White Hat v. Landry

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

ANNE WHITE HAT ET AL CASE NO. 6:20-CV-00983

VERSUS JUDGE ROBERT R. SUMMERHAYS

JEFF LANDRY ET AL MAGISTRATE JUDGE CAROL B.

WHITEHURST

CORRECTED MEMORANDUM RULING

The present matter before the Court is the Plaintiffs’ Response to the Court’s Notice

Pursuant to Fed. R. Civ. P. 56(f) and Motion to Reconsider (the “Rule 56(f) Response") [ECF No.

129]. The Court had previously denied Plaintiffs’ Motion for Summary Judgment [ECF No. 93]

and the Motion for Judgment on the Pleadings and Motion for Summary Judgment [ECF No. 94]

filed by defendant M. Bofill Duhé, District Attorney for the 16th Judicial District. [ECF No. 127].

However, the state intervenor, former Attorney General Jeff Landry, and defendants M. Bofill

Duhé and Becket Breaux did not file motions for summary judgment addressing the merits of

Plaintiffs’ claims—Duhé’s motion was based on Article III standing. In its ruling on the motions

for summary judgment, the Court issued a notice under Rule 56(f) of the Federal Rules of Civil

Procedure placing Plaintiffs on notice that the Court intended to grant summary judgment in favor

of the Defendants and providing Plaintiffs with an opportunity to respond. As explained herein,

the Court DENIES Plaintiffs’ Motion to Reconsider and GRANTS summary judgment

DISMISSING Plaintiffs’ claims under Rule 56(a) and 56(f).

I.

BACKGROUND

A. Overview.

This case originated with the arrest of plaintiffs Anne White Hat, Ramon Mejía, and Karen

Savage during a 2018 protest in St. Martin Parish involving the Bayou Bridge Pipeline. According

to the Plaintiffs, the pipeline runs 162.5 miles from Lake Charles to St. James and cuts through

many bodies of water, including the Atchafalaya Basin and Bayou LaFourche, which is the source

of drinking water for the surrounding communities.1 The construction of the Bayou Bridge

Pipeline was controversial and attracted opposition from affected communities, indigenous

leaders, environmental activists, crawfish farmers, and landowners voicing opposition.2 Various

state and federal lawsuits were filed opposing the construction of the pipeline.3

The Plaintiffs were protesting on land in St. Martin Parish with the permission of Katherine

and Peter Aalestad, Theda Larson Wright, Alberta Larson Stevens, and Judith Larson Hernandez,

who owned fractional interests in the property. According to the deputies called to the scene, they

had received a statement from one of the co-owners of the property with a directive that no

protesters were allowed to be on the property and authorizing the pipeline company to file a

criminal trespass complaint on his behalf.4 According to the deputies who responded to the protest

on August 18, 2018, plaintiffs Mejia and Savage were protesting underneath a “sky pod”

suspended in a tree by a rope attached to the pipeline.5 This caused the construction crew to shut

down work on the pipeline to prevent injuries to the protestors and damage to the pipeline.6 The

1 ECF No. 1 at ¶8.

2 ECF No. 1 at ¶9.

3 Id.

4 ECF No. 93-4, p. 345, Plaintiffs’ Ex. T, Stockstill “Authorization for Removal of Trespassers.”

5 ECF No. 93-4, pp. 346-355, Plaintiffs’ Ex. U, V and W, Affidavits of Arrest by Deputy Gauthier and Deputy

Bonvillain.

6 Id.

September 3, 2018 protests that led to the arrest warrants for Plaintiffs White Hat and Savage,

involved approximately 30–35 protesters who were allegedly climbing and jumping on the

construction equipment, throwing mud into the exhaust and fuel tank of an excavator, throwing

mud on the inside walls of a guard shack, and then locking the guard shack and removing the key.7

The protesters were ultimately instructed to leave the area around the pipeline—the

boundary of which was marked by survey stakes. They did so only on the condition that the

construction workers also leave. When the construction workers began operating their equipment

again, the protesters re-entered the area and demanded that the workers leave. The deputies contend

that they were outnumbered and instructed the workers to leave “to keep the peace,” causing the

work to be halted once again.8 The Plaintiffs were arrested for “unauthorized entry of critical

infrastructure” under La. R.S. 14:61 because they were allegedly protesting in close proximity to

a pipeline. The Plaintiffs were ultimately released but were never formally charged, indicted, or

otherwise prosecuted.

B. The Louisiana Critical Infrastructure Statute.

The Plaintiffs mount a facial and “as applied” challenge to the constitutionality of La. R.S.

14:61. The parties fully briefed the history of this provision and its application to pipelines. In

2018, the Louisiana Mid-Continent Oil and Gas Association drafted and proposed an amendment

to La. R.S. 14:61, which was enacted into law on August 1, 2018.9 The statute prohibits the

“unauthorized entry of a critical infrastructure” and defines an unauthorized entry as the following:

(1) The intentional entry by a person without authority into any structure or onto

any premises, belonging to another, that constitutes in whole or in part a critical

infrastructure that is completely enclosed by any type of physical barrier.

7 Id.

8 Id.

9 Id.

(2) The use or attempted use of fraudulent documents for identification purposes to

enter a critical infrastructure.

(3) Remaining upon or in the premises of a critical infrastructure after having been

forbidden to do so, either orally or in writing, by any owner, lessee, or custodian of

the property or by any other authorized person.

(4) The intentional entry into a restricted area of a critical infrastructure which is

marked as a restricted or limited access area that is completely enclosed by any type

of physical barrier when the person is not authorized to enter that restricted or

limited access area. 10

Prior to the amendment, the statute defined “critical infrastructure” to include “facilities like

refineries, chemical manufacturing facilities, and water treatment plants which occupy visible and

discrete land areas often completely enclosed by physical barriers and/or clearly demarcated by

signs.”11 The 2018 amendments to the statute expanded this definition to include pipelines.12 The

statute further provides for criminal penalties for unauthorized entry: “Whoever commits the crime

of unauthorized entry of a critical infrastructure shall be imprisoned with or without hard labor for

not more than five years, fined not more than one thousand dollars, or both.” Finally, the statute

expressly excludes protected First Amendment activities from prosecution under the statute.13

The Plaintiffs allege that La. R.S. 14:61 is unconstitutional on its face and as applied

because: “1) it is vague as it does not provide adequate notice to plaintiffs and others, as well as

state actors who must enforce the law, what conduct is prohibited and where, and allows for

10 ECF No. 1 at ¶54.

11 ECF No. 1 at ¶3.

12 La. R.S. 14:61 (defining “critical infrastructure” to include “any and all structures, equipment, or other immovable

or movable property located within or upon chemical manufacturing facilities, refineries, electrical power generating

facilities, electrical transmission substations and distribution substations, water intake structures and water treatment

facilities, natural gas transmission compressor stations, liquified natural gas (LNG) terminals and storage facilities,

natural gas and hydrocarbon storage facilities, transportation facilities, such as ports, railroad switching yards,

pipelines, and trucking terminals, or any site where the construction or improvement of any facility or structure

referenced in this Section is occurring.”) The statute defines pipelines as “flow, transmission, distribution, or gathering

lines, regardless of size or length, which transmit or transport oil, gas, petrochemicals, minerals, or water in a solid,

liquid, or gaseous state.”

