Plaquemines Parish, et al v. Goodrich Petroleum Company, LLC, et al

Filing 79

ORDER AND REASONS granting 72 Motion to Remand to State Court. The matter is remanded to the state court from which it was removed, as set forth herein. Signed by Judge Jay C. Zainey on 02/14/2023. (ko) (Additional attachment(s) added on 2/15/2023: # 1 Remand Letter) (ko).

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE PARISH OF PLAQUEMINES

CIVIL ACTION

VERSUS

NO: 18-5238

GOODRICH PETROLEUM CO., LLC,
ET AL.

SECTION: "A" (4)

ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 72) 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
should be GRANTED.
I.

Background

This case is one of thirty cases filed in state court against numerous oil
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

1

The Removing Defendants in this action are identified as Chevron U.S.A., Inc.,
ConocoPhillips Co., and Shell Oil Co. (Rec. Doc. 74, Opposition at 1).
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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 the
permitting system.
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 jurisdiction. Of those 2013 cases, the judges of this district
designated Plaquemines Parish v. Total Petrochemical & Refining USA, Inc., et al., 13cv-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.
Following remand the cases progressed in state court until May 2018 when the
defendants re-removed the cases on grounds of federal officer jurisdiction and federal
question jurisdiction.2 Although the SLCRMA did not go into effect until 1980, the

2

Federal officer removal was a new theory supporting removal but federal question
jurisdiction had been raised in the 2013 removals and rejected. As a general rule, once a
case is remanded to state court, a defendant is precluded only from seeking a second
removal on the same ground. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir.
1996). The prohibition against removal “on the same ground” does not concern the theory
on which federal jurisdiction exists, i.e., federal question or diversity jurisdiction, but rather
the pleading or event that made the case removable. Id. (citing O'Bryan v. Chandler, 496
F.2d 403, 410 (10th Cir. 1974)). Even though the Court rejected federal question jurisdiction
in 2014, the Removing Defendants identified a new basis for federal question jurisdiction
when they re-removed the cases in 2018. That new basis has now been firmly rejected by
the Fifth Circuit.
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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 World
War II-era activities opened up a new avenue for removal.
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. A
similar approach was adopted in the Western District of Louisiana because several
SLCRMA cases had been removed in that district. The lead case chosen in the Western
District of Louisiana was Cameron Parish v. Auster Oil & Gas, Inc., 18-cv-0677
(“Auster”).3 The cases in this Court 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 removed
SLCRMA cases would be beneficial because the cases had common issues. (CA 185238—Rec. Doc. 54, Defendants’ Opposition to Plaintiffs’ Motion to Re-Open Case).
On May 28, 2019 Judge Feldman issued a comprehensive Order and Reasons in
Most of the cases had been stayed previously at the defendants’ behest because the
defendants sought to have the Judicial Panel on Multidistrict Litigation coordinate
proceedings in the various SLCRMA cases. The Panel denied the request.
3

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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 (E. D. La. 5/28/2019). 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.4
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 replaced it with one reversing on timeliness grounds,
but affirming on the finding that no federal question jurisdiction existed to support
subject matter jurisdiction. 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.5 The Fifth Circuit remanded the

4

Judge Robert R. Summerhays, who presided over Auster, had concluded that the removal
was timely but that neither federal question jurisdiction nor federal officer removal
jurisdiction applied. Parish of Cameron v. Auster Oil & Gas Inc., 420 F. Supp. 3d 532 (W.D.
La. 2019).
5

As described by Judge Feldman, in Latiolais the Fifth Circuit “overhauled its federal-officer
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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.6 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”).
Thus, the Fifth Circuit has now finally resolved the jurisdictional issues in
Riverwood.7 The Fifth Circuit has held that the removing defendants in Riverwood did
not meet the “acting under” requirement for federal officer removal jurisdiction, and that
their theories in support of that requirement lack merit.

jurisdictional test” by eschewing the “causal nexus” element of the test in favor of a new
standard that encompassed a “broader and elusive” “related to” element. Parish of
Plaquemines v. Riverwood Prod. Co., No 18-5217, 2022 WL 101401, at *3 (E.D. La. Jan.
11, 2022).
6

