# Petition for Writ of Certiorari — Frank C. Minvielle, LLC v. Atlantic Refining Co. (No. 09-493) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1159%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text “@e CO mm a Le mA a a Supremes Couit, U.S. i y (\) FILED om 09-493 0CT 22 2009 OFFICE OF THE CLERK In The Supreme Court of the United States e FRANK C. MINVIELLE, LLC, Petitioner, versus ATLANTIC REFINING COMPANY, OXY U.S.A. INC., PACIFIC ENTERPRISES OIL CO. (USA), and MOSAIC GLOBAL OPERATIONS, INC., Respondents. 6 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit % PETITION FOR A WRIT OF CERTIORARI o— 4 ViIcTOR L. MARCELLO Counsel of Record TALBOYV, CARMOUCHE & MARCELLO P.O. Box 759 Gonzales, LA 70707-0759 (225) 644-7777 PATRICIA E. WEEKS JOHN P. GONZALEZ WEEKS & GONZALEZ, APLC 400 Mayazine Street, Suite 200 New Orleans, LA 70130-2444 (504) 799-2888 QUESTIONS PRESENTED FOR REVIEW Does the dismissal without prejudice of a re- moved action for lack of standing preclude a second action when the plaintiff acquires stand- ing after the dismissal? Does a district court have ancillary or supple- mental jurisdiction to dismiss a removed action on grounds of res judicata if the plaintiff does not otherwise have standing under Article III and state law? Is a federal court required to remand an action removed on grounds of diversity when the plain- tiff has no standing under Article IJI or state law? Should Burford abstention be applied to a sui generis Louisiana statute governing private claims for oilfield remediation that: (1) requires substantial involvement of the state’s natural resources agency in the judicial decision making process; and (2) mandates an expedited de novo appeal that is incompatible with federal appel- late rules and standards of review? PARTIES TO THE PROCEEDING The parties to the proceeding in the Honorable United States Court of Appeals for the Fifth Circuit whose judgment is sought to be reviewed are: Frank C. Minvielle, LLC, Petitioner Atlantic Refining Company, Respondent OXY U.S.A. Inc., Respondent Pacific Enterprises Oil Company (USA), Respondent Mosaic Global Operations, Inc., Respondent 111 TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW...... | i PARTIES TO THE PROCEEDING ..................... ii TPR CP COREG ee 0 os vcp tse scceseeenscnvssesscacenes ili TABLE OF AUTHOR Cie oessesssvccccesscnrsssescesescens V PETITION FOR WRIT OF CERTIORARI .......... 1 CFR EIT r eee Wee WF ssid uh sag nisetersctnrancvansueaavs l CONSTITUTIONAL AND STATUTORY PRO- Fee BO te Been ga tccsdcecciesiccsessss oiseesneees APPENDIX Opinion of the U.S. Court of Appeals for the Fifth Circuit filed July 24, 2009.............0.00... App. 1 Judgment of the U.S. Court of Appeals for the Fifth Circuit filed July 24, 2009.................... App. 17 Memorandum Ruling on Motions for Sum- mary Judgment from the U.S.D.C. for the Western District of Louisiana filed September i Ee hs vennekereouiceniacs plipaitanasauabest sy yeeat eeu App. 19 Judgment from the U.S.D.C. for the Western District of Louisiana filed September 6, 2007 ... App. 37 TABLE OF CONTENTS — Continued Page Memorandum Ruling on Motion for New Trial and/or to Amend Judgment from the U.S.D.C. for the Western District of Louisiana filed Be iy Se iiiiniatasi ccvenrdsensescoseieenis App. 39 Memorandum Opinion — Ruling on Motion from the U.S.D.C. for the Western District of Louisiana filed January 12, 2005.................. App. 50 Memorandum Opinion — Ruling on Motions from the U.S.D.C. for the Western District of Louisiana filed October 19, 2004................... App. 61 Judgment from the U.S.D.C. for the Western District of Louisiana filed October 19, 2004...App. 100 28 U.S.C.A. §1332. Diversity of Citizenship; amount in controversy; costs SI os ceca sidiiencensapasicoeaaceagastubaacenier merepenecnuenal App. 112 La. Rev. Stat. Ann. §30:29. Remediation of oilfield sites and exploration and production as daedtgetasecksapdcsons capnessecaccsesseiandcaeoasavsuuecteds App. 116 TABLE OF AUTHORITIES Page CASES Abortion Rights Mobilization Inc. v. Baker, 885 ee I SE Gite IE oo bs cv eiés cna ssdcvncduseisns cuxcdecactsece 9 Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980)............. 11 Brereton v. Bountiful City Corp., 434 F.3d 1213 SN Nr II cud. cs naterseckoniesescavcbslacenenieeesecneeee 13 Burford v. Sun Oil, 319 U.S. 315 (1943)............ passim Garamendi v. Allstate Ins. Co., 47 F.3d 350 (9th Se I ross cn evar cavaecoxuy sa eacanoeeanox ie caaeecaronrasaiina vad 17 International Primate Protection League uv. Administrators of Tulane Education Fund, ee eee Fe BE Py sa ncy sd tusbacdcndusaamraeyeiionenendtenirolies 9 Jepsen v. Texaco, Inc., 1995 WL 607630 (10th Re WY ra Se gnccois oiics cactescaseusop aioe ncavsciontasiisats Dae 9 Lejeune Bros., Inc. v. Goodrich Petroleum Co., LLC, 961 So.24 ZS (Lia. App. ZO0T)......scsccccessessoese 6,7 Maine Ass'n of Interdep. Neighborhoods uv. Comm’r, Maine Dep't of Human Servs., 876 ee ee © Re Ge Biv Rec. Doc. 89. 4 At oral argument, the court deferred ruling on the motion for summary judgment based on prescription; and on the Rule 12(b\7) motion to dismiss for failure to join parties who retained a '/2% mineral interest in the property; for lack of standing, and for failure to state a claim for attorney’s fees * See Petition for Damages, Rec. Doc. 1, Paragraphs 1 and 3 * On February 2, 2002, Estis Well Service, L.L.C. was dis- missed based on fraudulent joinder (Rec. Doc. 55). Defendant Transok, Ine., was dismissed on February 20, 2004 for plaintiff's failure to prosecute (Rec. Doc. 65). Finally, Encana was dis- missed with prejudice on plaintiff's motion (Rec. Doc. 94). App. 63 Factual Background The record shows as follows: On September 28, 1961, Juliet Bourgeois Delcambre, a previous owner of the land at issue, entered into an Oil, Gas and Mineral Lease (hereinafter referred to as the “1961 lease”) with The Atlantic Refining Company (“ARCO”) for the purposes of exploring and possibly drilling for oil on the property. ARCO subleased the mineral rights to Callery Properties, Inc. on November 26, 1962." Callery Properties, Inc., in turn, conveyed its interest in the lease to Petro-Lewis Funds, Inc. on November 26, 1974.’ Petro-Lewis conducted operations on the property and on December 24, 1977 filed a “Plug and Abandon Report” related to the Delcambre #1 Well (well serial no. 105992).”° Plaintiff alleges that Petro-Lewis breached the contract and contaminated the property during its operations. IMC is the successor of Petro-Lewis. Plaintiff’s predecessor, Minvielle & Segura, L.L.C. purchased the land in 1998 by Act of Cash Sale.'’ On November 30, 2001, Frank C. Minvielle ' Attachment to Rec. Doc. 69. On January 10, 1963, Juliet Delcambre Cowan, daughter of Juliet Bourgeois Delcambre, ratified the 196] lease. See “Act of Ratification,” attachment to Rec. Doc. 69. * “Sublease of Oil, Gas, and Minera! Leases.” attachment to Rec. Doc. 69. * “Conveyance,” attachment to Rec. Doc. 69. ° “Plug and Abandon Report,” attachment to Rec. Doc. 41. Exhibit 8 to Rec. Duc. 41. App. 64 acquired all ownership of Minvielle & Segura, L.L.C., and shortly thereafter changed its name to Frank C. Minvielle, L.L.C., plaintiff in this action.” Motions Presented IMC filed the following motions: (A) Rule 12(b)(1) Motion Requesting Defer- ence to the Primary Concurrent Juris- diction of the Louisiana Office of Con- servation (“LOC”) and the Louisiana Department of Environmental Quality (“DEQ”); (B) Rule 12(b)\1) and/or 12(b)(6) motion to dismiss premature claims; (C) Rule 12(e) motion for more definite statement; (D) Rule 12(b\3) motion to dismiss for improper venue; (E) Motion for compliance with Rule 20 and 21 regarding improper joinder; (KF) Rule 12(b)(7) motion dismiss for failure to join indispensable parties; (G) Rule 12(b\6) motion to dismiss for faiture to state a claim for lack of Rec. Doc. 77 App. 65 standing, nonrecoverable damages, and prescription.” On June 2, 2004, the 12(b)(6) motions (Paragraph (G) above) were converted to motions for summary judgment since their disposition required reference to documents outside of the complaint. The parties were allowed ten days to submit additional information to be considered in connection with the motion for summary judgment.” On June 14, 2004, plaintiff submitted the affidavit of Frank Minvielle, owner of plaintiff Frank C. Minvielle, L.L.C. Plaintiff sub- sequently filed the affidavits of Juliet and Finis Cowan, regarding the previous owners’ knowledge of the condition of the land at issue.'” Defendant filed a motion to strike the affidavits, maintaining that portions of the affidavits were not based on the personal knowledge of the aftfiants."” Plaintiff filed an opposition to the motion to strike and the parties filed supplemental briefs regarding prescription and indispensable parties." Rec. Doc. 19. On June 14, 2004, plaintiff submitted the affidavit of Frank Minvielle, owner of plaintiff Frank C. Minvielle, L.L.C. Plaintiff subsequently filed the affidavits of Juliet and Finis Cowan, regarding the previous owners’ knowledge of the condition of the land at issue. The parties filed supplemental briefs regarding prescription ' Rec. Doc. &6 Rec. Doc. 89 Rec. Docs. 90, 92, 93, 96 4 App. 66 Analysis The district court, sitting in diversity juris- diction, must apply the substantive law of Louisiana, while employing Federal procedural rules. