Summary
holding that the Commission could not restrict drilling within one mile of the New Orleans Causeway Bridge contrary to authorization of LOC and Corps of Engineers
Summary of this case from Energy Mgt. Corp. v. City of ShreveportOpinion
No. 86-C-338.
September 8, 1986.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE E.V. RICHARDS, IV, J.
David Treen, Deutach, Kerrigan Stiles, New Orleans, for defendant-appellee.
William McM. King, Covington, J. Dwight LeBlanc, Jr., Kenneth J. Servay, Thomas D. Forbes, Chaffe, McCall, Phillips, Toler Sarpy, New Orleans, for plaintiff-appellant.
Before GRISBAUM and DUFRESNE, JJ., and NACCARI, J. Pro Tem.
This Matter comes before us on an appeal from various judgments and amended judgments from the district court.
As per our Per Curiam issued August 5, 1986, we are consolidating the judgment of May 23, 1986, the amended judgment of May 30, 1986, the second amended judgment of June 5, 1986, and the amended judgment of August 13, 1986, into one appeal. Since we recognize that the Greater New Orleans Expressway Commission (GNOEC) considers that the development of oil production in the area poses a serious threat to the physical structure of the Causeway and we likewise are concerned with the safety and welfare of the public, we consolidated and expedited this matter to minimize the delays in appellate review.
The district judge granted a preliminary injunction prohibiting the drilling of a well in Lake Pontchartrain on State Lease 11982 except under certain enumerated restrictive and regulatory conditions, GNOEC has appealed these judgments. We affirm.
FACTS
Traver Oil Company (defendant), the holder of State Lease No. 11982, covering water bottoms in Lake Pontchartrain, has engaged in numerous drilling operations in the Lake. On December 3, 1985, in accordance with the State Statutes governing same, Traver was granted a permit to drill a well at a point 2.2 miles north of the south shoreline of Lake Pontchartrain and 1338 feet west of the Lake Pontchartrain Causeway. Additionally, on November 26, 1985, the Department of Natural Resources, Coastal Management Division (DNR) issued to Traver a coastal use permit for the site. Pursuant to the provisions of R.S. 49:213.16(B), (C), the Greater New Orleans Expressway Commission (GNOEC) filed a petition for reconsideration. The DNR which had provided for some restrictions in the operations denied the petition for reconsideration. This prompted a suit against DNR and Traver under Docket No. 322-661 (not the present suit) in the 24th Judicial District Court. The United States Corps of Engineers issued its permit authorizing the operations on November 13, 1985.
On January 21, 1986, the GNOEC filed a petition against Traver seeking, under the provisions of Civil Code Articles 667 and 2317 and Code of Civil Procedure Articles 74 and 3601, injunctive relief to prohibit: (1) the drilling of a well at the location for which the State had issued the drilling permit, and (2) prohibiting the drilling of any well within one mile on either side of the Causeway. Upon filing of the petition, a hearing for a preliminary injunction (a temporary restraining order was not applied for) was set for February 13, 1986. Apparently, because the original permit issued by the U.S. Corps of Engineers had been suspended on February 6, 1986, by consent of the litigants the hearing on the preliminary injunction was delayed.
Then, in April 1986, the U.S. Corps of Engineers reinstated its permit but with eleven specific restrictions or requirements imposed on the operations within one mile of the Causeway.
Subsequently, a court hearing was held on May 15, 1986, and the trial court granted a preliminary injunction enjoining any operation until a plan could be implemented for the drilling by Traver Oil Co.
On May 23, 1986, the trial court signed the judgment which provided "The preliminary injunction granted by the court on May 15, 1986 be and is hereby continued" and then enjoined Traver, its employees, agents, contractors and sub-contractors engaged in the drilling of a well on State Lease # 11982 as permitted by the State from entering the one mile zone on either side of the Causeway except under specified conditions enumerated in the judgment.
On May 29, 1986, pursuant to the provisions of Code of Civil Procedure Article 3612, The GNOEC filed a motion for a suspensive appeal. On May 30, 1986, the trial judge denied the suspensive appeal, granted a devolutive appeal and set the return date for the appeal on July 15, 1986. Additionally, the trial court amended its original judgment by changing some of the restrictions and/or requirements imposed on Traver, including a requirement that Traver make GNOEC a named insured under its policy.
A writ application was filed in this court on June 2, 1986. In this application, GNOEC contended the trial court erred in denying its request for a suspensive appeal and asked that the panel grant one or alternatively grant a stay order pending a hearing on the devolutive appeal. On June 3, 1986, the panel denied the issuance of a stay order, granted a writ of review and ordered the entire record and transcript of the hearing to be filed with this court on or before June 5, 1986.
The panel was further informed there were additional hearings in the trial court which had resulted in further modifications of the requirements or restrictions contained in the original trial court judgment.
The transcripts of these hearings were ordered to be filed with this court and oral arguments were set for August 5, 1986. On that date this panel issued the Per Curiam to consolidate all the judgments issued in this matter into one appeal.
On August 13, 1986, the District Court issued a further amended judgment which continued all previous orders of the court and granted Traver Oil Co. an additional six weeks to complete its production activities in Lake Pontchartrain on State Lease 11982.
GNOEC filed a motion to stay all maritime activities by Traver, pending the appeal before this court. We granted the stay requested until further orders.
ISSUES
The main issue for our concern in this consolidated appeal is whether or not the District Court erred in allowing drilling activity and oil production activity within one mile of the Greater New Orleans Causeway Bridge because such activity presents a direct and serious threat to public safety and welfare.
Further, the appellant has urged us to prohibit future drillings or oil production activities as such will result in irreparable harm to the public safety and welfare.
