# D & J Invst of Cenla v. Baker Hughes

> Court of Appeals for the Fifth Circuit · October 17, 2022 · 52 F.4th 187

URL: https://www.frixlaw.com/law-library/cases/8353235

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 17, 2022
- **Citations:** 52 F.4th 187
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Private Civil Diversity
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8353235

## How later opinions describe it (automated extraction)

- holding that when evaluating whether a defendant is properly joined, the court “resolve[s] any contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, in [the plaintiff’s] favor” (quoting Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007))
- holding that the district court did not abuse its discretion in certifying an order dismissing a party “without prejudice” as a final judgment under Rule 54(b)
- holding that dismissals of improperly joined nondiverse defendants are without prejudice

## Opinion text

Case: 21-30523 Document: 00516511164 Page: 1 Date Filed: 10/17/2022

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
October 17, 2022
No. 21-30523 Lyle W. Cayce
Clerk

D & J Investments of Cenla, L.L.C.; Deborah H. Greer;
James W. Greer, Jr.; Daniel L. Webb; Jim Adams, et al,

Plaintiffs—Appellants,

versus

Baker Hughes a G E Company, L.L.C.; Baker Hughes
Energy Services, L.L.C.; Dresser, L.L.C.; Dresser R E,
L.L.C.; GE Oil ; Gas, L.L.C.; G H D Services,
Incorporated; Stantec Consulting Services,
Incorporated; Halliburton Energy Services,
Incorporated; Louisiana Department of Environmental
Quality,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:20-CV-1174
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No. 21-30523

Before Davis, Elrod, and Haynes, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Plaintiffs-Appellants, forty-eight owners of property located near the
former Dresser Industrial Valve Operations Facility (“Dresser Facility”) in
Rapides Parish, Louisiana, appeal the district court’s order dismissing the
Louisiana Department of Environmental Quality (“LDEQ”) as improperly
joined and denying their motion for remand. They further challenge the
injunction issued by the district court against Plaintiff Michael Guillory from
pursuing a proceeding in state court. Because we conclude that Defendants-
Appellees failed to meet their burden of establishing that LDEQ was
improperly joined, we REVERSE and REMAND to the district court with
instructions to remand this case to Louisiana state court. We further
VACATE the injunction.
I. BACKGROUND
The Dresser Facility manufactured industrial valves from 1961 to
2016. In July 2020, Plaintiffs filed suit in state court against LDEQ and
Defendants-Appellees, who are the various past and present owners and
operators of the facility (“Facility Defendants”). Plaintiffs allege that
hazardous waste from the facility has contaminated the soil and groundwater
of their nearby properties.
A. State Court Petition
In their petition for damages, Plaintiffs contend that the Facility
Defendants failed to properly design, construct, and/or operate the Dresser
Facility’s waste removal processes to prevent leaching of contaminants into
the groundwater and to prevent offsite migration onto and under Plaintiffs’
properties. Plaintiffs allege that the Facility Defendants knew or should have
known that operations at the Dresser Facility would result in contamination
of the soil, surface waters, and groundwater of surrounding properties; that

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they chose to conceal and cover up the contamination; and that they failed to
responsibly and timely remove and/or remediate the toxic pollution such that
the contaminants have now migrated, spread, and permanently damaged the
drinking water and other aquifers underlying their properties. Plaintiffs
assert their damages were caused by the Facility Defendants’ “negligence,
strict liability, and wanton and reckless misconduct,” as well as “unlawful
subsurface trespass.” Plaintiffs also contend that they are entitled to punitive
and/or exemplary damages under former Louisiana Civil Code article
2315.3. 1
With respect to LDEQ, Plaintiffs allege that in 2012, LDEQ learned
that hazardous waste was emanating from the Dresser Facility. They further
assert that by 2014, LDEQ had determined the direction of groundwater flow
and knew of the homes and businesses in the path of the contaminant plume,
but that LDEQ did not inform Plaintiffs and other members of the public of
the contamination until years later in 2020. Plaintiffs maintain that the
damages they have sustained were caused by the “negligence and
misconduct” of LDEQ in failing to timely and properly (1) report and warn
them of the contamination of the groundwater and soils underlying their
properties, (2) conduct testing and remediation, and (3) investigate the
source of the contamination and the potential pathways of contamination
from the facility into the environment.

1
Former Article 2315.3 was effective from 1984 to April 16, 1996, and authorized
recovery of punitive damages against a party that wantonly or recklessly disregarded public
safety in the storage or handling of hazardous toxic substances. In order to be entitled to
damages under the article, the offending conduct must have occurred during the article’s
effective period. See Bonnette v. Conoco, Inc., 837 So.2d 1219, 1236 n.11 (La. 2003) (holding
that Article 2315.3 was applicable to a claim arising in 1994).

3
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B. Removal to Federal District Court
One of the Facility Defendants, Halliburton Energy Services, Inc.
(“Halliburton”), removed the case to federal district court on the basis of
diversity jurisdiction. Halliburton asserted that because all Plaintiffs are
diverse from all of the properly joined Facility Defendants, complete
diversity existed. Halliburton contended that LDEQ, the only defendant
whose presence would prevent diversity jurisdiction, was improperly joined.
It argued, citing this court’s decision in Smallwood v. Illinois Central Railroad
Company, 2 that LDEQ was improperly joined “because there [wa]s no
reasonable basis to predict that Plaintiffs will be able to recover from LDEQ.”
Specifically, Halliburton asserted that Plaintiffs’ allegations against LDEQ
for failing to adequately investigate and remediate the alleged contamination
emanating from the Dresser Facility and failing to warn Plaintiffs of the
alleged contamination do not “support[] a claim against LDEQ under
Louisiana law.”
Plaintiffs thereafter filed a motion for remand. Plaintiffs argued that
LDEQ was not improperly joined because LDEQ owed them a duty under
Louisiana law to warn them about the presence of hazardous materials in
their drinking water. Additionally, Plaintiffs asserted that LDEQ had
assumed control of the soil and groundwater contamination investigation and
then concealed the findings from Plaintiffs. Plaintiffs argued that their
damages were caused and/or exacerbated by the negligence and misconduct
of LDEQ. In response, in addition to arguing that LDEQ owed no duties to
Plaintiffs, Halliburton asserted that LDEQ’s alleged actions fall within the

2
385 F.3d 568, 573 (5th Cir. 2004) (en banc).

