Petro-Hunt LLC v. USA ( 2004 )

  •                                                 United States Court of Appeals
                                                             Fifth Circuit
                                                          F I L E D
                     REVISED May 28, 2004
                                                          March 31, 2004
                     For the Fifth Circuit            Charles R. Fulbruge III
                       No. 02-30760 c/w
                  PETRO-HUNT, L.L.C.,,
                                          Plaintiffs – Appellees,
               UNITED STATES OF AMERICA, et. al,
                   UNITED STATES OF AMERICA,
                                            Defendant – Appellant.
    - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                  PETRO-HUNT, L.L.C., et. al,
               UNITED STATES OF AMERICA, et. al,
         Appeals from the United States District Court
             for the Western District of Louisiana
    Before EMILIO M. GARZA, and DENNIS, Circuit Judges, and VANCE*,
    District Judge.
    DENNIS, Circuit Judge:
              Petro-Hunt, L.L.C., Hunt Petroleum Corporation, and Kingfisher
    Resources, Inc., (collectively “Plaintiffs”) filed a declaratory
    judgment action       seeking   to   quiet   title   to   mineral   rights    in
    approximately 180,000 acres of federally owned land within the
    Kisatchie National Forest.           Plaintiffs claim those rights as
    successors in interest to 96 mineral servitudes that were created
    before the United States purchased the land in the 1930s.                    The
    district court granted summary judgment in favor of Plaintiffs on
    the grounds of res judicata and denied Plaintiff’s request for
    attorneys’ fees.        The United States timely appeals the district
    court’s grant of summary judgment and Plaintiffs cross-appeal on
    the issue of attorneys’ fees.        Because we reverse district court’s
    summary judgment ruling and remand for further proceedings not
    inconsistent with this opinion, we need not reach the merits of
    Plaintiffs’ cross appeal regarding attorneys’ fees since plaintiffs
    are no longer prevailing parties.1
    I.       BACKGROUND
              In order to give the proper context to our discussion of the
         District Judge of the Eastern District of Louisiana, sitting
    by designation.
         Prevailing party status is a prerequisite                to    recovering
    attorneys’ fees under 28 U.S.C. § 2412(b).
    merits of this factually dense case, we begin with a brief
    discussion on Louisiana mineral law, the servitudes in question,
    and the applicability of certain Louisiana laws to property owned
    by the United States.
          A. Mineral Servitudes Under Louisiana Law
          Louisiana law governing mineral servitudes does not
    recognize a separate mineral estate in oil and gas.2    Mineral
    rights can be owned separate from the surface land only in the
    form of a mineral servitude.3   Hence, any attempt to sell or
    reserve the ownership of oil and gas results in the creation of a
    mineral servitude, and the holder of that servitude has the right
    to enter the property and extract the minerals.4    Louisiana law
    has long provided that a mineral servitude is extinguished by
    prescription resulting from ten years’ nonuse.5    The period of
    prescription on mineral servitudes begins to run on the date a
         Frost-Johnson Lumber Co. v. Salling’s Heirs, 
    91 So. 207
    243–245 (La. 1920).
         Central Pines Land Co. v. United States, 
    274 F.3d 881
    , 884
    (5th Cir. 2001).
         Central Pines, 274 F.3d at 884. See La. R.S. § 31:21 (“A
    mineral servitude is the right of enjoyment of land belonging to
    another for the purpose of exploring for and producing minerals and
    reducing them to possession and ownership.”); see also Luther L.
    McDougal, III, Louisiana Mineral Servitudes, 61 TUL. L. REV. 1097,
    1098–99 (1987).
          Central Pines, 274 F.3d at 884.   See La. R.S. § 31:27.
    servitude is created,6 and is interrupted only by “good faith
    operations for the discovery and production of minerals.”7
           Because the rule of prescription reflects a public policy
    favoring “the timely return of outstanding minerals to the owner
    of the land,”8 the rule may not be abrogated by contract.9    The
    Louisiana Supreme Court has declared that “it is against the
    public policy of this state to allow . . . servitudes to remain
    alive for a longer period than 10 years without use,” and that
    any contracts to the contrary are void as against public
           B. Creation of Mineral Servitudes
           In 1932, five Louisiana lumber companies – Good Pine Lumber,
    Trout Creek Lumber, Tall Timber Lumber, Bodcaw Lumber, and Grant
    Timber – entered an agreement to pool the mineral rights on their
    respective land holdings in central Louisiana.11   As part of the
    pooling agreement, the companies created a joint venture called
         See La. R.S. § 31:28; see also Ober v. Williams, 
    35 So. 2d 219
    , 224 (La. 1948).
           La. R.S. § 31:29.
           See Mire v. Hawkins, 
    186 So. 2d 591
    , 597 (La. 1966).
         See Leiter Minerals, Inc. v. California Co., 
    132 So. 2d 845
    853 (La. 1961).   On the other hand, agreements to shorten the
    period of prescription do not conflict with public policy and are
    valid. Id.
