[00:00:00] Speaker 01:
final case for argument this afternoon is 24-2312, Campo v. United States.

[00:00:09] Speaker 01:
Please proceed. Mr. Salas, good afternoon.

[00:00:12] Speaker 05:
Good afternoon, Your Honors, and may it please the Court.

[00:00:19] Speaker 05:
In our case, The court decided two motions to dismiss, which was something that is unusual to begin with. In the first motion to dismiss, the court considered an attack by the government where they said that the plaintiffs did not have a proprietary interest enough to file Taken's claim because they did not own the oysters.

[00:00:42] Speaker 05:
the court held in our favor and said, like, the plaintiffs did own the oysters.

[00:00:46] Speaker 01:
That holding... Did he really say the plaintiff owned the oysters?

[00:00:50] Speaker 05:
I have a right. He had a right to the oysters, so therefore, yes, that he had a right to the oysters, and therefore, that's a fruit... Let's focus on the second, which is... Yes, that's where I'm heading, then. Well, the only reason I mention this is because there were a couple holdings made in the first motion that I think are pertinent to the second one. In the second...

[00:01:13] Speaker 05:
The government was actually attacking not the oysters themselves, but the water bottoms. The water bottoms, which is the subject of the statute that they had raised, which was 56-423-A1, that statute really says that the leaseholders have exclusive use of the water bottoms subordinate to the rights and responsibilities of the state, the United States government, to take any action in furtherance of integrated cost of protection, according to the 2016 amendments.

[00:01:49] Speaker 05:
But the problem is that the leases were obtained before 2016.

[00:01:53] Speaker 01:
I know, but you called that to the attention of the trial judge. We did. And he issued a very thorough statement. reconsideration decision, which clarified that there, in his view, there was no real daylight for purposes of what we're dealing with here between the 2006 and the 2016. So is that what you're challenging? You say that they are different?

[00:02:19] Speaker 05:
Yes, they are different is one thing, and the analysis should have been under the 2006 language.

[00:02:26] Speaker 01:
Didn't he cure that? I mean, to the extent there was any error at all.

[00:02:31] Speaker 01:
It's harmless, is it not, given his thorough reconsideration decision where he articulates in detail and explains why with regard to the issues we've got before us here, there's no daylight between the 2006 and the 2016.

[00:02:48] Speaker 05:
Well, in 2006, the language was coastal protection, conservation, and restoration.

[00:02:56] Speaker 02:
And supposedly, and the reason why the judge brought this issue to begin with when he decided the first case is because the— I think you agreed below and here that if the 2016 provisions applied, you would not have a case if 2016 applied.

[00:03:15] Speaker 05:
That's correct.

[00:03:16] Speaker 02:
That's correct. So then the question is, because the second decision made by the Court of Federal Claims had focused on the 2016 law, right, you filed a petition for reconsideration saying, hey, you can't apply 2016 to me because my leases were before that. So then he decided that the question was whether or not the 2006 law was materially different, whether the description was rest of the three words, whether that was materially different from the other one.

[00:03:49] Speaker 05:
Yes, Judge.

[00:03:50] Speaker 02:
And he concluded that they were not materially different. They were the same.

[00:03:57] Speaker 05:
Well.

[00:03:59] Speaker 02:
So isn't your whole appeal here that the judge was wrong in saying that flooding was within the 2006 description?

[00:04:09] Speaker 05:
If that's what he's saying, if that's what he's saying also on the second opinion in the rehearing, yes, they are wrong on that.

[00:04:18] Speaker 02:
In the second opinion?

[00:04:19] Speaker 05:
In the rehearing.

[00:04:20] Speaker 02:
In the reconsideration of the second opinion. My understanding was that your essential challenge is that you believe the reconsideration decision was incorrect.

[00:04:32] Speaker 05:
Both of them were incorrect.

[00:04:35] Speaker 02:
No. The first decision was the property right issue. The second decision was applying 2016 against your claim.

