Lazy S Ranch Properties v. Valero Terminaling and Distribution

92 F.4th 1189

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 13, 2024
• Docket: 23-7001
• Status: Published

Opinion

Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 13, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

LAZY S RANCH PROPERTIES, LLC, an Oklahoma limited liability company,

Plaintiff - Appellant,

v. Nos. 23-7001 & 23-7020

VALERO TERMINALING AND DISTRIBUTION COMPANY, a Delaware corporation; VALERO PARTNERS OPERATING CO. LLC, a Delaware limited liability company; VALERO PARTNERS WYNNEWOOD, LLC, a Delaware limited liability company,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:19-CV-00425-JWB) _________________________________

David Phillip Page, Environmental Energy & Natural Resources Advocates, PLLC, Tulsa, Oklahoma (Robert W. Coykendall of Morris Laing Law Firm, Wichita, Kansas, with him on the briefs), for Plaintiff - Appellant.

James F. Bennett of Dowd Bennett, LLP, St. Louis, Missouri (Matthew E. Johnson and Kimberly Berve of Dowd Bennett, LLP, Denver, Colorado, with him on the brief), for Defendants - Appellees.

_________________________________

Before PHILLIPS, KELLY, and ROSSMAN, Circuit Judges. _________________________________ Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 2

KELLY, Circuit Judge. _________________________________

In this diversity case, Plaintiff-Appellant, Lazy S Ranch Properties, LLC

(“Lazy S”) appeals from the district court’s grant of summary judgment and denial of

post-judgment relief in favor of Defendants-Appellees, Valero Terminaling and

Distribution Company, Valero Partners Operating Co., LLC, and Valero Partners

Wynnewood, LLC (collectively “Valero”).1 Lazy S brought several claims against

Valero, claiming that its pipeline leaked. This court has jurisdiction under 28 U.S.C.

§ 1291. We reverse the district court’s grant of summary judgment and denial of post-

judgment relief in part on Lazy S’s claims for private nuisance, public nuisance, and

negligence per se, and we affirm on all other claims. We affirm the district court’s grant

of summary judgment in part despite Lazy S’s claim that discovery was outstanding.

Background

A. Factual Background

Lazy S runs cattle operations on 6,150 acres of property located in the Arbuckle

Mountains of Oklahoma. IX Aplt. App. 86, 144. The ranch sits atop a 500-square-mile

aquifer (the Arbuckle-Simpson aquifer) which feeds numerous freshwater springs

throughout the region, including Tulip Springs, a water-source on the ranch. IV Aplt.

1 See Lazy S. Ranch Props., LLC v. Valero Terminaling & Dist. Co., No. 19-CV- 425-JWB, 2022 WL 17553001 (E.D. Okla. Dec. 7, 2022) (granting summary judgment); Lazy S. Ranch Props., LLC v. Valero Terminaling & Dist. Co., No. 19-CV-425-JWB, 2023 WL 2382725 (E.D. Okla. Mar. 2, 2023) (denying motion to alter or amend judgment). 2 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 3

App. 256; IX Aplt. App. 86. Pipelines beneath the ranch transport hydrocarbons. At

issue in this case is Valero’s Wynnewood Pipeline, which was installed in 1974 and

carries gasoline and diesel fuel (refined petroleum products). IIIA Aplt. App. 80; IV

Aplt. App. 256. Adjacent to Valero’s pipeline lie two pipelines referred to as the Blue

Knight pipelines. IX Aplt. App. 87. Between 1948 and 2008, an 8-inch Blue Knight

pipeline carried refined petroleum products (“old Blue Knight pipeline”). Id. After

carrying crude oil between 2008 and 2013, Blue Knight abandoned the 8-inch pipeline

and installed an adjacent 12-inch pipeline (“new Blue Knight pipeline”). Id. Another

pipeline under the ranch (the Cool Creek Pipeline) carries telecommunication lines.2 Id.

In addition to the pipelines under Lazy S Ranch, Valero’s experts identified

several other potential sources of contamination in the surrounding area: lubricating oils

from windmills, cooling oils from an electrical gathering complex, transformers on radio

towers, nearby highways (Interstate 35, US-77), a large pile of asphalt millings, and

another ranch with outbuildings and equipment. Aplee. App. 519–21. Valero’s expert

also noted the presence of radio relay towers with underground storage tanks containing

refined petroleum products — though he acknowledged most are powered by propane

today. IV Aplt. App. 230.

2 Valero’s expert Bert Smith reported that the prior owner of the ranch granted Cool Creek Properties, LLC an easement and right-of-way for telecommunication purposes and for “the transportation of liquids and gaseous substances” in 2017. Aplee. App. 517. In a separate portion of his report, Mr. Smith stated that the Cool Creek Pipeline has been converted to telecommunications service. Aplee. App. 491. In their briefs, neither party maintains that the Cool Creek Pipeline was actively transporting refined petroleum products when the contamination was discovered. 3 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 4

In 2018, Robert Charles “Cinco” Roos, a representative of the ranch, noticed a

diesel fuel odor emanating from a cave near Tulip Springs. V Aplt. App. 9; VII Aplt.

App. 260–62. And his father, Robert Charles Roos IV, stated that if a person stood there

long enough, “it will give you a headache and you can taste it in your mouth.” VII Aplt.

App. 176. To Lazy S’s expert, Dr. Fisher, the smell was “clearly a hydrocarbon odor.”

V Aplt. App. 92. The smell was so strong that Geologist Kevin Blackwood feared

igniting a lighter within the cave would “blow up the subsurface[.]” VI Aplt. App. 102.

In his deposition, Mr. Blackwood also testified that the odor (akin to paint thinner and

gasoline) caused him and his friends to have headaches. Id. at 99. And a local spelunker,

Dennis Thompson, was unable to map the cave because the gas fumes prevented him

from staying “in there long enough to do anything.” VII Aplt. App. 291–92.

Fearing pollution, Lazy S hired several experts to collect samples of soil, surface

water, groundwater, spring water, and air at the ranch. IX Aplt. App. 88–89. These

experts tested the samples for the presence of refined petroleum products and found trace

amounts in each. Id. at 89–91. Valero conducted its own investigation and provided a

comparison between the maximum contaminant levels found in the samples and

thresholds published by various regulatory bodies. Id. at 105–07. These thresholds set

out the lowest levels at which adverse health effects may occur. Id. at 105. Valero’s

expert, Dr. Coleman, opined that the soil and water were acceptable for residential use

(the most conservative exposure scenario). Aplee. App. 718. Similarly, she found that

the groundwater could be used without restrictions. Id.

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B. Procedural History

Lazy S filed its complaint, alleging claims for: (1) negligence and res ipsa

loquitur, (2) negligence per se, (3) trespass, (4) private nuisance, (5) public nuisance,

(6) unjust enrichment, (7) constructive fraud, (8) indemnification, (9) alter ego,

(10) amalgamation or single enterprise, and (11) punitive damages.3 I Aplt. App. 45–57.

Lazy S moved for partial summary judgment claiming that Valero contaminated its

property and caused injury. I Aplt. App. 148–165.

Valero moved for summary judgment, arguing that its pipeline was not leaking

and that Lazy S could not demonstrate injury from the de minimis presence of

hydrocarbons on the ranch. IIIA Aplt. App. 29–46. Lazy S responded that Oklahoma

law prohibits even trace amounts of contamination, Valero’s pipeline was leaking, and

Valero’s leaking pipeline caused a legal injury to the ranch. V Aplt. App. 28–42.

In recognizing that Oklahoma law requires a cognizable injury for each claim, the

district court analyzed Lazy S’s tort claims (claims one through seven) together. IX Aplt.

App. 93–94. The court rejected several of the statutes and regulations that Lazy S

proffered as a basis for its claims, including Okla. Admin. Code § 165:10-7-5. IX Aplt.

App. 95–99. Section 165:10-7-5 provides that pipeline companies “shall at all times

conduct their operations in a manner that will not cause pollution.” The court rejected

3 The district court analyzed Lazy S’s claims for indemnification, alter ego, and amalgamation or single enterprise separate from its tort claims. IX Aplt. App. 115–16. Nowhere in its opening brief does Lazy S challenge the district court’s grant of summary judgment on those grounds. “Issues not raised in the opening brief are deemed abandoned or waived.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (citation omitted). These claims are therefore waived. 5 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 6

this regulation because it merely prohibited pollution in a general sense and failed to

expressly define pollution. IX Aplt. App. 97–98.

