Fernen Louis Andrepont v. Chevron USA, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1100

FERNEN LOUIS ANDREPONT, ET AL.

VERSUS

CHEVRON USA, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2008-10045
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters,
Judges.

AFFIRMED.

Stephen B. Murray
Arthur M. Murray
Jessica W. Hayes
Korey A. Nelson
Murray Law Firm
650 Poydras Street, Suite 2150
New Orleans, LA 70130
(504) 525-8100
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Stuart H. Smith
Michael Gregory Stag
Amber E. Cisney
Smith Stagg, L.L.C.
365 Canal Street, Suite 2850
New Orleans, LA 70130
(504) 593-9600
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Warren A. Perrin
Perrin, Landry, Delaunay, Dartez & Ouellet
P.O. Box 53597
Lafayette, LA70505
(337) 233-5832
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fernen Louis Andrepont, et al.

Morgan J. Wells, Jr.
Day M. Peacocke
Stephen M. Larzelere
Evan J. Godofsky
Larzelere Picou Wells Simpson Lonero, LLC
3850 North Causeway Bloulavrd
Two Lakeway Center, Suite 1100
Metairie, LA 70002
(504) 834-6500
COUNSEL FOR DEFENDANT/APPELLEE:
Radke Oil Co., Inc.

Thomas E. Balhoff
Judith R. Atkinson
Carlton Jones, III
Rodell Parsons Koch Blanche Balhoff & McCollister
8440 Jefferson Highway, Suite 301
Baton Rouge, LA 70809-7652
(225) 929-7033
COUNSEL FOR INTERVENOR/APPELLEE:
Office of Conservation
Louisiana Deptartment of Natural Resources
Commissioner of Conservation James Welsh

Charles R. Minyard
P. O. Box 3642
Lafayette, LA 70502
(337) 266-2300
COUNSEL FOR DEFENDANT/APPELLEE:
Apache Corporation

George Arceneaux, III
Jamie D. Rhymes
Penny L. Malbrew
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505
(337) 232-7424
COUNSEL FOR DEFENDANT/APPELLEE:
BP Corporation North America, Inc.

Kyle P. Polozola
Dupuis & Polozola, LLC
P. O. Box 2698
Lafayette, LA 70502
(337) 235-2232
COUNSEL FOR DEFENDANT/APPELLEE:
BP Corporation North America, Inc.

Katie Caswell Cambre
Robert B. McNeal
Mark L. McNamara
James E. Lapeze
Liskow & Lewis
701 Poydras Street, Suite 5000
New Orleans, LA 70139-5099
(504) 581-7979
COUNSEL FOR DEFENDANT/APPELLEE:
ExxonMobil Corporation

Michael R. Phillips
L. Victor Gregoire, Jr.
Esteban Herrera, Jr.
Kimberly K. Hymel
Melissa M. Cresson
Kean, Miller, etc.
P. O. Box 3513
Baton Rouge, LA 70821
(225) 387-0999
COUNSEL FOR DEFENDANT/ APPELLEE:
Chevron USA, Inc., et al.

PETERS, J.

The numerous plaintiffs in this oilfield contamination litigation appeal the

trial court‟s grant of a summary judgment dismissing their claims against one of

the defendants, Radke Oil Company, Inc. For the following reasons, we affirm the

trial court judgment.

DISCUSSION OF THE RECORD

The plaintiffs are individual owners of immovable property located in

Acadia Parish, Louisiana, located near the historic Jennings Field, the site of the

first oil production in Louisiana. This litigation began on January 16, 2006, when

the plaintiffs, Fernen Louis Andrepont, Stacy H. Britt, Barbara Miller Chapman,

Glenn D. Daigle, Sr., Anita D. Decker, the Fruge Children Trust, Raven Gotte, Jr.,

Carroll Hebert, David Wayne Hebert, Norman Hebert, Aulden R. Miller, Kenneth

L. Miller, Jr., Steven J. Simar, and Patricia A. Vidrine, filed suit against twelve

named defendants 1 seeking damages for the contamination of their properties

caused by oil and gas exploration in the nearby Jennings Field. Only one of the

twelve defendants, Radke Oil Company, Inc. (Radke), is involved in this appeal.

