Tureau v. BEPCO, L.P.

• Decision Date: 12 August 2019
• Docket Number: CIVIL ACT. NO. 1:18-cv-973
• Citation: 404 F.Supp.3d 993
• Parties: Justin Dale TUREAU v. BEPCO, L.P., et al.
• Court: U.S. District Court — Western District of Louisiana

404 F.Supp.3d 993

Justin Dale TUREAU

v.BEPCO, L.P., et al.

CIVIL ACT. NO. 1:18-cv-973

United States District Court, W.D. Louisiana, Alexandria Division.

Signed August 12, 2019

Donald T. Carmouche, Brian T. Carmouche, D. Adele Owen, John H. Carmouche, Ross J. Donnes, Todd J. Wimberley, Victor L. Marcello, William Robert Coenen, III, Talbot Carmouche & Marcello, Baton Rouge, LA, Jerold Edward Knoll, Knoll Law Firm, Marksville, LA, for Justin Dale Tureau.

Loulan Joseph Pitre, Jr., Aimee Williams Hebert, Jane Allison Jackson, Kelly Hart Pitre, Michael R. Phillips, Claire Elizabeth Juneau, Jeffrey Joseph Gelpi, Kean Miller, Elizabeth S. Wheeler, Erin Elizabeth Bambrick, Kelly Brechtel Becker, Robert B. McNeal, Liskow & Lewis, New Orleans, LA, Michael P. Cash, Liskow & Lewis, Houston, TX, Hunter A. Chauvin, Jamie D. Rhymes, Liskow & Lewis, Lafayette, LA, John C Funderburk, Louis V Gregoire, Jr., Richard Dean McConnell, Jr., Kean Miller, Baton Rouge, LA, for BEPCO LP, et al.

MEMORANDUM RULING

DEE D. DRELL, JUDGE

Before the Court is a motion to dismiss (Doc. 17) filed by Defendants Chevron U.S.A. Inc. ("Chevron") and Hess Corporation ("Hess"), a motion to dismiss (Doc. 18) 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. 66), an objection (Doc. 67) filed by Chevron and Hess, an objection (Doc. 68) filed by Chisholm, BEPCO, and BOPCO, a reply to Defendants' objections (Doc. 69) filed by Plaintiff Justin Dale Tureau ("Tureau"), an opposition to Defendants' motions to dismiss (Doc. 74) filed by Tureau, a reply (Doc. 75) filed by Chevron and Hess, and a reply (Doc. 76) 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. 66), finds that it must ABSTAIN from further consideration of this case, DENIES AS MOOT the motions to dismiss (Docs. 17 & 18), and REMANDS the matter to the 19th Judicial District Court for the Parish of East Baton Rouge.

I. FACTS & PROCEDURAL HISTORY

This is 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 historical activities.

Tureau owns property located in the Eola Oil & Gas Field in Avoyelles Parish, Louisiana.¹ He alleges that Chevron and 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").² Tureau 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 statutes.³

In a letter dated August 31, 2016, Tureau provided the Commissioner of the Louisiana Department of Natural Resources, Office of Conservation ("commissioner"), with formal notice of those alleged violations.⁴ 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. § 30:16.⁵ In a subsequent letter to the commissioner dated September 27, 2016, Tureau reiterated his intention to file suit if the commissioner did not.⁶ The commissioner ultimately failed to file suit.

Tureau filed suit in the 19th Judicial District Court for the Parish of East Baton Rouge on September 14, 2017.⁷ Chevron and Hess removed the suit on October 19, 2017, on the basis of diversity jurisdiction.⁸ On November 10, 2017, Tureau filed a motion to remand arguing that the State of Louisiana was the real party in interest in this action.⁹ The Magistrate Judge issued a report and recommendation determining that the motion to remand should be denied,¹⁰ which the Court adopted.¹¹

On November 16, 2017, Chevron and Hess filed a Rule 12(b)(6) motion to dismiss.¹² Chisholm, BEPCO, and BOPCO also filed a separate Rule 12(b)(6) motion to dismiss on the same day.¹³ The Magistrate Judge issued a report and recommendation on January 4, 2019, recommending that both motions to dismiss be denied.¹⁴

II. LAW & ANALYSIS

A. STANDARD OF REVIEW

To 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 plaintiff's favor. Lormand v. US 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. 2005).

B. LOUISIANA NATURAL RESOURCES

Chevron and Hess argue that Tureau's claims should be dismissed with prejudice because § 30:16 does not apply to past violations.¹⁵ Tureau responds that he is seeking remediation for present-day violations because the alleged contamination constitutes an ongoing violation. Thus, the dispositive issue is whether Tureau may use § 30:16 to compel remediation of present-day contamination caused by past oil and gas activities.¹⁶

1. Statutory and Regulatory Framework

The 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.

The 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. § 30:4.

The 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.

The 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. Such a 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...