Case: 22-30243 Document: 00516888946 Page: 1 Date Filed: 09/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 8, 2023
No. 22-30243 Lyle W. Cayce
____________ Clerk
James Self; Wilma Self,
Plaintiffs—Appellants,
versus
BPX Operating Company,
Defendant—Appellee,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CV-927
______________________________
Before Dennis, Elrod, and Ho, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
This case concerns the interplay between Louisiana’s relatively new
conservation laws and its deeply rooted negotiorum gestio doctrine. Because
we cannot make a reliable Erie guess as to the applicability of Louisiana’s
negotiorum gestio doctrine, we CERTIFY a question to the Louisiana
Supreme Court.
I
Louisiana oil and gas law authorizes the state Commissioner of
Conservation to combine separate tracts of land and appoint a unit operator
to extract the minerals. La. Stat. Ann. § 30:9(B) (2022);
id. § 30:10(A)(1)
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(2022). Where a tract is not subject to a lease, the unit operator can sell the
landowner’s share of production but must pay the landowner a pro rata share
of the proceeds within one hundred eighty days of the sale. Id. § 30:10(A)(3)
(2022).
James and Wilma Self own unleased mineral interests in Louisiana
that are part of a forced drilling unit. BPX is the operator. The Selfs allege
on behalf of themselves and a named class that BPX has been improperly
deducting post-production costs from their pro rata share of production and
that this practice is improper per se. The district court granted BPX’s motion
to dismiss the Selfs’ per se claims, holding that the quasi-contractual doctrine
of negotiorum gestio provides a mechanism for BPX to properly deduct post-production costs.1
The Selfs filed this action as purported representatives of a named
class of unleased mineral owners whose interests are situated within forced
drilling units formed by the Louisiana Office of Conservation and operated
by BPX. Neither the Selfs nor the class members have made separate
arrangements to dispose of their shares of production, so the unit operator
can sell the shares but must pay the owners a pro rata share of the proceeds
within one hundred eighty days of the sale. La. Stat. Ann. § 30:10(A)(3)
(2022). BPX has been paying the pro rata share of production but has been
withholding from that amount the pro rata post-production costs for
transporting, gathering, marketing, treating, and compressing produced
minerals, as well as amounts related to minimum volume commitments or
capacity reservation fees. The Selfs alleged, consistent with district court
authority at the time, that the practice of withholding the post-production
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1
This case was consolidated for oral argument with Johnson v. Chesapeake
Louisiana, No. 22-30302, because both cases raise the same statutory interpretation issue.
2
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costs from their pro rata share of production is improper per se.2 See Johnson
v. Chesapeake La., L.P., No. CV-16-1543, 2019 WL 1301985 (W.D. La. Mar.
21, 2019), vacated on reconsideration,
2022 WL 989341.
BPX timely removed this action to the district court, based on both
diversity and federal question jurisdiction. 28 U.S.C. §§ 1332(a), 1332(d).
BPX sought dismissal of the Selfs’ primary claim that BPX can never deduct
post-production costs incurred in the sale of unleased mineral owners’ pro
rata shares of production. The district court granted BPX’s motion to
dismiss and held that the Louisiana Civil Code doctrine of negotiorum gestio
provides a mechanism for unit operators to be reimbursed for post-production costs not otherwise covered by specific statutes. La. Civ. Code
Ann. art. 2292 (2023). The district court certified its ruling for interlocutory
appeal pursuant to
28 U.S.C. § 1292(b). This court granted the Selfs’ motion
for leave to appeal from an interlocutory order.
II
We review a district court’s dismissal of a complaint for failure to state
a claim de novo. Gonzalez v. Blue Cross Blue Shield Ass'n, 62 F.4th 891, 898
(5th Cir. 2023). We accept all well-pleaded facts as true and view those facts
in the light most favorable to the plaintiff.
Id.
III
Louisiana is one of many states with forced pooling laws designed to
prevent the waste of mineral resources. These laws provide mechanisms for
sharing both the risks and benefits of production in the absence of a contract.
