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Blocker v. Conocophillips Company

United States District Court, W.D. Oklahoma

May 6, 2019

JAMES BLOCKER AND JAMI BLOCKER, husband and wife, et al., Plaintiffs,
v.
CONOCOPHILLIPS COMPANY, Defendant.

          OPINION AND ORDER

          CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 125) filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. In their Motion, Plaintiffs seek summary adjudication of their claims of negligence per se and public nuisance per se, as well as certain affirmative defenses. The Motion is fully briefed and ready for disposition. See Def.'s Resp. (Doc. No. 159); Pls.' Reply (Doc. No. 179).

         STANDARD OF DECISION

         Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Id. The Tenth Circuit requires that the moving party show “beyond a reasonable doubt that it is entitled to summary judgment.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (internal quotation marks omitted).

         A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.” Pelt, 539 F.3d at 1280. The movant can satisfy its initial burden by producing “affirmative evidence negating an essential element of the non-moving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Id. (internal quotation marks omitted). If the movant carries this initial burden, the nonmovant must then “go beyond the pleadings and designate specific facts” that would be admissible in evidence in the event of trial “so as to make a showing sufficient to establish the existence of an element essential to that party's case in order to survive summary judgment.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006); see Fed. R. Civ. P. 56(c)(1)(A). The Court must then determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).

         Parties may establish the existence or nonexistence of a material disputed fact by:

• citing to “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

         Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the [nonmovant].” Liberty Lobby, 477 U.S. at 252.

         When the moving party has the burden of proof at trial, however, “a more stringent summary judgment standard applies.” Pelt, 539 F.3d at 1280. The moving party cannot carry its burden by “pointing to parts of the record that [the movant] believes illustrate the absence of a genuine issue of material fact.” Id. Rather, to obtain summary judgment on its own claim or defense, a movant “must establish, as a matter of law, all essential elements of the issue before the nonmovant can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Id. Thus, if a party who would bear the burden of persuasion at trial lacks sufficient evidence on an essential element of a claim or defense, all other factual issues concerning the claim or defense become immaterial. See Celotex, 477 U.S. at 322; Adler, 144 F.3d at 670.

         UNDISPUTED FACTS[1]

         Beginning in 1935, Continental Oil Company (“Continental”)-predecessor of Defendant-drilled 16 wells pursuant to an oil and gas lease (the “Young Lease”) covering 160 acres of land in northwest Oklahoma City.[2] Pls.' Mot. ¶¶ 1-2; Def.'s Resp. ¶¶ 1-2.[3]Continental's production of the wells occurred between 1935 and 1966. Pls.' Mot. ¶ 4; Def.'s Resp. ¶ 4. Eight of the wells were drilled on the eastern half of the Young Lease, which is the area that now constitutes the Clifford Farms subdivision. Pls.' Mot. ¶ 3; Def.'s Resp. ¶ 3. Incident to the oil production, the Young Lease wells generated “produced water” that contained roughly 217, 000 parts per million (ppm) salt. Pls.' Mot. ¶¶ 5-6; Def.'s Resp. ¶¶ 5-6. The parties agree that, because of its high salinity, produced water can be detrimental to groundwater systems. Pls.' Mot. ¶ 7; Def.'s Resp. ¶ 7. The parties dispute, however, how and where Continental stored the produced water, whether the produced water leaked or otherwise escaped onto the surface of the property, whether the surface soils and water beneath Clifford Farms are now contaminated with elevated levels of saline, chlorides, uranium, and other constituents, and, if so, whether Continental's production and processing of oil was the cause of the contamination. Pls.' Mot. ¶¶ 8-21; Def.'s Resp. ¶¶ 8-21.

         In 2017, Clifford Farms residents submitted a Water Assessment District Petition to the City of Oklahoma City, which passed a Joint Resolution to create a Water Improvement District for Clifford Farms. Pls.' Mot. ¶ 22; Def.'s Resp. ¶ 22. Plaintiffs who currently own properties within the Clifford Farms subdivision were assessed the costs associated with bringing municipal water into the neighborhood. These Plaintiffs also incurred costs, fees, and other expenses to connect their homes to municipal water. Pls.' Mot. ¶¶ 23-24; Def.'s Resp. ¶¶ 23-24.

         DISCUSSION

         Plaintiffs seek summary judgment on their claims of negligence per se and public nuisance per se, as well as certain affirmative defenses. See Pls.' Mot. at 6.

         I. Negligence Per Se

         Plaintiffs first contend that they are entitled to summary judgment on their claim of negligence per se. Plaintiffs rely on a statute that provides:[4]

No inflammable product from any oil or gas well shall be permitted to run into any tank, pool or stream used for watering stock; and all waste of oil and refuse from tanks or wells shall be drained into proper receptacles at a safe distance from the tanks, wells or buildings, and be immediately burned or transported from the premises, and in no case shall it be permitted to flow over the land. Salt water shall not be allowed to flow over the surface of the land.

         Okla. Stat. tit. 52, § 296; see also Texas Co. v. Mosshamer, 51 P.2d 757, 758 (Okla. 1935).

         Under Oklahoma law, a plaintiff seeking to establish negligence per se must demonstrate that “the claimed injury (a) was caused by the law's violation, ” that the claimed injury “(b) was of the type intended to be prevented by the statute, ” and “(c) the injured party was a member of the class meant to be protected by the statute.” Lockhart v. Loosen, 943 P.2d 1074, 1078 (Okla. 1997); see Howard v. Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013); Hamilton v. Allen, 852 P.2d 697, 699 (Okla. 1993).

         Plaintiffs base their claim of negligence per se on the following facts, which they primarily support by ...


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