         United States v. Nebo Oil, 
    190 F.2d 1003
    , 1005 (5th Cir.
    the “Good Pine Oil Company” and separately conveyed to that
    company the rights to explore and develop their property for the
    production of oil, gas, and sulphur.12      Of these conveyances, six
    that Bodcaw Lumber and Grant Timber made to Good Pine Oil between
    November 12, 1932, and May 3, 1934, are relevant to this case.
    All of these six conveyances involved multiple parcels of land,
    many of which were non-contiguous, and thus resulted in multiple
    mineral servitudes.13
           Each of the six deeds conveying mineral rights to Good Pine
    Oil contained a clause providing that the ten year period of
    liberative prescription applied.       Five of the deeds expressly
    stipulated that “none of said [mineral] rights in any of said
    lands shall be prescribed unless there shall elapse a full period
    of ten (10) years in which there shall be no exercise of any of
    the foregoing rights or user of any of the lands aforesaid under
    and by virtue hereof.”    The sixth contained strikingly similar
    language.    Because the prescriptive period described in these
    instruments is equivalent to the liberative prescription period
    of ten years, the contract provision applying a prescriptive
         See Cox v. Sanders, 
    421 So. 869
    , 873 (La. 1982)(stating that
    “a landowner cannot create a single servitude or mineral royalty
    right on two or more non-contiguous tracts; and if this is
    attempted by a single instrument, there are nevertheless as many
    servitudes or royalty interests as there are non-contiguous tracts
    of land” and quoting Whitehall Oil Co. v. Heard, 
    197 So. 2d 672
    675 (La. Ct. App. 1967)).
    period of ten years is enforceable.
           C. Acquisition by the United States
           In the late 1930s, the United States acquired approximately
    180,000 acres of land in three Louisiana parishes (Grant Parish,
    Natchitoches Parish, and Winn Parish) from Bodcaw Lumber and
    Grant Timber for inclusion in the Kisatchie National Forest.     The
    United States acquired the lands under the Weeks Forestry Act14
    through nine acts of sale and two judgments in condemnation.15
    Each of these eleven conveyances came after the six transactions
    in which Bodcaw Lumber and Grant Timber conveyed mineral rights
    on the lands to Good Pine Oil.    Consequently, at the time of
    acquisition, the approximately 180,000 acres of land that the
    United States acquired was burdened by 96 separate mineral
    servitudes in favor of Good Pine Oil.
           The eleven instruments of transfer (nine deeds and two
    judgments) conveying the lands to the United States addressed the
    pre-existing mineral servitudes in different ways.      All but one
    of the instruments contained language stating that the
    conveyances were “subject to” one or more of the mineral deeds
    granting rights to Good Pine Oil.      Most of these transfer
    instruments contained an additional clause stating that the
    “mention” of the earlier mineral reservation was “made solely for
           16 U.S.C. § 515.
         The record shows that the United States acquired the lands
    between November 28, 1934, and January 28, 1937.
    the purpose of limiting vendor’s warranty to the United States in
    present sale, and the recital of the said Mineral Sale shall in
    nowise extend or enlarge the same in point of time.”
           Five of the instruments (four deeds and one judgment) also
    contained additional mineral reservations in the name of Bodcaw
    Lumber or Grant Timber, which were to become effective upon the
    prescription of the relevant servitudes held by Good Pine Oil.
    For example, the February 11, 1936 deed conveying 24,943.93 acres
    owned by Bodcaw Lumber “specially reserved” unto Bodcaw Lumber
    “all of the oil, gas and other minerals . . . subject to the
    sales to Good Pine Oil Company, Incorporated, for a period of ten
    years after the expiration of the rights of the said Good Pine
    Oil Company, Incorporated, under the laws of the State of
    Louisiana.”    This deed further provided that this “specially
    reserved” right would be extended beyond ten years if the right
    were exercised in a particular fashion, and that if the original
    ten year period or any extended period terminated for nonuse, “a
    complete fee in the land [would] become vested in the United
    States.”    The other four instruments also contained clauses
    granting reversionary mineral interests to Bodcaw Lumber or Grant
    Timber upon the prescription of the Good Pine servitudes.16      Each
         Because the Good Pine servitudes were still in effect, the
    “reversionary” clauses were invalid. See Liberty Farms v. Miller,
    45 So. 2d 610
    , 614 (La. 1950) (“One may not reserve reversionary
    rights to minerals when he is not the owner of the minerals at the
    time the reservation is made.      It is settled that, in such
    instances, the reservation is ineffective and the outstanding
    of the instruments stated that at the termination of the
    reservations, the United States would hold the land in “complete
           D.   Act 315
           In 1940, well after the mineral and land transactions
    described above were complete, the Louisiana Legislature passed
    Act 315 to eliminate the rule of prescription for mineral rights
    on lands held by the United States:
           [W]hen land is acquired by conventional deed or
           contract, condemnation or expropriation proceedings by
           the United States of America . . . , and by the act of
           acquisition, verdict or judgment, oil, gas, and/or
           other minerals or royalties are reserved, or the land
           so acquired is by the act of acquisition conveyed
           subject to a prior sale or reservation of oil, gas
           and/or other minerals or royalties, still in force and
           effect, said rights so reserved or previously sold
           shall be imprescriptible.17
           The purpose of the Act was to facilitate the federal
    government’s purchase of large tracts of land for National
    Forests, National Parks, military installations, and like
    purposes.18    The United States was having difficulty acquiring
    such tracts in Louisiana because landowners who wished to retain
    mineral rights were reluctant to sell their land for fear of
    mineral interests revert to the person owning the land at the time
    prescription accrues.”).
