858 So.2d 697 (2003)

Albert J. AVENAL, Jr., et al.
v.
STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES.

No. 2001-CA-0843.

Court of Appeal of Louisiana, Fourth Circuit.

October 15, 2003. Rehearing Denied November 21, 2003.

*699 Philip F. Cossich, Jr., Cossich Martin Sumich & Parsiola, Belle Chasse, LA, Les Martin, New Orleans, LA, Michael X. St. *700 Martin, Timothy C. Ellender, Jr., St. Martin & Williams, Houma, LA, Wendell H. Gauthier, Scott Labarre, Gauthier, Downing, Labarre, Beiser & Dean, Metairie, LA, Carolyn McNabb, Carolyn McNabb & Associates, Houma, LA, for Plaintiffs/Appellants.

Richard P. Ieyoub, Attorney General, Andrew C. Wilson, Donna M. Young, David L. Carrigee, Jedd S. Malish, Special Assistant Attorneys General, Burke & Mayer, New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE and Judge MAX N. TOBIAS Jr.).

JOAN BERNARD ARMSTRONG, Judge.

This is a class action by oyster fishermen who contend that their leases were taken, in a constitutional sense, by the State of Louisiana Department of Natural Resources. Following a jury trial, the trial court rendered judgment in favor of the plaintiffs. The State appeals. For the reasons given below, we will modify the quantum of damages awarded as to one of the plaintiffs but otherwise affirm.

The alleged taking occurred as a result of the operation of the Caernarvon Freshwater Diversion Structure (the "CFDS") as a coastal restoration measure. The ecology of the areas where the plaintiffs' oyster leases were located was altered as a result of the freshwater diversion so as to make those areas no longer suitable for oyster production.^[1]

Historically, the Breton Sound Basin, where the plaintiffs' oyster leases were located, contains a mixing of freshwater from the Mississippi River and other freshwater sources with saltwater from the Gulf of Mexico. As a result, much of [the area had water of intermediate salinity. In particular, much of the area had an intermediate salinity level that is suitable for oysters. Stated in a simplified manner: The area closest to land, and thus closest to the sources of freshwater, had the lowest salinity and was not sufficiently saline for oysters. The area farthest from land, and thus closest to the Gulf of Mexico, had the highest salinity and was too saline for oysters. In between those two areas was the area of intermediate salinity that was suitable for oysters. Over time, the construction of flood-control levees on the Mississippi River reduced the flow of freshwater into Breton Sound. That reduction of freshwater flow, along with other man-made and natural changes, caused the area of intermediate salinity, suitable for oysters, to move landward. The area of higher salinity, which was not suitable for oysters, also moved landward. The reduction of the flow of freshwater and the landward movement of the area of higher salinity caused coastal erosion and loss of coastal wetlands.

The State, with assistance from the federal government, has undertaken a program of coastal restoration. With respect to Breton Sound, the coastal restoration effort requires the diversion of additional freshwater from the Mississippi River to Breton Sound. This diversion is done by means of the CFDS. This increased flow of freshwater moved the intermediate salinity area, which is suitable of oysters, outward away from the land. Areas closer to the land, which had previously had intermediate salinity, and which had been suitable *701 for oysters, became areas of lower salinity which were no longer suitable for oysters. The area of higher salinity, which is not suitable for oysters, was moved farther from land. In sum, as a result of CFDS, some areas which had previously not been suitable for oysters became suitable for oysters and some areas which had been suitable for oysters were no longer suitable for oysters. The plaintiffs' oyster leases were in areas which were no longer suitable for oysters.^[2]

The CFDS is a success, and has halted coastal erosion and fostered coastal restoration. However, one of the costs of these laudable achievements is that the plaintiffs' oyster leases are no longer productive to a commercially feasible extent. Variations in the flow of freshwater through CFDS, particularly reductions of the flow of freshwater, can sometimes allow temporary, sporadic production of oysters on the plaintiffs' leases. However, assuming that CFDS will be used as intended, and there is no reason to doubt that it will be, and assuming that CFDS produces the results planned, and in fact it is doing so, the plaintiffs' oyster leases can no longer be used for commercial oyster production.

