Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc.

• Decision Date: 01 December 2014
• Docket Number: Civil Action No. 13–6693.
• Citation: 64 F.Supp.3d 872
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: The PARISH OF PLAQUEMINES v. TOTAL PETROCHEMICAL & REFINING USA, INC., et al.

64 F.Supp.3d 872

The PARISH OF PLAQUEMINES

v.TOTAL PETROCHEMICAL & REFINING USA, INC., et al.

Civil Action No. 13–6693.

United States District Court, E.D. Louisiana.

Signed Dec. 1, 2014.

Donald T. Carmouche, Brian T. Carmouche, Diane Adele Owen, John Hogarth Carmouche, Leah G. Cotten, Ross Joseph Donnes, Todd J. Wimberley, Victor Lynn Marcello, William Robert Coenen, III, Talbot, Carmouche & Marcello, Baton Rouge, LA, Brandon J. Taylor, Darren David Sumich, David Allen Parsiola, Philip Francis Cossich, Jr., Cossich, Sumich, Parsiola & Taylor, LCC, Belle Chasse, LA, David W. Robertson, Attorney at Law, Austin, TX, William Peter Connick, Connick & Connick, LLC, Metairie, LA, for The Parish of Plaquemines.

George H. Robinson, Jr., Brian W. Capell, Brittan J. Bush, George Arceneaux, III, George H. Robinson, Jr., Liskow & Lewis, Robert Michael Kallam, Jennifer A. Wells, Preis & Roy, PLC, Stephen D. Baker, Attorney at Law, Paul J. Hebert, Benjamin D. Jones, Valerie Vige Guidry, William H.L. Kaufman, Ottinger Hebert, LLC, Lafayette, LA, Joe B. Norman, Kenneth Todd Wallace, Robert B. McNeal, Russell Keith Jarrett, Dana Marie Douglas, Kelly Brechtel Becker, Mark L. McNamara, Liskow & Lewis, Deborah Deroche Kuchler, Janika D. Polk, Leigh Ann Tschirn Schell, Michele Hale Deshazo, Robert Edward Guidry, Kuchler Polk Schell Weiner & Richeson, LLC, Michael Raudon Phillips, Michelle Purchner Cumberland, Kean Miller LLP, Craig Isenberg, Michelle M. Rutherford, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, Paul J. Goodwine, Holly Occhipinti Thompson, Taylor P. Mouledoux, Looper Goodwine & Ballew P.C., Jonathan Percy Lemann, Couhig Partners, LLC, Glen Marion Pilie, Jeffrey E. Richardson, Martin Alan Stern, Adams & Reese, LLP, Matthew A. Woolf, Monica Frois, Roy Clifton Cheatwood, Tyler Weidlich, Baker Donelson Bearman Caldwell & Berkowitz, New Orleans, LA, Matthew T. Heartney, Arnold & Porter, LLP, Los Angeles, CA, Nancy G. Milburn, Arnold & Porter, LLP, New York, NY, Louis Victor Gregoire, Jr., Claire E. Juneau, Pamela Roman Mascari, Leonard L. Kilgore, III, Erin Percy Tadie, Esteban Herrera, Jr., Richard D. McConnell, Jr., Samuel O. Lumpkin, Victor Jacob Suane, Jr., Kean Miller, Baton Rouge, LA, Alexandra Giselle White, Eric Julian Mayer, Susman Godfrey, LLP, Michael P. Cash, Liskow & Lewis, Houston, TX, David C. Jarrell, Law Offices of David C. Jarrell, APLC, Chalmette, LA, for Total Petrochemical & Refining USA, Inc., et al.

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 31) filed by plaintiff Plaquemines Parish, on its own behalf and on behalf of the State of Louisiana. Defendants oppose the motion.¹ The Parish filed its reply and counsel orally argued the motion on July 2, 2014. (Rec. Docs. 55 & 64). The Court ordered supplemental briefing and both sides have now responded with several additional submissions. (Rec. Docs. 68, 69, 72, 75, 78, 82). The Court commends counsel for both sides on their excellent memoranda.

Having now considered the applicable law, the evidence of record, and the arguments of counsel, the Court concludes that the Motion to Remand should be GRANTED.

