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Case Type: Adverse condemnation Case: Avenal v. Louisiana Department of Natural Resources, No. 38-266 (Dist. Ct., Plaquemines Parish, La.) Plaintiffs’ Attorneys: Philip F. Cossich Jr. and Les A. Martin of Belle Chasse, La.’s Cossich, Martin, Samich & Parsiola; Wendell H. Gauthier of Metairie, La.’s Gauthier, Downing, LaBarre, Beiser & Dean; and Michael X. St. Martin of Houma, La.’s St. Martin & Williams Defense Attorney: Andrew C. Wilson of New Orleans’ Burke & Mayer Jury Verdict: $48 million In the early 1990s, in an attempt to restore marshland and protect New Orleans from flooding, the Louisiana Department of Natural Resources opened a freshwater diversion project at Caernarvon, on the border of Plaquemines and St. Bernard parishes, south of New Orleans, said plaintiffs’ attorney Philip F. Cossich Jr. The Caernarvon project opened the Mississippi River and sent billions of gallons of fresh water into the oyster grounds. The project was necessary for coastal restoration in Louisiana, said Mr. Cossich, but “35,000 acres of oyster farms were destroyed.” Oysters need salt water to survive, but the diversion of fresh water denied the oysters enough salt water to live. Since the diversion is continual, he said, the oyster farmers have been unable to revive their businesses. The oyster farmers sued the state, contending that this was a permanent taking. The farmers were certified as a class in 1996; five representative plaintiffs were selected for trial. The state contended that the plaintiffs did not prove causation or damages. “There was no evidence that any of them had ever produced any oysters,” said defense counsel Andrew Wilson. In addition, he said, live oysters remained in Breton Sound after the diversion, according to records of seafood dealers. The oyster harvesters, he noted, leased the oyster beds from the state for $2 per acre and had been supporters of the freshwater diversion. On Dec. 15, a Pointe a La Hache, La., jury awarded the five representative plaintiffs $48 million — or up to $21,345 per acre. Prejudgment interest will bring the award up past $70 million, said Mr. Cossich. If the verdict is applied to the remaining class members, he said, the total judgment could be $700 million. The defense will contest any such application, said Mr. Wilson: “We expect the judge will determine damages case by case.” Post-trial motions to set aside the verdict are pending.

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