Board of Commissioners of Southeast Louisiana Flood Protection Authority-East v. Tennessee Gas Pipeline Co.
Board of Commissioners of Southeast Louisiana Flood Protection Authority-East v. Tennessee Gas Pipeline Co.
Opinion of the Court
ORDER AND REASONS
In this litigation, Plaintiff Board of Commissioners of the Southeast Louisiana Flood Protection Authority — East (“Plaintiff’) seeks damages and injunctive relief against ninety-two oil and gas companies whose actions have allegedly caused erosion of coastal lands, leaving south Louisiana increasingly exposed to tropical storms and hurricanes. Plaintiff originally filed suit in Civil District Court for the Parish of Orleans, but Defendants removed the matter to this federal Court. Now pending before the Court is Plaintiffs “Motion
Because the Court’s specific basis for jurisdiction has the potential to reverberate throughout a number of other considerations in this litigation — particularly, Plaintiffs entitlement, if any, to a jury trial, and choice of law questions — the Court has examined all five bases of jurisdiction raised in Defendants’ Notice of Removal.
I. Background
A. Factual Background
Plaintiff in this matter is the Board of Commissioners of the Southeast Louisiana Flood Protection Authority' — East, individually and as the board governing the. Orleans Levee District, the Lake Borgne Basin Levee District, and the East Jefferson Levee District.
Defendants are ninety-two oil and gas companies operating in what Plaintiff refers to as the “Buffer Zone.”
Plaintiff alleges that Defendants’ oil and gas operations have led to coastal erosion in the Buffer Zone, making 'south Louisiana more vulnerable to severe weather and flooding. According to Plaintiff, “[cjoastal lands have for centuries provided a crucial buffer zone between south Louisiana’s communities and the violent wave action and storm surge that tropical storms and hurricanes transmit from the Gulf of Mexico.”
B. Procedural Background
On July 24, 2013, Plaintiff filed suit in Civil District Court for the Parish of Orleans, State of Louisiana.
... in the form of abatement and restoration of the coastal land loss at issue, including, but not limited to, the backfill-ing and revegetating of each and every canal Defendants dredged, used, and/or for which they bear responsibility, as well as all manner of abatement and restoration activities determined to be appropriate, including, but not limited to, wetlands creation, reef creation, land bridge construction, hydrologic restoration, shoreline protection, structural protection, bank stabilization, and ridge restoration.21
While Plaintiffs six causes of action are all ostensibly' state-law claims, Plaintiff contends that “Defendants’ dredging and maintenance activities at issue in this action are governed by a longstanding and extensive regulatory framework under both federal and state law specifically aimed at protecting against the deleterious effects of dredging activities.”
On August 13, 2013, Defendant Chevron U.S.A. Inc. (“Chevron”) removed the case to federal court.
On September 10, 2013, Plaintiff filed the pending “Motion to Remand.”
The Court heard oral argument on December 18, 2018.
II. Standard on a Motion to Remand
“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and by statute.’ ”
As noted above, in their Notice of Remand, Defendants assert that federal jurisdiction exists based on five grounds: (1) Plaintiff asserts a general maritime claim; (2) federal enclave jurisdiction applies; (3) the Outer Continental Shelf Lands Act (“OCSLA”) applies; (4) the lawsuit is subject to the Class Action Fairness Act (“CAFA”); and (5) Plaintiffs right to relief depends upon the resolution of a substantial question of federal law.
III. Whether Admiralty Jurisdiction Exists
A. Parties’ Arguments
1. Plaintiffs Arguments in Support of Remand
Plaintiff argues the Court does not have admiralty jurisdiction because “[t]he Authority’s claims do not constitute general maritime claims, and even if they did, general maritime claims are not removable without a separate basis for federal court jurisdiction.”
First, Plaintiff cites the Supreme Court’s decision in Jerome B. Grubart,
Applying this test, Plaintiff avers that its claims “do not involve ‘a potentially disruptive impact on maritime commerce’ because neither the impairment of navigability nor impact upon maritime commerce forms any part of the Authority’s allegations.”
In further support of its position, Plaintiff discusses Louisiana Crawfish Producers Association — West v. Amerada Hess Corp., where, according to Plaintiff, a magistrate judge in the Western District of Louisiana determined that failure to maintain oil pipelines and dredged canals did not sufficiently connect to traditional maritime activity.
Second, Plaintiff argues that even if the Petition asserts general maritime claims, “that alone would not suffice to support this Court’s exercise of jurisdiction.”
Plaintiff acknowledges that two decisions from the Southern District of Texas have held that a recent amendment to 28 U.S.C. § 1441 “has undermined the long
2. Defendants’ Arguments in Opposition to Remand
Defendants argue that “[t]he Court should deny the motion to remand because maritime jurisdiction provides' an independent basis for exercising federal jurisdiction.”
With respect to the location test, Defendants contend that “[t]he ‘location’ test is satisfied because the Petition alleges injuries suffered on land purportedly caused by vessels on navigable waters.”
Looking at the connection test, Defendants represent that “[cjourts have held that the ‘connection’ test is met when there is ‘a potentially disruptive impact on maritime commerce’ and ‘the general character of the activity’ giving rise to the litigation ‘shows a substantial relationship to traditional maritime activity.’ ”
Following this analysis of whether Plaintiffs claims are properly characterized as maritime claims, Defendants argue that “maritime claims supply an independent basis for removing this action to federal court under 28 U.S.C. § 1441.”
3. Plaintiffs Reply in Further Support of Remand
In its reply, Plaintiff reiterates “[m]ari-time commerce is not at issue in this case. The Authority’s case is based upon the increased costs that the Authority will be forced to bear in building and maintaining flood protection assets.”
4. Supplemental Authority
Following oral argument on the pending motion, both Plaintiff and Defendants submitted supplemental authority regarding the removability of admiralty claims. On January 31, 2014, Defendant brought to the Gourt’s attention a district court order in Tiley v. American Tugs, wherein the court adopted the reasoning set forth in Ryan and denied a motion to remand.
B. Applicable Law
Article III of the U.S. Constitution extends the judicial power of the United States to “all Cases of admiralty and maritime Jurisdiction.”
In determining whether admiralty jurisdiction, exists over a tort claim, courts apply the two-part analysis set forth by the Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock,
The second part, known as the connection test, raises two issues. First, a court must “assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce.”
C. Analysis
Looking first at the location test, to evaluate whether the tort occurred on navigable water or whether the injury suffered on land was caused by a vessel on navigable water, the Court must determine what the alleged injury is. In this case, the injury at issue is “ecological degradation and extensive land loss” within the-Buffer Zone, which “in turn has created markedly increased storm surge risk, attendant flood protection costs, and, thus, damages to Plaintiff.”
Turning to the connection test, to determine whether the incident has a potentially disruptive impact on maritime commerce, the Court must first describe the incident at an intermediate level of possible generality. The description should be “neither too general to distinguish different cases nor too specific to the unique facts of the particular case”
In its Motion to Remand, Plaintiff suggests that this incident focuses on “the degradation of coastal lands ... through Defendants’ oil and gas production activities.”
Having characterized the incident, the Court must evaluate whether the incident has a potentially disruptive impact on maritime commerce&emdash;that is, whether the incident could be seen within a class of incidents that pose more than a fanciful risk to commercial shipping. Coastal erosion, by itself, does not interfere with maritime commerce or commercial shipping. It does not impede vessel traffic,
While the Court concludes that the incident at issue does not have a potentially disruptive impact on maritime commerce, for completeness, the Court addresses the second prong of the connection test— whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. In Grubart, the Court explained that “[t]he substantial relationship test is satisfied where at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident.”
The Court finds that coastal erosion caused by dredges in navigable waters does not have a potentially disruptive effect on maritime commerce, and thus the Court does not have admiralty jurisdiction over this matter. Accordingly, the Court need not decide whether general maritime law claims are removable under 28 U.S.C. § 1441 absent separate and independent ground of federal subject matter jurisdiction.
IV. Whether Federal Enclave Jurisdiction Exists
A. Parties’ Arguments
1. Plaintiffs Arguments in Support of Remand
Plaintiff contends that “[fjederal enclave jurisdiction does not attach in this case because [Defendants have] failed to factually demonstrate that there is any federal enclave at issue.”
According to Plaintiff, courts apply a three-prong test to evaluate the existence
(1) the United States must purchase land from a state for the purpose of erecting forts, magazines, arsenals, dock-yards, or other needful buildings; (2) the state legislature must consent to the jurisdiction of the federal government; and (3) the federal government must accept jurisdiction by “filing a notice' of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.”129
With respect to prong one, Plaintiff contends that Defendants have “failed to show how any fort, magazine, arsenal, dock-yard or other needful building erected by the United States was the location of any of the Defendants’ acts or omissions, or the injuries suffered by the Authority, as alleged in the Petition.”
Additionally, Plaintiff urges that “this Court should reject [Defendants’] novel interpretation of federal jurisdiction,” under which “the mere tangential relation of a federal enclave to a plaintiffs cause of action suffices to confer jurisdiction.”
2. Defendants’ Arguments in Opposition to Remand
In their opposition, Defendants cite a four-prong test for federal enclave jurisdiction:
(1) the United States must have acquired land from a State; (2) the state legislature must have consented to federal jurisdiction; (3) the United States must have formally accepted jurisdiction, but only if the property was acquired by the United States after 1940; and (4) the claims at issue must arise in part on the enclave.134
With respect to prong three, Defendants argue that courts have presumed acceptance of jurisdiction for property acquired prior to 1940, and thus that formal acceptance is only required for acquisitions after this time.
