United States District Court, W.D. Louisiana, Alexandria Division
PEREZ-MONTES MAG. JUDGE
the Court is a motion to dismiss (Doc. 14) filed by Defendant
Hess Corporation ("Hess"), a motion to dismiss
(Doc. 16) filed by Defendants Chisholm Trail Ventures, L.P.
("Chisholm"), BEPCO, L.P. ("BEPCO"), and
BOPCO, LLC (f/k/a BOPCO, L.P.) ("BOPCO"), a report
and recommendation (Doc. 56), an objection (Doc. 57) filed by
Hess, an objection (Doc. 58) filed by Chisholm, BEPCO, and
BOPCO, a reply to Defendants' objections (Doc. 59) filed
by Plaintiff Kenneth James Guilbeau ("Guilbeau"),
an opposition to Defendants' motions to dismiss (Doc. 65)
filed by Guilbeau, a reply (Doc. 66) by Hess, and a reply
(Doc. 67) filed by Chisholm, BEPCO, and BOPCO. For the
following reasons, the Court ADOPTS the result but not the
balance of the report and recommendation (Doc. 56), finds
that it must ABSTAIN from further consideration of this case,
DENIES AS MOOT the motions to dismiss (Docs. 14 & 16),
and REMANDS the matter to the 19th Judicial District Court
for the Parish of East Baton Rouge.
FACTS & PROCEDURAL HISTORY
an oil and gas legacy suit in which a property owner is
seeking an injunction requiring Defendants, who previously
conducted oil and gas activities on or around his land, to
remediate alleged present-day contamination caused by those
owns property located in the Eola Oil & Gas Field in
Avoyelles Parish, Louisiana. He alleges that Hess drilled and
operated numerous oil and gas wells on his property, which
included the construction and use of unlined earthen pits
that have never been closed or have not been closed in
conformance with state environmental laws and regulations,
particularly 43 La. Admin. Code Pt XIX, § 101 et seq
("Statewide Order 29-B"). Guilbeau further alleges
that Chisholm, BEPCO, and BOPCO drilled and operated numerous
oil and gas wells on adjacent property that caused
contamination of his property in violation of Statewide Order
29-B, among other regulations and state
letter dated August 31, 2016, Guilbeau provided the
Commissioner of the Louisiana Department of Natural
Resources, Office of Conservation ("commissioner"),
with formal notice of those alleged violations. He stated that if
the commissioner did not file suit under La. Rev. Stat.
§ 30:14 within ten days, then he would sue the
responsible parties for injunctive relief pursuant to La.
Rev. Stat. § 30:16. In a subsequent letter to the
commissioner dated September 27, 2016, Guilbeau reiterated
his intention to file suit if the commissioner did
The commissioner ultimately failed to file suit.
filed suit in the 19th Judicial District Court for the Parish
of East Baton Rouge on September 15, 2017. Hess removed the
suit on October 23, 2017, on the basis of diversity
jurisdiction. On November 10, 2017, Guilbeau filed a
motion to remand arguing that the State of Louisiana was the
real party in interest in this action. The Magistrate
Judge issued a report and recommendation determining that the
motion to remand should be denied,  which the Court
November 20, 2017, Hess filed a Rule 12(b)(6) motion to
dismiss. Chisholm, BEPCO, and BOPCO also filed a
separate Rule 12(b)(b) motion to dismiss on the same
day. The Magistrate Judge issued a report and
recommendation on January 4, 2019, recommending that both
motions to dismiss be denied.
LAW & ANALYSIS
Standard of Review
survive a Rule 12(b)(6) motion to dismiss the plaintiff must
plead enough facts to "state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. (citation omitted). All well-pleaded facts shall
be deemed as true and all reasonable inferences must be drawn
in the plaintiffs favor. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citations
omitted). Nonetheless, Rule 12(b)(6) motions to dismiss are
viewed with disfavor and rarely granted. Test Masters
Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir.
Louisiana Natural Resources
argues that Guilbeau's claims should be dismissed with
prejudice because § 30:16 does not apply to past
violations. Guilbeau responds that he is seeking
remediation for present-day violations because the alleged
contamination constitutes an ongoing violation. Thus, the
dispositive issue is whether Guilbeau may use § 30:16 to
compel remediation of present-day contamination caused by
past oil and gas activities.
Statutory and Regulatory Framework
Constitution of Louisiana provides that:
The natural resources of the state, including air and water,
and the healthful, scenic, historic, and esthetic quality of
the environment shall be protected, conserved, and
replenished insofar as possible and consistent with the
health, safety, and welfare of the people. The legislature
shall enact laws to implement this policy.
La. Const. Ann. art. IX, § 1. The legislature explained
that this provision requires it to "set forth procedures
to ensure that damage to the environment is remediated to a
standard that protects the public interest." La. Stat.
Ann. § 30:29.
