Meinders v. Johnson
| Decision Date | 02 November 2005 |
| Docket Number | No. 99,981.,99,981. |
| Citation | 134 P.3d 858,2006 OK CIV APP 35 |
| Parties | Don MEINDERS, Plaintiff/Appellee, v. Tim JOHNSON, Margie Walters, Arnold Johnson and Wynema Johnson, E.J. Tucker and Betty Jean Tucker, William Hodges and Geraldine Hodges, Defendants/Appellants, Jackson Ranches, Inc., Defendant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Garvin County, Oklahoma; Honorable Thomas S. Landrith, Judge.
AFFIRMED.
Frank D. Spiegelberg, John L. Randolph, Jr., Pray, Walker, Jackman, Williamson & Marlar, Tulsa, OK, for Appellants.
Allan DeVore, The DeVore Law Firm, P.C., Oklahoma City, OK, and Douglas E. Burns, Terry L. Stowers, Daniel W. Peyton, Burns & Stowers, P.C., Norman, OK, for Appellee.
Opinion by LARRY JOPLIN, Presiding Judge.
¶ 1 Defendants/Appellants Tim Johnson, Margie Walters, Arnold Johnson and Wynema Johnson, E.J. Tucker and Betty Jean Tucker, William Hodges and Geraldine Hodges (Defendants) seek review of the trial court's order granting a mandatory injunction, thereby directing Defendants to remedy surface and subsurface pollution from mineral exploration and production on property owned by Plaintiff/Appellee Don Meinders. In this proceeding, Defendants complain the trial court erred as a matter of both law and fact in granting injunctive relief, particularly invading the exclusive jurisdiction of the Oklahoma Corporation Commission to regulate, control and oversee remediation of sites polluted as a result of mineral exploration.
¶ 2 In 1972, Plaintiff acquired the surface and fractional mineral interests of property located in Garvin County, Oklahoma. Defendants were and are the working interest owners and/or operators of mineral leases covering Plaintiff's property as heirs of Frank Walters and successors in interest to the owners of the mineral leases covering Plaintiff's property.
¶ 3 At the time of Plaintiff's acquisition, the property — a part of the Robberson Field — had been subject to substantial mineral exploration under leases generally dating from the 1920s. As a result of the years of mineral exploration and production (some by Defendants' immediate predecessor in interest, Frank Walters), the property became dotted with wells, some producing, but also many abandoned, unplugged non-producing well bores, as well as pieces of abandoned equipment. The property also showed obvious signs of surface pollution from salt brine and mineral spills, as well as severe erosion.
¶ 4 In 1995, Plaintiff commenced the instant action against Defendants and others, as the owners of the working interests in the minerals underlying his surface estate, seeking damages for the surface and subsurface pollution of his property. Plaintiff also sought injunctive relief to compel the cleanup and remediation of the surface/subsurface pollution attributable to mineral operations.
¶ 5 Plaintiff settled with some of the defendants, received over four million dollars in settlement proceeds, and dismissed his claims against the defendants with whom he settled. Shortly before trial in October 2002, Plaintiff dismissed his damages' claims against the remaining Defendants, and the parties proceeded to trial on the claim for injunctive relief only.
¶ 6 At trial, Defendants stipulated to their ownership of the working interest in leases and wells on Plaintiff's property. For over six days, the parties presented expert and other testimony and evidence concerning the cause and extent of the pollution of the surface estate and the subsurface aquifers.
¶ 7 Plaintiff testified concerning the physical condition of the surface estate, and particularly establishing the presence of open, unplugged well bores, abandoned oil field equipment, and evidence of erosion-causing surface spills of salt brine and mineral products. Plaintiff testified that Walters had been observed pumping salt brine into one or more open well bores without a valid permit from the Corporation Commission, and Plaintiff attributed much of the damage to his surface estate and subsurface aquifers directly to pollution from mineral operations by Frank Walters, Defendants' immediate predecessor in interest.
¶ 8 Plaintiff offered the opinions of two experts. One of Plaintiff's experts opined that, based on his observations and testing, Walters' mineral operations caused and contributed to the surface and subsurface pollution of Plaintiff's property, and particularly, the salt water pollution of fresh and treatable underground aquifers due to the absence of adequate surface casing in producing and injection wells operated by Walters. A second expert attributed the salt water contamination of the groundwater to mineral operations, particularly surface spills and subsurface leaking well bores, not naturally occurring geological conditions as asserted by Defendants.
