Opinion

State of Louisiana and the Vermilion Parish School Board v. Louisiana Land & Exploration Company

Court: Louisiana Court of Appeal
Filed: Mar 5, 2025
Cited by: 0 cases
Authority: More cited than 39.8%

The opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

23-550 consolidated with 24-53

STATE OF LOUISIANA AND THE

VERMILION PARISH SCHOOL BOARD

VERSUS

LOUISIANA LAND & EXPLORATION

COMPANY, ET AL.

**********

APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF VERMILION, NO. 82,162

HONORABLE ROYALE L COLBERT, JR., DISTRICT JUDGE

**********

GARY J. ORTEGO

JUDGE

**********

Court composed of D. Kent Savoie* 1 , Gary J. Ortego, and Ledricka J. Thierry,

Judges.

AFFIRMED.

Savoie, J- Concurs, with written reason.

*Honorable D. Kent Savoie participated in this decision by appointment of the Louisiana

Supreme Court as Judge Ad Hoc.

Jerold Edward Knoll

The Knoll Law Firm

P. O. Box 426

Marksville, LA 71351

(318) 253-6200

COUNSEL FOR PLAINTIFF/APPELLEE:

The Vermilion Parish School Board

Donald T. Carmouche

Victor L. Marcello

Diane Adele Owen

John Hogarth Carmouche

William R. Coenen, III

Brian T. Carmouche

Christopher D. Martin

Ross J. Donnes

Todd J. Wimberley

Caroline H. Martin

Leah C. Poole

Talbot, Carmouche & Marcello

17405 Perkins Road

Baton Rouge, LA 70810

(225) 400-9991

COUNSEL FOR PLAINTIFF/APPLLEE:

The Vermilion Parish School Board

Jeffrey J. Gelpi

Michael R. Phillips

Anne C. Lemelin

Kean, Miller, LLP

909 Poydras St., #3600

New Orleans, LA 70112

(504) 585-3050

COUNSEL FOR DEFENDANT/APPELLANT:

Union Oil Company of California

Louis Victor Gregoire, Jr.

Kean, Miller, LLP

400 Convention Street, #700

Baton Rouge, LA 70802

(225) 387-0999

COUNSEL FOR DEFENDANT/APPELLANT:

Union Oil Company of California

Grady Joseph Abraham

Attorney at Law

5040 Ambassador Caffery #200

Lafayette, LA 70508

(337) 234-4523

COUNSEL FOR PLAINTIFF/APPELLEE:

The Vermilion Parish School Board

Andrew M. Stakelum

King & Spalding

1100 Louisiana, Ste 4000

Houston, TX 77002

(713) 751-3200

COUNSEL FOR DEFENDANT/APPELLANT:

Union Oil Company of California

Michael L. Heaton

Talbot, Carmouche & Marcello

17405 Perkins Road

Baton Rouge, LA 70810

(225) 400-9991

COUNSEL FOR PLAINTIFF/APPELLEE:

The Vermilion Parish School Board

Dylan T. Scully

Kean, Miller, LLP

400 Convention Str. Ste. 700

Baton Rouge, LA 70821

(225) 387-0999

COUNSEL FOR DEFENDANT/APPELLANT:

Union Oil Company of California

Claire E. Juneau

Robert E. Meadows

King & Spalding, LLP

1100 Louisiana, Ste 4000

Houston, TX 77002-5213

(713) 751-3200

COUNSEL FOR DEFENDANT/APPELLANT:

Union Oil Company of California

ORTEGO, Judge.

