United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE.
before the Court are two motions for partial summary judgment
filed by Defendants. See Rec. Docs. 200 and 207.
Having carefully reviewed the parties' submissions, the
record in this matter, and applicable law, the Court rules on
the motions as stated herein.
IT IS ORDERED that "Defendants'
Motion for [Partial] Summary Judgment Regarding No. Cause of
Action Pursuant to Cavern Spacing Regulations" (Rec.
Doc. 200) is GRANTED to the extent it seeks
dismissal with prejudice of any claims asserted by Plaintiffs
either pursuant to, or premised upon, the restrictions set
forth in Title 43, section 3315(B)(1) and (2) of the
Louisiana Administrative Code. As urged by Defendants, those
regulations establish substantive spacing requirements that,
given the absence of contrary legislative expression, apply
only prospectively, i.e. relative to conduct
occurring on the effective date of the regulation and
thereafter. Thus, because § 3315(B)(1)and (2)
were not effective (or even promulgated) until years after
the Dow 18 mining operations ceased in 2010, the provisions
cannot be applied retroactively to determine or define the
scope of Defendants' duties relative to those operations
between 1986 and September 2010.
with these principles, moreover, it is evident, upon careful
analysis, that the spacing restrictions in §
3315(B)(1)(a) and (2), as a practical matter, only
prospectively limit the "continued
operation" of existing solution-mining caverns,
i.e. those permitted prior to the effective date of
the regulations. That is, the restrictions in
§3315(B)(1) and (2) relative to pre-existing
solution-mining caverns simply define the conditions under
which those caverns may thereafter continue
ongoing mining operations. Finally, because no
triable issue of material fact has been shown to exist in
Plaintiffs' favor relative to whether such post-February
2014 conduct has occurred here, the Court grants
Defendants' motion for partial summary judgment as set
Considering the legal principles previously discussed in the
August 28, 2017 Order and Reasons (Rec. Doc. 111), IT
IS ORDERED that "Defendants' Motion for
Partial Summary Judgment on Prescription" (Rec. Doc.
207) is DENIED to the extent it seeks
pre-trial dismissal, on grounds of timeliness, of
Plaintiffs' claims premised upon the Dow 18 cavern's
alleged subsurface extension across the dividing
boundary onto Plaintiffs' southern adjacent
property. Specifically, the Court is not convinced that
Plaintiffs' alleged ability to ascertain the location of
TBC's northern property line from documents in its
possession, combined with Joel Warneke's March 26, 2014
observation that the July 2013 Ratigan map portrays the
perimeter of the Dow 18 cavern as "very close/right on
the TBC/Dow property line, " were sufficient, as a
matter of law, to commence the running of prescription more
than one year prior to the April 7, 2015 filing date of this
reaching this conclusion, the Court notes its additional
receipt of evidence from the parties relative to prescription
since its prior denial (Rec. Doc. 111) of Defendants'
earlier prescription motion (Rec. Doc. 77). Nevertheless,
given (1) TBC's understandable initial focus, in late
March/early April 2014, on the cavern spacing regulations
newly effective on February 20, 2014; (2) the notice
requirement set forth in those regulations; (3) the
subsurface nature of the alleged trespass; (4)
Plaintiffs' apparently undisputed lack of access to
Dow's sonar surveys showing the Dow 18 cavern had
actually crossed TBC's property line; (5) the
acknowledged rate of error of the sonar surveys utilized by
Joe Ratigan in preparing his July 2013 map; and (6)
applicable legal principles governing prescription and
summary judgment, the Court finds this particular issue
appropriately left to determination by the trier of fact.
 As stated in their reply memorandum,
"Defendants do not suggest that plaintiffs are precluded
from offering other evidence to establish that it was the
solution-mining industry 'custom' not to operate a
solution-mining well within 100 feet of a property boundary
during the relevant time period." See Rec. Doc.
321 at p. 4 of 5 (emphasis added). As further suggested by
Defendants, however, the subsequent enactment of §
3315(B), standing alone, is not sufficient to establish the
existence of such a custom during the years the Dow 18 was
 See La. Civ. Code art 6;
see also, e.g., Sawicki v. K/S Stavanger Prince, 802
So.2d 598, 603-04 (La. 2001).
 The regulations were promulgated in
2013 pursuant to legislation enacted the same year.
See 2013 La. Acts, Act 368 of the 2013 Regular
Legislative Session (adding La. Rev. Stat. 3:40(M)); La.
Admin Code. tit. 43, Pt XVII, § 3301, et seq. The
regulations became effective on February 20, 2014.
See La. Admin Code. tit. 43, Pt XVII, § 3301,
See La. Admin Code. tit. 43,
Pt XVII § 3315(B). See also La. Admin Code.
tit. 43, Pt XVII, § 3301 ("Existing Solution-Mining
Well or Project - a well, salt cavern, or project permitted
to solution-mine prior to the effective date of these
regulations."); Id. ("Active Cavern Well -
a solution-mining well that is actively being used, or
capable of being used, to mine minerals, including standby
wells. The term does not include an inactive cavern
well."); Id. ("Inactive Cavern Well - a
solution-mining well that is capable of being used to
solution-mine minerals but is not being so used, as evidenced
by the filing of a written notice with the Office of
Conservation in accordance with §3309.I.3 and
§3331"); Id. at § 3315(B)(1)
(restricting "[c]ontinued operation . . . of an existing
solution-mining cavern"); Id. at
§:3315(B(2) (restricting "continued operation"
of "solution-mining caverns permitted prior to the
effective date of these regulations"); Id. at
§ 3331 (establishing requirements for salt caverns
without injection for one year and caverns for which the
operator is prepared to conclude mining activities).
Defendants have represented to the ...