Alford et al v. Chevron U.S.A. Inc. et al

Filing 221

ORDER AND REASONS granting 181 Motion by Hilcorp to Dismiss for Failure to State a Claim; granting 182 Motion by Chevron to Dismiss; granting in part and denying in part 185 Motion by BP to Dismiss for Failure to State a Claim; granting 186 Motion by Anadarko to Dismiss for Failure to State a Claim; granting 187 Motion by French to Dismiss for Failure to State a Claim. Signed by Chief Judge Sarah S. Vance on 2/4/15. (Reference: 13-5703)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CATHERINE P. ALFORD, ET AL.

CIVIL ACTION

VERSUS

NO: 13-5457
REF: 13-5703

ANADARKO E&P ONSHORE LLC, ET AL.

SECTION: R

ORDER AND REASONS
Defendants Chevron U.S.A. Inc., Chevron U.S.A. Holdings,
Inc., Four Star Oil and Gas Company, and Gulf Oil Corporation
(collectively "Chevron"); Anadarko E&P Onshore, LLC; BP America
Production Company and Pan American Petroleum Corporation
(collectively "BP"); Hilcorp Energy I, L.P.; and French Gulf
Coast Partners move to dismiss several of plaintiffs' claims.1
For the following reasons, the Court grants BP's motion in part
and denies it in part, and grants Chevron's, Andarko's,
Hilcorp's, and French's motions.
I.

BACKGROUND
A.

Procedural History

This "legacy litigation" lawsuit centers on property that
plaintiffs allegedly own and/or use in Township 21 South, Range
28 East, Plaquemines Parish, Louisiana, in the Bastian Bay

1

R. Doc. 182 (Chevron); R. Doc. 186 (Anadarko); R. Doc.
185 (BP); R. Doc. 181 (Hilcorp); R. Doc. 187 (French).

Field,2 which defendants allegedly harmed with their oil and gas
exploration and production activities.3

On May 3, 2013,

plaintiffs brought a host of claims in Louisiana state court
based on these alleged harms; defendants removed the suit to this
Court several months later.4

The Louisiana Supreme Court refers

to this type of lawsuit as "legacy litigation" because it
"arise[s] from [oilfield] operations conducted many decades ago"
that left "an unwanted 'legacy' in the form of actual or alleged
contamination."

Marin v. Exxon Mobil Corp., 48 So. 3d 234, 238

n.1 (La. 2010) (citing Loulan Pitre, Jr., "Legacy Litigation" and
Act 312 of 2006, 20 Tul. Envt. L.J. 347, 348 (2007)).
The motions currently before the Court are second round
motions to dismiss.

The Court issued an earlier order5 in which

it dismissed all of plaintiffs' claims against Andarko and BP
except for plaintiffs' claims for breach of Andarko's and BP's
implied obligations as mineral lessees under Civil Code articles
2683(2), 2686, and 2692, and Mineral Code articles 11 and 122.
2

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 48.
3

Id. at 47.

4

Alford et al. v. Chevron U.S.A. et al., No. 2:13-cv5703, R. Doc. 1.
On September 12, the Court consolidated this
action with Civil Action Nos. 13-5457, Alford, et al. v. Chevron
U.S.A. Inc., et al., and 13-5464, Alford, et al. v. Anadarko E&P
Onshore, LLC, et al. R. Doc. 35. The Court remanded the lead
case, No. 13-5457, to Louisiana state court on January 6, 2014.
R. Doc. 158.
5

See R. Doc. 165.
2

The order also dismissed all of plaintiffs' claims against
Chevron except for the following claims:
•
•
•
•

Claims for breach of Chevron's implied obligations as a
mineral lessee under La. Civ. Code arts. 2683(2), 2686,
and 2692, and Mineral Code articles 11 and 122
A negligence claim under La. Civ. Code art. 2315 and a
claim under § 324A of the Restatement (Second) of
Torts, as interpreted by Louisiana jurisprudence
A trespass claim
A claim under La. Civ. Code art. 667, which restricts
the manner in which neighbors may use their property.

The order also dismissed all of plaintiffs' claims against
Hilcorp and French except for the following claims:
•
•

B.

Claims for breach of Chevron's implied obligations as a
mineral lessee under La. Civ. Code arts. 2683(2), 2686,
and 2692, and Mineral Code articles 11 and 122
A negligence claim under La. Civ. Code art. 2315 and a
claim under § 324A of the Restatement (Second) of
Torts, as interpreted by Louisiana jurisprudence.
Defendants

Plaintiffs have sued nine entities: (1) Anadarko E&P
Onshore, LLC; (2) BP American Production Company; (3) Chevron
U.S.A. Inc.; (4) Chevron U.S.A. Holdings, Inc.; (5) Four Star Oil
and Gas Company; (6) French Gulf Coast Partners; (7) Gulf Oil
Corporation; (8) Hilcorp Energy I, L.P.; and (9) Pan American
Petroleum Corporation.

Plaintiffs allege that some of these

entities are successors-in-interest to entities that once held
mineral interests in and/or conducted oil and gas operations in

3

the Bastian Bay Field.6

For the sake of clarity, the Court

summarizes these alleged relationships in the following chart:
Defendant in This Case

Alleged Predecessor(s)-in-Interest

Anadarko

•

RME Petroleum Company

•

Union Pacific Resources Company

BP American

•

Pan American

Chevron U.S.A.

•

Gulf Oil Corporation

•

Tidewater Oil Company

•

Getty Oil Company

•

TMR Company

•

TMRI Holdings, Inc.

•

Chevron U.S.A. Holdings

Chevron U.S.A. Holdings

•

Texaco Producing Inc.

Four Star

•

Getty Oil

Plaintiffs include several documents supporting these alleged
relationships, including:
•

documentation of the merger between Chevron U.S.A.,
Inc. and Gulf Oil;7

•

documentation of the merger between Tidewater and Getty
Oil;8 and

•

documentation reflecting that Union Pacific changed its
name to RME Petroleum in 2000.9

6

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 49.
7

Id. at 140.

8

Id. at 195-96.

9

Id. at 223-26.
4

C.

Current Motions to Dismiss

At issue in these second round motions to dismiss is whether
plaintiffs have successfully re-pled four claims that the Court
dismissed against Chevron, Hilcorp, French, Andarko, and BP in
its earlier order: (1) a claim for damages for "land loss,
subsidence, and backfilling of canals;" (2) a claim that
defendants are strictly liable for violations of Louisiana Civil
Code articles 667, 2317, and 2322; (3) a claim for punitive
damages under former Louisiana Civil Code article 2315.3; and (4)
a claim under Louisiana Mineral Code article 22.

