State Of Louisiana, Ex R El. Justin Dale Tureau Vs.

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #046
FROM: CLERK OF SUPREME COURT OF LOUISIANA
T
he Opinions handed down on the 21st day of October, 2022 are as follows:
B
Y Hughes, J.:
2021-C-00856 STATE OF LOUISIANA, EX R EL. JUSTIN DALE TUREAU VS.
BEPCO, L.P., BOPCO, LLC, CHEVRON U.S.A. INC., CHISOLM
TRAIL VENTURES, L.P., AND HESS CORPORATION, A
DELAWARE CORPORATION (Parish of East Baton Rouge)
AFFIRMED, RENDERED AND REMANDED. SEE OPINION.
Weimer, C.J., additionally concurs and assigns reasons.
Crain, J., dissents and assigns reasons.
McCallum, J., dissents.

SUPREME COURT OF LOUISIANA

NO. 2021-C-0856

STATE OF LOUISIANA, EX REL. JUSTIN DALE TUREAU

VS.

BEPCO, L.P., BOPCO, LLC, CHEVRON U.S.A. INC.,
CHISOLM TRAIL VENTURES, L.P., AND
HESS CORPORATION, A DELAWARE CORPORATION

On Writ of Certiorari to the Court of Appeal, First Circuit,
Parish of East Baton Rouge

HUGHES, J.
The court is presented with the res nova issues of the prescriptive period
applicable to a citizen suit for injunctive relief pursuant to LSA-R.S. 30:16, and the
necessary allegations to state a cause of action under LSA -R.S. 30:14 and/or LSA-
R.S. 30:16. As to what prescriptive period, if any, is applicable to such a suit, we
hold that a LSA-R.S. 30:16 citizen suit is not subject to liberative prescription. We
further find that , insofar as the petition alleges that defendants are violating
conservation laws, rules, regulations, or orders, the allegations are sufficient to
defeat an exception of no cause of action. We therefore affirm the ruling of the First
Circuit Court of Appeal , which overruled defendants’ exceptions of prescription,
overrule the exceptions of no cause of action, and remand this case for further
proceedings.
APPLICABLE LAW
The public policy of environmental protection is e nshrined in Louisiana’s
Constitution. It directs that the “natural resources of the state” are to “be protected,
conserved, and replenished insofar as possible and consistent with the health, safety,

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and welfare of the people ,” and mandates that the legislature “enact laws to
implement this policy.” LSA -Const. art. IX, §1. In light of this constitutional
mandate, the Louisiana legislature has acknowledged its “duty to set forth
procedures to ensure that damage to the environment is remediated to a standard that
protects the public interest, ” creating an extensive body of law to address every
phase of the oil and gas exploration process, from the initial exploration and drilling
phases to cleanup and disposal of wastes. See LSA-R.S. 30:29(A). The Office of
Conservation, directed and controlled by the Co mmissioner of Conservation , was
established to oversee and enforce these conservation laws . LSA-R.S. 30:1 et seq.
The Commissioner has jurisdiction and authority over all persons and property
necessary for the effective enforcement of that with which he is tasked with
overseeing, and the laws relative to oil and gas conservation. LSA-R.S. 30:4.
Pursuant to LSA -R.S. 30:14, the Commissioner has a duty to restrain any person
who “is violating or is threatening to violate” conservation law:
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 commissioner shall bring suit to restrain that
person from continuing the violation or from carrying out the threat.

Venue shall be in the district court in the parish of the residence of any
one of the defendants or in the parish where the violation is alleged to
have occurred or is threatened.

In this suit, the commissioner 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. Any or all of these illegal commodities
may, in the court’ s discretion, be ordered impounded or placed under
the control of an agent appointed by the court.

If, after receipt of sufficient notice, the Commissioner fails to honor this duty,
LSA-R.S. 30:16 authorizes “any person in i nterest adversely affected by the
violation” to institute proceedings “to prevent any or further violations”:
If the commissioner fails to bring suit within ten days to restrain a
violation as provided in R.S. 30:14, any person in interest adversely

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affected by the violation who has notified the commissioner in writing
of the violation or threat thereof and has requested the commissioner to
sue, may bring suit to prevent any or further violations, in the district
court of any parish in which the commissioner could have brought suit.
If the court holds that injunctive relief should be granted, the
commissioner 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
commissioner had at all times been the complaining party.

Thus, th is c itizen suit provision grants to private citizens the authority to
initiate enforcement actions to restrain violations of conservation laws and
regulations by seeking injunctive relief, whether that be a mandatory injunction (one
that orders a responsible party to properly remediate contaminated land in
compliance with state regulations ) or a prohibitory injunction ( one that restrains a
responsible party from further violations of the Conservation law).
Citizen suit provisions such as LSA -R.S. 30:16 have been universally
recognized as an additional enforcement “safety net” that is authorized, necessary,
and integral to the protection of public health and resources. Louisiana Revised
Statutes 30:16, like most citizen suit provisions, does not allow for compensatory
relief such as damages. Rather, the sole form of relief available under this provision
is an equitable one, intended to promote the public interest of protecting and
conserving the State’s natural resources by ensuring compliance with conservation
law and environmental regulations.
FACTS AND PROCEDURAL HISTORY
Justin Dale Tureau instituted a citizen suit pursuant to LSA-R.S. 30: 16,1
alleging that defendants drilled and operated numerous oil and gas wells on his
property, or on adjacent property, as well as constructed and used unlined earthen
pits. Specifically, Tureau alleged that said unlined pits were either never closed, or
were not closed in conformance with environmental rules and regulations, including
Statewide Order 29 -B, L.A.C. 43:XIX.101, et seq , which, among other things,

1 Tureau sent the n otice required under LSA -R.S. 30:16 on August 31, 2016 and September 27,
2016, prior to filing his suit on September 14, 2017.

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requires the registration and closure of existing unlined oilfield pits, as well as the
remediation of various enumerated contaminants in the soil to certain minimum
standards. Tureau prayed for injunctive relief under LSA -R.S. 30:16, forcing
defendants’ compliance with Statewide Order 29-B.
Defendants filed exceptions, raising the objection s of prescription and no
cause of action. In support of their exception of prescription, defendants alleged that
the one-year prescriptive period set forth in LS A-C.C. article 3492 applies to
Tureau’s claims. Because Tureau knew of damage to his property in 2013 when he
filed a prior lawsuit in tort for compens atory damages, defendants argued that his
claims are prescribed.
In opposition to the exception of prescription, Tureau argued that the
legislature did not provide a prescriptive period applicable to a suit for injunctive
relief under LSA-R.S. 30:16, and therefore such claims are imprescriptible. Tureau
further argued that, because the Commissioner must be substituted as the party
plaintiff if the court determines that injunctive relief is warranted, the State of
Louisiana is the real party in interest in this case. Because prescription does not run
against the State, the claims are not prescribed. Alternatively, Tureau alleged that
the contamination from defendants’ failure to co mply with environmental
regulations is still present, and therefore his claims are not prescribed under the
continuing tort doctrine.
The district court sustained defendants’ exceptions of prescription and
dismissed the claims against them, finding that a one-year prescriptive period
applied. In light of its ruling on prescription, the district court dismissed the
exception of no cause of action as moot. The First Circuit Court of Appeal, however,
reversed that judgment, finding that administrati ve enforcement suits such as
Tureau’s are not subject to the one -year prescriptive period applicable to delictual
actions for damages. State ex rel. Tureau v. BEPCO, L.P., 21-0080 (La. App. 1

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Cir. 5/19/21), 326 So.3d 925 . The First Circuit distinguished a suit for injunctive
relief from a traditional tort suit for compensatory damages, noting that all of the
cases cited to support the application of a one-year prescriptive period involved
claims for damages. The First Circuit further found that its conclusion was bolstered
by statements of the supreme court in Marin v. Exxon Mobil Corp., 09-2368, 09-
2371 (La. 10/19/10), 48 So.3d 234, and Eagle Pipe & Supply, Inc. v. Amerada
Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La. 10/25/11), 79 So.3d
246. Specifically, the First Circuit noted that, while the Marin court found that the
plaintiff’s delictual action for property damages for the remediation of
contamination was prescribed, and that the continuing tort doctrine was not
applicable, this court, in doing so, stated as follows:
We note that one of the reasons we granted this writ was to determine
whether a subsequent purchaser has the right to sue for property
damages that occurred b efore he purchased the property, particularly
where the damage was not overt. However, we need not reach that
determination in this case because, assuming the [plaintiffs] had a right
as a subsequent purchaser to sue in tort for property damage, that right
has prescribed. Further, we note that regardless of who has standing
to pursue claims for money damages, the current owner of property
always has the right to seek a regulatory cleanup of a contaminated
site. La. R.S. 30:6(F); La. R.S. 30:16.

