Parish of Plaquemines v. June Energy, Inc. et al

Filing 34

ORDER & REASONS that Plaintiff's 16 Motion to Remand to State Court is GRANTED. Signed by Judge Eldon E. Fallon on 5/26/15. (Attachments: # 1 Remand Letter) (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PLAQUEMINES PARISH

CIVIL ACTION

VERSUS

NO. 13-6712

JUNE ENERGY, INC. ET AL.

SECTION "L"

ORDER & REASONS
Before the Court are motions to remand filed by Plaintiff Plaquemines Parish in three
separate cases (No. 13-6709 Rec. Doc. 19; No. 13-6712 Rec. Doc. 16; 13-6732 Rec. Doc. 19).
As the arguments in these motions are almost identical, the Court will dispose of these motions
in one Order & Reasons and highlight any material distinctions. Thus, having read the parties’
briefs, reviewed the applicable law, and heard oral argument, the Court now issues this Order &
Reasons.
I.

BACKGROUND
The Parish of Plaquemines ("the Parish") filed suit on its own behalf and on behalf of the

State of Louisiana against many different defendants. 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. 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. 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. The
Operational Area for this action comprises the geographic regions identified on the maps
contained in Exhibit B to the Petition.
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
attorneys’ fees.

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II.

PROCEDURAL BACKGROUND
The Parish originally filed these three actions, and a number of others, in state court. The

Parish's well-pleaded complaint sought relief only under the CZM Laws, disavowing
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.
Defendants nonetheless removed all these actions to the Eastern District of Louisiana
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).
Once in federal court, the cases were never consolidated and were spread out among the district
judges. These cases totaled twenty-eight separate actions.
The Parish moved to remand the cases, and the Judges all stayed proceedings while Judge
Zainey, who had the lowest numbered docketed case, Plaquemines Parish v. Total et al., 136693, ruled on the motion to remand. On December 1, 2014, Judge Zainey granted remand,
finding no basis for federal jurisdiction. In the three cases before this Section of the Court, the
parties jointly moved for a status conference to address a briefing schedule regarding remand.
The parties noted that they intended to offer several case-specific expert materials in connection
with certain arguments, and to address Judge Zainey’s ruling in Total. The Court issued a
briefing schedule and picked a date to hear oral argument on the motions.
Prior to oral argument, Judge Africk and Judge Lemelle both granted the motions to
remand in their respective cases, bringing the total number of Parish cases remanded to state
court to ten (10). Judge Africk followed Judge Zainey’s reasoning in Total when he remanded
Plaquemines Parish v. Rozel Operating Company, et al,. along with two other cases, back to
state court. Judge Lemelle followed suit, incorporating both opinions when he remanded

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Jefferson parish v. Anadarok E&P Onshore LLC, et al. and three other cases back to state court.
Since oral argument, Judge Feldman, Judge Barbier, and Judge Morgan all remanded their
respective cases. As noted by Judge Africk, the Court recognizes the following:
The Court again notes that it does not write on a blank canvas with
these issues. The Court is persuaded by the thoughtful reasoning
in Total, and sees little benefit in rehashing arguments that have
been thoroughly aired and addressed. Accordingly, the Court will
address the parties’ arguments only to the extent that they raise
arguments not briefed in that case.

Plaquemines Parish v. Rozel Operating Company, et al., CIV. A. No. 13-6722, 2015 WL
403791, at * 2 (E.D. La. Jan. 29, 2015). With this in mind, the Court turns to the three motions
before it.
III.

LAW AND ANALYSIS
The removing party bears the burden of establishing jurisdiction. Howery v. Allstate Ins.

Co., 243 F.3d 912, 916 (5th Cir. 2001). Removal jurisdiction “raises significant federalism
concerns” and is strictly construed. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).
Doubts regarding jurisdiction should be resolved against exercising jurisdiction. Acuna v. Brown
& Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
Plaintiffs’ claims against the Defendants allege violations of CZM laws. By way of
background, “coastal states own the land in their ‘territorial sea,’ which includes ‘all lands
permanently or periodically covered by tidal waters…seaward to a line three geographical miles
distant form the coast line of each state.’” Ann E. Carlon, Andrew Mayer, Reverse Preemption,
40 Ecology L.Q. 583, 600 (2013). The land beyond the states’ territorial sea constitutes the outer
continental shelf “OCS,” and the federal government owns that land.

