Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 1 of 34

Page 1 of 34

UNITED STATES DISTRICT COURT

U S. DISTRICT COURT
W£STmH DISTRICT OF LOUISIANA

WESTERN DISTRICT OF LOUISIANA

fILED

ALEXARIA DIVISION

JUL 282000
:~BERT H~WELL, CLERK
DEPUtY

CENTRA PINES LA COMPAN,
TOWER MINERAS COMPAN, INC.,
JACK E. LAWTON, JR. i EVELYN GAY LAWTON DUHON, LINDA LEW

LAWTON DROST, D, S &T, INC., DROST & BRAE, INC.

-vsUNITED STATES OF AMERICA,

CIVIL ACTION NO. 2:96-2000

SECTION "A" (JUGE LITTLE)

and
TEXACO EXPLORATION AND PRODUCTION, INC., SONAT EXPLORATION COMPAN, HELMERICH & PAYN, INC., CHESAPEAKE OPERATING, INC.

RULING
Before this court is the United States of America's
motion for summary judgment and the plaintiffs' motion to
strike two declarations submitted by the government in support

of its summary judgment motion. For the reasons that follow
the plaintiffs' motion is DENIED and the United States' motion

is GRAED.
I . Background

This case has along, protracted history.

In 1929,

pursuant to a warranty mineral deed, the Gulf Lumber Company
conveyed to S .H. Fullerton all oil, gas, and minerals in, on,

cv

Case 1:00-cv-00512-FMA
Case 2:96-cv-02000-FAL-JDK

Document 53-4
Document 181

Filed 09/02/2008
Filed 07/28/2000
.;

Page 2 of 34
Page 2 of 34

and under a 100,000 acre tract in Vernon Parish, Louisiana.

The original transaction created a mineral servitude that

allowed S.H. Fullerton to conduct oil, gas, and mineral

exploratory and extraction operations on the land.
Fullerton Minerals Company on 7 May 1930.

S. H.

Fullerton transferred his interest in the servitude to
On 26 April 1937,

Fullerton Minerals Company in turn conveyed the mineral
servitude to William T. Burton by mineral deed.

Through a

series of later transfers, plaintiffs Central Land Company,
Tower Mineral Company, Inc., Jack E. Lawton, Jr., Evelyn Gay

Lawton Duhon; Linda Lew Lawton Drost, D, S, & T, Inc., and
Drost & Brame, Inc. (hereinafter collectively referred to as

plaintiffs) 1 acquired all the rights of Wm. T. Burton
Industries through mesne conveyances.

1 The ownership of plaintiffs in the subject servude is as follows: Central Pines Land Company owns an undivided fi percent of all the oil, ges, and minerals subject to the following royalties: one.halfof one percent in favor
of Jack E. Lawton, Jr., one-fourth of once percent in favor of Evelyn Gay Lawton Duhon, one-fourth of one percent

in favor of Linda Lew Lawton Drost. Tower Minerals Company also owns an undivided fift percent of all of the oil, gas, and minerels subject to th following royelties: one-half of one percent in fevor of Jeck E. Lewton, Jr., one-fourth of once percent in favor of Evelyn Gay Lawton Duhon, one-fourth of one percent in favor of Linda Lew Lewton Drost,
four and two-tenths percent in favor of D,S & T, Inc., and two and eight-tenths in favor of Drost & Breme. Inc.

2

Case 1:00-cv-00512-FMA
Case 2:96-cv-02000-FAL-JDK

Document 53-4
Document 181

Filed 09/02/2008
Filed 07/28/2000

Page 3 of 34
Page 3 of 34

The plaintiffs have delineated three parcels of land,

denoted as Groups A,2 B,3 and C~ to describe the property
subject to the servitude. We adopt these designations in our

discussion.

In a series of four separate transactions between

1933 and 1938, the United States Forest Service acquired the

Group A and B lands for the Kisatchie National Forest,
pursuant to conventional deeds and expropriation under the

Weeks Forestry Act, 16 U. S. C. § 515.

By a series of letters,

Memoranda of Understanding, and special use permits between
1941 and 1952, the Forest Service granted to the Army all of
the Forest Service lands within Vernon Ranger District of the

Kisatchie National Forest for unrestricted military training

purposes. These lands, comprising approximately 36,236 acres,
remained subj ect to the mineral servitude created by mineral

deed in 1929 that existed when the United States acquired the

land.
From 1950 until 1978, through a series of condemnation
proceedings, the United States instituted a mineral moratorium

2 The parties dispute the precise acreage of Group A lands. The United Stetes asserts that Group A lands

comprise approximately 31,086.01 acres. See United Stetes' Stetement of Meteriel Fects es to Which There is No

Genuine Dispute Ihereinefter United Stetes' Statement of Material FectsJ, Statement 4. The plaintiffs contend that
Group A lands include 25,074.96 acres. See Pis: Resp. to United States' Statement of Material Facts, Resp. to

Statement 4, at 3.
3 According to the United States, Group B Include approximately 6,106 acres. See United States' Statement

of Material Facts, Statement 4. The plaintiffs assert that Group B covers 11,000 acres. §. Pis: Resp. to United States' Statement of Material Facts, Resp. to Statement 4, at 3.
· This court's ruling on the prior motion for summary judgment presented to the court established that the Group C lands could not prescribe to the government. The mineral ownership of these lands are no longer at issue in

this case.

3

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 4 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 4 of 34

that expropriated the servitude owners' rights of ingress and

egress over the surface for the purpose of mineral
development. The parties seem to agree that the moratorium

affected all of Group Band C lands, but dispute whether
ingress and egress was originally prevented over Group A
lands. In 1967 in an attempt to clarify the extent of the
mineral moratorium, the Army and the National Forest Service
entered into a Memorandum of Understanding, that divided the
land burdened by the servitude into two areas, the "Intensive
Use Area" and the "Limited Use Area." The Intensive Use Area,

comprising Fort Polk artillery range, was used as a military
training ground and bombing range and included most of Group

B lands and approximately half of Group A lands. The Army

denied any access to the Intensive Use Area that was
incompatible with the military's mission. The parties dispute

whether the government allowed any drilling or preparatory
seismic activities in the Limited Use Area, which remained

under the administrative control of the Forest Service,

between 1967 and 1978. See discussion infra section
III (C) (1) .

During the moratorium, Wm. T. Burton Industries was paid

a small fee by the government on a per acre basis for the
portion of its servitude that was inaccessible as a result of

the government's restrictions. The impediment to exploration
created by the government's moratorium ended officially on 31
4

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 5 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 5 of 34

March 1978. See United States' Mot. for Summ. J., Ex. 48
(letter dated 31 March 1977 from John Camp, attorney for Wm.

