Fifth Circuit Again Dodges Removal on the Basis of Admiralty Jurisdiction
Port of Corpus Christi Authority of Nueces County, Texas v. The Port of Corpus Christi L.P., 2023 U.S. App. LEXIS 348 * , __ F.4th __ , 2023 WL 116726 (5th Cir. Jan. 6, 2023)
The Port of Corpus Christi Authority of Nueces County (a state agency) sued The Port of Corpus Christi, L.P. (a private entity) and Kenneth Berry in state court for trespass and encroachment on its submerged lands. The U.S. Corps of Engineers issued a permit to a third party to conduct maintenance dredging operations and removal of sea bottom which was deposited on Berry Island. The plaintiff Port Authority asserted that the spoil encroached on its submerged lands. Defendants removed to federal court asserting three bases of federal jurisdiction: the Federal Officer Removal Statute, federal question and admiralty jurisdiction.
The trial judge granted the motion to remand which was appealed. The appeals court affirmed the remand. It held that the dredging was not a government operation; rather it was conducted by a private party. Acting in accordance with the Corps' permit is not government action and does not support removal under the Federal Officer Removal Statute.
With respect to federal question jurisdiction, the court again upheld the trial court. The claim is exclusively a state law claim and does not involve any federal law.
Finally, the appellate panel punted (again) on the issue of whether a removal was proper under the federal court's admiralty jurisdiction. The trial judge determined that the defendant "abandoned this basis of removal" by failing to address it in response to the claimant's motion to remand or sur-reply. The panel stated that the defendants failed to address the Port Authority's legal argument. In any event, the sole basis for admiralty jurisdiction was that the island is located in navigable waters, a thin argument at best.
The panel affirmed the remand to state court.
