IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________
No. 99-30067
_________________________________
MICHAEL X. ST. MARTIN and VIRGINIA RAYNE ST. MARTIN,
Plaintiffs - Appellees - Cross-Appellants
v.
MOBIL EXPLORATION & PRODUCING U.S. INC.; PHILLIPS PETROLEUM
COMPANY,
Defendants - Appellants - Cross-Appellees
---------------------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
---------------------------------
August 16, 2000
Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Defendant oil companies appeal from a $240,000 damage award
based upon a finding that they failed adequately to maintain
spoil banks on canals operated by them, resulting in damage to a
freshwater flotant marsh. Because we find that the district
court carefully weighed the competing evidence and fashioned a
reasonable remedy for the breach of the canal servitude
agreements in issue, we affirm.
I. Facts and Procedural History
This case involves a suit for restoration and money damages
arising out of the deterioration of a portion of the Mandalay
1
Marsh in Terrebone Parish, Louisiana. The plaintiffs in this
case are private landowners who live near the tract in question
and who hold other land in coastal Louisiana. The defendants are
oil companies who possess an overlapping mineral lease and canal
servitudes across the St. Martins’ property. The St. Martins
allege that the oil companies’ use of and failure to maintain the
canals has caused erosion and other damage to the freshwater
flotant marsh ecosystem present on their property.1
The previous owner of the property was Southdown Sugars,
Inc. [Southdown]. Beginning in 1966, Southdown initiated several
mineral conveyances which separated the surface ownership of the
property from the minerals. In that same year, Superior Oil
Company [Superior] secured servitudes to dredge canals from the
Intracoastal Waterway into the tract in issue. Superior dredged
the canals in 1966 and used them until 1985, when it conveyed its
interest in the canal servitudes and the adjoining oilfield to
defendant Mobil Exploration & Producing U.S., Inc. [Mobil]. In
1995, Mobil conveyed its interest in the field to defendant
Phillips Petroleum Company [Phillips].
In 1992, the St. Martins purchased the surface rights to the
7,000 acre tract owned by Southdown for about $245.00/acre. Soon
thereafter, they conveyed all but 2,400 acres of the tract to the
1
A flotant marsh is one in which a thick mat of vegetation
floats on one to two feet of water that covers the land. Such
marshes are considered a fragile and important ecosystem in coastal
Louisiana.
2
Nature Conservancy for approximately their purchase price. The
St. Martins also donated $140,000 to the Nature Conservancy in
support of its efforts to set up a wildlife refuge on the
Mandalay marsh property. The area of marsh in issue in this case
comprises 357 acres of the 2,400 acres the St. Martins retained.
The St. Martins contend that gaps in the spoil banks
flanking the oil companies’ canals allow water to flow into and
out of their marsh, eroding the floating marsh mat and leaving
open ponds. These open ponds disrupt the ecosystem, represent
loss of the vegetative mat, and provide openings for invasive
plant species. Aerial photographs taken before the St. Martins’
purchase of the marsh reveal the formation of open-water ponds.
The St. Martins provided additional aerial photograph evidence of
further formation and enlargement of ponds subsequent to their
1992 purchase.
In 1995, the St. Martins filed the instant case against
Mobil and Phillips. They describe their complaint as raising
causes of action under the canal servitude agreements, the
mineral lease, and negligence-based tort. They raised additional
claims in their post-trial brief based on Louisiana Civil Code
articles 667-669, Civil Code article 2317, breach of promise,
failure to use alternative means, and the public trust doctrine.
The complaint sought damages pursuant to a restoration plan for
the marsh, which would include constructing bulkheads along the
canals and refilling the eroded areas.
3
The oil companies moved for summary judgment on two aspects
of the St. Martins’ claims, arguing that they were not entitled
to compensation for damage that occurred prior to their purchase
of the marsh and that damages should not exceed the value of the
property. The district court granted judgment on the first
argument and denied it on the second portion of their motion. A
bench trial followed on liability and damages accruing since
1992.
After requesting additional submissions from the St. Martins
to clarify the extent of damage since 1992 and to scale back
their proposed restoration plan, the court found that the oil
companies had an implied obligation to maintain spoil banks
arising out of the canal servitude agreements and that they had
breached that duty. The court further found that forty acres of
marsh had been damaged since 1992, for which the defendants were
60% responsible (natural forces being responsible for the
remaining 40% of the damage). The court ordered restoration
damages in the amount of $10,000 per acre adjusted for percent
responsibility, or $240,000 total. Defendants appeal the
determination of liability and the amount of damages; the St.
Martins appeal the limitation of the award to the equivalent of
24 acres of damaged marsh.
II. Analysis
Appellants attack the district court’s judgment on three
4
primary fronts. First, they argue that the St. Martins failed to
adduce adequate causation evidence linking the oil companies to
any deterioration of the marsh. As part of that argument, the
oil companies contend that the district court erred in allowing
the plaintiffs’ expert, Dr. Robert Chabreck, to testify.
Defendants also argue that even if causation were to be
established against them, they could not be held liable under
Louisiana servitude or tort law. They contend that the St.