Instead, the district court applied Okla. Stat. tit. 27A, § 2-6-105(A) to Lazy S’s

case. IX Aplt. App. 98–100. Section 2-6-105(A) prohibits pollution “of any waters of

the state” and the placement of wastes in any location “likely to cause pollution of any

air, land or waters of the state.” The statutory scheme defines pollution as:

[T]he presence in the environment of any substance, contaminant or pollutant, or any other alteration of the physical, chemical or biological properties of the environment or the release of any liquid, gaseous or solid substance into the environment in quantities which are or will likely create a nuisance or which render or will likely render the environment harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, or to property[.]

Okla. Stat. tit. 27A, § 2-1-102(12). The district court applied this definition because

Oklahoma courts have applied it in similar cases. IX Aplt. App. 98–99. It concluded that

the statute’s plain language refuted Lazy S’s position that Oklahoma law contained no

minimum threshold for actionable pollution. Id. at 99–100. Instead, to demonstrate legal

injury, Lazy S needed to establish pollutants “in sufficient quantities to constitute a

nuisance or to render the environment harmful, detrimental, or injurious.” Id. at 100.

The district court concluded that Lazy S met none of these requirements. Id. at 109.

First, relying on Valero’s comparison of the soil, water, and air samples to regulatory

safety levels, the court reasoned that the contaminant levels on the ranch were too low to

give rise to a nuisance or environmental harm. IX Aplt. App. 105. Most samples were

far below the levels at which adverse health effects may occur. Id. at 105–08. And Lazy

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S did not contest the sample concentrations or the regulatory thresholds. The district

court noted that when an Oklahoma Water Resources Board (OWRB) permit application

asked about “all known or suspected contamination,” Lazy S replied “None[,]” and that

residents, workers, and cattle continued to drink the ranch water (cattle drink from Tulip

Springs). Id. at 108. The court summarily dismissed the periodic reports of the odor

because it found they were insufficient to establish a nuisance claim under Oklahoma

law. Id.

Second, assuming a legal injury occurred, the court addressed causation and

reasoned that Lazy S presented insufficient evidence that Valero was the cause. IX Aplt.

App. 109–10. Lazy S failed to definitively show a single leak other than the visible drip

on a mechanical union nearly two miles south of Tulip Springs. Id. at 110. And Lazy S

could not create an inference of causation using res ipsa loquitur because it failed to

establish that Valero “exclusively controlled the instrumentality that caused the injury”

pursuant to Oklahoma law. Id. at 110–11 (quoting Harder v. F.C. Clinton, Inc., 948 P.2d

298, 303 n.12 (Okla. 1997)). Lazy S failed to rule out other sources of contamination in

the area, including the old Blue Knight Pipeline, the radio relay towers, highways, and

the Arbuckle-Simpson aquifer, which might carry contaminants from elsewhere in its

500-square-mile span. Id. at 113–14. Without the doctrine of res ipsa loquitur, the court

concluded that causation would be far too speculative for Lazy S to succeed. Id. at 114–

15. Accordingly, the court granted summary judgment in favor of Valero on all claims

and denied Lazy S’s motion for partial summary judgment. Id. at 121.

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Lazy S filed a motion to alter or amend pursuant to Federal Rule of Civil

Procedure 59(e). IX Aplt. App. 127–64. In denying the motion, the court clarified its

rejection of Lazy S’s argument regarding the odor, noting that Lazy S referenced

headaches only once, and this testimony merely suggested that prolonged exposure can

cause a headache, not that multiple people have actually suffered from headaches, stress,

or illness from the odor. Id. at 203, 210. To the extent the summary judgment record

reflected otherwise, the court found Lazy S’s briefing on the issue inadequate. Id. at 203.

Lazy S appealed from the district court’s grant of summary judgment, id. at 165–66, and

from the district court’s denial of its motion for reconsideration, id. at 211–12. This court

consolidated the appeals.

Discussion

Lazy S presents two main arguments on appeal. First, it argues the district court

erred in granting summary judgment because the court misinterpreted Oklahoma law to

require a minimum level of contamination to establish injury. Aplt. Br. at 18–19.

Further, it argues that the court applied the summary judgment standard incorrectly by

substituting its opinion for the opinion of the experts and other witnesses and failing to

view the evidence in the light most favorable to Lazy S. Id. at 18.

Second, it argues the district court erred in granting summary judgment because

discovery was outstanding on the issue of pipeline monitoring by Valero indicative of

how much refined product is lost in transit. Aplt. Br. at 19–20. Under Federal Rule of

Civil Procedure 56(d), Lazy S argues Valero failed to provide further documentation

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regarding the monitoring, and the court abused its discretion by not deferring ruling until

after Lazy S obtained that documentation. Id. at 40–42.

We begin by considering the district court’s grant of Valero’s motion for summary

judgment on Lazy S’s tort claims for private nuisance, public nuisance, negligence per se,

and negligence. We conclude the section by analyzing whether Lazy S presented a

genuine issue of material fact as to causation.

A. Motion for Summary Judgment

We review the grant of summary judgment de novo, using the same standard as

the district court. Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1168

(10th Cir. 2023). We generally review only the materials adequately brought to the

district court’s attention and considered by the district court. Fed. R. Civ. P. 56(c)(3).

Thus, when a party fails to present specific facts by reference to exhibits and the existing

record, “we will not reverse a district court for failing to uncover them itself.” Teets v.

Great-West Life & Annuity Ins. Co., 921 F.3d 1200, 1228 (10th Cir. 2019) (quoting

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998)); see Fed. R. Civ. P.

56(e)(3). While an affidavit supporting or opposing a motion must “set out facts that

would be admissible in evidence,” Fed. R. Civ. P. 56(c)(4), it need not be submitted “in a

form that would be admissible at trial[,]” Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986).

The movant bears the initial burden to show the absence of a genuine issue of

material fact. Id. at 323. If successful, the burden shifts to the nonmovant to “set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,

9 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 10

Inc., 477 U.S. 242, 250 (1986). The nonmovant must show more than a “scintilla of

evidence” in support of its position, instead, the evidence must be sufficient for a jury to

reasonably find for the nonmovant. Id. at 252. If there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law, summary judgment is

appropriate. 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,

144 F.3d at 670. “An issue of fact is ‘material’ if under the substantive law it is essential

to the proper disposition of the claim.” Id.

Perhaps most importantly, a court views the facts and their reasonable inferences

in the light most favorable to the nonmovant. Id. While these inferences must be

plausible, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–88

(1986), the court should not weigh the evidence, make credibility determinations, or

assess the credibility of conflicting testimony at the summary judgment stage, Forth v.

Laramie Cnty. Sch. Dist. No. 1, 85 F.4th 1044, 1052 (10th Cir. 2023). Only when a

specific set of facts is “blatantly contradicted by the record, so that no reasonable jury

could believe it” can the court choose to disregard those facts. Norwood v. United Parcel

Serv., Inc., 57 F.4th 779, 790 (10th Cir. 2023).

We apply Oklahoma state law to assess Lazy S’s tort claims at summary

judgment. See Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1140 (10th Cir.

2023). In its summary judgment order, the district court analyzed Lazy S’s tort claims

together, because each claim necessarily required a “legal injury.” IX Aplt. App. 93–94.

In doing so, the district court relied upon a definition of pollution that requires a finding

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of “a nuisance” or contamination that “render[s] the environment harmful, detrimental, or

injurious.” Id. at 100; Okla. Stat. tit. 27A, § 2-1-102(12). It rejected Lazy S’s contention

that Oklahoma law sets no minimum threshold for pollution. IX Aplt. App. 99–100.