[00:04:46] Speaker 05:
And then there was a third one, the reconsideration of the second decision.

[00:04:49] Speaker 02:
And you've agreed that if 2016 did apply, then you lose. So your whole argument is that flooding, if you will, is a program to deal with flooding, is outside the scope of the 2006 law.

[00:05:08] Speaker 05:
Well, the 2006 law doesn't even mention flooding. The 2016 mentions flooding.

[00:05:15] Speaker 02:
Yes, I understand that.

[00:05:17] Speaker 05:
So basically if we had done or if the court had done the analysis under the proper analysis under the 2006 language, we would not have even gotten to the flooding issue.

[00:05:32] Speaker 05:
Because all that says is that it's coastal protection, conservation, and restoration. And we know that the Bonaire-Carré spillway plays no role at all in coastal protection, conservation, and restoration.

[00:05:51] Speaker 05:
How do we know that? Yeah, how do we know that? How do we know that?

[00:05:59] Speaker 05:
There's one thing. This is in Appendix 713.

[00:06:04] Speaker 05:
It's a feasibility study that was submitted.

[00:06:13] Speaker 05:
And this was a study made by the Court of Engineers when they wanted to actually convert the Bonaire-Carré spillway into a water diversion project for purposes of marsh creation.

[00:06:28] Speaker 05:
And they studied it for years. They published the document. And ultimately, Louisiana and Mississippi, who were the two sponsors of the project, Louisiana pulled out and said, we're not going to participate because it's going to cause more damage to the oysters.

[00:06:44] Speaker 03:
We're on, ultimately, a motion to dismiss. What do you allege about whether the Thonothrae is relating to coastal protection and flood prevention. What's in your complaint that the trial court had to take as true? Oh, yes.

[00:07:00] Speaker 05:
So we state in this right here.

[00:07:10] Speaker 05:
This is complaint paragraph 23. And where can we find it in the appendix?

[00:07:15] Speaker 05:
Here.

[00:07:25] Speaker 04:
I don't have the appendix. Here it is. No, I don't have the appendix.

[00:07:32] Speaker 05:
Sorry. It's paragraph 23. Paragraph 23 of the complaint. It says, the Boney Carez Peelway is not a coastal restoration project or a freshwater diversion used for coastal restoration or for creation or restoration of wetlands or habitats in the Lake Pontchartrain Basin.

[00:07:52] Speaker 03:
And is there anything more on that point in your complaint, or you just assert that? Oh, we, no, in the complaint, it's very.

[00:07:59] Speaker 02:
Do we have a page?

[00:08:03] Speaker 05:
I haven't.

[00:08:03] Speaker 02:
Class action complaint, is that? I think it's.

[00:08:05] Speaker 05:
Class action complaint.

[00:08:07] Speaker 02:
Paragraph 23.

[00:08:08] UNKNOWN:
23.

[00:08:09] Speaker 02:
Called Habitat.

[00:08:10] Speaker 05:
Yes.

[00:08:12] Speaker 01:
It's in Appendix 67, I believe.

[00:08:14] UNKNOWN:
67.

[00:08:15] Speaker 01:
Just says Habitat. Habitat? Yes. Okay. So.

[00:08:22] Speaker 05:
Judge Stork, the complaint is very much detailed about what the Bonnick arrest bill does and doesn't do.

[00:08:28] Speaker 02:
I'm not following your factual allegation in paragraph 23.

[00:08:32] Speaker 05:
Yes, sir.

[00:08:33] Speaker 02:
It reads, eastern oysters prefer hard substrate.

[00:08:37] Speaker 05:
I'm sorry?

[00:08:38] Speaker 02:
They prefer moderate, shallow mix, sufficient flow.

[00:08:46] Speaker 02:
What do you say that is teaching about?

[00:08:49] Speaker 03:
I'm not sure. I think it's maybe not paragraph 23. It's paragraph 23, but it's not that... Can you look at A67 and tell us if that's what you're referring to?