Marin, 48 So.3d at 256, n.18. (Emphasis added).

Additionally, in Eagle Pipe, this court held that a landowner, who discovered
after the purchase of the land that it had been contaminated by an oil and trucking
company prior to the sale, had no right to sue the oil and trucking company for that
nonapparent property damage absent an assignment or subrogation of that right by
the previous landowner. In doing so, however, t he First C ircuit noted that the
supreme court also discussed the legislative choices reflected in prescription laws
that may bar a landowner’s claim for monetary damages for contaminati on that
occurred in the past, stating as follows:
We are not unaware of the effects which the rules of discovery and
prescription will have on certain fact situations under this analysis,

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especially where the damage to property occurred in the distant past ,
where property rapidly changes hands or where ancestors in title are
non-existent. We find the rules of discovery and prescription are
deliberate legislative choices which ultimately limit otherwise
imprescriptible torts and which maintain certainty in transactions
involving immovable property. The legislature, if it chose, could have
created a right of action to seek damages against tortfeasors for damage
to property which affects current property owners no matter when the
damage occurred, or could have made an exception to prescription rules
for long-term contamination of property. But such legislation has not
been enacted. Instead, the legislature has decided the only addition to
current legal remedies is a mechanism for remediating the property.

Eagle Pipe, 79 So.3d at 276. (Emphasis added; footnotes omitted).

In a footnote to the italicized statement, the Eagle Pipe court identified LSA-
R.S. 30:16 as one such remedy for the remediation of property. Based on these
statements in Marin and Eagle Pipe, the First Circuit in the case at bar reasoned
that “it is apparent that the Louisiana Supreme Court does not consider actions
brought pursuant to La. R.S. 30:16 to be delictual actions for damages or that such
actions are subject to the one -year lib erative prescription period applicable to
delictual actions.” State ex rel. Tureau , 326 So.3d at 933. Although the First
Circuit held that the one-year prescriptive period for delictual actions does not apply
to a citizen suit under LSA -R.S. 30:16, it sp ecifically declined to determine which
prescriptive period, if any, applies to such actions. Id. We granted writs in this case
in order to make that determination. State ex rel. Tureau v. BEPCO, L.P. , 21-
0856 (La. 10/19/21), 326 So.3d 265. We further o rdered additional briefing and
argument on the issue of whether ongoing conduct (not merely harm resulting from
past conduct) is required to state a cause of action under LSA-R.S. 30:16.
DISCUSSION AND ANALYSIS
1. Prescription
Because resolution of the issue herein involves a question of law, it is
reviewed under a de novo standard of review. See Thibodeaux v. Donnell, 08-2436
(La. 5/5/09), 9 So.3d 120, 122 -23 (citing Holly & Smith Architects, Inc. v. St.

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Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037).
“[T]here is no prescription other than that established by legislation.” LSA-
C.C. art. 3457. For this reason, “[p]rescriptive periods may not be extended by
analogy.” Caldwell Parish Police Jury v. Town of Columbia, 40,865 (La. App. 2
Cir. 3/15/06), 930 So.2d 65, 69, rev’d on other grounds on reh’g, 06-1565 (La. App.
2 Cir. 10/6/06), 938 So.2d 75 . Rather, it is “well settled that prescription is stricti
juris and the statutes on the subject cannot be extended from one action to another,
nor to analogous cases beyond the strict letter of the law.” Duer & Taylor v.
Blanchard, Walker, O’Quin & Roberts, 354 So.2d 192, 194 (La. 1978); see
also Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1380 (La. 1990); Acad. Park
Improvement Ass’n v. New Orleans, 469 So.2d 2 (La. App. 4 Cir.), writ
denied, 475 So.2d 361 (La. 1985).
The party raising an exception of prescription has “the burden of proving that
the claim has prescribed.” Dominion Expl. & Prod., Inc. v. Waters, 07-0386, 07-
0287 (La. App. 4 Cir. 11/14/07), 972 So.2d 350, 357. Courts should resolve doubts
about a prescription question in favor of giving the litigant his day in court.
Orthopaedic Clinic of Monroe v. Ruhl, 34,700 (La. App. 2 Cir. 5/11/01), 786
So.2d 323, 328, writ denied, 01-1727 (La. 10/5/01), 798 So.2d 970.
According to the Louisiana Civil Code, there are only three forms
of prescription: acquisitive, liberative, and prescription of nonuse. See LSA-C.C.
art. 3445. Of the three, only liberative prescription, defined as a “period of time
fixed by law for the exercise of a right,” could be invoked to bar the claims herein.
See Taranto v. La. Citizens Prop. Ins., 10-0105 (La. 3/15/11), 62 So.3d 721, 726
(citing State ex. rel. Div. of Admin. v. McInnis Bros. Constr., 97-0742 (La.
10/21/97), 701 So.2d 937, 939 ). Although liberative prescription does bar certain
actions, the comments to revised article 3447 make it clear that not all actions are
subject to prescription. See LSA-C.C. art. 3447, comment (b); 58 Tul. L. Rev. 593,

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596.
Defendants do not dispu te that the legislature has not enacted a specific
liberative prescription statute applicable to claims for injunctive relief under LSA -
R.S. 30:16. They argue, nevertheless, that such claims, by analogy, are subject to
the one-year prescriptive period applicable to delictual actions for damages, set forth
in LSA-C.C. article 3492, which states, in relevant part:
Delictual actions are subject to a liberative prescription of one year.
This prescription commences to run from the day injury or damage is
sustained.

By its clear language, Article 3492 applies to “[d]elictual actions,” for “injury
or damage.” See Richard v. Wal-Mart Stores, Inc., 559 F.3d 341, 347 (5th Cir.
2009); see also Saul Litvinoff, Obligations § 5.2, in 6 Louisiana Civil Law Treatise
(2d. ed. 1999). As t he term “damages” refers to “pecuniary compensation,
recompense, or satisfaction for an injury sustained,” Article 3492 therefore applies
to a claim in which a plaintiff seeks a monetary award as compensation for damages
allegedly sustained. See Fogle v. Feazel, 201 La. 899, 10 So.2d 695, 698 (1942).
Tureau, however, seeks no such relief. Rather, in a citizen suit, citizens effectively
stand in the shoes of the governmental regulatory agency to seek enforcement of the
law, and any benefit from the lawsuit, whether injunctive or monetary, inures to the
public. See Sierra Club v. Chevron U.S.A., Inc. , 834 F.2d 1517, 1521 (9th Cir.
1987); see also Friends of the Earth, Inc. v. Laidlaw Env. Svcs. , 528 U .S. 167
(2000).
We are further persuaded by the analysis in Salvation Army v. Union Pacific
Railroad, Inc. , No. 616 -CV-0347, 2017 WL 3528903 (W.D. La. 3/8/17) .
Recognizing that citizen suits seeking to enforce environmental regulations pertain
to fundamentally-different public law matters, and are therefore nothing like private
tort claims, the Salvation Army court concluded that the Louisiana Supreme Court
would not find the one -year prescriptive period for tort actions applicable to

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Louisiana Environmental Quality Act (LEQA) citizen suits. In reaching this
conclusion, the Salvation Army court expressly disagreed with Morris & Dickson
Co. v. Jones Brothers Co., 29,379 (La. App. 2 Cir. 4/11/97) , 691 So.2d 882, 895,
wherein the Second Circuit Court of Appeal analogized the citizen suit cause of
action under LEQA to a tort cause of action, concluding in dicta that the LEQA
citizen suit claim would therefore be prescribed under the one -year prescription
period applicable to torts. The Salvation Army court pointed out that the only
support offered by the Second Circuit for its conclusion was a single law review
article, which “characterized the citizen suit provisions of the Act as arguably
creating a new tort.”2 Salvation Army, at *9. The Salvation Army court, however,
clarified that:
The parties have not cited and this Court has not found any authority in
either the Louisiana Supreme Court, the Louisiana constitution, or the
states’ statutes to support the principle that the LEQA statute has
created a new tort and is subject to the one-year prescriptive period.

Salvation Army, at *9.

