Case: 19-30492 Document: 00515521520 Page: 1 Date Filed: 08/10/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 10, 2020
No. 19-30492 Lyle W. Cayce
Clerk
The Parish of Plaquemines,
Plaintiff—Appellee,
The State of Louisiana, ex rel, Jeffrey Martin Landry,
Attorney General; The State of Louisiana, through
the Louisiana Department of Natural Resources Office
of Coastal Management and its Secretary, Thomas F.
Harris,
Intervenors—Appellees,
versus
Chevron USA, Incorporated, As Successor in Interest
to Chevron Oil Company and The California Company;
Exxon Mobil Corporation, As Successor in Interest to
Exxon Corporation and Humble Oil and Refining
Company; ConocoPhillips Company, As Successor in
Interest to General American Oil Company of Texas,
Defendants—Appellants,
__________________________________________________
Consolidated with 19-30829
Parish of Cameron,
Plaintiff—Appellee,
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State of Louisiana, ex rel, Jeff Landry; State of
Louisiana, on behalf of Louisiana Department of
Natural Resources, on behalf of Office of Coastal
Management, on behalf of Thomas F. Harris,
Intervenors—Appellees,
versus
BP America Production Company; Chevron Pipe Line
Company; Chevron USA Holdings, Incorporated;
Chevron USA, Incorporated; Exxon Mobil Corporation;
Kerr-McGee Oil & Gas Onshore, L.P.; Shell Offshore,
Incorporated; Shell Oil Company; Swepi, L.P.; Texas
Company,
Defendants—Appellants.
Appeals from the United States District Court
for the Eastern and Western Districts of Louisiana
USDC No. 2:18-CV-5217
USDC No. 2:18-CV-677
Before Ho, Engelhardt, and Oldham, Circuit Judges.
James C. Ho, Circuit Judge:
Beginning in 2013, a group of Louisiana Parishes, supported by the
Louisiana Department of Natural Resources and the Louisiana Attorney
General as intervenors, filed suit in state court seeking relief from various oil
companies under the Louisiana State and Local Coastal Resources
Management Act of 1978 (SLCRMA). The Parishes alleged that the oil
companies were liable for acts they committed during World War II. Earlier
in the litigation, the companies tried to remove the cases to federal court, but
were rebuffed. After the parishes filed an expert report in one of the cases,
the companies tried again to remove to federal court, based on that report.
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Both the Eastern and Western Districts of Louisiana disagreed with
the companies and remanded the cases back to the state court. We conclude
that the information disclosed in the expert report did not provide new
information previously unavailable to the companies, warranting removal.
We accordingly affirm on timeliness grounds.
I.
Congress enacted the Coastal Zone Management Act of 1972, 86 Stat.
1280 (codified as amended at 16 U.S.C. §§ 1451–65), to encourage states to
manage their coasts through federally approved programs. 16 U.S.C.
§ 1452(2). Following that invitation, Louisiana enacted SLCRMA, La.
Stat. Ann. §§ 49:214.21–:214:42, in 1978. SLCRMA established a
permitting program for anyone wishing to start a “use” in Louisiana’s coastal
zone. La. Stat. Ann. § 49:214.30(A)(1). A “use” is an activity with “a
direct and significant impact on coastal waters.” La. Stat. Ann.
§ 49:214.23(13). Louisiana courts could impose civil liability and damages
and order environmental restoration measures for “uses conducted within
the coastal zone without a coastal use permit . . . or which are not in
accordance with the terms and conditions of a coastal use permit.” La.
Stat. Ann. § 49:214.34(E). However, SLCRMA’s grandfather clause
allows “uses legally commenced or established prior to the effective date of
the coastal use permit program” without requiring “a coastal use permit.”
La. Stat. Ann. § 49:214.34(C)(2).
The Parishes sued several oil companies that engaged in oil and gas
exploration, production, and transportation along Louisiana’s coast. Starting
in the 1940s—decades before SLCRMA took effect in 1980—the companies
drilled wells from barges and dredged and maintained networks of canals to
access those wells. According to the Parishes, the companies’ continued use
of those wells and canals violates SLCRMA, either because the companies
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lack a permit for that use, or because the companies’ use violates a permit.
