James J. Bailey, III and New 90 LLC v. Energen Resources Corporation, Successor in Interest to Minatome Corporation and Total Minatome Corporation, Chervron U.S. A., Inc., Successor in Interest to Chevron Oil Company and California company, Southern Natural Gas Company, LLC, successor in Inter

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0564

LOUISIANA WETLANDS, LLC,
AND NEW 90, LLC

VERSUS

ENERGEN RESOURCES CORPORATION,
CHEVRON USA, INC.,
SOUTHERN NATURAL GAS COMPANY, LLC,
EP ENERGY E& P COMPANY, LP,
AND BRAMMER ENGINEERING, INC.

Judgment Rendered: APR 19 2024

On Appeal from the
16th Judicial District Court
Parish of St. Mary, State of Louisiana
Trial Court No. 130527

The Honorable Suzanne deMahy, Judge Presiding

James R. Swanson Attorneys for Plaintiff A
- ppellant,
H.S. Bartlett, III James J. Bailey, III, Individually and as
Lance C. McCardle Representative of the Successions
E. Blair Schilling of Willie Palfrey Foster and
New Orleans, Louisiana Fairfax Foster Bailey

Gladstone N. Jones, III
Bernard E. Boudreaux
Kevin E. Huddell
Michael P. Arata
John T. Arnold
Rosa E. Acheson
Alayne Gobielle
Harvey S. Bartlett, III
NeyvOrleans, Louisiana

George Arceneaux, III Attorneys for Defendant -Appellee,
Jamie D. Rhymes BP America Production Company
Court C. VanTassell
John S. Troutman
Randee V. Iles
Lafayette, Louisiana

Kelly Brechtel Becker
Mark R. Deethardt
Erin E. Bambrick

Trinity A. Morale
New Orleans, Louisiana

Michael P. Cash
Houston, Texas

BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.

2

WOLFE, J.

In this oil and gas contamination lawsuit,' plaintiff, James J. Bailey, III,

individually and as the representative of the Successions of Willie Palfrey Foster and

Fairfax Foster Bailey, appeals a summary judgment granted in favor of one of the

named defendants, BP America Production Company, and dismissing all of Mr.

Bailey' s claims against BP America with prejudice. BP America answered the

appeal, seeking a clarification of the trial court' s reasons for judgment. For the

following reasons, we affirm the trial court' s judgment and deny the answer to

appeal as moot.

FACTS AND PROCEDURAL HISTORY

The original plaintiffs in this case were New 90, LLC, and Louisiana

Wetlands, LLC. However, Louisiana Wetlands was later removed and James J.

Bailey, III (Mr. Bailey) was added as a new party plaintiff, both individually and in

his capacity as the representative of his mother' s and grandmother' s successions.2

All claims ofNew 90, LLC were dismissed through summary judgment, leaving Mr.

Bailey as the sole plaintiff in his individual and representative capacity for the Bailey

family. See Louisiana Wetlands, LLC v. Energen Resources Corporation, 2021-

0290 ( La. App. 1st Cir. 1014121), 330 So. 3d 674, 680, writ denied, 2021- 01610 ( La.

1112122), 330 So. 3d 674. In prior appeals, we have provided a detailed factual and

procedural history of the underlying oil and gas activities and contamination issues

on the Bailey family property. See Id. at 676- 678 ( Louisiana Wetlands I). See

also Louisiana Wetlands, LLC v. Energen Resources Corporation, 2022- 1169

1 These types of cases are also known as " legacy" lawsuits, because they often arise from oil and
gas operations conducted many decades ago, leaving an unwanted legacy in the form of actual or
alleged contamination. See Louisiana Wetlands, LLC v. Energen Resources Corporation,
2021- 0290 ( La. App. 1st Cir. 1014! 21), 330 So. 3d 674, 676 n.1, writ denied, 2021- 01610 ( La.
1112122), 330 So. 3d 674,

2 Throughout the opinion, we reference Mr. Bailey and sometimes the Bailey family to represent
the plaintiff' s position.

