TOTAL E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc.

RESPONSE to 72 Advisory

S.D. Tex.November 30, 2018

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOTAL E&P USA, INC. * CIVIL ACTION NO. Plaintiff * 4:16-cv-02678 * v. * JUDGE LYNN N. HUGHES * MARUBENI OIL & GAS (USA) INC. * Defendant * ******************************************* MOGUS’S RESPONSE TO TOTAL’S STATEMENT OF POSITION ON ADJACENT JURISDICTION Marubeni Oil & Gas (USA) LLC (“MOGUS”) hereby responds to the Statement of Position on Adjacent Jurisdiction1 filed by Total E&P USA, Inc. (“TOTAL”). TOTAL’s claim that Louisiana is the adjacent state is incorrect as a matter of law. The great weight of evidence supports a conclusion that Alabama is the state adjacent to Mississippi Canyon Block 348 (“MC 348”) for choice-of-law purposes. Thus, Alabama law should be applied in this case where there is no applicable federal law on point. INTRODUCTION This case, and the two companion cases also pending in the Southern District of Texas, arises out of a dispute over liability for the decommissioning of three properties on the Outer Continental Shelf (“OCS”) in the Gulf of Mexico. These properties, collectively the “Canyon Express Assets,” include the oil and gas fields on MC 348 and Mississippi Canyon Block 305 (“MC 305”) and the Canyon Express Pipeline System (“CEPS”) that connects these fields and others to a production hub.2 The CEPS traverses from MC 348 and MC 305 in a north/northeasterly direction and terminates at the production hub, namely the Canyon Station 1 Dkt. 72. 2 See Declaration of Kenneth Kuykendall, Exhibit A hereto, at ¶ 4. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 1 of 15 2 Platform, located on Main Pass Block 261 (“MP 261”).3 For context of where the Canyon Express Assets are located, attached hereto as Exhibit A-1 is a map included on the Bureau of Ocean Energy Management (“BOEM”) website, which is utilized by the oil and gas industry.4 Exhibit A-2 is a cropped/magnified version of the same map with highlighting to identify the Canyon Express Assets.5 The maps show that the Canyon Express Assets are all due south of Alabama.6 The parties do not dispute that, because the Canyon Express Assets are located on the OCS, the Outer Continental Shelf Lands Act (“OCSLA”) governs this matter.7 OCSLA’s choice-of-law provision – 43 U.S.C. § 1333(a)(2)(A) – requires that the Court apply federal law; however, if there is a gap in federal law, the substantive law of the “adjacent state” will be applied.8 Under § 1333(a)(2)(A), the “President” was to “determine and publish” the adjacent state boundaries, but he never did so.9 In the absence of the Presidential determination, “the courts must adjudicate adjacency in private disputes governed by the OCSLA,”10 and the Fifth Circuit in Snyder Oil Corp. v. Samedan Oil Corp. and Reeves v. B & S Welding, Inc. outlined four types of evidence that courts must analyze to determine the “adjacent state:” (i) geographic proximity, (ii) considerations of 3 Id. at ¶ 6. Canyon Station is where all production from the Canyon Express fields, including MC 348 and MC 305, is processed. Id. at ¶ 6. Canyon Station was also utilized in connection with the ultimate abandonment of MC 348 and MC 305. Id. at ¶ 7. 4 See id. at ¶ 3 (authenticating Exhibit A-1). The map is also available at: https://www.boem.gov/Visual-1-Active- Leases-and-Infrastructure/. The Court may also take judicial notice of this map pursuant to Fed. R. Evid. 201(b) for all purposes. See Rooster Petroleum, LLC v. Fairways Offshore Expl., Inc., 2013 WL 6274375, at *7 n.4 (E.D. La. 2013) (considering Fed. R. Evid. 201(b) and ruling that courts may “take[] judicial notice of the data provided from the BSEE’s website.”). 5 See Kuykendall Declaration, Exhibit A, at ¶ 4 (authenticating Exhibit A-2 and the markings thereon). The route of CEPS appears in neon blue and the lease blocks are in orange. 6 Id. at ¶ 5; see also Exhibits A-1 and A-2. 7 43 U.S.C. § 1331, et seq. 8 43 U.S.C. § 1333(a)(2)(A); see also Danos & Curole Marine Contractors, Inc. v. BP Am. Prod. Co., 61 F. Supp. 3d 679, 683 (S.D. Tex. 2014) (quoting Bartholomew v. CNG Prod. Co., 862 F.2d 555, 557 (5th Cir. 1989)). 