*

 Judge of the U.S. Court of International Trade, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30052

_____________________

ROLAND J. MONGRUE; CLYDE A. GISCLAIR; and SYLVIA GISCLAIR,

Plaintiffs-Appellants,

VERSUS

MONSANTO COMPANY,

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court

Eastern District of Louisiana 

_______________________________________________

May 7, 2001

Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*

JANE A. RESTANI, Judge:

The issue before the court is whether remand is necessary for the district court to consider

a takings claim against a private entity under the federal Constitution rather than the Louisiana

Constitution. Roland J. Mongrue, Clyde A. Gisclair and Sylvia Gisclair (collectively,

“Appellants”) originally brought an action in Louisiana state court against Monsanto Company

(“Monsanto”). The Appellants had alleged, inter alia, that wastewater injected underground by

Monsanto pursuant to a permit issued by the Louisiana Commissioner of Conservation had

migrated into their subsurface property, thereby constituting a taking without just compensation. 
1

 Jurisdiction over this appeal is pursuant to 28 U.S.C. § 1291 (1994).

2

 Louisiana’s Mineral Code permits disposal through underground injection. See La. Rev.

Stat. Ann. § 30:4.1 (West 1989 & Supp. 2000).

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Following removal on diversity grounds, the district court on October 21, 1999, entered an order

granting in part Monsanto’s motion for summary judgment. In the order, the district court ruled,

inter alia, that the Appellants could not establish a claim of unconstitutional taking because

Monsanto was not a “private entity authorized by law to expropriate” for a “public and necessary

purpose,” as required under the Louisiana Constitution. On October 26, 1999, the district court

granted the Appellants’ motion for leave to dismiss with prejudice to their remaining claim of

trespass, thereby rendering the summary judgment order final and appealable.1 The Appellants

subsequently moved for a new trial on the basis that they had claimed takings under both the

Louisiana and United States Constitutions. The district court denied this motion. Appellants

appeal from both the summary judgment order and the denial of their motion for a new trial. We

affirm.

FACTS

The Appellants and Monsanto own adjacent parcels of real property in Luling, St. Charles

Parish, Louisiana. On its property, Monsanto operates a plant facility that manufactures products

such as herbicides, acetaminophen and water treatment chemicals. Beginning in 1972, Monsanto

disposed of chemical wastewater produced in the manufacture of these products by injecting it

through underground wells (“disposal wells”) that extend from 2500 to 7000 feet below the

surface.2 Monsanto injects the wastewater through the disposal wells into sand layers isolated by

impermeable layers of rock, which prevented vertical migration of the wastewater. 
3

 Under Louisiana law, plaintiffs seeking an injunction against an operator of a chemical

waste injection well must also sue as a necessary party the Commissioner of Conservation in East

Baton Rouge Parish, where the Commissioner is located. See Theriot v. Mermentau Res., Inc.,

385 So.2d 939 (La. App. 3rd Cir. 1980). 

4

 Federal district courts may hear state takings claims in diversity. Vulcan Materials Co.

v. City of Tehuacana, 238 F.3d 382, 386 (5th Cir. 2001).

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The Office of Conservation of the State of Louisiana, under authority delegated by the

Louisiana legislature, had issued permits allowing disposal by such means, subject to monitoring

and regulation. See La. Rev. Stat. Ann. § 30:4.1. The permits are granted only after an

application process that includes public hearings.

In August of 1998, Appellants filed in state District Court for the Parish of St. Charles,

Louisiana, a suit claiming that Monsanto’s injection into Disposal Wells #1 and #2 caused a

migration of wastewater into the sand strata approximately 2600 feet beneath their properties. 

No government entity was named in the suit. Appellants claimed that the subsurface migration

(1) resulted in Monsanto’s unjust enrichment, (2) constituted an unlawful trespass, and (3)

constituted a violation of constitutional provisions prohibiting takings for public purpose without

just compensation. Rather than seek an injunction,3 Appellants demanded compensation from

Monsanto based on the rental value of their property. Appellants did not challenge the legal

authority of the Commissioner in granting the permit, nor the regulatory scheme under which the

permit was granted. 

