Winkler v. BP Exploration & Prod., Inc.
| Decision Date | 07 September 2016 |
| Docket Number | CIVIL ACTION No. 16-2715 |
| Citation | 205 F.Supp.3d 820 |
| Parties | Brian WINKLER, et al. v. BP EXPLORATION & PRODUCTION, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
John Leslie Young, Law Office of John L. Young, Matthew Winter Langenberg, Matthew Winter Langenberg, Attorney at Law, Val Patrick Exnicios, Liska, Exnicios & Nungesser, New Orleans, LA, for Brian Winkler, et al.
Don Keller Haycraft, Devin C. Reid, Patrick B. Reagin, Liskow & Lewis, New Orleans, LA, Christopher J. Esbrook, Ryan Matthew Lawrence, Kirkland & Ellis, LLP, Chicago, IL, Jeffrey Bossert Clark, Kirkland & Ellis, LLP, Washington, DC, for BP Exploration & Production, Inc.
ORDER & REASONS
This case concerns personal injuries and other damages that allegedly resulted when a vessel's oyster rake caught on two of the so-called "orphaned anchors" left behind from the response to the 2010 Gulf of Mexico oil spill. Before the Court is Defendant BP Exploration & Production Inc.'s ("BP") Motion to Dismiss (Rec. Doc. 18) , Plaintiffs' Opposition (Rec. Doc. 27), and BP's Reply (Rec. Doc. 34). This motion was heard on the briefs and without oral argument. BP's primary argument is that all of the Plaintiffs' claims are preempted by the Clean Water Act and must be dismissed. As explained below, the Court disagrees with this position. However, the Court is persuaded by BP's second argument: that non-personal injury claims by two of the five plaintiffs have been released by the Deepwater Horizon Economic and Property Damages Settlement. Accordingly, the Court will partially grant and partially deny BP's motion.
Although this Court has determined to not consolidate the case at bar with Multidistrict Litigation No. 2179 ("MDL 2179"), In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, there is some factual overlap between it and MDL 2179. On April 20, 2010, a blowout and explosions occurred aboard the mobile offshore drilling unit DEEPWATER HORIZON as it was preparing to temporarily abandon a well, known as Macondo, approximately fifty miles from the Louisiana coast. These events resulted in, among other things, approximately 3.2 million barrels of oil discharging into the Gulf of Mexico over the course of 87 days. See In re Oil Spill by the Oil Rig "Deepwater Horizon," 77 F.Supp.3d 500, 525 (E.D.La.2015). BP owned a majority interest in the Macondo Well, was the well's designated "operator," and held a majority interest in the lease of the relevant block of the outer continental shelf. Consequently, BP was designated a "responsible party" for the oil spill under the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701, et seq.
"The response to this oil spill was unprecedented in size and complexity." In re Oil Spill by the Oil Rig "Deepwater Horizon ," 148 F.Supp.3d 563, 570 (E.D.La.2015). Pursuant to the Clean Water Act ("CWA") and the National Contingency Plan ("NCP"), the Federal On-Scene Coordinator ("FOSC") was in charge of the response, including the direction of all Federal, State, and private actors. See 33 U.S.C. § 1321(c)(2), (c)(3), 40 C.F.R. §§ 300.120(a), 300.135(d), 300.305(d)(2).1 As a responsible party, BP was required to and did participate in the response, but BP's actions were ultimately at the direction of and/or authorized by the FOSC. See, e.g. , 33 U.S.C. §§ 1321(b)(7)(B), (c)(3),(5), 2703(c)(2),(3), 2704(c)(2)(B), (C).
