A Louisiana federal judge on Monday rejected Hilcorp Energy Co.’s bid to completely escape a lawsuit in which an association of oyster fishermen accuses the oil and gas producer of dredging without a permit in violation of the Clean Water Act.
The Louisiana Oysterman Association Inc., a nonprofit whose members lease or fish on oyster reefs in southeast Louisiana and whose mission is to protect the oyster industry and the environment it depends on, filed suit against Hilcorp in June.
Hilcorp quickly moved to dismiss the suit, which alleges that the company undertook a monthlong unpermitted dredging project in January 2016 near a well on the shore of Lake Grand Ecaille, in Plaquemines Parish on the eastern side of the Barataria Basin, that involved a large drilling barge and several tugboats. On Monday, U.S. District Judge Kurt D. Engelhardt mostly denied Hilcorp’s request.
The judge said Hilcorp had argued in part that the alleged violations were “wholly past, such that the court lacks subject matter jurisdiction under the CWA.” Under the U.S. Supreme Court’s decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, plaintiffs such as the oystermen who file lawsuits under the citizen-suit provision of the CWA claiming a polluter is in violation of limitations under the law must allege in good faith “a state of continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future,” the judge said.
At this stage in the litigation, he said, the Supreme Court’s Gwaltney test simply requires the Louisiana Oysterman Association to allege a continuous or intermittent violation in good faith, not to prove one.
“According to the association, Hilcorp is in a state of continuous violation because it has not remedied the purported damage, and it is in a state of intermittent violation because the unpermitted dredging is likely to resume when vessels access the well,” the judge said.
Those allegations “do not appear to be made lightly,” Judge Engelhardt said, pointing to the fact that the association has entered into the record video and photographic evidence, an eyewitness account and information about Hilcorp’s past environmental transgressions.
The judge said it seems “reasonably likely” that Hilcorp will re-engage in the conduct underlying the dispute, finding the Louisiana Oysterman Association’s allegations are made in good faith and that the court therefore has subject matter jurisdiction.
As to Hilcorp’s argument that the suit should be dismissed for failure to state a claim upon which relief can be granted, Judge Engelhardt said the association had stated a plausible claim based on intermittent violations, but not a continuing violation. As such, the case will proceed on account of intermittent violations only, the judge said.
Judge Engelhardt also denied Hilcorp’s request to stay the dispute for 90 days while the Louisiana Department of Natural Resources completes an investigation into the events at issue, saying that “a stay would appear to be unprecedented, and unnecessary under the circumstances.”
Representatives for the parties did not respond immediately to requests for comment late Monday.
The Louisiana Oystermen Association is represented by Joel R. Waltzer and Michael L. Brown of Waltzer Wiygul & Garside LLC.
Hilcorp Energy Co. is represented by Craig Isenberg, David N. Luder and Kelsey Meeks of Barrasso Usdin Kupperman Freeman & Sarver LLC.
The case is Louisiana Oystermen Association Inc. v. Hilcorp Energy Co., case number 2:16-cv-10171, in the U.S. District Court for the Eastern District of Louisiana.
By Christine Powell (Originally published on Law360)