Amicus Curiae Brief — Chevron USA Incorporated, et al., Petitioners v. Plaquemines Parish, Louisiana, et al.

No. 24-813

IN THE

Supreme Court of the United States

CHEVRON U.S.A. INCORPORATED; CHEVRON U.S.A.

HOLDINGS, INCORPORATED; CHEVRON PIPE LINE

COMPANY; THE TEXAS COMPANY; EXXON MOBIL

CORPORATION,

Petitioners,

v.

PLAQUEMINES PARISH; PARISH OF CAMERON; STATE

OF LOUISIANA; LOUISIANA DEPARTMENT OF ENERGY

AND NATURAL RESOURCES,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR THE AMERICAN TORT REFORM

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

SOPHIA CHUA-RUBENFELD

BRAVO*

JONES DAY

1221 Peachtree St., N.E.

Atlanta, GA 30361

*Not admitted in Georgia

TRACI L. LOVITT

Counsel of Record

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-7830

tlovitt@jonesday.com

Counsel for Amicus Curiae American Tort

Reform Association

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT .............................................................. 4

I.

II.

The Louisiana Coastal Litigation Proves

the Importance of Federal Officer Removal. ............................................................... 4

A.

The Removal Statute’s Primary

Purpose Was To Free Federal Officers from Local Interests and

Prejudice. ............................................... 5

B.

Petitioners Have Numerous Colorable Federal Defenses. ...................... 6

C.

The Government Lawyers Have

Prejudged Petitioners’ Federal

Defenses, Demonstrating the

Need for a Federal Forum. ................... 9

The Rozel Trial Further Demonstrates

the Need for a Federal Forum. ...................... 13

A.

The State Trial Court Wrongly

Rejected the Rozel Defendants’

Federal Due Process Defense. ............ 14

B.

Other Rozel Rulings Confirm the

Need for a Federal Forum. ................. 17

1.

The court reversed its pretrial retroactivity ruling

due to its impact on the

government’s case .................... 17

ii

TABLE OF CONTENTS

(continued)

Page

2.

The court eliminated causation, supersizing the government’s land-loss damages ........................................... 19

3.

The court departed from

SLCRMA’s text and Fifth

Circuit precedent in interpreting the Act.......................... 21

CONCLUSION ......................................................... 24

APPENDIX OF ROZEL TRIAL RECORD

APPENDIX A: Meeting of the Plaquemines

Parish Council (Sep. 12, 2013),

Rozel Ex. # P57 .............................................. 1a

APPENDIX B: Joint Prosecution Agreement

(June 22, 2016), Rozel Ex. # CDX331 ........... 9a

APPENDIX C: Reasons for Judgment by the

Twenty-Fifth Judicial District Court,

Parish of Plaquemines, State of Louisiana

(Jan. 13, 2025) ............................................. 23a

APPENDIX D: Motions Hearing Excerpts

(Feb. 10, 2025) ............................................. 26a

APPENDIX E:

Day 6 Excerpts (Mar. 17, 2025) .................. 36a

APPENDIX F:

Day 7 Excerpts (Mar. 18, 2025) .................. 43a

APPENDIX G:

Day 8 Excerpts (Mar. 19, 2025) .................. 50a

APPENDIX H:

Day 9 Excerpts (Mar. 20, 2025) .................. 81a

iii

TABLE OF CONTENTS

(continued)

Page

APPENDIX I:

Day 10 Excerpts (Mar. 21, 2025) ................ 91a

APPENDIX J:

Day 12 Excerpts (Mar. 25, 2025) .............. 107a

APPENDIX K:

Day 14 Excerpts (Mar. 27, 2025) .............. 149a

APPENDIX L:

Day 17 Excerpts (Apr. 1, 2025) ................. 166a

APPENDIX M: Reasons for Judgment

(Grandfather Clause) (Jan. 14, 2025) ....... 196a

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. Manypenny,

451 U.S. 232 (1981) .............................. 2, 5, 6, 9, 13

Berger v. United States,

295 U.S. 78 (1935) ................................................ 10

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) .............................................. 16

Boggs v. Boggs,

520 U.S. 833 (1997) ................................................ 6

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ................................................ 8

Christopher v. SmithKline Beecham

Corp.,

567 U.S. 142 (2012) .............................................. 15

Colorado v. Symes,

286 U.S. 510 (1932) ................................................ 5

F.C.C. v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) .......................................... 7, 15

Freeport-McMoRan Oil & Gas Co. v.

FERC,

962 F.2d 45 (D.C. Cir. 1992) ................................ 10

Jefferson Cnty., Ala. v. Acker,

527 U.S. 423 (1999) ................................................ 6

v

TABLE OF AUTHORITIES

(continued)

Page(s)

New Orleans City v. Aspect Energy,

L.L.C.,

126 F.4th 1047 (5th Cir. 2025) .................. 7, 22, 23

Par. of Plaquemines v. Chevron USA,

Inc.,

7 F.4th 362 (5th Cir. 2021) .................................. 10

Par. of Plaquemines v. Riverwood Prod.