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In the absence of a valid Federal Civil Rule addressing the point, the court must determine whether a particular rule is procedural or substantive by considering the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). (A) Rule 12(b)(1) motion for deference to the primary concurrent jurisdiction Plaintiff seeks damages for IMC’s disposal, discharge, and storage of highly toxic chemicals into plaintiff’s property. Plaintiff also seeks funds to conduct a scientific analysis of the extent and nature of the contamination, the costs to restore the prop- erty, punitive damages, and attorneys’ fees. IMC argues that all of the claims are subject to the primary concurrent jurisdiction of the Louisiana OMce of Conservation (“LOC”) and the Louisiana Department of Environmental Quality (“DEQ”), and that this court should allow those agencies to address the environmental remediation issues prior to judicial consideration of liability and damage issues. App. 67 Louisiana Revised Statute 30:1(D) provides that the LOC has jurisdiction over claims regarding: “the disposal of any waste product into the subsurface by means of a disposal well and the regulation of all surface and storage waste facilities incidental to oil and gas exploration and production, shall be within the jurisdiction of the department.” The LOC also has jurisdiction over issues regarding surface and storage waste facilities incidental to oil and gas exploration and production and abandoned oil and gas wells. La. R.S. 30:4(C). The DEQ has jurisdiction over remedial action plans and has set forth a process by which remediation plans are approved and enforceable. La.R.S. 30:2286.1. Under Louisiana law, the deference to the com- missioner for an initial decision on matters within the expertise of the LOC, which is contemplated by the doctrine of primary jurisdiction, is a matter within the sound discretion of the trial court. Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475, 489 (La. 1991). The two major considerations underlying the doctrine are the need for uniformity 1n various areas of regulated industry, and the special administrative expertise attributable to agencies due to their intimate working associations with industries they regulate. South-West Utilities v. S. Cent. Bell Tel., 339 So.2d 425 (La.1976). Louisiana’s doctrine of primary jurisdiction is substantive and it requires the federal courts to exercise discretion as if it were a Louisiana state court. Mills v. Davis Oil Co., 11 F.3d 1298, 1304- 1304 (5th Cir. 1994). App. 68 Landowners in Louisiana have no duty to seek relief from an administrative agency before filing suit against an oil company. Corbelio v. Iowa Production, 850 So.2d 686 (La. 2003). Plaintiff’s action for damage to its property is a matter of private law. Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475, 483 (La. 1991). In Magnolia Coal, the Louisiana Supreme Court upheld a trial court’s decision, in deciding a remediation issue, refusing to defer to the Commissioner of Conservation as a matter of primary jurisdiction. The court stated that “damages from soil pollution are within the conventional knowledge and expertise of a trier of fact and the court of appeal erred in deciding that the plaintiff’s damages cannot be fixed until the commissioner of conservation holds a new hearing.” Magnolia Coal, 576 So.2d at 484. Considering the applicable law, and the fact that plaintiff opposes it, the court concludes that pre- liminary submission of the claims to the LOC and DEQ is not necessary. Accordingly, the Rule 12(b)(1) motion for deference to the primary concurrent jurisdiction of the LOC and DEQ is DENIED. (B) and (C): Motion to dismiss premature claims, or for more definite statement 1. Prematurity involving LOC and DEQ IMC argues that plaintiff’s claims are premature because plaintiff has not sought review with the LOC or DEQ, and therefore has failed to exhaust the ad- ministrative remedies. As discussed above, exhaustion App. 69 of administrative remedies is not necessary. As dis- cussed in Corbello, supra, landowners have no duty to seek relief from an administrative agency before filing suit against an oil company. IMC asserts that claims under the Conservation - Act for contamination of “usable ground water” must be made with the LOC and DEQ, pursuant to La. R.S. 30:1 and 30:2015.1 (requiring notification of DEQ in certain cases). Those statutes are inapplicable. Plaintiff has specifically stated that it does not seek redress for public issues, but instead has limited its claims to private causes of action. Louisiana Revised Statute 30:1 requires exhaustion prior to judicial review for claims by “a person aggrieved” by a law, rule, regulation or order made by the assistant secretary of the office of conservation. Plaintiff has not asserted that it has been aggrieved by an order of the LOC or DEQ, and is therefore not limited to a claim under La. R.S. 30:1." Nor is La.R.S. 30:14 applicable. The latter stat- ute authorizes the Commissioner of Conservation to " La R.S. 30:1 provides: A person who is aggrieved by any law of this state with respect to conservation of oil or gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the assistant secretary of the office of conservation hereunder, or by an act done or threatened hereunder, and who has exhausted his administrative remedy, may obtain court review by a sult for injunction or judicial review against the assistant secretary as defendant or; ca App. 70 enjoin conduct in violation of state laws when “ongoing or threatened” actions violate conservation laws of the state. Plaintiff’s claims are for purely private matters relating solely to the actions of the defendant oil companies. Plaintiff has specifically excluded any claims for contamination of usable ground water and has otherwise avoided claims that trigger involvement by the Commissioner of Conservation. Accordingly, IMC’s attempt to require administrative review by this landowner is without merit, and the motion to dismiss for prematurity is DENIED.” 2. Prematurity under leases IMC contends that plaintiff was required to give defendants written notice of the alleged breach of contract and request that defendants correct the breach prior to filing this suit. IMC asserts that plaintiff’s complaint is vague and omits specific facts identifying which leases have been allegedly breached ” To the extent that plaintiff's complaint does mention in paragraphs 13, 16, 25, and 26 that defendant’s activities have resulted in contamination of ground water, the court deems these references merely factual allegations. Since plaintiff specifically, in paragraph 31, asserts that it is not seeking damages for contamination or remediation costs for usable ground water, no such damages are recoverable due to the exclusion thereof by the complaint. In the event that plaintiff were to claim damages for contamination or remediation costs of usable ground water, La. R.S. 30:2015.1, requiring notification of DEQ, must be followed prior to assertion of any such claims App. 71 by which defendant, the terms of the leases, the parties thereto, and the subject lands. IMC reasons that some of the leases at issue may not have been terminated yet, and therefore the present claims are premature. A review of Exhibit “C” to plaintiff’s opposi- tion memorandum shows that IMC’s predecessor, Petro-Lewis Funds, Inc. was involved with a lease that resulted in work done on plaintiff’s land. Although plaintiff failed to specify, in its pleadings, the subject tract of land and whether the lease had expired, plaintiff’s counsel addressed the issue at oral argument. The Petro-Lewis lease involved the Delcambre Well No. 1, which was plugged and abandoned in 1977. By its own terms, the lease expired 90 days after production ceased. IMC conceded that the lease expired in 1977. Thus, the motion to dismiss for prematurity under the lease is DENIED. (D) Rule _ 12(b)(3) motion to dismiss for _ im- proper venue IMC maintains that: To the extent that the plaintiff’s claims must be brought against the LOC pursuant to La. R.S. 30:12(A)(2) as discussed in the motion to dismiss for prematurity raised above, the 19th Judicial District Court (and therefore the U.S. Dnistrmect Court for the Middle District of Loutsiana) is the court of proper e a i a we _* App. 72 venue for the claims raised by plaintiff’s Petition. As discussed above, IMC’s motion to dismiss for prematurity regarding the necessity to file suit against the Commissioner of Conservation is without merit. Accordingly, the motion to dismiss for lack of venue based on the same arguments is DENIED. (E) Motion for compliance with Rule 20 and 21 regarding improper joinder IMC maintains that plaintiff improperly joined the defendants in this action. Since all other defendants have now been dismissed, this motion is DENIED as moot. (F) Rule 12(b)(7) motion dismiss for failure to join indispensable parties IMC argues that there may be other parties which need to he added, either as defendants or plaintiffs. Plaintiff argues that there are no other parties which need to be joined. At oral argument, the court noted that the sellers retained a '/2 percent mineral interest in the land sold to plaintiff. The Act of Cash Sale states: Sellers reserve and retain unto themselves, their heirs, successors and assigns, an undivided ‘2 [percent| of all oil, gas, and other minerals, including sulphur, in, on and under the aforedescribed property with the App. 73 right and authority to exercise all necessary means for the’ prospecting, exploiting, producing and development of the minerals, including all rights of access to and use of the surface of the land as may be necessary or incident to this reservation.” Rule 19(a) F-R.Civ. P. states that parties are necessary to an action if: “(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.” The Cowans do not own the land in question. The record indicates they are aware of this action and have not attempted to state an interest, nor have any other indispensable parties been identified. The motion to dismiss for failure to join necessary parties is therefore DENIED. ’ Exhibit 8 to Rec. Doc. 41 App. 74 (G) Rule _12(b)(6) Motion to Dismiss - Con- verted to Motion for Summary Judgment IMC filed a motion to dismiss for failure to state a claim. Since the parties filed matters outside of the pleadings which must be considered in order to determine the motion, the court notified the parties that the motion would be considered a motion for summary judgment under Rule 56. F. R. C.P. 12(b). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P.56. An issue is material if its resolution could affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a fact issue has been created, the court must view the facts and the inferences in the lhght most favorable to the nonmoving party. Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999). 1. Prescription a. Contra Non Valeniium Plaintiff concedes that the complaint was filed over twenty years after the alleged breach of contract and tortious conduct by defendants. Considering that tort claims prescribe one year after the date of the alleged tortious conduct, and that contractual claims App. 75 prescribe ten years after the alleged breach, the claims arising from defendants’ actions on plaintiff’s property were prescribed on the face of the petition. Accordingly, the burden to establish an exception to the rule of prescription lies with plaintiff. Terrebonne Parish School Bd. v. Mobil Oil Corp., 310 F.3d 870, 885-886 (5th Cir. 2002). The plaintiff is required to adduce evidence sufficient to raise a genuine issue of material fact regarding its claim of an exception from prescription. Mere allegation or innuendo is insuffi- cient. Plaintiff relies on the theory of contra non valentum to avoid prescription barring the claims in this case. According to this theory, prescription does not begin to run until “a plaintiff either knew or should have known of a cause of action, even if that knowledge does not occur until long after the wrongful conduct at issue has occurred.” Simmons uv. Templeton, 723 So.2d 1009, 1012 (La.App. 4 Cir. 11/10/98). Prescription runs from the time that the plaintiff has actual or constructive knowledge of the act, which has been defined as “the time at which the plaintiff has information sufficient to excite attention and prompt further inquiry.” National Council on Compensation Ins. v. Quixx Temporary Serv., Inc., 665 So.2d 120, 124 (La.App. 4 Cir. 11/16/95). Thus, prescription does not begin to run at the first indication that the plaintiff may have suffered harm, but rather it begins to run “when plaintiff has reasonable basis to pursue claim against specific defendant.” Jordan v. Employee Transfer Corp., 509 App. 76 So.2d 420, 424 (La.1987). The heart of the inquiry into constructive knowledge is the reasonableness of plaintiff’s inaction. /d. Plaintiff submitted the affidavit of Frank Minvielle, owner of plaintiff Frank C. Minvielle, L.L.C., which states that he did not have knowledge of a claim or reason to suspect that a claim existed until August 2003, when a geologist issued a report discussing possible contamination of plaintiff’s property. IMC does not contest that plaintiff did not have knowledge regarding the alleged contamination until just prior to the filing of suit. Plaintiff did not purchase the land until 1998, well after the alleged tortious conduct occurred. However, the claims may be prescribed if the previous owners of the land knew or should have known of the possible claims. If they did not, then under the doctrine of contra non valentum, prescription only began to run when plaintiff learned of the potential claims. In response to the order setting oral argument, plaintiff submitted the affidavits of Finis E. Cowan, Jr. and Juliet D. Cowan. The Cowans are married and Mrs. Cowan’s mother, Mrs. Juliet Delcambre, owned the land at issue until her death in 1988, at which time the land passed to Mrs. Cowan and her children.”’ Mr. Cowan explained that in 1982, App. 77 PanCanadian Petroleum, Encana’s predecessor, paid Mrs. Delcambre $21,000.00 for possible contami- nation from its operations.” With regard to IMC’s predecessor Petro-Lewis’s oilfield operations, Mr. Cowan states, “I have never had any information that would lead me to know or believe that there was any contamination problems at the Petro Lewis site.” Mrs. Cowan states, “I have reviewed the above affidavit and discussed it with my husband. To the best of my knowledge the statements contained in his affidavit are true and correct.”” IMC argues that the affidavits of the Cowans are insufficient to defeat the motion for summary judg- ment.” IMC maintains that the Cowans’ affidavits were not based on personal knowledge regarding what the pre-1988 owners knew. Mrs. Cowan inher- ited the land from her mother in 1988. Additionally, IMC argues that since the Cowans’ affidavits contain language evidencing that they did not know where the Petro Lewis well was located, they could not provide information based upon personal knowledge regarding possible contamination at the site. The court concludes that the affidavits of the Cowens establish that prior to selling the property to plaintiff, they did not know of any contamination, nor was there any indication that the property may have Rec. Doc. 86 Rec. Doc. 86 “ Rec. Doc. 89 App. 78 been contaminated by Petro-Lewis. IMC’s argument that the Cowans did not have personal knowledge regarding the facts relating to the Petro-Lewis well is unpersuasive. The Cowans attest that they had no information regarding possible contamination or claims against Petro-Lewis, and no reason to believe that there was any contamination or other problems with the land prior to it being sold to plaintiff. Their lack of knowledge is explained by their further assertions that they were far removed from the operations and did not even know the exact location of the well. The Cowans state that they relied upon the oilfield companies to perform their work according to the leases. Thus, absent some affir- mative communication from a company, such as PanCanadian’s statement to the landowners that it had contaminated the site, there was no reason to believe that the companies operating on the land were doing so in a deficient manner. Moreover, since the owner of the land prior to 1988, Mrs. Delcambre, is deceased, it would be virtually impossible for plaintiff to establish Mrs. Delcambre’s knowledge regarding the land without relying upon the affidavits of the Cowans, from whom Mrs. Delcambre sought advice on issues concerning the land. It is clear that the Cowans did not know cf contamination, nor do they have reason to believe that Mrs. Delcambre had any such knowledge. IMC concedes that the Cowans are testifying truthfully in their affidavits. App. 79 Considering the foregoing, the court concludes that no one had reason to believe that there was a problem with the land prior to the 2003 geologist’s report indicating possible contamination. The doc- trine of contra non valentum therefore suspended the running of prescription until plaintiff had knowledge of the claims shortly before filing suit. IMC’s motion for summary judgment is’ therefore DENIED Additionally, IMC’s motion to strike the affidavits of the Cowans is DENIED. b. Continuing tort The doctrine of continuing tort presents an exception to the one-year prescriptive period. “A continuing tort 1s occasioned by |the continual] unlawful acts, not the continuation of the ill effects of an original, wrongful act.” Crump v. Sabine River Authority, 737 So.2d 720, 728 (La.6/29/99).° Addressing the requirement that there be continuous conduct by the defendant, the Louisiana Supreme Court stated that “[tjJhe continuous conduct contem- plated in a continuing tort must be tortious and must be the operating cause of the injury.” Jd. at 729 n. 7. In Crump, the Louisiana Supreme Court rejected the Although the decision regarding contra non valentum defeats the motion for summary judgment on prescription at this time, the argument concerning the continuing tort doctrine will be addressed since there is a possibility that a fact finder will find that the doctrine of contra non valentum is inapplicable to the case App. 80 contention that a continuing breach of duty could consist of a defendant’s failure to remedy the harm caused by the initial tortious conduct, stating that “the breach of the duty to right the wrong and make the plaintiff whole simply cannot be a continuing wrong which suspends the running of prescription, as that is the purpose of any lawsuit and the obligation of every tortfeasor.” Jd. at 729. The Louisiana Supreme Court summarized the doctrine of continuing tort as it applies in Louisiana property law cases as follows: When a defendant’s damage-causing act 1s completed, the existence of continuing dam- ages to the plaintiff, even progressively worsening damages, does not present succes- sive causes of action accruing because of a continuing tort. Derbofen v. TL. James & Co., 355 So.2d 963 (La.App. 4th Cir.1977), writs denied, 357 So.2d 1156, 1168(1.a.), cert. denied, *886 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 257 (1978). In re Moses, 788 So.2d 11738, 1188 (La. 2001). The practical rule adopted by Louisiana courts in property damage cases is that prescription begins to run when the continuous tortious conduct is ahated The case law distinguishes between ongoing causes and tortious conduct that has ceased. In cases such as Patout, where landfill waste was deposited onto plaintiff's property via trespass, and South Central Bell, where gas tanks continued to leak, the ongoing cause was the failure of the defendants to App. 81 remove the damage causing structure. Estate of Patout vu. City of New Iberia, 708 So.2d 526 (La. App. 3 Cir. 3/6/98); South Central Bell Telephone Co. v. Texaco, Inc., 418 So. 2d 531 (La. 1982). In South Central Bell, leaking underground storage tanks caused contin- uous damages to plaintiff’s underground telephone wires. Because both the conduct — the leaking — and the damages continued, the tort was held to be a continuous. In Mouton v. State of Louisiana, 525 So.2d 1136 (La.App. 1st Cir.1988), however, disposal of waste in the ground was not a continuing tort. The court held that the tortious conduct was the dumping of waste onto plaintiff’s property and, since it occurred beyond the one year prescriptive period, the action had prescribed. Similarly, in Badalamenti v. Chevron Chemical Co., 1995 WL 386868, *2 (E.D.La.), the court found that the tortious conduct at issue was the disposal of waste onto plaintiff's property. The operating cause of plaintiff’s injury did not continue beyond the placement of the waste in the ground, and therefore, dcfendant’s alleged conduct did _ not constitute a continuing tort because there was no ongoing cause. Likewise