9 Id. 10 Snyder Oil Corp. v. Samedan Oil Corp., 208 F.3d 521, 523 (5th Cir. 2000). Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 2 of 15 3 other federal agencies as to which state was adjacent to a particular offshore block, (iii) prior court determinations, and (iv) projected boundaries.11 No one of the Snyder/Reeves factors is controlling or outweighs the other factors. Courts are required to consider “all relevant evidence,” and geographic proximity of an offshore block to a particular state is not conclusive of the adjacent state law application.12 Prior case law has unanimously held that blocks in the vicinity of the Canyon Express Assets are adjacent to Alabama – even though some blocks were geographically closer to Louisiana. Consistent therewith, in the parties’ related disputes, Judge Gilmore and Judge Atlas analyzed the adjacency of the Canyon Express Assets and held that MC 305 and CEPS are adjacent to Alabama even though the properties are slightly closer to Louisiana.13 As shown below, the totality of the evidence and an analysis of the Snyder/Reeves factors establish that Alabama is the state adjacent to MC 348. TOTAL’s only offered support for Louisiana adjacency is the Administrative Boundaries Map, which three courts have considered unpersuasive and “less probative” than the evidence submitted herewith by MOGUS. Moreover, although not necessarily related to a choice-of-law analysis, MOGUS takes exception to TOTAL’s extraneous commentary included in its Statement of Position regarding alleged bad faith.14 TOTAL has no evidence to support an assertion of bad faith by MOGUS. MOGUS simply argues 11 Id.; Reeves, 897 F.2d 178 (5th Cir. 1990). 12 Snyder, 208 F.3d at 525. The Fifth Circuit has explained that “neither logic nor authority allows this court arbitrarily to disregard all relevant evidence except that of geographic proximity.” Id. 13 Dkt. 168 (No. 16-02671); Dkt. 228 (No. 16-02674). In the CEPS case, Judge Atlas referred the parties’ motions on choice of law to her magistrate, Judge Palermo, for report and recommendation. Judge Palermo issued a Report and Recommendation (“R&R”) and held that Alabama was the state adjacent to the “Assets” (i.e. MC 305, MC 348, and CEPS) and that Alabama law applied. Dkt. 159 (No. 16-02671). TOTAL filed objections to the R&R on June 18, 2018. Dkt. 161 (No. 16-02671). In a Memorandum and Order issued on July 12, 2018, Judge Atlas overruled TOTAL’s objections and fully adopted Judge Palermo’s R&R. Dkt. 168 (No. 16-02671). Judge Palermo’s R&R and Judge Atlas’s Order adopting the R&R are discussed herein as one ruling. 14 See Dkt. 72, at p. 2. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 3 of 15 4 that Alabama law is appropriate because it is consistent with jurisprudential dictates associated with agency determinations, prior court determinations, and the specific facts of this case and for no other purpose. ARGUMENT The only question to be resolved is whether Alabama or Louisiana is the “adjacent” state for purposes of filling any gap in federal law under 43 U.S.C. § 1333(a)(2)(A). The Snyder/Reeves factors and the evidence support Alabama adjacency. Factor 1: Geographic Proximity Geographic proximity is based on how close the property in question is to the states in question. According to the Fifth Circuit, however, geographic proximity is not conclusive of the adjacent state law application. According to Snyder: “If proximity were controlling for purposes of § 1333(a)(2)(A) . . . we would not have considered other evidence in Reeves.”15 The Snyder court also explained that “neither logic nor authority allows this court arbitrarily to disregard all relevant evidence except that of geographic proximity.”16 The Snyder case involved MP 261, which, as explained above, is the endpoint of CEPS and where all production from MC 348 and MC 305 was processed. MP 261 is also geographically closer to Louisiana than any of the other Canyon Express Assets. Although the Fifth Circuit in Snyder found that MP 261 was geographically closer to Louisiana than Alabama, it ultimately held that Alabama was the adjacent state based on the other three factors discussed below. Likewise, in Danos & Curole Marine Contractors, Inc. v. BP Am. Prod. Co. – a case decided by Judge Gray H. Miller of the Southern District of Texas – the parties agreed that a platform on Viosca Knoll 15 Snyder, 208 F.3d at 524. 