Dinvaut v. Cambridge Energy Corporation et al

Filing 23

ORDER AND REASONS granting 11 MOTION to Remand to State Court; This case is REMANDED to Division A of the 40th Judicial District Court for the Parish of St. John the Baptist. Signed by Judge Lance M Africk on 8/15/2017. (Attachments: # 1 Remand Letter)(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIDGET DINVAUT

CIVIL ACTION

VERSUS

No. 17-5630

CAMBRIDGE ENERGY CORP. ET AL.

SECTION I

ORDER AND REASONS
One could reasonably assume that, after hundreds of volumes of the United
States Reports and thousands of volumes of the Federal Reporter and the Federal
Supplement, the federal courts would always know what a federal case is. But that
is not true.
To be sure, the determination is easy in the vast majority of cases. As a general
matter, “[a] suit arises under the law that creates the cause of action.” Am. Well
Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). So a case brought
pursuant to a federal cause of action is almost always a federal case. The converse is
also true: a case brought pursuant to a state cause of action is almost always not a
federal case.
Almost always, but not always always. A formally federal cause of action may
not be a federal case when it has an “overwhelming predominance of state-law
issues.” Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 814 n.12 (1986); see,
e.g., Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900). And some formally state
law causes of action can nonetheless be federal cases when they necessarily implicate
substantial issues of federal law. See, e.g., Smith v. Kansas City Title & Trust Co.,
255 U.S. 180 (1921).

Given the inherent vagueness in both inquiries, the federal courts have been
unable “to frame a single, precise definition for determining which cases fall within,
and which cases fall outside, the original jurisdiction of the district courts.” Franchise
Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8 (1983).
As a result, district court judges have instead been told to apply their “commonsense . . . judgment” to the “kaleidoscop[e]” of cases that appear on their dockets.
Gully v. First Nat’l Bank, 299 U.S. 108, 117 (1936) (Cardozo, J.). That kaleidoscope
of cases has fittingly resulted in a body of case law that looks like a canvas “that
Jackson Pollock got to first.” Gunn v. Minton, 568 U.S. 251, 258 (2013).
The pending motion to remand, see R. Doc. No. 11, asks this Court to determine
whether formally state law claims constitute a federal case within this Court’s
jurisdiction. The Court concludes that the answer to that question is no.
I.
This case is one of many where the State of Louisiana and local parishes are
attempting to determine the oil industry’s responsibility for the deteriorating
condition of Louisiana’s wetlands.
A.
Louisiana’s State and Local Coastal Resources Management Act of 1978
manages Louisiana’s coastal zone through a permitting scheme. Under the Act, any
party seeking to “use” the coastal zone needs to apply for a coastal use permit. See
La. R.S. 49:214.30(A)(1). A party “uses” the coastal zone when it engages in any
activity which “has a direct and significant impact on coastal waters.” La. R.S.

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49:214.23(13). The state issues permits that relate to uses of state concern; local
governments with approved programs issue permits for uses of local concern. See La.
R.S. 49:214.25.
Plaintiff Bridget Dinvaut is the district attorney for St. John the Baptist
Parish. The Act empowers Dinvaut, as the district attorney, to bring an enforcement
action for unpermitted uses of the coastal zone. See La. R.S. 49:214.36(D). Dinvaut
brings suit against a number of companies and individuals involved in oil exploration
and extraction in St. John Parish. The suit alleges that defendants violated the Act
and its implementing regulations by engaging in unpermitted uses of the coastal
zone. Dinvaut asks for damages for past violations of the Act as well as either (1) a
monetary award to pay for the restoration of the coastal zone or (2) a court order that
the defendants restore the coastal zone. See St. Ct. Pet. ¶ 37(a)-(c).
Dinvaut’s petition is also notable for what it disclaims. The petition disclaims
any claim arising under federal law and/or federal regulations, and further clarifies
that Dinvaut raises no claim that the defendants violated a federal permit or failed
to obtain a federal permit. See St. Ct. Pet. ¶ 32.
B.
Notwithstanding Dinvaut’s seeming waiver of every federal cause of action—a
waiver that will bind Dinvaut through this litigation, see, e.g., Wilde v. Huntington
Ingalls, Inc., 616 F. App’x 710, 715 & n.28 (5th Cir. 2015)—defendants believe that
this case arises under federal law. So they removed the case to this Court. See 28
U.S.C. § 1441(a). They offer two theories of how this is a federal case:

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•

Remedies-based jurisdiction: Defendants argue that the St. John the Baptist
Parish coastal zone is governed by an extensive array of federal laws and
regulations, and that Dinvaut’s requested remedy—restoration of the coastal
zone, to the extent feasible and practical—will near-inevitably require some
federal permitting from the Army Corps of Engineers.

