UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30052
_____________________
ROLAND J. MONGRUE; CLYDE A. GISCLAIR; and SYLVIA GISCLAIR,
Plaintiffs-Appellants,
VERSUS
MONSANTO COMPANY,
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court
Eastern District of Louisiana
_______________________________________________
May 7, 2001
Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*
JANE A. RESTANI, Judge:
The issue before the court is whether remand is necessary for the district court to consider
a takings claim against a private entity under the federal Constitution rather than the Louisiana
Constitution. Roland J. Mongrue, Clyde A. Gisclair and Sylvia Gisclair (collectively,
“Appellants”) originally brought an action in Louisiana state court against Monsanto Company
(“Monsanto”). The Appellants had alleged, inter alia, that wastewater injected underground by
Monsanto pursuant to a permit issued by the Louisiana Commissioner of Conservation had
migrated into their subsurface property, thereby constituting a taking without just compensation.
*
Judge of the U.S. Court of International Trade, sitting by designation.
Following removal on diversity grounds, the district court on October 21, 1999, entered an order
granting in part Monsanto’s motion for summary judgment. In the order, the district court ruled,
inter alia, that the Appellants could not establish a claim of unconstitutional taking because
Monsanto was not a “private entity authorized by law to expropriate” for a “public and necessary
purpose,” as required under the Louisiana Constitution. On October 26, 1999, the district court
granted the Appellants’ motion for leave to dismiss with prejudice to their remaining claim of
trespass, thereby rendering the summary judgment order final and appealable.1 The Appellants
subsequently moved for a new trial on the basis that they had claimed takings under both the
Louisiana and United States Constitutions. The district court denied this motion. Appellants
appeal from both the summary judgment order and the denial of their motion for a new trial. We
affirm.
FACTS
The Appellants and Monsanto own adjacent parcels of real property in Luling, St. Charles
Parish, Louisiana. On its property, Monsanto operates a plant facility that manufactures products
such as herbicides, acetaminophen and water treatment chemicals. Beginning in 1972, Monsanto
disposed of chemical wastewater produced in the manufacture of these products by injecting it
through underground wells (“disposal wells”) that extend from 2500 to 7000 feet below the
surface.2 Monsanto injects the wastewater through the disposal wells into sand layers isolated by
impermeable layers of rock, which prevented vertical migration of the wastewater.
1
Jurisdiction over this appeal is pursuant to 28 U.S.C. § 1291 (1994).
2
Louisiana’s Mineral Code permits disposal through underground injection. See La. Rev.
Stat. Ann. § 30:4.1 (West 1989 & Supp. 2000).
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The Office of Conservation of the State of Louisiana, under authority delegated by the
Louisiana legislature, had issued permits allowing disposal by such means, subject to monitoring
and regulation. See La. Rev. Stat. Ann. § 30:4.1. The permits are granted only after an
application process that includes public hearings.
In August of 1998, Appellants filed in state District Court for the Parish of St. Charles,
Louisiana, a suit claiming that Monsanto’s injection into Disposal Wells #1 and #2 caused a
migration of wastewater into the sand strata approximately 2600 feet beneath their properties.
No government entity was named in the suit. Appellants claimed that the subsurface migration
(1) resulted in Monsanto’s unjust enrichment, (2) constituted an unlawful trespass, and (3)
constituted a violation of constitutional provisions prohibiting takings for public purpose without
just compensation. Rather than seek an injunction,3 Appellants demanded compensation from
Monsanto based on the rental value of their property. Appellants did not challenge the legal
authority of the Commissioner in granting the permit, nor the regulatory scheme under which the
permit was granted.
On August 25, 1998, Monsanto removed the case to federal district court based on
diversity of citizenship pursuant to 28 U.S.C. § 1332.4 On January 5, 1999, Monsanto filed a
motion for judgment on the pleadings, which the court denied on April 9, 1999. In October of
1999, Monsanto filed a motion for summary judgment on all three of Appellants’ claims. On
3
Under Louisiana law, plaintiffs seeking an injunction against an operator of a chemical
waste injection well must also sue as a necessary party the Commissioner of Conservation in East
Baton Rouge Parish, where the Commissioner is located. See Theriot v. Mermentau Res., Inc.,
385 So.2d 939 (La. App. 3rd Cir. 1980).
4
Federal district courts may hear state takings claims in diversity. Vulcan Materials Co.
v. City of Tehuacana, 238 F.3d 382, 386 (5th Cir. 2001).