Examining the fourth prong, Defendants aver that Plaintiffs “contention that the Court lacks jurisdiction because the Board has not alleged an injury that occurred on a federal enclave is equally flawed.”
There can be no doubt that the alleged tortious activity and resulting land loss has occurred on these federal enclaves and that the relief sought by the Board, if granted, will require marsh creation, restoration, and related work on the enclaves. Although there is currently a moratorium against drilling in the Breton NWR, oil and gas exploration and. development historically occurred there. Dredging also occurred in the Delta NWR.141
Further, Defendants argue that Plaintiffs “Petition does not distinguish between the alleged injuries caused to federal enclaves from other alleged injuries.”
3. Plaintiffs Reply in Further Support of Remand
In its reply, Plaintiff avers that “[e]ven assuming that Defendants have satisfied their burden of proving any specific area fulfills the prerequisites for enclave status, they have failed to bear their burden of proving that the federal law applicable within those enclaves creates any of the Authority’s causes of action.”
Additionally, Plaintiff contends that neither the Breton National Wildlife Refuge nor the Delta National Wildlife Refuge “bears any significant relationship to the Authority’s claims.”
4. Statements at Oral Argument
At oral argument, Defense counsel stated to the Court that Defendants would withdraw their federal-enclave ground for removal if Plaintiff agreed that neither the Breton National Wildlife Refuge nor the Delta National Wildlife Refuge is in the Buffer Zone. The Court inquired whether Plaintiff would stipulate that the Breton
B. Applicable Law
Federal enclave jurisdiction is a form of federal question jurisdiction derived from Article I, section 8, clause 17 of the United States Constitution.
(1) the United States must purchase land from a state for the purpose of erecting forts, magazines, arsenals, dock-yards, or other needful buildings, (2) the state legislature must consent to the jurisdiction of the federal government, and (3) if the property was acquired after 1940, the federal government must accept jurisdiction by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.151
C. Analysis
Defendants initially maintained that federal enclave jurisdiction exists in this case because “there are at least two federal enclaves within the area of alleged wetland loss&emdash;(1) Breton Island and Chandeleur Island in the Breton National Wildlife Refuge (‘Breton NWR’) and (2) the Delta National Wildlife Refuge (‘Delta NWR’).”
Aside from the Breton National Wildlife Refuge and the Delta National Wildlife Refuge, Defendants do not point to any other possible federal enclaves within the Buffer Zone, the area identified in the Petition as experiencing coastal erosion. Further, Defendants do not direct the Court to any possible federal enclaves where Defendants conducted the dredging or other activities that allegedly caused the coastal erosion. Although Defendants mention that there are “numerous [ ] federal enclaves in the New Orleans area,”
Considering that the parties agree that Breton National Wildlife Refuge and the Delta National Wildlife Refuge are outside the Buffer Zone, and that Defendants have not identified any other possible federal enclaves in the area where Defendants’ conduct took place or in the area experiencing erosion, it is unnecessary to apply the three-part test for whether a federal enclave truly exists.
V. Whether the Outer Continental Shelf Lands Act (“OCSLA”) Provides Jurisdiction
A. Parties’ Arguments
1. Plaintiffs Arguments in Support of Remand
Plaintiff asserts that “[bjecause none of the acts and omissions that form the basis for the Authority’s claims involves [sic] an operation on the outer continental shelf, OCSLA cannot provide a basis for jurisdiction in this matter.”
Averring that “the acts and omissions at issue center on Louisiana’s coastal lands, rather than waters,”
(1) none of the acts or omissions at issue occurred on the outer continental shelf; (2) no injury was sustained away [sic] on the outer continental shelf; (3) and the only connection to the outer continental shelf is that there is an attenuated commercial relationship between the acts and omissions complained of and activity that occurs on the outer continental shelf.163
2. Defendants’ Arguments in Opposition to Remand
In opposition to Plaintiffs “Motion to Remand,” Defendants argue that “[because this case involves pipelines that transport hydrocarbons from the outer continental shelf, the Court has federal question jurisdiction under OCSLA.”
According to Defendants, this case comes within OCSLA’s broad grant of jurisdiction as Plaintiffs “claims present a direct threat to the efficient exploitation of minerals in the outer continental shelf.”
Addressing Plaintiffs argument that OCSLA jurisdiction cannot exist because the “acts and omissions at issue center on Louisiana’s coastal lands, rather than wa
3. Plaintiffs Reply in Further Support of Remand
In its Reply, Plaintiff asserts that “[t]he test for OCSLA jurisdiction ‘is whether the case: (1) involves an operation on the Outer Continental Shelf that involves doing some physical act in search of minerals on the OCS, preparing to extract them by drilling wells and constructing platforms, and removing minerals and transferring them to shore; and, (2) involves a dispute that arises out of or in connection with the defendant’s operation on the OCS, that is, ‘but for’ the operation on the OCS would the case or controversy have arisen.’ ”
Finally, Plaintiff argues that Defendants misinterpret Plaintiffs requested relief, stating that “[njowhere does the Authority suggest that it seeks to have operational pipelines shut off and removed.”
On March 5, 2014&emdash;after the Court heard oral argument on the pending motion&emdash;Defendants filed a “Notice of Supplemental Authority,” bringing the Fifth Circuit’s February 24, 2014 decision in In re DEEPWATER HORIZON
B. Applicable Law
Pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), as codified at 43 U.S.C. § 1349(b)(1), the district courts of the United States have jurisdiction over claims “arising out of, or in connection with (A) 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....”
As the Fifth Circuit recently explained in DEEPWATER HORIZON, “[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.”
In its “Motion to Remand,” Plaintiff cites the test set forth by the Fifth Circuit in Demette v. Falcon Drilling Co. for whether a cause of action arises under OCSLA.
C. Analysis
1. Whether the Activities that Caused the Injury Constituted an Operation Conducted on the Outer Continental Shelf that Involved the Exploration and Production of Minerals
Applying the two-prong test described in DEEPWATER HORIZON, the Court first examines whether “the activities that caused the injury constituted an ‘operation’ ‘conducted on the outer Continental Shelf that involved the exploration and production of minerals.”
The next question the Court must address is whether these activities constitute an operation conducted on the OCS. As noted above, an operation is defined as “some physical act.” All of the acts alleged in Plaintiffs Petition take place within the Buffer Zone.
Nevertheless, the Defendants argue “the law is wfell-settled that OCSLA jurisdiction exists ‘even where’ the acts of omissions giving rise to the suit ‘occur "on land.’ ”
Defendants also assert that “[t]o give effect to § 1349’s broad grant of jurisdiction, courts thus do not look solely to whether the operation occurred in the water, but instead find OCSLA applicable whenever the liberal ‘but for’ test for federal-question jurisdiction is met.”
Finally, Defendants’ argument that Plaintiffs claims “present a direct threat to the efficient exploitation of minerals in the outer continental shelf’ is unavailing.
2. Whether the Case Arises Out Of, or In Connection With the Operation
Although this matter fails to satisfy prong one of the test for jurisdiction under OCSLA — the activities that caused the injury do not constitute an ‘operation’ ‘conducted on the outer Continental Shelf that involved the exploration and production of minerals — the Court turns to prong two for completeness. Prong two requires the Court to ask whether “the case ‘arises out of, or in connection with’ the operation” on the OCS.
In this case, some of the dredging and pipelines at issue facilitate oil and gas production on the OCS. However, as Plaintiff notes, “the Authority’s case is factually dependent upon the exploration and production activities that Defendants undertook within the Buffer Zone,”
As a preliminary matter, the Court notes that on February 20, 2014, Defendants Chevron U.S.A., Inc., Union Oil Company of California, Chevron Pipeline Co., and Kewanee Industries, Inc. filed a “Notice of Issuance of Supreme Court Judgment.”
A. Parties’ Arguments
1. Plaintiffs Arguments in Support of Remand
Plaintiff asserts that this case is not removable under CAFA because it does not meet the definition of a “mass action.” According to Plaintiff, 28 U.S.C. § 1332(d)(ll)(B)(i) defines a “mass action” as “a civil action ‘in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.’ ”
2. Defendants’ Arguments in Opposition to Remand
In opposition to Plaintiff, Defendants argue that although the Authority is the only Plaintiff in this case, “ ‘numerosity’ is not determined by counting names in a case caption.”
3. Plaintiffs Reply in Further Support of Remand
In its Reply, Plaintiff argues that “[t]he specific claims at issue in the lawsuit are for harms visited upon the Authority.”
4. Defendants’ Notice of Supreme Court Judgment
As previously indicated, on February 20, 2014, Defendants Chevron U.S.A., Inc., Union Oil Company of California, Chevron Pipeline Co., and Kewanee Industries, Inc. filed a “Notice of Issuance of Supreme Court Judgment.”
B. Applicable Law
The Class Action Fairness Act of 2005 (“CAFA”) “creates original jurisdiction over cases that previously were beyond federal diversity subject-matter jurisdiction” by enabling defendants in civil suits to remove “mass actions” from state to federal court.
In its 2008 decision in Louisiana ex rel. Caldwell v. Allstate Ins. Co., the Fifth Circuit held that “persons” in the mass action context are “the real parties in interest as to the respective claims.”
Mississippi appealed the Fifth Circuit’s decision, and on January 14, 2014 — after oral argument had been held on the pending “Motion to Remand” — the Supreme Court reversed.
