County of San Mateo v. Chevron Corp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COUNTY OF SAN MATEO, No. 18-15499
individually and on behalf of the
People of the State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04929-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; SHELL
PLC; SHELL OIL PRODUCTS
COMPANY LLC; CITGO
PETROLEUM CORPORATION;
CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
2 COUNTY OF SAN MATEO V. CHEVRON
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
CITY OF IMPERIAL BEACH, No. 18-15502
individually and on behalf of the
People of the State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04934-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; SHELL
PLC; SHELL OIL PRODUCTS
COMPANY LLC; CITGO
PETROLEUM CORPORATION;
CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COUNTY OF SAN MATEO V. CHEVRON 3
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
COUNTY OF MARIN, individually No. 18-15503
and on behalf of the People of the
State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04935-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; SHELL
4 COUNTY OF SAN MATEO V. CHEVRON
PLC; SHELL OIL PRODUCTS
COMPANY LLC; CITGO
PETROLEUM CORPORATION;
CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
COUNTY OF SAN MATEO V. CHEVRON 5
COUNTY OF SANTA CRUZ, No. 18-16376
individually and on behalf of The
People of the State of California; D.C. Nos.
CITY OF SANTA CRUZ, a 3:18-cv-00450-VC
municipal corporation, 3:18-cv-00458-VC
individually and on behalf of The 3:18-cv-00732-VC
People of the State of California;
CITY OF RICHMOND, individually
and on behalf of The People of OPINION
the State of California,
Plaintiffs-Appellees,
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; SHELL
PLC; SHELL OIL PRODUCTS
COMPANY LLC; CITGO
PETROLEUM CORPORATION;
CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
6 COUNTY OF SAN MATEO V. CHEVRON
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
On Remand from the United States Supreme Court
Filed April 19, 2022
Before: Sandra S. Ikuta, Morgan Christen, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Ikuta
COUNTY OF SAN MATEO V. CHEVRON 7
SUMMARY*
Removal Jurisdiction
On remand from the Supreme Court, the panel affirmed
the district court’s order remanding global-warming related
complaints to state court after they were removed by the
energy company defendants.
The complaints alleged that the energy companies’
extraction of fossil fuels and other activities were a
substantial factor in causing global warming and sea level
rise. The County of San Mateo and other plaintiffs asserted
causes of action for public and private nuisance, strict
liability for failure to warn, strict liability for design defect,
negligence, negligent failure to warn, and trespass.
In a prior opinion, the panel affirmed the district court’s
determination that no subject matter jurisdiction existed under
the federal-officer removal statute, and the panel dismissed
the rest of the appeal for lack of appellate jurisdiction. The
Supreme Court granted the energy companies’ petition for
certiorari and remanded for further consideration in light of
BP p.l.c. v. Mayor & City Council of Baltimore, 141 S. Ct.
1532 (2021), which interpreted 28 U.S.C. § 1447(d) as
permitting appellate review of additional grounds for
removal.
On remand, the panel concluded that Baltimore
effectively abrogated the reasoning and holding of Patel v.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
8 COUNTY OF SAN MATEO V. CHEVRON
Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006), which held that
the court of appeals lacked authority to review a remand order
considering bases for subject matter jurisdiction other than
federal officer jurisdiction. Accordingly, the panel
considered all bases for removal raised by the defendants,
rather than addressing only federal officer removal.
The panel held that the district court lacked federal-
question jurisdiction under 28 U.S.C. § 1331 because, at the
time of removal, the complaints asserted only state-law tort
claims against the energy companies. The panel held that the
plaintiffs’ global-warming claims did not fall within the
Grable exception to the well-pleaded complaint rule, under
which federal jurisdiction over a state law claim will lie if a
federal issue is necessarily raised, actually disputed,
substantial, and capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.
In addition, plaintiffs’ state law claims did not fall under the
“artful-pleading” doctrine, another exception to the well-
pleaded complaint rule, because they were not completely
preempted by the Clean Air Act. The panel rejected the
energy companies’ argument that the complaints arose under
federal law for purposes of § 1331 because the tort claims at
issue arose on a federal enclave.
The panel held that plaintiffs’ claims were not removable
under the Outer Continental Shelf Lands Act, which gives
federal courts jurisdiction over actions “arising out of, or in
connection with (A) any operation conducted on the outer
Continental Shelf which involves exploration, development,
or production of the minerals, of the subsoil and seabed of the
outer Continental Shelf, or which involves rights to such
minerals.” Taking a different approach from other circuits,
which interpreted the statute as requiring a “but-for”
COUNTY OF SAN MATEO V. CHEVRON 9
connection between operations on the Outer Continental
Shelf and a plaintiff’s alleged injuries, the panel read the
phrase “aris[e] out of, or in connection with” as granting
federal courts jurisdiction over tort claims only when those
claims arise from actions or injuries occurring on the Outer
Continental Shelf.
The panel held that the district court did not have subject
matter jurisdiction under the federal-officer removal statute,
28 U.S.C. § 1442(a)(1), because the energy companies were
not “acting under” a federal officer’s directions based on
agreements with the government, including fuel supply
agreements with the Navy Exchange Service Command, a
unit agreement for petroleum reserves with the U.S. Navy,
and lease agreements for the right to explore and produce oil
and gas resources in the submerged lands of the Outer
Continental Shelf.
The panel rejected the energy companies’ argument that
the district court had removal jurisdiction over the complaints
under 28 U.S.C. § 1452(a) because they were related to
bankruptcy cases involving Peabody Energy Corp., Arch
Coal, and Texaco, Inc.
Finally, the panel held that the district court did not have
admiralty jurisdiction because maritime claims brought in
state court are not removable to federal court absent an
independent jurisdictional basis, such as diversity
jurisdiction.
10 COUNTY OF SAN MATEO V. CHEVRON
COUNSEL
Theodore J. Boutrous Jr. (argued), Andrea E. Neuman,
William E. Thomson, and Joshua S. Lipshutz, Gibson Dunn
& Crutcher LLP, Los Angeles, California; Herbert J. Stern
and Joel M. Silverstein, Stern & Kilcullen LLC, Florham
Park, New Jersey; Neal S. Manne, Johnny W. Carter, Erica
Harris, and Steven Shepard, Susman Godfrey LLP, Houston,
Texas; for Defendants-Appellants Chevron Corporation and
Chevron U.S.A. Inc.
M. Randall Oppenheimer and Dawn Sestito, O’Melveny &
Myers LLP, Los Angeles, California; Theodore V. Wells Jr.,
Daniel J. Toal, and Jaren Janghorbani, Paul Weis Rifkind
Wharton & Garrison LLP, New York, New York; for
Defendant-Appellant Exxon Mobil Corporation.
Jonathan W. Hughes, Arnold & Porter Kaye Scholer LLP,
San Francisco, California; Matthew T. Heartney and John D.
Lombardo, Arnold & Porter Kaye Scholer LLP, Los Angeles,
California; Philip H. Curtis and Nancy Milburn, Arnold &
Porter Kaye Scholer LLP, New York, New York; for
Defendants-Appellants BP PLC and BP America Inc.
Daniel B. Levin, Munger Tolles & Olson LLP, Los Angeles,
California; Jerome C. Roth and Elizabeth A. Kim, Munger
Tolles & Olson LLP, San Francisco, California; David C.
Frederick and Brendan J. Crimmins, Kellogg Hansen Todd
Figel & Frederick PLLC, Washington, D.C.; for Defendants-
Appellants Shell PLC and Shell Oil Products Company LLC.
Craig A. Moyer and Peter Duchesneau, Manatt Phelps &
Phillips LLP, Los Angeles, California; Stephanie A. Roeser,
Manatt Phelps & Phillips LLP, San Francisco, California;
COUNTY OF SAN MATEO V. CHEVRON 11
Nathan P. Eimer, Lisa S. Meyer, Pamela R. Hanebutt, and
Raphael Janove, Eimer Stahl LLP, Chicago, Illinois; for
Defendant-Appellant CITGO Petroleum Corporation.
Sean C. Grimsley and Jameson R. Jones, Bartlit Beck LLP,
Denver, Colorado; Megan R. Nishikawa and Nicholas A.
Miller-Stratton, King & Spalding LLP, San Francisco,
California; Traci J. Renfroe and Carol M. Wood, King &
Spalding LLP, Houston, Texas; for Defendants-Appellants
ConocoPhillips and ConocoPhillips Company.
Steven M. Bauer and Margaret A. Tough, Latham & Watkins
LLP, San Francisco, California; for Defendant-Appellant
Phillips 66 Company.
William M. Sloan and Jessica L. Grant, Venable LLP, San
Francisco, California, for Defendant-Appellant Peabody
Energy Corporation.
Christopher W. Keegan, Kirkland & Ellis LLP, San
Francisco, California; Andrew R. McGaan, Kirkland & Ellis
LLP, Chicago, Illinois; Anna G. Rotman, Kirkland & Ellis
LLP, Houston, Texas; Bryan D. Rohm, Total E&P USA Inc.,
Houston, Texas; for Defendants-Appellants Total E&P USC
Inc. and Total Specialties USA Inc.
Thomas F. Koegel, Crowell & Moring LLP, San Francisco,
California; Kathleen Taylor Sooy and Tracy A. Roman,
Crowell & Moring LLP, Washington, D.C.; for Defendant-
Appellant Arch Coal Inc.
David E. Cranston, Greenberg Glusker Fields Claman &
Machtinger LLP, Los Angeles, California, for Defendant-
Appellant Eni Oil & Gas Inc.
12 COUNTY OF SAN MATEO V. CHEVRON
Mark McKane, Kirkland & Ellis LLP, San Francisco,
California; Andrew A. Kassoff and Brenton Rogers, Kirkland
& Ellis LLP, Chicago, Illinois; for Defendants-Appellants
Rio Tinto Energy America Inc., Rio Tinto Minerals Inc., and
Rio Tinto Services Inc.
Bryan M. Killian, Morgan Lewis & Bockius LLP,
Washington, D.C.; James J. Dragna and Yardena R. Zwang-
Weissman, Morgan Lewis & Bockius LLP, Los Angeles,
California; for Defendant-Appellant Anadarko Petroleum
Corporation.
Marc A. Fuller and Matthew R. Stammel, Vinson & Elkins
LLP, Dallas, Texas; Stephen C. Lewis and R. Morgan
Gilhuly, Barg Coffin Lewis & Trapp LLP, San Francisco,
California; for Defendants-Appellants Occidental Petroleum
Corporation, and Occidental Chemical Corporation.