BP and Andarko

also ask the Court to dismiss plaintiffs' claim against them for
negligence under Louisiana Civil Code 2315, and BP asks the Court
to dismiss plaintiffs' claim against it for violations of the
implied obligations of mineral lessees under Louisiana Mineral
Code article 11.

After examining the allegations relevant to

these claims, the Court determines that plaintiffs may proceed
with their claim under Mineral Code article 11 against BP.
Plaintiffs' other claims against Chevron, Hilcorp, French,
Andarko, and BP fail for the reasons set out in this order.
D.

1954 Mineral Lease and Operator History

Plaintiffs have attached to their complaint several
documents relating to mineral operations in the Bastian Bay

5

Field.10

These include the following documents (defendants in

this case in bold):
•

an oil and gas lease on the property in the name of
Tidewater Associated Oil Company (alleged predecessorin-interest to Chevron), dated May 1, 1954;11

•

various conveyances of the interests encompassed within
that lease, which reflect that French, Union Pacific
(alleged predecessor-in-interest to Andarko), Chevron
U.S.A. Inc., Texaco (alleged predecessor-in-interest to
Chevron), Getty Oil (alleged predecessor-in-interest to
Chevron), RME Petroleum (alleged predecessor-ininterest to Andarko), and Hilcorp have held interests
in the property;12

•

a 1997 grant of leave to Union Pacific (alleged
predecessor-in-interest to Andarko) to operate a well
on the property;13

•

a 2005 grant of leave to Hilcorp to operate a well on
the property;14

•

a unitization agreement concerning the property
executed by Tenneco, Inc., Getty Oil (alleged
predecessor-in-interest to Chevron), Pan American
(alleged predecessor-in-interest to BP), Phillips
Petroleum Company, Callery Properties, Inc., and
Henderson Oil Company, Inc.;15 and

•

a unitization agreement concerning the property
executed by Pan American (alleged predecessor-ininterest to BP), Tidewater (alleged predecessor-in-

10

Id. at 71-226.

11

Id. at 204.

12

Id. at 86-139, 212-222.

13

Id. at 71-85.

14

Id. at 209-11.

15

Id. at 141-93.
6

interest to Chevron), and Gulf Oil (alleged
predecessor-in-interest to Chevron).16
The Mineral lease grants the lessees the
right and privilege to drill for, mine, extract, remove,
and dispose of all the oil and gas deposits . . . in the
lands leased, together with the right to construct and
maintain thereupon all . . . buildings, plants,
waterways,
roads,
telegraph
or
telephone
lines,
pipelines, reservoirs, tanks, pumping stations, or other
structures necessary to the full enjoyment thereof.17
In the Court's order addressing defendants' first round
motions to dismiss, the Court held that plaintiffs had alleged no
facts plausibly suggesting that there are any other leases,
servitudes, or agreements applicable to the property besides the
1954 lease.

Plaintiffs' most recent amendment to their complaint

attaches no new documents and alleges no new facts plausibly
suggesting that any other leases, servitudes, or agreements
applicable to the property exist.

Therefore, the Court again

limits its focus to the 1954 lease granted to Tidewater.
Plaintiffs have also attached the Operator History of the
property to the complaint.18

That document reflects that

Tidewater (alleged predecessor-in-interest to Chevron), Getty Oil

16

Id. at 197-203. Pages 205-07 of the state court record
are unreadable.
17

Id. at 207 (emphasis added). The copy of the lease
included in the record is illegible at page 207. For this
excerpt, the Court relies upon a cleaner copy of the lease
provided by email by Hilcorp's counsel to the Court and to all
counsel.
18

See id. at 27.
7

(alleged predecessor-in-interest to Chevron), and Tenneco, Inc.
have operated four different wells on plaintiffs' property.19
Operations on well number 70872 were originally permitted on June
17, 1958, and concluded on August 2, 1986, when the well was
plugged and abandoned.20

Operations on well number 73091 were

originally permitted on December 4, 1958, and concluded on August
2, 1986, when the well was plugged and abandoned.21

Operations

on well number 88536 were originally permitted on January 22,
1962, and concluded on September 18, 1976, when the well was
plugged and abandoned.22

Operations on well number 91102 were

permitted on July 9, 1962, and concluded on September 18, 1976,
when the well was plugged and abandoned.23

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead enough facts "to state a claim to relief that is
plausible on its face."
544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

A claim is facially plausible when the

plaintiff pleads facts that allow the court to "draw the

19

Id. at 32-33.

20

Id. at 32.

21

Id.

22

Id.

23

Id. at 33.
8

reasonable inference that the defendant is liable for the
misconduct alleged."
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

A court must accept all well-pleaded facts as true and

must draw all reasonable inferences in favor of the plaintiff.
Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009).
But the Court is not bound to accept as true legal conclusions
couched as factual allegations.

Iqbal, 556 U.S. at 678.

A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true.

Id.

It

need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action.

Id.

In other words, the face of

the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim.

Lormand, 565 F.3d at 257.

If there are insufficient factual allegations to raise a right to
relief above the speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed.

III.

Twombly, 550 U.S. at 555.

DISCUSSION
A.

Claim for Damages for Canal Backfilling and Remediation

Chevron, Hilcorp, French, Andarko, and BP move the Court to
dismiss again plaintiffs' claim for "damages for land loss,
subsidence, and the cost of backfilling of canals and other
9

excavations."

In the Court's earlier order addressing

defendants' first round of motions to dismiss, the Court
dismissed this claim against all five of these defendants for two
reasons.

First, the Court found that plaintiffs had not alleged

any facts indicating that their property had actually suffered
land loss or subsidence.

Second, plaintiffs did not identify and

the Court could not find any source in contract or state or
federal law imposing a duty on defendants to conduct the sort of
remediation that plaintiffs claimed was owed.
Plaintiffs now attempt to remedy the first problem by
alleging that
[t]he defendants' oil and gas exploration and production
activities have resulted in the dredging of numerous
canals in, through, and across the petitioners' property.
The canals are depicted in the aerial photographs
attached and incorporated into the petition as Exhibit
'A' and "A-1." Land loss in Bastian Bay is demonstrable.
The dredging of canals through the petitioners' property
has had a direct and significant impact on that property.
. . . [T]he defendants failed to design or construct said
canals using the best practical techniques to prevent
bank slumping, erosion, and saltwater intrusion. As a
result, the defendants' oil and gas exploration and
production activities including, but not limited to,
dredging activities have resulted in the degradation of
the petitioners' property. The defendants have failed to
revegetate, refill, clean, detoxify, or otherwise restore
the canals on the petitioners' property.24
Plaintiffs have thus alleged that canals were dredged, and that
as a result, their property was "degrad[ed]" and there has been
"demonstrable" land loss.