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October 21, 1999, the district court granted summary judgment as to the unjust enrichment and
the takings causes of action because the court found that Monsanto was not a “private entity
authorized by law to expropriate” as required by the Louisiana Constitution, Art. I, sec 4. Finding
several genuine issues of material fact, the court denied summary judgment with respect to the
trespass claim. On October 26, 1999, the court granted Appellants’ motion to dismiss the
trespass claim with prejudice, thereby enabling Appellants to appeal the partial summary judgment
as the final judgment of the case.
On November 5, 1999, Appellants filed a motion for new trial on the issue of
unconstitutional takings. Appellants argued that the court should have analyzed their takings
claim under the Fifth Amendment of the United States Constitution. On December 20, 1999, the
district court entered an order denying the motion for new trial on the grounds that (1) the motion
was untimely,5 and (2) Appellants were attempting “to relitigate the issue of unconstitutional
takings with the new argument that their claim arises under the Fifth Amendment of the United
States Constitution.” On January 5, 2000, however, the district court vacated the section of its
December 20 order that related to timeliness, but reiterated its denial of the Appellants’ motion
for a new trial on the second ground stated therein. On January 13, 2000, Appellants filed a
notice of appeal to challenge the district court’s grant of summary judgment and the denial of its
motion for a new trial.
DISCUSSION
I. Denial of Appellants’ Motion for a New Trial
5
Under Federal Rule of Civil Procedure 59, “[a]ny motion for a new trial shall be filed no
later than 10 days after entry of the judgment.”
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“[W]hen the district court's ruling is predicated on its view of a question of law, it is
subject to de novo review.” Munn v. Algee, 924 F.2d 568, 575 (5th Cir.) (denial of motion for
new trial reviewed de novo where partial summary judgment had been decided on availability of
damages, a question of law) (citing Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th
Cir.1985)), cert. denied, 502 U.S. 900 (1991).
The order denying a new trial was predicated on the conclusion that Appellants had failed
to show a mistake of law in the court’s summary judgment analysis or in its application of
Louisiana law. The district court found that the Appellants effectively were seeking to relitigate
their takings claim under the United States Constitution. See Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990) (Rule 59 motion may not be used to relitigate old matters or raise new
arguments). The district court reasoned that because Appellants had “treated their
unconstitutional takings claim throughout the litigation as a claim arising under the Louisiana
Constitution and not the United States Constitution,” summary judgment was properly decided
under the former.
The district court’s ruling was correctly and properly decided under the Louisiana
Constitution based on the Appellants’ presentation of the issues. A party has presented an issue
in the trial court if that party has raised it in either the pleadings or the pretrial order, or if the
parties have tried the issue by consent under Federal Rule of Civil Procedure 15(b).6 Portis v.
6
Rule 15(b) provides, in relevant part: “When issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings.” “Amendments to conform to proof are permitted under Rule 15(b) in
order to bring the pleadings into line with the issues actually developed during a trial even though
the issues were not adequately presented in the pleadings.” Falls Indust., Inc. v. Consol. Chem.
Indus., Inc., 258 F.2d 277, 285 (5th Cir. 1958) (citation omitted).
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First Nat’l Bank, 34 F.3d 325, 331 (5th Cir. 1994) (citing Myrick v. City of Dallas, 810 F.2d
1382, 1386 (5th Cir.1987)). An issue must be presented so as to put the opposing party and the
court on notice that it is being raised. Id. (citing Simon, 891 F.2d at 1158).
Neither the district court nor Monsanto could have been on notice from the Appellants’
pleadings that remedies were sought under the federal Constitution. The case had been removed
from state court on grounds of diversity rather than federal question jurisdiction. The district
court therefore applied the substantive law of the state in which it was sitting, Louisiana. See Erie
Ry. Co. v. Tompkins, 304 U.S. 64 (1938). In point six of its petition before the state court,
Appellants had referred only to the language of the Louisiana Constitution in informing the court
of its basis for their takings claim:
Monsanto’s actions in unilaterally appropriating the property of Mr. Mongrue and
the Gisclairs amounts to an unconstitutional taking of their property without
payment of just compensation. See Article 1 Section 4 of the Louisiana
Constitution, which states that “[p]roperty shall not be taken or damaged by any
private entity authorized by law to expropriate, except for a public and necessary
purpose and with just compensation paid to the owners . . .” Monsanto should be
answerable in damages for just compensation for the property expropriated by
Monsanto.
