The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-1156
LOUISIANA CRAWFISH PRODUCERS
ASSOCIATION—WEST, et al.
VERSUS
AMERADA HESS CORPORATION, et al.
************
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. MARTIN, NO. 04-68,091,
HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE
************
MICHAEL G. SULLIVAN
JUDGE
************
Court composed of Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion,
Judges.
AFFIRMED.
Joseph R. Joy, III
Gordon J. Schoeffler
Joseph Joy & Associates
Post Office Box 4929
Lafayette, Louisiana 70502
(337) 232-8123
Counsel for Plaintiffs/Appellants:
Louisiana Crawfish Producers Association—West, et al.
Leigh Haynie
Attorney at Law
1009 Kidder Road
Carencro, Louisiana 70520
(337) 886-9145
Counsel for Plaintiffs/Appellants:
Louisiana Crawfish Producers Association—West, et al.
Joseph E. LeBlanc, Jr.
A. Louise Blanchard
King, LeBlanc & Bland, P.L.L.C.
7500 San Felipe, Suite 800
Houston, Texas 77063
(713) 334-5644
Counsel for Defendant/Appellee:
Amerada Hess Corporation
Elizabeth S. Wheeler
King, LeBlanc & Bland, P.L.L.C.
201 St. Charles Avenue, 45th Floor
New Orleans, Louisiana 70801
(225) 379-3330
Counsel for Defendant/Appellee:
Amerada Hess Corporation
Stephen L. Williamson
John T. Nesser, IV
Charles M. Steen
Steen & Williamson, L.L.C.
Suite 1250 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163-1250
(504) 599-8440
Counsel for Defendants/Appellees:
Sorrento Pipeline Company
Enterprise Products Company
Joel A. Levy
Levy & Levy
7577 Westbank Expressway
Marrero, Louisiana 70072
(504) 340-2993
Counsel for Defendant/Appellee:
Saba Dredging Company, Inc.
Raymond M. Allen
Allen Law Office
Post Office Box 3204
Lafayette, Louisiana 70502
(318) 232-9918
Counsel for Defendant/Appellee:
Berry Brothers General Contractors
Richard A. Cozad
Michael L. McAlpine
Emma A. Mekinda
McAlpine & Cozad
701 S. Peters Street, Suite 300
New Orleans, Louisiana 70130
(504) 561-0323
Counsel for Defendant/Appellee:
Berry Brothers General Contractors
James M. Funderburk
Post Office Box 3017
Houma, Louisiana 70360
(985) 876-6410
Counsel for Defendant/Appellee:
T. Baker Smith & Sons, Inc.
Burton P. Guidry
Assistant Attorney General
Post Office Box 94005, Cap. Station
Baton Rouge, Louisiana 70804-9005
(225) 326-6300
Counsel for Intervenor:
State of Louisiana
Daniel G. Guidry
Attorney at Law
324 South Main Street
St. Martinville, Louisiana 70582
(337) 394-7116
Counsel for Defendants/Appellees:
Furgo Chance, Inc.
Sorrento Pipeline Company
Enterprise Products Company
Albert M. Hand, Jr.
Cook, Yancey, King & Galloway
Post Office Box 22260
Shreveport, Louisiana 71120-2260
(318) 221-6277
Counsel for Defendant/Appellee:
El Paso Field Services Management
Michael D. Hunt
Steven J. Levine
Phelps, Dunbar, LLC
Post Office Box 4412
Baton Rouge, Louisiana 70821-4412
(225) 346-0285
Counsel for Defendants/Appellees:
C. L. Jack Stelly & Associates, Inc.
Morris Hebert, Inc.
Francis X. Neuner, Jr.
Brandon W. Letulier
Laborde & Neuner
Post Office Box 52828
Lafayette, Louisiana 70505-2828
(337) 237-7000
Counsel for Defendant/Appellee:
C. H. Fenstermaker & Associates
Kai David Midboe
Attorney at Law
214 Third Street, Suite 2B
Baton Rouge, Louisiana 70801-1304
(225) 291-7300
Counsel for Defendant/Appellee:
Florida Gas Transmission Company
Andre J. Mouledoux
Jacques P. Degruy
Attorneys at Law
701 Poydras Street, Suite 4250
New Orleans, Louisiana 70130
(504) 595-3000
Counsel for Defendant/Appellee:
C. F. Bean, L.L.C.
Jerry A. Oubre
Caffery, Oubre, Campbell & Garrison
Post Office Drawer 12410
New Iberia, Louisiana 70562-2410
(337) 364-1816
Counsel for Defendant/Appellee:
El Paso Field Services Management
Edwin G. Preis, Jr.