Christopher J. Carr and Jonathan A. Shapiro, Baker Botts
LLP, San Francisco, California; Scott Janoe, Baker Botts
LLP, Houston, Texas; Evan Young, Baker Botts LLP, Austin,
Texas; Megan Berge, Baker Botts LLP, Washington, D.C. for
Defendants-Appellants Repsol Energy North America Corp.
Repsol Trading USA Corp., Marathon Oil Company,
Marathon Oil Corporation, and Hess Corp.
Shannon S. Broome and Ann Marie Mortimer, Hunton
Andrews Kurth LLP, San Francisco, California; Shawn
Patrick Regan, Hunton Andrews Kurth LLP, New York, New
York; for Defendant-Appellant Marathon Petroleum Corp.
Gregory Evans, McGuireWoods LLP, Los Angeles,
California; Steven R. Williams, Joy C. Fuhr, and Brian D.
Schmalzbach, McGuireWoods LLP, Richmond, Virginia; for
COUNTY OF SAN MATEO V. CHEVRON 13
Defendants-Appellants Devon Energy Corp. and Devon
Energy Production Company LP.
Michael F. Healy, Shook Hardy & Bacon LLP, San
Francisco, California; Michael L. Fox, Duane Morris LLP,
San Francisco, California; for Defendant-Appellant Encana
Corporation.
Mortimer Hartwell, Vinson & Elkins LLP, San Francisco,
California; Patrick W. Mizell and Deborah C. Milner, Vinson
& Elkins LLP, Houston, Texas; for Defendant-Appellant
Apache Corp.
Victor M. Sher (argued), Matthew K. Edling, Katie H. Jones,
and Martin D. Quiñones, Sher Edling LLP, San Francisco,
California; Kevin K. Russell, Sarah H. Harrington, and
Charles H. Davis, Goldstein & Russell P.C., Bethseda,
Maryland; for Plaintiffs-Appellees.
John C. Beiers, County Counsel; Paul A. Okada, and David
A. Silberman, Chief Deputies; Margaret V. Tides and
Matthew J. Sanders, Deputies; Office of the San Mateo
County Counsel, Redwood City, California; for Plaintiff-
Appellee County of San Mateo.
Jennifer Lyon, City Attorney; Steven E. Boehmer, Assistant
City Attorney; Imperial Beach City Attorney, La Mesa,
California; for Plaintiff-Appellee City of Imperial Beach.
Brian E. Washington, County Counsel; Brian C. Case and
Brandon Halter, Deputy County Counsel; Office of the Marin
County Counsel, San Rafael, California; for Plaintiff-
Appellee County of Marin.
14 COUNTY OF SAN MATEO V. CHEVRON
Dana McRae and Jordan Sheinbaum, Office of the Counsel
Counsel, Santa Cruz, California, for Plaintiff-Appellee
County of Santa Cruz.
Anthony P. Condotti, City Attorney, Office of the City
Attorney, Santa Cruz, California, for Plaintiff-Appellee City
of Santa Cruz.
Bruce Reed Goodmiller and Rachel H. Sommovilla, Office of
the City Attorney, Richmond, California, for Plaintiff-
Appellee City of Richmond.
Zachary D. Tripp and Lauren E. Morris, Weil Gotshal &
Manges LLP, Washington, D.C.; Sarah M. Sternlieb, Weil
Gotshal & Manges LLP, New York, New York; Peter D.
Keisler, C. Frederick Beckner III, Ryan C. Morris, and Tobias
S. Loss-Eaton, Sidley Austin LLP, Washington, D.C.; Steven
P. Lehotsky, Michael B. Schon, and Jonathan D. Urick, U.S.
Chamber Litigation Center, Washington, D.C.; for Amicus
Curiae Chamber of Commerce of the United States of
America.
Robert S. Peck, Center for Constitutional Litigation P.C.,
Washington, D.C.; Gerson H. Smoger, Smoger & Associates
P.C., Dallas, Texas; for Amici Curiae Senator Sheldon
Whitehouse.
Michael Burger, Morningside Heights Legal Services Inc.,
New York, New York, for Amici Curiae National League of
Cities, U.S. Conference of Mayors, and International
Municipal Lawyers Association.
COUNTY OF SAN MATEO V. CHEVRON 15
Scott L. Nelson and Allison M. Zieve, Public Citizen
Litigation Group, Washington, D.C., for Amicus Curiae
Public Citizen Inc.
James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Laura S. Trice, Lead Deputy
County Counsel; Tony LoPresti, Deputy County Counsel;
Office of Santa Clara County Counsel, San Jose, California;
for Amicus Curiae California State Association of Counties.
Daniel P. Mensher and Alison S. Gaffney, Keller Rohrback
LLP, Seattle, Washington, for Amici Curiae Robert Brule,
Center for Climate Integrity, Justin Farrell, Benjamin Franta,
Stephan Lewandowsky, Naomi Oreskes, and Geoffrey
Supran.
William A. Rossbach, Rossbach Law P.C., Missoula,
Montana; Kenneth L. Adams, Adams Holcomb LLP,
Washington, D.C.; for Amici Curiae Mario J. Molina,
Michael Oppenheimer, Susanne C. Moser, Donald J.
Wuebbles, Gary Griggs, Peter C. Frumhoff, and Kirstina
Dahl.
Rob Bonta, Attorney General; Sally Magnani, Senior
Assistant Attorney General; David A. Zonana, Supervising
Deputy Assistant Attorney General; Erin Ganahl and Heather
Leslie, Deputy Attorneys General; Attorney General’s Office,
California Department of Justice, Oakland, California; Letitia
James, Attorney General, New York, New York; Brian E.
Frosh, Attorney General, Baltimore, Maryland; Gurbir S.
Grewal, Attorney General, Trenton, New Jersey; Ellen F.
Rosenblum, Attorney General, Salem, Oregon; Peter F.
Neronha, Attorney General, Providence, Rhode Island;
Thomas J. Donovan Jr., Attorney General, Montpelier,
16 COUNTY OF SAN MATEO V. CHEVRON
Vermont; Robert W. Ferguson, Attorney General, Olympia,
Washington; for Amici Curiae States of California, New
York, Maryland, New Jersey, Oregon, Rhode Island,
Vermont, and Washington.
Peter Huffman, Natural Resources Defense Council,
Washington, D.C.; Ian Fein, Natural Resources Defense
Council, San Francisco, California; for Amicus Curiae
Natural Resources Defense Council Inc.
COUNTY OF SAN MATEO V. CHEVRON 17
OPINION
IKUTA, Circuit Judge:
This appeal requires us to determine whether a district
court erred in remanding the plaintiffs’ global-warming
related complaints to state court after they were removed by
the energy company defendants. On appeal, the defendants
argue that the district court had removal jurisdiction over
these complaints on multiple grounds, including federal
question and federal enclave jurisdiction under 28 U.S.C.
§ 1331, federal officer removal jurisdiction under 28 U.S.C.
§ 1442(a)(1), bankruptcy jurisdiction under 28 U.S.C.
§ 1452(a) and 28 U.S.C. § 1334(b), and admiralty jurisdiction
under 28 U.S.C. § 1333(1). Because the district court did not
err in concluding that it lacked subject matter jurisdiction
under any of these asserted grounds, we affirm.
I
The County of San Mateo, the County of Marin, and the
City of Imperial Beach filed three materially similar
complaints in California state court against more than
30 energy companies in July 2017.1 The complaints allege
that the Energy Companies’ “extraction, refining, and/or
formulation of fossil fuel products; their introduction of fossil
fuel products into the stream of commerce; their wrongful
promotion of their fossil fuel products and concealment of
known hazards associated with use of those products; and
their failure to pursue less hazardous alternatives available to
them; is a substantial factor in causing the increase in global
1
We refer to the plaintiffs collectively as the “Counties” and to the
defendants collectively as the “Energy Companies.”
18 COUNTY OF SAN MATEO V. CHEVRON
mean temperature and consequent increase in global mean sea
surface height.” Further, according to the complaints, the
Counties “have already incurred, and will foreseeably
continue to incur, injuries and damages because of sea level
rise caused by [the Energy Companies’] conduct.” Such “sea
level rise-related injuries and damages” include flooding that
causes injury and damages to real property and its
improvements, and prevents the “free passage on, use of, and
normal enjoyment of that real property, or permanently
[destroys] it.” For instance, the Counties allege that Surfer’s
Beach near the city of Half Moon Bay “has lost 140 feet of
accessible beach since 1964 due to erosion, which has been
exacerbated and substantially contributed to by sea level rise
and increased extreme weather.” Other injuries caused by sea
level rise, according to the Counties, include “infrastructural
repair and reinforcement of roads and beach access.” Based
on these allegations, the complaints assert causes of action for
public and private nuisance, strict liability for failure to warn,
strict liability for design defect, negligence, negligent failure
to warn, and trespass.
The Energy Companies removed the three complaints to
federal court, asserting multiple bases for subject matter
jurisdiction: (1) the Counties’ claims raise disputed and
substantial federal issues, see Grable & Sons Metal Prods.,
Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005); (2) the
Counties’ claims are “completely preempted” by federal law;
(3) the Counties’ claims arose on “federal enclaves”; (4) the
Counties’ claims arise out of operations on the outer
Continental Shelf, see 43 U.S.C. § 1349(b); (5) the Counties’
claims arise from actions that were taken by the Energy
Companies pursuant to a federal officer’s directions, see
28 U.S.C. § 1442(a); and (6) the Counties’ claims are related
to bankruptcy cases, see 28 U.S.C. §§ 1452(a), 1334(b).
COUNTY OF SAN MATEO V. CHEVRON 19
Shortly after the complaints were filed, the County of
Santa Cruz, the City of Santa Cruz, and the City of Richmond
filed materially similar complaints in California state court.
The Energy Companies removed these cases to federal court
as well, asserting the same six bases for subject matter
jurisdiction. Marathon Petroleum Corporation raised an
additional ground for removal: the complaints raised issues
concerning maritime activities, giving rise to admiralty
jurisdiction. See 28 U.S.C. § 1333. These cases were
assigned to the same district judge.
The Counties moved to remand each case to state court
based on a lack of subject matter jurisdiction. In a reasoned
opinion, the district court rejected all the grounds on which
the Energy Companies relied for subject matter jurisdiction,
but stayed its remand orders to give the Energy Companies an
opportunity to appeal.
The Energy Companies appealed, and we affirmed the
district court’s determination that no subject matter
jurisdiction existed under the federal-officer removal statute.