in Terrebonne Parish School Bd. v. Mobil Oil Corp., 310 F.3d 870, 885-886 (5th Cir. 2002), the Fifth Circuit upheld the distnct court’s finding that the continuing tort doctrine was inapplicable. In Jerrebonne v. Mobil, pursuant to a mineral lease, the defendant dredged a canal during its oil operations. After completion of the operations, the defendant left the canal intact. Plaintiff sued, 40 App. 82 years later, arguing that the existence of the canal contributed to erosion of its land and the demise of the marshland habitat. The Fifth Circuit found that the unlawful conduct was not continuing because the completed well was abandoned with the canal left intact in 1959. Thus, even though the damage, i.e. the erosion, may have been continuing, the continuing tort doctrine was inapplicable because there was no continuing cause. Here, like Mouton, the tortious conduct was the disposal of waste into plaintiff’s property. The operating cause of plaintiff’s injury was the actual disposal or storage of the oilfield waste in plaintiff’s property. The conduct abated when the defendant’s ceased operations, which was in excess of 20 years ago. Simply because the damages brought about by such conduct may have continued, that is insufficient to support application of the continuing tort doctrine. Accordingly, the continuing tort doctrine is inapplicable to the case at bar. 2. Lack of standing Plaintiff seeks damages based on JMC’s breach of the 1961 lease and for IMC’s tortious conduct. IMC argues that since plaintiff was not a party to the contract and the previous owners’ rights under the 1961 lease were not specifically assigned to plaintiff, plaintiff lacks standing to bring the breach of contract claims. Moreover, IMC maintains that since the tortious conduct occurred prior to plaintiff owning the App. 83 property, it cannot assert tort claims for damages. Plaintiff maintains that it has standing because it is a third party beneficiary of the contract and because tort damages can be brought regardless of the timing of the damages. a. Contractual claims Actions arising from a breach of contract or lease of property are classified as involving personal mghts rather than real rights. Prados v. South Central Bell Tel. Co., 329 So.2d 744, 749 (La. 1976), citing Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964); Harwood Oil and Mining Co. v. Black, 240 La. 641, 124 So.2d 764 (1960) overruled on other grounds by Salvex, Inc. v. Lewis, 546 So.2d 1309 (La.App. 3d Cir.1989); 2 A. YIANNOPOULOS, LOUISIANA CIviIL Law TREATISE — PROPERTY, s 95, pp. 275-278 (1st Ed. 1967). Real rights and obligations transfer from the seller to the buyer without any special provision. La.Civ.Code art. 1763. Personal rights, however, do not transfer in the absence of a special assignment of rights to the buyer. La.Civ.Code art. 1764. Official Comment (d) of article 1764 states that, “a particular successor does not acquire, without stipulation to that effect, any personal rights that his author has with respect to the thing.” There is no dispute that plaintiff has no direct privity of contract with IMC, nor does plaintiff allege that it obtained any assignment of rights in the the App. 84 Act of Sale from the previous owners, other than warranty of title. The Act of Sale provides: ... Sellers, who, for the price and on the terms and conditions hereafter expressed hereby sell, assign, transfer and deliver with all legal warranties and with full sub- stitution and subrogation in and to al] the rights and actions of warranty which Sellers have or may have against all preceding owners and vendors unto... Purchaser.” Such a subrogation clause applies only to warranty of title and does not assign personal rights for damages arising from previous leases involving the property Prados, supra, 329 So.2d 744, 749 (La. 1976). Plaintiff argues, rather, that it is a third-party beneficiary of a “stipulation pour autri” contained in the the contract between the earlier landowners and IMC’s predecessor. LA.CIv.CODE ANN. art 1978 pro- vides as follows: Art. 1978. Stipulation for a third party A contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by " Exhibit 8 to Rec. Doc. 41 App. 85 mutual consent without the beneficiary’s agreement. Comment (b) to ART. 1978 states that “the beneficiary's intention to accept the benefit may be made known in any manner, even implied.” Thus, by simply filing suit, plaintiff has made known its intention to accept the benefit, if it exists. The specific language of the contract in question determines whether a stipulation pour autrui has been created. The Fifth Circuit has observed the necessity of clarity in any contractual provision intended to contain a stipulation pour autrut.. ... [SJuch a promise, or a stipulation pour autrui, “is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear.” Homer Natl Bank v. Tri-District Dev. Corp., 534 So.2d 154, 156 (La.App. 3d Cir.1988), writ dented, 536 So.2d 1236 (La.1989). As we stated in New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 7382 F2d 452 (5th Cir.) (en bance), cert. denied sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984): Louisiana law ts settled that for there to be a stipulation pour autrui there must be not only a third-party advantage, but the benefit derived from the contract by the third party may not merely be incidental to the contract. Rather, the third-party App. 86 benefit must form the condition or consideration of the contract in order for it to be a stipulation pour autrut. Moreover, a stipulation pour autrui will be found only when the contract clearly contemplates the benefit to the third person as its condition or consideration. 732 F.2d at 467 (internal quotations and citations omitted). Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1147 (5th Cir.1993). Plaintiff relies on Hazelwood Farm, Inc. uv. Liberty Oil & Gas Corp., 790 So.2d 93 (La.App. 3rd Cir.2001), writ denied, 01-2115 (La.7/26/01), 794 So.2d 834, writ denied, 01-2303 (La./10/01), 794 So.2d 836. In Hazelwood, the defendant had conducted oil and gas exploration and production activities pur- suant to a contract with a previous landowner. After purchasing the property, Hazelwood filed suit al- leging that the defendants’ activities resulted in con- tamination of the property. Defendant Gulf/Chevron asserted that Hazelwood was not a party to the lease and therefore could not bring an action for the breach of the lease. The court found, however, that Hazel- wood was the beneficiary of a stipulation pour autrut. Id. at 100, citing La.Civ.Code art. 1978. The court noted that several factors are considered in deter- mining whether a contract provides for a stipulation App. 87 pour autrut. Id. citing Andrepont v. Acadia Drilling Co., 231 So.2d 347, 351, 255 La. 347 (1969).*’ The court looked to the language in the lease, which provided that “Grantee shall be responsible for all damages caused by his operations.” The court found that this language was similar to the relevant phrase in the Andrepont lease: “The Lessee shall be respon- sible for all damages caused by Lessee’s operations.” The latter lease had been found to create a stipu- lation pour autrui, and accordingly, the Hazelwood court concluded that the language in the lease must be interpreted as providing a stipulation pour autrui in favor of Hazelwood. In Andrepont supra, the landowner allowed Andrepont to farm soybeans on a 35-acre tract in return for twenty percent of his crop. Later, the land and mineral owners of the tract executed an oil and gas lease allowing the lessee to enter the land to explore and produce oil, gas, and other minerals. The * The factors are: “(1) The existence of a legal relationship between the promisee and the third person involving an obliga- tion owed by the promisee to the beneficiary which performance of the promise will discharge; (2) the existence of a factual relationship between the promisee and the third person, where (a) there is a possibility of future liability either personal or real on the part of the promisee to the beneficiary against which performance of the promisee (sic) will protect the former; (b) securing an advantage for the third person may beneficially affect the promisee in a material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended.” Andrepont, 231 So.2d at 351. App. 88 oil company’s operations on the tract were detri- mental to Andrepont’s soybean crop: ** * (Djuring July, the oil and gas lessee entered upon the land, built a board road across Andrepont’s field, dug waste pits and proceeded to drill a well in search of minerals. Construction of the road, the drill site and pits destroyed part of the crop and impaired drainage in the remainder of the soybean field. The lack of adequate drainage left water standing in the field and made it impracticable to work the crop. As a result, the remainder of Andrepont’s crop was damaged by ‘scalding’ and excessive weeds. Andrepont, 231 So.2d 347, 353-355. The Louisiana Supreme Court examined the lease form, which initially read, “The Lessee shall be responsible for all damages to timber and growing crops of the Lessor caused by Lessee’s operations.” /d. at 351. The phrase “to timber and growing crops of Lessor” was then deleted so that the lease read, “The Lessee shall be responsible for all damages caused by Lessee’s operations.” Jd. The Court found that this language created a stipulation pour autrut. The court wrote: |Andrepont] is seeking to enforce a benefit stipulated in his favor by the landowner lessor as a condition of a commutative con- tract between the landowner lessor and the oil and gas lessee. Defendants, as assignees of the oil and gas lessee, are, therefore, parties to the contract in which the stipu- lation 1s a condition... .” App. 89 Id. at 356. The court reasoned that Andrepont had a direct right of action against the lessee to recover his damages as beneficiary of the stipulation. In Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874, 876 (La. 1974), the court found that a stipulation pour autruit was created by language in a servitude agreement providing that defendant “agrees to pay such damages which may arise to growing crops, timber, or fences from the construction of the [pipeline].” An examination of the lease in question shows that the language contained therein is materially distinguishable from that presented in Hazelwood and Andrepont, and Hargroder. Unlike the open- ended provisions in Hazelwood and Andrepont — “the lessee shall be responsible for all damages” — the lease here contemplates damages only “to Lessor and Lessor’s tenants.” The relevant provision of the 1961 lease sub judice reads as follows: Lessee shall promptly pay Lessor and Lessor’s tenants a reasonable sum for any damage resulting to said premises or the crops or improvements thereon which may be caused by or result from the operations of Lessee hereunder. Within ninety (90) days after the cessation of drilling operations on any well located on the leased premises, Lessee, or its successors and assigns, shall fill and level all slush pits and shall remove the drilling equipment and materia] used in connection therewith from the drill site and App. 90 shall restore said drill site to substantially its prior condition, so far as can reasonably be done, as concerns any material] change in the surface of such premises caused by or resulting from operations of Lessee here- under. Although the second sentence requiring restora- tion of the property seems to impose a general obligation of restoration, the provision must be read as a whole. The only provision which discusses a right to damages is limited to damages payable to “Lessor and Lessor’s tenants.” Under Louisiana case law, such language does not create a stipulation pour autrui in favor of plaintiff. In Broussard v. Northcott Exploration Co., Inc., 481 So.2d 125, 127 (La. 1986), the court found that no stipulation pour autri was created by a clause stating, “The Lessee shall be responsible for all surface damages of the Lessor caused by the Lessee’s operations” because the lan- guage was restricted to damages suffered by the lessor. The court held that the intent of the parties was key in determining whether a stipulation pour autrui is created. /d., 481 So. 2d at 127. A later court cited Broussard in concluding that no stipulation pour autrui arises in the absence of a clear intention a Oe oR ene Lo penetit iuture suriace owners: Even viewing the clause as a possible stip- ulation pour autrut (stipulation for benefit of a third party), the result would be the same. Broussard v. Northcott Exploration Company, Inc., 481 So.2d 125 (La.1986); Hargroder v Columbia Gulf Transmission Co., 290 So.2d App. 91 874 (La.1974); Andrepont v. Acadia Drilling Co., Inc., 255 La. 347, 231 So.2d 347 (1969). The test annunciated in Broussard states that “[iJn order to determine if a stipulation {pour autrui] exists, we must look to the intention of the parties at the time the min- eral lease was negotiated.” Since the fore- going analysis indicates no such intention to benefit future surface owners, there was no stipulation pour autrui in favor of plaintiffs in this case. Ashby v. IMC Exploration Co., 506 So.2d 1193, 1196 fn.7 (La. 1987). In Prados, supra, 329 So.2d at 751, a land owner granted a lease to South Central Bell Telephone Company, allowing it to erect buildings and other structures on the land. The lease required the com- pany to remove the structures at the completion of the lease. Upon termination of the lease, South Central Bell did not remove the structures, nor did the owner require removal. Several months later, the property was sold to Prados. After acquiring the property, Prados demanded that South Central Bell remove the structures. The company refused and Prados filed suit for damages representing the cost of clearing the property. South Central Bell challenged Prados’s standing to bring suit based upon a breach of a former lessee’s obligation to restore the property at the termination of the lease. Noting that predial App. 92 leases” involve personal rights, the Louisiana Supreme Court found that the right to damages was a personal! right that accrued to the lessor prior to the sale of the property to Prados. Thus, the court looked to the act of sale to determine whether the right to damages was specifically assigned by the previous owner to Prados. The act of sale stipulated: . she (Mrs. Ester Binford Prados) does by these presents, grant, bargain, sell, convey, transfer, assign and set over with full guarantee against all mortgages, liens, claims, evictions, or other encumbrances or alienations whatsoever, and with subroga- tions to all her rights and actions of warranty against all previous owners, and with full guarantee of title, unto JAMES L. PRADOS. The court found that the act of sale made no reference to the expired lease, nor to the right of the seller toa restoration of the property to its original state, nor to the right of damages. The subrogation clause was directed only to actions of warranty against previous owners and did not include an assignment of the right to damages. The court next determined that no right to damages from breach of contract could attach to the property itself, relying on the rule that “a purchaser * Louisiana civil law uses the terms “predial and personal! servitude” instead of the term “casement” when classifying lands. App. 93 cannot recover from a third party for damage to the property incurred prior to the sale.” Jd. at 750, citing Gumbel v. New Orleans Terminal Co., 1 So.2d 686 (1941) overruled on other grounds Lake, Inc. v. LP&L Co., 330 So.2d 914 (1976); Taylor v. New Orleans Ter- minal Co., 126 La. 420, 52 So. 562 (1910); McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42 (1907); Bradford v. Richard, et al., 46 La.Ann. 1530, 16 So. 487 (1894); Clark v. Warner & Co., 6 La.Ann. 408 (1851). The court stated, “The general principle, we think, is that a buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sales price.” /d. at 751. Accordingly, the court held that Prados did not re- ceive the right to recover damages against the former lessee via the act of sale or by virtue of purchasing the property Considering the foregoing, the court concludes that plaintiff did not receive an assignment of rights from the previous owner, nor did the 1961 lease create a stipulation pour autrut in favor of plaintiff Thus, plaintiff does not have standing to bring contractual claims arising from the 1961 lease. Accordingly, the motion for summary judgment based on lack of standing to bring contractual claims is GRANTED 6. Tort claims Under Louisiana jurisprudence, the owner of land at the time of the alleged damages is the person App. 94 with the real and actual interest to assert a claim for damages to the land; thus, a subsequent landowner does not have standing to assert tort claims for damage to property occurring prior to the landowner’s acquisition of the land. Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686 (La.1941) overruled on other grounds Lake, Inc. v. LP&L Co., 330 So.2d 914 (La. 1976); St. Jude Medical Office Building Limited Partnership v. City Glass and Mirror, 619 So.2d 529, 539 (La. 1993): Dorvin Land Corp. v. Parish of Jefferson, 469 So.2d 1011 (La. 5th Cir. 1985). Plaintiff argues that “Louisiana law is now well settled that with regard to claims to damage to immovables, whether the damage at issue occurred prior to plaintiffs’ acquisition of the subject property is immaterial.” In support of this proposition, plaintiff cites three cases, two of which deal with contract claims, not tort. See Hazelwood Farm, Inc. v Liberty Oil and Gas Corp., 844 So.2d 380 (La. App. 3 Cir. 2003) (plaintiff had standing to bring contract claims because it was beneficiary of a stipulation pour autrt); Magnolia Coal Terminal v. Phillips Oil Co., 576 So. 2d 475 (La. 1991) (standing not ad- dressed as the lease was still in effect at time plaintiff purchased the land). The third case relied upon by plaintiff is not instructive on the issue presented here. In Hopewell, , Rec Loc. 69 at p LO App. 95 Inc. v. Mobil Oil Co., 770 So.2d 874, 875-876 (La.App. 2d Cir. 2000), defendant’s predecessor had engaged in oilfield operations on the subject land pursuant to a lease.” Subsequently, Hopewell bought the property. Hopewell filed a petition for damages alleging that the oil and gas operations had resulted in the deposit of hazardous and toxic wastes on the property. Hopewell argued that Mobil had a duty to restore the property, and that the duty extended to a subsequent landowner. Mobil asserted an exception of no mght of action, which the trial court denied. The appellate court reversed, finding that because Hopewell had purchased the land after the damages had occurred, it did not have a right of action. Hopewell, 770 So.2d at 879. The Louisiana Supreme Court reversed the appellate court, but its reasoning was not entirely clear. The court wrote: Judgment of the Court of Appeal is reversed. Judgment of the trial court denying defen- dant’s exception of no right of action is *° “In 1921, the Pugh family ancestors gave Fortuna Oil Company (Furtuna) the right to construct a casing head pas plant on the property. Fortuna already held a mineral lease on this tract. In 1922, the Pugh ancestors sold surface rights on the property to Fortuna. Oil and gas operations were conducted on the property by Fortuna. Magnolia Oil Company (Magnolia) later acquired the property from Fortuna. The casing head gas plant and several oil and gas wells were operated on the property. The tract was then conveyed back to the Pugh family in 1945 in settlement of a lawsuit with Magnolia... The surface rights were leased to Magnolia. The gas plant later ceased production, possibly in the 1950s.” Hopewell, 770 So.2d at 875. App. 96 reinstated. Prados v. South Central Bell Telephone Company, 329 So.2d 744 (La.1975) (on rehearing), which the Court of Appeal relied upon, involves rights arising under a lease and is distinguishable from the instant facts. Case remanded to the trial court for further proceedings. Hopewell, Inc. v. Mobil Oil Co., 784 So.2d 653, 2000- 3280 (La. 2001). Although plaintiff characterizes the