Total E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc. et al

RESPONSE in Opposition to 141 Opposed MOTION To Apply Louisiana Law Under OCSLA

S.D. Tex.January 12, 2018

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOTAL E&P USA, INC. * CIVIL ACTION NO. Plaintiff * 4:16-cv-02674 * v. * JUDGE DAVID HITTNER * MARUBENI OIL & GAS (USA) INC. * Defendant * ************************************* MARUBENI OIL & GAS (USA) LLC’S OPPOSITION TO TOTAL E&P USA, INC.’S MOTION TO APPLY LOUISIANA LAW UNDER OCSLA Defendant, Marubeni Oil & Gas (USA) LLC (“MOGUS”), through undersigned counsel, respectfully submits this Opposition to the Motion to Apply Louisiana Law Under OCSLA filed by Total E&P USA, Inc. (“TOTAL”). MOGUS adopts and incorporates herein by reference its Motion for Partial Summary Judgment on Choice of Law (Doc. 157) and all exhibits thereto. As the following analysis demonstrates, Alabama law should be applied in this case where there is no applicable federal law on point and TOTAL’s motion should be denied. INTRODUCTION The parties do not dispute that the Outer Continental Shelf Lands Act (“OCSLA”) governs this matter and that OCSLA’s choice-of-law provision (43 U.S.C. § 1333(a)(2)(A)) trumps any contractual choice-of-law stipulated by the parties. Thus, the only question to be resolved is whether Alabama or Louisiana is Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 1 of 18 2 the “adjacent” state for purposes of filling any gap in federal law under 43 U.S.C. § 1333(a)(2)(A). The parties also agree that the relevant factors to be considered are: (i) geographic proximity; (ii) considerations of other federal agencies as to which state was adjacent to a particular offshore block; (iii) prior court determinations; and (iv) projected boundaries.1 The parties further agree that this is not a strict four- factor test and that no one factor is controlling. As shown in MOGUS’s Motion for Partial Summary Judgment (Doc. 157), Alabama law should be applied in all instances where federal law does not govern. TOTAL’s assertion that Louisiana is the adjacent state is incorrect, and its motion should be denied. LAW AND ANALYSIS The great weight of the evidence supports a conclusion that Alabama is the state adjacent to Mississippi Canyon Block 305, Mississippi Canyon Block 348, and all of the blocks through which the Canyon Express Pipeline System (“CEPS”) traverses from Mississippi Canyon Block 305 and Mississippi Canyon Block 348 to its termination point on the Canyon Station Platform located on Main Pass Block 261.2 The Reeves factors do not comprise a strict test and no one factor is controlling 1 Reeves v. B & S Welding, Inc., 897 F.2d 178 (5th Cir. 1990); Snyder Oil Corp. v. Samedan Oil Corp., 208 F.3d 521 (5th Cir. 2000). 2 The pipeline rights-of way comprising CEPS are: OCS-G22432, G22440, G22429, G22430, G22439, G22431, G22434, G22436, G22435, G22437, G22433, G22438, and segment number 13237, 13241 and 13245. In addition, these right-of-way traverse through the following OCS lease blocks in the Gulf of Mexico (grouped by area, not path): Mississippi Canyon Blocks 41, 85, 173, 217, 261, 305, 348, and 349; De Soto Canyon Blocks: 45, 89, 133, 177, 221, Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 2 of 18 3 over the others.3 Thus, the geographic proximity of a particular offshore block to a particular state is not necessarily conclusive of the adjacent state law application.4 Therefore, all four factors from Reeves should be analyzed. In addition to the arguments presented by MOGUS in its Motion for Partial Summary Judgment on Choice of Law (Doc. 157), MOGUS further argues as follows. I. AGENCY DETERMINATIONS OF ADJACENCY. Agency determinations are relevant because agency “determinations of projected boundaries, or other determinations of a similar nature, make it more probable that if the President does ever ‘project boundaries’ those boundaries will be consistent with these other agency determinations.”5 In the absence of Presidential action and amongst multiple agency determinations, one agency’s determinations may be more probative than others if it is believed that the agency and 265; Visoca Knoll Blocks 692, 736, 780, 781, 824, 825, 869, 913, 914, 958, 1002, and 1003; and Main Pass Blocks 260 and 261. See Declaration of Kenneth Kuykendall at paragraphs 8 and 9, attached as Exhibit A and Exhibit A-3 attached thereto (“The blocks through which CEPS traverse are also indicated with orange lines”). 