Martins’ claim is prescribed as a matter of Louisiana law and
that, contrary to the district court’s determination, the canal
servitude agreement does not impose a continuing duty to maintain
and repair the canal banks. Lastly, the oil companies argue that
the damages awarded by the district court exceed those allowed by
Louisiana law because, on a per-acre basis, they are greater than
the market value and purchase price of the land.
A. Causation
Defendants challenge the sufficiency of the St. Martins’
causation evidence on two basic grounds. First, they argue that
the St. Martins’ expert evidence was deficient under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and
related precedent. Second, they argue on the merits that natural
forces, and not their activities in the canal servitudes, caused
whatever damage the marsh has sustained over the last thirty
years.
In cases presenting questions of both law and fact, this
5
Court reviews findings of fact for clear error and questions of
law de novo. See Bridges v. City of Bossier, 92 F.3d 329, 332
(5th Cir. 1996). The district court’s determination of
admissibility of expert evidence under Daubert is reviewed for
abuse of discretion. See Moore v. Ashland Chem., 151 F.3d 269,
274 (5th Cir. 1998) (en banc). Even assuming an abuse of
discretion occurred, the erroneous admission is subject to a
harmless error analysis. See United States v. Matthews, 178 F.3d
295, 304 (5th Cir. 1999); United States v. Griffith, 118 F.3d
318, 323 (5th Cir. 1997). “In a bench trial, reversal is only
warranted if all of the competent evidence is insufficient to
support the judgment, or if it affirmatively appears that the
incompetent evidence induced the court to make an essential
finding which it otherwise would not have made.” Southern
Pacific Trans. Co. v. Chabert, 973 F.2d 441, 448 (5th Cir. 1992).
1. Admissibility of plaintiffs’ expert evidence
Defendants first challenge the district court’s acceptance
of the St. Martins’ expert, Dr. Chabreck. Dr. Chabreck is a
specialist in the ecology of the region and not an expert in
hydrology. He has, however, spent many years in observation of
coastal marshes in Louisiana and had visited and examined the
marsh in question on several occasions prior to trial.
Defendants assert that Dr. Chabreck fails all of the non-
exclusive Daubert factors, in that he is not a trained
6
hydrologist, hasn’t published an article relating to his specific
hypothesis in this case, his hypothesis has not been subject to
peer review and is not supported by specific studies and he
hasn’t conducted tests to verify his hypothesis. But see Rushing
v. Kansas City Southern Ry. Co., 185 F.3d 496, 507 (5th Cir.
1999) (“As long as some reasonable indication of qualifications
is adduced, the court may admit the evidence without abdicating
its gate-keeping function.”).
Defendants’ arguments on this point fail for several
reasons. First, Dr. Chabreck’s expertise in marshland ecology
and in the erosion of vegetative mats in particular, along with
his personal observation of the St. Martins’ property,
sufficiently qualified him to testify as an expert.2
Defendants suggest that only a qualified hydrologist could
have testified as to whether canal water intrusion occurred at
sufficient levels and speeds to erode the vegetative mat. Cf.
Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (in deciding
whether to admit expert testimony, the district court considers
whether the witness is qualified in an appropriate field).
2
Dr. Chabreck, a professor of wildlife at Louisiana State
University, has studied marshland ecology extensively. He has
published over 130 scientific and popular articles on wetlands and
wildlife management and has planned and evaluated marsh development
programs for marsh wildlife refuges for the State of Louisiana. He
has professional experience with the U.S. Fish and Wildlife
Service, as a refuge and research biologist, and has garnered
significant acclamation for his work and publishing on marsh
ecology and management.
7
While a hydrologist might be better trained than a marshland
ecologist in the abstract physics of water forces, he would have
less relevant expertise in the kinds and amounts of stresses on
the organisms making up the vegetative mat that could cause
degradation of the mat. A hydrologist could (and did) testify as
to observed speeds of canal water intrusion into the marsh
through the gaps in the defendants’ canals’ spoil banks;3
however, the significance of that information for the health and
stability of the vegetative mat would be within the expertise of
a marshland ecologist such as Dr. Chabreck. The district court
did not abuse its discretion in finding Dr. Chabreck qualified to
testify as to the dynamics within the St. Martins’ flotant marsh.
See Watkins v. Telsmith Inc., 121 F.3d 984, 988 (5th Cir. 1997)
(“District courts enjoy wide latitude in determining the
admissibility of expert testimony, and the discretion of the
trial judge and his or her decision will not be disturbed on
appeal unless manifestly erroneous”) (internal quotations
omitted).
As to the substance of Dr. Chabreck’s testimony, the
3
A defense expert measured the speed of water entering through
the gaps in the canal spoil banks and testified that the average
speed of water caused by barge waves in the canal was roughly
equivalent to what would be experienced through wind pressure.
However, he conceded that barge waves could enter the St. Martins’
marsh at speeds of up to one knot. When shown a sample of water
exiting the marsh taken at the site where he measured the barge-
wave speed, he also conceded that it contained organic matter
presumably removed from the marsh.
