Parish of Cameron v. Auster Oil & Gas Inc., CASE NO. 2:18-CV-00677

• Citation: 420 F.Supp.3d 532
• Decision Date: 26 September 2019
• Docket Number: CASE NO. 2:18-CV-00677
• Parties: PARISH OF CAMERON, et al. v. AUSTER OIL & GAS INC., et al.
• Court: U.S. District Court — Western District of Louisiana

420 F.Supp.3d 532

PARISH OF CAMERON, et al.

v.AUSTER OIL & GAS INC., et al.

CASE NO. 2:18-CV-00677

United States District Court, W.D. Louisiana, Lake Charles Division.

Signed September 26, 2019

Donald T. Carmouche, Brian T. Carmouche, Christopher D. Martin, Adele D. Owen, John H. Carmouche, Leah Cotten Poole, Ross J. Donnes, Todd J. Wimberley, Victor L. Marcello, William Robert Coenen, III, Talbot Carmouche & Marcello (BR), Baton Rouge, LA, Chad E. Mudd, David P. Bruchhaus, Matthew Patrick Keating, Michael Keith Prudhomme, Wesley Alan Romero, Mudd Bruchhaus & Keating (LC), Lake Charles, LA, for Plaintiff.

Douglas C. Longman, Jr., Carmen M. Rodriguez, Brian Wesley Capell, Emily Claire Borgen, George Arceneaux, III, Liskow & Lewis (LAF), Lafayette, LA, Boyd A. Bryan, Charles S. McCowan, III, Pamela R. Mascari, Baton Rouge, LA, Joe B. Norman, Tiffany Delery Davis, Liskow & Lewis (NO), Michael R. Phillips, Claire Elizabeth Juneau, New Orleans, LA, Matthew T. Heartney, Pro Hac Vice, Arnold & Porter (CA), Los Angeles, CA 90017, Nancy G. Milburn, Pro Hac Vice, New York, NY, Alexandra Giselle White, Eric J. Mayer, Houston, TX, Brett P. Fenasci, Gregorio Chafin et al., Metairie, LA, Peter D. Keisler, Pro Hac Vice, Washington, DC, for Defendant.

REASONS FOR DECISION

Robert R. Summerhays, United States District Judge

Presently before the court is the Report and Recommendation [doc. 103] issued by the Magistrate Judge regarding the Motion to Remand [doc. 67] filed by the Parish of Cameron and a Motion to Remand [doc. 71] filed by intervenor-plaintiffs, the State of Louisiana ex rel., the Louisiana Attorney General, and the Louisiana Department of Natural Resources (hereafter, state and parish parties referred to collectively as "Plaintiffs"). In her Report and Recommendation, the Magistrate Judge recommends that the Motion to Remand be granted on the grounds that removal was untimely. While the Court concludes that removal here was timely, the Court agrees with the Magistrate Judge that the Motion to Remand should be granted as explained below. Accordingly, the motions [doc. 67 and 71] are GRANTED.

I.BACKGROUND

Several Louisiana parishes filed forty-two lawsuits against various oilfield-related defendants¹ (hereafter, all defendants in these matters will collectively be referred to as "Defendants") in state court alleging violations of permits issued under the State and Local Coastal Resources Management Act of 1978 ("SLCRMA") also known as the Coastal Zone Management Act, La. Rev. Stat. § 49:214.21 et seq. , and associated regulations, rules, and ordinances ("CZM laws") based upon the defendants' dredging, drilling, and waste disposal in coastal parishes. See, e.g., doc. 1, att. 59, pp. 3-26.

SLCRMA provides a cause of action against companies that either violate a state-issued coastal use permit or fail to properly obtain a coastal use permit when required. The act also contains certain exemptions from the coastal use permitting requirements, namely, uses which do not have a significant impact on coastal waters² and activities which were "lawfully commenced" prior to the enactment of SLCRMA — the so-called "historical use" or "lawfully commenced" exemption.³ Plaintiffs assert that the pre-SLCRMA activities by defendants were not lawfully commenced and therefore do not fall within the exemption.