[00:09:01] Speaker 02:
Do you have the appendix with you?

[00:09:06] Speaker 05:
I've got the other volume of the appendix over there.

[00:09:14] Speaker 05:
This is a complaint page... Excuse me. It's not paragraph 23. It's page 23. I apologize.

[00:09:20] Speaker 03:
Page 23 of your complaint.

[00:09:22] Speaker 05:
Yes.

[00:09:22] Speaker 03:
All right.

[00:09:24] Speaker 03:
So that's appendix 80.

[00:09:29] Speaker 02:
Page 23 of the complaint?

[00:09:30] Speaker 03:
Appendix 80.

[00:09:31] UNKNOWN:
80.

[00:09:31] Speaker 02:
Pardon me? Appendix 80.

[00:09:33] UNKNOWN:
80.

[00:09:33] Speaker 02:
I see that. Yes.

[00:09:35] Speaker 03:
The Bonnet Cray Spillway is not a Colster restoration project. That's the sentence you're referring? Yes, sir.

[00:09:43] Speaker 05:
And that is something that the court had to accept as true for purposes of the motion to dismiss.

[00:09:47] Speaker 03:
And are you contending that the court failed to accept that as true?

[00:09:50] Speaker 05:
Yes, sir.

[00:09:53] Speaker 05:
Because if it's not involving coastal restoration, and you apply that to the 2000 version of the statutes that were in effect, that should have been applied, then...

[00:10:08] Speaker 05:
Devonica Rays spillway doesn't get there. And as I was telling before, with respect to the study that was done for purposes of converting the coastal Devonica Rays spillway to a water diversion project that would do coastal restoration and protection, et cetera, it never happened. And there is a difference between The Bonnet-Carré spillway is a water diversion that operates, has operated only 12 or 13 times since the year 1931 when it was completed.

[00:10:49] Speaker 05:
It doesn't operate to fix the environment at all.

[00:10:53] Speaker 01:
Okay. I guess let me just try to understand what you're saying. You're saying that any action in furtherance of integrated coastal protection includes flooding.

[00:11:04] Speaker 05:
Yes.

[00:11:04] Speaker 01:
but that coastal protection, conservation, or restoration, meaning any project, plan, or activity for the protection, conservation, restoration, enhancement, creation, preservation, nourishment, maintenance, or management of the coast, coastal resources, coastal wetlands, and barrier shorelines or islands, that does not include.

[00:11:24] Speaker 05:
That does not include, that does not include, that the Bonica Rescueway is open only to, in the event that is a possibility of a city of New Orleans flooding, period. It doesn't operate to create anything to restore the environment or anything like that, which is, The purpose of all the amendments made in 2016 and 2006, those amendments were made after Hurricane Katrina devastated New Orleans. So they were talking about how to prevent hurricanes and flooding, but it had nothing to do with the Mississippi River, which is where the volcanic array... Sorry, but I thought you said, and I think this is...

[00:12:08] Speaker 01:
In your complaint, JA 77 through 81, appellants allege that the Bonnet Carey Spillway is a flood control structure that was built in response to the Great Mississippi Flood of 1927. Yes.

[00:12:22] Speaker 01:
Okay, so that's not post-Katrina.

[00:12:25] Speaker 05:
Oh, no, no, no, no. I said the changes that the 2006 and the 2016 changes.

[00:12:37] Speaker 05:
to the statues were made in response to Hurricane Katrina, which took place in 2005.

[00:12:45] Speaker 05:
So it didn't have anything to do with the Bonaire spillways, which is operated by the U.S. government.

[00:12:52] Speaker 01:
Okay, but wait a minute. Let me be clear, because I thought the 2006, which you said covers it, you're saying doesn't include floods. And I thought you just said that those amendments were intended to cover it. to do flood control.

[00:13:05] Speaker 05:
No? No, no. Those amendments were intended to do protection of the coast.

