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Miller v. Mississippi Resources, LLC

United States District Court, S.D. Mississippi, Western Division

February 16, 2018

DAVID MILLER PLAINTIFF
v.
MISSISSIPPI RESOURCES, LLC DEFENDANT

          MEMORANDUM OPINION AND ORDER

          David Bramlette UNITED STATES DISTRICT JUDGE

         This cause is before the Court on a Motion to Dismiss or Stay [Doc. 35] filed by Defendant Mississippi Resources, LLC (“Mississippi Resources”). Having considered the motion, Plaintiff David Miller's response in opposition, and applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:

         I. BACKGROUND

         At issue is whether a Pike County, Mississippi landowner complaining that his property was contaminated by an operator's oil and gas production activities must present his grievance to the Mississippi Oil and Gas Board (the “Board”) before suing the operator. Because the Court concludes that he must, the Court stays this action pending the landowner's exhaustion of administrative remedies before the Board.

         Plaintiff David Miller owns approximately 500 acres of real property located in Pike County, Mississippi, some of which is subject to oil and gas production and rights of way related thereto. Defendant Mississippi Resources is conducting oil, gas, and mineral production activities on some of these lands.

         Miller sued Mississippi Resources in Pike County Court, alleging negligence, negligence per se, negligent infliction of emotional distress, and punitive damages.[1] He alleges that Mississippi Resources' “production activities” have caused “extensive surface and subsurface contamination, ” “saltwater contamination, ” “oil and other hydrocarbon contamination, ” and “production waste contamination.” [Doc. 1-1, ¶7]

         Mississippi Resources removed the case to this Court, invoking diversity jurisdiction, and now moves to dismiss or stay on the ground that Miller failed to exhaust administrative remedies pre-suit. Mississippi Resources reasons that because Miller's suit alleges contamination from oil and gas production activities, an issue within the Board's jurisdiction, Miller must present his claim to the Board before filing a lawsuit.

         Miller rejoins that he need not present his claim to the Board because it lacks jurisdiction over saltwater-pipeline-based contamination. Recasting the allegations of his Complaint, Miller contends that his true gripe is with the “spill of saltwater mixed with soil.” [Doc. 41, p. 2] This type of contamination, Miller insists, is not “production waste” subject to the Board's jurisdiction, but instead a non-exempt hazardous waste under the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6972.[2]

         II. DISCUSSION

         A. The Board Has Regulatory Authority Over the Alleged Contamination

         Before a plaintiff sues for activity subject to administrative agency review, she must seek relief from the agency charged with regulating the activity. State v. Beebe, 687 So.2d 702, 704 (Miss. 1996).

         This “exhaustion” requirement applies to a landowner's suit against an operator when the landowner alleges conduct or damage placing the suit within the Board's jurisdiction. Donald v. Amoco Prod. Co., 735 So.2d 161, 176 (Miss. 1999) (en banc). The parties dispute whether Miller's allegations fall within the Board's jurisdiction.

         The Board is the state administrative agency with “exclusive authority” to regulate “the use, management, manufacture, production, ownership, investigation and noncommercial disposal of oil field exploration and production waste.” Miss. Code Ann. § 53-1-17(7).

         “Oil field exploration and production waste” includes “any chemical, produced water, sludge, oil-water emulsion, oil field brine, sediment, scale or other ...


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