ORDER & REASONS
Carl J. Barbier, United States District Judge.
This case concerns personal injuries and other damages that allegedly resulted when a vessel's oyster rake caught on two of the so-called "orphaned anchors" left behind from the response to the 2010 Gulf of Mexico oil spill. Before the Court is Defendant BP Exploration & Production Inc.'s ("BP")
Although this Court has determined to not consolidate the case at bar with Multidistrict Litigation No. 2179 ("MDL 2179"), In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, there is some factual overlap between it and MDL 2179. On April 20, 2010, a blowout and explosions occurred aboard the mobile offshore drilling unit DEEPWATER HORIZON as it was preparing to temporarily abandon a well, known as Macondo, approximately fifty miles from the Louisiana coast. These events resulted in, among other things, approximately 3.2 million barrels of oil discharging into the Gulf of Mexico over the course of 87 days. See In re Oil Spill by the Oil Rig "Deepwater Horizon," 77 F.Supp.3d 500, 525 (E.D.La.2015). BP owned a majority interest in the Macondo Well, was the well's designated "operator," and held a majority interest in the lease of the relevant block of the outer continental shelf. Consequently, BP was designated a "responsible party" for the oil spill under the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701, et seq.
"The response to this oil spill was unprecedented in size and complexity." In re Oil Spill by the Oil Rig "Deepwater Horizon," 148 F.Supp.3d 563, 570 (E.D.La. 2015). Pursuant to the Clean Water Act ("CWA") and the National Contingency Plan ("NCP"), the Federal On-Scene Coordinator ("FOSC") was in charge of the response, including the direction of all Federal, State, and private actors. See 33 U.S.C. § 1321(c)(2), (c)(3), 40 C.F.R. §§ 300.120(a), 300.135(d), 300.305(d)(2).
One aspect of the response to the Macondo/DEEPWATER HORIZON spill involved placing more than 3.8 million feet of containment boom in coastal waters to capture oil that the wind and tides carried landward. Thousands of Danforth anchors held this boom in place. Plaintiffs claim that buoys marked the location of the anchors. Eventually, the boom and buoys were removed from the water. However, response workers could not locate or retrieve all of the anchors, and approximately 1,700 anchors (2%-3% of those deployed) were left on the water bottoms. In 2011, the Coast Guard commissioned several studies to determine whether workers should retrieve these "orphaned" anchors. Those studies concluded that leaving the anchors in place to degrade via natural processes "would derive the greatest net environmental benefit" and recommended to the FOSC that she "disapprove future analysis or removal measures related to potential navigation and/or environmental hazards purportedly posed by the presence of orphaned boom anchors." BP America Inc. v. Chustz, No. 13-620, Rec. Doc. 2-20 at 18 (M.D. La. Sept. 19, 2013). On July 1, 2011, the FOSC concurred in this recommendation. The Louisiana Coastal Protection and Restoration Authority objected to the FOSC's decision. In a letter dated September 1, 2011, the FOSC responded,
Nearly five years after the oil spill, plaintiffs Brian Winkler, Shawn Winkler, and Christopher Morrison were harvesting oysters from the vessel TWO RAYS (which is owned by Raymond F Vath, Jr. and leased to Raymond S. Vath, both of whom are also plaintiffs but were not onboard the TWO RAYS at the time of the allision) in Christmas Camp Lake in St. Bernard Parish when, according to the petition, "their rake caught on two unmarked anchors that had been left by BP from its oil spill cleanup operations, causing the boat to halt abruptly." (Petition ¶ 5, Rec. Doc. 1-1). Plaintiffs allege that all three occupants of the TWO RAYS were injured in the incident. Plaintiffs also allege that the TWO RAYS and the oyster beds sustained damage as well. Plaintiffs filed suit against BP in state court on February 17, 2016, asserting negligence claims under general maritime law and Louisiana law. Specifically, Plaintiffs contend that the anchors constitute underwater obstructions and that BP is liable for failing to remove or mark them. BP removed the case to this Court and then filed the instant motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