In light of the clear language of Article 3492, the limited relief available under
LSA-R.S. 30:16 citizen enforcement action s, and the duty of this court to strictly
construe prescriptive statutes in favor of maintaining the action, we agree with the
First Circuit. The one-year prescriptive period set forth in Article 3492 and relative
to delictual actions for damages is not applicable t o an enforcement action for
injunctive relief under LSA-R.S. 30:16.
Nor do we find that a LSA-R.S. 30:16 citizen enforcement action is subject to
the ten-year prescriptive period in LSA-C.C. article 3499, which states:
Unless otherwise provided by legislation, a personal action is subject to
a liberative prescription of ten years.3

2 See K. Murchison, “ Enforcing Environmental Standards Under State Law: The Louisiana
Environmental Quality Act,” 57 La. L. Rev. 497, 555 (1997).

3 Louisiana Code of Civil Procedure article 422 defines “personal action,” “real action,” and
“mixed action,” as follows:

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A citizen enforcement action under LSA-R.S. 30:16 is unique. A citizen suit
has characteristics that are particular to it alone and which se t it apart from more
traditional actions. Citizen suit provisions are common to environmental regulatory
statutes because of the unique challenges faced by those tasked with their
enforcement. In fact, every major federal environmental regulatory statute contains
a citizen suit provision, save the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA).
The most notable distinction of a LSA-R.S. 30:16 action is perhaps the fact
that, although a citizen plaintiff institutes the action in his own name, he is essentially
acting for the Commissioner. By permitting citizens to pursue injunctive relief when
the Commissioner fails to do so, citizen suit provisions turn over to private citizens
the function of enforcing the law, giving to those citizens the abi lity to act in a
manner normally reserved to the government. Specifically, LSA-R.S. 30:16
encourages citizens to seek judicial enforcement of environmental regulations when
the Commissioner has failed to act, or where the sufficiency of the action in
protecting the public is questionable. See Morris & Dickson Co., 691 So.2d at 894.
This legislatively-authorized citizen participation is aimed at achieving two goals,
namely: 1) public input in substantive environmental matters; and, 2) to safeguard
against abuses in the administrative process. Id. Citizen suit provisions do not offer
any “private rewards” because citizen plaintiffs are guided by the benefit to the
public. See 325-343 E. 56 th St. Corp. v. Mobil Oil Corp. , 906 F.Supp. 669, 685
(D.D.C. 1995).

A personal action is one brought to enforce an obligation against the obligor,
personally and independently of the property which he may own, claim, or possess.

A real action is one brought to enforce rights in, to, or upon immovable property.

A mixed action is one brought to enforce both rights in, to, or upon immovable
property, and a related obligation against the owner, claimant, or possessor thereof.

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Additionally, LSA-R.S. 30:16 requires that a citizen plaintiff first provide the
Commissioner with a ten-day notice of the alleged violation or threat of a violation.
Only if the Commissioner fails to seek a court order to enjoin the alleged violation
may the citizen plaintiff institute the action. As such, the Commissioner retains
primary authority over LSA-R.S. 30:16 actions insofar as he may prevent the citizen
plaintiff’s ability to inst itute an enforcement action simply by electing to institute
the action himself.
Moreover, the language of LSA-R.S. 30:16 states that “any person in interest
adversely affected by the violation…may bring suit to prevent any or furth er
violations . . . ” As such, the clear language of the statute limits the relief available
to citizen plaintiffs to injunctive relief . Further, if the court determines that an
injunction is warranted, the statute states that, “the commissioner 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 commissioner had at all times been the complaining party.”
LSA-R.S. 30:16 is clearly narrowly tailored to serve the best interest of the
public and ensures that any relief granted s hall be issued in favor of the State,
through the Commissioner. The statute is therefore intended for the benefit of the
public; it is not intended to provide a citizen plaintiff with a private, personal action
for damages. Rather, by giving private citizens the ability to institute enforcement
actions and enjoin conservation law violations, the statute accomplishes the purpose
of the S tate’s environmental laws and regulations (i.e., to preserve, restore, and
conserve natural resources by the prevention and remediation of contamination), and
unequivocally forecloses any possibility of LSA-R.S. 30:16 being used by a citizen
plaintiff as a means of pursuing and/or obtaining a personal award of any kind.
Federal courts considering similar citizen suit provisions in major federal
environmental protection statutes, including the Resource Conservation and
Recovery Act (RCRA), the Clean Water Act (CWA), the Clean Air Act (CAA), and

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the Comprehensive Environmental Response, Compensati on and Liability Act
(CERCLA), have also acknowledged the unique nature of citizen suits. Opinions
addressing the issue of prescription relative to the RCRA ’s citizen suit provision,
although not binding, are nevertheless beneficial considering the similarities of the
language and purpose of the RCRA to the language and purpose of Louisiana’s
conservation law.4
In Meghrig v. KFC Western, Inc. , 516 U.S. 479 (1996), the United States
Supreme Court explained that the RCRA is designed to deal with actual and
immediate threats to the environment , and that its citizen suit provision creates a
primarily equitable remedy to enjoin contributors to solid or hazardous wastes
threatening health or the environment. Subsequently, in Negli Equip. Co. v. John
A. Alexander Co. , 949 F.Supp. 1435 (C.D. Cal. 1996) , the court reasoned that
Congress did not intend for courts to apply a statute of limitations to RCRA actions
seeking only prospective, equitable relief because the RCRA only comes into pl ay
if there is a present danger. Negli Equip. , 949 F.Supp. at 1435; see also A-C
Reorganization Trust v. E.I. Dupont De Nemours & Co., 968 F.Supp. 423 (E.D.
Wis. 1997). Specifically, emphasizing that “courts must at least consider RCRA’s

4 RCRA’s citizen suit provision is found in 42 U.S.C. §6972 and provides, in part, as follows:

[A]ny person may commence a civil action on his own behalf—
***
(B) against any person, including the United States and any other governmental
instrumentality or agency, …including any past or present generator, past or present
transporter, or past or present owner or operator of a treatment, storage, or disposal
facility, who has contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste which
may present an imminent and substantial endangerment to health or the
environment.
***
…The district court shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce the permit, standard,
regulation, condition, requirement, prohibition, or order, referred to in paragraph
(1)(A), to restrain any person who has contributed or who is contributing to the past
or present handling, storage, treatment, transportation, or disposal of any solid or
hazardous waste referred to in paragraph (1)(B), to order such person to take such
other action as may be necessary, or both, or to order the Administrator to perform
the act or duty referred to in paragraph (2), as the case may be, and to apply any
appropriate civil penalties under section 6928(a) and (g) of this title.

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unique purposes before finding that another statute is relevant or analogous,” the
United States District Court for the Eastern District of Wisconsin found that,
“[b]ecause [RCRA’s citizen suit provision] is meant to further the national policy of
remedying present or future imminent harms, not to compensate for past cleanups,
there is no relevant or appropriate statute of limitations for actions seeking only
injunctive relief, a fundamentally equitable remedy.” A-C Reorganization , 968
F.Supp. at 427.
In concluding that RCRA citizen suits for injunctive relief are imprescriptible,
the language and purpose of the RCRA was compared and contrasted with that of
CERCLA, a statute that provides for post -cleanup cost recovery. Specifically, the
Supreme Court noted that the “national policy behind RCRA is to minimize the
present and future threat to human health and the environment.” Meghrig, 516 U.S.
at 486, 116 S.Ct. at 1255. In contrast, CERCLA was passed a few years after the
RCRA and explicitly per mits the government to recover “all costs of removal or
remedial action.” Id. The Supreme Court found that, “Congress thus demonstrated
that it knew how to provide for the recovery of clean-up costs, and that the language
used to define the remedies unde r RCRA does not provide that remedy.” Id. The
Court further noted that a party could be forced to help with a cleanup no matter
what the costs under the RCRA, while CERCLA, which allows a problem to be
reviewed in hindsight, only permits recovery of “rea sonable” costs—a distinction
that seems to highlight the difference between the RCRA’s “immediate action”
stance and CERCLA’s more tra ditional tort liability stance. Meghrig, 516 U.S. at
486; Negli Equip., 949 F. Supp. at 1440. Additionally, in Meghrig, the Supreme
Court noted that, unlike CERCLA, the RCRA has no statute of limitations. In the
Supreme Court’s view, Congress would not have passed a law permitting recovery
of past clean-up costs without providing a statute of limitations.