The Vermilion Parish School Board brought action to have oil company

deposit additional funds per a final Most Feasible Plan under Act 312 to remediate

oil-field waste and contamination on 1,200 acres of mostly submerged wetlands

owned by the state and managed by the school board. The trial court ordered the oil

company to deposit funds to, inter alia, remediate groundwater, reenter a certain

saltwater disposal well, and remediate soil. The oil company appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

This case involves legacy litigation under Act 312 of 2006. In Marin v. Exxon

Mobil Corp., 09-2368, 09-2371, p. 1 (La. 10/19/10), 48 So.3d 234, 238, n.1, the

Louisiana Supreme Court explained:

“Legacy litigation” refers to hundreds of cases filed by landowners

seeking damages from oil and gas exploration companies for alleged

environmental damage in the wake of this Court’s decision in Corbello

v. Iowa Production, 02-826 (La. 2/25/03), 850 So.2d 686. These types

of actions are known as “legacy litigation” because they often arise

from operations conducted many decades ago, leaving an unwanted

“legacy” in the form of actual or alleged contamination. Loulan Pitre,

Jr., “Legacy Litigation” and Act 312 of 2006, 20 Tul. Envt. L.J. 347,

34 (Summer 2007).

In 2004, the State of Louisiana and the Vermilion Parish School Board

(collectively “VPSB”) filed suit against Union Oil Company of California, Union

Exploration Partners (collectively, “Unocal”), Chevron U.S.A., Inc., Chevron

Midcontinent LP, and Carrollton Resources, LLC as Defendants. Pursuant to a 1935

mineral lease and a 1994 surface lease, Unocal conducted oil exploration and oilfield

production on the VPSB land for several decades.

Under the 2006 version of La.R.S. 30:29, often referred to as Act 312, VPSB

sought remediation of certain lands known as Section Sixteen lands, the sections

numbered 16 in each township of Louisiana set aside for the purpose of supporting

public schools. The legislature’s intent in passing Act 312 was to ensure that funds

awarded for remediation of contaminated property would indeed be spent to

remediate the property and bring the land up to current environmental standards. See

La.R.S. 30:29(A), (G) (2006); See also, State v. La. Land and Expl. Co., 12-0884,

(La. 1/30/13), 110 So. 3d 1038.

During discovery, and pursuant to provision (C) of La.R.S. 30:29 (2006),

Unocal entered a limited admission pursuant to the La.Code of Civ.P. art. 1563,

wherein it admitted responsibility for environmental damage, as defined by Act 312.

This was ostensibly done for the sole purpose of ensuring that evaluation and

remediation of the property could begin efficiently and promptly after trial, once a

Most Feasible Plan (MFP) for doing so was proposed by each litigant and a public

hearing was held before the Louisiana Department of Natural Resources (“LDNR”),

who then submitted its recommendation regarding a MFP to the trial court. Unocal’s

admission was not an admission of any of VPSB’s private causes of action.

Trial was held in May of 2015. At the conclusion of the fourteen-day trial, the

jury returned a verdict finding Unocal had contaminated the land and awarding VPSB

$3,500,000.00 for remediation of the land in compliance with applicable state

standards and regulations pursuant to Act 312. Additionally, the jury awarded

$1,500,000.00 in damages for VPSB’s private strict liability action. The jury denied

all other VPSB causes of action. VPSB filed a motion for new trial, alleging that the

jury verdict was inconsistent because the jury awarded damages for remediation and

strict liability but awarded no damages for its contract actions. The trial court denied

the motion.

This court in State v. La. Land & Expl. Co., 17-830, p. 5 (La.App. 3 Cir.

3/14/18), 241 So.3d 1258, 1264, writ denied, 18-476 (La. 9/28/18), 252 So.3d 924,

noted the procedure following a trial as follows:

[A] defendant who has admittedly caused, or has been found to

have caused, environmental damage to property must submit a plan for

remediation of the damage to the LDNR. La.R.S. 30:29(C)(1). The

plaintiff may also submit a plan for the LDNR’s consideration. La.R.S.

30:29(C)(1). The LDNR then conducts a public evidentiary hearing.

La.R.S. 30:29(C)(2)(a).

After the hearing, the LDNR considers any plans properly

submitted and ultimately issues its own plan, which may or may not

approve and adopt all or part of either submitted plan. The LDNR plan

must be the plan it finds to be the “most feasible plan” within the

meaning of La.R.S. 30:29(C)(2)(a).