The question presented is whether a suit. filed by a State as the sole plaintiff constitutes a “mass action” under CAFA where it includes a claim for restitution based on injuries suffered by the State’s citizens. We hold that it does not. According to CAFA’s plain text, a “mass action” must involve monetary claims brought by 100 or more persons who propose to try those claims jointly as named plaintiffs.244
Observing that “the State of Mississippi is the only named plaintiff in the instant action,” the Court determined that “the case must be remanded to state court.”
C. Analysis
In light of the Supreme Court’s recent decision in Hood, the Court must conclude that the above-captioned matter is not removable pursuant to CAFA. The Authority is the only named plaintiff on the complaint, and Hood now forecloses the “real party in interest” analysis previously adopted by the Fifth Circuit in Caldwell. Accordingly, the Court finds that the pending case does not meet the definition of a “mass action,” and thus the Court' does not have jurisdiction pursuant to CAFA.
VIL Whether Federal Question Jurisdiction Applies
A. Parties’ Arguments
1. Plaintiffs Arguments in Support of Remand
Quoting 28 U.S.C. § 1331, Plaintiff asserts that the Court may exercise “original jurisdiction of all civil actions arising under the Constitution, laws or treatises of the United States.”
' According to Plaintiff, “federal law does not create any of the Authority’s claims.”
Next, Plaintiff argues that its claims “do not raise a substantial question of federal law.”
Defendants contend that removal is proper “because (1) the Petition seeks to litigate claims that are created by federal law, and (2) the alleged state law claims cannot be adjudicated without resolving a substantial question of federal law.”
Relying on the Supreme Court’s 2012 decision in Mims v. Arrow Financial Services, LLC,
Defendants also argue that under Grable, “federal courts have authority to ‘hear claims recognized under state law’ when (1) resolving a federal issue is necessary to resolve a state-law claim, (2) the federal issue is actually disputed, (3) the federal issue is substantial, and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.”
First, Defendants contend that [w]hen a court must interpret federal law to determine a plaintiffs claim, a federal issue is necessarily raised.”
Second, Defendants assert that federal issues are actually disputed as this Case “will require the Court to determine what duties and obligations are imposed by the federal regulatory framework, which will require interpreting the River and Harbors Act, the Clean Water Act, and the Coastal Zone Management Act.”
(1) whether the Board has exhausted required federal administrative procedures, (2) whether the Board can enforce federal permits to which it is not a party, (3) whether any of the Board’s claims are properly litigated in a judicial forum and, if so, (4) what remedies are available as a matter of law.279
Third, Defendants contend that the federal issues are substantial.
Finally, Defendants argue that “denying remand will not disrupt the federal-state balance.”
3. Natural Gas Act Defendants’ Arguments in Opposition to Remand
The Natural Gas Act (“NGA”) Defendants filed a “separate brief opposing remand to identify the important federal questions presented by the Plaintiffs Petition which are distinctly applicable to them as interstate natural gas pipelines regulated as ‘natural gas companies’ under the NGA [Natural Gas Act], and the FERC’s [Federal Energy Regulatory Commission] implementing regulations.”
The NGA Defendants aver that “[t]he federal government exercises exclusive jurisdiction over rates, tariffs and facilities of natural gas companies engaged in the transportation of natural gas in interstate commerce.”
In light of this regulatory framework, the NGA Defendants maintain that “Plaintiffs claims .present substantial federal questions.”
With respect to the second prong of the Grable test, the NGA Defendants assert that the federal issues are actually disputed.
Next, the NGA Defendants maintain that the federal issues are substantial as:
[t]he 'statutory interpretation required to determine whether state tort and nuisance law can define obligations that differ from FERC certificate conditions, whether certificates of public convenience and necessity issued under the NGA create third-party contract rights and whether injunctive relief can be permitted to interfere with FERC certificate, tariff and rate authority are issues of law. The determination of these issues will not be confined to the Louisiana coastal operations of the NGA Defendants. Rather they go to the heart of federal jurisdiction over interstate commerce engrained [sic] in jurisprudence since the turn of the prior century, more particularly whether the FERC’s decisions actually define the balance and encompass local and national interests and even more narrowly whether belated disputes about the conditions of FERC Certificates can be presented in a state tribunal years out of time, rather than in a United States Court of Appeals in a timely manner.304
Finally, the NGA Defendants urge that federal jurisdiction will not disturb the balance of federal and state responsibilities,
4. Plaintiffs Reply to All Defendants in Further Support of Remand
First, Plaintiff contends that the Natural Gas Act Defendants’ removal arguments are untimely.
Second, Plaintiff asserts that “[n]one of the Authority’s claims are created by federal law.”
Third, Plaintiff argues that none of its claims arise under federal law pursuant to Grable. Plaintiff contends that “Numerous courts have recognized that where there are alternative, nonfederal bases for liability on a state-law cause of action, there is no ‘necessary’ federal law question that opens the doors of federal jurisdiction.”
Finally, Plaintiff observes that “[f]or the most part, Defendant’s arguments amount to a preview of their anticipated defenses to the Authority’s claims.”
5. Natural Gas Act Defendants’ Sur-Reply Sn Opposition to Remand
In their sur-reply, the NGA Defendants contend that “[bjoth the Chevron Notice [of Removal] and the NGA Opposition adequately describe the grounds for removal based on federal question jurisdiction in compliance with § 1446.”
B. Timeliness of Natural Gas Act Arguments
1. Applicable Law
To remove an action from state to federal court, 28 U.S.C. § 1446 requires that a defendant file a notice of removal, “containing a short and plain
2. Analysis
In its “Notice of Removal,” Defendant Chevron asserts that this matter is removable because “a significant and substantial component of Plaintiffs state law claims requires the interpretation of federal law, and Plaintiffs right to relief under one or more causes of action asserted depends upon resolution of a substantial question of federal law, and therefore, federal question jurisdiction applies.”
All of these activities fall into the realm-of a federal regulatory framework that is pervasive and comprehensive. None of these forms of relief can be performed without federal regulatory involvement and permission. In addition, all of these activities, if ordered, will necessarily interfere with the exploration, production, and transportation of oil and gas in interstate commerce-a matter of national concern. Moreover, all of these activities, if ordered, will create a high risk of being inconsistent with or interfering with federal energy policy and/or ongoing coastal restoration projects sponsored in large part by the*849 federal government.336
The lack of an express reference to the Natural Gas Act or FERC regulations in Chevron’s “Notice of Removal” does not warrant excluding the NGA Defendants’ arguments as untimely. As noted above, the Notice of Removal discusses the “pervasive and comprehensive” federal regulatory framework governing the oil and gas industry, and notes that the requested injunctive relief may conflict with “federal energy policy.”
The cases cited by Plaintiff address situations in which a defendant raised a new basis for jurisdiction, not where the defendant elaborated on a basis discussed in the notice of removal. For example, in Stanley v. Wyeth, Inc., the defendant initially asserted that the case came under 28 U.S.C. § 1442(a)(l)’s “federal officer” removal provision, but later argued that the court had federal question jurisdiction under 28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332.
Accordingly, the Court finds that the NGA Defendants’ arguments are timely and will address them on the merits.
C. Whether Plaintiffs Claims Arise Under Federal Law
1. Applicable Law
Pursuant to 28 U.S.C. § 1331, “Congress has authorized the federal district courts to exercise original jurisdiction in ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’”
a. Created By Federal Law: The “Well-Pleaded Complaint” Rule
In evaluating whether a plaintiffs cause of action is created by federal law, courts must apply the “well-pleaded complaint” rule. That is, “a federal court has original or removal jurisdiction only if a federal question appears on the face of the plaintiffs well-pleaded complaint; gen
b. Exceptions to the “Well-Pleaded Complaint Rule”: Complete PreEmption and Substantial Question of Federal Law
i. Complete Pre-Emption
There are “two recognized exceptions to the well-pleaded , complaint rule.”
and even if both parties concede that the federal defense is the only question at issue.”
(1) the [federal] statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is clear Congressional intent that claims brought under the federal law be removable.352
Second, there is a “special and small” category of cases in which a state law cause of action can give rise to federal-question jurisdiction because the claim involves important federal issues.
2. Analysis
a. Whether Plaintiffs Cláims Are Created by Federal Law Pursuant to the “Well-Pleaded Complaint” Rule
In its petition, Plaintiff asserts six causes of action: (1) negligence under Louisiana Civil Code article 2315,
In arguing to the contrary, Defendants rely heavily on Mims v. Arrow Financial Services, LLC; however, they fundamentally misconstrue the issue in Mims. In Mims, the plaintiff filed suit in federal court asserting a claim pursuant to the Telephone Consumer Protection Act of 1991 (“TCPA”).
A person or entity may, if otherwise permitted, by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations pre*852 scribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such .violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.365
The Supreme Court noted in Mims that there was no debate that the TCPA provided plaintiffs right of action; a subsection of the statute was expressly entitled “private right of action.”
Thus, applying the well-pleaded complaint rule, the Court concludes that Plaintiffs claims are not created by federal law and that it does not have jurisdiction on this basis.
b. Whether an Exception to the “Well-Pleaded Complaint” Rule Applies
i. Whether the Complete PreEmption Doctrine Applies
As discussed above, normally, federal pre-emption is raised as a defense to the allegations of a plaintiffs complaint and may not serve as a basis for removing a case to federal court.
The Defendants’ primary memorandum in opposition does not address pre-emption as a federal defense or in the context of the complete pre-emption doctrine. Although the Natural Gas Act Defendants’ opposition discusses pre-emption,
ii. Whether Plaintiffs Claims Raise a Substantial Issue of Federal Law
As explained above, under an exception to the “well-pleaded complaint” rule, “federal jurisdiction over a state law claim will lie if a federal issue 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.”