On appeal, Lazy S renews its argument that “any deposition of product outside of

the easement is per se wrongful.” Aplt. Br. at 34. Because we find that Lazy S presented

sufficient evidence to create a genuine issue of material fact as to nuisance, we choose

not to address this argument. To the extent that Lazy S relies upon the quantities of

contaminants found throughout the samples of ranch soil and water to support its claims,

we find that these contaminants, on their own, do not create any genuine issues of

material fact. However, we note that Valero’s expert, in summarizing his expert report,

found that “[t]he chemical data available indeed show that Tulip Springs has

intermittently shown trace amounts of diesel fuel and gasoline[.]” I Aplt. App. 230. That

undisputed fact is one of many that leads to our conclusion.

1. The district court erred in granting summary judgment on Lazy S’s nuisance and negligence claims.

By combining Lazy S’s tort claims under legal injury, the district court confused

the analysis. A legal injury is necessary for all claims, but what constitutes a legal injury

will be different based on the elements of each tort. Lazy S’s primary tort claims are for

negligence and res ipsa loquitur4, negligence per se, private nuisance, and public

nuisance. We begin with Lazy S’s injury under the law of nuisance.

4 On appeal, Lazy S does not raise the doctrine of res ipsa loquitur. It is waived. See Tran, 355 F.3d at 1266. 11 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 12

a. Nuisance

Oklahoma law defines nuisance as an unlawful act or omission which “[a]nnoys,

injures or endangers the comfort, repose, health, or safety of others[.]” Okla. Stat. tit. 50,

§ 1.5 A public nuisance affects “an entire community or neighborhood, or any

considerable number of persons,” id. § 2, and a private nuisance is any nonpublic

nuisance, id. § 3.

We analyze Lazy S’s private nuisance and public nuisance claims together.

Okla. Stat. tit. 27A, § 2-6-105(A) mandates that “pollution” of any waters of the state is a

public nuisance. Meinders v. Johnson, 134 P.3d 858, 867 (Okla. Civ. App. 2005)

(emphasis added). And the statute defines pollution as the release of substances “into the

environment in quantities which are or will likely create a nuisance[.]” Okla. Stat.

tit. 27A, § 2-1-102(12) (emphasis added). Thus, § 2-1-102(12) classifies the creation of a

nuisance by the release of substances into the environment as pollution, and under § 2--6-

105(A), the existence of this type of pollution gives rise to a public nuisance. Based on a

logical reading of the statutes, the finding of a private nuisance based on the unlawful

release of substances into the environment necessitates the finding of a public nuisance

also.

5 We note that Oklahoma courts interpret Okla. Stat. tit. 50, § 1 as a generic definition of nuisance incapable of abrogating the common law requirement that a plaintiff show “substantial interference with the use and enjoyment of real property[.]” Taylor v. Delaware Cnty. Solid Waste Tr. Auth., 503 P.3d 1216, 1221 (Okla. Civ. App. 2021). 12 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 13

A nuisance arises where there is substantial interference “with the ordinary

comforts of human existence.” Laubenstein v. Bode Tower, L.L.C., 392 P.3d 706, 709

(Okla. 2016) (quoting Kenyon v. Edmundson, 193 P. 739, 741 (Okla. 1920)). Trifling

annoyances or discomforts are insufficient. Id. Oklahoma courts have repeatedly held

that foul odors constitute a nuisance. In Kenyon, the Oklahoma Supreme Court found a

nuisance where a stench emanating from a desiccating plant caused locals to have nausea,

loss of appetite, and serious discomfort. 193 P. at 740–41. Similarly, in Boudinot v.

State ex rel. Cannon, the Oklahoma Supreme Court found a nuisance where a woman

with nearly 40 cats caused a severe, offensive, and unbearable stench affecting her

neighbors. 340 P.2d 268, 270 (Okla. 1959). One family even abandoned eating on their

patio. Id.

While we agree that “[t]he law does not allow relief on the basis of an

unsubstantiated phobia[,]” see IX Aplt. App. 105 (citing Rockwell Intern. Corp. v.

Wilhite, 143 S.W.3d 604, 627 (Ky. Ct. App. 2003)), this was no unsubstantiated phobia.

Wilhite is illustrative on this point. There, the landowners stopped using their property

only after discovering the existence of minute quantities of contaminants. Wilhite,

143 S.W.3d at 627. If the Roos family had stopped using their land based on the

sampling results alone, Wilhite might be more persuasive. But the Roos family

discontinued their use, in part, because of the headache inducing smell emanating from

Tulip Springs.

The district court disregarded Mr. Roos’s testimony that he has foregone water

sales and prohibited others from recreating on the ranch as unsupported by scientific

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evidence and irrelevant to injury. IX Aplt. App. 104–05. Additionally, it found that

Lazy S never notified a regulatory agency of the contamination, workers on the ranch

continue to drink the water through a filter, and cattle continue to graze on the property.

Id. at 108. While these latter factors may undercut Lazy S’s case, we believe Mr. Roos’s

testimony remains relevant given our view of what constitutes harm under the applicable

law.

The district court also downplayed the evidence supporting the strong odor

emanating from the cave near Tulip Springs and the resulting headaches. IX Aplt.

App. 203. It failed to view reasonable inferences in favor of Lazy S when it disregarded

Mr. Roos’s testimony regarding the headache he suffered near Tulip Springs, concluding

that this testimony merely suggested that prolonged exposure can cause a headache, not

that multiple people have actually suffered from headaches, stress, or illness from the

odor. Id. But it is unlikely Mr. Roos could testify to the possibility of a headache

without experiencing one himself. The reasonable inference to draw from this testimony

is that the odor was so strong that it caused Mr. Roos to suffer a headache.

Further, the district court concluded that plaintiff’s single reference to reports of

headaches by Mr. Roos, V Aplt. App. 32 (citing VII Aplt. App. 176 (Roos IV Depo.,

176:10–20)), failed to sufficiently identify the evidence of the odor and headaches in its

response to Valero’s motion for summary judgment. IX Aplt. App. 203. Valero also

argues that Lazy S failed to properly present this claim to the district court. See Aplee.

Br. at 36–37. Both are incorrect. In Plaintiff’s Statement of Disputed Facts, V Aplt.

App. 7–26, Lazy S’s response to paragraph nine presents several record references to

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testimony by multiple individuals attesting to the strong odor on the property, id. at 9–10,

and one record reference cited in the response points out that Kevin Blackwood suffered

headaches along with “several of [his] friends,” id. at 10 (citing VI Aplt. App. 99

(Blackwood Depo., 160:1–10) (“[Y]eah, everybody got headaches, it was pretty bad”)).

Lazy S attached the referenced excerpts, including Mr. Blackwood’s deposition, to the

summary judgment response. Aplt. Reply Br. at 19–20. While Lazy S’s motion

opposing summary judgment does not explicitly declare that Kevin Blackwood and his

friends suffered headaches at Tulip Springs, the citation to the record was sufficient,

particularly in light of expert opinion indicating reports of headaches. See I Aplt

App. 219–20. This expert report, prepared by Dr. Fisher, was repeatedly referenced in

Lazy S’s motion opposing summary judgment and the district court’s order granting

summary judgment. Lazy S argued that the foul odor emanating from Tulip Springs

supported its nuisance claim, and the district court was aware of the odor at summary

judgment. It should have considered the cited deposition testimony.

Valero argues that the intermittent odor emanating from Tulip Springs is too

insubstantial as a matter of law to constitute injury, relying on Baker v. Chevron USA,

Inc., No. 1:05-CV-227, 2009 WL 3698419, at *6 (S.D. Ohio Nov. 4, 2009). Aplee. Br.

at 38. In that out-of-circuit case considering Ohio law, the court rejected the landowner’s

claim of injury based on periodic oil, gasoline, and diesel odors, because these incidents

were “too insubstantial as a matter of law[.]” Baker, 2009 WL 3698419, at *6. But the

reports of odors in that case never rose to the severity of those here. Id. Valero’s reliance

on Baker is misplaced.