Prior to the above, the court stated the following:

Thereafter, the [LDNR] holds a public hearing on the submissions. La.

R.S. 30:29(C)(2). Within a time set by the statute, the [LDNR]

determines, based on evidence submitted, the most feasible plan to

accomplish the evaluation/remediation of the environmental damage

while protecting the health, safety and welfare of the public. Id. By

mandating that “applicable standards” shall be used and applied in

approving or structuring the most feasible plan to evaluate or remediate

the environmental damage, the legislature has not limited the [LDNR]

to any one standard in its development of the most feasible plan. La.

R.S. 30:29(C)(3). The plan approved by the [LDNR] is not to be

considered an adjudication subject to appellate review. La. R.S.

30:29(C)(4).

Instead, the plan approved by the [LDNR] is sent to the court for

its review. The plaintiff or any other party may submit its own plan,

comment or input in response, within a certain time frame. La. R.S.

30:29(C)(1). Unless a party proves by a preponderance of evidence that

another plan is a more feasible plan, the court shall adopt the plan

approved by the [LDNR]. If the court enters a judgment adopting a plan

other than the one approved by the [LDNR], the court shall assign

written reasons. Once a plan is determined, the court shall order the

party or parties admitting responsibility or found legally responsible by

the court to fund the implementation of the plan. In making this

determination, the court will decide how much of the damages are to be

used for remediation of the property. La. R.S. 30:29(C)(5).

The court’s judgment adopting a plan of evaluation or

remediation and ordering the legally responsible parties to deposit

funds into the court's registry shall be considered a final judgment for

appeal purposes. La. R.S. 30:29(C)(6)(a).

Id. at 1263.

According to the procedure outlined above, the matter was then referred to the

LDNR for a public hearing. In accordance with the trial court’s order, VPSB and

Unocal submitted plans for evaluation and remediation of the land to the LDNR.

Rather than adopting either submission, the LDNR structured its own MFP, which

the trial court accepted.

VPSB and Unocal each appealed the judgment of the trial court alleging

various errors not relevant to this appeal apart from the propriety of the trial court’s

adoption of LDNR’s MFP.

According to this court, when discussing facts and procedural history regarding

the MFP:

The plan addressed six separate areas of soil and sediment

contamination and seven areas of groundwater contamination. In areas

where data was sufficient, the plan recommended how and to what

degree each section was to be remediated. In areas where the data was

insufficient, the plan required additional testing and evaluation. It also

estimated the cost of implementing the plan as written at one million

four hundred eleven thousand, one hundred and ninety dollars

($1,411,190.00). Its estimate did not include costs of remediation once

the required additional evaluations were performed and sufficient data

was received. The plan ordered [Unocal] to fund and perform the

remediation work as set forth in the plan.

VPSB did not directly challenge the LDNR plan or request an

additional preponderance hearing under La.R.S. 30:29(C)(5). Instead,

VPSB sent twenty-seven written questions to LDNR after the plan was

released that sought interpretation and clarification of the plan. The

LDNR panel answered these questions in writing and specifically

conditioned their use as a clarification tool only. LDNR made clear that

“[w]hile these answers do not alter the MFP [] in any way, we are

hopeful they will provide the requested and desired clarity to the MFP.”

[]

The parties then filed competing motions to adopt their respective

proposed judgments as the court’s most feasible plan. Both proposed

judgments adopted the LDNR plan as the judgment of the court.

However, the parties disputed specific language in the proposed

judgments, and their motions to adopt were set for hearing. At the

“judgment hearing,” the pertinent issues presented to the trial court for

its consideration were: (1) whether and/or how to incorporate the

written questions and answers between VPSB and LDNR into the

judgment and; (2) which party should perform the remediation and

evaluations recommended in the plan. Counsel for both parties

participated in the hearing and were given more than ample opportunity

to argue their respective positions to the trial court. During the hearing,

the trial judge made clear that the questions and answers provided by

LDNR to Plaintiffs, at their request, “should be part of the record, but

they do not alter the plan as indicated by LDNR. They do not alter the

plan in any way.” []

Ultimately, the trial court rendered judgment on November 3,

2016, adopting the LDNR plan as written and attached the written

questions and answers as Exhibit B to the judgment and made them part

of the record. The judgment further obligated [Unocal] to fund and

perform the remedial work and evaluations set forth in the plan. VPSB

filed a timely appeal.

