Hat v. Landry

ANNE WHITE HAT ET AL v. JEFF LANDRY ET AL

CASE NO. 6:20-CV-00983

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION

May 5, 2021

JUDGE ROBERT R. SUMMERHAYS

MAGISTRATE JUDGE CAROL B. WHITEHURST

MEMORANDUM RULING

The present matters before the Court are the Re-Urged Motion to Dismiss and Motion to Dismiss for Mootness [ECF No. 62] filed by St. Martin Parish Sheriff Ronald Theriot, and the Motion for Reconsideration of the Ruling and Order Dated July 30, 2020 and to Grant the Motion to Dismiss Filed on Behalf of M. Bofill Duhé in his Official Capacity as District Attorney for the 16^th Judicial District (the "16^th JDC), State of Louisiana [ECF No. 64]. Theriot and Duhé (collectively, "Defendants") request that the First Amendment claims of plaintiffs Anne White Hat, Ramon Mejía, Karen Savage, Katherine Aaslestad, Peter Aaslestad, Theda Larson Wright, Alberta Larson Stevens, Judith Larson Hernandez, RISE St. James, 350 New Orleans, the Louisiana Bucket Brigade, Sharon Lavigne, and Pastor Harry Joseph (collectively, "Plaintiffs") be dismissed under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants allege that Plaintiffs lack Article III standing, that the claims against Sheriff Theriot are moot, that the Court must abstain under Younger v. Harris,¹and that Plaintiffs have failed to state legally cognizable claims.

I.BACKGROUND

A. Overview.

This case originated with the arrest of plaintiffs Anne White Hat, Ramon Mejía, and Karen Savage ("Arrestee Plaintiffs") during a 2018 protest in St. Martin Parish involving the Bayou Bridge Pipeline The Bayou Bridge Pipeline runs 162.5 miles from Lake Charles to St. James through hundreds of bodies of water, including the Atchafalaya Basin and Bayou LaFourche, which is the source of drinking water for the surrounding communities.² The construction of the Bayou Bridge Pipeline was controversial and attracted opposition from affected communities, indigenous leaders, environmental activists, crawfish farmers, and landowners voicing opposition.³ Various state and federal lawsuits were filed opposing the construction of the pipeline.⁴

In the present case, the Arrestee Plaintiffs were protesting on land in St. Martin Parish with the permission of the landowners: Katherine and Peter Aalestad, Theda Larson Wright, Alberta Larson Stevens, and Judith Larson Hernandez (the "Landowner Plaintiffs"). Nevertheless, they were arrested for "unauthorized entry of critical infrastructure" under La. R.S. 14:61 because, although protesting on private property with the landowners' permission, they were protesting in close proximity to a pipeline (the Bayou Bridge Pipeline) allegedly protected by that statute. The Arrestee Plaintiffs were ultimately released but, more than two years after their arrest, they have not been formally charged, indicted, or otherwise prosecuted. If commenced, any such prosecution falls within the jurisdiction of the district attorney for the 16^th JDC, defendant M. Bofill Duhé.Duhé has not disclaimed prosecution but there are no allegations that a charging decision has been made.

B. The Challenged Statute.

Plaintiffs mount a facial and "as applied" challenge to the constitutionality of La. R.S. 14:61—the statute that was allegedly the basis for their 2018 arrest. In 2018, the Louisiana Mid-Continent Oil and Gas Association drafted and proposed an amendment to La. R.S. 14:61, which was enacted into law on August 1, 2018⁵ (the "Amended Statute"). The Amended Statute provides:

§61. Unauthorized entry of a critical infrastructure

A. Unauthorized entry of a critical infrastructure is any of the following:

(1) The intentional entry by a person without authority into any structure or onto any premises, belonging to another, that constitutes in whole or in part a critical infrastructure that is completely enclosed by any type of physical barrier.

(2) The use or attempted use of fraudulent documents for identification purposes to enter a critical infrastructure.

(3) Remaining upon or in the premises of a critical infrastructure after having been forbidden to do so, either orally or in writing, by any owner, lessee, or custodian of the property or by any other authorized person.

(4) The intentional entry into a restricted area of a critical infrastructure which is marked as a restricted or limited access area that is completely enclosed by any type of physical barrier when the person is not authorized to enter that restricted or limited access area.

