COUNTY OF SAN MATEO, individually and on behalf of the People of the State of California, Plaintiff-Appellee, v. CHEVRON CORPORATION; CHEVRON U.S.A. INC.; EXXONMOBIL CORPORATION; BP PLC; BP AMERICA, INC.; SHELL PLC; SHELL OIL PRODUCTS COMPANY LLC; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66 COMPANY; PEABODY ENERGY CORPORATION; TOTAL E&P USA, INC.; TOTAL SPECIALTIES USA, INC.; ARCH COAL INC.; ENI OIL & GAS, INC.; RIO TINTO ENERGY AMERICA, INC.; RIO TINTO MINERALS, INC.; RIO TINTO SERVICES, INC.; ANADARKO PETROLEUM CORPORATION; OCCIDENTAL PETROLEUM CORPORATION; OCCIDENTAL CHEMICAL CORPORATION; REPSOL ENERGY NORTH AMERICA CORP.; REPSOL TRADING USA CORP.; MARATHON OIL COMPANY; MARATHON OIL CORPORATION; MARATHON PETROLEUM CORP.; HESS CORP.; DEVON ENERGY CORP.; DEVON ENERGY PRODUCTION COMPANY, LP; ENCANA CORPORATION; APACHE CORP., Defendants-Appellants.
No. 18-15499
United States Court of Appeals for the Ninth Circuit
D.C. No. 3:17-cv-04929-VC
CITY OF IMPERIAL BEACH, individually and on behalf of the People of the State of California, Plaintiff-Appellee, v. CHEVRON CORPORATION; CHEVRON U.S.A. INC.; EXXONMOBIL CORPORATION; BP PLC; BP AMERICA, INC.; SHELL PLC; SHELL OIL PRODUCTS COMPANY LLC; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66 COMPANY; PEABODY ENERGY CORPORATION; TOTAL E&P USA, INC.; TOTAL SPECIALTIES USA, INC.; ARCH COAL INC.; ENI OIL & GAS, INC.; RIO TINTO ENERGY AMERICA, INC.; RIO TINTO MINERALS, INC.; RIO TINTO SERVICES, INC.; ANADARKO PETROLEUM CORPORATION; OCCIDENTAL PETROLEUM CORPORATION; OCCIDENTAL CHEMICAL CORPORATION; REPSOL ENERGY NORTH AMERICA CORP.; REPSOL TRADING USA CORP.; MARATHON OIL COMPANY; MARATHON OIL CORPORATION; MARATHON PETROLEUM CORP.; HESS CORP.; DEVON ENERGY CORP.; DEVON ENERGY PRODUCTION COMPANY, LP; ENCANA CORPORATION; APACHE CORP., Defendants-Appellants.
No. 18-15502
United States Court of Appeals for the Ninth Circuit
D.C. No. 3:17-cv-04934-VC
COUNTY OF MARIN, individually and on behalf of the People of the State of California, Plaintiff-Appellee, v. CHEVRON CORPORATION; CHEVRON U.S.A. INC.; EXXONMOBIL CORPORATION; BP PLC; BP AMERICA, INC.; SHELL PLC; SHELL OIL PRODUCTS COMPANY LLC; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66 COMPANY; PEABODY ENERGY CORPORATION; TOTAL E&P USA, INC.; TOTAL SPECIALTIES USA, INC.; ARCH COAL INC.; ENI OIL & GAS, INC.; RIO TINTO ENERGY AMERICA, INC.; RIO TINTO MINERALS, INC.; RIO TINTO SERVICES, INC.; ANADARKO PETROLEUM CORPORATION; OCCIDENTAL PETROLEUM CORPORATION; OCCIDENTAL CHEMICAL CORPORATION; REPSOL ENERGY NORTH AMERICA CORP.; REPSOL TRADING USA CORP.; MARATHON OIL COMPANY; MARATHON OIL CORPORATION; MARATHON PETROLEUM CORP.; HESS CORP.; DEVON ENERGY CORP.; DEVON ENERGY PRODUCTION COMPANY, LP; ENCANA CORPORATION; APACHE CORP., Defendants-Appellants.
No. 18-15503
United States Court of Appeals for the Ninth Circuit
D.C. No. 3:17-cv-04935-VC
COUNTY OF SANTA CRUZ, individually and on behalf of The People of the State of California; CITY OF SANTA CRUZ, a municipal corporation, individually and on behalf of The People of the State of California; CITY OF RICHMOND, individually and on behalf of The People of the State of California, Plaintiffs-Appellees, v. CHEVRON CORPORATION; CHEVRON U.S.A. INC.; EXXONMOBIL CORPORATION; BP PLC; BP AMERICA, INC.; SHELL PLC; SHELL OIL PRODUCTS COMPANY LLC; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66 COMPANY; PEABODY ENERGY CORPORATION; TOTAL E&P USA, INC.; TOTAL SPECIALTIES USA, INC.; ARCH COAL INC.; ENI OIL & GAS, INC.; RIO TINTO ENERGY AMERICA, INC.; RIO TINTO MINERALS, INC.; RIO TINTO SERVICES, INC.; ANADARKO PETROLEUM CORPORATION; OCCIDENTAL PETROLEUM CORPORATION; OCCIDENTAL CHEMICAL CORPORATION; REPSOL ENERGY NORTH AMERICA CORP.; REPSOL TRADING USA CORP.; MARATHON OIL COMPANY; MARATHON OIL CORPORATION; MARATHON PETROLEUM CORP.; HESS CORP.; DEVON ENERGY CORP.; DEVON ENERGY PRODUCTION COMPANY, LP; ENCANA CORPORATION; APACHE CORP., Defendants-Appellants.