3

La. App. 1 st Cir. 1113 0123), So. 3d , 2023 WL 8290245, * * 1- 2, writ denied,

2024- 00004 (La. 2027/ 24), So. 3d , 2024 WL 806006. ( Louisiana Wetlands

II). We repeat only the pertinent facts to the appeal currently before us, which will

hereafter be referred to as Louisiana Wetlands III.

For over 100 years, the Bailey family has owned a 300 -acre tract of land

known as the Shady Retreat Plantation, near the Town of Franklin in St. Mary Parish.

The property has been passed down through the Bailey family for generations. It is

undisputed that oil and gas exploration and production activities were historically

conducted on various areas of the Bailey property, pursuant to a 1948 mineral lease

entered into between Mr. Bailey' s family as lessors and Pan- American Production

Company as lessee. Pursuant to partial assignments beginning in 1952, three

production companies, BP America, Chevron U.S. A., Inc., and Southem Natural

Gas Company, L.L.C. ( SNG), were each a successor to Pan -American' s lessee

interest in the 1948 lease. By 1973, all wells that were drilled and operated under

the 1948 lease had been plugged and abandoned. In 1975, the Bailey family entered

into two more leases for hydrocarbon production on their property. Energen

Resources Corporation is the successor to the 1975 leases; however, all operations

pursuant to the 1975 leases were terminated in July 2000, when the last two operating

wells were plugged and abandoned.

This lawsuit was initially filed in December 2016 by the Bailey family,

through their limited liability companies, asserting tort and contract claims against

all of the oil and gas lessees who operated at various times throughout the property' s

history of oil and gas production. The Bailey family sought damages arising from

the historical oil and gas exploration and production activities on their property,

alleging environmental damage to their property, and additionally seeking to have

their contaminated property cleaned and restored to its original condition.

4

This appeal concerns a summary judgment that was granted in favor of BP

America on August 29, 2022.3 The trial court dismissed Mr. Bailey' s claims for

damages caused by BP America' s alleged unreasonable and excessive operations,

which the trial court ruled were implied obligations that sounded in tort instead of

contract. Because the trial court had previously dismissed all of Mr. Bailey' s tort

claims against BP America as being prescribed,' the trial court found that the claims

for unreasonable and excessive operations should also be dismissed as prescribed.

Now, Mr. Bailey assigns error to the trial court' s holding that his claims for breach

of implied obligations contained in the 1948 lease are tort claims that have

prescribed.

BP America filed an answer to this appeal, urging this court to affirm the trial

court' s judgment for another reason — that Mr. Bailey' s claims for excess

remediation damages are barred under La. R.S. 30: 29, more commonly known as

Act 312," 1 as interpreted by the Louisiana Supreme Court in State v. Louisiana

Land & Exploration Co., 2020- 00685 ( La. 6130121), 347 So. 3d 684, 693 ( hereafter

referred to as LL& E II). BP America argues that, when there is no express

contractual provision, Act 312 does not allow for remediation damages in excess of

those required to fund the most feasible plan adopted by the trial court.

s The trial court signed two judgments concerning BP America' s motion for summary judgment:
1) August 29, 2022 judgment deciding the merits of BP America' s motion, as well as the merits
of related motions by Chevron and SNG; and ( 2) August 30, 2022 judgment dismissing all claims
against BP America. In this appeal, we review the first judgment signed on August 29, 2022,
where the trial court granted summary judgment in favor of BP America and dismissed Mr.
Bailey' s damage claims against BP America for unreasonable and excessive operations. Further,
we note that the order of appeal references the August 29, 2022 judgment, not the August 30, 2022
judgment.

4 This court denied supervisory review of that prior prescription ruling in an unpublished writ
action. See Louisiana Wetlands, LLC v. Energen Resources Corporation, 2022- 0739 ( La.
App. 1st Cir. 9/ 1122), 2022 WL 4087994, * 1 ( unpublished), writ denied, 2022- 01495 ( La.
12/ 20122), 352 So. 3d 88.

s Louisiana Revised Statutes 30: 29, referred to as Act 3I2 herein, has a stated legislative purpose
of ensuring that damage to the environment is remediated to a standard that protects the public
interest. Because this case involves environmental damage arising from oil and gas activities, Act
312 applies.