Co.,

2022 WL 101401

(E.D. La. Jan. 11, 2022) ..................................... 7, 8

Par. of Plaquemines v. Rozel,

No. 2:18-cv-05189

(E.D. La Oct. 24, 2023)........................................... 4

Parish of Plaquemines v. Rozel

Operating Co.,

No. 60-996, 25th Judicial District

Court for the Parish of Plaquemines

(Division “B”) ...................................................... 2–4

Plaquemines Par. v. BP Am. Prod. Co.,

103 F.4th 324 (5th Cir. 2024) ................................ 3

Plaquemines Par. v. BP Am. Prod. Co,

No. 23-30294 (5th Cir. Sep. 1, 2023) ..................... 3

Plaquemines v. BP,

No. 2:18-cv-05256

(E.D. La Jan. 20, 2023) ...................................... 7, 8

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Willingham v. Morgan,

395 U.S. 402 (1969) ........................................ 1, 5, 6

CONSTITUTIONAL AND STATUTORY AUTHORITIES

28 U.S.C. §1442 ....................................................... 1, 6

La. Const. art. X, § 30 ............................................... 10

La. R.S. § 49:214.23 ................................................... 22

La. R.S. § 49:214.30 ................................................... 22

La. R.S. § 49:214.34 ......................................... 8, 14, 22

La. R.S. § 49:214.36 ............................................. 19, 22

La. Stat. Ann. § 42:161.............................................. 10

OTHER AUTHORITIES

T. Bridges & G. Russell, In Louisiana’s

Coastal Litigation, Real Payday for

Attorneys May Come From Suits

Filed By Parishes, THE TIMES

PICAYUNE | NEW ORLEANS ADVOCATE

(Oct. 15, 2016) ...................................................... 12

T. Bridges, Jeff Landry Names 7 to LSU

Board, Including Oil and Gas Legal

Foe John Carmouche, THE TIMES

PICAYUNE | NEW ORLEANS ADVOCATE

(Jun. 14, 2024)...................................................... 12

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

B. Green & R. Roiphe, A Fiduciary

Theory of Prosecution,

69 AM. U. L. REV. 805 (2020) ............................... 11

G. Sharswood, An Essay on Professional

Ethics (3d ed. 1869) .............................................. 11

La. Admin. Code Pt. I, § 723 ..................................... 22

Supreme Court Rule 37.6............................................ 1

M. Toth, A Bad Business on the Bayou,

WALL ST. J. (Mar. 31, 2025)......................... 12, 13

1

INTEREST OF AMICUS CURIAE 1

The American Tort Reform Association (“ATRA”)

is a national, nonpartisan, nonprofit coalition of large

and small businesses, trade associations, and professional firms. ATRA is dedicated to improving the civil

justice system with a focus on promoting fairness, balance, efficiency and predictability in civil litigation.

In addition to legislative efforts and public education

outreach, one of ATRA’s important functions is to file

amicus curiae briefs in cases involving important civil

justice issues. In this case, the Court will determine

whether the federal defenses of federal officers will be

heard in a federal forum or subject to local interests

and prejudice. ATRA has a strong interest in ensuring that the federal officer removal statute, 28 U.S.C.

§1442(a), is correctly interpreted to promote fairness

in our judicial system.

SUMMARY OF ARGUMENT

Congress has long recognized the need to protect

federal officers from “hostile state courts” when

litigating federal immunity and other federal

defenses. Willingham v. Morgan, 395 U.S. 402, 405–

07 (1969). Indeed, one of the “primary purposes” of

the federal officer removal statute “was to have such

defenses litigated in the federal courts.” Id. at 407.

Throughout our Nation’s history, federal officer

removal has proved a critical safeguard to shield those

entrusted with federal duties from “local interests or

Pursuant to Supreme Court Rule 37.6, amicus affirms that

no counsel for any party authored this brief in whole or in part

and that no person or entity, other than amicus, its members, or

its counsel, has made a monetary contribution to the brief’s

preparation or submission.

1

2

prejudice” at trial. Arizona v. Manypenny, 451 U.S.

232, 241–42 (1981).

The Louisiana coastal litigation demonstrates both

the wisdom of and continuing need for federal officer

removal. The Parishes and State seek to hold

Petitioners liable for their World War II activities—

activities that fulfilled their federal contract duties—

under the Louisiana State and Local Coastal

Resources Management Act of 1978 (“SLCRMA” or

“the Act”). Petitioners have federal defenses that are

not just colorable but compelling, including

preemption, lack of fair notice under the Due Process

Clause and federal immunity. Those defenses require

an “impartial” federal forum, free from “local interests

or prejudice.” Manypenny, 451 U.S. at 242.

The need for a federal forum here is real. In 2016,

the Louisiana Attorney General and the Parishes

entered into a Joint Prosecution Agreement, in which

they agreed in writing to uniformly reject all of

Petitioners’

defenses—including

their

federal

defenses—regardless of the defenses’ merit. They did

so before those defenses were articulated, effectively

prejudging them. As a result, the State and Parishes

are not impartially enforcing the law. Making

matters worse, the Parishes are represented by

private counsel who seek to profit from these cases.

The resulting prejudice to the defendants and their

federal defenses is demonstrable. It was on full

display in Parish of Plaquemines v. Rozel Operating

Co., No. 60-996, 25th Judicial District Court for the

Parish of Plaquemines (Division “B”) (“Rozel”)—a

related case that was tried in state court while the

petition for certiorari in this case was pending, after

the district court lifted the stay of its remand order.

