Hero Lands Company, L.L.C. v. Chevron U.S.A. Inc.; Total Petrochemicals & Refining USA, Inc.; Pioneer Natural Resources, Inc.; Key Operating & Production Company, L.L.C.; Key Exploration Company; Wagner Oil Company; Hilcorp Energy I, L.P.; Manti Operating Company; And Henderson Oil Company, Inc.

HERO LANDS COMPANY, * NO. 2022-CA-0383
L.L.C.
*
VERSUS COURT OF APPEAL
*
CHEVRON U.S.A. INC.; FOURTH CIRCUIT
TOTAL PETROCHEMICALS *
& REFINING USA, INC.; STATE OF LOUISIANA
PIONEER NATURAL *******
RESOURCES, INC.; KEY
OPERATING & PRODUCTION
COMPANY, L.L.C.; KEY
EXPLORATION COMPANY;
WAGNER OIL COMPANY;
HILCORP ENERGY I, L.P.;
MANTI OPERATING
COMPANY; AND
HENDERSON OIL COMPANY,
INC.

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 64-320, DIVISION “A”
Honorable Kevin D. Conner, Judge
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge
Rachael D. Johnson)

James Richard Swanson
Harvey S. Bartlett, III
Lance C. McCardle
E. Blair Schilling
FISHMAN HAYGOOD L.L.P.
201 St. Charles Avenue
Suite 4600
New Orleans, LA 70170-4600

Gladstone N. Jones, III
Bernard E. Boudreaux, Jr.
Kevin E. Huddell
Emma Elizabeth Antin Daschbach
John T. Arnold
JONES SWANSON HUDDELL DASCHBACH LLC
601 Poydras Street
Suite 2655
New Orleans, LA 70130

Stephen Jacob Braud
BALLAY, BRAUD & COLON, PLC
8114 Highway 23
Suite 101
Belle Chasse, LA 70037

COUNSEL FOR PLAINTIFF/APPELLEE

Michael R. Phillips
Claire E. Juneau
Jeffrey J. Gelpi
KEAN MILLER LLP
909 Poydras Street
Suite 3600
New Orleans, LA 70112

L. Victor Gregoire, Jr.
Richard D. McConnell, Jr.
John C. Funderburk
KEAN MILLER LLP
400 Covention Street
Suite 700
Baton Rouge, LA 70802

Robert E. Meadows (pro hac vice)
Tracie J. Renfroe (pro hac vice)
Elizabeth R. Taber (pro hac vice)
Mitchell B. Bryant (pro hac vice)
KING & SPALDING, LLP
1100 Louisiana Street
Suite 4000
Houston, TX 77002

Martin A. Stern
Raymond P. Ward
Alexandra R. Lamb
ADAMS AND REESE LLP
701 Poydras Street
Suite 4500
New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED IN PART; AMENDED; AFFIRMED AS AMENDED

MAY 22, 2023

SCJ
PAB
RDJ

This appeal arises out of an environmental pollution case, in which plaintiff,

Hero Lands Company, L.L.C. (“Hero”), sought remediation damages for alleged

environmental damage to four tracts of land, pursuant to La. R.S. 30:29 (also

referred to as Act 312), as well as damages for private causes of action, from

Chevron U.S.A., Inc. (“Chevron”) and other defendants. After Chevron entered a

limited admission of liability for environmental damage as to three of the four

tracts of land, pursuant to La. R.S. 30:29(C), Hero’s remaining claims against

Chevron proceeded to trial, at which Hero was ultimately unsuccessful in

establishing Chevron’s liability for any further environmental damage or private

damages. After the trial on the merits, Hero filed a motion to fix attorney fees and

costs pursuant to La. R.S. 30:29(E), which specifically authorizes the recovery of

costs “attributable to producing that portion of the evidence that directly relates to

the establishment of environmental damage” in accordance with Act 312. The trial

court’s March 15, 2022 judgment granted, in part, Hero’s motion to fix attorney

1

fees and costs for work performed relating to the establishment of environmental

damage, pursuant to La. R.S. 30:29(E)(1), and relating to Hero’s private damages

claims.

Chevron now appeals the trial court’s judgment, arguing that the trial court

erred in failing to limit its award of attorney fees and costs in accordance with La.

R.S. 30:29(E). Specifically, Chevron appeals the award of fees and costs incurred

by Hero in its unsuccessful pursuit of private damages claims, and those incurred

by Hero in pursuit of claims against co-defendants who either settled or were

dismissed. In answer to the appeal, Hero argues that the trial court erred in

determining, applying, and calculating certain reductions to the attorney fees and

costs Hero sought for the work performed in this litigation.

Based on our review of the record, in light of the applicable provisions of

La. R.S. 30:29 and recent jurisprudence interpreting and applying those provisions,

we find the trial court erred in awarding fees and costs attributable to Hero’s

pursuit of private damage claims, outside the scope of Act 312. Consequently, we

reverse the trial court’s judgment to the extent it awarded Hero fees and costs for

work performed in pursuit of private damages claims at trial, and we amend the

trial court’s award by excising the fees and costs incurred during and after the two-

week trial that began on April 26, 2021. In addition, we maintain the trial court’s

further reductions to the award of fees and costs, but we apply the deductions in a

sequential manner rather than by 35% and 30% respectively.