Traver Oil Co. has "filed" an answer to the appeal and has presented arguments that the trial court lacked jurisdiction over these proceedings and that the GNOEC did not have a right of action in the matter. They have further urged that the trial judge erred in his judgment indicating that the drilling and oil production activities of Traver Oil Co. within the one-mile zone adjacent to the Causeway Bridge could cause damage to the safety of the Causeway and motorists using same.
Initially, we will consider the issues raised by the appellee in its answer and/or cross appeal (which we have never found in the record).
Traver cites La.R.S. 30:12 which vests exclusive jurisdiction to challenge the issuance of a drilling permit with the 19th Judicial Court for the Parish of East Baton Rouge, where the Department of Natural Resources is domiciled. We agree with GNOEC that this position lacks merit. GNOEC is not challenging the issuance of the drilling permit to Traver but is challenging the alleged dangerous commercial marine operations within one mile of the Causeway Bridge.
The wording of La.R.S. 30:12 provides that the suit be brought against the assistant secretary (office of conservation) as defendant. The Third Circuit in Theriot v. Mermentau Resources, Inc. 385 So.2d 939 (La.App. 3rd Cir. 1980) held that the lawsuit was an attack on the permit issued by the Commissioner of Conservation and that under R.S. 30:12, such suit could only be brought in East Baton Rouge Parish.
Here there is no specific attack on the permit issued by the Department of Conservation and we agree with the ruling of the trial judge that R.S. 30:12 is not applicable here and that the 24th Judicial District Court does have jurisdiction.
Traver has also urged that the GNOEC has no right of action to seek injunctive relief, citing La.R.S. 30:204(F) and 30:218. This position was overruled by the trial judge. The main purpose of these statutes is to prevent any state agencies other than the Department of Conservation from establishing other permit requirements applicable to those with a Department of Conservation permit. There is no prohibition in either of the above two sections which prohibit the issuance of injunction to protect the public safety and welfare. Accordingly, we agree with the ruling of the trial judge on this issue.
Thirdly, Traver has submitted that the District Court erred in finding that intrusion into an area within one mile of the Causeway Bridge was dangerous per se. Although we agree that in accordance with LA.R.S. 30:204(D)(3) and (E), the well in question does not come under a suspect classification; it is located in an area within the one-mile "prohibited zone" of the Causeway Bridge as established by the Department of Wildlife and Fisheries. Activity within this area does present certain conditions and circumstances that must be properly addressed and must be controlled and restricted.
Finally, we must examine the main issue before this court concerning whether or not the District Judge erred in allowing drilling activity and oil production activity within one-mile of the Causeway Bridge. GNOEC has urged that this is a direct and serious threat to public safety and welfare of the Causeway Bridge and the motorists who use it.
The trial judge after review of the documents presented and the testimony of the many experts issued an injunction prohibiting Traver Oil Co. from drilling a well and performing other related oil production activities in Lake Pontchartrain on State Lease 11982, except under certain enumerated restrictive and regulatory conditions. (See Judgments Rendered — Appendix A, B, C.)
We have reviewed the record and documents and agree with the ruling of the District Judge. The Collision Avoidance Warning System (CAWS) as provided by LSA-R.S. 34:851.24(J) (K) require the following:
J. Every commercial tug or towboat or self-propelled dredge operating on Lake Pontchartrain shall be equipped with transmitting and receiving devices compatible and appropriate for use with the Loran C. Early Warning System. If a commercial tug, towboat, or self-propelled dredge does not have the equipment required by this Subsection and if that vessel is under contract, the individual who hires the vessel shall be responsible for ensuring that the transmitting and receiving device required herein is provided aboard the vessel.
K. The commission is hereby authorized to make rules and regulations modifying the equipment requirements contained in this Section to the extent necessary to keep these requirements in conformity with the provisions of the federal navigation laws or with the navigation rules promulgated by the United States Coast Guard.
Said statute does not prohibit operations on Lake Pontchartrain but provides for an electronic warning system to the specified types of watercraft.
In the case at bar, to allow Traver to conduct its petroleum activities on State Lease 11982, will not compromise the "CAWS" alarm system nor necessarily cause any unsafe conditions to exist. The trial judge expressed it very adequately when he indicated that with the restrictions imposed by the Corps of Engineers and modified and expanded by the trial court "the area of the Traver drillsite is probably the safest part of the Causeway." We agree.
There has been no positive testimony that the Traver operation at this location as restricted by the trial court will be unsafe. This is not to say that it is impossible for an accident to take place. However, the condition under which Traver has been ordered to operate does not appear to weaken the safety precautions and procedures of the CAWS System.
The GNOEC has further urged that this legally sanctioned project into the one-mile zone will serve as a precedent for future oil drilling operations close to the Causeway Bridge. This contention does present some problems. Although we realize that the one-mile prohibited zone is not protected by statute; this zone has become an area that the GNOEC would want restricted so that the CAWS alarm system can function as designed to protect the Causeway Bridge.
The ultimate responsibility of prohibiting "all" drilling or oil production activities within one mile of the Causeway Bridge rests with the Louisiana Legislature. However, we consider the possible danger to the Causeway Bridge and the safety of the motorists using it to be such that all means should be used to provide the highest degree of safety to all concerned.
We affirm the trial judge's ruling to allow Traver Oil Co. to complete its production activities as regulated and restricted in his judgments, but we want to emphasize we do so under the specific conditions and posture in which this case comes before this court. Here the drilling of the well has been completed and only the connecting of the pipeline is necessary to place this well on-line.
Accordingly, we do want to stress that we do not intend for this opinion to necessarily serve as a precedent for future oil drilling operations near the Causeway Bridge. Each proposed drilling operation must obtain a permit and we urge the utmost care in the granting of future permits in the proximity of the Causeway Bridge. Basically, we hold that Traver can complete its operations on this location. Although there is no specific statute prohibiting drilling oil wells within one mile of the Causeway — there should be one — which would provide that the operations of the CAWS System as designed is not weakened or compromised in any manner.