3

The Rozel defendants raised a compelling federal

due process defense, citing SLCRMA’s express

language that excludes pre-1980 conduct from its

scope. A government witness in Rozel testified that at

the time of trial the state agency charged with

administering and interpreting SLCRMA had

declined to adopt the State and Parishes’ litigation

position that pre-1980 activities could violate

SLCRMA. As the State and Parishes were bringing

billion-dollar lawsuits, the state agency was “tell[ing]

the regulated community” that activities that

“predate 1980 are not a coastal management issue

because they predate the program.” Amicus Br. App.

at 66a. 2 That is not and cannot be fair notice that

The materials in this brief’s Appendix (the “Amicus Br.

App.”) can be deemed part of the record in these proceedings that

do not need to be lodged with the Court.

2

Rozel is one of the many cases related to this case for which

this case has been designated the “lead appeal.” The opinion below is Plaquemines Par. v. BP Am. Prod. Co., 103 F.4th 324 (5th

Cir. 2024), which was a consolidated appeal for purposes of oral

argument of Fifth Circuit dockets No. 23-30294 and No. 23-30422.

See Order, Plaquemines Par. v. BP Am. Prod. Co, No. 23-30294

(5th Cir. Sep. 1, 2023). The Fifth Circuit had previously designated No. 23-30294 the “lead appeal” for seven appeals from

cases removed to the Eastern District of Louisiana under the federal officer removal statute and stayed other appeals until the

lead appeal was resolved by the Fifth Circuit. See Order,

Plaquemines Par. v. BP Am. Prod. Co, No. 23-30294 (5th Cir.

May 26, 2023) (designating No. 23-30294 as the “lead appeal”

and “vacat[ing] the briefing schedule and stay[ing] the appeals

in cases 23-30225, 23-30303, 23-30291, 23-30304, 23-30285 and

23-30336”).

One of those appeals, No. 23-30336, is the appeal from the

district court order remanding Rozel to state court. See Notice of

4

SLCRMA’s scope extends to pre-1980 conduct. The

state trial court nonetheless summarily denied the

motion, contrary to this Court’s precedents,

SLCRMA’s text and the evidence at trial.

The state trial court also expressed sympathy for

local interests. When reversing one of its pre-trial

rulings in the defendants’ favor, the court explained

that it had not realized that its ruling would “gut” the

government’s evidence and “significantly less[en]” the

dollar value of its case. Amicus Br. App. 32a–33a. On

the record, the court questioned whether its initial

ruling meant the State and Parishes would have a $2

billion damage claim instead of a $3 billion claim. Id.

at 33a.

The court then issued a series of rulings, also contrary to SLCRMA’s text and the trial evidence, gutting the defendants’ case. The result: the jury returned a verdict for the State and Parishes, awarding

them $745 million. In short, Rozel was a test case,

and it confirms that only removal and a federal forum

can protect the important federal interests at issue

and the Petitioners’ federal defenses.

ARGUMENT

I.

The Louisiana Coastal Litigation Proves the

Importance of Federal Officer Removal.

The Louisiana coastal litigation is the very kind of

scenario that led Congress to enact the federal officer

removal statute. Petitioners and similarly-situated

Appeal, 23-30336 (filed on May 23, 2023). Rozel was remanded

after the federal district court lifted the stay it previously

granted pending appeal. See Order, Parish of Plaquemines v.

Rozel, No. 2:18-cv-05189 (E.D. La Oct. 24, 2023). It was tried

while the petition in this case was pending.

5

defendants—all of whom the Parishes and State now

seek to hold liable under state law—have compelling

federal defenses. A federal forum is thus necessary to

ensure that local interests and prejudices do not

prevent their fair adjudication.

Congress has

prescribed the solution: removal to an impartial

federal forum.

A. The Removal Statute’s Primary Purpose

Was To Free Federal Officers from Local

Interests and Prejudice.

The federal officer removal statute has a “long history” dating back to the early days of the Republic, as

Congress has long recognized the need to protect those

entrusted with federal duties from “hostile state

courts” when litigating federal immunity and other

federal defenses. Willingham, 395 U.S. at 405–07.

“One of the primary purposes of the removal statute—

as its history clearly demonstrates—was to have such

defenses litigated in the federal courts.” Id. at 407.

Federal officer removal “was meant to ensure a

federal forum in any case where a federal official is

entitled to raise a defense arising out of his official duties.” Manypenny, 451 U.S. at 241–42. “The act of

removal permits a trial upon the merits of the statelaw question free from local interests or prejudice.”

Id. The removal statute thus “safeguard[s] officers

and others acting under federal authority against

peril of punishment for violation of state law or obstruction or embarrassment by reason of opposing policy on the part of those exerting or controlling state

power.” Colorado v. Symes, 286 U.S. 510, 517 (1932).

In light of that important purpose, this Court “has

held that the right of removal is absolute for conduct

6

performed under color of federal office, and has insisted that the policy favoring removal should not be

frustrated by a narrow, grudging interpretation of

§ 1442(a)(1).” Manypenny, 451 U.S. at 242 (internal

quotation marks and citation omitted).

B. Petitioners Have Numerous Colorable

Federal Defenses.

Petitioners here have asserted at least three

colorable federal defenses—preemption, due process,

and immunity—making this precisely the sort of case

that “require[s] the protection of a federal forum.”

