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Daigle v. Cimarex Energy Co.

United States District Court, W.D. Louisiana, Lake Charles Division

June 28, 2018


          KAY MAG. JUDGE.



         Before the court is a "Motion of Cimarex Energy Co. to Dismiss Complaint" which the court converted[1] to a Motion for Summary Judgment (R. #13) wherein Defendant, Cimarex Energy Co. ("Cimarex") moved to dismiss Plaintiffs' suit against it for lack of subject matter jurisdiction because Cimarex is not presently "in violation" of the Clean Water Act ("CWA").[2] In that motion, Cimarex also seeks to dismiss the instant suit because Plaintiffs have failed to state a claim upon which relief can be granted under the CWA, the Louisiana Environmental Quality Act ("LEQA"), the Louisiana Tree Piracy Statutes and other state-law based claims sought in the Complaint.


         Plaintiffs, David R. Daigle and Mary Ann Daigle, own the surface of approximately 115 acres of property in Allen Parish.[3] Defendants, Cimarex and Drive Energy, Inc. have conducted, directed, and participated in oil and gas exploration and production activities as lessees, and assignees in the Bunch Creek Oil and Gas Field on the Daigles' property.[4]The Defendants' activities include the construction and operation of oil and gas facilities, including but not limited to, wells, pits, sumps, pipelines, flowlines, tank batteries, heater treaters, wellheads and measuring facilities.[5]

         The land that is involved in this lawsuit is a 40-acre tract previously owned by Tyrrell L. Garth.[6] On October 5, 2000, mineral lessor, Tyrrell L. Garth, entered into a 115-acre mineral lease (the "Garth Lease") with lessee Kash Oil & Gas, Inc. ("Kash") which included the above-mentioned 40-acre tract.[7] On December 18, 2000, Mr. Garth sold and conveyed all rights to the 40 acres at issue to Plaintiffs, however, he retained all of the mineral and royalty interests.[8] The T.L. Garth #1 Well (the "Garth Well") was previously operated by Cimarex' predecessor-by-merger, Helmerich & Payne ("H&P") and by Cimarex at all times from March 23, 2001 through the sale by Cimarex of all of its interest in the Garth Well effective as of May 1, 2010.[9]

         On December 22, 2000, Kash assigned a 50% interest in the 2000 Oil and Gas lease to H&P.[10] On February 1, 2001, H&P entered into a Joint Operating agreement ("2001 Joint Operating Agreement").[11] The Daigles still own and use the 40-acre tract, plus an additional 90 acres of longleaf pine savannah ecosystem restoration property.[12]

         In 2001, H&P built a road and an earthen fluid pit on the property.[13] On February 23, 2001, H&P, as operator, obtained a permit to drill the Garth Well on the Garth Lease, [14]and in March H&P drilled the Garth Well. The Garth Well "reserve pit" was constructed by Davies Construction[15] but the pit was not lined with an impervious synthetic liner to prevent horizontal and vertical subsurface migration and seepage and to protect groundwater as required by the Louisiana Department of Natural Resources regulations.[16] The purpose of the reserve pit was to treat and store liquid wastes associated with the Garth Well.[17]

         At the time the Garth Well was drilled, H&P was aware that the usable groundwater aquifer in that region was 60' below the surface and could be threatened by the use of the unlined reserve pits, spills and/or failure to timely and completely restore the spill area.[18] H&P applied for a permit to dispose of the Garth Well Drilling wastes into the annulus of the well, but it was denied because the well had insufficient surface casing to isolate the underground source drinking water there.[19]

         On May 10, 2001, after the Garth Well was drilled, H&P hired a contractor to back fill the reserve pit and clean up the Garth Well location;[20] Plaintiffs allege this procedure was in violation of Louisiana Department of Natural Resources regulations.[21]

         On January 7, 2002, U.S. Fish and Wildlife Service confirmed via a letter to H&P environmental consultant, Tim Morton, that the Daigles' property and surrounding areas are a suitable habitat for the endangered red cockaded woodpecker.[22]

         Subsequent to the closure of the earthen reserve pit at the Garth Well, no other pits were used in connection with Cimarex' operations at the Garth Well. Recompletion/workover operations at the Garth Well in July 2002, April 2003, December 2003, and July 2004 used the tanks of workover rigs; the July 2004 recompletion work utilized above-ground steel containers for produced water and completion fluids.[23]