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discretionary-acts exemption set forth in Louisiana Revised Statutes
Annotated § 9:2798.1, making LDEQ immune from suit in this case. 3
The district court denied Plaintiffs’ motion for remand. It determined
that under Louisiana law, LDEQ did not have a duty “to inform [Plaintiffs]
of reported contamination within a particular timeframe or to otherwise
oversee remediation in any particular manner.” It further concluded that
Louisiana law does not create a cause of action against LDEQ for
contamination caused by private industry. Although noting that whether
LDEQ owed a duty under the circumstances was “an issue of first
impression” in the Western District of Louisiana, the district court observed
that Louisiana’s two other federal districts had also “conclude[ed] that the
[L]DEQ is not liable in tort for failing to properly handle contamination.” 4
Consequently, the district court determined that Halliburton met its burden
of establishing that LDEQ was improperly joined and that its presence could
be disregarded. 5 The district court therefore denied Plaintiffs’ motion for
remand and also dismissed LDEQ with prejudice. Because complete
diversity existed among the remaining parties, the district court determined
it had subject matter jurisdiction over this case.
Plaintiffs filed a motion for reconsideration, arguing that the district
court’s improper-joinder analysis was erroneous. They submitted additional

3
Under La. R.S. § 9:2798.1(B), “[l]iability shall not be imposed on public entities
. . . based upon the exercise or performance or failure to exercise or perform their
policymaking or discretionary acts when such acts are within the course and scope of their
lawful powers and duties.”
4
The district court cited to Butler v. Denka Performance Elastomer LLC, No. 18-
6685, 2019 WL 1160814 (E.D. La. Mar. 13, 2019) and Landry v. Laney Directional Drilling,
Co., No. 09-615, 2009 WL 3833831 (M.D. La. Nov. 16, 2009).
5
Because the district court determined that “Plaintiffs failed to demonstrate a
reasonable basis of recovery,” the court did “not address whether LDEQ is protected by
the ‘discretionary acts’ exemption.”

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authority for their argument that LDEQ owed a duty to warn—specifically,
a 2001 Executive Order requiring certain state agencies, including LDEQ, of
notifying “people who may be exposed to environmental contamination.”
Plaintiffs also contended that the district court’s dismissal of LDEQ for
improper joinder should have been without prejudice, instead of with
prejudice. The district court granted the motion in part, determining that its
dismissal of LDEQ should have been without prejudice, but denied the
remainder of the motion.
C. Motion for Rule 54(b) Certification and for Injunction
Halliburton thereafter moved the district court pursuant to Federal
Rule of Civil Procedure 54(b) to certify, as a partial final judgment, its order
dismissing LDEQ without prejudice and denying Plaintiffs’ motion for
remand. Halliburton also sought to enjoin state court proceedings,
contending that one of the plaintiffs, Michael Guillory, had filed a
“duplicative state court action.” In the state court petition, Guillory
requested a declaratory judgment that LDEQ owed a duty to notify him of
contamination, citing the 2001 Executive Order and asserting that the Order
had been codified in the Louisiana Administrative Code. 6 Halliburton argued
that Guillory filed his state court action in an attempt to “collateral[ly]
attack” the district court’s legal conclusions underlying its dismissal of
LDEQ. The other Facility Defendants all joined in Halliburton’s motion.
The district court noted that the cited sections of the Louisiana
Administrative Code in Guillory’s state court action “delineate the
procedures established by the [L]DEQ for notifying the public of
contamination.” In a footnote, the district court determined that although
the Code set forth time frames for public notification of contamination, the

6
See 33 La. Admin. Code Pt. I, § 109.

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application of the timeframes to specific instances of contamination “is left
solely to the discretion of the [L]DEQ.” The district court granted the
Facility Defendants’ motion, entered a final judgment pursuant to Rule 54(b)
of its order dismissing LDEQ and denying remand, and issued an injunction
against Guillory from pursuing his state court action against LDEQ.
Plaintiffs timely appealed.
II. DISCUSSION 7
On appeal, Plaintiffs argue that the district court abused its discretion
in certifying as a final judgment under Rule 54(b) its order dismissing LDEQ.
They additionally assert that the district court erred in determining that
LDEQ was improperly joined and in denying their motion to remand.
Finally, they assert that the district court erred in enjoining Plaintiff Guillory
from prosecuting his claims against LDEQ in state court.
A. Rule 54(b) Certification
Under 28 U.S.C. § 1291, this Court has appellate jurisdiction “from
all final decisions of the district courts.” “Where, as here, an action involves
multiple parties, a disposition of the action as to only some of the parties does
not result in a final appealable order absent a certification by the district court

7
As an initial matter, we DENY Plaintiffs’ motion to dismiss appeal and to
dissolve injunction of state court proceedings. Plaintiffs argue that the Eleventh
Amendment and Article III preclude a district court from conducting a Smallwood
improper-joinder analysis when a state is a party defendant. However, as Plaintiffs
acknowledge, our holding in Melder v. Allstate Corp., 404 F.3d 328, 330 (5th Cir. 2005), that
we may conduct a Smallwood improper-joinder analysis without considering the Eleventh
Amendment forecloses Plaintiffs’ argument. Furthermore, as we explain in Section II(A)
infra, Plaintiffs’ argument that this appeal has not been properly certified under Rule 54(b)
has no merit. Finally, as we determine in Section II(B) infra, Defendants failed to meet
their burden of establishing improper joinder; therefore, the district court lacked subject
matter jurisdiction, and its injunction enjoining the state court proceedings consequently
must be vacated. Therefore, Plaintiffs’ motion to dissolve the injunction is denied as moot.

