State ex rel. Tureau v. BEPCO, L.P.

326 So.3d 925

STATE of Louisiana, EX REL. Justin Dale TUREAU

v.BEPCO, L.P., BOPCO, LLC, Chevron U.S.A. Inc., Chisolm Trail Ventures, L.P., and Hess Corporation, a Delaware Corporation

2021 CA 0080

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: MAY 19, 2021

Victor L. Marcello ; Donald T. Carmouche ; John H. Carmouche ; William R. Coenen, III ; Brian T. Carmouche ; Todd J. Wimberley ; Ross J. Donnes ; D. Adele Owen ; Leah C. Poole ; Caroline H. Martin ; Christopher D. Martin ; and Michael L. Heaton, Baton Rouge, Louisiana, and Jerold Edward Knoll, Sr., Marksville, Louisiana, Counsel for Appellant Plaintiff—Justin Dale Tureau

Loulan J. Pitre, Jr. ; Aimee Williams Hebert ; and Jane A. Jackson, New Orleans, Louisiana, Counsel for Appellees Defendants—Chisolm Trail Ventures, L.P., and BEPCO, L.P.

Michael R. Phillips ; Claire E. Juneau ; and Claudia Carrizales, New Orleans, Louisiana, and L. Victor Gregoire ; Richard D. McConnell, Jr. ; and John C. Funderbunk, Baton Rouge, Louisiana, Counsel for Appellee Defendant—Chevron U.S.A., Inc.

Jonathan A. Hunter ; Robert B. McNeal ; Elizabeth S. Wheeler ; Kelly Bretchtel Becker ; and Erin E. Bambrick, New Orleans, Louisiana, Counsel for Appellee Defendant—Hess Corporation

Michael P. Cash, Houston, Texas, and Jamie D. Rhymes and Hunter A. Chauvin, Lafayette, Louisiana, Counsel for Appellee Defendant—BOPCO, LLC

Before: Whipple, C.J., Welch, and Chutz, JJ.

WELCH, J.

The plaintiff, Justin Dale Tureau, appeals a judgment sustaining the peremptory exception raising the objection of prescription filed by defendants, BEPCO, L.P. ("BEPCO"); BOPCO, L.P. ("BOPCO"); and Chisholm Trail Ventures, L.P. ("Chisholm") (collectively "the off-tract defendants"), and dismissing those defendants from the plaintiff's suit, which sought regulatory compliance and injunctive relief requiring the off-tract defendants, among others, to remediate contamination they allegedly caused to the plaintiff's property by their oil and gas exploration and production activities. For reasons that follow, we reverse the judgment of the trial court and remand this matter with instructions for further proceedings.

LEGAL BACKGROUND

Article IX, § 1 of the Louisiana Constitution provides that "[t]he natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people." This article further provides that "[t]he legislature shall enact laws to implement this policy." As set forth in La. R.S. 30:29, the legislature explained that this constitutional article required it to "set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest."

Pursuant to this constitutional authority, the legislature created the Department of Conservation (sometimes referred to as "the Office of Conservation"), which is directed and controlled by the Commissioner of Conservation ("the Commissioner") to oversee the conservation of Louisiana's natural resources. The Department of Conservation has jurisdiction over the disposal of any waste products 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. La. R.S. 30:1. The Commissioner has jurisdiction and authority over all persons and property necessary to effectively enforce that with which he is tasked with overseeing and the laws relating to the conservation of oil or gas. See La. R.S. 30:4. The Commissioner's jurisdiction and authority specifically includes the power to make inquiries to determine whether or not waste exists or is imminent and to make reasonable rules, regulations, and orders that are necessary to properly administer his office and to enforce the conservation of natural resources. Id.

Pursuant to this statutory authority, Statewide Order 29-B, which is set forth in L.A.C. 43:XIX.101, et seq. , was promulgated. Statewide Order 29-B sets forth specific requirements for the plugging and abandonment of wells; the operation and closure of oilfield pits; the operation of wells and related surface facilities; the storage, treatment, and disposal of non-hazardous waste; the remediation of various contaminants; and the general operating requirements for oil and gas facilities. See L.A.C. 43:XIX.101, et seq.

Louisiana Revised Statutes 30:14 provides:

Whenever it appears that a person is violating or is threatening to violate a law of this state with respect to the conservation of oil or gas, or both, or a provision of this Chapter, or a rule, regulation, or order made thereunder, the [C]ommissioner shall bring suit to restrain that person from continuing the violation or from carrying out the threat.