Thereafter, this court affirmed the trial court’s adoption of the MFP. The

supreme court denied writs on that appeal. Thus, the 2016 judgment containing this

MFP became a final judgment. Id.

The MFP, in a section regarding the cost estimates to be implemented, states

as follows (emphasis added):

The cost estimate to implement the Plan as presently known is

$1,411,190 (rounded). . . . This estimate does not include additional

well installations that may be necessary pursuant to this Plan; any

additional evaluation costs that may be necessary from additional

sampling and/or further delineation required by this Plan (beyond what

is specifically covered in cost tables above); and/or any remediation

costs that may be necessary based on results of sampling and/or further

delineation. Additional costs will depend on what sampling and/or

delineation reveals.

On January 17, 2023, VPSB filed a motion to require Unocal to deposit

additional money in the registry of the court based on the assertion that the initial

deposit was insufficient to complete the evaluation of remediation of the lands

mandated by the MFP. After a three-day hearing on the matter, the trial court issued

a judgment signed on July 27, 2023. The judgment ordered, relevant to this appeal,

Unocal to deposit an additional $63,232,983 into the registry of the court to be used

towards specific costs of evaluating and remediating certain areas of the lands and

ordered VPSB and Unocal to work with the LDNR to develop a plan to remove

certain substances from canal sediment and groundwater remediation.

Unocal sought to appeal this judgment, and an order of appeal was entered on

August 24, 2023. Prior to the appeal being lodged in this court, VPSB filed a motion

to dismiss the unlodged appeal. This motion was denied via an unpublished opinion.

See State v. La. Land & Expl. Co., 23-591, p. 4 (La.App. 3 Cir. 11/15/23), 2023 WL

7754114, writ denied, 23-1619 (La. 2/6/24), 378 So.3d 754.

Unocal also filed an application for supervisory writs, assigned docket number

23-550, solely as a precaution to reserve all rights to seek review of the judgment in

the event this court finds that any aspect of the judgment is not immediately

appealable. Unocal’s appeal was eventually lodged and docketed as number 24-53.

Unocal’s writ application and appeal were consolidated to constitute the matter now

before us.

ASSIGNMENTS OF ERROR

1. The trial court erred by making material changes to the 2016

judgment adopting the Most Feasible Plan, which is a final, definitive

judgment.

2. The trial court exceeded its authority under Act 312 by adopting

a new plan for evaluation and remediation not required by the Most

Feasible Plan.

3. The trial court usurped the decision-making power granted to

LDNR by the legislature and the Most Feasible Plan.

STANDARD OF REVIEW

We review La.R.S. 30:29 cases under the de novo standard of

review. La.R.S. 30:29(C)(6)(b). In performing a de novo review, “the

appellate court must review the record in its entirety, giving no special

weight to the trial court’s determinations.” Kyle v. Kier, 17-134,

(La.App. 3 Cir. 11/15/17), 233 So.3d 708, 715. “[U]nder the de novo

standard of review, the appellate court . . . review[s] the record in its

entirety to determine whether the trial court’s decision was legally

correct in light of the evidence.” Domingue v. Bodin, 08-62, p. 2

(La.App. 3 Cir. 11/5/08), 996 So.2d 654, 656 (citations omitted). In our

review, we may either “affirm the trial court’s adoption of a plan or

may adopt a feasible plan in conformity with this Section and shall issue

written reasons for [our] decision.” La.R.S. 30:29(C)(6)(c).

La. Land & Expl. Co., 241 So.3d at 1265 (alterations and parenthetical in original).