County of San Mateo v. Chevron Corp., 960 F.3d 586, 603
(9th Cir. 2020), vacated, 141 S. Ct. 2666 (2021) (mem.). We
dismissed the rest of the appeal for lack of appellate
jurisdiction. Id. Under 28 U.S.C. § 1447(d), “[1] [a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise [(referred
to as the “non-reviewability clause”)], [2] except that an order
remanding a case to the State court from which it was
removed pursuant to section 1442 or 1443 of this title shall be
reviewable by appeal or otherwise [(referred to as the
20 COUNTY OF SAN MATEO V. CHEVRON
“exceptions clause”)].”2 We concluded that we lacked
authority to review the remand order under the non-
reviewability clause because the district court’s order
remanded the complaints on subject matter jurisdiction
grounds, and the non-reviewability clause applies when a
district court bases its remand order on subject matter
jurisdiction or nonjurisdictional defects. San Mateo, 960 F.3d
at 594–95 (citing Atl. Nat’l Tr. LLC v. Mt. Hawley Ins. Co.,
621 F.3d 931, 934 (9th Cir. 2010)). We also concluded that
we lacked authority to review the remand order under the
exceptions clause because we were bound by our precedent,
see Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006),
which indicated we had the authority to review only the
portion of the district court’s remand order that addressed
28 U.S.C. § 1442(a), federal officer removal, but lacked
jurisdiction to review the appeal from the portions of the
remand order that considered the other bases for subject
matter jurisdiction, San Mateo, 960 F.3d at 595–96.
Therefore, we rejected the Energy Companies’ argument that
28 U.S.C. § 1447(d) gave us the authority to conduct plenary
review of the district court’s remand order and did not
address the other bases for removal. Id. at 603.
The Energy Companies sought review by the Supreme
Court. While the Energy Companies’ petition for certiorari
was pending, the Supreme Court decided BP p.l.c. v. Mayor
& City Council of Baltimore, 141 S. Ct. 1532 (2021).
Baltimore interpreted § 1447(d) as permitting appellate
review of all the defendants’ grounds for removal under that
section, and overruled the Fourth Circuit’s interpretation of
2
28 U.S.C. § 1442 relates to removal of an action against an agency
or an officer of the United States, or “any person acting under that
officer,” and 28 U.S.C. § 1443 relates to civil rights cases.
COUNTY OF SAN MATEO V. CHEVRON 21
§ 1447(d) as limiting appellate review of a remand order to
“the part of the district court’s remand order” discussing
§ 1442 or 1443. See Baltimore, 141 S. Ct. at 1537. The
Supreme Court then granted the petition for writ of certiorari
in San Mateo, vacated judgment, and remanded for further
consideration in light of Baltimore. Chevron Corp. v. San
Mateo County, California, 141 S. Ct. 2666 (2021).
On remand, we conclude that Baltimore has effectively
abrogated Patel’s reasoning and holding “in such a way that
the cases are clearly irreconcilable.” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc). Because
Baltimore held that § 1447(d) gives us the authority to review
the district court’s entire remand order, 141 S. Ct. at 1538, we
now consider all bases for removal raised by the defendants,
rather than addressing only federal officer removal.
We have jurisdiction under 28 U.S.C. § 1291. We review
questions of statutory construction and subject matter
jurisdiction de novo. Ritchey v. Upjohn Drug Co., 139 F.3d
1313, 1315 (9th Cir. 1998). The defendant has the burden of
proving by a preponderance of the evidence that the
requirements for removal jurisdiction have been met. Leite
v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014).
II
A
We start with the Energy Companies’ argument that the
district court erred in rejecting its claims that it had federal-
question jurisdiction under 28 U.S.C. § 1331, which provides
that “district courts shall have original jurisdiction of all civil
22 COUNTY OF SAN MATEO V. CHEVRON
actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. §1331.
At the time of removal, the Counties’ complaints asserted
only state-law claims against the Energy Companies. Under
the well-pleaded complaint rule, the plaintiff is “the ‘master
of the claim’” and can generally avoid federal jurisdiction if
a federal question does not appear on the face of the
complaint. City of Oakland v. BP PLC, 969 F.3d 895, 904
(9th Cir. 2020) (quoting Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987)). The Energy Companies argue
that the Counties’ global-warming claims arise under federal
common law and are removable under two exceptions to the
well-pleaded complaint rule: (1) the exception articulated in
Grable; and (2) the doctrine of complete preemption. We
consider each in turn.
1
Grable affirmed a long line of Supreme Court cases that
recognized an exception to the well-pleaded complaint rule
when “federal law is a necessary element of the [plaintiff’s]
claim for relief.” Oakland, 969 F.3d at 904 (cleaned up).
“Only a few cases” have ever fallen into this narrow category.
Id. Under this exception, “federal jurisdiction over a state
law claim will lie if a federal issue is: (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal-state
balance approved by Congress.” Gunn v. Minton, 568 U.S.
251, 258 (2013). If those requirements are met, federal
jurisdiction exists “because there is a ‘serious federal interest
in claiming the advantages thought to be inherent in a federal
forum,’ which can be vindicated without disrupting
Congress’s intended division of labor between state and
COUNTY OF SAN MATEO V. CHEVRON 23
federal courts.” Id. (quoting Grable, 545 U.S. at 313–14).
The inquiry under Grable often focuses on the third
requirement, which asks whether the case “turn[s] on
substantial questions of federal law.” Oakland, 969 F.3d
at 905 (quoting Grable, 545 U.S. at 312).
In Oakland, we considered a similar issue. In that case,
two cities sued various energy companies in state court,
raising a state-law claim for public nuisance based on
“production and promotion of massive quantities of fossil
fuels” which “caused or contributed to ‘global warming-
induced sea level rise,’” and in turn led to injuries to the
cities’ wastewater treatment systems and stormwater
infrastructure, as well as other injuries. Id. at 901–02. The
energy companies argued that we had federal jurisdiction
over the state complaint under the exception to the well-
pleaded complaint rule for substantial federal questions. Id.
at 902.
We rejected this argument, holding that even assuming
that the complaint “could give rise to a cognizable claim for
public nuisance under federal common law,” the state law
claim in that case did not raise a substantial federal question
because “the claim neither requires an interpretation of a
federal statute . . . nor challenges a federal statute’s
constitutionality,” nor identifies “a legal issue necessarily
raised by the claim that, if decided, will be controlling in
numerous other cases.” Id. at 906 (cleaned up). Further, as
we explained:
[I]t is not clear that the claim requires an
interpretation or application of federal law at
all, because the Supreme Court has not yet
determined that there is a federal common law
24 COUNTY OF SAN MATEO V. CHEVRON
of public nuisance relating to interstate
pollution, and we have held that federal
public-nuisance claims aimed at imposing
liability on energy producers for acting in
concert to create, contribute to, and maintain
global warming and conspiring to mislead the
public about the science of global warming,
are displaced by the Clean Air Act.
Id. (cleaned up).
We also rejected the energy companies’ argument that
because the complaint “implicates a variety of ‘federal
interests,’” including energy policy, national security, and
foreign policy, the complaint necessarily raised a substantial
federal question. Id. at 906–07. Although we acknowledged
that the “question whether the Energy Companies can be held
liable for public nuisance based on production and promotion
of the use of fossil fuels and be required to spend billions of
dollars on abatement is no doubt an important policy
question,” we concluded it “does not raise a substantial
question of federal law for the purpose of determining
whether there is jurisdiction under § 1331.” Id. at 907.
Finally, we noted that a court’s evaluation of the cities’ public
nuisance claim would require a fact-intensive and situation
specific analysis, which “is not the type of claim for which
federal-question jurisdiction lies” under Grable. Id.
Therefore, we concluded that because the plaintiffs’ claim did
not raise a substantial federal issue, it did not fit within the
exception to the well-pleaded complaint rule articulated in
Grable. Id.
The same analysis applies here. Although in Oakland the
plaintiffs raised a single public nuisance claim, while here the
COUNTY OF SAN MATEO V. CHEVRON 25
Counties allege multiple state tort theories, including public
nuisance, failure to warn, design defect, private nuisance,
negligence, and trespass, the substance of their claims is the
same as in Oakland: tortious conduct by the Energy
Companies in the course of producing, selling, and promoting
the use of fossil fuels contributed to global warming and sea-
level rise, which led to property damage and other injuries to
the Counties. Therefore, even if we assume that the
Counties’ complaints “could give rise to a cognizable claim”
under federal common law, id. at 906, the global-warming-
related tort claims do not “require resolution of a substantial
question of federal law” because they do not require any
interpretation of a federal statutory or constitutional issue,
and are “displaced by the Clean Air Act.” Id. And as in
Oakland, even if the complaints raise federal policy issues
that are national and international in scope, implicate foreign
affairs and negotiations with other nations, and require
uniform standards, they do not “raise a substantial question of
federal law for the purpose of determining whether there is
jurisdiction under § 1331.” Id. at 907. Finally, as in
Oakland, the Counties’ tort claims require a fact-intensive
and situation-specific analysis, which “is not the type of
claim for which federal-question jurisdiction lies.” Id.
Therefore, the exception to the well-pleaded complaint
rule for substantial federal questions under Grable does not
apply to the Counties’ claims.
2
Second, the Energy Companies argue that the Counties’
state law claims fall under the “artful-pleading doctrine,”
another exception to the well-pleaded complaint rule.
Oakland, 969 F.3d at 905. Under this doctrine, a federal
26 COUNTY OF SAN MATEO V. CHEVRON
statute’s preemptive force is “so ‘extraordinary’ that it
‘converts an ordinary state common-law complaint into one
stating a federal claim for purposes of the well-pleaded
complaint rule.’” Caterpillar, 482 U.S. at 393 (quoting
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Once
a federal statute completely preempts an area of state law,
then “any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim, and
therefore arises under federal law.” Id. (citation omitted).
We have held that complete preemption applies when
Congress “(1) intended to displace a state-law cause of action,
and (2) provided a substitute cause of action.” Oakland,
969 F.3d at 906 (citations omitted). The Supreme Court has
recognized only three statutes for which complete preemption
applies: (1) § 301 of the Labor Management Relations Act,
(2) § 502(a) of the Employee Retirement Income Security Act
of 1974, and (3) §§ 85 and 86 of the National Bank Act. See
id. at 905–906 (citations omitted).
The Energy Companies assert that the Counties’ state-law
claims are “completely preempted by the Clean Air Act
and/or other federal statutes and the United States
Constitution.” We rejected this precise argument in Oakland,
observing that “[t]he Clean Air Act is not one of the three
statutes that the Supreme Court has determined has
extraordinary preemptive force” and concluding that it does
not “meet either of the two requirements for complete
preemption.” Id. at 907. The Energy Companies do not
identify any other federal statute that completely preempts the
state-law claims here. Therefore, the complete preemption
exception to the well-pleaded complaint rule does not apply.