T. Burton Industries, to Michael Drost, employee for Wm. T.
Burton Industries, acknowledging that Ary's moratorium was to

end on 31 March 1978); Ex. 55 (letter from Major General
William B. Steele to Commander, US Army FORSCOM dated 6 June
1977 explaining that moratorium over Fort Polk was to end on

31 March 1978). Plaintiffs assert, however, that the
moratorium effectively continued after this date.

Between 1933 and 1956, Wm. T. Burton Industries drilled

six wells on the lands burdened by the mineral servitude.
Each of these endeavors produced a dry well. Wm. T. Burton

Industries abandoned its last well located within Group A
lands on 4 January 1956. In 1961, Wm. T. Burton Industries

leased the mineral rights underlying the 1929 mineral
servi tude to Pan American Corporation. The lease agreement

between the two companies noted the existence of the
government's use restrictions on part of the lands subj ect to

the lease. In 1964, Pan American drilled a well, in Section

4, Township 1 South, Range 5 West which proved to be nonproductive. Pan American released the lease to Wm. T. Burton
Industries on 30 June 1964.

In 1992, the United States' Bureau of Land Management
began granting.a series of oil and gas leases to the minerals

underlying the surface to Group A and B lands. In 1995, the
5

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 6 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 6 of 34

plaintiffs learned that the United States was claiming
ownership to the minerals underlying the Kisatchie National

Forest. Plaintiffs filed the instant lawsuit to quiet title
to the 1929 mineral servitude on 22 August 1996, seeking a

declaration that they still own the servitude and that any

leases to the minerals granted by the United States of
American are null and void. Subsequently, both parties moved

for summary judgment on the issue of whether the servitude

lands could have prescribed to the government. On 7 April
1999, this court ruled that Louisiana Act 315 of 1940, which

provides that a mineral servitude may not prescribe to the
government, does not apply to the Group A and B lands because

they were acquired by the United States prior to 1940. We
determined that the ten-year liberative prescription period
applicable to mineral servitudes would govern the Group A and

B lands and reserved judgment on the question of whether the

prescriptive period had been interrupted or suspended by the

actions of either party. See 7 April 1999 Ruling, at 15-19.

On 25 April 2000, the United States filed a motion for

summary judgment arguing that the plaintiffs' servitude
prescribed for nonuse sometime between 1956 and 1996 and

asking the court to find that plaintiffs' servitude had
reverted to the ownership of the government. The plaintiffs

respond that their right to explore for and capture the
minerals underlying the lands owned by the United States is
6

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 7 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000. Page 7 of 34

extant and argue that summary judgment is inappropriate
because genuine issues of material fact remain as to whether

the prescriptive period was tolled by the government's

moratorium on mining operations.
II. MOTION TO STRIKE
Subsequent to the filing of the United States' motion for

summary judgment, the plaintiffs' submitted a motion to strike

the declarations of Gretchen Hunt ("Hunt"), the. Zone Forest
Geologist on the Kisatchie National Forest, and Delia Jaquette

("Jaquette"), the Leasing Program Manager and Mineral Title
Specialist for the Southern Region of the United States Forest

Service. In her declaration, Hunt provides a seismic map and

accompanying explanatory chart detailing the location of
seismic lines shot over the servitude between 1961 and 1985 by

various companies. Jaquette's statement gives the exact
parameters of the 1929 mineral servitude and describes what
part of the servitude lay within the Limited and Intensive Use

Areas. The plaintiffs object to Jaquette's declaration
because it was not included in the preliminary witness list
submitted by the United States on 31 July 1999 and was filed

after the 21 April 2000 discovery deadline. The plaintiffs
therefore insist that Jaquette's declaration is inadmissible.

The plaintiffs also protest the admission of Gretchen Hunt' s

declaration on the basis that she is testifying as an expert
7

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 8 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 8 of 34

despite the fact that she never filed an expert report as
required by the local discovery rules in effect in the Western

District of Louisiana.

The district court has the inherent power to manage
discovery in cases pending before the court. See Degen v.
United States, 517 U.S. 820, 826, 116 S. Ct. 1777, 1782, 517

U.S. 820, 135 L. Ed. 2d 102; Williams v. New Orleans Public

Serv., Inc. 728 F.2d 730, 732 n. 4 (5th Cir. 1984). This

court therefore has discretion in determining whether to
permit the United States to rely on the declarations of Hunt

and Jaquette. Thè United States opposes the motion to strike

on the grounds that both witnesses' declarations meet the
standards of Rule 56 (e) of the Federal Rule of Civil Procedure

and therefore should be considered by this court. Rule 56 (e)
provides in relevant part: "Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the

matters stated therein."
Although Jaquette was not named as a witness in a timely

manner, her statements are otherwise admissible under Rule

56 (e) because they are made on the basis of her personal
knowledge, set forth admissible evidence, and demonstrate that

she is competent to testify to the matters stated in her

declaration. We therefore find no reason to exclude her
8

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 9 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 9 of 34

declaration. Similarly, contrary to plaintiffs' contentions,
Hunt's statements are not based on her opinions as an expert,

but instead grounded in her own experience, gleaned from her
own research or from her personal review of information given

to her by her Forest Service employees, or derived from
evidence submitted by plaintiffs own witnesses. 5 This is
shown by the portion of her declaration in which she details

the step-by-step method by which she developed a map of the
survey lines that had been shot over the servitude. See Hunt

Decl. ~ 7. We do not agree, as urged by plaintiffs, that
Hunt's declaration is barred by the Civil Justice Expense and

Delay Reduction Plan adopted by the U. S. District Court for

the Western District of Louisiana, Section III, Para 2 (b) ,
which requires that "expert witnesses shall be available for
deposition during the two-week period following the discovery
cutoff" unless otherwise agreed by the parties. The provision

cited by plaintiffs deals with experts to be presented at
trial. Hunt's declaration is being used for summary judgment

purposes only. Both Hunt's and Jaquette's declarations enlighten the
court about the nature of the land subject to the servitude
and enable it to make a more informed decision on the United

States' motion for summary judgment. The plaintiffs fail to

G We offer no opinion as to whether Hunt would be qualified as an expert witness at triel.

9

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 10 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 10 of 34

provide us with a legal reason that prevents us from
considering these declarations. We therefore DEN plaintiffs'

motion to strike and proceed to determine the merits of the
summary judgment motion.