         On July 12, 2002, H&P entered a "Contract of Release" ("2002 Release") with the Daigles.[24] The 2002 Release provides, in part, that "[w]hen the well is plugged and abandoned, lease road and gravel pad will be restored, within 6 months, as near as possible to original condition. Upon closure, soil parameters will meet L.D.N.R. 29-B criteria and/or criteria provided by governmental bodies having jurisdiction over the covered lands or operations."[25]

         On November 13, 2002, effective October 21, 2002, Cimarex succeeded H&P as operator of the Garth Well.[26]

         On July 29, 2004, the Garth Well was recompleted; on that same day Plaintiffs allege that an oilfield work truck overturned about 100 yards from the Garth Well and created a spill which allegedly caused a 1.8 acre dead tree area on the Daigles' property (hereinafter referred to as the "Dead Tree Area"). Plaintiffs allege that the truck was an agent of H&P; during this recompletion, 211 bbls of 9.6 ppg saltwater was "swabbed", i.e. circulated out from the Garth Well which had to be hauled off location.[27] Plaintiffs assert that this is the likely source of contamination found at the Dead Tree Area; Plaintiffs also assert that they were unaware of the damage to the trees until sometime after January 1, 2006.

         Sometime after July 1, 2005, Mr. Daigle observed an area on the 40-acre tract which caused him to investigate further.[28] Mr. Daigle hired Austin Arabie, an environmental consultant, to inspect and collect soil samples.[29] Shortly thereafter, Mr. Daigle learned from his neighbor, Jesse Ardoin, of an overturned vacuum truck at the 1.8 acre Dead Tree Area.[30] On August 5, 2005, Mr. Arabie inspected the property and collected soil samples for lab analysis with follow-up sampling performed on October 7, 2005. The results from Mr. Arabie's inspection and lab results revealed a high concentration of calcium; the December 22, 2005, report indicated that the "contaminant of concern inhibiting the vegetative growth contains calcium and chloride."[31] Mr. Arabie concluded that "it is evident that a spill of material containing calcium and chloride and possibly other contaminants has occurred on the property."[32] The report also noted that "[m]osf longleaf pines in the impacted area are dead, and the remaining ones appear severely stressed or dying."[33]

         Mr. Daigle met with Cimarex representative/Production Manager, Rick White, on April 19, 2006, to inspect the spill site area. Mr. Daigle showed Mr. White the ruts where the truck had left the road on the west side as well as the ruts on the east side where the recovery truck made ruts removing the ditched truck.[34] On May 5, 2006, Mr. White wrote Mr.Daigle that "Cimarex will pay to remediate the damaged area, including timber, damage, if such damage is reasonably determined to have been caused by our operations with respect to the wells or 'ponding' from our lease road." Cimarex proposed to conduct additional soil sampling at its expense, but did not admit knowledge of, or responsibility for, the completion fluid spill.[35]

         On May 8, 2006, Cimarex hired Coastal Chemical to analyze the produced water from the Garth Well and nearby Kingery Estates Well. The analyses showed the presence of barium, sodium, calcium and chlorides which had also been reported in the soil and groundwater samples taken at the Garth Well and other locations on the Daigles' property.[36] On July 19, 2006, Cimarex environmental consultant CK Associates performed sampling at the Dead Tree Area and confirmed levels of calcium magnesium, and chlorides in excess of background.[37]

         Plaintiffs' expert, Mr. Arabie, performed certain tests in April 2008 at a location believed to be a former reserve pit site at the Garth Well. In September 25, 2008, Arabie Environmental Solutions issued a second report evaluating all test results performed to date; the report identified environmental damage to soil from LDR Statewide Order 29-B SAR and EC parameter soil exceedances in the area of the former and now closed Garth Well reserve pit.[38] The Report further identified environmental damage to groundwater at three sample locations and at the 1.8 acre Dead Tree spill site, 100 yards north of the Garth Well and 100 yards south of the Garth Well.[39]

         The Oil, Gas and Mineral Lease covering Cimarex' oil and gas operations at the Garth Well (the "Garth Lease") expired in February 2009.[40] Effective May 1, 2010, Cimarex sold all of its right, title and interest in the Garth Well to Kash and Tenexco.[41]

         On January 9, 2015, Mr. Garth assigned to Plaintiffs any environmental damage related litigation rights he may have not earlier conveyed (hereinafter referred to as the 2015 Assignments of Rights").[42] On May 1, 2015, Drive Energy, Inc. began to operate and continues to operate the Garth Well and related facilities.[43]