_____________________
2
The lawsuit has three distinct counts. The first count, seeking monetary
damages, declaratory, and permanent injunctive relief to prohibit BPX from deducting any
post-production costs from plaintiffs’ pro rata share of production proceeds as per se illegal,
is the only one now at issue.
3
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TDX Energy, LLC v. Chesapeake Operating, Inc., 857 F.3d 253, 257 (5th Cir.
2017). Accordingly, the forced pooling law allows the recovery of certain
costs:
In the event a drilling unit is formed by a pooling order by the
commissioner and absent any agreement or contract between
owners as provided in this Section, then the cost of
development and operation of the pooled unit chargeable to the
owners therein shall be determined and recovered as provided
herein.
La. Stat. Ann. § 30:10(A)(2) (2022).
Louisiana law and the oil and gas industry in general recognize a
distinction between production and post-production costs. Production costs
end “at the wellhead when the minerals are reduced to possession. Post-production costs . . . include those related to taxes, transportation,
dehydration, treating, compressing, and gathering.” J. Fleet Oil & Gas Corp.
v. Chesapeake La., L.P., No. CV-15-2461, 2018 WL 1463529, at *6 (W.D. La.
Mar. 22, 2018) (citation omitted). The provision addressing recovery of
costs mentions only certain types of production costs: “drilling, testing,
completing, equipping, and operating expenses,” as well as a charge for
supervision. See
La. Stat. Ann. § 30:10(A)(2)(b)(i) (2016). It is silent as to
post-production costs. Most relevant here is
La. Stat. Ann. § 30:10(A)(3),
which addresses payment of production proceeds:
If there is included in any unit created by the commissioner of
conservation one or more unleased interests for which the
party or parties entitled to market production therefrom have
not made arrangements to separately dispose of the share of
such production attributable to such tract, and the unit
operator proceeds with the sale of unit production, then the
unit operator shall pay to such party or parties such tract’s pro
rata share of the proceeds of the sale of production within one
hundred eighty days of such sale.
4
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La. Stat. Ann. § 30:10(A)(3) (2022).
The Selfs contend that “proceeds” of the sale here mean “gross
proceeds.” BPX countered initially that “proceeds” is ambiguous and
should be interpreted to mean “net proceeds,” after deduction of pro rata
post-production costs. BPX later contended, however, that when section
(A)(3) is properly harmonized with Louisiana’s civil code regime, there is a
legal mechanism to support the deductibility of post-production costs: the
quasi-contractual regime of negotiorum gestio.
The Louisiana Supreme Court has held, and the parties agree, that the
relationship between them is quasi-contractual. Wells v. Zadeck, 89 So. 3d
1145, 1149 (La. 2012) (“A quasi-contractual relationship is created between
the unit operator and the unleased mineral interest owner with whom the
operator has not entered into contract.”). The parties disagree, though, as
to what type of quasi-contractual relationship they have. The Louisiana Code
provides two non-exclusive examples that give rise to quasi-contractual
obligations in the state: negotiorium gestio and enrichment without cause. La.
Civ. Code Ann. art. 2292, 2298 (2023); Louisiana is the only state that
employs negotiorium gestio, and it has “deep roots” in the state. Under this
doctrine, a proposed “gestor” must act 1) voluntarily and without authority,
2) to protect the interests of another, and 3) in the reasonable belief that the
owner would approve of the action if made aware of the circumstances. La.
Civ. Code Ann. art. 2292 (2023). If negotiorum gestio applies, Louisiana Civil
Code Article 2297 requires “[t]he owner whose affair has been managed [to]
. . . fulfill the obligations that the manager has undertaken as a prudent
administrator and to reimburse the manager for all necessary and useful
expenses.” La. Civ. Code Ann. art. 2297 (2023).3
_____________________
3
The district court ruling preserved the questions as to the scope and extent of
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The Selfs assert that BPX cannot be a gestor because it did not act
“voluntarily and without authority”; it acted pursuant to a statutory duty.
The Selfs also contend that BPX did not act exclusively to protect the
unleased mineral owners’ interests, but rather to protect its own interests.4
If gestio principles are applicable, the Selfs assert, a factfinder would need to
determine that BPX always acted for the plaintiffs’ benefit in marketing unit
production before BPX would be entitled to reimbursement under Article
2297.