It is not surprising that Latiolais did not change the outcome in Riverwood because Judge
Feldman’s decision in Riverwood did not turn solely on the eschewed causal nexus element
of federal officer removal. Rather, Judge Feldman had also explained why the removing
defendants had not satisfied the “acting under” requirement for federal officer removal, and
that requirement had not been affected by Latiolais.
7

In Auster, Judge Summerhays concluded on remand that Latiolais did not change his
decision as to federal officer removal as well. Parish of Cameron v. Auster Oil & Gas, Inc.,
No. 18-cv-0677, 2022 WL 17852581 (W.D. La. Dec. 22, 2022). Judge Summerhays issued
his decision after the Fifth Circuit had already affirmed Judge Feldman in Plaquemines II.
Auster has been appealed but the appeal is in its infancy.
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And although the defendants in Riverwood have petitioned the United States
Supreme Court for a writ of certiorari on the issue of federal officer removal, the Fifth
Circuit denied the Riverwood defendants’ motion to stay issuance of the mandate
pending action by the Supreme Court. The Riverwood mandate issued on December
15, 2022, and Judge 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 has been returned to state
court notwithstanding the pending writ application, any suggestion that the Court should
defer ruling on the motions to remand in the other SLCRMA cases pending further
litigation in federal court is not persuasive.8
The Court now turns to the Motion to Remand filed in this action.
II.

Discussion

According to the plaintiffs, the relevant jurisdictional factual and legal issues
presented in the present case are indistinguishable from the Riverwood case. In fact, to
the extent that the facts of this case are distinguishable from Riverwood, the plaintiffs
posit that they present an even stronger case for denial of federal officer removal
jurisdiction because insofar as the Operational Area in this case is concerned, the
defendants did not conduct any oil and gas activities during World War II.9 After all, if

8

The Court notes that some other judges in this district have elected to keep their SLCRMA
cases stayed pending action by the Supreme Court. The Court has reviewed the petition for
certiorari filed in the Riverwood case. The Court is persuaded that even if both questions
presented in the petition were answered in the affirmative, it would not affect this case.
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
9

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federal officer jurisdiction was lacking in Riverwood which did involve wartime activities,
it certainly could not apply to a case like this one that did not involve wartime activities.10
The bulk of the defendants’ opposition to the motion to remand is devoted to
preserving for appeal their arguments in light of their pending writ application in
Riverwood. The balance of their opposition grasps on their Related Refinery Case
argument, that even if meritorious, is not implicated in this case. Even if the Related
Refinery Case argument had merit and rendered the ten cases implicated by that
argument removable (three of which are before this Court),11 removal jurisdiction in
those cases would not extend to this separate civil action. The Court is aware of no
aspect of federal jurisdiction (and the defendants point to none) that confers
removability for companion cases that lack their own basis for federal jurisdiction.
In sum, Riverwood forecloses removal in this case which involves neither WWI
era activities nor any defendant implicated by the Related Refinery Case argument. The
defendants point to nothing in the more than 4200 pages of exhibits accompanying their
opposition that suggests anything to the contrary. The defendants herein previously
argued that this case should remain closed pending the conclusion of Riverwood

issue in this action occurred.
The Court assumes the reader’s familiarity with the Plaquemines I and Plaquemines II
decisions, which explain in detail the Removing Defendants’ theory of federal officer
removal jurisdiction, which was grounded on oil production activities during World War II.
10

11

To be clear, the Court is not suggesting that the Related Refinery Case argument has
any merit whatsoever. The Court will consider the argument in more detail in conjunction
with the motions to remand filed in the three cases assigned to it wherein the removing
defendants contend that the issue is implicated; the issue is not implicated in this case.
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because that decision would provide the controlling legal framework for this case. (Rec.
Doc. 54, Defendants’ Opposition to Motion to Re-Open). They were correct and
assertions to the contrary following the unfavorable outcome in Plaquemines II are
simply not persuasive. The Motion to Remand is therefore granted.
Accordingly and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 72) 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 is GRANTED. This matter is REMANDED to the state
court from which it was removed.
February 14, 2023

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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