7
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No. 21-30523

under Federal Rule of Civil Procedure 54(b).” 8 That rule allows the district
court to “direct entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines there is no just
reason for delay.” 9 This Court “review[s] a district court’s decision to
certify under Rule 54(b) for an abuse of discretion.” 10 In making the decision
to certify under Rule 54(b), “the district court must consider judicial
administrative interests as well as the equities involved.” 11 “So long as the
district court’s certification is not ‘clearly unreasonable,’ it will not be
disturbed.” 12
Because Plaintiffs’ action involves multiple parties, the order
dismissing LDEQ and denying remand was appealable only if it was certified
under Rule 54(b). The district court concluded that Rule 54(b) certification
was warranted because it would avoid “the hardship and injustice of a later
remand or retrial if, upon appeal, the [L]DEQ is ultimately found to have
been properly joined as a defendant.” It further believed that certification
would avoid piecemeal appeals because the dismissal order “completely
disposed of Plaintiffs’ claims against [LDEQ].” These bases for certification
were not clearly unreasonable.
Nevertheless, Plaintiffs argue that the district court erred because it
stated it was certifying its “Nov. 18th Order,” which erroneously dismissed
LDEQ with prejudice, instead of its amended order properly dismissing
LDEQ without prejudice. But Plaintiffs’ argument ignores the clear intent

8
Brown v. Miss. Valley State Univ., 311 F.3d 328, 331 (5th Cir. 2002) (citation
omitted).
9
FED. R. CIV. P. 54(b).
10
Brown, 311 F.3d at 332 (citation omitted).
11
Id. (citation omitted).
12
Id. (citation omitted).

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of the district court and puts “form over substance,” an approach we
routinely reject when reviewing certification orders. 13 The record
unmistakably reflects the intent of the district court to certify the amended
order properly dismissing LDEQ without prejudice. Defendants moved for
certification of “the interlocutory order dismissing [L]DEQ without
prejudice.” The district court granted Defendants’ motion and specifically
acknowledged in its certification ruling that it had amended its November 18
order to reflect that the dismissal of LDEQ was without prejudice. Plaintiffs’
argument on this issue is wholly without merit.
Plaintiffs also challenge the district court’s Rule 54(b) certification
because it “effectively circumvents the rules prohibiting appellate review of
remand orders.” Although remand denials generally are not reviewable on
appeal, 14 this Court permits review of a remand denial when the order is
(1) coupled with a Rule 12(b)(6)-type dismissal and (2) certified as final
under Rule 54(b). 15 Those two conditions are present here.
Although difficult to follow, Plaintiffs appear to argue that the district
court’s decision dismissing LDEQ without prejudice cannot be certified
under Rule 54(b) because, as we explained in International Energy Ventures
Management, L.L.C. v. United Energy Group, Ltd., 16 such dismissals are not

13
See Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.
1990) (en banc) (per curiam) (stating that this court rejects a “form-over-substance”
approach when determining whether the district court has properly certified a decision
under Rule 54(b)).
14
PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 539 (5th Cir. 2005)
(“An order denying a motion to remand is not appealable as a final decision within the
meaning of 28 U.S.C. § 1291.”).
15
See, e.g., Ford v. Elsbury, 32 F.3d 931, 935 & n.5 (5th Cir. 1994); Aaron v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 876 F.2d 1157, 1160 (5th Cir. 1989); B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 548 (5th Cir. Unit A Dec. 1981).
16
818 F.3d 193, 210 (5th Cir. 2016).

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merits determinations but jurisdictional ones. It is true that we emphasized
in that case that “the only ground for dismissing any improperly joined,
nondiverse party is lack of subject matter jurisdiction,” because “[t]o dismiss
on [the merits] would require the presence of jurisdiction that does not
exist.” 17 But the main focus of our opinion was deciding which pleading
standard, federal or state, applies when determining whether a nondiverse
defendant has been improperly joined. We held that the federal pleading
standard applies. And, we made no changes to the rule allowing appellate
review of remand denials that are coupled with “Rule 12(b)(6)-type
dismissals.” We simply clarified that dismissals of improperly joined
nondiverse defendants are “[u]nlike the typical dismissal[s] under
Rule 12(b)(6)” which operate as merits determinations, and are more like
Rule 12(b)(1) dismissals for lack of jurisdiction. Consequently, such
dismissals must be without prejudice.
If Plaintiffs are contending that dismissals without prejudice for lack
of jurisdiction are not appealable, they are mistaken. 18 And, they cite no
authority holding that when such a dismissal involves one of multiple
defendants, the district court cannot then certify its decision under
Rule 54(b), as the district court did here. In sum, the district court did not
abuse its discretion in certifying as a final judgment under Rule 54(b) its order
dismissing LDEQ without prejudice as improperly joined and denying
Plaintiffs’ motion for remand.

17
Id.
18
We review de novo a district court’s dismissal for lack of subject matter
jurisdiction, which are dismissals without prejudice. See Carver v. Atwood, 18 F.4th 494,
496, 498 (5th Cir. 2021).