Robert M. Kallam
Casie L. Willis
Preis, Kraft & Roy
Post Office Drawer 94-C
Lafayette, Louisiana 70509
(337) 237-6062
Counsel for Defendant/Appellee:
C & C Technologies
Clement Story, III
Louisiana Department of Justice
1885 N. Third Street, 7th Floor
Baton Rouge, Louisiana 70802
(225) 326-6705
Counsel for Intervenor:
State of Louisiana
Roger E. Ishee
Greg R. Mier
Onebane Law Firm
Post Office Box 3507
Lafayette, Louisiana 70502-3507
(337) 237-2660
Counsel for Defendant/Appellee:
Denbury Resources, Inc.
Joe B. Norman
Stevia Marie Walther
Kelly B. Becker
Attorneys at Law
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139-5099
(504) 581-7979
Counsel for Defendants/Appellees:
Texaco Petroleum Pipeline, LLC
Texaco Pipelines, LLC
Lawrence P. Simon
Jamie D. Rhymes
Jason P. Bergeron
Liskow & Lewis
Post Office Box 52008
Lafayette, Louisiana 70505-2008
(318) 232-7424
Counsel for Defendant/Appellee:
Hunt Oil Company
SULLIVAN, Judge.
At issue in this appeal is whether Plaintiffs, who identify themselves as
commercial crawfishermen, have a state law cause of action arising out of the alleged
destruction of the “Buffalo Cove” fishing area in St. Martin Parish, Louisiana, due to
Defendants’ oilfield-related activities. The trial court dismissed Plaintiffs’ state law
claims on an exception of no cause of action, but reserved their right to proceed under
maritime law. For the following reasons, we affirm.
Discussion of the Record
The Louisiana Crawfish Producers Association–West and over ninety of its
individual members sued eighteen named Defendants who were allegedly engaged
in oil and gas exploration, dredging and pipeline activities, or providing surveying
services for those conducting such activities. Plaintiffs alleged that in the course of
these activities Defendants created spoil banks and dams that have impeded the
natural flow of water in the Buffalo Cove area, resulting in stagnant water that has
destroyed the aquatic ecosystem and has eliminated or greatly diminished their ability
to catch crawfish in the area.1 Plaintiffs initially filed suit under state law,
specifically citing La.Civ.Code art. 667, then filed an amending petition seeking relief
under both state tort law and general maritime law. They sought damages for loss of
jobs, profits, wages, and earning capacity; loss of enjoyment of recreational use; and
inconvenience and mental distress.
After hearing numerous exceptions filed by Defendants, the trial court found
that Plaintiffs did not have a cause of action under state law, based primarily on their
inability to demonstrate a proprietary interest in either the land of Buffalo Cove or the
wild crawfish that they sought to catch. The trial court considered that its ruling
1
In their appellate brief, Plaintiffs identify the Buffalo Cove area as comprising 58,000 acres
within the 595,000 acres of the Atchafalaya Basin.
rendered any other exceptions moot, but it reserved to Plaintiffs the right to proceed
with any claims that they may have under maritime law.2 On appeal, Plaintiffs argue
that the trial court erred in concluding that they did not have a cause of action under
La.Civ.Code art. 2315 and La.Civ.Code art. 667.
Opinion
In Harp v. Pine Bluff Sand & Gravel Co., 98-1634, p. 4 (La.App. 3 Cir.
11/24/99), 750 So.2d 226, 229 (citations omitted), this court explained the function
of the exception of no cause of action as follows:
The function of an Exception of No Cause of Action is to test the
legal sufficiency of a petition by determining whether the law affords a
remedy on the facts alleged in the pleading. Any doubts must be
resolved in favor of the sufficiency of the petition.
No evidence may be introduced to support or controvert the
objection that the petition fails to state a cause of action. When a
petition states a cause of action as to any ground or portion of the
demand, the exception of no cause of action must be denied. A “cause
of action” is an act by a Defendant which gives a Plaintiff a right to
invoke a judicial interference on his behalf.
“In reviewing a trial court’s ruling sustaining an exception of no cause of
action, we conduct a de novo review because the exception raises a question of law
and the trial court’s decision is based only on the sufficiency of the petition.”
Schoeffler v. Drake Hunting Club, 05-499, p. 5 (La.App. 3 Cir. 1/4/06), 919 So.2d
822, 828.
The trial court’s dismissal of Plaintiffs’ state law claims is based upon the rule
of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134 (1927), which,
broadly stated, operates to deny a plaintiff recovery for economic loss resulting from
physical damage to property in which he has no proprietary interest. Although
2
The trial court also denied an exception of improper cumulation of actions that is not at issue
in this appeal.
