Revised March 20, 2002

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 00-50710

____________

JESS ANTHONY; MARJORIE ANTHONY; LINDA FORBUSH,

Plaintiffs - Appellants,

versus

CHEVRON USA, INC., Successor in Interest t o Gulf Oil

Corporati on,

Defendant - Appellee.

Appeal from the United States District Court

For the Western District of Texas

March 1, 2002

Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiffs-Appellants Jess Anthony, Marjorie Anthony, and Linda Forbush (collectively, the

“Anthony Family”) appeal the district cou rt ’s grant of judgment as a matter of law in favor of

Defendant-Appellee Chevron U.S.A., Inc. (“Chevron”). The Anthony Family filed suit in state court

against Chevron and several other oil companies, alleging that Chevron had negligently polluted both1 28 U.S.C. § 1446(b) provides, in relevant part:

If the case stated by the init ial pleading is not removable, a notice of removal

may be filed within thirty days after receipt by the defendant, through service

or otherwise, of a copy of an amended pleading, motion, order or other paper

from which it ma y first be ascertained that the case is one which is or has

become removable, exce pt t hat a case may not be removed on the basis of

jurisdiction conferred by section 1332 of this title more than 1 year after

commencement of the action.

28 U.S.C. § 1446(b).

2 Chevron raises several other groun ds in support of the district court’s dismissal of the

Anthony Family’s water and soil pollution claims. Because we find for Chevron on the elements of

causation and damages, we do not need to reach these additional issues.

-2- the water and soil of the Anthony Family’s ranch, and also used more of the ranch’s surface estate

than was reasonably necessary to conduct their operations. After the dismissal of the sole non-diverse

defendant, Chevron removed the case to federal court pursuant to 28 U.S.C. § 1446(b). 1 The district

court subsequently denied the Anthony Family’s claims on the merits, holding that they had failed to

provide sufficient evidence for a reasonable jury to conclude that Chevron caused the pollution of the

ranch’s underground aquifer. The trial court also concluded that the Anthony Family had not shown

sufficient evidence that Chevron caused the soil pollution on various sites on the ranch. In addition,

the court found that the Anthony Family had not presented sufficient evidence to calculate the amount

of damages resulting from the alleged water and soil pollution. We agree with the district court, and

hold that the Anthony Family has failed to provide sufficient evidence of causation and damages to

reach the jury on either the water or soil pollution claims. 2

I

The Anthony Family owns the surface estate of t he V-6 ranch, which encompasses 7,392

acres south of the City of Monahans in Ward County, Texas. As part of t heir surface estate, the

Anthony Family owns the groundwater underlying the ranch. The ranch’s mineral estate is separate-3-

from the surface estate and is divided into two sections. The Gulf Oil Corporation (“Gulf”) initially

leased these two sections fro m t he Hut chings Joint Stock Association (“H.S.A.”) and from the

trustees of the C.W. Edwards estate in 1925 an d 1934, respectively. The leases gave Gulf the

exclusive right to conduct oil producti on operations on each subsection of the ranch. Chevron

subsequently acquired these leaseholds over the mineral estate when it acquired Gulf. Chevron

continued to op erate under the lease agreements until it assigned them to the Pennzoil Company

(“Pennzoil”) in 1992.

U nderlying the V-6 ranch is the Allurosa aquifer. The Allurosa, in reality, consists of two

distinct, but interconn ect ed aquifer layers. The uppermost layer, known as the Alluvium, consists

primarily of poorly consolidated sand, gravel, and silt. This upper strata extends down roughly one

hundred feet below the surface. Beneath the Alluvium is the Santa Rosa aquifer, which extends down

a further two hundred fift

y feet below the surface, making the total depth of the aquifer approximately

three hundred fifty feet. The Santa Rosa, which consists of sandstone, is older and harder than the

upper, Alluvium layer. The name “Allurosa” is merely a contraction of the names of these two

subterranean aquifers.