5

Pertinent to this appeal, it is important to note that in August and September

of 2020, SNG and Chevron filed limited admissions of liability with the trial court,

each admitting to being a responsible party for the environmental damage on the

Bailey property. As a result, the trial court referred the matter to the Louisiana

Department of Natural Resources, Office of Conservation ( LDNR) for a

determination of the most feasible plan (MFP) for remediation of the Bailey property

to applicable regulatory standards as mandated by Act 312.' After the MFP was

adopted, LDNR submitted the MFP to the trial court, which was accepted and

adopted by the trial court in a judgment dated July 15, 2022. SNG and Chevron

submitted the funds necessary to implement the MFP into the registry of the trial

court, and this court affirmed the trial court' s judgment adopting the MFP. The

Louisiana Supreme Court denied writs on February 27, 2024. See Louisiana

Wetlands II, 2023 WL 8290245 at * 4.

The issue currently before this court is whether the trial court correctly granted

summary judgment in favor of BP America and dismissed Mr. Bailey' s sole

remaining claim against BP America for unreasonable and excessive operations

based upon implied lease obligations under the 1948 lease. We review this issue in

light of the undisputed facts that BP America never actually drilled or operated any

wells on the Bailey property, and SNG and Chevron have admitted responsibility for

remediation of the Bailey property according to the court -approved MFP.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court' s determination of whether summary judgment is

appropriate; i.e., whether there is any genuine issue of material fact, and whether the

6
By 2023 La. Acts No. 150, § 5, effective January 10, 2024, La. R.B. 30: 29 was amended and
reenacted to rename LDNR to " Louisiana Department of Energy and Natural Resources, [ O] ffice
of [C] onservation." However, in this opinion, we will continue to use " LDNR" to refer to the
department.

no

movant is entitled to judgment as a matter of law. La. Code Civ. P. art. 966( A)(3);

Louisiana Wetlands I, 330 So. 3d at 678. In ruling on a motion for summary

judgment, the trial court' s role is not to evaluate the weight of the evidence or to

determine the truth of the matter, but instead to determine whether there is a genuine

issue of triable fact. Further, simply showing the presence of disputed facts is

insufficient if there is no legal issue presented by those contested facts. Sketchier

v. Hernandez, 2020- 0292 ( La. App. 1 st Cir. 5/ 19/ 21), 326 So. 3d 912, 916 n. 3.

Because it is the applicable substantive law that determines materiality,

whether a particular fact in dispute is material can be seen only in light of the

substantive law applicable to the case. Louisiana Wetlands I, 330 So. 3d at 678.

This oilfield remediation case is governed by the substantive law found in Act 312,

which the Louisiana Supreme Court has interpreted in the context of prescription

issues and awards of damages for the remediation of contaminated property. See

LL& E II, 347 So. 3d at 688- 693 and State v. Louisiana Land & Exploration Co.,

2020- 00685 ( La. 6/ l/ 22), 339 So. 3d 1163, 1168- 1171 ( LL& E III).

LAW AND ANALYSIS

In 2006, the Louisiana Legislature passed Act 312, which was designed to

protect the public interest in litigation by requiring court -supervised, defendant -

funded cleanup for all environmental damage claims resulting from oilfield

operations. However, Act 312 specifically provides that it shall not be construed to

impede or limit provisions in private contracts imposing remediation obligations in

excess of regulatory requirements. See La. R.S. 30: 29( H)( 1). See Marin v. Exxon

Mobil Corp., 2009- 2368 ( La. 10/ 19/ 10), 48 So. 3d 234, 241 n.7. Additionally,

damages awarded pursuant to Act 312 are governed by Subsection M, which shall

not be interpreted to create any cause of action or to impose additional implied

obligations under the mineral code or arising out of the mineral lease. See La. R. S.

30:29(H)(2).

VA

The rules of statutory construction provide that when the words of a statute

are clear and unambiguous, and the application of the law does not lead to absurd

consequences, the statute should be applied as written and no further effort should

be made to determine the legislature' s intent. See La. Civ. Code art. 9; see also La.

