Outcome of Oyster Suit an Opportunity to Save Louisianas Coast

Mark Davis had mixed emotions when the state Supreme Court threw out the $1.3-billion award in the Caernarvon oyster lawsuit. (Victory, J.:2003- C-3521 Albert J. Avenal, Jr., et al. v. The State of Louisiana and The Department of Natural Resources (Parish of Plaquemines))

“We were not surprised — but we were pleased,” the head of the Coalition to Restore Coastal Louisiana said.

The court’s decision, handed down in October, effectively put an end to the oystermen’s attempts to make the state pay exorbitantly for its efforts to save the marshes southeast of New Orleans. “It clearly settled once and for all that the state has the right to protect itself, but it went on to state that the state has a duty to protect the coastal areas … vital to the survival of our way of life,” Davis said. “In that way, I think the case is truly tone-setting.”

Davis said his only regret is that it took years for a court to take action to end the case. “The amount of confusion the lower courts sowed in this case is unfortunate,” he said. “The lower courts did not do (the plaintiffs) any favors by creating in their minds the hope that the law was anything other than what the Supreme Court said it was.”

And that was, to Davis, the whole point of the case.

“This was not about putting anybody in their place,” he said. “If the state was correct in the law, we thought that as a matter of law, (oyster fishermen) were not due anything. “It’s not to say that people should not be treated fairly, it’s a matter of what you ought to do compared to what you are legally obligated to do.”

The Supreme Court decision sets up the state for aggressive action. “It basically gave the state as much rope as you want to give it,” Davis said. “We can’t be paralyzed by doubt and undue liability if we’re going to save this place.”

But Davis said the judgment shouldn’t be viewed as a panacea. “If we want this to work, we can’t sit back and wait for the Congress or the U.S. Corps of Engineers or anybody else to act,” he said. “We’re going to have to go out and work, and make this happen.”

Davis expressed concern about the will to effect real change in the November issue of Coast Wise, the coalition’s newsletter. “Without persistent prodding, educating and out-and-out insisting on action, it is virtually certain that most of the milestones that have been achieved would still be years away,” he wrote. “But at best, we have created an opportunity that we have to take advantage of.”

Leveraging the opportunity presented by the latest Supreme Court ruling probably will mean a change in the way the coastal restoration fight has been waged. “At no time can we ever become so complacent that just because action has been promised by some elected official or governmental agency that we wash our hands of it,” Davis said. “If we want anything other than that, we, the people of the state, are going to have to act.”

The entire goal of public action, Davis said, should be to change the way public policy is enacted. “The way budgets are developed, the manner in which projects are authorized and funded, and the ways they can and can’t or won’t engage the public and pools of outside expertise, we cannot expect to see a truly meaningful comprehensive and effective coastal restoration plan prepared, much less authorized and implemented,” he wrote in Coast Wise.

To illustrate the difference between development and actual enactment of policy, Davis pointed to restoration work in the Everglades. “Everglades is a national park. You and I own it,” he said. “But even with that, it took a lawsuit to make the federal government use the money that was authorized. “What you basically had was a turf war between the state and the federal governments, and it took a lawsuit to get them to take action.”

But comparing the effort to save the Everglades with that of stopping the monumental loss of Louisiana’s wetlands is sort of like comparing the fishing in Florida to the fishing in Louisiana — it’s not a perfect match. “The state of Louisiana doesn’t have the same bag of rights and options as Florida,” Davis said.

That’s because the Louisiana coast isn’t etched into the nation’s collective imagination like the Everglades National Park. “Coastal Louisiana: That is intuitively impossible for people to get their minds around,” he said.

In other words, Louisiana marshes mean something to those who live, work and find recreation in them, but those who have never seen the coastal zone can’t get a grip on why they should care about its plight. "That", Davis said, "is largely our fault."

“We have to get smarter about how we do what we do,” Davis said. “We have to not only look for sympathy, but make sure we look for every right and angle we can take advantage of.” That means insisting that our governmental agencies — now bound by onerous environmental impact studies, drawn-out management-plan processes and endless scientific research — shorten the time between the time a plan is formulated and enacted.

“The one resource we cannot gain is time,” Davis said. “We’ve been dodging bullets for years, and at some point, we will run out of silver bullets. Every year that goes by and we’re still here is an act of grace, and I don’t think we should take that for granted. That’s not to mean we should haphazardly enact projects, but steps have to be taken quickly or there won’t be a coast to save".

“If we are to wait until we have perfect understanding and perfect support, the opportunity to save this place will be significantly reduced,” he said. “It’s a get-honest, get-fast approach.”

But Davis also thinks we have to market the coast not as Louisiana’s problem, but as the nation’s. He said the reduction by the White House and Congress of the Louisiana Coastal Area Ecosystem Restoration Study from a $14 billion initiative to a $1 billion plan is an example of the nation’s lack of comprehension of the importance of the Louisiana coast.

“We have our own opportunities, like how we handle the importance of oil and gas exploration and border security to the country,” Davis said. “The Louisiana coast is beneficial to the country.”

But he came back to the importance of local activism. “There’s no question: At the end of the day, the restoration effort will be crafted by the people who live here,” Davis said. “Don’t trust the crafting of the solution to others.”

Victory, J.:2003- C-3521 Albert J. Avenal, Jr., et al. v. The State of Louisiana and The Department of Natural Resources (Parish of Plaquemines)

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