The first issue raised on appeal by the State is the quantum of damages. The water bottoms are owned by the State and leased to the plaintiffs. The plaintiffs presented damages evidence, which was accepted by the trial court, based upon the cost that would be required to "restore" (or, more accurately, recreate in another location) suitable conditions of the water bottoms of the plaintiffs' oyster leases.

More specifically, oyster leases, to be productive, must have water bottoms covered with "cultch", which is hard material such as crushed shells, gravel, etc. laid down over the mud or sand of the water bottom. The trial court awarded damages using a formula (referred to as the "cultch currency matrix") as to the cost (installed) of cultch on a per acre basis which cost it multiplied by the number of acres covered by the plaintiffs' oyster leases. In particular, the trial court awarded damages of $21,345 per acre.

The cultch currency matrix was developed by the State, Department of Natural Resources ("DNR"), in cooperation with various private groups (oyster fishermen, the oil & gas industry, environmental organizations, etc.), state and federal agencies (Department of Wildlife and Fisheries, Army Corps of Engineers, etc.) and biologists and other scientists with interests in coastal areas containing oyster leases. The State, DNR brought representatives of all of these various interests together at an Oyster Lease Valuation Matrix Workshop in March, 1995. The list of attendees at the Workshop includes a number of the expert witnesses who testified for each side below as well as the State's trial counsel below. Thus, the State was well-represented at the Workshop from a scientific, technical and even legal standpoint.

The minutes of the Workshop reflect that numerous issues and proposals were discussed covering scientific/technical, economic/financial and other topics. There were some issues and proposals as to *702 which the various interests represented at the Workshop were unable to agree. However, consensus developed on sufficient issues and proposals that the Workshop was able to produce the cultch currency matrix as a consensus means of valuing damages to oyster leases. The State, DNR, adopted the matrix with minor modifications.

The matrix uses the cost of cultch (installed) as the "currency" for valuing oyster leases. The layer of cultch placed on the water bottom is necessary for the growth of oysters. The cultch currency matrix looks to the cost of the cultch (installed) on a per-acre basis as the measure of value of the oyster lease. Thus, in the present case, the cultch currency matrix measures the value of the plaintiffs' leases by the cost of replacing them at another location by the placement of the necessary cultch. (Interestingly, in another coastal area affected by the State's coastal restoration efforts, Davis Pond, the State has compensated or will compensate oyster lessees based upon the cost of installed cultch which, as stated above, is the determinative factor in the cultch currency matrix.)

The State's principal objection to the use of the cultch currency matrix is that the matrix measures replacement value, rather than market value, and that the plaintiffs should be compensated based upon market value of their oyster leases as of the date they were taken by the State. After most careful consideration of the State's arguments and citations to legal authorities, we disagree with the State's contention for two general reasons.

First, the Louisiana Constitution, at Article I, Section 4, mandates that when private property is taken for public purposes, the private property owner "has the right to a trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss." (emphasis added). Under this provision of the Louisiana Constitution, an owner of property taken by the State has rights to compensation which go beyond the rights to compensation provided by the Constitution of the United States and by other state constitutions. State v. 1971 Green GMC Van, 354 So.2d 479 (La.1977); State v. Spooner, 520 So.2d 336 (La.1988); Jenkins, The Declaration of Rights, 21 Loy. L.Rev. 9 (1975). Thus, we believe that the Louisiana constitutional imperative of "full" compensation favors replacement cost, when that is greater than market value, as the measure of compensation to be applied. We note that, on some occasions when private property used for business purposes has been taken by the State, the Supreme Court has held that replacement cost, rather than market value, should be used as the measure of compensation to the private property owner. See State, Through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979); State, Dept. of Transp. and Development v. Dietrich, 555 So.2d 1355 (La.1990).^[3]

We also note that the Louisiana Constitution, as quoted above, specifically guarantees the right to trial by jury to determine compensation for the taking of private property for public purposes, and this makes us all the more cautious about *703 upsetting the jury's determination of the amount of compensation in this case. The State presented evidence as to the market value of the plaintiffs' oyster leases, including most particularly the expert testimony of economist Walter Keithly, but the jury was obviously unpersuaded by the State's evidence as to value. It is well-established in takings cases both that the jury as the trier of fact is afforded much discretion and that the jury's factual determinations (including its evaluation of expert testimony) may be disturbed on appeal only if they are clearly wrong-manifestly erroneous. See, e.g., State Through Dept. of Transp. and Development v. Estate of Davis, 572 So.2d 39 (La.1990); State, Dept. of Transp. and Development v. Pipes, 489 So.2d 293 (La.App. 4th Cir.), writ denied, 492 So.2d 1219 (La.1986). Based upon the constitutional protection of the jury's determination, as well as the just-cited caselaw, we cannot say that the jury clearly erred in selecting the replacement cost as the measure of compensation in this case.