R.S. 1: 4. Thus, the starting point in the interpretation of any statute is examining the

language of the statute itself. When the language is susceptible of different

meanings, it must be interpreted as having the meaning that best conforms to the

purpose of the law. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007- 2371 ( La.

711/ 08), 998 So. 2d 16, 27. Also, if the words of a law are ambiguous, their meaning

must be sought by examining the context in which they occur and the text of the law

as a whole. Id.

As originally written, Act 312, Subsection D, mandated that all damages

awarded in connection with the statute, except those described in Subsection H, must

be deposited into the registry of the court and used to remediate the property. In

Marin, 48 So. 3d at 259- 260, the supreme court held that in situations where the

lessee acts unreasonably or excessively, the lessee has an obligation to correct the

damage to state regulatory standards rather than restore to the land' s original

condition.

In 2013, the Louisiana Supreme Court decided State v. Louisiana Land &

Exploration Co., 2012- 0884 ( La. 1130113), 110 So. 3d 1038 ( LL& E I), ultimately

allowing for remediation damages in excess of those needed to satisfy state

regulatory standards, even in the absence of an express contractual provision.

LL& E I, 110 So. 3d at 1054. Further, the plaintiff could keep those excess damages

without any requirement that they be deposited into the court registry. Id. In 2014,

immediately after the supreme court' s decision in LL& E I, the legislature amended

the private damage provisions of Act 312, Subsection H, to limit a plaintiff' s private

8

damages for remediation to those available under Subsection M, which specifically

provides that damages may be awarded only for the following:

a) The cost of funding the [ MFP] adopted by the court.

b) The cost of additional remediation only if required by an express
contractual provision providing for remediation to original

condition or to some other specific remediation standard.

c) The cost of evaluating, correcting or repairing environmental
damage upon a showing that such damage was caused by
unreasonable or excessive operations based on rules,

regulations, lease terms and implied lease obligations arising by
operation of law, or standards applicable at the time of the activity
complained of, provided that such damage is not duplicative of
damages awarded under Subparagraph ( a) or (b) of this Paragraph.

d) The cost of nonremediation damages.

La. R.S. 30: 29( M)( 1)( a- d) ( emphasis added).

A well- settled rule of Louisiana statutory interpretation instructs courts to

presume a change in the law when the legislature changes the statute' s language.

New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223

La. 4/ 10/ 95), 653 So. 2d 538, 544. The unambiguous effect ofthe 2014 amendments

to Act 312 was to limit a plaintiff's recovery, in that a plaintiff cannot directly

recover additional remediation damages in the absence of an express contractual

provision. Furthermore, this interpretation best conforms to the language in the

opening subsection of Act 312, which explicitly provides: " The provisions of this

section shall not be construed to impede or limit provisions under private contracts

imposing remediation obligations in excess of the requirements of [LDNR] or limit

the right of a party to a private contract to enforce any contract provision in a court

of proper jurisdiction." La. R.S. 30: 29( A). In LL& E II, 347 So. 3d at 691, the

supreme court recognized the " palpable error" in LL& E I, by examining the plain

language of Act 312 as cured by the legislature' s 2014 amendment to Subsection M.

See LL& E II, 347 So. 3d at 691, n. 5.

07

Given the mandate that Act 312 limits direct damages ( those that need not be

deposited into the court' s registry) to those described in Subsection M(b) for

additional remediation" when a contractual provision explicitly compels that result,

we next examine the language of the 1948 lease. Our de novo review of the 1948

lease reveals no express language providing for remediation to original condition or

to any other specific remediation standard. However, Mr. Bailey' s petition

specifically requests damages in an amount including " payment of the costs to

restore ... lands ... to its original unpolluted state[.]" Further, it is undisputed that

BP America did not actually drill or operate any of the wells that were authorized

under the 1948 lease, which is the only lease that could possibly affect Mr. Bailey' s

recovery against BP America as one of the successor' s in interest to the original

lessee, Pan- American.