24

Plaintiffs fail, however, to identify

R. Doc. 176 at 3-4.
10

a source in contract or state or federal law for defendants'
alleged duty to "us[e] the best practical techniques to prevent
bank slumping, erosion, and saltwater intrusion" when dredging,
or to "revegetate, refill, clean, detoxify, or otherwise restore"
the dredged canals.
In their briefing, plaintiffs point to the Louisiana Civil
Code and Mineral Code provisions governing the implied
obligations of mineral lessees as a potential source for their
claim for "damages for land loss, subsidence, and the cost of
backfilling of canals and other excavations."

The Court thus

construes plaintiffs' new paragraph about canal dredging as an
attempt to state a claim for damages for canal backfilling and
remediation under the 1954 mineral lease and the Civil Code and
Mineral Code provisions relevant to the lease.

Because the 1954

mineral lease does not provide a right to this kind of
remediation, implied or otherwise, plaintiffs' claim for canal
backfilling and remediation damages must be dismissed.
Plaintiffs' briefing also discusses the implied obligations of
servitude holders.

On this point, the Court restates its holding

from its previous order that plaintiffs cannot state a claim
against any of the defendants under the codal provisions related
to servitude holders, because plaintiffs allege no facts and
attach no documentation suggesting that any of the defendants
ever held a servitude on the property in question.

11

In Louisiana, the restoration obligation of mineral lessees
is governed by the codal provisions concerning the implied
obligations of lessees: Civil Code articles 2683, 2686, 2688, and
2692, which regulate the obligations of the lessor and the
lessee; Mineral Code article 11, which describes the correlative
rights of landowners and owners of mineral rights; and Mineral
Code article 122, which concerns a mineral lessee's obligation to
act as a reasonably prudent operator.

Together, these provisions

establish that mineral lessees have a duty to restore property to
its original condition, minus normal wear and tear, at the
conclusion of the lease, and to refrain from using the property
unreasonably or excessively during the pendency of the lease.
See Marin, 48 So. 3d at 255-56.
Nevertheless, as the Court held in its previous order,
plaintiffs do not have claims under three of these articles.
First, plaintiffs do not have a claim under Civil Code article
2683(1), which requires lessees to timely tender rent, because
plaintiffs make no allegations that defendants failed to pay any
applicable rent.

Second, plaintiffs do not have a claim under

Civil Code article 2683(3), which provides that a lessee is bound
"[t]o return the thing at the end of the lease in a condition
that is the same as it was when the thing was delivered to him,
except for normal wear and tear," because plaintiffs' complaint
indicates that the lease is still in effect, and the 2683(3)
obligation arises "only at the end of the lease," Marin, 48 So.
12

3d at 256.

Third, plaintiffs do not have a claim under Civil

Code article 2688 because it was enacted in 2005, many years
after the lease in question was executed.
Thus, the Court looks only to Civil Code articles 2683(2),
2686, and 2692, along with Mineral Code articles 11 and 122, to
evaluate plaintiffs' canal dredging allegations under the 1954
mineral lease.

Civil Code article 2683(2) obligates a lessee to

"use the thing as a prudent administrator and in accordance with
the purpose for which it was leased."

Article 2686 provides that

a lessor may obtain damages "[i]f the lessee uses the thing for a
purpose other than that for which it was leased or in a manner
that may cause damage to the thing."

Article 2692 provides

"[t]he lessee is bound to repair damage to the thing caused by
his fault . . . and to repair any deterioration resulting from
his . . . use to the extent it exceeds the normal or agreed use
of the thing."

"These provisions continue throughout the term of

the lease and a lessor need not wait until the end of the lease
to sue a lessee for damage to his property."

Marin, 48 So. 3d at

256.
Mineral Code article 11, which states the "foundational duty
of parties in a case of mineral rights," Walton v. Burns, --- So.
3d ---, 2013 WL 163739, at *9 (La. Ct. App. Jan. 16, 2013),
provides generally that "[t]he owner of land burdened by a
mineral right and the owner of a mineral right must exercise
their respective rights with reasonable regard for those of the
13

other," La. Rev. Stat. § 31:11.

Article 122 of the Mineral Code

defines this obligation more specifically in the context of
mineral lessees:
A mineral lessee is not under a fiduciary obligation to
his lessor, but he is bound to perform the contract in
good faith and to develop and operate the property leased
as a reasonably prudent operator for the mutual benefit
of himself and his lessor. Parties may stipulate what
shall constitute reasonably prudent conduct on the part
of the lessee.
La. Rev. Stat. § 31:122.

The Louisiana Supreme Court has held

that Mineral Code article 122 "simply adopts the good
administrator standard of La. Civ. Code art. [268325], applicable
to all leases, to the specific context of a mineral lease."
Castex, 893 So. 2d at 797; see also State v. La. Land &
Exploration Co., 110 So. 3d 1038, 1045 & n.9 (La. 2013) ("Mineral
leases are construed as leases generally, and the provisions of
the Civil Code applicable to ordinary leases, when pertinent, are
applied to mineral leases."

(quoting Caskey v. Kelly Oil Co.,

737 So. 2d 1257, 1262 (La. 1999))).26

25

At the time of the Castex opinion, Civil Code article
2710 governed the obligations of the lessee. The provision was
moved to article 2683 as part of the 2004 revisions to the Civil
Code. See La. Civ. Code art. 2683 cmt.
26

The Mineral Code explicitly provides that its
provisions "are supplementary to those of the Louisiana Civil
Code and are applicable specifically to the subject matter of
mineral law." La. Rev. Stat. § 31:2. That is, the Civil Code
still applies to mineral law cases, so long as its provisions do
not conflict with the provisions of the Mineral Code. See id.
14

The question now before the Court is whether plaintiffs' new
paragraph about canal dredging states a claim under the 1954
mineral lease and the applicable Civil Code and Mineral Code
provisions just summarized.