13 La. R.S. 14:61(D)(1) and discussion below.

arbitrary and discriminatory enforcement; 2) it is overbroad and has the effect of chilling

constitutionally protected speech or expression; and 3) targets speech and expressive conduct with

a particular viewpoint for harsher punishment.”14 They argue that the prior version of the statute

“gave notice to those who would enter such facilities without authorization, or remain after being

forbidden, that they were on specially designated and protected property.”15 However, they argue

that “critical infrastructure” now includes 125,000 miles of pipelines running through private and

public spaces, and that the path of these protected pipelines are not visible or clearly marked.16

The Plaintiffs contend that there is no notice identifying the area around a pipeline that is

considered a part of the pipeline or “critical infrastructure.”17 The Plaintiffs also contend that the

critical infrastructure statute provides no notice as to a private landowner’s right to occupy and use

the portions of his or her property through or under which a pipeline runs, and whether pipelines

that run unmarked through public property or navigable waterways are subject to the statute.18

They also argue that the critical infrastructure statute does not provide guidance to law enforcement

officers on how or where to enforce the restrictions imposed by the statute and point out that the

statute does not require that a trespasser have intent to do damage, cause harm, or otherwise

commit an act of violence or criminal offense.19

C. Commencement of the Case.

This case was initially filed in the United States District Court for the Middle District of

Louisiana by various plaintiffs against Louisiana Attorney General Jeff Landry, Sheriff Ronald

Theriot and District Attorney M. Bofill Duhé. The action was brought pursuant to 42 U.S.C. §§

14 ECF No. 1 at ¶2.

15 Id.

16 ECF No. 1 at ¶¶4-5.

17 ECF No. 1 at ¶58.

18 ECF No. 1 at ¶¶60-62.

19 ECF No. 1 at ¶¶56-57.

1983 and 1988 alleging that La. R.S. 14:61 is facially unconstitutional and unconstitutional as

applied.20 Each of the three defendants filed motions to dismiss. On July 30, 2020, District Judge

John deGravelles issued his Ruling and Order in which he dismissed claims against Attorney

General Jeff Landry, granted the alternative relief sought by the other defendants to transfer venue

to this court, and denied the motions in all other respects.

The Plaintiffs requested reconsideration of the ruling dismissing the claims against Jeff

Landry,21 which the Court denied in a separate order. Defendants Duhé and Theriot re-urged their

motions to dismiss on the basis that Judge deGravelles did not state any grounds for denying the

motions in his Ruling and Order. In addition to the three Plaintiffs, the original plaintiffs in this

case included three environmental justice advocacy groups and two individuals affiliated with

those groups: RISE St. James, 350 New Orleans, the Louisiana Bucket Brigade, Sharon Lavigne

(the founder and president of RISE St. James),22 and Harry Joseph (pastor of Mount Triumph

Baptist Church and a member of RISE St. James).23 Finally, the case originally included the

Landowner Plaintiffs. These plaintiffs are St. Martin Parish landowners who own undivided

interests in property over which the Bayou Bridge Pipeline crosses.24 This property was the site of

the protests by the Plaintiffs and their arrest. On May 5, 2021, the Court entered a Memorandum

Ruling on the re-urged motions to dismiss and dismissed the claims of all of the plaintiffs with the

exception of the Plaintiffs.

Plaintiffs then filed their Motion for Summary Judgment, arguing that, as a matter of law,

(1) La. R.S. 14:61 violates the First Amendment on its face or, alternatively, as applied; and (2)

20 ECF No. 1 at 1.

21 ECF No. 66.

22 Id.

23 ECF No. 1 at ¶26.

24 ECF No. 1 at ¶23.

the statute violates the Due Process Clause because it is unconstitutionally vague and overbroad.

Defendant Duhé, District Attorney for the 16th JDC, sought summary judgment on the issue of

standing, arguing that he has now firmly disavowed prosecution of the Plaintiffs and, as a result,

they lack standing to pursue their First Amendment and Due Process Clause claims. However,

Duhé indicated that he would not take a position on the constitutionality of La. R.S. 14:61.

Accordingly, Louisiana Attorney General Jeff Landry filed a motion seeking leave to intervene in

the case for the limited purpose of addressing the constitutionality of the statute.25 The Court

granted the motion.26 AG Landry did not file a motion for summary judgment but opposed

Plaintiffs’ Motion and argued that the court could grant summary judgment under Rule 56. The

Court ultimately denied Plaintiff’s Motion and Duhé’s Motion but notified Plaintiffs of its intent

to enter summary judgment under Rules 56(a) and 56(f). The Court then provided Plaintiffs with

time to file their Rule 56(f) Response. AG Landry filed a response urging dismissal of Plaintiffs’

claims on the merits.

II.

SUMMARY JUDGMENT STANDARD.

“A party may move for summary judgment, identifying each claim or defense–or the part

of each claim or defense–on which summary judgment is sought.”27 “The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”28 “A genuine issue of material fact exists

when the evidence is such that a reasonable jury could return a verdict for the non-moving party.”29

As summarized by the Fifth Circuit:

25 ECF No. 102.

26 ECF No. 118.

27 Fed. R. Civ. P. 56(a).

28 Id.

29 Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (5th Cir. 2010).

When seeking summary judgment, the movant bears the initial responsibility of

demonstrating the absence of an issue of material fact with respect to those issues

on which the movant bears the burden of proof at trial. However, where the

nonmovant bears the burden of proof at trial, the movant may merely point to an

absence of evidence, thus shifting to the non-movant the burden of demonstrating

by competent summary judgment proof that there is an issue of material fact

warranting trial.30

When reviewing evidence in connection with a motion for summary judgment, “the court must

disregard all evidence favorable to the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving party as well as that evidence

supporting the moving party that is uncontradicted and unimpeached.”31 “Credibility

determinations are not part of the summary judgment analysis.”32 Rule 56 “mandates the entry of

summary judgment . . . against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof.”33 Under Rule 56(f), a court may “[a]fter giving notice and a reasonable time to

respond… (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not

raised by a party; or (3) consider summary judgment on its own after identifying for the parties

material facts that may not be genuinely in dispute.”

III.

FIRST AMENDMENT CLAIMS

A. Plaintiffs’ Facial Challenge Under The First Amendment.

The First Amendment to the United States Constitution prohibits the government from

making laws that abridge “the freedom of speech, or of the press; or the right of the people

30 Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

31 Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice, Office of

the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (court must view all facts and evidence in the light most favorable

to the non-moving party).

