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Louisiana Oyster Leases:

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Slavich Lawsuit and Oyster Lease Indemnity Clauses ... which established that a 'hold harmless' clause be included in all oyster leases, ... – PowerPoint PPT presentation

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Title: Louisiana Oyster Leases:


1
Louisiana Oyster Leases
  • Louisiana v. Federal Takings Laws in the Oyster
    Lease/Relocation Conflicts and the Oyster Lease
    Relocation Program
  • Lisa C. Schiavinato
  • Legal Coordinator

  • LA Sea Grant Legal

    Program

2
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4
Federal Takings Law v. Louisiana Takings Law
  • Penn Central Factors
  • Character of the governments action
  • Economic impact on the claimant and
  • The extent to which to governments action (s)
    has interfered with the claimants reasonable
    investment-backed expectations regarding the use
    of the property.
  • Chambers Factors
  • Has a persons legal right to a thing or object
    been affected?
  • Has the property been damaged or taken in a
    constitutional sense?
  • Was the taking or damage for a public purpose?

5
Why was there a taking according to Louisiana law
and no taking according to Federal law?
  • According to Avenal v. United States, the 5th
    Circuit Court
  • of Appeals held that the plaintiffs failed the
    third prong of the Penn Central
  • test, i.e., that they did not have reasonable
    investment-backed expectations in
  • their oyster leases because they knew or
    should have known that
  • the government had been planning the Caernarvon
  • freshwater diversion project for many years. In
    effect, the
  • plaintiffs had sufficient notice of the project
    and that it would affect their oyster
  • leases. On the other hand, the plaintiffs
    prevailed in their lawsuit against the
  • State because, according to Chambers and the 4th
    Circuit, reasonable
  • investment-backed expectations is not a factor
    for consideration in a Louisiana
  • takings analysis.

6
Avenal and Alonzo Appeals
  • Earlier this fall, a 3-judge panel of the 4th
    Circuit Court of Appeals for the State of
    Louisiana handed down a ruling in Avenal. It was
    a 2 to 1 decision to modify or reverse with 1
    judge dissenting. Under Louisiana rules of
    appellate court, the case had to be re-heard by a
    5-judge panel. Oral arguments were heard on
    November 20, 2002, and a decision is pending.
  • In Alonzo, the 4th Circuit ruled that the trial
    court had improperly handled a recusal motion and
    ordered that the motion be reassigned on a random
    basis.

7
Oyster Lease Relocation Program
  • Options
  • Exchange
  • Relocation
  • Retention
  • Purchase
  • 2001 Amendments
  • La. R.S. 56430.1 requires
  • Oyster leaseholders to submit a
  • form to LDWF annually containing
  • The leaseholders name, harvest
  • Grid numbers, amount of
  • marketable oysters removed,
  • amount of seed oysters removed,
  • amount of cultch material placed,
  • the amount of seed oysters
  • placed, and whether the seed
  • oysters were from a private lease
  • or state seed grounds.

8
The ORLP and Davis Pond Diversion Project
  • Funds are to be distributed on a pro rate basis
    until exhausted. Davis Pond funds were
    sufficient for full compensation to lessees in
    the primary impact area.
  • The OLRP prohibits an aggrieved lessee from
    filing a lawsuit until all remedies have been
    exhausted under the OLRP.
  • There was no funding to compensate leaseholders
    in the cumulative impact area, and at least one
    lawsuit has been filed by a leaseholder in this
    area. However, the State and the Oyster Task
    Force are currently seeking from the federal
    government an additional 18M to fund
    compensation for leaseholders in this area.
  • According to La. Admin. Code Tit. 43 I, Section
    875, the 2000 regulations for the OLRP are only
    applicable to Davis Pond and supercede the 1998
    regulations if any conflict between them exists.
    Therefore, the 2000 regulations only apply to
    lease within Davis Pond. Leases located anywhere
    else are subject to the 1998 regulations.

9
Slavich Lawsuit and Oyster Lease Indemnity Clauses
  • This lawsuit challenges the validity of the
    indemnity clauses in the statute and in the
    oyster lease agreements themselves. The statute
    and leases state that all existing leases are
    subject to indemnity.
  • La. R.S. 56427.1, which established that a hold
    harmless clause be included in all oyster
    leases, extensions, and renewals issued after
    July 1, 1995, states that the state of
    Louisiana, its political subdivisions, and its
    agents or employees shall be held free and
    harmless from any claims for loss or damages to
    rights arising under any oyster lease, renewal,
    or extension granted to any individual or other
    entity for any purpose from authorized coastal
    restoration activities.
  • Slavich is still an ongoing lawsuit that has yet
    to be resolved.

10
Uniform Relocation Assistance Act
11
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