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Viewing all reasonable inferences in the light most favorable to Lazy S, there is

sufficient evidence to warrant a trial on the existence of legal injury under state law

private nuisance. This evidence includes (1) the numerous reports of an odor emanating

from Tulip Springs (strong enough to give Mr. Blackwood pause before igniting a lighter

and strong enough to prevent Mr. Thompson from mapping the cave), (2) the headaches

suffered by Mr. Roos, Mr. Blackwood, and Mr. Blackwood’s friends, and (3) the changes

in behavior by the Roos family as a result of the odor. Moreover, under Okla. Stat.

tit. 27A, §§ 2-6-105(A) and 2-1-102(12), Lazy S presented sufficient evidence showing

the existence of a genuine issue of material fact as to legal injury under the law of public

nuisance.

b. Negligence and Negligence Per Se

Ordinarily, to maintain a prima facie negligence claim, a plaintiff must

demonstrate duty, breach, and proximate cause. Snow v. TravelCenters of Am. LLC,

527 P.3d 741, 747 (Okla. Civ. App. 2022). Negligence per se allows a party to

“substitute statutory standards for parallel common law, reasonable care duties.” Howard

v. Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013). Thus, when the court adopts statutory

standards, a violation of the statute constitutes negligence per se, allowing the case to

proceed past duty and breach to causation and damages. Id. To qualify as negligence per

se, the plaintiff must demonstrate that the claimed injury was caused by a violation of the

statute and that the statute was designed to prevent the claimed injury and protect the

class of injured people. Id.

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On summary judgment, Lazy S presented five separate grounds for its negligence

per se claim: (1) Okla. Const. art. 2, § 23; (2) Okla. Admin. Code § 165:10-7-5; (3) Okla.

Admin. Code § 785:45-1-2; (4) Okla. Stat. tit. 27A, § 2-6-105(A); and (5) Okla. Stat.

tit. 82, § 1084.2(1). V Aplt. App. 38–39. The district court rightly disposed of Lazy S’s

claims under the Oklahoma Constitution, Okla. Admin. Code § 785:45-1-2, and Okla.

Stat. tit. 82, § 1084.2(1).6 But further analysis is necessary under Okla. Admin. Code

§ 165:10-7-5 and Okla. Stat. tit. 27A, § 2-6-105(A). To determine whether Lazy S

presented a genuine issue of material fact as to legal injury under these statutes, we must

also determine whether each statute applies for purposes of negligence per se and

whether sufficient evidence exists for a rational jury to conclude that Lazy S actually

breached the applicable statute.

i. Okla. Stat. tit. 27A, § 2-6-105(A)

We start with § 2-6-105(A), which prohibits pollution. The definition of pollution

in § 2-1-102(12) requires a finding of a nuisance or environmental harm to successfully

prove a violation of the statute. But we must determine its application for negligence per

se purposes. Section 2-6-105(A) prevents pollution of any waters of the state. The

6 We agree with the district court that Lazy S failed to adequately brief its claims under the Oklahoma Constitution in its opposition to Valero’s motion for summary judgment. IX Aplt. App. 197–99. As for Okla. Admin. Code § 785:45-1-2 (revoked 2023) and Okla. Stat. tit. 82, § 1084.2(1), both provisions are merely definitions of pollution. Because we find that Okla. Admin. Code § 165:10-7-5 and Okla. Stat. tit. 27A, § 2-6-105(A) already contain their own definitions of pollution, Okla. Admin. Code § 785:45-1-2 and Okla. Stat. tit. 82, § 1084.2(1) are irrelevant to the rest of our analysis. See Oliver v. City of Tulsa, 654 P.2d 607, 611 (Okla. 1982) (“Where a statute contains its own definition of a term used therein, the term may not be given the meaning in which it is employed in another statute[.]”). 17 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 18

statute’s declaration of policy states that it is “public policy” “to provide that no waste or

pollutant be discharged into any waters of the state or otherwise placed in a location

likely to affect such waters[.]” Okla. Stat. tit. 27A, § 2-6-102. It clearly intends to

prevent the injury alleged here — Valero’s contamination of the streams and springs of

the ranch. Further, we previously recognized that this statute may impose a duty to

prevent pollution under Oklahoma law. See BP Pipelines (N. Am.) Inc. v. C.D. Brown

Const., Inc., 473 F. App’x 818, 828 (10th Cir. 2012) (citing Okla. Stat. tit. 27A,

§ 2-6-105(A)) (unpublished).7 Thus, the statute applies for negligence per se purposes.

As to whether there is sufficient evidence of a breach: as discussed above, Lazy S

presented sufficient evidence to create a genuine issue of material fact as to nuisance.

And the statute requires a finding of nuisance or environmental harm to show a breach.

Thus, Lazy S can show a genuine issue of material fact as to whether Valero breached

§ 2-6-105(A).

ii. Okla. Admin. Code § 165:10-7-5

Okla. Admin. Code § 165:10-7-5 provides that pipeline companies “shall at all

times conduct their operations in a manner that will not cause pollution.” The court

concluded — wrongly — that this section merely prohibited pollution in a general sense

because it fails to expressly define “pollution.” IX Aplt. App. 98. But the regulatory

scheme does, in fact, define “pollution” as the contamination of fresh water or soil “by

7 Specifically, we recognized that the defendant may have owed a duty to the State of Oklahoma. While we have not expressly recognized that this statute imposes a duty owed to a private plaintiff, we have acknowledged that a landowner may pursue a claim under the statute. See Moore v. Texaco, Inc., 244 F.3d 1229, 1231 (10th Cir. 2001). 18 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 19

salt water, mineral brines, waste oil, oil, gas, and/or other deleterious substances . . . used

in connection with . . . transporting . . . oil or gas within the State of Oklahoma.” Okla.

Admin. Code § 165:10-1-2. Oklahoma courts have used this definition in applying

§ 165:10-7-5. See Union Tex. Petroleum Corp. v. Jackson, 909 P.2d 131, 139 n.13

(Okla. Civ. App. 2009). The district court erred in concluding that § 165:10-7-5 does not

apply. Lazy S did not include the regulatory definition in its response to Valero’s MSJ,

nor in its brief to this court, but a reviewing court must apply the correct law. See Kamen

v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly

before the court, the court is not limited to the particular legal theories advanced by the

parties, but rather retains the independent power to identify and apply the proper

construction of governing law.”).

Thus, § 165:10-7-5 is applicable to Lazy S’s negligence per se claim. The

regulatory scheme was “promulgated in furtherance of the public policy and statutory

laws of the State of Oklahoma to prevent the waste of oil and gas, . . . and to prevent

pollution.” Okla. Admin. Code § 165:10-1-1. Thus, it is aimed at preventing the injury

claimed by Lazy S — pollution on the ranch caused by the Wynnewood pipeline.

Moreover, the Oklahoma Supreme Court has seemingly approved the application of the

Oklahoma Administrative Code for negligence per se purposes. In Farris v. Masquelier,

it approved the inclusion of a Code provision pertaining to streamflow interference

because the alleged interference was “the very heart of the [plaintiffs’] negligence per se

claim.” 524 P.3d 942, 950 (Okla. 2022). Similarly, we find that this provision lies at the

very heart of Lazy S’s claim.

19 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 20

The issue remains whether Lazy S presented sufficient evidence to create a

genuine dispute as to whether Valero breached Okla. Admin. Code § 165:10-7-5. In

other words, whether Valero “contaminat[ed]” the ranch’s water or soil with “waste oil,

oil, gas, and/or other deleterious substances[.]” Id. § 165:10-1-2. So far, Lazy S has

presented sufficient evidence to create genuine issues of material fact as to whether

Valero created a private nuisance and a public nuisance. It has shown the presence of

hydrocarbons on the ranch and the existence of a foul odor that has caused numerous

headaches. We think these regulations are broad enough to capture that evidence and

serve as an additional basis for a claim under the doctrine of negligence per se.

To the extent that Lazy S asserts a claim for negligence apart from the doctrine of

negligence per se, Lazy S failed to adequately present this argument to the district court

and to this court. Outside of its initial complaint, Lazy S has identified no duty imposed

upon Valero other than those created by the statutes and regulations it cites. Nor does

Lazy S mention the applicable standard of care and whether Valero breached that

standard of care. Only in passing does Lazy S assert that Valero owes a “duty to exercise

ordinary care[.]” V Aplt. App. 38. Because Lazy S has failed to adequately present its

basic negligence claim, we find negligence per se adequately encompasses Lazy S’s

claims, and we do not recognize a separate negligence claim.