[00:13:12] Speaker 01:
Okay.

[00:13:12] Speaker 05:
And they came up with this new idea that had been floating around for a long time of diverting fresh water to mimic what the Mississippi River used to do. So therefore, what you do is you make breaks in the Mississippi and let it flow into certain directions, and that will carry sediment in those areas.

[00:13:36] Speaker 05:
And that is something, a new technology that they've been doing. And so it really is not the same. And when they're operating...

[00:13:48] Speaker 05:
At a water project like that, it remains open nine months out of the year. The purpose is that the water from the Mississippi would bring sediments and deposit them.

[00:14:01] Speaker 01:
I'm just trying to focus. I appreciate your knowledge and background far exceeds mine. I'm just trying to focus on the difference in the language between 2006 and 2016 and how one of those includes flood control, and one of those does not.

[00:14:18] Speaker 05:
I thought that was... 2016 includes flood control. 2006 only says coastal protection, conservation, and restoration.

[00:14:28] Speaker 02:
It does not include... Doesn't the decision turn on its app of JA Appendix 40, on the sixth page of Judge Holt's reconsideration decision?

[00:14:41] Speaker 02:
He raises this problem, and he points out that the 2016 law clearly covers flooding, which you agree.

[00:14:49] Speaker 02:
He concludes that the definition dealing with the 2006 law, coastal protection, conservation, and restoration, he says here that included citing the House bill, Any plan, act, activity for the protection, conservation, restoration, enhancement, creation, preservation, nourishment, maintenance, or management of the coast is within that.

[00:15:17] Speaker 02:
You see what I'm talking about?

[00:15:19] Speaker 02:
And then he says, in essence, this definition encompassed any act undertaken for the benefit of coastal Louisiana.

[00:15:30] Speaker 05:
In the first decision, the court specifically held that the Bonnet Carré spillway is not a project for coastal protection, conservation, or restoration.

[00:15:45] Speaker 03:
But we're asking about flood control right now. You concede and allege that it is a flood control project, correct? Yes.

[00:15:53] Speaker 05:
Yes, but flood control.

[00:15:55] Speaker 03:
And flood control is explicitly part of the 2016 statute. You've conceded that as well, right?

[00:16:01] Speaker 05:
2016 is a flood control.

[00:16:04] Speaker 03:
Right. So the only issue that we're trying to understand your position on is if the 2006 has the same scope, as the 2016, which is what the trial court said, then we have to affirm, right?

[00:16:20] Speaker 05:
Not really, because in the first decision, when the court held that the plaintiffs had the right to the oysters, in order to get there, the court held that the Bonnet-Carré spillway was not a coastal protection, conservation, or restoration project.

[00:16:39] Speaker 02:
That finding is final. Can you tell us where in that decision that those words exist? No.

[00:16:47] Speaker 02:
And we have the decision here in the appendix. Let's see here.

[00:17:16] Speaker 05:
I cannot give you the first page right now, but I can certainly send it to the court, Your Honor.

[00:17:20] Speaker 01:
Why don't we hear from the government, and when you get back, I'll rebuttal.

[00:17:23] Speaker 05:
Yes, thank you.

[00:17:37] Speaker 02:
May I please? Well, do you know the answer to that question? In the second opinion by Judge Holt, not the property rights, the second one,

[00:17:45] Speaker 00:
I, so sorry, and I think he was actually discussing the first opinion. I don't know the appendix site, but the judge did not, in our view, hold that. The judge did not say this is not a coastal protection, conservation, or restoration project. The judge actually said, I think these provisions, which the government had raised, are highly relevant to the question of whether there's a property interest here or Parties, please brief it more thoroughly for me. The United States filed a motion to dismiss.

[00:18:16] Speaker 02:
Did he say that in the first opinion?

[00:18:17] Speaker 00:
He said that in the first opinion. Brief this more. And then the United States argued that the law as it existed in 2006 and 2016 subordinated any rights the lessees have.