16 Id. at 525. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 4 of 15 5 Block 915 (“VK 915”) was closer to Louisiana.17 Nevertheless, Judge Miller ultimately concluded, after analyzing the other three factors, that the platform was adjacent to Alabama for OCSLA choice-of-law purposes. Moreover, in the parties’ disputes before Judge Atlas and Judge Gilmore, MOGUS agreed that the Canyon Express Assets are geographically closer to Louisiana, but both Judge Atlas and Judge Gilmore found that the other three factors supported Alabama adjacency for the other two Canyon Express Assets at dispute between the parties.18 Here, MOGUS does not deny that the Canyon Express Assets are slightly closer to Louisiana from a geographic proximity perspective. However, because the three other Snyder/Reeves factors heavily weigh in favor of the conclusion that Alabama is the adjacent state, Alabama law should govern. Factor 2: Agency Determinations “Agency determinations are relevant in the adjacent state analysis 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.’”19 “Additionally, amongst multiple agency determinations, one agency’s determinations may be more probative than another if it is believed that the agency more closely followed the dictates of §1333(a)(2)(A).”20 As support for Alabama adjacency, MOGUS submits federal agency determinations by BOEM, including: (i) BOEM’s “Plans Map,” attached hereto as Exhibit B,21 and (ii) BOEM’s 17 61 F. Supp. 3d at 687. 18 See Dkt. 159, at p. 6 (No. 16-02671); Dkt. 228, at p. 5 (No. 16-02674). 19 Danos, 61 F. Supp. 3d at 689 (quoting Snyder, 208 F.3d at 525). 20 Id. (citing Snyder, 208 F.3d at 525). 21 The full title of the Plans Map is “OCS Plans Map for Coastal Zone Management Program.” The Plans Map is available on BOEM’s website at: https://www.boem.gov/OCS-Plans-Map-for-CZM/. The Court may take judicial notice of this map pursuant to Fed. R. Evid. 201(b). See Rooster, 2013 WL 6274375, at *7 n.4. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 5 of 15 6 “ROW Map,” attached hereto as Exhibit C.22 These maps depict “affected states” for activities in the OCS, and both maps place MC 348 and the other Canyon Express Assets in Alabama’s extended borders. Judge Miller in Danos, as well as Judge Atlas and Judge Gilmore in the related disputes, all relied on the Plans Map and the ROW Map in determining state adjacency and found them to be probative administrative determinations. Judge Miller found that the two maps depicted Alabama as the state adjacent to VK 915, which is a property near the Canyon Express Assets.23 Judge Gilmore and Judge Atlas also determined that “under the BOEM Plans Map, Alabama is the affected state for all three Assets”24 and that “the ROW Map provides additional probative support that Alabama is the affected state for the Assets.”25 While the Plans Map and the ROW Map have been accepted as probative evidence by multiple courts, TOTAL’s only evidence – the Administrative Boundaries Map26 created by the Minerals Management Service (“MMS”) in 2006 – has been expressly rejected as unpersuasive. Consistent with the Fifth Circuit in Snyder,27 Judge Miller, Judge Atlas, and Judge Gilmore have all determined that the Administrative Map is less probative because it does not extend the Mississippi and Alabama boundaries to the outer margins of the OCS as dictated by § 1333(a)(2)(A), which provides in relevant part:28 22 The full title of the ROW Map is “ROW Pipeline Map for Coastal Zone Management Program.” The ROW Map is available on BOEM’s website at: https://www.boem.gov/ROW-Pipeline-Map-for-CZM/. The Court may take judicial notice of this map pursuant to Fed. R. Evid. 201(b). See Rooster, 2013 WL 6274375, at *7 n.4. 