           See 1940 La. Acts 315; see also La. R.S. § 31:149.
         See United States v. Little Lake Misere Land Co., 
    412 U.S. 580
    , 599 & n.16 (1973) (citing Leiter Minerals, 133 So. 2d at 851).
    losing mineral reservations through prescription.19    By making
    mineral servitudes on federal land “imprescriptible” – and thus
    “prevent[ing] the federal government from acquiring mineral
    rights by prescription” – Act 315 also served Louisiana’s
    interest in taxing and regulating minerals on federal land,
    powers that would be in doubt should ownership of the minerals be
    vested in the United States.20
           E.   Nebo Oil
           In 1948, the United States filed a declaratory judgment
    action against the Nebo Oil Company to quiet title to the
    minerals on a particular servitude claimed by Nebo Oil as
    successor in interest to Good Pine Oil.21    The complaint referred
    to a specific parcel, approximately 800 acres in size, lying in
    portions of section 19 (Township 13 North, Range 6 West) and
    section 24 (Township 13, Range 7 West) in Natchitoches Parish.
    This parcel was one of several parcels acquired by the United
    States through a February 11, 1936 deed from Bodcaw Lumber, which
    totaled 24,943.93 acres.    Nebo Oil claimed a mineral servitude on
    the 800-acre parcel as a result of a November 12, 1932 conveyance
    of mineral rights from Bodcaw to Good Pine Oil.
           Leiter Minerals, 132 So. 2d at 851.
         Id. at 851–52, 854; see also Little Lake Misere, 412 U.S. at
    599–600 (citing Leiter Minerals).
         Sometime after December 1941, Nebo Oil Company acquired all of
    the mineral rights formerly held by Good Pine Oil. See Nebo Oil,
    190 F.2d at 1006.
           In its complaint, the United States averred: (1) that no
    drilling operations had been conducted on the 800-acre parcel
    during the ten year period beginning on November 12, 1932; (2)
    that the mineral servitude on the parcel had therefore prescribed
    for nonuse; and (3) that Nebo Oil intended to drill a well on the
    land and had advised the government that the company would resist
    interference.    To prevent injury to its property, the United
    States sought declaratory relief and an order permanently
    enjoining Nebo Oil from entering the 800-acre parcel for mineral
           In denying the United States relief, the District Court for
    the Western District of Louisiana held that the 800-acre
    servitude had been rendered “imprescriptible” by Act 315.22
    This court affirmed that judgment.23    First, this court found
           See United States v. Nebo Oil, 
    90 F. Supp. 73
     (W.D. La. 1950).
         See Nebo Oil, 190 F.2d at 1003. The district court’s final
    decree in Nebo Oil included a broad finding that the prescriptive
    periods of the Louisiana Civil Code “do not apply to lands
    purchased by the United States under the Weeks Act, as amended, for
    national forest purposes . . . .” The court further found that
    “under the terms of the deed from Bodcaw Lumber . . . to Good Pine
    Oil . . . dated November 12, 1932, and the deed from Bodcaw Lumber
    . . . to the United States of America dated February 11, 1936, the
    oil, gas and sulphur in, on and under the lands conveyed to the
    United States under such deed . . . , which deed covered the lands
    herein involved, were vested in perpetuity in Good Pine Oil . . .
    , its successors and assigns, and, through it, in the defendant
    herein, as its successor in interest.”     Despite the breadth of
    these findings, the district court returned to the property that
    was actually before it when it concluded its decree: “IT IS NOW
    ORDERED, ADJUDGED AND DECREED that the oil, gas, and sulphur in, on
    and under the lands described in the complaint are vested in
    perpetuity in Nebo Oil Company, Inc., its successors and assigns.”
    that it was bound by Louisiana precedent holding that rules of
    prescription, including Act 315, “are retrospective in their
    operation.”24    Second, we held that Act 315’s elimination of the
    rule of prescription as to servitudes on federal land did not
    dispose of federal property in violation of Article IV, Section
    3, clause 2 of the United States Constitution or violate the
    Contract Clause of the Constitution or the Due Process Clause of
    the Fourteenth Amendment.    The apparent reasoning was that the
    United States’s interest in reclaiming the mineral rights through
    prescription was not a vested right at the time Act 315 was
    passed because the Good Pine servitudes had been created less
    than ten years earlier.25
           F.   After Nebo Oil
           Subsequent to our decision in Nebo Oil, there were two
    decisions concerning the retroactive applicability of Act 315 to
    mineral servitudes located on property owned by the United
    States.     First, in United States v. Little Lake Misere Land
    Company, the government sued to quiet title in two adjacent
    parcels of land in Cameron Parish, Louisiana, which it had
         See Nebo Oil, 190 F.2d at 1008 (citing Whitney Nat’l Bank of
    New Orleans v. Little Creek Oil Co., 
    33 So. 2d 693
     (La. 1947)).