* * *

In this suit, the [C]ommissioner may obtain injunctions, prohibitory and mandatory, including temporary restraining orders and preliminary injunctions, as the facts warrant, including, when appropriate, injunctions restraining a person from moving or disposing of illegal oil, illegal gas, or an illegal product. ...

Further, La. R.S. 30:16 provides:

If the [C]ommissioner fails to bring suit within ten days to restrain a violation as provided in R.S. 30:14, any person in interest adversely affected by the violation who has notified the [C]ommissioner in writing of the violation or threat thereof and has requested the [C]ommissioner to sue, may bring suit to prevent any or further violations, in the district court of any parish in which the [C]ommissioner could have brought suit. If the court holds that injunctive relief should be granted, the [C]ommissioner shall be made a party and shall be substituted for the person who brought the suit and the injunction shall be issued as if the [C]ommissioner had at all times been the complaining party.

FACTUAL AND PROCEDURAL BACKGROUND

On September 14, 2017, the plaintiff commenced these proceedings by filing a petition for injunctive relief and for costs and attorney's fees. Named as defendants were BEPCO; BOPCO; Chisholm; Chevron U.S.A. Inc. ("Chevron"); and Hess Corporation, A Delaware Corporation ("Hess").¹ According to the allegations of the petition, the plaintiff is the owner of property located in the Eola Oil & Gas Field in Avoyelles Parish, Louisiana.² He alleged that Chevron and Hess drilled and operated numerous oil and gas wells on his property, which included the construction and use of unlined earthen pits that have never been closed or have not been closed in conformance with Louisiana's environmental laws and regulations, particularly Statewide Order 29-B, L.A.C. 43:XIX.101, et seq. The plaintiff further alleged that BEPCO, BOPCO and Chisholm drilled and operated numerous oil and gas wells on adjacent property that caused contamination of his property in violation of Statewide Order 29-B, among other regulations and statutes.

The plaintiff attached copies of two letters to his petition. In the first letter, dated August 31, 2016, the plaintiff provided the Commissioner with formal notice of the above alleged violations and stated that if the Commissioner did not file suit under La. R.S. 30:14 within ten days, then he would sue the responsible parties for injunctive relief pursuant to La. R.S. 30:16. In the second letter, dated September 27, 2016, the plaintiff reiterated to the Commissioner his intention to file suit if the Commissioner failed to do so. The Commissioner failed to take action pursuant to these letters. Therefore, the plaintiff commenced these proceedings, seeking the relief set forth in La. R.S. 30:14 and 30:16, i.e., mandatory and prohibitory injunctive relief in favor of the State of Louisiana and the Commissioner ordering all named defendants to remediate the contamination on the plaintiff's property caused by the defendants’ oil and gas exploration and production activities to a level that complied with the applicable regulations and orders, including Statewide Order 29-B and restraining all named defendants from further violating, or threatening to violate, applicable regulations and orders, including Statewide Order 29-B.

The off-tract defendants initially responded to the plaintiff's petition by filing a peremptory exception raising the objection of no cause of action and a dilatory exception raising the objection of prematurity, essentially arguing that the plaintiff failed to identify or reference the off-tract defendants or the adjacent property in his pre-suit notice letter to the Commissioner and that he failed to provide the Commissioner with information sufficient to identify the off-tract defendants as alleged violators of any applicable regulation or orders. Pursuant to a judgment signed by the district court on January 3, 2020, the exceptions were sustained and the plaintiff was granted sixty days to amend his petition to remove the grounds for the exceptions. On February 13, 2020, the plaintiff filed a supplemental and amending petition to include the additional factual allegations, as well as a new pre-suit letter to the Commissioner dated January 6, 2020.

In response to the plaintiff's supplemental and amending petition, the off-tract defendants filed a peremptory exception raising the objection of prescription, which is at issue in this appeal.³ Therein, the off-tract defendants argued that the plaintiff's claims against them based on La. R.S. 30:16 were subject to the one-year prescriptive period applicable to delictual actions and that the plaintiff knew of the alleged violations of Statewide Order 29-B by the off-tract defendants in July 2013, when he filed a prior suit seeking damages for the contamination related to the same property. Thus, the off-tract defendants contended that the plaintiff's claims herein were prescribed because the suit was filed on September 14, 2017—more than four years after the plaintiff knew of the...