III. MOTION FOR SUMY JU
A. Summary Judgment Standard
Summary judgment is appropriate only if lithe pleadings,

depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ii when viewed in
the light most favorable to the nonmovant, "show that there is

no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. ii Fed. R.
Civ. P. 56 (c) i Anderson v. Liberty Lobby, Inc., 477 U. S. 242,

249- 50 , 106 S. Ct. 2505 , 2509 -10 , 91 L. Ed. 2 d 202 ( 1986) .
Where, as here,6 the nonmovant bears the burden. of proof at trial, the moving party may meet its burden by setting forth
proof that disproves an essential element of the nonmovants'

case. See Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th
Cir. 1986).

'" A fact is material if it might affect the

outcome of the suit under the governing substantive law.' ii

H.B. Zachry Co. v. Quinones, 206 F.3d 474, 480 (5th Cir.
2000) (quoting United States v. Arron, 954 F.2d 249, 251 (5th
8 .When plaintiff's petition shows on its face that the prescriptive period has run, burden is on the plaintiff

to prove an interruption or suspension of prescription.. Salvex, Inc. v. Lewis, 546 So. 2d 1309, 1315 (la. Ct. App.
3d Cir. 19891.

10

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 11 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 11 of 34

Cir. 1992)). A dispute

'about a material fact is "genuine" if

the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Anderson, 477 U. S. at
248; 106 S. Ct . at 2510.

if the moving party meets the initial burden of
establishing that there is no genuine issue, the burden shifts to the nonmoving party to produce evidence of the existence of

a genuine issue for trial. See Celotex Corp. v. Catrett, 477

U.S. 317, 321, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574 , 587, 106 S . Ct . 1348 , 89 L . Ed . 2 d 53 8 ( 1986) . The
nonmovant must go beyond the pleadings and designate specific

facts showing the existence of a genuine issue of fact for
trial. See Edwards v. Your Credit, Inc., 148 F. 3d 427, 431

(5th Cir. 1998). "The nonmovant cannot satisfy his summary
judgment burden with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence." See wilson
Indus., Inc. v. Aviva America Inc., 185 F. 3d 492, 494 (5th
Cir. 1999); Little v. Liquid Air Corp., 37 F. 3d 1069, 1075

(5th Cir. 1994) (en banc). In making its determination as to
whether summary judgment is appropriate, the court must draw

all justifiable inferences in favor of the nonmoving party.
See Anderson, 477 U. S. at 255; 106 S. Ct. at 2513.

11

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 12 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 12 of 34

B. Prescription of Mineral Servitudes Generally
Many states allow for an estate in mineral rights that is

separate and distinct from the estate of the surface owner.
See, e.g., Central Oil Co. v. S.H. Shows, 149 So. 2d 306, 309
(Miss. 1961); Humphreys-Mexia Co. v. Gammon, 254 S. W. 296, 299

(Tex. 1923). In contrast, in Louisiana,

(aJ conveyance by a landowner to another of the oil, gas and other minerals on, in and under the land, together with rights of ingress, egress and occupancy for purposes of exploitation, is not a grant or alienation of a title to such minerals in

place, but simply creates in the grantee a
servitude or right of exploitation or development,

prescribable in ten years for non-use, of such
minerals and the right to appropriate such minerals

as may be discovered and reduced to physical possession.

Frost Lumber Indus. v. Republic Prod. Co., 112 F.2d 462, 465

(5th Cir. 1940) (interpreting Louisiana law on mineral

servitudes) .
1. Statutory Provisions Governing Prescription of

Mineral Servitudes

Under the Mineral Code,

a mineral servitude is

extinguished by "prescription resulting from nonuse for ten
years." La. Rev. Stat. Ann. § 31:27(1) (West 2000). Likewise,

the pre-Code law provided that a mineral servitude prescribes

if it is not used for ten years. See Louisiana Petroleum Co.

v. Broussard, 135 So. 1, 2 (La. 1931); see also Leiter
Minerals, Inc. v. California Co., 132 So. 2d. 845, 931 (La.
1961) ("The mineral servitude established either by sale or by

12

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 13 of 34
Page 13 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

reservation is extinguished by the prescription resulting from

non-user of the servitude for 10 years following its
creation.") 7

Under both the Mineral Code and the law

previously in effect,

the prescriptive period can be

interrupted when the holder of the mineral servitude engages

in good faith operations with the reasonable expectation of
discovering and producing minerals in paying quantities. See
La. Rev. Stat. Ann. § 31:29(1) (West 2000); Mire v. Hawkins,
186 So. 2d 591, 595-96 (La. 1966); McMurrey v. Gray, 45 So. 2d

73, 77-78 (La. 1949). If interrupted, prescription starts to

run anew from the last day on which mining or drilling
opera t ion are conducted. See La. Rev. Stat. (West 2000). When seeking to show that the
Ann. § 31:30

prescriptive

period has been interrupted, the owner of the servitude has
the burden of establishing that he or someone in his name has

made timely use of the servitude to prevent the accrual of
prescription. See Scott v. Hunt Oil Co., 160 So. 2d 433, 435
(La. Ct. App. 2d Cir. 1964).
liiaa~:i:tlPri,ftli~' '.prescriptive periodmay....bei:.i,~pende(l,..,.,... or
tlTleèl ì.fan ¡öçst;ä.cle prevents. theowner.from .

using the

7 The minerel servitude in this case was created in 1929 and actively driled until 4 January 1956. The
parties dispute the appropriate law to apply In this case. The Minerai Code did not take effect until 1976 after the creaton of the servitude at issue in this case. The Mineral Code is to be applied retroactively unless it would "apply to divest already vested rights, or to impair the obligations of contracts.. La. Rev. Stat. Ann. § 31 :214 (West 20001. The plaintiffs have not argued that the application of the Mineral Code would impair pre-existing vested rights or the

obligation of contracts. Accordingly, we see no reason not to apply the Mineral Code to this case. Regardless, the parties agree tha the provisions of the Minerai Code relevant to this case are identical to the corresponding law In the Civil Code. As such, the parties arguments on this issue are inconsequential to the outcome of this case.

