Opposition Brief — Ewell v. Thompson
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NUMBER:
t _——
Supreme Court, U.S.
- FILED
i} SAN 30 1989
JOSEPH F. SPANIOL,
JR.
CLERK
88-965
IN THE UNITED STATES SUPREME COURT
OCTOBER TERM, 1988
LEIGHTON EWELL, ROSA McMILLAN,
BETTY CRAIG AND DOLESE CONCRETE COMPANY
PETITIONERS
HONORABLE HERBERT W. THOMPSON,
COMMISSIONER OF CONSERVATION AND
ASSISTANT SECRETARY, OFFICE OF CONSERVATION
OF THE STATE OF LOUISIANA, ET AL.,
RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
BRIEF IN OPPOSITION
Randall C. Songy*
R. Thomas Jorden, Jr.
ONEBANE, DONOHOE,
BERNARD, TORIAN,
DIAZ, MCNAMARA & ABELL
P. 0. Box 3507
Lafayette, Louisiana 70502
(318) 237-2660
Attomeys for Respondents
Celeron Oil and Gas Company,
First Energy Corporation,
Union Texas Petroleum,
TXO Production Corporation,
William J. Guste, Jr.
Attomey General
Gary L. Keyser
Assistant Attorney General
Mary Ellen Leeper
Assistant Attomey General
P.O. Box 2827
Baton Rouge, Louisiana 70821
(504) 342-4604
Attomeys for Respondent
Commissioner of Conservation
Borden, Inc., and Terra Resources, Inc. *Counsel of record
1.
QUESTIONS PRESENTED
Whether the United States Supreme Court has jurisdiction to
review a decision of the Louisiana Supreme Court at the instance
of petitioners who have suffered no injury in fact, where no
personal benefit or practical relief would result from the remedy
sought and where there is an adequate and independent state
ground for the action of the court?
Whether, considering the effect of Order 1047-B of the
Louisiana Commissioner of Conservation on these petitioners,
the important state interests involved, and the impracticality of
requiring a more extensive search, due process required more
than the extensive effort that the record reveals was undertaken
in this case to provide notice of the hearing? ;
LIST OF PARTIES
The plaintiffs below in the consolidated cases were Kaiser
Aluminum Exploration Company, Park Lane Enterprises, Inc.,
Expec Resources, Ltd., Acme Brick Company, Tolmak, Inc.,
Kansas City Southern Railway Company, Chevron U.S.A.,
Louisiana National Bank, as Trustee for the Kirk E. Williams, Jr.
Inter Vivos Trust and Bernadette S. Williams Inter Vivos Trust,
David Ewell, and the petitioners herein, Leighton Ewell, Rosa
McMillan, Betty Craig, and Dolese Concrete Company.
The defendant below was the Honorable Herbert W. Thompson,
Commissioner of Conservation and Assistant Secretary, Office of
Conservation for the State of Louisiana, respondent herein.
Intervencrs below included respondents Celeron Oil and Gas
Company, First Energy Corporation, Union Texas Petroleum, Terra
Resources, Inc., Borden, Inc., and TXO Production Corporation.
Rolfe McCollister, Sr., T. N. Samuel, Goldie Kizer, Roland C.
Kizer, Marion Kizer Jackson, and Roland C. Kizer, Jr., also
intervened in the District Court.
The parent company of respondent First Energy Corporation is
First Mississippi Corporation. Its affiliates and subsidiaries (other
than wholly owned subsidiaries) are Ammonia Producers, FRM
Agricultural Sciences Partnership, FirstMiss Gold Inc., Maxadyne
Corporation/Industrial Insulation, Inc., Steel Casting Engineering,
Ltd., and Triad Chemical.
The parent company of respondent Borden Energy Resources,
Inc. is Borden, Inc. Its affiliates and subsidiaries (other than wholly
owned subsidiaries) are Broex, S. A., E.S.T.E., S.A., Gallina
Blanca, S.A., Preparados Alimenticios, S.A., TRL, S.A., Borden
li
International Packaging Ltd., Food and Snack Holdings (Singapore)
Pte. Ltd., Borden Foods Malaysia Sdn. Bhd., Borden Intemational
Phillipines, Inc., Compania Casco S.A.I.C. Borden Chemical (M.)
Sdn. Bhd., Compania Chiricana de Leche, S.A., Materiales
Moldeables, S.A. de C.V., Compania Quimica Borden Ecuatoriana,
S.A., Gun Ei Borden Intemational Resin Co. Ltd., Hitachi Borden
Chemical Products, Inc., Korea Borden Chusik Hoesa, Meiji
Borden, Inc., Monochem, Inc., Nutrinsa, S.A., and W. Klemme
GmbH and Co.K.G.
The entity bearing the responsibility of respondent Celeron Oil
and Gas Company for this litigation is Celeron Corporation, whose
parent is Goodyear. Its affiliates and subsidiaries (other than wholly
owned subsidiaries) are Celeron Trading & Transportation Company
and Celeron Pipeline Company.
The parent company of respondent Union Texas Petroleum
Corporation is Union Texas Petroleum Holdings, Inc. Its affiliates
and subsidiaries (other than wholly owned subsidiaries) are Union
Texas Exploration Corporation, Union Texas International
Corporation, and Unimar Company. :
The parent company of respondent TXO Production Corporation
is Texas Oil & Gas Corp. which is a wholly owned subsidiary of
USX Corporation. TXO Production Corporation has no affiliates or
subsidiaries (other than wholly owned subsidiaries).
The parent company of respondent Terra Resources. Inc. is
Pacific Enterprises Oil Company which is a subsidiary of Pacific
Enterprises Oil and Gas Company which is a subsidiary of Pacific
Enterprises. Terra Resources, Inc. has no affiliates or subsidiaries
(other than wholly owned subsidiaries).
ill
inne
TABLE OF CONTENTS
PAGE
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EPL IE EEA A PEO ay CERES AEE TT DY 1
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Reasons Why The Petition Should Be Denied ..................... 10
1. This Court is Without Jurisdiction to Entertain this
PING, 7. cinctnannaensdckchnielacsiiioniedehinibaignbdeneianes 10
A. Petitioners Have No Standing to Invoke this
Re III i so dccdcnkaxadssndacasecsbinxadoaxes 10
i Re i i iiehencsincescitcnitcedanncssntsnnncnvnsess 13
C. No Substantial Federal Question; Adequate and
Independent State Grounds ..............:..c:cceceee 18
2. Neither the Decision below nor the Record Raises the
Question Presented in the Petition .................... 20
3. The Decision of the Louisiana Supreme Court Does Not
Conflict With Decisions of This Court ............... 24
SE GARNER PERCE RR AR SR OME OREN LOR AP ONT RNS Pun te: 28
APPENDIX
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iV
TABLE OF AUTHORITIES
CASES PAGE
Ades 0. Reema, ZEO UB. Bos CAPES sacecsscvacccnsssccesansnscs 19
Buchanan v. State Civil Service Commission,
372 So.2d 1065 (La.App. Ist Cir. 1979) ....... 14, 18
California v. San Pablo and Tulare Railroad,
OF By ee a ED bade (ndouduwenesestacicciesaessnsenacicen 16
City of Davis v. Coleman, 521 F.2d 661
ee Gt, SOAP inns add dcavacdbansmeisabcausedinbbndenssaeaninas 12
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)............... 17
County of L.A. v. Davis, 440 U.S. 625 (1979) 0... 14
Dison wv. Ewe, S50 CA: Fe CIP GED ia svasscseccrincanccitisninaac 24
Director, etc. v. Perini North River Associates,
ER Ua Bere CE och ck cits cladnadansanddahacnccksancasensans 10
Durley v. Mayo 351 U.S. 277 (1956) ou... eee eeeccecceeeeeeees 19
Eilts wv. ine, DEP Us Mr Ce bnithdsansadarscrccscansscncess 19
Hunter Co. v. McHugh, 320 U.S. 222 (1943) ........... 13, 14, 15
In the Matter of Delahoussaye, 402 So.2d 308
(La. App. Ist Cir. 1981), cert. denied, 413 So.2d 494
Gis SID shes snnoendcdasbecncsrueosesiaceetiecaseenae 14, 15
Kaiser Aluminum Exploration Company v. Thompson
512 So.2d 1197 (La. App. Ist Cir. 1987)
Lynch v. New York ex rel. Pierson, 293 U.S. 52 (1934) ........ 19
Mathews v. Eldridge, 424 U.S. 319 (1976) .................4. 24, 26
Mennonite Board of Missions v. Adams, 462 U.S. 791
CIS canes cackcseaanin neha amin esakihaatenbanenuginine 24
Michigan vy. Long, 463 U.S. 1032 (1983) ...... 2... cece eee 19
Mullane v. Central Hanover Bank & Trust Co.,
EP MA PE PE cacincsnanccakhacesvarurecsusausens 24, 25, 26
Murphy v. Hunt, 455 U.S. 478 (1982) . .........ccceceee eee eee en 17
Nat'l Conservative Political v. Federal Election,
COG Fe Be I, Cr FO cnncnccadevescassasctnsciete 13
Natural Resources Defense Counsel v. United States
Nuclear Regulatory Commission, 680 F.2d 810
COC. GR. FRED scucscusscencucsctesesveaseeammediareatas 16, 17
Nunez v. Wainoco Oil & Gas Co. 488 So.2d 955 ,
(La. 1986), cert. denied, 479 U.S. 925 (1986)............ 2,11
Phyie v. Daily, S34 Ue. Sa0 CR wtserscnctssetecemnncen 19
Save Our Cumberland Mountains, Inc. v. Clark,
723 F.00 2432 GK. Cy BR) tibieettesncnnne 16
South East Lake View Neighbors v. Dept. of Housing,
GBS FDR HUET CHA, CORED wectncdatvctsscccceckesscasyansee 12
Stembridge v. Georgia, 343 U.S. 541 (1952) Medes ana! 19
Tulsa Professional Collection Services, Inc. v. Pope,
US. » 1086 S.C. 1940 (1988) .............0..... 24
Union Texas, etc. v. Corporation Commission, etc., .