The thrust of Mr. Bailey' s argument is that BP America acted unreasonably

or excessively, thereby breaching implied obligations arising under the Louisiana

Civil and Mineral Codes and allowing recovery under Act 312 Subsection M(c).

However, because the 1948 lease does not contain any express provision for

additional remediation or a requirement that the Bailey family' s property be restored

to its original condition, Mr. Bailey has no viable claim against BP America for a

breach of implied obligations. Furthermore, Chevron and SNG have filed limited

admissions of liability in this case. LDNR submitted the MFP that has been

approved, adopted, and affirmed. The MFP has been funded by Chevron and SNG.

Therefore, we find that the trial court did not err in granting summary judgment in

favor of BP America and dismissing Mr. Bailey' s claims for breach of implied

obligations against BP America. Our de novo review reveals BP America is entitled

to summary judgment as a matter of law.

10

ANSWER TO APPEAL

BP America filed an answer to Mr. Bailey' s appeal, requesting this court to

affirm the August 29, 2022 judgment of the trial court on the basis that Mr. Bailey' s

claims for excess remediation damages are barred under Act 312, as interpreted by

the Louisiana Supreme Court in LL& E II. BP America makes this request in light

of the trial court' s reasons for judgment wherein the trial court opined that LL& E

II applied only to the 2006 version of Act 312, not the 2014 version. We note that

a judgment and reasons for judgment are separate and distinct and that appeals are

taken from the judgment, not the written or oral reasons for judgment. Harris v.

Breaud, 2017- 0421 ( La. App. l st Cir. 2127118), 243 So. 3d 572, 577. Appellate

courts review judgments and, where the appellate court believes that the trial court

reached the proper result, the judgment will be affirmed. Id. Thus, our review is

limited to the actual judgment signed by the trial court. Considering our extensive

discussion interpreting and applying the 2014 amendment of Act 312, we find that

the relief sought in BP America' s answer to this appeal should be denied as moot.

See Cook v. Rigby, 2019- 1475 ( La. App. 1st Cir. 11125120), 316 So. 3d 482, 488,

writ denied, 2020- 01493 ( La. 319121), 312 So. 3d 588.

CONCLUSION

For the assigned reasons, we deny BP America Production Company' s answer

to this appeal as moot. We hereby affirm the trial court' s August 29, 2022 judgment

granting summary judgment in favor of BP America Production Company and

dismissing all claims of James J. Bailey, III, individually and as the representative

of the Successions of Willie Palfrey Foster and. Fairfax Foster Bailey, against BP

America Production Company. All costs of this appeal are assessed to James J.

Bailey, III, individually and as the representative ofthe Successions of Willie Palfrey

Foster and Fairfax Foster Bailey.

AFFIRMED; ANSWER TO APPEAL DENIED AS MOOT.

11

LOUISIANA WETLANDS, LLC NUMBER: 2023 CA 0564
AND NEW 90, LLC

VERSUS FIRST CIRCUIT

ENERGEN RESOURCES
CORPORATION, CHEVRON COURT OF APPEAL
USA, INC., SOUTHERN NATURAL
GAS, LLC, EP ENERGY E& P
COMPANY, LP, AND BRAMMER
ENGINEERING STATE OF LOUISIANA

lcp

WELCH, J., dissenting.

I respectfully disagree with the majority' s decision to affirm the trial court' s

summary judgment in favor of BP America, dismissing James Bailey' s claims

against BP America for unreasonable and excessive operations. Not only did the

trial court inappropriately grant summary judgment on an issue that was not properly

raised in BP' s motion for summary judgment, but the majority' s decision, on de novo

review to affirm that summary judgment is legally incorrect and based on the

improper interpretation of La. R.S. 30: 29 ( commonly referred to as " Act 312"), as

amended, and the inappropriate use of a most feasible plan (" MFP") for remediation

by a non- party to that MFP. Therefore, I would reverse the judgment of the trial

court and remand to the trial court for further proceedings.

