The Sweet Lake Land and Oil Company v. Oleum Operating Company, L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-464

THE SWEET LAKE LAND AND OIL COMPANY, ET AL.

VERSUS

OLEUM OPERATING COMPANY, L.C., ET AL.

**********

ON SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2010-1272
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

STAY LIFTED. WRIT DENIED.

Guy E. Wall
Paul E. Bullington
Jonathon R. Cook
Sara Lewis
Wall, Bullington & Cook, LLC
540 Elmwood Park Blvd
Harahan, LA 70123
(504) 736-0347
COUNSEL FOR PLAINTIFF-RESPONDENT:
Sweet Lake Land & Oil Co., LLC

James P. Doré
Alan J. Berteau
Shannan Sweeney Rieger
Deborah J. Juneau
R. Benn Vincent, Jr.
Matthew B. Smith
Hattie V. Guidry
Kean Miller LLP
P. O. Box 3513
Baton Rouge, LA 70821
(225) 387-0999
COUNSEL FOR DEFENDANTS-APPLICANTS:
Sohio Petroleum Company
BP Exploration & Oil, Inc.
BP Exploration, Inc.
BP Products North America, Inc.

PICKETT, Judge.

Defendants-Relators, BP Products North America, Inc.; BP Exploration &

Oil, Inc.; BP Exploration, Inc.; and Sohio Petroleum Company (“BP”), seek a

supervisory writ from the judgment of the trial court which denied their Motion for

Adoption of LDNR’s Most Feasible Plan Pursuant to La.R.S. 30:29 and ordered

LDNR to submit a final plan by July 8, 2017.

STATEMENT OF THE CASE

This case involves an oilfield contamination lawsuit that is governed by the

2012 version of La.R.S. 30:29, which was originally enacted by 2006 La. Acts 312

(Act). The plaintiff, the Sweet Lake Land & Oil Company, LLC, (Sweet Lake)

filed suit against BP, among other defendants, alleging environmental damage to

its property caused by decades of oil and gas exploration activities. After trial,

conducted from May 11 through May 27, 2015, the jury found BP 100% liable for

the environmental damage. On September 11, 2015, the trial court referred the

case to the Louisiana Department of Natural Resources, Office of Conservation,

(LDNR) for a public hearing and the development of the most feasible plan under

La.R.S. 30:29. The judgment also ordered BP to submit to LDNR a plan to

“remediate to applicable regulatory standards the contamination that resulted in the

environmental damage to the Property.” LDNR held a public hearing from April

25 through April 28, 2016.

Based upon the evidence presented and in response to questions raised by

the LDNR panel, the LDNR issued and filed in the trial court record its “Most

Feasible Plan and Written Reasons in Support as Required by La.R.S. 30:29”

(LDNR plan) on October 3, 2016. Thereafter, on October 16, 2016, BP filed its

motion for adoption of LDNR’s plan pursuant to La.R.S. 30:29. Sweet Lake

opposed the adoption, arguing the motion was premature because the plan was not

a “final plan” to clean up the property and was not even a “final plan” to evaluate

the property. In reply, BP argued that the LDNR plan was a final plan, as La.R.S.

30:29 specifically contemplates that the final most feasible plan can require

evaluation only, and the LDNR plan does much more.

At the February 15, 2017 hearing, the trial court denied BP’s motion,

ordering LDNR to perform additional work because the plan was only partially a

remediation plan. The trial court’s greatest concerns were those “parts” or areas of

contamination, namely the groundwater and flowlines, where LDNR admittedly

did not have enough information to formulate a remediation plan. In its written

judgment, signed on May 9, 2017, the trial court specifically required the final plan

to address those questionable areas and provide a remedial plan of action for same:

a. Address groundwater remediation on the property. . . . The
final remediation plan may contain clean up options that
depend upon the results of additional information and should
be accompanied by an estimate of the cost to obtain the
additional information. If LDNR is unable to provide the
foregoing final remediation plan, it shall provide the Court
with information to help the Court better order LDNR to do
what needs to be done;

b. Specify the regulation or standard for each clean up activity so
that the Court can enforce it;

c. Specify the flowlines on the property and include a remediation
plan for flowlines that must be removed; and

d. State whether a response or command was received from any
other agency to whom the October 3, 2016 LDNR plan was
submitted pursuant to La. R.S. 30:29[C](3)(b)(i) and (ii).