On August 25, 1998, Monsanto removed the case to federal district court based on

diversity of citizenship pursuant to 28 U.S.C. § 1332.4 On January 5, 1999, Monsanto filed a

motion for judgment on the pleadings, which the court denied on April 9, 1999. In October of

1999, Monsanto filed a motion for summary judgment on all three of Appellants’ claims. On
5

 Under Federal Rule of Civil Procedure 59, “[a]ny motion for a new trial shall be filed no

later than 10 days after entry of the judgment.” 

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October 21, 1999, the district court granted summary judgment as to the unjust enrichment and

the takings causes of action because the court found that Monsanto was not a “private entity

authorized by law to expropriate” as required by the Louisiana Constitution, Art. I, sec 4. Finding

several genuine issues of material fact, the court denied summary judgment with respect to the

trespass claim. On October 26, 1999, the court granted Appellants’ motion to dismiss the

trespass claim with prejudice, thereby enabling Appellants to appeal the partial summary judgment

as the final judgment of the case.

On November 5, 1999, Appellants filed a motion for new trial on the issue of

unconstitutional takings. Appellants argued that the court should have analyzed their takings

claim under the Fifth Amendment of the United States Constitution. On December 20, 1999, the

district court entered an order denying the motion for new trial on the grounds that (1) the motion

was untimely,5 and (2) Appellants were attempting “to relitigate the issue of unconstitutional

takings with the new argument that their claim arises under the Fifth Amendment of the United

States Constitution.” On January 5, 2000, however, the district court vacated the section of its

December 20 order that related to timeliness, but reiterated its denial of the Appellants’ motion

for a new trial on the second ground stated therein. On January 13, 2000, Appellants filed a

notice of appeal to challenge the district court’s grant of summary judgment and the denial of its

motion for a new trial. 

DISCUSSION

I. Denial of Appellants’ Motion for a New Trial
6

 Rule 15(b) provides, in relevant part: “When issues not raised by the pleadings are tried

by express or implied consent of the parties, they shall be treated in all respects as if they had been

raised in the pleadings.” “Amendments to conform to proof are permitted under Rule 15(b) in

order to bring the pleadings into line with the issues actually developed during a trial even though

the issues were not adequately presented in the pleadings.” Falls Indust., Inc. v. Consol. Chem.

Indus., Inc., 258 F.2d 277, 285 (5th Cir. 1958) (citation omitted). 

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 “[W]hen the district court's ruling is predicated on its view of a question of law, it is

subject to de novo review.” Munn v. Algee, 924 F.2d 568, 575 (5th Cir.) (denial of motion for

new trial reviewed de novo where partial summary judgment had been decided on availability of

damages, a question of law) (citing Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th

Cir.1985)), cert. denied, 502 U.S. 900 (1991).

The order denying a new trial was predicated on the conclusion that Appellants had failed

to show a mistake of law in the court’s summary judgment analysis or in its application of

Louisiana law. The district court found that the Appellants effectively were seeking to relitigate

their takings claim under the United States Constitution. See Simon v. United States, 891 F.2d

1154, 1159 (5th Cir. 1990) (Rule 59 motion may not be used to relitigate old matters or raise new

arguments). The district court reasoned that because Appellants had “treated their

unconstitutional takings claim throughout the litigation as a claim arising under the Louisiana

Constitution and not the United States Constitution,” summary judgment was properly decided

under the former.

The district court’s ruling was correctly and properly decided under the Louisiana 

Constitution based on the Appellants’ presentation of the issues. A party has presented an issue

in the trial court if that party has raised it in either the pleadings or the pretrial order, or if the

parties have tried the issue by consent under Federal Rule of Civil Procedure 15(b).6 Portis v.
7 Appellants argue that the district court’s discussion of federal takings jurisprudence in

its order denying Monsanto’s Rule 12(c) motion for judgment on the pleadings indicates that the

court understood their claim to arise under the United States Constitution. It appears that the

district court looked to federal takings law as guidance on the viability of the Appellants’ state

law claim. After noting the similarity between the Constitutions of the United States and

Louisiana, the district court gave an overview of takings law and ruled in its order that: “Under

the foregoing cases and Louisiana law, the property rights of the plaintiffs may have been

adversely affected.” The court did not state that it was ruling on a federal claim, nor did it assert

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First Nat’l Bank, 34 F.3d 325, 331 (5th Cir. 1994) (citing Myrick v. City of Dallas, 810 F.2d

1382, 1386 (5th Cir.1987)). An issue must be presented so as to put the opposing party and the

court on notice that it is being raised. Id. (citing Simon, 891 F.2d at 1158). 