Hopewell decision as one of “brevity and clarity,” the court agrees only with the “brevity” part. The only thing clear about the decision is that the court did not, by its brief reversal, establish a new legal principle. If that had been the court’s intent, it easily could have said so in plain terms — i.e. that it was conferring standing upon subsequent landowners to assert tort claims for property damage occurring prior to their acquisition of the land. Nor did the decision alter the rule in Louisiana that the landowner at the time of the alleged damages is the person with the real and actual interest to assert a tort claim involving the property under Gumbel and Dorvin. The law in Louisiana remains that the owner of iand at the time of the alleged damages is the person with the real and actual interest to assert the claim for damages to the land. See Gumbel v. New Orleans Terminal Co., supra (purchaser had no right of action for damages arising from railroad tracks placed on land prior to purchase of land); Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562 (1910) App. 97 (purchaser had no right of action for damages from railroad company for taking land which occurred prior to the purchase of the land); McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42 (1907) (purchaser had no right of action for damages from railroad company for erecting right of way on land which occurred prior to the purchase of the land); Bradford v. Richard, et al., 46 La.Ann. 1530, 16 So. 487 (1894) (purchaser of land had no right of action for damages arising from alleged taking of timber by defendant prior to purchase of the land); Dorvin Land Corp. v. Parish of Jefferson, 469 So.2d 1011 (La.App. 5th Cir.1985) (landowner did not have standing to sue parish for removal of trees and dumping of spoil where damages took place prior to owner acquiring title). It is undisputed that plaintiff is seeking damages arising from operations which occurred prior to plaintiff’s acquisition of the land. For the foregoing reasons, the court concludes that plaintiff does not have standing to bring tort claims against IMC. Accordingly, the motion for summary judgment based on lack of standing to bring tort claims is GRANTED. 3. Nonrecoverable damages IMC asserts that plaintiff has no right to recover damages for mental anguish, punitive damages, or attorney’s fees. App. 98 A business entity is incapable of experiencing loss of enjoyment, mental anguish, and inconvenience. Whitehead v. American Coachworks, Inc., 837 So.2d 678, 682 (La.App. 1 Cir. 2002) citing City of New Orleans v. Grand Lodge of Independent Order of Odd Fellows, 241 So.2d 7, 10 (La.App. 4th Cir.1970). Plaintiff does not address this issue in its brief. The motion to dismiss plaintiff’s claims for mental! an- guish damages contained in Paragraphs 24, 28, and 33 of the Complaint is therefore GRANTED. Plaintiff asserts a claim for punitive damages under La. Civil Code Article 2315.3. Article 2315.3 was enacted in 1984 and was repealed in 1996. IMC argues that plaintiff’s claims for punitive damages for activities occurring outside the 1984 to 1996 time- frame should be dismissed. Plaintiff does not oppose the motion, but argues only that the claim for punitive damages during this period should not be dismissed Accordingly, the motion to dismiss plaintiff’s claim for punitive damages outside of the period of 1984 to 1996 is GRANTED. The Complaint included a claim for attorney’s fees, however, on September 7, 2004, plaintiff’s coun- sel advised that this claim was being withdrawn.” This letter effectively provides notice that the motion to dismiss plaintiff's attorney's fees claim is un- opposed. Accordingly, the motion to dismiss is GRANTED as unopposed. “ Rec. Doc. 97. App. 99 Signed at Lafayette, Louisiana October 19, 2004. /s/ M E Methvin Mildred E. Methvin United States Magistrate Judge 800 Lafayette St., Suite 3500 Lafayette, Louisiana 70501 (337) 593-5140 (phone) 593-5155 (fax) App. 100 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION FRANK C. MINVIELLE, L.L.C. CIVIL ACTION VS. NO. 03-1908 IMC GLOBAL OPERATIONS, po nie“ INC. TRANSOK INC. JUD THVIN ENCANA MIDSTREAM, INC. yon eal ESTIS WELL SERVICE, L.L.C. JUDGMENT (Filed Oct. 19, 2004) For the reasons set forth in the Memorandum Opinion filed this date, IT IS ORDERED that the following motions are DENTED: °* Rule 12(b)(1) motion for deference to the primary concurrent jurisdiction of the Louisiana Office of Conservation and the Louisiana Department of Environmental Quality; * Rule 12(b)(1) and/or Rule 12(b)(6) motion to dismiss premature claims; ° Rule 12(e) motion for more definitive statement: . Rule 12(b\3) motion to dismiss for im- proper venue; App. 101 ¢ Motion for compliance with Rule 20 and 21 regarding improper joinder (moot); . Rule 12(b)(6) motion to dismiss on grounds of prescription; ¢ Rule 12(b)(7) motion to dismiss for fail- ure to join necessary parties; - Motion to strike section five of the affi- davit of Finis Cowan and the affidavit of Juliet D. Cowan IT IS FURTHER ORDERED that the following motions are GRANTED: e Rule 12(b)(6) motion to dismiss (con- verted to a motion for summary judg- ment) for failure to state a contractual claim due to lack of standing; ¢ Rule 12(b)(6) motion to dismiss (con- verted to a motion for summary judg- ment) for failure to state a tort claim due to lack of standing; ¢ Rule 12(b)(6) motion to dismiss for fail- ure to state a claim for mental anguish damages (unopposed); ¢ Rule 12(b)(6) motion to dismiss punitive damage claim outside the period of 1984 to 1996. ¢ Rule 12(b)(6) motion to dismiss for fail- ure to state a claim for attorney's fees (unopposed ) App. 102 Considering that the rulings granting the motions for summary judgment for failure to state contractual and tort claims due to lack of standing dispose of all claims, IT IS ORDERED that the Clerk take note that this Judgment effectively dismisses all of plain- tiffs’ claims. Signed at Lafayette, Louisiana on October 19, 2004. /s/ M E Methvin Mildred E. Methvin United States Magistrate Judge 800 Lafayette St., Suite 3500 Lafayette, Louisiana 70501 (337) 593-5140 (phone) 593-5155 (fax) App. 103 28 U.S.C.A. § 1332 Diversity of citizenship; amount in controversy; costs (a) The district courts shall have original jurisdic- tion of all civil actions where the matter in contro- versy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citi- zens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. (b) Except when express provision therefor is other- wise made in a statute of the United States, where the plaintiff who files the case originally in the Fed- eral courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed with- out regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclu- sive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. App. 104 (c) For the purposes of this section and section 1441 of this title — (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unin- corporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the in- sured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. (d)(1) In this subsection — (A) the term “class” means all of the class mem- bers in a class action; (B) the term “class action” means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to he brought by 1 or more representative persons as a class action; App. 105 (C) the term “class certification order” means an order issued by a court approving the treat- ment of some or all aspects of a civil action as a class action; and (D) the term “class members” means the per- sons (named or unnamed) who fall within the definition of the proposed or certified class in a class action. (2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which — (A) any member of a class of plaintiffs is a citi- zen of a State different from any defendant; (B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or (C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state. (3) A district court may, in the interests of justice and looking at the totality of the circumstances, de- cline to exercise jurisdiction under paragraph (2) over a class action in which greater than one-third but less than two-thirds of the members of all proposed plain- tiff classes in the aggregate and the primary defen. dants are citizens of the State in which the action was originally filed based on consideration of — (A) whether the claims asserted involve mat- ters of national or interstate interest: App. 106 (B) whether the claims asserted will be gov- erned by laws of the State in which the action was originally filed or by the laws of other States; (C) whether the class action has been pleaded in a manner that seeks to avoid Federal juris- diction; (D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants; (E) whether the number of citizens of the State in which the action was originally filed in all pro- posed plaintiff classes in the aggregate is sub- stantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and (F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed. (4) A district court shall decline to exercise juris- diction under paragraph (2) (A)(i) over a class action in which — (I) greater than two-thirds of the members of all proposed plaintiff classes in the aggre- gate are citizens of the State in which the action was originally filed; (II) at least 1 defendant is a defendant (5) any App. 107 (aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and (III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and (ii) during the 3-year period preceding the fil- ing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on be- half of the same or other persons; or (B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed. Paragraphs (2) through (4) shall not apply to class action in which - (A) the primary defendants are States, State officials, or other governmental! entities against whom the district court may be foreclosed from ordering relief; or (B) the number of members of all proposed plaintiff classes in the aggregate is less than 100. App. 108 (6) In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs. (7) Citizenship