We have considered the other contentions by GNOEC that Traver has not fully complied with the court judgments and conclude that these should be directed to the District Court on a Rule for Contempt. These arguments have no merit here and do not warrant consideration by this court.
Likewise, we find no merit in the appellant's argument that the trial judge erred in accepting or in rejecting the testimony of various witnesses before the court. His judgments are supported by the record. Furthermore, his reasons for judgment reflect his prime concerns, the safety of the Causeway Bridge and motorists who use it.
CONCLUSIONS
For the reasons assigned, the judgments of the District Court are affirmed in all aspects.
It is further ordered that the stay order previously issued by this court on August 15, 1986, be revoked and rescinded. The six-week period granted Traver Oil Company for completion of its production activities in Lake Pontchartrain on State Lease 11982 shall begin no sooner than September 8, 1986, and no later than September 15, 1986.
All costs of this appeal are to be assessed against the appellant.
AFFIRMED; STAY ORDER REVOKED AND RESCINDED.
GRISBAUM, J., concurring in part and dissenting in part with written reasons.
NACCARI, J., concurring with written reasons.
APPENDIX A
AMENDED JUDGMENT
IT IS ORDERED BY THE COURT that the preliminary injunction granted by the Court on May 15, 1986, be and is hereby continued. All employees, agents, contractors and subcontractors of Traver Oil Company who are or might be engaged in the preparations for and the drilling of a well in Lake Pontchartrain on State Lease 11982 as permitted by the Louisiana Office of Conservation are prohibited from entering the one-mile zone on either side of the Causeway except under the following conditions:
A. Definition of Terms. The terms used in Part B hereof have the following meanings:
(1) "Base station" means the office of the Louisiana Department of Wildlife and Fisheries which houses the Loran C Early Warning System, located on the New Basin Canal in New Orleans.
(2) "Bridge" means the bridge crossing Lake Pontchartrain operated by the Greater New Orleans Expressway Commission (GNOEC).
(3) "CAWS" means the Collision Avoidance Warning System.
(4) "CAWS unit" means the mobile unit required to be on board every commercial tug, towboat, and self-propelled dredge operating on Lake Pontchartrain by L.R.S. 34:851.24.
(5) "Drill location" means that location permitted Traver Oil Company for the drilling of a well by the Louisiana Office of Conservation on State Lease 11982.
(6) "GNOEC" means the Greater New Orleans Expressway Commission.
(7) "Inspector" means that person located on the drilling platform to monitor, control and be in charge of the surface vessel activities of the project, who shall be either employed by or approved by either the GNOEC or the Department of Wildlife and Fisheries, approval of which shall not unreasonably be withheld.
(8) "Prohibited zone" means a one-mile zone parallel to each side of the bridge.
(9) "Project" means all of the activities engaged in by Traver Oil Company to carry out the drilling, completion and connections of the well on State Lease 11982.
(10) "DWF" means the Louisiana Department of Wildlife and Fisheries.
(11) "DNR" means the Louisiana Department of Natural Resources.
B. The following procedures shall be followed:
(1) A GNOEC patrolman and patrol vehicle (bridge patrolman) will be stationed at the vehicular crossover located approximately 3.3 miles north of the South Toll Plaza on a 24-hour per day basis commencing with the first entry by a project barge or tug in the prohibited zone west of the bridge until the departure of the last such vessel. The bridge patrolman shall be equipped with binoculars and radio communication equipment which will enable him to communicate with the base station, with the Causeway Patrol, with other project vessels, and, after the drilling platform is in place, with the Inspector aboard the platform. In the event a patrolman cannot be provided by GNOEC, for any reason, for any period during which a patrolman is required to be stationed on the bridge, a state policeman may be substituted.
(2) All project vessels and the drilling barge (platform) shall be equipped with radio communication equipment which will provide communication links with the bridge patrolman, base station, and other vessels.
(3) Each project tug will be equipped with a CAWS unit, as well as any other vessel which requires such a unit under existing DWF procedures.
(4) Movements to or from the drill location by the work, shell, service and drilling barges and by transporting tugs shall be accomplished only during daylight hours in calm weather, and when there is clear visibility between the drill location, the bridge, and the location of the bridge patrolman. Any seas higher than four (4) feet shall not be considered calm weather.
(5) Movements of such vessels and equipment to the drill location shall be at a 45 degree angle to the bridge.
(6) At no time shall any vessel or equipment (except the escort vessel) exceed the speed of two knots when in the prohibited zone.
(7) Prior to and during the transport of the work and shell barges to and from the drill location, the following shall be implemented:
(a) The base station will be provided three (3) hour and one (1) hour advance notification of entry into the Prohibited zone by a Traver representative.
(b) Two (2) tugs will participate in the transport: One (1) for push and One (1) for pull. Only one barge shall be in tow.
(c) One (1) escort vessel will proceed in front of the work and shell barge while being transported within the Prohibited Zone.
(d) Barges shall always be moored to a tug when at the drilling location and when within one (1) mile of the bridge.
(e) Prior to transport, radio communication must have been established between the tug operator, escort vessel, bridge patrolman, and the base station. From that time on, continuous radio communication will be maintained between these same individuals.
(f) The base station shall be notified one (1) hour prior to and upon departure of the work and shell barges from the drill location.
(8) Prior to and during the transport of the drill barge to and from the drill location, the following shall be implemented:
(a) The base station will be provided three (3) hour and one (1) hour advance notification of entry into the Prohibited zone by the Traver representative.
(b) Three (3) tugs will participate in the transport: One (1) for push, one (1) for pull, and one (1) for constant assistance at port or starboard as the situation dictates.
(c) One (1) escort vessel will proceed in front of the drill barge in tow.
(d) Prior to transport, radio communication must have been established between the tug operator, escort vessel, bridge patrolman, and the base station. From that time on, continuous radio communication will be maintained between these same individuals.