8
district court made adequately supported findings that his report
was sufficiently reliable and relevant to come in as expert
testimony. The Daubert factors are non-exclusive and need not be
rigidly applied in every case. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171 (1999) (“the test
of reliability is ‘flexible,’ and Daubert’s list of specific
factors neither necessarily nor exclusively applies to all
experts or in every case”); see also Tanner v. Westbrook, 174
F.3d 542, 546 (5th Cir. 1999).
Here, Dr. Chabreck’s theory regarding damage to the St.
Martins’ marsh arose from his general understanding of the
dynamics within flotant marshes and the environmental factors
which can cause erosion of vegetative mats, combined with
personal observation of the marsh in question. Among the experts
presented at trial, Dr. Chabreck (along with plaintiffs’
surveyor) was the only one to conduct an extended on-site
observation of the St. Martins’ marsh. He visited the property
on five occasions, examining both the damaged areas near the
spoil-bank gaps and identifying two test or control areas which
were bordered by intact spoil banks. Those test areas did not
exhibit the same damage to and erosion of the marsh mat as those
areas exposed to gaps in the canal spoil banks. His direct
observations of the marsh included photographs he took of
portions of vegetative mat being carried out of the gaps in the
9
canal spoil banks as waves exited the marsh.
Each marsh will have different forces acting upon it,
depending upon its specific location and its surroundings.4
Thus, a court could not rationally expect that a marshland expert
would have published a peer-reviewed paper on each possible
permutation of factors or each damaged area of marsh. Dr.
Chabreck’s testimony was based on his personal observation of the
marsh in question and his general and undisputed expertise on
marsh ecology and deterioration.5 The district court properly
considered alternative indices of his testimony’s reliability and
relevance. See Kumho Tire, 119 S.Ct. at 1175-76.
2. Causation evidence
Defendants also challenge the ability of the St. Martins’
causation evidence as a whole to support the court’s liability
finding; they argue that their use of and failure to maintain the
canals could not have been the cause in fact of the damage to the
St. Martins’ marsh. However, the district court had before it an
adequate quantum of evidence from which it could conclude that
the defendants’ canals were partially responsible for the
4
All experts agreed at trial that marsh deterioration can be
caused by a complex and synergistic interaction among several
different factors. The precise factors and their relative
importance will vary with individual areas of marsh loss.
5
Notably, a defense expert conceded that barge waves entering
and exiting a marsh through gaps in canal spoil banks could erode
the vegetative mat; that expert thus corroborated the validity of
Dr. Chabreck’s theory even while disputing its application to the
marsh in issue.
10
observed deterioration of the marsh; that evidence consisted of a
series of aerial photographs documenting progressive
deterioration of the St. Martins’ marsh property and the
testimony of experts for both sides, as well as testimony from
Michael St. Martin and other lay witnesses who were familiar with
the area.
Defendants offer several alternative explanations for the
deterioration of the marsh mat in issue. First, they contend
that damage from hurricanes, and Andrew in particular, can be
blamed for the marsh mat loss. However, their evidence on this
point does not lead to the conclusion that the district court
committed clear error in discounting it. Defendants offered lay
eye witness testimony to the effect that some vegetative mat was
seen outside the marsh boundaries following hurricane Andrew.
Dr. Chabreck explained that the vegetation could have been
carried from farther away where the brunt of direct damage
occurred and deposited in the region. He also relied on previous
research he had conducted to conclude that the marsh in question
was likely too far inland to experience significant loss of
vegetation due to hurricanes. The defense expert who testified
regarding hurricane damage on the St. Martins’ property admitted
that he had not visited the property and that he could only
testify regarding the possibility of hurricane damage based on
his reading of general scientific literature on the subject.
Defendants also contend that salt intrusion from the
11
Intracoastal Waterway is responsible for the St. Martins’ marsh
mat loss. While all experts agreed that salt intrusion can
damage freshwater marshes as a general principle, the salinity
tests actually performed on the St. Martins’ property were
inconclusive as to whether significant salt intrusion had in fact
occurred there and whether it could be a cause of the
deterioration of the vegetative mat.6 Significantly, the test
areas identified by Dr. Chabreck, which would presumably be
subject to the same salinity, did not show signs of
deterioration.
Defendants also contend that nutria eat-outs damaged the St.
Martins’ marsh. However, the evidence on nutria eat-outs did not
clearly establish their responsibility for the damage. Dr.
Chabreck testified to his personal observations of the marsh as
well as his previous studies of nutria behavior, and noted that
their numbers had declined in recent years. He also explained
that they do not generally have a significant impact upon healthy
marsh but rather may be more visible in and more attracted to
marsh mat that has already been damaged by another force.
Defendants and the St. Martins provided contradictory lay eye
witness accounts of the nutria activity in the marsh. Similarly,
6
Salinity levels in nearby canals were found to be relatively
high during the drought period in which they were tested. A test
of a sample of the water located at the base of a section of
floating mat in the affected area, collected at another time, did
not detect any elevated salinity.