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An action un der LSA -R.S. 30:16 is statutorily limited to seek only
prospective, equitable relief for violations or threats of violations of conservation
law or other environmental regulations. A citizen suit under LSA-R.S. 30:16 is thus
akin to the RCRA’s “immediate action” stance. These statutes are designed with the
health and safety of the public in mind , and are meant to stop threats to the
environment.
Although the RCRA and the conservation law seem to share the common goal
of removing existing environmental har ms, the citizen provision of the RCRA,
unlike LSA-R.S. 30:16, allows a citizen enforcer to seek civil penalties in addition
to injunctive relief. The courts, however, have distinguished actions seeking
injunctive relief (an equitable remedy) from those seeking the assessment of civil
fines or penalties (a legal remedy), finding that an “RCRA action only seeking an
order to compel other parties to help with clean-up is not akin to an action seeking a
civil fine or penalty.” Negli Equip., 949 F.Supp. at 1439. On that basis, courts have
declined to apply the five -year statute of limitations set forth in 28 U.S.C. §2462, 5
and applicable to environmental citizen suit actions for civil penalti es. See A-C
Reorganization Trust, 968 F.Supp. at 428; see also Negli Equip., 949 F.Supp. at
1435.
Moreover, i n A-C Reorganization , the court also explicitly rejected the
argument that the “Cope-Nemkov rule,”6 (which essentially holds that , where a
statute allows both legal and equitable remedies, a legal statute of limitations applies

5 28 U.S.C. §2462 creates a five-year statute of limitations for actions “for the enforcement of any
civil fine, penalty, or forfeiture” where a substantive federal law provides no statute of limitations.

6 In Cope v. Anderson, 331 U.S. 461 (1947), the Supreme Court held that where “only the scope
of the relief sought an d the multitude of parties sued . . . gives equity concurrent jurisdiction to
enforce the legal obligation here asserted . . . equity will withhold its relief . . . where the applicable
statute of limitations would bar the concurrent legal remedy.”

Thereafter, relying on Cope, the Seventh Circuit, in Nemkov v. O’Hare Chicago Corp., 592 F.2d
351, 355 (7th Cir. 1979), held that where “[e]quitable jurisdiction is concurrent [with legal
jurisdiction] even though plaintiff chooses to forego damages and to seek only equitable relief . . .
[I]f an action at law for damages would be barred, so too is the action in equity.”

15

even if a plaintiff seeks only equit able relief ) bars injunctive relief in citizen
enforcement suits. A-C Reorganization , 968 F.Supp. at 429. The court
acknowledged that a citizen enforcer under the RCRA may seek the imposition of a
legal remedy in the form of civil penalties in addition to injunctive relief . A-C
Reorganization, 968 F.Supp. at 429. The court reasoned, however, that because
those penalties are payable to the United States, and not the plaintiff, compensation
could not be their primary purpose. A-C Reorganization , 968 F.Supp. at 429.
Rather, the major purpose of the civil penalties is deterrence, and therefore the
RCRA’s citizen suit provision is meant to further the RCRA’s “national policy . . .
to minimize present and future threat to human health and the environment” through
injunction and deterrence. Meghrig, 516 U.S. at 486. As such, the court concluded
that RCRA citizen suits are equity suits , and the Cope-Nemkov rule, meant to bar
untimely suits that are really suits at law as opposed to equity, is not applicable.
Rather, the court found that no statute of limitations applies to citizen suits for
injunctive relief under the RCRA. A-C Reorganization, 968 F.Supp. at 429.
Likewise, actions for purely injunctive relief under the CWA and the C AA
are also imprescriptible.7 See Fresh Air for the East Side, Inc. v. Waste Mgmt.
of New York, LLC , 405 F.Supp.3d 408 ( W.D.N.Y. 20 19); Paper, Allied -
Industrial, Chem. and Energy Workers Int. Union v. Cont’ l Carbon Co., 428
F.3d 1285 (10th Cir. 2005).
Louisiana’s conservation law was enacted to deal with contaminated soil and
groundwater resulting from oil and gas operations throughout the state. After use,
earthen pit sites potentially contain various invisible contaminants below the ground,
including heavy metals and radioactive substances that pose environmental and
health risks. Statewide Order 29-B therefore required that these sites be remediated

7 The language of the citizen suit provisions in the CWA and the CAA are identical.

16

to a certain minimum standard upon closure. Citizens have a right to expect
contamination-free groundwater and soils, and a concerted, honest cleanup effort
from those who benefitted greatly from their communities a nd surrounding natural
resources. See Wilson v. Amoco , 989 F.Supp. 1159, 1178 (D. Wyo. 1998 .) The
unique enforcement mechanism in LSA -R.S. 30:16 empowers citizens to initiate
enforcement actions when there exists a present threat to the public and the
environment. That only prospective, equitable relief is available under the statute is
one characteristic that makes it unique. In light of the unique qualities inherent in
enforcement actions under LSA -R.S. 30:16, the intent and purpose of Louisiana’s
conservation law, and the limited equitable relief available, coupled with the failure
of the legislature to provide a specific prescriptive period applicable to LSA -R.S.
30:16 enforcement actions, we find that citizen enforcement actions under LSA-R.S.
30:16 are not subject to liberative prescription. This result promotes the S tate’s
interest in the preservation, maintenance, and restoration of its natural resources for
the benefit of the public as a whole, ensures enforcement of environmental laws and
regulations, and adheres to the intent of the legislature and the policy written into
the constitution.
2. No Cause of Action
In addition to the exception of prescription, defendants have raised the
exception of no cause of action, alleging that LSA-R.S. 30:14 and LSA-R.S. 30:16
apply only to violations involving present, ongoing, or continuous conduct.
Defendants allege that they ceased operations on the properties herein years ago, and
that Tureau has therefore failed to state a cause of action against them under LSA-
R.S. 30:16. As such, defendants argue that the petition should be dismissed, with
prejudice.8

8 Defendants’ exceptions of no cause of action were not c onsidered by the lower courts.
Nevertheless, the issue has been briefed and argued before this court . As such, in the interest of
judicial economy, and pursuant to its authority under LSA-C.C.P. articles 927 and 2163, the court

17

The exception of no cause of action tests the legal sufficiency of the petition
by determining whether the law affords a remedy on the facts alleged in the pleading.
Kunath v. Gafford , 20 -1266 (La. 9/30/21 ), 330 So.3d 161, 166; Ramey v.
DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19. A court’s decision
on an exception of no cause of act ion is based solely on the sufficiency of the
petition; no evidence may be introduced to support or controvert the exception.
LSA-C.C.P. art. 931; Ramey, 03-1299 at p. 7, 869 So.2d at 118. Consequently, for
the purpose of determining the issues raised by the exception, the well-pleaded facts
of the petition must be accepted as true. Cleco Corp. v. Johnson, 01-0175, p. 3 (La.
9/18/01), 795 So.2d 302, 304; Fink v. Bryant, 01-0987, p. 3 (La. 11/29/01), 801
So.2d 346, 348. The pertinent question is whether, in the light most favorable to the
plaintiff, and with every doubt resolved in the plaintiff’s favor, the petition states
any valid cause of action for relief. Id. Every reasonable interpretation must be
accorded the language used in the petition in favor of maintaining its sufficiency and
affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v.
Sw. Comput. Bureau, 05-0612, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217. The
burden of demonstrating that a petition fails to state a cause of action is on the mover,
and a petition should be dismissed for failure to state a cause of action only when it
appears beyond doubt that the plaintiff can prove no set of facts in supp ort of any
claim which would entitle him to relief. Fink, 01-0987 at p. 4, 801 So.2d at 349.
Tureau’s original petition alleged that his property has been contaminated as
a result of the oil and gas exploration and production activities of the defendants
and/or their predecessors in interest. Specifically, the petition alleges that
defendants violated various applicable conservation laws and regulations by failing
to close and/or properly close unlined earthen pits. The petition further alleges that

has considered the exceptions of no cause of action as well as the exceptions of prescription.

18

defendants “are violating Statewide Order 29-B and other regulations and orders of
the Louisiana Department of Natural Resources and the Office of Conservation,” by
failing to remediate the property and contamination therein to the minimum
standards required under the law. Specifically, the petition alleges that, “such
violations are deemed ongoing violations until the law has been complied with,” and
that Tureau is entitled to injunctive relief under LSA-R.S. 30:16 “for any and all past
or present violations . . . no matter when such violations occurred.” Further, the first
supplemental and amending petition states that:
Petitioner alleges that the parties made defendants in this petition are
currently violating Statewide Order 29-B and other regulations and
orders of the Louisiana Department of Natural Resources and Office of
Conservation by allowing contaminant exceedences to remain on the
Tureau property and by failing to remediate the Tureau property to the
standards set forth [in] Statewide Order 29-B and other applicable
regulations and orders. Petitioner herein seeks the following mandatory
and prohibitive injunctions: (1) ordering that the defendants named in
this petition remediate the environmental damages to the Tureau
property caused by oil and gas exploration and production activities to
a level that complies with applicable regulations and orders, including,
but not limited to, Statewide Order 29-B; and (2) restraining the
defendants named in this petition from further violating, or threatening
to violate, applicable regulations and orders, including, but not limited
to, Statewide Order 29-B.

