UNITED STATES COURT OF APPEALS
MALCOLM GILLIS; GEORGE MOWBRAY; MICHAEL MILLER;
STEVE NELSON; FRANK JEWELL; BRETT PALMER; ARTHUR HALLAM; CHUCK MORRISON;
KEVIN MAY; JOHN HARRIS; LAKE CHARLES PILOTS INC,
STATE OF LOUISIANA; BOARD OF RIVER PORT PILOT
COMMISSIONERS AND EXAMINERS; CITGO PETROLEUM CORP; CONOCO INC; LAKE CHARLES
HARBOR & TERMINAL DISTRICT,
Appeal from the United States District
For the Western District of Louisiana
July 2, 2002
Before DAVIS, EMILIO M. GARZA, and STEWART,
EMILIO M. GARZA, Circuit Judge:
The Lake Charles Pilots, Inc. and its individual
state-commissioned river pilot shareholders ("the Pilots") appeal the district
court's grant of summary judgment in favor of the State of Louisiana and
the other defendants (collectively, "the Defendants") in their declaratory
judgment action.(1) Specifically, the Pilots
contend that the district court should have ruled that the State of Louisiana
has no authority to regulate pilotage on the portion of the Calcasieu Ship
Channel that lies more than three miles seaward of the state's coastline.
The Pilots also appeal the district court's denial of their motion to remand
the case back to state court. Because we find no error in the district
court's opinion, we affirm. We also affirm the district court's denial
of the Pilots' motion to remand. Finally, the Pilots' motion to take judicial
notice is denied.(2)
The Calcasieu Ship Channel (CSC) is a navigation
project maintained by the United States Army Corps of Engineers. It extends
from the Port of Lake Charles southward through the Calcasieu River and
out into the Gulf of Mexico. It ends at a point approximately thirty-three
miles from Louisiana's coastline. Pursuant to 43 U.S.C. § 1312, the
seaward boundary of Louisiana is a line three miles from the coastline.(3)
The portion of the CSC that lies landward of the three-mile line in Louisiana
is known as the "Inner Bar." The approximately thirty miles of the CSC
seaward of the three-mile line is known as the "Outer Bar."
The individual plaintiffs in this case are
river pilots commissioned by the State of Louisiana to serve the Port of
Lake Charles and the CSC. Under Louisiana law, the Pilots have a duty "to
pilot sea-going vessels . . . through navigable streams, channels, rivers,
passes and bars within the State of Louisiana and across the bars and passes."
La. R.S. 34:1073. Until recently, this provision has generally been accepted
to include the Outer Bar. While in the process of considering an increase
in pilotage fees in March 2000, however, the Louisiana Public Service Commission
made an oral ruling that Louisiana did not have authority to regulate pilotage
beyond its three-mile boundary. The Pilots then filed the present declaratory
judgment action in Louisiana state court.(4)
In their petition, the Pilots sought the following
1) [The Pilots] may not be compelled to provide
pilotage services under state commission for any portion of the Calcasieu
Bar Channel more than three geographic miles from the coastline of Louisiana,
or be punished in any way by the State, any elected State official, any
of its statutorily or constitutionally created subdivisions or Boards;
2) Pilotage or other maritime services provided
more than three miles from the Coast of Louisiana is [sic] not performed
pursuant to a commission issued by the State of Louisiana, but pursuant
to a United States Coast Guard License or endorsements thereto;
3) The buoy Number 36 on NOAA chart Number
11347 is the furthest point on the Calcasieu Bar Channel subject to jurisdiction
from the State of Louisiana; and
4) The Court renders such other Orders and
Decrees to which the petitioners are entitled determining the rights and
obligations of petitioners, and for full, general and equitable relief.
Petition for Declaratory Relief at ¶
8. Defendant CITGO Petroleum then removed the state court action to federal
court based on federal question jurisdiction. See 28 U.S.C. §
1441(b). The other defendants each filed a timely consent to removal.