(e) The base station shall be notified one (1) hour prior to and upon departure of the drill barge from the drill location.
(9) Prior to and during the transport of the service barge to and from the drill location, the following shall be implemented:
(a) The base station will be provided one (1) hour advance notification of entry into the Prohibited zone.
(b) Two (2) tugs will participate in the transport: One (1) for push, one (1) for pull. Only one (1) barge shall be in tow.
(c) One (1) escort vessel will proceed in front of the service barge in tow while being transported within the Prohibited Zone.
(d) Prior to transport radio communication must have been established between the tug operator, escort vessel, bridge patrolman, and the base station. From that time on, continuous radio communication will be maintained between these same individuals.
(e) The base station shall be notified one (1) hour prior to and upon departure of any service barge from the drill location.
(10) All tugs shall have a minimum of three (3) crew members, of which two shall be awake at all time.
(11) When stationary at the drilling platform, barges shall always be securely moored to a tug as well as to piling or to another barge with tug which in turn will be moored to piling.
(12) The moorings and equipment shall be monitored by an Inspector who shall be stationed on the drilling platform on a 24-hour basis. This individual will maintain radio communication with the base station, the bridge patrolman and all vessels operating within the Prohibited Zone from the time of entry until the time of departure. The Inspector will be furnished a set of binoculars and a portable VHF and UHF radio (walkie talkie).
(13) A patrol boat will encircle the drill location on a 24-hour basis for surveillance.
(14) Traver shall require, in advance of any operation, that all persons engaged in such operation be thoroughly instructed in the procedures required by this order and the operational requirements of the DWF and GNOEC; and, further, that adherence to this order be made a provision of any contract with any person, firm or corporation undertaking any activities in connection with the project. Traver shall cause to be served upon all contractors, subcontractors, employees and agents engaged in the operation a certified copy of the injunction before such contractors, subcontractors, employees and agents commence operations pursuant to this plan, and Traver shall provide the Court with written acceptance of such service.
(15) The drilling platform inspector shall continuously inspect and monitor all moorings and carefully observe arrivals and departures at the drilling platform, and notify the base station, bridge patrolman, and attending vessels of (a) all arrivals and departures from the platform; (b) any intrusion of any vessel within 1100 feet of the bridge; (c) any breaking loose of any barge from its moorings to the drilling platform or its attending tugs; and (d) any other event which may possibly result in collision with the bridge.
(16) Any loss of power or steerage by a tug or breaking loose of any barge shall be immediately communicated by the tug operator to the base station, the bridge patrolman, the drilling platform inspector and other vessels.
(17) In the event of any emergency requiring deviation from any procedures described in this order, such deviation may be, and shall only be, carried out by authorization of the DWF or GNOEC through its designated officials.
(18) No tug, or barge in tow of a tug, shall be operated closer to the bridge than the drill location, except upon arriving and departing the drill location a maneuvering area of no more that 150 feet to the east side of the drilling platform may be utilized.
(19) In the event that a pipeline is to be connected to a completed well for the purpose of removing either oil or gas, or both, the procedures set forth herein for the drilling operation shall apply. Any storage tank platform shall be located more than one mile from the bridge.
(20) All vessels required by law to be equipped with CAWS units shall be so equipped at all times.
(21) When any vessel so equipped enters the Prohibited zone, in addition to acknowledging the alarm signal, it shall immediately communicate by radio with the base station, the bridge patrolman and, after the drilling platform is in place, the inspector on the platform, to report its identity and, if towing a barge, the make-up of its tow, its intended course to the drill location, and, if intending to moor to the platform, the side to which it will moor. From that time until the vessel departs the Prohibited zone it shall be under constant surveillance by (a) the bridge patrolman, (b) the escort vessel, (c) the patrol vessel, and, (d) after the drilling platform is in place, the inspector on the drilling platform. During this period of time the base station may disengage the vessel from the CAWS system, but may from time to time, if it deems appropriate, reconnect the CAWS system for the purpose of periodic computer interrogation.
(22) The CAWS system shall be temporarily modified for vessels that are specifically identified as being engaged in the project in the following manner. When any such CAWS-equipped vessel enters the Prohibited zone, after acknowledging the initial alarm, it shall continue to be interrogated every 45 seconds and computer tracked as the system currently operates, but the alarm sequence shall be discontinued (logged out) by action of the base station until the vessel departs the Prohibited zone. Provided, the alarm sequence will not be discontinued (logged out) until the base station is satisfied that the vessel is within the vicinity of the drill location necessary to the activities of the project; and, provided further, that the alarm sequence will be re-established (logged in) at any time the base station determines that the vessel is no longer within the vicinity of the drill location necessary to the activities of the project, and, provided further, that the alarm sequence shall be automatically reestablished if any vessel comes within 1000 feet of the bridge. The "alarm sequence" means that part of the current system which sounds an alarm on board the vessel and which provides an audible alert in the base station and repeated printout by the computer printer.
The modifications shall not affect the alarm sequence which is activated by a vessel moving at more than four miles per hour in either the Buffer zone or the Prohibited zone. Nor shall the modifications prevent the base station from re-establishing (logging in) the alarm sequence at any time it determines to do so. The alarm sequence shall be re-established (logged in) for a CAWS-equipped vessel when such vessel leaves the Prohibited zone.
The modifications shall provide a 100 foot level of accuracy in the Prohibited zone for the affected vessels.
The modifications shall not alter the current CAWS system in any manner for any vessel other than those specially identified as being engaged in this project.