COUNTY OF SAN MATEO V. CHEVRON 27
3
We next turn to the Energy Companies’ argument that the
Counties’ complaints arise under federal law for purposes of
§ 1331 because the tort claims at issue arose on a federal
enclave.
The removal of a claim brought in state court under the
federal enclave doctrine is premised on the following legal
framework. First, a state law claim brought in state court is
removable under § 1331 when “federal law is a necessary
element of the [plaintiff’s] claim for relief.” Oakland,
969 F.3d at 904 (cleaned up). The Constitution establishes
the principle that federal law applies in federal enclaves:
Congress shall have Power . . . [t]o exercise
exclusive Legislation in all Cases whatsoever,
over such District[s] . . . as may, by Cession
of particular States, and the Acceptance of
Congress, become the Seat of the Government
of the United States, and to exercise like
Authority over all Places purchased by the
Consent of the Legislature of the State in
which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings.
U.S. Const. art. I, § 8, cl. 17.
As this clause has been interpreted, when the federal
government purchases state land with the consent of the state
legislature, “any law existing [on that land] must derive its
authority and force from the United States and is for that
reason federal law.” Mater v. Holley, 200 F.2d 123, 124 (5th
28 COUNTY OF SAN MATEO V. CHEVRON
Cir. 1952).3 Accordingly, unless an exception applies, any
conduct on a federal enclave is governed by federal law. Id.4
Because federal law governs disputes arising from such
conduct, federal courts have the “power to adjudicate
controversies arising” on federal enclaves. Id. If federal law
applies to a legal controversy arising on federal enclaves, then
such a controversy necessarily “arises under the laws of the
United States, within the meaning of 28 U.S.C. § 1331.” Id.
at 125. In sum, because conduct on a federal enclave is
generally subject to federal law, a claim based on injuries
stemming from such conduct arises under federal law, and a
court has jurisdiction over such a claim under § 1331.5
We have referenced this framework for federal enclave
jurisdiction in several cases. In Willis v. Craig, a civilian
employee who was injured while working at a federal naval
center brought a negligence action in federal court. See
555 F.2d 724, 725 (9th Cir. 1977) (per curiam). We held that
federal jurisdiction was proper if the employee’s accident
occurred on property that qualified as a federal enclave. Id.3
We have said that Mater contains “[t]he best reasoning on [federal
enclave jurisdiction].” Willis v. Craig, 555 F.2d 724, 726 n.4 (9th Cir.
1977) (per curiam).
4
The state law that previously governed the territory “remain[s]
operative as federal law” so long as it is consistent with federal law.
Mater, 200 F.2d at 124. State law directly applies in federal enclaves only
under one of three narrow exceptions, none of which is relevant here. See
Paul v. United States, 371 U.S. 245, 268–69 (1963); Goodyear Atomic
Corp. v. Miller, 486 U.S. 174, 180 (1988).
5
Where such an action is transitory and a state court has personal
jurisdiction over the defendant, the state court may also hear the action.
Mater, 200 F.2d at 123 (citing Ohio River Cont. Co. v. Gordon, 244 U.S.
68 (1917)).
COUNTY OF SAN MATEO V. CHEVRON 29
at 726. In Durham v. Lockheed Martin Corp., we noted in
passing that federal courts would have federal question
jurisdiction over an employee’s claim arising from exposure
to asbestos during his work on federal enclaves. 445 F.3d
1247, 1250 (9th Cir. 2006); see also Alvares v. Erickson,
514 F.2d 156, 160 (9th Cir. 1975) (noting in passing that in
federal enclave cases, the jurisdiction of a federal court
depends on “the locus in which the claim arose”).
In this case, the Counties have not alleged that their
claims are based on torts taking place on a federal enclave.
Rather, their complaint raises state-law claims arising from
injuries to real property and infrastructure within their local
jurisdictions. For instance, San Mateo’s alleged injuries flow
from its claim of trespass to land, i.e., that the Energy
Companies’ petroleum activities ultimately led to a sea-level
rise that caused water to enter San Mateo property in
violation of trespass law and caused various damages and
nuisances there, including the destruction of real property and
infrastructure within its borders.6
6
The other claims raised by the Counties are analogous. For its
trespass claim, San Mateo claims that the Energy Companies caused
“ocean waters to enter” city property, without the city’s consent,
“permanently submerging real property owned by [San Mateo], causing
flooding which have [sic] invaded and threatens to invade real property
owned by [San Mateo] and rendered it unusable, and causing storm surges
which have invaded and threatened to invade real Property owned by [San
Mateo] and rendered it unusable.” For its nuisance claims, San Mateo
alleges that the condition of flooding and storms is “harmful and
dangerous to human health,” “indecent and offensive to the senses of the
ordinary person,” “obstruct[s] and threaten[s] to obstruct the free use of
the People’s property,” and “obstruct[s] and threaten[s] to obstruct the . . .
use of [various areas] within San Mateo County.” San Mateo specifies
that “the ultimate nature of the harm is the destruction of real and personal
30 COUNTY OF SAN MATEO V. CHEVRON
Therefore, we turn to the question whether the Counties’
tort claims arose from actions and injuries that occurred on
federal enclaves and thus were governed by federal law. The
Energy Companies argue that “pertinent” or “substantial”
events giving rise to the complaints took place on federal
enclaves. Specifically, they contend that Standard Oil Co.
(Chevron’s predecessor) operated Elk Hills Naval Petroleum
Reserve, a federal enclave, for many decades, and CITGO
distributed gasoline and diesel under its contracts with the
government to multiple naval installations that are federal
enclaves. Relying on several district court opinions, the
Energy Companies contend that because federal law applied
to these activities on federal enclaves, federal law applies to
the Counties’ claims, which are therefore removable under
§ 1331.
We disagree. Unlike in Willis, where the accident that
resulted in the plaintiff’s injury occurred on a federal enclave,
or in Durham, where the exposure that resulted in the
plaintiff’s injury occurred on a federal enclave, the Energy
Companies allege only that some of the defendants engaged
property,” and that “the interference borne is the loss of property and
infrastructure within San Mateo County.”
For its failure to warn claim, San Mateo alleges that the Energy
Companies “failed to adequately warn customers, consumers, elected
officials and regulators of known and foreseeable risk of climate change
and the consequences that inevitably flow from the normal, intended use
and foreseeable misuse of [their] fossil fuel products,” which caused
“damage to publicly owned infrastructure and real property, and the
creation and maintenance of a nuisance that interferes with the rights of
the County, its residents, and of the People.” Finally, for its design defect
claim, San Mateo alleges that the Energy Companies’ “fossil fuel products
are defective because the risks they pose to consumers and to the public,
including and especially to [San Mateo] outweigh their benefits.”
COUNTY OF SAN MATEO V. CHEVRON 31
in some conduct on federal enclaves that may have
contributed to global warming, which allegedly caused the
rising sea levels that resulted in the injuries that are the basis
for the Counties’ claims. The Energy Companies do not
allege how much of that conduct occurred on federal
enclaves. The connection between conduct on federal
enclaves and the Counties’ alleged injuries is too attenuated
and remote to establish that the Counties’ cause of action is
governed by the federal law applicable to any federal enclave.
As a result, the Energy Companies have failed to establish
that a federal issue is “necessarily raised” by the complaints.
Gunn, 568 U.S. at 258.7 We therefore reject this basis for
removal jurisdiction.
B
The Energy Companies next argue that the Counties’
claims were removable under the Outer Continental Shelf
Lands Act (OCSLA). OCSLA gives federal courts
jurisdiction over actions “arising out of, or in connection with
(A) any operation conducted on the outer Continental Shelf
which involves exploration, development, or production of
the minerals, of the subsoil and seabed of the outer
7
We reject the Energy Companies’ passing argument that federal
enclave jurisdiction extends to complaints implicating “powerful federal
interests.” The constitutional basis for federal enclave jurisdiction is
Congress’s power to exercise exclusive legislation over federal enclaves,
U.S. Const. art I, § 8, cl. 17, and we have no authority to extend federal
enclave jurisdiction beyond such limitations.
32 COUNTY OF SAN MATEO V. CHEVRON
Continental Shelf, or which involves rights to such
minerals.”8
According to the Energy Companies, the Counties’ tort
claims fall within this jurisdictional grant. The Energy
Companies reason as follows: The Counties allege that their
injuries were caused in part by the Energy Companies’
cumulative fossil-fuel extraction; and a portion of this
extraction took place on the outer Continental Shelf (OCS)
because some of the Energy Companies have conducted (and
continue to conduct) petroleum exploration, development,
and production on the outer Continental Shelf.9 Therefore,
the Energy Companies argue, the Counties’ claims “aris[e]
8
43 U.S.C. § 1349(b)(1) provides in full:
Except as provided in subsection (c) of this section
[regarding the federal government’s leasing program on
the outer Continental Shelf], the district courts of the
United States shall have jurisdiction of cases and
controversies arising out of, or in connection with
(A) any operation conducted on the outer Continental
Shelf which involves exploration, development, or
production of the minerals, of the subsoil and seabed of
the outer Continental Shelf, or which involves rights to
such minerals, or (B) the cancellation, suspension, or
termination of a lease or permit under this subchapter.
Proceedings with respect to any such case or
controversy may be instituted in the judicial district in
which any defendant resides or may be found, or in the
judicial district of the State nearest the place the cause
of action arose.
9
The outer Continental Shelf is defined as “all submerged lands lying
seaward and outside of the area of lands beneath navigable waters . . . and
of which the subsoil and seabed appertain to the United States and are
subject to its jurisdiction and control.” 43 U.S.C. § 1331(a).
COUNTY OF SAN MATEO V. CHEVRON 33
out of, or in connection with” the Energy Companies’
operations on the outer Continental Shelf.
In evaluating the Energy Companies’ argument, we begin
with the text of the jurisdictional statute, 43 U.S.C.
§ 1349(b)(1). The terms “aris[e] out of, or in connection
with” are not defined in the statute. Nor are the dictionary
definitions helpful. According to the dictionary definitions
around the time OCSLA was enacted, “arise” in this context
means to “spring up; originate,” and “connection” means
“[r]elationship by causality, mutual dependence, logical
sequence, or the like.” Webster’s New Int’l Dictionary of the
English Language (2d ed. 1952). As these definitions
indicate, both terms are broad and indeterminate, and do not
incorporate any principle that would limit federal jurisdiction.
When interpreting phrases such as these, which lack a definite
or fixed ending point, we must identify “a limiting principle
consistent with the structure of the statute and its other
provisions.” Maracich v. Spears, 570 U.S. 48, 60 (2013)
(interpreting the phrase “in connection with”); see also Cal.
