Gannett Capital Bureau

BATON ROUGE - Protecting and restoring Louisiana's coastline is "as easy as one, two, three," according to the slogan adopted by Gov. Mike Foster to urge voters Oct. 4 to approve the first three of 15 proposed amendments to the state Constitution.

The Foster administration has appealed to voters to consider Amendments 1, 2 and 3 as a package necessary to convince Congress that the state is serious about coming up with its share of the funds needed to reconstruct coastline that is eroding at a rate of 25 square miles per year. The cost of coastal restoration has been estimated to be at least $14 billion.

Amendments 1 and 2, the least controversial parts of the package, focus on how to funnel money into the program if funds become available.

Amendment 1 would allow the Louisiana Legislature to deposit nonrecurring revenues, now restricted to paying off debt or funding state construction, into the Wetlands Conservation and Restoration Fund.

It also would make some technical changes in current constitutional language and permit nonrecurring funds to be spent for highway construction where federal matching funds are available, according to the Public Affairs Research Council of Louisiana.

But PAR says in its evaluation of the amendments that there is no guarantee adoption of No. 1 will result in increased deposits into the fund because there is no assurance that mineral revenue settlements will be bigger than they historically have been.

Amendment 2 would create a fund in the treasury for deposit of funds from the sale of the remaining payments from the state's tobacco settlement if Louisiana decides to sell the payments.

In the agreement with cigarette makers, the state was promised annual payments based on future tobacco sales.

Hoping to guarantee revenue from the settlement even if tobacco sales decline, the state sold 60 percent of its total settlement through a bond sale.

Sen. John "Jay" Dardenne, R-Baton Rouge, said No. 2 would permit the state to put up to 20 percent of future proceeds if the remaining 40 percent of the tobacco settlement is sold and if federal funds are made available to match the state's money for coastal restoration.

The Louisiana Coastal Restoration Fund could make money available "without raising taxes," he said. "That's the key here. We're tapping a revenue source without raising taxes."

Mike Voisin, chairman of the Louisiana Oyster Task Force, said oystermen have no concerns about Amendments 1 and 2, but No. 3 is a problem. "We say 1 plus 2 minus 3. We don't think Amendment No. 3 does anything but take away the rights of oystermen and make second-class citizens of oyster farmers."

PAR points out, "Federal officials estimate that restoration efforts could wipe out as much as three-quarters of the state's privately held oyster beds."

That raises the issue of damage awards to oyster farmers for loss of production.

A St. Bernard Parish court awarded damages of $2.2 billion to oyster farmers for damages done by the Caernarvan freshwater diversion, a coastal restoration project. Rep. Loulan Pitre, R-Cut Off, said the award was based on the court's estimate of the loss of past and future earnings from the oyster beds.

"Out constitution says (damages are awarded) `to the full extent of the law.' And the courts have interpreted that to mean including theoretical earnings," Pitre said.

No. 3, which he authored, would limit damages for property taken for coastal restoration projects to fair market value, the standard used in federal projects where land is taken for public purposes.

Voisin said the problem is that the amendment only applies to coastlands taken for public use and not to public projects statewide. Additionally, the amendment would implement a companion law that would reverse the court in the $2.2 billion damage award, a ruling that is on appeal.

Voisin said the Legislature should not be using a constitutional amendment to reverse the courts.

PAR says supporters of the proposal believe it could reduce the state's liability from $2.2 billion to $100 million.

It also was argued that Congress is unlikely to put up as much as $14 billion over the next 20 years for coastal restoration if there is a possibility that a portion of the money will be used to pay hefty damage claims.