R1-288. In the absence of any reference to the Takings Clause of the Fifth Amendment to the
United States Constitution, neither the district court nor Monsanto could have reasonably been on
notice that Appellants’ petition included a federal claim.7 Had Appellants intended to bring a
7
Appellants argue that the district court’s discussion of federal takings jurisprudence in
its order denying Monsanto’s Rule 12(c) motion for judgment on the pleadings indicates that the
court understood their claim to arise under the United States Constitution. It appears that the
district court looked to federal takings law as guidance on the viability of the Appellants’ state
law claim. After noting the similarity between the Constitutions of the United States and
Louisiana, the district court gave an overview of takings law and ruled in its order that: “Under
the foregoing cases and Louisiana law, the property rights of the plaintiffs may have been
adversely affected.” The court did not state that it was ruling on a federal claim, nor did it assert
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takings claim under the federal Constitution, they had the chance to amend their petition once it
became obvious that Monsanto understood that the takings claim continued to be based on the
Louisiana Constitution. In its motion for judgment on the pleadings, Monsanto stated: “The
plaintiffs also assert that Monsanto’s use of injection wells constitutes a taking by a private citizen
in violation of Article I Section 4 of the Louisiana Constitution.” R1-250. In their response,
Appellants failed to clarify that, as they now allege, their claim was actually brought under both
the Constitutions of the United States and of Louisiana. Rather, Appellants asserted that they met
the “elements of expropriation” by again citing only the Louisiana Constitution. R1-217.
Similarly, Appellants failed to invoke the federal Takings Clause in opposition to Monsanto’s
motion for summary judgment.
Because the Appellants were attempting to relitigate their takings claim on a new basis,
Appellants’ motion was properly denied. 8
jurisdiction thereof. Rather, the motion was denied because of a possibility that the claim would
be actionable under the general principles cited in the order and because material facts were in
dispute. R1-166. See also Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th
Cir. 1990) (“A motion brought pursuant to Fed. R. Civ. P. 12(c) is designed to dispose of cases
where the material facts are not in dispute and a judgment on the merits can be rendered by
looking to the substance of the pleadings and any judicially noticed facts.”). To the extent that
the district court may have erred in concluding that its takings analysis “applies to Monsanto
because it was acting pursuant to a permit issued by the State,” such error was corrected at
summary judgment when more facts surrounding the permit came to light. See discussion under
Section II, infra.
8
Appellants also argued in their motion for a new trial that the district court should have
analyzed their claim under the Fifth Amendment rather than the Louisiana Constitution because
the former preempts the latter. There is no basis for concluding that the district court was
obligated to find, sua sponte, that such preemption was required where Appellants failed to raise
the issue themselves. In denying the motion for judgment on the pleadings, the district court had
made no finding as to whether the takings clause of the Louisiana Constitution was preempted by
the Takings Clause of the Fifth Amendment. In fact, the district court specifically noted the
similarity between provisions.
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II. Summary Judgment Order
This Court reviews grants of summary judgment de novo under the same criteria that
govern a district court's consideration of whether summary judgment is appropriate. Atkins v.
Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999). Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, 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.” Fed. R. Civ. P. 56(c). When reviewing the
record upon which the moving party’s motion for summary judgment is based, the court must
draw all inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). We conclude that the district court’s grant of summary
judgment on Appellants’ state takings claim was proper.
In its order granting partial summary judgment in favor of Monsanto, the district court
ruled that as a matter of law Monsanto cannot be liable under Louisiana law “because it is not a
private entity authorized by Louisiana law to expropriate private property for a public and
necessary purpose.” R4-820. The district court reasoned that Monsanto is not one of the
exclusive number of private entities upon whom the power of eminent domain has been conferred
by the Louisiana legislature, thereby entitling them to expropriate land subject to regulation. The
district court specified that entities that are authorized under Louisiana law to expropriate
“needed property” include “those corporations constructing and operating roads, railways and
canals; utilities providing water, energy and communications, and, companies performing other
select functions related to natural gas, coal, and carbon dioxide.” Id. (citing La. Rev. Stat. Ann.