Our second general reason for disagreeing with the State's contention that market value should be used to determine compensation, rather than the replacement value of the plaintiffs' leases as determined by use of the cultch currency matrix, lies in policy considerations of consistency of treatment in the determination of compensation for the taking of oyster leases. The State sponsored the creation of the cultch currency matrix as a means of determining the amount of compensation for the effective loss of oyster leases by man-made impacts. The State, DNR adopted the cultch currency matrix for use by the quasi-governmental Oyster Lease Damage Evaluation Board and that body makes determinations of compensation to oyster fisherman using the matrix. The State, DNR was the lead author of the cultch currency matrix. We note that the State has applied the cultch currency matrix in other situations. Therefore, we believe that the cultch currency matrix appears to be the best means available to best achieve consistent compensation for the taking of oyster leases. Accordingly, we find that it was appropriate and consistent to apply the cultch currency matrix in the present case.^[4]

The State's next argument on appeal is that the plaintiffs did not prove that CFDS was the proximate cause of oyster mortality on the plaintiffs' oyster leases. In particular, the State argues that there are multiple sources of freshwater in Breton Sound and that these sources of freshwater also killed oysters. Also, the State argues that, even after CFDS came on line, there have been oysters produced in Breton Sound.

However, the testimony of the various expert witnesses (both the plaintiffs expert witnesses and the State's own expert witnesses), as well as the plaintiffs' own testimony as to their actual historical experience with oyster leases in Breton Sound, shows that the permanent loss of oyster productivity is attributable to CFDS. Although oyster mortality can be caused by a "freshet," a sudden large infusion of freshwater caused by heavy rains, the oyster mortality so caused is transitory and followed *704 by renewed oyster growth. Also, although the evidence shows that there was some oyster production in Breton Sound after CFDS came on line, it appears that this was sporadic oyster growth that occurred when the flow of freshwater through CFDS was temporarily reduced. However, this sporadic oyster growth was not sufficient to make the plaintiffs' oyster leases commercially viable. Moreover, it is apparent that, when CFDS is used at its planned capacity, and there is no reason to doubt that it will be, as opposed to the curtailed flow which allowed sporadic oyster production, the plaintiffs' oyster leases are rendered unsuitable for oysters.

Lastly on this "proximate cause" point, the State argues that the plaintiffs have not proven with specificity the amount of production from their leases prior to CFDS coming on line. However, so long as the plaintiffs proved generally that their leases were productive before CFDS came on line, and that they were not productive after CFDS came on line, and that CFDS caused the loss of oyster productivity, proximate cause has been proven.

The State next argues that the plaintiff class was improperly certified. However, this court's prior upholding of the class certification became final when the Supreme Court denied the State's writ application in Avenal v. State, Dept. of Natural Resources, 97-2747 (La.1/16/98), 706 So.2d 979. Thus, we cannot address this issue further.

The State's next argument on appeal is that the trial court erred by excluding from evidence certain proposed expert testimony for the State which was based upon the use of side scan sonar. The Louisiana Supreme Court, in State v. Foret, 628 So.2d 1116 (La.1993), adopted the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as to the admissibility of scientific expert testimony. The trial court must apply a multifactor test to make a preliminary determination of the reliability of the proposed expert testimony. If the trial court determines that the proposed expert testimony lacks the requisite indicia of reliability, then the expert testimony is to be excluded. An evidentiary hearing, out of the presence of the jury, can be useful to the trial court's determination and that procedure was utilized in the present case. The two State proposed expert witnesses both testified as to their side scan sonar technique as applied to the plaintiffs' oyster leases.