On a motion to dismiss, "[t]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir.2010) (citations and quotations omitted). More specifically:
Id. (citations and quotations omitted). Furthermore, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
ARGUMENTS & DISCUSSION
BP argues that Plaintiffs' tort claims are preempted or displaced by the CWA. BP contends that because the CWA and its regulations placed exclusive control over the oil spill response in the hands of the FOSC, who directed the placement of the boom and anchors as part of the response
The Court is very familiar with this argument. In 2012, the Court ruled in MDL 2179 that tort claims against Nalco, the manufacturer of a chemical dispersant that was used during the oil spill, by individuals who allegedly were harmed by exposure to Nalco's dispersant were preempted by the CWA and the NCP. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL 2179, 2012 WL 5960192 (E.D.La. Nov. 28, 2012) (hereinafter, the "Nalco Order"). The Court explained that Congress determined in the CWA that the best way to ensure the effective and immediate removal of a large oil spill was to require that the President (i.e., the FOSC) direct all levels of the response, including whether, when, what, and how dispersants should be used. Id. at *13-14. Because the FOSC authorized the use of Nalco's dispersant, "it would be improper for the Court to second guess the FOSC's decision to use (or not use) [that] dispersant" through the vehicle of a tort suit. Id. The Court further reasoned:
Id. at *15 (footnotes omitted).
However, a critical fact distinguishes this case from the Nalco Order: Here, the defendant is a "responsible party." The CWA requires that "[e]ach Federal agency, State, owner or operator, or other person participating in [oil spill response efforts under the CWA] shall act in accordance with the [NCP] or as directed by the [FOSC]." 33 U.S.C. § 1321(c)(3)(A). In an effort to encourage immediate and effective responses, the CWA immunizes spill responders against removal costs and damages that "result from actions taken or omitted to be taken in the course of rendering care, assistance, or advice consistent with the [NCP] or as otherwise directed by the [FOSC] relating to a discharge or a substantial threat of a discharge of oil." Id.
B. Settlement Release
BP also argues that the non-personal injury claims by Raymond F. Vath, Jr. (who owned the TWO RAYS) and Raymond S. Vath (who leased the TWO RAYS) are released as part of the Deepwater Horizon Economic and Property Damages Settlement ("Settlement"). Plaintiffs do not dispute that the Vaths are class members. The Settlement required class members to release:
(Settlement § 10.2, Rec. Doc. 6430-1).
(Id. § 10.5). "Deepwater Horizon Incident" is defined to include "Response Activities, including the VoO Program." (Id. § 38.43). "Response Activities" means
(Id. § 38.125).
Plaintiffs do not address the language of the release in their opposition. They respond instead by arguing that their settlement with BP
(Opp'n at 5, Rec. Doc. 27 (paragraph break omitted)).
Plaintiffs cannot avoid the language of the release by ignoring it. The Settlement releases past and future claims, including claims that arise from new facts, so long as the claims relate in any way to the "Deepwater Horizon Incident," which includes response activities. It is undisputed that the anchors were placed as part of the response to the oil spill. The Vaths' claims arose when the TWO RAYS' rake struck two of these anchors. The language in the release is broad enough to capture the Vaths' claims. The Vaths' claims are released and will be dismissed. The claims by Brian Winkler, Shawn Winkler, and Christopher Morrison, which are for personal injury, are not dismissed.
For the reasons stated above,
IT IS ORDERED that BP Exploration & Production Inc.'s Motion to Dismiss (Rec. Doc. 18) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the claims by Raymond S. Vath and Raymond F. Vath, Jr. are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the claims by Brian Winkler, Shawn Winkler, and Christopher Morrison are not dismissed and are subject to further proceedings of this Court.
33 U.S.C. § 1321(c)(4).