By way of factual background, the oil and gas operations on the Bailey family

property that are at issue in this appeal were conducted pursuant to a 1948 lease by

the Bailey family to Pan- American. BP, Chevron, and SNG were each a successor

to Pan -American' s lessee interest under the 1948 lease, but only Chevron and SNG

conducted operations under the 1948 lease. Chevron and SNG admitted to limited

liability under La. R.S. 30: 29 for some— but not all— of the environmental damage

to the property, and were referred to the Department of Natural Resources to create

an MFP. Chevron and SNG did not, however, admit to liability for any of the

plaintiffs private claims. In addition, it should be noted that there is no written

release by the Bailey family that would discharge Pan -American' s ( and therefore

BP' s) obligations as the original lessee under those assignments.

BP, in its motion for summary judgment that is at issue in this appeal, argued

that because Mr. Bailey' s remedies in excess of the MFP remediation must be

premised under La. R.S. 30: 29( M)( 1)( c) for excessive and unreasonable operations,

then the implied lease obligations against it should be dismissed because BP' s

predecessor, Pan-American, did not engage in any physical operations of its own

prior to assignment to Chevron and SNG. However, the trial court did not address

this issue and instead, granted summary judgment dismissing Mr. Bailey' s

remaining claims against BP on the basis that it had previously dismissed BP from

all tort claims and that the claims with regard to damages caused by unreasonable or

excessive operations were tort claims.

Louisiana Code of Civil Procedure article 966( F)( 1) mandates that " summary

judgment may be rendered or affirmed only as to those issues set forth in the motion

for consideration by the trial court at that time." Furthermore, it is legal error for the

trial court to grant summary judgment on the basis of an issue not raised by the

parties. See Rhodes v. AMKO Fence & Steel Co., L.L.C., 2021- 0019 ( La. App.

5' Cir. 10/ 28/ 21, 329 So. 3d 1112, 1113; Cutrone v. English Turn Property

Owners Association, Inc., 2019- 0896 ( La. App. 4" Cir. 314/ 20), 293 So. 3d 1209,

1218. Thus, the trial court herein legally erred in granting summary judgment on an

in issue that was not raised in the motion for summary judgment. Nonetheless,

despite the trial court' s legal error in this regard, the standard of review on summary

judgment requires this Court to conduct a de nova review of BP' s motion for

summary judgment and to determine whether there is any genuine issue of material

fact and whether BP was entitled to judgment as a matter of law dismissing Mr.

2

Bailey' s claims against it for breach of the implied lease obligation under the 1948

lease to not operate excessively and unreasonably. See Libertas Tax Fun 1, LLC

v. Laiche, 2021- 0330 (La. App. V Cir. 12122121), 340 So. 3d 236, 242- 243 n. 6, writ

denied, 2022- 00160 ( La. 4112122), 336 So. 3d 82.

Louisiana Revised Statutes 30: 29, as amended, provides, in pertinent part:

H. ( 1) This Section shall not preclude an owner of land from pursuing
a judicial remedy or receiving a judicial award for private claims
suffered as a result of environmental damage, except as otherwise

provided in this Section. Any award granted in connection with the
judgment for additional remediation in excess of the requirements of
the feasible plan adopted by the court is not required to be paid into the
registry of the court.

2) Damages that may be awarded in an action under this Section shall
be governed by the provisions of Subsection M of this Section. This
Section shall not be interpreted to create any cause of action or to
impose additional implied obligations under the mineral code or arising
out of a mineral lease.

M. ( 1) In an action governed by the provisions of this Section, damages
may be awarded only for the following:

a) The cost of funding the feasible plan adopted by the court.

b) The cost of additional remediation only if required by an express
contractual provision providing for remediation to original condition or
to some other specific remediation standard.

c)The cost of evaluating, correcting or repairing environmental
damage upon a showing that such damage was caused by unreasonable
or excessive operations based on rules, regulations, lease terms and
implied lease obligations arising by operation of law, or standards
applicable at the time of the activity complained of, provided that such
damage is not duplicative of damages awarded under Subparagraph ( a)
or ( b) of this Paragraph.

d) The cost of nonremediation damages.