Buoys shall be placed as aids to navigation in the operational area leading to and around the drill location. The buoys shall be located as follows:
a) At 200 foot intervals along a line 1000 feet west of and parallel to the bridge extending 500 feet to the north of and 500 feet to the south of the drill location, and
b) At 200 foot intervals for a distance of 1000 feet beginning at the southernmost buoy described in (a) and running perpendicular to the line of those buoys in a westerly direction, and
c) At 200 foot intervals for a distance of 400 feet beginning at the northernmost buoy described in (a) and running perpendicular to the line of those buoys in a westerly direction, and
d) At intervals of 900 feet beginning at the westernmost buoy described in (c) and extending in a straight line at a 45 degree angle from the line of those buoys in a generally northwesterly direction to the one mile boundary of the prohibited zone, and
e) At intervals of 900 feet in a line parallel to and southerly of the buoys described in (d) and extending the same distance; all of which are shown on the diagram attached hereto and made a part hereof.
All CAWS-equipped vessels shall approach and depart the drill location within the fairway delineated by the buoys described in (d) and (e) above, and when in the vicinity of the drill location, within the buoys described in (a), (b) and (c) above.
The cost of such modifications will be paid for by Traver Oil Company. In addition, Traver Oil Company will pay the full cost of maintaining additional personnel at the base station to provide monitoring of the tracking data on such vessels from sunrise to sunset. Should any such vessel operate closer than 1200 feet from the bridge, the regular personnel will immediately be notified by the personnel specially engaged.
After the system modifications described in this paragraph are in operation, the procedure described in the last sentence of Paragraph 21 shall be discontinued.
(23) Traver Oil shall, through contractual means, establish the right to dismiss any personnel from the project activity who violates any provision of this order, of any rule or regulation of the DWF or the GNOEC.
(24) Traver Oil shall hold the GNOEC harmless from any expense incurred by complying with this order and any damages sustained as a result of operations within the one-mile zone.Traver Oil in its liability or protection and indemnity insurance policy shall name GNOEC as a named insured in said policy with a waiver of subrogation in favor of GNOEC.
(25) The Court limits the operations to a thirty (30) day time period. Traver Oil shall notify the GNOEC, the Louisiana Department of Wildlife and Fisheries and the Court of the dates on which they will commence and cease operations.
(26) Any difficulties arising from this order will be heard without delay by telephone conference with all parties if the Court deems is necessary.
Gretna, Louisiana, this 30th day of May, 1986.
APPEAL COURT NOTE
This amended judgment is identical to the original judgment of May 23, 1986, except for the addition to No. 24 above which we have underlined.
APPENDIX B
SECOND AMENDED JUDGMENT
In accordance with the Court's oral ruling in open court on June 4, 1986, after contradictory hearing, IT IS ORDERED that the Court's Judgment, entered on May 23, 1986, as amended by the Court's Amended Judgment of May 30, 1986, is further amended as follows:
1. Traver Oil Company, and all persons and companies associated with the Traver Oil Company project, are prohibited from moving or shifting any and all tugs, barges, or any other large commercial vessels within the Lake Pontchartrain CAWS Prohibited Zone, from sunset to sunrise, or during bad weather.
2. Traver Oil Company, and all persons and companies associated with the Traver Oil Company project, shall not move or shift any tug, barge, or other large commercial vessel within the Lake Pontchartrain CAWS Prohibited Zone, from sunrise to sunset, and during good weather, until it has notified the Lake Pontchartrain CAWS base station operator and the GNOEC, through the patrolman stationed on watch, and until it has complied with all other provisions of this Court's judgment, as amended, as are applicable to the vessel shifting, or other vessel movement in question.
3. The intention of the Court's Judgment is that all tug, barge and other large commercial vessel movement of any kind within the Prohibited Zone in any way associated with the Traver Project is within the scope of the Court's Judgment, and is subject to the conditions of the Court's judgment.
4. Traver Oil Company is ordered to distribute copies of this Second Amended Judgment to all personnel involved with its project, and to assure that all personnel involved with its project are aware of, and fully comply with, the provisions of the Court's Judgment as amended.
Gretna, Louisiana, this 5th day of June, 1986.
APPENDIX C
JUDGMENT
IT IS ORDERED by the Court that the motion by Traver Oil Company for an amendment to the previous Judgments of this Court is granted, and accordingly:
(1) Traver Oil Company is hereby granted an additional period of six weeks commencing no sooner than August 22, 1986, and no later than September 1, 1986, within which to complete its production activities in Lake Pontchartrain on State Lease 11982 as previously allowed by this Court;
(2) All vessels restricted by this Order shall approach and leave the drillsite at an angle 90 degrees to the Causeway;
(3) In all other respects, the previous Orders of this Court relating to Traver Oil Company's activities at this site shall remain in effect.
GRETNA, LOUISIANA, this 13th day of August, 1986.
Although I concur in the majority's result on all of the issues in this case, I arrive at the decision that Traver should be allowed to complete the extraction operations by different reasoning.
It is clear that there is no statutory prohibition against drilling within. one mile of the Causeway, or indeed within any proximity to the bridge. While it is inconceivable that the legislature has failed to address this serious situation, it is equally appalling that the permitting authorities apparently spent little time investigating the potential of harm to the motorists on the bridge. Nevertheless, in the absence of statutory prohibition the trial court was faced with a situation in which it was required to decide whether or not the activity in question presented an unreasonable risk of harm. I believe the trial judge made a fundamental error in selecting the test to be used in determining whether or not the risk of harm was unreasonable. The trial court set out to determine whether or not this activity, with all its safeguards, presented a situation which was more dangerous than those risks presented by navigation normally conducted near the bridge. The fallacy in using this test is that navigation near the bridge cannot be prohibited without interfering with interstate commerce, something the state has no right to do, while the drilling of an oil well in proximity to the bridge is not a protected right. The test that should have been used is a balancing test which weighs the potential of harm to neighbouring parties against the utility gained by a party's disruptively exercising its rights. Hunt v. City Stores, Inc., 387 So.2d 585 (La. 1980); Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141 (La.App. 1st Cir. 1983). Had the trial court used the proper test, other methods of drilling and extraction such as the directional drilling method used by Pogo, Traver's predecessor, would have been considered to determine whether or not drilling in proximity to the bridge was reasonable. If directional drilling or some other method of extracting oil without operating in close proximity to the bridge would have resulted merely in increased cost to the producer, clearly it could not be considered reasonable to allow the activity to proceed when the increased cost is weighed against the potential for loss of life.