Civil Code article 2683(2) and

Mineral Code articles 11 and 122, in essence, collectively
require that mineral lessees use the leased property as a
"reasonably prudent operator," or, in other words, as a "good
administrator."

See Terrebonne Parish Sch. Bd. v. Castex Energy,

Inc., 893 So. 2d 789, 797 (La. 2005); La. Land & Exploration Co.,
110 So. 3d at 1045-47.

Plaintiffs have not plausibly alleged

that defendants violated this codal duty by dredging canals,
because plaintiffs do not allege facts sufficient to support the
conclusion that defendants breached the applicable standard of
care.

Plaintiffs' only conduct allegation is that defendants

failed to "us[e] the best practical techniques to prevent bank
slumping, erosion, and saltwater intrusion."

But reasonable

prudence is not synonymous with "best practices."

Cf. Ewans v.

Wells Fargo Bank, N.A., 389 F. App'x 383, 390 (5th Cir. 2010)
(distinguishing "reasonable practices" from "best practices").
More importantly, plaintiffs allege no facts to suggest that
there was a reasonably feasible alternative method available for
dredging and constructing canals that would have avoided the
alleged land loss but that defendants chose not to use.
Therefore, plaintiffs' allegation about defendants' failure to
use "best practical techniques" fails to state a claim for breach
15

of defendants' implied obligation to act as reasonably prudent
operators under the mineral lease.

This is not to say that no

complaint could ever set forth a set of facts from which it could
reasonably be inferred that a defendant had dredged canals or
constructed waterways in such a way so as to breach its implied
obligation to act as a reasonable prudent operator under a
mineral lease; the Court holds only that plaintiffs' complaint
has failed to do so here.
Plaintiffs' new paragraph about canal dredging also fails to
state a claim under article 2686, which provides that a lessor
may obtain damages "[i]f the lessee uses the thing for a purpose
other than that for which it was leased or in a manner that may
cause damage to the thing."

The lease expressly provides for the

construction of waterways, so plaintiffs' allegation that
defendants dredged canals does not indicate that defendants used
the property "for a purpose other that for which it was leased."
Nor have plaintiffs alleged that defendants used the property in
a manner to cause any "damage" to the property beyond those
changes anticipated by the express terms of the lease.
Plaintiffs allege that "numerous canals" were dredged across
plaintiffs' property and that the canals have not been
"revegetate[d], refill[ed], clean[ed], detoxif[ied], or otherwise
restore[d]."

In short, plaintiffs allege that defendants dredged

canals--as the lease term permitting the construction of
waterways expressly authorized them to do--and that those canals
16

remain.

Plaintiff's vague allegation that the dredging resulted

in "degradation of the . . . property" is insufficient on its own
to suggest that defendants misused the property under the terms
of the lease.
As the Louisiana Supreme Court has held in an analogous
context, an "express grant of the right to dredge canals
constitute[s] consent to or approval of the changes necessarily
incident to dredging."

Castex 893 So. 2d at 800.

In Castex, the

plaintiff alleged that its "leased property consisted of coastal
wetlands, and that, before the defendants' exploration activities
commenced, the property had consistent vegetation and almost no
surface ponds or streams."

Id. at 793.

According to the

plaintiff, defendants' dredging "altered the hydrology of the
marsh and adversely affected its ecology by removing marsh
terrain, creating spoil banks, and generally impairing the
natural ebb and flow of tidal waters."

Id.

The plaintiff

alleged that the defendants' failure to restore the surface of
the marsh caused the canals to "gradually widen[] because of
erosion causing additional loss of acreage" and "severely
damage[d] the ecology of [plaintiff]'s property."

Terrebonne

Parish Sch. Bd. v. Castex Energy, Inc., 878 So. 2d 522, 526 (La.
Ct. App. 2004), rev'd, 893 So. 2d 789 (La. 2005).

Nonetheless,

the Louisiana Supreme Court characterized these sorts of changes
as precisely the kind of "changes necessarily incident to
dredging."

Castex, 893 So. 2d at 800.
17

By giving defendants

permission to dredge canals on its property, the plaintiff had
consented to the "alterations that dredging entails."

Id.

Similarly here, plaintiffs may not now point to precisely the
type of "degradation" necessarily incident to the construction
and maintenance of waterways as evidence that defendants used
their property "in a manner that may cause damage to the thing."
Nor does plaintiffs' new canal dredging paragraph state a
claim under article 2692, under which defendants have a duty as
co-lessees "to repair any deterioration resulting from [the
lessee's] use to the extent it exceeds the normal or agreed use"
of the property.

All of the "deterioration" alleged by

plaintiffs allegedly resulted from defendants canal dredging
activities, which were expressly permitted under the lease.
Although plaintiffs make a conclusory allegation "[o]n
information and belief" that "the defendants exceeded the limits
of their rights under the leases in connection with the dredging
of such canals,"27 they point to no provision in the lease that
defendants have supposedly exceeded by dredging canals.

Merely

alleging that defendants dredged canals is not enough to suggest
that defendants exceeded their rights under the lease when the
lease expressly permitted defendants to construct and maintain
waterways.

27

Id. at 4.
18

Because plaintiffs have not alleged that defendants used the
property unreasonably or excessively under the terms of the lease
by dredging canals, their claim for canal backfilling and
remediation under Civil Code articles 2683(2), 2686, and 2692;
Mineral Code articles 11 and 122; and the 1954 mineral lease must
fail.
B.

Strict Liability Under Louisiana Civil Code article 667

Chevron asks the Court to dismiss plaintiffs' strict
liability claim against Chevron for violations of Louisiana Civil
Code article 667.28

Plaintiffs' new complaint and briefing fail

to respond to the Court's previous order, in which the Court held
that while plaintiffs may maintain a cause of action against
Chevron under Civil Code 667, strict liability is not the correct
standard for assessing the claim.

The Court's earlier order set

forth the correct standards governing plaintiffs' claim against
Chevron under article 667 both before and after 1996.29
Therefore, the Court dismisses plaintiff's strict liability claim
against Chevron under article 667.
Hilcorp, French, Andarko, and BP ask the Court to dismiss
plaintiffs' claim against them under article 667 in its entirety.
Previously, the Court dismissed plaintiffs' article 667 claim
against these defendants because plaintiffs had not alleged that

28

R. Doc. 182-1 at 5.

29

R. Doc. 165 at 50-55.
19

these defendants had engaged in any "work" on the property that
could be considered unlawful under article 667.