No. 18-16376
United States Court of Appeals for the Ninth Circuit
April 19, 2022
D.C. Nos. 3:18-cv-00450-VC, 3:18-cv-00458-VC, 3:18-cv-00732-VC
On Remand from the United States Supreme Court
Filed April 19, 2022
Before: Sandra S. Ikuta, Morgan Christen, and Kenneth K. Lee, Circuit Judges.
Opinion by Judge Ikuta
Removal Jurisdiction
On remand from the Supreme Court, the panel affirmed the district court‘s order remanding global-warming related complaints to state court after they were removed by the energy company defendants.
The complaints alleged that the energy companies’ extraction of fossil fuels and other activities were a substantial factor in causing global warming and sea level rise. The County of San Mateo and other plaintiffs asserted causes of action for public and private nuisance, strict liability for failure to warn, strict liability for design defect, negligence, negligent failure to warn, and trespass.
In a prior opinion, the panel affirmed the district court‘s determination that no subject matter jurisdiction existed under the federal-officer removal statute, and the panel dismissed the rest of the appeal for lack of appellate jurisdiction. The Supreme Court granted the energy companies’ petition for certiorari and remanded for further consideration in light of BP p.l.c. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021), which interpreted
On remand, the panel concluded that Baltimore effectively abrogated the reasoning and holding of Patel v.Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006), which held that the court of appeals lacked authority to review a remand order considering bases for subject matter jurisdiction other than federal officer jurisdiction. Accordingly, the panel considered all bases for removal raised by the defendants, rather than addressing only federal officer removal.
The panel held that the district court lacked federal-question jurisdiction under
The panel held that plaintiffs’ claims were not removable under the Outer Continental Shelf Lands Act, which gives federal courts jurisdiction over actions “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, or which involves rights to such minerals.” Taking a different approach from other circuits, which interpreted the statute as requiring a “but-for”
The panel held that the district court did not have subject matter jurisdiction under the federal-officer removal statute,
The panel rejected the energy companies’ argument that the district court had removal jurisdiction over the complaints under
Finally, the panel held that the district court did not have admiralty jurisdiction because maritime claims brought in state court are not removable to federal court absent an independent jurisdictional basis, such as diversity jurisdiction.
Theodore J. Boutrous Jr. (argued), Andrea E. Neuman, William E. Thomson, and Joshua S. Lipshutz, Gibson Dunn & Crutcher LLP, Los Angeles, California; Herbert J. Stern and Joel M. Silverstein, Stern & Kilcullen LLC, Florham Park, New Jersey; Neal S. Manne, Johnny W. Carter, Erica Harris, and Steven Shepard, Susman Godfrey LLP, Houston, Texas; for Defendants-Appellants Chevron Corporation and Chevron U.S.A. Inc.
M. Randall Oppenheimer and Dawn Sestito, O‘Melveny & Myers LLP, Los Angeles, California; Theodore V. Wells Jr., Daniel J. Toal, and Jaren Janghorbani, Paul Weis Rifkind Wharton & Garrison LLP, New York, New York; for Defendant-Appellant Exxon Mobil Corporation.
Jonathan W. Hughes, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Matthew T. Heartney and John D. Lombardo, Arnold & Porter Kaye Scholer LLP, Los Angeles, California; Philip H. Curtis and Nancy Milburn, Arnold & Porter Kaye Scholer LLP, New York, New York; for Defendants-Appellants BP PLC and BP America Inc.
Daniel B. Levin, Munger Tolles & Olson LLP, Los Angeles, California; Jerome C. Roth and Elizabeth A. Kim, Munger Tolles & Olson LLP, San Francisco, California; David C. Frederick and Brendan J. Crimmins, Kellogg Hansen Todd Figel & Frederick PLLC, Washington, D.C.; for Defendants-Appellants Shell PLC and Shell Oil Products Company LLC.
Craig A. Moyer and Peter Duchesneau, Manatt Phelps & Phillips LLP, Los Angeles, California; Stephanie A. Roeser, Manatt Phelps & Phillips LLP, San Francisco, California;
Sean C. Grimsley and Jameson R. Jones, Bartlit Beck LLP, Denver, Colorado; Megan R. Nishikawa and Nicholas A. Miller-Stratton, King & Spalding LLP, San Francisco, California; Traci J. Renfroe and Carol M. Wood, King & Spalding LLP, Houston, Texas; for Defendants-Appellants ConocoPhillips and ConocoPhillips Company.