651 P.2d 652 (Okla. 1981), cert. denied ,
45d U.S. BaF CRED cca cnkckcdcacnccbeuscsavaccateusisusseesene 10
Warth v. Seldin, 422 U.S. 490 (1975) ............cccccecceceeeeees 10
Weinstein v. Bradford, 423 U.S. 147 (1975) .................c eee 17
Williams v. Kaiser, 323 U.S. 471 (1945) 22.0.0... ccc cece e eens 19
Woods v. Nierstheimer, 328 U.S. 211 (1946) ..........00.0.0.... 19
Zablocki v. Redhail, 434 U.S. 374 (1978) ...........ccccce eee 10
CONSTITUTIONAL PROVISIONS
United States Constitution,
Amendment XIV, Section 1....... 7, 9, 18, 19, 20, 21, 24-28
Louisiana Constitution, Article I, Section 2 ................ 7,21, 27
STATUTES
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vi
RULES
Rules of the Supreme Court of the United States.
I ee ee ee ee ee 10
Rules of Procedure of The Commissioner of Conservation for the
State of Louisiana .
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IN THE UNITED STATES SUPREME COURT
OCTOBER TERM, 1988
LEIGHTON EWELL, ROSA McMILLAN, BETTY CRAIG AND
DOLESE CONCRETE COMPANY
PETITIONERS
v.
HONORABLE HERBERT W. THOMPSON, COMMISSIONER
OF CONSERVATION AND ASSISTANT SECRETARY, OFFICE
OF CONSERVATION OF THE STATE OF LOUISIANA, ET AL.,
RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
BRIEF IN OPPOSITION
JURISDICTION
Petitioners have invoked this Court's jurisdiction under 28
U.S.C. § 1257(3).
Because petitioners have suffered no injury in fact, because no
personal benefit or practical relief would result from the remedy
sought, and since there is an adequate and independent state ground
for the action of the Louisiana Supreme Court, respondents suggest
that this Court is without jurisdiction over this matter, all as is set
forth fully in the Reasons Why the Petition Should be Denied
beginning at p.10.
STATEMENT OF THE CASE
By Order 1047, dated effective November 21, 1978, the
Commissioner of Conservation of the State of Louisiana defined the
17,600' Tuscaloosa Sand, Reservoir A, Irene Field, in East Baton
Rouge Parish, Louisiana, as that gas and condensate bearing sand
between the intervals of 17,575' - 19,112’ in the South Louisiana
Production, Inc. - R. Kizer #1 Well. The Kizer Well was the
discovery well for the field and the only well drilled at the time of
issuance of this order. Order 1047 also created twenty drilling and
production units (designated as units A-T) for the 17,600’
Tuscaloosa Sand, Reservoir A, each of which was shaped in the
form of a square with an area of one square mile.! Petitioners’
property, which at that time was subject to mineral leases granted by
petitioners to Martin Exploration Company, was located in units S
and T.
On May 17, 1985, Celeron Oil and Gas Company (Celeron),
pursuant to Rule 3 of the Rules of Procedure for Conducting
Hearings Before the Commissioner of Conservation, adopted
effective October 11, 1983 (hereinafter "Rules of Procedure" or
"Rules"), mailed to over eighteen hundred persons known by it to
Own property interests in the Irene Field, written notice of its
intention to file an application with the Commissioner, requesting
him to redefine the 17,600' Tuscaloosa Sand, Reservoir A, Irene
Field; to dissolve the units previously created by Order 1047; and to
create revised drilling and production units based upon geological
boundaries determined by sixteen additional wells which had been
1 For an excellent discussion of the Louisiana Conservation Act and the
effects of creation of a drilling and production unit see Nunez v. Wainoco Oil &
Gas Co., 488 So.2d 955, 959 (La. 1986), cert. denied, 479 U.S. 925 (1986).
drilled since the issuance of Order 1047. No wells had been drilled
during this period in units S and T, the units in which petitioners’
property was located. The pre-application notice advised that a pre-
application conference would be held on June 6, 1985 to discuss
Celeron's proposed application.
After holding the pre-application conference in accordance with
the Rules of Procedure, Celeron filed a formal application with the
Commissioner on June 10, 1985 in accordance with Rule 7 of the
Rules of Procedure. The application also was mailed to over
eighteen hundred people owning interests in the Irene Field.
Pursuant to Celeron's application, the Commissioner of
Conservation prepared a legal notice scheduling a public hearing to
consider Celeron's application on July 23, 1985. The Commissioner
published this legal notice in the official state journal, the Baton
Rouge State-Times on June 15, 1985. The applicant, Celeron,
mailed this legal notice to over eighteen hundred people owning
interests in and around the Irene Field on June 18, 1985. Celeron
additionally had this legal notice published in the official journal for
East Baton Rouge Parish, the Baton Rouge State-Times, on July 2,
1985 and posted the legal notice at the Baker City Hall and East
Baton Rouge Parish Courthouse on June 19, 1985. Baker is a city
in East Baton Rouge Parish, a substantial part of which is located
within the twenty-six square mile pattern of units then in effect for
the Irene Field.
After a public hearing held on July 23 and 25, 1985, the
Commissioner of Conservation issued Order No. 1047-B, dated
effective July 23, 1985. Order 1047-B dissolved the twenty units
created by Order 1047; redefined the sand as that interval between
17,575’ - 17,730' in the Kizer Well; renamed the newly defined sand
the “Upper Tuscaloosa Sand"; recognized two separate
reservoirs, named "Reservoirs A and B" for the Upper Tuscaloosa
Sand; and created, on the basis of geological boundaries, six drilling
and production units for the Upper Tuscaloosa Sand, Reservoir A,
and a single drilling and production unit for the Upper Tuscaloosa
Sand, Reservoir B. The only effect of Order 1047-B on petitioners
was to dissolve units S and T, which had been totally inactive during
their six and one-half-years of existence.
From this order, fourteen plaintiffs, Kaiser Aluminum
Exploration Company, Chevron U.S.A., Kansas City Southem
Railway, Park Lane Enterprises, Inc., Expec Resources, Limited,
Louisiana National Bank, as trustee for the Kirk E. Williams, Jr.
Inter Vivos Trust and Bemadette S. Williams Inter Vivos Trust,
Acme Brick Company, Tolmak, Inc., David Ewell and petitioners
sought injunction and judicial review in the Nineteenth Judicial
District Court in and for the Parish of East Baton Rouge. Made
defendant was Herbert W. Thompson, Commissioner of
Conservation.2 Numerous parties, including respondents,
intervened on the side of the Commissioner seeking a judgment
affirming Order 1047-B.
Only five of the fourteen plaintiffs in the district court alleged
that they failed to receive proper notice; the petition contains no
allegations that these parties would have attended and participated at
the hearing had they received notice. On June 6, 1986, the trial court
upheld the validity of Order 1047-B and dismissed the actions with
prejudice.
2 Commissioner Thompson was replaced in March of 1988 by J. Patrick
Batchelor, the current Commissioner of Conservation.
Eleven of the fourteen plaintiffs appealed this judgment to the
Louisiana Court of Appeal, First Circuit.3 During the pendency of
this appeal, Kaiser Energy, Inc. (a sister company to one of the
parties challenging Order 1047-B, Kaiser Aluminum Exploration
Company), filed a pre-application notice dated September 15, 1986,
pursuant to Rule 3 of the Rules of Procedure advising of its intention
to request the Commissioner to, inter alia, revise certain of the units
created by Order 1047-B. This pre-application notice scheduled a
pre-application conference for October 7, 1986 and was mailed to
numerous parties, including the petitioners. After the pre-application
conference, which none of the petitioners attended, Kaiser Energy,
Inc. filed an application on October 8, 1986 to the Commissioner
requesting a public hearing to accomplish the objectives outlined in
its September 15, 1986 letter. This application was mailed to
numerous parties, including the petitioners.
