The United States Court of Federal Claims recently found that certain leaseholders of oyster beds in Louisiana hold no compensable property interest in the salinity of the waters above their leased acreage. The deciding issue, one of first impression, was whether the leaseholders derived from the state a vested interest in an artificially high level of salinity, caused by a federal flood control project, such that a subsequent project reestablishing a low level of salinity, would amount to a compensable taking under the Fifth Amendment. By deciding the state did not acquire a property interest in the salinity condition before leasing the oyster beds, the court was able to dismiss the takings claim upon summary judgment, thus avoiding the need for a complete takings analysis. This Note analyzes the wisdom of the court's approach in Avenal v. United States, and, while approving of the noncompensability of any private property interest in the artificially created salinity level, argues that the court did not completely address the nature of the property interest in question. This Note will then argue that the noncompensability of the plaintiffs' interest would have been better explained under the navigation servitude, which will be briefly described and then be shown to apply to the factual circumstances of the case. Finally, it will be argued that the holding of Avenal v. United States is inconsistent with the public trust doctrine in Louisiana, and that an alternative holding under the navigation servitude would have prevented this inconsistency and would have allowed recognition of the state's continuing public trust interest in its coastal waters.
Douglas F. Britton,
Avenal v. United States: Does The State of Louisiana Have A Property Interest In The Salinity Of Its Waters?,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol2/iss1/5