2

Thus, for the reasons that follow, we reverse, in part, the trial court’s March

15, 2022 judgment, amend the trial court’s award of fees and costs, and affirm as

amended.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This Court provided a detailed factual and procedural history of the

underlying environmental pollution case in the prior, related appeal, Hero Lands

Co., L.L.C. v. Chevron, U.S.A., Inc. et al., 22-0224, pp. 1-7 (La. App. 4 Cir.

3/7/23), -- So.3d --, --, 2023 WL 2385145 (“Hero I”). As discussed in Hero I, in

March 2018, Hero filed a petition for damages against Chevron, and several other

defendants, seeking remediation damages for environmental damage to four certain

tracts of land, as provided for by Act 312. Hero also alleged private causes of

action, outside the scope of Act 312, for which it sought private damages.

After more than two years of litigation, on July 29, 2020, Chevron entered a

limited admission of liability as to three of the four tracts of land, pursuant to La.

R.S. 30:29(C), thereby admitting responsibility for environmental damage on those

tracts of land but not for any claims of private damages. In accordance with La.

R.S. 30:29(C), Chevron’s limited admission of liability for environmental damage

was referred to the Louisiana Department of Natural Resources (“LDNR”) for

administrative proceedings to develop of a “most feasible plan” (“MFP”) for

remediation of the environmental damage to which Chevron admitted

responsibility.

3

For several months after the referral of Chevron’s limited admission to the

LDNR, the parties followed statutory procedures for the development of the MFP,

including the submission of a proposal by Chevron, a response by Hero, responses

to further inquiries from the LDNR, and a public hearing before the LDNR. In

December 2020, the parties participated in a five-day public, evidentiary hearing,

at which the LDNR heard testimony of eight witnesses. After the hearing, both

parties filed post-hearing briefs, oppositions, and supplemental briefs. On April 7,

2021, the LDNR submitted to the trial court the proposed MFP and written reasons

as required by La. R.S. 30:29(C)(2). The MFP addresses the remediation of the

environmental damage only to the three tracts of land to which Chevron admitted

liability. As of the submission of this appeal, the trial court had not approved and

adopted a final MFP.1

On April 26, 2021, the case proceeded to a jury trial on Hero’s remaining

claims—the claims for private damages on the three tracts of land to which

Chevron admitted liability for environmental damage, and the claims for

remediation damages and private damages on the fourth tract of land (the

“Northwest tract”). At the conclusion of the two-week trial, the jury rendered a

unanimous verdict in favor of Chevron, finding no liability for environmental

damage on the Northwest tract and no liability for Hero’s private damages claims

on any of the four tracts of land.

1 On April 21, 2023, a subsequent appeal, 2023-CA-0269, was lodged in this Court. In that
pending appeal, Hero appeals the trial court’s October 24, 2022 judgment adopting the LDNR’s
MFP.

4

After the trial, Hero filed a motion to fix attorney fees and costs pursuant to

La. R.S. 30:29(E), the provision of Act 312 that authorizes an award of “all costs

attributable to providing that portion of the evidence that directly relates to the

establishment of environmental damage, including, but not limited to, . . .

reasonable attorney fees incurred in the trial court and the department [LDNR].”

La. R.S. 30:29(E)(1). In its motion, Hero sought attorney fees and costs

encompassing the entirety of litigation and LDNR proceedings, from the filing of

the petition through the two-week trial and post-trial motion practice. In total,

Hero sought to recover $6,622,285.75 in attorney fees and $1,064,195.40 in costs.

In response, Chevron argued that Hero was not entitled to any attorney fees

or costs related to the private damages claims pursued at trial; appellate costs;

claims against other defendants and pursuit of its fee award. In addition, Chevron

argued for a reduction of certain attorneys’ hourly rates and reductions for the

firms’ billing techniques. According to those parameters, Chevron calculated the

attorney fees and costs incurred by Hero to be no more than $1,078,643.59 in

attorney fees and $510,458.96 in costs.

Following an evidentiary hearing and post-hearing briefing on the motion to

fix attorney fees and costs, the trial court rendered its March 15, 2022 judgment

and issued reasons for judgment. The trial court rendered judgment, in pertinent

part, as follows:

• Granted, in part, the motion to fix attorney fees and costs in favor of Hero
and against Chevron, for the work performed and costs incurred, for the
three tracts of land to which Chevron admitted liability, relating to the

5

establishment of environmental damage, pursuant to La. R.S.
30:29(E)(1), and the pursuit of private damage claims at trial;

• Denied, in part, the motion to fix attorney fees and costs in favor of
Chevron and against Hero, denying Hero’s request for fees and costs for
the work performed and costs incurred, for the Northwest tract, relating
to the establishment of environmental damage, pursuant to La. R.S.
30:29(E)(1), and pursuit of private damage claims;

• Reduced the hourly rates of each of ten individual counsel for Hero,
having found the hourly rates of more than $400 submitted by each of
those ten attorneys to be unreasonable;

• Used the reasonable hourly fee rates set by the trial court and the hours
submitted by Hero to calculate the total award of attorney fees to be
$5,486,258, and total costs to be $1,064,195.40, subject to certain
reductions ordered by the trial court;

• Reduced the total amount of attorney fees by 35%, reflecting a 25%
reduction for Hero’s lack of success on claims for the Northwest tract,
and a 10% reduction for the method of time keeping, block billing, mock
trials, and fees that the trial court deemed unwarranted;

• Reduced the total costs by 30%, reflecting a 25% reduction for Hero’s
lack of success on claims for the Northwest tract, and a 5% reduction for
excessive costs for experts, research, and other costs the trial court
deemed unwarranted;

• Based upon the trial court’s reductions to the total award, ordered
Chevron to pay to Hero the total sum of $3,566,067.70 in attorney fees
and $744,936.78 in costs; and

• Decreed that the judgment reflects an interim award of attorney fees and
reserved Hero’s rights to seek future claims for ongoing attorney fees and
costs related to the production of a final plan of remediation for the
environmental damage to which Chevron admitted liability.