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B. Improper Joinder
This Court reviews the denial of a remand motion and the
determination that a party is improperly joined de novo. 19 “[W]e have
recognized two ways to establish improper joinder: (1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a
cause of action against the non-diverse party in state court.” 20 Because there
is no contention that Plaintiffs fraudulently pleaded jurisdictional facts, the
second method is before us today.
In our en banc decision in Smallwood, we stated the standard for
improper joinder as follows: “whether the defendant has demonstrated that
there is no possibility of recovery by the plaintiff against an in-state
defendant, which stated differently means that there is no reasonable basis
for the district court to predict that the plaintiff might be able to recover
against an in-state defendant.” 21 Importantly, in making this determination,
we must “resolve any contested issues of material fact, and any ambiguity or
uncertainty in the controlling state law, in [Plaintiffs’] favor.” 22 When
controlling state law “is too uncertain to support improper joinder,” remand
to state court is required. 23

19
Int’l Energy Ventures Mgmt., L.L.C., v. United Grp. Ltd., 818 F.3d 193, 199 (5th
Cir. 2016) (denial of remand motion); Kling Realty Co., Inc. v. Chevron USA, Inc., 575 F.3d
510, 513 (5th Cir. 2009) (improper joinder).
20
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (2004) (en banc) (internal
quotation marks and citation omitted).
21
Id.
22
Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (internal quotation marks and
citation omitted).
23
Id. at 244 (reversing improper-joinder dismissal and denial of remand because
“application of the Texas unlawful acts rule to Plaintiffs’ claim [was] too uncertain to
support finding of improper joinder”).

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As set forth above, Plaintiffs allege in their petition that LDEQ failed,
inter alia, to timely warn them of the contamination of the groundwater and
soils underlying their properties and that they are entitled to damages under
Louisiana law. The district court noted that whether LDEQ owed a duty
under the circumstances was “an issue of first impression” in its district and
that neither the Louisiana Supreme Court nor this Court had squarely
addressed the underlying legal issues. However, the court noted that
Louisiana’s two other federal districts had also “conclude[ed] that the
[L]DEQ is not liable in tort for failing to properly handle contamination.” 24
The district court determined, therefore, that Defendants met their burden
of establishing that LDEQ was improperly joined and that its presence could
be disregarded.
Although the district court carefully reviewed certain Louisiana
constitutional provisions and statutes in determining that Plaintiffs had not
stated a cognizable claim against LDEQ, we note (as described below) that at
least one Louisiana appellate court 25 has recognized that LDEQ may be sued
in tort for its negligence under circumstances similar to those alleged by
Plaintiffs. 26 Additionally, it is unclear whether LDEQ would have
discretionary immunity under La. R.S. § 9:2798.1 in this case. 27 Because

24
The district court cited to Butler v. Denka Performance Elastomer LLC, No. 18-
6685, 2019 WL 1160814 (E.D. La. Mar. 13, 2019) and Landry v. Laney Directional Drilling,
Co., No. 09-615, 2009 WL 3833831 (M.D. La. Nov. 16, 2009).
25
See Wilson v. Davis, 991 So.2d 1052 (La. App. 1st Cir. 2008).
26
See Rico, 481 F.3d at 243 (noting that “[a]t least one Texas case support[ed] a
contrary view” of Defendant’s contention that Texas unlawful acts rule barred Plaintiffs’
claims).
27
See id. at 236, 244 (when application of a state rule barring plaintiff’s claim “is
too uncertain,” and “there are alternative reasonable interpretations that a [state] court
might reach,” “ambiguity must be resolved in favor of the plaintiff” when determining
improper joinder).

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under our standard for determining improper joinder, any ambiguity or
uncertainty in the controlling state law must be resolved in Plaintiffs’ favor, 28
we must reverse the district court’s dismissal without prejudice of LDEQ and
its denial of Plaintiffs’ motion for remand. We explain our reasoning in
further detail below.
1. Louisiana law
The Louisiana Constitution provides for a waiver of sovereign
immunity in state court for the state, a state agency, or a political subdivision
“as to suit and liability in contract and tort cases.” 29 In Wilson v. Davis, the
LDEQ was sued by Plaintiff Johnna Wilson, individually and on behalf of her
minor children, who bought property in 1997 adjacent to a facility licensed by
LDEQ to handle radioactive materials.30 Wilson alleged that LDEQ was
aware as early as 1979 that the facility was violating state regulations
governing radioactive materials and that LDEQ knew the soil behind the
facility had been contaminated. 31 Wilson contended that LDEQ ceased
inspecting the property in the early 1980s, and although it resumed
inspections in 1988, LDEQ allowed the facility to continue its operations
even though it found violations of state regulations governing radioactive
materials and knew of the violative contamination. 32 Wilson contended that
if LDEQ had acted appropriately, the parties would never have been exposed

28
See id. at 239.
29
Fulmer v. State, Dep’t of Wildlife and Fisheries, 68 So.3d 499, 503 (La. 2011)
(citation omitted); see La. Const. Art. 12, § 10(A) (“Neither the state, a state agency,
nor a political subdivision shall be immune from suit and liability in contract or for injury to
person or property.”).
30
991 So.2d 1052, 1056 (La. App. 1st Cir. 2008).
31
Id.
32
Id.

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to hazardous levels of radioactive materials. 33 She also alleged that a scientist
with LDEQ failed to report adequately and accurately the extent of the
contamination on the property. 34 The prior owners of the property, whom
Wilson also sued, filed a third-party demand against LDEQ asserting many
of the same claims asserted by Wilson. 35
The Louisiana First Circuit Court of Appeal determined that pursuant
to La. R.S. § 30:2012(D), 36 LDEQ had a duty to perform annual inspections
of the facility, and that under La. R.S. § 30:2012(A)(1), those inspections
had to be “meaningful” so that LDEQ could determine whether
“[e]nvironmental standards ha[d] been achieved.” 37 The court held that
LDEQ’s compliance with these statutes did “not involve policymaking or
discretionary duties” and that failure to comply with the statutes did not fall
within the scope of the discretionary-act immunity set forth in § 9:2798.1. 38
Although the Wilson plaintiffs were able to establish that LDEQ owed
them non-discretionary duties to perform annual and meaningful inspections
of the facility it had licensed, they had to come forward with factual support
showing that LDEQ breached those duties. 39 They were unable to do so.
Specifically, the Wilson plaintiffs failed to produce any affidavits, depositions,

33
Id.
34
Id.
35
Id.
36
During the relevant time period, La. R.S. § 30:2012(D) provided: “A
monitoring inspection of all facilities operating with a permit issued pursuant to this
Subtitle shall be made at least once annually.” In 2003, however, this provision was
amended, and the “at least once annually” language was deleted. See La. R.S.
§ 30:2012(D)(1).
37
Wilson, 991 So.2d at 1060 (citing La. R.S. § 30:2012(A)(1) & (D)).
38
Id.
39
Id.

