The Par. of Plaquemines v. Northcoast Oil Co.
| Decision Date | 18 April 2023 |
| Docket Number | Civil Action 18-5228 |
| Parties | THE PARISH OF PLAQUEMINES v. NORTHCOAST OIL CO., ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION "A" (2)
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc 62) filed jointly by the plaintiff, the Parish of Plaquemines, and the plaintiff-intervenors the State of Louisiana, through the Louisiana Department of Natural Resources, Office of Coastal Management, and its Secretary, Thomas F. Harris, and the State of Louisiana ex rel. Jeff Landry, Attorney General. The Removing Defendants oppose the motion.[1] The motion, submitted for consideration on February 1, 2023, is before the Court on the briefs without oral argument.
For the reasons that follow, the Court concludes that the Motion to Remand filed in this case should be GRANTED and this civil action REMANDED to state court.
This case is one of numerous cases filed in state court against a legion of oil and gas companies under a Louisiana state law called the State and Local Coastal Resources Management Act of 1978, La. R.S.' 49:214.21, et seq., (“SLCRMA”), along with the state and local regulations, guidelines, ordinances, and orders promulgated thereunder. The SLCRMA regulates certain "uses" within the Coastal Zone of Louisiana through a permitting system and provides a cause of action against defendants who violate a state-issued coastal use permit or fail to obtain a required coastal use permit. The several lawsuits pertain to the defendants' decades-long oil production activities on the Louisiana coast.
Each individual lawsuit challenges oil production activities occurring in a specifically defined area, the “Operational Area,” of the Louisiana coast. The term "Operational Area" is used throughout the plaintiffs' petition to describe the geographic extent of the area within which the complained-of operations and activities at issue in this action occurred. The Operational Area at issue in this case lies in West Bay Oil and Gas Field located in Plaquemines Parish.
Twenty-eight of the cases were filed by Plaquemines and Jefferson Parishes in 2013 and then removed to this Court on numerous grounds, including diversity, OCSLA, maritime and federal question jurisdiction. Of those 2013 cases, the judges of this district designated Plaquemines Parish v. Total Petrochemical & Refining USA, Inc., et al., 13-cv-6693, as the lead case. On December 1, 2014, this Court entered its Order and Reasons remanding the case to state court for lack of subject matter jurisdiction. Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc., 64 F.Supp.3d 872 (E.D. La. 2014). After that decision all of the other parish cases were eventually remanded by the judges presiding over them.
The cases then progressed in state court until May 2018 when the defendants re-removed the cases on grounds of federal officer removal and federal question jurisdiction.[2] Although the SLCRMA did not go into effect until 1980, the plaintiffs' allegations (as clarified by a preliminary expert report produced in 2018-the Rozel report) triggered the potential applicability of the statute's grandfathering provision, La. R.S. § 49:214.34(C)(2), which placed at issue pre-SLCRMA conduct, some of which occurred during World War II. The defendants were convinced that their World War II era activities presented a new opportunity for removal, i.e., federal officer removal.[3]Although all of the SLCRMA cases were re-removed in 2018, only a subset of them actually involved World War II era activities.
This time the judges of this district designated Plaquemines Parish v. Riverwood Production Co., Inc., et al., 18-cv-5217, assigned to the late Judge Martin L.C. Feldman, as the lead case (“Riverwood”). This Court (like the other judges of this district) stayed the six cases assigned to it (including this one) pending the decision in Riverwood.[4] A similar approach was adopted in the Western District of Louisiana because several SLCRMA cases had been removed in that district too. The lead case chosen in the Western District of Louisiana was Cameron Parish v. Auster Oil & Gas, Inc., 18-cv-0677 (“Auster”). The cases in this district remained stayed pending the outcomes in Riverwood and Auster, at times over the plaintiffs' strenuous objections, which included seeking mandamus relief. The defendants had persuasively argued, when opposing the plaintiffs' motions to re-open the cases, that allowing Riverwood to proceed to conclusion before taking up any of the other motions to remand in the SLCRMA cases would be beneficial because the cases had common issues.
