United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT, United States District Judge
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.
Plaintiffs Texas Brine Company, LLC and Louisiana Salt, LLC
(collectively, “TBC”) have opposed the
motion. 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.
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
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.
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.
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.
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. 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,  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. TBC further alleges that Dow has been
unjustly enriched by its improper operation causing its
cavern to extend within one foot of TBC's
response, Dow has filed the instant motion for partial
summary judgment seeking dismissal of TBC's claims
premised on Dow's solution-mining
operations. Specifically, Dow contends TBC's tort
claims relative to those operations have prescribed and that
an unjust enrichment remedy is legally unavailable.
LAW AND ANALYSIS
Rule 56 of the Federal Rules of Civil Procedure - Summary
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.
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).
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)).
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).
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).
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 ...