of the members of the proposed plaintiff classes shall be determined for purposes of paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint, or, if the case stated by the initial pleading is not subject to Federal jurisdiction, as of the date of service by plaintiffs of an amended pleading, motion, or other paper, indi- cating the existence of Federal jurisdiction. (8) This subsection shall apply to any class action before or after the entry of a class certification order by the court with respect to that action. (9) Paragraph (2) shall not apply to any class action that solely involves a claim (A) concerning a covered security as defined under 16(f)(3) of the Securities Act of 1933 (15 U.S.C. 78p(f)(3)) and section 28(f)5)(E) of the Securities Exchange Act of 1934 (15 U.S.C T&8bb(f)(5)(B)): (3B) that relates to the internal affairs or gov- ernance of a corporation or other form of business enterprise and that arises under or by virtue of So in original. Reference to “16(f%3)" probably should be preceded by “section” Soin onginal. Probably should be “77(px3y App. 109 the laws of the State in which such corporation or business enterprise is incorporated or organized; or (C) that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder). (10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized. (11)(A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class ac- tion removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs. (B)Gi) As used in subparagraph (A), the term “mass action” means any civil action (except a civil action within the scope of section 1711(2)) in which mone- tary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a). (ii) As used in subparagraph (A), the term “mass action” shall not include any civil action in which App. 110 (I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State; (II) the claims are joined upon motion of a defendant; (III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a pur- ported class) pursuant to a State statute specif- ically authorizing such action; or (IV) the claims have been consolidated or coor- dinated solely for pretrial proceedings. (C)(i) Any action(s) removed to Federal court pur- suant to this subsection shall not thereafter be trans- ferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursu- ant to section 1407. (ii) This subparagraph will not apply — (I) to cases certified pursuant to rule 23 of the Federal Rules of Civil Procedure; or (ii) if plaintiffs propose that the action proceed as a class action pursuant to rule 23 of the Federal Rules of Civil Procedure. App. 111 (D) The limitations periods on any claims asserted in a mass action that is removed to Federal court pur- suant to this subsection shall be deemed tolled during the period that the action is pending in Federal court. (e) The word “States”, as used in this section, in- cludes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico. App. 112 28 U.S.C.A. § 1441. Actions removable generally (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defen- dant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of de- fendants sued under fictitious names shall be dis- regarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the par- tics in interest properly joined and served as defen- dants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title 1s joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predomi- nates. (d) Any civil action brought in a State court against ° > } a foreign state as defined in section 1603(a) of this App. 113 title may be removed by the foreign state to the dis- trict court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. (e)(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if — (A) the action could have been brought in a United States district court under section 1369 of this title; or (B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter. The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal] may also be filed be- fore trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same App. 114 accident as the action in State court, or at a later time with leave of the district court. (2) Whenever an action is removed under this sub- section and the district court to which it is removed or transferred under section 1407(j) has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be re- tained for the determination of damages. (3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liahility determination shall not be sub- ject to further review by appeal or otherwise. (4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise. (5) An action removed under this subsection shall be deemed to be an action under section 1369 and an App. 115 action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title. (6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum. (f) The court to which a civil action is removed un- der this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is re- moved did not have junsdiction over that claim. App. 116 LSA-R.S. 30:29 Remediation of oilfield sites and exploration and production sites A. The legislature hereby finds and declares that Article [X, Section 1 of the Constitution of Louisiana mandates that the natural resources and the environ- ment of the state, including ground water, are to be protected, conserved, and replenished insofar as poss- ible and consistent with the health, safety, and wel- fare of the people and further mandates that the legislature enact laws to implement this policy. It is the duty of the legislature to set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest. To this end, this Section provides the procedure for judicial resolution of claims for environmental damage to property arising from activities subject to the juris- diction of the Department of Natural Resources, office of conservation. The provisions of this Section shall be implemented upon receipt of timely notice as required by Paragraph (B)(1) of this Section. The provisions of this Section shall not be construed to impede or limit provisions under private contracts imposing remediation obligations in excess of the requirements of the department or limit the right of a party to a private contract to enforce any contract provision in a court of proper jurisdiction. B. (1) Notwithstanding any law to the contrary, immediately upon the filing or amendment of any liti- gation or pleading making a judicial demand arising from or alleging environmental damage, the provi- sions of this Section shall apply and the party filing App. 117 same shall provide timely notice to the state of Louisiana through the Department of Natural Re- sources, commissioner of conservation and the attor- ney general. The litigation shall be stayed with respect to any such judicial demand until thirty days after such notice is issued and return receipt is filed with the court. (2) The department or the attorney general, in ac- cordance with their areas of constitutional and statu- tory authority and regulations adopted pursuant thereto, shall have the right to intervene in such liti- gation in accordance with the Louisiana Code of Civil Procedure. Nothing in this Section shall diminish the authority of the department or the attorney general to independently bring any civil or administrative enforcement action. Nor shall anything in this Sec- tion preclude the department from independently re- sponding in a timely manner to an inquiry or request by a landowner for investigation. (3) Any judgment or order in any litigation to which this Section applies shall be without prejudice to any independent civil or administrative action by the de- partment or the attorney general regarding any envi- ronmental damage alleged therein. No such judgment or order in such litigation may bar the department or the attorney general pursuant to R.S. 13:4231 et seq., or otherwise from pursuing any independent civil or administrative action regarding environmental dam- age alleged therein, regardless of whether the depart- ment or the attorney general has intervened. App. 118 (4) No judgment or order shall be rendered granting any relief in such litigation to which this Section applies, nor shall the litigation be dismissed, until timely notice is received by the state of Louisiana as set forth in this Subsection. C. (1) If at any time during the proceeding a party admits liability for environmental damage or the finder of fact determines that environmental damage exists and determines the party or parties who caused the damage or who are otherwise legally re- sponsible therefor, the court shall order the party or parties who admit responsibility or whom the court finds legally responsible for the damage to develop a plan or submittal for the evaluation or remediation to applicable standards of the contamination that re- sulted in the environmental damage. The court shall order that the plan be developed and submitted to the department and the court within a time that the court determines is reasonable and shall allow the plaintiff or any other party at least thirty days from the date each plan or submittal was made to the department and the court to review the plan or sub- mittal and provide to the department and the court a plan, comment, or input in response thereto. The department shall consider any plan, comment, or response provided timely by any party. The depart- ment shall submit to the court a schedule of esti- mated costs for review of the plans or submittals of the parties by the department and the court shall require the party admitting responsibility or the party found legally responsible by the court to deposit App. 119 in the registry of the court sufficient funds to pay the cost of the department’s review of the plans or sub- mittals. Any plan or submittal shall include an estimation of cost to implement the plan. (2) Within sixty days from the last day on which any party may provide the department with a plan, com- ment, or response to a plan as provided in Paragraph (C)(1) of this Section, the department shall conduct a public hearing on the plan or plans submitted. Within sixty days of the conclusion of the hearing, the