Willingham, 395 U.S. at 407. The threshold for

asserting a colorable federal defense is low; the party

asserting a federal defense need not “win his case

before he can have it removed.” Jefferson Cnty., Ala.

v. Acker, 527 U.S. 423, 431 (1999). Unsurprisingly,

multiple federal judges have agreed that Petitioners’

federal defenses are colorable.

1. First, as Judge Oldham explained in his

dissent from the Fifth Circuit’s panel decision below,

Petitioners have raised a colorable federal preemption

defense.

See Pet. App. 62–63 (addressing the

preemption defense and noting that Petitioners’

“other defenses” might “also be colorable”). State laws

are preempted where they conflict with federal law or

“‘where state law stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.’” Pet. App. 62 (quoting

Boggs v. Boggs, 520 U.S. 833, 844 (1997)).

Petitioners contend that “federal regulations

during WWII authorizing oil production activities

conflict with the parishes’ assertion that those same

production activities were unlawful.” Pet. App. 62.

Petitioners further contend that to the extent those

7

federally-authorized wartime activities “violated

Louisiana law, then it may have been impossible to

comply with both the federal directives and Louisiana

law.” Id. at 62–63. As Judge Oldham concluded, that

is “clearly enough to raise a colorable federal defense”

of preemption. Id. at 63; see also Par. of Plaquemines

v. Riverwood Prod. Co., 2022 WL 101401, at *6 (E.D.

La. Jan. 11, 2022) (“Riverwood”) (finding that

defendants had a “viable” preemption defense in a

related case).

2. Petitioners have also raised a colorable federal

due process defense. See Removing Def ’s. Opp’n to

Joint Mot. to Remand at 28, Plaquemines v. BP, 2:18cv-05256 (E.D. La Jan. 20, 2023). Due process

requires that the government “give fair notice of

conduct that is forbidden or required.” F.C.C. v. Fox

Television Stations, Inc., 567 U.S. 239, 253 (2012). A

government enforcement action “fails to comply with

due process if the statute or regulation [being enforced]

fails to provide a person of ordinary intelligence fair

notice of what is prohibited.” Id. Accordingly, a

regulated entity cannot lawfully be liable under a

statute that does not provide fair notice of the

prohibited conduct. See id. at 258 (setting aside

penalties given lack of fair notice).

Here, the Parishes and State seek billions of

dollars in damages for Petitioners’ alleged violations

of SLCRMA. But the World War II activities that

comprise their claim pre-date SLCRMA’s 1980

effective date by decades. What is more, pre-1980

activities are expressly excluded from SLCRMA’s

scope. See New Orleans City v. Aspect Energy, L.L.C.,

126 F.4th 1047, 1054 (5th Cir. 2025) (holding that “the

text of SLCRMA provides that ‘uses legally

8

commenced or established prior to the effective date

of the coastal use permit program shall not require a

coastal

use

permit.’”

(quoting

La.

R.S.

§ 49:214.34(C)(2))).

Compounding the fair notice problem, the

Louisiana state agency charged with interpreting and

administering SLCRMA has long maintained—both

before and after these lawsuits were filed—that pre1980 activities are not governed by SLCRMA. See

Amicus Br. App. 61a–62a. These facts establish that

Petitioners lacked fair notice in violation of due

process, rendering it a “viable” federal defense in

these cases. Riverwood, 2022 WL 101401, at *6.

3. Finally, Petitioners have raised a colorable

federal immunity defense under several theories.

Citing Boyle v. United Techs. Corp., 487 U.S. 500, 505

(1988), Petitioners assert “government contractor

immunity” because their predecessors “were

government contractors and subcontractors that acted

under the federal government’s wartime direction.”

Removing Def ’s. Opp’n to Joint Mot. to Remand at 27,

Plaquemines v. BP, 2:18-cv-05256 (E.D. La Jan. 20,

2023). That immunity should extend to government

subcontractors as well. See id. In addition, their

predecessors “acted under the government’s direction

and control” under “its war powers.” Id. Indeed, “the

powerful federal interest here is underscored by the

extraordinary steps the Justice Department took

during WWII to free oil companies from potential

antitrust liability.” Id.

9

C. The Government Lawyers Have Prejudged Petitioners’ Federal Defenses,

Demonstrating the Need for a Federal

Forum.

Given Petitioners’ colorable federal defenses, an

“impartial” federal forum, free from “local interests or

prejudice,” should resolve them. Manypenny, 451 U.S.

at 242. Indeed, the risk that, absent removal, local

interests and prejudice will prevent an impartial

evaluation of Petitioners’ defenses is not theoretical.

It is demonstrably real.

1. In June 2016, then-Louisiana Attorney General

Jeff Landry and the Parishes pursuing coastal

litigation claims entered into a joint prosecution

agreement (the “Agreement” or the “Joint Prosecution

Agreement”). See Amicus Br. App. 9a, 14a. The

Agreement governs the Office of the Attorney General

and the Parishes in this case and in related coastal

litigation cases.

Paragraph 6 of the Agreement provides:

Consistency of Claims and Defenses: No

party to this Agreement shall at any time

expressly or impliedly endorse any substantive

defenses or exceptions raised by any defendant

in any claims filed by any party to this

Agreement under SLCRMA. The parties to this

Agreement agree that “in lieu” permits are

“coastal use permits” as defined in SLCRMA

and its regulations.