¶ 9 Defendants attributed most of the pollution and erosion of Plaintiff's property to the acts or omissions of prior owners and operators of the mineral leases covering Plaintiff's property. Defendants offered the records of the Soil Conservation Service from the mid-1960s (prior to Plaintiff's acquisition of the property), reflecting areas of severe surface pollution of Plaintiff's property from mineral operations, and ad valorem tax records reflecting assessment of areas of Plaintiff's property as "oil wasteland," taxed at a substantially lower rate than surrounding unaffected acreage.
¶ 10 Defendants also presented the testimony of three experts. One of Defendants' experts asserted the soils of Plaintiff's property did not have sufficient permeability to permit the migration of brine from surface spills to the subsurface aquifers. Based on their observations and testing, the Defendants' other experts attributed the salt water contamination of the groundwater to naturally occurring geologic processes.
¶ 11 Defendants called two Corporation Commission employees to testify. One attributed much of the surface erosion to the after-effects of salt water pits associated with older mineral exploration; testified that, while current Corporation Commission regulation required cemented surface casing below the base of treatable water, the regulations did not require older wells to be so cemented; and, that any request for further casing of old wells would presumably be preceded by a hearing before a Corporation Commission administrative hearing officer. The other testified that, from his review of the records, it appeared that the salt-water pollution of the subsurface aquifers was attributable to natural geologic processes, not oil and gas exploration.
¶ 12 The trial court also conducted a personal inspection of the property. By order filed October 1, 2003, the trial court held for Plaintiff on a determination that Defendants "created and/or maintained a continuing public nuisance on the subsisting oil and gas leases on Plaintiff's property."1 The trial court consequently directed Defendants to undertake "cleanup activities" on Plaintiff's property in phases.2 For future determination, the trial court reserved ruling on the questions of whether and/or to what extent "Defendants are entitled to a credit for settlement proceeds paid by the prior defendants in this litigation to Plaintiff and/or whether Plaintiff may be equitably required to pay for a portion of the cleanup activities at any time ordered by this Court." Defendants appeal.
¶ 13 In their first proposition, Defendants complain that Plaintiff did not meet his burden of proof to demonstrate, by clear and convincing evidence free of serious doubt, their creation and/or maintenance of any actionable public nuisance. Defendants here argue that, in granting injunctive relief, the trial court ignored the uncontroverted evidence and testimony of their experts to the effect that the sources of the "oil and saltwater contamination on [Plaintiff's] lands was occurring naturally, and had existed for many years prior to the first oil exploration in the area."
¶ 14 In their second, third and fourth propositions, Defendants assert Plaintiff did not demonstrate a basis for issuance of a mandatory injunction against them. In these propositions, Defendants argue the evidence and testimony demonstrated no basis for injunctive relief against them because the evidence showed: (1) Plaintiff had accepted a settlement for damages due to one minimal spill at a well operated by them; (2) all wells operated by them met the surface casing requirements at the time of completion in accord with Corporation Commission rule, O.A.C 165:10-3-4(c)3; (3) the physical impossibility of contamination of the subsurface aquifers by salt water migrating up any well bore due to insufficient hydrologic pressure; (4) no injection of salt water into a well bore by anyone other than Walters, and certainly not by any of the Defendants; and, (5) Plaintiff's unreasonable delay in seeking relief after his acquisition of the property, resulting in the inequitable imposition on them of liability for the acts and omissions of both their immediate and remote predecessors in interest.
¶ 15 In their fifth proposition, Defendants assert the trial court invaded the exclusive jurisdiction of the Oklahoma Corporation Commission to regulate, control and oversee remediation of sites polluted as a result of mineral exploration. See, 17 O.S. § 52(A)(1), (2)4; 27A O.S. § 1-3-101(E)5; 52 O.S. § 139.6 Here, Defendants argue that the general provisions of 50 O.S. §§ 1, et seq., defining "public nuisance" and authorizing nuisance remedies, cannot be read to "trump" the exclusive jurisdiction provisions 17 O.S. § 52(A), 27A O.S. § 1-3-101 and 52 O.S. § 139. In their sixth and final proposition, Defendants complain the trial...
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