department shall approve or structure a plan based on the evidence submitted which the department determines to be the most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people. The depart- ment shall issue written reasons for the plan it approves or structures. On motion of the department, for good cause shown, the court may grant the depart- ment additional time, not to exceed sixty days, within which to either conduct the hearing or approve a plan with reasons. (3) The department shall use and apply the appli- cable standards in approving or structuring a plan that the department determines to be the most feasi- ble plan to evaluate or remediate the environmental damage. (4) The plan approved by the department for sub- mission to the court shall not be considered to be an adjudication subject to appellate review pursuant to R.S. 49:964 or R.S. 30:12. App. 120 (5) The court shall adopt the plan approved by the department, unless a party proves by a preponder- ance of the evidence that another plan is a more feasi- ble plan to adequately protect the environment and the public health, safety, and welfare. The court shall enter a judgment adopting a plan with written reasons assigned. Upon adoption of a plan, the court shall order the party or parties admitting responsi- bility or the party or parties found legally responsible by the court to fund the implementation of the plan. (6)(a) 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. (b) Any appeal under this Section shall be a de novo review and shall be heard with preference and on an expedited basis. (c) The appellate court may 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 its decision. D. (1) Whether or not the department or the attor- ney general intervenes, and except as provided in Subsection H of this Section, all damages or pay- ments in any civil action, including interest thereon, App. 121 awarded for the evaluation or remediation of environ- mental damage shall be paid exclusively into the registry of the court in an interest-bearing account with the interest accruing to the account for clean up. (2) The court may allow any funds to be paid into the registry of the court to be paid in increments as necessary to fund the evaluation or remediation and implementation of any plan or submittal adopted by the court. In any instance in which the court allows the funds to be paid in increments, whether or not an appeal is taken, the court shall require the posting of a bond for the implementation of the plan in such amount as provided by and in accordance with the procedures set forth for the posting of suspensive appeal bonds. Any such bond shall be valid through completion of the remediation. (3) The court shall issue such orders as may be necessary to ensure that any such funds are actually expended in a manner consistent with the adopted plan for the evaluation or remediation of the environ- mental damage for which the award or payment is made. (4) The court shall retain jurisdiction over the funds deposited and the party or parties admitting respon- sibility or the party or parties found legally respon- sible by the court until such time as the evaluation or remediation is completed. If the court finds the amount of the initial deposit insufficient to complete the evaluation or remediation, the court shall, on the motion of any party or on its own motion, order the App. 122 party or parties admitting responsibility or found legaliy responsible by the court to deposit additional funds into the registry of the court. Upon completion of the evaluation or remediation, the court shall order any funds remaining in the registry of the court to be returned to the depositor. The department and the parties shall notify the court of the completion of any evaluation or remediation. FE. (1) In any civil action in which a party is re- sponsible for damages or payments for the evaluation or remediation of environmental damage, a party providing evidence, in whole or in part, upon which the judgment is based shall be entitled to recover from the party or parties admitting responsibility or the party or parties found legally responsible by the court, in addition to any other amounts to which the party may be entitled, all costs attributable to producing that portion of the evidence that directly relates to the establishment of environmental dam- age, including, but not limited to, expert witness fees, environmental evaluation, investigation, and testing, the cost of developing a plan of remediation, and rea- sonable attorney fees incurred in the trial court and the department. (2) In any civil action in which the department or the attorney general, or their employees, are parties or witnesses, provide evidence, or otherwise contri bute to the determination of responsibility for evalua- tion or remediation, or the approval of a plan of remediation, the department or attorney general shall be entitled to recover from the party or parties App. 123 admitting responsibility or the party or parties found legally responsible by the court all costs thercof, including but not limited to investigation, evaluation, and review costs; expert witness fees; and reasonable attorney fees. F. The court and the department shall retain over- sight to ensure compliance with the plan. The party or parties admitting responsibility or the party or parties found legally responsible by the court shall file progress reports periodically as the court or the department may require. G. The provisions of this Section are intended to en- sure evaluation or remediation of environmental damage. If the court finds that no environmental damage exists, the court may dismiss the department or attorney general from the litigation without prejudice. H. This Section shall not preclude an owner of land from pursuing a judicial remedy or receiving a ju- dicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section. Nor shall it preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may he required in accordance with the terms of an ex- press contractual provision. Any award granted in connection with the judgment for additional remedi- ation is not required to be paid tnto the registry of the court. This Section shall not be interpreted to create App. 124 any cause of action or to impose additional implied obligations under the mineral code or arising out of a mineral lease. I. For the purposes of this Section, the following terms shall have the following meanings: (1) “Environmental damage” shall mean any actual or potential impact, damage, or injury to environ- mental media caused by contamination resulting from activities associated with oilfield sites or explo- ration and production sites. Environmental media shall include but not be limited to soil, surface water, ground water, or sediment. (2) “Evaluation or remediation” shall include but not be limited to investigation, testing, monitoring, containment, prevention, or abatement. (3) “Feasible Plan” means the most reasonable plan which addresses environmental damage tn conformity with the requirements of Louisiana Constitution Arti- cle IX, Section 1 to protect the environment, public health, safety and welfare, and is in compliance with the specific relevant and applicable standards and regulations promulgated by a state agency in accor- dance with the Administrative Procedure Act in effect at the time of clean up to remediate contamination resulting from oilfield or exploration and production operations or waste. (4) “Oilfield site” or “exploration and = production (E&P) site” means any location or any portion thereof on which oil or gas exploration, development, or App. 125 production activities have occurred, including wells, equipment, tanks, flow lines or impoundments used for the purposes of the drilling, workover, produc- tion, primary separation, disposal, transportation or storage of E&P wastes, crude oil and natural gas processing, transportation or storage of a common production stream of crude oil, natural gas, coal seam natural gas, or geothermal energy prior to a custody transfer or a sales point. In general, this definition would apply to all exploration and production opera- tions located on the same lease, unit or field. (5) “Timely notice” means written notice sent by certified mail, return receipt requested. Such notice shall include a copy of the petition and any other filing in such litigation. J.(1) In the event that any settlement is reached in a case subject to the provisions of this Section, the settlement shall be subject to approval by the court. The department and the attorney general shall be given notice once the parties have reached a settle- ment in principle. The department shall then have no less than thirty days to review that settlement and comment to the court before the court certifies the settlement. If after a contradictory hearing the court requires remediation, the court shall not certify or approve any settlement until an amount of money sufficient to fund such remediation is deposited into the registry of the court. No funding of a settlement shall occur until the requirements of this Section have been satisfied. However, the court shall have the discretion to waive the requirements of this Section if App. 126 the settlement reached is for a minimal amount and is not dispositive of the entire litigation. (2) In the event a settlement is agreed to between the parties in a case in which the department or the attorney general has intervened, such agency shall be entitled to recover from the settling defendants all costs, including investigation, evaluation, and review costs; expert witness fees; and reasonable attorney fees. K. The provisions of this Section shall not apply to a judicial demanc that prior to the effective date of this Section has been resolved through compromise agreement and settlement of claims, or by judgment on the merits that has become final and definitive. CREDIT(S) Added by Acts 2006, No. 312, § 1, eff. June 8, 2006. NOTICE; APPLICATION --ACTS 2006, NO. 312 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1159%3A1. Public record. Not legal advice.