88 F. Supp. 3d 615
E.D. La.2015Background
- Plaintiff: Board of Commissioners of the Southeast Louisiana Flood Protection Authority — East (the Authority), suing on its own behalf and as the board for several levee districts, alleges oil and gas operators caused coastal land loss in a large “Buffer Zone” by dredging/maintaining canals and other activities, increasing storm surge risk and flood‑control costs.
- Defendants: 88 oil, gas, and pipeline companies named; Plaintiff seeks damages and broad injunctive relief (revegetation, backfilling canals, hydrologic restoration, etc.).
- Plaintiff’s theory: Defendants breached duties arising under Louisiana tort law (Articles 2315, 2317/2317.1, 655–667) and that federal statutes/regulatory permits (Rivers & Harbors Act, Clean Water Act, Coastal Zone Management Act, Corps permits/ROWs) supply or define standards of care and create third‑party beneficiary rights.
- Procedural posture: Case removed to federal court; remand denied because the Court found federal issues necessarily raised and substantial; Defendants moved to dismiss under Rule 12(b)(6).
- Disposition below: Court granted defendants’ motion and dismissed all six claims (negligence, strict liability, natural servitude of drain, public and private nuisance, breach of contract as third‑party beneficiary), concluding Plaintiff failed as a matter of law to state viable claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants owed a duty under Louisiana negligence/strict liability (Art. 2315 / 2317/2317.1) to protect the Authority from indirect economic harms of coastal erosion | The Authority says Article 2315 supplies a duty and federal statutes/permits supply detailed standards of care; harm to levees is a direct impact on Plaintiff’s assets so duty exists | Defendants say Plaintiff alleges industry‑wide/attenuated harms and only indirect economic loss; federal statutes do not create a duty to benefit the Authority | Held: No duty as a matter of law. Federal statutes were not intended to protect Plaintiff; negligence and strict liability claims dismissed. |
| Whether a natural servitude of drain exists (Arts. 655–656) protecting Plaintiff from storm surge/coastal erosion | Plaintiff contends predial servitude can be found without strict adjacency and may apply to tidal/storm surge contexts | Defendants argue servitude requires identifiable dominant/servient estates (typically proximate) and Plaintiff fails to allege such estates or that defendants’ lands lie "above" Plaintiff’s | Held: Claim fails. Plaintiff cannot state a predial servitude under the Code on these facts; dismissal warranted. |
| Whether Plaintiff stated private or public nuisance under Art. 667 | Plaintiff argues adjacency is not required; the Authority’s interest in nearby flood assets suffices | Defendants contend Article 667 protects neighbors/nearby immovables and requires some proximate interest; Plaintiff alleges broad, remote harms | Held: Nuisance claims dismissed. Article 667 requires a proximate interest; Plaintiff did not allege the necessary neighbor/nearby immovable relationship or negligence. |
| Whether permits/rights‑of‑way create enforceable contracts giving Plaintiff third‑party beneficiary breach claims | Plaintiff treats Corps permits/ROWs as contractual duties (stipulation pour autrui) benefiting the Authority and alleges intended third‑party beneficiary status | Defendants argue permits/licenses are not contracts and, at best, create incidental public benefits, not enforceable third‑party rights | Held: Dismissed. Permits are not contracts for third‑party beneficiary suits; even if contractual, Plaintiff is an incidental, not intended, beneficiary under federal common law. |
Key Cases Cited
- Audler v. CBC Innovis Inc., 519 F.3d 239 (5th Cir. 2008) (federal statute creates a duty only if plaintiff is intended beneficiary and the statute’s purpose aligns with plaintiff’s claim)
- Cormier v. T.H.E. Ins. Co., 745 So.2d 1 (La. 1999) (statutory duty analysis: courts interpret legislative intent and scope of protection; policy factors guide whether duty extends to plaintiff)
- Wyandotte Transp. Co. v. United States, 389 U.S. 191 (U.S. 1967) (construing purpose and beneficiaries of Rivers and Harbors Act)
- California v. Sierra Club, 451 U.S. 287 (U.S. 1981) (purpose of Coastal Zone Management Act is to encourage state coastal management programs)
- Terrebonne Parish School Board v. Columbia Gulf Transmission Co., 290 F.3d 303 (5th Cir. 2002) (distinguishing claims where plaintiff suffered direct property loss from cases alleging only indirect economic harm)
- Poole v. Guste, 262 So.2d 339 (La. 1972) (discussing servitudes of drain where surface/tidal waters and constructed canals affected drainage rights)