Steven M. Bauer and Margaret A. Tough, Latham & Watkins LLP, San Francisco, California; for Defendant-Appellant Phillips 66 Company.
William M. Sloan and Jessica L. Grant, Venable LLP, San Francisco, California, for Defendant-Appellant Peabody Energy Corporation.
Christopher W. Keegan, Kirkland & Ellis LLP, San Francisco, California; Andrew R. McGaan, Kirkland & Ellis LLP, Chicago, Illinois; Anna G. Rotman, Kirkland & Ellis LLP, Houston, Texas; Bryan D. Rohm, Total E&P USA Inc., Houston, Texas; for Defendants-Appellants Total E&P USC Inc. and Total Specialties USA Inc.
Thomas F. Koegel, Crowell & Moring LLP, San Francisco, California; Kathleen Taylor Sooy and Tracy A. Roman, Crowell & Moring LLP, Washington, D.C.; for Defendant-Appellant Arch Coal Inc.
David E. Cranston, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California, for Defendant-Appellant Eni Oil & Gas Inc.
Bryan M. Killian, Morgan Lewis & Bockius LLP, Washington, D.C.; James J. Dragna and Yardena R. Zwang-Weissman, Morgan Lewis & Bockius LLP, Los Angeles, California; for Defendant-Appellant Anadarko Petroleum Corporation.
Marc A. Fuller and Matthew R. Stammel, Vinson & Elkins LLP, Dallas, Texas; Stephen C. Lewis and R. Morgan Gilhuly, Barg Coffin Lewis & Trapp LLP, San Francisco, California; for Defendants-Appellants Occidental Petroleum Corporation, and Occidental Chemical Corporation.
Christopher J. Carr and Jonathan A. Shapiro, Baker Botts LLP, San Francisco, California; Scott Janoe, Baker Botts LLP, Houston, Texas; Evan Young, Baker Botts LLP, Austin, Texas; Megan Berge, Baker Botts LLP, Washington, D.C. for Defendants-Appellants Repsol Energy North America Corp. Repsol Trading USA Corp., Marathon Oil Company, Marathon Oil Corporation, and Hess Corp.
Shannon S. Broome and Ann Marie Mortimer, Hunton Andrews Kurth LLP, San Francisco, California; Shawn Patrick Regan, Hunton Andrews Kurth LLP, New York, New York; for Defendant-Appellant Marathon Petroleum Corp.
Gregory Evans, McGuireWoods LLP, Los Angeles, California; Steven R. Williams, Joy C. Fuhr, and Brian D. Schmalzbach, McGuireWoods LLP, Richmond, Virginia; for
Michael F. Healy, Shook Hardy & Bacon LLP, San Francisco, California; Michael L. Fox, Duane Morris LLP, San Francisco, California; for Defendant-Appellant Encana Corporation.
Mortimer Hartwell, Vinson & Elkins LLP, San Francisco, California; Patrick W. Mizell and Deborah C. Milner, Vinson & Elkins LLP, Houston, Texas; for Defendant-Appellant Apache Corp.
Victor M. Sher (argued), Matthew K. Edling, Katie H. Jones, and Martin D. Quiñones, Sher Edling LLP, San Francisco, California; Kevin K. Russell, Sarah H. Harrington, and Charles H. Davis, Goldstein & Russell P.C., Bethseda, Maryland; for Plaintiffs-Appellees.
John C. Beiers, County Counsel; Paul A. Okada, and David A. Silberman, Chief Deputies; Margaret V. Tides and Matthew J. Sanders, Deputies; Office of the San Mateo County Counsel, Redwood City, California; for Plaintiff-Appellee County of San Mateo.
Jennifer Lyon, City Attorney; Steven E. Boehmer, Assistant City Attorney; Imperial Beach City Attorney, La Mesa, California; for Plaintiff-Appellee City of Imperial Beach.
Brian E. Washington, County Counsel; Brian C. Case and Brandon Halter, Deputy County Counsel; Office of the Marin County Counsel, San Rafael, California; for Plaintiff-Appellee County of Marin.
Anthony P. Condotti, City Attorney, Office of the City Attorney, Santa Cruz, California, for Plaintiff-Appellee City of Santa Cruz.
Bruce Reed Goodmiller and Rachel H. Sommovilla, Office of the City Attorney, Richmond, California, for Plaintiff-Appellee City of Richmond.
Zachary D. Tripp and Lauren E. Morris, Weil Gotshal & Manges LLP, Washington, D.C.; Sarah M. Sternlieb, Weil Gotshal & Manges LLP, New York, New York; Peter D. Keisler, C. Frederick Beckner III, Ryan C. Morris, and Tobias S. Loss-Eaton, Sidley Austin LLP, Washington, D.C.; Steven P. Lehotsky, Michael B. Schon, and Jonathan D. Urick, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.