Div. of Lab. Standards Enf’t v. Dillingham Constr., N.A., Inc.,
519 U.S. 316, 335 (1997) (Scalia, J., concurring) (“But
applying the ‘relate to’ provision according to its terms was
a project doomed to failure, since, as many a curbstone
philosopher has observed, everything is related to everything
else.”). Thus, in interpreting terms such as “relates to,” “in
connection with,” or “in reference to,” a court must “go
beyond the unhelpful text and the frustrating difficulty of
defining its key term, and look instead to the objectives” of
the statute as a guide to its scope. N.Y. State Conf. of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.
645, 656 (1995). The Supreme Court has approved this
approach to interpreting OCSLA, acknowledging that terms
which have “indeterminacy in isolation” should be
34 COUNTY OF SAN MATEO V. CHEVRON
“interpreted in light of the entire statute.” Parker Drilling
Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1888 (2019).
Applying this interpretive approach, we turn to the
structure and purpose of OCSLA as a whole. The Supreme
Court has explained that “the purpose of OCSLA was ‘to
assert the exclusive jurisdiction and control of the Federal
Government of the United States over the seabed and subsoil
of the outer Continental Shelf, and to provide for the
development of its vast mineral resources.’” Gulf Offshore
Co. v. Mobil Oil Corp., 453 U.S. 473, 479 n.7 (1981) (citation
omitted). According to the Supreme Court’s historical review
of OCSLA, Congress was concerned about the extensive
activity taking place on the outer Continental Shelf, and the
need to identify with clarity the body of law that would
govern such activities. See Rodrigue v. Aetna Cas. & Sur.
Co., 395 U.S. 352, 358 (1969). Congress recognized that “the
full development of the estimated values in the shelf area
[would] require the efforts and the physical presence of
thousands of workers on fixed structures in the shelf area,”
and that “[i]ndustrial accidents, accidental death, peace, and
order present problems requiring a body of law for their
solution.” Id. (cleaned up). After debating whether federal
or state law should be applicable to the platforms and
artificial islands created in the outer Continental Shelf (and to
the workers present there), see id. at 363–64, Congress
determined that federal law should “be applicable in the area,
but that where there is a void, the State law may be
applicable,” id. at 358 (citation omitted).
To implement this determination, Congress expressly
adopted “the federal enclave model” for OCSLA. Parker
Drilling, 139 S. Ct. at 1890. It did so by enacting 43 U.S.C.
§ 1333, which provides that “[t]he Constitution and laws and
COUNTY OF SAN MATEO V. CHEVRON 35
civil and political jurisdiction of the United States are
extended, to the same extent as if the outer Continental Shelf
were an area of exclusive Federal jurisdiction located within
a State” to all areas of the outer Continental Shelf where
operations could occur, including the “subsoil and seabed” of
the outer Continental Shelf, any artificial islands, installations
attached to the seabed “erected thereon for the purpose of
exploring for, developing, or producing resources,” or any
other installations or devices needed to transport the
resources. 43 U.S.C. § 1333(a)(1)(A) (emphasis added).
This language ensured that drilling rigs and equipment on the
outer Continental Shelf were treated “as though they were
federal enclaves in an upland State.” Rodrigue, 395 U.S.
at 355.
The “textual connection between the OCSLA and the
federal enclave model” as set out in § 1333 “suggests that,
like the generally applicable enclave rule, the OCSLA sought
to make all OCS law federal yet also ‘provide a sufficiently
detailed legal framework to govern life’ on the OCS.” Parker
Drilling, 139 S. Ct. at 1890 (citation omitted). Because
§ 1333 adopted the federal enclave model’s legal framework
for the outer Continental Shelf, we read § 1349(b) as
according federal courts the same jurisdiction over actions
and injuries on the outer Continental Shelf as they would
have in other federal enclaves.10 As explained above, supra
at Section II(A)(3), federal courts have federal enclave
jurisdiction over tort claims regarding actions and injuries
10
We presume that Congress was familiar with the scope of federal
jurisdiction over federal enclaves when enacting OCSLA. See Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988) (“We generally
presume that Congress is knowledgeable about existing law pertinent to
the legislation it enacts.”).
36 COUNTY OF SAN MATEO V. CHEVRON
that occur on federal enclaves. Therefore, we read the phrase
“aris[e] out of, or in connection with” in § 1349(b)(1) as
granting federal courts jurisdiction over tort claims only when
those claims arise from actions or injuries occurring on the
outer Continental Shelf.
Reading the phrase “aris[e] out of, or in connection with”
in § 1349(b)(1) as consistent with federal enclave jurisdiction
provides “a limiting principle consistent with the structure of
the statute and its other provisions,” Maracich, 570 U.S. at
60, including OCSLA’s purpose of addressing “industrial
accidents, accidental death, peace, and order,” given “the
physical presence of thousands of workers on fixed structures
in the shelf area,” Rodrigue, 395 U.S. at 358 (cleaned up).
Our interpretation of § 1349(b)(1) is also consistent with the
Supreme Court’s references to the scope of federal court
jurisdiction under OCSLA. As the Supreme Court has
explained, “a personal injury action involving events
occurring on the Shelf is governed by federal law, the content
of which is borrowed from the law of the adjacent State, here
Louisiana.” Gulf Offshore Co., 453 U.S. at 481 (emphasis
added); see also id. (describing OCSLA’s legal framework by
analogizing to a statute providing federal enclave jurisdiction
over “personal injury and wrongful-death actions involving
events occurring within a national park or other place subject
to the exclusive jurisdiction of the United States, within the
exterior boundaries of any State” (emphasis added) (internal
quotation marks omitted)).
Three of our sister circuits have “deem[ed] § 1349 to
require only a ‘but-for’ connection” between operations on
the outer Continental Shelf and a plaintiff’s alleged injuries.
See In re Deepwater Horizon, 745 F.3d 157, 163–64 (5th Cir.
2014) (citation omitted) (collecting cases); see also Bd. of
COUNTY OF SAN MATEO V. CHEVRON 37
Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.)
Inc., 25 F.4th 1238, 1273 (10th Cir. 2022) (adopting the Fifth
Circuit’s approach); Mayor & City Council of Baltimore v.
BP P.L.C., 2022 WL 1039685, at *21 (4th Cir. Apr. 7, 2022)
(following the Fifth and Tenth Circuits in concluding that
“invoking jurisdiction under § 1349(b)(1) requires a but-for
connection between a claimant’s cause of action and
operations on the OCS”). The Energy Companies argue that
this analysis is contrary to Ford Motor Co. v. Montana Eighth
Judicial District Court, which held that the “requirement of
a ‘connection’ between a plaintiff's suit and a defendant's
activities” in order for a court to assert specific personal
jurisdiction over a defendant is not synonymous with but-for
causation. 141 S. Ct. 1017, 1019 (2021) (citation omitted).
While we are skeptical that Ford Motor Co.’s interpretation
of judicial rules delineating the scope of a court’s specific
personal jurisdiction is pertinent in this different statutory
context, we agree that the language of § 1349(b), “aris[e] out
of, or in connection with,” does not necessarily require but-
for causation.11
11
The Fifth Circuit’s conclusion to the contrary is not based on its
construction of the text of § 1349(b), but rather relies on cases construing
43 U.S.C. § 1333(b) (providing that a specified form of compensation was
payable “[w]ith respect to disability or death of an employee resulting
from any injury occurring as the result of operations conducted on the
outer Continental Shelf” (emphasis added)). The Fifth Circuit “adopted
a ‘but for’ test of causation in determining whether a particular injury was
the result of operations on the shelf,” Herb’s Welding v. Gray, 766 F.2d
898, 900 (5th Cir. 1985) (emphasis added) (citation omitted), and then
applied this “but for” test to § 1349(b)(1) without addressing the
differences between the text of those provisions, see Recar v. CNG
Producing Co., 853 F.2d 367, 369 (5th Cir. 1988) (stating that “we have
established a ‘but for’ test to resolve” the question whether a case “aris[es]
out of or in connection with” operations on the OCS” for purposes of
38 COUNTY OF SAN MATEO V. CHEVRON
Despite our different approach to construing § 1349(b),
our sister circuits’ application of § 1349(b)(1) leads to a
materially similar result, because “[t]he decisions finding
jurisdiction under § 1349” feature “either claims with a direct
physical connection to an OCS operation (collision, death,
personal injury, loss of wildlife, toxic exposure) or a contract
or property dispute directly related to an OCS operation.” Bd.
of Cnty. Comm’rs of Boulder Cnty., 25 F.4th at 1273
(collecting cases). Therefore, “despite the seemingly broad
‘but-for’ test,” adopted by our sister circuits, “courts have
made it clear that a dispute must have a sufficient nexus to an
operation on the OCS to fall within the jurisdictional reach of
the OCSLA.” Id. (cleaned up); see also Mayor & City
Council of Baltimore, 2022 WL 1039685 at *21 (“[A] ‘mere
connection’ between a claimant’s case and operations on the
OCS is insufficient to show federal jurisdiction if the
relationship is ‘too remote.’”).12
We now apply our rule to the Energy Companies’
assertions here. The Energy Companies argue that because
the Counties assert that their injuries were caused in part by
the Energy Companies’ cumulative fossil-fuel extraction, and
because a portion of this extraction took place on the outer
Continental Shelf, the Counties’ claims “aris[e] out of, or in
§ 1349(b), but citing only the line of cases construing § 1333(b) (cleaned
up)).
12
Indeed, in Ford Motor Co., the Supreme Court acknowledged the
need to impose limiting principles on indeterminate jurisdictional
language, stating that “the phrase ‘relate to’” in the judge-made rule
requiring a lawsuit to “arise out of or relate to the defendant’s contacts
with the forum,” before a court can assert specific personal jurisdiction
“incorporates real limits, as it must to adequately protect defendants
foreign to a forum.” 141 S. Ct. at 1026 (citation omitted).
COUNTY OF SAN MATEO V. CHEVRON 39
connection with” the Energy Companies’ operations on the
outer Continental Shelf. We reject this argument, because the
connection between such conduct and the injuries alleged by
the plaintiffs here is too attenuated to give rise to jurisdiction.