B. For the purposes of this Section, the following words shall have the following meanings:

(1) "Critical infrastructure" means any and all structures, equipment, or other immovable or movable property located within or upon chemical manufacturing facilities, refineries, electrical power generating facilities, electrical transmission substations and distribution substations, water intake structures and water treatment facilities, natural gas transmission compressor stations, liquified natural gas (LNG) terminals and storage facilities, natural gas and hydrocarbon storage facilities, transportation facilities, such as ports, railroad switching yards, pipelines, andtrucking terminals, or any site where the construction or improvement of any facility or structure referenced in this Section is occurring.

(2) "Fraudulent documents for identification purposes" means documents which are presented as being bona fide documents which provide personal identification information but which are, in fact, false, forged, altered, or counterfeit.

(3) "Pipeline" means flow, transmission, distribution, or gathering lines, regardless of size or length, which transmit or transport oil, gas, petrochemicals, minerals, or water in a solid, liquid, or gaseous state.

C. Whoever commits the crime of unauthorized entry of a critical infrastructure shall be imprisoned with or without hard labor for not more than five years, fined not more than one thousand dollars, or both.

D. Nothing in this Section shall be construed to apply to or prevent the following:

(1) Lawful assembly and peaceful and orderly petition, picketing, or demonstration for the redress of grievances or to express ideas or views regarding legitimate matters of public interest, including but not limited to any labor dispute between any employer and its employee or position protected by the United States Constitution or the Constitution of Louisiana.

(2) Lawful commercial or recreational activities conducted in the open or unconfined areas around a pipeline, including but not limited to fishing, hunting, boating, and birdwatching.

(3) Nothing in this Section shall be construed to prevent the owner of an immovable from exercising right of ownership, including use, enjoyment, and disposition within the limits and under the conditions established by law.⁶

Plaintiffs allege the Amended Statute defines Louisiana's 125,000-mile network of pipelines as critical infrastructure.⁷ Plaintiffs allege that the Amended Statute:

is unconstitutional on its face and as applied because: 1) it is vague as it does not provide adequate notice to plaintiffs and others, as well as state actors who must enforce the law, what conduct is prohibited and where, and allows for arbitrary and discriminatory enforcement; 2) it is overbroad and has the effect of chilling constitutionally protected speech or expression; and 3) targets speech and expressive conduct with a particular viewpoint for harsher punishment.⁸

Prior to the enactment of the Amended Statute, critical infrastructure included "facilities like refineries, chemical manufacturing facilities, and water treatment plants which occupy visible and discrete land areas often completely enclosed by physical barriers and/or clearly demarcated by signs."⁹ Therefore, Plaintiffs allege that the prior version of the statute "gave notice to those who would enter such facilities without authorization, or remain after being forbidden, that they were on specially designated and protected property."¹⁰ Under the Amended Statute, however, critical infrastructure now includes 125,000 miles of pipelines, which run through private and public spaces and are not visible or clearly marked.¹¹ Plaintiffs contend that there is no notice identifying what area around a pipeline is considered a part of the pipeline or "critical infrastructure."¹² Plaintiffs also contend that the Amended Statute provides no notice as to a private landowner's right to occupy and use the portions of his or her property through or under which a pipeline runs, and whether pipelines that run unmarked through public property or navigable waterways are subject to the statute.¹³

Plaintiffs also contend that the Amended Statute does not define who can revoke permission from those who have lawfully entered the vicinity of a pipeline or "critical infrastructure."¹⁴ They also argue that the Amended Statute does not provide guidance to law enforcement officers on how or where to enforce the restrictions imposed by the statute and point out that the Amended Statute does not require that a trespasser have intent to do damage, cause harm, or otherwise commit an act of violence or criminal offense.¹⁵ The Amended Statute alsoincreases the penalty for violating the statute from a misdemeanor charge of trespass to a felony charge of five years imprisonment and up to a $1,000.00 fine.¹⁶

C. Commencement of the Case.

This case was initially filed in the United States District Court for the Middle District of Louisiana by various plaintiffs against Louisiana Attorney General Jeff Landry, Sheriff Ronald Theriot and District Attorney M. Bofill Duhé. The action was brought pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that the Amended Statute is facially unconstitutional and unconstitutional as applied.¹⁷ Each of the three defendants filed motions to dismiss. On July 30, 2020, District Judge John deGravelles issued his Ruling and Order in which he dismissed claims against Attorney General Jeff Landry,...