Summary
The Fifth Circuit affirmed the remand of a state-law trespass claim to Texas state court, holding that the defendants (private party and its owner) could not remove the case under the federal officer removal statute (28 U.S.C. § 1442(a)) because they were merely complying with a federal dredging permit, not acting under a federal officer's direction as required by *Watson v. Philip Morris Cos.*. The court also rejected federal-question jurisdiction (28 U.S.C. § 1331) because the plaintiff's exclusive state-law trespass claim did not require resolution of any substantial federal issue, and the Clean Water Act permit program does not preempt state common law. The admiralty/maritime jurisdiction argument (28 U.S.C. § 1333(1)) was waived due to insufficient briefing and was not independently removable.
Topics
Practice areas
Questions Presented
- Whether the district court erred in denying removal under the federal officer removal statute, 28 U.S.C. § 1442(a)
- Whether the district court erred in denying removal based on federal question jurisdiction under 28 U.S.C. § 1331
- Whether the district court erred in determining that admiralty/maritime jurisdiction under 28 U.S.C. § 1333(1) was abandoned or insufficient
Holdings
- The Berry Parties did not act pursuant to a federal officer's directions; they merely complied with a federal permit issued to a third party, which does not constitute 'acting under' a federal officer.
- No federal question jurisdiction exists because the trespass claim is based solely on Texas common law and does not require resolution of any substantial federal issue.
- The Berry Parties failed to adequately brief the admiralty issue in district court, and on appeal the argument is insufficient; mere location in navigable water does not establish admiralty jurisdiction.
Key quotations
“In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law.” (at 7)
“Delegation of federal governmental authority is what triggers the statute, not the status of being regulated and therefore subject to federal authority wielded by others.” (at 7)
“The Port Authority’s complaint alleges state-law trespass claims that do not implicate any federal law.” (at 10)
“The Rivers and Harbors Act, the Clean Water Act, and other referenced federal statutes and regulations are irrelevant to the Port Authority’s complaint.” (at 12)
Factual background
Berry Island lies in the La Quinta Ship Channel near Corpus Christi, Texas. Kenneth Berry owns the island and a company, The Port of Corpus Christi, L.P. The Port of Corpus Christi Authority of Nueces County, Texas (Port Authority) owns submerged land adjoining Berry Island. The U.S. Army Corps of Engineers issued a permit to Moda/Enbridge for dredging operations and authorized deposit of dredged spoil on Berry Island as a Dredge Material Placement Area. The Berry Parties allowed the spoil placement. The Port Authority sued, alleging that dredge materials (sand, clay, rip rap, and a dredge pipe) encroached onto its submerged land, constituting trespass under Texas common law.
Procedural history
The Port Authority sued Berry Parties in Texas state court for trespass and encroachment. Defendants removed to federal court under 28 U.S.C. § 1442(a), § 1331, and § 1333(1). The district court granted the Port Authority's motion to remand, holding no basis for removal existed. Defendants appealed.