Robert S. Peck, Center for Constitutional Litigation P.C., Washington, D.C.; Gerson H. Smoger, Smoger & Associates P.C., Dallas, Texas; for Amici Curiae Senator Sheldon Whitehouse.
Michael Burger, Morningside Heights Legal Services Inc., New York, New York, for Amici Curiae National League of Cities, U.S. Conference of Mayors, and International Municipal Lawyers Association.
James R. Williams, County Counsel; Greta S. Hansen, Chief Assistant County Counsel; Laura S. Trice, Lead Deputy County Counsel; Tony LoPresti, Deputy County Counsel; Office of Santa Clara County Counsel, San Jose, California; for Amicus Curiae California State Association of Counties.
Daniel P. Mensher and Alison S. Gaffney, Keller Rohrback LLP, Seattle, Washington, for Amici Curiae Robert Brule, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, and Geoffrey Supran.
William A. Rossbach, Rossbach Law P.C., Missoula, Montana; Kenneth L. Adams, Adams Holcomb LLP, Washington, D.C.; for Amici Curiae Mario J. Molina, Michael Oppenheimer, Susanne C. Moser, Donald J. Wuebbles, Gary Griggs, Peter C. Frumhoff, and Kirstina Dahl.
Rob Bonta, Attorney General; Sally Magnani, Senior Assistant Attorney General; David A. Zonana, Supervising Deputy Assistant Attorney General; Erin Ganahl and Heather Leslie, Deputy Attorneys General; Attorney General‘s Office, California Department of Justice, Oakland, California; Letitia James, Attorney General, New York, New York; Brian E. Frosh, Attorney General, Baltimore, Maryland; Gurbir S. Grewal, Attorney General, Trenton, New Jersey; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Peter F. Neronha, Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Montpelier,
Peter Huffman, Natural Resources Defense Council, Washington, D.C.; Ian Fein, Natural Resources Defense Council, San Francisco, California; for Amicus Curiae Natural Resources Defense Council Inc.
IKUTA, Circuit Judge:
This appeal requires us to determine whether a district court erred in remanding the plaintiffs’ global-warming related complaints to state court after they were removed by the energy company defendants. On appeal, the defendants argue that the district court had removal jurisdiction over these complaints on multiple grounds, including federal question and federal enclave jurisdiction under
I
The County of San Mateo, the County of Marin, and the City of Imperial Beach filed three materially similar complaints in California state court against more than 30 energy companies in July 2017.1 The complaints allege that the Energy Companies’ “extraction, refining, and/or formulation of fossil fuel products; their introduction of fossil fuel products into the stream of commerce; their wrongful promotion of their fossil fuel products and concealment of known hazards associated with use of those products; and their failure to pursue less hazardous alternatives available to them; is a substantial factor in causing the increase in global
The Energy Companies removed the three complaints to federal court, asserting multiple bases for subject matter jurisdiction: (1) the Counties’ claims raise disputed and substantial federal issues, see Grable & Sons Metal Prods., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308 (2005); (2) the Counties’ claims are “completely preempted” by federal law; (3) the Counties’ claims arose on “federal enclaves“; (4) the Counties’ claims arise out of operations on the outer Continental Shelf, see
The Counties moved to remand each case to state court based on a lack of subject matter jurisdiction. In a reasoned opinion, the district court rejected all the grounds on which the Energy Companies relied for subject matter jurisdiction, but stayed its remand orders to give the Energy Companies an opportunity to appeal.
The Energy Companies appealed, and we affirmed the district court‘s determination that no subject matter jurisdiction existed under the federal-officer removal statute. County of San Mateo v. Chevron Corp., 960 F.3d 586, 603 (9th Cir. 2020), vacated, 141 S. Ct. 2666 (2021) (mem.). We dismissed the rest of the appeal for lack of appellate jurisdiction. Id. Under
The Energy Companies sought review by the Supreme Court. While the Energy Companies’ petition for certiorari was pending, the Supreme Court decided BP p.l.c. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021). Baltimore interpreted
On remand, we conclude that Baltimore has effectively abrogated Patel‘s reasoning and holding “in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Because Baltimore held that
We have jurisdiction under
II
A
We start with the Energy Companies’ argument that the district court erred in rejecting its claims that it had federal-question jurisdiction under
At the time of removal, the Counties’ complaints asserted only state-law claims against the Energy Companies. Under the well-pleaded complaint rule, the plaintiff is “the ‘master of the claim‘” and can generally avoid federal jurisdiction if a federal question does not appear on the face of the complaint. City of Oakland v. BP PLC, 969 F.3d 895, 904 (9th Cir. 2020) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). The Energy Companies argue that the Counties’ global-warming claims arise under federal common law and are removable under two exceptions to the well-pleaded complaint rule: (1) the exception articulated in Grable; and (2) the doctrine of complete preemption. We consider each in turn.
