Barasich v. Columbia Gulf Transmission Co.

• Decision Date: 28 September 2006
• Docket Number: Civil Action No. 05-4569.,Civil Action No. 05-4161.
• Citation: 467 F.Supp.2d 676
• Parties: George BARASICH, et al v. COLUMBIA GULF TRANSMISSION CO., et al.
• Court: U.S. District Court — Eastern District of Louisiana

467 F.Supp.2d 676

George BARASICH, et al v. COLUMBIA GULF TRANSMISSION CO., et al.

Civil Action No. 05-4161.

Civil Action No. 05-4569.

United States District Court, E.D. Louisiana.

September 28, 2006.

Conrad S.P. Williams, III, Charles Clarence Bourque, Jr., Christopher John St. Martin, Joseph G. Jevic, III, Melanie G. Lagarde; Michael X. St. Martin, St. Martin & Williams, Houma, LA, Amy Collins Fontenot, Val Patrick Exnicios, Liska, Exnicios & Nungesser, Gregory Pius Dileo, Attorney at Law, New Orleans, LA, for

George Barasich, Courtney Foxworth, Darin Tircuit, Ralph H. Long, Jr. Individually and as Representatives of all those Similarly Situated:

Thomas R. Blum, Thomas John Fischer, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, for Columbia Gulf Transmission Company.

Charles S. McCowan, Jr., Glenn Michael Farnet, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA for Koch Pipeline Company, L.P.

Robert John Young, III, Young, Richaud & Myers, LLC, Metairie, LA, for Gulf South Pipeline Company, LP.

Thomas M. McNamara, Johnson, Gray, McNamara, LLC, Lafayette, LA, Jill Thompson Losch, Johnson, Gray, McNamara, LLC, Covington, LA, Roy J. Rodney, Jr., Rodney & Etter, LLC, Lafayette, LA, for Shell Pipeline Company LP.

Joseph E. Leblanc, Jr., King, Leblanc & Bland, PLLC, Houston, TX, Elizabeth S. Wheeler, King, Leblanc & Bland, LLP, New Orleans, LA, for Tennessee Gas Pipeline Company.

Linda Sarradet Akchin, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for Transcontinental Gas Pipeline Corporation.

ORDER

VANCE, District Judge.

Before the Court is defendants' consolidated motion to dismiss the above captioned cases for nonjusticiability and for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). For the following reasons, the Court DENIES defendants' motion as to justiciability and GRANTS defendants' motion for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

I. BACKGROUND

In the fall of 2005, Hurricanes Katrina and Rita swept ashore in Louisiana; causing billions of dollars in economic losses, catastrophic destruction of property and substantial loss of life. This action seeks to hold oil and gas producing companies and/or oil and gas pipeline companies accountable for their activities that the plaintiffs allege contributed significantly to the storms' destructive impact in south Louisiana. The plaintiffs are nine residents of Jefferson, Orleans, and St. Bernard Parishes. They assert that defendants damaged the marshland that lies between Louisiana's habitable regions and the Gulf of Mexico, thereby weakening a protective barrier against hurricanes and exposing Louisianans to the prospect of greater harm from these storms. Plaintiffs seek to hold defendants liable for their activities in Louisiana's marshlands and recover for the damages these activities caused.

Initially, the plaintiffs filed two separate class actions, Barasich, et al v. Columbia Gulf Transmission Co., et al, No. 05-4161, and Villa, et al v. Columbia Gulf Transmission Co., et al, No. 05-4569, in this district. The Court consolidated these actions because they raise identical questions of law and fact. Plaintiffs have since filed a joint amended complaint proposing to proceed on behalf of the following class of individuals:

All persons and/or entities, who/which have sustained injuries, loss, and/or damages as a result of the enhanced impact of hurricane force winds and storm surges as a result of wetland loss attributable to oil and gas exploration and/or production activities and who/which were residents of, or owned properties and businesses in the following parishes west of the Louisiana/Mississippi state line: St. Bernard, Orleans, Plaquemines, Jefferson, St. Tammany Tangipahoa, Livingston, St. John the Baptist, St. Charles, Lafourche, Ascension, St. James, Assumption, Iberia, St. Martin, St. Mary and Terrebonne.

