* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30672

WATERFOWL LIMITED LIABILITY CO; LACASSANE COMPANY INC

Plaintiffs - Appellees

JARDIN MINERALS CO; BRUIERE MINERALS CO

Intervenor Plaintiffs - Appellees

v.

UNITED STATES OF AMERICA

Defendant - Intervenor Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Louisiana

(03-CV-587)

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

In a prior panel opinion, Waterfowl L.L.C. v. United States, 473 F.3d 135,

145 (5th Cir. 2006) (“Waterfowl I”), this court resolved the legal issues in this

case and remanded it to the district court for “factual findings.” On remand, the

district court conducted a hearing and entered its factual findings. The

Defendant-Appellant United States (the “Government”) now timely appeals the

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-30672

2

district court’s factual findings. Finding no clear error, we AFFIRM.

BACKGROUND

The prior panel opinion, Waterfowl I, 473 F.3d at 138-41, provides a

summary of the factual and procedural background to this case. In short, the

plaintiffs and intervenors owned mineral servitudes on land acquired by the

United States. In 1984, the plaintiffs and intervenors sued the United States

seeking a declaratory judgment that these servitudes had not been prescribed.

The parties settled. As part of the settlement agreement completed in 1988, the

United States recognized the servitudes were validly in existence. In exchange,

the plaintiffs and intervenors carved mineral royalty, bonus, and rental rights

out of the servitudes and conveyed them to the United States. 

In 2003, the plaintiffs again sued the United States for a declaratory

judgment claiming that “the government’s mineral royalty on production from

the [ ] servitudes had (with the exception of a forty-one acre tract . . .) prescribed

in accordance with Louisiana law as a result of the lack of qualifying production

for a period in excess of ten years [and] . . . that the mineral rights conveyed by

the servitude owners to the United States had been extinguished by application

of the Louisiana Mineral Code.” Id. at 141. In response, the Government

contended that federal common law applied and therefore Louisiana laws of

prescription would not apply to its rights. Id. The district court entered

judgment against the Government concluding that state law applied, or in the

alternative, even if federal law applied, state law and not federal common law

supplied the federal rule of decision. Id. The Government appealed, and this

court rendered a decision in Waterfowl I. 

In Waterfowl I, the prior panel determined that federal law governed the
No. 07-30672

1 The Government concedes there is no change in law. See Appellant’s

Brief, at 50 (“Here, there was no change in law.”).

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settlement agreement; however, the previous panel held, the contractual

language and parties’ intentions would determine if state or federal common law

supplied the federal rule of decision. Id. at 144. The prior panel concluded that

state law would presumptively supply the federal rule of decision unless the

Government had intended to “opt out” of the state regime. Thus, the previous

panel stated: “[t]o avoid the application of state law, then, the government must

show that it contracted around the Louisiana Mineral Code in the settlement

agreement and act of conveyance to create a mineral royalty that is not

prescriptible separately from the underlying servitudes.” Id. The decision

continues in footnote 9: 

[W]e must conclude that state law provides a default regime. Absent a

relevantintervening change in state law,1state law is presumed to provide

the operative federal rule of decision unless the parties opt out of it.

Id. at 144 n.9 (emphasis added). Finding the contractual language ambiguous,

the prior panel remanded the case to the district court to resolve the factual

question as to “which law the parties intended to govern the royalty.” Id. at 145.

Following a hearing on that issue, the district court found that the Government

did not present any evidence that the parties intended to opt out of the

Louisiana prescription regime and ruled for the plaintiffs. The Government

appeals. 