The dissent concludes that the district court properly granted summary judgment

as to Lazy S’s legal injury, relying primarily upon Valero’s sampling data. It attempts to

characterize this case as a “pipeline leak case without a leaking pipeline[,]” despite the

fact that this very pipeline leaked over 23,000 gallons of product south of the ranch in

20 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 21

2018. Aplee. App. 382. First, the dissent relies too heavily on the sampling data. Under

Okla. Stat. tit. 27A, §§ 2-6-105(A) and 2-1-102(12), Lazy S can succeed by showing

either pollution amounting to a nuisance or pollution rendering the environment harmful,

detrimental, or injurious. Lazy S need not show both. The thresholds in Valero’s

sampling data are certainly relevant to environmental harm, but they are not essential to

show a nuisance. The nuisance inquiry depends on a multitude of facts and

circumstances. To dispose of Lazy S’s claims based on the sampling data occupying

“center stage” ignores the other evidence Lazy S has presented.

Second, the dissent erroneously concludes that “the remaining pieces of evidence

are insufficient for a reasonable jury to find in Lazy S’ favor.” As noted, the headaches

are relevant. In addition, the foul smell emanating from the cave was so strong that Mr.

Blackwood and Mr. Thompson feared igniting a lighter would cause an explosion.

Similarly, Mr. Thompson was unable to spend any significant time mapping the cave.

Many others smelled the strong odor.

The dissent reiterates Valero’s point that “an intermittent odor in one place on a

6,150-acre ranch” is insufficient to support a nuisance claim. While that position will

undoubtedly be raised by Valero at trial, it is not our job to give outcome-determinative

weight to such a comparison on summary judgment. Our analysis is limited to

determining whether “a rational trier of fact could resolve the issue either way.” Adler,

144 F.3d at 670. “If reasonable minds could differ as to the import of the evidence,” we

will not grant a motion for summary judgment. Anderson, 477 U.S. at 250–51. Only

when the evidence “is so one-sided that one party must prevail as a matter of law” will

21 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 22

we bypass the jury. Id. at 251–52. That is simply not the case here. For example,

reasonable minds could consider the nature and extent of the odor and conclude it is a

nuisance because it affects the ranch’s natural water supply. Likewise, even though the

odor may be limited to one area on a large ranch, reasonable minds could find the odor

especially troublesome given the ranch is frequently used for outdoor recreation and

cattle operations. Looking at the totality of the evidence presented, a rational trier of fact

could conclude that the odor injured the Lazy S ranch. That conclusion need not be an

absolute certainty.

Finally, though we decline to reach the issue, the dissent discusses damages,

suggesting that they are incredible and should inform our inquiry into injury. Of course,

the amount of damages is separate from whether Lazy S has presented sufficient evidence

to create a genuine issue of material fact as to legal injury.

Lazy S presented sufficient evidence to create a genuine issue of material fact as to

legal injury on its claims of private nuisance, public nuisance, and negligence per se.

2. The district court erred in granting summary judgment on the issue of causation. To defeat summary judgment, Lazy S must also establish a genuine issue of fact as

to whether Valero proximately caused its injuries. Jones v. Mercy Health Ctr., Inc.,

155 P.3d 9, 14 (Okla. 2006). “Causation need not be established to a degree of absolute

certainty.” Id. But “[s]peculation is the antithesis of proximate cause[.]” Butler ex rel.

Butler v. Okla. City Pub. Sch. Sys., 871 P.2d 444, 446 (Okla. Civ. App. 1994).

22 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 23

Lazy S presented sufficient evidence to show the existence of a genuine issue of

material fact as to causation. Lazy S contends that Valero was the only source of refined

product near Tulip Springs, making it the cause of contamination. Aplt. Br. at 26–27.

Valero argues there were too many alternate sources to conclude that its pipeline caused

the contamination. Aplee Br. at 12–13. The district court held that the plaintiff failed to

adequately eliminate several potential sources, including the old Blue Knight Pipeline,

the aquifer, radio relay towers, underground storage tanks, asphalt roadways, and asphalt

millings. IX Aplt. App. 113. But in its response to Valero’s motion for summary

judgment, Lazy S presented evidence that, if taken in the light most favorable to it, would

eliminate most of these sources — the depositions of Dr. Ede and Dr. Fisher, and the

report of Dr. Fisher. V Aplt. App. 26 (citing Ede Depo., id. at 109–11).

Dr. Ede opined that the Valero pipeline was the only source of refined product on

the ranch, and he could find no other source. Id. at 109–10. Likewise, Dr. Fisher’s report

concluded that “the only significant source of gasoline and/or diesel fuel . . . is the Valero

pipeline.” Aplee. App. 350. In analyzing the tests he performed at the ranch, Dr. Ede

noted that the petroleum distillates found were “relatively fresh[.]” V Aplt. App. 111.

Dr. Fisher testified that the contaminates found were “fresh material” of “relatively recent

origin[.]” Id. at 85. Lazy S’s response to Valero’s motion for summary judgment points

to a portion of Dr. Ede’s deposition where he opined that “relatively fresh” meant that

some of the petroleum distillates found on the ranch were no more than three to six

months old. Id. at 37 n.8 (citing id. at 116 (Ede Depo. 96:15–21)).

23 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 24

This testimony, taken in the light most favorable to Lazy S, gives rise to a

reasonable inference that any source of contamination on the ranch older than six months

cannot be a plausible source of contamination. And it rules out most of the major sources

of refined petroleum products on the ranch. For example, the old Blue Knight pipeline

stopped carrying refined products in 2008, nearly 10 years before Lazy S discovered the

contamination. IX Aplt. App. 112. And the new Blue Knight pipeline carries crude oil,

not refined products. Id. at 87. The two underground storage tanks closest to the ranch,

which Valero’s expert Bert Smith believed could be a source of contamination, were

removed in the early 1990s. Aplee. App. 514 (graph).

The only testimony Valero presented casting doubt on this testimony was from Dr.

Stout, who testified that karst formations underneath the ranch could trap old

hydrocarbons, isolate them from the elements, and prevent weathering. Aplee. App. 966.

These trapped hydrocarbons would appear no older than freshly produced hydrocarbons.

And they could be the source of the contamination, rather than Valero’s product. This

“battle of the experts that the parties present to us requires a trial and a trier of fact to

resolve.” Abilene Retail No. 30, Inc. v. Bd. of Comm’rs of Dickinson Cnty., 492 F.3d

1164, 1188 (10th Cir. 2007) (Ebel, J., concurring).

Other sources of contamination may exist: lubricating oils from windmills, cooling

oils from an electrical gathering complex, transformers on radio towers, nearby highways

(Interstate 35, US-77), a large pile of asphalt millings, and another ranch with

outbuildings and equipment. Aplee. App. 519–21. But in its response to Valero’s motion

for summary judgment, Lazy S cited testimony from Dr. Fisher that would eliminate

24 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 25

most of these sources. V Aplt. App. 26. The district court failed to recognize that this

testimony could defeat summary judgment. Even without it, a rational juror could infer

that none of these contaminants would be strong enough to produce the foul, headache-

inducing smell emanating from Tulip Springs. Again, a trial is necessary.

The remaining evidence presented by Lazy S, while less decisive, supports its

theory that the Valero pipeline caused the contamination. Lazy S’s experts Fisher and

MacBeth testified to the existence of pathways for hydrocarbons to travel from the

Wynnewood pipeline to water sources on the ranch. V Aplt. App. 13 (citing Aplee.

App. 409 (Macbeth Rep., 11–12)); IX Aplt. App. 111 (citing Aplee. App. 351 (Fisher

Rep., 9)). Dr. Miller opined that the pipeline’s inherent mechanical characteristics and

flaws make it more susceptible to a leak. Aplee. App. 171, 181. In his report, Dr. Miller

provided photographic evidence of a drip in the pipeline located on the southern border of

the property. Id. at 182. Dr. Fisher noted that the Wynnewood pipeline leaked in a

location just south of the ranch in 2018, spilling at least 23,000 gallons of refined product

over the course of 30 days. Id. at 382. The leak went undetected until it pooled at the

surface. Id.

In granting summary judgment for Valero, the district court speculated that the

hydrocarbons on the ranch could be the result of an old release from another pipeline on

the ranch or that they could be carried in by the aquifer. IX Aplt. App. 112–14 & n.17.