§§ 19:2, 30:22, 30:554 (West 1979 & Supp. 1999)).
-8-
The district court’s analysis is correct under Louisiana law.9 Under the takings clause of
the Louisiana Constitution, “[p]roperty shall not be taken or damaged by any private entity
authorized by law to expropriate, except for a public and necessary purpose and with just
compensation . . . .” La. Const. Art. 1, § 4, cl. 2. The Supreme Court of Louisiana observed that
the term “‘[e]xpropriation,’ or eminent domain as it is called in the common law, is the power of
the sovereign to take property for public use without the owner’s consent.’” Tenn. Gas
Transmission Co. v. Violet Trapping Co., 176 So.2d 425, 438 (1965) (quoting Nichol’s Law of
Eminent Domain, sec. 1.11 v. 1, p.2 (3d ed. 1950)). This power is delegable to administrative
officers or other agencies of the sovereign and to public and private corporations. Id.
For a private entity to qualify under Louisiana law as an agent of the government for the
purposes of establishing liability for an unconstitutional taking, the entity must have been
expressly delegated the power of eminent domain. In La. Rev. Stat. Ann. § 19:2, the Louisiana
legislature listed specific categories of private entities that may expropriate property under the
Louisiana Constitution’s takings clause pertaining to private entities authorized by law to
expropriate. 10 Entities expropriating under § 19:2 are subject to the procedural requirements
9
We assume arguendo, as did the district court, that Monsanto’s wastewater in fact
migrated into the substrata under Appellants’ surface property and that Appellants do have
ownership rights to the sand layers into which the wastewater was injected. The district court
made no finding of such interference, and such interference is disputed insofar as Monsanto filed
an expert affidavit disputing the presence of Monsanto’s waste under Appellants’ surface
property.
10
La. Rev. Stat. Ann. § 19:2 reads in pertinent part:
Where a price cannot be agreed upon with the owner, any of the following may
expropriate needed property:
(1) The state or its political corporations or subdivisions created for the purpose of
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specified in § 19:2:1. See Louisiana Power & Light Co. v. Lasseigne, 240 So.2d 707, 709 (La.
1970) (“Expropriation is an extraordinary remedy to which the Legislature has seen fit to apply
special procedural rules.”).11
There are no instances of a private party held amenable to suit under the takings clause of
the Louisiana Constitution where there has not been an express delegation by the legislature of the
power to expropriate. Where a private company does not fall into one of the categories listed in §
19:2, courts look to whether the entity has been conferred by statute the power to expropriate
property. For example, in Collins Pipeline Co. v. New Orleans East, Inc., 250 So.2d 29 (La. App.
exercising any state governmental powers;
(2) Any domestic or foreign corporation created for the construction of railroads,
toll roads, or navigation canals;
(3) Any domestic corporation created for the construction and operation of street
railways, urban railways, or inter-urban railways;
(4) Any domestic or foreign corporation created for the construction or operation
of waterworks, filtration and treating plants, or sewerage plants . . .
(5) Any domestic or foreign corporation created for the piping and marketing of
natural gas . . .
(6) Any domestic or foreign corporation created for the purpose of transmitting
intelligence by telegraph or telephone;
(7) Any domestic or foreign corporation created for the purpose of generating,
transmitting and distributing electricity and steam for power, lighting, heating, or
other such uses. . . .
(8) All persons included in the definition of common carrier pipelines as set forth in
R.S. 45:251;
(9) Any domestic or foreign corporation created for piping and marketing of coal
or lignite . . .
(10) Any domestic or foreign corporation . . . engaged in the piping or marketing
of carbon dioxide . . .
(11) Any domestic or foreign limited liability company engaged in any of the
activities otherwise provided for in this Section.
11
Property expropriated under § 19:2 must be paid for in advance of the taking. Sabine
River Auth. v. Phares, 159 So.2d 144, 146 (La. 1964).