         See id. at 1008–10; see also id. at 1008 (“It cannot be
    considered a vested right if it is nothing more than a mere
    expectation, or hope, based upon an anticipated continuance of the
    applicable general laws.”).
    acquired under the Migratory Bird Conservation Act.26    The
    instruments of acquisition – a 1937 deed and a 1939 judgment in
    condemnation – reserved to Little Lake Misere oil, gas, sulphur,
    and other minerals for a period of ten years from the date of
    vesting of title in the United States.27    But those instruments
    further provided that if the initial ten year period ended and no
    production was occurring, or if operations subsequently ceased
    for more than sixty days, “the right to mine, produce and market
    said oil, gas, sulphur or other mineral shall terminate . . . and
    the complete fee title to said lands shall thereby become vested
    in the United States.”28    Nevertheless, following the enactment
    of Act 315, the servitude holder, Little Lake Misere, asserted
    that the reservations had become “imprescriptible.”
           In a brief per curiam opinion, this court held in favor of
    the servitude holder, finding that the contractual terms of
    prescription did not apply to the servitudes in question in the
    light of Act 315.29   This holding was based on our prior decision
    in Nebo Oil regarding the constitutionality of the retroactive
    application of Act 315.30
           412 U.S. at 582.
           Id. at 583.
         See United States v. Little Lake Misere Land Co., 
    453 F.2d 360
    (5th Cir. 1971).
           Id. at 362.
           But the United States Supreme Court granted certiorari and
    reversed.31   In so doing, the Court did not expressly reject our
    interpretation of Louisiana law or the analysis of Act 315’s
    constitutionality in Nebo Oil.     Instead, invoking the choice-of-
    law doctrine of Clearfield Trust Co. v. United States,32 the
    Supreme Court held that this court erred in presuming, as a
    threshold matter, that Louisiana state law applied.33
    Furthermore, because Little Lake Misere involved a determination
    of rights under a land acquisition agreement that was “explicitly
    authorized, though not precisely governed, by the Migratory Bird
    Conservation Act” and “to which the United States itself is a
    party,” the Supreme Court held that it was for the federal courts
    to “fashion” the governing rule of law in that case.34
    Determining that Act 315 would deprive the United States of
    “bargained-for-contractual interests” by abrogating the terms of
    the acquisition instruments relating to prescription, the Supreme
    Court held that the Act was “plainly hostile to the interests of
    the United States” and could not be “borrowed” as the rule of
    decision.35   Finally, the Supreme Court held that the appropriate
         See United States v. Little Lake Misere Land Co., 
    318 U.S. 363
    318 U.S. 580
           See Little Lake Misere, 412 U.S. at 591.
           See id. at 594.
           Id. at 596.
    rule of decision was to be supplied by either federal common law
    or “residual” state law (i.e., state law without Act 315), both
    of which would give effect to the contract terms.36
           The second decision pertinent here was Central Pines Land
    Company v. United States.37 In that case, we were called upon to
    revisit our Nebo Oil ruling in the light of the Supreme Court’s
    opinion in Little Lake Misere.38        The facts of Central Pines
    were quite similar to those of Nebo Oil.       First, like Nebo Oil,
    Central Pines involved the acquisition of land by the United
    States in the 1930s for the Kisatchie National Forest.39       Second,
    also like Nebo Oil, the lands so acquired were subject to a
    preexisting mineral servitude.40    Finally, the successor in
    interest to the servitude owner also argued that Act 315 had
    rendered the servitude in Central Pines “imprescriptible.”41
           Despite the factual similarities between Central Pines and
    Nebo Oil, and perhaps taking a cue from the Supreme Court’s
    Little Lake Misere decision, this court ruled that Act 315 did
           Id. at 604.
    274 F.3d 881
           274 F.3d at 881.
           See id. at 885.
           Id. at 886.
    not apply to Central Pines.42   While we declined to expressly
    overrule Nebo Oil’s constitutional analysis, we also rejected the
    presumption in Nebo Oil that Louisiana law governed the terms of
    the transactions at issue.43    In particular, following the
    analysis of Little Lake Misere, this court held that the right
    asserted by the United States – i.e., the right to reclaim
    mineral interests through prescription – was a right acquired
    through a duly authorized federal land acquisition agreement and,
    therefore, that federal choice-of-law principles applied.44
           Applying these principles, the Central Pines court
    determined that Act 315 could not be borrowed as the rule of
    decision because, as in Little Lake Misere, it was hostile to the
    government’s contractual interests in reclaiming minerals through
    the “legal rules in place at the time of contract.”45   While
    acknowledging that this interest was “arguably not as powerful as
    the federal right to enforce explicit contractual terms” (the
    right at stake in Little Lake Misere), we determined that this
    interest outweighed any state interest in applying Act 315.46
    Noting that the “main justification” for Act 315 was to
    274 F.3d 886
           Id. at 889-90.