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or other admissible evidence supporting their allegations that LDEQ “failed
to conduct ‘annual’ or ‘meaningful’ inspections.” 40 Therefore, the court
concluded that summary judgment was warranted on that claim. 41
With respect to the Wilson plaintiffs’ claim that LDEQ failed to
inform the public and neighboring property owners about the dangers of the
site until 2000, the court determined that the plaintiffs were unable to cite
any non-discretionary duty mandating LDEQ do so. 42 Therefore, the court
rendered judgment in favor of LDEQ. 43
Wilson is significant in this matter for three reasons. First, the court
acknowledged that LDEQ may be sued in tort by owners of property affected
by contamination from facilities LDEQ licenses. Property owners are not
limited to seeking redress from LDEQ through administrative channels.
Second, the court acknowledged that LDEQ owed certain non-discretionary
duties to perform annual and meaningful inspections. 44 Third, the court did
not reject the possibility that LDEQ might owe other duties, for example, a
duty to warn the public and neighboring property owners about the dangers
of contamination from a site it licenses, if the plaintiffs could cite to a non-
discretionary duty mandating LDEQ do so.

40
Id. at 1061.
41
Id.
42
Id. at 1063. At the time of the events in Wilson, the provisions regarding public
notification of contamination (discussed infra) set forth in Title 33, Chapter One of the
Louisiana Administrative Code were not yet effective. See 33 La. Admin. Code Pt. I,
§ 105 (providing that public notification regulations “shall become effective on October 20,
2003”).
43
Wilson, 991 So.2d 1063.
44
As previously noted, in 2003, La. R.S. § 30:2012 was amended such that annual
inspections are no longer mandated. See La. R.S. § 30:2012(D)(1).

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Based on Wilson, we cannot clearly say (contrary to the district court’s
conclusion) that “Louisiana law does not provide for civil liability against the
[L]DEQ.” Furthermore, the Plaintiffs in this case have cited to authority
providing that, under certain circumstances, LDEQ has a non-discretionary
duty to warn the public and neighboring property owners about dangerous
contamination from facilities it licenses. Specifically, Plaintiffs cite to
regulations in the Louisiana Administrative Code, 45 which became effective
in 2003 after the events in Wilson, “establish[ing] procedures for notifying
those members of the public whom [LDEQ] determines are likely to be
adversely affected by a release that poses a significant risk of adverse health
effects” and “that exceed[s] the applicable federal or state health and safety
standard.” 46

45
The dissent mistakenly contends that Louisiana law prohibits reliance on a
regulation as support for a duty imposed on a state agency. As one of the cases cited by the
dissent provides, “[m]ost cases alleging negligence on the part of a public body” are
analyzed under the “classic duty-risk analysis.” Hebert v. Rapides Parish Police Jury, 974
So.2d 635, 643 (La. 2007) (citations omitted). And, under the classic duty-risk analysis,
Louisiana courts have imposed tort duties based on regulations. See, e.g., Gatlin v. Entergy
Corp., 904 So.2d 31, 35 (La. App. 4th Cir. 2005) (“[V]iolations of OSHA regulations are
relevant to establishing the negligence of a party.”); Nicks v. Teche Elec. Co-op, Inc., 640
So.2d 723, 729 (La. App. 3d Cir. 1994) (affirming trial court’s determination that state and
federal traffic safety “regulations create[d] a duty on the part of [defendant]”); Manchack
v. Willamette Indus., Inc., 621 So.2d 649, 652 (La. App. 2d Cir. 1993) (stating that “a
plaintiff ‘may properly offer a statute or regulation [such as OSHA] as evidence of a
defendant’s negligence’”) (citation omitted).
46
33 La. Admin. Code Pt. I, §§ 101(A), 102 (A). The Defendants and the
dissent contend that Plaintiffs waived, in the district court and on appeal, their “duty
theory” based on the notification provisions in the Louisiana Administrative Code. We
disagree. First, Plaintiffs have asserted the same “duty theory”—that LDEQ had a duty
to timely warn them of the contamination of their property—throughout this litigation.
Plaintiffs’ authority supporting their tort claim has evolved since the filing of Plaintiffs’
petition, but the case cited by the dissent for waiver, Great Plains Trust Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 316 (5th Cir. 2002), does not prohibit assertion of
additional authority in support of a tort claim. That case held that Plaintiffs could not
switch its breach of contract claim advanced in the district court to a tort claim on appeal.

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Section 109 of the chapter entitled “Public Notification of
Contamination” sets forth a “chart provid[ing] the content and time frame
for providing notification.” 47 It specifies the “triggering events” for two
different types of public notice. The first type of notice is triggered when
LDEQ “becomes aware of information and determines that a release is likely
to have off-site impacts that exceed the applicable federal or state health and
safety standard and pose a significant risk of adverse health effects.” 48 “Off-
site” is defined as “areas beyond the property boundary of the release
site.” 49 The second type of notice is triggered when the LDEQ “confirms
off-site impact that exceeds the applicable federal or state health and safety
standard and the department determines that the off-site impact poses a
significant risk of adverse health effects.” 50 The time period for providing
public notice for these two triggering events is the same: “When an
emergency or exigent circumstance exists, notice shall be given as soon as
practicable under the circumstances by using any reasonable means or,
otherwise, within 30 days of the triggering event.” 51
Defendants argue, and the district court determined, that LDEQ is
entitled to discretionary immunity under § 9:2798.1, because the public

Id. at 317. Moreover, the notification provisions at issue are not being addressed for the
first time on appeal. The district court specifically addressed these provisions in its order
granting Rule 54(b) certification of its order denying remand and issuing the injunction.
Although Plaintiffs did not fully brief the provisions in their opening appellate brief, they
did cite to Frazier v. Pioneer Americas, LLC, No. 05-1338-JJB, 2006 WL 8435040 (M.D. La.
Nov. 6, 2006), which centered on whether LDEQ owed a duty under § 109. Therefore, we
believe it appropriate for us to consider Plaintiffs’ § 109 arguments.
47
33 La. Admin. Code Pt. I, § 109(D).
48
Id.
49
Id., § 107(A).
50
Id., § 109(D).
51
Id.