The Department shall submit this final remediation plan within 60
days of this order but the Department may move the Court for an
extension of this deadline.

BP filed this writ application seeking “prompt” review of the trial court’s

rejection of LDNR’s most feasible plan. We granted the writ for full briefing and

to issue an opinion and stayed the trial court’s order directed at the LDNR. Sweet

2

Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., an unpublished writ

disposition bearing docket number 17-464 (La.App. 3 Cir. 6/13/17).

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),

“Irreparable injury continues to be an important (but not exclusive) ingredient in an

application for supervisory writs.” (Citation omitted.) A court of appeal has

plenary power to exercise supervisory jurisdiction over trial courts and may do so

at any time, according to the discretion of the court. When the trial court’s ruling

is arguably incorrect, a reversal will terminate the litigation, and there is no dispute

of fact to be resolved, judicial efficiency and fundamental fairness to the litigants

dictate that the merits of the application for supervisory writs should be decided in

an attempt to avoid the waste of time and expense of a possibly useless future trial

on the merits. Herlitz Const. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396

So.2d 878 (La.1981) (per curiam).

DISCUSSION

The proper interpretation and application of statutory provisions are subject

to de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate

Facility, Inc., 06-582 (La. 11/29/06), 943 So.2d 1037. The fundamental question

in all cases of statutory interpretation is legislative intent and the ascertainment of

the reason or reasons that prompted the Legislature to enact the law. In re

Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122. “When a law is clear

and unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written and no further interpretation may be made in search of
3

the intent of the legislature.” La.Civ.Code art. 9. Though the language of the law

may be susceptible to different meanings, it must be interpreted as having the

meaning that best conforms to the purpose of the law, and the words of law must

be given their generally prevailing meaning. La.Civ.Code arts. 10 and 11. The

meaning of ambiguous terms must be sought by examining the context in which

they occur and the text of the law as a whole, and laws on the same subject matter

must be interpreted in reference to each other. La.R.S. 1:3; La.Civ.Code. arts. 12

and 13. “Courts should give effect to all parts of a statute and should not give a

statute an interpretation that makes any part superfluous or meaningless, if that

result can be avoided.” Boyter, 756 So.2d at 1129. “If application of the foregoing

rules of interpretation fails to illuminate definitively the legislature’s intent, only

then should the rule of strict construction apply to the interpretation of laws in

derogation of common rights . . . .” Hutchinson v. Patel, 93-2156 (La 5/23/94),

637 So.2d 415, 421.

Through its enactment of La.R.S. 30:29, the legislature established a

sequenced protocol for the management of cases alleging environmental

contamination and the remediation of contaminated properties. Once the factfinder

determines that environmental contamination has occurred and that defendant

caused or is legally responsible for such damage, La.R.S. 30:29(C)(emphasis

added) sets forth the remediation protocol:

C.(1) If at any time during the proceeding a party admits
liability for environmental damage or the finder of fact determines
that environmental damage exists and determines the party or
parties who caused the damage or who are otherwise legally
responsible therefor, the court shall order the party or parties who
admit responsibility or whom the court finds legally responsible for
the damage to develop a plan or submittal for the evaluation or
remediation to applicable regulatory standards of the contamination
that resulted in the environmental damage. The court shall order that
the plan be developed and submitted to the department and the court
within a time that the court determines is reasonable and shall allow
4

the plaintiff or any other party at least thirty days from the date each
plan or submittal was made to the department and the court to review
the plan or submittal and provide to the department and the court a
plan, comment, or input in response thereto. The department shall
consider any plan, comment, or response provided timely by any
party. The department shall submit to the court a schedule of
estimated costs for review of the plans or submittals of the parties by
the department and the court shall require the party admitting
responsibility or the party found legally responsible by the court to
deposit in the registry of the court sufficient funds to pay the cost of
the department’s review of the plans or submittals. Any plan or
submittal shall include an estimation of cost to implement the plan
(2)(a) Within sixty days from the last day on which any party
may provide the department with a plan, comment, or response to a
plan as provided in Paragraph (C)(1) of this Section, the department
shall conduct a public hearing on the plan or plans submitted. When
a public hearing is held following a limited admission pursuant to the
Code of Civil Procedure Article 1563, then the department shall not
conduct an additional public hearing pursuant to this Section for the
same environmental damage. Within sixty days of the conclusion of
the hearing, the department shall approve or structure a final plan,
or if applicable, a preliminary plan pursuant to Subparagraph
(C)(3)(b) of this Section, based on the evidence submitted which the
department determines to be the most feasible plan to evaluate or
remediate the environmental damage and protect the health, safety,
and welfare of the people. The department shall issue written reasons
for the plan it approves or structures. On motion of the department, for
good cause shown, the court may grant the department additional
time, not to exceed sixty days, within which to either conduct the
hearing or approve a plan with reasons.
(b) 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. The feasible
plan issued by the department shall contain a signed affidavit of
compliance with this restriction. Any comments provided by an
agency to the department shall also contain a signed affidavit of
compliance with this restriction.
(3)(a) The department shall use and apply the applicable
regulatory standards in approving or structuring a plan that the
department determines to be the most feasible plan to evaluate or
remediate the environmental damage.
(b)(i) If the department preliminarily approves or structures a
preliminary plan that requires the application of regulatory
standards of an agency other than the department or that provides
5