2
Robins arose in a contractual setting, in that the charterer of a vessel was denied
recovery for its loss of use after the vessel was negligently damaged by the dry dock
operator, its application has not been confined to contract cases, but rather it has
become “a pragmatic limitation imposed by the Court upon the tort doctrine of
foreseeability.” Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1023
(5th Cir. 1985), cert. denied, 477 U.S. 903, 106 S.Ct. 3271 (1986).
In this appeal, plaintiffs argue that they fall within the exception to Robins
afforded to commercial fishermen, as recognized in the federal district court ruling
of Louisiana ex rel. Guste v. M/V TESTBANK, 524 F.Supp. 1170 (E.D. La. 1981), and
in Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974). Plaintiffs also rely upon
two other federal district court cases in which, they contend, other similarly-situated
claimants have recovered economic damages under state tort law. See Shaughnessy
v. PPG Indus., Inc., 795 F.Supp. 193 (W.D. La. 1992), and Maddox v. Int’l Paper
Co., 47 F.Supp. 829 (W.D. La. 1942). Defendants respond that Shaughnessy and
Maddox are distinguishable, in that those plaintiffs were riparian landowners as well,
and that the one Louisiana state court case to address this issue, Dempster v. Louis
Eymard Towing Co., Inc., 503 So.2d 99 (La.App. 5 Cir.), writ denied, 505 So.2d 1136
(La.1987), held that fishermen did not have a cause of action for economic loss
arising from the destruction of a fishing site. After reviewing the above
jurisprudence, and the many other cases cited by both sides to this controversy, we
find Defendants’ arguments to be persuasive.
In TESTBANK, 524 F.Supp. at 1173, the federal district court recognized that
claims for economic loss of commercial fishermen deserve special attention, as
“[t]raditionally, seamen have been recognized as favored in admiralty and their
3
economic interests require the fullest possible legal protection.” Accordingly, the
district court refused to dismiss the economic claims of commercial fishermen “even
in the absence of any proprietary rights over aquatic life.” Id. We note that the facts
of TESTBANK occurred in a purely maritime setting, as the damage to the commercial
fishing industry was caused by the collision of two vessels on a navigable waterway.
Also, the commercial fishermen in TESTBANK and in Oppen, 501 F.2d 558, appear
to be “Jones Act” seamen, subject to the “perils of the sea,” which is not the case
here. Similarly, Plaintiffs reliance on Poe v. PPG Industries, 00-1141 (La.App. 3 Cir.
3/28/01), 782 So.2d 1168, writ denied, 01-1239 (La. 6/22/01), 794 So.2d 801, is
misplaced, as this court clearly stated that it was applying maritime law in that case.
In Shaughnessy, 795 F.Supp. 193, the owner of a fishing and hunting guide
service filed suit when his bookings dropped significantly after the defendant,
described by the court as a “land based polluter,” allegedly contaminated the waters
in which his clients fished. Id. at 195. Although the court also concluded that the
plaintiff should be protected in the same manner as the commercial fisherman in
TESTBANK, 524 F.Supp. 1170, central to its analysis in permitting the suit to survive
summary judgment under state law was the plaintiff’s status as a riparian landowner.
In addition to applying La.Civ.Code art. 2315, the court concluded that the plaintiff
could recover under La.Civ.Code art. 656 as the owner of a servient estate whose
servitude has become more burdensome through the actions of the owner of the
dominant estate. That the plaintiff was a landowner led the court to observe:
“Economic damages to fishing businesses, combined with damage to a riparian estate
have often been found to be actionable in various jurisdictions.” Shaughnessy, 795
F.Supp. at 196 (emphasis added). As authority for allowing the case to proceed under
4
La.Civ.Code art. 2315, the court cited Maddox, 47 F.Supp. 829, a case in which the
plaintiff was also a riparian landowner.3
In Dempster, 503 So.2d 99, the court was presented with plaintiffs whose
positions are more analogous to those in the case sub judice. In that case, two
fishermen filed suit for the loss of a fishing site, seeking to recover for the loss of
their nets, the loss of the catch in the nets, and the loss of future profits from the use
of the fishing site. The fifth circuit affirmed summary judgment dismissing plaintiffs’
economic damage claims based upon the same rationale applied by the trial court in
the present case: “[a]s plaintiff had no proprietary interest in the fish which were at
large in the waters, and no right to object to the state’s interfering with the exercise
of the fishing privilege granted, it has no right to complain and claim damages.” Id.
at 101 (quoting Vanacor v. Dep’t of Wildlife & Fisheries, 483 So.2d 1127, 1130
(La.App. 5 Cir. 1986) (emphasis added) (alteration in original)). The court also
addressed one of Plaintiffs’ arguments herein, namely that regulatory cases such as
Vanacor cannot be applied to defeat their tort claims, by stating:
Although Vanacor, supra dealt with the ability of the state to
regulate fishing, we also find it applicable to the instant case which
concerns the rights of a tortfeasor to recover damages for the future loss
of fish insofar as holding that the appellants have no proprietary
interest in the fish at large in the state waters.