BPX contends that Louisiana case law recognizes it as a gestor in all
circumstances when dealing with unleased mineral owners, but the parties
agree that no controlling case deals with the specific facts at hand. In Taylor
v. Smith, the Louisiana Third Circuit Court of Appeal held that a cause of
action under section 30:10(A)(3) of the Louisiana Revised Statutes should be
construed together with the Civil Code’s negotiorum gestio doctrine. 619 So.
2d 881, 887 (La. App. 1993) (“The statute gives the owner a cause of action
in quasi-contract under LSA-C.C. art. 2292, et. seq., insofar as the operator,
in selling the owner’s proportionate share of the oil produced, is acting as a
negotiorum gestor or manager of the owner’s business in selling the oil
produced.”). The Louisiana Supreme Court cited Taylor in Wells, where it
held that the relationship between an unleased mineral interest owner and
operator is quasi-contractual. Wells,
89 So. 3d at 1149 (citing Taylor,
619 So.
2d 881). Yet that case involved the proper prescriptive period for an action
brought under section (A)(3) and did not directly reference the part of Taylor
_____________________
reimbursable expenses, as those questions relate solely to Counts II and III, which are not
before us on appeal.
4
The Selfs’ third claim for relief (which is not at issue in this appeal) alleges, among
other things, “self-dealing” on the part of BPX.
6
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discussing gestores. Thus, no controlling Louisiana case resolves the parties’
issue.
This unsettled state of the law raises the question whether the
appropriate course is to certify the issue for resolution by the state court of
last resort. The rules of the Louisiana Supreme Court allow for certification
from the federal courts of appeals of dispositive questions of Louisiana law.
La. Sup. Ct. R. 12, §§ 1–2 (2023). The issue presented here satisfies that
condition.
The issue presented also satisfies the three factors used by this court
in deciding whether to certify:
1) [T]he closeness of the question and the existence of
sufficient sources of state law;
2) [T]he degree to which considerations of comity are relevant
in light of the particular issue and case to be decided; and
3) [P]ractical limitations on the certification process: significant delay and possible inability to frame the issue so as to
produce a helpful response on the part of the state court.
In re Gabriel Inv. Grp., 24 F.4th 503, 507 (5th Cir. 2022); see also Austin v.
Kroger Tex. LP,
746 F.3d 191, 196 (5th Cir. 2014). As explained above,
Louisiana law is unsettled on this issue. “[A]ny Erie guess would involve
more divining than discerning.” McMillan v. Amazon.com, Inc.,
983 F.3d 194,
202 (5th Cir. 2020). The Louisiana Third Circuit Court of Appeal and the
district court in this case both concluded that the negotiorum gestio doctrine
applies. But the scholarly dissent provides cogent reasons to think it does
not. And the district court concluded that the issue was sufficiently close to
certify its ruling for interlocutory appeal.
Comity interests also favor certification. The interplay between
Louisiana’s oil and gas law and its unique negotiorum gestio doctrine presents
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a complex and novel issue “peculiarly calling for the exercise of judgment by
the [Louisiana] courts.” McKesson v. Doe, 141 S. Ct. 48, 51 (2020).
“Speculation by a federal court” about how to square Louisiana’s new
conservation laws with its ancient civilian doctrines is inappropriate “when
. . . the state courts stand willing to address questions of state law on
certification.” Arizonans for Official Eng. v. Arizona,
520 U.S. 43, 79 (1997)
(internal quotation marks and alteration omitted). Finally, we are unaware
of any practical impediments to certification.
…
Accordingly, we CERTIFY the following determinative question of
law to the Louisiana Supreme Court:
1) Does La. Civ. Code art. 2292 apply to unit operators selling
production in accordance with La. R.S. 30:10(A)(3)?
We disclaim any intention or desire that the Louisiana Supreme Court
confine its reply to the precise form or scope of the question certified. We
will resolve this case in accordance with any opinion provided on this
question by the Court. The Clerk of this Court is directed to transmit this
certification and request to the Louisiana Supreme Court in conformity with
the usual practice.