           Id. at 888-90.
           Id. at 891.
           Id. at 891–92.
    facilitate federal land acquisitions, this court observed that
    “[such] justification has no bearing on retroactive application
    of Act 315, because an acquisition cannot be facilitated by a law
    not yet in existence.”47     Finally, in recognition of the federal
    interest in the general rule of prescription, we also determined
    that the proper rule of decision was “residual” state law, i.e.,
    Louisiana law without Act 315.48
           G.    The Present Dispute
           In the 1990s, the United States began granting mineral
    leases on certain Forest Service lands that had been burdened by
    Good Pine servitudes but were not involved in Nebo Oil.       The
    government regarded these servitudes as prescribed for ten years’
    nonuse.      In determining that the servitudes were subject to the
    rule of prescription, rather than Act 315, the United States
    relied on the Supreme Court’s ruling in Little Lake Misere.
           In response to this leasing activity, the Plaintiffs, who
    are successors in interest to Nebo Oil Company, initiated this
    declaratory judgment action on February 18, 2000.     Their
    complaint named the United States and various parties to whom the
    United States granted mineral leases or offers to lease on lands
    that are or were burdened by Good Pine servitudes as defendants.
    Plaintiffs sought a ruling declaring that they are the owners, in
           Id. at 892 (citing Little Lake Misere, 412 U.S. at 599).
    perpetuity, of those servitudes and that the mineral leases and
    offers to lease issued by the United States were therefore null
    and void.    The United States argued in response to the
    Plaintiffs’ complaint that the 95 separate mineral servitudes
    through which the Plaintiffs claim mineral rights are subject to
    prescription for nonuse and that the relevant leases and offers
    to lease relate to lands on which the servitudes claimed by
    Plaintiffs have already prescribed.
           Plaintiffs filed a motion for summary judgment49 in the
    district court.    In their motion, Plaintiffs argued that they
    were entitled to judgment as a matter of law because Nebo Oil and
    the doctrine of res judicata or collateral estoppel50 would bar
         Plaintiffs actually filed two motions for summary judgment.
    In their second summary judgment motion, Plaintiffs argued that
    even if the rule of prescription applied, five servitudes burdening
    nearly seventy percent of the 180,000 acres in dispute had not
    prescribed because they had exercised their rights through
    continuous drilling operations. The United States conceded that
    sufficient drilling operations had interrupted the running of
    prescription on some of the servitudes and introduced evidence
    regarding the particular histories of each of the 96 Good Pine
    servitudes. But the district court dismissed this second motion as
    moot due to its res judicata determination and expressly declined
    to consider the issue of whether sufficient drilling operations
    interrupted the prescriptive period as to any particular servitude.
    Because we reverse the district court’s grant of summary judgment
    and because the district court has not had an opportunity to pass
    on the question of what servitudes may have prescribed, we will not
    reach the merits of Plaintiffs’ second motion and remand this issue
    to the district court.
         Although Plaintiffs did not specifically use the term
    “collateral estoppel” in their motion for summary judgment,
    Plaintiffs’ argument in favor on the motion was based on res
    judicata. “The rules of res judicata encompass two separate but
    linked preclusive doctrines: (1) true res judicata or claim
    any defense raised by the United States as to the
    prescriptibility of the servitudes.       The United States opposed
    the Plaintiffs’ motion for summary judgment.
           H.   The District Court’s   Ruling
           On December 18, 2001, the district court issued a memorandum
    ruling granting the Plaintiffs’ motion for summary judgment.
    Holding that res judicata barred the United States’s asserted
    defenses to Plaintiffs’ claim of ownership due to this court’s
    decision in Nebo Oil, the district court declared that Plaintiffs
    were “the exclusive owners in perpetuity of the approximately
    180,000 acres of mineral servitudes at issue in this case.”       The
    district court based its ruling on this court’s decision in Nebo
    Oil.    The court noted that the 800-acre servitude addressed in
    Nebo Oil burdened a parcel of land that the United States
    acquired in 1936 as part of a larger purchase of 24,943.93 acres
    and that all 24,943.93 acres were burdened by mineral servitudes
    that were owned in common with the 800-acre servitude.       Because
    the Nebo Oil decision referred to the 24,943.93-acre transaction,
    the district court found that Nebo Oil “applied Act 315 of 1940
    preclusion and (2) collateral estoppel or issue preclusion.” See
    St. Paul Mercury Ins. Co. v. Williamson, 
    224 F.3d 425
    , 436 (5th
    Cir. 2002)(internal citation omitted). Because these two doctrines
    are separate, collateral estoppel will be analyzed separately in
    this opinion.
    to the mineral reservation and sale of the 24,943.93 acre tract”
    and that “res judicata clearly applies” to disputes over the
    minerals on this tract.