32 Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002).

33 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986)).

peaceably to assemble, and to petition the Government for a redress of grievances.” The First

Amendment is applicable to the states by virtue of the Fourteenth Amendment to the Constitution.

The Plaintiffs mount a facial challenge to La. R.S. 14:61 on the grounds that it abridges freedom

of speech and their right to peacefully protest in violation of the First Amendment. A facial

challenge to a statute is “the most difficult challenge to mount successfully.”34 To successfully

mount a facial challenge to a statute under the First Amendment on the grounds that the statute is

overbroad, a plaintiff must show that the statute “prohibits a substantial amount of protected

speech.”35 A facial challenge to the constitutionally of a statute presents a pure question of law.36

Plaintiffs contend that La. R.S. 14:61 is presumptively unconstitutional because it includes

content-based restrictions on the exercise of expressive conduct—such as protests and picketing—

in violation of the First Amendment. They further argue that, even if the statute does not

discriminate on the basis of content, the statute is overbroad. A law is overbroad if it “encompasses

a substantial number of unconstitutional applications ‘judged in relation to the statute’s plainly

legitimate sweep.’”37 Here, Plaintiffs assert that there are over 125,000 miles of oil and gas

pipelines in Louisiana that cut through private and public land, water ways, wetlands, under public

streets, sidewalks, parks, and other public spaces.38 They also point out that many of these pipelines

are underground and invisible and thus not clearly marked to warn potential protesters that they

may be trespassing on critical infrastructure. Accordingly, they argue that La. R.S. 14:61 broadly

prohibits a substantial amount of protected speech.

34 United States v. Salerno, 481 U.S. 739, 745 (1987).

35 United States v. Williams, 553 U.S. 285, 292 (2008).

36 Carmouche, 449 F.3d at 662.

37 Seals, 898 F.3d at 593 (5th Cir. 2018), as revised (Aug. 9, 2018) citing United States v. Stevens, 559 U.S. 460, 473

(2010).

38 ECF No. 93-2, Statement of Material Facts ¶¶ 1-9.

1. Is La. R.S. 14:61 a Content-Based Regulation of Protected Speech?

The level of scrutiny applied to a restriction on protected speech “turns on whether the

restriction is content-based or content-neutral.”39 Content-based regulations are presumptively

invalid under the First Amendment and courts apply a “strict scrutiny” standard to those

regulations.40 A speech restriction “is content-based if a law applies to particular speech because

of the topic discussed or the idea or message expressed.”41 This inquiry “requires a court to

consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a

speaker conveys.”42 In Reed v. Town of Gilbert, Arizona, the Supreme Court explained that some

content-based distinctions are “obvious” insofar as they define speech “by particular subject

matter,” whereas others “are more subtle, defining regulated speech by its function or purpose.”43

However, “[b]oth are distinctions drawn based on the message a speaker conveys, and, therefore,

are subject to strict scrutiny.”44 According to the Supreme Court in Reed, a separate category of

laws may be facially neutral, but still content based, if they cannot be “justified without reference

to the content of the regulated speech” or if they were “adopted by the government ‘because of

disagreement with the message [the speech] conveys.’”45 Applying this analysis in Reed, the

Supreme Court found that a town’s sign ordinance was content based on its face because it

exempted from certain permitting requirements three categories of signs, namely ideological signs,

political signs, and temporary-event signs, which were exempted based only on the contents of the

messages they expressed.46

39 Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228-30 (1987).

40 Perry, 460 U.S. at 45.

41 Reed v. Town of Gilbert, Arizona, 576 U.S. 155, 163 (2015).

42 Id.

43 Id. at 163, 135 S. Ct. 2218.

44 Id.

45 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).

46 Id. at 164–65, 135 S.Ct. 2218.

La. R.S. 14:61 does not regulate speech in the traditional sense—i.e., written or spoken

words—but addresses purely conduct. Specifically, it proscribes:

(1) Entering any structure or premises that qualifies as “critical infrastructure” that is

“completely enclosed by any type of physical barrier;”

(2) Using “fraudulent documents for identification purposes” in order to gain entry to a

critical infrastructure; 47

(3) Refusing to leave the premises that make up critical infrastructure “after been having

forbidden to do so, either orally or in writing . . .;” and

(4) Intentionally entering, without authority, any restricted area of a critical infrastructure

“which is marked as a restricted or limited access area that is completely enclosed by

any type of physical barrier . . . .”48

This statutory provision is essentially a trespass statute that targets and provides enhanced

protection for a specific type of real property—property containing “critical infrastructure” as

defined in the statute. Like a traditional trespass statute, it proscribes unauthorized entry onto

critical infrastructure covered the statute.

The fact that La. R.S. 14:61 targets conduct does not end the inquiry because conduct may

be “sufficiently imbued with elements of communication to fall within the scope of the [First

Amendment].”49 So-called “symbolic expression” or “expressive conduct” includes conduct that

delivers a message “that is intended to be communicative and that, in context, would reasonably

be understood by the viewer to be communicative”50 The classic example of symbolic speech or

expressive conduct is peaceful picketing or demonstrations that express a message or viewpoint.51

In the present case, Plaintiffs argue that La. R.S. 14:61 broadly proscribes a substantial amount of

protected speech in the form of picketing and demonstrations targeting pipeline projects. The

47 La. R.S. 14:61(A)(2) refers to the “use of fraudulent documents for identification purposes.” Plaintiffs do not address

this portion of the statute in their complaint or their Rule 56(f) Response.

48 La. R.S. 14:61.

49 Spence v. State of Wash., 418 U.S. 405, 409-11 (1974).

50 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94 (1984).

51 Committee in Solidarity With People of El Salvador (“CISPES”) v. F.B.I., 770 F.2d 468, 473 (1985).

restrictions on unauthorized entry in La. R.S. 14:61(A)(1) through A(4) do not expressly regulate

or restrict pickets, demonstrations, or other expressive activity. However, putting aside the

statute’s First Amendment carve-out in section 14:61(D)(1) for the moment, the statute may also

reach protected expressive conduct targeting pipelines or other critical infrastructure by restricting

unauthorized entry. In other words, La. R.S. 14:61 may incidentally impact expressive conduct

protected by the First Amendment.

Unlike the ordinance at issue in Reed, La. R.S. 14:61 does not, on its face, restrict symbolic

speech or expressive conduct based on the idea or message expressed. Instead, it proscribes entry

onto premises containing critical infrastructure without reference to the purpose of that entry or

the ideas or message advanced by those who enter the premises.52 However, Plaintiffs argue that

La. R.S. 14:61(D)(1), which creates a “carve-out” for “picketing,” “demonstration,” and other

forms of symbolic expression, introduces content-based restrictions on protected speech. That

carve-out provision states:

Nothing in this Section shall be construed to apply to or prevent the following…

[l]awful assembly and peaceful and orderly petition, picketing, or demonstration

for the redress of grievances or to express ideas or views regarding legitimate

matters of public interest, including but not limited to any labor dispute between

any employer and its employee or position protected by the United States

Constitution or the Constitution of Louisiana.