After a hearing held on November 18, 1986, which none of the
petitioners attended, the Commissioner issued Order No. 1047-B-1,
dated effective November 18, 1986, which denied Kaiser's request
to revise the Order 1047-B units. (Appendix A). Order 1047-B-1
specifically confirmed Order No. 1047-B and ordered that it be
continued in full force and effect. The property which was formerly
in units S and T remained totally inactive from the effective date of
Order 1047-B through the effective date of Order 1047-B-l. No one
filed suit for judicial review of Order 1047-B-1 within the sixty day
time period provided by La. R.S. 30:12, thus, this Order, which
confirmed Order 1047-B and continued it in force and effect, is final
and no longer subject to attack.
3 Acme Brick Company, Tolmak, Inc. and Kansas City Southern Railway
Company, did not join in the appeal of the trial court decision, and thus, the trial ~
court judgment upholding the order is final, non-appealable and entitled to res
judicata effect as to these parties.
Also during the pendency of the appeal, the Commissioner, after
compliance with the Rules of Procedure. held a public hearing on the
application of Celeron and issued Order 1047-B 2, effective
December 11, 1986, which created a single reservoirwide unit forthe
Upper Tuscaloosa Sand, Reservoir A, based on geological
boundaries of the reservoir, and dissolved any then existing drilling
and production units which had been created by the Office of
Conservation Order No. 1047 series of orders which were
inconsistent with the adoption of the reservoirwide unit. (Appendix
B). Petitioners were notified by mail of the pre-application
conference and the public hearing and attended neither. Order 1047-
B-2 is also final, as the delay for seeking judicial review has expired
without any party secking review.
On the basis of Orders 1047-B-1 and 1047-B-2, respondents
filed a Motion to Dismiss the plaintiffs’ appeal on the ground of
mootness. The Court of Appeal denied the Motion to Dismiss.
Kaiser Aluminum Exploration Company v. Thompson, 512 So.2d
1197 (La. App. Ist Cir. 1987).
On appeal to the Louisiana Court of Appeal, petitioners and the
other appellants urged the following assignments of error:
1. The district court erred in finding that adequate notice of the
proposed hearing before the Commissioner of Conservation to
— revise units previously formed by the Commissioner for the
Irene Field had been given.
2. The district court erred in failing to find that Order Number
1047-B was issued by the Commissioner of Conservation in
violation of La. R.S. 30:6 and Rules 3 and 7 of the
Commissioner of Conservation's Ruies of Procedure.
3. The district court erred in failing to find that Order Number
1047-B was issued by the Commissioner of Conservation in
violation of La. R.S. 49:950 et seq.
4. The district court erred in failing to find that Order Number
1047-B was issued by the Commissioner of Conservation in
violation of appellants’ due process rights under the United
States and Louisiana Constitutions.
5. The district court erred in failing to find that the absence of a
Statement of the Underlying Facts supporting Order Number
1047-B's Findings invalidated it.
6. The district court erred in not finding that Order Number
1047-B is invalid because it violates the provisions of La. R.S.
30:3 in that redefining the pool for the Irene Field it excludes
known productive strata and thereby encourages waste and the
drilling of unnecessary wells.
7. The district court erred in finding that the fact that the
effective date of Order Number 1047-B predated the
adjournment of the hearing did not invalidate it.
On February 23, 1988, the Court of Appeal reversed the trial
court's decision based solely on Assignments of Error Numbers 1
and 2. The Court of Appeal specifically pretermitted discussion on
Assignments of Error Numbers 3 through 7.
Respondents filed an application for writ of certiorari with the
Louisiana Supreme Court, citing the following assignments of error:
1. The Court of Appeal erred in its failure to grant the Motion to
Dismiss as to the notice plaintiffs.
. _The Court of Appeal erred in finding that the notice plaintiffs
sustained their burden of proving that substantial nghts of
theirs were prejudiced by failure to give notice.
The Court of Appeal erred in concluding that the statutory
thirty day notice requirement in La. R.S. 30:6(B) can be
satisfied only if there has been complete compliance with all
of the Rules of Procedure for Conducting Hearings Before
the Commissioner of Conservation.
The Court of Appeal erred in finding noncompliance with
Rules 3 and 7 of the Commissioner's Rules of Procedure.
In doing so, the Court of Appeal overturned a specific
factual finding of the trial court without applying or even
considering the manifest error standard.
The Court of Appeal erred in its refusal to follow and apply
all of the Commissioner's Rules of Procedure, particularly
Rule 17, which specifically prohibits the invalidation of a
Commissioner's order for failure to follow the other Rules
of Procedure.
The Court of Appeal erred in invalidating Commissioner's
Rule 17 while at the same time requiring strict compliance
with related Rules 3 and 7.
The Court of Appeal erred in invalidating the entirety of
Order 1047-B as to all persons, even those who received
notice and participated at the hearing, for the failure to give
proper notice to only four of the plaintiffs.
8. The Court of Appeal erred in retroactively applying its
declaration that Rule 17, a properly promulgated rule entitled
to a legal presumption of validity which could be relied on
by the public, is invalid.
Since the Court of Appeal pretermitted the due process question,
the body of respondents’ application did not specifically address the
due process issues, but attached as exhibits to the application were
all briefs filed by the parties in the Court of Appeal. These briefs
included the arguments and authorities cited by all parties on the due
process question.
On May 20, 1988, the Louisiana Supreme Court granted
respondents’ application, reversed the judgment of the Court of
Appeal and reinstated the judgment of the district court.
Petitioners filed an application for rehearing with the Louisiana
Supreme Court urging the Supreme Court, inter alia., to consider
petitioners’ federal due process argument. The application for
rehearing was denied September 9, 1988.
On December 5, 1988, petitioners filed with the Louisiana
Supreme Court a Motion for Certificate as to Existence of a Federal
Question (Appendix C). Petitioners essentially requested the
Louisiana Supreme Court to certify that it did not render its decision
because of mootness or any other independent state ground, and that
it considered and rejected petitione:s' due process arguments. The
Louisiana Supreme Court denied petitioners’ Motion on December 9,
1988.
REASONS WHY THE PETITION SHOULD BE DENIED
1. This Court is Without Jurisdiction to Entertain this
Matter
A. Petitioners Have No Standing to Invoke this
Court's Jurisdiction
The petitioners herein are unable to satisfy the very minimum
constitutional dimension of standing that there be an "actual injury
redressable by the court". 4 Director, etc. v. Perini North River -
Associates, 459 U.S. 297, 305 (1983). Petitioners are also unable to
demonstrate that they would benefit in any tangible way from this
Court's intervention. Warth v Seldin, 422 U.S. 490, 508 (1975).
Petitioners claim that they did not receive written notice of the
public hearing resulting in the issuance of Order No. 1047-B which
had the effect of dissolving twenty geographic units previously
established by Order No. 1047. Order 1047-B affected petitioners
only by removing their property from undrilled non-producing units,
which had been totally inactive from their inception (and thus, units
from which petitioners had never participated in production) to a
situation where their property was unaffected by any unit.
4 Respondents are uncertain whether the disclaimer contained in footnote 1 of the
petition that the plaintiffs below who are not petitioners “have not presented this
petition” is sufficient to eliminate them as parties in this Court pursuant to Rule
19.6 of the Rules of the United States Supreme Court. We note however, that as
all of them received actual mailed notice of the hearing at issue, they would be
without standing to raise lack of notice as to petitioners. Moreover, they clearly
are bound by Order 1047-B regardless of what this Court might conclude as to the
binding effect of Order 1047-B on petitioners. See e.g., Zablocki v. Redhail, 434
U.S. 374, 381 N. 6 (1978); Union Texas, etc. v. Corporation Commission, etc.,
651 P.2d 652 (Okl. 1981), cert. denied 459 U.S. 837 (1982).
10
ee OF
Following dissolution of those units petitioners were free to drill
wells upon the property without the requirement of sharing the
production in accordance with the geographic units formed by Order
No. 1047. Thus, Order 1047-B did not deprive petitioners of
participation in production but did remove a restriction on their
property nights by dissolving the unit affecting their property.
The Louisiana Supreme Court has specifically recognized that
the creation of a drilling and production unit on a person's property
by the Commissioner is an infringement of the property rights of its
owner. Nunez v. Wainoco Oil & Gas Co., 488 So.2d 955 (La.
1986), cert. denied, 479 U.S. 925 (1986). The Louisiana Supreme
Court stated:
By prohibiting an individual landowner in the unit from
drilling wells on their own tracts, by forcing them to share
production and by limiting the hydrocarbons that can be
produced, the exercise of the Commissioner's power to
unitize necessarily results in infringement on the usual rights
of ownership. 488 So.2d at 963.
Since Order 1047-B did not in any way affect petitioners’ right
to participate in production but instead removed a restriction on their
property rights, petitioners are unable to establish the threshold
requisite of standing; injury.
Moreover, petitioners are unable to establish that any alleged
injury that they have suffered is redressable in any meaningful way
by the Court. The allegedly tainted Order No. 1047-B was
confirmed and continued in force and effect by Order 1047-B-1 and
superseded by Order No. 1047-B-2. (Appendix A and B). It is
undisputed that the petitioners received mailed notice of the pre-
application conference, the application and the official legal notice of
11
the hearings that resulted in these orders.