The Anthony Family maintains numerous wat er wells on their ranch, each of which is

completed into the Allurosa aquifer. The particular well at issue here, known as the Bentley Windmill

water well, extends down only into the upper Alluvium strata to a depth of about fifty-four feet. The

Anthony Family uses this well to provide water for their cattle on the ranch. The well pro duces

approximately ten gallons of water per minute, but t he po rt io n of the Allurosa beneath the well is

capable of producing several hundred gallons per minute if the Bentley Windmill’s pumping capacity

was increased or additional wells were completed into the aquifer.-4-

Historically, the Bentley Windmill produced water that was suitable for human consumption.

Test s run in 1973, 1974, and 1975 showed chloride levels in the Bentley Windmill at about sixt y

parts per million (p.p.m.) and total dissolved solids of approximately 600 p.p.m., which were far

below the recommended maximum state levels for chloride and t o t al dissolved solids in drinking

water of 300 p.p.m and 1,000 p.p.m., respectively.

By 1988, the chlori de levels in the Bentley Windmill had increased dramatically. Tests

revealed chloride levels as high as 980 p.p.m., far in excess of the recommended maximum level of

chloride for drinking water. Not surprisingly, the level of total dissolved solids had also increased

substantially, also exceeding the recommended maximum amount.

Beneath the Allurosa is the Monahans South Queen Field (“South Queen”), part of the

mineral estate, which consists primarily of sand saturated with oil. The South Queen lies at a depth

of about 3,000 feet below the surface. Chevron initially began to develop the South Queen in the

late 1960s. Beginning in 1971, Chevron sought to increase the oil pro duction from the field by

injecting salt water into the formation. For this purpose, Chevron co nverted several of its oil

pro ducing wells into salt water injection wells. The goal of this procedure was to increase t he

underground pressure, thereby forcing more oil towards the remaining producing wel l s. Som e of

these converted wells were in close proximity to the Bentley Windmill. Chevron had plugged and

abandoned all of its producing and injection wells in the vicinit y of the Bentley

Windmill by 1989,

three years before it assigned the mineral lease to Pennzoil.

As part of its oil production activities on the V-6, Chevron operated numerous producti on

wells and several pipelines. The Anthony Family alleges that oil spills or leakage are evident at eight

locations near wells or p i pes that, at least at some point in time, were owned and operated by3 In addition to these claims, the Anthony Family sued Chevron for nuisance, breach of implied

covenants, unjust enrichment, conversion, and fraud. The Anthony Family does not pursue t hese

claims on appeal and therefore we deem them waived. F E D .R.A PP .P. 28(a)(9)(A); Yohey v. Collins

, 985 F.2d 222, 225 (5 th Cir. 1993) (holding that arguments must be included in the original appellate

brief in order to be preserved).

-5- Chevron. Three of these contaminated sites are located on the west side of the V-6 ranch. Chevron

ceased operations on that porti on of the ranch in 1992. Subsequently, several different oil companies

operated the well and pipe facilit ies in the area. Chevron, however, continues to produce oil on the

east side of the ranch where the remaining five contamination sites are located.

At trial, the Anthony Family claimed that Chevron’s negligent o perations caused both the

elevated chloride levels in their wel l, as well as the soil contamination on their ranch. They also

claimed that Chevron utilized more of the surface estate than reasonably necessary to carry out its

oil operations. 3 At the close of the Anthony Family’s case, Chevron moved for judgment as a matter

of law pursuant to F ED .R.C IV .P. 50(a). The district court concluded that the Anthony Family’s

evidence failed to establish that Chevron c aused the contamination on the ranch and was critically

short of the proof necessary to establish an amo unt of damages. Thus, the trial court granted

Chevron’s Rule 50 motion. On appeal, the Anthony Family argues that the district court erred in

granting this motion, contending that they presented sufficient evidence of causation and damages

for a jury to consider Chevron’s liability for both the water and soil pollution on their ranch.

II

Under the standard articulated in F ED .R.C IV .P. 50(a), a district court properly grants a motion

for judgment as a matter of law only when “a party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury to find for the party on that issue.”

F ED .R.C IV .P. 50(a); see Reeves v. Sanderson Plumbing Prods., Inc.