13

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 14 of 34
Page 14 of 34

Case 2:96-cv-02000-FAL-J DK Document 181

servitude,,""iSee.'La..'Rev.;.Stat.'Ann~'§".3r:59d'(West "'~2ooofV "'seé/) '1......:.,"",.,..,,''"..,~...,...d.....
raisoLa~ Civ. Code

art 792 (1.B70ff\\Ifthe owner of. theestat~ß

tføwhomtheservitude isdue, . isp.reveiited from using itbyi
lirtyobstaclewhichhepanneitherprevent nor remove, the i'
ptescriptionof non~usage doestiot run

against him as long as
"

thìsobstacle remains.'jl) .8 Jil.e"setýj;t:Ûd.edWiêrm.ust'actuaii,y
~t:tempt to üsethe servitude,and be denied

access beforearl
When a

\õbåt åë6i e'J.S deemed t bexi st,~ . ""

See Perkins v. Long-Bell

I)

Petroleum Co., 81 So. 2d 389, 393-94 (La. 1955).

servitude is extinguished by prescription,

the mineral

interest passes to the owner of the surface of the subj ect

property at the time the servitude prescribes. See McDonald
v. Richard, 13 So. 2d 712, 714-15 (La. 1943)

2.

Case Law interpretation of
Provisions Governing Prescription

Statutory

According to the plaintiffs, the government \ s moratorium

on use of the Fort Polk artillery range created an obstacle

that suspended the prescriptive period over' the entire
servitude between 1956 and 1996.

They argue that under the

maxim contra non valentem agere nulla cirrut praescriptio,9

prescription is suspended if the servitude owner is
8

Interrupton end suspension are distinct concepts. When prscription is interrupted, the ten-year prescriptive

period starts to run anew on the last day on which good faith operations are undertaken to secure or restore
production. See La. Rev. Stat. Ann. § 31 :41 (West 20001. In contrast, where the prescriptive period is merely' suspended, the period that had accrued prior to the creation of the obstacle continues to run once the obstacle is
removed. See ¡d. § 31 :59.

II "Prescription does not run against one unable to act.. Certright v. Chrysler Corp., 232 So. 2d 285 (La.
19701.

14

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 15 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 15 of 34

"effectually prevented" from accessing the servitude by

actions of the defendant that "hinder" or "impede" the
plaintiffs' access even a portion of the servitude. The
United States protests the plaintiffs' interpretation of
Louisiana law and argues that according to case law precedent,

the prescriptive period was not suspended in this case because

at all times a section of the servitude remained available for

drilling operations. We agree.
Contra non valentem is a judicially-created exception to

the general rule of prescription. 10

The cases cited by

plaintiff in support of the application of contra non valentem

in this case do not lead to the conclusion urged in their

brief.

In Plaquemines Parish Comm' n Council v. Delta Dev.

Co., 502 So. 2d 1034, 1054 (La. 1987), Plaquemines Parish
attempted to regain title to certain mineral interests on the

basis that the interests were wrongfully secured by public

officials for their own personal gain. See ide at 1036. The
defendants, successors to the public officials, argued that

any claim by the Parish to the mineral interests had
prescribed under the ten-year prescriptive period applicable

to claims for breach of fiduciary duty, La. Civ. Code Ann.
10 Contra non valentem applies in four situations: (1) where there was some legal cause which prevented the courts or thair officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some

conditon coupled wi a contact or connected with the proceedings which prevented the creditor from suing or ecting:
(3) whre the debtor himself has done some act effectually to prevent the creditor from avaiirng himself of his cause

of action; (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. See Fontenot v. ABC Ins. Co., 674 So. 2d 960 (La. 19961: Taylor v.
~, 618 So. 2d 834 (La. 19931.

15

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 16 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 16 of 34

art. 3499. The court applied contra non valentem and
determined that where the defendants' acts of concealment
"effectually prevented" the plaintiffs from discovering that

they had a claim against the defendants, an obstacle existed

that suspended the prescriptive period. See ide at 1037.

Similarly, in Nathan v. Carter, 372 So. 2d 560 (La.
1979), the Louisiana Supreme Court applied contra .non valentem

to find an obstacle where the defendants' threats, fraud, and

misrepresentation prevented plaintiff from discovering the
right to pursue a cause of action for wrongful death. See id.

at 563. Neither of these cases dealt with a situation where
the defendants' actions created an obstacle to drilling on a
mineral servitude. We consider the facts of Delta Development
and Nathan too remote to those presented in the instant matter
to provide any support for plaintiffs' argument that the court

should find that, pursuant to contra non valentem, the
government's restrictions on access to a portion of the
servitude had the effect of preventing them rrom acting,
thereby creating an obstacle that suspended prescription as to

the entire servitude.

The concept of contra non valentem is not irrelevant to

prescription of mineral servitudes, however. Indeed, the
Louisiana Supreme Court has explained that Article 792, the

predecessor to Mineral Code Section 59, is an example of
contra non valentem. See McDonald v. Richard, 13 So. 2d 712,

16

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 17 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 17 of 34

715 (La. 1943). Further, in Clark v. Tensas Delta Land Co.,

136 So. 1, 2

(La. 1931), the Louisiana Supreme Court

considered applying contra non val.entem to a mineral
servitude, but ultimately concluded that the concept was

irrelevant given that the servitude owner never made any
request "to enter upon the land, and that no objection to such

entry upon the land was ever expressed by the owner of the

land, previous to the filing of this suit." Id. The court
did not consider whether mere hindering or impeding physical
access to the land is sufficient to constitute an obstacle .11

Despite ample opportunity, the Louisiana courts have yet..
to apply contra non valentem to enunciate the broad
interpretation of an obstacle urged by plaintiffs.
In the

context of use of a mineral servitude, Louisiana courts have

found an obstacle to user only in cases where the servitude
owner has been prevented from entering the entire servitude.

In Boddie v. Drewett, 87 So. 2d 516 (La. 1956), a servitude
underlying a twelve acre tract of land was pooled with other
tracts by the Commissioner of Conservation. The Commissioner

issued a conservation order that restricted drilling on the

entire twelve acre servitude, but allowed drilling on other

11 The plaintiffs also briefly mention a Fifth Circuit case applying contra non valentem. §! Frey v. Amoco Production Co., 943 F,2d 678 (5th Cir. 1991 I. That case does not apply conua non valentem to instances where the

servitue owner is prevented from using his servitude by actions of the surface owner. Rather, the court recognized
that "Louisiana courts apply the contra non valentem doctrine to suspend the period's beginning while the cause of action is not knowable by the plaintiff through the exercise of reasonable dilgence." !! at 586. Obviously, that is

not the issue in the instant matter. We are unpersuaded that Frey has any relevance to this case.

17

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 18 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 18 of 34

portions of the unit. See id. at 518-19. The court declined
to hold that good faith drilling of a dry hole on the drilling

unit, but outside the subject servitude constituted user of

the subject servitude. See ide at 518. Instead, the court
found that there was an obstacle to user of the servitude that

suspended prescription because the Commissioner's order
effectively prevented all drilling operations on the twelve

acre tract. See ide at 518-19.