12
defendants’ suggestion that herbicide spraying by government
agencies could have contributed to the deterioration of the marsh
in issue was contradicted by Dr. Chabreck’s explanation of the
effects of the herbicide, i.e. that it would not affect the
dominant plants in healthy marsh mat, and by St. Martin’s
testimony that herbicide had not been used on his property.
Finally, defendants contend that subsidence and relative sea
level rises contributed to the deterioration of the marsh.
Subsidence is a factor region-wide, but its effects on the area
in issue were not clearly demonstrated in the court below. While
not denying that subsidence can affect coastal marshes, Dr.
Chabreck pointed again to the test areas which were unaffected by
any of the systemic explanations offered by defendants.
The entirety of the evidence on causation must be evaluated
through an appropriate lens. First, the district court did not
entirely reject defendants’ evidence regarding alternative causes
for the observed marsh mat loss. Instead, the court followed the
consensus of all experts, and especially those presented by the
defense, that marsh loss is a result of complex and synergistic
forces. The test areas identified by Dr. Chabreck were
unaffected by the forces described by defendants’ experts,
suggesting that those forces could not be the sole causes of
marsh mat loss elsewhere on the property. And though he disputed
its applicability to the marsh in issue, a defense expert
admitted that barge wave traffic could be a cause of marsh mat
13
erosion. Defense experts also conceded that man-made forces
(including oil and gas activity and canals) were an identified
factor in marsh loss in coastal Louisiana and the areas
immediately surrounding the property in issue.7 Given the
evidence before it, the district court’s approximation of fault
for the marsh mat loss was by no means unreasonable.
Second and more importantly, as an appellate court reviewing
factual findings of the trial court, we are not charged with a de
novo reweighing of the evidence. Our only role is to determine
whether the district court committed clear error.
Defendants’ evidence on causation was before the district court
through their experts, as were the parties’ contradictory
explanations for the erosion of the vegetative mat. There is
nothing in the record to indicate that the court committed clear
error in accepting one explanation over another. See, e.g.,
Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1559 (5th Cir.
1985) (“an appellate court is not free to reweigh the evidence or
to re-evaluate credibility of witnesses or to substitute for the
district court's reasonable factual inferences from the evidence
other inferences that the reviewing court may regard as more
reasonable”); Atlantic Marine Inc. v. Bruce, 661 F.2d 898, 900
7
One defense expert suggested (and then later retracted the
comment) that man-made forces were responsible for about 29% of the
damage to coastal marshes. Other defense experts contended that a
percentage responsibility is almost impossible to ascertain given
the complex interactions among forces causing marsh loss.
14
(5th Cir. 1981) (the resolution of conflicting evidence is the
prerogative of the fact finder).
The district court admitted testimony from experts on both
sides, and was entitled to weigh the evidence presented by each
to come to its ultimate determination. It did not commit clear
error in choosing one explanation over another where both were
properly admitted.
B. Liability
Defendants argue that they cannot be held legally
responsible for any damage to the St. Martins’ marsh, regardless
of causation. Defendants argue that (a) the canal servitude
agreements do not contain an implied obligation to construct or
maintain canal banks, (b) even if such an obligation exists, any
damage claim accrued as early as 1973 when the first marsh
erosion occurred and was waived by the St. Martins’ predecessor
in interest, Southdown, and is now time barred, and that (c)
prescription under Louisiana law bars the St. Martins’ claim.
The district court based its finding of liability upon its
interpretation of the canal servitude agreements. The district
court’s interpretation of a contract is reviewed de novo. See
Musser Davis Land Co. v. Union Pacific Resources, 201 F.3d 561,
563 (5th Cir. 2000). The contract and record are reviewed
independently and under the same standards that guided the
district court. See Exxon Corp. v. Crosby-Mississippi Resources,
15
Ltd., 154 F.3d 202, 205 (5th Cir. 1998).
The district court held that it would not allow recovery for
any damage occurring prior to the St. Martins’ purchase of the
marsh in 1992. See St. Jude Medical Office Bldg. Ltd. Part. v.
City Glass and Mirror, Inc., 619 So.2d 529, 530 (La. 1993).
Defendants’ objections must rest, therefore, on a theory under
which the St. Martins’ claim is entirely barred regardless of new
damage occurring during their period of ownership.
Regarding defendants’ contention that the St. Martins’ claim
prescribed ten years after the first observable damage occurred,
the district court held that the canal servitude agreements
impose continuing obligations on defendants.8 The court therefore
fashioned a remedy for damage occurring during the St. Martins’
8
Defendants cite to the Louisiana Supreme Court’s decision in
Crump v. Sabine River Authority, 737 So.2d 720 (La. 1999), to
support their argument that prescription runs from the first damage
where a continuing tort theory is inapplicable. That case is
distinguishable here, however. First, while the St. Martins raise
a continuing tort theory in their brief, the district court’s
holding was based on continuing obligations under a contract still
in force and awarded what amount to contract damages and
enforcement; the district court did not rely on a continuing tort
theory at all. Second, Crump states that prescription runs from
the first damage where continuing tort theories do not apply
because the damage is discontinuous or because the damages are not
successive. In that case, the continuing presence of a canal was
not sufficient to preclude prescription. However, the damage
alleged in this case is not the mere presence of the canals or a
static condition related to their existence (e.g. diversion of
water as part of their normal course of operation), but an ongoing
and cumulatively increasing deterioration of plaintiffs’ property
adjoining the canals due to defendants’ continuing conduct in their
failure to maintain the canal banks.