, 530 U.S. 133, 149 (2000). In-6-

turn, we review a district court’s Rule 50 determination de novo, “applying the same legal standard

as the trial court.” C

ooper Indus., Inc. v. Tarmac Roofing Sys., Inc.

, 276 F.3d 704, 707 (5 t h Cir.

2002) (quoting Flow ers v. So. Reg'l Physician Servs. Inc. , 247 F.3d 229, 235 (5 th Cir. 2001)).

In order to survive a Rule 50 motion and present a question for the jury, the party opposing

the motion must at least establish a conflict in substantial evidence on each essential element of their

cl aim. Boeing Co. v. Shipman , 411 F.2d 365, 374 (5 t h Cir. 1969) (en banc) (holding that a mere

scintilla of evidence is insufficient to present a question for the jury). In other words, the evidence

must be sufficient so that a jury will not ultimately rest its verdict on mere speculation and conjecture.

Gulf Coast Real Estate Auction Co. v. Chevron Indus., Inc.

, 665 F.2d 574, 577 (5 th Cir. 1982). In

determining whether there is a jury question, the court should consider all the evidence presented at

trial in the light most favorable to the non-moving party. M attern v. Eastman Kodak Co.

, 104 F.3d

702, 705 (5 th Cir. 1997).

In the present case, the Anthony Family alleges that Chevron’s negligent oil operations

contaminated the ranch’s underground aquifer with salt water. The Anthony Family also claims that

Chevron’s operations resulted in oil spills or leakage at eight separate sites on the V-6. Chevron, as

the holder of an oil and gas lease, has the legal right under Texas law to use as much of the surface

estate as is reasonably necessary to comply with the terms of the lease and to carry out its purposes.

Oryx Energy Co. v. Shelton

, 942 S.W.2d 637, 641 (Tex. App.--Tyler 1996, no writ). Thus, for the

Anthony Family to recover, they must establish that this water and soil contamination was the result

of either Chevron’s specific acts of negligence or Chevron’s use of more of the Anthony Family’s

surface estate than reasonably necessary to carry out its oil operations. H umble Oil &

Ref. Co. v.

Williams , 420 S.W.2d 133, 134 (Tex. 1967).4 The district court concluded that if the Anthony Family had presented sufficient evidence of

causation and damages, the evidence of Chevron’s negligence and “unreasonable use” would have

been sufficient to go to the jury. Because we conclude that the Anthony Family has failed to establish

causation and damages, we do not need to decide any issues regarding Chevron’s potential liabilit y

under either theory. E .g.

, Wheaton Van Lines, Inc. v. Mason

, 925 S.W.2d 722, 728 (Tex.App.--Fort

Worth 1996, writ denied) (exp laining that “[i]n any cause of action, whether grounded in tort,

contract, or a hybrid of the two, there can be no recovery of damages by an aggrieved party against

another unless the injuries or damages were caused by the other’s actions.”); Riojas

, 637 S.W.2d at

959 (holding that “according to requirements of applicable law, ‘causation’ is alw ays an essential

element to attribute fault for one’s injuries to another”).

-7- In order to establish a negligence claim under Texas law, the Anthony Family must prove four

elements: (1) that Chevron owed a specific duty to them, (2) that Chevron breached that duty, (3)

that Chevr o n’s breach caused their injury, and (4) that they suffered damages as a result of that

b reach. M

osley v. Excel Corp.

, 109 F.3d 1006, 1009 (5 th Cir. 1997). Similarly, in o rder t o

demonstrate that Chevron used more of the surface estate of the ranch than reasonably necessary to

carry out its o il-field oper at io ns, the Anthony Family must establish that Chevron caused the

contamination of their surface estate and that this unreasonable use actually damaged their ranch.

Hess v. McLean Feedyard, Inc.

, 59 S.W.3d 679, 684 (Tex.App.--Amarillo 2000, pet. denied)

(explaining that causation is “essential element of any claim . . . whether sounding in tort, trespass,

or otherwise”); Riojas v. Lone Star Gas Co.