Under the legal principles and standards of review applicable at this stage of
the proceedings, wherein the narrow issue before this court is whether the petition
states a cause of action, and taking the allegations of the petition as true, as we must,
we are constrained to overrule the exception. See Global Mktg. Sols., LLC v. Blue
Mill Farms, Inc , 18-0093 (La. App. 1 Cir. 11/6/18), 267 So.3d 96 ( reversing the
district court’s dismissal of a LSA-R.S. 30:16 suit for injunctive relief for failure to
state a cause of action, finding that, insofar as the plaintiff alleged that “defendants
. . . are violating Statewide Order 29-B . . . by failing to remediate the property,” and
that said failure to remediate was ongoing, the plaintiff made allegations sufficient

19

to state a cause of action for injunctive relief under LSA-R.S. 30:16);9 see also Rich
Land Seed Co. v. BLSW Pleasure Corp., 2022 WL 2163824, at *17-20 (W.D. La.
5/31/22) (denying an exception of no cause of action when the petition alleged that
unplugged or improperly plugged wells and “open” production storage pits remained
on plaintiff’s property and represented continuing violations of the conservation
laws and regulations for which the plaintiff enjoyed a right to relief under LSA-R.S.
30:16.)
Moreover, i nsofar as defendants argue that their failure to remediate soil
and/or groundwater contamination to the minimum required standards does not, in
and of itself, constitute a violation of a conservation law, rule, regulation, or order,
we emphasize that this argument goes to the merits of plaintiff’s claims.
Specifically, whether defendants ’ actions or inactions constitute a violation of
conservation laws, rules, regulations, or orders, is a matter of proof, which the
plaintiff is not required to present at the trial of an exception of no cause of action.
See PennEnvironment and Sierra Club v. PPG Industries, Inc. , 12 -342, 964
F.Supp.2d 429 (W.D. Penn. 8/8/13); see also City of Toledo v. Beazer Materials
and Servs., Inc., 833 F.Supp. 646 (N.D. Ohio 5/25/93). Likewise, whether plaintiff
can successfully prove that defendants are liable under the applicable laws in this
case is a matter of proof that goes to the merits of plaintiff’s cl aims. The merits of
a claim are to be determined after findings of fact, upon a motion for summary
judgment or a trial on the merits, and whether a plaintiff will prevail on the merits is
not an appropriate consideration on an exception raising the objection of no cause of
action. Terrebonne Par. Consol Gov’t. v. Louisiana Dep’t. of Nat. Res., 21-0486

9 In a concurring opinion, Judge Holdridge noted that LSA-R.S. 30:14 and LSA-R.S. 30:16 seemed
to be in contradiction insofar as they appear to provide only for a prohibitory injunction restraining
a person from continuing a violation or from carrying out a threat in violation of th e law, and yet
LSA-R.S. 30:16 also provides that the commissioner may obtain a mandatory injunction. Global
Mktg. Sols., LLC, 267 So.3d at 102.

20

(La. App. 1 Cir. 12/30/21 ), 340 So.3d 940, 945 ; Bergen Brunswig Drug Co. v.
Poulin, 93-1945 (La. App. 1 Cir. 6/24/94), 639 So.2d 453, 458.
As such, in light of plaintiff’s allegations that defendants “are violating”
conservation laws, rules, regulations, and/or orders, the exception of no cause of
action must be denied.
Nevertheless, notwithstanding the above, we note that Gwaltney v.
Chesepeake Bay Foundation, 484 U.S. 49 (1987), cited by defendants in support
of their interpretation of LSA -R.S. 30:16, is distinguishable from the case herein.
Defendants allege that the Gwaltney decision stands for the holding that the CWA
does not allow suits for “wholly past violations.” Gwaltney, however, further held
that federal jurisdiction will attach where citizen plaintiffs make a “good faith
allegation of continuous or intermittent violations,” and it was on that basis that the
Court ultimately upheld the plaintiffs’ claims. Recognizing Gwaltney’s full
holding, the district court in North Carolina Wildlife Federation v. Army
Department, 29 Env’ t Rep. Cas. (BNA) 1942 (E.D.N.C. 1989), he ld that CWA
violations having persistent effects that are amenable to correction would constitute
continuous violations until remedied. Specifically, that court found as follows:
Treating the failure to take remedial measures as a continuing violation
is eminently reasonable. This is because it is not the physical act of
discharging dredge wastes itself that leads to the injury giving rise to
citizen standing, but the consequences of the discharge in terms of
lasting environmental degradation. This posit ion finds support in
Justice Scalia’s concurrence in Gwaltney, in which he was j oined by
Justices Stevens and O’Connor. According to the concurring Justices,
the phrase in 33 U.S.C. section 1365(a) “to be in violation,” unlike the
phrase “to be violating” or “to have committed a violation,” suggests
“a state rather than an act—the opposite of state of compliance ... When
a company has violated an effluent standard or limitation, it remains for
purposes of [ section 1365(a)] ‘in violation’ of that standard or
limitation so long as it has not put in place remedial measures that
clearly eliminate the cause of the violation.” Gwaltney, 108 S.Ct. at
381.
***
[C]itizen-suits for past discharges which are not susceptible to remedial
efforts, due to effective natural dissipation or dispersion, would clearly
continue to be barred under Gwaltney. Only violations having

21

persistent effects that are amenable to correction, would constitute
continuing violations, until remedied, under Gwaltney.

North Carolina Wildlife Fed’n, 29 Env’t Rep. Cas. (BNA) at 1944.

The North Carolina Wildlife Fed’n court reasoned that public policy
supported its decision to treat remediable acts as a continuing violation. Specifically,
the court reasoned that barring citizen suits merely because any illegal ditching and
drainage of a wetland tract was completed before it might reasonably be discovered
would be a powerful incentive for violators to conceal their activities from public
and private scrutiny, which would lead to serious proble ms in public and private
enforcement of the CWA. So, too, would be the result if citizen suits under LSA -
R.S. 30:16 were barred merely because a regulated entity had completed a violation
prior to the filing of the enforcement action.
In any event, we further note that numerous courts have recognized that CWA
violations, such as those in Gwaltney, are fundamentally distinguishable from the
type of violations alleged herein. Specifically, in Fallowfield Development Corp.,
1990 WL 52745, at *10-*11 (E. D. Pa. 1990), the court noted that the harm resulting
from an illegal discharge under the CWA or the CAA “differs significantly” from
the harm that results from a violation of the RCRA, such as an improper disposal of
hazardous waste. That court reasoned that, because the damage that occurs when a
person discharges a pollutant in violation of an effluent limitation under the CWA is
effectively irreversible, little would be gained by allowing a citizen suit in such a
case when the alleged violator has come into compliance prior to suit. The same,
the court noted, would be equally true for violations of the CAA, wherein the damage
is evanescent. Violations such as those at issue in the instant case, however, are
vastly different:
The improper disposal of hazardous waste is considerably different. If
a person disposes of hazardous waste on a parcel of property, the
hazardous waste remains on that property insidiously infecting the soil
and groundwater aquifers. In other words, the violation continues until

22

the proper disposal procedures are put into effect or the hazardous
waste is cleaned up. Thus, while the discharge of a pollutant into the
water or air normally disperses or dissipates, making cleanup difficult
or impossible, the improper disposal of hazardou s waste remains a
remediable threat.

Fallowfield Dev. Corp., at *11.