While the Fifth Circuit has observed that a similar First Amendment carve-out could not save an

otherwise invalid statute, such a carve-out can “validate a construction of the statute which avoids

its application to protected expression.”53 Plaintiffs argue that La. R.S. 14:61(D)(1) creates

content-based restrictions in at least two respects.

52 La. R.S. 14:61(A)(2) does refer to the “use of fraudulent documents for identification purposes.” Fraudulent

statements, however, are not protected speech under the First Amendment. See McIntyre v. Ohio Elections Com’n,

514 U.S. 334-357 (1995).

53 CISPES, 770 F.2d at 474.

First, they point to the provision’s reference to “ideas or views regarding legitimate matters

of public interest” and argue that this is a content-based distinction that discriminates based on

whether the symbolic speech at issue involves matters of public interest.54 They contend that this

language provides government decision makers with overly broad discretion in determining when

the protest or picketing activities at issue involve legitimate matters of public interest. A fair

reading of section 14:61(D)(1) does not support the Plaintiffs’ position that it creates content-based

distinctions. Plaintiffs’ argument focusses on isolated language in section 14:61(D)(1) without

reading that language in the context of the entire provision. Specifically, the carve-out provision

exempts “[l]awful assembly and peaceful and orderly petition, picketing, or demonstration” that

involve “the redress of grievances” or the expression of “ideas or views regarding legitimate

matters of public interest….”55 The provision then goes on to provide non-exclusive examples of

legitimate matters of public interest—“including but not limited to any labor dispute between any

employer and its employee or position protected by the United States Constitution or the

Constitution of Louisiana.” Section 14:61(D)(1) thus ends with a broad “catch-all” clause that

extends the exemption to any protest, demonstration, picket, or other expressive conduct protected

by the First Amendment without regard to the content of the message conveyed.

Second, Plaintiffs argue in their Rule 56(f) Response that the reference to “labor disputes”

in section 14:61(D)(1) is a content-based distinction that favors a certain type of speech based on

the content of the speech. The Court agrees with Plaintiffs that, if section 14:61(D)(1) provided a

carve-out solely for labor disputes, there is a compelling argument that the statute makes a content-

based distinction. But section 14:61(D)(1) does not limit the carve-out to labor disputes. Again,

Plaintiffs’ argument takes this reference out of context. As previously noted, the statute cites labor

54 ECF No. 29-1 at 7-8.

55 La. R.S. 14:61.

disputes as one of the non-exclusive examples of legitimate matters of public interest and includes

a broad catch-all for all speech protected by the Constitution. The Court construes this language

to exempt all protected speech regardless of content. Accordingly, the reference to “labor disputes”

in section 14:61(D)(1) does not render the statute a content-based regulation of protected speech.

The Plaintiffs next argue that La. R.S. 14:61 is content-based because the legislative history

of the statute shows that it was promoted by the Louisiana Mid-Continental Oil and Gas

Association to squelch protests against pipeline projects.56 They allege that the 2018 amendment

to the statute adding pipelines to the definition of “critical infrastructure” occurred “at a time when

environmental activists’ challenges to the danger of pipeline activity were on the rise.”57 The

Plaintiffs contend that the 2018 pipeline amendment to the statute “was initiated by leaders of the

oil and gas industry who have obviously vested and financial interest in skewing the debate about

the dangers of continued pipeline expansion.”58 In this regard, they point to evidence that the 2018

amendment to La. R.S. 14:61 was drafted by the general counsel of the Louisiana Mid-Continental

Oil and Gas Association.

The Supreme Court has held that a statute is not rendered a content-based restriction on

free speech merely because statute’s “enactment was motivated by the conduct of the partisans on

one side of a debate.”59 More importantly, the legislative history cited by the Plaintiffs actually

refutes their argument that the 2018 pipeline amendment to La. R.S. 14:61 was intended to squelch

pipeline protests and environmental activists’ opposition to pipeline projects like the Bayou Bridge

Pipeline. Specifically, the Plaintiffs quote the lead sponsor of the 2018 amendment explaining that

the statute “does nothing to impact the ability to peacefully protest … [but] only comes into play

56 ECF No. 96-1 at 9.

57 Id. at 13.

58 Id.

59 Hill v. Colorado, 530 U.S. 703, 724 (2000).

when there is damage to that critical infrastructure, so if you don’t damage anything, this law does

not apply.”60 Damage caused to critical infrastructure does not fall within the protections of the

First Amendment given that courts have repeatedly held that the First Amendment protects only

“peaceful” picketing and protest activities.61 Moreover, the statute’s carve-out for protected First

Amendment speech “is a valuable indication of [legislative] concern with the preservation with

First Amendment rights in the specific context of the statute in question.”62

In their Rule 56(f) Response, Plaintiffs fault this analysis of the legislative history, arguing

that the Court’s analysis improperly adds a requirement to La. R.S. 14:61 that the critical

infrastructure be damaged in some way for the statute to apply.63 They argue that the text of the

statute does not require a finding that critical infrastructure was damaged to trigger the statute’s

criminal penalties. Plaintiffs are correct that La. R.S. 14:61 does not require this finding. Indeed,

another statutory provision, La. R.S. 14:61.1, creates a separate criminal penalty for causing

damage to critical infrastructure, including pipelines. This provision appears to have been enacted

at the same time as the pipeline amendment to La. R.S. 14:61. In their original Motion for

Summary Judgment, Plaintiffs pointed to other statements by sponsors of the pipeline amendment

and La. R.S. 14:61.1 to argue that these statutes were backed by the pipeline industry to squelch

environmental protests. The statements of the sponsors cited by the Court reflect broader concerns

by legislators about protecting pipelines and other critical infrastructure (including protection from

damage), not a concern about squelching otherwise peaceful protest activities. This legislative

60 ECF No. 96-1 at 10.

61 United States v. Grace, 461 U.S. 171, 176 (1983) (“there is no doubt that as a general matter peaceful picketing and

leafletting are expressive activities involving speech protected by the First Amendment.”).

62 CISPES, 770 F.2d at 474.

63 ECF No. 129-1 at 3.

history undercuts Plaintiffs’ argument that the legislative purpose of the pipeline amendment to

La. R.S. 14:61 was to impose content-based restrictions on protected speech.

In sum, La. R.S. 14:61 is content-neutral to the extent that it impacts protected speech.

Accordingly, the statute is not subject to strict scrutiny.