, 637 S.W.2d 956, 959 (Tex.App.--Fort Worth 1982, writ

ref’d n.r.e.) (holding that there can be no r eco very by a party unless the injuries or damages were

caused by the actions of the other party). Thus, the analysis of the Anthony Family’s negligence and

“unreasonable use” claims is identical for purposes of this appeal.

The relevant issues in this appeal are causation and damages. 4 Specifically, we must consider

whether the Anthony Family has presented sufficient evidence such that a reasonable jury could find

that Chevron caused either the water or soil contamination on the V-6 ranch and, if so, whether the-8-

Anthony Family has established damages with sufficient certainty so as to permit the jury to calculate

an amount without res o rt ing t o speculation or conjecture. Because the Anthony Family’s water

contamination and soil pollution claims are distinct, we will address them separately.

III

The Anthony Family first co nt ends that Chevron’s operations contaminated the ranch’s

underground aquifer with salt water. The Anthony Family relied primarily on the testimony of two

expert witnesses, Scott Epley and Thomas Kelly, to prove that Chevron did in fact pollute their water

well. Despite their extensive testimony, neither witness presented sufficient evidence showing that

Chevron caused the pollutio n o f t he aquifer or the extent of the damages resulting from that

contamination to permit those issues to reach the jury.

A

Scott Epley’s testimony primarily attempted to explai n how the sal t water that Chevron

injected into the South Queen managed to reach the Allurosa aquifer one-half mile above the injection

zone. Epley proposed three different ways in which t he injected water could flow up to the fresh

water aquifer and contam inate the Bentley Windmill well. Although Epley’s theories present

descriptions of what possibly caused the contamination, he has not offered sufficient evi dence to

support any of these models. Without such an underlying factual basis, a reasonable jury could not

conclude that it was more likely than not that Chevron actually caused the pollution in the Allurosa.

Epley’s first theory focuses on the fact that, during the course of their operations, Chevron

injected more salt water into the South Queen than the oil and water mixture it eventually removed.

Chevron had in fact introduced approximately twenty-one millio n extra barrels of salt water into the

South Queen formation. Epley then presented evidence that the South Queen was, in effect, a closed-9-

system. Thus, according to Epley, Chevron’s injections were increasing the pressure of the liquid

stored in the underground oil container. Eventually, the South Queen could no longer hold the excess

liquid. Epley claimed that the wells extending into the field acted like straws, drawing up the surplus

water from the South Queen. As the pressure increased, the injected salt water began to vertically

migrate up along the well casi ngs o f the various injection and production wells in the area. Epley

opined that the pressure at which Chevron injected the water was sufficiently great to force it to flow

all the way up to the Allurosa aquifer more than 2,000 feet above.

Epley’s theory hinges on the fact t hat the excess salt water injected into the South Queen

raised the pressure to such a level that the water was fo rced t o the surface. The only evidence

presented, however, to prove that this actually occurred is that Chevron injected more fluid than they

removed. Epley never established the size of the underground oil reservoir or how much it could hold

and, in fact , t est ified that it had no bearing on his pressure calculations. Instead, he claimed that

because the South Queen had reached an equilibrium point in 1 971, any additional water must

necessarily increase the pressure on the container.

Epley’s contention that the actual volume of the So uth Queen is irrelevant to his pressure

calculations confuses equilibrium with saturation. For Epley’s account to be accurate, the So ut h

Queen would have to be at its maximum capacity when Chevron began to remove oil from the field

in the late 1960s. Epley never testified to that fact. Rather, he admitted that the South Queen could

contain voids and gases that could be compressed to make additional space for the excess salt water.