Thereafter, questions developed regarding
whether the consent to removal filed on behalf of one of the defendants,
the Board of River Port Pilot Commissioners and Examiners ("the Board"),
was formally authorized. The consent was filed by attorney Michael Dees
at the informal request of two members of the three-member Board. The Board
did not meet formally during the removal period to vote on the consent
because of scheduling conflicts allegedly caused by Board Chairman Malcolm
Gillis, who is also a plaintiff in this case. After Gillis questioned Dees's
authority to file the consent to removal, the Board held a formal meeting
to ratify the consent and to make official Dees's status as counsel of
record.(5) This meeting took place thirty-nine
days after the expiration of the removal period.
The Pilots filed a motion to remand based
on a defect in the Board's consent and for lack of federal question jurisdiction
(or, alternatively, an absence of complete preemption). The case was referred
to a magistrate judge. In his Report and Recommendation, the magistrate
judge concluded: (1) that federal question jurisdiction existed because
the Pilots' petition for declaratory relief sought an injunction against
Louisiana state officials based on the preemptive effect of a federal statute,
and (2) that under the "exceptional circumstances doctrine" of Getty
Oil, the formal but untimely action by the Board to retroactively "ratify"
the actions of Dees cured any defect in the consent to removal. Getty
Oil v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 n.12 (5th Cir. 1988).
The district court denied the motion to remand for the reasons given by
the magistrate judge.
The Pilots and the Defendants then filed cross
motions for summary judgment. The district court denied the Pilots' motion
for summary judgment and granted the Defendants' motion. The district court
held that Louisiana retained its sovereign authority to regulate pilotage
of foreign and registry vessels transiting the CSC to and from the Port
of Lake Charles on the Outer Bar. In so holding, the district court noted
that the waters over the Outer Continental Shelf are relatively shallow
for many miles off of the Louisiana coast, and that navigation is restricted
there. Under such circumstances, the court held, "it is within the State's
authority to protect the ships approaching the CSC from invisible hazards
and to control navigation to and from the port through th [sic] regulating
of pilotage out to the 33 mile buoy." Gillis v. Louisiana, Memorandum
Ruling , No. 00-CV-1038 (W.D. La. Sept. 19, 2001). Moreover, the court
found no extant federal law or regulation to preempt the State's authority.
The Pilots now appeal the district court's grant of summary judgment in
favor of the Defendants as well as the district court's denial of their
motion to remand the case to state court.
We review a district court's grant of summary
judgment de novo. McClendon v. City of Columbia, 258 F.3d 432, 435
(5th Cir. 2001). We will affirm a district court's grant of
summary judgment when, viewing the evidence in the light most favorable
to the nonmoving party, the record reflects that no genuine issue of material
fact exists, and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986). We review the denial of a motion to remand de novo. Hernandez
v. Jobe Concrete Prods. Inc., 282 F.3d 360, 361 (5th Cir.
The Pilots first argue that the district court
should have remanded this case because the consent to removal filed on
behalf of the Board was not properly authorized within the thirty-day removal
period as required by 28 U.S.C. § 1446.(6)
We have previously held that, in order to comply with the requirements
of § 1446, all served defendants must join in the removal petition
filed prior to the expiration of the removal period . Getty Oil,
841 F.2d at 1262 n.9. This rule simply requires that there be "some timely
filed written indication from each served defendant, or from some person
or entity purporting to formally act on its behalf in this respect and
to have the authority to do so, that it has actually consented to such
action." Id. at 1262 n.11 (emphasis added). Because Dees did not
technically have the authority to file a consent on behalf of the Board
until thirty-nine days after the expiration of the removal period, the
Pilots argue that the case should have been remanded.
Assuming arguendo that the consent
to removal submitted by Dees was not properly authorized prior to the expiration
of the removal period and that formal authorization was required, we find
the circumstances in this case to be exceptional. Specifically, we note
that the Board attempted to schedule a meeting prior to the expiration
of the removal period, that the chairman of the Board was also a plaintiff
in the case, that Dees was informally authorized and filed an otherwise
proper consent, and that the Board ultimately ratified Dees's conduct.