The cases were previously removed to this Court on the basis of admiralty jurisdiction, federal jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1349(b)(1), and federal question jurisdiction under 28 U.S.C. § 1331. Those cases were remanded when the Court rejected these grounds for removal. As for OCSLA, the Court found that the activities involved did not take place on the Outer Continental Shelf. The Court also found that admiralty claims brought at law in state court pursuant to the Saving to Suitors' Clause are not removable in the absence of an independent jurisdictional basis. Finally, the Court held that the defendants could establish no federal question jurisdiction because the remedies sought were specifically limited to those arising under state law.⁴

Defendants have now removed this case along with eleven others again. The current Notice of Removal, filed on May 23, 2018, asserts federal officer jurisdiction under 28 U.S.C § 1442 and federal question jurisdiction under 28 U.S.C. § 1331.⁵ Defendants claim that they first became aware of these removal grounds when they received an expert report in a related case on April 30, 2018.⁶ Defendants argue that this expert report reveals for the first time that Plaintiffs' claims primarily attack activities undertaken before SLCRMA's effective date (1980), including activities that were subject to extensive and exclusive federal direction, control, and regulation during World War II.

Plaintiffs have filed motions to remand, arguing that (1) the claim of federal officer jurisdiction is without merit; (2) the claim of federal question jurisdiction is without merit and is also precluded from re-litigation; and (3) removal was untimely because the expert report was received months, if not years, after the removing defendants knew or should have known of the nature of the claims asserted by Plaintiffs. Defendants opposed the Motions to Remand.

On November 20, 2018, the Magistrate Judge issued a Report and Recommendation, recommending that the Motions to Remand be granted because removal was untimely. The recommendation that the removal was untimely was based upon the fact that the Plaintiffs' original petition makes numerous references to Defendants' activities which took place prior to the enactment of SLCRMA and that Defendants were put on notice that pre-SLCRMA activities were at issue. Defendants timely objected to the Report and Recommendation.

II.LAW AND ANALYSIS

A. Timeliness of Removal.

A notice of removal must be filed within 30 days of receipt of the initial pleading in the case by the defendant. 28 U.S.C. § 1446(b). However, if the initial pleading does not set forth grounds for removal, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."⁷ The Fifth Circuit has held that "the information supporting removal in a copy of an amended pleading, motion, order or other paper must be ‘unequivocally clear and certain’ to start the time limit running for a notice of removal." Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th Cir. 2002). The document need not be a filing to qualify as an "other paper."⁸ Under some circumstances, a paper filed in another case may also qualify. Id. However, if the removal is based on an "other paper," that paper must still result from a voluntary act by the plaintiff. Addo v. Globe Life and Acc. Ins. Co., 230 F.3d 759, 761-62 (5th Cir. 2000). Generally, when courts are looking to an "other paper" to determine removability, they are addressing the question in the context of a diversity jurisdiction case.⁹ "The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, under which federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). However, under some limited circumstances, courts do look to an "other paper" to establish federal question jurisdiction. For example, a court may look to an "other paper" to determine whether a plaintiff's state law claim may be one that is preempted by federal law.¹⁰

The requirement that the grounds for removal be "unequivocally clear and certain" creates a bright line rule requiring that the document itself reveal the grounds for removal before a party's removal rights are subject to the 30-day cutoff.¹¹ A party's subjective knowledge is not sufficient to trigger the removal deadline.¹² Similarly, the Fifth Circuit does not impose a due diligence requirement on the defendant to uncover the grounds for removal based on an ambiguous pleading.¹³

In the instant case, the "other paper" on which defendants base their theory of removability is an expert report filed in a related case in state court by Plaintiffs, called the Rozel Report. The Rozel Report details the precise activities which Plaintiffs allege caused damage and also specifies preferred methods which would have prevented the damage. Defendants assert that this report revealed for the first time that Plaintiffs were attacking activities which were subject to extensive federal direction, control and regulation. Plaintiffs maintain that they have repeatedly referenced pre-SLCRMA activities dating back to the original complaint. Defendants contend, however, that while the prior filings may have referenced pre-SLCRMA activities, they did not reveal that Plaintiffs were challenging specific activities which were heavily regulated by the federal government during World War II. The Rozel Report offers the opinion that there are three types of activities which occurred which violated SLCRMA, namely:

First, there were certain uses that were legally commenced before 1980 but whose impacts changed post-1980, triggering the requirement for a permit that was never obtained. Second, there were certain uses that were illegally commenced at their beginning and therefore did not qualify for the exemption from coastal permitting or review. And third, there were certain uses that were commenced after 1980 that did not receive appropriate permits under SLCRMA.

The Rozel Report also relies on language from a 1980 federal Final Environment Impact Statement ("FEIS"), which was submitted for proposed federal approval of Louisiana's Coastal Resources Program:

Any use or activity which, prior to the initiation of the coastal use permit program, has been

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