription period set forth in the state's private property damage statute, La. Rev. Stat. Ann. §9:5624, applies. Under that statute, the fishermen would have had to file their claims in 1993--two years after the project began. Because they did not file suit until 1994, any claims they had for damages are prescribed.