Based on the unique circumstances of this case, we agree with the district
court' s conclusion that the equitable exception stated in Getty Oil
applies. Getty Oil, 841 F.2d at 1263 n.12 (noting that "[e]xceptional
circumstances" might permit removal even when a defendant fails to comply
fully with § 1446 within the thirty-day removal period).
The Pilots next argue that this case should
have been remanded because federal question jurisdiction, the sole basis
for removal, does not exist based on the allegations in their well-pleaded
complaint. Specifically, they argue that the district court misconstrued
the petition for declaratory relief by reading in a request for injunctive
relief based on the preemptive effect of a federal statute. Rather, they
argue that, in their petition, they "only sought a declaration of rights
between themselves and their statutory masters, the State of Louisiana
and its boards and officials, regarding the power of the latter over the
Pilots under extant Louisiana laws of pilotage." The Pilots also
contend that their claims do not involve a federal remedy, the resolution
of a substantial federal question, or any other possible hook for federal
We find the Pilots' argument that the district
court lacked jurisdiction in this case to be without merit. First, contrary
to their contention on appeal, the relief sought by the Pilots' petition
was not limited to a declaration of "extant Louisiana laws of pilotage."
Rather, the Pilots' petition explicitly questions the legal authority
of the State of Louisiana to regulate pilotage beyond the state's three-mile
boundary as set forth in 43 U.S.C. § 1312.(7)
In other words, the Pilots argue that, based on § 1312, Louisiana's
jurisdiction is limited by its three-mile boundary, unless Congress otherwise
provides for state authority in 46 U.S.C. § 8501. See 46 U.S.C.
§ 8501(a) ("Except as otherwise provided in this subtitle, pilots
in bays, rivers, harbors, and ports of the United States shall be regulated
only in conformity with the laws of the States."). Second, the Pilots'
petition on its face seeks more than a declaration of rights--one of the
declarations sought is that "they not be compelled to provide pilotage
services under state commission for any portion of the Calcasieu Bar Channel
farther than three miles from the Louisiana coast; nor be punished by
the state or state officials for failing to do the same." Petition
at ¶ 7 (emphasis added). In light of the petition's final request--that
the court "render such other Orders and Decrees to which the petitioners
are entitled determining the rights and obligations of petitioners, and
for full, general and equitable relief"--the district court did not
err in interpreting the petition as requesting an injunction based on federal
preemption. Petition at ¶ 7 (emphasis added).
Because the Pilots are implicitly seeking
injunctive relief based on a federal statute, federal question jurisdiction
clearly exists based on Shaw v. Delta Air Lines, Inc., 463 U.S.
85 (1983). In
Shaw, the Supreme Court held:
A plaintiff who seeks injunctive relief from
state regulation, on the ground that such regulation is pre-empted by a
federal statute which, by virtue of the Supremacy Clause of the Constitution,
must prevail, thus presents a federal question which the federal courts
have jurisdiction under 28 U.S.C. § 1331 to resolve.
Shaw, 463 U.S. at 96 n.14. The Supreme
Court has subsequently confirmed that this holding is a "general rule,"
and is not just limited to ERISA cases like Shaw. See Lawrence
Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 260 n.6 (1985).(8)
Finally, the Pilots argue that the district
court should have ruled in their favor on the merits of their petition.
Specifically, the Pilots argue that the federal government has authority
over navigation as part of its commerce powers, and that, by enacting the
Submerged Lands Act, 43 U.S.C. § 1312, Congress limited the ability
of the states to regulate pilotage beyond their three-mile seaward boundaries.(9)
After the passage of § 1312, the Pilots suggest that, in order for
Louisiana to have authority to regulate pilotage on the Outer Bar, Congress
must expressly grant that power. The Pilots then point to 46 U.S.C. §
8501, in which Congress provided specifically for state regulation of pilotage
on certain bodies of water. Section 8501 states in relevant part that,
except as otherwise provided, "pilots in bays, rivers, harbors, and ports
of the United States shall be regulated only in conformity with the laws
of the States." 46 U.S.C. § 8501(a). Because the Outer Bar does not
constitute a bay, river, harbor, or port, the Pilots contend that Congress
has not granted Louisiana authority to regulate pilotage on the Outer Bar.