The Fallowfield Development Corp. court further distinguished CWA/CAA
violations from RCRA violations on the basis that CWA/CAA violations are often
daily violations, while RCRA violations are often singular events. Fallowfield Dev.
Corp., at *10. As such, the court reasoned that, although a citizen suit would be an
effective means of bringing a continuous or intermittent CWA/CAA violator into
compliance, to interpret the RCRA’s citizen suit provision to allow an enforcement
action only in situations in which an owner or operator is disp osing of hazardous
waste on a daily basis would virtually read the provision out of the statute entirely.
Fallowfield Dev. Corp. , at *10. Fallowfield Development Corp. therefore
concluded that Congress intended to allow RCRA citizen suits for past violat ions
where the effects of the violation remain remediable. Fallowfield Dev. Corp., at
*11.
Consistent with the Fallowfield Development Corp. holding, a number of
federal courts have held that the continued presence of illegally dumped hazardous
wastes may constitute a “current violation” of an RCRA regulation or standard,
despite the fact that the operator’s conduct occurred in the past. See Scarlett &
Associates v. Briarcliff Ctr. Partners, LLC, 2009 WL 3151098, (N.D. Ga. 2009);
Marrero Hernandez v. Esso Standard Oil Co., 597 F.Supp.2d 272, 283 (D.P.R.
2009) (holding that unremedied, migrating contamination is not a wholly past
violation); Cameron v. Peach Cnty., 2004 WL 5520003, at *26-*27 (M.D. Ga.
2004) (holding that the continued presence of illegal c ontamination that remains
remedial constitutes a continuing violation, even though the acts of unlawful
disposal occurred in the past); California v. M & P Investments, 308 F.Supp.2d

23

1137, 1146-47 (E.D. Cal. 2003) (holding that a continuous violation under RCRA is
present where improperly discharged hazardous wastes “continue to exist
unremediated” at the contamination site); Aurora Nat’l Bank v. Tri Star
Marketing, 990 F.Supp. 1020, 1025 (N.D. Ill. 1998) (“Although subsection
(a)(1)(A) does not permit a citizen suit for wholly past violations of the statute, the
continued presence of illegally dumped materials generally constitutes a ‘continuing
violation’ of the RCRA, which is cognizable under § 6972(a)(1)(A).”) (internal
citation omitted); City of Toledo, 833 F.Supp. at 656 (holding a valid claim exists
against a prior owner under § 6972(a)(1)(A) of the RCRA “as long as no proper
disposal procedures are put into effect or as long as the waste has not been cleaned
up and the environmental effects remain rem ediable.”); Gache v. Town of
Harrison, 813 F.Supp. 1037, 1041 -42 (S.D.N.Y. 1993) (“[I]mproperly discharged
wastes which continue to exist unremediated represent a continuing violation of
RCRA.”); Acme Printing Ink Co. v. Menard, Inc., 812 F.Supp. 1498, 1512 (E.D.
Wisc. 1992) (“RCRA includes in its broad definition of ‘disposal’ the continuous
leaking of hazardous substances . . . Accordingly, leaking of hazardous substances
may constitute a continuous or intermittent violation of RCRA.”); Fallowfield Dev.
Corp., 1990 WL 52745, at *10 (“If a person disposes of hazardous waste on a parcel
of property, the hazardous waste remains in that property insidiously infecting the
soil and groundwater aquifers. In other words, the violation continues until the
proper disposal procedures are put into effect or the h azardous waste is cleaned
up.”)
Many of those courts likewise found that the failure to remedy past
contamination, and to comply with regulations in connection therewith, can also
constitute a continuous violation of the RCRA, particularly when the contamination
is shown to be migrating. See Marrero Hernandez, 597 F.Supp.2d at
283; Cameron, 2004 WL 5520003, at 26 -27; M & P Investments, 308 F.Supp.2d

24

at 1146 -48; Aurora Nat’l Bank, 990 F.Supp. at 1025; Gache, 819 F.Supp. at
1041; Beazer Materials & Servs., 833 F.Supp. at 656; Acme Printing Ink, 812
F.Supp. at 1512.
Moreover, we are not persuaded by the argument of the defendants that an
action seeking to remedy residual harm, or to prevent environmental contamination
resulting from past conduct that has already ceased, is beyond the scope o f LSA-
R.S. 30:14 and LSA -R.S. 30:16 on the basis that the clear and unambiguous
language therein definitively establishes that only violations involving present,
ongoing conduct, or threatened future conduct, gives rise to a citizen suit under LSA-
R.S. 30:16. Specifically, under the rules of statutory interpretation, courts are bound,
if possible, to give effect to all parts of a statute and to construe no sentence, clause,
or word as meaningless and surplusage if a construction giving force to, and
preserving, all words can legitimately be found. Langlois v. East Baton Rouge
Par. Sch. Bd., 99-2007 (La. 5/16/00), 761 So.2d 504, 507. Courts also have a duty
to interpret statutes in relation to each other and adopt a construction that harmonizes
and reconciles the statute with other provisions dealing with the same subject matter
whenever possible. LSA -C.C. art. 13; City of New Orleans v. Louisiana
Assessors’ Retirement and Relief Fund, 05-2548, 986 So.2d 1 (La. 10/1/07).
Further, because the object of the court in construing a statute is to ascertain the
legislative intent, where a literal interpretation would produce absurd consequences,
the letter must give way to the spirit of the law and the statute construed so as to
produce a reasonable result. First Nat’l Bank of Boston v. Beckwith Mach.
Co., 94-2065 (La. 2/20/95), 650 So.2d 1148, 1153.
“Whenever it appears that a person is violating or is threatening to violate” a
law, rule, order, or regulation under conservation law, LSA -R.S. 30:14 authorizes
the Commissioner to “bring suit to restrain that person from continuing the violation
or from carrying out the threat.” The statute further states that venue shall be in the

25

parish “where the violation is alleged to have occurred or is threatened.” (Emphasis
added.) The last quoted passage from LSA-R.S. 30:14, stated in the present perfect
tense, therefore clearly implies violations that have already occurred. 10 The
legislature could have easily constructed this provision to provide for a proper venue
in the parish “where the violation is allegedly occurring or is threatened,” but it did
not. We further note that the statute specifically authorizes the Commissioner to
“obtain injunctions, prohibitory and mandatory . . . .” Reading the provisions of the
statute as a whole, we decline to conclude that the statutory language excludes all
violations committed prior to the date the suit was filed, regardless of whether those
violations have resulted in a present, remediable harm to the public and/or the
environment. Reading these provisions together so as not to render the statute
contradictory, we conclude that the statute is not strictly limited to violations
committed on or after the date of the filing of the petition. See Gache, 813 F.Supp.
1037. Specifically, the legislature’s use of both the present and the present perfect
tense, coupled with the explicit authority to seek mandatory injunctive relief, and the
absence of any language limiting or distinguishing the “violation” referenced
therein, all appear to contradict the interpretation urged by defendants.
We further note that, notwithstanding whether a citizen suit for past violations
is authorized by the statute, there would nevertheless remain the issue of whether, as
alleged in the supplemental pet ition, defendants are currently in violation of
conservation law by failing to remediate as required by the applicable rules,
regulations, or orders. Citing Marin, defendants allege that this court has previously
held that the failure to remediate contami nation caused by past conduct does not
constitute a continuing violation. However, as previously noted herein, the instant
regulatory enforcement action is not an action in tort. Defendants have failed to cite

10 According to Grammerly, “[t]he present perfect tense refers to an action or state that either
occurred at an indefinite time in the past (e.g., we have talked before) or began in the past and
continued to the present time (e.g., he has grown impatient over the last hour).”

26

a single case in which a Louisiana court has applied a “continuing tort” analysis in
the context of an environmental regulatory enforcement action. As such, the cases
cited by defendants are not applicable.
We further note that the defendants concede, and this court has previously
recognized, that that the Commissioner has the authority to regulate discontinued
past conduct.11 see Magnolia Coal Terminal v. Phillips Oil Co. , 576 So.2d 475
(La. 1991) (wherein this court found that the Commissioner was empowered to order
the plugging of a well that had been leaking for 26 years, as well as the cleaning of
the site, despite the fact that the well was no longer in use, but continued to present
a serious environmental hazard); See also Rich Land Seed Co. v. BLSW Pleasure
Corp., 2022 WL 2163824 (W.D. La. 20 22), report and recommendation adopted ,
2022 WL 2161940 (W.D. La. 2022) (wherein the court, relying on Magnolia Coal,
held that “it is clear that the legislature intended for the Commissioner to enact
regulations that applied to prior wells and oilfield operations that continued to cause
environmental concerns . . . . Accordingly, this court finds that Rich Land has stated
a plausible claim for relief under Louisiana Revised Statutes §30:16.”)
Nor do we find any merit to the defendants’ argument that interpreting LSA-
R.S. 30:14 and/or LSA-R.S. 30:16 to apply to all violations would “undermine” the
authority of the Commissioner. Specifically, defendants argue that if citizen suits
are not limited to violations involving present or future conduct, the use of the
mandatory “shall” in LSA -R.S. 30:14 would require that the Commissioner seek

11 With regard to LSA -R.S. 30:6(G), which gives the Commissioner the authority to issue
compliance orders, defendants allege that “[t]his provision provides a procedure for the
Commissioner to remedy violations outside the judicial syste m, even if the offending conduct
occurred in the past.” (Defendants’ Brief, pp. 17-18.) LSA-R.S. 30:6(G) states, in pertinent part,
that:

Additionally, upon determining that a violation of this Chapter or the regulations
adopted hereunder has occurred, the commissioner may issue an order requiring
compliance. Any such order shall state, with reasonable specificity, the nature of
the violation, any cessation of activities or affirmative operations required to
achieve compliance, and a time limit within which compliance with the order must
be achieved.