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4th Cir. 1971), a private corporation was not at the time included in the exclusive list in Section
19:2. The court held that the corporation was an entity “authorized by law to expropriate” by
virtue of an express legislative grant to carrier pipe lines of the power to expropriate private
property “under the present state expropriation laws [embodied in La. Rev. Stat. Ann. § 19:1 et
seq.] for use in its common carrier pipe line business.” Id. at 31. See also La. Rev. Stat. Ann. §§
19:2(8), 45:254.12
In contrast, in Giraud v. Gillis, Ellis & Baker, Inc., 488 So. 2d 1261, 1264 (La. App. 4th
Cir. 1986), the court rejected without discussion a takings claim against a private corporation
because “[b]y its own terms Article 1, Section 4 applies to ‘private entities authorized by law to
expropriate.’ Defendant corporation does not fall in that category.” The company had acted
pursuant to a statute allowing parent corporations to merge into a subsidiary whose shareholders
12
Louisiana courts have held that grants of expropriation, even if express, are strictly
construed. For example, the court in State Dep’t of Highways. v. Jeanerette Lumber & Shingle
Co., 350 So.2d 847 (La. 1977), stated:
In construing constitutions or statutes granting the power of expropriation, even
when the power has been expressly granted, the grant, itself, and the extent thereof
will be construed strictly against the grantee. The latter will not be allowed to take
the lands of another unless such right comes clearly and unmistakably within the
limits of the authority granted. Whatever is not plainly given is to be construed as
withheld . . . Expropriation “is special and exceptional in character, in derogation
of common right, and must be strictly construed.”
(citations omitted); accord City of Baton Rouge v. Johnca Props., 764 So.2d 1221, 1223 (La.
App. 1st Cir. 2000).
Other examples of statutes authorizing the appropriation of property under the general
state expropriation laws are La. Rev. Stat. Ann. § 30:22 (firms having the right to use
underground reservoirs for the storage of natural gas) and La. Rev. Stat. Ann. § 30:554 (entities
with a certificate of transportation have right of expropriation to “lay, maintain, and operate
pipelines, together with telegraph and telephone lines”).
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were given a cash payment determined by resolution of the board of directors. The statute did
not include an express grant of the power to expropriate property. Therefore, takings claims
under the Louisiana Constitution may not be brought against private entities absent an express
delegation of the power to expropriate, either by virtue of applicability of one of the categories
listed in § 19:2 or by some other statute specifically delegating such power.
Here, the record does not reveal any express authorization by law to expropriate property
that is relevant to the facts of this case. The permits granted to Monsanto do not reference any
right to place wastewater in Appellants’ subsurface property. See, e.g., R1-226 to 229. The
Office of Conservation apparently was generally aware, however, that the permitted injection of
wastewater could result in migration, at least temporarily, into subsurface adjacent property. In a
letter dated February 26, 1996, the Office of Conservation stated that "[t]he operator of a
subsurface injection well is able to control the depths to which wastes are injected. However, the
very idea of subsurface injection of waste assumes that the waste will migrate away from the
wellbars by virtue of the pressure created by additional waste being pumped into the zone."
R2-418 (emphasis added).13
13
The Office of Conservation emphasized the public benefit that outweighed the possible
migration into the subsurface property of others by noting that:
[b]ecause of the highly fragmented ownership which exists in most areas of our
State, it would be quite unusual to be able to locate an injection well on a tract
where one could be assured that all wastes would remain under the tract on which
the injection occurs. At best, requiring the consent of every surface owner whose
subsurface might potentially be affected by subsurface injection would increase
dramatically the cost of such disposal and at worst might eliminate said disposal
altogether since environmental groups may seize upon such a rule as a way to
block the disposal.
Id.
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Such knowledge is not sufficient to render Monsanto a “state actor” for the purpose of
establishing a takings claim. The Louisiana statute allowing for the disposal of chemical
wastewater by injection does not confer, expressly or impliedly, the power to expropriate on
companies operating under permit by the Office of Conservation.14 La. Rev. Stat. Ann. § 30:1.
Nor has the Louisiana Legislature delegated to the Commissioner of Conservation the power to
limit property owner rights with respect to the subsurface disposal of waste by injection, but
merely the police power to permit, monitor and regulate this activity.15 La. Rev. Stat. Ann. §
14
The statutes regulating disposal wells for subsurface injection of waste products are set
out in La. Rev. Stat. Ann. §§ 30:1 et seq. The pertinent provisions are as follows:
La. Rev. Stat. Ann. § 30:1 D provides:
The disposal of any waste product into the subsurface by means of a disposal well
and the regulation of all surface and storage waste facilities incidental to oil and
gas exploration and production, shall be within the jurisdiction of the department.