Thus, according to Epley’s own testimony, it is possible that the South Queen container could hold

the excess twenty-one millio n barrels of injected water in addition to the init ial quantity of oil that it

contained. Moreover, because Epley’s meticulous calculations establishing that sufficient pressure-10-

existed to force the injected water to the surface were based solely on injection pressures recorded

at the surface and not upon actual underground pressure readings, these calculations depended on

the assumption that the South Queen was saturated. Thus, even if the South Queen could not hold

all of the excess 21 millio n barrels of water injected by Chevron, Epley’s own testimony undermines

his conclusion that the underground pressure was sufficiently great to for c e the injected water

upwards to the Allurosa. Even when considering all the evidence presented at trial in the light most

favorable t o t he Anthony Family, Epley’s testimony regarding this theory merely established what

could have occurred. The jury, however, would be asked to speculate as to both the size of the South

Queen container and the actual pressure of the underground water. Thus, there is insufficient

evidence to reach a jury.

The second model posited by Epley involves the horizontal flow of injected salt water from

one of Chevron’s injection wells to one of its nearby producing wells, eventually r esult ing in the

contamination of the fresh water aquifer. Epley claimed that both of these point sources contributed

to the pollution in the Allurosa. Epley testified that H.S.A. #648, an injection well situated directly

to the north and west of the Bentley Windmill, developed integrity problems in its well casings. The

holes in the well casings allowed salt water to begin to migrate vertically back towards the surface

as well as flow horizontally toward a nearby producing well. Although Chevron had placed concrete

around the casing of the producing well below 2,300 feet, Epl ey claimed that the salt water from

H.S.A. #648 was flowing into the producing well above this concrete shield. Thus, Epley opined that

the injected water could easily migrate to the surface along the producing well’s casings, following

t he pat h o f least resistance. Moreover, Epley argued that H.S.A. #648, itself, was improperly

plugged, again permitting the pressurized injection water to migrate upwards into the Allurosa.-11-

Once more, while Epley establishes a potential source of the pollution in the Allurosa, his

testimony falls short of the level required to make out the Anthony Family’s prima facie case as to

causation. To support his theory, Epley relies solely on temperature logs taken from Chevron’s files.

These documents revealed that there was water leaking from H.S.A. #648 through numerous holes

in its well casings from 2,016 feet to 1,924 feet below the surface. Subsequent tests reveal ed

additional water at 1,590 feet below the surface. The documents never established, however, that

this leaking water ever migrated upwards into the fresh water zone o r flo wed horizontally to

Chevron’s producing well. At best, the documents put the injected salt water nearly 1,300 feet below

the Allurosa.

Although the Anthony Family correctly asserts that it is not necessary for them to prove

beyond a reasonable doubt that this injected water actually contaminated their well, something more

than the beginnings of a leak and the end res ult o f a po lluted well nearby is necessary to establish

causation. In order to prove causation, the well could have presumably been tested or a separate test

well could have been dug in the vicinit y of these point sources to search for higher pollution content

or underground water flows. In short, the Anthony Family should have provided the jury with some

fact ual link between the leaks one-third of a mile from the Allurosa and the ultimate fact of

contamination. Without such evidence, the jury would be forced to speculate, as Epley ultimately did

in his testimony, that such a pathway in fact existed.

Epley’s final theory of contamination suffers from the same problems as his first two pollution

models. This last theory focuses on two wells, H.S.A. #663 and #643, which are situated to the south

and east of the Bentley Windmill. Chevron intentionally injected highly pressurized salt water into

these wells in order to fracture the rock surrounding the South Queen. Sand was then injected into-12-

these fissures to hold them in place. These water and sand injections were an attempt to create more

permeable pathways for the oil trapped in the surrounding rock strata to flow towards Chevron’s

producing wells. Epley presented evidence, again from Chevron’s own document s, t hat these

injections resulted in fractures extending out of the South Queen and upwards towards the Allurosa

aquifer.

Epley’s testimony o nce again o utlines another possible way the Allurosa and the Bentley

Windmill were contaminated. His testimony again fails to provide sufficient evidence for a reasonable

jury to conclude that this possibility was more likely than not what actually occurred. Epley never

bridges t he glaring gap between the initial “out-of-zone” fracture and the resulting contamination.