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notification provisions leave the LDEQ with broad discretion on when and
how to provide notice. We, however, believe “there are alternative
reasonable interpretations that a [state] court might reach.” 52 Specifically,
the notification provisions contain the word “shall,” and they set forth
specific triggering events mandating notice and specific times when that
mandatory notice is to be provided. Although the triggering events depend
on determinations and confirmations made by LDEQ (and to that extent is
discretionary), once those triggering events occur, notice is mandated “as
soon as practicable” or otherwise “within 30 days of the triggering event.” 53
Because we must construe any ambiguity or uncertainty in the
controlling state law in Plaintiffs’ favor, 54 Defendants’ discretionary-
immunity argument cannot support a finding of improper joinder in this case.
2. Decisions by this Court and federal district courts
As stated above, in determining that LDEQ was improperly joined,
the district court cited as supporting authority, Butler v. Denka Performance
Elastomer, LLC. 55 We find that case distinguishable for a number of reasons.
First, the district court addressed the issue whether LDEQ had a duty under
Louisiana law to warn the community regarding the risks of contamination in
the context of a Rule 12(b)(6) motion filed by LDEQ. The issue did not arise
in the context of a motion for remand after a removal based on improper
joinder. Therefore, the district court was not required to apply the standard

52
See Rico, 481 F.3d at 243.
53
§ 109(D). Plaintiffs’ allegations appear to place this case within the mandatory
provisions of § 109. Specifically, Plaintiffs have alleged that LDEQ had determined by 2014
the direction of groundwater flow and knew of the homes and businesses in the contaminant
plume, but did not inform them of the contamination until years later in 2020.
54
See Rico, 481 F.3d at 239.
55
No. 18-6685, 2019 WL 1160814 (E.D. La. Mar. 13, 2019).

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set forth in Rico we must apply here. 56 Second, there was no discussion
regarding the Louisiana First Circuit Court of Appeal’s decision in Wilson or
the notification provisions set forth in the Louisiana Administrative Code.
Furthermore, in her briefing to this Court, the plaintiff in Butler did
“not meaningfully challenge the district court’s dismissal of [her] negligence
claim against [L]DEQ.” 57 Therefore, we “deemed” her appeal of the
dismissal of that claim “abandoned.” 58 Consequently, we made no ruling on
the merits of the district court’s decision that LDEQ owed no duty.
In our decision in Acosta v. Denka Performance Elastomer, L.L.C., 59 we
affirmed the district court’s decision, which relied heavily on its reasoning in
Butler, that LDEQ was improperly joined. However, we simply stated that
we agreed with the district court that LDEQ was improperly joined and “that
no further analysis of this issue is warranted.” 60 Acosta is an unpublished
decision, and therefore has no precedential value. We also do not find it
persuasive as no discussion or analysis of Louisiana law was offered.
In sum, we conclude that the above prior cases from our Court do not
control our decision herein.
III. CONCLUSION
Based on the foregoing, Defendants failed to meet their burden of
establishing that LDEQ was improperly joined. Accordingly, we REVERSE
and REMAND to the district court with instructions to remand this case to

56
Consequently, the district court did not have the option of availing itself of Rico
to avoid a decision on the merits by finding Louisiana law unclear.
57
Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427, 446 n.27 (5th Cir.
2021).
58
Id.
59
21-30136, 2022 WL 1091534 (5th Cir. Apr. 12, 2022) (per curiam).
60
Id. at *3.

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Louisiana state court. Because the district court lacked subject matter
jurisdiction, it had no authority to issue an injunction. Therefore, we further
VACATE the injunction. Plaintiffs’ motion to dismiss appeal and to
dissolve injunction is DENIED.

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Haynes, Circuit Judge, concurring in part and dissenting in part:
I concur in the determination that we have jurisdiction under Rule
54(b). I also concur that the district court’s injunction should be vacated,
however, I do so for a different reason. Under the All Writs Act, federal
courts “may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651. However, this power is limited by the Anti-Injunction Act, which
generally prohibits federal courts from “grant[ing] an injunction to stay
proceedings in a State court.” Id. § 2283. A district court may only enjoin
state court proceedings under three narrow exceptions: (1) when the court is
expressly authorized to do so by an Act of Congress; (2) “where necessary in
aid of [the court’s] jurisdiction”; or (3) “to protect or effectuate [the court’s]
judgments.” Id.; see also Smith v. Bayer Corp, 564 U.S. 299, 306 (2011)
(recognizing narrowness of exceptions). Otherwise, the Act is “an absolute
prohibition . . . against enjoining state court proceedings.” Atl. Coast Line
R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970).
After the district court dismissed LDEQ, Plaintiff Guillory filed a
declaratory judgment action against the agency in Louisiana state court. He
sought a declaratory judgment stating that (1) LDEQ owed a duty to Guillory
and other individuals to provide timely notice of potential contamination, and
(2) he has a cause of action against LDEQ. In response, Defendant
Halliburton moved the district court for an order enjoining Guillory from
prosecuting his state court declaratory judgment action. The district court
issued the injunction, concluding that two exceptions to the Anti-Injunction
Act—the “protect and effectuate” and “authorized by an Act of Congress”
exceptions—applied.
For that first exception to apply, the following requirements must be
met:

