In July 2017, Weyerhaeuser Company, a Louisiana landowner and timber lessee, filed a Petition for a writ of certiorari asking the United States Supreme Court to overturn the U.S. Fish and Wildlife Service’s (“FWS”) designation of private land in St. Tammany Parish, Louisiana as “critical habitat” for the endangered dusky gopher frog. The FWS made this “critical habitat” designation under the Endangered Species Act. Weyerhaeuser Company argues that the property has not been a habitat for the gopher frog since the 1960s, the land lacks certain habitat features for the gopher frog to survive in the area, and the designation drastically reduces the value of the property by preventing certain commercial development projects. (A prior article posted on The Energy Law Blog discussing the Petitioner’s writ of certiorari is available here). Continue Reading
U.S. Fifth Circuit Issues CAFA Opinion in Mass Action Addressing Two Issues of First Impression
In Warren Lester, et al. v. Exxon Mobil Corp., et al., No. 14-31383, ___ F.3d ___ (5th Cir. 1/9/2018), the U.S. Fifth Circuit Court of Appeals issued an opinion addressing two issues of first impression involving the Class Action Fairness Act of 2005 (“CAFA”).[1] A full copy of the opinion can be accessed here. Continue Reading
Highly Anticipated En Banc Fifth Circuit Opinion Reframes Maritime Contract Analysis
In a highly anticipated ruling, the United States Fifth Circuit Court of Appeals issued its en banc decision in In re: Larry Doiron, Inc., No. 16-30217 (5th Cir. Jan. 8, 2018). The case called upon the court to determine whether a contract for performance of specialty services to facilitate the drilling or production of oil and gas on navigable waters is maritime in nature. In ruling that the particular contract at issue in the case was non-maritime, the Fifth Circuit took the significant step of streamlining and re-framing the analysis for maritime contracts generally. Continue Reading
(Plaintiffs Claiming) Trespass Beware
In Chauvin v. Shell Oil Company, the Louisiana Fifth Circuit Court of Appeal affirmed the judgment of the trial court granting summary judgment to defendants on Plaintiffs’ trespass action. In doing so, the Fifth Circuit made clear that to succeed on a trespass claim when the contracts at issue are ambiguous, parole evidence from the plaintiffs’ experts and the plaintiffs themselves should be consistent with ownership. Continue Reading
Louisiana Supreme Court Grants Writs from Second Circuit Decision Finding Holder of Mortgage Encumbering a Mineral Lease Solidarily Liable with Mineral Lessees for Damages Resulting from the Mineral Lessees’ Breach of Contractual and Statutory Obligations
On Friday, December 15, the Louisiana Supreme Court granted three separate writ applications filed by each of the defendants in Gloria’s Ranch, L.L.C. v. Tauren Exploration, Inc. These applications sought review of the Louisiana Second Circuit’s June 2, 2017 decision affirming the trial court’s ruling that Wells Fargo, a mortgage lender with a security interest in a mineral lease, was solidarily liable with its borrowers (the mineral lessees) for a breach of the mineral lessees’ contractual and statutory obligations to produce in paying quantities, pay royalties, and respond to the mineral lessor’s demands regarding those obligations. Continue Reading
Liskow Lawyers Obtain Win for Oil and Gas Industry in Severance Tax Litigation
In a decision by the Louisiana Board of Tax Appeals, Liskow & Lewis attorneys Robert Angelico, Jim Exnicios, Cheryl Kornick, RJ Marse, and Jeff Birdsong obtained a ruling rejecting attempts by the Louisiana Department of Revenue to increase the amount of severance taxes due on crude oil produced in Louisiana. The Department of Revenue targeted dozens of producers, including many smaller producers, with audits and assessments attempting to impose severance taxes on market center or index prices rather than the value of the crude oil in the field. Continue Reading
Extension of DOL Fiduciary Rule is Official and some Guidelines for Documenting Rollovers
The Department of Labor officially announced the 18-month extension of the effective date of the key, and most onerous provisions, of the DOL Fiduciary Rule (until July 1, 2019).[1] The announcement was made on November 29, 2017. This extension delays the implementation of the most problematic procedures of the DOL Fiduciary Rule, which had been previously set to take effect on January 1, 2018. However, advisers should be aware that the portions of the DOL Fiduciary Rule, known as the “Impartial Conduct Standards,” are already effective. Continue Reading
LABI and LOGA Endorse President Trump’s Nominations for the United States Fifth Circuit Court of Appeals
In September 2017, President Donald Trump nominated Kyle S. Duncan and Judge Kurt Engelhardt to the United States Fifth Circuit Court of Appeals. Duncan is currently a partner at Schaeer Duncan LLP in Washington D.C. while Judge Engelhardt serves as the Chief Judge for the U.S. District Court for the Eastern District of Louisiana.
Just recently, two industry groups in Louisiana approved of President Trump’s nominees. The Louisiana Association of Business Industry (“LABI”) and the Louisiana Oil and Gas Association (“LOGA”) officially endorsed Duncan and Chief Judge Engelhardt in November 2017. Both LABI and LOGA are strong advocates for developing incentives and legislation that support economic growth in Louisiana, especially through the production of oil and gas. Continue Reading
U.S. Fifth Circuit Affirms $20 Million Judgment Against Barge Owner as Responsible Party Under the Oil Pollution Act of 1990
Case: United States v. American Commercial Lines, L.L.C., No. 16-31150, ___ F.3d ___ (5th Cir. 11/7/17).
Factual Background
In July of 2008, nearly 300,000 gallons of oil spilled into the Mississippi River in New Orleans when a tugboat towing an oil-filled barge veered across the river into the path of an ocean-going tanker. American Commercial Lines (“ACL”) owned the tug MEL OLIVER, and bareboat chartered its tug to DRD Towing. DRD then operated the MEL OLIVER under a time charter to ACL. At the time of the collision, the MEL OLIVER, which was pushing ACL’s barge DM-932 fully laden with oil, was operating without a captain who had effectively abandoned the vessel several days earlier. The Steersman left in charge was allegedly sound asleep at the wheel at the time of the collision as he had been working for nearly 36 straight hours. The TINTOMARA, a tanker, collided with the DM-932, causing the barge to break away and ultimately sink in the Mississippi River resulting in the spill of approximately 300,000 gallons of oil into the River. As owner of the leaking barge, ACL was deemed the responsible party under the Oil Pollution Act of 1990 (“OPA ’90”). Continue Reading
Third Circuit Affirms Trial Court’s Refusal to Adopt DNR’s Most Feasible Plan in Sweet Lake Land & Oil Co. v. Oleum Operating Company
The Louisiana Legislature passed “Act 312,” La. R.S. 30:29, in 2006 to provide a procedure for ensuring that amounts awarded to remediate environmental damage are actually spent on remediation. Act 312 sets forth a multi-step scheme that is triggered once a party is found responsible for environmental damage, culminating with Department of Natural Resources (“DNR”) approving a plan “to evaluate or remediate” the environmental damage. La. R.S. 30:29(C)(2)(a). Thereafter the trial court “shall adopt the plan approved by the [DNR] unless another party proves by a preponderance of the evidence that another plan is more feasible,” id. 30:29(C)(5). Continue Reading