Id. at 13a. Under the Agreement’s plain terms, the

Louisiana Attorney General’s Office and the Parishes

have promised that they will not endorse any of

10

Petitioners’

defenses—including

their

federal

defenses—regardless of the defense’s merit.

There can be no doubt that the Louisiana Attorney

General and the Parishes entered into the Agreement

without regard to any defense’s merit. The Agreement

was executed in 2016—years before discovery was

undertaken and completed, and years before

Petitioners identified and briefed their federal

defenses. See Pet. App. 5–6 (acknowledging that “the

Rozel report,” obtained in discovery “in April of 2018,”

led Petitioners to invoke a “new legal theory” of

federal officer removal); Par. of Plaquemines v.

Chevron USA, Inc., 7 F.4th 362, 371 (5th Cir. 2021)

(finding that the “Rozel report . . . revealed an entirely

new legal theory” permitting the defendants to seek

federal officer removal).

Put another way, the

Louisiana Attorney General’s Office and the Parishes

agreed in 2016 to pre-judge all defenses, including

federal defenses, meritless for all time—before they

knew what the defenses or the facts were.

This prejudgment prejudices Petitioners by

preventing the government lawyers from impartially

evaluating Petitioners’ defenses.

Indeed, the

Agreement violates the fundamental requirement

that government attorneys faithfully and impartially

execute the law. See La. Const. art. X, § 30 (requiring

impartiality oath); see also La. Stat. Ann. § 42:161

(extending oath to “[a]ll public officers”); FreeportMcMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47

(D.C. Cir. 1992) (“A government lawyer ‘is the

representative not of an ordinary party to a

controversy . . . but of a sovereignty whose

obligation . . . is not that it shall win a case, but that

justice shall be done.’”) (quoting Berger v. United

11

States, 295 U.S. 78, 88 (1935)); see also B. Green & R.

Roiphe, A Fiduciary Theory of Prosecution, 69 AM. U.

L. REV. 805, 816 (2020) (“The office of the AttorneyGeneral is a public trust, which involves in the

discharge of it, the exertion of an almost boundless

discretion, by an officer who stands as impartial as a

judge.”) (quoting G. Sharswood, An Essay on

Professional Ethics 95 (3d ed. 1869)).

Due to the Agreement, the government lawyers

cannot be impartial. If they view the Petitioners’

federal defenses as legally valid, they are

contractually bound to refuse to endorse them—

directly interfering with the government lawyers’

ability to impartially execute the law. The Agreement

also binds the Office of the Attorney General and the

Parishes in the future, as it applies “at any time,” and

the “parties” to the Agreement are the “Louisiana

Office of the Attorney General” and the Parishes, not

individuals. Amicus Br. App. 13a, 14a–22a. Thus, if

a new Attorney General or Parish council member

views this case as preempted, barred by immunity,

unconstitutional, time-barred, or meritless, he or she

is prohibited from articulating that view at all, let

alone to the courts.

2. The government lawyers’ prejudgment is

worsened by the direct financial interest the Parishes’

private counsel has in the litigation’s outcome.

Plaquemines Parish and several other Parishes are

represented by the Carmouche firm. See Amicus Br.

App. 3a–7a (Sep. 12, 2013 Meeting Minutes of

Plaquemines Parish Council); id. at 16a–18a (showing

John Carmouche signing the Joint Prosecution

Agreement on behalf of Vermilion, Cameron, and

Jefferson Parishes). The Carmouche firm has been

12

“[t]he winner so far” of the “scramble” for these parish

contracts—which carry the prospect of “big money” for

lawyers who “could be rewarded with a fee amounting

to a percentage of the total damages.” T. Bridges & G.

Russell, In Louisiana’s Coastal Litigation, Real

Payday for Attorneys May Come From Suits Filed By

Parishes, THE TIMES PICAYUNE | NEW ORLEANS

ADVOCATE (Oct. 15, 2016) (explaining that the parish

contracts are coveted by lawyers “because there is no

state law limiting their fee arrangement” when a

Parish is the client). And the $745 million Rozel

verdict—the verdict in only one of over forty coastal

litigation cases—suggests that private counsel may

seek to recover significant fees in each of these cases.

In addition, it has been reported that in 2023, Jeff

Landry—the Louisiana Attorney General who signed

the 2016 Joint Prosecution Agreement—“ran

successfully for governor with the backing of trial

lawyers, including Mr. Carmouche and his law

partners, who donated $300,000 to a pro-Landry

super PAC.” M. Toth, A Bad Business on the Bayou,

WALL ST. J. (Mar. 31, 2025). The article continues:

“Mr. Landry appointed Mr. Carmouche to the

Louisiana State University board of supervisors,”

id.—“one of the most sought-after appointments in

state government,” which comes with access to the

“LSU board suite at football games” and “travel to one

away football game every year with all expenses paid,”

T. Bridges, Jeff Landry Names 7 to LSU Board,

Including Oil and Gas Legal Foe John Carmouche,

THE TIMES PICAYUNE | NEW ORLEANS ADVOCATE (Jun.

14, 2024).

And the Carmouche firm has reportedly

contributed to local judicial campaigns as well.

13

Perhaps most saliently, the media reports that: “Mr.