[00:18:32] Speaker 02:
We know what the statutes say.

[00:18:34] Speaker 00:
So, yes. So, in our view, the Bonnet-Carrie spillway does fall within the language of the 2006 oyster statues as well as 2016. The trial judge was correct. Because? Because, among other things, it is a project plan, and it's an opening, it is an activity for the protection, preservation— Or management of the coast. It achieves all those goals. New Orleans. Controlling flooding.

[00:19:06] Speaker 00:
It also controls flooding. So under the 2016 amendments, it's specific that it includes flooding.

[00:19:13] Speaker 02:
Flooding is clear. He admits that.

[00:19:15] Speaker 00:
It is. It's clear there. But I think it was also clear, especially in light of the history of them.

[00:19:23] Speaker 02:
Take me back through it again, what you just said, in the light of what the judge said on page six of his reconsideration decision.

[00:19:30] Speaker 00:
So the judge said that the goal of this language was to subordinate the rights to any project to protect coastal Louisiana. The Bonne Carey spillway does protect coastal Louisiana.

[00:19:46] Speaker 00:
It protects the coast. It preserves it.

[00:19:49] Speaker 02:
Where did he get that language out of the subservient interest?

[00:19:53] Speaker 00:
of the subservient interest.

[00:19:56] Speaker 00:
So I think the language says subordinate, that any rights, the exclusive use is subordinate to the United States, any project for coastal, sorry, protection, conservation, or restoration.

[00:20:13] Speaker 02:
So how does this particular project fall into coastal, the language, Protection, conservation, or restoration?

[00:20:24] Speaker 00:
So it's protection. So it also actually does play a small conservation and restoration role, but it's primarily protection. It protects the coastal zone. And if you look at the amendments from 2006.

[00:20:37] Speaker 02:
So you're agreeing with Judge Holt's statement that the definition encompasses any act undertaken for the benefit of coastal Louisiana?

[00:20:47] Speaker 00:
Yes.

[00:20:47] Speaker 02:
And where do we get – how do we know that?

[00:20:49] Speaker 00:
Well, I think – I think – I think there – How do we know that? So I think – In the 2006 amendments, it says protection. So I guess he said benefit. If you wanted to scale it back a little, I think it certainly includes protection. And this protects a coastal community. It protects New Orleans. New Orleans is within the Louisiana coastal zone as defined by Louisiana law at the time of 2006. And that's in 49 to 1424. Is New Orleans part of the coastal?

[00:21:24] Speaker 00:
Coastal protection? It's within the coastal zone. And the consistent interpretation of the state agencies has been that coastal protection includes the New Orleans area along with the rest of the coast of Louisiana.

[00:21:39] Speaker 01:
Can I just ask you a basic question? The real difference in the language is that 2016, we call it integrated coastal protection. And 2006, we call it coastal protection and a million other words. So what does integrated mean? What's the difference between coastal protection and integrated coastal protection?

[00:21:58] Speaker 00:
So there is a history here. Integrated coastal protection was introduced into the Louisiana Code in 2009 in Title 49, which is cross-referenced by this section. And it has the lengthy definition that includes flood protection. Our view is that they have always meant these things to mean the same thing. And then when they later were amending the oyster statutes for other reasons, they saw that they had left this old language, coastal protection, conservation, and restoration, and they updated it to be integrated coastal protection purely for conformity.

[00:22:31] Speaker 00:
But that was always the goal of the legislature in passing these laws. So in our view, the judge was correct.

[00:22:40] Speaker 00:
It had the same meaning in 2006 and in 2016 and includes the spillway. But I also want to note there's another aspect of Louisiana law that we raised in our briefs that they haven't responded to that I think can be read harmoniously with this and confirms that they have no right here. And that is 56-427.1.