In their petition, the plaintiffs asserted their ownership of individual tracts of

immovable property located in Sections 42 and 43, Township 9 South, Range 2

West, in Acadia Parish. They alleged that Radke and the other defendants, in

conducting oil and gas drilling and production activities on or near their properties,

had in the past utilized unlined earthen pits for the storage of oilfield wastes, and

this utilization resulted in the contamination of their properties. They further

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The named defendants are Chevron U.S.A. Inc., successor in interest to Gulf Oil
Company and Texaco, Inc.; Exxon Mobil Corporation, successor in interest to Exxon
Corporation, Humble Oil & Refining Company, and Superior Oil Company; Radke Oil
Company, Inc.; Great Southern Oil & Gas Company, Inc.; EOG Resources, Inc.; BP Corporation
North America Inc., successor in interest to Yount Lee Oil and Amoco Production Company;
Shell Oil Company; Kerr-McGee Oil and Gas Corporation, successor in interest to Sun
Exploration-Production; Apache Corporation; Source Petroleum, Inc.; L&L Oil and Gas Services,
Inc.; and Denovo Oil & Gas, Inc.

asserted that despite knowing from the 1930s, that the use of unlined pits led to

surface and subsurface contamination, the defendants continued using these pits for

the storage of oilfield wastes, which included naturally occurring radioactive

materials, technically enhanced radioactive materials, drilling fluids, chlorides,

hydrocarbons, and heavy metals. According to the plaintiffs‟ allegations, other

contamination to their properties was caused by the “leaks, spills, and other

discharges from oil wells, pipelines, tank batteries, plants and other equipment

owned or operated by” defendants. The plaintiffs alleged that although the

defendants knew or should have known that their day-to-day operations would lead

to contamination, they refused to remove the pollution and toxic wastes caused by

their endeavors and chose, instead, to hide it. This, the plaintiffs alleged, allowed

the pollution and toxic waste to migrate and spread to the soils, surface waters, and

groundwater of their properties. Based on the above stated facts, the plaintiffs

sought monetary damages based on theories of negligence, trespass, strict liability,

strict liability for ultra-hazardous activity, and breach of contract and obligations as

lessee.

The early procedural aspects of this litigation involved consideration of

numerous exceptions filed in response to the plaintiffs‟ petition and resulted in the

plaintiffs‟ pleadings being amended extensively. 2 The issue giving rise to this

appeal was raised by Radke in a motion for summary judgment filed on September

20, 2011. Following a February 2, 2012 hearing, the trial court granted Radke‟s

motion and dismissed the plaintiffs‟ claims against it. The trial court executed a

judgment to this effect on the same day as the hearing, and the plaintiffs perfected

this appeal. In their appeal, they raise two assignments of error:

2
These amendments included the addition of other parties to the litigation.
2

1. The judgment is contrary to law because the trial court
improperly concluded that Radke met its initial burden on
summary judgment.

2. The judgment is contrary to law because the trial court
improperly imposed a heightened evidentiary standard on the
Plaintiffs when it rejected the evidence submitted by the
Plaintiffs as insufficient to create an issue of material fact.

OPINION

The law pertaining to summary judgment was exhaustively reviewed by the

supreme court in the recent case of Schultz v. Guoth, 10-343, pp. 5-7 (La. 1/19/11),

57 So.3d 1002, 1005-06 (alteration in original):

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4
(La.2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A. Ins. Co., 06-
363, p. 3 (La.11/29/06), 950 So.2d 544, 546, see La.Code Civ. Proc.
art. 966. “A summary judgment is reviewed on appeal de novo, with
the appellate court 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
movant is entitled to judgment as a matter of law.” Samaha v. Rau,
07-1726, pp. 3-4, 977 So.2d at 882-83.

A motion for summary judgment will be granted “if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to material fact, and that mover is entitled to judgment as a
matter of law.” La.Code Civ. Proc. art. 966(B). This article provides
that “the summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action . . . . The
procedure is favored and shall be construed to accomplish these
ends.” La.Code Civ. Proc. art. 966(A)(2). La.Code Civ. Proc. art.
966(C)(2) sets forth the burden of proof in summary judgment
proceedings, providing:

The burden of proof remains with the movant. However,
if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for
summary judgment, the movant's burden on the motion
does not require him to negate all essential elements of
the adverse party‟s claim, action, or defense, but rather to
point out to the court that there is an absence of factual
support for one or more elements essential to the adverse
party‟s claim, action, or defense. Thereafter, if the
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adverse party fails to produce factual support sufficient to
establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of
material fact.