Carmouche’s firm and an associated PAC have

contributed at least $10,500” to the campaign of Judge

“Michael Clement of Louisiana’s 25th Judicial District

Court”—the judge who presided over the Rozel trial.

Toth, supra.

Due to the Attorney General and Parishes’ Joint

Prosecution Agreement, this is not a case where

private counsel’s financial interest in the litigation

can be cured by an impartial government lawyer’s

control and oversight. The government lawyers are

themselves tainted by the contractual prejudgment,

rendering the neutrality that due process requires for

significant government enforcement actions entirely

absent in this case.

*

*

*

The State and Parish lawyers’ contractuallyrequired rejection of the Petitioners’ federal defenses,

along with the Parish counsel’s financial interest in

this case, are powerful evidence of the “local interests

or prejudice” that the federal-officer removal statute

guards against.

Manypenny, 451 U.S. at 242.

Removal under the federal officer statute is necessary

to ensure Petitioners’ federal defenses are evaluated

impartially.

II. The Rozel Trial Further Demonstrates the

Need for a Federal Forum.

The record in Rozel further demonstrates the need

for an impartial federal forum. The state trial court

gave short shrift to the defendants’ federal due process defense and indicated local interest on the record.

14

A. The State Trial Court Wrongly Rejected

the Rozel Defendants’ Federal Due Process Defense.

The Rozel defendants argued that they lacked fair

notice that SLCRMA required them to obtain permits

for their pre-1980 activities, such as federally-directed

World War II activities. They argued that SLCRMA,

by its terms, expressly provides that activities “legally

commenced or established prior to the effective date

of [SLCRMA] shall not require a coastal use permit.”

La. R.S. § 49:214.34(C)(2)).

In addition, the Rozel defendants cited a government witness’ trial testimony about longstanding

agency practice relating to SLCRMA. Specifically, the

head of the state agency responsible for administering

SLCRMA testified that the agency had never, in over

40 years, interpreted SLCRMA to govern activities

commenced prior to its enactment. See Amicus Br.

App. 66a; 122a. He admitted that the agency had

“never once regulated an activity that began prior to

1980” or issued “a coastal use permit for an activity

that began before 1980.” Id. at 66a. He admitted that

he was “not aware of anybody at the [agency] communicating to industry that they need [a] coastal use

permit for activities that were commenced before October 1st, 1980.” Id. at 69a–70a.

The government witness also confirmed that the

agency had never “issued any notice to Chevron or any

other user of the coastal zone” of any “change to require coastal use permits for activities that began before 1980.” Id. at 66a. And he further admitted that

the agency affirmatively “instruct[s]” its “employees

to tell the regulated community” that activities that

15

“predate 1980 are not a coastal management issue because they predate the program.” Id.

The Rozel defendants moved for a directed verdict

on state and federal due process grounds, in light of

this testimony and SLCRMA’s text. See Amicus Br.

App. 120a–122a. The state trial court summarily denied the motion, holding there was a difference “between an administrative enforcement and a judicial

enforcement action.” Id. at 122a. The government argued, and the court apparently agreed, that the

agency’s guidance and longstanding practice were

based on an incorrect “assumption” about the legality

of the defendants’ operations that did not bind the

Parishes, the Attorney General, the court, or the jury.

Id. at 121a.

That analysis misses the point. Pronouncements

and conduct by an agency can and do define fair notice

for due process purposes. In F.C.C. v. Fox Television

Stations, Inc., this Court held that the government

“fail[s] to provide a person of ordinary intelligence fair

notice of what is prohibited” under the Due Process

Clause when it “change[s] course” in interpreting a

law and enforces a new interpretation to conduct that

pre-dates notice of the change. 567 U.S. at 254 (internal quotation marks and citation omitted); see also

Christopher v. SmithKline Beecham Corp., 567 U.S.

142, 157 (2012) (holding that unfair surprise occurs

where the “industry had little reason to suspect that

its longstanding practice” was unlawful, because, “despite the industry’s decades-long practice,” the agency

“never initiated any enforcement actions . . . or otherwise suggested that it thought the industry was acting

unlawfully”); id. at 158 (holding that when “an

16

agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute”). Indeed, “[e]lementary notions of fairness enshrined in

our constitutional jurisprudence dictate that a person

receive fair notice not only of the conduct that will

subject him to punishment, but also of the severity of

the penalty that a State may impose.” BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 574 (1996).

Here, the lack of fair notice was undeniable because at the time of trial the state agency administering SLCRMA had not adopted the State and Parish’s

litigation position that pre-1980 activities could violate SLCRMA. During Rozel’s pendency, the state

agency was “tell[ing] the regulated community” that

activities which “predate 1980 are not a coastal management issue because they predate the program.”

Amicus Br. App. at 66a. That is not and cannot be fair

notice under the Due Process Clause.

The Rozel defendants, like Petitioners, had no

way to know before the jury issued its verdict that

their pre-1980 conduct was subject to SLCRMA. They

certainly could not know in the 1940s that their wartime operations would result in massive liability in

2025 under a statute that expressly does not apply to

pre-1980 conduct and was passed decades after their

wartime activities had ended. This kind of due process defense is exactly why federal officer removal exists.