The Louisiana Supreme Court revisited similar issues
later in Mire V. Hawkins. There, part of the lands burdened
by a servitude were pooled with other tracts into a drilling

unit by the Department of Conservation. A portion of the
servitude remained outside the drilling unit available for

drilling at all times. See Mire, 186 So. 2d at 594. The
court ruled that where user could be had on any part of the

drilling unit, there was no obstacle that suspended

prescription. See id. at 596 - 97. It also found that user of
any portion of the unit could be considered user of any
servitude incorporated into the unit even where the subject

servitude was not open for drilling, thereby explicitly
overruling its prior contrary determination in Boddie. See
ide at 595. The court was guided by the premise that public

policy did not favor unwarranted extensions of the
prescriptive period, but rather supported the timely return of

unused mineral servitudes to the landowner. See id. at 597.

18

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 19 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 19 of 34

As the plaintiffs aptly point out, the reason behind the
Mire court's decision to overrule Boddie is not entirely clear

given that in Boddie the servitude owner was' effectively
prevented from drilling on the entire servitude, whereas in
Mire part of the servitude was not subject to the nondrilling
order. Contrary to plaintiffs interpretation of Boddie, we do

not believe that the court ruled sub silentio that a partial
obstacle would result in complete suspension of prescription.

Boddie is not squarely on all fours with the facts presented
in the instant matter. There, the court based its decision on

the fact that the servitude owner was prevented from
effectively using his entire servitude. See Boddie, 87 So. 2d

at 519. Here, in contrast, a portion of Group A lands
remained available for drilling, even where the government

denied access to certain areas of the servitude. See
discussion infra section III (C). Also Boddie must now must be

read against the backdrop of the court's later decision in

Mire. ~ Mire, 186 So. 2d at 289 ("After a further study of
the opinion (in Boddie) we have concluded that it was error to
say that prescription was suspended due to the existence of an

obstacle. "). Mire instructs that where any part of the lands
burdened by a servitude are open to drilling, no obstacle
exists and the prescriptive period continues to run.
Our interpretation of Mire and Boddie is supported by the

decision of an intermediate state court in Hanszen v. Cocke,

19

Case 1:00-cv-00512-FMA
Case 2:96-cv-02000-FAL-JDK

Document 53-4
Document 181

Filed 09/02/2008
Filed 07/28/2000

Page 20 of 34
Page 20 of 34

246 So. 2d 200, 205 (La. Ct. App. 1st Cir. 1971).

In Hanszen,

pending litigation regarding the validity of a mineral lease

prevented the servitude owner from drilling on a portion of
his servitude.
See ide at 206.

The court ruled "that where
. even though some

any part of the servitude can be used .

part may not, as a result of an obstacle, prescription is not

suspended, but to the contrary, runs against the entire
servitude." id. at 206.12 It also noted that drilling on one
portion of the land would suspend prescription for the entire

servitude.

See id. Unlike Mire and Boddie, Hanszen did not

deal with a drilling unit, but with a single servitude.
Hanszen is therefore more directly applicable to the facts
presented in the instant case than the two Louisiana Supreme
Court cases that focused on the ramifications to an individual

servitude where the servitude land had been pooled with other

tracts.
The plaintiffs also rely on Corley v. Craft, 501 So. 2d
1049, 1050-52 (La. Ct. App. 2d Cir. 1987), and Hall v. Dixon,

401 So. 2d 473, 474 (La. Ct. App. 2d Cir. 1981), for the
proposition that an obstacle to user on a po:ition of the
12 The plaintff urge that we are not compelled to follow this decision under the principle that federal courts

must rule according to the law of the highest court of the state in which it encompasses. We do not agree, as suggested by plaintiffs, that l: was wrongly decided. As a federal court, we are bound to determine state law
as we believe the stete's highest court would. See Hulin v. Fibreboerd Corp., 178 F.3d 316, 328 (5th Cir. 19991. We
view the Hanszen court's ruling as an accurate interpretation of Louisiana law governing suspension of prescription

of a mineral servite. We do not share th p1aimis' concern that Hanszen is unsound because it would interfere with mineral owners' rights where only a small area is allowed for drillng. Plaintiffs have not demonstrated that only a small porton of the servitude was availeble for driling when the moratorium was in effect such that we should find that the
government's moratorium Meffectively preventedW all access to the servitude. §! lr, section III(CI.

20

Case 1:00-cv-00512-FMA
Case 2:96-cv-02000-FAL-JDK

Document 53-4
Document 181

Filed 09/02/2008
Filed 07/28/2000

Page 21 of 34
Page 21 of 34

servitude effectuates suspension of the prescriptive period
for the entire servitude .13 The key distinction between those
cases

and the matter sub judice, which the plaintiffs fail to

recognize, is that Corley and Hall dealt with instances where

the servitude owner could not access any portion of the

servitude.

In Hall "(a) ccess (to the servitude) was only

available through a locked gate" which created an obstacle
that the court noted could not have been removed any legal
way other than by instituting a lawsuit. Hall, 401 So. 2d at

474-76.

Likewise, in Corley, the land owner had cut and

excavated "the only suitable road into the tract" and

obstructed the entry of the servitude owner's drilling
equipment. Corley, 501 So. 2d at 1051.14 In contrast to Hall

and Corley, in the instant case, entire sections of the
servitude remained open to use at all times and were in fact
accessed by other companies.

Plaintiffs also argue the government's restrictions on

their use constituted an obstacle under Article 777 of the

Ci viI Code, which prohibits the owner of a tract of land

13 Contrary to the unprofessional assertions of counsel for the plaintiffs, we find that the position of the
defendant is based neither on .falsehoods" nor on a "total misunderstanding of Louisiana mineral

law. . In fact, the

defendant's positions are well reasoned, well defended, and, in our Judgment, reflective of the applicable law on the

subject as discussed in the preceding text. The plaintiffs' legal and factual enalysis, on the other hand, is procrustean at best.
,. The plaintiffs cite ~ for the proposition that anything short of .free access"to the servitude
constitutes an obstacle. Plaintiffs took this quote from l! out of context. In fact, the court declined to find an

obsacle beceuse the surface owner .did not at any time deny to defendant (servitude owner) free access to the land for exploration purposes.. ~,81 So. 2d at 393. The court simply did not indicate that a hindrance to .free
access. resultad in suspension of the prescriptive period. We reject the interpretation proposed by plaintiffs.