Dempster, 503 So.2d at 101 (emphasis added). Additionally, we note that the
supreme court reiterated the above principle in Louisiana Seafood Management
Council v. Louisiana Wildlife & Fisheries Commission, 97-1367, p. 8 (La. 5/19/98),
715 So.2d 387, 392, in finding that licensed commercial fishermen had no cause of
3
As shown in a later proceeding, Maddox v. International Paper Co., 105 F.Supp. 89 (W.D.
La..1951), aff’d, 203 F.2d 88 (5th Cir. 1953), the plaintiff was allowed to recover for the total
destruction of his fishing camp, the loss of improvements placed on his property, and the loss of the
probable sale of two campsites.
5
action under the “taking clause” of the United States Constitution as to the loss of
fishing profits brought about by the state’s regulatory actions:
The lack of any property interest in the fish in the waters is
well-settled, statutorily and judicially. See La.Civ.Code arts. 450, 452;
La.Rev.Stat. 56:3. In LaBauve v. Louisiana Wildlife & Fisheries
Comm’n, 444 F.Supp. 1370 (E.D.La.1978), the court explained that “fish
which are at large in state waters are the property of the state, as public
or common things;” that “an individual has no proprietary interest in the
fish he is prevented from catching;” and that “an individual has no
proprietary right to fish commercially in state waters.” 444 F.Supp. at
1378. Fishermen’s inability to establish a private property interest in
free-swimming corporeal fish has precluded recovery under this theory.
Douglas F. Britton, The Privatization of the American Fishery:
Limitations, Recognitions, and the Public Trust, 3 Ocean & Coastal L.J.
217, 236 (1997) (noting that under these circumstances fishermen have
been regarded as “possessing no compensable, or prosecutable, property
interests” for takings claims purposes).
Plaintiffs also contend that they have a cause of action under La.Civ.Code art.
667,4 arguing that their fishing licenses place them in the category of “persons
holding rights derived from the landowner,” as were the successful oyster lessees in
Inabnet v. Exxon Corp., 93-681, p. 12 (La. 9/6/94), 642 So.2d 1243, 1251. We
disagree. As explained in Louisiana Seafood Management Council, 715 So.2d at 392
(emphasis added), a commercial fishing license is “a state-granted privilege subject
4
Louisiana Civil Code Article 667 (emphasis added) provides:
Although a proprietor may do with his estate whatever he pleases, still he
cannot make any work on it, which may deprive his neighbor of the liberty of
enjoying his own, or which may be the cause of any damage to him. However, if the
work he makes on his estate deprives his neighbor of enjoyment or causes damage
to him, he is answerable for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his works would cause damage,
that the damage could have been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care. Nothing in this Article shall preclude
the court from the application of the doctrine of res ipsa loquitur in an appropriate
case. Nonetheless, the proprietor is answerable for damages without regard to his
knowledge or his exercise of reasonable care, if the damage is caused by an
ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly
limited to pile driving or blasting with explosives.
6
to such limitations as the state may impose in the exercise of its police power.” Thus,
a fishing license is issued by the state in the exercise of its regulatory and police
powers, as opposed to its capacity to lease a specific area of land as a landowner.
Further, as the court explained in Dumas v. Angus Chemical Co., 31,400, p. 16
(La.App. 2 Cir. 1/11/99), 728 So.2d 441, 451, writ denied, 99-751 (La. 4/30/99), 741
So.2d 19:
[N]ot every claimant is within the class of people to whom a duty is
owed under Article 667. The term “proprietor” in Article 667 has been
interpreted to apply not only to a landowner, but also to any person
whose rights derive from the owner. Inabnet v. Exxon Corp., 93-0681
(La.9/6/94), 642 So.2d 1243. A landowner, however, does not owe a
duty under Article 667 to everyone: “Persons that do not qualify as
proprietors, such as guests, contractors, and members of the public, may
have a variety of remedies against a landowner under the law of
delictual obligations . . ., but not for violation of obligations established
by Articles 667 and 668.” [A. N.] Yiannopoulos, [4 Civil Law Treatise
(1997) Predial Servitudes], § 44.
Based upon the above, we find that the trial court properly granted Defendants’
exception of no cause of action as to Plaintiffs’ state law claims. Accordingly, the
judgment of the trial court is affirmed at Plaintiffs’ cost.
AFFIRMED.
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