Thereafter, Chevron timely filed this appeal of the trial court’s March 15,

2022 judgment awarding attorney fees and costs to Hero. Hero also filed an

answer to the appeal.

6

DISCUSSION

Chevron and Hero each respectively argues that the trial court erred in its

determination of the award of attorney fees and costs. First, we address Chevron’s

appeal, arguing that the trial court erred by awarding attorney fees and costs

beyond the scope of the applicable statutory provision. Then, we turn to Hero’s

arguments that the trial court abused its discretion in its determination of the

reasonableness of hourly rates and its reductions to the award of attorney fees and

costs.

Chevron’s appeal

Chevron argues that the trial court erred by failing to limit its award of

attorney fees and costs in accordance with the specific language of La. R.S.

30:29(E) that provides for the recovery of the “costs attributable to producing that

portion of the evidence that directly relates to the establishment of environmental

damage.” Specifically, Chevron asserts that the trial court erred in two respects:

awarding fees and costs incurred by Hero in its unsuccessful pursuit of private

damages claims at trial and on appeal; and awarding fees and costs incurred by

Hero in pursuit of claims against other defendants.

In consideration of Chevron’s arguments, we begin with the language of the

statute authorizing the recovery of attorney fees. “As a general rule, attorney fees

are not allowed in Louisiana unless they are authorized by statute or provided for

by contract.” Bd. of Sup’rs of Louisiana State Univ. v. Boudreaux’s Tire & Auto

Repair, L.L.C., 13-0444, p. 9 (La. App. 4 Cir. 3/5/14), 133 So.3d 1262, 1269

7

(quoting Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La. 6/29/01), 792 So.2d

721, 723).

In an action seeking remediation of environmental damage, attorney fees and

costs are statutorily authorized by La. R.S. 30:29(E)(1), which provides as follows:
E.(1) In any civil action in which a party is responsible 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 damage, including, but not limited to, expert witness
fees, environmental evaluation, investigation, and testing, the cost of
developing a plan of remediation, and reasonable attorney fees
incurred in the trial court and the department.

Chevron argues that the recoverable costs and fees authorized under this provision

must be considered within the broader context of the legislative purpose in

enacting Act 312, as stated within La. R.S. 30:29(A), in pertinent part, as follows:

The legislature hereby finds and declares that Article IX, Section 1 of
the Constitution of Louisiana mandates that the natural resources and
the environment of the state, including water, are to be protected,
conserved, and replenished insofar as possible and consistent with the
health, safety, and welfare 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 jurisdiction of the Department of Natural
Resources, office of conservation.

Chevron argues that the stated purpose in La. R.S. 30:29(A) and the language used

throughout the statute focus only on the duty to protect the environment and ensure

the remediation of environmental damage, rather than providing for private

damages to landowners that are not dedicated to the remediation of environmental

8

damage. Therefore, Chevron argues that the fees and costs allowed under Act 312,

specifically La. R.S. 30:29(E)(1), may only be awarded to the extent that a party

either admits responsibility, or is found legally responsible by the court, for

remediation of environmental damage. In this case, because Chevron was found

not liable at trial for any environmental damage to the Northwest tract, Chevron

asserts that the award of attorney fees and costs must be limited to Hero’s work

performed in relation to Chevron’s limited admission to liability for environmental

damage on the three tracts of land and the proceedings in the LDNR to develop the

MFP. In support of this argument, Chevron relies upon the Third Circuit’s recent

opinion in Sweet Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., 21-

0169 (La. App. 3 Cir. 12/7/22), 354 So.3d 740, writ denied, 23-00034 (La. 3/7/23),

357 So.3d 349 (“Sweet Lake III”). We turn now to discuss the Sweet Lake case.

The Sweet Lake opinions

In its original appellate brief, Chevron argued that the trial court relied

heavily, and incorrectly, on the analysis and conclusions of the Third Circuit in

Sweet Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., 21-169 (La. App.

3 Cir. 12/1/21), unpub., -- So.3d --, 2021 WL 5630004 (“Sweet Lake I”), which

was pending review before the Louisiana Supreme Court at the time the trial court

in this case rendered its judgment. However, since the submission of this appeal,

the Louisiana Supreme Court granted writs and remanded the matter to the Third

Circuit with orders, discussed below, in Sweet Lake Land & Oil Co., LLC V.

Oleum Operating Co., L.C., 22-00497 (La. 9/20/22), 345 So.3d 1022 (“Sweet Lake

9

II”). Thereafter, the Third Circuit rendered a new opinion, Sweet Lake III, upon

which Chevron relies in support of its appeal. In consideration of the reliance of

the trial court and the parties upon the Sweet Lake opinions, we first review the

trial court’s application of the reasoning in Sweet Lake I, and then discuss how the

Louisiana Supreme Court’s remand order and the Third Circuit’s most recent

opinion of Sweet Lake III impact the trial court’s judgment and guide this Court’s

decision.

