United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1158

___________ Deltic Farm and Timber Company, Inc., * * Appellant, * Appeal from the United States * District Court for the Western v. * District of Arkansas. * Great Lakes Chemical Corporation, * * Appellee. *

___________ Submitted: June 12, 1997 Filed: July 24, 1997

___________ Bef ore BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. This is an interlocutory appeal brought by Deltic Farm and Timber Compan y ("Deltic"), seeking review of a partial summary judgment rendered below in favor of Great Lakes Chemical Corporation ("Great Lakes"). This c ase, in which Deltic alleges that Gre at Lakes wrongfully removed minerals from its property, is here under ou r diversity jurisdiction, and is governed by Arkansas law. We find that Arkansas la w does not allow for the tolling of the statute of limitations where, as here, there is noThe Honorable Harry F. Barnes, United States District Judge for the Western 1 District of Arkansas. -2- evidence of fraudulent concealment, and we therefore affirm the judgment of the district court. 1

I. Deltic and Great Lakes are both owners of large amounts of pr operty in southern Arka nsas, an area that is home to a large percentage of the world's known bromin e rese rves. Bromine, which is a toxic, nonmetallic chemical useful in a variety o f products, is found in underground brine deposits, and its extraction involves drillin g wells to extract bromine-rich brine, separating the bromine from the brine, and the n injecting the bromine-poor brine back into the ground. The point where the spent brine is injected is a point of high pressure, and the extraction point wi ll exhibit low pressure; it is thus possible to force a migration of brine from one point to the other. Brin e produc ers must file reports with the Arkansas Oil and Gas Commission (th e "Commission") that indicate the a mount of brine withdrawn, the location of wells, and other information such as porosity factors.
Deltic alleges that Great Lakes placed its wells in such a way as to extrac t bromine -rich brine from underneath its property. Deltic says that it did not becom e aware of Great Lakes's actions until Great Lakes applied to the Commission for th e purposes of forming a "unit" of production. One requirement of such an application is to determine all of the property affected by the applicant's operations, and Delti c intervened in the appl ication matter to argue that some of its property was affected by Great Lakes's operations but was nevertheless not included in the application. It was evidently the knowledge gained in this exercise that led Deltic to initiate this litigation.-3- II. The onl y issue in this appeal is whether, under the relevant Arkansas law, th e statute of limi tations in this case did not begin to run until after Deltic discovered that Great Lakes was removing bromine-rich brine from its property. Deltic points out that this "discovery rule," as it is called, is the law in several states, and it argues that the Arkans as Supreme Court, if given the chance, would hold that the rule is the law i n Arkansas as well. We cannot agree. The Arkansas court had the chance in a recent mineral rights case to embrace this rule if it had believed it applied, but instead i t voiced what appears to us to be a conviction that the rule is not part of the law o f Arkansas. Atlanta Exploration, Inc. v. Ethyl Corp. , 301 Ark . 331, 340-41, 784 S.W.2d 150, 154 (1990).
The cou rt, quoting a trespass case that has been relied on repeatedly by th e Arkansas courts for more than a hundred years, held that " '[n]o mere ignorance on the part of plaintiff of his ri ghts, nor the mere silence of one who is under no obligation to speak, will prevent the statute [o f limitations] bar. There must be some positive act of fraud, s omething so furtively planned and secretly executed as to keep the plaintiff' s cause of action concealed, or perpetrated in a way th at it conceals itself.' " Id. , quoting McKneely v. Terry , 61 Ark. 527, 545, 33 S.W. 953, 957 (1896). There is no dispute in the present ca se that Great Lakes committed no positive act of fraud. When Deltic acted to oppose the application to theCommission, it was able to support its argument with i nformation that was in the public domain. Lacking any evidence of fraudulen t concealm ent

on Great Lakes's part, Deltic cannot withstand this summary judgmen t motion.

III. For the reasons stated, we affirm the summary judgment of the district court.-4-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.