Avenal v. State: Takings and Damagings in Louisiana

• Author: John J. Costonis
• Position: Chancellor, Paul M. Hebert Law Center. J.D. 1965, Columbia Law School; B.A., 1959, Harvard University.
• Pages: 1015-1077

John J. Costonis: I am grateful for comments, criticisms, and research assistance of Grace M. Barry, Professor of the Practice of Law and Director of the Paul M. Hebert Law Center's Legal Writing Program. I am pleased also to acknowledge the research assistance provided by Kevin Gray, Reference Librarian, Paul M. Hebert Law Center Library.

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I Introduction

Choosing non-constitutional grounds to resolve controversies that pose difficult constitutional issues is a time-honored judicial practice. The judiciary's principal task, after all, is to decide the case before it. Admirable for its prudence, the practice nonetheless delays evolution of doctrine in areas that merit serious judicial attention.

Judicial silence shifts attention from the constitutional issue to the rationale the court employed to avoid it. Does the rationale contain clues suggesting an eventual outcome for the issue? No longer responsible for resolving it on the merits, judges often permit themselvesCor are permitted by their colleaguesCto speak more expansively in dicta. Is the rationale neutral, or does it instead add or subtract elements that, perhaps unsuspected by their author, cause the original constitutional issue to morph into something different?

These questions leap to the fore in the Louisiana Supreme Court's decision, Avenal v. State,¹ a class action involving over two hundred oyster leases, thousands of acres of leased state water bottoms, and more than $1 billion in damage awards.² Avenal's issue, as framed in Louisiana and in companion federal litigation, was whether a state coastal restoration project diminishing the leases' value was a "taking" of the lessees' property under article 1, section 4 of the Louisiana Constitution.³ The project's diversion of fresh water from Page 1016 the Mississippi River over the leased acreage reduced the water's salinity to levels unsustainable for oyster culture.

The Louisiana Supreme Court ruled in favor of the state, but avoided the constitutional issue by validating a clause featured in most of the leases that held the state harmless for losses associated with its project.⁴ This essay's concern, however, is the basis upon which the Court disposed of the balance of the takings claims. It held that because Avenal's factual scenario raised not the takings, but the "damagings" issue,⁵ the action was prescribed under Louisiana Revised Statutes 9:5624.⁶

Prescription enabled the Court to sidestep the merits of this inverse condemnation action. It also encouraged Justice Victory, writing for the majority, and Justice Weimer, concurring, to forecast and perhaps reformulate in dicta the likely direction of the Louisiana inverse condemnation doctrine, as well as to profile key parallels and differences between its former version and federal counterpart.⁷

A The Takings/Damagings Roadmap

Part II of this article explores this contribution, which corrects a variety of misconceptions advanced in Avenal's appellate court opinions. It constructs a roadmap that outlines the various categories of federal inverse condemnation actions under the Federal Constitution's Fifth Amendment, compares them to Louisiana Constitution, article 1, section 4 actions, and assesses the supposed differences between federal and state law advanced by Avenal's appellate court. Page 1017

The section also probes the likelihood that the Louisiana Supreme Court may indeed have poured new wine into old bottles by excluding from its damagings analysis any consideration of whether Louisiana had expropriated or was itself the owner of the diversion project.⁸ The classical paradigm for damagings demands that the injury inflicted on adjacent or nearby private property must be preceded by the government's prior expropriation of the site sponsoring the injury.⁹ If so, the inquiry then shifts to whether the injury at the private site qualifies as a constitutional damaging. If Avenal signals the demise of the prior expropriation element, the roadmap will have to be redrawn to recognize the birth of a novel cause of action for constitutional damagings in Louisiana.

B "Damagings" in Louisiana

Part III targets a variety of conundrums associated with the damagings issue in Louisiana and in other states. Excluding the prior expropriation requirement, these concerns predate Avenal. But Avenal's elevation of the damagings issue to front rank in Louisiana's Page 1018 inverse condemnation doctrine and likely modification of the damagings action make clarification or, in some cases, reformulation of a variety of the damagings issue's facets even more imperative. These facets are outlined below.

1. The Prior Expropriation Issue

Leading the list is the prior expropriation requirement that the Louisiana Supreme Court may have modified by categorizing Avenal as a damagings dispute. The issue can be posed from two angles. One has already been identified: if a damagings action requires a determination that government must previously have expropriated its own site, does Avenal's exclusion of this element from its damagings analysis birth a novel inverse condemnation cause of action for Louisiana?

The second observes that takings occur in a single step. Whether the step that produces the injury is a regulation, a physical invasion, or something else, the government's prior behavior is of no import. Illustrative are the Avenal opinions in the fourth circuit below¹⁰ and the companion case in the federal courts.¹¹ Having accepted the oyster lessees' characterization of Avenal as a takings dispute, these courts had no reason to address how the diversion project site was acquired.

Takings, however, also contrast with damagings by the degree or character of the injury suffered. In fact, the Louisiana Supreme Court stated in Avenal itself that a taking requires the government's acquisition of "the right of ownership or one of its recognized dismemberments", while a damaging occurs when the "action of the public authority results in the diminution of the value of the property".¹² The key inquiry under this approach is simply to determine whether the dispute fits into the first or the second of these boxes. This inquiry, which in fact dominated the Louisiana Supreme Court's analysis of Avenal's takings/damagings problem, ignores the manner in which the state acquired the site of its alleged damaging actions. This apparent unbundling of the prior expropriation requirement from the former damagings paradigm conceivably introduces a damagings action that will be analyzed in a manner similar to that employed for partial takings under the federal inverse condemnation doctrine.¹³ Alternatively, it may be termed an instance Page 1019 of "condemnation by nuisance".¹⁴

2. Inverse Condemnation and Conventional Actions: Exclusive, Overlapping, or Blended?

The second issue concerns where and how to draw the line between inverse condemnation actions, whether takings or damagings, and conventional actions in tort, nuisance, or property. The problem is not Louisiana's alone. Arvo Van Alstyne, for example, could have been describing the Louisiana picture in his account of the problem in California: Page 1020

The law of inverse condemnation liability . . . is entangled in a complex web of doctrinal threads. The stark California constitutional mandate that just compensation be paid when private property is taken 'or damaged' for public use has induced courts, for want of more precise guidance, to invoke analogies drawn from the law of torts and property as keys to liability. The decisional law, therefore, contains numerous allusions to concepts of 'nuisance,' 'trespass,' and 'negligence,' as well as to notions of strict liability without fault. Unfortunately, judicial opinions seldom seek to reconcile these divergent approaches. . . . Clarification would . . . be desirable in order to mark the borderline between the presently overlapping, and hence confusing, rules governing governmental tort and inverse condemnation liabilities . . . .¹⁵

One facet of the line-drawing issue is whether factual disputes that coincide with the constitutional damagings format may nonetheless be litigated as the conventional actions to which they are often analogized. If a private party rather than the state diverted water over his neighbor's leased oyster beds with the toxic effects recorded in Avenal, for example, he might incur liability under Louisiana Civil Code Article 667, which forbids him to "make any work on [his estate] which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him".¹⁶ Could Avenal's oyster lessees have ignored the Louisiana

Constitution altogether and framed their claim exclusively as a conventional action under Article 667?

Suppose, further, that arguments exonerating the state are Page 1021available under the inverse...