This court, however, must take the case in its present posture. In fact, the drilling activities have been completed. The most dangerous part of the operation is over, leaving only the relatively less dangerous process of installing a pipeline for the extraction of the oil. With the installation of each length of pipe, the activity moves farther from the bridge. Even if this court refused to allow operations to continue, it would be necessary to have the well permanently capped before abandonment, a procedure which should pose a further danger to the bridge and would provide no ultimate benefit. It would be grossly unfair for this court to prohibit the completion of this work after a prior panel, by denial of an application for a stay order, allowed the well to be drilled. The extensive safety precautions instituted by the trial court have apparently been successful. The worst is over, and the remaining operations should present no danger to the bridge.
I concur in the result only of the preliminary issues. Otherwise, I must vehemently dissent.
Traver Oil Company (Traver) claims that the Greater New Orleans Expressway Commission (GNOEC) did not have a right of action and also argues the trial court erred in indicating that the drilling and oil production activities of Traver within the one-mile zone adjacent to the Causeway could damage the safety of the Causeway and motorists using it.
Traver cites La.R.S. 30:12, which vests jurisdiction over direct challenges to the issuance of a drilling permit with the Nineteenth Judicial District Court for the Parish of East Baton Rouge, where the Department of Natural Resources (DNR) is domiciled. I agree with the GNOEC and the majority that this position lacks merit. The GNOEC is not challenging the issuance of the drilling permit to Traver but is challenging Traver's right to conduct dangerous commercial marine operations within one mile of the Causeway.
The wording of La.R.S. 30:12 provides that suit may be brought against the assistant secretary of the Department of Conservation. In a similar suit the Third Circuit in Theriot v. Mermentau Resources, Inc., 385 So.2d 939 (La.App. 3d Cir. 1980), held that a suit by a neighboring landowner seeking to enjoin the drilling of a disposal well permitted by the Commissioner of Conservation was in effect an attack on the permit issued by the Commissioner and that, under La.R.S. 30:12, such suit could be brought only in East Baton Rouge Parish. I respectfully disagree with the rationale of this case, being of the opinion that it reaches out to toss a plaintiff out of court notwithstanding the command of La. Const. art. I, § 22. Here, there is no specific attack on the permit issued by the Department of Conservation; accordingly, I agree with the ruling of the trial court in that La.R.S. 30:12 is not applicable and that the Twenty-Fourth Judicial District Court properly assumed jurisdiction. Even were I to ascribe to the rationale of Theriot, however, I would reach the same conclusion. In denying the GNOEC's petition for reconsideration of the insurance of the Coastal Use Permit, the DNR concludes as follows:
In pertinent part, La.R.S. 30:12 reads as follows:
A. (1) A person who is aggrieved by any law of this state with respect to conservation of oil or gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the assistant secretary of the office of conservation hereunder, or by an act done or threatened hereunder, and who has exhausted his administrative remedy, may obtain court review by a suit for injunction or judicial review against the assistant secretary as defendant.
(2) Suit for review shall be instituted in the district court of the parish in which the principal office of the assistant secretary is located and must be brought within sixty days of the administrative action that is the subject of the suit. In case of judicial review of adjudication proceedings, the sixty days shall begin to run after mailing of notice of the final decision or order, or if a rehearing is requested within sixty days after the decision thereon.
La. Const. art. I, § 22 reads as follows:
All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
The Department is concerned with the navigation-safety issue that has been raised by petitioner [GNOEC]. Such issue falls within the purview of the U.S. Coast Guard and the U.S. Corps of Engineers. As previously stated, this Department does not have any specific rules, regulations or guidelines which deal with the navigation-safety issue raised herein.
By this language, the DNR has specifically disclaimed any jurisdiction over the navigation-safety concerns raised by the GNOEC. Elemental due process dictates that one cannot be stripped of his rights by the expediency of removing the forums empowered to uphold those rights. Accordingly, again, the trial court possessed jurisdiction.
Traver also has urged that the GNOEC has no right of action to seek injunctive relief, citing La.R.S. 30:204(F) and 30:218. Falling within the context of a statute detailing permit procedures, the obvious purpose of the former provision is to prevent state agencies other than the Department of Conservation from establishing additional permit requirements applicable to persons holding a Department of Conservation permit. The latter provision, appearing in the context of statutes governing what shall transpire when two or more persons claim the same minerals on state lands, directs only that a claimant's ordinary remedy is sequestration of the product and that the extraordinary remedy of enjoining exploration is unavailable. Thus, La.R.S. 30:218 speaks to the instant dispute not at all. No provision in either of the two sections prohibits the issuance of an injunction to protect the public safety and welfare. Accordingly, the trial court did not err in upholding the GNOEC's right of action.
La.R.S. 30:204(F) provides thus:
The issuance of the permit by the commissioner of conservation shall be sufficient authorization to the holder of the permit to enter upon the property covered by the permit and to drill in search of minerals thereon. No other agency or political subdivision of the state shall have the authority, and they are hereby expressly forbidden, to prohibit or in any way interfere with the drilling of a well or test well in search of minerals by the holder of such a permit.
La.R.S. 30:218 provides thus:
No injunction shall issue against lessees of the state or state employees to restrain explanation for minerals on state lands. In all cases plaintiff's remedy shall be judicial sequestration of the product of the exploration or its proceeds until the rights of all claimants are determined.