          As for the remainder of the approximately 180,000 acres of
    land – acquired by the United States in ten additional
    transactions that were not specifically addressed in Nebo Oil –
    the district court found that res judicata was also applicable
    due to the factual similarity in the transactions.
    Specifically, because of the similarities in the transactions
    through which the United States acquired the lands and in the
    earlier transactions creating mineral servitudes on the land, the
    district court stated: (1) that “the entire 180,000 acres was
    similarly situated to the 800 acres at issue in Nebo Oil”; (2)
    that the United States had a “full and fair opportunity” (in Nebo
    Oil) to “litigate the application and constitutionality of
    Louisiana Act 315 to this mineral property”; and (3) that “[t]he
    government should not be allowed to litigate now that which it
    could have litigated 50 years ago.”
          Accordingly, the district court entered a final judgment on
    May 29, 2002.    The United States timely appealed.
          The critical issue before this court focuses on whether the
    United States is precluded from challenging Plaintiffs’ assertion
    of ownership over all 96 of the mineral servitudes arising from
    their status as successors in interest to Good Pine Oil.            Because
    the district court granted summary judgment, we review that
    decision de novo.51
    A.        Res Judicata–A Claim Precluded by Sameness?
              “Claim preclusion, or res judicata, bars the litigation of
    claims that either have been litigated or should have been raised
    in an earlier suit.”52      The test for res judicata has four
    elements: (1) the parties are identical or in privity; (2) the
    judgment in the prior action was rendered by a court of competent
    jurisdiction; (3) the prior action was concluded by a final
    judgment on the merits; and (4) the same claim or cause of action
    was involved in both actions.53         In this case, there is no
    dispute over the competency of the Nebo Oil court, the finality
    of its judgment in that case, or the sameness of the parties.
    The only dispute is whether this case involves the same claim or
    cause of action as Nebo Oil.
              To determine whether two suits involve the same claim or
    cause of action, this court has adopted the transactional test of
              Central Pines, 274 F.3d at 886.
         In re Southmark Corp., 
    163 F.3d 925
    , 934 (5th Cir. 1999). See
    Brown v. Felsen, 
    442 U.S. 127
    , 131 (1979) (“Res judicata prevents
    litigation of all grounds for, or defenses to, recovery that were
    previously available to the parties, regardless of whether they
    were asserted or determined in the prior proceeding.”).
              Southmark, 163 F.3d at 934.
    the Restatement (Second) of Judgments, § 24.54   Under that test,
    the preclusive effect of a prior judgment extends to all rights
    the original plaintiff had “with respect to all or any part of
    the transaction, or series of connected transactions, out of
    which the [original] action arose.”55
           What factual grouping constitutes a ‘transaction’, and
           what groupings constitute a ‘series’, are to be
           determined pragmatically, giving weight to such
           considerations as whether the facts are related in
           time, space, origin, or motivation, whether they form a
           convenient trial unit, and whether their treatment as a
           unit conforms to the parties’ expectations or business
           understanding or usage.56
    “[T]he critical issue is whether the two actions under
    consideration are based on the same nucleus of operative
           Contending that this action is not based on the same nucleus
    of operative facts as the action in Nebo Oil, the United States
    points out that it initiated the Nebo Oil litigation in response
    to learning that Nebo Oil intended to conduct drilling operations
    on a particular 800-acre parcel of federal land under a mineral
    servitude that, in the view of the United States, had
         Id. (citing Southmark Properties v. Charles House Corp., 
    742 F.2d 862
    , 870–71 (5th Cir. 1984)).
           Restatement (Second) of Judgments § 24(1) (1982).
           Id. § 24(2).
         Southmark, 163 F.3d at 934 (internal quotation and citation
    prescribed.58   The operative facts of that action included: (1)
    the United States’s purchase of the 800-acre parcel from Bodcaw
    Lumber on February 11, 1936; (2) the creation of the mineral
    servitude burdening that parcel in a November 11, 1932 conveyance
    from Bodcaw Lumber to Good Pine Oil; and, most importantly, (3)
    the history of use or nonuse of that servitude. In contrast, the
    United States argues that the rights asserted by the parties in
    this case depend on ten additional federal land acquisitions,
    five additional mineral conveyances to Good Pine Oil, and the
    drilling histories on 95 additional servitudes.
           The district court found that it did not “need to delve into
    such matters as what constitutes contiguous tracts, the number of
    servitudes, and whether prescription of nonuse was interrupted by
    good faith operations for the discovery and production of
    minerals.”    The district court reasoned that it was “faced with
    what may be viewed as a primarily legal question.”    Because all
    of the Good Pine servitudes were similarly situated with respect
    to application of Act 315, the court did not expressly identify
    the operative facts of this case and Nebo Oil and determine that
    they were the same.    Instead, the district court relied on the
    fact that Nebo Oil addressed a federal land acquisition and the
         The United States acknowledges that it is precluded, as a
    matter of res judicata, from re-litigating title to the 800-acre
    mineral servitude at issue in Nebo Oil.
    similarity among that acquisition and the other ten acquisitions
    at issue here.