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Defendants put forth three bases for removal jurisdiction: (1) OCSLA jurisdiction
pursuant to 43 U.S.C. § 1349(b)(1); (2) diversity jurisdiction pursuant to 28 U.S.C. § 1332; (3)
and general maritime jurisdiction pursuant to 28 U.S.C. § 1333. During oral argument, Defense
counsel’s argument largely focused on the Court’s OCSLA jurisdiction and urged that the
Defendants had not put forth the same OCSLA argument for the other Judges. The Court will
therefore address that argument in greater detail.
A. OCSLA Jurisdiction
Defendants argue that this Court has federal question jurisdiction pursuant to the Outer
Continental Shelf Lands Act or OCSLA. During oral argument, the Defendants averred that the
central question is whether this suit for damages to the Parish’s land, based on the construction
and maintenance of an OCS pipeline, triggers OCSLA jurisdiction. Defendants affirmatively
concluded that it does as OCSLA jurisdiction does not require the injury-inducing activity or the
injury to be on the OCS. As in their prior arguments, Defendants emphasized that Congress
intended federal courts to decide disputes that threaten the recovery of minerals on the OCS, and
this suit falls squarely within this policy. In their presentation, Defendants showed the permits
and corresponding pipelines at issue in these three cases, emphasizing how the permits
themselves referenced the OCS and the pipelines serve as “integral components” to operations
on the OCS. These alleged permit violations, Defendants claimed, stem from pipelines that carry
minerals from the OCS to shore and therefore trigger OCSLA jurisdiction. Defendants noted
that Judge Zainey, Judge Affrick, and Judge Lemelle had not seen this evidence when they
issued their rulings.
Plaintiffs re-urged the Total, Rozel, and Anadarko rulings and emphasized that the
disputed activity and injury did not occur on the OCS but within the confines of the Coastal Zone

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in Plaquemines Parish. Plaintiffs argued that while the permits may list “OCS,”, the activities
are wholly within the Coastal Zone because Louisiana does not have the authority to issue
permits that regulate the OCS. Finally, Plaintiffs claimed that Defendants’ logic would compel
OCSLA jurisdiction over a claim related to a pipeline in New York merely because it is
connected to an OCS pipeline.
The pertinent section of OCSLA provides that “the district courts of the United States
shall have jurisdiction of cases and controversies arising out of, or in connection with . . . any
operation conducted on the outer Continental Shelf which involves exploration, development, or
production of the minerals, of the subsoil and seabed of the outer Continental Shelf . . .” 43
U.S.C. § 1349. “The Fifth Circuit has interpreted this language as straightforward and broad.”
In re DEEPWATER HORIZON, 745 F.3d 157 (5th Cir. 2014). A plaintiff does not need to
expressly invoke OCSLA in order for it to apply. Id. at 163.
The Fifth Circuit has recently explained that “[c]ourts typically assess jurisdiction under
this provision in terms of whether (1) the activities that caused the injury constituted an
‘operation’ ‘conducted on the outer Continental Shelf’ that involved the exploration and
production of minerals, and (2) the case ‘arises out of, or in connection with’ the operation.” Id.
See also In re Oil Spill Rig Deepwater Horizon in Gulf of Mexico, 747 F.Supp. 2d 704, 708 (E.D.
La. 2010). In order to determine whether a case “arises out of, or in connection with” the
operation, the Fifth Circuit applies a “but-for” test, “i.e., but for the operation, would the case or
controversy have arisen.” In re Oil Spill Rig Deepwater Horizon in Gulf of Mexico, 747
F.Supp.2d at 708; see also Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013)
(“To determine whether a cause of action arises under OCSLA, the Fifth Circuit applies a but-for
test, asking whether: (1) the facts underlying the complaint occurred on the proper situs; (2) the

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plaintiff’s employment furthered mineral development on the OCS; and (3) the plaintiff’s injury
would not have occurred but for his employment.”).
While this Court recognizes that Defendants have presented this Court with a slightly
different OCSLA jurisdictional argument, the Court nevertheless reaches the same conclusion as
the other Judges. The Court is not persuaded by Defendants’ argument that the permits compel
OCSLA jurisdiction because the permits reference the OCS and regulate a pipeline network
connected to the OCS network. Rather, precedent demands that there must be an “operation on
the Outer Continental Shelf” to satisfy the first element of OCSLA jurisdiction, and there is no
such operation here. While Plaintiffs’ Petition alleges permit violations of pipes that originate on
the OCS and carry minerals from the OCS, the mere connection to the OCS and carrying of
minerals does not constitute an operation on the OCS. Rather, the alleged permit violations are
wholly within the Louisiana’s Coastal Zone.
Such a finding would contravene prior Fifth Circuit precedent, which has consistently
held that the operation must occur on the OCS when a cause of action alleges a physical act. The
Defendants seek to take refuge in Ronquille v. Aninoil Inc., but such reliance is misplaced. In
that case, the court found OCSLA jurisdiction over Plaintiff’s claims for damages from alleged
exposure to asbestos at an onshore facility. No. 14-164, 2015 WL 4387337 (E.D. La. Sept. 4,
2014) (Engelhardt, J.). The court found OCSLA jurisdiction because the plaintiff alleged that he
had been exposed to asbestos through his work, which “included the unloading and loading of
barges, other boats, and trucks that transported equipment and pipe from OCS platforms.” Id. at
*2. This, the court determined, constituted direct support for OCS rigs and thus provided a
“sufficient connection to the operations on the OCS.” Id. But this finding goes to the second
element of OCSLA jurisdiction: there was never a question as to whether the facts satisfied the