In its reasons for judgment in this case, the trial court summarized the facts,

jury verdict, and judgment awarding attorney fees and costs in Sweet Lake I, as

follows:

In Sweet Lake, the plaintiff, Sweet Lake Land and Oil Company,
L.L.C. sought to recover environmental damages and private damages
from the defendants in that case. The case was tried before a jury
which found defendant, BP, solely responsible for the environmental
damages on the property. However, the jury rejected the private
damage claims of the plaintiff. Because the trial court deemed the
plaintiff to be successful as to its remediation claim on the property,
the court awarded all attorney fees and costs pursuant to La. R.S.
30:29 to the plaintiff, despite the fact they were not successful at all as
to their private damage claim relating to that same tract of land.

As noted by the trial court, the Third Circuit addressed the legislative history

and purpose behind La. R.S. 30:29, in applying the statute to the facts of that case

and, ultimately, affirming the lower court’s judgment. The trial court reviewed the

Third Circuit’s analysis and interpretation of La. R.S. 30:29, then relied upon that

reasoning in its own application of the statute to the facts of this case, as follows:

The Third Circuit stated:

“While the parties present compelling statutory construction
arguments, the parsing of the legislature’s phraseology

10

overlooks the reality of the presentation of this case, which
necessarily involves remediation arising under La. R.S.
30:29 as well as claims outside of that regulatory context,
i.e., Sweet Lake’s tort and contract claims disallowed by the
jury, but for which there has been no final judgment
rendered by the trial court. Although the conduct of any
given defendant may result in damages above or even
separate from the statutorily required remediation, the
development and presentation of that evidence is
necessarily attributable to ‘producing evidence that directly
relates to the establishment of environmental damage.’
Sweet Lake successfully presented a case that resulted in
referral for the La. R.S. 30:29 process as well as significant
contractual damages against two of its operators. The
totality of Sweet Lake’s recovery stemmed from the
underlying damage, which was established by BP’s
confession as well as the record evidence on the issue.”

* * *

It is clear from the reading of Sweet Lake that because the
plaintiff had prevailed on the environmental remediation claim, as to
the tract of land involved in that case, the plaintiff was entitled to a
full recovery of their fees and costs even though they were
unsuccessful as to the private damage claim on that same tract. The
Court rejected BP’s argument for a reduction in fees and costs even
though BP prevailed on the private damage claim issues at trial.

Using Sweet Lake as a guide, Hero Lands is entitled to recover
all its fees and costs for the three tracts of land that Chevron made a
limited admission of liability for. Even though Hero Lands did not
prevail on those three tracts of land regarding their private damages
claims, nevertheless, the litigation instituted by them ultimately was
successful in obtaining Chevron’s responsibility for the remediation of
the environmental damages that those tracts sustained in accordance
with Act 312. It is consistent with the legislative history and purpose
behind the law in promoting the health, safety, and welfare of the
people.

* * *

In conclusion, this Court finds that Hero Lands is entitled to
receive reasonable attorney fees and costs regarding their claims for
all work performed in establishing environmental damage on the three
tracts of land including their private damage claims.

11

In consideration of the Third Circuit’s pertinent analysis of an Act 312 case

in Sweet Lake I, we find the trial court’s use of that analysis and reasoning to be

reasonable, at the time this judgment was rendered. The trial court reasonably

followed the guidance from the Third Circuit to determine that the scope of

recoverable fees and costs in this case for work performed in establishing

environmental damage included Hero’s pursuit of private damage claims on the

three tracts of land at trial. However, after the trial court rendered its judgment in

this case, but prior to the submission of this appeal, the Louisiana Supreme Court

granted, in part, BP’s writ in Sweet Lake I and remanded the matter to the Third

Circuit with orders “to determine what costs and fees were attributable to

‘producing that portion of the evidence that directly relates to the establishment of

environmental damage.’ La. R.S. 30:29(E).”2 Sweet Lake II, 22-00497, p. 1, 345

So.3d at 1023.

On remand, in an opinion released while this appeal was pending, the Third

Circuit reconsidered the scope of recoverable fees and costs under La. R.S. 30:29

“with an eye toward those attributable to the limited purpose of establishing

‘environmental damage.’” Sweet Lake III, 21-169, p. 4, 354 So.3d at 744. Looking

to the stated purpose of the statute as provided in La. R.S. 30:29(A), the Third

Circuit found, “[b]y its own terms, La. R.S. 30:29 is targeted to the legislatively

provided remediation measures arising from activities subject to LDNR’s

2 The Louisiana Supreme Court also remanded to the Third Circuit to “reconsider the finding of

solidary liability, when the attorney fees and costs were expressly authorized by statute against
one defendant, but not by the others.” Sweet Lake II, 22-00497, p. 1, 345 So.3d at 1023.

12

jurisdiction.” Id., p. 5, 354 So.3d at 745. In light of the statutory purpose, and in

consideration of the Louisiana Supreme Court’s directive, the Third Circuit

concluded that the trial court’s award of all attorney fees, expert fees, and costs

incurred by Sweet Lake, which encompassed fees and costs attributable to the

unsuccessful pursuit of private damage claims, was in error. Id., p. 5, 354 So.3d at

745. “Rather, that award must be limited to those fees and costs incurred in the

trial court and in the LDNR in pursuit of establishing environmental damages and

the remediation thereof prescribed by La. R.S. 30:29.” Id., p. 6, 354 So.3d at 745.