an exception from the department’s standards, within fifteen days of
such preliminary structuring or approval, the department shall
submit the plan to the Department of Agriculture and Forestry, the
Department of Environmental Quality, and the Department of
Natural Resources for review and comment. Within thirty days after
the department’s submission of the plan to all of the agencies, each
agency may provide written comments regarding the plan. Each
agency providing written comments shall submit a schedule of the
agency’s costs for review of the plan to the court for reimbursement
by the responsible party. Failure of an agency to respond to the
department shall not affect the validity of the plan approved by the
department. The department and agency heads shall coordinate in
order to establish protocol to ensure inter-agency communication
regarding plan development, timely delivery of all proposed plans to
the appropriate agency heads, and timely receipt of all agency
comments back to the department.
(ii) Within thirty days after the receipt of any agency’s written
comments, the department shall file in the court record the final
plan, with written reasons that the department determines to be the
most feasible plan to evaluate or remediate the environmental
damage under applicable regulatory standards, together with any
comments submitted by an agency under Item (i) of this
Subparagraph. Based on the findings of the department, the
department may issue any compliance order it deems necessary to
either the operator of record or, where applicable, a party found
responsible or admitting responsibility for implementing the most
feasible plan to evaluate or remediate the environmental damage
under applicable regulatory standards. If a compliance order is issued
against the responsible party who is not the current operator of record,
the responsible party shall give the current operator of record notice of
the compliance order within thirty days of the responsible party’s
receipt of the compliance order.
(4) The plan approved by the department for submission to the
court shall not be considered to be an adjudication subject to appellate
review pursuant to R.S. 49:964 or R.S. 30:12.
(5) The court shall adopt the plan approved by the
department, unless a party proves by a preponderance of the
evidence that another plan is a more feasible plan to adequately
protect the environment and the public health, safety, and welfare.
The court shall enter a judgment adopting a plan with written reasons
assigned. Upon adoption of a plan, the court shall order the party or
parties admitting responsibility or the party or parties found legally
responsible by the court to fund the implementation of the plan.
(6)(a) Any judgment adopting a plan of evaluation or
remediation pursuant to this Section and ordering the party or parties
admitting responsibility or the party or parties found legally
responsible by the court to deposit funds for the implementation
thereof into the registry of the court pursuant to this Section shall be
considered a final judgment pursuant to the Code of Civil Procedure
Article 2081 et seq., for purposes of appeal.

6

(b) Any appeal under this Section shall be a de novo review and
shall be heard with preference and on an expedited basis.
(c) The appellate court may affirm the trial court’s adoption of a
plan or may adopt a feasible plan in conformity with this Section and
shall issue written reasons for its decision.

As contemplated by these provisions, a trial court, upon a finding of

liability/responsibility, (1) refers the matter to LDNR to develop a remediation

plan, (2) orders the responsible party to develop a plan for the “evaluation or

remediation to applicable standards” of the contamination and submit same to

LDNR and the court, and (3) allows the plaintiff and other parties to review the

plan submitted by the responsible party and to provide to LDNR and the court a

plan, comment, or input in response thereto. La.R.S. 30:29(C)(1). LDNR then

conducts a public hearing on the submitted plans and either approves one of the

submitted plans or comes up with its own plan. La.R.S. 30:29(C)(2) & (3). If

LDNR’s plan requires the application of another agency’s regulatory standards or

an exception from LDNR’s standards, LDNR must submit its preliminary plan to

the other agencies for review and comment, but failure of an agency to respond

does not affect the validity of the plan. La.R.S. 30:29(C)(3)(b)(i). Thereafter,

LDNR files its final plan with written reasons in the trial court record. La.R.S.