•

Activities-based jurisdiction: Defendants argue that Dinvaut seeks to impose
liabilities for activities that were governed by federal permits, and that federal
law must be applied to determine whether a federal permit has been violated.

Dinvaut unsurprisingly disagrees and moves to remand the case on the ground that
this Court lacks jurisdiction over her state law claims.
II.
A.
28 U.S.C. § 1331 grants this Court original jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.” Meanwhile,
the Constitution extends the judicial power to “all Cases . . . arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority.” U.S. Const. art. III, § 2, cl. 1.
Notwithstanding the similar language in both provisions, “Article III ‘arising
under’ jurisdiction is broader than federal question jurisdiction under § 1331.”
Verlinden B.V. v. Central Bank of Nig., 461 U.S. 480, 495 (1983). Section 1331 only
permits courts to exercise jurisdiction when the federal question is apparent on the
face of a well-pleaded complaint. See, e.g., Louisville & Nashville R. Co. v. Mottley,

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211 U.S. 149 (1908). Article III, by contrast, permits the theoretical expansion of the
federal judicial power to any case where there is a federal “ingredient” in the matter—
regardless of whether the federal issue is contested or actually litigated. See Osborn
v. Bank of the U.S., 22 U.S. (9 Wheat) 738, 823-25 (1824); see also 13D Wright and
Miller, Federal Practice & Procedure § 3562, at 178-80 (3d ed. 2008). The difference
between the two provisions is why, for example, Congress can permit removal based
on certain federal defenses, see, e.g., 28 U.S.C. § 1442(a) (federal officer removal
statute), notwithstanding the general rule that federal defenses do not give rise to
jurisdiction under Section 1331’s well-pleaded complaint rule, see Gully, 299 U.S. at
113.
This case concerns only this Court’s power under Section 1331. That means
the defendants have to show that a federal question exists on the face of Dinvaut’s
complaint, “unaided by anything alleged in anticipation or avoidance of defenses
which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74,
75-76 (1914); see also Franchise Tax Bd., 463 U.S. at 9-13.
Dinvaut’s cause of action is based on Louisiana’s State and Local Coastal
Resources Management Act. So defendants cannot establish that Dinvaut’s claims
are federal claims under the American Well Works test. See 241 U.S. at 260. Instead,
defendants have to rely on a far narrower category of federal cases: cases that, while
formally based on state-law claims, necessarily turn on a substantial question of
federal law. See Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545
U.S. 308, 312 (2005).

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To establish that Dinvaut’s formally state law claims arise out of federal law,
defendants must show “more than a federal element to open the ‘arising under’ door.”
Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701 (2006). Instead,
they must demonstrate a federal issue that “is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258.
B.
Neither of defendants’ proposed federal issues qualifies as substantial federal
questions under Grable.
1.
Defendants first claim that Dinvaut’s request that the state court order
restoration of the coastal zone, to the extent feasible and practical, involves a
substantial federal question given the wide array of federal laws and regulations
governing the use of the coastal zone as well as the likely need to obtain some federal
permits to complete some of the restoration work. Defendants base their argument
on Board of Commissioners of Southeast Louisiana Flood Protection Authority v.
Tennessee Gas Pipeline Co., in which the Fifth Circuit held that state law claims in
another coastal zone lawsuit were removable under Grable. See 850 F.3d 714 (5th
Cir. 2017).
Tennessee Gas is not controlling, however. Federal jurisdiction in Tennessee
Gas arose because the plaintiff’s negligence and nuisance claims could not “be
resolved without a determination whether multiple federal statutes create a duty of

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care that does not otherwise exist under state law.” 850 F.3d at 723. Here, by
contrast, Dinvaut’s cause of action is based entirely on the State and Local Coastal
Resources Management Act, as well as the Act’s implementing regulations. So even
defendants concede—as they must—that they are pursing a “different theory of
federal jurisdiction” than the one approved by the Tennessee Gas court. R. Doc. No.
16, at 26.
The differences between this matter and Tennessee Gas are determinative.
Even assuming that the need to obtain federal approval for portions of the remedy
constitutes a federal issue, defendants neither demonstrate an actual dispute
regarding any particular question of federal law nor that those disputes would be
substantial.
Defendants are woefully non-specific as to the precise disputed issue of federal
law between the parties.