Nor does the grandfather clause apply, say the Parishes, because any pre-
1980 “operations or activities” were not “‘lawfully commenced or
established’ prior to the implementation of” SLCRMA. Further, the
Parishes argue that the activities “were prohibited prior to 1978 by various
provisions of Louisiana Statewide Orders . . . various field wide orders, as
well as various orders of the Louisiana Stream Control Commission.”
The Parishes disclaim any “cause of action arising under federal law
or federal regulations.” So when the companies first tried to remove these
cases, the district courts remanded based on the absence of a federal question.
See, e.g., Parish of Cameron v. Auster Oil & Gas, Inc., 2018 WL 2144281, at *3
(W.D. La. May 9, 2018); Stutes v. Gulfport Energy Corp., 2017 WL 4286846,
at *15 (W.D. La. June 30, 2017), report and recommendation adopted, 2017 WL
4274353 (W.D. La. Sept. 26, 2017); Plaquemines Parish v. Rozel Operating Co.,
2015 WL 403791, at *5 (E.D. La. Jan. 29, 2015).
On April 30, 2018, Plaquemines Parish served their expert report, and
included a certification that it represented the Louisiana Department of
Natural Resources’ position in all forty-two cases (the “Rozel Report”). The
companies claim that the Rozel Report was their first notice that the Parishes’
claims relied, at least in part, on actions they took during World War II.
Based on that fact, the companies again sought to remove all forty-two
cases to federal court. The companies contend that the Rozel Report makes
clear for the first time that they are being sued for activities they took during
World War II while acting under the authority of a federal wartime agency,
namely, the Petroleum Administration for War—making the case removable
under the federal officer removal statute. 28 U.S.C. § 1442. The companies
also contend that the Rozel Report demonstrates that the Parishes’ claims
implicate federal question jurisdiction.
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The Parishes again moved to remand the cases. Both the Eastern and
Western Districts of Louisiana granted those motions and ordered the cases
be remanded back to state court.
II.
An order remanding a case to state court is “not generally
reviewable.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir.
2020) (en banc). But an order remanding a case to state court after having
been removed under the auspice of § 1442 is reviewable “by appeal or
otherwise.” Id. (quoting 28 U.S.C. § 1447(d)). We review the remand order
de novo “without a thumb on the remand side of the scale.” Id. (quoting
Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018)).
In this case, the remand was appropriate because the companies filed
their notices of removal too late. Section 1446(b) provides two deadlines for
filing the notice of removal. The first requires defendants to file notices of
removal “within 30 days after the receipt by the defendant . . . of a copy of
the initial pleading setting forth the claim for relief upon which such action
or proceeding is based.” 28 U.S.C. § 1446(b)(1). That deadline applies if
the basis for federal jurisdiction is evident “on [the pleadings’] face.”
Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992); see Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (same). But if the
basis of federal jurisdiction is not evident from the face of an initial pleading,
§ 1446(b)(3) allows a defendant to remove a case to federal court thirty days
after it receives “an amended pleading, motion, order, or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3).
The parties agree that the companies’ second notice of removal is
untimely unless it was not evident on the face of the complaints that the case
included claims arising during World War II. The companies argue that
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neither the Parishes’ initial complaint, nor their broad discovery requests,
alerted them to the fact that the Parishes’ claims rested, at least in part, on
wartime activities. Instead, they contend, it was not until the Parishes
produced the Rozel Report that it became clear they were being sued for
wartime conduct.
We disagree. The Rozel Report simply repeated information from a
1980 Louisiana Coastal Resources Program Final Environmental Impact
Statement (FEIS) that the Parishes filed with the court before the
companies’ first removal attempt in 2013. The FEIS discusses many of the
specific wells involved in this litigation by referring to their unique serial
numbers. And those serial numbers refer to wells the companies drilled
before or during World War II. Accordingly, the Rozel Report is not a “paper
from which it may first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). See also
Chapman, 969 F.2d at 163 (same).
We affirm.
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