QUESTION CERTIFIED.
8
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James L. Dennis, Circuit Judge, dissenting:
This case is straightforward. La. R.S. 30:10(A)(3), part of
Louisiana’s oil and gas conservation law, allows a unit operator to unilaterally
sell production under specific conditions and imposes a specific duty of
repayment to the owner. Negotiorum gestio, by contrast, is a traditional civilian
doctrine, codified at La. Civ. Code art. 2292, that allows one person to
manage the property of another if certain circumstances are met. Not only
are La. R.S. 30:10(A)(3) and article 2292 distinct legal regimes with
different requirements and different duties, they are necessarily
incompatible. A unit operator who sells an owner’s production under the
statutory authority of La. R.S. 30:10(A)(3) cannot be a gestor as defined in
article 2292, because a gestor, as the codal article provides, is one who acts
“without authority.” In certifying the question of whether a unit operator
acting under the authority of § 30:10(A)(3) may simultaneously act as a gestor
under article 2292, the majority disregards not only the plain text of article
2292 but also basic rules of statutory interpretation. Because the answer is
clear that negotiorum gestio cannot apply, I find certification to the Louisiana
Supreme Court inappropriate. I respectfully dissent.
I.
Title 30 of the Louisiana Revised Statutes includes a comprehensive
regime for the conservation of the state’s oil and gas during extraction. The
Commissioner of Conservation, for the prevention of waste and to avoid the
drilling of unnecessary wells, is vested with authority to establish a drilling
unit for each pool of underground oil or gas. B.A. Kelly Land Co. v. Aethon
Energy Operating, L.L.C., 25 F.4th 369, 374 (5th Cir. 2022) (citing La. R.S.
30:9(B)). The Commissioner “has the plenary authority to declare drilling
and production units, to force pool neighboring tracts and leases into a single
unit, to designate a single well and operator for the unit, and to allocate
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production from the unit well to each participating tract and lease—all for
the purpose of conserving resources, avoiding waste, and eliminating
unnecessary wells.” Peironnet v. Matador Res. Co., 2012-2292, p. 42 (La.
6/28/13), 144 So. 3d 791, 822 (citing La. R.S. 30:4, 9, 10).
The designated unit operator has several duties. The operator is
charged with drilling within the unit and paying a proportionate share of
production to the owners of mineral interests in the unit. B.A. Kelly, 25 F.4th
at 275 (citing T D X Energy, L.L.C. v. Chesapeake Operating, Inc.,
857 F.3d
253, 257 (5th Cir. 2017)). However, if an unleased owner is included in the
unit, as relevant here, the law authorizes the unit operator to instead sell the
share of production owed to the unleased owner and provide the owner the
proceeds within 180 days. La. R.S. 30:10(A)(3). Louisiana law also imposes
a duty on operators to report information to unleased owners if
requested. B.A. Kelly,
25 F.4th at 375-76 (citing La. R.S. 30:103.1).
“In both voluntary and compulsory unitization, well cost disputes
arise. When there is an operating agreement [i.e. a contract or mineral lease]
among the parties, such disputes are generally addressed in the agreement.”
Id. at 375 (alteration in original) (quoting 1 Bruce M. Kramer &
Patrick H. Martin, The Law of Pooling and Unitization
§ 14.04 (3d ed. 2016)). But, in a “forced pooling” regime, the statute itself
“‘has to address a number of issues that contracts usually decide, such as
how to allocate costs and risk among those holding interests in the oil and
gas,’ and how the operator should provide an accounting of well production
and costs to owners of oil and gas interests.” Id. (quoting T D X Energy,
L.L.C.,
857 F.3d at 256). When the operator proposes to drill a well in a unit,
it may give notice to owners of oil and gas interests within the unit, allowing
owners to elect to participate in the risk by contributing to the drilling costs
up front.
