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Texas Brine Co., LLC v. The Dow Chemical Co.

United States District Court, E.D. Louisiana

August 28, 2017

TEXAS BRINE COMPANY, LLC AND LOUISIANA SALT, LLC
v.
THE DOW CHEMICAL COMPANY, DOW HYDROCARBONS & RESOURCES, LLC, AND CLIFTON LAND CORPORATION

         SECTION “N” (1)

          ORDER AND REASONS

          KURT D. ENGELHARDT, United States District Judge

         Presently before the Court is the “Motion for Partial Summary Judgment pursuant to the Federal Rules of Civil Procedure 56, ” filed by Defendants The Dow Chemical Company and Dow Hydrocarbons & Resources, LLC (collectively, “Dow”) and Clifton Land Corporation (Rec. Doc. 77).[1] Plaintiffs Texas Brine Company, LLC and Louisiana Salt, LLC (collectively, “TBC”) have opposed the motion.[2] Having carefully considered the parties' submissions, the record in this matter, and applicable law, IT IS ORDERED that Defendants' motion is DENIED for the reasons set forth herein.

         I. BACKGROUND

         In 1986, Dow began operating a solution-mining salt cavern on the Napoleonville Salt Dome in Assumption Parish, Louisiana. Dow's Well 971667 (hereinafter, “Dow 18”) was mined from 1986 through September 2010. During the course of Dow's operations, the Dow 18 cavern did not develop uniformly; rather, it developed an anomaly or “wing” extending toward the boundary between Dow's property and adjacent property owned by TBC.[3] Following cessation of its solution-mining operations in 2010, Dow implemented pressure-monitoring and pressure-management plans for Dow 18, which include continuous monitoring of the well data and daily inspections of the well and well pad area.[4]

         In February 2014, the Louisiana Department of Natural Resources promulgated regulations intended to advance the physical and environmental safety of solution-mining caverns. See La. Administrative Code §43:3301, et seq.; 2014 La Reg Text 340934 (NS). The regulations were amended in 2016. See La. Administrative Code §43:3301, et seq.; 2016 La Reg Text 406959 (NS). One of the regulations prohibits any part of a solution-mining cavern in existence as of the promulgation date of the regulations from extending closer than 100 feet from the property of an adjacent owner without the consent of the other owners(s) or a determination by the Louisiana Commissioner of Conservation (“Commissioner”) that operations may continue. See La. Administrative Code §43:3315(B)(1)(a). That regulation also requires an operator with an existing solution-mining cavern located within 100 feet of an adjacent property line to provide notice of the encroachment to the adjacent owner. Id.

         Another regulation requires a minimum separation of not less than 200 feet “between the walls of adjacent caverns or between the walls of the cavern and any adjacent cavern or any other manmade structures within the salt stock.” See La. Administrative Code §43:3315(B)(2). For solution-mining caverns permitted prior to the effective date of the regulations, that are already within 200 feet of any other cavern or manmade structures within the salt stock, however, the Commissioner may approve continued operations upon a proper showing by the owner or operation that the cavern is capable of continued safe operations. Id.

         Pursuant to these regulations, Dow, on or about February 16, 2015, notified TBC, in writing, that the Dow 18 cavern extended to “approximately one foot” from TBC's adjacent property boundary.[5] On April 7, 2015, less than two months later, TBC commenced this action, asserting that Dow's location of the Dow 18 wrongfully deprives TBC of its ability to operate a solution-mining cavern within 200 feet of the Dow 18. Thereafter, following its subsequent receipt of various sonar surveys from Dow during the course of the litigation, [6] TBC amended its complaint to additionally allege that Dow's solution-mining cavern has encroached, and continues to encroach, onto TBC's property. Based on these assertions, TBC seeks injunctive relief against Dow, as well as damages from Dow for the lost value of salt that was improperly mined by Dow, and the lost value of all “dead salt” on the property that TBC and no longer legally mine because of its proximity to Dow's cavern.[7] TBC further alleges that Dow has been unjustly enriched by its improper operation causing its cavern to extend within one foot of TBC's property.[8]

         In response, Dow has filed the instant motion for partial summary judgment seeking dismissal of TBC's claims premised on Dow's solution-mining operations.[9] Specifically, Dow contends TBC's tort claims relative to those operations have prescribed and that an unjust enrichment remedy is legally unavailable.

         II. LAW AND ANALYSIS

         A. Rule 56 of the Federal Rules of Civil Procedure - Summary Judgment

         Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The materiality of facts is determined by the substantive law's identification of which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).

         When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C., 277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." See Id. (emphasis in original) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).

         Although the Court is to consider the full record in ruling on a motion for summary judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to summary judgment. See Fed. R. Civ. P. 56(c)(3)("court need consider only the cited materials"); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)("When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving party should "identify specific evidence in the record, and articulate" precisely how that evidence supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195 (1994).

         The nonmovant's burden of demonstrating a genuine issue is not satisfied merely by creating "some metaphysical doubt as to the material facts, " "by conclusory allegations, " by "unsubstantiated assertions, " or "by only a scintilla of evidence." Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).

         B. Prescription Law

         Louisiana Civil Code article 3492 provides, in pertinent part: “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” Damage is considered to have been sustained, within the meaning of Article 3492, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Blevins v. Long Trusts, 49, 605 (La.App. 2 Cir. 2/26/15), 162 So.3d 500, 506 (citing Colev. Celotex Corp.,620 So.2d 1154 (1993)). “When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or ...


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