We are not persuaded by the Pilots' arguments.
First, we disagree with the Pilots' premise that Congress implicitly limited
state authority to regulate pilotage to bodies of water within their territorial
boundaries when it enacted 43 U.S.C. § 1312. Section 1312, which is
part of the Submerged Lands Act, addresses only who retains title to submerged
lands both within and beyond the three-mile line, with particular reference
to ownership and exploration of natural resources in the seabed and subsoil.
It does not address the regulation of pilotage on the waters above.(10)
Second, we are not persuaded by the Pilots'
contention that § 8501 was designed to limit state authority over
the regulation of pilotage to the bodies of water specified therein. To
begin, we note that Congress has historically left the regulation of pilotage
largely in the control of the states. Prior to the ratification of the
Constitution, the states regulated pilotage as sovereigns. In its first
session, Congress declared its intention to largely leave intact the existing
state regulatory schemes by passing the Lighthouse Act of 1789. The Lighthouse
Act provided: "Until further provision is made by Congress, all pilots
in bays, inlets, rivers, harbors, and ports of the United States shall
continue to be regulated in conformity with the existing laws of the States
. . . ." Congress has reenacted and recodified this provision several times
since 1789, most recently in 1983 when it passed the current version of
§ 8501.(11) Rather than
a limited grant of authority to the states over the specified bodies of
water, the statute has been interpreted as an expression of Congress's
general intent not to limit the power already held by the states
unless otherwise provided by Congress.(12)
As a result, the Pilots' contention that this provision generally precludes
state regulation of pilotage except over "bays, rivers, harbors, and ports"
is without merit.
Finally, we reject the Pilots'
suggestion that Louisiana's exercise of authority over pilotage on the
Outer Bar conflicts generally with federal interests. The Supreme Court
has long upheld the authority of states to enact laws regulating pilotage
where Congress has declined to act. See Olsen v. Smith, 195 U.S.
332, 341 (1904) ("[A]lthough state laws concerning pilotage are regulations
of commerce, 'they fall within that class of powers which may be exercised
by the states until Congress has seen fit to act upon the subject.'").(13)
Moreover, there is no real dispute that Louisiana has a legitimate interest
in regulating pilotage over the Outer Bar. As noted by the district court,
the State has a significant interest in securing the safety of ships traveling
through the CSC to and from the Port of Lake Charles. As a result, we conclude
that the State of Louisiana retains authority to regulate pilotage of foreign
and registry vessels on the Outer Bar.
In sum, we hold that Congress
has not preempted Louisiana's authority to regulate pilotage on the Outer
Bar. Thus, the district court's grant of summary judgment to the Defendants
in this case is AFFIRMED. The district court's denial of the Pilots' motion
to remand is also AFFIRMED. The Pilots' motion to take judicial notice
1. The state-commissioned
river pilots in this action are Malcolm Gillis, George Mowbray, Michael
Miller, Steve Nelson, Frank Jewell, Brett Palmer, Arthur Hallam, Chuck
Morrison, Kevin May, and John Harris. In addition to the State of Louisiana,
CITGO Petroleum, Lake Charles Harbor and Terminal District, the Board of
River Port Pilot Commissioners and Examiners, and Conoco Inc. are also
defendants in this case.
2. The Pilots have also
filed a motion asking this court to take judicial notice of Warner v.
Replinger, 397 F. Supp. 350 (D.R.I. 1975), aff'd sub
nom. Warner v. Dunlap, 532 F.2d 767 (1st Cir.
1976), and a portion of the record that the district court relied on when
deciding that case. The Pilots rely heavily on Warner to support
their contention that the district court should have made a factual finding
as to whether the Outer Bar was a bay, inlet, river, harbor, or port within
the meaning of § 8501 in order to determine whether Louisiana has
authority to regulate pilotage there. Because we reject this argument,
the motion to take judicial notice is denied.