First, the Counties’ complaints allege injuries occurring
exclusively within their local jurisdictions, not on the outer
Continental Shelf. Second, instead of alleging wrongful
actions on the outer Continental Shelf, the Counties’ claims
focus on the defective nature of the Energy Companies’ fossil
fuel products, the Energy Companies’ knowledge and
awareness of the harmful effects of those products, and their
“concerted campaign” to prevent the public from recognizing
those dangers. These allegations do not refer to actions taken
on the outer Continental Shelf. For these reasons, the Energy
Companies have failed to establish that the Counties’ tort
claims “aris[e] out of, or in connection with” the Energy
Companies’ operations on the outer Continental Shelf for
purposes of jurisdiction under § 1349(b)(1).13
13
Relatedly, we also reject the Energy Companies’ claim that
§ 1349(b)(1) gives federal courts jurisdiction over any claim that threatens
to impair the recovery of federally owned minerals from the outer
Continental Shelf, or that otherwise might affect the oil industry. This
interpretation would give federal courts jurisdiction over any claim that
might affect the finances of an energy company that engaged in operations
there, even if the claim had no direct connection to events on the outer
Continental Shelf, and is contrary to the federal enclave model. See Bd.
of Cnty. Comm’rs of Boulder Cnty., 25 F.4th at 1275 (rejecting an
identical argument).
40 COUNTY OF SAN MATEO V. CHEVRON
C
We now turn to the Energy Companies’ claim that the
district court had subject matter jurisdiction under the federal-
officer removal statute, 28 U.S.C. § 1442(a)(1).14
As currently drafted, § 1442(a)(1) provides for removal
of:
A civil action . . . that is against or directed to
. . . [t]he United States or any agency thereof
or any officer (or any person acting under that
officer) of the United States or of any agency
thereof, in an official or individual capacity,
for or relating to any act under color of such
office or on account of any right, title or
authority claimed under any Act of Congress
for the apprehension or punishment of
criminals or the collection of the revenue.
28 U.S.C § 1442.
In order to invoke § 1442(a)(1), a private person must
establish: “(a) it is a person within the meaning of the statute;
(b) there is a causal nexus between its actions, taken pursuant
to a federal officer’s directions, and [the] plaintiff’s claims;
and (c) it can assert a colorable federal defense.” Riggs v.
Airbus Helicopters, Inc., 939 F.3d 981, 986–87 (9th Cir.
14
The Supreme Court vacated our prior opinion, County of San Mateo
v. Chevron Corp., 960 F.3d 586 (9th Cir. 2020), but did not address our
reasoning regarding the federal officer removal statute. See Baltimore,
141 S. Ct. at 1543. Therefore, we largely reprise our reasoning in our
prior opinion on this issue.
COUNTY OF SAN MATEO V. CHEVRON 41
2019) (quoting Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095,
1099 (9th Cir. 2018)). To demonstrate a causal nexus, the
private person must show: (1) that the person was “acting
under” a federal officer in performing some “act under color
of federal office,” and (2) that such action is causally
connected with the plaintiff’s claims against it. See
Goncalves ex rel. Goncalves v. Rady Child.’s Hosp. San
Diego, 865 F.3d 1237, 1244–50 (9th Cir. 2017).
The parties focus on the first prong: whether the Energy
Companies were “acting under” a federal officer’s directions.
We begin by providing some background. The federal officer
removal statute has existed in some version since 1815.
Willingham v. Morgan, 395 U.S. 402, 405 (1969). Although
Congress has amended the statute on a number of occasions,
see Watson v. Philip Morris Cos., 551 U.S. 142, 147–49
(2007), most recently in 2011, see Removal Clarification Act
of 2011 § 2, the purpose of the statute has remained
essentially the same: its “basic purpose is to protect the
Federal Government from the interference with its operations
that would ensue were a State able, for example, to arrest and
bring to trial in a State court for an alleged offense against the
law of the State, officers and agents of the Government acting
. . . within the scope of their authority.” Watson, 551 U.S.
at 150 (cleaned up) (quoting Willingham, 395 U.S. at 406).
Congress thought that allowing a federal officer to remove a
state action was necessary because “[s]tate-court proceedings
may reflect ‘local prejudice’ against unpopular federal laws
or federal officials” and “deprive federal officials of a federal
forum in which to assert federal immunity defenses.” Id.(citation omitted). Moreover, state-court proceedings may
have the effect of impeding or delaying the enforcement of
federal law. Id. The federal officer removal statute should be
“liberally construed” to fulfill its purpose of allowing federal
42 COUNTY OF SAN MATEO V. CHEVRON
officials and agents who are being prosecuted in state court
for acts taken in their federal authority to remove the case to
federal court. Id. at 147 (citation omitted).
When Congress first enacted § 1442(a)(1), the phrase
“officer of the United States” was generally understood as a
term of art that referred to federal officers who “exercis[ed]
significant authority.” Int’l Primate Prot. League v. Adm’rs
of Tulane Educ. Fund, 500 U.S. 72, 81 (1991) (quoting
Buckley v. Valeo, 424 U.S. 1, 126 (1976)). In 1948, Congress
amended the statute to include the language “person[s] acting
under” any officer of the United States. Act of June 25, 1948,
ch. 646, § 1442, 62 Stat. 869, 938 (codified at 28 U.S.C.
§ 1442). At the time, this change was understood as
extending the section to apply to employees, as well as
officers. Int’l Primate Prot. League, 500 U.S. at 84 (quoting
H.R. Rep. No. 80-308, at A134 (1947)).
The Supreme Court subsequently interpreted the term
“person acting under that officer” as extending to a “private
person” who has certain types of close relationships with the
federal government. See Watson, 551 U.S. at 152–53. The
Supreme Court has identified a number of factors courts
should consider in determining whether a private person is
“acting under” a federal officer for purposes of § 1442(a)(1).
Among other things, the Court considers whether the person
is acting on behalf of the officer in a manner akin to an
agency relationship. See id. at 151 (private person must be
authorized to act “with or for [federal officers]” (alteration in
original) (citation omitted)); see also Goncalves, 865 F.3d
at 1246–47 (holding that a private person qualified as “acting
under” a federal officer when it was “serving as the
government’s agent”); Cabalce v. Thomas E. Blanchard &
Assocs., Inc., 797 F.3d 720, 729 (9th Cir. 2015) (noting that
COUNTY OF SAN MATEO V. CHEVRON 43
a company’s independent-contractor status supported the
conclusion that it was not acting under a federal officer). The
Court also considers whether the person is subject to the
officer’s close direction, such as acting under the “subjection,
guidance, or control” of the officer, or in a relationship which
“is an unusually close one involving detailed regulation,
monitoring, or supervision.” Watson, 551 U.S. at 151, 153(citation omitted); see also Leite, 749 F.3d at 1120, 1124
(holding that a defense contractor properly removed a case
under § 1442(a)(1) based, in part, on “the Navy’s detailed
specifications regulating the warnings that equipment
manufacturers were required to provide”). Third, the Court
considers whether the private person is assisting the federal
officer in fulfilling “basic governmental tasks” that “the
Government itself would have had to perform” if it had not
contracted with a private firm. Watson, 551 U.S. at 153–54;
see also Goncalves, 865 F.3d at 1246–47 (holding that private
person fulfilled a basic governmental task by pursuing
subrogation claims on behalf of a government agency).
Finally, taking into account the purpose of §1442(a)(1), the
Court has considered whether the private person’s activity is
so closely related to the government’s implementation of its
federal duties that the private person faces “a significant risk
of state-court ‘prejudice,’” just as a government employee
would in similar circumstances, and may have difficulty in
raising an immunity defense in state court. Watson, 551 U.S.
at 152 (citation omitted).
As the Supreme Court has indicated, and circuit courts
have held, a government contractor qualifies as a person
“acting under” an officer under certain circumstances. See id.at 153–54. Watson cited with approval a Fifth Circuit case,
Winters v. Diamond Shamrock Chemical Co., which held that
a government contractor could remove a state action under
44 COUNTY OF SAN MATEO V. CHEVRON
§ 1442(a) because the contractor was acting on behalf of the
government to produce Agent Orange, a carcinogenic
herbicide used as part of the war strategy in Vietnam, and was
acting under the close direction of the federal government
which had provided “detailed specifications concerning the
make-up, packaging, and delivery of Agent Orange,” as well
as “on-going supervision . . . over the formulation, packaging,
and delivery of Agent Orange.” 149 F.3d 387, 399–400 (5th
Cir. 1998), overruled by Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286 (5th Cir. 2020) (en banc). Further, the
contractor provided a product that was “used to help conduct
a war” and at least arguably “performed a job that, in the
absence of a contract with a private firm, the Government
itself would have had to perform.” Watson, 551 U.S. at 154;
see also Goncalves, 865 F.3d at 1246–47 (holding that a
private contractor was “acting under” a federal officer when
it was serving as an agent for the government and assisting
the government in fulfilling basic duties).
By contrast, a person is not “acting under” a federal
officer when the person enters into an arm’s-length business
arrangement with the federal government or supplies it with
widely available commercial products or services. See
Cabalce, 797 F.3d at 727–29; cf. Goncalves, 865 F.3d
at 1244–47; Winters, 149 F.3d at 398–400. Nor does a
person’s “compliance with the law (or acquiescence to an
order)” amount to “‘acting under’ a federal official who is
giving an order or enforcing the law.” Watson, 551 U.S. at
152. This is true “even if the regulation is highly detailed and
even if the private firm’s activities are highly supervised and
monitored.” Id. at 153. We may not interpret § 1442(a) so as
to “expand the scope of the statute considerably, potentially
bringing within its scope state-court actions filed against
private firms in many highly regulated industries.” Id.
COUNTY OF SAN MATEO V. CHEVRON 45
The Energy Companies argue that they meet the criteria
under § 1442(a) to remove the Counties’ complaints because
they were “persons acting under” a federal officer based on
three agreements with the government.15 They also argue that
there is a causal nexus between their actions under those
agreements and the Counties’ claims. We consider each of
these agreements in turn.
We first consider CITGO’s fuel supply agreements with
the Navy Exchange Service Command (NEXCOM). Under
these contracts, CITGO agreed to supply gasoline and diesel
fuel to NEXCOM for service stations on approximately forty
U.S. Navy installations. The government resold the CITGO
fuel at NEXCOM facilities to individual service members.
The Energy Companies point to three sets of contractual
requirements in the fuel supply agreements which they claim
establish the “subjection, guidance or control” necessary to
invoke federal jurisdiction, namely: (1) “fuel specifications”
that required compliance with specified American Society for
Testing and Material Standards and required that NEXCOM
have a qualified independent source analyze the products for
compliance with those specifications; (2) provisions that give
the Navy the right to inspect delivery, site, and operations;
and (3) branding and advertising requirements.16
15
We have held that corporations are “person[s]” under § 1442(a)(1),
Goncalves, 865 F.3d at 1244, so there is no dispute that the Energy
Companies meet this requirement.
16
The Energy Companies cite the following sections in the fuel
supply agreements. First, the fuel specification provisions require CITGO
to “provide high quality gasoline product identical to or the same product
as supplied [by] the contractor[’]s commercially operated gasoline service
stations [(e.g., regular leaded, regular unleaded, and premium unleaded)].”