         The State court lawsuit

         On June 1, 2006, Plaintiffs sued in state court to force a cleanup of the property; Plaintiffs sued Cimarex, H&P, and Kash, as present and/or former operators of the Garth Well and Moncla Well Services, Inc., the drilling contractor on Cimarex' July 2004 recompletion of the Garth Well.[44] Plaintiffs alleged that Moncla "spilled completion chemicals" on the Daigles' property during the recompletion which resulted in dead or dying trees.[45]

         On January 10, 2010, after Moncla was dismissed by Plaintiffs, Plaintiffs filed a First Amending and Supplemental Petition for Damages adding Calcasieu Rentals, Inc. ("CRI") as a defendant asserting the same claims they had against Moncla. In 2011, CRI filed a motion for summary judgment alleging that while it supplied saltwater disposal and vacuum trucks for the July 2004 Garth Well recompletion, none of its trucks spilled anything during the recompletion. On January 30, 2012, the court granted CRI's motion and dismissed CRI; Plaintiffs did not appeal the ruling. The only entity that supplied vacuum trucks during the July 2004 recompletion of the Garth Well was CRI.[46]

         In March 2012, Plaintiffs filed their Second Amended and Supplemental Petition for Damages and asserted claims against Cimarex based upon the Arabie September 2008 Report. Plaintiffs filed their Third Amending and Supplemental Petition for Damages on April 1, 2015, asserting claims against Cimarex based upon an alleged April 29, 2002 spill at the Garth Well; Plaintiffs also asserted claims against Cimarex based upon the "Garth Well Area" contamination.

         On August 17, 2016, Plaintiffs provided a letter to Cimarex as notice of their intent to sue Cimarex under the citizen's suit provisions of the Louisiana Environmental Quality Act ("LEQA"). Also in August 2016, Plaintiffs attempted to fax-file their Fourth Amending and Supplemental Petition ("Fourth Petition") to assert their claims under LEQA against Cimerax.[47] The Allen Parish Judge dismissed Plaintiffs' Fourth Petition because Plaintiffs failed to meet their burden of proving that the Fourth Petition was properly fax-filed.[48]

         Plaintiffs allege that the environmental damage at the Garth Well area is the result of (1) the improper construction and closure of the reserve pit: (2) reported and non-reported known spills; (3) contamination events that may have occurred at any or all of the five recompletion workovers[49] and; (4) other oilfield activities of the Defendants unknown to the Daigles after diligent research and discovery performed to date.[50]


         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.[51] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[52] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[53] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim."[54] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[55] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[56] There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[57] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[58] The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.[59]


         Cimarex asserts that (1) this court lacks subject matter jurisdiction over Plaintiffs' claims, (2) Plaintiffs fail to state a claim against it upon which relief can be granted under the CWA, (3) the Plaintiffs' claims under the CWA, LEQA, Tree Piracy Statues and Post-2006 Tort claims are time barred, (4) Plaintiffs can assert no claims under the Garth Lease, (5) Plaintiffs' claims under the "2002 Surface Use Agreement" are premature, (6) Plaintiffs have no claim for unjust enrichment i.e., recovery of civil fruits, and (7) collateral estoppel as to Plaintiffs' Dead Tree Area claim.

         Subject matter jurisdiction

         Cimarex maintains that the Plaintiffs' suit under the CWA should be dismissed for lack of subject matter jurisdiction because: (1) the alleged misdeeds of Cimarex during its operation for the Garth Well constitute wholly past supposed violations of the CWA which are outside the jurisdictional grant of the citizen's suit portion of that Act; and (2) the Complaint, as amended, alleges only the residual effect of supposed past discharges which are legally insufficient to give rise to jurisdiction under the CWA. Defendant further asserts that the undisputed facts alleged preclude the Daigles from alleging the jurisdictional prerequisite of a continuous or intermittent violation of the CWA.

         Cimarex maintains that a past violation, or the residual effects thereof cannot support a CWA citizen's suit. Cimarex remarks that Plaintiffs' Complaint, as amended, only alleges discrete instances of claimed discharges which supposedly occurred at or near the Garth Well in May, 2001, April 29, 2002 and July 2004. Thus, Plaintiffs' suit is in essence, based on the residual and possibly, continuing effects of long-past discharges; thus, there can be no subject matter jurisdiction under the relevant jurisprudence.

         Cimarex relies on several cases including Hamker v. Diamond Shamrock Chemical Co., [60] wherein the plaintiffs sued under the CWA over a leak in an oil pipeline. The leak was a one-time event that lasted about two weeks. The district court dismissed the suit for lack of subject matter jurisdiction and the Fifth Circuit affirmed holding that (1) § 505(a)'s language allows for prospective relief only; and (2) the statute does not permit citizens' suits for past violations, only current ongoing violations as of the filing of the suit. In other words, the statute does not reach wholly past discharges. The Fifth Circuit further concluded that allegations of residual, or continuing effects from a concluded discharge do not support a citizens' suit under § 505(a).

