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On May 28, 2019, United States District Judge Martin Feldman issued a sixty-four page Order and Reasons which granted motions to remand filed by Plaquemines Parish and the State of Louisiana in The Parish of Plaquemines v. Riverwood Production Co., et al.  That case is one of forty-two Coastal Zone Management Act (“CZMA”) cases that were removed to Federal court in May 2018.  Those cases generally allege that more than 200 oil and gas companies violated Louisiana’s State and Local Coastal Resources Management Act of 1978 (“SLCRMA”) by either failing to obtain or violating state coastal use permits.  The cases were removed to Federal court by Defendants pursuant to 28 U.S.C. § 1442 (the federal officer removal statute) and 28 U.S.C. § 1331 (the federal question statute) on the basis that Plaintiffs’ claims (1) implicate wartime and national emergency activities undertaken at the direction of federal officers, and (2) necessarily require resolution of substantial, disputed questions of federal law.  In response, Plaintiffs filed motions to remand.  In those motions, Plaintiffs argued that (1) the removal was not timely because Defendants had notice of the grounds alleged in the removal notice more than thirty days before the cases were removed, (2) the Defendants could not satisfy the elements of the jurisdictional test for “federal officer” removal jurisdiction, and (3) Defendants could not satisfy the test for substantial federal question jurisdiction set forth by the United States Supreme Court.

In granting Plaintiffs’ motion to remand, the Court first found that Defendants’ removal, which was predicated on allegations made in Plaintiffs’ April 30, 2018 expert report (“Rozel Report”), was “simply too late.”  The Court’s conclusion was based on its determination that Plaintiffs previously placed at issue whether the defendants’ activities were lawfully commenced prior to the enactment of SLCRMA.  Instead of being triggered by the allegations in the Rozel Report, as Defendants argued, the Court found that the 30-day “other paper” removal period was triggered on April 13, 2017 (at the latest) by allegations contained in Plaintiffs’ memorandum in support of Plaintiffs’ motion to compel production of pre-SLCRMA documents.  Thus, the Court concluded, removal predicated on the April 30, 2018 Rozel Report was untimely.  Second, the Court determined that the Defendants failed to establish the “acting under” and “causal nexus” elements required for “federal officer” removal jurisdiction.[1]  With regard to the “acting under” requirement, the Court found that “the defendants at most demonstrate extensive but mere oversight regulation” which was insufficient to support a finding that Defendants were “acting under” the direction of a federal officer.  In analyzing the “causal nexus” requirement, the Court concluded that the government did not, in fact, exercise sufficient control over the oil and gas industry during World War II to establish a causal nexus between Defendants’ actions and Plaintiffs’ claims.  Lastly, the Court found that the Defendants did not establish federal question jurisdiction because Defendants did not sufficiently identify “necessary” or “substantial” federal issues raised by Plaintiffs’ claims.

At the end of the opinion, the Court recognized the Defendants’ right to appeal the Court’s remand order as it pertains to Defendants’ “federal officer” predicate for removal.  In addition, the Court granted Defendants’ request to certify for interlocutory appeal the federal question predicate for removal pursuant to 28 U.S.C. § 1292(b).

In response to the Court’s Order and Reasons, Defendants filed a Motion to Stay Remand Order Pending Appeal and a Motion for Expedited Consideration of the Motion to Stay on May 28, 2019.  The Motion for Expedited Consideration notes that the parties have agreed to the following proposed briefing schedule (1) Plaintiffs’ Opposition to Defendants’ Motion to Stay shall be filed by June 5, 2019, (2) Defendants’ Reply shall be filed by June 10, 2019, and (3) Defendants’ Motion to Stay shall be submitted for decision as of June 10, 2019.

[1] The Court did not address whether the defendants asserted colorable federal defenses, which is another required element for “federal officer” removal jurisdiction.

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