Plaintiffs

contend that their most recent amendment to their complaint cures
the defects in their claim against Hilcorp, French, Andarko, and
BP under article 667.

Plaintiffs are incorrect.

Before the 1996 amendments to the Civil Code, article 667
provided as follows: "Although a proprietor may do with his
estate what he please, still he can not make any work on it,
which may deprive his neighbor of the liberty of enjoying his
own, or which may be the cause of any damage to him."

In 1996,

the legislature "amended article 667 to require a showing of
negligence in any claim for damages under article 667 other than
those caused by 'pile driving' or 'blasting with explosives.'"
Vekic v. Wood Energy Corp., No. 03-1906, 2004 WL 2367732, at *4
(E.D. La. Oct. 20, 2004); accord Yokum v. 615 Bourbon Street,
L.L.C., 977 So. 2d 859, 874 (La. 2008).

Article 667 now provides

as follows:
Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may
deprive his neighbor of the liberty of enjoying his own,
or which may be the cause of any damage to him. However,
if the work he makes on his estate deprives his neighbor
of enjoyment or causes damage to him, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his
works would cause damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. . . .
Nonetheless, the proprietor is answerable for damages
without regard to his knowledge or his exercise of
reasonable care, if the damage is caused by an
ultrahazardous activity. An ultrahazardous activity as
20

used in this Article is strictly limited to pile driving
or blasting with explosives.
Thus, liability under article 667 has always required three
elements: (1) a proprietor (2) who conducts "work" on his
property (3) that causes damage to his neighbor.

For actions

after 1996, a fourth element--negligence--must also be shown,
except for damages resulting from pile driving or blasting with
explosives.
Plaintiffs' amended claim against Hilcorp, French, Andarko,
and BP under article 667 must be dismissed because, once again,
they have failed to allege that these defendants conducted any
operations on or near plaintiffs' property.

Without conducting

any "work," Hilcorp, French, Andarko, and BP could not have
violated article 667.

Plaintiffs make a show of arguing that

Hilcorp, French, Andarko, and BP as lease holders may be
considered "proprietors" within the meaning of article 667.30
Plaintiffs are correct, see Inabnet v. Exxon Corp., 642 So. 2d
1243, 1251 (La. 1994), but it does not matter.

As just

explained, to make out a claim under 667, plaintiffs must allege
more than that defendants may be deemed "proprietors."
Plaintiffs also need to allege that defendants, as proprietors,
made some work or conducted some activity on the property that
caused plaintiffs to suffer damages.

But plaintiffs have not

alleged that Hilcorp, French, Andarko, or BP engaged in any

30

R. Doc. 197.
21

"work" on the property in question, much less "work" that could
be considered unlawful under either the former or current version
of article 667.

Therefore, plaintiffs' claim against Hilcorp,

French, Andarko, and BP under article 667 must be dismissed.
C.

Strict Liability Under Louisiana Civil Code articles
2317 and 2322

Chevron, Hilcorp, French, Andarko, and BP ask the Court to
dismiss again plaintiffs' claims under Civil Code articles 2317
and 2322, which concern premises liability.

In the Court's

earlier order addressing defendants' first round of motions to
dismiss, the Court dismissed plaintiffs' premises liability claim
because plaintiffs had not alleged any facts plausibly suggesting
that the facilities that allegedly caused plaintiffs' harms
contained a "'defect' or 'ruin' that posed an unreasonable risk
of harm," as is required to establish liability under articles
2317 and 2322.

Plaintiffs' premises liability claim fails again

for a similar reason.
Article 2317 provides that "[w]e are responsible, not only
for the damage occasioned by our own act, but for that which is
caused by the act of persons for whom we are answerable, or of
the things which we have in our custody."

Before 1996,

custodians were strictly liable under Louisiana law for injuries
caused by things in their custody.

Accordingly, to recover under

article 2317, a plaintiff had to establish only three elements:
"(1) the thing causing his damage was in the custody of the

22

defendant; (2) the thing had a 'defect' or a condition creating
an unreasonable risk of harm; and (3) the defective condition
caused plaintiff's injuries."

Hebert v. Sw. La. Elec. Membership

Corp., 667 So. 2d 1148, 1157 (La. Ct. App. 1995) (citing Oster v.
Dep't of Transp. & Dev., 582 So. 2d 1285 (La. 1991)).

In 1996,

the Louisiana legislature amended the Civil Code to impose a
negligence standard.

Coulter v. Texaco Inc., 117 F.3d 909, 913

n.8 (5th Cir. 1997).

Today, in order to prevail on a custodial

liability claim under article 2317, a plaintiff must prove a
fourth element as well: that "the defendant knew or should have
known of the defect" that caused the plaintiff's injuries.
Cormier v. Dolgencorp, Inc., 136 F. App'x 627, 627–28 (5th Cir.
2005) (citing La. Civ. Code. arts. 2317, 2317.1).
Article 2322 applies specifically to buildings, and provides
as follows:
The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect
in its original construction. However, he is answerable
for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the
vice or defect which caused the damage, that the damage
could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable
care.
A plaintiff must plead the following elements to state a
claim under article 2322: "(1) ownership of the building; (2) the
owner knew or, in the exercise of reasonable care, should have
known of the ruin or defect; (3) the damage could have been

23

prevented by the exercise of reasonable care; (4) the defendant
failed to exercise such reasonable care; and (5) causation."
Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d
175, 182-83 (La. 2013).

Like article 2317, article 2322 imposed

liability without fault before the 1996 revisions to the Civil
Code.

See Celestine v. Union Oil Co., 652 So. 2d 1299, 1303 (La.

1995).
Plaintiffs' current allegations are insufficient to state a
claim under articles 2317 and 2322 for at least two reasons.
First, plaintiffs once again fail to allege the type of "defect"
or "ruin" required for liability under articles 2317 and 2322 to
attach.

According to plaintiffs' most recent amendment to their

complaint, the oil and gas facilities that allegedly caused some
of plaintiffs' damages "were improperly and excessively used by
the oil and gas operator defendants, were improperly maintained,
and contained defects in their construction."31

Plaintiffs'

conclusory assertion that unspecified oil and gas facilities were
"improperly maintained . . . and contained defects in their
construction" is little more than a "formulaic recitation of the
element[]" of defect required for a cause of action under
articles 2317 and 2322.

Iqbal, 556 U.S. at 678.