This provision initially places the burden of producing evidence
at the hearing on the motion for summary judgment on the mover,
who can ordinarily meet that burden by submitting affidavits or by
pointing out the lack of factual support for an essential element in the
opponent‟s case. Samaha v. Rau, 07-1726, p. 4, 977 So.2d at 883.
“At that point, the party who bears the burden of persuasion at trial
(usually the plaintiff) must come forth with evidence (affidavits or
discovery responses) which demonstrates he or she will be able to
meet the burden at trial . . . . Once the motion for summary judgment
has been properly supported by the moving party, the failure of the
non-moving party to produce evidence of a material factual dispute
mandates the granting of the motion.” Id. (quoting Wright v.
Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058,
1069-70).

Radke attached to its September 20, 2011 motion for summary judgment, a

memorandum in support of the motion; copies of answers to interrogatories it

propounded to the plaintiffs; thirty-one pages of requests for production

propounded to the plaintiffs; and the affidavit of Lee A. Day, a senior geologist

with Toxicological and Environmental Associates, Inc. in Baton Rouge, Louisiana.

In their answers to the interrogatories, the plaintiffs acknowledged that they

had no evidence of leaks, spills, or discharges attributable to operations by Radke

nor did they have any information to suggest that Radke ever disposed of oilfield

waste in unlined earthen pits on or near any of their property. Additionally, they

acknowledged that they had no evidence to establish that Radke knew or should

have known of pollution activity or that Radke participated in any cover up of such

activity. In response to Radke‟s requests for production, the plaintiffs produced no

evidence or documentation which might tend to prove any element of the fault

against Radke asserted in their pleadings.

4

Mr. Day stated, in his affidavit, that using his twenty-two years of

experience in geological, hydrogeological, and environmental areas, he researched

and mapped the location of the sixty-six Radke wells identified by the plaintiffs in

their pleadings, as well as numerous other wells located near or adjacent to the

plaintiffs‟ properties. Based on his research, Mr. Day determined that none of the

Radke wells were located in Sections 42 or 43, Township 9 South, Range 2 West,

Acadia Parish, Louisiana, but rather, were located in Sections 41, 46, 47, and 48 of

Township 9 South, Range 2 West. He determined that the closest Radke well to

the plaintiffs‟ property in Section 42 is no closer than 0.95 miles from the

westernmost parcel and as far as 0.39 miles from the easternmost parcel. With

regard to the plaintiffs‟ property in Section 43, he found that the closest Radke well

is no closer than 1.1 miles from the westernmost parcel and as far as 0.95 miles

from the easternmost parcel. Furthermore, based on information he obtained from

the Louisiana Department of Natural Resources (DNR), Mr. Day found that 136

wells, operated by parties other than Radke, were located within the 0.95 mile

stretch between the closest Radke well and the easternmost boundary of the

plaintiffs‟ properties. Additionally, he noted that approximately nineteen wells

were located on or immediately adjacent to the plaintiffs‟ properties, and a total of

849 wells were operated in the land stretching from the easternmost Radke well

and the westernmost portion of the plaintiffs‟ properties.

Mr. Day voiced no opinion concerning the possibility of leakage from

storage facilities on the plaintiffs‟ lands or of leakage from pipes or flow lines

transporting the petroleum or waste product from the producing wells to the

storage areas identified as being (or having been) on the plaintiffs‟ lands or in close

proximity thereto. Instead, he limited his opinion to the plaintiffs‟ assertions of

5

leaks, spills, and discharges from the well locations causing damage to their

property. In that regard, he opined that no spill or leak from the Radke wells

would affect the plaintiffs‟ properties because these two areas are situated on either

side of the lowest elevation in the Jennings Field, which is approximately five to

ten feet above mean sea level. He stated that the plaintiffs‟ properties are located

at approximately twenty-five to thirty feet above mean sea level. Mr. Day further

determined that based on the north to northwesterly flow of shallow groundwater

in the area of the plaintiffs‟ properties, the groundwater would flow towards the

Radke wells rather than from the Radke wells towards the plaintiffs‟ properties.

On January 17, 2012, the plaintiffs filed a brief in opposition to the summary

judgment motion and attached the affidavit of Gregory W. Miller, a geologist and

principal of ICON Environmental Service, Inc., a Baton Rouge, Louisiana

company. In his affidavit, Mr. Miller asserted that he is a geologist with over

twenty years of experience and that he was hired by the plaintiffs to determine

whether the years of oil and gas exploration had caused soil and groundwater

contamination of their properties. He did not specifically respond to Mr. Day‟s

opinion concerning spills at the well sites. Instead, he asserted that he had

reviewed historical aerial photographs, historical pit maps, and data from a related

litigation to conclude that the contaminated condition of the plaintiffs‟ properties

had been caused not by the oil and gas activity, but through the storage of oil and

production wastes. Mr. Miller explained that both the oil and production waste

produced through the drilling process were stored in earthen holding pits or tanks

located a significant distance away from the production field in order to avoid

encroachment on future well locations in the field. The oil and/or production

waste was transported to the holding pits from the well site through six-inch

6

diameter surface flow lines. He determined this historical fact by overlaying 2007

aerial photographs of the plaintiffs‟ properties with historical pit maps.