3. Submerged Lands Act,
43 U.S.C. § 1312 ("The seaward boundary of each original coastal State
is approved and confirmed as a line three geographical miles distant from
its coast line or, in the case of the Great Lakes, to the international
4. While this appeal was
pending, the Louisiana Supreme Court confirmed that the Louisiana legislature,
by enacting La. R.S. 33:1073, intended to regulate pilotage on the Outer
Bar. CITGO Petroleum Corp. v. La. Pub. Serv. Comm'n, No. 01-CA-1903,
2002 WL 399449 (La. March 15, 2002).
5. Gillis abstained from
the vote, leaving the decision to the two Board members who had previously
attempted to authorize Dees to file the consent.
6. Section 1446(b) of the
removal statute states: "The petition for removal of a civil action . .
. shall be filed within thirty days after the receipt by the defendant
. . . of a copy of the initial pleading setting forth the claim for relief
upon which such action . . . is based, or within thirty days after . .
. the case . . . has become removable." 28 U.S.C. § 1446(b).
7. See, e.g., Petition
for Declaratory Relief ¶¶ 5 & 7 (seeking declaration that
the jurisdiction of the State of Louisiana to regulate pilotage ends at
the three-mile line); see also ¶ 6 ("Questions have arisen
relative to whether the State of Louisiana, or any of its officials and
boards has the authority as a matter of law to require [the Pilots to provide
pilotage services by virtue of the state's commission] at any point seaward
of three geographic miles from the actual coastline").
8. To support their assertion
that they only sought declarative relief in their petition, the Pilots
note that not all requests for declaratory relief also seek injunctive
relief. Specifically, they note that Louisiana law has a separate provision
for affording supplemental relief after a declaration of rights. In addition,
they note that Shaw itself distinguishes a case where a mere declaration
of preemption is sought from a case where a request for a declaration of
preemption is coupled with a request for relief. Although the Pilots are
correct that it is possible to seek declaratory relief without also seeking
injunctive relief, the language of their petition defies such a reading
in this case.
9. See Gibbons v. Ogden,
22 U.S. (9 Wheat) 1 (1824) (establishing federal authority over navigation
as part of the federal government's commerce power); U.S. Const. art. I
§ 8, cl. 3.
10. The First Circuit
in Warner v. Dunlap, a case heavily relied upon by the Pilots, rejects
the argument that the authority to regulate pilotage is tied to a state's
The issue of a state's territorial limits,
see, e. g., United States v. California, supra and United
States v. Maine, supra, is distinct from that of its right to
control navigation. States have been permitted to assert their pilotage
regulations at distances considerably greater than three miles from their
shores. See, e. g., Wilson v. McNamee, 102 U.S. (12 Otto) 572, 573-74,
26 L.Ed. 234, 235 (1881) ("about fifty miles from . . . port"); The
Whistler, 13 F. 295, 296 (D. Or.1882) ("about 30 miles from the (river)
532 F.2d at 772.
The Lighthouse Act of 1789 ("Until further provision is made by Congress,
all pilots in bays, inlets, rivers, harbors, and ports of the United States
shall continue to be regulated in conformity with the existing laws of
the States . . . ."), with 46 U.S.C. § 8501(a) ("Except as
otherwise provided in this subtitle, pilots in bays, rivers, harbors, and
ports of the United States shall be regulated only in conformity with the
laws of the States.").
Pilots' argument that state authority under § 8501 depends upon a
factual finding that a body of water is a bay, inlet, river, harbor, or
port is in tension with at least one Supreme Court case. In Wilson
v. McNamee, 102 U.S. 572 (1881), the Supreme Court case upheld New
York's authority to regulate pilotage 50 miles from its port. Although
the Court discussed § 211 (now § 8501), it did not discuss any
factual findings with respect to whether the regulation took place on a
bay, inlet, river, harbor, or port. Rather, the Court noted in general
terms Congress's intent not to disturb existing state regulation of pilotage.
13. In addition
to arguing federal preemption based on § 8501, the Pilots assert generally
that various international treaties and presidential proclamations preclude
by implication state regulation of pilotage further than twelve miles from
the coast--the breadth of the nation's territorial sea. This argument,
for which the Pilots provide scant legal support, is without merit.