The init ial injection fracture extended only 166 feet upwards from the South Queen field. Epley then

merely speculates that these fractures continued as Chevron injected water over several years. His

theory is based on the fact that Chevron continued to inject water at higher pressures than necessary

to fracture the surrounding rock. The Anthony Family’s own exhibits, however, state that Chevron

ceased to inject water into H.S.A. #663 and plugged and abandoned that well in 1975, before t he

Bentley Windmill was contaminated. Chevron did continue to inject wat er t hrough H.S.A. #643.

Epley, however, provided no evidence showing that the fracture at H.S.A. #643 extended further than

its init ially observed length of 166 feet. Moreover, these later injections were no longer directed at

intentionally creating new pathways to the oil in the surroun ding rocks, but rather were part of

Chevron’s regular injection operations. Again, there is an initial fracture, but no evidence linking that

fracture to the freshwater zone some 1,500 feet above.

Taken as a whole, Epley’s testimony raises suspicions about Chevron’s operations in the area.

This alone, however, is not enough to present a question of fact to the jury on the issue of causation.-13-

Each one of the models presented by Epley provides a plausible theory of how the Bentley Windmill

was contaminated. The evidence upon which each of Epley’s t heo ries is based, however, is

fundamentally lacking. He has not provided any evidence establishing the nexus between Chevron’s

water injection operations and the pollution in the Allurosa. Moreover, despite the fact that there are

numerous oil companies operating within the general area of the Bentley Windmill, Epley’s testimony,

coupled with Thomas Kelly’s testimony that aquifers move like horizontal streams under the ground,

failed to address the possibility that other sources caused the salt water contamination. Without any

examination of the surrounding area or any field tests, it is i mpossible to know whether Epley

accurately identified the source of the pollution in the Allurosa. Given the evidence presented, we

cannot co nclude that a reasonable jury could find that it is more likely than not that Chevron’s oil

operations caused the contamination to the Bentley Windmill.

B

The Anthony F amily also presented the testimony of Thomas Kelly. Although Epley’s

testimony focused on how the injected water traveled from the South Queen upwards to the Allurosa,

Kelly’s testimony addressed what happened to the salt water once it act ually reached the aquifer.

Kelly first testified that when the salt water pollution reached the aquifer, it would expand in a tear

drop shape. He characterized the path of the salt water as a plume, spreading through the aquifer.

Kelly then testified as to the direction and speed at which the water in the Allurosa, as well as the salt

water plume, was flowing. Based on existing well information, as well as data gleaned from pumping

water at the Bentley Windmill for a twenty-four hour period, Kelly concluded that water in the

immediate vicinit

y of the Bentley Windmill was flowing from no rthwest to southeast at a rate of

thirteen feet per day. Thus, any pollution coming from the injection and production wells to the north5 Kelly’s testimony may even undermine Epley’s account. If the underground water is moving

through the aquifer at a rate of thirteen feet per day, then it could travel up to 4,745 feet per year. According to tests the Anthony Family co nducted on the Bentley Windmill, the salt water could conceivably have had as much as twen t y years to travel from its source. Therefore, the pollution could be from sources almost twenty miles away.

-14- and west of the Bentley Windmill would contaminate the well. Two of the potential pollution sources

identified by Epley in his testimony, H.S.A. #643 and #663, were situated to the south and east of the

well. Kelly claimed, however, that the pollution from these point sources could also contaminate the

Bentley Windmill. He testified that the water well created a “zone of depression” by removing water

from the aquifer. Thus, the polluted water from these wells would also be drawn towards the Bentley

Windmill sit

e.

Kelly’s testimony is sufficient to support a finding that salt water supposedly coming from the

nearby Chevron injection and producti on wells could have reache d t he Bentley Windmill. In its

decision, the district court focused on the fact that Kelly’s tests revealed that the groundwater was

flowing at different rates and in a different direction than those observed in a published geological

survey of the area. Kelly, however, testified that his measurements differed from the regional study

because it focused on a more limit ed area around the Bentley Windmill. Kelly’s explanation for this

discrepancy appears coherent. It is the role of the jury to weigh his evidence against the geological

survey data, and we accept his findings as correct for the purposes of our review.