Here, there is no dispute that the MFP was final in this matter between the

parties. However, Unocal asserts that the trial court’s judgment materially altered

or created a new MFP, while VPSB asserts that the trial court’s judgment simply

was an exercise of the trial court in performing its gatekeeping function to further

enforce the MFP. We note that Unocal assigns no error and presents no argument

to this court that the amount the trial court ordered it to deposit was excessive for the

specific performance it ordered of Unocal. Further, Unocal does not question the

evidentiary basis for the trial court’s judgment. Rather, Unocal’s assignments of

error and arguments are focused solely on the legal basis of the trial court’s judgment.

These assignments and arguments made by Unocal involve an error of law.

Questions of law are reviewed de novo, with no deference to legal conclusions of

the courts below. Snider v. La. Med. Mut. Ins. Co., 13-579 (La. 12/10/13), 130 So.3d

922.

DISCUSSION OF THE MERITS

Ancillary Matter: Previous Ruling denying VPSB’s Motion to Dismiss Appeal

In brief and oral arguments, Unocal cites this court’s prior, unpublished ruling

in La. Land & Expl. Co. It argues that language from that ruling is persuasive in

connection with the merits of the appeal now before us. In denying VPSB’s motion

to dismiss this current appeal, this court stated:

We find that the July 27, 2023 judgment is a final appealable

judgment under La.R.S. 3029(C)(6) as it adopts a new plan for

additional evaluation and remediation not required by the MFP and

orders Unocal to deposit $63,232,983 for the implementation of that

new plan. Further, the judgment makes material changes to the 2016

judgment adopting the MFP. Accordingly, we deny VPSB’s motion to

dismiss the appeal.

Id.

“The appellate court shall render any judgment which is just, legal, and proper

upon the record on appeal.” La.Code Civ.P.art. 2164 (emphasis added).

While we acknowledge this court’s language cited above, however, that

matter involved a narrow issue of whether the trial court’s judgment was appealable

under La.R.S. 30:26(C)(6), and the motion was filed prior to this appeal record being

lodged. Thus, that previous ruling involved the narrow issue of whether VPSB’s

motion to dismiss Unocal’s appeal had merit, and the merits of the appeal now before

us, i.e., the propriety of the trial court’s judgment with respect to the MFP, were not

before the court at that time.

“The law favors appeals. Thus, they are to be maintained unless a legal ground

for dismissal is clearly shown.” Davidge v. Magliola, 346 So.2d 177, 179 (La. 1977)

(citing Howard v. Hardware Mut. Co., 286 So.2d 334, 336 (La. 1973); La. Power &

Light Co. v. Lasseigne, 255 La. 579, 588, 232 So.2d 278, 282 (1970); Favrot v.

Favrot, 252 La. 192, 197, 210 So.2d 316, 317 (1968)). The burden of proof on a

motion to dismiss rests with the mover. See Dhaliwal v. Dhaliwal, 52,507 (La. App.

2 Cir. 2/27/19), 265 So.3d 1188, 1194. In addressing whether a legal ground for

dismissal is clearly shown, “[t]his Court is a court of record and can only review

what is contained in the record on review.” NOLA 180 v. Harrah’s Operating Co.,

12-72, p. 3 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 888 (citing Mobile-One Auto

Sound, Inc. v. Whitney Nat’l Bank, 11-535 (La.App. 4 Cir. 11/9/11), 78 So.3d 807).

As such, the ruling denying VPSB’s motion to dismiss Unocal’s appeal was

correct, as, at the time of rendering its ruling, the appeal record was not yet lodged.

Clearly, with no record yet lodged with the appellate court, VPSB could not carry

its burden to prove that Unocal’s appeal should be dismissed.

With respect to the language cited above detailing the reasoning for denying

VPSB’s motion, neither the judgment nor the MFP were in a record before that court,

as there was no record before the court at that time. Thus, there was no basis from

which to properly analyze what the judgment now before us did with respect to the

MFP. To find the language persuasive, as Unocal suggests, would be to ignore the

well-established tenet of an appellate court under La.Code Civ.P.art. 2164 to render

judgments on the record. Accordingly, we find no merit to Unocal’s assertion that

the language cited above is persuasive to this court in adjudicating this appeal.