Consequently, the Third Circuit reversed the trial court’s judgment to the extent it

cast judgment against BP for fees and costs incurred for pursuit of private damage

claims, and “amend[ed] the trial court’s award of fees and costs to those incurred

by Sweet Lake in its successful pursuit of the establishment of environmental

damages and the remediation of that damage.” Id., p. 6, 354 So.3d at 745.

Thereafter, the Louisiana Supreme Court denied writs taken from Sweet Lake III.

23-00034 (La. 3/7/23), 357 So.3d 349.

Recoverable Fees and Costs—Private damage claims

Upon review of this case, in light of the directive from the Louisiana

Supreme Court in Sweet Lake II and the Third Circuit’s reasoning and conclusion

in Sweet Lake III, we arrive at the same conclusion in this case—that the trial

court’s award to Hero for fees and costs incurred for prosecution of private claims

outside the establishment of environmental damage and statutory remediation

damages available under La. R.S. 30:29 was in error. See Sweet Lake III, 21-169,

13

p. 5, 354 So.3d at 745. Thus, this trial court erred in its judgment insofar as it

determined that the recoverable attorney fees and costs to which Hero is entitled,

under La. R.S. 30:29, included work performed in Hero’s pursuit of their private

damage claims for the three tracts of land at trial. We now consider how that

affects the award of attorney fees and costs in this case.

Chevron, in its original and supplemental briefs to this Court has

consistently argued for this Court to render judgment on the record, excising all

fees and costs that were not directly related to the establishment of environmental

damage through Chevron’s limited admission of liability on the three tracts of land.

At the hearing on the motion to fix attorney fees and costs, Chevron submitted its

“line-by-line analysis” of Hero’s billing records, by which Chevron claims to

identify each entry that is beyond the scope of Act 312 and relates only to Hero’s

private damage claims.3 Chevron further argues that once it entered that limited

admission of liability on July 29, 2020, none of the work performed in the ensuing

10 months from the limited admission through the trial verdict and appellate work

can possibly relate to the “establishment of environmental damage” in accordance

with La. R.S. 30:29, as interpreted in Sweet Lake III.

From our review of the record of this case, and in consideration of the

language of La. R.S. 30:29(E), we agree that Hero succeeded in establishing

environmental damage on the three tracts of land as a result of Chevron’s limited

3 Chevron submitted the affidavit of Ralph A. Litolff, Jr., a certified public accountant, who

attested that Chevron retained him to examine bills submitted by the firms representing Hero and
to perform “certain calculations at the direction of Chevron’s counsel of record.” Chevron
submitted Mr. Litolff’s line-by-line examination and categorization of the bills and his
“Calculation of Legal Fee Hours Based on Certain Reductions” as its line-by-line analysis.

14

admission of liability. But, Hero’s work in “producing that portion of the evidence

that directly relates to the establishment of environmental damage . . . in the trial

court and the department [LDNR]” did not end on July 29, 2020, when Chevron

made its limited admission of liability as to the three tracts of land. By entering the

limited admission of liability, Chevron triggered procedures within Act 312 for

referring the matter to the LDNR for further proceedings. La. R.S. 30:29(C)

outlines the required procedures including: the development and submission a plan

for evaluation and remediation by the admitting party; the time for any party to

respond to the plan; a public hearing on the plan; the submission of evidence to

LDNR; the LDNR’s written reasons for the proposed MFP to be submitted to the

trial court; the submission of the proposed MFP to the trial court for final approval;

and the trial court’s adoption and continuing jurisdiction over the MFP through

completion of remediation. Thus, the date on which a party makes an admission of

liability for environmental damage does not mark an end to the proceedings in the

trial court and the LDNR in pursuit of the establishment of environmental damage

and remediation of that damage.4

4 We note the language of La. R.S. 30:29(C)(2)(b), in particular, indicates the ongoing, legal

nature of the environmental damage and remediation proceedings within the LDNR, beyond the
date when a party enters an admission of liability. La. R.S. 30:29(C)(2)(b) provides in pertinent
part:
Except as otherwise provided for in this Section, from the date the party or
parties, who admit responsibility or whom the court finds legally responsible for
the damage, submit a plan to the department until after the department has filed
with the court the approved feasible plan for the evaluation or remediation of the
environmental damage, no party to the litigation, either directly or indirectly, shall
have ex parte communication with any employee, contractor, or representative of
the department regarding the formation of the feasible plan or an agency
providing comments to the department regarding the formation of the feasible
plan.

15

In addition, we find that the language of La. R.S. 30:29(E) allows for

recovery of costs encompassing all of the work involved in the LDNR proceedings,

which all directly relate to the establishment of environmental damage. Therefore,

those costs include, but are not limited to “expert witness fees, environmental

evaluation, investigation, and testing, the cost of developing a plan of remediation,

and reasonable attorney fees incurred in the trial court and the department

[LDNR].”

In this case, when Chevron filed its limited admission of liability for

environmental damage on the three tracts of land, the procedures outlined in La.

R.S. 30:29(C) were triggered, and the LDNR proceedings to establish the

environmental damage and the plan for remediation commenced. The parties

participated in five days of LDNR hearings, in December 2020, that involved the

submission of evidence and the testimony of eight witnesses. Thereafter, the

parties submitted post-hearing briefs and continued to make arguments to the

LDNR regarding the plan for remediation. On April 7, 2021, the LDNR filed the

proposed MFP with the trial court.