Id. (citing T D X Energy, L.L.C.,
857 F.3d at 258). If an owner does
not participate and the well produces, the operator may recover out of
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production the nonparticipating interest owner’s share of “expenditures
incurred in drilling, testing, completing, equipping, and operating the well,”
and, in certain cases and except in the case of an unleased mineral owner, a
“risk charge” of two hundred percent of the owner’s drilling expenditure
share. La. R.S. 30:10(A)(2)(b)(i), (e)(i); B.A. Kelly, 25 F.4th at 275.
However, if an operator fails to timely comply with an unleased mineral
owner’s request for reporting and also fails to cure its default within thirty
days of receiving notice of such failure from the unleased owner, then the
operator cannot collect from the owner “the costs of the drilling operations
of the well.” La. R.S. 30:103.2; B.A. Kelly,
25 F.4th at 276.
The statute does not specifically address whether a unit operator may
deduct post-production costs—those costs after the minerals are reduced to
possession, including costs related to taxes, transportation, dehydration,
treating, compressing, and gathering. See J. Fleet Oil & Gas Corp. v.
Chesapeake La., L.P., No. CV-15-2461, 2018 WL 1463529, at *6 (W.D. La.
Mar. 22, 2018). Unit operators like the Defendant in this case have raised
several arguments for why they ought to be allowed to deduct post-production costs in the absence of a lease providing as much, but the only
argument before us is the applicability of negotiorum gestio to the sale of an
unleased mineral owner’s share of production under La. R.S. 30:10(A)(3).
II.
As noted, part of Louisiana’s oil and gas conservation law, La. R.S.
30:10(A)(3), authorizes the unit operator to unilaterally sell the share of
production owed to an unleased mineral owner. Section 30:10(A)(3) applies
when there is 1) a unit created by the Commissioner of Conservation 2) which
includes one or more unleased interests 3) for which the party entitled to
market production therefrom has not made arrangements to separately sell
or otherwise dispose of the share of such production attributable to such
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tract, and 4) the unit operator sells or otherwise disposes of such unit
production. Then, the unit operator must pay to such party its pro rata share
of the proceeds within 180 days. Id. This relationship is quasi-contractual.
Wells v. Zadeck, 2011-1232, p. 6 (La. 3/30/12),
89 So. 3d 1145, 1149. The
purpose of this relationship is to “facilitate[] the sale of minerals.” See King
v. Strohe, 95-656, p. 17 (La. App. 3 Cir. 5/8/96),
673 So. 2d 1329, 1338.
On the other hand, negotiorum gestio—or management of affairs—“is
a typically civilian institution that derives from the Romanist tradition and is
found in all civil codes.” La. Civ. Code art. 2292 cmt. (a). Negotiorum
gestio applies when a person, the manager or gestor, acts 1) without authority,
2) to protect the interests of another, and 3) in the reasonable belief that the
owner would approve of the action if made aware of the circumstances. La.
Civ. Code art. 2292. The gestor must have “undertake[n] the management
with the ‘benefit’ of the owner in mind” and not have “act[ed] in [its] own
interest or contrary to the actual or presumed intention of the owner.” Id.
cmts. (c)-(d); see also Johnco, Inc. v. Jameson Ints., 98-1925, pp. 5-6 (La. App.
3 Cir. 6/23/99),
741 So. 2d 867, 870; Kirkpatrick v. Young,
456 So. 2d 622,
624-25 (La. 1984). These requirements generally “depend[] on facts.”
Woodlief v. Moncure,
17 La. Ann. 241, 242 (La. 1865); see also Bank of the S. v.
Fort Lauderdale Tech. Coll., Inc.,
301 F. Supp. 260, 261 (E.D. La. 1969). Only
if all these requirements are met does a person qualify as a gestor such that
“[t]he owner whose affair has been managed is bound to fulfill the obligations
that the manager has undertaken as a prudent administrator and to reimburse
the manager for all necessary and useful expenses.” La. Civ. Code art.
2297. Negotiorum gestio is “rooted in altruism,” and its purpose is to
“encourage people to assist friends and neighbors in need.” See Cheryl L.
Martin, Louisiana State Law Institute Proposes Revision of Negotiorum Gestio
and Codification of Unjust Enrichment,
69 Tul. L. Rev. 181, 186-87, 193
(1994).
