It was only a matter of time before the suits based on alleged violations of the Coastal Zone Management Act made their way to Louisiana’s largest, but most desolate parish: Cameron Parish. Earlier this year, about 11 suits were filed against a number of oil, gas and pipeline companies that largely mirrored those pending in Jefferson and Plaquemines parishes.  But these suits have a notable difference: the petitions do not expressly disclaim maritime claims.  The significance of this difference may affect whether any of these Cameron Parish suits will be the first of the “Coastal Zone Cases” to successfully be removed.

The majors removed the Cameron Parish on the basis of federal question jurisdiction suits before any of the defendants were served. They assert that removal exists under both maritime law and the Outer Continental Shelf Lands Act (“OCSLA”).  Both theories were attempted in the U.S. District for the Eastern District of Louisiana when the similar suits filed in Jefferson and Plaquemines Parishes were removed to that court.  Although the Eastern District remanded all those suits back to state court, the grounds for remand are far from settled.

The majors argue that the key difference between the suits in Cameron and the ones remanded in Jefferson and Plaquemines is the plaintiffs’ lack of affirmation that they are not bringing claims under maritime law.  The statutory language of 28 U.S.C. § 1333(1) establishes that federal courts have original and exclusive jurisdiction over maritime cases.  The plaintiffs assert that the “saving to suitors” clause in § 1331 bars removal of the claims here on the basis of maritime jurisdiction.  But the defendants’ argument that the “saving to suitors” clause does not apply when a plaintiff implicitly pleads claims under maritime law by not expressly rejecting such claims and thus that removal is proper under maritime law.  A number of other grounds to maintain federal jurisdiction are thoroughly briefed, but this maritime appears to be the distinguishing point from the other Coastal Zone Cases.

Another novel issue before the Western District is the State’s independent basis to demand remand. While the State has intervened on the side of the plaintiff in all of the Coastal Zone Cases, it did so in the suits in Jefferson and Plaquemines parishes only after the suits were remanded.  The State now argues that it, and not Cameron Parish, is the proper plaintiff and that the Eleventh Amendment bars removal of its claims against the defendants.  As a result, the Western District will be the first court to consider the State’s Eleventh Amendment argument as a separate ground to remand.

The State alleges that the Eleventh Amendment renders the State “immune from removal against its will.” The State relies on general theories such as state dignity and federalism to support its position.  Of course, the State ignores that the Eleventh Amendment was drafted to protect the State when it is named as a defendant, not when it has chosen to pursue claims as a plaintiff.

Even though the Eastern District has remanded the similar Jefferson and Plaquemines Parish suits, the Western District has some new issues to consider. Specifically, the Western District must assess whether plaintiffs have alleged claims under maritime law and if this warrants it maintaining jurisdiction.  The Western District must also determine whether the State as an intervening party on the side of the plaintiff is immune from federal jurisdiction, as a general matter, based on the Eleventh Amendment.  Magistrate Judge Kay has granted oral argument on these and the other issues briefed in plaintiffs’ motions to remand.  The oral argument is set for September 1.  We are hopeful we will have a ruling before the end of the year and will know whether the Cameron Parish suit will take a different path from the other Coastal Zone Cases.