         In Gwaltney of Smithfield v. Chesapeake Bay Found., [61] the Supreme Court agreed that § 505(a) authorized only prospective relief and did not confer jurisdiction over wholly past violations. Instead, § 505(a)'s requirement that a defendant "be in violation" "is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation-that is, a reasonable likelihood that a past polluter will continue to pollute in the future."[62] Cimarex also cites numerous other cases which hold that absent a continuing violation, there cannot be a citizen's suit under the CWA.[63]

         Plaintiffs maintain that their CWA claims of residual contamination remain viable because they meet both prongs under Gwaltney. Gwaltney establishes two ways a plaintiff can demonstrate a violation through defendant's intermittent violations: "either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations."[64]

         Plaintiffs argue that the CWA claims relate back to the original petition filed in state court on June 1, 2006 and there were ongoing violations of the CWA after the petition was filed. Plaintiffs also remark that recent photos of oilfield waste leaking beyond the protective "berm" and related sampling report shows that the leaks continue to this day.[65]

         Plaintiffs then assert that even if the first prong fails, the CWA claim will survive because the Daigles satisfy the "continuing violation" requirement - whether "a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations." Plaintiffs again refer the court to recent photos and environmental sampling at the site to show the likelihood of recurrence in "intermittent" and "sporadic" violations.[66] Plaintiffs concede that it is the current operator who is causing the most recent leaks, but then asserts that Cimarex is solidarily liable because contamination is commingled with multiple defendants.[67]

         Cimarex argues that in order to "be in violation" of the CWA, the citizen-plaintiff must allege a state of either continuous or intermittent violation - that is, a reasonable likelihood that a past polluter will continue to pollute in the future.[68] Cimarex argues that Plaintiffs' allegation that Cimarex continues to violate is conclusory and unspecified which necessarily fails in light of the Complaint's specific assertions of only three, wholly past, supposed violations of the CWA by Cimarex. The court finds that it is very significant that the Complaint expressly acknowledges that Cimarex ceased all operations at the Garth Well in 2009 and has not done anything at the Garth Well at any time since. Also, Cimarex sold all of its interest in the Garth Well effective May 2010.

         Plaintiffs next argue that even though Cimarex is a prior operator, case law establishes that former operators are viable defendants. Plaintiffs rely on PennEnvironment v. PPG, Indus., Inc., [69] wherein the district court refused to dismiss the defendants because they had sufficient control to address contaminated discharges and to remediate the site. Plaintiffs suggest that in the instant suit, Cimarex has control to address contaminated discharges and perform a proper remediation.

         In Brossman Sales, Inc. v. Broderick, [70] Plaintiffs who were purchasers of a mobile home park sued certain vendors under the CWA for allegedly depositing construction debris on areas designated as wetlands. Relying on Gwaltney, the district court dismissed defendants reasoning that "[s]ince the defendants in this case have relinquished ownership of the source of the alleged violation and no longer have the control to abate it, the statute is likewise inapplicable to them."[71]

         In Friends of the Sakonnet v. Dutra, [72] suit was brought against former owners of a failed private septic system which leaked sewerage into the Sakonnet River without the appropriate permit. Defendants argued under Gwaltney that there could be no liability imposed "because any violation for which they are responsible is in the past."[73] In dismissing the CWA claims against the former owners, the district court held that the question is "whether a person who has violated the Clean Water Act may avoid liability by relinquishing ownership of the polluting source although the violation continues.... The phrase "any person . . . who is alleged to be in violation" is clearly directed to a present violation by the person against whom the action is brought."[74] Because the former owners were not presently violating the Act, they were dismissed.

         Plaintiffs rely on Beartooth Alliance v. Crown Butte Mines, [75] and further asserts that "a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations."[76] In Beartooth, the court denied defendants' motion for summary judgment finding that there was evidence that the defendants exercised some amount of control over the site at periods after the suit was filed.

         As noted by Cimarex, Plaintiffs bear the burden of establishing subject matter jurisdiction by a preponderance of the evidence. There is no reasonable likelihood that a past polluter such as Cimarex will continue to pollute in the future. Thus, the court finds that the CWA is inapplicable to impose liability upon Cimarex and will dismiss Plaintiff's claims under the CWA.