Nevertheles s, Kelly’s findings do not establish causation. Other than the pump tests he

conducted, Kelly did not perform any additional field tests to determine the source of the pollution.

Instead, he relied on Epley’s assumpti o n t hat Chevron’s wells in the area were the cause of the

contamination. Having made no independent verification of this fact, his testimony cannot support

a finding that Chevron caused the contamination in the Bentley Windmill. 5-15-

Kelly’s testimony as to the ext ent o f the damage to the ranch’s underground aquifer also

suffers from several fatal defects. First, Kelly never determined the size of the contamination plume

in the aquifer. He estimated that it was between one-quarter and one-half mile wide, but provided

no hard data to support this testimony. Moreover, he admitted that water flows underground in

different directions and at divergent speeds. Based on the data presented, the plume could have a

length anywhere bet ween t wo hundred feet and twenty miles. In order to begin to calculate the

damages to the entire aquifer under the V-6, the jury must have more accurate information about the

actual scope of the damaged area.

In addition, Kelly’s own testimony revealed that the level of co nt amination in the Bentley

Windmill was fluctuating. In 1988, the Bentley Windmill had chloride levels of 980 p.p.m. By July,

1996, that level had fallen to 410 p.p.m., only to rise back to 730 p.p.m. in 1999. This information

is critical because the Anthony Family conten ds that the damages to the Allurosa are permanent.

These fluctuating levels, combined with the fact that the underground aquifer is not stagnant, but

constantly flowing, suggest the Anthony Family’s contention may not be accurate. Moreover, these

variat ions raise troubling questions because Chevron had plugged and abandoned all of its nearby

wells by 1989. These variations may suggest that the contamination was dissipating or was flowing

from another more remote source. Without any additional evidence, we are unable to answer these

fundamental questions. Likewise, the jury would also have to speculate as to the extent o f the

damage to the ranch’s water supply.

In sum, both Epley and Kelly provided an account of what could have occurred given the

proximity of Chevron’s wells and the contamination in the Bentley Windmill. They have presented

no evidence, however, that the injection water ever found a pathway to the Allurosa, no evidence as-16-

to the extent of the resulting contamination, and no evidence that the effects of the contamination are

permanent. A reasonable jury could not base a finding of liability on this evidence. Chevron is

entitled to judgment as a matter of law on the Anthony Family’s water pollution claim.

IV

The Anthony Family also contends that Chevron negligently conta minated the soil at eight

separate sites on the ranch with oil leaking from surface and underground pipes as well as nearby oil

facilit ies. Again, the Anthony Family relies primarily on the testimony of two expert witnesses, Eddie

Seay and Greg Bybee, to show Chevron’s responsibility for the pollution and th e extent of the

applicable damages. Like the Anthony Family’s evidence in support of their water pollution claims,

a reasonable jury could not conclude that Chevron was responsible for the soil contamination based

sol ely o n t he t estimony of these two experts. A jury also could not determine the extent of any

damages to the ranch based on the evidence presented without resorting to speculation.

A

Seay began his testimony by describing the methodology he used to locate the oil pollution

sites on the ranch. First, he visually inspected the ranch, looking for areas devoid of vegetation and

with darkened soils. Once he found these areas, he then conducted rudimentary smell tests and

o ccasionally dug up some of the soil to determine if oil had in fact mixed into the gro und at t hat

location. Using these methods, Seay identified three contaminated sites on the west side of the ranch

and five additional sites on the east side of the V-6. Seay then concluded that Chevron caused the

contamination in the soil because their oil facilities were situated near all of these areas.

Seay’s testimony that Chevron caused the pollution on the west side of the ranch immediately

ran into problems on cross-examination. Seay admitted that he could not determine the exact date-17-

on which the contamination occurred. He initially testified that it was likely within the last three or

four years. Chevron, however, has not operated on the west side of the ranch since 1992. In the

meantime, three other oil companies purchased Chevron’s facilit ies and continuously operated them

in the vicinit

y of the spill sites. When confronted with this information, Seay testified, conveniently,

that the spills occurred in 1992. Again, he could not provide a reason for this date other than the fact

that, after that year, Chevron had ceased its operations in the area.