Office of Conservation ("OOC"), which is directed
and controlled by the commissioner, has jurisdiction over the
"disposal of any waste product into the subsurface by
means of a disposal well and the regulation of all surface
and storage waste facilities incidental to oil and gas
exploration and production." La. Stat. Ann. § 30:1.
The OOC promulgated Statewide Order 29-B, which sets forth
specific requirements for the plugging and abandonment of
wells; operation and closure of oilfield pits; operation of
wells and related surface facilities; storage, treatment, and
disposal of non-hazardous waste; remediation of various
contaminants; and general operating requirements for oil and
gas facilities. 43 La. Admin. Code Pt XIX, § 101 et
seq; see also La. Stat. Ann. §
commissioner is required to bring suit "[w]henever it
appears that a person is violating or is threatening to
violate a law of this state with respect to the conservation
of oil or gas, or both, or a provision of this Chapter, or a
rule, regulation, or order made thereunder, ... to restrain
that person from continuing the violation or from carrying
out the threat." La. Stat. Ann. § 30:14. "In
this suit, the commissioner may obtain injunctions,
prohibitory and mandatory, including temporary restraining
orders and preliminary injunctions, as the facts warrant,
including, when appropriate, injunctions restraining a person
from moving or disposing of illegal oil, illegal gas, or an
illegal product." Id. The legislature also
created a mechanism through which an aggrieved property owner
can bring suit in place of the commissioner:
If the commissioner fails to bring suit within ten days to
restrain a violation as provided in R.S. 30:14, any person in
interest adversely affected by the violation who has notified
the commissioner in writing of the violation or threat
thereof and has requested the commissioner to sue, may bring
suit to prevent any or further violations, in the district
court of any parish in which the commissioner could have
brought suit. If the court holds that injunctive relief
should be granted, the commissioner shall be made a party and
shall be substituted for the person who brought the suit and
the injunction shall be issued as if the commissioner had at
all times been the complaining party.
La. Stat. Ann. § 30:16.
legislature acted to protect, conserve, and replenish the
environment when it created the OOC and provided it with the
authority to promulgate rules and regulations, which the OOC
exercised in promulgating Statewide Order 29-B.
Significantly, the legislature not only mandated that the
commissioner bring suit to enjoin violations of regulations
such as Statewide Order 29-B, but also allowed for persons
adversely affected by such violations to bring suit when the
commissioner fails to timely do so after having been given
appropriate notice. When an adversely affected person brings
a § 30:16 claim he/she is effectively acting in the
place of the commissioner.
plaintiff cannot directly receive relief under the statutory
scheme because whenever a suit is found to merit relief
"the commissioner shall be made a party and shall be
substituted for the person who brought the suit and the
injunction shall be issued as if the commissioner had at all
times been the complaining party." La. Stat. Ann. §
30:16. In essence, the legislature created a statutory scheme
whereby property owners who have satisfied the necessary
requirements can initiate administrative enforcement suits.
The Emergence of § 30:16 Claims for Past
Violations However, the use of § 30:16 claims for
past violations is a relatively recent development.
emergence of such § 30:16 claims dovetails with two
landmark Louisiana Supreme Court cases which severely
curtailed the legal avenues available to oil and gas legacy
plaintiffs. In 2010, the Louisiana Supreme Court held that
"the deposit and storage of oilfield wastes into unlined
pits which conduct terminated when the pits were closed [and
any] dissolution of this contamination" does not give
rise to a continuing tort. Marin v. Exxon Mobil
Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234, 255. The
following year, the Louisiana Supreme Court established the
subsequent purchaser doctrine, which provides that:
an owner of property has no right or actual interest in
recovering from a third party for damage which was inflicted
on the property before his purchase, in the absence of an
assignment or subrogation of the rights belonging to the
owner of the property when the damage was inflicted.
Eagle Pipe & Supply, Inc. v. Amerada Hess Corp.,
2010-2267 (La. 10/25/11), 79 So.3d 246, 256- 57. Taken
together, the Marin and Eagle Pipe rulings
greatly limited the legal avenues available to oil and gas
legacy plaintiffs for historical violations.
years after those rulings, claims under § 30:16 for past
violations began appearing in the case law. In 2018, a sister
federal court produced the first written ruling in which
claims for past violations under § 30:16 are discussed.
See Watson v. Arkoma Dev., LLC, No. CV 17-1331, 2018
WL 1311208 (W.D. La. Feb. 5, 2018), report and
recommendation adopted. No. CV 17-1331, 2018 WL 1311177
(W.D. La. Mar. 13, 2018). Shortly thereafter, rulings
addressing § 30:16 claims for past violations
proliferated. See Louisiana ex rel. Tureau v. BEPCO,
L.P., No. CV 17-1198-SDD-EWD, 2018 WL 3581126 (M.D. La.
July 2, 2018), report and recommendation adopted sub nom.