After the LDNR issued the proposed MFP, the trial commenced on April 26,

2021. The jury rendered its verdict, in favor of Chevron, on May 7, 2021, and the

trial court signed the judgment on that verdict on May 14, 20221. The billing

records submitted in support of Hero’s motion to fix attorney fees include work

performed through May 31, 2021.

16

Based on our review of the billing records submitted by Hero and the “line-

by-line” analysis submitted by Chevron, we do not find Chevron’s “line-by-line”

analysis to be an accurate or fair calculation of attorney fees and costs incurred by

Hero in the trial court and in the LDNR in pursuit of establishing environmental

damages and the remediation thereof, in accordance with by La. R.S. 30:29.

In our consideration of this record, specifically with an eye toward

determining the costs and fees attributable to the work performed by Hero in

“producing that portion of the evidence that directly relates to the establishment of

environmental damage” in both the trial court and the LDNR proceedings,5 we

conclude that the fees and costs incurred by Hero from April 26, 2021, the date that

trial began, through May 31, 2021, the last date included in the submitted billing

records, must be excluded from the total award. We find that any further line item

review of each billing record and every cost statement, to determine the work

performed solely in “producing that portion of the evidence that directly relates to

the establishment of environmental damage,” would be impractical and lead to

confusion and dispute.

Recoverable Fees and Costs—Claims against other defendants

Finally, Chevron argues that the trial court erred in awarding fees and costs

incurred by Hero in pursuit of claims against other defendants, who settled or were

dismissed. But, in consideration that Chevron was the only party to admit liability

for environmental damage and be held responsible for remediation under La. R.S.

5 La. R.S. 30:29(E)(1).

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30:29, we find that Chevron alone is responsible for the fees and costs recoverable

under La. R.S. 30:29(E). Here again, we find guidance from the Louisiana

Supreme Court’s directive to the Third Circuit and the resulting decision in Sweet

Lake III.

In the case of Sweet Lake, plaintiff, Sweet Lake, proceeded to trial against

three defendants—BP, Oleum Operating Co., L.C. (“Oleum”), and AKSM—but,

the jury returned a verdict finding only BP liable for remediation of the

environmental damage. Subsequently, Oleum and AKSM were found liable to

Sweet Lake for private breach of contract damages.6 Three years later, the final

MFP had not yet been judicially approved or implemented, but, considering the

additional mounting costs of that remediation process, Sweet Lake filed a motion

to assess fees and costs pursuant to La. R.S. 30:29(E). The trial court’s judgment

awarding fees and costs in favor of Sweet Lake, pursuant to La. R.S. 30:29, was

rendered against BP, Oleum, and AKSM in solido.

In Sweet Lake I, BP argued, in part, that the trial court erred in finding the

three defendants liable in solido under La. R.S. 30:29, but the Third Circuit

maintained the trial court’s finding of solidary liability, reasoning as follows:

We leave that determination [of solidary liability] undisturbed as each
party shared liability for at least a baseline of remediation in this case.
See La. Civ. Code art. 1794. As stated above, the award of fees and
costs all originated in the claim that centered on that remediation.

Furthermore, while BP may have been held responsible for regulatory
remediation under La. R.S. 30:29, Oleum and AKSM assumed not
6 As explained in Sweet Lake I, Sweet Lake appealed from the partial final judgment dismissing

the contract claims against Oleum and AKSM, and, in an earlier appeal, the Third Circuit
concluded the jury erred in rejecting the breach of contract claims against Oleum and AKSM and
remanded the matter for a bench trial on the damages. 21-169, p. 4, -- So.3d at --, *10.

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only a remediation obligation by operation of law, but one at a higher
level of contract. This alternative source of obligation is of no
moment as La. Civ.Code art. 1797 provides that “[a]n obligation may
be solidary though it derives from a different source for each obligor.”

Sweet Lake I, 21-169, p. 49, -- So.3d at --, *21.

The Louisiana Supreme Court granted writs on this issue as well, remanding

the matter to the Third Circuit “to reconsider the finding of solidary liability, when

the attorney fees and costs were expressly authorized by statute against one

defendant, but not by others.” Sweet Lake II, 22-00497, p. 1, 345 So.3d at 1023.

On remand, the Third Circuit reconsidered the solidary liability of defendants, in

light of the scope of recoverable fees and costs to which a party is entitled under

La. R.S. 30:29(E), and concluded:

[I]t is now apparent all available costs must arise due to the remedy
provided by La. R.S. 30:29. Thus, as BP has been found responsible
for the entirety of the remediation available under La. R.S. 30:29, it
follows that BP, alone, must be cast in judgment for the fees and costs
attributable to the environmental damage underlying the remedy of
La. R.S. 30:29(E).

Sweet Lake III, 21-169, pp. 12-13, 354 So.3d at 748. Moreover, the Third Circuit

considered the purpose of an award of attorney fees, as recognized by Louisiana

jurisprudence. “As an award of an attorney fee is a type of penalty, such an award

is meant to discourage a type of behavior rather than make an injured party whole.”

Id., p. 14, 354 So.3d at 749 (citing Langley, 01-0198, p. 3, 792 So.2d at 723). In

that case, BP was determined to be the sole party responsible for remediation of

environmental damage under La. R.S. 30:29, and, thus, the award of attorney fees

and costs related to that finding “acts as a penalty for BP’s behavior.” Sweet Lake

III, 21-169, p. 15, 354 So.3d at 749.