16
ownership and designed to prevent future deterioration of the
marsh which would otherwise continue unabated.9
Where a written agreement exists, it is the law between the
parties and must be enforced according to its terms. See Massie
v. Inexco Oil Co., 798 F.2d 777, 779 (5th Cir. 1986). When a
servitude is created by contract, as in this case, the mode of
use of the servitude is regulated by that contract. See Ogden v.
Bankston, 398 So.2d 1037, 1040 (La. 1981). This servitude
agreement provides that it “shall extend to and be binding upon
the respective successors and assigns of the parties hereto,” and
is therefore enforceable by the St. Martins. It also specifies
the nature and uses of the canals and provides that “Grantee
further agrees to pay Grantor for any damages occasioned to
Grantor’s lands as a result of the construction, use and
9
Defendants argue that the St. Martins’ claim would still be
time-barred even under the servitude agreements as construed by the
district court, since they knew of damage as early as 1992.
However, the servitude agreements provide that the rights granted
under them, including the surface owner’s right to maintenance of
the canals, may be enforced until the expiration of the leases
described in the agreements, including the mineral lease still in
force. Thus, the terms of the contract itself provide for a
continuing right of enforcement of the continuing duty to maintain
or repair the canals. The harm alleged by the St. Martins is an
ongoing violation of the servitude agreements, not a one-time
action or default on the part of defendants. Because their claims
could sound in both tort and contract, the St. Martins are entitled
to rely on the contractual prescriptive period of ten years. See
Ridge Oak Dev., Inc. v. Murphy, 641 So.2d 586, 588-89 (La.App. 4
Cir. 1994). The St. Martins’ case was filed well within the ten-
year prescriptive period for contract damages arising after their
purchase of the property in 1992.
17
maintenance of the canal.” Id. The district court correctly
interpreted this agreement as extending to the current parties
and imposing continuing maintenance and compensation obligations
on the holders of the canal servitudes.10
Because we uphold the award under the canal servitude
agreement, we need not reach the other theories advanced by the
St. Martins, including liability under the mineral lease, the
Louisiana Mineral Code, and negligence. The St. Martins also
argued in their post-trial brief liability under Civil Code
articles 667-669, Civil Code article 2317, breach of promise,
failure to use alternative means, and the public trust doctrine.
These other theories advanced by the St. Martins do not control
the case here; their dispute with the defendants centers upon the
use and maintenance of the canal servitudes and is therefore
governed by the servitude agreements. See, e.g., Ryan v.
Southern Nat. Gas Co., 879 F.2d 162, 163-65 (5th Cir. 1989)
(terms of canal servitude rather than independent statutory
10
Phillips raises the additional point that under the terms of
its assignment from Mobil, it should not be held liable for any
damages prior to its acquisition of the canal servitudes. It
further argues that the St. Martins failed to establish what damage
occurred during its ownership of the canal servitudes, after 1995
and before 1997. Phillips has a continuing obligation under the
servitude agreements to maintain and repair its canal banks and to
compensate the surface owners appropriately. The St. Martins
proved damage over a time frame that includes two years of
ownership by Phillips, and it is therefore appropriately included
in the judgment. The issue of indemnification between Phillips and
Mobil is not before the Court and the proper apportionment of
damages between the defendants is not therefore for us to decide.
18
provisions govern).
C. Damages
Defendants argue that the damages awarded are excessive
under Louisiana law because, at $10,000 per acre, they exceed the
purchase price and market value of approximately $245 per acre.
The St. Martins, on the other hand, contend that the district
court improperly limited its award to the equivalent of 24 acres,
when a total of 357 acres have been damaged over the life of the
canal servitudes.
The award of damages by a district court is reviewed for
clear error. See W.H. Scott Construction Co., Inc. v. City of
Jackson, Mississippi, 199 F.3d 206, 219 (5th Cir. 1999); Boehms
v. Crowell, 139 F.3d 452, 459 (5th Cir.1998). If the award of
damages is plausible in light of the record, a reviewing court
should not reverse the award even if it might have come to a
different conclusion. See W.H. Scott, supra. Given the district
court’s ruling that plaintiffs are not entitled to pre-purchase
damages and its weighing of the evidence to find that natural
causes were partly at fault, the limitation of damages was not
clear error. The defendants’ argument regarding excessive
damages warrants further discussion, however.
Under Roman Catholic Church v. Louisiana Gas Serv. Co., 618
So.2d 874, 879-880 (La. 1993), restoration damages in excess of
property value are available only where there is “a reason
19
personal to the owner for restoring the original condition or
there is a reason to believe that plaintiff will, in fact, make
the repairs.”
In the present case, the district court found that the St.
