We like oysters. When we think "oysters," that means going to a restaurant or oyster bar, sitting down, and ordering up a dozen or more. Easy stuff.
But the real work of oyster farming is "arduous, backbreaking work requiring a special dedication." Avenal v. State, 886 So. 2d 1085, 1110 (La. 2004). It "takes a lot of labor effort," is "pretty difficult work," and oyster farmers "have to put in blood, sweat and toil to sometimes turn muddy water bottoms into an area that could be used for oyster cultivation." Planting and harvesting the oysters means even more work. Knowing the effort that goes into delivering up oysters to consumers just makes us appreciate them all the more.
But the last time we reported on a takings case involving oysters, we had to conclude that the court did not like oysters that much. As property, that is. Yes, the Virginia Supreme Court held, oysters are property; but they are not, you know, property (as in "compensable property" - the kind that is protected against takings).
But check out Campo v. United States, No. 20-44 (Dec. 23, 2021), in which the Court of Federal Claims concluded that the plaintiffs' oysters are property of the compensable sort. In the order denying the government's "no property" motion to dismiss for failure to state a claim, the CFC noted the issue:
In his 1690 Second Treatise of Government, John Locke famously noted “the labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” Over 300 years later, this case raises the unique legal issue of whether Louisiana oyster growers may claim property rights in the fruits of their labor—oysters.
Slip op. at 1.
The plaintiffs lease submerged lands from the State of Louisiana which they use as oyster beds. In 2019, the Corps of Engineers opened the Bonnet Carré Spillway releasing thousands of cubic feet of fresh water. This fresh water diluted the salinity of the water on the oyster beds. Oysters, you see, "prefer moderate salinities" (brackish water, in other words). See slip op. at 4. In the plaintiffs' oyster beds, oyster mortality rates were up to 100% in some areas. The Louisiana Department of Health ordered several of the oyster areas closed due to low salinity levels.
The oyster farmers brought a claim for a permanent taking against the United States in the CFC. The property claimed to be taken was the oysters and the oyster reefs. The government sought dismissal for failure to state a claim, arguing that the plaintiffs oysters are not "property" protected by the Fifth Amendment. The State of Louisiana owns the waters, the government argued, and the Louisiana Supreme Court (in Avenal v. State, 886 So. 2d 1085 (La. 2004) held that there's no private property in these situations.
The CFC's analysis begins in earnest on page 14. The court acknowledged that in Avenal, the Louisiana Supreme Court held that the oyster farmers could not claim a (Louisiana constitution) taking against the State of Louisiana. But that doesn't mean that oyster farmers have no claim against the federal government for a Fifth Amendment taking. Slip op. at 16 ("In other words, plaintiffs versus the United States is different than plaintiffs versus Louisiana—the Louisiana Supreme Court may hold differently if the United States were defendant instead of the State of Louisiana.").
The court next dove into the good stuff: a discussion of Louisiana property law and whether the plaintiffs possessed compensable property. The court rejected the government's argument that Louisiana owns the oysters under the State leases. The lease may say so - and that may limit the plaintiffs' property rights - but it doesn't mean they don't have "some property rights in oysters." Slip op. at 22. "It could be that the State of Louisiana has superior property rights but property rights are diverse and lesser rights are still property rights." Id. And like above, the CFC held that property limitations in the lease in favor of the State of Louisiana don't mean that third parties such as the United States are subject to those same property limitations.
See slip op. at 23-27. The CFC also concluded that under a "traditional" analysis under Louisiana property law, the plaintiffs' rights here look a lot like property:
The government admits plaintiffs have several rights including rights to exclude, destroy, use, possess, sue third parties for damages, recover under larceny, alienate, and enjoy the fruits of selling the oysters. The Court therefore finds plaintiffs have all three essential features of the “bundle of rights” commonly characterized as “property” under Louisiana law. Melancon, 703 F.3d at 269. Accordingly, a traditional property rights analysis confirms plaintiffs have compensable property rights in oysters as against third parties such as the United States under certain circumstances.
Slip op. at 32 (citations and footnote omitted).
Next, the opinion gets to the Locke stuff that you came here for. They key was the government admission that planting the oysters on the state-owned submerged land "takes a lot of labor effort," and "is pretty difficult work" as we noted at the start of htis post. Slip op. at 32. To the court, that signaled that the oysters are just fleshy briny tasty blobs, but represent something more, the fruits (de mer) of the plaintiffs' efforts:
In his Second Treatise of Government, John Locke explains every individual has a property right “in his own person” and in anything he “remove[s] from the common state [of] Nature” and “mixe[s] his labour with.” See Carpenter v. United States, 138 S. Ct. 2206, 2239 (2018) (Thomas, J., dissenting) (citing Second Treatise of Government § 27 (1690)); see also Nollan v. California Coastal Comm’n, 483 U.S. 825, 860 n.10 (1987) (Brennan, J., dissenting) (“By any traditional labor theory of value justification for property rights, for instance, see, e.g., J. Locke, The Second Treatise of Civil Government 15–26 (E. Gough, ed. 1947), Monsanto [in Ruckelshaus v. Monsanto] would have a superior claim, for the chemical formulae which constitute its property only came into being by virtue of Monsanto’s efforts.”). In Carpenter, Justice Thomas discusses “Lockean labor theory,” which is “[t]he philosopher John Locke’s justification of private property, based on the natural right of one’s ownership of one’s own labor, and the right to nature’s common property to the extent that one’s labor can make use of it.” Lockean Labor Theory, Black’s Law Dictionary (11th ed. 2019). Locke states 1 percent of the value of “every thing” “is purely owing to nature” whereas 99 percent of the value is “wholly to be put on the account of labour.” Second Treatise of Government § 40.
Slip op. at 33.
The Fifth Amendment is Lockean, the CFC concluded, and Madison, the drafter, "expressed views consistent with Locke's[.]" Slip op. at 33, 34 ("In his 1792 essay on property, James Madison suggests a broad reading of the Takings Clause stating, just as property cannot be “directly” taken without compensation, neither can the government take property “indirectly” by diminishing the value of property without payment of just compensation. See James Madison, Property (1792).").
The government’s suggestion plaintiffs are compensated for “the fruits of [their oyster-growing] effort[s]” in the marketplace, yet plaintiffs lack property rights in the oysters, runs counter to the Lockean foundation of the Fifth Amendment Takings Clause. Plaintiffs fix the water bottoms with cultch, acquire seed oysters, place these seed oysters within their leases, cultivate the oysters, and then harvest the oysters. In the government’s own words, plaintiffs’ “blood, sweat and toil” are mixed with the oysters and this mixture is why plaintiffs are paid when they sell oysters. See Tr. at 132:17–24. These “backbreaking” efforts when “mixed” with the water bottoms, cultch, and seed oysters confirms plaintiffs have quintessential Lockean property rights in the oysters—this mixture is what the Fifth Amendment assumed to be compensable property if taken for public purpose.
Slip op. at 34.
There you have it. Plaintiffs possess a private property interest as that term is set out in the Fifth Amendment, and the government's motion to dismiss failed. This doesn't mean that the plaintiffs have proven that this property was taken by the desalinization of the water, but it does mean that they live to fight another day. And that, as we've noted recently, is a victory in itself.
This is a month ending in "R," so we're going to celebrate by ordering up a dozen.
Opinion and Order, Campo v. United States, No. 20-44 (Fed. Cl. Dec. 23, 2021)