23 Danos, 61 F. Supp. 3d at 690-91. 24 Dkt. 159, at p. 14 (No. 16-2671); Dkt. 228, at p. 10 (No. 16-2674). 25 Dkt. 159, at p. 14 (No. 16-2671); Dkt. 228, at p. 11 (No. 16-2674). 26 The Administrative Map was later reissued by BOEM, and that version is what TOTAL attaches at Dkt. 72-2. TOTAL submitted a version of the Administrative Map imposed over the Gulf of Mexico lease blocks at Dkt. 72-3. 27 Snyder, 208 F.3d at 525 (an agency decision “may be more probative if it is believed that the agency more closely followed the dictates of § 1333(a)(2)(A) . . . .”). 28 See Danos, 61 F. Supp. 3d at 659-690 (“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, Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 6 of 15 7 . . . [T]he civil and criminal laws of each adjacent State . . . are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf . . .29 The courts explained that the maps submitted by MOGUS more closely follow the statute because they extend the boundaries of “each adjacent State,” including Mississippi and Alabama, “to the outer margin of the [OCS].” For example, the Plans Map provides greater detail than the Administrative Map and extends the state borders to the OCS following a natural seaward extension as required by § 1333(a)(2)(A).30 The Plans Map also fairly allocates the Gulf waters to the states consistent with their share of the coastline. The ROW Map is also more persuasive than the Administrative Map because it extends the state borders to the outer margins of the OCS as mandated by § 1333(a)(2)(A).31 As concluded by previous courts, MOGUS’s evidence is more probative under Fifth Circuit guidance from Snyder and weighs in favor of Alabama as the adjacent state. Moreover, in addition to the BOEM maps submitted herewith by MOGUS, the agency decisions described by the Fifth Circuit in Snyder also support a finding that MC 348 is offshore Alabama. Snyder, which involved MP 261 – the endpoint of CEPS, where MC 348 production was processed, and the Canyon Express Asset geographically closest to Louisiana – noted that the Coast Guard considered MP 261 as falling within its Alabama district.32 According to Snyder, MP 261 was also included in 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.”); Dkt. 168, at p. 9 (No. 16-02671) (“The[] borders are not extended to the outer margin of the outer Continental Shelf, which is why the Court finds the[] maps to be less persuasive.”); Dkt. 228, at p. 7 (No. 16-02674) (same). 29 43 U.S.C. § 1333(a)(2)(A) (emphasis added). 30 See Exhibit B. 31 See Exhibit C. 32 Snyder, 208 F.3d at 526. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 7 of 15 8 the U.S. Geological Survey’s “Mississippi-Alabama” area of the OCS.33 Given the location of MC 348 relative to MP 261 and the utilization of MP 261 to process MC 348 production, the agency determinations in Snyder should apply with even greater force here. Factor 3: Prior Court Determinations Judge Atlas and Judge Gilmore both held that Alabama is the state adjacent to the Canyon Express Assets. In addition to those persuasive rulings, other prior court decisions that have determined the state adjacency of properties “in the vicinity” of the Canyon Express Assets are also relevant when weighing this factor.34 All courts that have analyzed nearby lease blocks have concluded that the properties were adjacent to Alabama. For instance, various courts have concluded that blocks in the neighboring Viosca Knoll area (“VK”) – including VK 915, VK 823, VK 786, and VK 956 – are adjacent to Alabama for OCSLA choice-of-law purposes.35 VK 956, for example, is only 11 blocks away from MC 348. In addition, the Fifth Circuit in Snyder analyzed MP 261, the block on which all of the production from MC 348 was processed, and determined that MP 261 was adjacent to Alabama.36 MOGUS includes Exhibit A-3 to provide a visual as to where the blocks from these cases (highlighted in yellow) are in comparison to the Canyon Express Assets (highlighted in orange).37 Given the location of MC 348 relative to the 33 Id. 34 Danos, 61 F. Supp. 3d at 688. 