On May 28, 2019, Judge Feldman issued a comprehensive Order and Reasons in Riverwood that explained his conclusion that the case should be remanded to state court. Judge Feldman was persuaded that the removal was untimely; and even if it was timely, the defendants had failed to establish that the requirements for federal officer removal jurisdiction were satisfied, or that the case involved any specific federal issue sufficient to support federal question jurisdiction. Parish of Plaquemines v. Riverwood Prod. Co., No. 18-5217, 2019 WL 2271118 (Feldman, J.). The defendants appealed Riverwood, and the Fifth Circuit consolidated it with the appeal in Auster, where the presiding judge had likewise granted the plaintiffs' motion to remand. Initially the Fifth Circuit affirmed Judge Feldman's decision based on timeliness grounds, mooting any other jurisdictional issues.[5] Parish of Plaquemines v. Chevron USA, Inc., 969 F.3d 502 (5th Cir. 2020) (withdrawn and superseded). Although en banc rehearing was denied, the panel granted rehearing, withdrew its earlier opinion, and superseded it with one reversing Riverwood on the issue of timeliness, but affirming Judge Feldman on the finding that no federal question jurisdiction existed to support removal on that basis.[6] Parish of Plaquemines v. Chevron USA, Inc., 7 F.4th 362 (5th Cir. 2021) (“Plaquemines I”).
As to the potential for federal officer removal jurisdiction, the Fifth Circuit reversed Judge Feldman, not because he had erred, but solely because the en banc court had decided Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020), after Judge Feldman had issued his decision in Riverwood.[7] The Fifth Circuit remanded the Riverwood case to Judge Feldman to determine, now with the benefit of Latiolais, whether federal officer jurisdiction applied. Plaquemines I, 7 F.4th at 365.
Unpersuaded that Latiolais changed the outcome, Judge Feldman issued his decision finding once again that the defendants were not entitled to remove the case under federal officer removal, that the case did not belong in federal court, and that the motion to remand should be granted.[8] Parish of Plaquemines v. Riverwood Prod. Co., No. 18-5217, 2022 WL 101401, at *3 (E.D. La. Jan. 11, 2022). The Fifth Circuit affirmed, Parish of Plaquemines v. Chevron USA, Inc., No. 22-30055, 2022 WL 9914869 (5th Cir. Oct. 17, 2022) (“Plaquemines II”), denied rehearing, denied rehearing en banc, and even denied the removing defendants' motion to stay issuance of the mandate while the defendants sought a writ of certiorari from the United States Supreme Court.
With no stay in place, the defendants in Riverwood filed their petition with the United States Supreme Court for review of the federal officer removal issue. The Fifth Circuit issued the Riverwood mandate on December 15, 2022, and Judge Sarah S. Vance, who was assigned the case following Judge Feldman's death, remanded the Riverwood action to state court. Given that the Fifth Circuit refused to issue a stay in Riverwood, and as a result Riverwood itself was returned to state court notwithstanding the pending writ application, the suggestion that the Court should delay ruling on the motions to remand in its own SLCRMA cases pending further litigation in federal court was not persuasive. (CA18-5238, Rec. Doc. 79, Order and Reasons at 6). Therefore, on February 15, 2023, this Court remanded to state court Civil Actions 18-5238, 18-5262, 18-5265, which did not involve any World War II era conduct upon which to argue in support of federal officer removal. The Court noted when remanding those cases that if federal officer jurisdiction was lacking in Riverwood which did involve wartime activities, it certainly could not apply to a case that did not involve wartime activities. (Rec. Doc. 79, Order and Reasons at 6-7). Further, those cases did not involve a party with a World War II era refinery contract, which became the basis for the new theory of federal officer removal at issue in this case. And with the potential for federal question jurisdiction now firmly foreclosed by Plaquemines I and Plaquemines II, the defendants in Civil Actions 18-5238, 18-5262, and 18-5265 had no non-frivolous arguments to make in support of removal in those cases.[9]
The issue of the pending writ application in Riverwood has become a moot point because on February 27, 2023, after all of the briefing was concluded in this case, the United States Supreme Court denied the Plaquemines II writ application. Chevron USA, Inc. v. Plaquemines Parish, No. 22-715, 2023 WL 2227757 (U.S. Feb. 27 2023). Thus, the Fifth Circuit's Plaquemines I and Plaquemines II decisions have now conclusively resolved the jurisdictional issues presented in Riverwood.[10] In short, Riverwood holds that the removal in 2018 was timely, federal question jurisdiction was not present, and none of the removing defendants' several theories for satisfying the “acting under” requirement for federal officer removal jurisdiction had merit, this latter issue being grounded on the...
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