3 Snyder, 208 F.3d at 524-525. 4 MOGUS does not dispute that Mississippi Canyon Block 305, Mississippi Canyon Block 348 and CEPS appear to be slightly closer in geographic proximity to Louisiana than Alabama. However, geographic proximity alone is not dispositive, and the remaining factors weigh against the conclusion that Louisiana is the adjacent state. Snyder, 208 F.3d at 525 (“We cannot apply the formalistic test desired by [plaintiff], for neither logic nor authority allows this court arbitrarily to disregard all relevant evidence except that of geographic proximity”). 5 Snyder, 208 F. 3d at 525. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 3 of 18 4 more closely followed the dictates of §1333(a)(2)(A), “regardless of whether their determinations are “correct” in some abstract sense.”6 Through subsequent analyses by courts, relying upon guidance from Reeves and Snyder, examples of what agency determinations more closely followed the dictates 1333(a)(2)(A) and therefore, should and should not be considered probative, have been identified. Pertinent examples of federal agency determinations that are probative for applicable law purposes are: (i) BOEM notices to pipeline right-of- way holders in the OCS listing what states are “affected states” with respect to a pipeline and (ii) BOEM’s OCS Plans Map for the Coastal Zone Management Program.7 Examples of federal agency determinations that are not probative for determining state adjacency are: (i) BOEM’s offshore administrative boundaries publication;8 (ii) lease requests containing language referring to leases in “offshore 6 Id at 525 and 528. 7 Danos & Curole Marine Contractors, Inc. v. BP Am. Prod. Co., 61 F. Supp. 3d 679, 691 (S.D. Tex. 2014). 8 Danos at 690 (“In terms of whether these boundaries follow the dictates of § 1333(a)(2)(A), the lines drawn in this map 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-02674 Document 161 Filed in TXSD on 01/12/18 Page 4 of 18 5 Louisiana” or “offshore Alabama;”9 (iii) U.S. Energy Information Administration’s oil and gas code matter lists;10 and (iv) and Coast Guard safety sectors.11 A notice to pipeline right-of-way holders (NTL 2007-G20),12 published by the Minerals Management Service (n/k/a the Bureau of Ocean Energy Management (“BOEM”)), includes a list of what states are “affected states” with respect to a pipeline13 and BOEM’s list of “affected states” under NTL 2007-G20 indicates that Alabama is the adjacent state for choice of law purposes under OCSLA for CEPS (all but four blocks comprising CEPS are specifically included in NTL 2007-G20, and the four not referenced are south and southeast of blocks specifically included).14 Mississippi Canyon Block 305, Mississippi Canyon Block 348, Mississippi Canyon Block 349, and De Soto Canyon Block 265 are due south and/or southeast of the row 9 Id. at 689 (S.D. Tex. Nov. 18, 2014). (“Evidence of the lease request was written by a private party and not the MMS. It is not clear that this evidence is even an agency determination, or that any determinations referenced support a finding that Louisiana is the adjacent state.”) 10 Id. at 689 (“BP’s evidence of the EIA determination weighs in favor of Louisiana as the adjacent state in that the EIA only associates Viosca Knoll 915 with Louisiana, and not with Alabama. However, it is less probative than other evidence submitted because it is unclear how the EIA determines this block’s association, even after a review of the cited online sources, which would provide perspective as to how closely the determinations followed the requirements the President must follow under § 1333(a)(2)(A).”). 