                                                United States Court of Appeals
                                                         Fifth Circuit
                                                      F I L E D
                 REVISED May 28, 2004
                                                      March 31, 2004
            UNITED STATES COURT OF APPEALS
                 For the Fifth Circuit            Charles R. Fulbruge III
                                                          Clerk

                   No. 02-30760 c/w
                       02-30786


              PETRO-HUNT, L.L.C., et.al,

                                      Plaintiffs – Appellees,

                        VERSUS

           UNITED STATES OF AMERICA, et. al,

                                        Defendants,

               UNITED STATES OF AMERICA,

                                        Defendant – Appellant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

              PETRO-HUNT, L.L.C., et. al,

                                        Plaintiffs-Appellants,

                        versus

           UNITED STATES OF AMERICA, et. al,

                                         Defendants-Appellees.



     Appeals from the United States District Court
         for the Western District of Louisiana




                          -1-
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.
     1
     Prevailing party status is a prerequisite                to    recovering
attorneys’ fees under 28 U.S.C. § 2412(b).

                                      -2-
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




  2
     Frost-Johnson Lumber Co. v. Salling’s Heirs, 91 So. 207,
243–245 (La. 1920).
  3
     Central Pines Land Co. v. United States, 274 F.3d 881, 884
(5th Cir. 2001).
  4
     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).
  5
      Central Pines, 274 F.3d at 884.   See La. R.S. § 31:27.

                                -3-
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

policy.10

       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


  6
     See La. R.S. § 31:28; see also Ober v. Williams, 35 So. 2d
219, 224 (La. 1948).
  7
       La. R.S. § 31:29.
  8
       See Mire v. Hawkins, 186 So. 2d 591, 597 (La. 1966).
  9
     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.
  10
       Id.
  11
     United States v. Nebo Oil, 190 F.2d 1003, 1005 (5th Cir.
1951).

                                 -4-
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


  12
       Id.
  13
     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)).

                                 -5-
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

  14
       16 U.S.C. § 515.
  15
     The record shows that the United States acquired the lands
between November 28, 1934, and January 28, 1937.

                                 -6-
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

  16
     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

                                 -7-
of the instruments stated that at the termination of the

reservations, the United States would hold the land in “complete

fee.”

       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.”).
  17
       See 1940 La. Acts 315; see also La. R.S. § 31:149.
  18
     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).

                                  -8-
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.

  19
       Leiter Minerals, 132 So. 2d at 851.
  20
     Id. at 851–52, 854; see also Little Lake Misere, 412 U.S. at
599–600 (citing Leiter Minerals).
  21
     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.

                                 -9-
       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

production.

       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

  22
       See United States v. Nebo Oil, 90 F. Supp. 73 (W.D. La. 1950).
  23
     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.”

                                 -10-
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




  24
     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)).
  25
     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.”).

                                  -11-
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

  26
       412 U.S. at 582.
  27
       Id.
  28
       Id. at 583.
  29
     See United States v. Little Lake Misere Land Co., 453 F.2d 360
(5th Cir. 1971).
  30
       Id. at 362.

                                 -12-
       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

  31
     See United States v. Little Lake Misere Land Co., 318 U.S. 363
(1943).
  32
       318 U.S. 580 (1943).
  33
       See Little Lake Misere, 412 U.S. at 591.
  34
       See id. at 594.
  35
       Id. at 596.

                                 -13-
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




  36
       Id. at 604.
  37
       274 F.3d 881.
  38
       274 F.3d at 881.
  39
       See id. at 885.
  40
       Id.
  41
       Id. at 886.

                                 -14-
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



  42
       274 F.3d 886.
  43
       Id. at 889-90.
  44
       Id. at 888-90.
  45
       Id. at 891.
  46
       Id. at 891–92.

                                 -15-
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


  47
       Id. at 892 (citing Little Lake Misere, 412 U.S. at 599).
  48
       Id.

                                   -16-
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

  49
     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.
  50
     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

                                 -17-
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.

                                   -18-
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.

II.   ANALYSIS

      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


                                 -19-
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




     51
          Central Pines, 274 F.3d at 886.
     52
     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.”).
     53
          Southmark, 163 F.3d at 934.

                                    -20-
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

facts.”57

       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




  54
     Id. (citing Southmark Properties v. Charles House Corp., 742
F.2d 862, 870–71 (5th Cir. 1984)).
  55
       Restatement (Second) of Judgments § 24(1) (1982).
  56
       Id. § 24(2).
  57
     Southmark, 163 F.3d at 934 (internal quotation and citation
omitted).

                                 -21-
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




  58
     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.

                                 -22-
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

  59
     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
[previously].”).

                                 -23-
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




  60
       See McDougal, supra note 4, at 1099.

                                 -24-
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


     61
     “Mutuality” is a prerequisite only when the party to be
estopped is the United States. See United States v. Mendoza, 464
U.S. 154 (1984).
     62
     Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 868 (5th
Cir. 2000).
     63
     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


                                    -25-
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)).
  64
     See Little Lake Misere, 412 U.S. at 590–604; Central Pines,
274 F.3d at 887–92.


                                 -26-
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




  65
       See 274 F.3d at 889–90.
  66
       See id. (describing the scope of Nebo Oil).
  67
       See id.
  68
     See Little Lake Misere, 412 U.S. at 594; Central Pines, 274
F.3d at 887–90.
  69
       See Central Pines, 274 F.3d at 890–92.


                                 -27-
contract (i.e., the Louisiana rule of prescription) should

govern.70

       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


  70
       See id. at 892.
  71
       RecoverEdge 44 F.3d at 1290.
  72
       See 274 F.3d at 889–90.
  73
     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.


                                 -28-
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

III.    CONCLUSION

       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.




  74
       See Central Pines, 274 F.3d at 888–90.


                                 -29-
