Court Jurisdiction, Procedure and Review: Timing of Statutory Remediation Under Louisiana Act 312 of 2006

摘要

In an earlier report of this case, Tensas Poppadoc, Inc. v. Chevron, 984 So.2d 223, 168 0.&G.R. 490 (La.App. 2008), Poppadoc, Inc., alleges that oil and gas exploration activities by defendants contaminated its property. Plaintiff seeks compensatory damages to cover the cost of remediation and restoration, loss of use, diminution of value, and mental anguish. The trial court grants plaintiffs motion in limine to have an order requiring that a jury trial be held on the merits of all issues of liability and damages, including remediation, before the case can be referred to the Louisiana Department of Natural Resources pursuant to Act 312. The appeals court affirms, applying its approach in Germany v. ConocoPhillips Co., 980 So.2d 101, 167 0.&G.R. 557 (La.App. 2008), to wit, that Act 312 contemplates a two phase procedure for remediation claims: 1) The traditional procedure of a trial before the trial court or a jury which determines liability and damages. 2) The Louisiana Department of Natural Resources develops a remediation plan, which is submitted to the trial court for approval. After the Louisiana Supreme Court issued its opinion in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16 (La. 2008), the court grants writs in Tensas Poppadoc and remands to the court of appeal for briefing, argument, and opinion. Tensas Poppadoc, Inc. v. Chevron USA, Inc., 999 So.2d 764 (La. 2009). Here the Third Circuit essentially follows its prior approach and rejects Chevron's contention that La.R.S; 30:29 requires that the matter be sent to the LDNR before any judgment is rendered and that only after a remediation plan is approved by the LDNR may the trial court render a judgment.