More

importantly, plaintiffs provide no factual allegations suggesting
that these alleged problems in maintenance or construction "posed

31

R. Doc. 176 at 8.
24

an unreasonable risk of harm."

The Court notes that in its last

order dismissing plaintiffs' claim under articles 2317 and 2322,
it highlighted plaintiffs' failure to allege facts "suggesting
that those facilities or equipment contained a 'defect' or 'ruin'
that posed an unreasonable risk of harm."32

That plaintiffs were

thus on notice of this specific deficiency in their original
complaint but nonetheless again failed to plead sufficient
factual allegations regarding "defect" or "ruin" in their recent
amending complaint supports the Court's conclusion that
plaintiffs' right to relief under articles 2317 and 2322 does not
"rise . . . above the speculative level."
Second, even if plaintiffs' had adequately pleaded the
existence of a "defect" or "ruin," plaintiffs have not alleged
any facts plausibly suggesting that the harms they allegedly
suffered were caused by a "defect" or "ruin."

Allegations that

the defendants had custody of facilities, that the facilities
"contained" a defect, and that the facilities caused harm in the
form of pollution are not enough; the harm must be caused by the
allegedly defective condition in order for a claim under article
2317 or article 2322 to lie.

See Cormier, 136 F. App'x at

627–28; Broussard, 113 So. 3d at 182-83.

Accordingly,

plaintiffs' premises liability claim may not go forward.

32

R. Doc. 165 at 57.
25

D.

Negligence under Civil Code article 2315

Anadarko and BP move to dismiss again plaintiffs' claim
against them under Louisiana's general negligence statute, La.
C.C. art. 2315.

Andarko and BP argue that this claim should be

dismissed because plaintiffs' amended complaint alleges no facts
suggesting that Andarko or BP engaged in any actual conduct on
the property in question.

As noted in the Court's earlier order,

the Operator History attached to plaintiff's complaint suggests
that the Chevron entities are the only defendants that actually
conducted oil and gas exploration and production activities on
plaintiffs' property.33

Plaintiffs do not dispute this point in

their opposition to Andarko's and BP's current motions to
dismiss.

Rather, they focus on the Court's holding from the

earlier order that the obligations of mineral lessees under a
mineral lease are indivisible.

While that holding matters for

plaintiffs' contract claims under the mineral lease, it does not
affect the Court's analysis of plaintiffs' tort claims.
Louisiana courts conduct a duty-risk analysis to determine
whether to impose tort liability under Article 2315.

Lemann v.

Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632-633 (La. 2006).
Under the duty-risk analysis, a plaintiff must prove each of five

33

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 32-33. The only entities listed as
operators on plaintiffs' property are Tidewater, Getty Oil, and
Tenneco. Id. Tidewater and Getty Oil are allegedly predecessors
in interest to the Chevron defendants, and Tenneco is not named
in the complaint.
26

elements: (1) the defendant had a duty to conform his conduct to
a specific standard of care (the duty element); (2) the
defendant's conduct failed to conform to the appropriate standard
of care (the breach element); (3) the defendant's substandard
conduct was a cause-in-fact of the plaintiff's injuries (the
cause-in-fact element); (4) the defendant's substandard conduct
was a legal cause of the plaintiff's injuries (the scope-of-duty
element); and (5) actual damages (the damages element).

S.J. v.

Lafayette Parish Sch. Bd., 41 So. 3d 1119, 1125 (La. 2010); see
also Knight v. Kellogg Brown & Root Inc., 333 F. App'x 1, 6 (5th
Cir. 2009) (applying Louisiana law).
Under a duty-risk analysis, absent a defendant owing a duty
to the plaintiff, there can be no actionable negligence and
therefore no liability.

Lemann, 923 So. 2d at 632-633.

Whether

a defendant owes a duty to another presents a question of law.
Lazard v. Foti, 859 So. 2d 656, 659 (La. 2003).

The relevant

inquiry is "whether the plaintiff has any law (statutory,
jurisprudential, or arising from general principles of fault) to
support his claim."

Audler v. CBC Innovis Inc., 519 F.3d 239,

249 (5th Cir. 2008) (citing Faucheaux v. Terrebonne Consolidated
Government, 615 So. 2d 289, 292 (La. 1993)).

Plaintiffs' amended

complaint identifies only one alleged duty that defendants
allegedly owed to plaintiffs, the violation of which allegedly
"proximately caused" their damages: "a duty to protect plaintiffs

27

and plaintiffs' property from the effects of the contamination
and pollution described [in the complaint]."
In their briefing, plaintiffs suggest two possible sources
for this alleged duty.

First, plaintiffs appear to argue that

the mineral lease creates a duty applicable to the non-operating
defendants.

They cite a Louisiana intermediate appellate court

case, Edwards v. Jeems Bayou Production Company, 507 So. 2d 11,
13 (La. Ct. App. 1987), for the proposition that "[f]ault under
[Civil Code article] 2315 encompasses the exercise of contractual
rights in such a manner as to cause unreasonable property
damage."

Edwards does not support plaintiffs' contention that

the mineral lease created an additional duty applicable to the
non-operating defendants.

Rather, Edwards simply restates the

unremarkable principle that a mineral lessee has an "obligation
to act reasonably" when "exercis[ing] its rights under a mineral
lease"--that is, when it actively conducts operations under the
lease.

Edwards, 507 So. 2d at 13.

As the Fifth Circuit has

recognized, and as this Court stated in its previous order,
"Louisiana courts recognize that the same acts or omissions may
constitute breaches of both general duties and contractual
duties, giving rise to actions in both tort and contract."
Huggs, Inc. v. LPC Energy, Inc., 889 F.2d 649, 655 (5th Cir.
1989).

In other words, the same negligent act may constitute

both an actionable tort and a breach of the "obligation to act

28

reasonably" when exercising one's rights under a contract.
Edwards, 507 So. 2d at 13.

As the Huggs court explained:

Generally, where a person neglects to do what he is
obligated under a contract, he has committed a passive
breach of the contract. If he negligently performs a
contractual
obligation,
he
has
committed
active
negligence and thus an active breach of the contract. A
passive breach of contract warrants only an action for
breach of contract; an active breach of contract, on the
other hand, will also support an action in tort under La.
Civ. Code art. 2315.
Huggs, 889 F.2d at 655.

Here, plaintiffs have not alleged that

Anadarko or BP negligently performed their contractual
obligations as lessees of the property because they have not
alleged that Anadarko or BP operated on the property or otherwise
performed any obligations at all.