(a) Necessarily Raised
A federal issue is “necessarily raised” when a court must apply federal law to the facts of the plaintiffs case.
In Count 1 of its Petition, Plaintiff brings a claim for negligence under Louisiana Civil Code article 2315.
By turning to federal law to establish the standard of care, Plaintiff “necessarily raises” what duties these laws impose upon Defendants. In determining whether Plaintiff may prevail on its claim for negligence, the Court will have to interpret federal law to ascertain, among other issues, whether Defendants’ conduct constitutes an unauthorized alteration or injury to the levee systems under the Rivers and Harbors Act, whether the Clean Water Act required Defendants to restore allegedly abandoned dredged canals, and what steps the Coastal Zone Management Act required Defendants to take to minimize adverse environmental effects. These three federal statutes do not merely present “one of multiple theories” that could support Plaintiffs negligence claim. Rather, they are the only specific sources of the duty Plaintiff must establish in order to
In Count 4 of the its Petition, Plaintiff asserts a claim for public nuisance.
Plaintiff contends that no necessary federal question is raised by its third party beneficiary claim because that claim “is a creature of Louisiana law that does not require the court to evaluate the legality of any agency action or interpret any federal statutes.”
The reality is more complicated than either party admits. There appears to be no bright-line rule regarding what law governs a third-party beneficiary claim based on a contract to which the United States is a party. Rather, numerous courts have grappled with whether to apply state contract law or federal common law.
In the 1977 case Miree v. DeKalb County, the Supreme Court considered a breach of contract claim brought by survivors of passengers who died in an airplane crash.
The Supreme Court as well as several appellate courts have since distinguished Miree. In Boyle v. United Technologies Corp., decided in 1988, the Supreme Court acknowledged that under Miree, “i[t] is true that where litigation is purely between private parties and does not touch the rights and duties of the United States, federal law does not govern.”
The imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price. Either way, the interests of the United States will be directly affected.409
Miree was also distinguished by the Seventh Circuit in Price v. Pierce.
[I]t would be odd to think that a suit by tenants and applicants for federally subsidized housing against developers of such housing for breach of contracts approved by HUD and fundamental to the achievement of HUD’s objectives ... would have to be brought in state court and decided in accordance with state contract law.415
Further, the Seventh Circuit noted the “desirability of a uniform interpretation of these contracts,” and suggested that uniform interpretation “will best be achieved by allowing suit in federal courts.”
The First Circuit adopted the reasoning of Price in Almond v. Capital Properties, Inc.
Therefore, in light of the forgoing case-law, it appears that federal law applies to “nonparty breach of contract claims where the contract implicated a federal interest, the United States was a party to the contract, and the contract was entered into pursuant to federal law.”
(b) Actually Disputed
The federal issues identified above — including whether Defendants’ conduct constitutes an unauthorized alteration or injury to the levee systems under the Rivers and Harbors Act, whether Defendants were required to restore allegedly abandoned dredged canals under the Clean Water Act, what steps Defendants had to take to minimize environmental effects under the Coastal Zone Management Act, whether Plaintiff is a third-party beneficiary of dredging permits issued by the federal government, and whether Defendants have violated the terms of those permits-are all disputed in this case.
(c) Substantial
The substantiality requirement demands that a federal question must not only be important to the parties, but also important to the federal system. In Gunn v. Minton, the Supreme Court explained that for a case to be “substantial in the relevant sense,”
it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The sub-stantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.428
The Supreme Court has not fully described what makes an issue important to the federal system as a whole; however, it has provided some specific insight on the contours of substantiality. First, a federal issue may be substantial where state adjudication would “undermine the development of a uniform body of [federal] law.”
Additionally, a issue may be substantial where a case presents “a nearly pure issue of law ... that could be settled once and for all,” rather than a “fact-bound and situation-specific” one.
Further, a federal issue may be substantial where the resolution oí the issue has “broader significance ... for the Federal Government.”
Finally, under the Supreme Court’s decision in Merrell Dow Pharmaceuticals Inc. v. Thompson,
Looking beyond Supreme Court jurisprudence, the Courts of Appeals have brought additional factors to bear on the substantiality analysis. For example, in Mikulski v. Centerior Energy Corp., the Sixth Circuit identified four considerations relevant to whether a federal issue is substantial:
(1) whether the case includes a federal agency, and particularly, whether that agency’s compliance with the federal statute is in dispute; (2) whether the federal question is important (i.e., not trivial); (3) whether a decision on the federal question will resolve the case (i.e., the federal question is not merely incidental to the outcome); and (4) whether a decision as to the federal question will control numerous other cases (i.e., the issue is not anomalous or isolated)444
Conversely, in Adventure Outdoors, Inc. v. Bloomberg,
where (1) there was no dispute over the meaning of the federal law at issue; (2) the meaning of the federal law at issue was clear; (3) state application of the federal law did not pose a serious threat to the federal interest of uniformity and consistency of federal law; and (4) the federal legal issue was not dispositive of the case because factual issues remained no matter how the legal issue was resolved.446
As discussed above, the pending case necessarily raises at least the following disputed issues: whether Defendants’ conduct constitutes an unauthorized alteration or injury to the levee systems under the Rivers and Harbors Act; whether the Clean Water Act required Defendants to restore allegedly abandoned dredged canals; what steps the Coastal Zone Management Act required Defendants to take to minimize environmental effects; whether Plaintiff is a third-party beneficiary of dredging permits issued by the federal government; and whether Defendants have violated the terms of those federal permits. The question now becomes whether these issues are substantial.
First, the Court recognizes the importance of the federal questions at stake in this case. The disputed issues implicate coastal land management, national energy policy, and national economic policy — all vital federal interests. Both Plaintiff and Defendants have observed the breadth of federal regulations governing the coastal lands at issue in this suit, including the Rivers and Harbors Act, the Clean Water Act, the Coastal Zone Management Act, the Natural Gas Act, the Energy Policy Act of 2005, the Coastal Wetlands Planning, Protection and Restoration Act of 1990, the Water Resources Development Act of 2007, and the Natural Gas Act.
Additionally, the Court notes that although this matter is a single case, it affects an entire industry, not just a few isolated parties. Plaintiff named 149 oil and gas companies as defendants in its Petition,
While Plaintiff may not be expressly challenging a specific action of a federal agency, the breadth of Plaintiffs claims amounts to a collateral attack on an entire regulatory scheme. The Rivers and Harbors Act, the Clean Water Act, the Coastal Zone Management Act, and the Army Corps of Engineers permitting system — in conjunction with a number of other federal measures not cited by Plaintiff — are the by-products of a federal effort to balance the country’s economic need for oil and gas with local, regional, and national environmental concerns. Plaintiffs claims are premised on the notion that this regulatory framework provides inadequate protection for the residents of southeastern Louisiana, and through this litigation, Plaintiff seeks to have the entire oil and gas industry compensate residents for the shortfall. The approach taken by Plaintiff has already been replicated by other local interests, as a number of Louisiana parishes have brought similar cases against oil and gas companies for damages due to dredging activities.
The Court also notes that whether state and local entities are properly considered third-party beneficiaries of federal dredging permits is “a nearly pure issue of law ... that could be settled once and for all.”
Given the replication of these critical federal issues of law in the parish suits and the potential for even more litigation, the Court finds that Plaintiffs action “justifies] resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”
(d) Federal-State Balance
In determining whether finding jurisdiction would disturb the balance of federal and state judicial responsibilities, the Court must consider whether exercising jurisdiction would “herald an enormous shift of traditionally state cases into federal courts.”
VIII. Conclusion
As discussed above, the Court does not find grounds to exercise admiralty jurisdiction or federal enclave jurisdiction in this matter. Further, neither OCSLA’s nor CAFA’s jurisdictional grant applies here. However, the Court does find that it has federal-question jurisdiction under 28 U.S.C. § 1331. Plaintiffs state law claims necessarily raise a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing the congressionally approved balance of federal and state judicial responsibilities. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs “Motion to Remand”
. Rec. Doc. 70.
. Rec. Doc. 1-2 at p. 2.
. 2006 La. Sess. Law. Serv. 1st Ex. Sess. Act 1 (S.B. 8) (West) (codified at La. R.S. § 38:330.1(F)(2)(a)).
. Rec. Doc. 1-2 atp. 5.
. Plaintiff initially named 149 defendants. See id. at pp. 25-34. However, only ninety-two defendants remain in this litigation.
. Id. at p. 7.
. Id. at p. 2.
. Id.
. Id. at p. 9.
. Id.
. Id. atp.-ll.
. Id.
. Id.
. Id. atp. 1.
. Id. at p. 17.
. Id. atp. 18.
. Id. atp. 19.
. Id. atp. 20.
. Id. atp. 21.
. Id. atp. 22.
. Id. atp. 23.
. Id. atp. 16.
. Id.
. Id.
. Id.
. Id. atp. 17.
. Id. atp. 16.
. Id. at p. 17.
. Id.
. Rec. Doc. 1.
. Id. atp. 4.
. Rec. Doc. 70.
.Rec. Doc. 260.
. Rec. Doc. 254.
. Rec. Doc. 258.
. Rec. Doc. 262.
. Rec. Doc. 263.
. Rec. Doc. 264.
. Rec. Doc. 265.
. Rec. Doc. 266.
. Rec. Doc. 268.
. Rec. Doc. 292.
. Rec. Doc. 304.