11 Id. at 690 (“Coast Guard’s safety sectors do extend those borders to the OCS, but it does not provide boundaries extending from each state, such as Mississippi.”). 12 This specific NTL 2007-G20 was specifically utilized by the Danos court in determining that Viosca Knoll Block 915 is adjacent to Alabama. See Record Doc. 20-4 in Case Number 13-3803, United States District Court for the Southern District of Texas. 13 See Declaration of Kenneth Kuykendall, attached as Exhibit A, and Exhibit A-1 attached thereto. Exhibit A-1 is NTL 2007-G20 entitled Coastal Zone Management Program Requirements for OCS Right-of-Way Pipeline Applications, which indicates in Attachment No. 1 to Appendix A thereto that Alabama is an “affected state” for several OCS lease blocks through which all but three of the CEPS rights-of-way traverse. 14 See Declaration of Kenneth Kuykendall, attached as Exhibit A, and Exhibit A-2 attached thereto. Exhibit A-2 is information downloaded from the BOEM website demonstrating that each of the blocks through which CEPS traverses are within the list of blocks included on Attachment 1 to Appendix A attached to NTL 2007-G20, thereby indicating that Alabama is the “affected state” for these blocks. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 5 of 18 6 of Mississippi Canyon Blocks 251-261 and De Soto Canyon Blocks 221-228, which are included on Attachment No. 1 to Appendix A to NTL 2007-G20, thereby demonstrating that they are more adjacent to Alabama than Louisiana.15 In addition, attached hereto as Exhibit B is the OCS Plans Map for [the] Coastal Zone Management Program which clearly shows that Mississippi Canyon Block 305, Mississippi Canyon Block 348, Main Pass Block 261 and the route of the CEPS all fall within the “Alabama CZM.”16 TOTAL, conversely, attaches numerous exhibits 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.17 For example, TOTAL’s Exhibit A is a manipulated (e.g. color coded) version of an MMS 2006 publication apparently taken from 71 Fed. Reg. 127 (January 3, 2006).18 This Court in Danos, however, found that this 2006 publication did not follow the dictates of § 1333(a)(2)(A) because the projected lines do not extend to the outer margin of the OCS and Mississippi and Alabama’s boundaries 15 See Declaration of Kenneth Kuykendall, attached as Exhibit A. 16 Exhibit B attached hereto can be found on BOEM’s website at https://www.boem.gov/OCS-Plans-Map-for-CZM/. The Court can take judicial notice of this map pursuant to Fed. R. Evid. 201(b). 17 See footnotes 8 and 10, supra. 18 See Exhibit C attached hereto for a copy of this Federal Register publication, which was not attached to TOTAL’s filing. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 6 of 18 7 stop short of the OCS.19 TOTAL’s Exhibit C provides the same boundaries and diagram that was published in 2012. Accordingly, like TOTAL’s Exhibit A, it does not follow the dictates of § 1333(a)(2)(A). Because neither of the maps provided by TOTAL follow the dictates of § 1333(a)(2)(A), they are therefore not probative of state agency determinations for choice of law purposes. Additionally, TOTAL claims that a Minerals Management Service notice published at 66 Fed. Reg. 40295 (Aug. 2, 2001) states that Mississippi Canyon Block 305 and Mississippi Canyon Block 348 are “nearest” to Louisiana.20 However, this publication merely recites approximate miles from Louisiana and Alabama, and contains no actual commentary (much less an analytical determination) as to adjacency. It is therefore not probative in that it does not follow the dictates of 43 U.S.C. § 1333(a)(2)(A). TOTAL also claims that in a 1998 “News Release” the Minerals Management Service stated “that Desoto Canyon Block 133, which is nearby to Mississippi Canyon Block 305 and Mississippi Canyon Block 348, and feeds into CEPS, is located ‘offshore Louisiana.’”21 This random statement in a 1998 news release also clearly does not constitute an “agency determination” for 19 Danos, 61 F. Supp. 3d at 689-90 (“BP submits the BOEM Outer Continental Shelf Boundaries, the boundaries developed in 2006 and which were published in the Federal Register. Dkt. 21–1 at Ex. B. In terms of whether these boundaries follow the dictates of § 1333(a)(2)(A), the lines drawn in this map 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.”) 