21

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 22 of 34
Page 22 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

burdened by a servitude from doing anything to lessen the
value of the servitude owner without his consent.
Civ. Code Ann. art. 777.

See La.

The plaintiffs have not, however,

ci ted any case law that supports their argument that the
surface owner's act of lessening the value of the servitude
results in an obstacle that suspends prescription.
The plaintiffs may not take shelter under their strained
and overly broad conception of contra non val en

tem, Boddie,

and the Louisiana Civil Code. After reviewing both parties'
arguments concerning the proper legal standards. to apply to
this case, we conclude that the cases most factually similar

to the instant matter, Mire and Hanszen, supra, are the
appropriate guiding sources of law. These cases instruct that

even if an obstacle defeats the plaintiffs use of part of

their servitude, the availability of a portion of the
servitude for drilling would preclude a finding that an
obstacle suspended prescription for the entire servitude .15

C. Suspension of the Prescriptive Period Based on Thwarted Access to the Servitude
The ten-year prescriptive period appiicable to mineral
servitudes is interrupted only if the servitude owner engages

16 We reject the plaintiffs' argument that they could not have removed the obstructions created by the government because an individual is powerless to remove an obstacle created by the United States. See Duncan
Energy Co. v. United States Forest Service, 50 F.3d 584 (8th Cir. 19841. In~, the Eighth Circu'i~
whether the Forest Service could regulate surface access to outstanding mineral rights. The court concluded that the

Fores Seice may not prevent a mineral owner from exercising his rights to use the servitude. This is not a problem in this case because. as discussed i!, here thera is evidence that Wm. T. Burton Industries could have accessed a

porton of the Group A lands not burdened by the moratorium. The plaintiffs do not adequately develop how.! has any application to the instant matter.

22

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 23 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 23 of 34

in good-faith drilling operations. "Preparations for the
commencement of actual drilling or mining operations, such as

geological or geophysical exploration, surveying, clearing of

a site, and the hauling and erection of materials and
structures necessary to conduct operations do not interrupt

prescription." La. Rev. Stat. Ann. § 31:30; ~ Goldsmith v.
McCoy, 182 So. 2d 519, 523 (1938); see also La. Rev. Stat.

Ann. § 31:29, cmt. (incorporating Goldsmith into the Mineral

Code). The only way that plaintiffs may prevail, therefore,
is if they can show that they engaged in actual drilling, or

that due to an obstacle created by the government, their
access to the Group A and B lands was completely obstructed,

such that the ten-year prescriptive period was suspended for over forty years between 1956, when Wm. T. Burton Industries

abandoned its last well, and 1996, when the plaintiffs filed

the instant lawsuit. See La. Rev. Stat. Ann. § 31:59;

Hanszen, 246 So. 2d 106. Obviously, if the government
prevented even preparatory drilling actions on the servitude,

we would have to find that an obstruction prevented user of
the servitude. See. e.g. Corley, 501 So. 2d at 1052.

i. Activities between 1956-1978
The United States argues that the plaintiffs have failed

to raise genuine issues of material fact to refute their
assertion that no obstacle suspended prescription between 1956

and 1966. There is evidence that Wm. T. Burton Industries'
23

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 24 of 34
Page 24 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

lessee, Pan American, drilled a well, in Section 4, Township
1 South, Range 5 West, an area that fell within the Fort Polk

artillery range in 1964.

See United States' Statement of

Material Facts as to Which There is No Genuine Dispute,
Statement 21d

(hereinafter United States'

Statement of

Material Facts), Ex. 20; Pls.' Resp. to United States'
Statement of Material Facts, Resp. to Statement 21d, at 33.16

Although Pan American's well was dry, even drilling of a dry

well is sufficient user to interrupt prescription.

See La.

Rev. Stat. Ann. § 31: 29, cmt.; Barnwell v. Carter, 220 So. 2d

741, 745 (La. App. 1st Cir. 1969).

A lessee's. user of the

servitude inures to the servitude owner. See Dupree v. Oil.
Gas & Other Minerals, 731 So. 2d 1067, 1070 (La. Ct. App. 2d

Cir. 1999).

The user of the servitude by Pan American

therefore would have interrupted prescription over the 1929

mineral servitude. The prescriptive period would have began
to run anew 20 March 1964, the date that Pan American plugged

its welL. See La. Rev. Stat. Ann. § 31:29.17
As stated previously, the parties generally agree that as

of 1967, a moratorium on mineral operations was in effect in
the Intensive Use Area that covered most of Group B lands and

18 Plaintiff' Answers to United States First Set of Interrogatories indicates that this well was spudded on 30 September 1963. See United States' Mot. for Summ. J., Ex. 59.

17 Pan American ultimately did release its lease to Wm. T. Burton Industries because it was having trouble
accessing the artillery range. ~ Pis.' Resp. to United States' Statement of Material Facts, Ex. 10c. This does not

supplant the fact that Pari American's activities show that at least part of the servitude was available for driling.

24

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 25 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 25 of 34

about forty to fifty percent of Group A lands. There is ample

evidence in the record demonstrating that Wm. T. Burton
Industries and several other companies were prevented from

accessing the artillery range during the moratorium. For
instance, the plaintiffs reference two letters sent by the
Army to Senator Allen Ellender dated 16 September 1968 and 8
January 1969 indicating that no access would be allowed to the

Fort Polk artillery range. See PIs.' Resp. to United States'

Statement of Material Facts, Exs. lOr, lOt. In 1969, Major

General John C. Dalrymple sent a letter to Senator Allen
Ellender informing him that "authorization for seismographic

operations under the entire (artillery) range area (at Fort
Polk) is incompatible with the training mission" of the Army.

See id., Ex. lOw. The plaintiffs also provide a letter dated

29 May 1968 from Wm. T. Burton Industries to the Army
regarding the pending expiration of the government's lease to

the land. In this letter, John Camp, the attorney for Wm. T.

Burton Industries, explained that the government had denied

entry permits to the artillery range to its lessee, Pan American, but suggested that several companies would be
interested in mineral exploration should access be permitted.
-See id., Ex. 8c ( "Pan American reported that it was unable to

obtain entry permits onto the adjacent Fort Polk artillery

range for the purpose of conducting mineral exploration
activities thereon.").

25

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 26 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 26 of 34

The moratorium continued during the 1970s.