27

judicial enforcement of all violations, thereby removing his ability to use discretion
in determining how to enforce conservation laws, rules, regulations, and orders.
Specifically, defendants argue that such an interpretation would result in citizen suits
no longer being supplemental, and instead they would prime the Commissioner’s
authority. We note, however, that the mere existence of LSA-R.S. 30:16 contradicts
defendants’ arguments. Specifically, if the legislature intended for LSA-R.S. 30:14
to act as an absolute mandate requiring the Commissioner to seek judicial
enforcement of every violation, there would be no need for a citizen suit provision
at all. Citizen suit s are intended to serve as protection from administrative abuses
and/or the results of an overburdened and overworked system. They are designed
for the purpose of ensuring the safety of the public and the environment. Pursuant
to LSA -R.S. 30:16, when a c itizen is adversely affected by a violation, and the
Commissioner, after receiving notice thereof, fails to seek injunctive relief, the
citizen is authorized to pursue said relief in his place. The notice, therefore, does
not compel the Commissioner to act, but rather gives him the opportunity to do so.
If he chooses not to bring suit, then the citizen may. A citizen who pursues injunctive
relief under LSA-R.S. 30:16 bears the risk and the expense of proving that a harm
to the public and/or the environme nt exists. It is only if the citizen proves that
injunctive relief is necessary that the Commissioner is then substituted as the party
plaintiff. We find no merit to the defendants ’ argument that upholding Tureau’s
claim would result in an influx of friv olous lawsuits, as we find that placing the
burden of litigation on the citizen is sufficient to avoid frivolous suits.
CONCLUSION
As previously noted, environmental regulatory statutes are unique and rely
heavily on self-reporting and the willingness of the regulated industry to voluntarily
comply with the applicable laws and regulations. It is for precisely this reason that

28

citizen suits are a necessary and integral component of environmental regulatory
statutes in particular.
Pursuant to LSA-R.S. 30:16, upon providing the requisite notice, any person
in interest adversely affected by a violation of conservation laws, rules, regulations,
or orders, may file suit for injunctive relief. The petition at issue herein alleges that
the defendants have violated conservation laws and/or regulations by failing to close
and/or properly close unlined earthen pits, and further, that the defendants are
violating applicable rules and regulations by failing to remediate the property.
Taking these allegations as true, a s we are required to do, the petition alleges facts
sufficient to state a cause of action for injunctive relief pursuant to LSA-R.S. 30:16.
DECREE
Accordingly, the ruling of the First Circuit on the exception s of prescription
is affirmed, judgment is rend ered overruling the exceptions of no cause of action,
and this matter is remanded for further proceedings consistent with the rulings
herein.
AFFIRMED, RENDERED, and REMANDED.

SUPREME COURT OF LOUISIANA
NO. 2021-C-00856
STATE OF LOUISIANA, EX REL. JUSTIN DALE TUREAU
VS.
BEPCO, L.P., BOPCO, LLC, CHEVRON U.S.A. INC., CHISOLM TRAIL
VENTURES, L.P., AND HESS CORPORATION, A DELAWARE
CORPORATION
On Writ of Certiorari to the Court of Appeal, First Circuit,
Parish of East Baton Rouge
WEIMER, C.J., additionally concurring.
Under the system of checks and balances embodied in the constitution, the
roles of the legislative and judicial branches are established.
The obligation of the judiciary is to apply the law as written by the legislature.
It is not the prerogative of the judiciary to disregard the language of legislation or to
reweigh balances of interests and policy considerations already struck by the
legislature. Soloco, Inc. v. Dupree, 97-1256, p. 7 (La. 1/21/98), 707 So.2d 12, 16
(citing Daigle v. Clemco Industries, 613 So.2d 619 (La. 1993)).
Now that this court has evaluated and interpreted the language of the statute
enacted by the legislature, it is up to the legislature to evaluate the language in light
of this decision, evaluate the policy ramifications, and consider whether the law needs
to be changed within the limitations constitutionally established.

SUPREME COURT OF LOUISIANA
No. 2021-C-00856
STATE OF LOUISIANA, EX REL. JUSTIN DALE TUREAU
VS.
BEPCO, L.P., BOPCO, LLC, CHEVRON U.S.A. INC., CHISOLM TRAIL
VENTURES, L.P., AND HESS CORPORATION, A DELAWARE
CORPORATION
On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton
Rouge
CRAIN, J. dissents and assigns reasons.
The majority recognizes an imprescriptible remediation claim under
Louisiana Revised Statutes 30:16. It does so to allow for remediation of present day
damage from past oil and gas activities for a landowner whose earlier suit for
remediation and non -remediation damages was dismissed pursuant to Eagle Pipe
and Supply, Inc. v. Amerada Hess Corporation, 10-2267 (La. 10/25/11), 79 So.3d
246.1, 2 I respectfully disagree.
The threshold determination in every case is whether the petition is legally
sufficient to afford the plaintiff a remedy in law. 3 Defendants’ filed exceptions of
1 The plaintiff filed a legacy lawsuit on July 23, 2013, alleging his land was contaminated by oil
and gas drilling and exploration operations on neighboring property dating back to the 1930s.
Tureau v. 2-H Inc., No. 2013-09539 (12th J.D.C., Avoyelles Parish). That suit was dismissed on
summary judgment under the subsequent purchaser doctrine recognized in Eagle Pipe. Tureau v.
2-H Inc., No. 1:13-CV-2969, 2014 WL 12701025 (W.D. La. Mar. 14, 2014). Now, four years after
that dismissal, the plaintiff brings a ci tizens suit under Louisiana Revised Statutes 30:16 seeking
injunctive relief for the same conduct by the same defendants.
2 The plaintiff named other defendants in the 2013 lawsuit. Those defendants were also dismissed
pursuant to the subsequent purchaser doctrine. As in the instant case, the plaintiff sued them again
in 2017 under Louisiana Revised Statutes 30:16. The defendants filed an exception of res judicata,
arguing the citizen suit is precluded because the 2013 lawsuit involves the same parties and the
same transaction or occurrence. That writ application is currently pending before this court, and I
offer no opinion on that peremptory exception. My dissent is limited only to the finding that
Louisiana Revised Statutes 30:16 does not afford this plaintiff a remedy based on the facts alleged
in this petition.
3 See Fink v. Bryant, 01-0987, p. 3 (La. 11/28/01), 801 So. 2d 346, 348 (The peremptory exception
of no cause of action tests the legal sufficiency of the petition by determining whether the plaintiff
is afforded a remedy in law based on the facts alleged in the pleading.)

2

no cause of actions that were not considered by the lower courts. However, pursuant
to special briefing instructions and arguments, this issue was addressed by the parties
and is properly before this court. 4 For the following reasons, I do not believe the
plaintiff has asserted facts affording a remedy under Louisiana Revised Sta tutes
30:16.
While citizen suits are important to enforce environmental regulations when
the Commissioner fails to act , the majority incorrectly finds that a citizen suit is
available to remedy past acts. I n fact, the statute only covers current unlawful
operations with continuing damage. Here, the oil companies long ago ceased
operations on the property. A citizen suit cannot, nor was it ever intended to, allow
an imprescriptible Act 312 remediation against companies who ceased operations
decades, if not a century, before. Rather, Louisiana Revised Statutes 30:16 only
applies to current, ongoing damage-causing operations. This is why prohibitory and
mandatory injunctions are the available statutory remedies as they prohibit present
and future activity and allow for immediate related cleanup.
The plaintiff seeks to hold the defendants “liable for damages caused by
defendants’ oil and gas exploration and production related to activities that
substantially harmed plaintiffs, plaintiffs’ land, a nd plaintiffs’ legal interest.” The
plaintiff alleges “[d]efendants knew for many years that they were disposing,
storing, discharging, and otherwise releasing toxic poisons and pollutants onto and
into the ground, groundwaters, and surface waters on or near plaintiff[’]s property.”
As stated in Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev.,
10-0193 (L a. 1/19/11), 56 So. 3d 181, 187 -88, “ The starting point in
the interpretation of any statute is the language of the statute itself. When a law is

4 The order for supplemental briefing instructed the parties to address whether Tureau’s petition
states a cause of action under La. R.S. 30:16, including but not limited to whether La. R.S. 30:14,
et seq. requires ongoing conduct (not merely ongoing harm resulting from past conduct).”