Because no suit was filed within the sixty day period allowed for
judicial review (La. R.S. 30:12A [2)), it is undisputed that the units
created by Order 1047-B and confirmed by Order 1047-B-1 are final
and binding on all parties from November 18, 1986 forward. The
Louisiana Court of Appeal recognized this fact in its opinion, stating
that the only period at issue in the instant case is July 23, 1985 (the
effective date of Order 1047-B) to November 18, 1986 (the effective
date of Order 1047-B-1).
Under these circumstances, the only result of a declaration that
Order 1047-B was invalid would be to recreate the legal fiction that
petitioners’ land was included in a non-producing, undrilled unit
from July 23, 1985 to November 18, 1986. The petitioners have no
claim for damages and there would be no redistribution of royalties
or other monies with respect to petitioners. No personal benefit
would result to petitioners from the remedy that they seek.5
None of the petitioners alleged or testified that they would have
attended the challenged 1985 hearing had they received mailed
notice.© The absence is fatal to their standing to invoke this Court's
5 Respondents recognize that it has been suggested that a failure to comply
with procedural requirements of itself establishes a sufficient injury to confer
standing, City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975), although even
in such circumstances the alleged injuries must be susceptible to being remedied.
South East Lake View Neighbors v. Dept. of Housing, 685 F.2d 1027 (7th Cir.
1982).
6A representative of petitioner Dolese Concrete was the only one of
petitioners to testify on this issue and he was unable to affirmatively state that
Dolese would have attended had it been given notice. The strongest testimony that
le could muster was that there was "a possibility” that they would have attended.
12
jurisdiction. Nat'l Conservative Political v. Federal Election, 626
F.2d 953 (D.C. Cir. 1980).
It might appear curious to the Court that these petitioners, who
have nothing to gain, and who have shown total disinterest in
subsequent unitization proceedings, continue to incur the costs of
litigating this case. The undisputed evidence introduced at trial is that
Kaiser Aluminum Exploration Company, who received actual notice
and participated in the hearing, solicited and paid petitioners to join in
this litigation to raise the notice issue. Kaiser's interest in production
from the Irene Field was drastically reduced by Order 1047-B.
For these reasons we respectfully submit that petitioners have no
standing to invoke this Court's jurisdiction.
B. The Case is Moot
The facts set forth hereinabove also demonstrate that this case
has become moot.
In the Louisiana Court of Appeal respondents filed a Motion to
Dismiss on the basis of mootness. Respondents cited Hunter Co. v.
McHugh, 320 U.S. 222 (1943) as authority that the instant case had
become moot. In Hunter the plaintiff claimed that Order No. 28-B of
the Commissioner of Conservation was invalid because it
unconstitutionally deprived it of three separate property interests
without just compensation: 1) the value of its lease; 2) the cost of
drilling a well; 3) the cost of laying a pipeline. Subsequently, the
Commissioner promulgated Order No. 28-C that prescibed enlarged
drilling units comprising 640 acres but did not satisfy any of the
plaintiff's three complaints. A later Order, No. 28-C-10, satisfied
only the plaintiff's second and third claims for compensation.
13
Even though the plaintiff therein maintained his claim that Order
No. 28-B was null and void because it constituted a taking of
plaintiff's lease without compensation, this Honorable Court ruled
that Order No. 28-C and Order No. 28-C-10 had superseded the
operation of Order 28-B rendering the appeal moot. It is significant
that in Hunter there was an “interim period" between the
promulgation of Order No. 28-B and Order No. 28-C, for which
period plaintiff would have been entitled to one hundred percent of
the production from its lease if Order No. 28-B was invalid. Despite
that fact, and despite the fact that plaintiff did not in the subsequent :
Orders receive all the relief which he claimed he was entitled, the
appeal was ruled to be moot and the case ultimately dismissed for
want of a properly presented substantial federal question.
The Court of Appeal refused to apply Hunter on the basis that
more recent United States Supreme Court cases have more fully
defined the concept of mootness citing County of L.A. v Davis, 440
U.S. 625 (1979).
Instead, the Court of Appeal specifically ruled that "according to os
Louisiana jurisprudence, a moot case is one which, when rendered,
can give no practical relief. Courts will not rule on questions of law
which have become moot since their decree will serve no useful
purpose and afford no practical relief", citing Buchanan v. State Civil
Service Commission, 372 So.2d 1065 (La. App. Ist Cir. 1979).
The Court of Appeal held that:
If on appeal any one of these three issues is resolved in favor
of plaintiff-appellants, it could result in invalidation of Order
1047-B and the redistribution of royalties. This fulfills the
requirement that there be "practical relief" that the Court can
render. See In the Matter of Delahoussaye, 402 So.2d 308
(La. App. Ist Cir. 1981). cert. denied 413 So.2d 494 (La.
14
1982). 512 So.2d at 1200.
Thus, the Court of Appeal specifically recognized that the cause in
this matter would be moot unless invalidation of Order 1047-B could
afford the plaintiffs "practical relief" in the form of a redistribution of
royalties for the period from July 23, 1985 to November 18, 1986.
While the Court of Appeal correctly stated the Louisiana law on the
issue of mootness, the Court was clearly in error in its application of
the law to the facts of this case as set forth hereinabove.
On application for Writ of Certiorari the Louisiana Supreme
Court was urged that not only would the invalidation of Order 1047-
B provide no "practical relief" to petitioners, invalidation of the Order
would provide them no relief of any kind whatsoever. Invalidation
of Order 1047-B for the sixteen month period at issue would only
have the effect of resurrecting the units created by Order 1047 for
this limited period of time and, because the two units in which the
petitioners had interests, units S and T, were undrilled, non-
productive units from which petitioners shared no production and
received no royalties there would be no redistribution of royalties or
any other monies to petitioners, contrary to the reasoning on which
the Louisiana Court of Appeal based its denial of the Motion to
Dismiss.
It is thus clear, as a matter of Louisiana law, that this case is
moot because a declaration that Order 1047-B was invalid for this
limited period of time would result in no "practical relief" to
petitioners.
Furthermore, respondents respectfully suggest that this case is
also moot as a matter of federal law. The reasoning contained in
Hunter is equally applicable to the instant case and the more recent
jurisprudence does not alter that conclusion.
15
In Natural Resources Defense Council v. United States Nuclear
Regulatory Commission, 680 F.2d 810 (D.C. Cir. 1982) it was held
that the repromulgation of a rule in accordance with the
Administrative Procedure Act's procedural requirements moots a
claim that the same rule was previously issued without notice and
comment. The Court reasoned that although the petitioners were
deprived of the opportunity to participate in the initial promulgation
of the rule, they were "undeniably provided that opportunity... when
[the agency] repromulgated the rule in accordance with the
requirements of... the Administrative Procedure Act." /d. at 814.
The Court concluded that this opportunity provided the petitioner
with “everything that it could recover" /d. at 814 quoting California
v. San Pablo & Tulare Railroad, 149 U.S. 308. 314 (1893).
Similarly in Save Our Cumberland Mountains, Inc. v. Clark,
725 F.2d 1422 (D.C. Cir. 1984) the Court held that the plaintiffs’
claim against the Secretary of Interior challenging rule making
because it violated the notice and comment requirements of the
Administrative Procedure Act was rendered moot by the Secretary's
subsequent procedurally correct promulgation of a superseding rule,
because the plaintiffs, who received the opportunity to participate
meaningfully in the subsequent rule-making process, received all the
relief necessary to eradicate the effects of the allegedly unlawful
initial rule making. The case also involved an interim period between
the defective agency action and the superseding rule. The Court
rejected the argument that the possibility of relief by reinstating the
initial valid rule during this interim period saved the case from being
moot. Finding that such an argument mischaracterized the
deprivation caused by the procedural defect, the Court noted that the
loss suffered was the loss of opportunity to participate which
opportunity the plaintiffs had received. The Court also found that
any ruling by it with respect to the "interim period" would not change
16
the status quo. As has been demonstrated hereinabove the same is
true in the instant case.
The rule that a claim does not become moot where it is capable of
repetition, yet evades review, is likewise inapposite. The Court in
Natural Resources Defense Counsel, Inc., 680 F.2d at 814
recognized that curative agency action pursuant to notice and
comment is more accurately characterized as the provision of
appropriate relief than as the “cessation of iliegal conduct".
Furthermore, the capable of repetition doctrine applies only in
exceptional circumstances, and generally only where the named
plaintiff can make a reasonable showing that he will again be
subjected to the alleged illegality. City of Los Angeles v. Lyons,
461 U.S. 95, 109 (1983). This Court has required the showing of a
“reasonable expectation" or a “demonstrated probability" that the
same controversy will recur involving the same complaining party.
Murphy v. Hunt, 455 U.S. 478, 482 (1982); Weinstein v. Bradford,
423 U.S. 147, 149 (1975).
There is no allegation contained in the record of this case that
future action of the Commissioner of Conservation taken without
notice would likely affect the petitioners. Instead, the undisputed
fact is that the petitioners received individual mailed notice of both of
the hearings subsequent to the challenged Order. Petitioners have
presented no evidence creating a reasonable expectation that the
Commissioner of Conservation will repeat its purportedly
unauthorized actions in subsequent proceedings. Any prospect of
repetition is thus too speculative to avoid mootness.