[00:23:02] Speaker 00:
And that was passed in 2006. It has not been subsequently amended. And it includes language that the United States shall be held free and harmless from any claims arising from any oyster lease. from diversions of freshwater or sediment or any other actions taken for the purpose of coastal protection. So that's relevant for two reasons. One, it's another confirmation. If it's coastal protection, which in our view the spillway is, the United States is held harmless. Lessees have no rights with respect to the United States.

[00:23:35] Speaker 00:
But this is 427.1?

[00:23:36] Speaker 02:
427.1, yes. But they're still arguing it's not within coastal protection, conservation, or restoration. So you have to get over that hump.

[00:23:44] Speaker 02:
In this case, on this statute as well?

[00:23:46] Speaker 00:
So, no, because there's another part to it, right? It's from diversions of fresh water is included. The United States is held harmless from any diversions of fresh water. They, in their complaint, and this is in the appendix at 72, they acknowledge the Bonnet Carry is a freshwater diversion structure. And the entire basis of their complaint is,

[00:24:07] Speaker 02:
Is that diversion of fresh water taken for the purposes of coastal protection, conservation and restoration?

[00:24:16] Speaker 00:
So that's in 523, but I'm now talking about, or sorry, 423. This is just 427.1.

[00:24:23] Speaker 02:
I'm reading 427. It says, protecting any purpose from diversions of fresh water or sediment, dredging, da-da-da-da-da, or any other action taken for the purpose of coastal protection.

[00:24:35] Speaker 00:
I see.

[00:24:35] Speaker 02:
So I think... Well, he's going to argue you've still got to get this project in that...

[00:24:43] Speaker 00:
So I think it falls within coastal protection, plainly.

[00:24:46] Speaker 02:
But I mean, it's the same argument as earlier.

[00:24:50] Speaker 02:
If this project is not within the scope of the 2006 law, then he wins.

[00:24:57] Speaker 00:
No.

[00:24:59] Speaker 00:
For a couple, well, I think the court might not be able to uphold every aspect.

[00:25:05] Speaker 02:
It's a materially different case. Yes, sir.

[00:25:10] Speaker 02:
project is within the scope of the 2006 definition.

[00:25:14] Speaker 00:
Yes, if the project is within the 2006 definition.

[00:25:18] Speaker 02:
It looked to me like Judge Holt took it out of, said it was within the scope because he said that basically the 2006 definition undertook any act taken for the benefit of coastal Louisiana.

[00:25:32] Speaker 00:
He did read it that broadly.

[00:25:34] Speaker 02:
Either we agree with that or we don't, right?

[00:25:38] Speaker 00:
Well, I think the question for this court is not whether each and every sentence of his opinion is correct, but whether ultimately the judgment is correct. The Bonnie Carey spillway, is it a project that falls within this language in the Louisiana statute?

[00:25:57] Speaker 02:
And the first opinion by the judge said it didn't.

[00:26:00] Speaker 00:
I don't believe it spoke on that issue. And we disagree with aspects of the first opinion. What the first opinion addressed was the issue of whether the plaintiffs had a right to the oysters. Is that just an observation?

[00:26:14] Speaker 02:
Do we have the language in the first opinion? No.

[00:26:22] Speaker 00:
I apologize. I don't actually know where he's getting this idea that the first opinion spoke to this particular issue. I mean, the judge actually asked the parties to brief this issue in subsequent briefing, right? The first opinion didn't address this question of whether 56-423 barred the suit. It has a lengthy footnote at the end of it saying... That's what he says.

[00:26:46] Speaker 02:
He says, by the way... You know, whether there's a difference between the two statutes. Okay. Well, wait a second. We'll stand up.

[00:27:00] Speaker 00:
So I think we have a strong argument this falls within coastal protection, conservation, restoration. They themselves – Several points here.

[00:27:15] Speaker 00:
One, many of the leases actually do post-state 2016. So that alone, several of their leases would lose under the 2016 amendments as they have now conceded. Second, everything from the legislative history from 2016 suggests that Louisiana did not see this as doing something different than it had already done In 2006, and I think the 2006 language makes it, I guess there is, I've yet to hear a theory of what coastal protection would encompass if it doesn't include flooding of a coastal community such as New Orleans, right?