1
Grable affirmed a long line of Supreme Court cases that recognized an exception to the well-pleaded complaint rule when “federal law is a necessary element of the [plaintiff‘s] claim for relief.” Oakland, 969 F.3d at 904 (cleaned up). “Only a few cases” have ever fallen into this narrow category. Id. Under this exception, “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.” Gunn v. Minton, 568 U.S. 251, 258 (2013). If those requirements are met, federal jurisdiction exists “because there is a ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum,’ which can be vindicated without disrupting Congress‘s intended division of labor between state and
In Oakland, we considered a similar issue. In that case, two cities sued various energy companies in state court, raising a state-law claim for public nuisance based on “production and promotion of massive quantities of fossil fuels” which “caused or contributed to ‘global warming-induced sea level rise,‘” and in turn led to injuries to the cities’ wastewater treatment systems and stormwater infrastructure, as well as other injuries. Id. at 901–02. The energy companies argued that we had federal jurisdiction over the state complaint under the exception to the well-pleaded complaint rule for substantial federal questions. Id. at 902.
We rejected this argument, holding that even assuming that the complaint “could give rise to a cognizable claim for public nuisance under federal common law,” the state law claim in that case did not raise a substantial federal question because “the claim neither requires an interpretation of a federal statute . . . nor challenges a federal statute‘s constitutionality,” nor identifies “a legal issue necessarily raised by the claim that, if decided, will be controlling in numerous other cases.” Id. at 906 (cleaned up). Further, as we explained:
[I]t is not clear that the claim requires an interpretation or application of federal law at all, because the Supreme Court has not yet determined that there is a federal common law
of public nuisance relating to interstate pollution, and we have held that federal public-nuisance claims aimed at imposing liability on energy producers for acting in concert to create, contribute to, and maintain global warming and conspiring to mislead the public about the science of global warming, are displaced by the Clean Air Act.
Id. (cleaned up).
We also rejected the energy companies’ argument that because the complaint “implicates a variety of ‘federal interests,‘” including energy policy, national security, and foreign policy, the complaint necessarily raised a substantial federal question. Id. at 906–07. Although we acknowledged that the “question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question,” we concluded it “does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction under
The same analysis applies here. Although in Oakland the plaintiffs raised a single public nuisance claim, while here the
Therefore, the exception to the well-pleaded complaint rule for substantial federal questions under Grable does not apply to the Counties’ claims.
2
Second, the Energy Companies argue that the Counties’ state law claims fall under the “artful-pleading doctrine,” another exception to the well-pleaded complaint rule. Oakland, 969 F.3d at 905. Under this doctrine, a federal
The Energy Companies assert that the Counties’ state-law claims are “completely preempted by the Clean Air Act and/or other federal statutes and the United States Constitution.” We rejected this precise argument in Oakland, observing that “[t]he Clean Air Act is not one of the three statutes that the Supreme Court has determined has extraordinary preemptive force” and concluding that it does not “meet either of the two requirements for complete preemption.” Id. at 907. The Energy Companies do not identify any other federal statute that completely preempts the state-law claims here. Therefore, the complete preemption exception to the well-pleaded complaint rule does not apply.
We next turn to the Energy Companies’ argument that the Counties’ complaints arise under federal law for purposes of
The removal of a claim brought in state court under the federal enclave doctrine is premised on the following legal framework. First, a state law claim brought in state court is removable under
Congress shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District[s] . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
As this clause has been interpreted, when the federal government purchases state land with the consent of the state legislature, “any law existing [on that land] must derive its authority and force from the United States and is for that reason federal law.” Mater v. Holley, 200 F.2d 123, 124 (5th Cir. 1952).3 Accordingly, unless an exception applies, any conduct on a federal enclave is governed by federal law. Id.4 Because federal law governs disputes arising from such conduct, federal courts have the “power to adjudicate controversies arising” on federal enclaves. Id. If federal law applies to a legal controversy arising on federal enclaves, then such a controversy necessarily “arises under the laws of the United States, within the meaning of 28 U.S.C. § 1331.” Id. at 125. In sum, because conduct on a federal enclave is generally subject to federal law, a claim based on injuries stemming from such conduct arises under federal law, and a court has jurisdiction over such a claim under
We have referenced this framework for federal enclave jurisdiction in several cases. In Willis v. Craig, a civilian employee who was injured while working at a federal naval center brought a negligence action in federal court. See 555 F.2d 724, 725 (9th Cir. 1977) (per curiam). We held that federal jurisdiction was proper if the employee‘s accident occurred on property that qualified as a federal enclave. Id.