Neither the district court nor Monsanto could have been on notice from the Appellants’

pleadings that remedies were sought under the federal Constitution. The case had been removed

from state court on grounds of diversity rather than federal question jurisdiction. The district

court therefore applied the substantive law of the state in which it was sitting, Louisiana. See Erie

Ry. Co. v. Tompkins, 304 U.S. 64 (1938). In point six of its petition before the state court,

Appellants had referred only to the language of the Louisiana Constitution in informing the court

of its basis for their takings claim:

Monsanto’s actions in unilaterally appropriating the property of Mr. Mongrue and

the Gisclairs amounts to an unconstitutional taking of their property without

payment of just compensation. See Article 1 Section 4 of the Louisiana

Constitution, which states that “[p]roperty shall not be taken or damaged by any

private entity authorized by law to expropriate, except for a public and necessary

purpose and with just compensation paid to the owners . . .” Monsanto should be

answerable in damages for just compensation for the property expropriated by

Monsanto.

R1-288. In the absence of any reference to the Takings Clause of the Fifth Amendment to the

United States Constitution, neither the district court nor Monsanto could have reasonably been on

notice that Appellants’ petition included a federal claim.7 Had Appellants intended to bring a
jurisdiction thereof. Rather, the motion was denied because of a possibility that the claim would

be actionable under the general principles cited in the order and because material facts were in

dispute. R1-166. See also Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th

Cir. 1990) (“A motion brought pursuant to Fed. R. Civ. P. 12(c) is designed to dispose of cases

where the material facts are not in dispute and a judgment on the merits can be rendered by

looking to the substance of the pleadings and any judicially noticed facts.”). To the extent that

the district court may have erred in concluding that its takings analysis “applies to Monsanto

because it was acting pursuant to a permit issued by the State,” such error was corrected at

summary judgment when more facts surrounding the permit came to light. See discussion under

Section II, infra.

8

 Appellants also argued in their motion for a new trial that the district court should have

analyzed their claim under the Fifth Amendment rather than the Louisiana Constitution because

the former preempts the latter. There is no basis for concluding that the district court was

obligated to find, sua sponte, that such preemption was required where Appellants failed to raise

the issue themselves. In denying the motion for judgment on the pleadings, the district court had

made no finding as to whether the takings clause of the Louisiana Constitution was preempted by

the Takings Clause of the Fifth Amendment. In fact, the district court specifically noted the

similarity between provisions.

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takings claim under the federal Constitution, they had the chance to amend their petition once it

became obvious that Monsanto understood that the takings claim continued to be based on the

Louisiana Constitution. In its motion for judgment on the pleadings, Monsanto stated: “The

plaintiffs also assert that Monsanto’s use of injection wells constitutes a taking by a private citizen

in violation of Article I Section 4 of the Louisiana Constitution.” R1-250. In their response,

Appellants failed to clarify that, as they now allege, their claim was actually brought under both

the Constitutions of the United States and of Louisiana. Rather, Appellants asserted that they met

the “elements of expropriation” by again citing only the Louisiana Constitution. R1-217. 

Similarly, Appellants failed to invoke the federal Takings Clause in opposition to Monsanto’s

motion for summary judgment.

Because the Appellants were attempting to relitigate their takings claim on a new basis,

Appellants’ motion was properly denied. 8
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II. Summary Judgment Order

 This Court reviews grants of summary judgment de novo under the same criteria that

govern a district court's consideration of whether summary judgment is appropriate. Atkins v.

Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999). Summary judgment is proper if “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When reviewing the

record upon which the moving party’s motion for summary judgment is based, the court must

draw all inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). We conclude that the district court’s grant of summary

judgment on Appellants’ state takings claim was proper.

In its order granting partial summary judgment in favor of Monsanto, the district court

ruled that as a matter of law Monsanto cannot be liable under Louisiana law “because it is not a

private entity authorized by Louisiana law to expropriate private property for a public and

necessary purpose.” R4-820. The district court reasoned that Monsanto is not one of the

exclusive number of private entities upon whom the power of eminent domain has been conferred

by the Louisiana legislature, thereby entitling them to expropriate land subject to regulation. The

district court specified that entities that are authorized under Louisiana law to expropriate

“needed property” include “those corporations constructing and operating roads, railways and

canals; utilities providing water, energy and communications, and, companies performing other

select functions related to natural gas, coal, and carbon dioxide.” Id. (citing La. Rev. Stat. Ann.