20 Doc. 141, p. 4; see Exhibit D attached hereto for a copy of this Federal Register publication, which TOTAL did not include in its filing. 21 Id.; see Exhibit E for a copy if this News Release, which TOTAL did not include in its filing. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 7 of 18 8 purposes of state adjacency analysis. As such, these arguments should not be weighed in determining which agency determinations are more or less probative than others. Regardless, TOTALs above arguments are less probative than certain submittals dismissed as non-probative by the Danos court. TOTAL next erroneously relies on an annual Oil and Gas Field Code Master List prepared by the U. S. Energy Information Administration (“EIA”).22 This Court in Danos previously found the EIA determinations “less probative than other evidence submitted because it is unclear how the EIA determines this block’s association, even after a review of the cited online sources, which would provide perspective as to how closely the determinations followed the requirements the President must follow under § 1333(a)(2)(A).”23 Therefore, TOTAL’s reliance on the EIA coding as an agency determination probative to state adjacency determinations, already has been determined to less probative than the evidence relied upon by MOGUS. In finding that Alabama is the adjacent state, MOGUS relies on the (i) BOEM notices to pipeline right-of-way holders in the OCS listing what states are “affected states” with respect to a pipeline and (ii) BOEM’s OCS Plans Map for the Coastal Zone Management Program. For these reasons and as argued above, the best 22 Doc. 141, p. 5. 23 Danos, 61 F. Supp. 3d at 690. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 8 of 18 9 probative evidence on state adjacency weighs in favor of Alabama as the adjacent state. The “evidence” submitted by TOTAL in an attempt to demonstrate that Louisiana is the adjacent state simply is not probative under guiding jurisprudence. II. PRIOR COURT DETERMINATIONS. A. TOTAL Attempts to Unduly Narrow the Court’s Focus. TOTAL claims that “[a]ll prior court determinations” concerning the Mississippi Canyon field hold Louisiana to be the adjacent state.24 As discussed below, this is not an appropriate or justified argument. TOTAL paraphrases Snyder (quoting Reeves) in a misleading way, implying that this Court’s analysis should be limited to adjacency decisions concerning blocks in the Mississippi Canyon area only, rather than any nearby blocks that may happen to be in other fields. TOTAL argues “[a]s Snyder recognized when quoting Reeves, ‘that other courts have considered other [same-field] properties to be adjacent to’ a particular state is helpful evidence in the adjacency analysis.”25 The Fifth Circuit actually stated: “We also considered that other courts had construed platforms located in the High Island Field to be adjacent to Texas under OCSLA, specifically citing two Louisiana district court opinions.”26 Thus, nothing in Snyder held or implied that 24 Doc. 141, pp. 10-11. 25 Id. 26 Snyder, 208 F.3d at 523-24 (quoting Reeves, 897 F.2d at 180). Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 9 of 18 10 the district court’s consideration of other court determinations should be limited to “same-field” decisions. In addition, MOGUS has not found any other authority on this proposition. In fact, this Court has considered the location of blocks in other offshore named areas when analyzing adjacency as long as they were “in the vicinity” of the block at issue.27 In Danos, this Court considered the determination in Synder that Main Pass Block 261 is adjacent to Alabama to conclude that nearby Viosca Knoll Block 915 is also adjacent to Alabama.28 Other district courts have followed the same rationale.29 B. The Cases Cited by TOTAL Are Not Relevant. In any event, the cases on which TOTAL relies are not relevant, much less persuasive, because none of them mention, much less analyze, the adjacency factors under Reeves and Snyder. For example, TOTAL cites Spisak v. Apache Corp.30 There, the plaintiff was injured while working on the Devil’s Tower platform which is located in Mississippi Canyon Block 773.31 The district court was required to resolve whether state law or 27 See Danos, 61 F. Supp. 3d at 687. 28 Id. 29 Lewis v. Helmerich & Payne Int'l Drilling Co., CIV. A. 13-5994, 2015 WL 1040458, at *4 (E.D. La. 2015) (considering, among other things, in its conclusion that Alabama is adjacent to Viosca Knoll Block 956, the Fifth Circuit’s holding in Synder regarding Main Pass Block 261 where the block at issue “is ever so slightly east of the Block discussed in” Snyder); Noel v. Freeport-McMoran Oil & Gas, LLC, CV 15-2411, 2017 WL 515072, at *1 (E.D. La. 2017) (adopting this Court’s reasoning in Danos and agreeing Alabama is adjacent state the for same block). 30 Spisak v. Apache Corp, 15-CV-02305, 2017 WL 946714, at *3–4 (W.D. La. 2017). 31 Id. at *1. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 10 of 18 11 maritime law applied, not which of two states was adjacent under OSCLA. The defendants argued that under OCSLA “Louisiana state law applies” while the plaintiff argued that “maritime law applies.”32 The adjacency of no other state but Louisiana was at issue. The district court held maritime law did not apply because the “maritime situs” criteria was not satisfied since the injury occurred on a platform, and not a vessel.33 The district court did not mention, much less analyze, the Reeves and Snyder factors which govern determination of state adjacency under OCSLA. Rather, because maritime law did not apply, and no party had urged the application of any law other than Louisiana, the district court found Louisiana law applied without analyzing any of the factors concerning adjacency.34 Accordingly, Spisak is not relevant here. The same is true of Mooney v. W&T Offshore, Inc., also cited by TOTAL.35 That matter also was a tort claim for personal injuries allegedly suffered by the plaintiff on a “tension leg platform” located at Mississippi Canyon Block 243.36 Plaintiff argued that maritime law governed his claims, while defendant urged that 32 Id. 33 Id. at **3-4. 34 Id. at *5. 35 Mooney v. W & T Offshore, Inc., CIV.A. 12-969, 2013 WL 828308, at *1 (E.D. La. 2013). 36 Id. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 11 of 18 12 Louisiana law applied under OCSLA. As stated by the district court: “The only disputed question raised in connection with this motion for partial summary judgment is whether the MATTERHORN SEASTAR is a ‘vessel’ for the purposes of the Jones Act and the LHWCA.”37 After a lengthy analysis, the district court held “it is clear that the MATTERHORN SEASTAR does not qualify as a vessel” and therefore maritime law did not apply.38 The district court noted that the plaintiff did not dispute that “if the MATTERHORN SEASTAR is not a vessel, then his only viable claims against W&T arise under the OCSLA, and that OCSLA mandates the application of Louisiana law.”39 Thus, as in Spisak, the district court neither mentioned nor analyzed any of Reeves and Snyder factors regarding adjacency. Accordingly, Mooney is not relevant here. The same is true of Ronquille v. MMR Offshore Servs., Inc., (presuming, without discussing, that Louisiana law applied to personal injury claim) and In re ATP Oil & Gas Corp., (presuming, without discussing, that Louisiana law applied under OCSLA as to ORRI dispute).40 Neither the court in Ronquille nor ATP 37 Id. at *2. 