STANDARD OF REVIEW

We review the district court’s factual findings as to contractual intent

under a clear error standard. Gebreyesus v. F.C. Schaffer & Associates, Inc., 204

F.3d 639, 642 (5th Cir. 2000). 
No. 07-30672

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ANALYSIS

Under a “clear error” standard of review, we must presume, absent clear

contrary evidence of intent,thatthe district court was correct in finding thatthe

parties intended state law to supply the federal rule of decision. See Waterfowl

I, 473 F.3d at 144 & n.9. The plaintiffs provided evidence to support the district

court’s factual finding that the parties had intended Louisiana law to apply as

the federal rule of decision. For example, the plaintiffs’ witness, Mr. Noble, the

president of a company that was a party to the compromise negotiations, stated

that it was his impression from his attorneys that the plaintiffs’ intent was to

have Louisiana law apply to the royalty interests. The plaintiffs also presented

evidence that the lawyers representing the plaintiffs were Louisiana oil and gas

law experts and that they used Louisiana royalty deed forms. 

In order to prevail on appeal, the Government therefore has the burden of

providing clear contrary evidence “show[ing] that it contracted around” or

“opt[ed] out” of the Louisiana law as the adopted federal rule of decision. Id. The

Governmentfalls short of satisfying this burden.The Government presented the

following evidence to show its intent to “opt out” of the Louisiana prescription

regime. First, the Government relied on its only witness at the hearing -- a

lawyer who worked on the settlement agreement. The witness, Mr. Harrington,

stated that:

There was never any discussion among the negotiating parties as to

which law would govern the royalty interest. We never talked about

whether the Mineral Code would apply. We didn’t talk about

whether the Mineral Code would not apply. We simply didn’t

mention the Mineral Code in any regard with respectto the revenue

sharing issue. 

The Government concedes in its briefthat“when negotiating the Settlement, the
No. 07-30672

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parties (and their predecessors) did not anticipate the present choice-of-law

dispute, and did not adopt express terms to avoid it.” This piece of evidence, at

most, reflects the fact that both parties did not contemplate this choice-of-law

issue during the contract negotiations. 

The Government’s other piece of evidence is a legal memorandum from the

plaintiffs that was presented to the Government during settlement negotiations.

It states that “the compromise is shaped so as to place the United States

Government essentially in the same position it would occupy if it were the owner

of one-half of the minerals or mineral rights. . . .” (emphasis added). The

Government contends that the plaintiffs thereby intended the Government to act

as permanent “owners” of the property rights, so they intended prescription not

to run against the Government’s rights. 

There are many problems with this argument. First, the settlement

memorandum only recommends placing the Government in a position

“essentially as if” it was the owner. The plaintiffs did not promise to treat the

Government as if it was the owner in all legal respects (particularly in respect

to issues not contemplated by the parties). Second, the memorandum explicitly

states that it was only a description of how the “compromise [wa]s shaped.”

Contrary to this explicit language, the Government now argues that the

memorandum statements should act as a promise regarding an issue not

contemplated nor discussed at all during the shaping of the compromise.

Moreover, in the same memorandum, the plaintiffs clearly indicated that the

memorandum should only be construed as a “frank and honest exposition” ofthe

plaintiffs’ claims and was provided solely within the context of ongoing

discussions. Therefore, the memorandum stated that it should not be “construed

as an admission againstinterest” nor as a final statement of both parties’ intent.
No. 07-30672

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Finally, the Government also presents evidence that the plaintiffs

promised to treat the Government as a leaseholder during the same

negotiations. Accepting arguendo the Government’s argument regarding the

“ownership” language in the plaintiffs’ memorandum, the plaintiffs’ promise to

treat the Government as if it was a leaseholder of the property rights could also

arguably imply the plaintiffs had intended the Government’s rights to be of a

limited duration, or, in other words, potentially subject to prescription. In its

brief, the Government concedes that leases “are subject to term limitations

similar (but not identical) to rules of prescription.” (citing LA. REV. STAT. §

31:115). Therefore, even accepting arguendo the Government’s arguments, the

plaintiffs’ alleged promises in these negotiation memoranda can be construed

either to support the application of prescription or not. 