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“The general rule of statutory construction is that a specific statute
controls over a broader, more general statute.” Burge v. Louisiana, 2010-
2229, p. 5 (La. 2/11/11), 54 So. 3d 1110, 1113. This rule has been especially
true regarding Louisiana’s oil and gas conservation law, modern statutes
intended to alter and override general legal principles that were inadequate
for mineral production and conservation.
The prime example is Nunez v. Wainoco Oil & Gas Co., 488 So. 2d 955
(La. 1986). In that case, a landowner within a drilling unit sued the unit
operator for trespass because a well bore crossed onto his property several
miles below the surface while drilling for oil.
Id. at 956-58. The court held
that “private property law concepts, such as trespass, have been superceded
in part by Louisiana’s Conservation Law when a unit has been created by
order of the Commissioner.”
Id. at 964. To begin, the court recounted the
developments in Louisiana’s oil and gas conservation law, from the initial
“rule of capture” that resulted in “haste, inefficient operations, and
immeasurable waste within the ground and above” to the present method of
forced pooling into drilling units, which “was found to convert separate
interests within the drilling unit into a common interest with regard to the
development of the unit and the drilling of the well.”
Id. at 960-62. This
change marked a “departure from the traditional notions of private
property,” and the court “conclude[d] that the established principles of
private ownership, already found inadequate in Louisiana to deal with the
problems of subsurface fugacious minerals, need not necessarily be applied
to other property concepts, like trespass, within a unit.”
Id. at 962-63
(quoting Mire v. Hawkins,
186 So. 2d 591, 596 (La. 1966)). Thus, the court
“h[e]ld that the more recent legislative enactments of Title 30 and Title 31
supercede in part La.Civ.Code Ann. art. 490’s general concept of ownership
of the subsurface by the surface owner of land.” Id. at 964. Importantly, the
court noted that this scheme not only changed general property principles
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but also other “legal relationships between landowners and lessees within the
unit.” Id. at 963; see also Amoco Prod. Co. v. Thompson, 516 So. 2d 376, 393 (La.
App. 1 Cir. 1987) (holding the oil and gas conservation law is “sui generis”);
Teekell v. Chesapeake Operating, Inc., No. 12-0044,
2012 WL 2049922, at *4
(W.D. La. June 6, 2012) (“The Nunez opinion makes it clear that unitization
changes the property rights and obligations of landowners.”); Peironnet,
2012-2292, at p. 42,
144 So. 3d at 822 (“When such units are created, the
operations of the designated operator constitute operations for all lessees
participating in the unit, and the orders of the Commissioner creating said
units supersede, supplement, replace and are incorporated in the provisions
and obligations of the leases subject thereto.”).
As in Nunez, here, the legislature has prescribed a specific quasi-contractual relationship between unleased mineral owners and unit operators
under La. R.S. 30:10(A)(3) as part of the oil and gas conservation law. This
relationship is separate from negotiorum gestio under La. Civ. Code art.
2292, as each has distinct and specific requirements and duties. The mere
fact that each relationship is quasi-contractual does not make them the same,
as a quasi-contractual obligation is simply one that “arise[s] directly from the
law, regardless of a declaration of will.” See La. Civ. Code art. 1757
(emphasis added) (noting a nonexclusive list of quasi-contractual obligations
“in instances such as . . . the management of the affairs of another . . . and
other acts or facts”); see also Martin, supra, at 184 (noting the term “quasi-contract” does not appear anywhere in the Civil Code but is “simply a
shorthand method for distinguishing this particular type of obligation from a
contract”).