The trial court's decision as to whether to admit or exclude from evidence the proposed expert testimony is reviewed on appeal using an abuse of discretion standard of review. Collins v. State, ex rel. Louisiana Health Care Authority, 99-2307 (La.App. 4 Cir. 7/12/00), 774 So.2d 167, writ denied, 2000-2633 (La.11/17/00), 775 So.2d 439; Mitchell v. Uniroyal Goodrich Tire Co., 95-0403 (La.App. 4 Cir. 12/28/95), 666 So.2d 727, writ denied, 96-0260 (La.3/15/96), 669 So.2d 421. The testimony at the Foret/Daubert hearing showed that, while the use of side scan sonar itself is well-established, the application of that technology to the determination of what portion of any oyster lease water bottom is covered by cultch is still very much a work-in-progress. Indeed, the State's experts were experimenting with the technique in the course of their work for the present case. The specific type of study undertaken in the present case has been done seldom, if ever, before. The specific technique employed has not been the subject of peer-reviewed publication. There is no generally-recognized rate of error with the technique employed in the present case. This is not to say that *705 the State proffered "junk science", or that the State's experts were anything other than reputable scientists, but it is clear that the technique employed here is not mature scientifically. There was also evidence from "ground-truth", i.e., actually feeling the water bottoms with poles, that was at variance with the side scan sonar data. Under the circumstances, we cannot say that the trial court abused its discretion in excluding the side scan sonar evidence.

The State's next argument on appeal is that the trial court erred by not granting three of the State's challenges for cause to prospective jurors, thus causing the State to use three of its six peremptory challenges to exclude those three jurors. Even if the trial court erred as to those three challenges for cause (and we make no finding that the trial court did so err), we do not believe that such would be grounds for reversal. The trial court granted eight of the State's thirteen challenges for cause as to prospective jurors. A reason for allowing the parties peremptory challenges is that reasonable minds can differ as to whether a particular prospective juror should be excluded for cause and to mitigate any harm that might otherwise be caused by a trial court's erroneously failing to strike for cause a prospective juror. The fact that, after striking eight jurors for cause at the State's instance, the trial court failed to strike three others, so that the State had to use three of its six peremptory challenges, does not appear to us to be likely to have caused any substantial prejudice to the State. In any case, the trial court has discretion to manage the selection of the jury, e.g., Carter v. Baham, 95-2126 (La.App. 4 Cir. 10/9/96), 683 So.2d 299, and a review of the record of the jury selection as a whole does not reveal an abuse of discretion.

The State's next argument on appeal is that some of the plaintiffs' claims are prescribed under La. R.S. 9:5624 because that statute provides a two-year prescriptive period for claims for "damage" to private property for public purposes and the plaintiffs did not file suit until two and a half years after CFDS came on line. However, the statute relied upon by the State has no application to the present case. Specifically, La. R.S. 9:5624 applies only to cases in which private property has been "damaged" but not taken by the State. Greater Baton Rouge Airport Dist. v. Hays, 339 So.2d 431 (La. App. 1st Cir.1976). See also A.K. Roy, Inc. v. Board of Com'rs for Pontchartrain Levee Dist., 237 La. 541, 111 So.2d 765 (1959); Powell v. Department of Highways, 383 So.2d 425 (La.App. 4th Cir. 1980); Schneider v. Jefferson Parish, 216 So.2d 604 (La.App. 4th Cir.1969). Nor is there any doubt that this is a "takings" case under La. R.S. 13:5111 which has a three-year prescriptive period. In fact, two prior published decisions of this court have held that this is a takings case. See Avenal v. State, 99-0127 (La.App. 4 Cir. 03/3/99), 757 So.2d 1; Avenal v. State, Dept. of Natural Resources, 95-0836 (La. App. 4 Cir. 11/30/95), 668 So.2d 1150. Factually, the key point as to why this is a "takings" case is that the plaintiffs' oyster leases have, under the normal full-flow operation of CFDS necessary to achieve its purposes, been rendered commercially non-viable as oyster leases and, because CFDS will be operated at its normal full flow on a permanent basis, the loss of commercial viability of the plaintiffs' oyster leases is permanent. When property has been rendered permanently non-usable for its only purpose, that is a taking. The facts that the State did not physically enter onto the plaintiffs' oyster leases, and that the CFDS was not constructed on the plaintiffs' oyster leases, are of no moment.