Seay failed to present any reliable evidence that Chevron caused the soil contamination on the

west side of the ranch. Seay offers no specific time frame for when the pollution occurred. What

little he does offer is at best inherently inconsistent. Moreover, he admitted that it was possible that

one of the other companies could have caused the spills. A reasonable jury could not find Chevron

liable for the contamination on the west side of the ranch based solely on this evidence.

Seay’s testimony regarding the east side of the ranch is less problematic as Chevron continues

to operate in this area . No net heless, it still fails to link Chevron’s operations to the five eastern

pollution sites. Seay’s primary reason for connecting Chevron to these contamination locations was

t hat each of the five contamination sites was in close proximity to Chevron’s oil lines in the area.

Seay again admitted, however, that other oil companies had operations on the east side of the ranch.

Moreover, at least one had experienced problems with gas lines running near to one of the pollution

sites. Furthermore, Seay could not testify as to the extent of the contamination at each site or when

the pollution occurred. Based on this evidence, any one of the oil company’s operations could have

caused the soil contamination at each o f t hese sit es. Although Seay begins to connect the soil

pollution to Chevron by locating all of the sites near Chevron’s operations, this alone is insufficient.

In order to present this issue to the jury, a more thorough study of the locations o f each oil-18-

company’s operations and their proximity to the leaks, as well as at least some evidence that those

leaks originated from Chevron’s lines, is necessary.

B

In order to augment Seay’s testimony as to the cause of the soil pollution, the Anthony Family

retained Greg Bybee, an organic chemist, to testify as to the extent of the damage to the ranch and

to establish the approximate cleanup costs for each pollution site. Bybee testified that he began his

investigation by conducting a physical inspection of each contamination site. He then took soil

samples from one or two points at each location at depths varying from twenty inches to seven feet

six inches. In order to minimize costs, he took averages from these samples and then used the data

to extrapolate the size and scope of the oil pollution in each area. Even though Bybee found varying

levels of contamination at each site and took only one soil sam ple at a depth below seven feet, he

concluded that in all probability the contamination penetrated at least seven feet into the ground at

all eight sites.

Bybee’s methodology appears fundamentally flawed. In essence, he took one or two isolated

sample readings from each site and used it to extrapolate the overall extent of the soil pollution. His

own testimony undermines the reliabilit y of such a method. Bybee testified that the depth of the oil

contamination depended on the length of time the oil had to seep into the ground as well as variations

in the soil. He further testified that he could not determine the dates of any of the spills. From this

testimony, it defies logic that the depth of the pollution at one point in one contamination site could

provide any real evidence as to the extent of the pollution at completely unrelated locations on the

other side of the V-6. Moreover, Bybee relied solely on visual observations to ascertain the perimeter

of each pollution area. He then concluded that the oil pollution extended down seven feet across the-19-

entire perimeter of each pollution site. The limited data he collected, as well as his own testimony,

indicates that the oil contamination spread at variable rates. Thus, Bybee’s assumpt ion that the

contamination would be at a uniform depth across the entire scope of each pollution area appears

deeply troubling.

Sea y’s and Bybee’s testimony failed to establish a legally sufficient evidentiary basis for a

reasonable jury to find for the Antho ny Family on essential elements of their soil pollution claims.

Rather, any finding of liabilit y would require the jurors to speculate as to both the cause of the

pollution and the extent of the damage to the surface estate. Accordingly, Chevron is also entitled

to judgment as a matter of law on the Anthony Family’s soil contamination claims.

V

The Ant ho ny Family has failed to present sufficient evidence establishing causation and

damages such that a reasonable jury could find Chevron liable for both the water and soil pollution

on the ranch. Therefore, we AFFIRM the district court’s dismissal of the Anthony Family’s claims.

In addition, we GRANT Chevron’s motion to strike the impermissible narrative reconstructions of

the trial transcript contained in the Anthony Family’s supplemental record excerpts.