         Prescription under the CWA, LEQA, Tree Piracy Statutes and Post-2006 Tort Claims[77]

         Cimarex maintains that Plaintiffs' claims under the CWA, the LEQA, the Tree Piracy statutes and post-2006 tort claims in the instant action are time-barred. Plaintiffs allege that Cimarex violated the CWA with respect to the reserve pit utilized in the 2001 initial completion of the Garth Well, in April 2002 due to a leak, and in July 2004 when a vacuum truck allegedly overturned and spilled completion fluids. Cimarex maintains that as to timeliness, the suit is governed by 28 U.S.C. § 2462[78] which provides that the suit will prescribe five (5) years from the date the claim first accrued. Because the last alleged spill and/or leak occurred in July 2004, and the instant suit was filed November 20, 2017, Cimarex maintains that Plaintiffs' claims are clearly prescribed.

         Plaintiffs, on the other hand, argue that the prescriptive periods were interrupted and thus have not prescribed. Plaintiffs further assert that the five year prescriptive period relied upon by Cimarex does not apply to the CWA and LEQA. Plaintiffs also assert that Cimarex does not argue that the pre-2006 tort and contract claims are prescribed, and therefore these claims should not be dismissed.

         Plaintiffs argue that the state court suit filed on June 1, 2006, interrupted prescription and that prescription runs anew from the date of dismissal without prejudice on January 25, 2017.[79] Plaintiffs remark that the state court suit was involuntarily dismissed without prejudice. Plaintiffs maintain that because the instant suit was filed January 10, 2018 all of the Plaintiffs' claims-in tort, contract, Tree Piracy, CWA and LEQA-are timely.

         Plaintiffs further assert that because there is a continuing violation, the CWA claims are not expired because Plaintiffs are seeking injunctive relief under section 505(a) which authorizes private citizens to commence a civil action for injunctive relief.[80] Plaintiffs also assert that because they alleged in their Complaint, a continuing violation, the CWA claims are not barred by a statute of limitations. Plaintiffs further assert that because they are not seeking a civil fine, penalty, or forfeiture, pecuniary or otherwise under the CWA, but only injunctive relief, the five-year limitations period under Section 2462 does not apply.

         Cimarex argues that because the state court filed petition did not assert claims under the CWA, there is no interruption of prescription as to that claim. As to the LEQA claim, Cimarex informs the court that in August 2016, Plaintiffs filed their Fourth Supplemental and Amending Petition in the Allen Parish lawsuit and alleged claims under LEQA. On December 15, 2016, the supplemental and amending petition was dismissed because the Plaintiffs failed to prove that the petition was properly fax-filed, thus it had no legal force or effect (Louisiana Revised Statute 13:850.C) and thus could not interrupt prescription.

         Plaintiffs rely on Jackson Court Condominiums, Inc. v. City of New Orleans, [81]which held that a plaintiff's prior state court suit interrupted the running of prescription as to plaintiff's subsequent suit in federal court under 42 U.S.C. § 1983 where both suits were based on the same operative facts. However, Cimarex argues that because Plaintiffs could not have asserted a CWA claim in the state court, since federal courts have exclusive jurisdiction over CWA suits, Plaintiffs' reliance on the Jackson Court case is misplaced.

         In Ford v. Stone, [82] the court held that because the state court petition did not assert any federal claims, then neither plaintiff's petition nor his state court presentations was sufficient to interrupt prescription. In Ford, the plaintiff argued that his filing of a lawsuit in state court arising out of the same basic facts as the suit filed in federal court interrupted prescription. The court reasoned that not only was there a different defendant in the state lawsuit, but also the federal complaint specifically asserted federal claims, as well as state law claims. However, plaintiff chose to pursue state law claims in the state lawsuit even though he orally made a reservation of federal claims in the state court trial. The court concluded that defendants received no formal notice of the federal claims until well after the passage of the one-year prescriptive period noting that

[t]he fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely and to protect him from stale claims and from loss or non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period. . .[83]

         Also noted by Cimarex is the undisputed fact that there are mandatory pre-suit notice requirements under the CWA and LEQA which Plaintiffs failed to meet. Both the CWA[84] and the LEQA[85] prohibit the commencement of a citizen's suit under these Acts until the plaintiff has provided written notice of intent to sue and the statutory waiting periods (60 days under the CWA and 30 days as to LEQA) have expired after the prospective defendant's receipt of the written notice. Said notice requirements are a mandatory condition precedent to commencing suit. It is undisputed that Plaintiffs provided these pre-suit notices on August 15, 2017, thus even if they had been properly asserted in the state court suit (the CWA was not asserted, nor could it have been asserted, and the LEQA was not legally filed because of failure to follow proper procedure), the prerequisite notice requirements were not met.