[00:27:54] Speaker 00:
I mean, that is a huge and important issue. aspects of what the federal government and the state have been focused on. And the state agency that manages coastal protection itself has described this as a major coastal protection project. We put that in the appendix, but at 490, it specifically does discuss the Bonnet-Carrie Spillway as being part of integrated coastal protection and the effort to protect the coast of Louisiana. So I think it falls within the language of coastal protection.

[00:28:24] Speaker 00:
Now, I think their argument is that it has to be actually improving oystering, but that's not how – Louisiana never wrote that narrowly, right? Louisiana wrote – that they were subordinate to any rights or responsibilities of the United States to take any action in furtherance of coastal protection. It isn't limited to conservation or restoration.

[00:28:47] Speaker 03:
They allege, as was mentioned in the earlier part of the discussion, on Appendix 80 on page 23, they allege in their complaint that the spillway is not a coastal protection. restoration project or freshwater diversion used for coastal restoration. Why is that not a fact that should have been taken as true for purposes of the motion to dismiss?

[00:29:08] Speaker 00:
So first, I think the key thing here is we view this as a legal question. It doesn't fall within this language. But even assume that fact is true, Note they're saying it is not a conservation or restoration project. They don't allege, and I don't think can allege, that it doesn't protect the coast. It protects the coast. And in 2006, they defined protection very broadly to include preservation, maintenance, or management of the coast.

[00:29:36] Speaker 00:
So I think the upshot of that is as long as it's protecting the coast, that is sufficient. It doesn't have to also restore the coast. It's not so limited.

[00:29:47] Speaker 03:
And they also do allege that it is for flood control, correct? Yes, they do allege that it's for flood control. And so what's your best argument that the 2006 statute on its own covers flood control? I get the argument that 2016 expressly does and it wasn't a change from 2006. But assume we don't have 2016. If I'm just looking at 2006, what's the best argument that it covers flood control?

[00:30:14] Speaker 00:
So I guess three quick arguments. One, I think flooding on the coast harms the coast. So flood control helps protect the coast. So it falls within that statutory language. Second, it does cross-reference Title 49, which as my colleague noted, that the whole point of this was in part to respond to Hurricane Katrina and damage from flooding. So the whole goal of Louisiana, one of Louisiana's goals here, was to ensure they could not protect the coast, which they included flood control.

[00:30:50] Speaker 00:
They could have perhaps said flood control specifically, but I don't think they had to be that precise because I think stopping flooding on the coast protects the coast.

[00:31:00] Speaker 03:
There's a third point.

[00:31:02] Speaker 00:
And then I think the... Oh, I'm afraid I... Just the two. That's fine. I'm going to stick to those two, if that's all right. Okay, thank you. And then I do just want to, since the first opinion has been raised, I think it is worth noting that Louisiana law does specify that the oysters are the property of Louisiana... until after harvest, and they remain the property of Louisiana while they're on the beds and bottoms.

[00:31:32] Speaker 00:
So all the oysters here did not, the plaintiffs here did not have a property interest in the oysters at the time of the spillway. They had an exclusive right to use the beds and bottoms.

[00:31:46] Speaker 01:
Would you say that they had a property interest, but that property interest was limited to whatever rights they were given by the lease?

[00:31:53] Speaker 00:
Yes, that's what I mean. And I guess what I also would say is the Louisiana Supreme Court in Avenal, which there are two cases with that name, but I'm talking about the Louisiana Supreme Court decision from 2004, even prior to these amendments, it talks about the limited rights a lessee gets under an oyster lease. And it specifies that they get the exclusive use of the bottoms, but they don't own the oysters, and they don't own the beds and bottoms, and The leases don't promise them, they actually have this great language of, the leases do not guarantee oyster lessees with a vested right to an optimal salinity regime, right?

