Hat v. Landry

• Decision Date: 30 July 2020
• Docket Number: CIVIL ACTION NO. 19-322-JWD-EWD
• Citation: 475 F.Supp.3d 532
• Parties: Anne WHITE HAT, Ramon Mejia, Karen Savage, Sharon Lavigne, Harry Joseph, Katherine Aaslestad, Peter Aaslestad, Theda Larson Wright, Alberta Larson Stevens, Judith Larson Hernandez, RISE St. James, 350 New Orleans, and Louisiana Bucket Brigade, v. Jeff LANDRY, in his official capacity as Attorney General of Louisiana, Bo Duhe, in his official capacity as District Attorney of the 16th Judicial District Attorney's Office; Ronald J. Theriot, in his official capacity as Sheriff of St. Martin Parish
• Court: U.S. District Court — Middle District of Louisiana

475 F.Supp.3d 532

Anne WHITE HAT, Ramon Mejia, Karen Savage, Sharon Lavigne, Harry Joseph, Katherine Aaslestad, Peter Aaslestad, Theda Larson Wright, Alberta Larson Stevens, Judith Larson Hernandez, RISE St. James, 350 New Orleans, and Louisiana Bucket Brigade,

v.Jeff LANDRY, in his official capacity as Attorney General of Louisiana, Bo Duhe, in his official capacity as District Attorney of the 16th Judicial District Attorney's Office; Ronald J. Theriot, in his official capacity as Sheriff of St. Martin Parish,

CIVIL ACTION NO. 19-322-JWD-EWD

United States District Court, M.D. Louisiana.

Signed July 30, 2020

Pamela Carol Spees, Astha Sharma Pokharel, Center for Constitutional Rights, New York, NY, William Patrick Quigley, Loyola Law School, New Orleans, LA, for Anne White Hat.

Pamela Carol Spees, Astha Sharma Pokharel, Pro Hac Vice, Center for Constitutional Rights, New York, NY, William Patrick Quigley, Loyola Law School, New Orleans, LA, for Ramon Mejia, Karen Savage, Sharon Lavigne, Harry Joseph, Katherine Aaslestad, Peter Aaslestad, Theda Larson Wright, Alberta Larson Stevens, Judith Larson Hernandez, RISE St. James, 350 New Orleans, Louisiana Bucket Brigade.

Ralph R. Alexis, III, Porteous, Hainkel and Johnson, LLP, Corey Daniel Moll, Glenn Brozman Adams, Porteous, Hainkel & Johnson, New Orleans, LA, for Bo Duhe.

Patrick Bayard McIntire, Oats & Marino—Lafayette, Lafayette, LA, for Ronald J. Theriot.

RULING AND ORDER

JOHN W. deGRAVELLES, JUDGE

This matter comes before the Court on three motions to dismiss: Attorney General Jeff Landry's Motion to Dismiss ("Attorney General's Motion ") filed by Attorney General Jeff Landry, in his official capacity ("Attorney General") (Doc. 30); Sheriff's Motion to Dismiss ("Sheriff's Motion ") filed by Sheriff Ronald Theriot ("Sheriff") (Doc. 31) and Motion to Dismiss; Alternatively to Transfer to the United States District Court tor the Western District of Louisiana Filed on behalf of M. Bofill Duhé in his Official Capacity as District Attorney for the 16th Judicial District, State of Louisiana ("District Attorney's Motion ") filed by District Attorney M. Bofill Duhé ("District Attorney") (Doc. 32). Plaintiffs oppose the motions to dismiss. (Docs. 34, 35, and 36.) The defendants have filed replies. (Docs. 39, 40, 41.) Oral argument is not necessary. Having considered the facts alleged in the Complaint , the arguments raised by the parties, the applicable law, and for the reasons expressed below, the Court grants in part Attorney General Jeff Landry's Motion to Dismiss and grants the alternative relief requested and will transfer the case to the Western District of Louisiana under 28 U.S.C. § 1404(a).

FACTUAL BACKGROUND

Plaintiffs bring this action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that the 2018 amendment to La. R.S. 14:61 ("Amended Statute"), which prohibits unauthorized entry of critical infrastructure, is facially unconstitutional and unconstitutional as applied. (Doc. 1 at 1.) For the purposes of this Ruling and Order , the Court accepts the well pleaded allegations in the Complaint as true. Thompson v. City of Waco, Tex. , 764 F.3d 500, 502-03 (5th Cir. 2014).

a. Claims alleged in the Complaint

Plaintiffs allege five counts in the Complaint :

1. Count I – As amended, La. R.S. 14:61 is unconstitutionally vague (Fourteenth Amendment: Void for Vagueness).

2. Count II – As amended, La. R.S. 14:61 violates Plaintiffs’ Rights under the First Amendment to the U.S. Constitution.

3. Count III – As amended, La. R.S. 14:61 violates Plaintiffs’ Rights under the First Amendment to the U.S. Constitution because it singles out a particular viewpoint for harsher punishment.

4. Count IV – La. R.S. 14:61 is unconstitutionally overbroad in violation of the First Amendment to the U.S. Constitution.