*706 Nor is it of any significance that the plaintiffs continue to have the legal right to use the leased premises for oyster production. What is dispositive is that the State rendered the plaintiffs' oyster leases permanently useless for commercial oyster production.

The State next argues that one of the class representative plaintiffs, Fox Oyster Company, was improperly awarded damages for leases which it managed but did not own. However, this is a class action, and Fox Oyster Company is one of the five class representatives. While all of the damages awarded must go to the actual owners of the oyster leases, that does not prevent Fox Oyster Company (which, in fact, does itself own many leases in the affected area) from serving as a class representative. The trial court can insure that damages are paid only to actual oyster lease owners.

The State also argues that the jury erred in its determination of the number of acres of oyster leases owned by each of the class representatives. The parties disputed these facts and presented evidence as to them. We do not believe that the jury was clearly wrong/manifestly erroneous in this regard. Therefore, we may not disturb the jury's determination. See West Jefferson Levee Dist. v. Coast Quality Const. Corp., 93-1718 (La.5/23/94), 640 So.2d 1258; LeJeune v. Union Pacific R.R., 97-1843 (La.4/14/98), 712 So.2d 491; Lewis v. State, Through Dept. of Trans. Development, 94-2370 (La.4/21/95), 654 So.2d 311.

Lastly, the State argues that it is relieved of liability because the State inserted into the plaintiffs' oyster leases, when those leases were renewed, certain "indemnity clauses". The Supreme Court held in Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, that such unilateral insertion by the State of onerous clauses in oyster leases is legally invalid. The State argues that the legislature amended the oyster lease statutes to allow the State to unilaterally insert onerous clauses upon the renewal of oyster leases. See 2000 La. Acts No. 107. However, without deciding whether that statute permits the indemnity clauses at issue, we note that the statutory amendment applies only to oyster leases renewed or extended after July 1, 1995. Id. The list of oyster leases offered by the State does not include leases dated after July 1, 1995. Therefore, the statutory amendment does not apply and, under the Supreme Court's Jurisich, decision the indemnity clauses at issue are invalid.

For the foregoing reasons, the judgment the trial court is modified as to plaintiff Avenal and is otherwise affirmed.

AFFIRMED AS MODIFIED.

BYRNES, C.J., concurs in the reasons assigned by MURRAY, J.

LOVE, J., respectfully concurs in part and dissents in part.

TOBIAS, J., dissents and assigns reasons.

MURRAY, J., concurs with reasons.

I write separately to further elaborate on the evidentiary support for the jury's damage award.

At trial, the plaintiffs introduced the testimony of two experts, Michael Voisin and Noel Brodtmann, Jr., who opined that the cultch currency matrix is the best method to calculate damages to an oyster lease.^[1] Mr. Voisin, an oyster farming expert, *707 explained that the matrix was originally developed in March 1996 for the Oyster Lease Damage Evaluation Board ("OLDEB") as a uniform system of compensating oyster lease holders for damages to their lease due to mineral (oil and gas) activities. It values oyster leases by determining the cost to replace lost or damaged leases. It does so by placing a value on the lease that varies depending on the type of lease substrate (foundation), i.e., reef, shell, hard mud, or soft mud.

According to Mr. Voisin, the State has extended the use of the matrix to the freshwater diversion project context, applying it in the Davis Pond Relocation Program. The Davis Pond Program provides for the exchange, relocation, or purchase of oyster leases located within the Barataria Basin, which is the target area of the Davis Pond Freshwater Diversion Structure. See La. R.S. 56:432.1. For the Davis Pond Program, Mr. Voisin indicated that the matrix allows for 187 cubic yards of cultch per acre of existing cultch or about 1.5 to 1.375 inches of cultch spread evenly across an acre. Mr. Voisin further testified that 1.375 inches of cultch is enough to plant seed oysters, yet the oyster industry recommends 3 to 6 inches of cultch to support full oyster growth. He still further testified that cultch costs about $38 per cubic yard if it is placed on water bottoms in less than 6 feet of water; yet for deeper water bottoms, the cost is $50 per cubic yard.

