United States v. Buras

• Decision Date: 26 December 1972
• Docket Number: No. 31115.,31115.
• Citation: 475 F.2d 1370
• Parties: UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, and Chevron Oil Company et al., Additional Defendants-Appellants-Cross-Appellees, v. Leo BURAS, Jr., et al., Defendants (1-26)-Appellees-Cross-Appellants, v. Philibert BURAS et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

475 F.2d 1370 (1972)

UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, and Chevron Oil Company et al., Additional Defendants-Appellants-Cross-Appellees, v. Leo BURAS, Jr., et al., Defendants (1-26)-Appellees-Cross-Appellants, v. Philibert BURAS et al., Intervenors-Appellants.

No. 31115.

United States Court of Appeals, Fifth Circuit.

December 26, 1972.

Lawrence K. Benson, Charles D. Marshall, Wilson S. Shirley, Jr., Sidney C. Schoenberger, New Orleans, La., Luke A. Petrovich, Buras, La., Turner Hudson McBaine, Donald E. Peterson, San Francisco, Cal., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Shiro Kashiwa, Asst. Atty. Gen., Edmund D. Clark, John J. Cain, Attys., Dept. of Justice, Land Div., Washington, D. C., for appellants.

Phillip A. Wittmann, New Orleans, La., E. Drew McKinnis, Baton Rouge, La., S. W. Plauche, Jr., Lake Charles, La., John H. Tucker, Jr., Shreveport, La., for appellees.

Before TUTTLE, GEWIN and GOLDBERG, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion March 23, 1972, 5th Cir., 1972, 458 F.2d 346).

PER CURIAM:

The Petition for Rehearing and motion to file supplementary petition for rehearing are hereby denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for rehearing En Banc is also denied.

Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM,^* GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge (dissenting):

With all due deference to the conscientious and scholarly approach of the panel to the intricate analysis of Louisiana land law required by this decision, I respectfully dissent from the Court's denial of rehearing en banc.

I do not begin to offer even a faint whisper of a suggestion of possible criticism of the panel's decision on the merits of the competing claims. Indeed, it is that the merits are inescapably shrouded in ancient history, Louisiana practices in the administration of state land patent grants, and the intricacies of Louisiana law and procedure, that makes it imperative that these difficult questions be certified to the Supreme Court of Louisiana for a determination which will have both authoritativeness and finality. Since the panel acted without so much as mentioning either the strong showing for or the present statutory availability of such certification, the only way for this to be accomplished at this level is for us to grant rehearing en banc and then order such certification.

Although I avoid the merits as such, they are important in my approach. To reach its decision that certain patents granted by the State of Louisiana in 1898 to Octave Barrois were invalid under the then applicable Louisiana law, the panel had to first leap the purposefully erected hurdle of Albritton v. Shaw, 1921, 148 La. 427, 87 So. 32—a Louisiana Supreme Court opinion of long and unquestioned validity. To propel it over this formidable bulwark the panel had to reach a now severely attacked construction of a Louisiana evidentiary statute. Having surmounted the procedural obstacles in its course, the Court then had to proceed to explicate the now-ancient Louisiana land patent law and to delineate the scope of the Louisiana version of the cryptic doctrine of after-acquired title.

Given the complicated and unique nature of these substantive and procedural questions of Louisiana land law, the panel's decision could have been no more than a guess—albeit an educated one. I, for one, quickly concede my inability to accurately expound on the occult peculiarities of Louisiana land law, as witnessed by my self-confessing concurrence in the 1960 en banc opinion, Butler v. Bazemore, 5 Cir., 1962, 303 F.2d 188, overruling my earlier 1957 effort for the panel in Bazemore v. Whittington, 5 Cir., 1957, 245 F.2d 943.

Of course I recognize that under Article III we do have the duty to decide even the most abstruse matters—even in diversity cases where there is no readily available means to secure authoritative state decisions except in the really important rare cases.¹ But where there is a method and the case is vital to state interests, it is the part of judicial statesmanship² to exploit such procedures fully.