§§ 19:2, 30:22, 30:554 (West 1979 & Supp. 1999)). 
9

 We assume arguendo, as did the district court, that Monsanto’s wastewater in fact

migrated into the substrata under Appellants’ surface property and that Appellants do have

ownership rights to the sand layers into which the wastewater was injected. The district court

made no finding of such interference, and such interference is disputed insofar as Monsanto filed

an expert affidavit disputing the presence of Monsanto’s waste under Appellants’ surface

property.

10 La. Rev. Stat. Ann. § 19:2 reads in pertinent part: 

Where a price cannot be agreed upon with the owner, any of the following may

expropriate needed property:

(1) The state or its political corporations or subdivisions created for the purpose of

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The district court’s analysis is correct under Louisiana law.9 Under the takings clause of

the Louisiana Constitution, “[p]roperty shall not be taken or damaged by any private entity

authorized by law to expropriate, except for a public and necessary purpose and with just

compensation . . . .” La. Const. Art. 1, § 4, cl. 2. The Supreme Court of Louisiana observed that

the term “‘[e]xpropriation,’ or eminent domain as it is called in the common law, is the power of

the sovereign to take property for public use without the owner’s consent.’” Tenn. Gas

Transmission Co. v. Violet Trapping Co., 176 So.2d 425, 438 (1965) (quoting Nichol’s Law of

Eminent Domain, sec. 1.11 v. 1, p.2 (3d ed. 1950)). This power is delegable to administrative

officers or other agencies of the sovereign and to public and private corporations. Id.

For a private entity to qualify under Louisiana law as an agent of the government for the

purposes of establishing liability for an unconstitutional taking, the entity must have been

expressly delegated the power of eminent domain. In La. Rev. Stat. Ann. § 19:2, the Louisiana

legislature listed specific categories of private entities that may expropriate property under the

Louisiana Constitution’s takings clause pertaining to private entities authorized by law to

expropriate. 10 Entities expropriating under § 19:2 are subject to the procedural requirements
exercising any state governmental powers;

(2) Any domestic or foreign corporation created for the construction of railroads,

toll roads, or navigation canals;

(3) Any domestic corporation created for the construction and operation of street

railways, urban railways, or inter-urban railways;

(4) Any domestic or foreign corporation created for the construction or operation

of waterworks, filtration and treating plants, or sewerage plants . . .

(5) Any domestic or foreign corporation created for the piping and marketing of

natural gas . . .

(6) Any domestic or foreign corporation created for the purpose of transmitting

intelligence by telegraph or telephone;

(7) Any domestic or foreign corporation created for the purpose of generating,

transmitting and distributing electricity and steam for power, lighting, heating, or

other such uses. . . .

(8) All persons included in the definition of common carrier pipelines as set forth in

R.S. 45:251;

(9) Any domestic or foreign corporation created for piping and marketing of coal

or lignite . . .

(10) Any domestic or foreign corporation . . . engaged in the piping or marketing

of carbon dioxide . . .

(11) Any domestic or foreign limited liability company engaged in any of the

activities otherwise provided for in this Section.

11 Property expropriated under § 19:2 must be paid for in advance of the taking. Sabine

River Auth. v. Phares, 159 So.2d 144, 146 (La. 1964). 

-10-

specified in § 19:2:1. See Louisiana Power & Light Co. v. Lasseigne, 240 So.2d 707, 709 (La.

1970) (“Expropriation is an extraordinary remedy to which the Legislature has seen fit to apply

special procedural rules.”).11 

There are no instances of a private party held amenable to suit under the takings clause of

the Louisiana Constitution where there has not been an express delegation by the legislature of the

power to expropriate. Where a private company does not fall into one of the categories listed in §

19:2, courts look to whether the entity has been conferred by statute the power to expropriate

property. For example, in Collins Pipeline Co. v. New Orleans East, Inc., 250 So.2d 29 (La. App. 
12 Louisiana courts have held that grants of expropriation, even if express, are strictly

construed. For example, the court in State Dep’t of Highways. v. Jeanerette Lumber & Shingle

Co., 350 So.2d 847 (La. 1977), stated: 

In construing constitutions or statutes granting the power of expropriation, even

when the power has been expressly granted, the grant, itself, and the extent thereof

will be construed strictly against the grantee. The latter will not be allowed to take

the lands of another unless such right comes clearly and unmistakably within the

limits of the authority granted. Whatever is not plainly given is to be construed as

withheld . . . Expropriation “is special and exceptional in character, in derogation

of common right, and must be strictly construed.”