(R. Doc. 28). In both actions, plaintiffs named two substantially similar classes of defendants. The Barasich plaintiffs named a "Pipeline Class" and an "Exploration and Production Class," while the Villa plaintiffs named a "Pipeline Class" and an "Exploration Class." The Court, for the sake of convenience, will refer to these as the "pipeline class" and the "exploration class," respectively.¹

In their complaint, plaintiffs allege the following facts, taken as true for the purpose of this motion. The marshlands of coastal Louisiana provide protection to the rest of the state from the winds and storm surge brought by hurricanes. Over the course of many decades, defendants in the pipeline class have dredged canals through these marshlands for the purpose of installing pipelines for the transportation of petroleum products, and defendants in the exploration class have dredged canals to access and locate drill sites within the same marshlands. The activities of the pipeline and exploration classes continue through today, with nearly 10,000 miles of oil and gas pipelines crisscrossing the south Louisiana marshlands. The plaintiffs allege that as a result of the defendants' operations in south Louisiana, over one million acres of marshland have already been destroyed, and millions more essentially decimated, depriving inland communities, such as the City of New Orleans and St. Bernard Parish, of their natural protection from hurricane winds and accompanying storm surge.

More specifically, the plaintiffs allege that the defendants' dredging of the canals through south Louisiana has harmfully altered the hydrology of the adjacent marshes by allowing salt water intrusion into the marshlands, and creating spoil banks that limit the tidal and fresh water flows essential for distributing mineral sediments, inorganic sediments, and organic matter to those areas. The effect of the increased exposure to salt water and reduced exposure to fresh water is destruction of indigenous plant life. The plaintiffs allege that it is this marsh vegetation that traps sediment, builds organic soils, and stabilizes the soil with a dense mat of live roots. Without the marsh vegetation, plaintiffs allege that the root mat disappears, resulting in erosion of the exposed soil and the eventual conversion of the marshlands to open water.

Additionally, the plaintiffs allege that the defendants, through their knowing failure to maintain their canals, have allowed numerous breaks or cuts to develop and enlarge in the spoil banks, which has resulted further erosion and destruction of the marshlands. Plaintiffs allege that the water that flows through these canals and into the adjacent marshes has sufficient energy to erode or break up underlying sediment and organic material from beneath the root mat. According to the plaintiffs, the gradual destruction of the root mat leads to the death of indigenous plant life, which facilitates erosion and eventually conversion of the marshlands to open water.

In their Second Amended Complaint, filed jointly, the Barasich and Villa plaintiffs assert that as a direct result of defendants' actions in the Louisiana marshland, class members suffered personal injury and/or death, property damage, and the loss of the wetlands' value as storm protection. They base their claims for recovery on Louisiana Civil Code articles 667, 2315, and 2317, and ask for "all damages reasonable in the premises, including restoration." Defendants jointly Med a motion to dismiss plaintiffs' claims. Defendants assert that dismissal is warranted on two grounds: 1) the subject matter of plaintiffs' action is nonjusticiable because it concerns a political question, and 2) plaintiffs do not state a claim upon which relief may be granted because they cannot prove the requisite elements for recovery as a matter of law under any available theory.

II. LEGAL STANDARD

A. Motion to Dismiss Under 12(b)(6)

In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996); American Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991). The Court must re solve doubts as to the sufficiency of the claim in plaintiff's favor. Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir.2001). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir.1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994)).

III. DISCUSSION,

A. Justiciability

Defendants assert that the Court should dismiss the matter because it presents a nonjusticiable political question. Certain general principles apply in political question cases. Principally among them, "the doctrine must be cautiously invoked, and the mere fact that a case touches on the political process does not necessarily create a political question beyond courts' jurisdiction." In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d 370, 374 (D.N.J.2001) (citing Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927)). The Supreme Court recently restated the six independent tests courts use to identify the existence of a political question:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made;...