Then it concluded that Lazy S’s theory of causation was far too speculative to survive

summary judgment. Id. at 114–15. We disagree. Given the contested evidence, a

reasonable jury could decide this issue either way, depending upon its view of the

25 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 26

evidence and the credibility of the experts. See Adler, 144 F.3d at 670. The pipeline is a

major source of potential contamination beneath the ranch; it leaked in 2018; the age of

the contaminants rules out almost all other sources; and a pathway exists for

hydrocarbons to travel from the pipeline to Tulip Springs. Without belaboring the point,

a rational jury could conclude that Valero is the source of contamination.

In summary, we reverse the district court’s grant of summary judgment and denial

of post-judgment relief on Lazy S’s claims for private nuisance, public nuisance, and

negligence per se (specifically under Okla. Admin. Code § 165:10-7-5 and Okla. Stat.

tit. 27A, § 2-6-105(A)) because Lazy S presented sufficient evidence to show the

existence of genuine issues of material fact as to legal injury and causation. We remand

to the district court with directions to conduct a trial on the issues of private nuisance,

public nuisance, and negligence per se, including Lazy S’s claims for damages.

We note that the district court did not fully reach the issue of damages because it

found that Lazy S failed to establish a genuine issue of material fact regarding legal

injury. IX Aplt. App. 104. Lazy S retained several experts to provide damage estimates:

Macbeth, Isaacs, and Boyle. Macbeth calculated the estimated cleanup cost of the ranch

to be more than $35 million, Aplee. App. 405, Isaacs estimated the amount of property

damages to the ranch to be more than $13 million, id. at 91, and Boyle opined on the lost

market value of the ranch’s groundwater due to contamination (estimated at $22 million)

id. at 241. The district court reasoned that the opinions of these witnesses were largely

irrelevant because they failed to establish that the contamination injured Lazy S. IX Aplt.

26 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 27

App. 103. Having reversed that decision, we remand the case for trial including

damages.

B. Federal Rule of Civil Procedure 56(d)

Lazy S argues the district court abused its discretion by granting summary

judgment despite its request for more time due to Valero’s failure to provide it with

documentation regarding pipeline integrity. We review the district court’s denial of an

extension under Federal Rule of Civil Procedure 56(d)8 for abuse of discretion. Bolden v.

City of Topeka, 441 F.3d 1129, 1149 (10th Cir. 2006). Under Rule 56(d), if a

nonmovant, by affidavit or declaration, shows it cannot present essential facts to its

opposition to a motion for summary judgment, the court may defer or deny the motion,

allow the parties time to obtain affidavits or declarations, or issue any appropriate order

to resolve the issue. The nonmovant must expressly invoke the rule’s protections and

present an affidavit identifying the unavailable, probable facts and what steps it has taken

to obtain them. Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir.

2006).

Here, Lazy S presented neither affidavits nor declarations supporting its

opposition to summary judgment. Its invocation of the rule was limited to a brief

sentence in its response to Valero’s motion for summary judgment that “[m]etering

information, though available, has not been provided to the plaintiffs[,]” along with a

footnote stating that the metering information would provide additional evidence of leaks,

8 Formerly Fed. R. Civ. P. 56(f). See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1205 n.12 (10th Cir. 2015). 27 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 28

pursuant to Rule 56(d). V Aplt. App. 9 & n.1. This fails to satisfy Rule 56(d)’s

requirements, and we affirm the district court’s decision to rule on summary judgment

despite outstanding discovery.

C. Remaining Tort Claims

Before turning to Lazy S’s motion for early disclosure, we briefly address

Lazy S’s remaining tort claims.9 Ultimately, we affirm the district court’s grant of

summary judgment on these claims.

a. Constructive Fraud

Under Okla. Stat. tit. 15, § 59, constructive fraud occurs “[i]n any breach of duty

which, without an actually fraudulent intent, gains an advantage to the person in fault . . .

by misleading another to his prejudice[.]” “Even an innocent misrepresentation may

constitute constructive fraud where there is an underlying right to be correctly informed

of the facts.” Sutton v. David Stanley Chevrolet, Inc., 475 P.3d 847, 853 (Okla. 2020)

(citation omitted). In its motion opposing summary judgment, Lazy S failed to point out

sufficient evidence to create a genuine issue of material fact that Valero knew the

pipeline was leaking or overlooked the leak and failed to disclose this information to

Lazy S consistent with a claim for constructive fraud.

9 Oklahoma courts refrain from exercising their equitable jurisdiction to grant relief for unjust enrichment if the plaintiff has an adequate remedy at law. Harvell v. Goodyear Tire & Rubber Co., 164 P.3d 1028, 1035 (Okla. 2006). Lazy S presented no evidence that an adequate remedy at law does not exist. Summary judgment in favor of Valero was proper on this claim. 28 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 29

b. Trespass

A trespass is an “actual physical invasion of the property of another without

permission.” Beal v. W. Farmers Elec. Coop., 228 P.3d 538, 541 (Okla. Civ. App. 2009)

(citation omitted). Oklahoma recognizes both tangible and intangible trespass. See id.

While we find Lazy S’s trespass claim to be intangible, we note that an intangible

trespass requires intent. Id. Because Lazy S presented no evidence of Valero’s

trespassory intent, summary judgment on this claim in favor of Valero was proper.

D. Motion for Early Disclosure of Citizenship

Lazy S moves this court to enter an order requiring Valero Partners Wynnewood,

LLC and Valero Partners Operating Co., LLC, to identify their members and state their

citizenship for purposes of diversity jurisdiction. In its opening brief, Valero clarified the

citizenship of both LLC’s. Aplee. Br. at 3–4. Thus, we deny Lazy S’s motion as moot.

Accordingly, the district court’s judgment is AFFIRMED in part and REVERSED

in part. We REMAND to the district court with directions to conduct a trial on the issues

of negligence per se, private nuisance, and public nuisance including Lazy S’s claims for

29 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 30

23-7001, 23-7020, Lazy S Ranch Properties, LLC, v. Valero Terminaling and Distribution Company, Inc. PHILLIPS, J., dissenting.

I would affirm the district court’s order granting Valero’s motion for

summary judgment. On the record before it, the district court considered this a

“pipeline leak case without a leaking pipeline.” Resp. Br. at 1. Lazy S Ranch

set forth no more than a “scintilla of evidence” that it had been injured, and in

my view, no reasonable jury could find for the plaintiff on that evidence.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Several uncontested

facts support my view.

To start, scientific testing revealed mere minuscule amounts of refined-

petroleum-product hydrocarbons present in the soil, air, and water of the Lazy

S Ranch, which fall far below regulatory safety levels. As a reference point for

safe levels, Valero’s experts cite standards from the Oklahoma Corporation

Commission (OCC), the Oklahoma Department of Environmental Quality

(ODEQ), the Oklahoma Water Resources Board (OWRB), and the United States

Environmental Protection Agency (EPA). Experts on both sides gathered

samples from the Lazy S Ranch and tested them for benzene, toluene,

ethylbenzene, and xylenes—volatile organic compounds known to be present in

gasoline—and total petroleum hydrocarbons (TPH). Lazy S. Ranch Prop., LLC

v. Valero Terminaling & Distrib. Co., No. 19-CV-425, 2022 WL 17553001,

at *3 (E.D. Okla. Dec. 7, 2022). Valero’s experts then compared the maximum Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 31

hydrocarbon concentrations found in the Ranch’s soil, water, and air with

regulatory safety levels, summarizing this data in three tables:

OCC Tier 1 OCC Tier 1 ODEQ EPA Maximum Residential Leaching to Quality Regional Concentration Surface Soil Groundwater Cleanup Screening in Any Lazy S Levels[] Soil Levels[] Levels[] Levels[] Sample[]

Below Benzene 44 3 N/A 1.2 laboratory’s reporting limits Toluene 6700 6700 N/A 4900 0.055 Below Ethyl- 5400 5400 N/A 5.8 laboratory’s benzene reporting limits

Xylenes 21000 2100 N/A 58 (total) 0.068 4400 (condensate) 3000 (condensate) 50 TPH 2600 (crude oil) 5000 (crude oil) (total) N/A 15.3 Figure 1: Table comparing soil samples with regulatory levels (values in mg/kg). Appellant App. vol. III, at 18 (citing Appellee App. vol. III, at 727–30; Appellee App. vol. IV, at 801) (footnotes omitted).