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operational element. This differs from the instant case where, as noted in the other Judges’
opinions, Defendants are unable to satisfy the first element and demonstrate that the injuryinducing activity constituted an operation on the OCS.
Indeed, Ronquille is in line with other Fifth Circuit precedent where the court found
OCSLA jurisdiction when an OCS worker suffered an injury off of an OCS fixed platform. See
Hufnagel v. Omega Serv. Indus. Inc., 182 F.3d 340 (5th Cir. 1999) (determining OCSLA
jurisdiction when a platform worker was housed on an adjoining vessel and injured while
working on the platform and performing certain maintenance or repair operations); Recar v.
CNG Producing Co., 853 F.2d 367 (5th Cir. 1988) (holding OCLSA applicable to a personal
injury suit brought by platform worker when a rope from which he was swinging broke and
caused him to fall onto an adjacent vessel); Barger v. Petroleum Helicopters, Inc., 692 F.2d 337
(5th Cir. 1982) (applying OCSLA when a helicopter pilot crashed on the OCS while ferrying
employees to production platforms). Like Ronquille, the Fifth Circuit in these cases focused its
analysis on the second OCSLA element, the “but for” test, as all of the injuries stemmed from
fixed platforms on the OCS and therefore clearly satisfied the first OCSLA element. Here,
Defendants do not reach the second element because the complained-of activities occurred
within the Coastal Zone and not on the OCS.
In sum, Defendants’ argument that the permits invoke OCSLA jurisdiction because the
regulated pipeline connects to the OCS is without merit. To subscribe to the argument that
OCSLA jurisdiction is triggered by any claim concerning a pipe that transports minerals
originating from the OCS would open the floodgates to cases that could invoke OCSLA
jurisdiction far beyond its intended purpose. For instance, a claim seeking redress for an injury
caused by a pipeline in New York would trigger OCSLA jurisdiction because the New York

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pipeline transports minerals that originated on the OCS and is connected to an OCS pipeline.
Such a result would be absurd. It is therefore evident that this Court cannot exercise federal
jurisdiction over these claims pursuant to OCSLA.
B. General Maritime Jurisdiction and Diversity Jurisdiction
Regarding Defendants’ other two bases for federal jurisdiction, general maritime
jurisdiction and diversity jurisdiction, the Court finds persuasive the holdings and reasoning set
forth in Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc., No. 13–6693, 2014
WL 6750649 (E.D. La. Dec. 1, 2014) (Zainey, J); Plaquemines Parish v. Rozel Operating Co.,
No. 13–6722, 2015 WL 403791 (E.D. La. Jan. 29, 2015) (Africk, J.); Jefferson Parish v.
Anadarko E & P Onshore LLC, No. 13–6701 (E.D.La. Mar. 9, 2015) (Lemelle, J.); and
Plaquemines Parish v. Hilcorp Energy Co., 13–6727, 2015 WL 1954640 (E.D. La. Apr. 29,
2015) (Feldman, J.); Plaquemines Parish v. Devon Energy Prod. Co., LP, No. 13-6716, 2015
WL 2229275 (E.D. La. May 12, 2015) (Barbier, J); Plaquemines Parish v. Linder Oil Co., No.
13-6706, 2015 WL 2354183 (E.D. La. May 15, 2015) (Morgan, J). The Court would also like to
stress that it has already spoken and rejected the argument that 28 U.S.C. § 1441, as amended,
effectively nullifies the savings-to-suitors clause and no longer requires a non-admiralty source
of jurisdiction to remove a general maritime case. See Henry J. Ellender Heirs, LLC v. Exxon
Mobil Corp., 42 F. Supp. 3d 812, 819-20 (E.D. La. 2014). As noted by the Total court, “while
other district courts have been persuaded to recognize a change in the law, every other judge in
this district to consider the issue has rejected it.” 2014 WL 6750649 at *20. See also Robert
Force, Understanding the Nonremovability of Maritime Cases: Lessons Learned from “Original
Intent”, 89 Tul. L. Rev. 1019, 1027-28 (2015) (“The conclusion [that 28 U.S.C. 1441, as
amended, allows removal based on admiralty jurisdiction alone] is unwarranted given the history

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and wording of the saving to suitors clause because the nonremovability of maritime claims
historically has not been based on the removal statute—it has been based on the savings to
suitors clause.”). The Court is therefore not inclined to change its position on the issue and is not
persuaded by Defendants’ jurisdictional argument based on general maritime law.
IV.

CONCLUSION
For the aforementioned reasons, IT IS ORDERED that Plaintiff’s Motion to Remand

(Rec. Doc. 16) is GRANTED.

New Orleans, Louisiana this 26th day of May, 2015.
_________________________________
UNITED STATES DISTRICT JUDGE

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