35 See id. (concluding VK 915 was adjacent to Alabama); Noel v. Freeport-McMoran Oil & Gas, LLC, 2017 WL 515072 (E.D. La. 2017) (adopting Danos holding and agreeing that Alabama is the state adjacent to VK 915); Brown v. Total E & P USA Inc., 2008 WL 4724309 (E.D. La. 2008) (mentioning that court had previously determined that Alabama state law applied under OCSLA) and Brown v. Total E & P USA Inc., 341 Fed. Appx. 24 (5th Cir. 2009) (explaining that dispute concerned injuries sustained on TOTAL’s VK 823 production platform); Texaco Expl. & Prod., Inc. v. AmClyde Engineered Prods., Inc., 2008 WL 782818, at *4, n.1 (E.D. La. 2008) (stating that the parties agreed and the court determined that Alabama law applied in a dispute concerning VK 786); Lewis v. Helmerich & Payne Int’l Drilling Co., 2015 WL 1040458, at *4 (E.D. La. 2015) (concluding VK 956 was adjacent to Alabama). 36 Snyder, 208 F. 3d 521. 37 Kuykendall Declaration, Exhibit A, at ¶ 8 (authenticating Exhibit A-3 and the markings thereon). Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 8 of 15 9 blocks involved in each of these cases, the courts’ rationale for Alabama adjacency is persuasive to the analysis here. MOGUS is unaware of any case that has analyzed lease blocks in the vicinity of MC 348 and determined that Louisiana law applied through OCSLA choice-of-law principles. TOTAL has also provided no jurisprudence to support Louisiana adjacency. Rather than offering relevant case determinations as required by Snyder/Reeves, TOTAL seeks to ignore this factor altogether because it claims that “prior cases have turned the OCS into an unpredictable patchwork quilt.”38 TOTAL is wrong. Prior cases have uniformly and consistently held that other blocks near the Canyon Express Assets are adjacent to Alabama.39 TOTAL briefly cites an irrelevant case, Spisak v. Apache, in a footnote to support its argument that the prior cases lack consistency, but the Spisak case did not involve an OCSLA adjacency analysis.40 The parties disputed whether “Louisiana state law” or “maritime law” applied to the dispute, not whether Louisiana or another state should be considered the adjacent state.41 The court did not conduct a § 1333 analysis as required in this case, and therefore Spisak does not support TOTAL’s position. Both Judge Atlas and Judge Gilmore, moreover, found that TOTAL failed to provide any relevant cases and that MOGUS’s cases were more persuasive.42 The courts’ analyses included the Spisak case cited by TOTAL here. In addition, as demonstrated by Exhibit A-4 hereto,43 the OCS block involved in Spisak (highlighted in pink), namely Mississippi Canyon Block 773, is clearly to the west of the Alabama/Mississippi state line as extended due south into the Gulf of 38 Dkt. 72, at p. 4. 39 See footnote 35 supra. 40 2017 WL 946714 (E.D. La. 2017). 41 Id. at *4. 42 See Dkt. 159, at pp. 16-17 (No. 16-02671); Dkt. 228, at p. 12 (No. 16-02674). 43 Kuykendall Declaration, Exhibit A, at ¶ 9 (authenticating Exhibit A-4 and the markings thereon). Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 9 of 15 10 Mexico and is farther away from the Canyon Express Assets (highlighted in orange) than are the blocks involved in the cases cited by MOGUS (highlighted in yellow). With no “prior court determinations” supporting its arguments, TOTAL submits that the Administrative Map – which, as explained above, has been deemed unpersuasive by three separate courts – should be the “definitive” evidence of adjacency.44 No court, however, has ever relied on that map as probative evidence, much less considered it to be definitive evidence of adjacency. Instead, every court that has engaged in the adjacent state analysis under OCSLA since the Administrative Map was created in 2006 has applied the Snyder/Reeves factors and considered prior cases.45 TOTAL’s request to elevate the Administrative Map to a determinative position ignores Fifth Circuit jurisprudence providing that no one piece of evidence can control absent the President’s official projections under § 1333(a)(2)(A).46 The Administrative Map was created by the MMS rather than the President, and the President never delegated any authority to the MMS (or any of its successor agencies) to make boundary projections under § 1333(a)(2)(A).47 In addition to lacking the required authority under § 1333(a)(2)(A), the MMS never intended to establish official adjacency projections when creating the Administrative Map.48 Moreover, in at 44 Dkt. 72, at pp. 4 and 6. 