. Rec. Doc. 317; Rec. Doc. 331; Rec. Doc. 334; Rec. Doc. 337; Rec. Doc. 344; Rec Doc. 360.
. Rec. Doc. 331.
. Gunn v. Minton, - U.S. -, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
. Id.
. Rec. Doc. 1 at p. 4.
. Rec. Doc. 70-1 atp. 10.
. Id. at pp. 10-11.
. 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).
. Rec. Doc. 70-1 atp. 11.
. Id. (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043).
. Id. (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043).
. Id.
.Id. (emphasis in original).
. 448 F.3d 760, 771, amended on reh'g, 453 F.3d 652 (5th Cir. 2006).
. Rec. Doc. 70-1 at p. 12.
. Id.
. Id. at p. 12-14 (citing Louisiana Crawfish Producers Ass'n v. Amerada Hess Corp., No. 10-348, 2012 WL 6929427 (W.D.La. Aug. 1, 2012) (Hanna, M.J.)).
. Id. atp. 14.
. Id. (quoting In re Eckstein Marine Serv., L.L.C., 672 F.3d 310, 315-16 (5th Cir. 2012)).
. Id. at p. 15 (citing Wells v. Abe’s Boat Rentals, Inc., No. 13-1112, 2013 WL 3110322 (S.D.Tex. June 18, 2013); Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex. 2013)).
. Id. atpp. 15-16.
. Id. at pp. 16-17 (citing Duet v. Am. Commercial Lines LLC, No. 12-3025, 2013 WL 1682988 (E.D.La. Apr. 18, 2013) (Milazzo, J.); Int’l Transp. Workers Fed. v. Mi-Das Line, SA, No. 12-2503, 2012 WL 5398470 (E.D.La. Nov. 2, 2012) (Lemelle, J.)).
. Id. at p. 17 (citing Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir. 2013); In re Eckstein, 672 F.3d at 310).
. Rec. Doc. 260 at p. 30.
. Id. at p. 31 (quoting Grubart, 513 U.S. at 534, 115 S.Ct. 1043).
. Id.
. Id.
. Id. (quoting Grubart, 513 U.S. at 534, 115 S.Ct. 1043).
. No. 05-4419, 2007 WL 837181 (E.D.La. Mar. 14, 2007) (Berrigan, J.).
. Rec. Doc. 260 at pp. 32-33 (alternations in original).
. Id. atp. 33.
. Id. (citing, e.g., Ellis v. United States, 206 U.S. 246, 259, 27 S.Ct. 600, 51 L.Ed. 1047 (1907)).
. Id. atp. 35.
. Id.
. Id.
. Id. (quoting Tenn. Gas Pipeline v. Houston Cos. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996)).
. 2013 WL 3110322.
. No. 13-4777 (M.D.La. filed Sept. 27, 2013).
. Rec. Doc. 260 at pp. 38-39 (discussing Barker, 713 F.3d at 219; In re Eckstein, 672 F.3d at 310; Duet, 2013 WL 1682988; Int’l Transp. Workers Fed., 2012 WL 5398470).
. Rec. Doc. 292 at p. 35.
. Id.
. Id. atp. 36.
. Id. at p. 37.
. Rec. ;Doc. 317 (citing Tiley v. Am. Tugs, Inc., No. 13-6104 (E.D.La. filed Jan. 16, 2014) (Engelhardt, J.)).
. Rec. Doc. 360 (citing Tiley v. Am. Tugs, Inc., No. 13-6104 (E.D.La. filed May 16, 2014) (Engelhardt, J.)).
.Rec. Doc. 337 (citing Coronel v. AK Victory, 1 F.Supp.3d 1175, No. 13-2304, 2014 WL 820270 (W.D.Wash. Feb. 28, 2014)).
.U.S. Const., Art. Ill, § 2.
. 28 U.S.C. § 1333(1).
. 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).
. Id. at 534, 115 S.Ct. 1043.
. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870).
. Id.
. Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal citations and quotation marks omitted).-
. Id. at 539, 115 S.Ct. 1043.
. Id. at 534, 115 S.Ct. 1043 (internal citations and quotation marks omitted).
. Id. at 539-40, 115 S.Ct. 1043.
. Rec. Doc. 1-2 atp. 11.
. Id. at pp. 9-11.
. 543 U.S. 481, 497, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005).
. Tandon v. Captain’s Cove Manna of Bridgeport, Inc., 752 F.3d 239, 247 (2d Cir. 2014).
. Id. at 249.
. Grubart, 513 U.S. at 539, 115 S.Ct. 1043.
. Id. at 529, 115 S.Ct. 1043.
. Id. at 530, 115 S.Ct. 1043.
. .Id. at 540, 115 S.Ct. 1043.
.- 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).
. Id. at 360, 110 S.Ct. 2892.
. Id.
. Id. at 362-63, 110 S.Ct. 2892.
. Grubart, 513 U.S. at 538-39, 115 S.Ct. 1043.
. Rec. Doc. 70-1 at p. 11.
. Rec. Doc. 260 at pp. 32-33 (internal quotation marks omitted).
. See, e.g., Grubart, 513 U.S. at 539, 115 S.Ct. 1043 (noting that “river traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system because the river level was lowered to aid repair efforts”).
. See, e.g., Sisson, 497 U.S. at 362, 110 S.Ct. 2892 (recognizing that a fire "can spread to nearby commercial vessels or make the marina inaccessible to such vessels’- and "is one of the most significant hazards facing commercial vessels”).
. See, e.g., Gruver v. Lesman Fisheries, Inc., 489 F.3d 978, 982-83 (9th Cir. 2007) (finding that an employer’s physical assault on a crewman on a fishing vessel had a potentially detrimental effect on maritime commerce by depriving the vessel of a deckhand due to his injuries).
. Grubart, 513 U.S. at 541, 115 S.Ct. 1043.
. Id. at 543, 115 S.Ct. 1043.
. See Stewart, 543 U.S. at 497, 125 S.Ct. 1118.
. The Court notes that district courts have sharply divided on this issue. Some district courts have held that the amendment to § 1441 did not render claims brought under general maritime law removable absent a separate basis for jurisdiction. See Coronel, 1 F.Supp.3d at 1178-79, 2014 WL 820270 at *2-11; Barry v. Shell Oil Co., No. 13-6133, 2014 WL 775662, at *1-3 (E.D.La. Feb. 25, 2014) (Zainey, L). Other courts, however, have held that the amendment to § 1441 changes the traditional rule and makes maritime claims removable. See Garza v. Phillips 66 Co., No. 13-742, 2014 WL 1330547, at *4-5 (M.D.La. Apr. 1, 2014); Harrold v. Liberty Ins. Underwriters, Inc., No. 13-762, 2014 WL 688984, at *3-4 (M.D.La. Feb. 20, 2014); Corrigan v. M/V AMC AMBASSADOR, No. 13-03208, 2014 WL 358353, at *2 (S.D.Tex. Jan. 31, 2014); Bridges v. Phillips 66 Co., No. 13-477, 2013 WL 6092803, at *4-5 (M.D.La. Nov. 19, 2013); Wells, 2013 WL 3110322, at *1-4; Ryan, 945 F.Supp.2d at 774-78.
. Rec. Doc. 70-1 atp. 21.
. Id.
. Id.
. Id. at pp. 22-23 (quoting Wood v. Am. Crescent Elevator Corp., No. 11-397, 2011 WL 1870218, at *3 (E.D.La. May 16, 2011) (Zainey, J.)).
. Id. at p. 23.
. Id.
. Id. at p. 24.
. Id.
. Rec. Doc. 260 at p. 39 (citing Wood, 2011 WL Í870218, at *2).
. Id. at p. 40 (citing, e.g., United States v. Davis, 726 F.3d 357, 369 (2d Cir. 2013)).
. The law was previously codified at 40 U.S.C. § 255.
. Rec. Doc. 260 at p. 40.
. Id.
. Id. at pp. 40-41 (citing, e.g., Fung v. Abex Corp., 816 F.Supp. 569, 571 (N.D.Cal. 1992)).
. Id. at p. 41.
. Id. at p. 42.
. Id.
. Rec. Doc. 292 at p. 40.
. Id. at p. 39.
. Id.
. Id. atp. 40.
.Id.
. See Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998); Mater v. Holley, 200 F.2d 123, 124-25 (5th Cir. 1952).
. U.S. Const. Art. I, § 8, cl. 17.
. Akin, 156 F.3d at 1034; see also, e.g., Mater, 200 F.2d at 124 (observing that the United States has exclusive sovereignty in enclave areas and stating that "[i]t would be incongruous to hold that although the United States has exclusive sovereignty in the area here involved, its courts are without power to adjudicate controversies arising there"); Lawler v. Miratek Corp., No. 09-252, 2010 WL 743925, at *2 (W.D.Tex. Mar. 2, 2010) ("In order to determine whether this Court has subject matter jurisdiction over these claims, it must determine whether or not they arose on federal enclaves."); Corley v. Long-Lewis, Inc., 688 F.Supp.2d 1315, 1323 (N.D.Ala. 2010) (Davis, MJ.) (finding federal enclave jurisdiction where "there is evidence in the record that [Plaintiff] was exposed to asbestos while working on ships located at these [federal] shipyards”); Reed v. Fina Oil & Chem. Co., 995 F.Supp. 705, 713 (E.D.Tex. 1998) (noting that federal enclave jurisdiction would apply where Plaintiff was exposed to leukemia-inducing agents at a facility from 1944-79 and the federal government owned the facility from 1944-55); Fung v. Abex Corp., 816 F.Supp. 569, 571 (N.D.Cal. 1992) (finding federal enclave jurisdiction where plaintiff was exposed to asbestos at a Navy shipyard).