Plaintiffs
Army

have

submitted

correspondence

sent

by

the

to

Representative Speedy o. Long in 1970 informing him that
Chevron Oil would not be able to obtain a lease to Fort Polk
both because the United States did not own the mineral rights,

and because the government had imposed a moratorium on
minerals underlying the Fort Polk artillery range. See id.,
Ex. lOy. Wm. T. Burton Industries again expressed an interest

in drilling on Fort Polk in a meeting with the Army on 27
November 1973. See id., Ex. 10dd (Disposition Form Re: Trip

Report to Negotiate Settlement of Annual Payment for
Moratorium in Minerals, Fort Polk, La.). According to Camp,

the Army continually indicated to Wm. T. Burton Industries

that

"there ain' t going to be no drilling on this
Camp Dep. at 91.18

reservation. "

Teledyne Exploration

Company, acting on behalf of Atlantic Richfield Oil Company,

likewise was denied access to the artillery range through a

letter from the Army for similar reasons in February 1973.
See id.; Ex. 10cc.

The plaintiffs' submissions demonstrate that Wm. T.
Burton Industries and other companies did indeed express an

interest in drilling on Fort Polk throughout the 1960s and
1970s, but were repeatedly denied access by the gqvernment due
18 The vague nature of Camp's stetements are outweighed by the overwhelming evidence that the government did allow ent onto portions of the servitude throughout the 1970s. So overwhelming In fact and In law

that no reasonable trier of fact could find otherwise. See discussion infra.

26

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 27 of 34
Page 27 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

to military operations in the area that would potentially

prove

dangerous

to companies

engaging

in geophysical

exploration.

See also Exs. 10ee-mm (detailing extent of

government's moratorium). 19

Regardless, the plaintiffs'

evidence deals only with the area subject to the moratorium
and not the portion of the servitude that lies outside of the

area restricted by the Army. Even when the moratorium was in

place, the plaintiffs admit that about forty-percent of the
total acreage of the servitude was outside the Intensive Use

Area and not covered by the government's moratorium. See

United States' Statement of Material Facts, Ex. 13; PIs.'
Resp. to United States' Statement of Material Facts, Statement
8h, at 10.20 Again, if portions of the servitude remained open

to drilling, the government's moratorium would not be

considered

an

obstruction

that

would

have

suspended

prescription. See Hanszen, 246 So. 2d at 206.
The plaintiffs have not presented any proof that Wm. T.

Burton Industries' was denied access to the portion of Group
A lands that remained outside the artillery range and exempt
from the government's moratorium.

They also do not explain

why they did not attempt to access the servitude when other
18 Pleints provide extensive documentry evidence regarding the Army's continuing moratorium on the Fort
Polk artller range, only a small portion of which are referenced here. We find it unnecessary to detail every piece of

evidence given th Fort Polk did not comprise the full area of the servitude and that other parts of the servitude were
available for driling actvity.

20 Plaintiffs then contradict themselves in baldly asserting that the entirety of Group A and B lands were subject to intensive use by the military, but provide no summary judgment evidence to support this proposition. See Pis.' Resp. to United States' Statement of Material Facts, Resp. to Statement 23, at 41.

27

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 28 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 28 of 34

companies clearly were granted permission to do so by the
United States. There is considerable evidence that indicates
that Wm. T. Burton Industries should have been on notice that

they were able to enter portions of its servitude during the

1960s and 1970s. The plaintiffs' argument that the
prescriptive period was suspended by the creation of an

obstacle by the government during the early 1960s is
undermined by the fact that Wm. T. Burton Industries' own
lessee, Pan American, was able to access a portion of the

servitude to engage in drilling so as to interrupt
prescription in 1964. Moreover, it is apparent that numerous
seismic surveys were shot over the 1929 servitude between 1966

to 1984. According to the seismic line map. compiled by
Gretchen Hunt of the Forest Service, lines were shot over the

servitude by CGG and Chevron in 1970, by Arco from 1971-73, and by Shell in 1976. See Hunt Decl., Attachments (relying,
in part, on information obtained by plaintiffs' land man Val

Miller) .
I f companies were able to access the Limited Use Area
during the 1970s, the court is inclined to conclude that Wm.
T. Burton Industries also could have entered the land. In its

reply to the government's motion for summary judgment, the
plaintiffs state that they were "prevented from crossing the
lands subject to the condemnation proceedings to reach those

lands which were not." They fail to provide any summary
28

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 29 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 29 of 34

judgment evidence to support this statement.

Further,

al though the plaintiffs dispute the accuracy of the
information provided by the government, they fail to present
summary judgment evidence to directly refute the evidence that

lines were shot by CGG, Chevron, Arco, and Hess during the

1970s.

The information that the Army allowed access for

geophysical operations during this period vitiates plaintiffs'

arguments that the government denied access to the servitude

during the 1970s so as to create an obstacle to plaintiffs'
use of the land. Again, the availability of even part of the

servitude for drilling would have caused the servitude to
lapse for nonuse. See Mire, 186 So. 2d at 595-97 i Hanszen,

246 So. 2d at 206. Although the evidence of access detailed
above defeats a finding that an obstacle existed, it is not

sufficient to show that the prescriptive period was interrupted. Even if the companies that conducted seismic
surveys were. acting at the behest of Wm. T. Burton Industries,
as the plaintiffs imply, 21 since no drilling actually occurred,

prescription would not have been interrupted.
Stat. Ann. § 31: 30.

See La. Rev.

21 (Ulse of a mineal servitde must be by the owner of the seitude, his representative or employee, or some

other person acting in his behalf. - La. Rev. Stat. Ann. § 31 :42 (West 2000); see also id. cmts. (explaining the

comparable law under the pre-existing Civil Code). "A person is acting on behalf of a servitude owner only when
there is a legal relationship between him and the servitude owner, such as co-ownershIp or agency, or when there is
clear end convincing evidence that he intended to act for the servitude owner. . ..- La. Rev. Stat. Ann. § 31 :43.

29

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 30 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 30 of 34

2. Activities Between 1978 and 1996
Assuming, arguendo, that the servitude did not prescribe

due to nonuse prior to 1978, it is evident that the servitude

still would have lapsed sometime between 1978 and 1996. The
impediment to exploration of the Fort Polk artillery range was

lifted as of 31 March 1978. See United States' Mot. for Summ.

J., Ex. 48 (letter dated 31 March 1977 from John Camp to
Michael Drost acknowledging that Ary's moratorium was to end on 31 March 1978); Ex. 55 (letter from Major General William

B. Steele to Commander, US Army FORSCOM dated 6 June 1977
explaining that moratorium over Fort Polk was to end on 31

March 1978). The plaintiffs urge, however, that the
government continued effectively to deny access to the
servitude through a de facto moratorium subsequent to 1978.