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In this case, Chevron is the only party in this case to admit liability and

responsibility for remediation of environmental damage under La. R.S. 30:29.

Consequently, Chevron is solely responsible for the award of fees and costs to

which Hero is entitled to recover under La. R.S. 30:29(E). Chevron, alone,

admitted its role in the environmental damage of three tracts of land, and the award

of attorney fees, pursuant to La. R.S. 30:29(E), is meant to discourage Chevron

from further acts causing damaging to the environment. Therefore, we find no

merit in Chevron’s argument that the scope of recoverable fees and costs cannot

include Hero’s pursuit of claims of environmental damage against other

defendants.

Hero’s answer to the appeal

In answer to the appeal, Hero argues that the trial court erred by reducing

Hero’s attorneys’ recoverable rates in a manner inconsistent with Act 312; not

applying a multiplier to its calculation of recoverable attorney fees to account for

the contingent risk; calculating a 25% reduction in attorney fees and cost based on

Hero’s failure to recover environmental damage to the Northwest tract; applying a

10% reduction to Hero’s attorney fees based on method of billing; and in its

application of the percentage reductions, resulting in double-reductions. Based on

our review, as follows, we find no abuse of discretion in the trial court’s

determination of reasonable rates or the reductions to the fees and costs. We do,

however, find that the trial court erred in the manner of applying the reductions,

which should be applied in a sequential manner.

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In reviewing a trial court’s determination of the reasonableness of attorney

fees, the Louisiana Supreme Court looks to whether the trial court has taken into

consideration the following factors:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the
importance of the litigation; (4) the amount of money involved; (5)
the extent and character of the work performed; (6) the legal
knowledge, attainment, and skill of the attorneys; (7) the number of
appearances involved; (8) the intricacies of the facts involved; (9) the
diligence and skill of counsel; and (10) the court’s own knowledge.

Rivet v. State, Dept. of Transp. and Development, 96-0145, pp. 11-12 (La. 9/5/96),

680 So.2d 1154, 1161 (citing State, DOTD v. Williamson, 597 So.2d 439, 442 (La.

1992)); see also, Rule 1.5(a) of the Rules of Professional Conduct. Our Court has

further explained our appellate review of a determination of an attorney fee as

follows:

[W]e first ensure that the trial judge adequately considered the ten
factors and then, if we find that they were adequately considered, we
review the award under an abuse-of-discretion standard. Importantly,
we decline to modify the award on appeal unless we are satisfied that
the standard is met. Our deference to the trial judge in these matters is
a recognition of the trial judge’s greater familiarity with the issues
involved in the overall case and with the specific value of the services
rendered by the attorney whose fee is under consideration.

Billieson v. City of New Orleans, 15-0858, p. 6 (La. App. 4 Cir. 1/27/16), 186

So.3d 786, 790; See Covington v. McNeese State Univ., 12-2182, p. 11 (La.

5/7/13), 118 So.3d 343, 351 (“[T]he role of the reviewing court is not to determine

what it considers to be an appropriate award, but rather it is to review the exercise

of discretion by the trier-of-fact.”); Bd. of Sup’rs of Louisiana State Univ. v. Dixie

Brewing Co., Inc., 15-1053, p. 13 (La. App. 4 Cir. 9/1/16), 200 So.3d 977, 986

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(holding that the trial court’s award of attorney fees will not be reversed on appeal

absent a clear abuse of the trial court’s sound discretion).

Hero argues that the trial court misapplied the Rivet factors for determining

the reasonableness of the attorney fees. In its brief, Hero asserts that the trial court

abused its discretion by failing to consider the time and labor required by this case

when making reductions; the customary rate of the locality by looking to the rates

charged by Chevron’s attorneys; and the risk undertaken by taking this case on a

contingency basis. From our review of the trial court’s reasons for judgment,

which provide a detailed consideration of the factors for determining the

reasonableness of attorney fees, we find no merit in Hero’s arguments.

In reviewing a trial court’s determination of a reasonable hourly rate, the

Louisiana Supreme Court stated as follows:

A reasonable hourly rate is to be determined “according to the
prevailing market rates in the relevant community” for attorneys of
similar experience in similar cases. Blum v. Stenson, 465 U.S. 886,
895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); see also Alberti v.
Klevenhagen, 896 F.2d 927 (5th Cir. 1990). “To inform and assist the
court in the exercise of its discretion, the burden is on the fee
applicant to produce satisfactory evidence—in addition to the
attorney’s own affidavits—that the requested rates are in line with
those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.” Blum, 465
U.S. at 895, n.11, 104 S.Ct. 1541. A rate determined in this way is
normally deemed reasonable, and is considered to be “the prevailing
market rate.” Id. To be sure, an award of attorney fees should be high
enough to “facilitate plaintiffs’ access to the courts to vindicate their
rights by providing compensation sufficient to attract competent
counsel.” McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir.
2011). We reiterate that, in determining the amount of reasonable
attorney fees to award under federal fee shifting statutes, the district
court is afforded considerable discretion. Hensley, 461 U.S. at 437,
103 S.Ct. at 1941.

Covington, 12-2182, pp. 9-10, 118 So.3d at 350.

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In its determination of the reasonableness of attorney fees, the trial court first

addressed the hourly billing rates of ten individual counsel for Hero contested by

Chevron. These ten attorneys submitted hourly rates ranging from $472.50 to

$850 per hour. The trial court determined that these rates were unreasonable,

ultimately reducing them to a range of $400 to $525 per hour.