For these reasons, respondents suggest that the issues sought to
be raised are moot as to the petitioners and that the writ should be
denied on that ground.
17
C. No Substantial Federal Question; Adequate and
Independent State Grounds
The jurisdiction of this Honorable Court pursuant to 28 U.S.C.
§ 1257(3) to review this case is subject to serious doubt. There
clearly exists an adequate and independent state ground for the action
of the Louisiana Supreme Court; this case is moot as a matter of
Louisiana law. Buchanan v. State Civil Service Commission, 372
So.2d 1065 (La. App. 1st Cir. 1979).
On Application for Writ of Certiorari to review the decision of
the Court of Appeal for the First Circuit, the Louisiana Supreme
Court was urged by respondents that invalidation of Order 1047-B
would not only fail to provide "practical relief" to the petitioners but
that invalidation of the order would provide to them no relief of any
kind whatsoever. The Louisiana Supreme Court granted the Writ of
Certiorari and summarily reversed the judgment of the Court of
Appeal.
On December 5, 1988 petitioners filed a Motion for Certificate as
to Existence of a Federal Question in the Supreme Court of Louisiana
wherein they represented that the summary reversal left petitioners
without a means to establish jurisdiction in the United States
Supreme Court. (Appendix C). Petitioners also stated that if the
Louisiana Supreme Court concluded that the appeals of the
petitioners were moot then it necessarily followed that the Louisiana
Supreme Court did not reach the constitutional issues, which would
have a direct bearing on the jurisdiction of the Supreme Court of the
United States. Petitioners thus endeavored to have the Louisiana
Supreme Court execute a Certificate as to Existence of a Federal
Question, prepared by petitioners, stating that the Louisiana Supreme
Court's reversal was not based upon a finding that the appeals were
moot and that the reversal was based upon the due process clause of
18
the Fourteenth Amendment of the United States Constitution.
On December 9, 1988 the petitioners’ Motion for Certificate as
to Existence of a Federal Question was denied without comment.
Where the highest state court has entered no written opinion,
despite the raising of both federal and state questions, as in this case,
the traditional approach of this Court has been to determine whether
the state ground raised in the record is adequate to support the
judgment, and if so, it has been presumed that the judgment was
based on the state ground and jurisdiction has been declined. Lynch
v. New York ex rel. Pierson, 293 U.S. 52, 54-55 (1934); Adams v.
Russell, 229 U. S. 353, 358-59 (1913); Woods v. Nierstheimer,
328 U. S. 211, 216 (1946); Phyle v. Duffy, 334 U. S. 431, 437
(1948); Williams v. Kaiser, 323 U.S. 471, 477-78 (1945). In such
circumstances petitioners have been required to demonstrate that the
state grounds could not account for the decision below. Durley v.
Mayo, 351 U. S. 277, 281 (1956). It has not been sufficient to
show that the judgment below "might have rested upon a nonfederal
ground." Stembridge v. Georgia, 343 U. S. 541, 547 (1952); Ellis
v. Dixon, 349 U. S. 458, 459 (1955).
In cases in which a state court decision fairly appears to rest
primarily on federal law, or to be interwoven with the federal law,
and when the adequacy and independence of any possible state law
ground is not clear from the face of the opinion, this Court has
recently applied a new presumption that the state court decided the
case the way it did because it believed that federal law required it to
do so. Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983). The
test applied in Michigan is not susceptible to application in this case.
Neither of the decisions of the Louisiana Court of Appeal rest upon
federal law and there is no opinion of the Louisiana Supreme Court.
19
While it is impossible to say with certainty that the Louisiana
Supreme Court based its reversal on the issue that the case was moot
as a matter of state law, that adequate and independent state ground
clearly exists and likely was the basis of the Louisiana Supreme
Court's decision. A determination that the case is moot is certainly
broad enough, without reference to any federal question implicated
by this case, to sustain the state court judgment, notwithstanding any
error in deciding the federal question.
Petitioners have recognized their inability to establish jurisdiction
in this court without a statement from the Louisiana Supreme Court
that its decision was based upon federal law. The Louisiana
Supreme Court's denial of the Motion for Existence of a Substantial
Fedcral Question should be interpreted as meaning that the Louisiana
Supreme Court is of the opinion that its decision was based upon an
independent state law ground, particularly since petitioners
represented to that court that denial of the motion would result in
their inability to establish jurisdiction in this Honorable Court. As a
result, respondents respectfully suggest that this Honorable Court is
without jurisdiction to entertain this case.
2. Neither the Decision Below Nor the Record
Raises the Question Presented in the Petition
The sole question presented in the petition is :
Whether the longstanding practice of the Commissioner of
Conservation for the State of Louisiana of notice of hearings
by publication is sufficient to satisfy the due process
requirements of the Constitution of the United States.
Neither of the published opinions by the Louisiana Court of Appeal
20
deal with that issue and it was not necessary for the Louisiana
Supreme Court to reach that question because of mootness.
Morcover the facts of the record will not support a determination
of that question by this Court. The premise underlying the question
presented is that it is the longstanding practice of the Commissioner
of Conservation to give notice of hearings affecting oil and gas
interests only by publication. That premise is supported neither by
the record nor even by the petition. While it has been the
longstanding practice of the Commissioner of Conservation to satisfy
the specific thirty day notice requirements of La. R.S. 30:6(B) by
publication of a legal notice in the official state journal, the Office of
Conservation has recognized that the due process provisions of both
the Louisiana and United States Constitutions require additional
notice to certain partics when the Commissioner of Conservation
adjudicates rights of owners of oil and gas interests by establishing
or modifying drilling and production units.
In order to satisfy and exceed duc process requirements, the
Rulcs of Procedure provide for many other ways of providing notice
to supplement the Section 6(B) thirty day notice. (sce Petition,
Appendix H). The Office of Conservation has consistently followed
these procedures since their adoption in 1983.
Under Rule 3 any party intending to apply for a hearing must
send a pre-application notice outlining the proposal to the
Commissioner with a copy to each interested owner and represented
party. The applicant must makc a reasonable effort to determine to
whom the notices must be sent in accordance with the rule. If a
timely request is made, the applicant must hold a conference at which
he must explain the geological and engineering bases for his
proposal, and allow other partics with different proposals to do
likewise.
21
Thereafter, pursuant to Rule 7, the party may apply to the
Commissioner for a public hearing to consider his unit proposal.
His application must also be mailed to each interested owner and
represented party. After the Commissioner prepares and publishes
the legal notice reflecting the time, date, place and nature of the
hearing, the applicant is required to mail the legal notice to all
interested owners, represented parties and interested parties along
with a copy of the unit plat if said parties have not already been
furnished same. Additionally the applicant is required to provide for
the posting of a copy of the legal notice and the unit plat in a
prominent place in the area affected and to provide for publication of
a copy of the legal notice in the newspaper published in the vicinity
or general area of the affected field at least fifteen days before the
hearing. Evidence to establish compliance with these posting,
publishing and mailing requirements is required to be submitted at
the hearing.
Thus petitioners’ suggestion that this Court should grant the wnt
to rectify the Louisiana Supreme Court's sanction of a longstanding
administrative practice of providing notice only by publication is
totally lacking foundation.
The real facts regarding notice of the subject hearing, as set forth
in the Statement of the Case hereinabove, is in stark contrast to the
picture painted by petitioners. The list of over 1,800 people that
were mailed copies of the pre-application notice, the application and
the legal notice of the hearing was compiled by the applicant during
nine years of exhaustive and expensive record searches and title
work. This effort included two entire years of having several
employees working full time at the East Baton Rouge Court House
researching the ownership of the twelve units (units A-L) which it
had requested the Commissioner to form and in which it had
ze
substantial interest. This list was supplemented by the applicant
calling some of the other known mineral lessees in the field and
requesting that they provide a list of their royalty owners for
inclusion on this mailing list. Units M - T (which include units S
and T in which petitioners’ property is located) were originally
formed at the request of Martin Exploration Company, and a
representative of the applicant called Martin Exploration Company
and asked for a list of its royalty owners in the Irene Field.
Thus the only potential issue is, considering the minimal and
beneficial impact of Order 1047-B on the owners in units M - T,
whether due process required the Commissioner or the applicant, in
addition to the request to Martin Exploration Co., to engage in an
extended, impractical search for the names and addresses of all
parties owning interests in this highly populated eight square mile
area.
Making this matter more unique is petitioners' argument that "no
effort was made to notify the owners in units M - T". Petitioners
argue that while the representative of Celeron made a request to
Martin Exploration Company for a list of its royalty owners, his
unexpressed intention was to receive only a list of royalty owners
from Martin Exploration Company within units A - L. The District
Court rejected this argument and found that the applicant had
requested Martin Exploration Company to provide it with a list of
royalty owners, whereas the Court of Appeal used the unexpressed
intention of this representative to rule that no effort had been made by
the applicant to compile a list of the owners in units M-T. One of the
assignments of error in the respondents’ application for Writ of
Certiorari to the Louisiana Supreme Court was the Court of Appeal's
improper reversal of this factual finding of the District Court without
applying the "manifest error” rule applicable in Louisiana.