         Plaintiffs inform the court that they are not seeking civil fines, penalties or forfeiture under the CWA. Because Cimarex argued this point so fervently, we could only infer that the complaint must have been interpreted by Cimarex to assert these particular claims. Thus, out of an abundance of caution we choose to address the prescription issue.

         To the extent that the complaint asserts claims for civil penalties, fines and forfeitures under the CWA, the court finds that Plaintiffs' state court petition, as amended, which expressly stated that it did not assert any federal claims, [86] did not interrupt prescription as to Plaintiffs' CWA claim in this lawsuit and these claims are prescribed. With regard to Plaintiffs' claims for injunctive relief under the CWA, even though they would not be prescribed, due to conclusions hereinabove, that the CWA is not applicable, all claims pursuant to the CWA will be dismissed.

         Plaintiffs maintain that the claims brought pursuant to the LEQA are imprescriptible based on the holding in Salvation Army v. Union Pac. R.R., Inc.[87] Cimarex requests that the court reject the holding in Salvation Army which held that the one year prescriptive period for private tort claims did not apply to a suit by private plaintiffs under the LEQA. The court in Salvation Army reasoned that suits for LEQA claims pertain to fundamentally-different law matter; the court's best Erie guess was that the one-year prescriptive period for tort actions was inapplicable.[88] The court noted that claims under LEQA are less like a private tort and more like a public law claim. The court recognized that one Louisiana appellate court analogized the citizen suit cause of action under LEQA to a tort cause of action and concluded in dicta that the LEQA citizen suit claim would be prescribed under the one-year prescription period applicable to torts.[89] The appellate court relied on a law review article authored by Professor K. Murchison which "characterized the suits provision of the Act as arguably creating a new tort."[90]

         The Report and Recommendation adopted by the District Judge noted that the parties had not cited, nor had the court found any authority in either the Louisiana Supreme Court, the Louisiana constitution, or the states' statutes to support the principle that the LEQA statute had created a new tort and thus was subject to a one-year prescriptive period.

         Cimarex argues that the district court in Salvation Army ignored the express language of LEQA which allows any adversely affected person to file suit under Louisiana Revised Statute 30:2026 to recover actual damages, injunctive relief and attorneys' fees.

         The court notes that the statute further provides for civil penalties for each day of the continued noncompliance. There are two elements that must be established: (1) violation of the Environmental Quality Act, plus (2) a causal relationship between the violation and the "actual damages" suffered by the plaintiff.[91] In their Complaint, Plaintiffs are seeking "damages for the evaluation, cleanup, and remediation of contamination" and "restoration of any aquifers damaged by the pollution."[92] In their prayer, Plaintiffs seek compensatory damages, punitive damages, costs to restore the property, damages for diminution in property value, funds to conduct an environmental assessment of the property, damages for annoyance, discomfort and inconvenience, and injunctive relief for remediation and restoration.[93]

         Cimarex suggests that the court follow the Louisiana Supreme Court reasoning in La. Dept. of Transp. & Dev. v. Kansas City Southern Railway Co., [94] which held that "[l]ike conventional tort cases, environmental law statutory remedies involve claims to recover damages for harm caused by a defendant's acts." Louisiana Civil Code article 3493 states that: "When damage is caused to immovable property, the one year prescription [for tort claims under Louisiana Civil Code article 3492] commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage."

         The court agrees with Cimarex that claims brought pursuant to LEQA to recover damages in this lawsuit are akin to a tort based claim and are therefore subject to a one year prescriptive period pursuant to Louisiana Civil Code articles 3492 and 3493.[95] As noted by Cimarex, the Arabie reports dated December 2005 and September 2008 purported to detail the damage to the areas of Plaintiffs' property and attributed that damage to Cimarex's oil and gas operations at the Garth Well. The court finds the Arabie reports to be sufficient to put Plaintiffs on notice of the alleged damages which would mean that Plaintiff's tort-based claims pursuant to LEQA are prescribed.

         Post-2006 tort claims

         As to Plaintiffs' post-2006 tort claims, Cimarex maintains that the Tree-Piracy claim was never raised in the Allen Parish lawsuit, and the remaining tort claims which were asserted in the Plaintiffs' Second and Third Supplemental and Amending Petitions, filed in 2012 and 2015, had prescribed long before they were asserted in state court.

         The Tree Piracy Statute found in Louisiana Revised Statute 3:4278.1 provides in pertinent part, the following:

A. (1) It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
G. Notwithstanding any other provision of law to the contrary, a civil action pursuant to provisions of this Section shall be subject to a liberative prescriptive period of five years.