. Wood, 2011 WL 1870218, at *2 (citing Paul v. United States, 371 U.S. 245, 264, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); DeKalb Cnty., Ga. v. Henry C. Beck Co., 382 F.2d 992, 994-95 (5th Cir. 1967)) (internal citations and quotation marks omitted).
. Rec. Doc. 260 at p. 41.
. Id.
. Rec. Doc. 260 at p. 41.
. Rec. Doc. 70-1 at p. 20.
. 844 F.2d 1202 (5th Cir. 1988).
. Rec. Doc. 70-1 at p. 20 (quoting Sea Robin, 844 F.2d at 1206).
. Id. (quoting Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013)).
. 280 F.3d 492 (5th Cir. 2002), overruled in part by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009).
. Rec. Doc. 70-1 atp. 21.
. Id. (citing Demette, 280 F.3d at 496).
. Id. (emphasis in original).
. Id.
. Rec. Doc. 260 at p. 26.
. Id. (citing Amoco Production, 844 F.2d at 1210).
. Id. at p. 27 (citing, e.g., Barker, 713 F.3d at 221).
. Id.
. Id. at p. 28.
. Id.
. Id. at p. 29 (citing Rec. Doc. 70-1 at p. 26) (emphasis in original).
. Id. (quoting BP Exploration & Prod., Inc. v. Callidus Tech., L.L.C., No. 02-2318, 2003 WL 193450, at *4 (E.D.La. Jan. 27, 2003) (Zainey, J.)).
. Id.
. Id.
. Id. at p. 30.
. Id.
. Rec. Doc. 292 at pp. 37-38 (quoting Stevens v. Energy XXI GOM, LLC, No. 11-154, 2011 WL 2489998, at *3 (M.D.La. May, 18, 2011) (Riedlinger, M.J.)) (internal alterations omitted).
. Id. at p. 38.
. Id. (emphasis in original).
. Id" at P- 39'
. Id.
. 745 F.3d 157 (5th Cir. 2014).
. Rec. Doc. 334 atp. 1.
. Id. atp. 2.
. Id.
. Id.
. 43 U.S.C. § 1349(b)(1).
. See, e.g., DEEPWATER HORIZON, 745 F.3d at 163 (OCSLA's jurisdictional grant is “straightforward and broad”); Barker, 713 F.3d at 213 ("The jurisdictional grant in OCS-LA is broad, covering a 'wide range of activities occurring beyond the territorial waters of the states.' ”); Term. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996) ("The jurisdictional grant, contained in 43 U.S.C. § 1349(b)(1), is very broad.”).
. Barker, 713 F.3d at 213.
. DEEPWATER HORIZON, 745 F.3d at 163.
. Tenn. Gas Pipeline, 87 F.3d at 154 (internal quotation marks and citations omitted).
. Id. at 154-55 (citing 43 U.S.C. § 133l(k)-(m)).
. DEEPWATER HORIZON, 745 F.3d at 163.
. Id. at 164.
. Id.
. Rec. Doc. 70-1 at p. 21 (citing Demette, 280 F.3d at 496).
. Id. (citing Demette, 280 F.3d at 496).
. Id.
. DEEPWATER HORIZON, 745 F.3d at 164.
. Id. at 163.
. “Exhibit A” lists all of the named Defendants in this action. See Rec. Doc. 1-2 at pp. 4, 25-34.
. Id. at p. 11.
.Id.
. Id. atp. 10.
. See, e.g., id. at p. 11 (alleging that Defendants have dredged "[i]n the Buffer Zone”); id. at p. 10 (noting that "the removal of fluid from beneath the coastal lands is causing subsidence of those lands”).
. Rec. Doc. 334 at p. 2.
. DEEPWATER HORIZON, 745 F.3d at 163.
. Rec. Doc. 260 at p. 29 (quoting BP Exploration, 2003 WL 193450, at *4).
. BP Exploration, 2003 WL 193450 at *1 (noting that the pending motion requested summary judgment on the issue of choice of law).
. See DEEPWATER HORIZON, 745 F.3d at 164.
. Rec. Doc. 260 at p. 29.
. DEEPWATER HORIZON, 745 F.3d at 163.
. Rec. Doc. 260 at p. 27.
. Id. (quoting Sea Robin, 844 F.2d at 1210) (emphasis omitted).
. Sea Robin, 844 F.2d at 1210.
. 26 F.3d 563 (5th Cir. 1994).
. See id. at 565 (“EP Operating Limited Partnership (‘EP’), a co-owner of certain property located on the Outer Continental Shelf (‘OCS’), hied suit against its co-owners to partition the property.”).
. DEEPWATER HORIZON, 745 F.3d at 163.
. See, e.g., id. (characterizing prong two as "requiring] only a 'but-for' connection”); Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 350 (5th Cir. 1999) (determining that "[b]ut for Hufnagel’s work on the platform, his injury would not have occurred”); Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir. 1988) (finding jurisdiction under OCSLA where the injured worker’s employment furthered mineral development on the OCS and “but for” that employment the worker would not have been injured).
. Rec. Doc. 292 at p. 38 (emphasis in original).
. Rec. Doc. 1-2 atpp. 37-102.
. Rec. Doc. 331.
.- U.S.-, 134 S.Ct. 736, 187 L.Ed.2d 654 (2014).
. Rec. Doc. 70-1 atp. 18.
. Id.
. Id.
. Rec. Doc. 260 atp. 43.
. Id.
. 701 F.3d 796 (5th Cir. 2012), rev’d Mississippi ex rel. Hood v. AU Optronics Corp., - U.S. -, 134 S.Ct. 736, 187 L.Ed.2d 654 (2014).
. Rec. Doc. 260 atp. 43 (quotingHood, 701 F.3d at 799).
. 536 F.3d 418 (5th Cir. 2008).
. Rec. Doc. 260 at p. 44 (quoting Caldwell, 536 F.3d at 428).
. Id. at p. 44.
. Rec. Doc. 292 at p. 43.
. Id.
. Rec. Doc. 331.
. -U.S.-, 134 S.Ct. 736, 187 L.Ed.2d 654 (2014).
. 14B Charles Alan Wright, et al., Federal Practice and Procedure § 3724 (4th ed. 2013).
. 28 U.S.C. § 1332(d)(ll)(B)(i).
. Hood, 701 F.3d at 800 (explaining Caldwell's holding).
. Id.
. Id.
.Id. at 802.
. 134 S.Ct. at 739.
. Id.
. Id.
. Rec. Doc. 70-1 at p. 5 (quoting 28 U.S.C. § 1331) (internal quotation marks omitted).
. Id.
. Id. (quoting Gunn, 133 S.Ct. at 1064).
. Id. (quoting Gunn, 133 S.Ct. at 1064).
. Id.
. Id. (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)).
. Id. at p. 6 (citing Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425).
. Id.
. Id.
. Id. (citing Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 817, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)).
. Id.
. Id. at p. 7 (quoting Gunn, 133 S.Ct. at 1065) (internal quotation marks omitted).
. Id. (citing Singh v. Duane Morris, LLP, 538 F.3d 334, 339 (5th Cir. 2008)) (emphasis in original).
. Id. at p. 8 (citing, e.g., Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755 (1934)).
. Id. (quoting Gunn, 133 S.Ct. at 1066).
. 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921).
. Rec. Doc. 70-1 at p. 9.
. 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).
. Rec. Doc. 70-1 at p. 9.
. Id.
. Rec. Doc. 260 alp. 13.
. -U.S. -, 132 S.Ct 740, 181 L.Ed.2d 881 (2012).
. Rec. Doc. 260 at p. 14 (quoting Mims, 132 S.Ct. at 748) (internal citations omitted) (alterations omitted).
. Id.
. Id. (quoting Mims, 132 S.Ct. at 748).
. Id. at p. 15 (quoting Grable, 545 U.S. at 314, 125 S.Ct. 2363).
. Id. at p. 16.
. Id.
. Id. at p. 17 (citing Rec. Doc. 1-2).
. Id.
. Id. at p. 18.
. Id. (quoting Copeland-Turner v. Wells Fargo Bank, N.A., No. 11-37, 2011 WL 996706, at *5 (D.Or. Mar. 17, 2011)) (internal alterations omitted). Defendants also cite Castillo v. Bank of Am., N.A., No. 12-1833, 2012 WL 4793240, at *4 (S.D.Cal. Oct. 9, 2012).
. Id. atp. 19.
. Id.
. Id. at 20.
. Id. (quoting Grable, 545 U.S. at 313-14, 125 S.Ct. 2363).
. Id.
. Id. at pp. 20-22.
. Id. at p. 24.
. Id. atp. 25.
. Id.
. Id. at p. 26.
. Rec. Doc. 254 atp. 8.
. Id.
. "Natural gas company” refers to "a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.” Id. atp. 8 n. 5 (quoting 15 U.S.C. § 717a(6)).
. Id. (quoting Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 302, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988)) (internal quotation marks omitted).
. Id. at p. 9.
. Id. (quoting N. Natural Gas Co. v. Iowa Util Bd., 377 F.3d 817, 822 (8th Cir. 2004)) (internal quotation marks omitted).
. Id. atp. 10.
. Id. at p. 11 (quoting 18 C.F.R. § 157.206(b)(3)(iv)).
. Id. (quoting 18 C.F.R. § 157.206.(b)(3)(iii)).