Ancillary Matter: Dismissal of Unocal’s Appeal

VPSB argues that the judgment before us is neither appealable under Act 312

nor final under the Louisiana Code of Civil Procedure. We have already ruled on

this issue in the unpublished opinion cited above, State v. La. Land & Expl. Co., 23-

591(La.App. 3 Cir. 11/15/23) [, 2023 WL 7754114], writ denied, 23-1619 (La.

2/6/24), 378 So.3d 754.

Moreover, La.R.S. 30:29(C)(6)(a) states:

Any judgment adopting a plan of evaluation or remediation

pursuant to this Section and ordering the party or parties admitting

responsibility or the party or parties found legally responsible by the

court to deposit funds for the implementation thereof into the registry

of the court pursuant to this Section shall be considered a final judgment

pursuant to the Code of Civil Procedure Article 2081 et seq., for

purposes of appeal.

Here, the trial court’s judgment, inter alia, ordered Unocal to deposit

additional funds in the court registry, ordered Unocal and VPSB, along with the

LDNR, to develop a plan for actual removal of certain canal sediments, and ordered

Unocal to perform groundwater remediation. Thus, per La.R.S. 30:29(C)(6)(a) cited

above, it is a final judgment for purposes of appeal. Accordingly, VPSB’s argument

lacks merit.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In its first assignment of error, Unocal contends that the trial court erred by

making material changes to the 2016 judgment adopting the MFP, a final, definitive

judgment. Similarly, Unocal asserts, in its second assignment of error, that the trial

court exceeded its authority under Act 312 by adopting a new plan for evaluation

and remediation not required by the MFP. Both of these assignments contend the

trial court exceeded its authority relative to the MFP and concern the same standard

of review and arguments. Accordingly, we will address them under one heading.

Unocal argues that the trial court cannot materially change or adopt a new

MFP per res judicata.

Res judicata bars relitigation of a subject matter arising from the same

transaction or occurrence of a previous suit. LSA-R.S. 13:4231. It

promotes judicial efficiency and final resolution of disputes.

Terrebonne Fuel & Lube v. Placid Refining, 95-0654, 95-0671, pp. 11-

12 (La.1/16/96); 666 So.2d 624, 631. A judgment determining the

merits of a case is a final judgment. La.C.C.P. art. 1841. See also, Tolis

v. Board of Sup’rs of Louisiana State University, 95-1529

(La.10/16/95); 660 So.2d 1206. A valid and final judgment is

conclusive between the same parties, except on appeal or other direct

review. LSA-R.S. 13:4231. If a certiorari application is filed, the court

of appeal judgment becomes final and definitive when the supreme

court denies the application for certiorari. La.C.C.P. art. 2166D.

A final judgment from which there can be no appeal acquires the

authority of the thing adjudged. La.C.C. art. 3506(31). Once a final

judgment acquires the authority of the thing adjudged, no court has

jurisdiction to change the judgment, regardless of the magnitude of the

final judgment's error. Tolis at 3; 660 So.2d at 1206-1207.

Avenue Plaza, L.L.C. v. Falgoust, 96-173, pp. 4-5 (La. 7/2/96), 676 So.2d 1077,

1079.

We find that Unocal is correct that materially changing or adopting a new

MFP would exceed the trial court’s authority in this matter.

Here, there is no dispute that the MFP was final. See State v. La. Land & Expl.

Co., 17-830 (La.App. 3 Cir. 3/14/18), 241 So.3d 1258, writ denied, 18-476 (La.

9/28/18), 252 So.3d 924. Therefore, in this matter, per res judicata, the trial court

cannot materially change the MFP, nor can it create a new MFP.

Therefore, our review in this appeal involves whether the trial court’s 2023

judgment actually did materially change the MFP or create a new MFP. Here,

Unocal has acknowledged that the trial court does have authority to enforce the

judgment as written, including the MFP.