3

clear and unambiguous and its application does not lead to absurd consequences, the
law shall be applied as written and no further interpretation may be made in search
of the intent of the legislature.”
Louisiana Revised Statutes 30:14 states, in pertinent part:
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 commissioner shall bring suit to restrain that
person from continuing the violation or from carrying out the threat.
In this suit, the commissioner 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. Any or all of these illegal commodities
may, in the court’ s discretion, be ordered impounded or placed under
the control of an agent appointed by the court.

(Emphasis added.) Louisiana Revised Statutes 30:16 states:

If the commissioner fails to bring suit within ten days to restrain a
violation as provided in La. R.S. 30:14, any person in interest adversely
affected by the violation who has notified the commissioner in writing
of the violation or threat thereof and has requested the commissioner to
sue, may bring suit to prevent any or further violations, in the district
court of any parish in which the commissioner could have brought suit.
If the court h olds that injunctive relief should be granted, the
commissioner 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
commissioner had at all times been the complaining party.

These statutes contemplate current unlawful operations. The rights granted,
first to the Commissioner, then to a citizen, to sue for injunctive relief appl y to
current, ongoing violations, not past ones. Reference to a person who “is violating”
or “is threat ening to violate” an environmental law, coupled with the remedy of
“restraining that person from continuing the violation or from carrying out the
threat” evidences conduct that must be ceased or prevented. The operative phrases
“is violating” and “is threatening to violate” refer to an act (“violating”), not a state
of being (“in violation”) . The use of the present tense to describe conduct that
violates conservation laws, as opposed to simply being in a state of noncompliance,
evidences a legislative inte nt to limit these suits to defendants that are presently

4

engaging in conduct that is violating , or are presently threatening to violate ,
conservation laws. Further, the words “prevent’ and “refrain” suggest stopping an
ongoing act, not remedying the consequences of an act that ceased long ago.
In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
108 S. Ct. 376, 98 L. Ed. 2d 306 (1987), the United States Supreme Court was tasked
with determining whether the citizen suit provision of the Clean Water Act, which
allows a private citizen to sue any person alleged “to be in violation” of the Act ,
requires the defendant to be violating the Act at the time of the suit. The court held
the citizen suit does not apply to “wholly past violations.” Id. at 60. It reasoned:
The most natural reading of “to be in violation” is a requirement
that citizen-plaintiffs allege a state of either continuous or intermittent
violation–that is, a reasonable likelihood that a past polluter wi ll
continue to pollute in the future. Congress could have phrased its
requirement in language that looked to the past (“to have violated”), but
it did not choose this readily available option.

Id. at 57. The court noted the Act’s use of “present tense strongly suggests the harm
sought to be addressed by the citizen suit lies in the present or the future, not in the
past.” Id. at 59.
Similarly, Louisiana Revised Statutes 30:14 and 30:16 do not apply to
“wholly past violations.” Not only is this conclusion evidenced by the present tense
language of the statute, it is f urther supported by the statute only allowing the
Commissioner ten days to sue before a citizen can file suit. The urgency denotes
current violations. As with the language of the Clean Wat er Act, if the legislature
wished to address past illegal conduct, it could have included past tense language.
They did just that in Louisiana Revised Statutes 30:6(G) by stating the
Commissioner may impose a civil penalty when “a violation of this Chapter . . . has
occurred.” See also Louisiana Revised Statutes 30:542(C) and 30:543 (authorizing
the Commissioner and, in its failure, a citizen to sue when a person “has engaged, is
engaged, or is about to e ngage in any act constitut ing a violation” of the Natural

5

Resources and Energy Act. ) The purpose of such suits is to enjoin conduct and
enforce compliance. Accordingly, when the legislature intends to permit suits to
enforce compliance with regulatory laws for past conduct, it has shown that it knows
how to do so.
Taking the allegations of the petition as true, t he majority cites to the
plaintiff’s allegations that the defendants “are violating” conservation laws, rules,
regulations, and/or orders to find that, as alleged, the petition is sufficient to survive
an exception of no cause of action. Here, while the alleged contamination may still
exist, there is no allegation that the cause of the damage is ongoing. In Hogg v.
Chevron USA, Inc. , 09 -2632 (L a. 7/6/10), 45 So. 3d 991, 1002-03, this court
explained:
In cases involving damage to immovable property based on La.
C.C. art. 3493, Louisiana jurisprudence draws a distinction between
damages caused by continuous, and those caused by discontinuous,
operating causes:

When the operating cause of the injury is continuous,
giving rise to successive damages, prescription begins to
run from the day the damage was completed and the owner
acquired, or should have acquired, knowledge of the
damage. See South Central Bell Telephone Co. v. Texaco,
Inc., 418 So.2d 531 (La. 1982), and cases cited therein.
When the operating cause of the injury is discontinuous,
there is a multiplicity of causes of action and of
corresponding prescriptive periods. Prescription is
completed as to each injury, and the corresponding action
is barred, upon the passage of one year from the day the
owner acquired, or should have acquired, knowledge of
the damage. See A.N. Yiannopoulos, Predial Servitudes, §
63 (1982).

Official Revision Comments (c) to La. C .C. art . 3493 (1983).
The distinction between continuous and discontinuous operating causes
was clarified by this court in Crump v. Sabine River Authority, 98-2326
(La.6/29/99), 737 So.2d 720, a property damage case, in the context of
discussing continuing torts in general. Therein, we explained that “[a]
continuing tort is occasioned by [continual] unlawful acts, not the
continuation of the ill effects of an original, wrongful act.” Crump, 98–
2326 at 9, 737 So.2d at 728. Further, we point out that “[t]he continuous
conduct contemplated in a continuing tort must be tortious and must be
the operating cause of the injury.” Crump, 98-2326 at 11, 737 So.2d at
729 n. 7. The inquiry is essentially a conduct-based one, asking whether

6

the tortfeasor perpetuates the injury through overt, persistent, and
ongoing acts.

The plaintiff does not allege the operating cause of injury is continuous, only
that damaging effects continue. (Contrast La. R.S. 30:6 (F), which allows an
interested person a hearing before the Commissioner to address past violations that
have not been remedied, including the issuance of regulatory compliance orders).
Rather, the petition alleges past conduct and a present failure to remediate damaging
effects caused by that conduct. Today’s failure to clean up the lingering effects of
yesterday’s conduct is not sufficient to change its temporal nature from past to
present. Upon the allegations of the petition, Louisiana Revised Statutes 30:16 does
not afford the plaintiff a remedy under this statute.
I further disagree with the majority’s conclusion that a citizen suit “turn[s]
over to private citizens the function of enforcing the law, giving to those citizens the
ability to act in a manner normally reserved to the government.” The
Commissioner’s authority is derived from Louisiana Revised Statutes 30:4 , which
broadly grants it the power to “enforce effectively the . . . laws relating to the
conservation of oil or gas. ” Louisiana Revised Statutes 30:16 does not grant a
private citizen powers that expressly and solely belong to the Commissioner,
especially the power of enforcement. R ather, it grants “any person in interest
adversely affected” by a violation judicial review of the Commissioner’s decision
not to seek injunctive relief. If the person had the same rights as the Commissioner,
it would be unnecessary to later substitute th e Commissioner for the person who
brought suit. As noted in Gwaltney, 484 U.S. 60, “The bar on citizen suits when
governmental enforcement action is under way suggests that the citizen suit is meant
to supplement rather than to supplan t governmental action. . . . Permitting citizen
suits for wholly past violations of the Act could undermine the supplementary role
envisioned for the citizen suit.” In the same way, if Louisiana Revised Statutes 30:16

7

is used to correct p ast violations that the Commissioner chooses to forego, the
Commissioner’s discretion and use of state resources will be “curtailed” and
intruded upon. Id.
Because I find Louisiana Revised Statutes 30:16 appl ies only to current
conduct, it does not matter that the statute may be imprescriptible. If, as a threshold
matter, ongoing acts are required to trigger the statute’s applicability, the staleness
meant to be prevented by laws on prescription ceases to be a concern. As long as
there is an actor presently vio lating or threating to violate the conservation laws,
suits sought to stop those actions and enforce related cleanup are timely.
For these reasons, I respectfully dissent.