23
The foregoing illustrates that the issues involved here are not of
general application and any ruling by this Court likely will apply only
to this very unique case.
3. The Decision of the Louisiana Supreme Court
Does Not Conflict With Decisions of this Court
Even if the Louisiana Supreme Court did consider the due
process issue, its decision does not conflict with Mullane v. Central
Hanover Bank and Trust Co., 339 U.S. 306 (1950), Mennonite
Board of Missions.v. Adams, 462 U.S. 791 (1983) or Tulsa
Professional Collection Services, Inc. v. Pope, ___U.S.__, 108
S.Ct. 1340 (1988) as contended by petitioners. These cases define
the requirements of due process in the context of a judicial
proceeding. The action being reviewed is an administrative
adjudication, and this court has repeatedly held that the more strict
due process requirements applicable to judicial proceedings need not
be applied to administrative adjudications. Mathews v. Eldridge,
424 U.S. 319, 348 (1976); Dixon v. Love, 431 U.S. 105, 115
(1977). Even applying judicial standards, while Mullane did hold
that notice effected by publication was insufficient in many instances,
this court made the following comments approving of notice by
publication in certain circumstances:
This Court has not hesitated to approve of resort to
publication as a customary substitute in another class of
cases where it is not reasonably possible or practicable to
give more adequate warning. Thus it has been recognized
that, in the case of persons missing or unknown,
employment of an indirect and even a probably futile means
of notification is all that the situation permits and creates no
constitutional bar to a final decree foreclosing their nghts.
(Citations omitted.)
24
Those beneficiaries represented by appellant whose interests
or whereabouts could not with due diligence be ascertained
come clearly within this category. As to them the statutory
notice is sufficient. However great the odds that publication
will never reach the eyes of such unknown parties, it is not
in the typical case much more likely to fail than any of the
choices open to legislatures endeavoring to prescribe the best
Nor do we consider it unreasonable for the State to dispense
with more certain notice to those beneficiaries whose
interests are either conjectural or future or, although they
could be discovered upon investigation, do not in the due
course of business come to knowledge of the common
trustee. Whatever searches might be required in another
situation under ordinary standards of diligence, in view of
the character of the proceedings and the nature of the
interests here involved, we think them unnecessary. We
recognize the practical difficulties and costs that would be
attendant on frequent investigations into the status of great
numbers of beneficiaries, many of whose interest in the
common fund are so remote as to be ephemeral; and we have
no doubt that such impracticable and extended searches are
not required in the name of due process. The expense of
keeping informed from day to day of substitutions among
even current income beneficiaries and presumptive
remainderman, to say nothing of the far greater number of
contingent beneficiaries, would impose a severe burden on
the plan, and would likely dissipate its advantages. These
are practical matters in which we should be reluctant to
disturb the judgment of state authorities. Mullane, at 317-
318 and 658-659. (Emphasis added)
25
Even petitioners recognize (see p. 13 of the Petition) that
Mullane and its progeny have made clear that the issue of the
sufficiency of notice is not subject to a single rule of universal
application requiring mailed notice under all circumstances.
Petitioners correctly recognize that in this case, the sufficiency of
notice is to be evaluated in light of the effect that requiring actual
notice may have on important state interests and the reasonability of
ascertaining the identity of persons affected by state action (see p. 13
of the Petition). This Court has also considered, in evaluating the
sufficiency of notice, the nature of the private interests involved and
the effect of the proposed state action on those interests. Mullane,
supra; Mathews v. Eldridge supra at 906.
The latter two factors have previously been discussed in this
brief and will not be repeated here.
There are undeniably important state interests involved here.
The units created by Order 1047 were arbitrary square units not
reflecting the true geological boundaries of the reservoir, since they
were created at a time when only one well was present and the areal
extent of the reservoir was unknown. After the field had becn
developed by the drilling of sixteen additional wells the
Commissioner became aware through the application that the
geological boundaries of the reservoir were ascertainable. Large
areas within the units which had been sharing in production were
shown by this drilling activity not to be underlain by the reservoir.
Continuing the allocation of production to these non-productive areas
would have deprived the owners of the truly productive area of their
just and equitable share of production from the reservoir. This
information compelled the Commissioner to revise the units as soon
as possible, not only because of the statutory mandate set forth in the
Louisiana Conservation Act, but also because of the dictates of the
26
substantive due process provisions of the United States and
Louisiana Constitutions preventing the taking of property rights
without compensation. Requiring actual notice to all parties in this
case would have significantly delayed the proceeding and the
consequent equitable adjustments to the allocation of production.
The essence of the problem was summarized concisely by the
testimony of Lawrence Ringham, the president of Park Lane
Enterprises, Inc., one of the plaintiffs below. After identifying Park
Lane's leases in yellow on Exhibit P-22 (Prel. Inj. Transcript, pp 41-
2), Ringham admitted that approximately half of this acreage was
outside the productive area of the Irene Field, even under the
gedlogical interpretation that Park Lane asked the Commissioner to
adopt (Prel. Inj. Transcript, p 56). Mr. Ringham then testified as
follows:
ABELL: Okay. If you've got $2.5 million based on
receiving 100% of the yellow acreage, then in
fact you received $1.25 million for production
attributable to lands which even your
geologist couldn't believe had any gas or oil
under it. Is that correct?
RINGHAM: That is correct.
ABELL: And you wish the squares would have stayed
like that so you would continue to get all that
production, don't you?
RINGHAM: Obviously that's the optimum, I'm a
businessman, Mr. Abell.
See Prel. Inj. Transcript, pp. 59-60.
27
The importance of the state interest in quickly rectifying the
inequitable allocation of production caused by its earlier order must
be weighed heavily in the due process analysis .
In summary, this case may involve the application of this
Court's decisions regarding sufficiency of notice to the facts of the
instant case, but the Louisiana Supreme Court's decision is in no
way in conflict with those decisions. The unusual facts of this case
make it unique and any decision by this Court would affect few, if
any, other litigants.
CONCLUSION
For these reasons, the Petition for a Wnt of Certiorari should be
denied.
Respectfully submitted,
Randall C. Songy*
R. Thomas Jorden, Jr.
ONEBANE, DONOHOE,
BERNARD, TORIAN,
DIAZ, MCNAMARA & ABELL
P. 0. Box 3507
Lafayette, Louisiana 70502
(318) 237-2660
Attomeys for Respondents
Celeron Oil and Gas Company,
First Energy Corporation,
Union Texas Petroleum,
TXO Production Corporation,
William J. Guste, Jr.
Attorney General
Gary L. Keyser
Assistant Attomey General
Mary Ellen Leeper
Assistant Attomey General
P.O. Box 2827
Baton Rouge, Louisiana 70821
(504) 342-4604
Attorneys for Respondent
Commissioner of Conservation
Borden, Inc., and Terra Resources, Inc. *Counsel of record
28
APPENDIX A
STATE OF LOUISIANA
OFFICE OF CONSERVATION
ATON E ISIANA
December 5, 1986
RDER 1047-B-1
Order concerning the dissolution of the units created by
order No. 1047-A for the 17600' Tuscaloosa Sand,
Reservoir A and denying the application for revision of the
U TUSC RA SUD and U TUSC RA SUE created by Office
of Conservation Order No. 1047-B for the Upper
Tuscaloosa Sand, Reservoir A, IRENE FIELD, East Baton
Rouge Parish, Louisiana.
2h He ee he he 2c 2c he aie he ae he ee he ae fe ae ake he ae 2h ae fe ote ae ake oe fe ae 2 oe ake oc ke fe ae ae fe ake fe ake he ake fe ake ae ake ake ake ake kc ok
Pursuant to power delegated under the laws of the State of
Louisiana, and Particularly Title 30 of Louisiana Revised Statutes of
1950, and after a public hearing held under Docket No. 86-703 in
Baton Rouge, Louisiana, on November 18, 1986, upon the
application of KAISER ENERGY, INC. following legal publication
of notice and notice in accordance with rules prescribed by the
Commissioner of Conservation, the following order is issued and
promulgated by the Commissioner of Conservation as being
reasonably necessary to conserve the natural resources of the state,
to prevent waste as defined by law, to avoid the drilling of
unnecessary wells, and otherwise to carry out the provisions of the
laws of this State.
A-1
DEFINI
The 17600' Tuscaloosa Sand, Reservoir A in the Irene Field,
East Baton Rouge Parish, Louisiana was fully defined in Office of
Conservation Order No. 1047, effective November 21, 1978.
The Upper Tuscaloosa Sand, Reservoir A in the Irene Field,
East Baton Rouge Parish, Louisiana was fully defined in Office of
Conservation Order No. 1047-B effective July 23, 1985.