One aspect of the response to the Macondo/DEEPWATER HORIZON spill involved placing more than 3.8 million feet of containment boom in coastal waters to capture oil that the wind and tides carried landward. Thousands of Danforth anchors held this boom in place. Plaintiffs claim that buoys marked the location of the anchors. Eventually, the boom and buoys were removed from the water. However, response workers could not locate or retrieve all of the anchors, and approximately 1,700 anchors (2%-3% of those deployed) were left on the water bottoms. In 2011, the Coast Guard commissioned several studies to determine whether workers should retrieve these "orphaned" anchors. Those studies concluded that leaving the anchors in place to degrade via natural processes "would derive the greatest net environmental benefit" and recommended to the FOSC that she "disapprove future analysis or removal measures related to potential navigation and/or environmental hazards purportedly posed by the presence of orphaned boom anchors." BP America Inc. v. Chustz , No. 13–620, Rec. Doc. 2-20 at 18 (M.D. La. Sept. 19, 2013). On July 1, 2011, the FOSC concurred in this recommendation. The Louisiana Coastal Protection and Restoration Authority objected to the FOSC's decision. In a letter dated September 1, 2011, the FOSC responded, "[I]n the absence of new data supporting the removal of these orphaned anchors, I remain steadfast in my decision." BP America Inc. v. Chustz , No. 13–620, Rec. Doc. 2-13 (M.D. La. Sept. 19, 2013).2
Nearly five years after the oil spill, plaintiffs Brian Winkler, Shawn Winkler, and Christopher Morrison were harvesting oysters from the vessel TWO RAYS (which is owned by Raymond F Vath, Jr. and leased to Raymond S. Vath, both of whom are also plaintiffs but were not onboard the TWO RAYS at the time of the allision) in Christmas Camp Lake in St. Bernard Parish when, according to the petition, "their rake caught on two unmarked anchors that had been left by BP from its oil spill cleanup operations, causing the boat to halt abruptly." (Petition ¶ 5, Rec. Doc. 1-1). Plaintiffs allege that all three occupants of the TWO RAYS were injured in the incident. Plaintiffs also allege that the TWO RAYS and the oyster beds sustained damage as well. Plaintiffs filed suit against BP in state court on February 17, 2016, asserting negligence claims under general maritime law and Louisiana law. Specifically, Plaintiffs contend that the anchors constitute underwater obstructions and that BP is liable for failing to remove or mark them. BP removed the case to this Court and then filed the instant motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).3
On a motion to dismiss, "[t]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Gentilello v. Rege , 627 F.3d 540, 544 (5th Cir.2010) (citations and quotations omitted). More specifically:
To avoid dismissal, a plaintiff must plead sufficient facts to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.
Id. (citations and quotations omitted). Furthermore, "[d]etermining whether a complaint states a plausible claim for relief will...be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
BP argues that Plaintiffs' tort claims are preempted or displaced by the CWA. BP contends that because the CWA and its regulations placed exclusive control over the oil spill response in the hands of the FOSC, who directed the placement of the boom and anchors as part of the response and further directed that the orphaned anchors should not be removed, BP cannot be held liable under general maritime law or state law for following the FOSC's directive. According to BP, (BP Memo. At 14, Rec. Doc. 18-1).
The Court is very familiar with this argument. In 2012, the Court ruled in MDL 2179 that tort claims against Nalco, the manufacturer of a chemical dispersant that was used during the oil spill, by individuals who allegedly were harmed by exposure to Nalco's dispersant were preempted by the CWA and the NCP. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL 2179, 2012 WL 5960192 (E.D.La. Nov. 28, 2012) (hereinafter, the "Nalco Order"). The Court explained that Congress determined in the CWA that the best way to ensure the effective and immediate removal of a large oil spill was to require that the President (i.e., the FOSC) direct all levels of the response, including whether, when, what, and how dispersants should be used. Id. at *13–14. Because the FOSC authorized the use of Nalco's dispersant, "it would be improper for the Court to second guess the FOSC's decision to use (or not use) [that] dispersant" through the vehicle of a tort suit. Id. The Court further reasoned:
If the Court were to permit the [personal injury claims against Nalco]... then, during the next Substantial Spill or "spill of national significance," the threat of liability might cause the manufacturer of dispersant X to refuse to provide its product, even though the FOSC determined that dispersant X should be used. Such a refusal, or perhaps even a hesitation by the manufacturer, would conflict with the statutory and regulatory design of placing the FOSC in charge of all levels of the response and empowering him or her to determine if, when, where, and how dispersants should be used. More importantly, this refusal would deprive the response of a tool expressly contemplated by federal law and, consequently, impede the FOSC's ability to "ensure effective and immediate removal" of oil and the "efficient, coordinated, and effective" response intended by the NCP. Thus, despite the fact that the [personal injury claims against Nalco] avoid a direct attack on the FOSC's decisions to use [Nalco's dispersant], they still stand as an obstacle to the accomplishment and execution of the full...
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