Mr. Brodtmann, an environmental consultant specializing in oyster assessments, testified that he conducted field assessments of some of the plaintiffs' leases using a poling procedure. The poling procedure involved moving across a lease area in a boat and probing the water bottoms with a cane pole every 8 to 10 feet. Based on the poling procedure, he determined the substrata characteristics of the water bottoms of the leases and classified them as reef, firm mud, or soft mud.

Mr. Brodtmann also testified, like Mr. Voisin, that an oyster reef must be a minimum of 3 to 6 inches thick in order to support an oyster habitat. He estimated that to build a 3-inch reef on an acre requires 403 cubic yards of cultch and costs $10,676; whereas, to build a 6-inch reef on an acre requires 806 cubic yards of cultch and costs $21,345. The latter figure, based on building a 6-inch reef, was adopted by the jury. In answering the jury interrogatory asking "[w]hat amount will fairly and adequately compensate the Plaintiff ... for the damages to his leases per acre of lease damaged?," the jury answered $21,345.

Further support for the jury's award is found in the trial testimony of the Secretary of the Department of Natural Resources, Jack Caldwell. On cross-examination, Secretary Caldwell acknowledged that in seeking federal aid for the proposed Davis Pond Program he stated under oath at a February 1996 United States Congressional Committee Hearing that oyster leases in Plaquemines Parish were worth $7,000 an acre. He also acknowledged that in January 1999, he approved the OLDEB's adoption of the matrix as a uniform evaluation method using 403 cubic yards of cultch as the estimated amount needed to build a 3-inch reef on an acre of water bottom. That estimate corresponds with Mr. Brodtmann's testimony.

Although there was contradictory expert testimony introduced by the state disputing the appropriateness of using the cultch currency matrix to value the plaintiffs' damages and estimating the average value of an oyster lease in Plaquemines Parish *708 before Caernarvon went on-line at $200 per acre, the jury obviously found the plaintiffs' experts' testimony more credible. As the Louisiana Supreme Court has held, "[c]redibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error." Lasyone v. Kansas City Southern R.R., 2000-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693. I cannot say that the jury's resolution of the conflicting expert testimony presented at trial in this case was manifestly erroneous.

LOVE, J., respectfully concurs in part and dissents in part.

I respectfully concur in that part of the majority opinion finding that the Caenarvon project resulted in a taking of certain oyster leases. I believe that the flood of water released by that project was as much a taking of the affected aquatic areas as the analogous situation of having one's property paved over in a state highway project on land or having one's land flooded by the creation of a spillway. Had these waters been released on dry land there would have been no question of a taking. Consequently, the prescriptive period is three years and the affected oyster owners are entitled to compensation.

However, I respectfully dissent from those portions of the majority opinion calculating damages. Just as Judge Landrieu stated in his dissent in Inabnet v. Exxon Corp., 614 So.2d 336 (La.App. 4 Cir. 1993), the ramifications of the damages awarded by the trial court in the instant case "shock the conscience."

The Supreme Court reversed and remanded Inabnet in part (presumably influenced by Judge Landrieu's dissent), Inabnet v. Exxon Corp., 93-0681 (La.9/6/94), 642 So.2d 1243, 1256, stating, inter alia, that:

Because the parties may have been misled in this regard [the measure of damages] by previous intermediate court decisions, it is appropriate to remand the case to the district court for further evidence and for a decision on this issue. On remand, the court should consider not only the rental price of the lease, but also the money, time and effort expended by the lessee in developing the lease, the availability of comparable leases, and other relevant factors. [Emphasis added.]

Id.

The Supreme Court opinion in Inabnet stated that the measure of damages was "the value of plaintiff's leasehold interest before and after the dredging," which in terms of the instant case would mean the value before and after the fresh water diversion. Inabnet, 93-0681 (La.9/6/94), 642 So.2d 1243, 1256. In this type of situation, loss of value cannot mean replacement cost or restoration cost. As was pointed out in the Supreme Court decision in Inabnet, at p. 21, 642 So.2d at 1256, the oyster lessees have no "personal" reason for restoring the water bottoms to their original condition, i.e., nothing that could be likened to nonpecuniary damages under La. C.C. art.1998. Therefore, replacement or restoration cost is not the measure of damages.

Loss of profit is probably the fairest measure of damages. This is sufficient to satisfy the Constitutional mandate that the "owner shall be compensated to the full extent of his loss."