FINDINGS
The Commissioner of Conservation finds as follows:
1. That Office of Conservation Order No. 1047-A, effective
September 18, 1979, created five (5) drilling and production units
for the exploration for and production of gas and condensate from
the 17600' Tuscaloosa Sand, Reservoir A, in the Irene Field, East
Baton Rouge Parish, Louisiana, said units being designated 17600
TUSC RA SU JU, V, W, X, and Y.
2. That Office of Conservation Order No. 1047-B, effective
July 23. 1985. established rules and regulations and created drilling
and production units, for the exploration for and production of gas
and condensate from the Upper Tuscaloosa Sand, Reservoir A, in
the Irene Field, East Baton Rouge Parish, Louisiana, including the
units designated U TUSC RA SUD and U TUSC RA SUE.
3. That the additional geological and engineering data obtained
since the issuance of such orders held herein establishes that there
should be no change in ihe U TUSC RA SUD and U TUSC RA
SUE created by Order 1047-B, and accordingly all request to revise
such units should be denied.
4. That the same evidence establishes that the 17600 TUSC RA
SU U, V, W, X, and Y created by order No. 1047-A appear to be
non-productive and therefore should be dissolved.
ORDER
NOW, THEREFORE, IT IS ORDERED THAT:
1. In view of the above Findings, all request for revision of the
U TUSC RA SUD and U TUSC RA SUE created by Office of
Conservation Order No. 1047-B effective July 23, 1985, be and are
hereby denied, and Order 1047-B is hereby confirmed and continued
in force and effect.
2. The 17600 TUSC RA SU JU, V, W, X and Y, created by
Office of Conservation Order No. 1047-A effective September 18,
1979 be and they are hereby dissolved.
This order shall be effective on and after November 18, 1986.
OFFICE OF CONSERVATION
OF THE STATE OF LOUISIANA
JRA: 1be /s/ Herbert W. Thompson
Denial HERBERT W. THOMPSON
Dis Unit COMMISSIONER OF CONSERVATION
APPENDIX B
STATE OF LOUISIANA
OFFICE OF CONSERVATION
ATONR E ISIANA
December 22, 1986
RDER NO, 1047-B-2
Order concerning dissolution of any currently existing
drilling and production units created by the Office of
Conservation Order 1047 Series of Orders which are
inconsistent with the adoption of the proposed reservoirwide
unit, and the simultaneous creation of a reservoirwide unit
for the Upper Tuscaloosa Sand, Reservoir A, in the IRENE
FIELD, East Baton Rouge Parish, Louisiana.
ae ke ic i fc ke oc 2 2c 2c oc ofc akc ke ok 2 ake ok ok fe 2k ake 2 a af kc aie 2 oc ake ac ake afc ak 2 ake ae oe fe ote oe ate ote ke aie ae ae ee
Pursuant to power delegated under the laws of the State of
Louisiana, and particularly Title 30 of the Louisiana Rev.sed Statutes
of 1950, and after a public hearing held under Docket No. 86-702 in
Baton Rouge, Louisiana, on December 11, 1986, upon the
application of Celeron Oil and Gas Company, following legal
publication of notice and notice in accordance with rules prescribed
by the Commissioner of Conservation, the following order is issued
and promulgated by the Commissioner of Conservation as being
reasonably necessary to conserve the natural resources of the State,
to prevent waste as defined by law, to avoid the drilling of
unnecessary wells and otherwise to carry out the provisions of the
laws of this State.
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DEFINITIONS
The Upper Tuscaloosa Sand, Reservoir A, in the Irene Field,
East Baton Rouge Parish, Louisiana, was previously defined in
Office of Conservation Order No. 1047-B.
"Unit Agreement,” as used herein shall mean and refer to the
agreement which sets forth the plan and terms of unit operation and
which was admitted into evidence in connection with Docket No. 86-
702". Said agreement is on file in the official records of the Office of
Conservation in Baton Rouge, Louisiana, and is made a part hereof
by special reference.
FINDINGS
The Commissioner of Conservation finds as follows:
1. That Office of Conservation Order No. 1047-B, effective
July 23, 1985, created six (6) drilling and production units,
designated SU A, B, C, D, E, and F, for the Upper Tuscaloosa
Sand, Reservoir A in the Irene Field, East Baton Rouge Parish,
Louisiana.
2. That the additional geological and engineering evidence
obtained since the creation of these units indicates that the units
designated SU A, B, C, D, E, and F, heretofore created, should be
dissolved and, simultaneously, there should be created a single
reservoirwide unit comprised of the entire Upper Tuscaloosa Sand,
Reservoir A, in the Irene Field, East Baton Rouge Parish, Louisiana,
in accordance with the provisions of LSA-R.S. 30:5C.
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3. That the said evidence establishes that the creation of the said
reservoirwide unit is reasonably necessary for the prevention of
waste and the drilling of unnecessary wells, and will appreciably
increase the ultimate recovery of gas and condensate from the
reservoir.
4. That the said evidence establishes that the proposed unit
operation submitted by applicant is economically feasible, and should
be approved and adopted.
5. That the Unit Area as shown on the plat labeled, "Celeron Oil
and Gas Company Exhibit No. 4 for Docket No. 86-702", a copy of
which is attached hereto and made a part hereof, is reasonable,
comprises the entire known productive area of the Upper Tuscaloosa
Sand, Reservoir A in the Irene Field, East Baton Rouge Parish,
Louisiana, and it should be established and adopted as a single
reservoirwide unit for the exploration for and production of gas and
condensate from said reservoir.
6. That the separately owned tracts, mineral leases and other
property interests within the Unit Area created herein should be force
pooled and integrated, with each separate tract sharing in unit
production in accordance- with the schedule designated Tract
Participation on the plat labeled, "Celeron Oil and Gas Company
Exhibit No. 4 for Docket No. 86-702", which schedule is also
attached to the Unit Agreement as Exhibit C.
7. That the allocation of unit production to each separate tract
within the Unit, in accordance with Finding No. 6, shall insure the
recovery by the owners of that tract of their just and equitable share
of the recoverable gas and condensate in Upper Tuscaloosa Sand,
Reservoir A, Irene Field, East Baton Rouge Parish, Louisiana, and
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therefore, said method of allocation should be approved and adopted.
8. That the evidence received at the hearing establishes that the
B-3Unit Agreement, which covers the plan and terms of unit
operations, has been signed and executed by more than three-fourths
in interest of the Owners and more than three-fourths in interest of
the Royalty Owners in the Unit Area, calculated in accordance with
LSA-R.S. 30:5C; that said Unit Agreement was filed with the
Commissioner of Conservation on or before the day set for the
hearing; and that said Unit Agreement should be approved and
adopted insofar as authorized by the provisions of LSA-R.S. 30:5C.
9. That Celeron Oil and Gas Company should be designated as
the operator of the unit created herein. ‘
10. That the costs and expenses of the unit operation should be
bome by the Owners of the tracts included within the reservoirwide
unit in the same proportion that said tracts share in unit production, in
the absence of a voluntary agreement to the contrary.
11. That to provide for efficiency in operations and to permit any
additional wells to be located at optimum positions, the spacing rules
of the Office of Conservation Order 1047 Series and Statewide Order
No. 29-E should not apply to wells drilled within the Unit Area.
12. That the reservoirwide unit herein created should be granted
a single reservoir allowable which can be produced from any well or
wells in the unit, at Operator's option, subject to applicable Statewide
Orders.
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RDE
NOW, THEREFORE, IT IS ORDERED THAT:
1. The drilling and production units heretofore created by Office
of Conservation Order No. 1047-B designated SU A, B, C, D, E
and F, be and they are hereby dissolved and simultaneously there is
created a single reservoirwide unit compromised of the entire Upper
Tuscaloosa Sand, Reservoir A in the Irene Field, East Baton Rouge
Parish, Louisiana, all in accordance with the provisions of LSA-
R.S. 30:5C. said reservoirwide unit being shown on the plat labeled,
"Celeron Oil and Gas Company Exhibit No. 4 for Docket No. 86-
702", a copy of which is attached hereto and made a part hereof.
2. All separately owned tracts, mineral leases and other property
interests within the reservoirwide unit herein established are hereby
pooled, consolidated, and integrated in accordance with LSA-R.S.
30:5C and 10, with each tract sharing in unit production in
accordance with the schedule designated Tract Participation on the
plat labeled, "Celeron Oil and Gas Company Exhibit No. 4 for
Docket No. 86-702", and as provided in the Unit Agreement in
Exhibit C thereof.
3. The Unit Agreement is hereby approved and adopted in
accordance with Finding No. 8 hereof.
4. Celeron Oil and Gas Company is hereby designated Unit
Operator of the reservoirwide unit herein created.
5. The costs and expenses of unit operation shall be bome in
accordance with Finding No. 10 hereof.
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6. Future wells within the boundaries of the unit created herein
which are completed in the Upper Tuscaloosa Sand, Reservoir A
may be located in accordance with Finding No. 11.
7. The allowable for the reservoirwide unit herein created shall
be granted and may be produced in accordance with Finding Nos. 11
and 12.