Simply asserting that the subject matter of the suit

implicates a federal regulatory scheme is insufficient to establish a relevant dispute
of federal law. See St. Bernard Parish v. Atl. Richfield Co., No. 16-16294, 2017 WL
2875723, at *2 (E.D. La. 2017) (explaining that “such nebulous allegations fail[] to
satisfy the standard for federal question jurisdiction”). After all, were it otherwise,
nearly every case would be a federal case given how thoroughly modern life is
regulated by the federal government.
Further, even if the defendants could establish an actual dispute of federal law
between the parties, defendants do not establish that the dispute is substantial. To
judge whether a dispute is substantial, this Court considers a host of issues including:

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whether resolution of the issue in state court would undermine the development of a
uniform body of federal law, whether the federal issue is a pure issue of law that
would have application to other cases, and whether resolution of the issue has broad
significance to the federal government. See Tenn. Gas, 815 F.3d at 724; see also Gunn,
568 U.S. at 260-64; Empire Heathchoice, 547 U.S. at 699-701.
This case does not qualify. In particular, the state court remedy—whether it
be damages or a court order to engage in some sort of coastal zone restoration—will
not obviate the need to apply for and obtain the relevant permits from the relevant
agencies. And to the extent that either the EPA or the Corps concludes that any
restoration effort does not comply with federal law, then both entities will be free to
pursue the very same federal remedies—backed by the power of the Supremacy
Clause—that they would in any other case. So the federal regulatory scheme is safe
regardless of whether the instant case is heard in state or federal court. Therefore
Dinvaut’s requested remedy cannot give rise to federal jurisdiction under Grable.
2.
Defendants also argue that this case presents a removable federal question
insofar as Dinvaut seeks to impose liability for activities conducted pursuant to a
federal permit. However, defendants do not establish that the state court will have
to consider—in any way—whether a federal permit has been violated to determine
whether there has been a violation of the State and Local Coastal Resources
Management Act.

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First, defendants suggest that insofar as the petition discusses events before
the enactment of the State and Local Coastal Resources Management Act, Dinvaut’s
cause of action must be based on something other than the Act. However, defendants
misconstrue the petition. Actions taken before the Act went into force are relevant
to whether a particular use is grandfathered into the Act’s regulatory scheme. See
La. R.S. 49:214.34(C)(2) (“Individual specific uses legally commenced or established
prior to the effective date of the coastal use permit program shall not require a coastal
use permit.”). So the mere fact that the petition discusses events prior to the Act’s
effective date does not establish that the state court will need to consider any question
of federal law when determining defendants’ potential liability under the Act.
Instead, all it establishes is that Dinvaut intends to show that defendants’ activities
before the Act did not comply with various Louisiana laws and regulations concerning
oil exploration in effect before the Act came into force, and therefore such activities
cannot be grandfathered in under the Act.
Second, defendants suggests that certain cross-references to federal permits in
the state permit files at issue indicate that federal standards must govern defendants’
liability under the Act. But Judge Barbier has already considered and rejected this
argument, see Atl. Richfield Co., 2017 WL 2875723, at *3-5 (“Whether [Louisiana’s
laws] have been violated can be determined without referring to any federal
standards. . . . There is no federal question involved in this case.”), and this Court
sees no reason to reach a different result.

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*

*

*

Defendants have not demonstrated a federal issue on the face of the petition
that would support removal. Therefore, this case will be remanded, though the
uncertainty of this entire exercise—as well as the accompanying time and expense—
cannot help but prompt the question of whether the federal courts would be better off
with a jurisdictional test that looks more like a Rothko and less like a Pollock. See
Grable, 545 U.S. at 321 (Thomas, J., concurring) (“Jurisdictional rules should be
clear.”).
IV.
Accordingly,
IT IS ORDERED that the motion to remand is GRANTED. This case is
REMANDED to Division A of the 40th Judicial District Court for the Parish of St.
John the Baptist.
New Orleans, Louisiana, August 15, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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