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Energy & the Law

Louisiana Surface Owner Can Sue Servitude Owner for Pollution

Posted in Environmental Policy, Pollution

It’s Mardi Gras. If you see my college-student daughter chasing beads, dubloons and coconuts, tell her to get back to the library where she said she was going.   

In Walton vs. Burns, another legacy pollution case, a Louisiana court of appeal ruled, among other things, that a surface owner has the right to assert a claim under Louisiana Mineral Code Article 22 against a mineral servitude owner for the servitude owner’s obligation to restore the surface insofar as practicable to its original condition before oil and gas operations. This claim is different than the one the surface owner might have against an operator, which is based on Mineral Code Article 122’s obligation of the lessee to act as a “reasonably prudent operator”. These are two distinct legal theories, and also implicate Article 11, requiring the owner of a mineral right to exercise his rights “with reasonable regard to those” of the surface owner.

Walton had a history prior to the Louisiana Supreme Court ruling in Eagle Pipe & Supply, Inc. vs. Amerada Hess in October 2011, in which the court invoked the subsequent purchaser doctrine to deprive certain surface owners of a cause of action for surface damages. Walton involves many procedural goings-on which will be avoided here because they are of an interest only to lawyers who go to the courthouse.

The essential question, according to the Court, was whether mineral servitude owners and oil company defendants as lessees owe the same duties to plaintiff-surface owners for damages and remediation after oil and gas operations have ceased.

The court acknowledged that, especially with the enactment of Act 312 (La. RS 30:29), there is a special procedure to resolve claims of environmental damage arising from oil field operations. The court noted that Act 312 requires those parties whom a court finds legally responsible for damages from operations to develop a plan of remediation.

The Court considered the fact that different defendants – lessees, operators and servitude owners – may have different obligations to evaluate and remedy contamination. In the end the Court decided that given the various rights, obligations and duties under the Mineral Code, servitude owners should be a part of the same lawsuit as lessees.

In keeping with the season, here is Iko Iko.