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(1) parties in the later action must be identical to or in privity
with the parties in the previous action; (2) judgment in the
prior action must have been rendered by a court of competent
jurisdiction; (3) the prior action must have concluded with a
final judgment on the merits; and (4) the same claim or cause
of action must be involved in both suits.
Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 273 (5th Cir. 2009).
However, it is clear that the dismissal of LDEQ was not a final judgment, so
the third requirement was plainly not met. Accordingly, this exception does
not apply.
The district court also concluded that the exception for
“authorization by an Act of Congress” applied. Importantly, neither party
raised this exception nor briefed it before the district court. Accordingly, the
district court violated the party presentation principle by invoking this
exception sua sponte. See United States v. Sineneng-Smith, 140 S. Ct. 1575,
1579 (2020) (noting that “[c]ourts are essentially passive instruments of
government” and should “normally decide only questions presented by the
parties.” (quotation omitted)). Even if considered, the subsequent case filed
by Plaintiff Guillory was not identical to the original federal action, so it does
not satisfy the standard for this exception. “Although the removal statute
only commands the state court to stay the case that was actually removed, it
has been interpreted to authorize courts to enjoin later filed state cases that
were filed for the purpose of subverting federal removal jurisdiction.” Kan.
Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1069 (8th
Cir. 1996).
Accordingly, while I conclude below that LDEQ was properly
dismissed, I do agree with the majority opinion that the injunction should be
vacated.

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Turning to the main question in the case, whether LDEQ was
improperly joined such that the district court had jurisdiction, I respectfully
dissent.
One of the key parts of the majority opinion is the assertion of a “duty
theory” based on the Louisiana Administrative Code (particularly
§ 109). However, Plaintiffs failed to raise § 109 in their initial complaint or
their motion to remand. Thus, this theory is waived.
To summarize, Plaintiffs first waived their § 109 duty theory by failing
to raise it in their initial complaint. It is well-established that the improper
joinder analysis depends on the allegations in the complaint. See Smallwood v.
Ill. Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc) (the court
conducts “a Rule 12(b)(6)-type analysis” evaluating “the allegations of the
complaint to determine whether the complaint states a claim under state law.”
(emphasis added)). For example, in Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 316 (5th Cir. 2002), the plaintiffs alleged
that the defendant owed a duty based on a “failure to perform”
standard. Id. But on appeal, the plaintiffs advanced another theory,
premised on “general negligence” principles. Id. This court rejected the
plaintiffs’ belated invocation of the “general negligence” argument because
the plaintiffs could not point to anywhere in their complaint that
“advance[ed] such an allegation.” Id. at 316. As this court stated, the
plaintiffs “did not rely below on the contention” they advanced on appeal,
so “the argument [wa]s waived.” 1 Id. at 317.

1
I recognize that Great Plains Trust Co. does not stand for the proposition that a
party is prohibited from advancing new authority to support their argument. See 313 F.3d
at 316. But the unique context of Louisiana tort law is critical here. As discussed later,
Louisiana courts require a plaintiff to prove “the defendant had a duty to conform his
conduct to a specific standard.” Butler v. Denka Performance Elastomer, L.L.C., 16 F.4th
427, 443 (5th Cir. 2021). Plaintiffs failure to raise the specific standard then in their

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Similarly, here, Plaintiffs’ complaint is void of any mention of § 109;
indeed, Plaintiffs did not even mention this section until Plaintiff Guillory
cited it in his petition for declaratory relief in state court, months later. So,
at bottom, there’s really two problems: first, there’s no basis for the court to
consider § 109 when determining whether joinder was proper since § 109 was
absent from Plaintiffs’ complaint, and second, Plaintiffs waived this theory
by failing to plead it. While I am well aware that a lack of subject matter
jurisdiction itself cannot be waived, the allegations in the complaint are what
determine the improper joinder analysis, and the failure to so plead thus is a
waiver.
Additionally, to the extent they could raise it later, Plaintiffs waived
this duty theory by failing to raise it in their motion to remand. It is well-
established that to preserve an argument for appeal, a party “must press and
not merely intimate the argument” before the district court in a way such
that the “district court has an opportunity to rule on it.” FDIC v. Mijalis, 15
F.3d 1314, 1327 (5th Cir. 1994). Otherwise, this court “will not address it on
appeal.” Id. Here, Plaintiffs did not raise § 109 in their motion to
remand. Instead, Plaintiffs’ motion cited the Louisiana Constitution and
other Louisiana statutes to establish that LDEQ owed a duty—§ 109 was
absent from their motion and their reply. 2

complaint or opposition to remand certainly weighs in favor of a conclusion that the
argument has been waived.
2
The majority opinion disagrees and contends that § 109 is not being addressed for
the first time on appeal because the district court considered the provision in granting Rule
54(b) certification; but the district court issued its Rule 54(b) order months after it made its
ruling on improper joinder. Therefore, the “district court ha[d] [no] opportunity to rule
on” § 109; the mere fact that it was raised at some point later on is insufficient to overcome
waiver. See FDIC, 15 F.3d at 1327.

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To the extent the majority opinion suggests that the mere reference to
a “duty theory” is sufficient to raise § 109, I respectfully disagree. As we
noted in Butler, under Louisiana law, the theory supporting a duty must be
specific, not generic. Butler v. Denka Performance Elastomer, L.L.C., 16 F.4th
427, 445 (5th Cir. 2021). Plaintiffs, by contrast, flopped from one generic
basis of a duty to another; they raised this one only after the district court had
already ruled on the motion to remand, citing it only in connection with the
issue of granting a Rule 54(b) motion. In any event, this specific argument
was not raised in Plaintiff’s initial appellate brief, only their reply, so, again,
it is plainly waived. 3 See Waste Management, Inc. v. AIG Specialty Ins. Co., 974
F.3d 528, 533 n.2 (5th Cir. 2020).
But, even if a duty based on § 109 wasn’t waived, the majority opinion
improperly concludes that LDEQ has a duty under the regulations in the
Louisiana Administrative Code. The notion that these rules establish a duty
under which LDEQ can be sued is inconsistent with Louisiana law which
recognizes “duties” imposed by “legislation, ordinance or rule of law.”
Cormier v. T.H.E. Ins. Co., 745 So.2d 1, 8 (La. 1999). Despite this
requirement, neither the majority opinion nor the Plaintiffs cite a Louisiana
case imposing a tort duty on a Louisiana state agency based on a