8. This order shall not vary or alter any of the terms of the Unit
Agreement nor impose any terms or operations upon the non-signers
of said Unit Agreement more onerous than the terms and operations
set out in said agreement.
9. All provisions of the Office of Conservation Order 1047
Series which are contrary to the provisions of this Order are
rescinded; however, except to the extent contrary herewith, all
pertinent provisions of the Office of Conservation Order 1047 Series
and all applicable Statewide Orders shall apply to the unit created
herein.
10. When there is additional geological and engineering
information which would indicate a required change or revision in
the unit boundaries as adopted herein or which would indicate a
required change or revision of other provisions of this order, the
party or parties in possession of such additional information shall
petition the Commissioner of Conservation for a public hearing for
the purpose of considering appropriate changes.
This Order shall be effective on and after December 11, 1986.
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OFFICE OF CONSERVATION
OF THE STATE OF LOUISIANA
H W mpson
HERBERT W. THOMPSON
COMMISSIONER OF CONSERVATION
ML/Ic
Celeron Oil and Gas Company
Exhibit No. 4 for
Docket No. 86-702 -
Attached
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APPENDIX C
THE SUPREME COURT
FOR THE STATE OF LOUISIANA
DOCKET NO. 88-C-1036
KAISER ALUMINUM EXPLORATION COMPANY, INC.,
ET AL
Plaintiffs-Respondents
versus
THE HONORABLE HERBERT W. THOMPSON,
COMMISSIONER OF CONSERVATION AND ASSISTANT
SECRETARY, OFFICE OF CONSERVATION
OF THE STATE OF LOUISIANA
Defendant-Applicant
CONSOLIDATED WITH:
CHEVRON U.S.A. INC.
Plaintiff-Respondent
versus
HERBERT W. THOMPSON, COMMISSIONER OF
CONSERVATION
Defendant-Applicant
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PLAINTIFFS-RESPONDENTS' MOTION FOR
CERTIFICATE AS TO EXISTENCE OF A FEDERAL
QUESTION
Now come Plaintiffs-Respondents ]/ in this matter and move
this Court for the issuance of a Certificate As To Existence of a
Federal Question. In support of this motion, Plaintiffss-
Respondents show:
1.
Defendants-Applicants 2/ filed their Application for Wnit of
Certiorari on April 29, 1988. By Order dated May 20, of 1988, this
Court granted certiorari and summarily reversed the Court of Appeal,
First Circuit and reinstated the judgment of the district court. A copy
of the May 20, 1988 order is attached hereto as Exhibit A.
y a
Plaintiffs-Respondents filed their Application for Rehearing on
June 3, 1988, and their Supplemental Brief in Support of Application
for Rehearing on July 7, 1988. By order dated September 9, 1988,
this Court denied the Application for Rehearing.
)/ Plaintiffs-Respondents are Kaiser Aluminum Exploration Company, Park
Lane Enterprises, Inc., Expec Resources, Ltd., Acme Brick Company, Leighton
Ewell, Rose McMillan, Betty Craig, Dolese Concrete Company, Louisiana
National Bank as trustee for the Kirk E. Williams, Jr. Inter Vivos Trust and the
Bernadette S$. Williams, Inter Vivos Trust, and Chevron U.S.A. Inc.
2/ Defendants-Applicants are Herbert W. Thompson, former Commissioner
of Conservation of the State of Louisiana, J. Patrick Batchelor, current
Commissioner of Conservation of the State of Louisiana, Celeron Oil & Gas
Company, First Energy Corporation, Union Texas Petroleum, Terra Resources,
Inc., Borden, Inc., and TXO Production Corporation.
3.
Plaintiffs-Respondents have contended in the district court, the
Court of Appeal, First Circuit, and in this Court that the failure to
provide actual notice by mail of a hearing subsequently conducted by
the Commissioner of Conservation constituted a violation of Due
Process Clause of the Fourteenth Amendment of the United States
Constitution.
4.
Certain Plaintiffs-Respondents desire to present the issue of the
violation of the Due Process Clause of the Fourteenth Amendment of
the United States Constitution to the Supreme Court of the United
States for review.
3.
As a result of this Court's summary reversal of the Court of
Appeal, First Circuit, and the resulting absence of any indication
from the Court as to the bases of its summary reversal, Plaintiffs-
Respondents are left without a means to establish jurisdiction in the
United States Supreme Court.
6.
Specifically, among the errors relied upon by Defendants-
Appellants in their Application was the assertion that the Court of
Appeal should be reversed for failure to dismiss the appeals of
Leighton Ewell, Rose McMillan, Betty Craig, and Dolese Concrete
Company on the ground of mootness. If this Court did conclude that
the appeals of these Plaintiffs-Respondents were moot, than it
necessarily follows that this Court did not reach the Due Process
Clause violation issue as to these Plaintiffs-Respondents, which in
turn would have a direct bearing on the jurisdiction of the Supreme
Court of the United States.
¥
In addition, the absence of an opinion from this Court makes it
difficult for Plaintiffs-Respondents to represent to the Supreme
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iia ieciain eee
Court of the United States that the federal Due Process Clause
argument was raised in this Court, and impossible to determine
whether this Court considered and rejected that argument. Both
issues may be critical to establishing jurisdiction in the Supreme
Court of the United States.
8.
Plaintiffs-Respondents have prepared and presented to this
Court a Certificate as to Existence of a Federal Question, wherein
this Court certifies as to the issues addressed above. Certificates of a
similar nature have been utilized by the United States Supreme Court
from time to time. See for example, Allenberg Cotton Company v.
Pittman, 419 U.S. 20, 95 S.CT. 260, 42 L.Ed.2d 195 (1974).
WHEREFORE, Plaintiffs-Respondents request that this Court,
through a designated Justice of this Court, execute the Certificate as
to Existence of a Federal Question if this Court finds the
representations contained therein accurate.
(s/ Robert L, Redfeam
ROBERT L. REDFEARN
JAMES A. BURTON
JOHN C. HERBERT
SIMON, PERAGINE, SMITH &
REDFEARN
30th Floor, Energy Centre
1100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 569-2030
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H. H. HILLYER, JR.
M. HAMPTON CARVER
M. TAYLOR DARDEN, T.A
SUSAN HOPKINS MEYERS
MILLING, BENSON, WOODWARD,
HILYER, PIERSON & MILLER
909 Poydras Street
Suite 2300
New Orleans, LA 70112
Telephone: (504) 569-7000
Attomeys for Plaintiffs-
Respondents
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Plaintiffs’ Motion
tor Certificate as to Existence of a Federal Question has been served
on all counsel of record by depositing same in the United States
mail, postage prepaid and properly addressed this /s/Sth day of
December, 1988.
ls/ Judy Perry Martinez
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THE SUPREME COURT
FOR THE STATE OF LOUISIANA
DOCKET NO. 88-C-1036
KAISER ALUMINUM EXPLORATION COMPANY, INC.; ET
AL
Plaintiffs-Respondents
versus
THE HONORABLE HERBERT W. THOMPSON,
COMMISSIONER OF CONSERVATION AND ASSISTANT
SECRETARY, OFFICE OF CONSERVATION OF THE STATE
OF LOUISIANA
Defendant-Applicant
CONSOLIDATED WITH:
CHEVRON U.S.A. INC.
Plaintiff-Respondent
versus
HERBERT W. THOMPSON, COMMISSIONER OF
CONSERVATION
Defendant-Applicant
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CERTIFICATE AS TO
EXISTENCE OF A FEDERAL QUESTION
This Court, in matter No. 88-C-1036, Kaiser Aluminum
Exploration Company. Inc., et al. v. The Honorable Herbert W.
Thompson, Commissioner of Conservation, consolidated with
Chevron U.S.A. Inc. v. The Honorable Herbert W. Thompson,
hereby certifies, upon motion of Plaintiffs-Respondents, that: (1) the
applicants in their Application for Writ of Certiorari insisted that the
Court of Appeal, First Circuit, erred in not dismissing Leighton
Ewell, Rosa McMillan, Betty Craig, and Dolese Concrete
Company's appeal on grounds of mootness; and, (2) this Court in
reversing the Court of Appeal and reinstating the judgment of the
district court did not base its decision on a finding that the |
aforementioned appeals to the Court of Appeal were moot.
This Court further certifies that: (a) Plaintiffs in their Application
for Rehearing and Supplemental Brief in Support of Application for
Rehearing argued that the failure to provide actual notice by mail of a
hearing conducted by the Commissioner of Conservation violates the
Due Process Clause of the Fourteenth Amendment of the United
States Constitution; (2) in its deliberation of this case, this Court
considered this question of whether the failure to provide actual
notice by mail of a hearing conducted by the Commissioner of
Conservation violated the Due Process Clause of the Fourteenth
Amendment of the United States Constitution; and, (3) it was the
judgment of this Court that the failure to provide actual notice by mail
of a hearing to be conducted by the Commissioner of Conservation
did not violate the Due Process Clause of the Fourteenth Amendment
of the United States Constitution. ;
New Orleans, Louisiana, this___ day of , 1988.
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SUPREME COURT OF LOUISIANA
JUSTICE
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