[StBernard] Oyster leaseholders lose suit blaming oil spill berms for damage

Westley Annis westley at da-parish.com
Wed May 22 22:02:58 EDT 2013

Oyster leaseholders lose suit blaming oil spill berms for damage

Oyster growers on both sides of the Mississippi River who sued the state,
dredge operators and BP claiming damages to their oyster leases in 2010
during the construction of berms designed to capture oil during the BP
Deepwater Horizon oil spill had their lawsuit thrown out in two different
federal courts on Monday.

The oyster growers contend that their oyster beds were smothered with
sediment and sand during dredging to build the berms, which were placed
along segments of the Chandeleur barrier island chain on the river's east
side and along several barrier islands west of the river. But based on
statements by the attorney representing the growers during a January court
hearing, the lawsuit also sought to set a precedent that would be used
against the state to protect oyster growers from damage caused by future
coastal restoration projects.

Last July, U.S. District Judge Jay Zainey ruled that the growers' federal
court suit against the state Coastal Protection and Restoration Authority,
which requested that projects be financed by BP to protect the state's
coastline from the spilled oil, should be dismissed because the state had
not waived its right to sovereign immunity to being sued in federal court.
The state right to immunity from most suits in federal court is granted by
the U.S. Constitution's 11th Amendment.

The remainder of the lawsuit against BP and several dredging companies that
built the berms was thrown out on Monday by U.S. District Judge Carl
Barbier. Barbier ruled that the dredging project was a response to the oil
spill, and any damage it caused was covered by a settlement between BP and
private claimants of economic damages, including damages to oyster growers.
Barbier approved that settlement last year.

None of the growers who filed suit has opted out of the settlement and most
of them have filed claims against BP, several of which have already been
paid, their attorney confirmed during an earlier hearing before Barbier.

The class actions settlement requires class members to "release and forever
discharge with prejudice, and covenant not to sue, the released parties for
any and all released claims." The dredging companies include Manson
Construction Co., and Great Lakes Dredge & Dock Co. LLC.

A separate lawsuit filed by the oyster growers against the state for damages
caused by the berms was dismissed earlier this year by a judge in the state
19th Judicial District Court in Baton Rouge. The judge ruled that state law
exempts coastal restoration projects from damage claims.

Corey Dunbar, an attorney representing the oyster growers, would not comment
on the decisions, but said the growers had not yet decided whether to appeal

The state has plans to spend close to $25 billion on coastal restoration
projects during the next 50 years under its Coastal Master Plan, with some
of those projects financed by billions of dollars in fines expected to be
paid by BP and other parties responsible for the oil spill. Some of those
projects will expand the work started with the berm projects.

Dunbar told Barbier he was trying to request documents from the dredging
companies that he believed would show that the state had planned to build
the berms at least 10 years before the oil spill, and thus, they should not
be considered an oil spill-related project.

"The berm project, I know there was some planning ahead of time, but it
wasn't actually begun until and because of the oil spill, right?" Barbier
asked, according to a transcript of the hearing.

"Your honor, its our position that it was planned prior to the oil spill.
The oil spill kind of got the funding to proceed with the project," Dunbar

"Is (this) the same berms that I recall Governor Jindal and President
Nungesser were on every night with Anderson Cooper standing out at the
waterfront railing that BP needed to pay for these sand berms to stop the
oil from coming in and getting into these marshes, right? The same berms,"
Barbier said.

"That's what they were doing. Correct, your honor," Dunbar replied.

"How could that not be a response to the oil spill?," Barbier said.

Dunbar responded that the state had applied for permits before the spill,
but Barbier wanted to know why the state needed the permission of the Army
Corps of Engineers and the federal on-scene spill commander before

"You may be chasing something down a rabbit hole here when you've got an
easy recovery through the settlement program," Barbier said. "Why would your
clients want to spend the time, money and effort pursuing this claim if they
can get a hundred percent of their money - the oyster leaseholders, as I
recall, under the settlement program that I just approved are treated
probably better than any other single type of claimant."

"Yes, your honor," Dunbar replied.

"In fact, one of the objections that I had to the settlement was that they
were treated too generously," Barbier said. "All of the other seafood
claimants weren't happy about that."

But Dunbar said the oyster growers were not so much concerned with
recovering money for the damage from the berms, but rather setting a
precedent that might be used when the state moved forward with other coastal
restoration projects that will affect oyster leases.

"The state is planning to do a similar project at another location where
these same clients have similar oyster leases, and so they are looking to
resolve these disputes," Dunbar said.

But Barbier said that wasn't his concern. "We're not here to try to resolve
some future anticipated, speculative litigation that might or might not
arise in the future," he said. "I don't think that this is the vehicle for

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