Based on his study, Mr. Miller confirmed the presence of two holding pits

on the plaintiffs‟ properties and four located adjacent to their properties. With

these locations in mind, he then studied the location of flow lines indicated on the

historic maps and determined that they connected the pits to the production areas

located east of Highway 97. Mr. Miller asserted that he then plotted the locations

of several of Radke‟s wells and determined that the flow lines to the six earthen

pits “appear to originate from wells operated by Radke, among others.” He

summarized his findings by stating, “In my opinion, these flow lines transported

oil production with some quantity of produced salt water from the Radke wells to

these pits for storage[,]” and “In my opinion, the storage of oil production in these

pits would result in contamination of the surrounding areas.” Two days after the

plaintiffs filed their opposition to the summary judgment motion, Radke filed a

response to the opposition wherein it attached a second affidavit of Mr. Day. In

this affidavit, Mr. Day pointed out that the maps relied on by Mr. Miller, to support

his opinion that the flow lines from the earthen pits originated, in part, from the

Radke Wells, contained no markings referencing the locations of the earthen pits,

the flow lines, or the Radke wells at issue. He also noted that Mr. Miller

concluded only that “these flowlines appear to originate from wells operated by

Radke, among others[.] (Emphasis in affidavit.)

Mr. Day also directed the trial court to a reference publication identified as

the Louisiana Geological Survey‟s September 2001 Public Information Series No.

9 document, entitled Jennings Field – the birthplace of Louisiana’s Oil Industry.

In referencing this publication, he attached copies of pages from the document

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which clearly established the presence of large earthen pits in the field. According

to Mr. Day, that document establishes that there were two periods of oil

exploration in the Jennings Field: 1903 to 1912; 1939 to 1950. Based on the DNR

database, he estimated that 946 wells were drilled in the Jennings Field between

1903 to 1912, and he acknowledged the presence of large earthen pits used for the

storage of oil. A statement from the reference publication asserts, “Oil storage was

often a problem during this period. A storage tank is shown in the left foreground,

but larger volumes of oil were often stored in huge open pits. Armed guards would

patrol the reservoirs, and ducks would sometimes land in these apparent „lakes‟ of

oil.”

Mr. Day also directed the trial court‟s attention to a book entitled Oil Field

Trash: Life and Labor in the Oil Patch by Bobby D. Weaver. He attached four

pages from the book3 relating to the history of oil and production waste storage

wherein Mr. Weaver wrote that “[b]y mid-1917 open pit oil storage on the Gulf

Coast was credited with creating a 2 percent to 8 percent seepage, which amounted

to a loss of 8,000,000 barrels of oil per year.” According to Mr. Weaver‟s book,

“[t]he use of these massive open storage pits continued to some extent until

1919[.]” At that time, according to Mr. Weaver, the Texas Railroad Commission

“issued a general ban on the practice of storing light oils in open earthen tanks.”

The excerpts from Mr. Weaver‟s book make no mention of when the practice was

banned in Louisiana or whether the ban applied to production waste as well; nor

did it address the pollution issue. It simply suggested that the practice of using

massive open storage pits was stopped because of the amount of valuable oil that

was being lost in the process. In the attached two pages, Mr. Weaver stated that

3
The first two pages provide a partial history of oil storage problems along the “Gulf
Coast,” and the other two pages list the references Mr. Weaver used to reach the facts asserted on
those two pages.
8

earthen pits were initially replaced by concrete tanks because of the shortage of

steel due to World War I activity, and these type of storage tanks were

continuously used in to the mid-1920‟s. However, by 1919, they were starting to

be replaced on a regular basis with steel tanks.

Using the information from the two pages of Mr. Weaver‟s book, Mr. Day

made the following statement in his affidavit:

Due to seepage loss at a rate from 2% to 8%, earthen pits for storage
of oil were discontinued in the Gulf Coast prior to 1920. Storage
tanks were being constructed of steel, concrete or wood and were used
extensively beginning in the early 1920‟s. By the mid 1930‟s to early
1940‟s, steel had totally replaced concrete or wood for storage tank
construction[.]