The true pith of this litigation concerns the legal allocation of one of Louisiana's most treasured natural resources —her gas and oil. The State of Louisiana, not just private litigants, has repeatedly sounded the state policy of exploiting and preserving her oil and gas reserves,³ and she continues to do so.⁴

But oil and gas in Louisiana (and the oil-rich, off-shore reserves) is important not only to Louisiana. It is important to the United States, as witnessed by this very case and the important earlier one, Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. With both protagonists being sovereigns of equal standing and asserting claims over these rich stakes on the basis of Louisiana domestic law, the demands of a healthy federalism make it more than ordinarily appropriate that the underlying questions of state law be resolved by the only Court which can give an authoritative⁵ answer—the Supreme Court of Louisiana. Indeed, the United States Supreme Court in the context of this struggle between sovereign giants has itself recognized the desirability of having Louisiana courts construe Louisiana law. Recognizing, as we must do here, that any federal construction of Louisiana law would be law only until an authoritative judgment by the Louisiana Supreme Court is rendered, the Court has expressed the following thoughts:

The answers to these questions of state law are or may be relevant. Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court.

Leiter Minerals, Inc. v. United States, supra, 352 U.S. at 229, 77 S.Ct. at 292, 1 L.Ed.2d at 267.

And, putting its words into action, the Supreme Court in Leiter required the federal court to stay its hand pending resolution of the State law via a separate proceeding to be brought in state court under the Louisiana declaratory judgment statute.⁶

Louisiana's claim to determine domestic legal principles bearing on the allocation and ownership of her oil and gas is no less a matter of great public policy than was the claim of the state of New Mexico to adjudicate cases and controversies involving her precious natural resource—water. See W. S. Ranch Co. v. Kaiser Steel Corporation, 10 Cir., 1967, 388 F.2d 257, 262-267 in which, as a dissenter on the petition for rehearing, I urged the Tenth Circuit, as I now do the Fifth, to give way to the courts of New Mexico. Following the reversal by the Supreme Court, 1968, 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835, the Supreme Court of New Mexico expressly rejected the Tenth Circuit's determination, 388 F. 2d 257, of the decisive question of local law. See Kaiser Steel Corporation v. W. S. Ranch Co., 1970, 81 N.M. 414, 467 P. 2d 986.

Fortunately for Louisiana, there is no longer a need to strain at parallel declaratory judgment proceedings as in Leiter or Kaiser Steel, supra. For Louisiana has recently adopted the now available, effective procedure which permits a federal appellate court to certify questions of state law to the Louisiana Supreme Court.⁷ Thus, the objective of an authoritative determination with finality can be attained with significantly reduced logistical problems.

In these times when comity and abstention have become the by-line for Federal Judges,⁸ it is unfortunate that the Fifth Circuit adopts this head-in-the-sand rejection of the State's effort to alleviate our Erie burden. Our wide experience with certification to the Florida Supreme Court has not only proved its utility in sparing this Court—and more importantly, the litigants—the risk of a wrong decision,⁹ but it has recently evoked a most favorable response from that tribunal. See National Education Association, Inc. v. Lee County Board of Public Construction, Fla. 1972, 260 So. 2d 206.

Believing that certification of the questions of state law in this case would foster the ends of federalism and contribute immeasurably to the correct interpretation of Louisiana law,¹⁰ I would grant rehearing en banc and certify the difficult questions of state law to the Louisiana Supreme Court.

I therefore dissent to the failure of the Court to grant rehearing en banc.

INGRAHAM, Circuit Judge, with whom CLARK, Circuit Judge, joins specially concurring:

While I am in agreement with the panel opinion in United States v. Buras, 458 F.2d 346 (5 Cir., 1972), believe that it correctly analyzes and interprets the law on the subject, and voted against en banc review, I am in accord with Chief Judge Brown's efforts to certify the questions of state law to the Louisiana Supreme Court if it is feasible to do so.

* Judge Wisdom did not participate in this cause.

1 Although as note 9, infra, reflects, we have frequently used the Florida certification procedure with great success, the device is reserved for important cases involving Florida public policy. Literally hundreds of run-of-the-mill Florida diversity cases have routinely been handled by panels of the Court.

Beleaguered as we are by an exponential docket increase, we have not allowed certification to become an escape or abdication.

2 In some ways, this same policy is reflected in our deference toward the views of the District Judge steeped as he is in local law, lore and legend. Judge Gewin recently recognized this:

Judge Borah was a former...