Martins have demonstrated genuine interest in the health of the
marsh through their efforts on behalf of the Mandalay Wildlife
Refuge, including a $140,000 gift to the Nature Conservancy to
support its creation of the refuge (now run by the U.S. Fish and
Wildlife Service), and continuing aid through the donation of
labor and resources. The St. Martins live adjacent to the marsh
in question, and Mr. St. Martin has used it for hunting and other
recreational purposes for a considerable period of time. The
marsh itself is of significant public value; it is part of a
rapidly diminishing number of marshes that have been identified
by national conservation efforts as key environmental and
ecological resources. Michael St. Martin attempted repairs of
the canal banks (which proved to be unsuccessful) and undertook
other restorative projects. Under these circumstances, the St.
Martins’ case falls within the Roman Catholic Church allowance of
greater than market value damages.11
11
Defendants argue that the St. Martins had a commercial motive
for buying the property in issue and that therefore greater than
market value damages are inappropriate. However, the mere
existence of a commercial interest in the property does not
foreclose greater than market value damages where the plaintiff
also demonstrates a significant personal interest in the property
as well. See Mossy Motors, Inc. v. Sewerage & Water Bd. of City of
New Orleans, 753 So.2d 269, 279 (La.App. 4th Cir. 1999). Here, the
20
Even though it found that the marshland had personal
significance warranting greater than market value damages, the
district court did not accept in toto the St. Martins’
restoration plan. Quite to the contrary, it required the St.
Martins to revise their original plan, finding it excessive as to
both the scope of the undertaking (refilling the entire marsh)
and the amount of money required. The district court accepted
the revised plan, which was scaled down in both cost and scope.12
In addition to reducing the per-acre amount sought by the
plaintiffs, the district court also radically reduced the number
of acres’ damage for which they would be compensated. The
plaintiffs originally sought damages for 357 acres. The district
court properly refused to grant damages for deterioration
occurring before the St. Martins bought the property, and found
that only forty acres had suffered damage during their period of
ownership.13 The district court credited defendants’ explanation
St. Martins have clearly established a strong personal interest in
the marsh and the possibility of an additional commercial interest
does not foreclose damages under Roman Catholic Church.
12
The cost of the plan was reduced upon the district court’s
required revisions from the equivalent of $39,000 per acre
(approx.) to $10,000 per acre (approx.).
13
Defendants object to the admission of testimony by Charles
Camp, plaintiffs’ surveyor witness, as to the approximate damage to
the marsh between 1993 and 1997 as documented by two aerial
photographs. Mr. Camp had testified at his deposition that he was
not prepared to make an “eyeball estimate” of damaged area based on
aerial photographs of the marsh. That earlier statement goes to
the weight to be accorded Camp’s trial estimate. At trial, Camp
described his methodology to the court in giving his estimate. In
21
of causation to a certain degree, and found that natural forces
were 40% responsible for the observed damage since 1992. In
total, these changes reduced the plaintiffs’ award from the $14
million originally sought to the $240,000 ultimately granted.
The district court carefully weighed the evidence and interests
in determining its award, and did not commit any clear error in
granting plaintiffs damages. We will not reverse the award.
CONCLUSION
The district court’s holding that the St. Martins are not
entitled to damages for deterioration occurring before their
purchase of the marsh is unquestionably correct. See St. Jude
Med. Office Bldg. Ltd. Partnership v. City Glass & Mirror, Inc.,
619 So.2d 529, 530 (La. 1993). There is nothing in the record to
demonstrate that the court’s factual findings constitute clear
answer to questions both from counsel and the bench, he stated that
he did a little scaling but mostly relied on the photographs’ scale
and tabulated the increased damage based on the affected areas in
the photographs, adjusted by his understanding of the topography of
the site. In colloquy with the court, it was established that
there was a certainty of damage between 1993 and 1997, with only an
estimate as to the number of acres affected. Though Camp is not a
trained photogrammetrist, he did testify to many years’ experience
working with aerial photographs as part of his surveying practice.
Defendants had a full opportunity to cross examine Camp, including
attempted impeachment with his deposition testimony. Defendants
did not offer any evidence of their own as to how many acres of
damage accrued between 1992 and the time of trial. Under the
circumstances, it was within the court’s discretion to credit
Camp’s figure as an estimate of marsh loss, which it was then free
to discount for possible alternative causes of damage.
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error. Similarly, nothing compels the conclusion that it was an
abuse of discretion to admit the St. Martins’ expert evidence.
The district court’s damages award was supported by the evidence
and appropriate under Louisiana law. We affirm.
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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part:
Although I agree with the majority that the St. Martins are
not entitled to damages for the period prior to their acquisition
of the property, I must dissent, most respectfully, from the
imposition of any liability. I do so because: the district
court abused its discretion in permitting Dr. Chabreck to give
expert testimony that barge bow waves entering the marsh through
the few gaps in the spoil banks provide sufficient force to erode
the vegetative mat; and the servitude agreement does not impose a
duty to maintain those spoil banks. (I do not address the St.
Martins’ other claimed liability-bases; they were not reached by
either the district court or the majority.)
I.
An additional recitation of pertinent facts is necessary.