As mentioned previously, mere preparatory acti vi ties such as

geophysical exploration and surveying, do not interrupt
prescription. See La. Rev. Stat. Ann. § 31:30. It is
undisputed that Wm. T. Burton Industries did not engage in

actual drilling between 1978 and 1996. See Pls.' Resp. to
United States' Statement of Material Facts, Resp. to Statement

36, at 58. Therefore, the only way the plaintiffs can avoid
summary judgment is if they can show that the United States
continued to block access to the lands burdened by the 1929
servitude between 1978 and 1996.

30

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 31 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000. Page 31 of 34

There were several occurrences that should have put Wm.
T. Burton Industries on notice that they could have used their

servitude subsequent to 1978. As an initial matter, Wm. T.
Burton Industries should have been put on notice that entry

would be permitted by the fact that the government stopped

paying Wm. T. Burton Industries to refrain from using the artillery range for drilling activity in 1978. See United
States' Statement of Material Facts, Statement 27; United
States' Mot. for Summ. J., Ex. 55 (letter from Major General

William B. Steele to Commander, US Army FORSCOM dated 6 June

1977 explaining that moratorium payments were to end on 31

March 1978); PIs.' Resp. to United States' Statement of
Material Facts, Statement 27, at 43. Moreover, it is apparent

that various companies were able to access portions of the

servitude to conduct seismographic surveys after 1978. For
instance, with a permit from Wm. T. Burton Industries, Shell
Oil secured the right to enter a portion of the lands burdened

by the servitude in 1980. See id., Exs. 20, 21. Certainly,
the existence of a permit between Wm. T. Burton Industries and

Shell shows that Wm. T. Burton Industries had knowledge that

the government was allowing access to a portion of the

servitude. Further, Delta Exploration and Petty Ray
Geosource, on behalf of Chevron Oil, each ran seismic surveys
with permission of the Forestry Service and the Army in 1981.
See id., PIs.' Resp. to Statements 42d, 42f, at 66- 68; United

31

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 32 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 32 of 34

States' Mot. for Summ J., Exs. 73. 74. The United States also

allowed Hunt Exploration to access the servitude in 1980,
although there is no indication that Hunt actually undertook

exploratory actions. See United States' Mot. for Summ. J.,
Ex. 69.

In addition, Hunt's chart detailing seismic surveys shot

over the servitude shows that seventeen seismic lines were
shot by various companies including Seitel Data Ltd., Shell,

Stratex, Chevron, Amoco/Delta, and Petty-Ray Geophysical

between 1980 and 1984. See Hunt Decl., Attachments; United
States' Mot. for Summ. J., Ex. 90.22
Certainly, if some
companies were able to conduct seismic surveys over Group A

and B lands during the 1980s, plaintiffs cannot now argue

that an obstruction blocked its access to the servitude.
Finally, there is absolutely no evidence in the' record that
Wm. T. Burton Industries or any other company sought access to

the servitude between 1984 and 1996. Even if the servitude
did not prescribe prior to 1984, this twelve year period of

inactivity alone would have resulted in the servitude
reverting to the United States as surface owner.
Plaintiffs argue that the government's restrictions made

it impractical to use their servitude.

Even if the

government's moratorium may have made it more difficult and
22 Again, even if these companies were acting as agents of Wm. T. Burton Industries when they shot the

surveys, mere geophysical operations are not sufficient to interrpt prescription. See Le. Rev. Stat. Ann. § 31 :30.

32

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008
Filed 07/28/2000

Page 33 of 34
Page 33 of 34

Case 2:96-cv-02000-FAL-J DK Document 181

less productive to engage in drilling operations on the Group

A lands, pursuant to Louisiana law, the availability of even

a portion of the land for drilling would not have suspended
prescription. See Mire, 186 So. 2d at 595-597; Hanszen, 246

So. 2d at 206. The plaintiffs do not present any pertinent
summary judgment evidence to refute the government's argument

that no obstacle existed that prevented the plaintiffs'
predecessor Wm. T. Burton Industries from accessing portions
of the servitude between 1978 and 1996.23

iV. Conclusion
For the reasons set forth above, we DENY plaintiffs'

motion to strike the declarations of Hunt and Jaquette.
Interpreting the evidence in the light most favorable to the

plaintiffs, as we are bound to do in a motion for summary
judgment, we conclude that no issues of material fact remain for trial. Although numerous factual disputes remain between

the parties, summary judgment is not precluded if there are

mere factual discrepancies. Rather, there must be a genuine
issue of material fact remaining for trial. See Anderson, 477

u. S. at 249-50, 106 S. Ct. at 2509-10. We find ?o remaining

issues of fact that would affect the outcome of this case.
23 The plaintiffs point out that the government leased the minerals to other companies beginning in 1992.
~ PIs: Resp. to United States' Statement of Material Facts, Ex. 16. The surface owner's leasing of the minerals

underlying his land to someone other than the servitude owner does not in and of itself constitute an obstacle. See
Gayoso Co. v. Arkansas Natural Gas Corp., 146 So. 677, 679-80 (La. 1933); !! Gailey v. McFarlaln, 193 So.
570, 578-79ILa. 1940lIprior recorded mineral

lease on land upon which mineral servtude is subsequently created does

not constitute an obstacle).

33

Case 1:00-cv-00512-FMA

Document 53-4

Filed 09/02/2008

Page 34 of 34

Case 2:96-cv-02000-FAL-JDK Document 181

Filed 07/28/2000 Page 34 of 34

Plaintiffs have failed to refute the government's argument
that there were at least ten years of nonuse of the servi tude

between 1964 and 1996 with competent summary judgment
evidence. Ten years of nonuse effectuates a reversion of the

mineral servitude to the surface owners. See La. Rev. Stat.

An. § 31:27 (Mineral Code concept of prescription); La. Civ.
Code Ann. art. 753 (prescription under the Civil Code). The

servitude therefore reverted to the ownership of the United
States sometime prior to 1996. This finding comports with the

public policy of this state, which "favors the timely return
of outstanding minerals to the owner of the land." Mire, 186
So. 2d at 597. The government's motion for summary judgment is

GRATED and the plaintiffs' complaint is DISMISSED WITH

PREJUICE.
Alexandria, Louisiana
28 July 2000

cOpy SENT:
DATE~ rz - i:t-tJ Ò

BY: yx

To"h

~ ~ ~ ~ ~ ~

F. A. LITTLE, JR., CHIEF JUGE UNITED STATES DISTRICT COURT

~ent&

,d Le,.;

34