OCC ODEQ EPA FDA Risk- OWRB[] Maximum Tier 1 Primary Requirements Concentration Based Clean Maximum for Bottled In Any Lazy S Screening Up Contaminant Water Sample[] Levels[] Levels[] Levels[] Quality[] Below laboratory’s Benzene 0.005 0.005 0.005 0.022 reporting limits Toluene 1 1 1 1.3 0.00203 Below laboratory’s Ethylbenzene 0.7 0.7 0.7 0.530 reporting limits Xylenes 10 10 10 N/A 0.00247 TPH- 1 (total condensate 5 N/A N/A N/A 0.236 TPH) TPH-crude 1 (total oil 5 TPH) N/A N/A N/A 0.236

2 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 32

Figure 2: Table comparing water samples with regulatory levels (values in mg/L). Appellant App. vol. III, at 20 (citing Appellee App. vol. III, at 729–33; Appellee App. vol. IV, at 802) (footnotes omitted).

EPA Target Indoor Air Maximum Concentration in Any Concentrations[] Lazy S Sample[] Benzene 3.60 0.891 Toluene 5210 7.57 Ethylbenzene 11.2 1.74 Xylenes (total) 104 7.79 Figure 3: Table comparing air samples with regulatory levels (values in μg/m 3 ). Appellant App. vol. III, at 22 (citing Appellee App. vol. III, at 736; Appellee App. vol. IV, at 804) (footnotes omitted); see also Lazy S. Ranch, 2022 WL 17553001, at *11–12.

Importantly, Lazy S did not dispute the accuracy of the data contained in

these summary tables. 1 And Lazy S’s experts did not opine that the “quantities

of hydrocarbons detected on the property are harmful.” Lazy S. Ranch, 2022

WL 17553001, at *10; see Appellee App. vol. I, at 171–72; Appellee App. vol.

II, at 346–47; Appellee App. vol. II, at 324.

The district court was therefore correct to conclude that Lazy S did not

present sufficient evidence that hydrocarbon pollution existed on the Ranch “in

quantities which are or will likely create a nuisance or which render or will

1 Responding to Valero’s undisputed material fact number 42, which contained the soil sample summary (Figure 1), Lazy S wrote: “Disputed. See Response 41.” Appellant App. vol. V, at 18. But Lazy S’s response to paragraph 41 disputed only the levels at which remediation is required, arguing that Oklahoma statutes prohibit pollution outright and require the restoration of “original groundwater conditions”—it did not dispute the accuracy of the data in the table itself. Id. And Lazy S did not attempt to dispute Valero’s water and air sample summary data at all. 3 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 33

likely render the environment harmful or detrimental or injurious to public

health, safety, or welfare.” Okla. Stat. tit. 27A § 2-1-102(12) (defining

pollution); see Lazy S. Ranch, 2022 WL 17553001, at *13 (“[T]he evidence

before the court indicates that the levels of hydrocarbons are so low that they

have not rendered the environment harmful or dangerous. And they are too

insignificant to constitute a substantial interference with the use and enjoyment

of Plaintiff’s property.”).

Defending its decision in a post-judgment order, the district court

clarified that it did not grant summary judgment on the basis of these

regulatory levels alone but explained that “the applicable regulatory thresholds

were still relevant to the extent that they provided a benchmark for the levels at

which these hydrocarbons were known to be harmful,” and that Lazy S “did not

present an alternative benchmark or any other evidence by which a reasonable

jury could find that the hydrocarbon levels detected on the property were

harmful.” Lazy S Ranch Prop., LLC v. Valero Terminaling & Distrib. Co.,

No. 19-CV-425, 2023 WL 2382725, at *4 (E.D. Okla. Mar. 2, 2023). To survive

summary judgment on its nuisance claim, Lazy S needed to set forth sufficient

evidence on which a jury could reasonably find that it has suffered “substantial

interference with the use and enjoyment of property.” Laubenstein v. Bode

Tower, L.L.C., 392 P.3d 706, 710 (Okla. 2016).

The majority agrees that the “trace amounts” of “contaminants found

throughout the samples of ranch soil and water. . . on their own, do not create

4 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 34

any genuine issues of material fact.” Maj. Op. at 11. But the majority describes

this data as just “one [undisputed fact] of many that leads to our conclusion.”

Id. As I see it, the sample data continues to occupy center stage because the

remaining pieces of evidence are insufficient for a reasonable jury to find in

Lazy S’s favor.

Take for example the district court’s findings that “Lazy S never notified

a regulatory agency of the contamination, workers on the ranch continue to

drink the water through a filter, and cattle continue to graze on the property.”

Id. at 14; see Lazy S. Ranch, 2022 WL 17553001, at *13. These findings

summarized undisputed material facts from the parties’ summary judgment

briefing. Compare Appellant App. vol. III, at 21 (“Plaintiff’s owners continue

to drink water sourced from Buzzard Springs [2] on the Ranch. No one has ever

told Plaintiff the water was unsafe to drink or sell.” (citations omitted)), with

Appellant App. vol. V, at 19 (disputing only that the water is filtered); and

compare Appellant App. vol. III, at 22 (“Cattle continue to freely drink the

water from Tulip Springs and elsewhere on the Ranch.”), and id. at 23 (“Cattle

continue to graze freely on ‘every foot’ of the Ranch, including in areas where

Plaintiff claims soil and water contamination exists and Plaintiff is not aware

that any alleged contamination has injured any cattle.”), and id. (“Plaintiff has

2 Out of nine springs on the Ranch, Buzzard Springs is the only one that “flows reliably year-round” and so “serves as the drinking water supply for the ranch.” Appellee App. vol. II, at 376. 5 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 35

not altered any ranch operations as a result of environmental sampling or other

data.”), and id. (“Plaintiff has never notified any regulatory agency of any

alleged contamination on the Ranch.”), with Appellant App. vol. V, at 7, 20

(not disputing these facts).

Perhaps recognizing that “an intermittent odor in one place on a

6,150-acre ranch . . . is too insubstantial as a matter of law to constitute

substantial injury,” Resp. Br. at 38, the majority relies on Lazy S’s belated

reports of something more than just odors—“resulting headaches,” Maj. Op.

at 14. See Laubenstein, 392 P.3d at 709 (quoting Kenyon v. Edmundson, 193 P.

739, 741 (Okla. 1920)) (observing that “a mere trifling annoyance,

inconvenience, or discomfort” does not constitute a nuisance); Baker v.

Chevron USA, Inc., No. 05-CV-227, 2009 WL 3698419, at *6 (S.D. Ohio

Nov. 4, 2009), aff’d, 533 F. App’x 509 (6th Cir. 2013) (explaining that

intermittent reports of diesel fuel odors did not result in “any substantial

annoyance or discomfort to Plaintiffs”).

Though Lazy S makes much of these headaches in its post-judgment

motion and on appeal to us, it barely mentioned them at summary judgment.

See Lazy S Ranch, 2023 WL 2382725, at *5 (“At summary judgment, Plaintiff

made just one reference to the odors causing stress, including headaches.”

(cleaned up)). So I question, as Valero has on appeal, whether Lazy S

adequately raised these alleged injuries before the district court. Here I part

with the majority, which faults the district court for “downplay[ing] the

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evidence supporting the strong odor emanating from the cave near Tulip

Springs and the resulting headaches.” Maj. Op. at 14. Though the majority

acknowledges that “Lazy S’s motion opposing summary judgment does not

explicitly declare that Kevin Blackwood and his friends suffered headaches at

Tulip Springs,” it nevertheless concludes that “the citation to the record was

sufficient.” Id. at 15. I disagree.

For starters, Lazy S flouted the Local Rules of Civil Procedure for the

Eastern District of Oklahoma, which require a nonmovant to “[s]eparately,” and

“in concise, numbered paragraphs, state any additional facts the nonmovant

contends preclude judgment as a matter of law.” E.D. Okla. Civ. R. 56.1(c).