The canals are only 7000 feet long (approximately 1.33 miles).
In the spoil banks, there are only approximately six gaps (each
approximately 10 to 15 feet wide).
The canals were dug in the 1960s, pursuant to a servitude
agreement granting Superior the right to deposit spoil, created
by dredging the canals, within 150 feet of each side of the
canals’ banks. Most importantly, the agreement does not mention
— much less require — Appellants to construct a levee system for
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the canals. In fact, pursuant to the agreement, the canals were
to cause as little interference as possible with drainage.
Two other companies’ pipelines cross the spoil banks at
gaps; those gaps are larger than the ones at issue. In addition,
during the lengthy time period (more than 25 years) between the
canals’ construction and the St. Martins’ purchase in 1992, their
predecessor in interest, Southdown Sugars, Inc., did not complain
about the spoil banks’ maintenance.
II.
A.
In determining whether expert testimony is admissible, the
district court “must ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable”.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
It is relevant when it relates to any issue in the case, id. at
591; reliable, when “grounded in the methods and procedures of
science and ... more than unsupported speculation or subjective
belief”. Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668 (5th
Cir. 1999). A district court abuses its discretion if it admits
expert testimony that is not relevant and reliable. See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 145 (1999). Pursuant to
this standard of review, the court abused its discretion in
admitting Dr. Chabreck’s testimony.
1.
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District courts must be assured that the
proffered witness is qualified to testify by
virtue of his “knowledge, skill, experience,
training, or education”. FED. R. EVID. 702. A
district court should refuse to allow an
expert witness to testify if it finds that
the witness is not qualified to testify in a
particular field or on a given subject.
Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999).
A key issue is whether Dr. Chabreck is qualified to testify
as an expert on whether barges’ bow waves, moving from the
Intracoastal Waterway into the canals, and then passing through
the spoil bank gaps, provide sufficient force to erode the
vegetative mat. The following trial colloquy delineates Dr.
Chabreck’s theory:
[Attorney for Mobil:] Your theory of
causation ... is that barge induced waves
enter cuts that have somehow formed over the
years in the ... canals, and that hydrologic
force has been exerted on the mat, to a
degree necessary or sufficient to erode that
mat, is that correct?
[Dr. Chabreck:] That’s correct, sir.
[Attorney for Mobil:] Okay. Now, that force
that is applied, that erosive action, ... is
studied by scientists known as hydrologists,
is that correct?
[Dr. Chabreck:] That’s correct.
(Emphasis added.)
Testimony concerning whether the waves have sufficient force
to erode the vegetative mat should be by a hydrologist; Dr.
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Chabreck’s testimony supports this. In fact, he admitted at
trial he would defer to a hydrologist on these matters.
Dr. Chabreck, who has a B.S. in Forestry, an M.S. in
Wildlife, and a Ph.D. in Botany, is a Professor of Wildlife at
Louisiana State University; has worked for the U.S. Fish and
Wildlife Service as a Wildlife Biologist and Assistant Secretary;
and has published more than 130 articles in popular and
scientific journals. (His resume does not delineate how many of
these articles are relevant to floatant marsh damage.) He is
certified as a wetland scientist by the Society of Wetland
Scientists and as a professional wildlife biologist by the
National Organization of the Wildlife Society. His resume states
he has extensively studied marsh ecology, wetlands management,
and wetland restoration. Obviously, this is a most impressive
resume, if coastal marsh management is at issue. But, it does
not demonstrate expertise in hydrology — the primary subject at
hand.
On cross-examination, Dr. Chabreck admitted: he took no
hydrology courses in obtaining his degrees; and his only formal
training in hydrology is from courses that might touch on water
pressure, water management, and water chemistry. His work
experience has involved wetlands management, mostly in
Southwestern Louisiana; and he has been involved in wildlife
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management and marsh research. This does not translate into the
requisite expertise in hydrology.
Therefore, Dr. Chabreck is not qualified to render expert
testimony on: hydrologic forces generated by the bow waves of
barges in the Intracoastal Waterway; what forces the waves create
when they enter the spoil bank gaps; what force is present when
the waves reach the vegetative mat; or whether this force is
sufficient to cause erosion of the mat.
Concerning hydrology, Dr. Chabreck is not qualified as an
expert by education; his emphasis is wildlife. Nor is he
qualified by knowledge, skill, experience, or training; his
focus is on marsh wildlife management and restoration, not
hydrology. True, in order to restore marsh damage, he has to
have some degree of knowledge regarding what causes it; but, as
demonstrated by his restoration plan to create an attached marsh
(the vegetation is attached to the soil rather than floating on
top of several feet of water), this does not necessarily apply to
a floatant marsh. Therefore, in the light of Rule 702’s
requirements, he is not qualified to render expert testimony on
hydrologic forces exerted on the vegetative mat, resulting from
waves caused by barges in the Intracoastal Waterway.
2.