. Id. at pp. 12-13 (citing 15 U.S.C. § 717f(b)).
. Id. atp. 21.
. Id. atp. 13.
. Id. atp. 14.
. Id.
. Id. atp. 22.
. Id. at pp. 22-23.
.Id. at pp. 24-25.
. Id. at pp. 27-28.
. Rec. Doc. 292 alp. 10.
. Rec. Doc. 1.
. Rec. Doc. 63.
. Rec. Doc. 292 atp. 10.
. Id. at p. 11 (quoting Energy Catering Servs., Inc. v. Burrow, 911 F.Supp. 221, 222 (E.D.La. 1995) (Mentz, J.)) (internal alterations omitted).
. Id.
. Id.
. Id. atp. 13.
. Id. (quoting Mims, 132 S.Ct. at 748-49) (emphasis in original).
. Id. atp. 14.
. Id. at p. 16 (citing, e.g., Stephens Cnty. v. Wilbros, LLC, No. 12-201, 2012 WL 4888425 (N.D.Ga. Oct. 6, 2012)).
.Id. atp. 17.
. Id. atp. 21.
. Id.
. Id. at p. 22.
. Id. at p. 22 (quoting Gunn, ,133 S.Ct. at 1066).
. Id. at p. 29 (quoting Grable, 545 U.S. at 318, 125 S.Ct. 2363).
. Id. at p. 30.
. Id. at pp. 30-31 (quoting Grable, 545 U.S. at 319, 125 S.Ct. 2363) (internal quotation marks and alterations omitted).
. Id. at p. 33.
. Id.
. Rec. Doc. 296 at p. 4.
. Id. at p. 7 (citing D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145 (5th Cir. 1979)).
. 28 U.S.C. § 1446(a).
. 28 U.S.C. § 1446(b).
. See Energy Catering, 911 F.Supp. 221 at 222-23 (citing Moody v. Commercial Ins. Co., 753 F.Supp. 198 (N.D.Tex. 1990); Mayers v. Connell, 651 F.Supp. 273, 274 (M.D.La. 1986)); see also 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733 (4th ed. 2013).
. 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733 (4th ed. 2013).
. See, e.g., Willingham v. Morgan, 395 U.S. 402, 407 n. 3, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (treating affidavits filed in support of a motion for summary judgment as an amendment to a petition for removal); USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n. 12 (3rd Cir. 2003) (explaining a court may “consider jurisdictional facts contained in later-filed affidavits as amendments to the removal petition where, as here, those facts merely clarify (or correct technical deficiencies in) the allegations already contained in the original notice”); Cohn v. Petsmart, Inc., 281 F.3d 837, 840 n. 1 (9th Cir. 2002) (concluding that the district court did not err in construing an opposition to a motion to remand as an amendment to the notice of removal); Wang v. Asset Acceptance, LLC, 680 F.Supp.2d 1122, 1125 (N.D.Cal. 2010) (treating evidence offered in opposition to a motion to remand as an amendment to the notice of removal); Carter v. Monsanto Co., 635 F.Supp.2d 479, 487 (S.D.W.Va. 2009) ("Where subsequently filed documents clarify allegations already stated in the notice of removal, a court may construe those documents as amending the notice of removal.”).
. Rec. Doc. 1 at p. 4.
. Id. at pp. 5-6.
. Id. at pp. 16-17.
. Id. at p. 16.
. See Stanley v. Wyeth, Inc., No. 06-1979, 2006 WL 2588147, at *l-*2 (E.D.La. Sept. 8, 2006) (Barbier, J.).
. See Augustine v. Alliance Ins. Agency Servs. Inc., 06-9062, 2007 WL 38320, *2 (E.D.La. Jan. 3, 2007) (Feldman, J.).
. Gunn, 133 S.Ct. at 1064 (quoting 28 U.S.C. § 1331).
. Grable, 545 U.S. at 312, 125 S.Ct. 2363; see also Gunn, 133 S.Ct. at 1064 ("Most directly, a case arises under federal law when federal law creates the cause of action asserted.”).
. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 563, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 164-66, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997).
. Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 2008).
. Id.
. Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229.
. Devon Energy Production Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1203 (10th Cir. 2012).
. Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425.
. Id. at 392, 107 S.Ct. 2425.
. Id. at 393, 107 S.Ct. 2425 (emphasis in original).
. Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)).
. Id. (citing Franchise Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)); see also Black’s Law Dictionary 324 (9th ed. 2009) (defining the “complete-preemption doctrine” as “[t]he rule that a federal statute’s preemptive force may be so extraordinary and all-encompassing that it converts an ordinary state-common-law complaint into one stating a federal claim for the purposes of the well-pleaded-complaint rule”).
. Hoskins v. Bekins Van Lines, 343 F.3d 769, 775 (5th Cir. 2003) (quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000)) (emphasis omitted).
. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006).
. Grable, 545 U.S. at 312, 125 S.Ct. 2363.
. Id. at 314, 125 S.Ct. 2363.
. Gunn, 133 S.Ct. at 1065 (citing Grable, 545 U.S. at 314, 125 S.Ct. 2363).
. Id. (quoting Grable, 545 U.S. at 313-14, 125 S.Ct. 2363).
. Rec. Doc. 1 atp. 17-18.
. Id. atp. 18-19.
. Id. atp. 19-20.
. Id. atp. 20-21.
. Id. atp. 21-22.
. Id. atp. 22-23.
. Mims, 132 S.Ct. at 744.
. 47 U.S.C. § 227(b)(3).
. See Mims, 132 S.Ct. at 748 ("Because federal law creates the right of action and provides the rules of decision, Mim’s TCPA claim, in 28 U.S.C. § 1331's words, plainly 'arises under' the 'laws of the United States.’ ") (internal alterations omitted); see also 47 U.S.C. § 227(b)(3).
. See id. at 744-45 ("The question presented is whether Congress’ provision for private actions to enforce the TCPA renders state courts the exclusive arbiters of such actions.”) (emphasis in original).
. See Caterpillar, 482 U.S. at 392-93, 107 S.Ct. 2425.
. Hoskins, 343 F.3d 769 (quoting Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d. 1 (2003)) (internal quotation marks omitted).
. See e.g., Rec. Doc. 254 at pp. 8-13 (discussing “the comprehensive scheme of federal regulation”), p. 18 (mentioning "the pre-emp-tive effect of the NGA”), p. 19 (averring that "issues of federal preemption exist”).
. See, e.g., Caterpillar, 482 U.S. at 393-94, 107 S.Ct. 2425; Metro. Life Ins. Co., 481 U.S. at 65, 107 S.Ct. 1542; Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841; Hoskins, 343 F.3d at 775.
.In contending that Plaintiff's claims necessarily raise a substantial federal issue, the Natural Gas Act Defendants offer arguments that allude to pre-emption. Specifically, the NGA Defendants aver that ''Plaintiffs Petition fails to set forth the standard of care to which the NGA Defendants were expected to adhere” and that "Plaintiff attempts to side-step that the standard of care that applies to interstate natural gas pipelines is established by the NGA.” Rec. Doc. 254 at p. 19. According to the NGA Defendants, "[t]he duties that apply to the NGA Defendants can only be defined by referring to, relying upon, and interpreting the Certificates authorizing the siting, construction and operation of their interstate natural gas pipelines, including their environmental conditions. Defining those duties entails balancing local concerns, including local environmental concerns and national interests, a function Congress delegated to the FERC.” Id.
The NGA Defendants' assertion that the Natural Gas Act and FERC regulations provide the proper standard of care, however, is more accurately characterized as the affirmative defense of preemption, which does not support federal-question jurisdiction. In Simmons v. Sabine River Authority of Louisiana, the Fifth Circuit addressed a negligence claim brought against the operator of a hydroelectric dam and state waterway authority, alleging that the defendants should have maintained a higher minimum reservoir elevation. See 732 F.3d 469, 472 (5th Cir. 2013). Defendants argued that plaintiffs' claims were subject to preemption, as FERC, through the Federal Power Act ("FPA”), had exclusive control over dam operations. See id. at 473. The Fifth Circuit held that plaintiffs’ claims were preempted “[bjecause the state law property claims at issue here infringe on FERC's operational control.” Id. at 476. The court explained that "[ajpplying state tort law to set the duty of care for the operation of FERC-licensed projects would 'stand as an obstacle to the accomplishment and execution of the full purposes and objectives’ of the FPA.... [T]he district court properly concluded that the FPA preempts Plaintiffs’ claims for negligence.” Id. at 477 (quoting Arizona v. United States, - U.S. -, 132 S.Ct. 2492, 2501, 183 L.Ed.2d 351 (2012)). In this manner, the Natural Gas Act Defendants' argument that the statutes and regulations governing FERC licensees provides the standard of care closely parallels the arguments made in Simmons, which were evaluated as the affirmative defense of pre-emption.
As noted above, under the Supreme Court decision in Caterpillar Inc. v. Williams, "a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question at issue.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (emphasis in original). Accordingly, the Natural Gas Act Defendants’ argument that the standard of care cannot conflict with the Natural Gas Act and FERC requirements does not provide a basis for federal-question jurisdiction.
. Gunn, 133 S.Ct. at 1065 (citing Grable, 545 U.S. at 314, 125 S.Ct. 2363).
. Id. at 1065 (noting that adjudicating plaintiff's claim "will necessarily require application of patent law to the facts of [plaintiff’s] case”).
. Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005); see also, e.g., Stephens Cnty. v. Wilbros, LLC, No. 12-201, 2012 WL 4888425, at *2 (N.D.Ga. Oct. 6, 2012).
