United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1158

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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. *

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Submitted: June 12, 1997

Filed: July 24, 1997

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Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

This is an interlocutory appeal brought by Deltic Farm and Timber Company

("Deltic"), seeking review of a partial summary judgment rendered below in favor of

Great Lakes Chemical Corporation ("Great Lakes"). This case, in which Deltic alleges

that Great Lakes wrongfully removed minerals from its property, is here under our

diversity jurisdiction, and is governed by Arkansas law. We find that Arkansas law

does not allow for the tolling of the statute of limitations where, as here, there is no 
The Honorable Harry F. Barnes, United States District Judge for the Western 1

District of Arkansas.

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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 property in southern

Arkansas, an area that is home to a large percentage of the world's known bromine

reserves. Bromine, which is a toxic, nonmetallic chemical useful in a variety of

products, is found in underground brine deposits, and its extraction involves drilling

wells to extract bromine-rich brine, separating the bromine from the brine, and then

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 will exhibit low pressure;

it is thus possible to force a migration of brine from one point to the other. Brine

producers must file reports with the Arkansas Oil and Gas Commission (the

"Commission") that indicate the amount of brine withdrawn, the location of wells, and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 extract

bromine-rich brine from underneath its property. Deltic says that it did not become

aware of Great Lakes's actions until Great Lakes applied to the Commission for the

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 Deltic

intervened in the application 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.
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II.

 The only issue in this appeal is whether, under the relevant Arkansas law, the

statute of limitations 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

Arkansas Supreme Court, if given the chance, would hold that the rule is the law in

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 it

voiced what appears to us to be a conviction that the rule is not part of the law of

Arkansas. Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 340-41, 784 S.W.2d

150, 154 (1990).

 

The court, quoting a trespass case that has been relied on repeatedly by the

Arkansas courts for more than a hundred years, held that " '[n]o mere ignorance on the

part of plaintiff of his rights, nor the mere silence of one who is under no obligation to

speak, will prevent the statute [of limitations] bar. There must be some positive act of

fraud, something so furtively planned and secretly executed as to keep the plaintiff's

cause of action concealed, or perpetrated in a way that 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 case that Great Lakes committed no positive act of fraud. When Deltic

acted to oppose the application to the Commission, it was able to support its argument

with information that was in the public domain. Lacking any evidence of fraudulent

concealment on Great Lakes's part, Deltic cannot withstand this summary judgment

motion.

III.

For the reasons stated, we affirm the summary judgment of the district court.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.