(citations omitted); accord City of Baton Rouge v. Johnca Props., 764 So.2d 1221, 1223 (La.

App. 1st Cir. 2000).

Other examples of statutes authorizing the appropriation of property under the general

state expropriation laws are La. Rev. Stat. Ann. § 30:22 (firms having the right to use

underground reservoirs for the storage of natural gas) and La. Rev. Stat. Ann. § 30:554 (entities

with a certificate of transportation have right of expropriation to “lay, maintain, and operate

pipelines, together with telegraph and telephone lines”).

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4th Cir. 1971), a private corporation was not at the time included in the exclusive list in Section

19:2. The court held that the corporation was an entity “authorized by law to expropriate” by

virtue of an express legislative grant to carrier pipe lines of the power to expropriate private

property “under the present state expropriation laws [embodied in La. Rev. Stat. Ann. § 19:1 et

seq.] for use in its common carrier pipe line business.” Id. at 31. See also La. Rev. Stat. Ann. §§

19:2(8), 45:254.12 

In contrast, in Giraud v. Gillis, Ellis & Baker, Inc., 488 So. 2d 1261, 1264 (La. App. 4th

Cir. 1986), the court rejected without discussion a takings claim against a private corporation

because “[b]y its own terms Article 1, Section 4 applies to ‘private entities authorized by law to

expropriate.’ Defendant corporation does not fall in that category.” The company had acted

pursuant to a statute allowing parent corporations to merge into a subsidiary whose shareholders
13 The Office of Conservation emphasized the public benefit that outweighed the possible

migration into the subsurface property of others by noting that:

[b]ecause of the highly fragmented ownership which exists in most areas of our

State, it would be quite unusual to be able to locate an injection well on a tract

where one could be assured that all wastes would remain under the tract on which

the injection occurs. At best, requiring the consent of every surface owner whose

subsurface might potentially be affected by subsurface injection would increase

dramatically the cost of such disposal and at worst might eliminate said disposal

altogether since environmental groups may seize upon such a rule as a way to

block the disposal.

Id.

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were given a cash payment determined by resolution of the board of directors. The statute did

not include an express grant of the power to expropriate property. Therefore, takings claims

under the Louisiana Constitution may not be brought against private entities absent an express

delegation of the power to expropriate, either by virtue of applicability of one of the categories

listed in § 19:2 or by some other statute specifically delegating such power. 

Here, the record does not reveal any express authorization by law to expropriate property

that is relevant to the facts of this case. The permits granted to Monsanto do not reference any

right to place wastewater in Appellants’ subsurface property. See, e.g., R1-226 to 229. The

Office of Conservation apparently was generally aware, however, that the permitted injection of

wastewater could result in migration, at least temporarily, into subsurface adjacent property. In a

letter dated February 26, 1996, the Office of Conservation stated that "[t]he operator of a

subsurface injection well is able to control the depths to which wastes are injected. However, the

very idea of subsurface injection of waste assumes that the waste will migrate away from the

wellbars by virtue of the pressure created by additional waste being pumped into the zone." 

R2-418 (emphasis added).13
14 The statutes regulating disposal wells for subsurface injection of waste products are set

out in La. Rev. Stat. Ann. §§ 30:1 et seq. The pertinent provisions are as follows:

La. Rev. Stat. Ann. § 30:1 D provides: 

The disposal of any waste product into the subsurface by means of a disposal well

and the regulation of all surface and storage waste facilities incidental to oil and

gas exploration and production, shall be within the jurisdiction of the department.

La. Rev. Stat. Ann. § 30:4 C provides, in part: 

The commissioner has authority to make after notice and hearings as provided in

this Chapter, any reasonable rules, regulations, and orders that are necessary from

time to time in the proper administration and enforcement of this Chapter,

including rules, regulations, or orders for the following purposes: 

(16) a. To regulate by rules, the drilling, casing, cementing, disposal interval,

monitoring, plugging and permitting of disposal wells which are used to inject

waste products in the subsurface and to regulate all surface and storage waste

facilities incidental to oil and gas exploration and production, in such a manner as

to prevent the escape of such waste product into a fresh ground water aquifer or

into oil or gas strata . . . .