I now take up the issues relative to injunctive relief. These bifurcate into two questions:
(1) Whether the trial court erred in maintaining its preliminary injunction as a permanent injunction, and
(2) Whether the trial court erred in finding the specific conditions attached to the injunction and allowing, first, drilling and, later, production eliminate the threat of irreparable harm.
As to the first question, I concur with the trial court and the majority in that the issuance of an injunction by the trial court, in the absence of a statute providing this remedy, necessarily entails the finding that Traver's activities pose a threat of irreparable injury. La.C.C.P. art. 3601. I fully concur with this finding. The threat to safety and the potential for loss of life (about 16,000 automobiles cross the bridge each day) created by Traver's activities are just such losses as "cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard" so as to threaten irreparable harm. Anzelmo v. La. Comm'n on Ethics for Public Employees, 435 So.2d 1082, 1087 (La.App. 1st Cir. 1983); Reed v. Allison Perrone, 376 So.2d 1067, 1069 (La.App. 4th Cir. 1979). Although the threatened irreparable injury will befall third parties or the public generally, an entity charged with their service may obtain injunctive relief. South Central Bell Telephone Co. v. F. Miller Sons, Inc., 382 So.2d 264, 265 (La.App. 3d Cir. 1980); State Bd. of Educ. v. Anthony, 289 So.2d 279, 284 (La.App. 1st Cir. 1973). Present the threat of irreparable injury, even otherwise lawful activities may be enjoined. Salter v. B.W.S. Corp., Inc., 290 So.2d 821, 824-25 (La. 1974). Both legally and factually, then, the grant of the injunction appears correct. Accordingly, the court did not err.
La.C.C.P. art. 3601, in pertinent part, reads:
An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. . .
The harder question — the one with which both I and the majority must chiefly grapple — is whether the conditions set forth in the injunction so defeat or diffuse the threat of irreparable harm that marine operations might safely be permitted. After a careful review of the record, I find that these conditions, at best, somewhat ameliorate the danger but by no means eliminate the risk or reduce it to an acceptable level. In concluding otherwise, I find the trial court fell victim to fundamental errors of fact and law.
The most serious of these — the most inescapable — is the court's, and now the majority's, utter and pervasive failure to grasp the danger wrought by sheer proximity. Traver's well is 1338 feet from the Causeway (just over one-quarter mile, one mile equalling 5280 feet). Given this fact, simple arithmetic demonstrates much of the danger: at one mile per hour, a vessel covers one-fourth mile in one-fourth of an hour, or 15 minutes; at four miles per hour, it covers the distance four times faster, or in three minutes and 45 seconds. This is precious little reaction time. Moreover, the problem is exacerbated by the 1000-foot (not 1338-foot) alarm perimeter, by the fact that CAWS (Collision Avoidance Warning System) devices will almost certainly not be at the nearest point on the tug-barge transports, by the 100-foot accuracy of the system, and by the devices being polled only intermittently, apparently once every 45 seconds. Given these variables, reaction time could easily be cut to around two minutes. And given that, whatever else is clear from the May 15 hearing, it is certain that no practiced, definitive response exists to an alarm, I deem it clear that two minutes is nowhere near a safe reaction time.
I note also that while under condition B(6) of the amended judgment a Traver vessel is not to exceed two knots while in the Prohibited Zone, under condition B(22) the automatic alarm does not reengage unless the vessel exceeds four miles per hour.
Required by La.R.S. 34:851.24(J) on all members of certain categories of vessels operating in Lake Pontchartrain, these devices both enable the Department of Wildlife and Fisheries automatically to track the vessels and contain an alarm that automatically is triggered under given conditions, especially among which are a vessel's speeding and a vessel's breaching the one-mile Prohibited Zone extending from either side of the Causeway.
This is as provided by condition B(22) of the amended judgment. I say "apparently" because, notwithstanding both the court's and Traver's recurrent allusions to a modified warning system, there is no testimony that such a system exists or, if it does, as to just how the modified system works. We have only how the judgment says it should function.
In the one instance in the record where a patrolman relates what transpired when he did observe unauthorized marine activity at the drill site, it is all too apparent that much time was devoted, first, to verifying the activity and, then, to discussing it by radio. This time elapsed with no contingency measures being taken. Moreover, only at the time of this episode did the patrolman realize he had misplaced a barge that earlier had been moored to the rig. He had not seen it leave but it was in fact gone. Obviously no response time at all exists if one, as here, fails to diagnose a problem to begin with.
I am reinforced in this view by the unrebutted testimony of Mr. Robert Lambert, general manager of the Greater New Orleans Expressway Commission, that the U.S. Coast Guard was of the opinion that only a one-and-one-half mile alarm zone could provide an adequate buffer for emergency response. Mr. Robert Smothers, who helped design the warning system, was of the same opinion. The one-mile zone that was eventually put in place was a commercial compromise, a concession to shell dredgers. Thus, as originally implemented, the Prohibited Zone already represented a compromise in safety. Confronted by an alarm zone diminished by about 80 percent in addition (down to about 1000 feet), we are asked to deem it, too, safe. I simply cannot conceive that less than one-sixth of the original mile-and-a-half safety buffer is safe enough. Nor can I agree that having a patrolman, distracted by heat by day or impaired by darkness at night, or by occasional patchy fog, watch over this seriously pared buffer zone appreciably helps.
This, again, assumes a modified system exists. See n. 7, supra.
As Traver's own expert testified, "the whole thing is based on response." No amount of intensive scrutiny can replace the time buffer on which the Causeway's safety is based. This was precisely Mr. Sheldon G. Held's point when he summarized:
Now, there has been a great deal done here where an attempt to ameliorate the proximities and to some extent I think its [sic] been done. There's been some amelioration to this proximity problem. But, it's a little bit like saying speed at any price, meaning that I don't think you can make this operation safe. It's unsafe in the nature of it due to the proximity to the Causeway. And I will agree that a great deal of effort has been made to ameliorate that. . . I don't think it changes much because there is too much given to human and mechanical failure here which can happen. And if it happens within a thousand feet there isn't much anybody can do in a thousand feet to react to it no matter how many vessels you have out there.