2. Consideration of Forum.

Given that strict scrutiny does not apply to La. R.S. 14:61, the Court must next address the

nature of the forums impacted by the statute. “The scope of [a plaintiff’s] First Amendment rights

depends on the nature of the forum in which he seeks access.”64 The nature of forum impacts the

level of scrutiny applied to restrictions on protected speech occurring within that forum. Courts

have identified three types of forums: “the traditional public forum, the designated public forum,

and the non-public forum.”65 A “non-public forum” is publicly-owned property that is not by

tradition or government designation a forum for public communication.66 A “public forum, on the

other hand,” are those places “which by long tradition or by government fiat have been devoted to

assembly and debate.”67 A “designated public forum,” is a forum the government designates as “a

place or channel of communication for use by the public at large for assembly and speech, for use

by certain speakers, or for the discussion of certain subjects.”68 First Amendment protections are

broadest with respect to protected speech occurring in a traditional public forum.69 In a non-public

forum, however, “an individual’s First Amendment right to expression is at its nadir.”70

64Imani v. City of Baton Rouge, No. 17-439, 2022 WL 2760799 at *17 (M.D. La. July 14, 2022) (quoting Estiverne v.

Louisiana State Bar Ass’n, 863 F.2d 371, 376 (5th Cir. 1989)).

65 United Food & Commercial Workers Local 1099 (“United Food”) v. City of Sidney, 364 F.3d 738, 746 (6th Cir.

2004).

66 Id.

67 Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 44 (1983).

68 Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788, 800 (1985).

69 Imani, 2022 WL 2760799 at *17-18.

70 Caputo, 201 F.Supp.3d 65, 70 (D.C. 2016).

a. Private Property.

While not expressly limited to private property, the statute’s entry restrictions appear

framed to largely impact structures on private property. Two of the three relevant entry restrictions

refer to “structures” or “premises … belonging to another” and “completely enclosed by … [a]

physical barrier.” The third restriction prohibits “remaining” on the premises of critical

infrastructure by any “owner, lessee, or custodian of the property or by any other authorized

person.” Moreover, many of the types of structures protected—pipelines, chemical manufacturing

facilities, refineries, etc.—are traditionally private property. Indeed, the summary judgment record

indicates that Bayou Bridge Pipeline is owned by a private entity and the pipeline protest in 2016

occurred on private property.71 Plaintiffs’ First Amendment claims fail to the extent that La. R.S.

14:61 impacts speech on private property because there is no First Amendment right to trespass

on private property to conduct protests or other forms of symbolic speech.72 Specifically, courts

have recognized that the “right to exclude others is a fundamental element of private property

ownership, and the First Amendment does not create an absolute right to trespass.”73 While the

protections of the First Amendment may apply to private property that has been “devoted to a

public use,”74 the type of property affected by La. R.S. 14:61—critical infrastructure that, in most

71ECF No. 93-7, Declaration of Peter Aaslestad.

72 Id.; see also Lloyd Corp., Limited v. Tanner, 407 U.S. 551, 567 (1972). In Tanner the Supreme Court

observed:

Although accommodations between the values protected by [the First, Fourteenth and

Fifth] Amendments are sometimes necessary, and the courts properly have shown a special

solicitude for the guarantees of the First Amendment, this Court has never held that a

trespasser or an uninvited guest may exercise general rights of free speech on property

privately owned and used nondiscriminatory for private purposes only . . . .

Id.

73 See, e.g., Armes v. City of Philadelphia, 706 F. Supp. 1156, 1164-66 (E.D. Pa. 1989).

74 Cornelius, 473 U.S. at 801 (1985) (“[A] speaker must seek access to public property or to private property dedicated

to public use to evoke First Amendment concerns.”).

cases, is enclosed physical barriers—is typically not devoted to public use or otherwise open to

the public for protected First Amendment activities.

The Plaintiffs counter that they had the permission of the Landowner Plaintiffs to enter the

property where the Bayou Bridge Pipeline protest occurred. However, if true, it is unclear that

permission to enter the property changes the result as far as the First Amendment. The nature of

the forum remains the same: it is private property and the Bayou Bridge Pipeline is owned by a

private entity.75 Private property does not “lose its private character merely because the public is

generally invited to use it for designated purposes.”76 Moreover, the Landowner Plaintiffs are not

the sole owners of the property.77 As the Attorney General pointed out in his opposition, another

co-owner of the same property, Dominic Giampula, authorized Bayou Bridge Pipeline, LLC to

exercise his right to exclude the protesters from his property and, if required, “contact law

enforcement on my behalf in the event that I am unavailable and a trespass occurs.”78 The Attorney

General argues that, under Louisiana law, as “against third persons, a co-owner has the right to use

and enjoy the thing as if he were the sole owner,” including the right to exclude third-party

trespassers.79 The Court agrees with the AG’s argument that the First Amendment does not

eliminate Giampula’s right, as an owner of private land, to exclude the Plaintiffs and other

protestors from his property.80

75 ECF No. 93-4 at 345 (identifying Bayou Bridge Pipeline, LLC as the owner).

76 Tanner, 407 U.S. at 570.

77 The Landowner Plaintiffs held fractional interests in the property where the protest occurred of 0.0005803,

0.0005803, and 0.0000994, respectively.

78 ECF No. 93-4 at 345.

79 La. C.C. Art. 802. The Attorney General also cites the commentary to that civil code article, which states that “a

co-owner, may alone take all the necessary steps for preservation of the property, including the institution of suits

against trespassers or usurpers.” ECF No. 119 at 19 (emphasis added).

80 Armes, 706 F. Supp. at 1164-66.

b. Non-Public Forum.

The Court also considers that the statute’s definition of critical infrastructure includes

structures that arguably could be owned and operated by government actors—for example,

“electrical power generating facilities,” “electrical transmission substations,” “water intake

structures and water treatment facilities,” and “ports.” However, even if La. R.S. 14:61 impacts

speech or expressive conduct on public property, “the First Amendment does not guarantee access

to property simply because it is owned or controlled by the government.”81 “The State, no less than

a private owner of property, has power to preserve the property under its control for the use to

which it is lawfully dedicated.”82 Access to a nonpublic forum can be regulated “based on subject

matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose

served by the forum and are viewpoint neutral.”83 In Greer v. Spock, for example, the defendants

challenged a regulation banning “speeches and demonstrations of a partisan political nature” and

prohibiting “the distribution of literature without prior approval” at Fort Dix.84 The Supreme Court

examined the purpose of federal military reservations such as Fort Dix—“to train soldiers, not to

provide a public forum”—as well as the “the historically unquestioned power of its commanding

officer summarily to exclude civilians from the area of his command.”85 The Supreme Court

observed that use of the military reservation as a traditional public forum for speech and expressive

conduct would run counter to the use to which Fort Dix was dedicated: “the notion that federal

military reservations, like municipal streets and parks, have traditionally served as a place for free

public assembly and communication of thoughts by private citizens is … historically and

81 United States Postal Service v. Council of Greenburgh Civic Ass’n, 453 U.S. 114, 129 (1981).

82 Greer v. Spock, 424 U.S. 828, 836 (1976).

83 Cornelius, 473 U.S. at 49.

84 424 U.S. at 830.

