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,
Case: 19-30492      Document: 00515521520           Page: 2    Date Filed: 08/10/2020


                                 No. 19-30492 c/w
                                  No. 19-30829

 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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                                No. 19-30829

        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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                                  No. 19-30829

        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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