Therefore, they have

identified no active breach of contract by either defendant that
could support an action in tort.
Next, plaintiffs argue that "defendants" are "guilty of
tortious conduct by virtue of their violations of statewide and
fieldwide orders and regulations," in particular Louisiana
Statewide Order 29-B, which relates to oilfield operations.
Plaintiffs' suggestion that Statewide Order 29-B creates a
general duty applicable to the non-operator defendants is wrong
for at least two reasons.
First, plaintiffs appear to suggest that a violation of
Statewide Order 29-B constitutes negligence per se, but they cite
no law to support such a proposition, and the Court's research
does not yield any cases suggesting that Statewide Order 29-B can
29

establish negligence per se.

Of course, a "plaintiff may

properly offer a statute or regulation as evidence of a
defendant's negligence even when that statute or regulation
cannot be used to establish negligence per se."

Melerine v.

Avondale Shipyards, Inc., 659 F.2d 706, 713 n.22 (5th Cir. 1981)
(citations omitted).

But in those instances, a regulation

provides evidence of the general standard of care; it does not
create the duty of care.
Second, even if Statewide Order 29-B may be offered as
evidence of the standard of care applicable to oilfield
operations, it says nothing at all about the duties of nonoperators.

Plaintiffs seem to suggest that even the non-operator

defendants may have had obligations under section 303 of Order
29-B, which provided that existing oil field pits needed to be
lined in compliance with the order or closed in accordance with
specified pit closure criteria by January 20, 1989.

Section 303

does not specify which parties are responsible for these
closures, and the Court therefore examines the surrounding
provisions to determine to whom section 303 was meant to apply.
Section 305 of Order 29-B provides notification and reporting
requirements for operators of oilfield pits.

According to

section 305, operators were required to provide certain
information to the Office of Conservation about all existing pits
by July 20, 1986.

La. Admin. Code tit. 43, pt. XIX, § 305.

For

existing pits that were to be further utilized, operators were
30

required to provide information about the pit's location,
qualities, dimensions, and liner along with certification that
the pit complied with the liner and operations requirements of
section 307 of the order.

Id.

For existing pits that were to be

closed, operators were required to provide similar identifying
information about the pit and a "plan and schedule of abandonment
for closure" that complied with the closure requirements of
sections 311 and 313 of the order.

Id.

Failure to comply with

such a plan in a timely manner would "subject an operator to
appropriate civil penalties."

Id. (emphasis added).

Section

311, one of the provisions governing pit closure, further
specified that liability for pit closure could not "be
transferred from an operator to the owner of the surface land(s)
on which a pit is located."
311 (emphasis added).

La. Admin. Code tit. 43, pt. XIX, §

Thus, Order 29-B makes clear that the

obligations created by the order belong to pit operators.

No

provision of Order 29-B suggests that mineral lessees who
conducted no operations have any obligations under the order.
Because plaintiffs have pointed to no source in law for any
duty that the non-operator defendants have allegedly breached,
their allegations are insufficient to support a tort claim under
article 2315.

Plaintiffs' negligence claim under Civil Code

article 2315 against Andarko and BP is dismissed.

31

E.

Punitive Damages Under Former Louisiana Civil Code
Article 2315.3

Chevron, Hilcorp, French, Andarko, and BP ask the Court to
dismiss plaintiffs' claim for punitive damages under former
Louisiana Civil Code article 2315.3.

The Court previously

dismissed this claim against all five defendants because it found
that plaintiffs had failed to plead facts establishing the cause
of action during the time period when article 2315.3 was
operative.

Plaintiffs' punitive damages claim fails again for

the same reason.
During its effective period, former Louisiana Civil Code
article 2315.3 provided that, "[i]n addition to general and
special damages, exemplary damages may be awarded, if it is
proved that plaintiff's injuries were caused by the defendant's
wanton or reckless disregard for public safety in the storage,
handling, or transportation of hazardous or toxic substances."
See Corbello v. Ia. Prod., 850 So. 2d 686, 707 (La. 2003).
"Damages under 2315.3 are recoverable on a derivative basis where
a plaintiff is entitled to recover tort damages."

Id.

Although

the article did not define hazardous or toxic substances, the
Louisiana Supreme Court has explained:
[T]he words must be given their generally accepted
meaning. LSA-C.C. art. 11. Hazardous substances are those
that present substantial danger to public health or the
environment. A toxic substance is a substance poisonous
to living organisms. Thus, the terms “hazardous” and
“toxic” refer to substances which cause injury or death
to human beings and/or create an environmental hazard.

32

Chustz v. J.B. Hunt Transp., Inc., 662 So. 2d 450, 451 (La.
1995).

The provision was in effect between 1984 and 1996, and it

applies to causes of action arising during that time period.

See

Corbello, 850 So. 2d at 707 n.9; Brownell Land Co. v. Apache
Corp., No. Civ.A. 05-322, 2005 WL 3543772, at *6 (E.D. La. Oct.
13, 2005).
Thus, to establish a claim under former article 2315.3, a
plaintiff must satisfy four elements:
(1)

The defendant's conduct must be wanton or reckless;

(2)

The defendant's wanton or reckless conduct must create
a danger to the public;

(3)

The defendant's wanton or reckless conduct must occur
in the storage, handling, or transportation of
hazardous or toxic substances; and

(4)

The plaintiff's injury must be caused by the
defendant's wanton or reckless conduct.

See Billiot v. B.P. Oil Co., 645 So. 2d 604, 613 (La. 1994),
reversed on other grounds, Adams v. J.E. Merit Cons., Inc., 712
So. 2d 88 (La. 1998).
In addition, "in order to state a cause of action for
exemplary damages, the plaintiff must plead facts which establish
the[] cause of action during the effective period of article
2315.3."

In re Harvey Term Litig., 872 So. 2d 584, 586 (La. Ct.

App. 1994).

Here, plaintiffs do not provide factual allegations

to support the conclusion that any of the defendants conducted
33

operations in violation of article 2315.3 during the article's
operative period.

As stated earlier, plaintiffs do not allege

any actions by any of the defendants other than Chevron.