85 Id. at 838.

constitutionally false.”86 The Supreme Court concluded that Fort Dix was not a public forum, and

that the challenged regulation was viewpoint neutral and reasonable in light of the purpose for the

military reservation.

Here, La. R.S. 14:61 targets and protects structures that, like the military reservations at

issue in Greer, serve very specific and important purposes unrelated to public speech—the

provision of water, electricity, transportation, and energy production. The statute is also limited to

facilities enclosed by a physical barrier,87 or premises where the public has been expressly

forbidden to enter or remain on the property.88 There is no evidence in the summary judgment

record that the statute applies to traditional public forums or to facilities that have been opened to

the public as limited public forums. Accordingly, applying Greer, the statute does not violate the

First Amendment if its restrictions are reasonable and viewpoint neutral. The statute’s restrictions

appear reasonable in light of the purpose of the statute—the protection of critical infrastructure

facilities. Moreover, as explained above, the statute contains a carve-out excluding expressive

conduct protected by the First Amendment. The statute’s entry restrictions also do not discriminate

on the basis of the viewpoint of any expressive conduct they may impact—they apply across the

board.

c. Does Section 14:61(A)(3) Prohibit Speech in Traditional Public Spaces?

In their Rule 56(f) Response, Plaintiffs argue that the Court failed to consider the breadth

of the restriction in La. R.S. 14:61(A)(3) in denying their original Motion for Summary Judgment.

Section 14:61(A)(3) states that the “unauthorized entry of a critical infrastructure” includes

“remaining upon or in the premises of a critical infrastructure after having been forbidden to do

86 Id.

87 La. R.S. 14:61(A)(1) and (4).

88 La. R.S. 14:61(A)(3).

so, either orally or in writing, by any owner, lessee, or custodian of the property or by any other

authorized person.”89 Plaintiffs point out that, unlike La. R.S. 14:6114:61(A)(1) and La. R.S.

14:61(A)(4), section 14:61(A)(3) applies to premises that are not “enclosed by a physical barrier”

or “marked as a restricted or limited access area.” They argue that this more expansive provision

implicates greater First Amendment concerns because of the nature of underground pipelines. In

this regard, they argue that section 14:61(A)(3) would criminalize activities in “traditional public

spaces like parks, streets, sidewalks, government buildings, the State Capitol, schools, and public

restrooms” because “[v]irtually every modern park, street, and building has a pipeline of some

kind, particularly water, running in, under, near, or through it.”90

Plaintiffs are correct that the scope of La. R.S. 14:61(A)(3) is broader than the entry

restrictions of sections 14:61(A)(1), (A)(2), and (A)(4). But the text of section 14:61(A)(3) does

not support the broad, unbounded application proposed by Plaintiffs. Specifically, section

14:61(A)(3) applies to the “premises of a critical infrastructure” where an “owner, lessee, or

custodian” of that property has forbidden someone from remaining on the premises—in other

words, that “owner, lessee, or custodian” of the property has exercised his, her, or its right to

exclude others from the property.91 The statute thus presupposes that the “owner, lessee, or

custodian” has the power to restrict entry or exclude others from the “premises.” This power is the

hallmark of private property ownership and government property not designated as limited public

forums, not the “traditional public spaces” cited by plaintiffs. Plaintiffs have not cited, nor has the

Court found, any authority under Louisiana property law that would allow the owner of an

underground pipeline to exercise a broad right to control access to “traditional public spaces like

89 La. R.S. 14:61(A)(3).

90 ECF No. 129-1 at 7.

91 La R.S. 14:21(A)(3).

parks, streets, sidewalks, government buildings, the State Capitol, schools, and public restrooms”

located in the path of the underground pipeline. Accordingly, the Court construes the term

“premises” in La. R.S. 14:61(A)(3) to mean property over which the “owner, lessee, or custodian”

of the critical infrastructure has the right under state law to control access to or otherwise exclude

others from the property. That right does not exist with respect to the traditional public forums

cited by Plaintiffs.92 In sum, La. R.S. 14:61(A)(3) does not proscribe protected speech in traditional

public forums.

3. The O’Brien Test.

Even if La. R.S. 14:61 incidentally restricts speech in public forums, content-neutral

regulations of symbolic speech receive a lesser degree of scrutiny under the test set forth in United

States v. O’Brien.93 The Supreme Court’s O’Brien test is the proper “analytical framework to

evaluate content-neutral restrictions on expressive activities.”94 Under O’Brien, a content-neutral

restriction on expressive conduct survives constitutional scrutiny if (1) it is within the

constitutional power of the government, (2) it furthers an important or substantial government

interest, (3) the interest is unrelated to the suppression of expression, and (4) the incidental

restrictions on First Amendment activities are no more than is necessary to facilitate that interest.95

a. The First, Second and Third O’Brien factors.

With respect to the first O’Brien factor, the parties do not appear to challenge the state’s

constitutional power to enact a statute protecting critical infrastructure located within its borders.

92 Even if La R.S. 14:21(A)(3) could be construed as broadly as suggested by Plaintiffs, the Court’s construction of

the statute avoids constitutional infirmities. As explained by the Supreme Court “where a statute is susceptible of two

constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such

questions are avoided, our duty is to adopt the latter.” Jones v. United States, 526 U.S. 227, ––––, 119 S.Ct. 1215,

1222 (1999) (internal citations omitted).

93 391 U.S. 367 (1968).

94 Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282-83 (5th Cir. 2001).

95 O’Brien, 391 U.S. at 377.

Nor do they challenge the constitutionality of state enactments proscribing trespass on private

property in general. La. R.S. 14:61 thus appears to fall squarely within the police powers of the

state—“the protection of the lives, health, and property of [Louisiana] citizens, maintenance of

good order, and the preservation of the public good.”96 The Court also finds that the Attorney

General’s argument that (1) the protection of critical infrastructure in the state furthers an important

or substantial government interest, and (2) the protection of this property from damage caused by

unauthorized entry is unrelated to the suppression of expressive conduct persuasive. As the Court

previously explained, the statute on its face targets trespassing onto critical infrastructure, not

traditional speech protected by the First Amendment. Nor does it target expressive activity, such

as protests and picketing. Specifically, the First Amendment carve-out discussed above exempts

protests and picketing protected by the First Amendment.

b. The Fourth O’Brien factor.