30:29(C)(3)(b)(ii). The statute then mandates: “The court shall adopt the plan

approved by the department, unless a party proves by a preponderance of the

evidence that another plan is a more feasible plan to adequately protect the

environment and the public health, safety, and welfare.” La.R.S. 30:29(C)(5).

BP challenges the trial court’s refusal to adopt the LDNR plan herein as an

error of law in contravention of the mandatory requirements of La.R.S.

30:29(C)(5) cited above. First, BP claims the LDNR plan is, in fact, a final plan

pursuant to the statutory provisions, which include, by their express terms, plans

for “evaluation or remediation.” Under the Act, the plan filed with the trial
7

court—whether an “evaluation” plan, a “remediation” plan, or both—should be

considered the final plan. Therefore, BP argues the trial court had no authority to

unilaterally determine the finality of the plan or to decide the LDNR plan was not

“final” because it was not a “remediation-only” plan.

Second, BP asserts the LDNR plan satisfies the requirements of La.R.S.

30:29 as it was developed by a panel of LDNR personnel embodying a variety of

environmental disciplines that heard the testimony of both parties’ witnesses and

received into evidence documents selected by each party supporting and opposing

the plans submitted. Moreover, it contains the detailed findings on the nature and

extent of any “environmental damage” and the steps required of BP to address that

damage.

Third, BP argues the trial court impermissibly narrowed the definition of a

final most feasible plan to mean a remediation-only plan. In support of its

position, BP cites State v. La. Land & Expl. Co., Inc., 82,162 (15th JDC), in which

Judge Jerome Winsburg (Ad Hoc) adopted an LDNR plan, which included a

significant evaluation component (including evaluation of groundwater and soil).

BP further notes this court denied writs, citing the availability of an appeal remedy.

State v. La. Land & Expl. Co., Inc., 16-914 (La.App. 3 Cir. 11/30/16)

(unpublished).

According to BP, it is undisputed that Sweet Lake did not introduce any

evidence to demonstrate that another plan “is a more feasible plan to adequately

protect the environment and the public health, safety and welfare.” La.R.S.

30:29(C)(5). BP argues the trial court has essentially usurped the primary role

assigned to LDNR by statute and has no authority to unilaterally determine the

finality of a plan in the absence of a showing, by a preponderance of the evidence,

of a more feasible plan.
8

In opposition, Sweet Lake asserts that La.R.S. 30:29 is silent on (1) whether

the trial court must accept a final plan, which calls for further evaluation, when it

ordered a plan of remediation, as well as (2) the participation of the court and the

landowner after a final plan is adopted by the court. The trial court expressed

concern that adopting a plan that merely requires the responsible party to submit a

plan to LDNR to evaluate the property could lead to a remediation plan not

approved by the trial court or with input from the landowner. Sweet Lake notes

that no appellate court has addressed these issues despite BP’s claims that

numerous trial courts have adopted similar plans.

Sweet Lake also submits that an LDNR plan, which orders a responsible

party to prepare a plan of investigation and evaluation of groundwater and soil

contamination in response to a trial court order requiring a remediation plan, is not

a final plan. It further argues the term “evaluation” in La.R.S. 30:29 is used to

cover situations where a party settles and assumes responsibility or formally admits

responsibility before trial because otherwise damages are evaluated at trial.

Moreover, according to Sweet Lake, it does not make sense to issue a final

judgment where LDNR did not even estimate the cost of further evaluation as

La.R.S. 30:29 contemplates the final judgment will order the responsible party to

deposit into the trial court’s registry the funds needed to remediate the property.

Additionally, Sweet Lake asserts the trial court has primary jurisdiction over this

matter, and LDNR’s stamping of a plan as final is not determinative. Until LDNR

submits a remediation plan, the trial court is not required to adopt the LDNR plan

as the most feasible plan under La.R.S. 30:29.

Alternatively, Sweet Lake requests that, in the event this court reverses the

trial court’s interpretation of La.R.S. 30:29, this Court remand the matter to the

trial court for hearing on the final plan in light of this court’s decision. It also
9

claims that it presented to the trial court an alternative to LDNR’s plan; so if this

court grants BP’s writ and determines remand is inappropriate, Sweet Lake

requests that its feasible plan be adopted. Finally, Sweet Lake posits that State v.