In this case, the Counties have not alleged that their claims are based on torts taking place on a federal enclave. Rather, their complaint raises state-law claims arising from injuries to real property and infrastructure within their local jurisdictions. For instance, San Mateo‘s alleged injuries flow from its claim of trespass to land, i.e., that the Energy Companies’ petroleum activities ultimately led to a sea-level rise that caused water to enter San Mateo property in violation of trespass law and caused various damages and nuisances there, including the destruction of real property and infrastructure within its borders.6
Therefore, we turn to the question whether the Counties’ tort claims arose from actions and injuries that occurred on federal enclaves and thus were governed by federal law. The Energy Companies argue that “pertinent” or “substantial” events giving rise to the complaints took place on federal enclaves. Specifically, they contend that Standard Oil Co. (Chevron‘s predecessor) operated Elk Hills Naval Petroleum Reserve, a federal enclave, for many decades, and CITGO distributed gasoline and diesel under its contracts with the government to multiple naval installations that are federal enclaves. Relying on several district court opinions, the Energy Companies contend that because federal law applied to these activities on federal enclaves, federal law applies to the Counties’ claims, which are therefore removable under
We disagree. Unlike in Willis, where the accident that resulted in the plaintiff‘s injury occurred on a federal enclave, or in Durham, where the exposure that resulted in the plaintiff‘s injury occurred on a federal enclave, the Energy Companies allege only that some of the defendants engaged
B
The Energy Companies next argue that the Counties’ claims were removable under the Outer Continental Shelf Lands Act (OCSLA). OCSLA gives federal courts jurisdiction over actions “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
According to the Energy Companies, the Counties’ tort claims fall within this jurisdictional grant. The Energy Companies reason as follows: The Counties allege that their injuries were caused in part by the Energy Companies’ cumulative fossil-fuel extraction; and a portion of this extraction took place on the outer Continental Shelf (OCS) because some of the Energy Companies have conducted (and continue to conduct) petroleum exploration, development, and production on the outer Continental Shelf.9 Therefore, the Energy Companies argue, the Counties’ claims “aris[e]
In evaluating the Energy Companies’ argument, we begin with the text of the jurisdictional statute,
Applying this interpretive approach, we turn to the structure and purpose of OCSLA as a whole. The Supreme Court has explained that “the purpose of OCSLA was ‘to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources.‘” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479 n.7 (1981) (citation omitted). According to the Supreme Court‘s historical review of OCSLA, Congress was concerned about the extensive activity taking place on the outer Continental Shelf, and the need to identify with clarity the body of law that would govern such activities. See Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 358 (1969). Congress recognized that “the full development of the estimated values in the shelf area [would] require the efforts and the physical presence of thousands of workers on fixed structures in the shelf area,” and that “[i]ndustrial accidents, accidental death, peace, and order present problems requiring a body of law for their solution.” Id. (cleaned up). After debating whether federal or state law should be applicable to the platforms and artificial islands created in the outer Continental Shelf (and to the workers present there), see id. at 363–64, Congress determined that federal law should “be applicable in the area, but that where there is a void, the State law may be applicable,” id. at 358 (citation omitted).
To implement this determination, Congress expressly adopted “the federal enclave model” for OCSLA. Parker Drilling, 139 S. Ct. at 1890. It did so by enacting
The “textual connection between the OCSLA and the federal enclave model” as set out in
Reading the phrase “aris[e] out of, or in connection with” in
Three of our sister circuits have “deem[ed] § 1349 to require only a ‘but-for’ connection” between operations on the outer Continental Shelf and a plaintiff‘s alleged injuries. See In re Deepwater Horizon, 745 F.3d 157, 163–64 (5th Cir. 2014) (citation omitted) (collecting cases); see also Bd. of Cnty. Comm‘rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1273 (10th Cir. 2022) (adopting the Fifth Circuit‘s approach); Mayor & City Council of Baltimore v. BP P.L.C., 2022 WL 1039685, at *21 (4th Cir. Apr. 7, 2022) (following the Fifth and Tenth Circuits in concluding that “invoking jurisdiction under
Despite our different approach to construing
We now apply our rule to the Energy Companies’ assertions here. The Energy Companies argue that because the Counties assert that their injuries were caused in part by the Energy Companies’ cumulative fossil-fuel extraction, and because a portion of this extraction took place on the outer Continental Shelf, the Counties’ claims “aris[e] out of, or in
We now turn to the Energy Companies’ claim that the district court had subject matter jurisdiction under the federal-officer removal statute,
As currently drafted,
A civil action . . . that is against or directed to . . . [t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
In order to invoke
The parties focus on the first prong: whether the Energy Companies were “acting under” a federal officer‘s directions. We begin by providing some background. The federal officer removal statute has existed in some version since 1815. Willingham v. Morgan, 395 U.S. 402, 405 (1969). Although Congress has amended the statute on a number of occasions, see Watson v. Philip Morris Cos., 551 U.S. 142, 147–49 (2007), most recently in 2011, see
When Congress first enacted
The Supreme Court subsequently interpreted the term “person acting under that officer” as extending to a “private person” who has certain types of close relationships with the federal government. See Watson, 551 U.S. at 152–53. The Supreme Court has identified a number of factors courts should consider in determining whether a private person is “acting under” a federal officer for purposes of
