TOTAL E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc.REPLY in Support of 93 MOTION for Partial Summary Judgment on Choice of LawS.D. Tex.March 19, 20181 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS TOTAL E&P USA, INC. * CIVIL ACTION NO. Plaintiff * 4:16-cv-02671 * v. * JUDGE NANCY F. ATLAS * MARUBENI OIL & GAS (USA) INC. * Defendant * **************************************** MARUBENI OIL & GAS (USA) LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT ON CHOICE OF LAW Marubeni Oil & Gas (USA) LLC (“MOGUS”) submits this reply in further support of its Motion for Partial Summary Judgment on Choice of Law (Doc. 93) and to address the Response in Opposition thereto (the “Opposition”) filed by Total E&P USA, Inc. (“TOTAL”) (Doc. 113). DISCUSSION TOTAL attaches numerous exhibits to its Opposition and refers to select federal materials in an attempt to demonstrate that federal agencies consider the blocks at issue to be “off of” the coast of Louisiana. TOTAL’s exhibits and references, however, are not persuasive and some have been dismissed as not probative evidence by the Danos court.1 For example, TOTAL’s reliance on 71 Fed. Reg. 127 (January 3, 2006) is inappropriate. 1 Danos & Curole Marine Contractors, Inc. v. BP Am. Prod. Co., 61 F. Supp. 3d 679, 659-690 (S.D. Tex. 2014) (internal citations omitted) (“BP submits the BOEM Outer Continental Shelf Boundaries, the boundaries developed in 2006 and which were published in the Federal Register. In terms of whether these boundaries follow the dictates of § 1333(a)(2)(A), the lines drawn in [the State Offshore Administrative Boundaries – Gulf of Mexico Region] do appear to extend seaward from each state’s borders. The lines do not completely follow the statute, however, because the state’s borders do not extend to the outer margin of the OCS, as Mississippi’s boundary and Alabama’s boundary stop short of the OCS.”). Case 4:16-cv-02671 Document 122 Filed in TXSD on 03/19/18 Page 1 of 4 2 71 Fed. Reg. 127 is a notice to the public regarding the setting of administrative boundaries for the Department of the Interior’s planning, coordination, and administrative purposes.2 Specifically, as emphasized by TOTAL, 71 Fed. Reg. 127 states that the purpose of the notice is to inform the public that the MMS has developed offshore administrative lines, having the benefit of: Assisting in “affected State” status under the Coastal Zone Management Act and the OCS Lands Act. For example, section 18 of the OCS Lands Act requires the Secretary to consider the “laws, goals, and policies of affected States.” Similarly, section 19 analysis requires the Secretary to balance national interests with the “well- being of the citizens of the affected State”…3 TOTAL relies upon the above as evidence in its adjacent state analysis. The administrative lines drawn in conjunction with the notice relate to Section 18 (43 U.S.C. § 1344 (Outer Continental Shelf leasing program))4 and Section 19 (43 U.S.C. § 1345 (Coordination and consultation with affected State and local governments))5 of OCSLA.6 As agreed by the parties, OCSLA’s choice-of-law provision (43 U.S.C. § 1333(a)(2)(A)) governs this matter, which is Section 4 (Laws Applicable to Outer Continental Shelf)7 of OCSLA. MOGUS emphasizes that this Section 4 of OCSLA directly dictates the adjacent state analysis. Neither Section 18 nor 19 of OCSLA, which are addressed by 71 Fed. Reg. 127 cited by TOTAL, relate to the choice of law analysis. This notice is therefore not 2 See 71 Fed. Reg. 127 (January 3, 2006), attached hereto as Exhibit A. 3 Id. 4 43 U.S.C. § 1344 (Outer Continental Shelf leasing program). 5 43 U.S.C. § 1345 (Coordination and consultation with affected State and local governments). 6 See Sections 18 and 19 of OCSLA, attached hereto as Exhibit B. 7 See id. at Section 4. Case 4:16-cv-02671 Document 122 Filed in TXSD on 03/19/18 Page 2 of 4 3 probative in conjunction with a choice of law adjacency analysis pursuant to 43 U.S.C. § 1333(a)(2)(A). In addition, so the record is clear, the map attached to 71 Fed. Reg. 127 entitled “State Offshore Administrative Boundaries – Gulf of Mexico Region” has been specifically determined to be less probative than other evidence submitted by MOGUS on this issue in this matter by another court sitting in the United States District Court for the Southern District of Texas.8 CONCLUSION For the foregoing reasons, the Court should grant MOGUS’s Motion for Partial Summary Judgment on Choice of Law and determine that Alabama law applies in the absence of federal law on point. Respectfully submitted, LOOPER GOODWINE P.C. /s/ Paul J. Goodwine Paul J. Goodwine (Attorney-in-Charge) LA Bar No. 23757; SDTX ID No. 437800 Holly O. Thompson LA Bar No. 31277; SDTX ID No. 2953818 Taylor P. Mouledoux LA Bar No. 31889; SDTX ID No. 1581156 650 Poydras Street, Suite 2400 New Orleans, Louisiana 70130 Telephone: (504) 503-1500 Telecopier: (504) 503-1501 pgoodwine@loopergoodwine.com hthompson@loopergoodwine.com tmouledoux@loopergoodwine.com 8 See Footnote 1, supra. Case 4:16-cv-02671 Document 122 Filed in TXSD on 03/19/18 Page 3 of 4 4 -and- SCHONEKAS, EVANS, McGOEY & McEACHIN, LLC Kyle Schonekas LA Bar No. 11817; SDTX ID No. 305350 Joelle F. Evans LA Bar No. 23730; SDTX ID No. 436275 909 Poydras Street, Suite 1600 New Orleans, LA 70112 Telephone: (504) 680-6050 Telecopier: (504) 680-6051 kyle@semmlaw.com joelle@semmlaw.com Attorneys for Marubeni Oil & Gas (USA) LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing pleading has been served on all counsel of record for the parties via e-mail, FedEx and/or by electronic filing in the Court’s electronic filing system on this 19th day of March, 2018. /s / Paul J. Goodwine Paul J. Goodwine Case 4:16-cv-02671 Document 122 Filed in TXSD on 03/19/18 Page 4 of 4