Plaintiffs’ primary argument appears to be grounded on the fourth O’Brien factor—

whether any incidental restrictions on First Amendment activities resulting from La. R.S. 14:61 is

no more than necessary to facilitate the state’s interest in protecting critical infrastructure. Plaintiffs

contend that La. R.S. 14:61 does not withstand intermediate scrutiny because it is not “narrowly

tailored to serve a significant government interest.”97 They argue that existing Louisiana statutes

criminalizing simple and aggravated damage to property (La. R.S. 14:55-56), damage to critical

infrastructure (La. R.S. 14:61.1), and contamination of water supplies (La. R.S. 14:58) are

sufficient to address the government’s interest in protecting critical infrastructure, yet burden

protected speech less than the entry restrictions of La. R.S. 14:61. The Attorney General, however,

argues that the government interest with respect to critical infrastructure is broader than preventing

96 Mugler v. Kansas, 123 U.S. 623 (1887).

97 ECF No. 129-1 at 5.

damage to pipelines and other critical infrastructure but also extends to regulating entry onto the

premises of critical infrastructure.98 The Attorney General argues that punishing unauthorized

entry ensures the security of critical infrastructure and the safety of the community.99 The Attorney

General also argues that protecting the private property interests of the owners of critical

infrastructure is a significant government interest advanced by La. R.S. 14:61.100

Plaintiffs frame their intermediate scrutiny argument in terms of the traditional legal

standards governing “time, manner, and place” regulations, not O’Brien. But the Fifth Circuit has

noted that O’Brien is “a variant of those [traditional legal]standards” and these standards are thus

applicable to the fourth prong of the O’Brien test: whether the incidental restriction on protected

speech is no greater than necessary to further the government’s interest.101 Under this standard, the

challenged regulation need not satisfy the more demanding “least restrictive means” standard.102

Rather, the standard requires only that “a regulation of the time, place, or manner of protected

speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests

but that it need not be the least restrictive or least intrusive means of doing so.”103

Here, La. R.S. 14:61 furthers the government’s interest in protecting critical infrastructure

and the community by prohibiting and penalizing unauthorized entry onto critical infrastructure

before those structures can be damaged or otherwise compromised. These entry restrictions would

conceivably provide more protection than the statutory provisions cited by Plaintiffs that only

target damage to critical structures after the fact. Plaintiffs also point to the fact that the criminal

penalties for violations of La. R.S. 14:61 are more severe than criminal penalties for violating the

98 ECF No. 131 at 8-9.

99 Id.

100 Id.

101 Doe v. Landry, 909 F.3d 99, 111 (5th Cir. 2018).

102 Id.

103 Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) (emphasis added).

trespass statutes that apply to other types of property.104 The government, however, could

reasonably conclude that a trespass onto the premises of critical infrastructure poses greater

security and safety risks than a trespass onto other types of property, and thus impose heavier

criminal sanctions with respect to critical infrastructure.

The next question is whether La. R.S. 14:61 is narrowly tailored to serve the government’s

interest. In other words, does the statute sweep too broadly and prohibit more protected speech

than necessary. The Court concludes that it does not. La. R.S. 14:61 targets trespasses on the

premises of critical infrastructure but limits criminal sanctions to four specific cases:

• Unauthorized entry onto the premises of critical infrastructure where these

premises are enclosed by a physical barrier (La. R.S. 14:61(A)(1));

• Use of fraudulent identification documents to gain entry onto the premises of

critical infrastructure (La. R.S. 14:61(A)(2));

• “Remaining upon or in the premises of a critical infrastructure after having been

forbidden to so” by an owner, lessee, or custodian (or their agent) of that critical

infrastructure (La. R.S. 14:61(A)(3)); and

• Intentionally entering a restricted area of the premises of a critical infrastructure

that is marked as restricted and enclosed by a physical barrier (La. R.S.

14:61(A)(4)).

In two of the cases, the statute’s reach is limited to areas surrounded by a physical barrier

that presumably restricts entry and provides notice of entry into a non-public area.105 In each of

these cases, the statute does not prevent Plaintiffs from staging protests in traditional public spaces

or, indeed, immediately beyond the premises of a critical infrastructure. Plaintiffs’ position that the

statute sweeps too broadly appears to be based on their argument that the statute does not define

the term “premises” in La. R.S. 14:61(A)(3) and that, given the ubiquity of underground pipelines,

the statute could criminalize protests in traditional public spaces where there is no notice that a

104 ECF No. 129-1 at 5-6.

105 La. R.S. 14:61(A)(1), (A)(4).

pipeline exists. However, as the Court explained above, the term “premises” in La. R.S.

14:61(A)(3) should be construed as the property over which the “owner, lessee, or custodian” of

the critical infrastructure has power under state law to exclude others from the property.

Accordingly, La. R.S. 14:61(A)(3) would not apply broadly to the traditional public spaces cited

by Plaintiffs. Finally, any incidental effect on protected speech is further minimized by the First

Amendment carve-out in La. R.S. 14:61(D)(1).

The Court concludes that La. R.S. 14:61is narrowly tailored to address the government’s

significant interest in protecting critical infrastructure and that the statute, therefore, satisfies all

four of the O’Brien factors.

4. The Court’s Ruling With Respect to Plaintiffs’ Facial Challenge to the Statute.

In sum, La. R.S. 14:61 does not, on its face, restrict speech but expressly exempts protected

First Amendment expressive conduct from the reach of the statute’s prohibitions. Even if the

statute incidentally reaches some protected conduct, it is not content-based and satisfies the

Supreme Court’s O’Brien test. Accordingly, the Court GRANTS summary judgment under Rules

56(a) and 56(f) in favor of the defendants. Plaintiffs’ claims are dismissed to the extent that they

are grounded on a facial challenge in La. R.S. 14:61.

B. First Amendment “As Applied” Challenge.

The Plaintiffs also mount an “as applied” challenge to La. R.S. 14:61. In other words, they

argue that the statute is unconstitutional as applied to their protests against the Bayou Bridge

Pipeline even if the statute is facially valid. In his original Motion for Summary Judgment,

defendant Duhé argued that Plaintiffs did not have standing to challenge La. R.S. 14:61because he

had waived further prosecution of Plaintiffs under that statute. Specifically, Duhé filed an affidavit

stating that, in a July 7, 2021 letter to the Plaintiffs’ counsel, he “affirmatively disavowed any

intent to prosecute White Hat, Mejia, and Savage (and others) for any alleged acts arising out the

alleged events occurring from August 2018 through September 2018, which include the acts they

have alleged to have taken on the date of their arrests.”106 Duhé further states in his affidavit that,

in his letter, he “affirmatively disavow[ed] any future prosecution of White Hat, Mejia, Savage,

or any of the individuals listed in [his] letter based on the events that allegedly took place in St.