In addition, the state trial court excluded evidence

showing that the state agency had repeatedly advised

the Rozel defendants and other applicants that permits were not required for uses commenced—legally

or illegally—before 1980. Id. at 72a–78a; id. at 92a–

17

106a (describing some of the exhibits the court excluded, including numerous instances of the agency

informing applicants that permits were not required

for uses commenced before 1980, even though in some

instances “the activity was illegal[ly] commenced”).

The court also precluded a former agency employee

from testifying about how he applied SLCRMA’s 1980

effective date. Id. at 154a–162a. As a result, the jury

never heard that the Rozel defendants and other permit applicants were repeatedly told by the relevant

state agency that they did not need coastal use permits for any activity commenced or established prior

to 1980.

B. Other Rozel Rulings Confirm the Need

for a Federal Forum.

The Rozel court’s other rulings also demonstrate

the need for a federal forum. The Rozel court

repeatedly departed from SLCRMA’s text and the trial

evidence. Indeed, the numbers alone tell a story: all

the defendants’ directed verdict motions were denied,

while all the government’s directed verdict motions

were granted. See Amicus Br. App. 110a–146a; 170a–

171a.

1. The court reversed its pre-trial

retroactivity ruling due to its impact

on the government’s case.

For example, the state trial court erroneously held

that SLCRMA applied to exclusively pre-1980

harms—that is, harms caused by activities that

commenced and ended prior to the Act’s effective date.

Initially, the state trial court agreed with the

Rozel defendants that SLCRMA could not apply

retroactively to exclusively pre-1980 harms. The

18

court thus granted summary judgment for the

defendants on retroactivity, holding that the

defendants could not be liable “for alleged harm that

occurred before the effective date of SLCRMA’s coastal

management program.” Amicus Br. App. 23a–25a.

The government subsequently filed a motion for a

new trial, seeking reconsideration of the ruling. Id. at

28a. The Parish’s lawyer argued that the court’s

ruling would “prevent” the government “from

presenting evidence of the pre-SLCRMA harm” and

would “gut the [government’s] case.” Id. at 30a–31a.

The Rozel defendants argued that the motion for

reconsideration was motivated by the Parish counsel’s

financial interests. Specifically, the “plaintiffs have

the calculations for pre- versus post-1980 land loss”

and were trying “to get their damages number from

$2 billion to $3 billion” by introducing evidence of

exclusively pre-1980 harm. Id. at 29a.

The court reversed its ruling, echoing concerns

about the government’s ability to maximize its

damage award. The court stated, “I think [the

Parish’s lawyer] Mr. Carmouche said it best: It’s going

to—it’s going to gut his case in terms of what this

looks like moving forward.” Id. at 32a. The court

continued that in issuing its prior ruling, it had not

“intended . . . to hamstring [the] presentation of

evidence.” Id. at 34a.

The court also questioned whether its prior ruling

would “really turn it from a $3 billion to a $2 billion

case” and cause the case to be worth “significantly

less.” Id. at 33a. The court then reversed its previous

19

ruling and allowed the government to present

evidence of exclusively pre-1980 harm. Id. at 35a. 3

On the merits of this issue, SLCRMA speaks for

itself. SLCRMA’s permitting program has an express

effective date. See id. at 25a. And SLCRMA provides

damages only “for uses conducted within the coastal

zone without a coastal use permit where a coastal use

permit is required”—which by definition excludes liability for pre-1980 harm, because the permitting program did not exist and thus coastal use permits were

not required before 1980. La. R.S. § 49.214.36(E) (emphasis added).

2. The court eliminated causation, supersizing the government’s land-loss damages.

The state trial court also ruled in the government’s favor on causation. As a result, the government collected hundreds of millions of dollars in damages despite the absence of any link between the damage and the Rozel defendants’ conduct.

SLCRMA limits the availability of damages to restoration costs “for uses conducted within the coastal

zone without a coastal use permit where a coastal use

permit is required or which are not in accordance with

the terms and conditions of a coastal use permit.” La.

R.S. § 49:214.36(E) (emphasis added). In other words,

the Act ties restoration costs to the harm actually

caused by the defendant’s unlawful use.

3 At trial, the defendants sought a directed verdict on exclu-

sively pre-1980 harm, which the court denied. See Amicus Br.

App. at 137a–140a. The court provided no further explanation

of its ruling. Id. at 140a.

20

At the close of the government’s case, the defendants moved for a directed verdict based on the government’s failure to prove causation, particularly with respect to its claimed land loss injuries—the vast majority of the jury’s damage award. See Amicus Br. App.

at 110a. The government’s own witnesses testified

that multiple causes—including hurricanes, sediment

deprivation, sea-level rise, the Army Corps of Engineers’ changes to the Mississippi River’s flow, and

natural subsidence—all contributed to land loss. See,

e.g., id. at 86a. No witness linked any specific land

loss to the Rozel defendants’ alleged SLCRMA violations. To the contrary, the government’s witnesses

admitted that they could not allocate specific land loss

to the defendants’ operations. See, e.g., id. at 41a; 87a.