45 See, e.g., Lewis, 2015 WL 1040458 (decided in 2015 and concerning VK 956); Danos, 2014 WL 6477175 (decided in 2014 and concerning VK 915). See also Noel, 2017 WL 515072 (decided in 2017, concerning VK 915, and adopting Danos findings). 46 See Snyder, 208 F.3d at 525, n.3 (“Snyder argues that this court should apply a ‘geographic proximity’ test, because its easily discernible nature would save time and money. While judicial economy is a concern, it does not give us free reign arbitrarily to elevate one bit of relevant evidence to a determinative position.”). 47 Such delegation would require the President to issue a formal writing and publication in the Federal Register authorizing the MMS/BOEM to act under § 1333(a)(2)(A), which has not happened. See 3 U.S.C. § 301. 48 As implied by its title, the MMS intended for the map to serve internal “administrative” purposes. This is confirmed by the January 3, 2006 “Notice” that the MMS published in the Federal Register (71 Fed. Reg. 127) when it promulgated the map. Nowhere does the Notice mention § 1333(a)(2)(A) or state adjacency issues. Instead, in the Notice, the MMS specified that it concerned two wholly unrelated sections of OCSLA: “section 18” (which correlates with § 1344 - OCS leasing program) and “section 19” (which correlates with § 1345 - Coordination and consultation with affected State and local governments). Neither provision impacts the choice-of-law analysis. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 10 of 15 11 least four sessions since the Administrative Map was published, Congress has specifically rejected attempts to adopt MMS maps as official § 1333(a)(2)(A) projections.49 These attempts would be unnecessary if the Administrative Map were truly a binding declaration by the executive branch or the President. The map’s significance is also undermined by other maps and authorities presently used by BOEM, which have boundaries that contradict those in the Administrative Map. For instance, BOEM’s current Plans Map and ROW Map place the Canyon Express Assets within Alabama waters.50 If the MMS or BOEM had intended that the Administrative Map be the defining evidence for adjacency, then these subsequent boundary inconsistencies should not exist. TOTAL’s position that the Administrative Map controls is further undermined by conflicting claims that TOTAL has made in prior cases. In Brown v. Total E & P USA, Inc., decided two years after the MMS published the Administrative Map, TOTAL argued successfully that VK 823 was adjacent to Alabama.51 However, according to TOTAL’s argument here regarding the Administrative Map, VK 823 would be located in Louisiana waters.52 If the Administrative Map were actually controlling evidence as TOTAL now insists, TOTAL would have been forced to concede that Louisiana was the adjacent state in Brown. Moreover, in publications made before this case, TOTAL has described the Canyon Express Assets as “off the coast of Alabama.”53 49 See H.R. 5899 (111th Congress), available at: https://www.govtrack.us/congress/bills/111/hr5899/text; H.R. 3302 and H.R. 4301 (112th Congress), available at: https://www.govtrack.us/congress/bills/112/hr3302/text and https://www.govtrack.us/congress/bills/112/hr4301/text; H.R. 1165 (113th Congress), available at: https://www.govtrack.us/congress/bills/113/hr1165/text; H.R. 1663 (114th Congress), available at: https://www.govtrack.us/congress/bills/114/hr1663/text. 50 See Exhibits B and C. 51 See TOTAL’s “Pre-Trial Memorandum Regarding Applicable Law Under OCSLA” filed in Brown v. Total E & P USA, Inc., Dkt. 57, No. 07-8133 (E.D. La. June 12, 2008). VK 823 lies to the north and west of MC 348. See Exhibit A-3. 52 See Dkt. 72-3. 53 See Exhibit D hereto, at ECF p. 4 (numbered TEP0009856). MC 348 is also known as “Camden Hills.” Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 11 of 15 12 The Administrative Map is not a decision by the President and cannot be “elevate[d] . . . to a determinative position” as TOTAL suggests.54 This Court must instead consider “all relevant evidence,” including prior court determinations, which overwhelmingly weigh in favor of finding that Alabama is the adjacent state.55 TOTAL’s position is inconsistent with all precedent on this issue and, if taken as true, would render various decisions, including the Fifth Circuit’s decisions in Snyder and Reeves, invalid. Factor 4: Boundary Projections To project boundaries, the Fifth Circuit has “favorably considered” a “due south” or “natural southeasterly” extension from the Mississippi-Alabama border to the outer margins of the OCS.56 In Snyder, the Fifth Circuit explained: “[I]f the Mississippi-Alabama border is extended seaward from the three mile line through the OCS, either due south or in the natural southeasterly direction of the common boundary . . . , Block 261 lies eastward of the extension and hence is in Alabama waters.”57 Likewise, if the Mississippi/Alabama border is extended due south, then MC 348 is east of that boundary line and is in Alabama waters. Instead of citing the applicable Fifth Circuit jurisprudence on this factor, TOTAL again claims that the Court should rely solely on the Administrative Map to project boundaries under OCSLA. TOTAL, however, cannot dispute that the map does not extend each state’s boundaries “to the outer margin of the outer Continental Shelf” as required by § 1333(a)(2)(A).58 The map, moreover, has not been used by any court to project boundaries. In Danos, for example, Judge Miller, relying on Snyder, found that a lateral extension of the states’ boundaries supported 54 Snyder, 208 F.3d at 525, n.3 55 Id. at 525. 56 See Snyder, 208 F.3d at 528. 57 Id. 58 See footnote 28 supra. Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 12 of 15 13 Alabama as the adjacent state to VK 915.59 Judge Miller gave little weight to the Administrative Map which placed VK 915 in Louisiana water because it depicted “an administrative boundary that was not developed to determine the adjacent state under [OCSLA].”60 Moreover, Judge Miller noted that “OCSLA makes no mention of equidistance and only requires that the lines extend seaward to the outer margin of the Outer Continental Shelf.”61 Both Judge Gilmore and Judge Atlas found that “[i]f the Mississippi/Alabama border is extended seaward in a south/southeasterly direction, or a true north/south direction, the [Canyon Express] Assets would fall in Alabama waters.”62 TOTAL cannot dispute that MC 348 falls within Alabama waters under the boundary projection guidelines used by the Fifth Circuit and all other jurisprudence following such dictates. Because three of the four factors weigh in favor of Alabama as the adjacent state, Alabama is the adjacent state and Alabama law applies. CONCLUSION For all the reasons stated above, MOGUS hereby requests that the Court determine that Alabama law applies to this dispute. 59 See Danos, 61 F. Supp. 3d at 691-92. 60 Id. at 692. Moreover, in Lewis v. Helmerich & Payne Int’l Drilling Co., the court applied boundaries by using, among other evidence, the same Plans Map that MOGUS has submitted herewith to find that VK 956 was in Alabama waters. 2015 WL 1040458, at *4. 61 Danos, 61 F. Supp. 3d at 690, n.1 (citing 43 U.S.C. § 1333(a)(2)(A)). 62 Dkt. 159, at p. 22 (No. 16-02671); Dkt. 228, at p. 12 (No. 16-02674). Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 13 of 15 14 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 Taylor P. Gay LA Bar No. 35140; SDTX ID No. 3251449 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 tgay@loopergoodwine.com -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 Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 14 of 15 15 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 30th day of November, 2018. /s/ Paul J. Goodwine Paul J. Goodwine Case 4:16-cv-02678 Document 73 Filed in TXSD on 11/30/18 Page 15 of 15