The “[m]otor fuel products supplied” by CITGO were required to comply
46 COUNTY OF SAN MATEO V. CHEVRON
This argument fails. The contracts evince an arm’s-length
business relationship to supply NEXCOM with generally
available commercial products. Supplying gasoline to the
Navy for resale to its employees is not an activity so closely
related to the government’s implementation of federal law
that the person faces “a significant risk of state-court
‘prejudice.’” Watson, 551 U.S. at 152 (citation omitted).
Accordingly, we hold that CITGO was not “acting under” a
federal officer by supplying gasoline and diesel fuel to
NEXCOM pursuant to fuel supply contracts.
Second, the Energy Companies point to the 1994 unit
agreement17 for the petroleum reserves at Elk Hills between
Standard Oil Company of California (Chevron Corporation’s
with the generic standards promulgated by the American Society for
Testing and Materials, and the Navy agreed to “have a qualified
independent source analyze the products provided [by CITGO],” including
any product that was “suspected of being faulty/inferior.” Second, the
inspection provisions gave the Navy the right to “visually check truck
compartment(s) before and after deliveries” of fuel, and to conduct
“general operational reviews,” which “might also include inspections of
. . . vehicles.” Third, the branding provisions require CITGO to “supply
all necessary equipment, including signage, for each facility,” to
“incorporate the Government logo on at least three . . . provided signage
fixtures,” and to supply “[a] standard service station rotating-fixed neon
or incandescent street corner station identification sign . . . for each
Government fueling station.” And CITGO could submit “proposals on
[CITGO] branded product[s],” but the government was not obligated to
market “said product under [CITGO’s] brand or trade name.”
17
“A unit agreement was at that time and still is a common
arrangement in the petroleum industry where two or more owners have
interests in a common pool. Under such an arrangement, the pool is
operated as a unit and the parties share production and costs in
agreed-upon proportions.” United States v. Standard Oil Co. of Cal.,
545 F.2d 624, 627 (9th Cir. 1976) (per curiam).
COUNTY OF SAN MATEO V. CHEVRON 47
predecessor in interest) and the U.S. Navy. We have detailed
the history of this unit agreement at length in our prior
decisions. See Standard Oil Co. of Cal., 545 F.2d at 626–28.
In brief, Standard owned one-fifth and the Navy owned four-
fifths of the approximately 46,000 acres comprising the Elk
Hills reserves. As is common in the oil exploration and
production industry, the two landowners entered into a unit
agreement to coordinate operations in the oil field and
production of the oil. Because the Navy sought to limit oil
production in order to ensure the availability of oil reserves
in the event of a national emergency, the unit agreement
required that both Standard and the Navy curtail their
production and gave the Navy “exclusive control over the
exploration, prospecting, development, and operation of the
Reserve.” To compensate Standard for reducing production,
the unit agreement gave Standard the right to produce a
specified amount of oil per day (an average of 15,000 barrels
per day). Both parties could dispose of the oil they extracted
as they saw fit, and neither had a “preferential right to
purchase any portion of the other’s share of [the] production.”
Standard’s activities under the unit agreement did not give
rise to a relationship where Standard was “acting under” a
federal officer for purposes of § 1442. Standard was not
acting on behalf of the federal government in order to assist
the government in performing a basic government function.
Rather, Standard and the government reached an agreement
that allowed them to coordinate their use of the oil reserve in
a way that would benefit both parties: the government
maintained oil reserves for emergencies, and Standard
ensured its ability to produce oil for sale. When Standard
extracted oil from the reserve, Standard was acting
independently, see Cabalce, 797 F.3d at 728–29, not as the
Navy’s “agent,” Goncalves, 865 F.3d at 1246; see also H.R.
48 COUNTY OF SAN MATEO V. CHEVRON
Rep. No. 112-17, pt. 1, at 3 (2011) (“Removal is allowed only
when the acts of Federal defendants are essentially ordered or
demanded by Federal authority . . .”). And Standard’s arm’s-
length business arrangement with the Navy does not involve
conduct so closely related to the government’s
implementation of federal law that the Energy Companies
would face “a significant risk of state-court ‘prejudice.’”
Watson, 551 U.S. at 152 (citation omitted).18
Finally, we consider the Energy Companies’ lease
agreements, entitled “Oil and Gas Lease of Submerged Lands
Under the Outer Continental Shelf Lands Act.” Under these
standard-form leases, the government grants the lessee the
right to explore and produce oil and gas resources in the
submerged lands of the outer Continental Shelf, and in
exchange the lessee agrees to pay the government rents and
royalties. The Energy Companies argue that the lessee
Energy Companies were “acting under” a federal officer
because the leases require that the lessees drill for oil and gas
pursuant to government-approved exploration plans and that
the lessees sell some of their production to certain buyers;
specifically, lessees must offer twenty percent of their
18
At oral argument, the Energy Companies argued for the first time
that Standard was “acting under” a federal officer pursuant to the Naval
Petroleum Reserves Production Act of 1976, Pub. L. 94-258, § 201,
90 Stat. 303 (1976), which directed the Secretary of the Navy to “produce
such reserves [including the Elk Hill reserve] at the maximum efficient
rate consistent with sound engineering practices for a period not to exceed
six years” and to “sell or otherwise dispose of the United States share of
such petroleum produced from such reserves.” § 201, 90 Stat. at 308.
Nothing in the record indicates that the Secretary of the Navy “ordered or
demanded,” H.R. Rep. No. 112-17, pt. 1, at 3 (2011), reprinted in 2011
U.S.C.C.A.N. 420, 422, that Standard produce oil on behalf of the Navy.
Therefore, the Energy Companies’ reliance on this Act is misplaced.
COUNTY OF SAN MATEO V. CHEVRON 49
production to “small or independent refiners,” and must give
the United States the right of first refusal in time of war or
“when the President of the United States shall so prescribe.”
This argument also fails. The leases do not require that
lessees act on behalf of the federal government, under its
close direction, or to fulfill basic governmental duties. Nor
are lessees engaged in an activity so closely related to the
government’s function that the lessee faces “a significant risk
of state-court ‘prejudice.’” Watson, 551 U.S. at 152 (citation
omitted). In fact, the lease requirements largely track
statutory requirements, for instance, that the lessee offer
20 percent of the “crude oil, condensate, and natural gas
liquids produced on [the] lease . . . to small or independent
refiners,” 43 U.S.C. § 1337(b)(7), and that “[i]n time of war,
or when the President shall so prescribe, the United States
shall have the right of first refusal to purchase at the market
price all or any portion of any mineral produced from the
outer Continental Shelf,” § 1341(b). Mere “compl[iance]
with the law, even if the laws are ‘highly detailed’ and thus
leave [an] entity ‘highly regulated,’” does not show that the
entity is “acting under” a federal officer. Goncalves,
865 F.3d at 1245 (quoting Watson, 551 U.S. at 151–53). We
conclude that the federal government’s willingness to lease
federal property or minimal rights to a private entity for that
entity’s commercial purposes does not, without more,
constitute the kind of assistance required to establish that the
private entity is “acting under” a federal officer.
Accordingly, the leases on which the defendants rely do not
give rise to the “unusually close” relationship where the
lessee was “acting under” a federal officer. Watson, 551 U.S.
at 153.
50 COUNTY OF SAN MATEO V. CHEVRON
Because we conclude that the Energy Companies have not
carried their burden of proving by a preponderance of the
evidence that they were “acting under” a federal officer, we
do not reach the question whether actions pursuant to the fuel
supply agreement, unit agreement, or lease agreement had a
causal nexus with the Counties’ complaints, or whether the
Energy Companies can assert a colorable federal defense.
See Fidelitad, 904 F.3d at 1099.
D
We turn next to the Energy Companies’ argument that the
district court had removal jurisdiction over the complaints
under 28 U.S.C. § 1452(a) because they are related to
bankruptcy cases involving Peabody Energy Corp., Arch
Coal, and Texaco, Inc.
Under § 1452(a), “[a] party may remove any claim or
cause of action in a civil action” (subject to certain
exceptions) if the district court “has jurisdiction of such claim
or cause of action under [28 U.S.C. § 1334].” Under
§ 1334(b), in turn, “the district courts shall have original but
not exclusive jurisdiction of all civil proceedings arising
under title 11, or arising in or related to cases under title 11,”
again with exceptions not applicable here.19 In sum, a
19
28 U.S.C. § 1334(b) provides:
Except as provided in subsection (e)(2) [(relating to
claims arising from employment of professionals under
11 U.S.C. § 327)], and notwithstanding any Act of
Congress that confers exclusive jurisdiction on a court
or courts other than the district courts, the district courts
shall have original but not exclusive jurisdiction of all
COUNTY OF SAN MATEO V. CHEVRON 51
defendant may remove a civil action if the district court has
jurisdiction over the civil action because it is “related to cases
under title 11.” Id.In defining the term “related to” in this context, we have
differentiated between bankruptcy cases that are pending
before a plan has been confirmed and bankruptcy cases where
the plan has been confirmed and the debtor discharged from
bankruptcy. See In re Pegasus Gold Corp., 394 F.3d 1189,
1193–94 (9th Cir. 2005). While a bankruptcy case is
pending, we have defined “related to” broadly: A proceeding
is “related to” a bankruptcy case when “the outcome of the
proceeding could conceivably have any effect on the estate
being administered in bankruptcy.” In re Fietz, 852 F.2d 455,
457 (9th Cir. 1988) (citation omitted). But the same term
“related to” has a more limited meaning after a plan has been
confirmed. See Pegasus Gold, 394 F.3d at 1194. A
proceeding that arises after a plan has been confirmed is
“related to” a bankruptcy case only if there is “a close nexus
to the bankruptcy plan or proceeding.” Id. at 1194 (quoting
In re Resorts Int’l, Inc., 372 F.3d 154, 167 (3d Cir. 2004)).
In defining “close nexus,” we have indicated that “matters
affecting ‘the interpretation, implementation, consummation,
execution, or administration of the confirmed plan will
typically have the requisite close nexus’” to a bankruptcy
case. Id. at 1194 (quoting Resorts Int’l, 372 F.3d at 167).
We take a holistic approach to determining whether a
proceeding that arises after a plan has been confirmed has a
close nexus to that plan. We have explained that the close
nexus test “requires particularized consideration of the facts
civil proceedings arising under title 11, or arising in or
related to cases under title 11.