I. Factual Background

The Parish of Plaquemines (“the Parish”) filed suit on its own behalf and on behalf of the State of Louisiana against 19 separate defendants,² some of whom are not diverse in citizenship from the Parish.³ The Parish relies solely on a body of Louisiana state law called the State and Local Coastal Resources Management Act of 1978, La. R.S. § 49:214.21 et seq., (“the CZM Laws” or “SLCRMA”), along with the state and local regulations, guidelines, ordinances, and orders promulgated thereunder. The CZM Laws regulate certain “uses” within the Coastal Zone of Louisiana through a permitting system.⁴ See La. R.S. § 49:214.30. The CZM Laws prohibit anyone from engaging in a “use” without first applying for and receiving a coastal use permit. A “use” is any activity within the Coastal Zone which has a direct and significant impact on coastal waters. La. R.S. § 49:214.23(13). The CZM Laws further divide “uses” within the Coastal Zone into uses of state concern and uses of local concern. La. R.S. § 49:214.25(A). The State issues permits relating to “uses of state concern” in the Coastal Zone, and local governments with “approved programs” issue permits for “uses of local concern.”

Generally, the Parish alleges that certain of Defendants' oil and gas exploration, production, and transportation operations associated with the development of the Coquille Bay, Delta Duck Club, Grand Bay, Main Pass Block 47, Main Pass Block 69, Raphael Pass, and Romere Pass Oil & Gas Fields in Plaquemines Parish were conducted in violation of the CZM Laws, and that these activities caused substantial damage to land and waterbodies located in the Coastal Zone within Plaquemines Parish. (Petition ¶ 3). The term “Operational Area” is used throughout the Petition to describe the geographic extent of the area within which the complained-of operations and activities at issue in this action occurred. (Id. ). The Operational Area for this action comprises the geographic regions identified on the maps contained in Exhibit B to the Petition.⁵

The Parish seeks all damages and remedies appropriate under the CZM Laws, including but not limited to, restoration and remediation costs; actual restoration of disturbed areas to their original condition; costs necessary to clear, revegetate, detoxify and otherwise restore the affected portions of the Plaquemines Parish Coastal Zone as near as practicable to its original condition; declaratory relief; litigation costs and expenses and attorney's fees. (Petition ¶ 34). The Parish does not seek injunctive relief. (Id. ¶ 33(w)).

II. Procedural Background

This lawsuit was originally filed in state court in the Parish of Plaquemines. The Parish's well-pleaded complaint ostensibly seeks relief only under the CZM Laws. In fact, in paragraph 33 of the Petition the Parish disavows at great length any other type of claim, cause of action, or legal theory potentially cognizable on the facts alleged, including any that could form the basis for jurisdiction in a federal court. Again, the parties are not completely diverse in citizenship.

Defendants nonetheless removed the action to this Court alleging four bases for original jurisdiction in federal court: 1) diversity jurisdiction; 2) Outer Continental Shelf Lands Act; 3) general maritime law; 4) federal question (federal enclave).⁶

The Parish now moves to remand the case to state court.

III. Removal—General Governing Principles

A defendant's right to remove is strictly statutory in nature. See Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir.1995) ; Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 62 L.Ed. 713 (1918) ) (“The right of removal is entirely a creature of statute.”). The general removal statute governing civil actions provides:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants....

28 U.S.C.A. § 1441(a) (emphasis added).

Per § 1441(a), a defendant may remove a state court action to federal court only if the action could have originally been filed in federal court. Aaron v. Nat'l Union Fire Ins. Co., 876 F.2d 1157, 1160 (5th Cir.1989) (citing Caterpillar v. Williams, 482 U.S. 386, 391–92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ; 28 U.S.C. § 1441 ). Thus, the propriety of removal is keyed to the original jurisdiction of the federal district courts, Carpenter, 44 F.3d at 366, and consideration of a motion to remand a case removed from state court presents issues of subject matter jurisdiction and statutory construction, id. at 365 (citing Garrett v. Commonwealth Mortg. Corp. of Am., 938 F.2d 591, 593 (5th Cir.1991) ).

The burden of establishing subject matter jurisdiction in federal court rests with the party seeking to invoke it. St. Paul Reinsur. Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998) (citing Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253–54 (5th Cir.1961) ). Consequently, in a removed case the removing defendant bears the burden of establishing that federal jurisdiction exists. DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995) (citing Gaitor v. Penn. & Occid. S.S. Co., 287 F.2d 252, 253–54 (5th Cir.1961) ). Because federal courts are courts of limited jurisdiction by origin and design, the presumption is that a federal court is without jurisdiction unless “the contrary appears affirmatively from the record.” Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir.1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225, 7 S.Ct. 552, 30 L.Ed. 623 (1887) ).

The statutory and constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining federal courts from acting at certain times. Steel Co. v. Citizens for a Better Envir., 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) ; Schlesinger v. Reserv. Comm. to Stop the War,

418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) ). “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which (a federal) statute has defined.” Victory Carriers, Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934) ). Because the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns. Carpenter, 44 F.3d at 365–66 (citing ...