38 Id. at **5-6. 39 Id. at *6, n.25. 40 Ronquille v. MMR Offshore Servs., Inc., 353 F. Supp. 2d 680, 682 (E.D. La. 2004); In re ATP Oil & Gas Corp., 12- 36187ADV 12-03443, 2014 WL 61408, at *4 (Bankr. S.D. Tex. Jan. 6, 2014). Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 12 of 18 13 mentioned or discussed the adjacency factors under Reeves and Snyder.41 Thus, those cases also are irrelevant.42 Incredibly, TOTAL attempts to distinguish Phillips v. Williams Oilfield Servs.-Gulf Coast Co., LLP, which held Alabama to be the adjacent state regarding an accident on Canyon Station located on Main Pass Block 261 (the same platform where CEPS terminates), on the same grounds which make Spisak, Mooney, Ronquille and ATP inapplicable.43 As TOTAL admits, Phillips is of little significance because “the parties agreed that Alabama law applied and the court in that case did not apply the Snyder factors.”44 Thus, TOTAL must concede that neither Spisak, Mooney, Ronquille nor ATP are applicable for the same reason because in none of those cases did “the court … apply the Snyder factors” and none concerned a dispute as to whether the law of Louisiana or another state applied. TOTAL, accordingly, has failed to cite one relevant case which analyzed the appropriate factors and concluded that Louisiana is the adjacent state, rather than another state, as to any blocks in the vicinity of Mississippi Canyon Block 305, 41 Id. 42 TOTAL admits that the district court’s reference in Pioneer Nat. Res. USA, Inc. v. Diamond Offshore Co., 638 F. Supp. 2d 665, 667 (E.D. La. 2009) to the CEPS as “off of the coast of Louisiana” was made “without actually deciding adjacency for purposes of OSCLA.” This case therefore is not relevant. 43 Phillips v. Williams Oilfield Servs.-Gulf Coast Co., LLP, CIV.A. 03-1984, 2006 WL 1098923, at *2 (W.D. La. 2006). 44 Doc. 141, p. 11 (emphasis). As with the other cases discussed, the dispute was whether maritime law or Louisiana state law would apply, not whether the law of Louisiana would be applied over another state. Phillips, 2006 WL 1098923 at *1 (“Total argues general maritime law governs … GML argues Alabama law should apply pursuant to the Outer Continental Lands Act (OCSLA)”). Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 13 of 18 14 Mississippi Canyon Block 348, and CEPS. This factor, therefore, does not weigh in favor of finding Louisiana to be the adjacent state. As shown in MOGUS’s Motion for Partial Summary Judgment, the cases that have conducted the appropriate analysis regarding blocks in the vicinity of Mississippi Canyon Block 305, Mississippi Canyon Block 348, and CEPS conclude that Alabama is the adjacent state.45 C. Relevant Prior Court Determinations. As argued in MOGUS’s Motion for Partial Summary Judgment on Choice of Law (Doc. 157), page 10, prior court determinations consider lease blocks in the vicinity of Mississippi Canyon Block 305, Mississippi Canyon Block 348, Main Pass Block 261, and CEPS to be adjacent to Alabama. Courts have determined that Viosca Knoll 823, Viosca Knoll 915, Viosca Knoll 786, and Viosca Knoll 956 are adjacent to Alabama for choice of law purposes.46 Viosca Knoll 823, Viosca Knoll 915, Viosca Knoll 786, and Viosca Knoll 956 are in much closer proximity to 45 Doc. 157, pp. 9-11; see also Lewis, 2015 WL 1040458 at *4 (finding Alabama is adjacent to Viosca Knoll Block 956 which is actually west of Mississippi Canyon 305 and Mississippi Canyon 348, and due south of Main Pass Block 261). 