In addition to these two relationships being distinct, we cannot apply
them both to a unit operator without conflict. As stated, a gestor must act
“without authority.” La. Civ. Code art. 2292. In that way,
“[m]anagement of another’s affairs pursuant to a legal duty does not give rise
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to an action under negotiorum gestio.” See Kilpatrick v. Kilpatrick, 27,241, p. 9
(La. App. 2 Cir. 8/23/95), 660 So. 2d 182, 187. During the 1995 revision of
the Civil Code articles governing negotiorum gestio, the legislature replaced
the requirement that the gestor act “of his own accord” with the requirement
that the gestor act “without authority” to make clear that the requirement is
not merely voluntariness but “an absence of authority altogether,” including
authority granted by statute—appropriate for a doctrine rooted in pure
altruism. Martin, supra, at 189-90 (discussing examples of statutory grants of
authority that eliminate negotiorum gestio as a theory of recovery after the
revision). Here, however, the unit operator does not act without authority.
To the contrary, the unit operator is specifically authorized to sell an
unleased mineral owner’s share of production under La. R.S. 30:10(A)(3).
Cf. Martin, supra, at 189-90 (“[A] co-owner has authority to manage that
which is co-owned [under La. Civ. Code art. 802]. Therefore, the phrase
‘without authority’ clearly eliminates negotiorum gestio as a basis for liability
among co-owners.”). Following the rules of statutory interpretation, we
must “give meaning to every word in the statute” and cannot “read out of
the statute” the elements one must prove to qualify as a gestor, including that
one must act without authority. See Bergeron v. Richardson, 2020-01409, p. 5
(La. 6/30/21),
320 So. 3d 1109, 1113. Because we cannot apply the two
statutes together consistently, only the specific one applicable to
conservation applies. See Burge,
54 So. 3d at 1113; Nunez,
488 So. 2d at 962-
63.1
_____________________
1
I also note a gestor must act “to protect the interests of another . . . in the
reasonable belief that the owner would approve of the action if made aware of the
circumstances,” La. Civ. Code art. 2292, meaning the gestor must have “undertake[n]
the management with the ‘benefit’ of the owner in mind” and not have “act[ed] in [its]
own interest or contrary to the actual or presumed intention of the owner,” id. cmts. (c)-
(d); see also Johnco, 98-1925, at pp. 5-6,
741 So. 2d at 870; Kirkpatrick,
456 So. 2d at 624-25.
It is highly doubtful a unit operator like the Defendant did so when selling the Plaintiffs’
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No. 22-30243
Taylor v. Smith, 619 So. 2d 881, 887-88 (La. App. 3d Cir. 1993), relied
on by the majority, did not hold otherwise. The only issue before the court in
Taylor was whether the liberative prescription period applicable to actions in
tort or the one applicable to actions in quasi-contract applied to an action by
an unleased mineral owner seeking to recover proceeds under La. R.S.
30:10(A)(3).
Id. at 885-88. Because the obligation of the unit operator was
“imposed ‘without any agreement’ but instead, ‘imposed by the sole
authority of the laws,’” the court found the “cause of action against the unit
operator sounds in quasi-contract and is subject to a liberative prescription of
ten (10) years.”
Id. at 888. While the court elsewhere stated, without
analysis, that a unit operator “is acting as a negotiorum gestor or manager of
the owner’s business in selling the oil produced,” that statement was dicta
unnecessary to the court’s holding. To the extent the court did hold
negotiorum gestio applied, it did so before the legislative amendment,
discussed above, that clarified a gestor is only one who acts “without
authority,” including statutory authority. La. Civ. Code art. 2292;
Martin, supra, at 189-90. This amendment abrogated what the majority
mistakenly believes is the holding in Taylor, that negotiorum gestio may apply
to a unit operator acting under the authority of La. R.S. 30:10(A)(3).
…
Because the oil and gas conservation law provides a unique quasi-contractual relationship between unleased mineral owners and unit operators
under La. R.S. 30:10(A)(3) and this relationship cannot be applied
consistently with negotiorum gestio under La. Civ. Code art. 2292, utilizing
basic rules of statutory interpretation, we should apply only the specific
_____________________
share of production. However, that is a question of fact on which the Defendant has the
burden of proof. See Woodlief, 17 La. Ann. at 242; Bank of the S.,
301 F. Supp. at 261.
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No. 22-30243
provision under § 30:10(A)(3). With the proper outcome in this case clear,
certification to the Louisiana Supreme Court is unwarranted.
I respectfully dissent.
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