         Cimarex maintains that Plaintiffs' claims under this statute are prescribed on the face of the complaint due to the five year prescriptive period. The five year prescriptive period was added via Act 226 in 2011.[96] Cimarex argues that even if the amendment was not retroactive in effect, Plaintiffs' claims under the statute would have prescribed no later than August 31, 2016. Cimarex relies on the Plaintiffs' knowledge of the damage to the trees as of July 2005 and 2006. Cimarex informs the court that Plaintiffs did not assert any Tree-Piracy claims in the state court lawsuit.[97] Plaintiffs have not disputed this.

         Plaintiffs had knowledge of the damage to the trees as of July 2005 and 2006; Plaintiffs were aware of the damage to the trees and blamed Cimarex' July 2004 recompletion of the Garth Well as the purported cause of the dead trees. Plaintiffs' claims under the Tree-Piracy statute filed in this court in January 2017 are clearly prescribed.

         Relation back theory

         As to the post-2006 tort claims, Cimarex informs the court that Plaintiffs asserted these claims in the state court lawsuit in their Second and Third Supplemental and Amending Petitions which were filed in March 2012 and April 2015, respectively. Plaintiffs had knowledge of the damage as early as 2006 and as late as 2008 which would indicate that these claims prescribed long before they were alleged in the state lawsuit. Plaintiffs were put on notice of the tort claims from the September 25, 2008, Arabie report and from Jesse Ardoin's deposition taken on October 18, 2007.[98] Plaintiffs asserted these claims in the state lawsuit in March 2012 (second supplemental and amending petition)[99] and April 1, 2015 (third supplemental and amending petition).[100]

         Plaintiffs argue that the second and third petitions filed in the state lawsuit relate back to the original petition filed in 2006 and therefore are not prescribed. Cimarex maintains that because the claims asserted in 2012 and 2015 were supplemental and not amending, relation back under Code of Civil Procedure article 1153 does not apply to save these claims.[101] In TCC Contractors v. Hosp. Serv. Dist. No.3, 53 So.3d 1103, 1113 (La.App. 1st Cir. 12/8/10), the court stated that

A supplemental petition may therefore be used to add a new cause of action related factually to a previously existing cause of action, even though the new claim does not, properly speaking, arise out of the original cause of action. The new supplemental cause of action, however, does not relate back in time to the date of the original petition; prescription of the, new cause of action would generally be held to be interrupted as of the date of filing of the supplemental petition.

         Cimarex argues that Plaintiffs' second and third supplemental and amending petitions are clearly "supplemental" and therefore do not relate back to the June 1, 2006, originally filed petition. The original petition sought damages against defendants, Cimarex, Moncla, H&P and Kash. The petition alleged that in conjunction with the recompletion, Moncla, the agent for H&P and Kash, [102] spilled completion chemicals in an area about 100 yards from the Garth Well caused by an overturned tank/vacuum truck. The spilled completion fluids allegedly caused the trees to die in an area about 100 yards from the Garth Well (the Dead Tree Area).

         The supplemental petition must assert a new cause of action that is susceptible of being sued upon or which arose after the filing of the original petition.[103] Cimarex maintains that the claims asserted in the supplemental petitions as to the Garth Well area spills, the former Garth Well reserve pit, and the April 29, 2002 purported spill were not plainly "exigible" as of the filing of the Original Petition in June 2006. Cimarex argues that Plaintiffs had no knowledge until October 2007, with regards to the April 29, 2002 purported spill; Plaintiffs became aware of the Garth Well area spills on or about October 18, 2007, at the deposition of Plaintiffs' neighbor, Jesse Ardoin; Plaintiffs became aware of the alleged contamination at the former Garth Well reserve pit site on September 25, 2008. Cimarex also asserts that the supplemental petitions are not factually related to the Plaintiffs' original petition. In other words, the Plaintiffs' causes of action in the second and third petitions have the characteristics of a new lawsuit rather than an amended one.[104]

         The second petition relies upon the September 25, 2008 report which alleges widespread contamination across the surface of the property at the Garth Well due to failure to perform use and maintenance of Plaintiffs' property in a manner consistent with prudent industry practices.[105] The third petition asserts that the Garth Well reserve pit was not constructed properly, causing damage, and that the closure of the Garth Well reserve pit was not performed properly. This petition also complains of the defendants' failure to timely pump out the product storage tank at the Garth Well, causing overfill and spillage on the ground.[106]

         The court agrees with Cimarex that Plaintiffs' tort claims as to the Garth Well former reserve pit, the April 29, 2002 purported spill and the Garth Well area spill are new claims and thus are clearly supplemental in nature. Thus, these claims do not relate back to the original petition.