           But the district court’s reliance on the factual
    similarities among the various servitudes and land acquisitions
    was misplaced.    As the United States correctly points out, these
    observations of factual similarity, although potentially relevant
    for purposes of collateral estoppel, are not relevant to res
    judicata.    Collateral estoppel prevents parties from re-
    litigating the same issues conclusively determined between them
    in a previous action.    Although similar in principle, true res
    judicata is concerned with a sameness of operative facts.
    Neither the Plaintiffs nor the district court have identified a
    principle of res judicata that requires an owner of separate
    properties to litigate title to all of those properties in
    response to a threat to his right of full use and enjoyment of
    only one of them.59   While an action to quiet title in one
    property may raise the same legal issues that would also be in
    question in an similar type of action involving a similarly
         Like the district court, the Plaintiffs seize on the Supreme
    Court’s statement in Nevada v. United States, 
    463 U.S. 110
    , 129
    n.10 (1983), that “[t]he policies advanced by the doctrine of res
    judicata perhaps are at their zenith in cases concerning real
    property, land and water.” While this is certainly true, nothing
    in the Nevada opinion undermines the principle that the doctrine of
    res judicata does not bar a second action unless it is the “same
    cause of action” as the first one. See id. at 130 (“To determine
    the applicability of res judicata to the facts before us, we must
    decide first if the ‘cause of action’ which the Government now
    seeks to assert is the ‘same cause of action’ that was asserted
    situated property, the operative facts of the two actions would
    be distinct.
           In this case, each of the Good Pine servitudes was a
    distinct real right under Louisiana law.60    The Nebo Oil action
    involved one servitude burdening an 800-acre parcel of land and
    was filed in response to a threat to the United States’s asserted
    right of full use and enjoyment of that land.    The United States
    took the position that the servitude was subject to prescription
    and had prescribed, and therefore it had to show ten years’
    nonuse of that particular servitude to succeed on its claim.     The
    existence and use histories of the other Good Pine servitudes
    were not operative facts of either the government’s claim or Nebo
    Oil’s defense to that claim.    Although the reasoning of Nebo Oil
    – that the Good Pine servitudes were imprescriptible due to Act
    315– made the use histories irrelevant as a matter of law, each
    servitude remained a distinct real right.     If Nebo Oil remains
    good law, this court’s holding that Act 315 rendered the Good
    Pine servitudes imprescriptible is final and conclusive between
    the United States and the Plaintiffs as a matter of collateral
    estoppel.    But res judicata is no bar to the United States’s
    defense in this action because its claim with respect to each
    servitude depends on a unique set of operative facts. Thus, if
           See McDougal, supra note 4, at 1099.
    the United States’s defense of this action is limited, it would
    be limited only under collateral estoppel.
    B.        Collateral Estoppel–An Issue Precluded by Prior Litigation?
              Collateral estoppel precludes a party from litigating an
    issue already raised in an earlier action between the same
    parties61 only if: (1) the issue at stake is identical to the one
    involved in the earlier action; (2) the issue was actually
    litigated in the prior action; and (3) the determination of the
    issue in the prior action was a necessary part of the judgment in
    that action.62      In this circuit, collateral estoppel applies to
    “pure questions of law” only when there has been no “change in
    controlling legal principles.”63       The United States contends that
         “Mutuality” is a prerequisite only when the party to be
    estopped is the United States. See United States v. Mendoza, 
    464 U.S. 154
         Stripling v. Jordan Prod. Co., LLC, 
    234 F.3d 863
    , 868 (5th
    Cir. 2000).
         See, e.g., Hicks v. Quaker Oats Co., 
    662 F.2d 1158
    , 1167 (5th
    Cir. 1981)(discussing the effect of Montana v. United States, 
    440 U.S. 147
     (1979) on the exception to collateral estoppel explained
    in United States v. Sunnen, 
    333 U.S. 591
     (1948), and concluding
    that post-Montana, Sunnen stands only for the proposition that
    “estoppel would not apply where there had been a change in
    controlling legal principles between the two decisions.”); EEOC v.
    Am. Airlines, Inc., 
    48 F.3d 164
    , 170 (5th Cir. 1995)(quoting
    Montana, 440 U.S. at 161, for the proposition that “a significant
    change in the legal climate may defeat collateral estoppel where
    modifications in controlling legal principles . . .could renders a
    previous   determination    inconsistent    with   the   prevailing
    doctrine.”); RecoverEdge, L.P. v. Pentecost, 
    44 F.3d 1284
    , 1291
    (5th Cir. 1995)(stating “As one treatise points out, however,
    ‘courts have readily perceived that for purposes of preclusion,
    ‘issues are not identical if the second action involves application
    collateral estoppel does not apply in the present case because it
    seeks to raise issues that are not identical to the issues
    litigated in Nebo Oil and, in any event, there has been a change
    in controlling legal principles.        We agree.