52 COUNTY OF SAN MATEO V. CHEVRON
and posture of each case,” and “can only be properly applied
by looking at the whole picture.” In re Wilshire Courtyard,
729 F.3d 1279, 1289 (9th Cir. 2013). At the same time, we
recognize that it is necessary to avoid an interpretation of
“related to” in the post-confirmation context that “could
endlessly stretch a bankruptcy court’s jurisdiction.” Pegasus
Gold, 394 F.3d at 1194 n.1; see also Resorts Int’l, 372 F.3d
at 164 (holding that “bankruptcy court jurisdiction ‘must be
confined within appropriate limits and does not extend
indefinitely, particularly after the confirmation of a plan and
the closing of a case’” (citation omitted)). Thus, we have
held that a “bankruptcy court did not retain ‘related to’
jurisdiction for [a] breach of contract action that could have
existed entirely apart from the bankruptcy proceeding and did
not necessarily depend upon resolution of a substantial
question of bankruptcy law.” In re Ray, 624 F.3d 1124, 1135
(9th Cir. 2010).
We now turn to the Energy Companies’ claims that the
Counties’ complaints have a sufficiently close nexus to the
Peabody Energy and Texaco, Inc. bankruptcy cases.20 First,
the Energy Companies claim that the Counties’ complaints
have a sufficiently close nexus to the Peabody Energy Corp.’s
bankruptcy case because the complaints require an
interpretation of Peabody’s bankruptcy plan. According to
the Energy Companies, a bankruptcy court has already
interpreted the plan in response to the Counties’ complaints.
Specifically, the Counties here filed their complaints a few
months after Peabody’s bankruptcy plan was confirmed and
became effective in April 2017. In re Peabody Energy Corp.,
No. 16-42529-399, 2017 WL 4843724 at *1 (Bankr. E.D. Mo.
20
The Energy Companies do not raise a distinct argument as to Arch
Coal, so we do not address this issue.
COUNTY OF SAN MATEO V. CHEVRON 53
Oct. 24, 2017). In July 2017, Peabody filed a motion to
enjoin the Counties from prosecuting their complaint against
Peabody and to dismiss those actions with prejudice on the
ground that their claims had been discharged in bankruptcy.
Id. The bankruptcy court granted the motion and directed the
Counties to dismiss their causes of action against Peabody
Energy with prejudice. See id.21 The Energy Companies
allege that given the bankruptcy court’s need to interpret
Peabody Energy’s confirmed plan, there is a close nexus
between the plan and the Counties’ complaints.
We disagree. As stated above, we take a holistic look at
“the whole picture.” Wilshire Courtyard, 729 F.3d at 1289.
As a general rule, proceedings that merely require the court
to read a confirmed plan to determine whether it bars certain
claims that arose before the confirmation date are not
proceedings “affecting the interpretation [or] implementation”
of a plan. Pegasus Gold, 394 F.3d at 1194 (cleaned up)
(emphasis added). Typically, where the district court’s
review of a plan involves merely the application of the plan’s
plain or undisputed language, and does not require any
resolution of disputes over the meaning of the plan’s terms,
the review does not “depend upon resolution of a substantial
question of bankruptcy law.” Ray, 624 F.3d at 1135.
21
The Eighth Circuit affirmed this ruling on appeal. See In re
Peabody Energy Corp., 958 F.3d 717 (8th Cir. 2020). The Counties
therefore dismissed Peabody Energy and Arch Coal from the complaint
in June 2020. But at the time of the district court’s remand order (on July
10, 2018), the Counties were still appealing the bankruptcy court’s order
directing the Counties to dismiss their complaint against Peabody. In
determining whether the district court had removal jurisdiction, we must
consider the events at the time of its ruling. See Spencer v. U.S. Dist. Ct.
for the N. Dist. of Cal., 393 F.3d 867, 871 (9th Cir. 2004); County of San
Mateo v. Chevron Corp., 294 F. Supp. 3d 934 (N.D. Cal. 2018).
54 COUNTY OF SAN MATEO V. CHEVRON
Therefore, in the usual case, such a review would lack the
close nexus with the bankruptcy case necessary for “related
to” jurisdiction.
Here, the Energy Companies have not argued that the
district court would have to interpret disputed language in
Peabody Energy’s confirmed plan in order to determine
whether the Counties’ complaints were barred. Nor could
they, because at the time of removal, Peabody Energy had
already elected to seek an order enforcing the discharge and
injunction provisions of the Chapter 11 plan in bankruptcy
court. This means that at the time of removal, the district
court was not presented with any matters requiring
interpretation of the confirmed plan, which was taking place
on a different jurisdictional pathway. And even if the district
court had been required to review a plan, the Energy
Companies have not argued that such a review would
“depend upon resolution of a substantial question of
bankruptcy law.” Id. Accordingly, under the circumstances
of this case, the complaints before the district court were not
“related to” Peabody Energy’s bankruptcy case for purposes
of § 1334(b), and the district court did not have removal
jurisdiction over the complaints under § 1452 on that basis.
We next turn to the Energy Companies’ argument that the
Counties’ complaints have a sufficiently close nexus to
Texaco, Inc.’s bankruptcy case. According to the Energy
Companies, Texaco, Inc.’s plan (which was confirmed some
time in the 1980s) bars various claims arising against Texaco
prior to March 15, 1988, so the Counties’ proceedings would
involve interpretation of Texaco’s plan. Again, we disagree.
As with Peabody Energy, the Energy Companies have not
argued that the district court would have to interpret disputed
language in Texaco’s confirmed plan in order to determine
COUNTY OF SAN MATEO V. CHEVRON 55
whether the Counties’ complaints were barred. Moreover,
Texaco’s relationship to the complaints is attenuated: the
Counties have not named Texaco in their complaints, and the
Energy Companies claim Texaco is a defendant only because
the complaints allege that Chevron’s subsidiaries also
engaged in culpable conduct. The district court would not
have occasion to look at Texaco’s plan unless it first
determined that Texaco was a proper defendant who was
liable for damages, and also determined that the Counties’
claims arose before 1988. Under our “particularized
consideration of the facts and posture” of this case, Wilshire
Courtyard, 729 F.3d at 1289, we conclude that the Counties’
case does not have the close nexus to Texaco’s confirmed
plan necessary to give the district court jurisdiction under
§ 1334(b) or removal jurisdiction under § 1452. Therefore,
we reject this basis of jurisdiction.22
E
Finally, we turn to the Energy Companies’ argument that
the district court had admiralty jurisdiction over this case.
Only Marathon Petroleum Corporation preserved this
argument by raising admiralty jurisdiction as a basis for
22
Because we decide on this ground, we need not reach the question
whether removal of the claim under § 1334 is barred by § 1452(a), which
prohibits the removal of a civil action by a governmental unit “to enforce
such governmental unit’s police or regulatory power.” Nor do we need to
address 28 U.S.C. § 1334(c)(2), which provides that “[u]pon timely
motion of a party” the district court must abstain from hearing a
proceeding based on a state law claim where the only source of
jurisdiction is § 1334.
56 COUNTY OF SAN MATEO V. CHEVRON
removal in its notice of removal.23 According to Marathon,
because the Counties’ claims are based on fossil fuel
extraction that occurs on vessels engaged in maritime
activities, they fall within the Constitution’s grant of original
jurisdiction over “all Cases of admiralty and maritime
Jurisdiction.” U.S. Const. art. III, § 2, cl.1; see also
28 U.S.C. § 1333(1).24
We reject this argument because maritime claims brought
in state court are not removable to federal court absent an
independent jurisdictional basis. The relevant jurisdictional
statute, 28 U.S.C. § 1333(1), gives a district court original
jurisdiction of “[a]ny civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases all other remedies to
which they are otherwise entitled.” 28 U.S.C. § 1333(1). The
“saving to suitors” clause of § 1333(1) “leave[s] state courts
‘competent’ to adjudicate maritime causes of action in
proceedings ‘in personam,’ that is, where the defendant is a
person, not a ship or some other instrument of navigation.”
23
The other Energy Companies failed to invoke admiralty jurisdiction
and therefore forfeited this ground of removal. Contrary to the Energy
Companies’ argument, their reference to “federal common law” in their
notice of removal is insufficient to invoke this basis of jurisdiction. See
O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988); see
also 28 U.S.C. § 1446(a) (requiring that a notice of removal contain “a
short and plain statement of the grounds for removal”).
24
28 U.S.C. § 1333(1) provides:
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which
they are otherwise entitled.
COUNTY OF SAN MATEO V. CHEVRON 57
Ghotra by Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050,
1054 (9th Cir. 1997) (quoting Madruga v. Superior Ct. of
Cal., 346 U.S. 556, 560–61 (1954)). This means that when a
plaintiff brings a maritime cause of action against a person in
state court, a federal court lacks admiralty jurisdiction over
that claim. See id. at 1055–56. In order to remove such a
claim to federal court, the defendant must assert some other
basis of jurisdiction, such as diversity jurisdiction. See id.;
see also Morris v. Princess Cruises, Inc., 236 F.3d 1061,
1069 (9th Cir. 2001).
Even assuming that the Counties’ claims in this case
qualify as maritime claims, the Counties chose to bring these
claims in state court. Under the “saving to suitors” clause,
these maritime claims are not removable to federal court
based on admiralty jurisdiction alone.25
III
We have long held that “removal statutes should be
construed narrowly in favor of remand to protect the
jurisdiction of state courts.” Harris v. Bankers Life and Cas.
Co., 425 F.3d 689, 698 (9th Cir. 2005). This rule of
construction is based on the long-standing principle that
“[d]ue regard for the rightful independence of state
governments, which should actuate federal courts, requires
that they scrupulously confine their own jurisdiction to the
25
The Energy Companies do not “specifically and distinctly,” United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005), argue that the
“saving to suitors” clause only preserved the right to pursue non-maritime
remedies, or that the Federal Courts Jurisdiction and Venue Clarification
Act of 2011 amended the removal statute, 28 U.S.C. § 1441, so as to allow
removal based on admiralty jurisdiction alone. Therefore, those
arguments are waived. See id.58 COUNTY OF SAN MATEO V. CHEVRON
precise limits which the statute [authorizing removal
jurisdiction] has defined.” Healy v. Ratta, 292 U.S. 263, 270
(1934). In keeping with these principles, the Supreme Court
has repeatedly affirmed its “deeply felt and traditional
reluctance . . . to expand the jurisdiction of federal courts
through a broad reading of jurisdictional statutes.” Merrill
Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S.
374, 389–90 (2016) (citation omitted). Our adherence to this
doctrine does not change merely because plaintiffs raise novel
and sweeping causes of action. We therefore reject the broad
interpretations of removal jurisdiction urged on us by the
Energy Companies and affirm the district court’s remand
order.
AFFIRMED.