La. Land & Expl. Co., Inc., has no relevance to the instant matter as this court

merely denied writs, and the issue therein was whether plaintiff, and not the

responsible party, should perform remediation and evaluation.

This matter raises several res nova issues regarding the authority and roles

of the trial court and LDNR after LDNR files its most feasible plan in the trial

court record. The primary issue is whether the trial court can order LDNR to re-

submit a plan for remediation when the judgment called for such a plan and the

originally submitted plan still requires evaluation. Admittedly, the statute does not

provide for a resubmission to LDNR but, rather, explicitly mandates the adoption

of the plan submitted by LDNR, unless it has been shown by a preponderance of

the evidence that a more feasible plan exists. Herein, although Sweet Lake

apparently submitted a plan, there was no evidence, much less a preponderance of

evidence, as to whether its plan was more feasible than LNDR’s plan. During the

hearing, the experts mainly testified regarding the flaws and proper interpretation

of the LDNR plan.

By the explicit terms of La.R.S. 30:29(C)(2), (3), & (5), the role of LDNR is

to develop the most feasible plan and file the plan in the court record, while the

role of the trial court is to adopt the plan unless evidence supports otherwise.

Nevertheless, both the “court and the department shall retain oversight to ensure

compliance with the plan.” La.R.S. 30:29(F). The problem herein is that the

judgment called for a remediation plan, and no one disputes the LDNR plan is not

strictly remedial because, even with the expert reports, LDNR did not have

sufficient information to formulate a plan for remedial action in certain areas,
10

namely groundwater contamination and flowlines. Furthermore, while La.R.S.

30:29(C)(5)(b) does provide for a preliminary plan, the language of La.R.S

30:29(C)(b)(ii) seems to indicate such a plan becomes final when filed in the court

record and does not provide for preliminary review and comment by the trial court

upon submission. Interestingly, the final sentence of the LDNR plan filed herein

states: “This will be and/or is being forwarded. It is being sent to the other

appropriate agencies set forth in La. R.S. 30:29 (C)(3)(b)(i) for comments prior to

being finalized and filed with the Court in accordance with La. R.S. 30:29(C)(3) &

(4).” The trial court noted the reference as well, pondering whether it was merely

an oversight or whether it indicated the plan was merely preliminary. Arguably,

the filing of the plan in the trial court record best indicates its finality as the statute

does not provide for preliminary filings.

Moreover, the supreme court in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-

2371, pp. 37-38 (La. 7/1/08), 998 So.2d 16, 32, stated in dicta: “Finally, it is the

district court who considers the various restoration plans, including any that the

surface owner may choose to submit, determines which one is most feasible, and

oversees the implementation of the restoration plan. La.Rev.Stat. § 30:29(C)(5).”

In State v. Louisiana Land and Exploration Co., 12-884, p. 16 (La. 1/30/13), 110

So.3d 1038, 1049, the supreme court explained that “although the La. DNR has

input into the plan to remediate the property, the final decision as to the

remediation plan adopted rests with the court. Throughout the remediation

process, the court remains the gatekeeper to ensure the purpose of the Act is

accomplished--remediation of the property to the extent of the public’s interest.”

Inherent in the trial court’s authority as gatekeeper in this statutory scheme

is the option of rejecting an LDNR plan it determines is incomplete and ordering

LDNR to fully comply with its original order pursuant to the statute. We find the
11

trial court did not err here, where LDNR failed to submit a plan for groundwater or

flowline remediation, and, instead, its plan consisted of further testing by BP the

plan would be revised accordingly. The trial court determined that the submission

by LDNR did not constitute a final plan, and, therefore, the submission was

incomplete. The trial court ordered LDNR to supplement the plan submitted to the

court to include options for groundwater remediation. Based on our interpretation

of the statute and the authority granted to the trial court under the statute, we find

no error in the trial court’s failure to approve the final plan or in its order to

supplement the plan.

CONCLUSION

After reviewing the judgment of the trial court and the submissions of the

parties, we find no error in the trial court’s ruling. The application for supervisory

writs filed by BP is hereby denied. The stay issued by this court on June 13 is

hereby lifted, and the case is remanded to the trial court for further proceedings

consistent with this opinion.

STAY LIFTED. WRIT DENIED.

12