5. Count V – La. R.S. 14:61 is unconstitutional as applied.

b. The enactment of La. R.S. 14:61

In 2018, the Louisiana Mid-Continent Oil and Gas Association drafted and proposed an amendment to La. R.S. 14:61, which was enacted into law on August 1, 2018. (Doc. 1 at ¶ 1.) The Amended Statute reads:

§ 61. Unauthorized entry of a critical infrastructure

A. Unauthorized entry of a critical infrastructure is any of the following:

(1) The intentional entry by a person without authority into any structure or onto any premises, belonging to another, that constitutes in whole or in part a critical infrastructure that is completely enclosed by any type of physical barrier.

(2) The use or attempted use of fraudulent documents for identification purposes to enter a critical infrastructure.

(3) Remaining upon or in the premises of a critical infrastructure after having been forbidden to do so, either orally or in writing, by any owner, lessee, or custodian of the property or by any other authorized person.

(4) The intentional entry into a restricted area of a critical infrastructure which is marked as a restricted or limited access area that is completely enclosed by any type of physical barrier when the person is not authorized to enter that restricted or limited access area.

B. For the purposes of this Section, the following words shall have the following meanings:

(1) "Critical infrastructure" means any and all structures, equipment, or other immovable or movable property located within or upon chemical manufacturing facilities, refineries, electrical power generating facilities, electrical transmission substations and distribution substations, water intake structures and water treatment facilities, natural gas transmission compressor stations, liquified natural gas (LNG) terminals and storage facilities, natural gas and hydrocarbon storage facilities, transportation facilities, such as ports, railroad switching yards, pipelines , and trucking terminals, or any site where the construction or improvement of any facility or structure referenced in this Section is occurring.

(2) "Fraudulent documents for identification purposes" means documents which are presented as being bona fide documents which provide personal identification information but which are, in fact, false, forged, altered, or counterfeit.

(3) "Pipeline" means flow, transmission, distribution, or gathering lines, regardless of size or length, which transmit or transport oil, gas, petrochemicals, minerals, or water in a solid, liquid, or gaseous state.

C. Whoever commits the crime of unauthorized entry of a critical infrastructure shall be imprisoned with or without hard labor for not more than five years, fined not more than one thousand dollars, or both.

D. Nothing in this Section shall be construed to apply to or prevent the following:

(1) Lawful assembly and peaceful and orderly petition, picketing, or demonstration for the redress of grievances or to express ideas or views regarding legitimate matters of public interest, including but not limited to any labor dispute between any employer and its employee or position protected by the United States Constitution or the Constitution of Louisiana.

(2) Lawful commercial or recreational activities conducted in the open or unconfined areas around a pipeline, including but not limited to fishing, hunting, boating, and birdwatching.

(3) Nothing in this Section shall be construed to prevent the owner of an immovable from exercising right of ownership, including use, enjoyment, and disposition within the limits and under the conditions established by law.

(Doc. 1 at ¶ 54 (emphasis added in Complaint to highlight amended language of pipelines and construction sites).)

The Amended Statute defines Louisiana's 125,000-mile network of pipelines as critical infrastructure. (Id. ) Plaintiffs allege that the Amended Statute:

is unconstitutional on its face and as applied because: 1) it is vague as it does not provide adequate notice to plaintiffs and others, as well as state actors who must enforce the law, what conduct is prohibited and where, and allows for arbitrary and discriminatory enforcement; 2) it is overbroad and has the effect of chilling constitutionally protected speech or expression; and 3) targets speech and expressive conduct with a particular viewpoint for harsher punishment.

(Doc. 1 at ¶ 2.)

Prior to the statute's amendment, critical infrastructure included "facilities like refineries, chemical manufacturing facilities, and water treatment plants which occupy visible and discrete land areas often completely enclosed by physical barriers and/or clearly demarcated by signs." (Doc. 1 at ¶ 3.) The prior version, therefore, "gave notice to those who would enter such facilities without authorization, or remain after being forbidden, that they were on specially designated and protected property." (Id. ) As amended, critical infrastructure now includes 125,000 miles of pipelines, which run through private and public spaces and are not visible or clearly marked. (Doc. 1 at ¶¶ 4-5.) There is no indication as to what area around a pipeline is considered a part of the pipeline or critical infrastructure. (Doc. 1 at ¶ 58.) Further, there is no indication whether landowners have a right to be present on the part of their private property considered a pipeline, and whether pipelines that run unmarked through public property or in navigable waterways are forbidden areas. (Doc. 1 at ¶¶ 60-62.)

The Amended Statute does not define who can revoke permission from those who have lawfully entered onto the pipeline or infrastructure, or who determines when permission to remain on a pipeline has been forbidden. (Doc. 1 at ¶¶ 56, 59.) The Amended Statute does not provide guidance to law enforcement officers on how or where to enforce it. (Doc. 1 at ¶ 56.) There is no requirement that a trespasser have intent to do damage, cause harm, or otherwise commit an act of violence or criminal offense. (Doc. 1 at ¶ 57.)

The Amended Statute also increased the penalty for engaging in peaceful demonstrations or civil disobedience in the vicinity of pipelines or pipeline construction sites from a misdemeanor charge of trespass to a felony charge...