         Did prescription run anew from the date of dismissal?

         Plaintiffs maintain that Louisiana law allows prescription to begin to run anew from the date of dismissal without prejudice of the state court lawsuit on January 25, 2017, [107] since the dismissal interrupts prescription.[108]

         Plaintiffs rely on Louisiana Civil Code article 3462 which provides as follows:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

         Plaintiffs further rely on Louisiana Civil Code article 3463 which provides as follows:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

         In the state court suit, Plaintiffs' Motion for the Entry of a Proposed Judgment on Defendants' Motion to Dismiss and Re-urged Exceptions was denied; the court signed a related "judgment/opinion" on January 25, 2017, [109] and involuntarily dismissed Plaintiffs' suit without prejudice; Plaintiffs filed the instant suit on January 10, 2018.Thus, Plaintiffs argue that the Post-2006 tort claims in the instant suit are not prescribed because they run anew from the date of dismissal.[110]

         This court fails to understand how Plaintiffs' post-2006 tort claims that were clearly prescribed when filed in state court could somehow be resurrected via the January 25 2017 Judgment. The January 25, 2017 Judgment rendered pursuant to "Plaintiffs' Motion for the Entry of a Proposed Judgment on Defendants' Motion to Dismiss and re-urged Exceptions"[111] was denied at Plaintiffs' cost. According to Cimarex, Plaintiffs' motion was an attempt to substantively modify, or amend the state court's December 15, 2016 Judgment on a Motion to Dismiss and Re-Urged Exceptions.

         The December 15, 2016 Judgment dismissed without prejudice[112] Plaintiff's Fourth Amending and Supplemental Petition as untimely under the extended deadline for filing curative amendments; Plaintiffs fax-filed this petition but the court dismissed it because Plaintiffs failed to prove that they complied with Louisiana Revised Statute 13:850.B.[113]

         The state court had previously dismissed without prejudice, Plaintiffs Second and Third Amending Petitions in a January 30, 2015 and May 2, 2016 Judgment On Exceptions due to failure to cure the problems as to vagueness, ambiguity and noncompliance previously communicated to Plaintiffs.[114] As noted by Cimarex, Plaintiffs' claims under the CWA, LEQA and Tree Piracy statute were not dismissed, because they were never properly brought in the state court lawsuit. The post-2006 tort claims were already prescribed as analyzed herein above. Accordingly, Plaintiffs' arguments that the prescriptive period ran anew with the January 25, 2017 Judgment lacks merit.

         Collateral Estoppel

         Cimarex maintains that any claim for damages to the Dead Tree Area caused by the alleged spill of completion fluids during the July 2004 recompletion of the Garth Well is barred by estoppel. In their original complaint, Plaintiffs asserted that the operators of the Garth Well, including Cimarex, were responsible for the damage to a 1.8 acre Dead Tree Area caused by an overturned vacuum truck.[115] Plaintiffs initially named Defendant, Moncla Well Service, the drilling contractor hired for the recompletion project. Plaintiffs dismissed Moncla without prejudice from the state court lawsuit. In January 2010 after dismissing Moncla, Plaintiffs named Calcasieu Rentals, Inc. ("CRI") as the alleged offender; CRI was the only entity supplying salt water disposal and vacuum trucks for the Garth Well recompletion.[116] Subsequently, CRI filed a motion for summary judgment asserting that there was no genuine issue of fact that none of its trucks spilled anything during the course of the work.[117] Plaintiffs opposed the motion and after a hearing on January 30, 2012, the Allen Parish state court granted CRI's motion dismissing CRI; Plaintiffs did not appeal the Judgment.

         In the instant lawsuit, Plaintiffs allege that during the July 2004 recompletion of the Garth Well, a vacuum truck overturned and spilled saltwater on Plaintiffs' property, causing the trees to die. Plaintiffs then allege that Cimarex is legally responsible for the overturned vacuum truck.

         Cimarex seeks to dismiss this claim based on res judicata and relies on Louisiana Revised Statute 13:4231(3) which provides the doctrine of collateral estoppel or issue preclusion as follows:

A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them with respect to any issue actually litigated and determined if its determination was essential to that judgment.

         The Restatement (Second) of Judgments, [118] provides as follows:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim.

         Under Louisiana Revised Statute 13:4231, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action.[119] The ...

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