The oyster leases are investments. The only proper measure of damages is the economic loss suffered by the lessee and that would normally be the present value of the loss of future net income and the present value of the loss of future return *709 of capital suffered by the lessee. The time, money and effort expended by the lessee in developing the lease should be considered, but only to the extent they added value to the leasehold. The oyster lessees should not be able to recover any items of damage, which are not recognized as having economic value in the market place.

The plaintiffs rely on State Through Dept. of Highways v. Constant, 369 So.2d 699, in support of their contention that they are entitled to the restoration costs of the oyster leases. Constant does not support that argument. In Constant the issue was the expropriation of the loading and parking area of a marina. The Supreme Court in Constant found that the mere market value of the property expropriated did not make the owner economically whole because: "Without the replacement of their loading area, their marina business operations will be substantially destroyed." Id., at 702. In Constant the value of the expropriated land alone would not compensate the owner for the adverse economic effects of the loss of that land on his business, which the expropriated land serviced. The plaintiffs in this case have demonstrated no such collateral economic damage.

Just as the Supreme Court found in Inabnet, supra, the jurisprudence is still murky regarding the calculation of damages to oyster leases and this case should be remanded to the district court as was done in Inabnet, in order to apply the proper standard of damages.

A large number of the oyster leases contained indemnity provisions. Pursuant to a motion for summary judgment, the Department of Natural Resources asked the trial court to rule on the indemnity clauses. The trial court failed to do so. This Court previously ruled that the failure of the trial court to rule on the indemnity provisions was error. The trial court refused to grant a new trial on this issue. The Department of Natural Resources sought supervisory review of the trial court's action in this regard on March 16, 2001. 2001-C-0542. On May 22, 2001, this Court consolidated that writ with this appeal. This case should be remanded for a ruling by the trial court on each indemnity agreement pursuant to the previous order of this court.

It was also error for the trial court to exclude the State's side-scan sonar evidence. While this error alone might not warrant a remand, when coupled with the other errors discussed herein, this error only serves to reinforce the decision to remand.

For the forgoing reasons, I would affirm that portion of the trial court judgment finding that a taking had occurred, but I would remand for the admission of the State's side-scan sonar evidence and recalculation of the damage award.

TOBIAS, J., dissents and assigns reasons.

I respectfully dissent. In my view, the majority errs in its reading and interpretation of our earlier decisions in this case, addressing the issue of whether there was a "taking" by the State. Because I find that a "taking" as defined by our law and jurisprudence did not occur, I find that this case is prescribed. I would therefore not address the other assignments of error that go to the merits. My reasoning follows.

In this class action suit, the defendant, the State of Louisiana, through the Department of Natural Resources ("DNR"), appeals a trial court judgment rendered in favor of the plaintiffs, a group oyster fishermen holding oyster leases on water bottoms owned by the State in Plaquemines *710 and St. Bernard Parishes, awarding them damages for the "taking" of their leases as a result of the Caernarvon Freshwater Diversion Structure.^[1] Plaintiff, Albert J. Avenal, Jr. ("Avenal"), also appeals from the judgment. In addition to Avenal, the other class representatives in the litigation are Clarence Duplessis ("Duplessis"), Kenneth Fox ("Fox"), Fox Oyster Company, and Nick Skansi ("Skansi").

Facts, History, and Evidence

The factual and procedural history of this case follows.^[2]

In Louisiana, the diversion of fresh water from the Mississippi River has long been used for a variety of purposes, including the creation of new land, the prevention of coastal erosion, and the enhancement of oyster production. Historically, oyster fishermen in Louisiana have used freshwater diversions to allow river water laden with nutrients to flow into their oyster beds to reduce the salinity and thus render the water conditions unfavorable for saltwater predators such as black drum fish and oyster drills, as well as parasites and diseases.