The government conceded as much, stating: “with

regard to causation, the argument on land loss is

made in the abstract.” Id. at 112a. “[T]here’s no remedy here where we can say, ‘They’re casting judgment

for 10 acres or 12 acres or 20 acres of particular surveyed area.’ That’s not what the remedy is. The remedy is restoration of land to cure the damage they

caused.” Id. “So again, I don’t think the law requires

that we prove any particular tract of land or any particular amount of land because that is not what [we

are] seeking.” Id. at 113a. To the extent other factors

contributed to land loss, the government’s counsel argued that they caused “cumulative impacts with indivisible damages” for which defendants should be liable. Id. at 114a.

The court’s ruling on causation in its entirety is as

follows:

21

[O]n issue one, causation, land loss and allocation, this Court finds that the evidence presented, although difficult, perhaps for the jurors

to determine the allocation, I believe the evidence

presented would support an ability of these jurors

to reach a verdict in their favor, and therefore, on

causation and allocation of land loss, the directed

verdict is denied.

Id. at 116a.

In short, despite the admitted lack of evidence tying the defendants’ operations to any specific land loss,

the concession that damages could not be allocated,

and the statutory text requiring such proof, the court

ruled that the Rozel defendants could be required to

remedy all land loss regardless of cause. Indeed, the

damages were the cost of restoring all the land to its

original condition if the defendants were found to

have caused some damage at some point in time. For

wartime activities, that could potentially mean restoring all land lost from the 1940s to today regardless of

the cause of that land loss.

As a result of this ruling, the Rozel jury’s land loss

award was super-sized, encompassing harm caused by

natural forces and third-party activities over which

the defendants had no control or knowledge.

3. The court departed from SLCRMA’s

text and Fifth Circuit precedent in interpreting the Act.

Finally, one of the critical issues in this case is

whether operations that were commenced before 1980

are exempted under SLCRMA. SLCRMA’s permitting

program took effect in 1980 and prohibits parties from

“commenc[ing]” a “use” of the Louisiana coastal zone

22

“without first applying for and receiving a coastal use

permit.” La. R.S. § 49:214.30(A)(1). “Use” is defined

as “any use or activity within the coastal zone which

has a direct and significant impact on coastal waters.”

Id. § 49:214.23(13). SLCRMA creates a cause of action

against parties that violate or fail to obtain the

requisite coastal use permit. Id. § 49:214.36(D)–(E).

The statute also contains an exception to the

permitting requirements, which provides that

“[i]ndividual specific uses legally commenced or

established prior to the effective date of the coastal

use permit program shall not require a coastal use

permit.” Id. § 49:214.34(C)(2); see also 43 La. Admin.

Code Pt. I, § 723(B)(8)(a) (Louisiana Coastal

Resources Program provision also providing that “[n]o

use or activity shall require a coastal use permit if . . .

the use or activity was lawfully commenced or

established prior to the implementation of the coastal

use permit process”).

Citing SLCRMA’s plain text, the Fifth Circuit has

held (in a diversity case) that a defendant “is excepted

from the statute’s permitting requirements and the

[government] has no claim against it” for uses

commenced “before SLCRMA’s effective date in 1980.”

New Orleans City, 126 F.4th at 1052. Importantly, the

Fifth Circuit rejected the government’s argument that

there is an “exception-to-the-exception” for uses that

were commenced pre-1980, but have undergone a

“change” post-1980. Id. at 1053. The Fifth Circuit

stated that whether or not such an exception-to-theexception might have been a “prudent policy,” “that

policy is not found in SLCRMA.” Id. at 1054.

SLCRMA’s text states “explicitly, and without

exception or caveat, that activities legally commenced

23

prior to the effective date of the coastal use permit

program shall not require a coastal use permit.” Id.

(internal quotation marks omitted).

At summary judgment, the Rozel court disagreed

with that ruling, holding that a permit was required

if the pre-1980 activities changed at all after SLCRMA

was enacted—even though, as the Fifth Circuit

recognized, SLCRMA contains no such exception. See

Amicus Br. App. 199a.

The court reaffirmed that view at trial. At the

close of the government’s case-in-chief, the Rozel

defendants moved for a directed verdict, because the

government failed to provide any evidence that the

defendants’ pre-1980 operations were not lawfully

commenced or established as of SLCRMA’s effective

date. See id. at 128a–133a. Indeed, a government

witness conceded that some of the defendants’

operations were legal and authorized prior to 1980. Id.

at 129a. The government sought to minimize this

testimony by arguing that the pre-1980 uses had

changed after 1980 and were no longer governed by

the grandfather clause. Id. at 130a.

The trial court denied the defendants’ directed

verdict motion, holding there was sufficient evidence

for the jury to find SLCRMA’s exception inapplicable.

Id. at 133a. It did so, again, despite SLCRMA’s text

and the evidence at trial. See New Orleans City, 126

F.4th at 1054.

*

*

*

The combined effect of these rulings was liability

without fair notice and damages that were grossly disproportionate to the defendants’ alleged SLCRMA violations. In light of this record, Petitioners’ federal

defenses should be heard in a federal forum.

24

CONCLUSION

The Court should reverse the Fifth Circuit’s decision and order the Louisiana coastal litigation removed to federal court.

SEPTEMBER 11, 2025

SOPHIA CHUA-RUBENFELD

BRAVO*

JONES DAY

1221 Peachtree St., N.E.

Atlanta, GA 30361

*Not admitted in Georgia

Respectfully submitted,

TRACI L. LOVITT

Counsel of Record

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-7830

tlovitt@jonesday.com

Counsel for American Tort Reform Association