We must note, however, that Mr. Day‟s opinion is based solely on Mr. Weaver‟s

research which makes no mention of the conditions in the Jennings Field and

appears to be limited to the situation in the Texas oil fields.

While basing the opinion cited above on information which may or may not

have been applicable to the Jennings Field, Mr. Day did not stop his research at

that point. He asserts in his affidavit that he also researched the sixty-six wells

listed by the plaintiffs in their second-amended petition as being operated by

Radke using DNR historical records, and he noted that Radke‟s first appearance in

the Jennings Field was in 1947, when it commenced operations on six wells: the

Jennings Oil Co-Heywood#1; the Radke Oil-Jules Clement #34; the Clement #12;

the Jennings Oil Co-Heywood #3; the Jennings Oil-Clement-Heywood #5; and the

Clement JOC #31. Based on his research, he concludes that by the time Radke

entered the Jennings Field in 1947, steel tanks were being used for oil storage; thus,

the prior existing flow lines and earthen pits which allegedly contaminated the

plaintiffs‟ properties were never used by Radke.

9

After considering the arguments of counsel and reviewing the record before

it, the trial court concluded that the plaintiffs did not “produce factual support

sufficient to establish that [they] will be able to satisfy [their] burden of proof at

trial” and, therefore, “there is no genuine issue of material fact.” La.Code Civ. P.

art. 966(C)(2). While providing no specific reasons for judgment, the trial court

noted, in the verbal exchanges during the hearing on the motion, that there was an

absence of proof concerning who maintained the pits and mishandled the product

at the time of contamination and that Mr. Miller‟s assertion that the flow lines only

appeared to originate from wells operated by Radke was not sufficient to establish,

by a preponderance of the evidence, that they did in fact originate from those wells

or that Radke was responsible for any pollution at the time it occurred.

In their first assignment of error, the plaintiffs assert that the evidence

initially submitted by Radke in support of its motion was not sufficient to cause the

burden of proof to shift to them as required by La.Code Civ.P. art. 966(C)(2). We

disagree. While Mr. Day‟s affidavit addressed only the plaintiffs‟ claims

associated with spills, leakage, and/or discharges from the well locations not

situated on the plaintiffs‟ properties, the answers to interrogatories and responses

(or lack of responses) to Radke‟s requests for production established that the

plaintiffs had, at that time, not provided any proof of Radke‟s liability for the

claims asserted. The showing made by Radke was sufficient to cause the burden to

shift to the plaintiffs, as required by La.Code Civ.P. art. 966(C)(2). We find no

merit in this assignment of error.

Next, the plaintiffs assert that the trial court applied a heightened evidentiary

standard by rejecting their assertion that their response to the motion for summary

10

judgment established a genuine issue of material fact. We find no merit in this

assignment of error as well.

While La.Code Civ.P. art. 966(C)(2) speaks in terms of the nonmovant being

able to “satisfy his evidentiary burden of proof at trial,” this does not require a

determination of fact by the trial court. It simply requires the nonmovant to

present evidence that if believed by the trier of fact, would allow he or she to

prevail at a trial on the merits. In this case, and without considering Mr. Day‟s

second affidavit, we find that nothing presented by the plaintiffs reaches that

threshold. At best, Mr. Miller‟s affidavit establishes that the flow lines “appear” to

originate from wells operated by Radke. This assertion, standing alone and if

believed by the trier of fact, does not satisfy the plaintiffs‟ preponderance burden

of proof. This is particularly true given the fact that it does not establish whether

Radke was an operator of any of the wells at the time the oil and/or waste material

was being transported through the flow lines or whether it assumed any

responsibility for the actions of previous operators. We find no merit in this

assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the

motion for summary judgment of Radke Oil Company, Inc., and dismissing the

claims of the plaintiffs against it. We assess all costs of this appeal to the plaintiffs,

Fernen Louis Andrepont, Stacy H. Britt, Rhonda Parsley Burger, Barbara Miller

Chapman, Glenn D. Daigle, Sr., Anita D. Decker, the Fruge Children Trust, Raven

Gotte, Jr., Carroll Hebert, David Wayne Hebert, Norman L. Hebert, Debra Lois

Ivan, Aulden R. Miller, Kenneth L. Miller, Jr., Mona Benoit Parsley, Steven J.

Simar, and Patricia A. Vidrine.

11

AFFIRMED.

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