In setting these amounts, the trial court discussed its consideration of each

attorney’s rate in light of: the relevant market—the 25th Judicial District Court in

Plaquemines Parish where the case was heard; the court’s own knowledge of the

hourly rates billed by attorneys practicing in Plaquemines Parish; the testimony

and affidavits of Hero’s attorneys regarding their experience, expertise, and the

work they performed; the complex nature of this Act 312 litigation; the range of

legal issues and skill level required; the amount of work performed by all counsel;

and the ultimate outcome for Hero, which included a satisfactory result from the

limited admission of liability from Chevron but an unsuccessful result at trial. The

trial court also considered Hero’s argument that the reasonableness of their hourly

rates should be determined by a comparison to the much higher rates charged by

Chevron’s attorneys in this litigation; but, the trial court reasoned that “even if the

fees were exactly equal, then this Court would still have to apply the above factors

cited above to determine the reasonableness of the hourly rate for this market.”

Upon review of the trial court’s reasons, with consideration of the record of

this case, we find the trial court adequately considered the appropriate factors in

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determining reasonable hourly rates, and we find no abuse of the trial court’s

discretion in reducing the rates of the ten individual counsel for Hero.

We turn now to the reductions of the attorney fees and costs by the trial

court. First, the trial court applied a 25% reduction, from its lodestar calculation of

Hero’s attorney fees and costs, because Hero failed to establish liability for

environmental damage as to the Northwest tract under Act 312. Thus, because

Hero was unsuccessful in establishing liability for environmental damages on one

out of four of the original claims (tracts of land), the trial court found it logical and

reasonable to reduce the award of fees and costs by 25%. In accordance with the

reasoning discussed earlier in this opinion, we agree that Hero cannot recover costs

on a claim for which it did not establish liability for environmental damage,

pursuant to La. R.S. 30:29(E)(1). Furthermore, we find the trial court did not

abuse its discretion in applying a 25% reduction of the award in lieu of attempting

to review every billing record and cost statement to determine what fees and costs

would be attributable solely to Hero’s work as to the Northwest tract.

Accordingly, this 25% reduction will be applied to this Court’s re-calculation of

the lodestar, after excising the attorney fees and costs incurred during and after

trial.

In regards to the trial court’s further reductions of 10% to the attorney fees

and 5% to the costs, we also find no abuse of discretion. The trial court based the

ten percent reduction of the fees on its own review of the bills, finding several

entries of block billing, logging more hours worked than hours in a day, and

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insufficient, vague descriptions of the work performed. This Court has also

reviewed the bills submitted by Hero and noted the same large block billing—such

as, 114 hours logged by one attorney on one date, 80 hours logged by another

attorney on one date—with vague, overly broad descriptions of the work

performed in those blocks of time, compared to the specificity in the quarterly hour

billing of other attorneys. Therefore, we find no abuse of discretion in the trial

court deeming the billing methods unreasonable and reducing the attorney fees by

ten percent. See Covington, 12-2182, p. 7, 118 So.3d at 349 (“Where the

documentation is inadequate, the district court may reduce the award

accordingly.”).

Finally, based on our review of the billing records and the reasons provided

by the trial court, we also find no abuse of discretion in the trial court’s five

percent reduction of costs incurred by Hero, finding the total costs billed to be

unreasonable and unwarranted.

Accordingly, we affirm the trial court’s reductions of the award of attorney

fees and costs by 25%, as well as the additional reduction of 10% to the attorney

fees and 5% to the costs. However, we agree with Hero’s argument that the trial

court erred by reducing the total award by the aggregate amounts of 35% and 30%,

respectively. We find that the 25% reduction for the Northwest tract must be

applied first, then the amounts are further reduced for the billing methods and

excessive costs, respectively. Thus, the reductions should be applied sequentially.

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CONCLUSION

For the foregoing reasons, we reverse, in part, the trial court’s March 15,

2022 judgment, to the extent it includes an award of fees and costs incurred by

Hero for work performed in pursuit of private damages claims, outside the scope of

Act 312; and, we amend the trial court’s award by excising the fees and costs

incurred during and after the two-week trial that began on April 26, 2021. In

addition, we affirm and apply the trial court’s reductions to the total award.

Accordingly, for the foregoing reasons, we hereby amend the award of

attorney fees and costs in favor of Hero, and order the defendant, Chevron, to pay

to Hero, the total sum of $3,098,972.66 in attorney fees and the total sum of

$656,937.20 in costs.7

Finally, we remand to the trial court for further proceedings related to the

implementation of the remediation MFP.

REVERSED IN PART; AMENDED; AFFIRMED AS AMENDED

7 This Court excised the billed hours from April 26, 2021 through May 31, 2021, in each of the

billing records submitted by the three firms representing Hero. Then, using the reasonable
hourly rates set by the trial court, this Court reduced the lodestar calculated by the trial court by
the following amounts: $443,081 from Fishman Haygood, L.L.P.; $414,406.38 from Jones
Swanson Huddell & Daschbach, LLC; and $37,300 from Ballay, Braud & Colon, PLC. The
reduced lodestar amount of $4,591,070.62 was then reduced by 25%, and, finally, this Court
applied the 10% reduction to the fees. As to the costs, this Court reduced the costs by
$142,178.28, for work performed during and after trial. That amount was then reduced by 25%,
then further reduced by 5%.

26