This statute is clear and unambiguous— La. R.S. 30: 29( H) provides that

damages may be awarded as per La. R.S. 30:29( M)( 1), which lists them as: the

regulatory level MFP (La. R.S. 30: 29( M)( 1)( a)), additional remediation pursuant to

an express contractual provision ( La. R. S. 30: 29( M)( 1)( b)), the cost of repairing

3

environmental damage caused by unreasonable and excessive operations based on

implied lease obligations" where not duplicative with the first two categories ( La.

R.S. 30: 29( M)( 1)( c)), and non -remediation damages ( La. R.S. 30: 29(M)( 1)( d)).

In conducting its de nova review of BP' s motion for summary judgment, the

majority points out and relies, in large part, on the fact that SNG and Chevron

admitted responsibility for remediation of the Bailey property according to the court -

approved MFP and that BP never actually drilled or operated any wells on the Bailey

property. The majority then concludes that, given the limit to private damages

described in La. R.S. 30: 29( M)( 1)( b) for " additional remediation" when a

contractual provision explicitly compels that result and absent any contractual

provision in the 1948 lease for additional remediation or a requirement that the Baily

family property be restored to its original condition, Mr. Bailey has no viable claire

against BP for breach of implied obligations under La. 30: 29( M)( 1)( c). I find this

conclusion erroneous— as Mr. Bailey' s claim for damages under La. R. S.

30: 29( M)( 1)( c) is not duplicative of or based on a claim for damages under La. R. S.

3 0: 29( M)( 1)( b).

In addition, the majority has essentially determined that BP should not be

liable on a contract claim for unreasonable and excessive operations because Pan-

American did not itself engage in the operations under the 1948 lease, but such

operations were only conducted by Pan -American' s assignees, who admitted

liability for some of the damages. This is likewise erroneous. There is no support

for the majority' s determination that implied obligations claims require that the

damages be caused by the operations physically performed by the party found

responsible. Rather, under La. R. S. 30: 29( M)( 1)( c), damages may be awarded for

t]he cost of evaluating, correcting or repairing environmental damage upon a

showing that such damage was caused by unreasonable or excessive operations ...."

This statute does not require that those unreasonable or excessive operations be

4

performed by a particular party in order for the damages to be awarded. Indeed, La.

R.S. 30: 29( C)( 1) contemplates any route to legal responsibility for those damages:

If at any time during the proceeding a party admits liability for environmental

damage or the finder of fact determines that environmental damages exists and

determined the party or parties who caused the damage or who are otherwise

legally responsible therefor ...." ( Emphasis added). Thus, this statute does not

abrogate the standards of legal responsibility applicable to original lessees in the

case of a subsequent assignment.

As to the fact that Chevron and SNG admitted limited liability under La. R. S.

30: 29 ( and La. C. C. P. art. 1563), and were referred to the LDNR to create a MFP,

which was later adopted by the trial court, again it should be noted that Chevron and

SNG admitted to liability for some but not all— of the environmental damage, and

they did not admit to liability for any of Mr. Bailey' s private damage claims. While

a party or parties may admit to liability for all or some of the damages claimed by a

plaintiff, it logically follows that only those parties/ claims are subject to the MFP,

and that a non- party to a MFP cannot take advantage of that MFP, and further, that

a plaintiff can still pursue private claims, or even those not covered by the MFP, to

demonstrate that defendants are liable for damages not admitted to by a party. See

State v. Louisiana Land & Exploration Co., 298 So. 3d 296, Hero Lands

Company, LLC v. Chevron USA, Inc., 2023 WL 3579049. Thus, the majority' s

reliance on Chevron and SNG' s MFP, which admitted to liability for some, but not

all of the environmental damage caused, is inappropriate, and to essentially hold that

BP is should be dismissed because certain damages caused by those two parties is

now governed by the MFP is incorrect as a matter of law.

Based on my de novo review of BP' s motion for summary judgment, I find

that BP failed to establish that it was entitled to judgment as a matter of law

5

dismissing Mr. Bailey' s claims against it for breach of the implied lease obligation

under the 1948 lease to not operate excessively and unreasonably.

Thus, I respectfully dissent.

11