[00:32:33] Speaker 00:
That's not something you get when you enter into one of these oyster leases. So they don't have the property right they're trying to assert here, which is that everything will be maintained to maintain perfect salinity for their oysters.

[00:32:49] Speaker 01:
Thank you.

[00:32:51] Speaker 00:
We ask this court to affirm. Thank you.

[00:32:53] Speaker 01:
We'll restart two minutes of rebuttal.

[00:33:02] Speaker 05:
Your Honor, it was page 20, footnote 12 of the first opinion. Footnote 12 of the first opinion.

[00:33:11] Speaker 05:
And this is cited in our brief, page 30 of our brief.

[00:33:17] Speaker 05:
And basically what... The court said there, let me just read this sentence. Unlike Avenal, however, the event in this case was entirely related to preventing.

[00:33:27] Speaker 02:
I'm looking at, this is footnote 12 of the original opinion.

[00:33:33] Speaker 05:
Yeah, that's the opinion dated December 23, 2021. What's the appendix say?

[00:33:36] Speaker 01:
I'm just going to find it for you.

[00:33:42] Speaker 02:
That's what it says.

[00:33:45] Speaker 05:
I apologize. I don't have, Your Honor.

[00:33:47] Speaker 02:
I'm going to give it to you. Just wait a second. It's on footnote 12. Yes. That's on page J214.

[00:34:02] Speaker 05:
In the middle of that long, long footnote.

[00:34:05] Speaker 02:
Well, the footnote has two paragraphs. During oral argument, is it in that footnote?

[00:34:13] Speaker 05:
No.

[00:34:14] Speaker 05:
It's to the, yeah, it's in that paragraph towards the middle of it because that's a very long paragraph. So where it starts with unlike Avenal. Where? Unlike Avenal is the sentence that starts it.

[00:34:28] Speaker 02:
It's two-thirds down to the right.

[00:34:32] Speaker 01:
Under Avenal, unlike Avenal starts two-thirds down.

[00:34:35] Speaker 02:
Two-thirds down.

[00:34:37] Speaker 01:
Okay, unlike Avenal. So that's the sentence you're pointing to. Yes, Your Honor. The event in this case was entirely related to preventing New Orleans from flooding. So the coastal restoration exception is not applicable as discussed in 7A.

[00:34:55] Speaker 01:
Well, I have to look at 7A. Yes. I don't know.

[00:34:58] Speaker 05:
So the coastal restoration exception is not applicable.

[00:35:04] Speaker 01:
Okay. Well, in any event, you don't think that the second opinion and the reconsideration opinion supersede this initial opinion? I mean, he rejected. This opinion resulted in him saying, no, I'm not going to dismiss it. You need to give me more information. He got more information, and that resulted in his ultimate determination in this case. Yeah.

[00:35:23] Speaker 05:
All that the judge said was, when I was writing my opinion, I wrote that I saw that this statute has been updated and now uses the integrated cost of protection. I want to get writing and what does that mean for you guys. But as we have discussed here, integrated cost of protection was a 2016 that was not applicable to the leases that were obtained prior to 2016. Your Honor, there's one other point that really gets lost here. The law between the parties are the leases.

[00:35:57] Speaker 05:
The court made this decision without getting into the leases.

[00:36:02] Speaker 05:
The government never wanted to address the leases. They said we want to argue this based on the law. But the leases themselves said something else, and that is pointed out by the court.

[00:36:39] Speaker 05:
So there was, Your Honor, this is... I'm going to ask you to be brief because we've exceeded our time.

[00:36:46] Speaker 05:
So on 4-19-2022, the court held a telephone conference hearing, and the judge basically discussed the need to go into this integrated cost of protection. And what we agreed was, like, it was only relevant in case some class member came into the group with some lease that had obtained after 2016, but it did not apply to any other leases that were obtained prior to 2016.

[00:37:16] Speaker 05:
Thank you, Your Honor.