Freshwater diversion became particularly important for the oyster industry after 1927 when the Mississippi River levee system was enhanced for navigation and flood prevention purposes. However, the construction of additional and larger levees prevented river water from reaching adjacent estuaries and the oyster beds located therein on both sides of the Mississippi River. Consequently, these areas continued to become more saline; the salinity killed the plant life that held the soil together. This, in turn, accelerated erosion, which was no longer being offset by the replenishing of land by suspended sediment from the river. As the land eroded, the saltwater intrusion from the Gulf of Mexico continued further inland. In response, the oyster fishermen relocated their oyster beds farther inland away from encroaching saltwater predators and disease, but closer to the sources of manmade pollution. To address the adverse environmental conditions in the Breton Sound^[3] estuary within Plaquemines Parish, various structures and outlets were gradually constructed in the levee system along the east bank of the Mississippi River to allow river water to enter the Breton Sound estuary. In addition to the Bohemia Spillway south of Point-a-la-Hache in Plaquemines Parish, constructed in 1925, other freshwater diversion structures included Bayou LaMoque and White Ditch Siphon, constructed by the State of Louisiana in 1956 and 1964, respectively.

In 1965, the United States Congress passed the Flood Control Act, Pub.L. No. 89-298, 79 Stat. 1037 (1965), which authorized construction of freshwater diversion structures at Caernarvon, Louisiana, and *711 other locations in the Breton Basin. Thereafter, public hearings were held for several years involving various governmental agencies and oyster fishermen. In 1983, the Louisiana Department of Wildlife and Fisheries ("DWF"), which is part of the DNR, published a report setting forth optimal salinity regimes for oyster production on public seed grounds in the Breton Basin.

In 1984, the United States Army Corps of Engineers ("Corps") prepared an environmental impact statement suggesting locations of target salinity concentrations (isohalines) at three areas along the southeast Louisiana coast to enhance fisheries and to combat coastal erosion. To create optimal salinity regimes, the environmental impact statement proposed the construction of three freshwater diversion structures in the three areas: (1) the Bonnet Carre Spillway in the Lake Pontchartrain Basin; (2) the Davis Pond Freshwater Diversion Structure in the Barataria Basin; and, (3) the Caernarvon Freshwater Diversion Structure in the Breton Basin. The Caernarvon project, in particular, was designed to abate saltwater intrusion and marine tidal invasion, while promoting coastal restoration and enhancing fisheries and wildlife in the basin. The DNR and DWF set optimal target salinity zones in Breton Sound, which ranged from 5 parts per thousand ("ppt") for the northwest inland area of the basin to 15 ppt for the lower seaward end of the basin. The salinity zones were based upon the fact that below 5 ppt, oysters become stressed and die, while above 15 ppt, oysters are subject to saltwater predators and disease. The optimal salinity regime targeting annual average isohalines in concentration between 5 ppt and 15 ppt allowed oyster propagation and cultivation to continue in an existing zone within Breton Sound, while at the same time fostered coastal restoration by freshening the upper Breton Basin and allowing vegetation to return in an area where little active oyster production was occurring. Eventually the Caernarvon Interagency Advisory Committee ("CIAC") proposed a management plan for the Caernarvon Freshwater Diversion Structure using salinity zones as well as other environmental considerations.

In 1984, Plaquemines Parish hired Dr. Johannes Van Beek of Coastal Environments, Inc., to conduct a study to determine the potential effects of the proposed Caernarvon Freshwater Diversion Structure. Dr. Van Beek projected that, after Caernarvon went on-line, 35,000 acres of land near the structure would have salinities below 2 ppt, concluding the area would become freshwater marsh. Dr. Van Beek also projected that an additional 31,000 acres would have salinities between 2 ppt and 5 ppt and eventually develop into intermediate marsh.

In connection with public announcements, public hearings, and governmental environmental impact studies in the latter 1970's, the 1980's, and early 1990's, the Louisiana and federal governments informed the public, including the oyster industry, of the proposed freshening of the upper Breton Basin and the likelihood of adverse affects upon oyster leases located in areas that had been historically fresh prior to 1960. In a letter dated 26 October 1990 to Mr. Kell McInnis, Acting Secretary of the DWF, Bill Good, Ph.D., Acting Administrator of DNR's Coastal Restoration Division and Chairman of the CIAC, expressed concern that oyster leases within the Caernarvon structure's intended impact area might be adversely affected by the freshwater diversion flow. Thus, Dr. Good and the CIAC requested that the DWF allow the oyster leaseholders to relocate their oysters to areas outside the impact zone.

*712 In response, the DWF informed the CIAC by a