 (emphasis added).

15 See February 26, 1996 Letter from the Office of Conservation: “In connection with

[Louisiana policy regarding disposal of waste by injection], the legislature has delegated its police

power to the Commissioner of Conservation to permit, monitor and regulate the subsurface

disposal of these wastes . . . .” R2-416.

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Such knowledge is not sufficient to render Monsanto a “state actor” for the purpose of

establishing a takings claim. The Louisiana statute allowing for the disposal of chemical

wastewater by injection does not confer, expressly or impliedly, the power to expropriate on

companies operating under permit by the Office of Conservation.14 La. Rev. Stat. Ann. § 30:1. 

Nor has the Louisiana Legislature delegated to the Commissioner of Conservation the power to

limit property owner rights with respect to the subsurface disposal of waste by injection, but

merely the police power to permit, monitor and regulate this activity.15 La. Rev. Stat. Ann. §
Louisiana limits property owner rights only by law. La. Civ. Code Ann. art. 490 (West

1980 & Supp. 2000) (providing that “[u]nless otherwise provided by law, the ownership of a

tract of land carries with it the ownership of everything that is directly above or under it”)

(emphasis added)).

16 The Commissioner of Conservation has the delegated power to redefine property rights

only insofar as it has the power to issue unitization orders for conservation of oil and gas

resources to prevent waste. See La. Rev. Stat. Ann. §§ 30:4 et seq. (regulating conservation of

oil and gas resources and empowering Commissioner to establish compulsory drilling units in gas

field to prevent waste). Unitization is the creation of drilling units that supersedes individual

property rights to establish a common interest in the reservoir of natural resources beneath

adjacent tracts of land. Nunez v. Wainoco Oil & Gas Co., 488 So.2d 955, 963-64 (La.), cert.

denied, 479 U.S. 925 (1986). For example, the Commissioner of Conservation is empowered to

establish compulsory units in gas field. La. Rev. Stat. Ann. §§ 30:9, 30:10. See Hunter Co. v.

McHugh, 11 So.2d 495, 498-506 (La. 1942) (finding such delegation of legislative power not

unconstitutional), appeal dismissed, 320 U.S. 222 (1943). No such unitization redefining

property rights is present in this case.

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30:4. It follows, then, that the Commissioner lacked the power to grant to Monsanto the power

to expropriate private property. 

Pursuant to this regulatory power, the Commissioner of Conservation issues permits

primarily based on findings regarding the possibility of vertical migration of the wastewater into

the groundwater or into oil or gas strata. There is no evidence that in determining whether to

issue the permit, the Commissioner makes findings with respect to property rights or title or

authorized the permanent occupation of land. There is no evidence that the Commissioner had

the power to issue a unitization order such that the rights of property owners would be redefined

or limited.16 

Because there is no evidence of an express delegation of power to expropriate property

with respect to the type of injection activity engaged in by Monsanto, either to the Commissioner

of Conservation or directly to the private entities operating under a permit, the district court’s
17 Because we find that as a matter of law Appellants do not establish Monsanto as a state

actor, we do not reach the issue of whether Monsanto’s disposal of wastewater through injection

satisfied the “for a public and necessary purpose” requirement of the Louisiana takings clause.

That the Appellants may not bring a state takings claim against Monsanto in this case is

not to say that they may not have sought remedies on other grounds. The district court found

that the Appellants' subsurface property does not belong to a drilling unit designated by the

Commissioner and "absent unitization, the Commissioner does not necessarily bar claims of

trespass when authorizing the disposal of waste through underground injection wells." RE3-6. 

Thus, the district court ruled that upon a proper showing of damages, Appellants may recover

under a state unlawful trespass claim against Monsanto regardless of the permit allowing for

injection. Because Appellants agreed to dismissal with prejudice of their trespass claim against

Monsanto, we do not reach the issue.

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summary judgment ruling was proper.17 Therefore, Appellants may not recover against Monsanto

on a claim of unconstitutional takings under the Louisiana Constitution.

CONCLUSION

Because we find that the district court’s grant of summary judgment to Monsanto and

denial of Appellants’ motion for a new trial were both proper, we AFFIRM.