46 In Danos & Curole Marine Contractors, Inc. v. BP America Production Company, the court determined that the adjacent state of Viosca Knoll Block 915 was Alabama (No. 13-3803, 2014 WL 6477175, at 6 (S.D. Tex. Nov. 18, 2014). See also Brown v. Total E & P USA Inc., CIV.A. 07-8133, 2008 WL 4724309, at *1 (E.D. La. Oct. 24, 2008) (applying Alabama state law under OCSLA)(see minute entry attached as Exhibit D). Brown concerned injuries sustained by the plaintiff on TOTAL’s Viosca Knoll Block 823 production platform located in the Gulf of Mexico. Brown v. Total E & P USA Inc., 341 Fed.Appx. 24 (5th Cir. 2009); and Texaco Exploration & Prod., Inc. v. AmClyde Engineered Prods., et al., Nos. 993623, 99–3646, 00–0813, 2008 WL 782818 n.1 (E.D. La. Mar.20, 2008) (stating that the parties agreed and the court determined Alabama law applied in dispute concerning Viosca Knoll 786); see also the Lewis decision discussed in footnote 30, supra. Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 14 of 18 15 Mississippi Canyon Block 305, Mississippi Canyon Block 348, Main Pass Block 261, and CEPS than any of the lease blocks at issue in the cases upon which TOTAL relies in its motion.47 Accordingly, this Court should conclude that Mississippi Canyon Block 305, Mississippi Canyon Block 348 and CEPS are adjacent to Alabama and that Alabama law governs. III. PROJECTED BOUNDARIES. TOTAL asserts that the federal government has not issued “any specific projected boundary determination.”48 While this is correct, the Fifth Circuit, and district courts have used a north-south boundary extended downward from the Mississippi-Alabama boundary and determined that blocks lying to the east of that line are adjacent to Alabama, not Louisiana.49 TOTAL cannot dispute that Mississippi Canyon Block 305, Mississippi Canyon Block 348, and all of the blocks 47 To provide a visual as to how the blocks for the cases cited by TOTAL compare to (i) the blocks relevant in this matter (e.g. Mississippi Canyon Block 305, Mississippi Canyon Block 348, Main Pass Block 261 and the blocks comprising CEPS and (ii) the jurisprudence cited by MOGUS, please see Declaration of Kenneth Kuykendall, attached as Exhibit A, and Exhibit A-3 attached thereto. Exhibit A-3 accurately identifies on an OCS map downloaded from the BOEM website (https://www.boem.gov/Visual-1-Active-Leases-and-Infrastructure/), with corresponding colors, the location of Mississippi Canyon Block 305, Mississippi Canyon Block 348, and Main Pass Block 261 (the blocks associated with this lawsuit) being depicted in orange; Vioca Knoll Block 823, Vioca Knoll Block 915, Vioca Knoll Block 786, Vioca Knoll Block 956, and Main Pass Block 261 (all blocks in which courts have determined Alabama to be the adjacent state) being depicted in yellow; and Mississippi Canyon Block 243, Mississippi Canyon Block 773, Mississippi Canyon Block 809, Mississippi Canyon Block 711, Mississippi Canyon Block 754, and Mississippi Canyon Block 755 (all blocks in which TOTAL cites cases for the proposition that Louisiana is the adjacent state, even if the Reeves and Snyder analysis of adjacency was not discussed) being depicted in white. Please note that Main Pass Block 261 is identified as both a yellow and a orange block because it is both an offshore block directly implicated by this lawsuit and because it has already been judicially determined to be adjacent to Alabama. 48 Doc. 141, p. 12. 49 See Snyder, 208 F.3d at 528 (“if the Mississippi-Alabama border is extended seaward from the three mile line … due south … Block 261 lies eastward of the extension and hence is in Alabama waters”). Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 15 of 18 16 through which CEPS traverses all fall east of such a projected boundary. They should, therefore, be deemed to be adjacent to Alabama. CONCLUSION For the foregoing reasons, the Motion to Apply Louisiana Law Under OCSLA filed by Total E&P USA, Inc. should be denied and the Court should 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 -and- Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 16 of 18 17 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 Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 17 of 18 18 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 12th day of January, 2018. /s / Paul J. Goodwine Case 4:16-cv-02674 Document 161 Filed in TXSD on 01/12/18 Page 18 of 18