As the Supreme Court has indicated, and circuit courts have held, a government contractor qualifies as a person “acting under” an officer under certain circumstances. See id. at 153–54. Watson cited with approval a Fifth Circuit case, Winters v. Diamond Shamrock Chemical Co., which held that a government contractor could remove a state action under
By contrast, a person is not “acting under” a federal officer when the person enters into an arm‘s-length business arrangement with the federal government or supplies it with widely available commercial products or services. See Cabalce, 797 F.3d at 727–29; cf. Goncalves, 865 F.3d at 1244–47; Winters, 149 F.3d at 398–400. Nor does a person‘s “compliance with the law (or acquiescence to an order)” amount to “‘acting under’ a federal official who is giving an order or enforcing the law.” Watson, 551 U.S. at 152. This is true “even if the regulation is highly detailed and even if the private firm‘s activities are highly supervised and monitored.” Id. at 153. We may not interpret
We first consider CITGO‘s fuel supply agreements with the Navy Exchange Service Command (NEXCOM). Under these contracts, CITGO agreed to supply gasoline and diesel fuel to NEXCOM for service stations on approximately forty U.S. Navy installations. The government resold the CITGO fuel at NEXCOM facilities to individual service members. The Energy Companies point to three sets of contractual requirements in the fuel supply agreements which they claim establish the “subjection, guidance or control” necessary to invoke federal jurisdiction, namely: (1) “fuel specifications” that required compliance with specified American Society for Testing and Material Standards and required that NEXCOM have a qualified independent source analyze the products for compliance with those specifications; (2) provisions that give the Navy the right to inspect delivery, site, and operations; and (3) branding and advertising requirements.16
This argument fails. The contracts evince an arm‘s-length business relationship to supply NEXCOM with generally available commercial products. Supplying gasoline to the Navy for resale to its employees is not an activity so closely related to the government‘s implementation of federal law that the person faces “a significant risk of state-court ‘prejudice.‘” Watson, 551 U.S. at 152 (citation omitted). Accordingly, we hold that CITGO was not “acting under” a federal officer by supplying gasoline and diesel fuel to NEXCOM pursuant to fuel supply contracts.
Second, the Energy Companies point to the 1994 unit agreement17 for the petroleum reserves at Elk Hills between Standard Oil Company of California (Chevron Corporation‘s
In brief, Standard owned one-fifth and the Navy owned four-fifths of the approximately 46,000 acres comprising the Elk Hills reserves. As is common in the oil exploration and production industry, the two landowners entered into a unit agreement to coordinate operations in the oil field and production of the oil. Because the Navy sought to limit oil production in order to ensure the availability of oil reserves in the event of a national emergency, the unit agreement required that both Standard and the Navy curtail their production and gave the Navy “exclusive control over the exploration, prospecting, development, and operation of the Reserve.” To compensate Standard for reducing production, the unit agreement gave Standard the right to produce a specified amount of oil per day (an average of 15,000 barrels per day). Both parties could dispose of the oil they extracted as they saw fit, and neither had a “preferential right to purchase any portion of the other‘s share of [the] production.”
Standard‘s activities under the unit agreement did not give rise to a relationship where Standard was “acting under” a federal officer for purposes of
Finally, we consider the Energy Companies’ lease agreements, entitled “Oil and Gas Lease of Submerged Lands Under the Outer Continental Shelf Lands Act.” Under these standard-form leases, the government grants the lessee the right to explore and produce oil and gas resources in the submerged lands of the outer Continental Shelf, and in exchange the lessee agrees to pay the government rents and royalties. The Energy Companies argue that the lessee Energy Companies were “acting under” a federal officer because the leases require that the lessees drill for oil and gas pursuant to government-approved exploration plans and that the lessees sell some of their production to certain buyers; specifically, lessees must offer twenty percent of their
This argument also fails. The leases do not require that lessees act on behalf of the federal government, under its close direction, or to fulfill basic governmental duties. Nor are lessees engaged in an activity so closely related to the government‘s function that the lessee faces “a significant risk of state-court ‘prejudice.‘” Watson, 551 U.S. at 152 (citation omitted). In fact, the lease requirements largely track statutory requirements, for instance, that the lessee offer 20 percent of the “crude oil, condensate, and natural gas liquids produced on [the] lease . . . to small or independent refiners,”
D
We turn next to the Energy Companies’ argument that the district court had removal jurisdiction over the complaints under
Under
In defining the term “related to” in this context, we have differentiated between bankruptcy cases that are pending before a plan has been confirmed and bankruptcy cases where the plan has been confirmed and the debtor discharged from bankruptcy. See In re Pegasus Gold Corp., 394 F.3d 1189, 1193–94 (9th Cir. 2005). While a bankruptcy case is pending, we have defined “related to” broadly: A proceeding is “related to” a bankruptcy case when ”the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re Fietz, 852 F.2d 455, 457 (9th Cir. 1988) (citation omitted). But the same term “related to” has a more limited meaning after a plan has been confirmed. See Pegasus Gold, 394 F.3d at 1194. A proceeding that arises after a plan has been confirmed is “related to” a bankruptcy case only if there is “a close nexus to the bankruptcy plan or proceeding.” Id. at 1194 (quoting In re Resorts Int‘l, Inc., 372 F.3d 154, 167 (3d Cir. 2004)). In defining “close nexus,” we have indicated that “matters affecting ‘the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus‘” to a bankruptcy case. Id. at 1194 (quoting Resorts Int‘l, 372 F.3d at 167).