. Rec. Doc. 1-2 atp. 17.
. Peterson v. Gibraltar Sav. and Loan, 98-1601 (La.5/18/99), 733 So.2d 1198, 1203-04.
. Rec. Doc. 1-2 atp. 16.
. Id.
. Id.
. Id. atp. 17.
. Id. at p. 16.
. Id. atp. 17.
. Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676, 693 (2006) (Vance, J.).
. In contending that Plaintiff's claims necessarily raise a federal question, the Natural Gas Act Defendants offer arguments distinct from those addressed in the main Defendants' brief. The main Defendants contend that a federal question is necessarily raised because Plaintiff's Petition expressly incorporates the Rivers and Harbors Act, the Clean Water Act, and the Coastal Zone Management Act in defining the standard of care. The Natural Gas Act. Defendants, however, cite federal law not addressed in Plaintiff's Petition in their supplemental opposition to the Motion to Remand. The Natural Gas Act Defendants aver that "Plaintiff's Petition fails to set forth the standard of care to which the NGA Defendants were expected to adhere” and that "Plaintiff attempts to-side-step that the standard of care that applies to interstate natural gas pipelines is established by the NGA.” Rec. Doc. 254 at p. 19. According to the Natural Gas Act Defendants, "[t]he duties that apply to the NGA Defendants can only be defined by referring to, relying upon, and interpreting the Certificates authorizing the siting, construction and operation of their interstate natural gas pipelines, including their environmental conditions. Defining those duties entails balancing local concerns, including local environmental concerns and national interests, a function Congress delegated to the FERC.” Id.
However, as discussed in footnote 372, the NGA Defendants’ argument is more accurately characterized as the defense of pre-emption and does provide a basis for federal-question jurisdiction.
. Rec. Doc. 1-2 at p. 20.
. 4 A.N. Yiannopoulos, Louisiana Civil Law Treatise, Predial Servitudes § 3:31 (4th ed. 2013) (citing Restatement (Second) of Torts § 821B (1979)).
. Cox v. City of Dallas, Tex., 256 F.3d 281, 289 (5th Cir. 2001) (citing Restatement (Second) of Torts § 821B (1979)).
. Rec. Doc. 1-2 at p. 20.
. Id. at p. 21.
. Id. atp. 22.
. Id.
. Id.
. For example, Plaintiff's Petition identifies the “Lake Borgne 59” permit issued to Chevron Oil Company on December 23, 1975. Rec. Doc. 1-2 at p. 113. This permit was issued by the Department of the Army pursuant to the River and Harbors Act and the Federal Water Pollution Control Act. Rec. Doc. 260-6 atpp. 2-18.
. Rec. Doc. 292 at p. 18.
. Rec. Doc. 260 at p. 18 (quoting Copeland-Turner, 20.11 WL 996706, at *5).
. Miree v. DeKalb Cnty., Ga., 433 U.S. 25, 26, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977).
. Id. at 28, 97 S.Ct. 2490 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
. Id. at 27, 97 S.Ct. 2490.
. Id.
. Id.
. Id. at 27-28, 97 S.Ct. 2490.
. Id. at 32-33, 97 S.Ct. 2490.
. See id. at 28-33, 97 S.Ct. 2490.
. Id. at 29, 97 S.Ct. 2490 (citing Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943)).
. See Almond v. Capital Properties, Inc., 212 F.3d 20 (1st Cir. 2000) (discussed infra); Price v. Pierce, 823 F.2d 1114 (7th Cir. 1987) (discussed infra).
. Boyle v. United Technologies Corp., 487 U.S. 500, 506, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).
. Id. at 507, 108 S.Ct. 2510.
. Id.
. 823 F.2d 1114 (7th Cir. 1987).
. See id. at 1117-18.
. See id.
. See id.
. Id. at 1120-21.
. Id. at 1120.
. Id.
. 212 F.3d 20 (1st Cir. 2000).
. Id. at 21.
. Id.
. Id. at 21-22.
. Id. at 22.
. Id. at 24.
. Id. at 22. Similarly, the Ninth Circuit has held that "[fjederal law governs the Ínter-pretation of contracts entered into pursuant to federal law and to which the government is a party.” Smith v. Central Ariz. Water Conservation Dist., 418 F.3d 1028, 1034 (9th Cir. 2005).
. Markle v. HSBC Mortg. Corp. (USA), 844 F.Supp.2d 172, 180 n. 9 (D.Mass. 2011) (synthesizing Miree, Price, Almond, and Smith).
. See Rec. Doc. 260-6, Permit issued by the Department of the Army to Chevron Oil Company, dated December 23, 1975; Rec. Doc. 260-7, Permit issued by the Department of the Army to Arco Oil and Gas Company, dated June 11, 1981.
.See, e.g., 16 U.S.C. § 1451 ("The Congress finds that ... (a) There is a national interest in the effective management, beneficial use, protection and development of the coastal zone.”); 30 U.S.C. § 1602 ("The Congress declares that it is the continuing policy of the United States to promote an adequate and stable supply of materials necessary to maintain national security, economic well-being and industrial production' with appropriate attention to a long-term balance between resource production, energy use, a healthy environment, natural resources conversation, and social needs.”).
. Price, 823 F.2d at 1120.
. Gunn, 133 S.Ct. at 1066 (emphasis in original).
. Id. at 1067 (internal citations and quotation marks omitted).
. Id. at 1063.
. Id.
. Id. at 1065.
. Id. at 1067 (noting that "[t]he present case is poles apart from Grable, in which a state court’s resolution of the federal question would be controlling in numerous other cases”).
. Id.
. Empire Healthchoice, 547 U.S. at 700-01, 126 S.Ct. 2121 (internal citations and quotation marks omitted); see also Singh, 538 F.3d at 339 C'[T]his case involves no important issue of federal law. Instead, the federal issue is predominantly one of fact.”).
. Gunn, 133 S.Ct. at 1066.
. Grable, 545 U.S. at 310-11, 125 S.Ct. 2363.
. Id. at 310-11, 125 S.Ct. 2363.
. Id. at 315, 125 S.Ct. 2363; see also Smith, 255 U.S. at 180, 41 S.Ct. 243 (holding that a shareholder suit seeking to enjoin a private company from investing in certain federal bonds on the grounds that the statute authorizing the issuance of those bonds was unconstitutional presented a federal question).
. Id.
. Id.
. 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). '
. Grable, 545 U.S. at 318, 125 S.Ct. 2363 ("Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the 'sensitive judgements about congressional intent’ that § 1331 requires.”).
. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 570 (6th Cir. 2007).
.552 F.3d 1290 (11th Cir. 2008).
. Davis v. GMAC Mortg. LLC, No. 11-95, 2012 WL 860389, at *4 (M.D.Ga. Mar. 13, 2012) (internal citations omitted) (summarizing Adventure Outdoors).
. See Rec. Doc. 1-2 at pp. 16-17; Rec. Doc. 254 at pp. 8-13; Rec. Doc. 260 at pp. 20-22.
. 16U.S.C. § 1451(a).
. 15 U.S.C. § 717(a).
. See Rec. Doc. 1-2 at pp. 25-34. Ninety-two defendants remain in the litigation. Some defendants have been dismissed without prejudice. See, e.g., Rec. Doc. 244. Other defendants were incorrectly named.
'. Rec. Doc. 1-2 atpp. 104-122.
. See Gunn, 133 S.Ct. at 1062-63 (describing Vernon Minton's attempt to patent an interactive securities trading system).
. See Merrell Dow, 478 U.S. at 805-06, 106 S.Ct. 3229 (describing Merrell Dow Pharmaceutical’s production of Bendectin, a drug for morning sickness).
. The parish cases were initially brought in state court but have since been removed to federal court. Case No. 13-6693 Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc.; Case No. 13-6698 Parish of Jefferson v. Atlantic Richfield Co.; Case No. 13-6701 Parish of Jefferson v. Anadarko E & P Onshore; Case No. 13-6704 Parish of Plaquemines v. BEPCO, L.P.; Case No. 13-6706 Parish of Plaquemines v. Linder Oil Co.; Case No. 13-6707 Parish of Plaquemines v. Caskids Operating Co.; Case No. 13-6708 Parish of Jefferson v. Canlan Oil Co.; Case No. 13-6709 Parish of Plaquemines v. Palm Energy Offshore, LLC; Case No. 13-6710 Parish of Plaquemines v. Riverwood Prod. Co.; Case No. 13-6711 Parish of Plaquemines v. Apache Oil Corp.; Case No. 13-6712 Parish of Plaquemines v. June Energy, Inc.; Case No. 13-6714 Parish of Jefferson v. Equitable Petroleum Corp.; Case No. 13-6715 Parish of Plaquemines v. Helis Oil & Gas Co.; Case No. 13-6716 Parish of Plaquemines v. Devon Energy Prod. Co.; Case No. 13-6717 Parish of Jeffer
. Empire Healthchoice, 547 U.S. at 700-01, 126 S.Ct. 2121 (internal citations and quotation marks omitted).
. Grable, 545 U.S. at 314, 125 S.Ct. 2363.
. Id. at 318, 125 S.Ct. 2363 ("Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the 'sensitive judgments about congressional intent’that § 1331 requires.”).
. Id. at 319, 125 S.Ct. 2363.
. Rec. Doc. 70.
Reference
- Full Case Name
- BOARD OF COMMISSIONERS OF THE SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY-EAST v. TENNESSEE GAS PIPELINE COMPANY, LLC
- Cited By
- 14 cases
- Status
- Published