The trial court, focusing only on Held's inability to regurgitate some of the details of its prior judgment, too hastily dismissed his well-reasoned opinion.
Repeatedly at the May 15 hearing and again on July 15, counsel for Traver attempted to disparage the risk of proximity by comparing it to the dangers attending the north and south marine passes on the Causeway, where the one-mile Prohibited Zone must of necessity be transited. However, since the bridge supports at these points are protected by fenders, the situations are not analogous. More importantly, however, the argument is vitiated by a fundamental error. That is, the risks brought about by Traver's activities are not comparative with but additive to those at the bridge passes. And, as Held points out, the Traver risks are prompted by convenience, not by necessity, as are those at the passes, which, realistically, are required lest this State unreasonably interfere with interstate commerce.
Essentially, the court's decrees are premised on a factual scenario that outright dismisses the most serious danger posed by Traver's operations: proximity. Meticulously documented by expert testimony, this danger, in its essence, is ascertainable by common sense alone and is uncontroverted in the record. Yet when Mr. Held summarizes its nature, he is neither heeded nor met with any argument but, in the court's reasons, is merely ignored as testifying in terms "very general." I have but one quibble with this: I know one cannot banish risk by ignoring its existence. Moreover, since Traver now proposes both to rework the well and to lay a pipeline, the risk can only increase in correlation to the increased number of vessels in the area. The record is clear on this point, and the majority's failure to acknowledge the increased risk is inexplicable.
Beyond its failure to appreciate the overall dangers posed, the court errs also at a practical level, failing to appreciate or to counter the conflict of interest inherent in having Traver appoint its own rig "inspectors," a privilege gained in the vacuum between the judgment's failure to specify any qualifications and the Department of Wildlife and Fisheries' unwillingness to draft its own. The resultant de facto power of appointment no doubt contributed to the recurrent on-site interpretations of judgment ambiguities in Traver's favor. Having found a risk of irreparable injury, it became the district court's duty and now has become this Court's duty to ensure that the risk is eliminated — not in theory but in fact. We cannot close our eyes and trust in paper fences planted in optimism.
The court's unfounded denial of the risk is compounded by concomitant errors of law. The first comes at the May 15 hearing, when the court disallows testimony as to the utility gained by drilling 1338 feet from the bridge instead of farther away. Under an injunction issued on an abuse-of-right theory, it is clear such testimony is pertinent to the case. That is, the harm done neighboring parties is to be balanced against any utility gained by a party's disruptively exercising its rights. Illinois Cent. Gulf R.R. Co. v. Int'l Harvester Co., 368 So.2d 1009, 1013-15 (La. 1979); Morse v. J. Ray McDermott Co., Inc., 344 So.2d 1353, 1368-69 (La. 1977); Higgins Oil Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (La. 1919). Here, the omission of the comparative data is especially suspect since we know a well could be directionally drilled from over a mile away. Traver's predecessor, Pogo, did precisely this. Granting that Traver by its lease had a right to drill, this right is in no manner an absolute right. Indeed, it is a right of much less stature than the constitutional right of free commerce to which Traver's counsel attempts to analogize the right to drill. When Traver's right is weighed against those of the GNOEC and the public generally, it becomes evident that the safety of the motoring public must prevail.
As Mr. Justice Holmes so keenly observed many years ago, "All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached." Hudson County Water Co. v. McCarter, 209 U.S. 349. 28 S.Ct. 529, 52 L.Ed. 828 (1908).
The second error is apparent in the court's close questioning of Mr. Held as to the likelihood of everyone on two tugs falling asleep at the same time. This focus of the court is inappropriate for two reasons. First, the CAW System is itself designed to protect against unlikely occurrences: marine collisions with the bridge. Second, legally, the plaintiff, while he must show a reasonable probability that the act sought to be enjoined will occur, need not show that the danger devolving from the act or acts is likely to come about. Rather, the magnitude of the risk, should it occur, may alone warrant injunctive relief. La. Livestock Sanitary Bd. v. Prather 301 So.2d 688, 691 (La.App. 3d Cir. 1974); Salter v. B.W.S. Corp., Inc., 290 So.2d 821, 825 (La. 1974). Because of the grave nature of the instant risk, I find the court's focus on only the probability of its ever occurring especially inappropriate.
Beyond its bravado of optimism and its innumerable conditions, I find the trial court's judgment ultimately fails to remove the risks enjoined against and thus leaves intact an unacceptable risk of irreparable harm. I therefore would set aside those conditions, maintaining the injunction against all marine operations within the one-mile Prohibited Zone by Traver Oil. Although it appears extremely doubtful that any conditions could remove the risk of irreparable injury created by such proximate operations, out of an abundance of caution I would remand for an evidentary hearing on this issue, as well as on the feasibility of drilling farther from the Causeway for purposes of completing production activities. If, on such hearing, the court confected further conditions that attempt to eliminate the risk of irreparable harm and if those conditions at all concerned the actions of the Department of Wildlife and Fisheries (which apparently operates and controls the CAW System), it appears the Department must then be a party to this suit. Finally, should the court find that no conditions can counter the dangers posed, I would direct it to receive evidence on and then detail procedures as to how the well should be permanently capped.
In scurrying obliviously to decide this matter contrary to the facts self-evident in this record, the majority spins a spiralling web of tenacious optimism and outright fantasy that ensnares and then casts out the very public interest we should safeguard. Thus, although I agree with the majority on the preliminary issues, I take no part in its ultimate conclusion. I emphatically dissent.