3
The majority opinion contends that Plaintiffs sufficiently preserved this argument
on appeal because their opening briefs cites to Frazier v. Pioneer Americas, LLC, No. 05-
1338-JJB, 2006 WL 8435040 (M.D. La. Nov. 6, 2006). I respectfully disagree. Plaintiffs’
brief makes two passing references to Frazier, but it does not even once reference § 109.
Indeed, Plaintiffs admitted as much at oral argument that they did not argue § 109 in their
opening brief. The failure to sufficiently raise the duty theory is plainly waiver. Procter &
Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (explaining that “[f]ailure
adequately to brief an issue on appeal constitutes [forfeiture] of that argument” and finding
that argument was [forfeited] where a party “fail[ed] to raise it in its opening brief”).

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regulation. This is particularly a problem since Louisiana is a state of civil
law, not common law. 4
Further, even if a regulation could impose a duty on a state agency,
nothing says that § 109 create a mandatory duty. Louisiana has held that the
discretionary acts exemption does not apply if the regulation “specifically
prescribes a course of action, i.e., where there is no element of choice or
discretion involved.” Wilson v. Davis, 991 So.2d 1052, 1058 (La. Ct. App.
2008). But here, each of the regulations Plaintiffs cite to grant LDEQ
significant discretion. The stated purpose of the regulations is “to establish
procedures for notifying those members of the public whom the department
determines are likely to be adversely affected.” 33 La. Admin. Code Pt
I, § 101(A) (emphasis added). Further, § 109 provides that the LDEQ “shall

4
The majority opinion misunderstands my conclusions on this point. It states that
“[t]he dissent mistakenly contends that Louisiana law prohibits reliance on a regulation as
support for a duty imposed on a stage agency.” I do not contend that Louisiana law
prohibits reliance on such authority. Instead, I note that the cases in this framework that
the majority opinion and Plaintiffs rely on do not impose a duty on a state agency based on
the agency’s supposed non-compliance with a regulation. See Gatlin v. Entergy Corp., 904
So.2d 31, 35 (La. App. 4th Cir. 2005) (OSHA regulations relevant to determine whether
private owner of utility pole was negligent); Nicks v. Teche Elec. Co-op, Inc., 640 So.2d 723,
729 (La. App. 3d Cir. 1994) (DOTD regulations relevant to determining whether private
utility company was negligent in personal injury case); Manchack v. Willamette Indus., Inc.,
621 So.2d 649, 652 (La. App. 2d Cir. 1993) (OSHA regulations relevant to determining
whether private plywood manufacturer was negligent in premises liability case). This
distinction—between private entities/individuals on one hand and state agencies on the
other—is important. In the context of state agency liability, Louisiana courts have focused
on whether a “statute or reported decision” places an affirmative duty on the agency. See,
e.g., Pickering v. Washington, 260 So. 2d 340, 342 (La. App. 5th Cir. 1972); cf. Hebert v.
Rapides Par. Policy Jury, 974 So. 2d 635, 642–43 (La. 2007) (emphasizing that “most cases
alleging negligence of the part of a public body” are evaluated under the “duty-risk
analysis,” under which the plaintiff must prove that “there is a[] jurisprudential or
statutory rule, or policy reason, why under the facts and circumstances of the case, the state
would owe a duty to compensate the plaintiff for his personal injuries.”).

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issue notice of a release that poses a significant risk of adverse health effects
to persons whom the department reasonably determines are likely to be
adversely affected by the release.” Id. at § 109(B) (emphasis added). The
italicized language in each of these provisions contradicts the conclusion that
the regulations are mandatory, rather than discretionary.
The majority opinion concludes that “at least one Louisiana appellate
court has recognized that LDEQ may be sued in tort for its negligence under
circumstances similar to those alleged by Plaintiffs.” It relies on Wilson, 991
So.2d at 1052. In Wilson, a plaintiff brought a negligence claim against
LDEQ, alleging that it was aware of environmental contamination on her
property but failed to conduct an inspection and allowed the defendant to
continue its pollution. Id. LDEQ moved for summary judgment, arguing that
the plaintiff could not establish that it owed her any “specific non-
discretionary duty.” Id. at 1057. The Louisiana First Circuit Court of Appeal
determined that LDEQ had a duty based on La. R.S. § 30:2012(D), which,
at the time, required the LDEQ to “perform annual inspections” of
permitted facilities. Id. at 1059–60. The court determined that LDEQ’s
compliance with this statute did not involve discretionary duties. Id. But this
statute has since been revised—the amended provision, effective since 2003,
provides only that DEQ shall “[m]onitor[] inspections of facilities operating
with a permit[.]” See La. R.S. § 30:2012(D) (amended 2003). It removes
the requirement that inspections be conducted annually.
The fact that the statute no longer prescribes a specific “course of
action” or mandates the way LDEQ must perform its inspections is material.
The Wilson court’s holding was dependent on the existence of a mandatory
duty—but the removal of the instruction to conduct inspections “annually”
makes LDEQ’s performance under the regulation appear more
discretionary, rather than mandatory. The majority opinion doesn’t really
address this nuance, intimating at it only in a footnote. But, because of that

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distinction, I conclude that Wilson’s holding does not create the requisite
ambiguity to the proposition that Plaintiffs might have a claim against LDEQ.
Put another way, Wilson dealt with a mandatory duty that is not present
currently (or during the relevant time) in the § 109 provision relied upon by
the majority opinion.
I therefore respectfully dissent as to the decision that we lack
jurisdiction such that we must remand the case to the district court to remand
to the state court.

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8353235. Public record. Not legal advice.