As to

Chevron, plaintiffs allege that "the actions of Tidewater Oil
Company and Getty Oil Company (predecessors-in-interest to
Chevron USA Inc.) . . . from 1984 through 1996"--former article
2315.3's operative years--"constitutes wanton or reckless
disregard for public safety in the storage, handling or
transportation of hazardous or toxic substances."34

The Operator

History of the property, which is attached to plaintiffs'
complaint, provides dates of operation of four different wells
operated by Tidewater and Getty (alleged predecessors-in-interest
to Chevron) and Tenneco on plaintiffs' property.35

Operations on

well numbers 88536 and 91102 concluded on September 18, 1976,
nearly a decade before the Louisiana legislature enacted former
Civil Code article 2315.3.36

"[P]unitive damages under former

article 2315.3 are not available for wells that have been plugged
and abandoned prior to the enactment of the article."

Guthrie v.

Plains Res. Inc., No. 2:12 CV-1904, 2013 WL 2471670, at *11 (W.D.
La. June 7, 2013).

Therefore, plaintiffs cannot recover punitive

damages relating to well numbers 88536 or 91102.

34

In contrast,

R. Doc. 176 at 9.

35

Alford et al. v. Anadarko E&P Onshore, LLC et al., No.
2:13-cv-05703, R. Doc. 1-3 at 32-33.
36

Id.
34

operations on well number 70872 were originally permitted on June
17, 1958, and continued until August 2, 1986, and operations on
well number 73091 were originally permitted on December 4, 1958,
and continued until August 2, 1986.37

The Operator History

reveals, however, that operations on both wells transferred to
Tenneco in 1982, two years before the Louisiana legislature
enacted former Civil Code article 2315.3.38

There are no factual

allegations or records indicating that Tidewater, Getty, or
Chevron conducted any operations on plaintiffs' property after
1982.

Because

plaintiffs have failed to plead facts

establishing the cause of action during the time period when
article 2315.3 was operative, plaintiffs' claims for punitive
damages under 2315.3 are dismissed.
F.

Mineral Code Article 22

Chevron, Hilcorp, French, Andarko, and BP ask the Court to
dismiss again plaintiffs' claim under Mineral Code article 22,
which concerns the rights and obligations of a mineral servitude
owner.

None of the facts alleged in plaintiffs' complaint or

documents attached to plaintiffs' complaint suggests that any
defendant ever held a mineral servitude on the property in
question.

Thus, plaintiffs cannot state a claim against any of

the defendants under the codal provisions governing the

37

Id. at 32, 35 & 38.

38

Id.
35

obligations of servitude holders.

See, e.g., Walton, --- So. 3d

---, 2013 WL 163739, at *9-11 (noting that Mineral Code article
22, entitled "Certain rights and obligations of the mineral
servitude owner," is, by its express terms, applicable only to
mineral servitude holders).
G.

Mineral Code Article 11

Finally, BP moves the Court to dismiss plaintiffs' claim
against it under Mineral Code article 11.

Mineral Code article

11 provides generally that "[t]he owner of land burdened by a
mineral right and the owner of a mineral right must exercise
their respective rights with reasonable regard for those of the
other."

La. Rev. Stat. § 31:11.

As discussed above, Mineral

Code article 11, together with Civil Code article 2683(2) and
Mineral Code article 122, in essence, collectively require that
mineral lessees use the leased property as a "reasonably prudent
operator."

See Castex, 893 So. 2d at 797; La. Land & Exploration

Co., 110 So. 3d at 1045-47.

BP argues for the first time that it

never held an interest in the 1954 mineral lease or any other
lease with plaintiffs and that therefore it cannot be held liable
under a lease or any of the implied obligations applicable to
mineral lessees.

If BP is correct, then there would be grounds

for dismissing not only plaintiffs' claim under Mineral Code
article 11 but also all of plaintiffs' remaining claims against
BP.

Because the documents currently before the Court are

36

insufficient for the Court to determine whether BP is correct,
the Court denies BP's motion at this time.
The Court has reviewed the 1954 mineral lease and the other
documents attached to plaintiffs' complaint that relate to
mineral operations in the Bastian Bay field.

Neither BP nor its

alleged predecessor-in-interest, Pan American, appears on the
1954 mineral lease or in any of the instruments transferring
ownership of mineral rights under the lease.

The only documents

before the Court in which Pan American, BP's alleged predecessorin-interest, appears are two unitization agreements involving the
Bastian Bay field.

Plaintiffs allege that the documents attached

to their complaint "describe[] the defendants' relationships to
each other, to the wells, and to the property over time."

Taking

plaintiffs' allegations as true, the Court finds that while the
unitization agreements do not prove that Pan American was a
leaseholder of the property at issue, neither do they refute
plaintiffs' allegation that Pan American once held an interest in
the property.

Indeed, one of the unitization agreements, dated

January 21, 1960, includes a certification from the State Mineral
Board indicating the Board's approval of "the unitization of land
owned by the State of Louisiana under lease to Pan American
Petroleum Corporation, et al., in the unitized area."39

Whether

plaintiffs' property was part of the "land . . . under lease to

39

Id. at 203 (emphasis added).
37

Pan American . . . in the unitized area" is a question better
suited to summary judgment or trial than a motion to dismiss.
Therefore, the Court denies BP's motion to dismiss plaintiffs'
claim against it under Mineral Code article 11.

IV.

CONCLUSION
For the foregoing reasons, the Court grants Chevron's,

Hilcorp's, French's, Andarko's, and BP's motions to dismiss, with
the exception of BP's motion to dismiss plaintiffs' claim against
it under Mineral Code article 11.

Plaintiffs may proceed with

their claim under Mineral Code article 11 against BP.
Thus, the Court dismisses the following four claims against
all five defendants: (1) plaintiffs' claim for "damages for land
loss, subsidence, and the cost of backfilling of canals and other
excavations," (2) plaintiffs' strict liability claim under
Louisiana Civil Code articles 2317 and 2322; (3) plaintiffs'
punitive damages claim under former Louisiana Civil Code article
2315.3; and (4) plaintiffs' claim under Mineral Code article 22.
In addition, plaintiffs' claim against Hilcorp, French, Andarko,
and BP under Louisiana Civil Code article 667 is dismissed in its
entirety.

The Court also dismisses plaintiffs' claim against

Chevron for strict liability under article 667; plaintiffs' claim
against Chevron under article 667 will be assessed according to
the standards set out in the Court's previous order.

38

Finally,

plaintiffs' negligence claim under Louisiana Civil Code article
2315 is dismissed as to Andarko and BP.
All claims dismissed in this order or in the Court's
previous order are now dismissed WITH PREJUDICE.

New Orleans, Louisiana, this 4th day of February, 2015.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

39