In short, the Government presents no clear evidence that the plaintiffs

promised to accord all the property rights concomitant with ownership, e.g.,

property rights that are not subject to prescription. See Chaney v. City of

Galveston, 368 F.2d 774, 776 (5th Cir. 1966) (“Where the evidence would support

a conclusion either way, a choice by the trial judge between two permissible

views of the weight of evidence is not clearly erroneous, and the fact that the

judge totally rejected an opposed view impeaches neither his impartiality nor the

propriety of his conclusions.”). Because the plaintiffs provided evidence to

support the district court’s factual finding and the Government failed to provide

clear contrary evidence, the trial court did not clearly err in siding with the

plaintiffs. See Otto Candies, LLC v. Nippon Kaiji Kyokai Corp., 346 F.3d 530,

533 (5th Cir. 2003) (“Under a clear error standard, this court will reverse only

if, on the entire evidence, we are left with the definite and firm conviction that
No. 07-30672

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a mistake has been made.”) (internal citations and quotations omitted). 

The Government’s other legal arguments on appeal are foreclosed by

Waterfowl I. Waterfowl I specifically limited further proceedings in this case to

only the factual issue of the intent of parties as to the contracted choice-of-law

because the contractualterms were ambiguous. Yet, in its brief,the Government

continues to argue that because the contract included the term “forever,” its

royalty interest can not be prescribed. However, this court has already stated

in Waterfowl I that “[b]ecause the term ‘forever’ in the granting clause cannot,

therefore, bear its typical legal meaning, it is unclear what the parties intended

the term to mean.” 473 F.3d at 145. Barred by the “law of the case” doctrine,

this panel cannot now conclude that the term “forever” now favors the

Government’s contractual interpretation. See Fuhrman v. Dretke, 442F.3d 893,

896 (5th Cir. 2006) (“The law of the case doctrine provides that an issue of law

or fact decided on appeal may not be reexamined . . . by the appellate court on

a subsequent appeal.”) (internal quotations omitted). The Government also

argues that the application of the Louisiana prescription regime must be barred

because it is “aberrant and hostile” to federal interests. However, again, this

court in Waterfowl I stated that “the fact that cutting off the royalty right of the

United States could diminish the amount of money flowing into its coffers is not

a sufficient reason for refusing to borrow the prescription regime of the

Louisiana Mineral Code as the rule of decision.” 473 F.3d at 144. In other

words,this court has already held that because no sufficient conflict with federal

interests exists,the application of the Louisiana prescription regime to this case

is not barred. Id. 

Finally, the Government argues that because this case is clearly governed
No. 07-30672

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by the federal common law rule of nullum tempus, the parties must have

intended to consider the mineral rights as imprescriptible. The federal common

law rule of nullum tempus is simply a public policy-based rule that “neither

laches nor statutes of limitations will bar the sovereign.” Block v. North Dakota

ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 294 (1983) (O’Connor, J.,

dissenting). However, the Government already argued the applicability of

nullum tempus to this case in the previous appeal. The previous panel implicitly

rejected this nullum tempus argument, because it held that the Louisiana

prescription regime could apply as a matter of law – the only factual question

remaining for further proceedings was whether the parties intended the

Louisiana prescription regime to apply. Waterfowl I, 473 F.3d at 145 (“They

might have intended for the royalty to last as long as the underlying servitudes,

or they might have merely meant that whatever rights conveyed in the

settlement agreement were not subject to any time constraint . . .”). Any

argument before this panel that nullum tempus applies as a matter of law and

thereby bars the application of the Louisiana prescription regime to this contract

is now foreclosed by the “law of the case” doctrine. “[E]ven when issues have not

been expressly addressed in a prior decision, if those matters were ‘fully briefed

to the appellate court and . . . necessary predicates to the [court’s] ability to

address the issue or issues specifically discussed, [those issues] are deemed to

have been decided tacitly or implicitly, and their disposition is law of the case.’”

Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279

(5th Cir. 2001) (quoting In re Felt, 255 F.3d 220, 225 (5th Cir. 2001)). 

CONCLUSION
No. 07-30672

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We do notfind any clear error in the district court’s factual determination.

Accordingly, we AFFIRM the judgment of the district court.