We take a holistic approach to determining whether a proceeding that arises after a plan has been confirmed has a close nexus to that plan. We have explained that the close nexus test “requires particularized consideration of the facts
We now turn to the Energy Companies’ claims that the Counties’ complaints have a sufficiently close nexus to the Peabody Energy and Texaco, Inc. bankruptcy cases.20 First, the Energy Companies claim that the Counties’ complaints have a sufficiently close nexus to the Peabody Energy Corp.‘s bankruptcy case because the complaints require an interpretation of Peabody‘s bankruptcy plan. According to the Energy Companies, a bankruptcy court has already interpreted the plan in response to the Counties’ complaints. Specifically, the Counties here filed their complaints a few months after Peabody‘s bankruptcy plan was confirmed and became effective in April 2017. In re Peabody Energy Corp., No. 16-42529-399, 2017 WL 4843724, at *1 (Bankr. E.D. Mo.
We disagree. As stated above, we take a holistic look at “the whole picture.” Wilshire Courtyard, 729 F.3d at 1289. As a general rule, proceedings that merely require the court to read a confirmed plan to determine whether it bars certain claims that arose before the confirmation date are not proceedings “affecting the interpretation [or] implementation” of a plan. Pegasus Gold, 394 F.3d at 1194 (cleaned up) (emphasis added). Typically, where the district court‘s review of a plan involves merely the application of the plan‘s plain or undisputed language, and does not require any resolution of disputes over the meaning of the plan‘s terms, the review does not “depend upon resolution of a substantial question of bankruptcy law.” Ray, 624 F.3d at 1135.
Here, the Energy Companies have not argued that the district court would have to interpret disputed language in Peabody Energy‘s confirmed plan in order to determine whether the Counties’ complaints were barred. Nor could they, because at the time of removal, Peabody Energy had already elected to seek an order enforcing the discharge and injunction provisions of the Chapter 11 plan in bankruptcy court. This means that at the time of removal, the district court was not presented with any matters requiring interpretation of the confirmed plan, which was taking place on a different jurisdictional pathway. And even if the district court had been required to review a plan, the Energy Companies have not argued that such a review would “depend upon resolution of a substantial question of bankruptcy law.” Id. Accordingly, under the circumstances of this case, the complaints before the district court were not “related to” Peabody Energy‘s bankruptcy case for purposes of
We next turn to the Energy Companies’ argument that the Counties’ complaints have a sufficiently close nexus to Texaco, Inc.‘s bankruptcy case. According to the Energy Companies, Texaco, Inc.‘s plan (which was confirmed some time in the 1980s) bars various claims arising against Texaco prior to March 15, 1988, so the Counties’ proceedings would involve interpretation of Texaco‘s plan. Again, we disagree. As with Peabody Energy, the Energy Companies have not argued that the district court would have to interpret disputed language in Texaco‘s confirmed plan in order to determine
E
Finally, we turn to the Energy Companies’ argument that the district court had admiralty jurisdiction over this case. Only Marathon Petroleum Corporation preserved this argument by raising admiralty jurisdiction as a basis for
We reject this argument because maritime claims brought in state court are not removable to federal court absent an independent jurisdictional basis. The relevant jurisdictional statute,
Even assuming that the Counties’ claims in this case qualify as maritime claims, the Counties chose to bring these claims in state court. Under the “saving to suitors” clause, these maritime claims are not removable to federal court based on admiralty jurisdiction alone.25
III
We have long held that “removal statutes should be construed narrowly in favor of remand to protect the jurisdiction of state courts.” Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). This rule of construction is based on the long-standing principle that “[d]ue regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the
AFFIRMED.
Notes
For its failure to warn claim, San Mateo alleges that the Energy Companies “failed to adequately warn customers, consumers, elected officials and regulators of known and foreseeable risk of climate change and the consequences that inevitably flow from the normal, intended use and foreseeable misuse of [their] fossil fuel products,” which caused “damage to publicly owned infrastructure and real property, and the creation and maintenance of a nuisance that interferes with the rights of the County, its residents, and of the People.” Finally, for its design defect claim, San Mateo alleges that the Energy Companies’ “fossil fuel products are defective because the risks they pose to consumers and to the public, including and especially to [San Mateo] outweigh their benefits.”
Except as provided in subsection (c) of this section [regarding the federal government‘s leasing program on the outer Continental Shelf], the district courts of the United States shall have jurisdiction of cases and controversies 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, or which involves rights to such minerals, or (B) the cancellation, suspension, or termination of a lease or permit under this subchapter. Proceedings with respect to any such case or controversy may be instituted in the judicial district in which any defendant resides or may be found, or in the judicial district of the State nearest the place the cause of action arose.
Except as provided in subsection (e)(2) [(relating to claims arising from employment of professionals under
11 U.S.C. § 327 )], and notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.