           In ruling that the United States is precluded from re-
    litigating the applicability of Act 315 to the Good Pine
    servitudes, the district court did not specify what particular
    issues were actually litigated in Nebo Oil.         But, as the United
    States discusses in its brief, the question of Act 315’s
    applicability to this case can be divided into three distinct
    sets of legal issues.    First, there are threshold choice-of-law
    issues, including whether the rights arising out of the federal
    land acquisitions are governed by state law (including Act 315)
    or by federal law, and, if federal law governs, whether and what
    provisions of state law should be “borrowed” to provide the rules
    of decision.64   Second, there are issues regarding the
    interpretation of Act 315 under state law, including the question
    of a different legal standard, even though the factual setting of
    both suits is the same.’” citing 18 Wright, Miller & Cooper,
    Federal Practice and Procedure § 4417, at 165 (footnote
    omitted)(quoting Peterson v. Clark Leasing Corp., 
    451 F.2d 1291
    1292 (9th Cir. 1971); Brister v. A.W.I., Inc., 
    946 F.2d 350
    , 354
    n.1 (5th Cir. 1991)(explaining that “not only the facts, but also
    the legal standard used to assess them, must be identical” and
    citing Southern Pac. Transp. Co. v. Smith Material Corp., 
    616 F.2d 111
    , 115 (5th Cir. 1980)).
         See Little Lake Misere, 412 U.S. at 590–604; Central Pines,
    274 F.3d at 887–92.
    whether Act 315 is to be applied retroactively.      Finally, there
    are issues concerning whether applying Act 315 retroactively is
    constitutional.    That these issues are distinct legal issues
    cannot be doubted after this court’s ruling in Central Pines.65
           Nebo Oil only addressed the latter two sets of issues.66
    That is, in Nebo Oil, this court assumed the applicability of Act
    315, confined its analysis to an interpretation of the Act under
    state law, and determined that the Act did not violate the
    federal constitution.67   In the present case, the United States
    does not seek to revisit the issues actually addressed in Nebo
    Oil.    Instead, it seeks to raise the threshold choice-of-law
    issue that Nebo Oil did not address because it was presumed.      In
    particular, the United States contends that: (1) federal law
    governs the rights arising out of its acquisition of the lands at
    issue in this case;68 (2) Act 315 may not be borrowed as the rule
    of decision because it is hostile to the United States’s
    contractual interests;69 and (3) the rule at the time of the
           See 274 F.3d at 889–90.
           See id. (describing the scope of Nebo Oil).
           See id.
         See Little Lake Misere, 412 U.S. at 594; Central Pines, 274
    F.3d at 887–90.
           See Central Pines, 274 F.3d at 890–92.
    contract (i.e., the Louisiana rule of prescription) should
           Because these questions of law are not “identical” to the
    issues raised in Nebo Oil and were not “actually litigated” in
    Nebo Oil, we find that the United States is not precluded, under
    collateral estoppel, from raising them in this case.71   Although
    the Plaintiffs cite scattered portions of both the district
    court’s opinion and the United States’s brief in Nebo Oil in an
    effort to show that the choice-of-law issue was determined in
    that action, we stand by our prior finding in Central Pines that
    it was not.72
           Nevertheless, even if the choice-of-law issue had been
    raised in Nebo Oil, changes in the controlling legal principles
    prevent the United States from being precluded from litigating
    the issue in this case.73   After the decisions in Little Lake
    Misere and Central Pines, it is clear that federal law governs
           See id. at 892.
           RecoverEdge 44 F.3d at 1290.
           See 274 F.3d at 889–90.
         The Plaintiffs’ argument that the Supreme Court’s decision in
    United States v. Stauffer Chem. Co., 
    464 U.S. 165
     (1984), compels
    a contrary conclusion is mistaken. In that case, there had been no
    change in controlling legal principles between the first and the
    second action. See id. at 170. The Court was concerned, instead,
    with the exception to the otherwise applicable rules of preclusion
    for “unmixed questions of law” arising in “successive actions
    involving unrelated subject matter.” See id. The United States
    does not rely on this exception in this case.
    the choice-of-law decision presented by the facts of this case.
    Hence, we are prohibited from borrowing Act 315 as the federal
    rule of decision because it is hostile to the federal interests
    at stake.74
           Because neither res judicata nor collateral estoppel
    preclude the United States from challenging Plaintiffs’ assertion
    of ownership over the mineral servitudes in question, we reverse
    the district court’s grant of summary judgment.   In addition, we
    find that the 95 servitudes that were not at issue in Nebo Oil
    are subject to the contractual provisions permitting prescription
    after ten years’ nonuse.   Accordingly, we remand this case so
    that the district court can determine which servitudes have in
    fact prescribed.
                          REVERSED AND REMANDED.
           See Central Pines, 274 F.3d at 888–90.