The issue regarding what constitutes a material change to an existing MFP or

an adoption of a new MFP under Act 312 is res nova to this litigation. However, as

with any final judgment, the trial court is limited as to what it can change.

A final judgment may be amended by the trial court at any time, with

or without notice, on its own motion or on motion of any party to alter

the phraseology of the judgment, but not the substance, or to correct

errors of calculation. LSA-C.C.P. art. 1951.

In other words, a judgment may be amended by the court where

the resulting judgment takes nothing from or adds nothing to the

original judgment. Villaume v. Villaume, 363 So.2d 448, 450 (La.1978).

However, an amendment to a judgment which adds to, subtracts from,

or in any way affects the substance of the judgment, is considered a

substantive amendment. Starnes v. Asplundh Tree Expert Company,

94-1647 (La.App. 1st Cir. 10/6/95), 670 So.2d 1242, 1246. Substantive

amendments to judgments can be made only after a party has

successfully litigated a timely application for new trial, an action for

nullity, or a timely appeal. Creel v. Bogalusa Community Medical

Center, 580 So.2d 551, 552 (La.App. 1st Cir.), writ denied, 585 So.2d

567 (La.1991).

Suprun v. Louisiana Farm Bureau Mutual Insurance Co., 09-1555, p. 10 (La.App.

1 Cir. 4/30/10), 40 So.3d 261, 268.

Given the above, we will look to the MFP’s language regarding the three areas

addressed by Unocal’s arguments: groundwater remediation, reentry in SWD #16,

and soil remediation. Thereafter, we will look at what the trial court’s judgment

ordered regarding those three areas and determine whether the MFP’s language

allows for the trial court to order Unocal to perform remediation specifically towards

those three areas.

In looking toward what the language the MFP in this matter required of

Unocal, we note the following from State v. La. Land & Expl. Co., 19-248, p. 42

(La.App. 3 Cir. 5/6/20), 298 So.3d 296, 325:

In State v. La. Land & Explor. Co., 17-830 (La.App. 3 Cir. 3/14/18),

241 So.3d 1258, writ denied, 18-476 (La. 9/28/18), 252 So.3d 924, an

earlier appeal, this court dealt with the issue of whether LDNR’s plan

was appropriately adopted by the trial court. Chief Judge Thibodeaux,

dissenting, stated the following:

[T]he final plan submitted to the trial court contains

far too many contingencies with no estimate of the cost of

the contingencies. In short, the LDNR plan was

incomplete; it repeatedly described more work that had to

be done before remediation would be complete, including

at least two years of monitoring, but the trial court did not

require cost estimates on the additional work. As a result,

no one knows, or even has a good estimate of, how much

it will take to remediate the land to the level required to

protect the public; and no one knows how long it will take

to finish the remediation.

Id., at 1269.

In a rather prophetic dissent by Chief Judge Thibodeaux in that case, when

addressing the MFP, he went on to point out numerous issues with LDNR’s adopted

plan relative to its incompleteness or uncertainty, stating, “the trial court’s judgment[]

is a final judgment that will propagate needless litigation in the future.”

The dissent went on to assert the following:

the final plan submitted to the trial court contains far too many

contingencies with no estimate of the cost of the contingencies. In short,

the LDNR plan was incomplete. . . . As a result, no one knows, or even

has a good estimate of, how much it will take to remediate the land to

the level required to protect the public; and no one knows how long it

will take to finish the remediation.

Id. at 1269.

This language was quite prophetic as this appeal is now adjudicating the

propriety of the trial court’s decisions regarding how to remedy and fund some of

those “far too many contingencies” in the MFP.

As the 2016 judgment containing the MFP is a final judgment, Unocal is

subject to the trial court’s implementations to further the goal of the procedures of

Act 312, i.e., to remediate damage to the environment “to a standard that protects

the public interest,” as long as those implementations by the trial court were

contemplated and stated possibilities in the language of the MFP.

The MFP, in the section regarding cost estimates to be implemented, states as

follows (emphasis added):