La. Rev. Stat. Ann. § 30:4 C provides, in part:
The commissioner has authority to make after notice and hearings as provided in
this Chapter, any reasonable rules, regulations, and orders that are necessary from
time to time in the proper administration and enforcement of this Chapter,
including rules, regulations, or orders for the following purposes:
(16) a. To regulate by rules, the drilling, casing, cementing, disposal interval,
monitoring, plugging and permitting of disposal wells which are used to inject
waste products in the subsurface and to regulate all surface and storage waste
facilities incidental to oil and gas exploration and production, in such a manner as
to prevent the escape of such waste product into a fresh ground water aquifer or
into oil or gas strata . . . .
(emphasis added).
15
See February 26, 1996 Letter from the Office of Conservation: “In connection with
[Louisiana policy regarding disposal of waste by injection], the legislature has delegated its police
power to the Commissioner of Conservation to permit, monitor and regulate the subsurface
disposal of these wastes . . . .” R2-416.
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30:4. It follows, then, that the Commissioner lacked the power to grant to Monsanto the power
to expropriate private property.
Pursuant to this regulatory power, the Commissioner of Conservation issues permits
primarily based on findings regarding the possibility of vertical migration of the wastewater into
the groundwater or into oil or gas strata. There is no evidence that in determining whether to
issue the permit, the Commissioner makes findings with respect to property rights or title or
authorized the permanent occupation of land. There is no evidence that the Commissioner had
the power to issue a unitization order such that the rights of property owners would be redefined
or limited.16
Because there is no evidence of an express delegation of power to expropriate property
with respect to the type of injection activity engaged in by Monsanto, either to the Commissioner
of Conservation or directly to the private entities operating under a permit, the district court’s
Louisiana limits property owner rights only by law. La. Civ. Code Ann. art. 490 (West
1980 & Supp. 2000) (providing that “[u]nless otherwise provided by law, the ownership of a
tract of land carries with it the ownership of everything that is directly above or under it”)
(emphasis added)).
16
The Commissioner of Conservation has the delegated power to redefine property rights
only insofar as it has the power to issue unitization orders for conservation of oil and gas
resources to prevent waste. See La. Rev. Stat. Ann. §§ 30:4 et seq. (regulating conservation of
oil and gas resources and empowering Commissioner to establish compulsory drilling units in gas
field to prevent waste). Unitization is the creation of drilling units that supersedes individual
property rights to establish a common interest in the reservoir of natural resources beneath
adjacent tracts of land. Nunez v. Wainoco Oil & Gas Co., 488 So.2d 955, 963-64 (La.), cert.
denied, 479 U.S. 925 (1986). For example, the Commissioner of Conservation is empowered to
establish compulsory units in gas field. La. Rev. Stat. Ann. §§ 30:9, 30:10. See Hunter Co. v.
McHugh, 11 So.2d 495, 498-506 (La. 1942) (finding such delegation of legislative power not
unconstitutional), appeal dismissed, 320 U.S. 222 (1943). No such unitization redefining
property rights is present in this case.
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summary judgment ruling was proper.17 Therefore, Appellants may not recover against Monsanto
on a claim of unconstitutional takings under the Louisiana Constitution.
CONCLUSION
Because we find that the district court’s grant of summary judgment to Monsanto and
denial of Appellants’ motion for a new trial were both proper, we AFFIRM.
17
Because we find that as a matter of law Appellants do not establish Monsanto as a state
actor, we do not reach the issue of whether Monsanto’s disposal of wastewater through injection
satisfied the “for a public and necessary purpose” requirement of the Louisiana takings clause.
That the Appellants may not bring a state takings claim against Monsanto in this case is
not to say that they may not have sought remedies on other grounds. The district court found
that the Appellants' subsurface property does not belong to a drilling unit designated by the
Commissioner and "absent unitization, the Commissioner does not necessarily bar claims of
trespass when authorizing the disposal of waste through underground injection wells." RE3-6.
Thus, the district court ruled that upon a proper showing of damages, Appellants may recover
under a state unlawful trespass claim against Monsanto regardless of the permit allowing for
injection. Because Appellants agreed to dismissal with prejudice of their trespass claim against
Monsanto, we do not reach the issue.
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Mongrue v. Monsanto Company
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-05-07
Citations: 249 F.3d 422
Copy Citations