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Even assuming Dr. Chabreck is qualified to give expert
testimony on this matter, the opinion he rendered does not meet
Daubert’s requirements. There, the Court developed
a five-factor, non-exclusive, flexible test
for district courts to consider when
assessing whether the methodology is
scientifically valid or reliable. These
factors include: (1) whether the expert’s
theory can be or has been tested; (2) whether
the theory has been subject to peer review
and publication; (3) the known or potential
rate of error of a technique or theory when
applied; (4) the existence and maintenance of
standards and controls; and (5) the degree to
which the technique or theory has been
generally accepted in the scientific
community.
Moore v. Ashland Chemical, Inc., 151 F.3d 269, 275 (5th Cir.
1998)(en banc).
Dr. Chabreck testified: he had not published any articles
on boat-induced waves causing vegetative mat loss; he did not
know of any scientific study that would support his theory; he
had not tested his theory in this, or any other marsh; and,
although it is possible to measure the force and volume of water
moving through the gaps, he had not done so.
Because the theory has not been published, or even tested,
it could not possibly have been subject to peer review; there is
no known error rate; and it cannot be generally accepted in the
scientific community. Accordingly, because this testimony does
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not meet any of the Daubert factors, the district court abused
its discretion in admitting it.
Dr. Chabreck’s testimony was the St. Martins’ only causation
evidence; without it, the district court could not find that
waves entering the marsh through the spoil bank gaps caused the
damage. This is especially so in the light of the testimony
presented by the hydrologist called by Appellants: the force of
the waves on reaching the vegetative mat was so small that “a
normal afternoon wind would exert more force”.
B.
But, even if the testimony was admissible, there is no duty
on the part of Appellants to maintain the spoil banks. One
servitude agreement states:
NOW, THEREFORE, in consideration of the
enhancement in value of Grantor’s above-
described lands in the event that a well or
wells are drilled thereon, Grantor does
hereby convey to Superior, its successors and
assigns, the right and servitude to dredge,
construct, maintain and use a canal having a
width of 65 feet.... Grantee is also given
the right to deposit spoils within a distance
of 150 feet on each side of the banks of the
canal, but shall do so in such manner as to
cause as little interference as possible to
drainage....
This grant is for the purpose of
affording access to the above described
lands....
(Emphasis added.) (The other servitude agreement differs only in
the property description.)
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The servitude agreement imposes a duty to maintain the
canals, which are limited to a width of 65 feet. Spoil is the
matter dredged to create a canal. The agreement authorizes
depositing spoil within 150 feet on each side of the canals’
banks. Restated, the spoil may be deposited away from the bank
of a canal, so long as it is not deposited more than 150 feet
from it. The agreement does not provide for Appellants to
maintain the spoil banks. In short, the spoil banks are simply
not part of the canals.
The plain language of the agreement does not require
Appellants to construct and maintain a levee system. (The St.
Martins want even more than that; they want the canals
bulkheaded.) The servitude agreement prevents such construction,
because it authorizes a canal 65 feet wide, defines its
centerline, and does not grant additional land on which to
construct a levee.
Moreover, the agreement requires that the spoil banks
interfere as little as possible with drainage. It is well to
remember that the property was a marsh prior to dredging the
canals. Constructing a levee system would isolate the marsh and
block drainage. In other words, constructing levees is not
interfering as “little ... as possible [with] drainage”, as
mandated by the servitude agreement: it is just the opposite.
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Moreover, to “maintain” is defined as “[t]o care for
(property) for purposes of operation productivity”. BLACK’S LAW
DICTIONARY 965 (7th ed. 1999). To “maintain a canal”, a man-made
waterway used operationally for access to wells drilled on the
property, is to keep it navigable. That is a far cry from
maintaining spoil banks created as a result of dredging the
canals.
In short, the servitude agreement does not explicitly
require Appellants to maintain the spoil banks. But, the
district court found an implied obligation for them to do so, in
the light of the requirement to maintain the canals. Without
explaining why, the majority agrees with this construction.
As discussed, this obligation is not in the agreement’s
plain language and does not comport with the dictionary
definition of “maintain”. In the alternative, for “interpreting
controversial clauses in a contract[,] the court is guided by the
interpretation the parties themselves placed upon the agreement
and their understanding of it as shown by their actions. Thus,
the conduct of the parties is relevant in determining their
common intent”. Cashio v. Shoriak, 481 So. 2d 1013, 1016 (La.
1986) (citations omitted).
The canals were created in 1965. Southdown did not demand
that Superior, or its assignee Mobil, maintain the spoil banks.
The gaps were present in the 1973 aerial photograph of the
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property. Over 25 years after the canals were dredged, and
approximately 20 years after evidence of gaps being present, the
St. Martins requested that the spoil banks be maintained.
Obviously, the course of conduct by the original parties,
Southdown and Superior, demonstrates that they certainly did not
intend for the spoil banks to be maintained. Cf. id. (over
seven-year period of parties’ acquiescence in political yard
signs indicates they did not intend to proscribe such signs, even
though plain language would have barred them).
III.
For the foregoing reasons, the district court abused its
discretion in admitting Dr. Chabreck’s testimony and reversibly
erred in concluding that, under the servitude agreement, there is
an implied obligation to maintain the spoil banks. Accordingly,
I respectfully dissent.
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