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State May Control Pilots Past Three-Mile Seaward Boundary
Gillis et al. v. State of La., 294 F.3d 755 (5th Cir. 2002).

Jason Dare, 3L

The Fifth Circuit recently reviewed whether Louisiana may regulate boat pilots outside its three mile state water boundary in the Gulf of Mexico. The Court found that even though a state retains title to lands submerged under water up to three miles beyond its shoreline, that state's right to control navigation may extend past the three-mile line.

Background
The Calcasieu Ship Channel (CSC) runs from the Port of Lake Charles, Louisiana, down through the Calcasieu River and out 33 miles into the Gulf of Mexico. The State of Louisiana owns the land beneath the Port and the River, because each is a navigable waterway, and the land beneath the Gulf of Mexico up to three miles past its coastline, pursuant to the Submerged Lands Act. All of the CSC area is collectively referred to as the "Inner Bar" while the area of the CSC past the three-mile limit is referred to as the "Outer Bar."

The State of Louisiana hired boat pilots, the individual plaintiffs in this suit, to direct sea-going vessels through the CSC, into the Port of Lake Charles, and back out to sea again. Pursuant to an interpretation of existing Louisiana law, the pilots' duties extended to vessels in the Outer Bar as well as the Inner Bar. In fact, the Louisiana Supreme Court held that the Louisiana legislature intended to regulate the pilots' duties in the Outer Bar. Accordingly, the pilots filed the current action in Louisiana state court. They wanted the court to declare (1) that the State of Louisiana could not compel them to pilot ships outside of the state's three-mile territorial line; (2) that pilotage outside the three-mile boundary was an operation of the U.S. Coast Guard; and (3) that Louisiana's jurisdiction over the CSC ended at the three mile line.

The defendants immediately had the case removed to federal court based on federal question jurisdiction. There was, however, an issue as to whether one of the defendants filed consent to remove the case within the statutory, 30-day time frame. Essentially, the attorney for the Board of River Port Pilot Commissioners and Examiners (hereinafter "Board") filed a timely consent to remove, but did not have actual authority to do so until 39 days after the statutory deadline. There was also a question as to whether federal question jurisdiction truly existed. Because of these issues, the plaintiffs filed a motion to remand the case back to state court. Furthermore, both sides filed motions for summary judgment, asking the district judge to rule on the facts of the case. The U.S. District Court for the Middle District of Louisiana held that removal to federal court was appropriate and granted summary judgment in favor of the defendants. The pilots appealed to the Fifth Circuit.

Right to Regulate Navigation
The pilots argued that summary judgment should not have been granted for the defendants. Specifically, the pilots stated that when Congress enacted the Submerged Lands Act, it intended to prohibit Louisiana from controlling pilotage in the Outer Bar. Finding otherwise, the Fifth Circuit held that the Submerged Lands Act only deals with ownership rights and rights to natural resources in lands within the state's three-mile boundaries. Moreover, because the Submerged Lands Act never addressed pilotage or the right to control navigation, the pilots' belief that the Act controlled these activities was incorrect. Accordingly, the Fifth Circuit ruled that Louisiana's 3-mile boundary line did not affect the state's right to control navigation.

Second, the pilots pointed to 46 U.S.C. § 8501, which states: "pilots in bays, rivers, harbors, and ports of the [U.S.] shall be regulated only in conformity with the laws of the States." Because there is no particular reference to areas like the Outer Bay, the pilots argued that Congress must not have wanted the states to retain control over pilotage there. In its holding, the Fifth Circuit addressed the intentions of Congress when it enacted the Lighthouse Act of 1789. The language of the Act, which is practically identical to the language of § 8501(a), does not restrict a state's preexisting power over pilotage, unless otherwise stated by Congress. Because Congress has not indicated otherwise, the pilots' argument failed.

The pilots' final contention was that Louisiana's regulation of pilotage in the Outer Bar was at odds with federal interests in the same area. However, the Fifth Circuit again pointed to the fact that Congress has not regulated pilotage for more than 200 years. Furthermore, the waters of the Gulf of Mexico surrounding the Outer Bar of the CSC are extremely shallow. Louisiana has a justifiable interest in assuring safe travel to and from the Port of Lake Charles through these shallow waters. Accordingly, Louisiana may regulate pilotage in the CSC past its three-mile seaward territorial boundary.

ENDNOTES
1. 43 U.S.C. § 1312 (2002) (stating that the "seaward boundary of each original coastal State is approved and confirmed as a line three geographical miles distant from its coast line").
2. CITGO Petroleum Corp. v. La. Pub. Serv. Comm'n, 815 So. 2d 19 (La. 2002).
3. Once a defendant receives a complaint for a state court cause of action, he or she has 30 days to file for removal to federal court. 28 U.S.C. § 1446 (2002). Anyone with authority to act on behalf of other defendants must also file some written indication that he or she consents to such removal, and must do so within the same time period. 28 U.S.C. § 1446(b) (2002).
4. In affirming the district court's ruling on removal to federal court, the Fifth Circuit held that because two of the three members of the Board gave authority to the attorney to file consent before the appropriate deadline and the entire Board eventually approved the attorney's actions, the attorney's actions were proper. Moreover, the Fifth Circuit followed Supreme Court precedent in holding that the pilot's claim for "injunctive relief from a state regulation, on the ground that such regulation is preempted by a federal statute," was a federal question. Gillis et al. v. State of La., 294 F.3d 755, 760 (5th Cir. 2002).
5. 43 U.S.C. § 1312 (2002).
6. 46 U.S.C. § 8501(a) (2002).
7. Gillis, 294 F.3d 755, at 761-62 (citing Wilson v. McNamee, 102 U.S. 572 (1881)).

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