Martin Parish from August 2018 through September 2018 for which they were arrested.”107 In

addition to Duhé’s disavowal of prosecution, the statute of limitations with respect to the 2018

arrests lapsed in September 2022.108

These subsequent developments implicate the mootness doctrine, not standing. The Fifth

Circuit has described “mootness” as “the doctrine of standing in a time frame.”109 In other words,

a plaintiff must not only establish that he or she has standing under Article III at the

commencement of the case, the plaintiff’s personal stake that “exist[ed] at the commencement of

the litigation (standing)” must “continue throughout [the case’s] existence (mootness).”110

Accordingly, even if a plaintiff has standing at the commencement of the case, the case may

nevertheless become moot by events that occur during litigation and eliminate the plaintiff’s

personal interest in the case. 111 Here, Duhé argues that his disavowal of prosecution eliminates the

plaintiff’s personal stake in the case. Plaintiffs counter that the District Attorney’s disavowal of

prosecution does not moot their claims because the disavowal is not legally binding and Duhé

could reverse course.

106 ECF No. 94-3 at ¶¶ 6-7.

107 Id. at ¶ 8 (emphasis added).

108 La. C.Cr.P. art. 572(A)(2) provides for a time limitation of four years.

109 Centers for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006) (quoting United States Parole

Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)).

110 Id.

111 Pool v. City of Houston, 978 F.3d. 307, 313 (5th Cir. 2020).

Courts closely scrutinize mootness arguments that are based on a “voluntary cessation of a

challenged activity.”112 A voluntary cessation of challenged conduct moots a First Amendment

claim only if it is “absolutely clear that the allegedly wrongful behavior could not be reasonably

expected to reoccur.”113 For example, in Pool v. the City of Houston, the City disavowed

enforcement of a “zombie” city charter provision that allowed only registered voters to circulate

petitions for initiatives and referenda.114 The City argued that its post-suit disavowal of the

provision mooted the plaintiff’s constitutional challenge.115 The Fifth Circuit disagreed, noting

that the charter provision was not formally repealed and it was unclear whether the City’s mere

disavowal of enforcement was legally binding.116 Similarly, in Speech First, Inc. v. Fenves, the

court held that the University of Texas’ post-suit amendments to a speech code did not moot the

plaintiff’s constitutional challenge to that code.117 According to the court, the First Amendment

challenge was not moot because, in part, the University had “not issued a controlling statement of

future intention,” and that there was nothing preventing the University from restoring the

challenged provisions of the speech code.118

Duhé’s disavowal of prosecution falls within this exception to the mootness doctrine. It is

unclear from the record and the relevant authorities that the District Attorney’s disavowal is legally

binding and that it would prevent him from reversing course in the future. Indeed, Duhé’s

disavowal is limited to the protest and events that resulted in the 2018 arrest of the pipeline

protestors, including the Plaintiffs. He does not disavow enforcement of La. R.S. 14:61 in

connection with future protests of the Bayou Bridge Pipeline. On the other hand, the lapse of

112 Speech First, Inc. v. Fenves, 979 F.3d. 319, 328 (5th Cir. 2020).

113 Id.

114 978 F.3d. at 313-14.

115 Id.

116 Id.

117 979 F.3d. at 328.

118 Id.

limitations is not a “voluntary cessation” of the enforcement of a challenged statute and moots any

claims by the Plaintiffs based on their 2018 protest and arrest.

To the extent that Plaintiffs seek a declaration that the statute is unconstitutional as applied

to a future anticipated protests of the Bayou Bridge Pipeline on private property, the Plaintiffs lack

a constitutionally protected right to protest on private property. Even if the Plaintiffs intend to

challenge the application of La. R.S. 14:61 to protest activities on public property, courts generally

apply the O’Brien framework for “as applied” challenges to content-neutral speech regulations.119

As explained above, the statute is content neutral and satisfies all four of the O’Brien requirements.

Accordingly, the Plaintiffs cannot maintain an “as applied” challenge to La. R.S. 14:61 based on

the summary judgment record and relevant authorities.

IV.

DUE PROCESS CHALLENGE

Finally, the Plaintiffs contend that L.A. R.S. 14:61 is unconstitutionally vague and,

therefore, violates the Due Process Clause of the Fourteenth Amendment. A law is

unconstitutionally vague when it “(1) fails to apprise persons of ordinary intelligence of the

prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement.”120 Mere

imprecision does not render a statute vague.121 In fact, “[a] facial challenge for vagueness is

appropriate only on an allegation that the law is vague not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative standard, but rather in the

sense that no standard of conduct is specified at all.”122

119 Caputo, 201 F.Supp.3d at 71.

120 City of Chicago v. Morales, 527 U.S. 41, 90 (1999).

121 Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir. 1983).

122 Id. (quoting Coates v. Cincinnati, 402 U.S. 611, 614 (1971)).

La. R.S. 14:61 is not unconstitutionally vague under these standards. Three of the statute’s

entry restrictions provide clear notice to any ordinary person of the conduct that is prohibited.

Section 14:61(A)(1) prohibits entry into the premises of critical infrastructure that is “enclosed by

any type of physical barrier.” Section 14:61(A)(4) restricts access to restricted or limited access

areas of critical infrastructure that is similarly “enclosed by any type of physical barrier” and

“marked as a restricted or limited access area.” While the restriction in Section 14:61(A)(3) is not

limited to areas surrounded by a physical barrier, it proscribes conduct only after an “authorized

person” instructs the trespasser to leave the premises orally or in writing. The Court concludes that

the operative language of Section 14:61 provides any ordinary person with sufficient notice of the

conduct it proscribes and that it provides specific standards sufficient to prevent arbitrary

enforcement.123

In their Rule 56(f) Response, Plaintiffs’ Due Process argument appears to rest, in part, on

their broad reading of Section 14:61(A)(3) and their argument that this provision, when applied to

underground pipelines, fails to provide adequate notice or “minimal standards to govern law

enforcement.”124 However, the Court previously concluded that the term “premises” referenced in

Section 14:61(A)(3) do not encompass traditional public spaces. Specifically, the Court construes

the term “premises” in La. R.S. 14:61(A)(3) to mean property over which “owner, lessee, or

custodian” of that property has the right under state law to control access to or otherwise exclude

others from the property.

123 See, e.g., Caputo, 201 F.Supp.3d at 72 (concluding that restriction against unauthorized entry onto the grounds of

the White House was not unconstitutionally vague because the “White House’s perimeter, demarcated by an imposing

fence and manned by scores of Secret Service agents, unambiguously provides ordinary people with fair notice that

unauthorized entry onto the grounds is unlawful.”).

124 ECF No. 129-1 at 11-12.

In sum, the Court grants summary judgment on plaintiff's vagueness challenge under the

Due Process clause and, therefore, dismisses those claims.

V.

CONCLUSION

For the foregoing reasons, the Court GRANTS summary judgment in favor of the

defendants under Rules 56(a) and 56(f) and DISMISSES Plaintiffs’ First Amendment and Due

Process claims WITH PREJUDICE.

THUS DONE in Chambers on this 5th day of April, 2024.

~ ROBERT R.SUMMERHAYS

UNITED STATES DISTRICT JUDGE

31