Ignoring this rule, Lazy S lumped its additional facts into a “section responding

. . . to the facts that the movant contends are not in dispute” and “stat[ing] any

fact that is disputed.” Id. The district court generously overlooked this

procedural deficiency, but it was not required to do so.

So that the reader may appreciate what was before the district court on

this issue, here is Lazy S’s response to Valero’s undisputed material fact

number nine, in full:

9. In July 2018, Robert Charles “Cinco” Roos claims to have smelled a diesel fuel odor emanating from Tulip Springs, marking the “first person or representative of” the Ranch to discover something “amiss.”

RESPONSE: Disputed. This is the Defendants’ sole discussion regarding smells or odors of hydrocarbons at Tulip Springs. Several individuals have smelled hydrocarbon odors at Tulip Springs, including Mr. Cinco Roos and his father

7 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 37

Charles Roos and Charles’ wife (and Cinco’s mother), Kevin Blackwood and his wife, Randy Miller, Bert Fisher, and Blake Redden. (Exhibit “D” - Fisher Depo. Page 156, lines 10-22; Page 157, lines 3-25 through Page 158, lines 1-14; Fisher Report Dkt. 131 page 28; Exhibit “L” - Blackwood Depo. Page 15 Lines 11-21; Page 103, Lines 1-25 to Page 104, Lines 1-4; Exhibit “N” at 61:23-24; 62:1-3). Furthermore, Dennis Thompson visited the cave on the Lazy S Ranch on four occasions, and it smelled strongly of gas fumes to the extent that no one would ignite a lighter for fear of ignition due to the gasoline fumes. See Exhibit “O” Thompson Dep. 6: 7-12; 7: 23-25; 8: 1-9; 9: 23-25-10:1; 14: 6-15; 16: 2025; 17: 12-25; 18: 1-14; 26: 23-25; 27: 2-5; 34: 1-25; 35: 1-11; 36: 17-25; 37: 1-13; 38: 1-12; 41: 11-20; 43: 1-6. In 2011, 2013, and August 2018, Geologist Kevin Blackwood examined the karst features of Tulip Springs, and both he and Mr. Thompson were shocked that the springs still smelled of gasoline. Id.; also see Exhibit “L” Blackwood Dep., p. 15: 15-25; 16:1-5, 24-25; 17: 1-5; 103:1-16; 112: 20-25. Geologist Kevin Blackwood also smelled gasoline at Tulip Springs and observed a leak in the Pipeline during digs at the Ranch. See Exhibit “L” Blackwood Dep., 132: 21-25; 133: 1-5; 11-15. (“Q You saw something leaking out of that? A Yeah, it was a fluid coming out of the line.”) Id; 19:21-25, 160:1-10; 170: 23-25; 174: 1-8. He was afraid of an explosion due to the strong presence of gasoline at Tulip Springs, and they immediately left the site. Id at 174: 1-8; 17.

Appellant App. vol. V, at 9–10.

Notably, Lazy S’s response to Paragraph 9 does not mention the words

“headache” or “stress.” Despite this, the majority faults the district court for

not combing through the forty-odd record cites (in this paragraph alone) to

discover the “one record reference” which “points out that Kevin Blackwood

suffered headaches along with ‘several of [his] friends.’” Maj. Op. at 15 (citing

Appellant App. vol. V, at 10; and then quoting Appellant App. vol. VI, at 99).

8 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 38

Further, the majority criticizes the district court for not considering the

legal significance of all the cited testimony. Id. at 14–15. But the district court

cannot abandon its “limited and neutral role in the adversarial process” to

become an advocate who “make[s] a party’s case for it.” Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). Where a party fails to meet the

burden “to present such specific facts by reference to exhibits and the existing

record,” we should “not reverse a district court for failing to uncover them

itself.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

Indeed, the only time Lazy S mentions the word “headache” in its

summary-judgment response brief is in an argument section on damages, where

Lazy S asserts that the “‘[l]oss of use and enjoyment’ or ‘loss of enjoyment of

life’ due to contamination has rendered the Ranch waters unsaleable and

unswimmable, and undrinkable without treatment, and the gaseous odor of the

contaminated springs causes stress, including headaches.” Appellant App.

vol. V, at 32. There, Lazy S cites only a few lines from the deposition of Ranch

owner Robert Charles Roos IV, but like the Blackwood testimony mentioned

above, Lazy S did not make its case by quoting or summarizing the most

important points from that testimony in the main response text. 3 The district

court still considered the testimony but concluded that, “[c]onstrued in the light

3 The cited testimony states: “[I]t smells like a refined diesel product. It’s kind of a cross between diesel, gasoline, kerosene smell. I can’t describe the smell. And it will – if you s[t]ay there very long it will give you a headache and you can taste it in your mouth.” Appellant App. vol. VII, at 176. 9 Appellate Case: 23-7001 Document: 010110999696 Date Filed: 02/13/2024 Page: 39

most favorable to Plaintiff, this testimony merely suggests that prolonged

exposure to whatever the odor was emanating from this spring can cause a

headache. It fails to support Plaintiff’s present contention that the odor has

caused multiple individuals to suffer from headaches, stress, or illness.” Lazy S

Ranch, 2023 WL 2382725, at *5.

The majority also points to an expert report attached as an exhibit to

Lazy S’s motion for partial summary judgment (the denial of which Lazy S did

not appeal), “indicating reports of headaches.” Maj. Op. at 15. But like the

other headache evidence, this mention was buried in the record: Lazy S’s brief

in support of its motion for partial summary judgment does not even mention

the word “headache” or argue that the odors were bothersome. And the expert

report itself only vaguely states that unnamed “[w]itnesses have reported

petroleum odors at Tulip Springs following high precipitation events as early as

2004” and that “[t]hese observations include . . . reports of headaches after

exposure to the refined petroleum product hydrocarbon odors.” Appellant App.

vol. I, at 220. The district court did not err by determining that Lazy S’s

evidence of headaches—and any argument for their legal significance—was

insufficiently raised at summary judgment.

But even if Lazy S did adequately bring reports of headaches to the

district court’s attention, and even if a jury could determine that the odors and

headaches experienced intermittently at one spring on a 6,150-acre ranch are

enough of a “substantial interference” with Lazy S’s use and enjoyment of

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property to find Valero liable, that would hardly support Lazy S’s damages

estimates. Lazy S’s damages experts “blindly rely on the opinions of Plaintiff’s

other experts that the entire property is contaminated.” Lazy S. Ranch, 2022

WL 17553001, at *10. And despite a purchase price of around $8.6 million in

December 2017, they estimate that remediation of the Ranch will cost

$43,292,000, lost water profits will be $22,537,045, and damages to the market

value of the land and buildings will total $13,050,000. Though “[o]rdinarily,

the question of whether a nuisance exists, and its resulting damages, present

fact questions for the jury,” the huge disconnect between the injury alleged and

the damages sought here gives me pause. N.C. Corff P’ship, Ltd. v. OXY USA,

Inc., 929 P.2d 288, 294 (Okla. Civ. App. 1996). Let’s not forget that Lazy S

does not dispute that the levels of hydrocarbons fall far short of any levels at

which regulatory agencies would require remediation, that Lazy S never

reported any contamination to any regulatory agency, and that no water sale has

fallen through on account of any alleged pollution. And though Lazy S’s

counsel is assuredly not alone in “car[ing] whether or not [his] steak is dirty,”

Oral Argument at 10:12–18, Lazy S offered no evidence that its livestock have

been injured or that it has had to change any of its cattle operations to remedy

“dirty” steak. Id.

At oral argument, Lazy S’s counsel exhorted the panel to remand the case

for trial, attributing to G.K. Chesterton the aphorism, “the most uncommon

thing is common sense.” Oral Argument at 15:03–14. But “[w]e call a thing

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common sense when it suffers from too much evidence in its favour; too much

to be formulated or even remembered.” G.K. Chesterton, At the Sign of the

World’s End, The New Witness, Feb. 27, 1920, at 268. If Lazy S suffers from

too much evidence in its favor, its counsel neither formulated nor remembered

it when it mattered most. And courts, like artists, must “draw[] the line

somewhere.” G.K. Chesterton, Our Note Book, The Illustrated London News,

May 5, 1928, at 780.

Because I agree with the line that the district court drew here, I

respectfully dissent.