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Aloha Petroleum, Ltd Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 1 of 141 PageID #: 1 GIBSON, DUNN & CRUTCHER LLP Theodore J. Boutrous, Jr., pro hac vice forthcoming [email protected] 333 South Grand Avenue Los Angeles, CA 90071 Telephone: 213.229.7000 Facsimile: 213.229.7520 WATANABE ING LLP Melvyn M. Miyagi #1624-0 [email protected] Ross T. Shinyama #8830-0 [email protected] Summer H. Kaiawe #9599-0 [email protected] 999 Bishop Street, Suite 1250 Honolulu, HI 96813 Telephone: 808.544.8300 Facsimile: 808.544.8399 Attorneys for Defendants CHEVRON CORPORATION and CHEVRON U.S.A., INC. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI CASE NO.: 20-cv-00470 COUNTY OF MAUI, NOTICE OF REMOVAL BY Plaintiff, DEFENDANTS CHEVRON v. CORPORATION AND CHEVRON U.S.A., INC.; SUNOCO LP; ALOHA PETROLEUM, DECLARATION OF LTD.; ALOHA PETROLEUM LLC; MELVYN M. MIYAGI IN EXXON MOBIL CORP.; EXXONMOBIL SUPPORT OF NOTICE OF OIL CORPORATION; ROYAL DUTCH REMOVAL; EXHIBITS SHELL PLC; SHELL OIL COMPANY; “1” – “79”; CERTIFICATE SHELL OIL PRODUCTS COMPANY OF SERVICE LLC; CHEVRON CORP; CHEVRON USA INC.; BHP GROUP LIMITED; BHP [Removal from the Circuit Court GROUP PLC; BHP HAWAII INC.; BP of the Second Circuit, State of PLC; BP AMERICA INC.; MARATHON Hawai‘i] PETROLEUM CORP.; Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 2 of 141 PageID #: 2 CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; Action Filed: October 12, 2020 PHILLIPS 66; PHILLIPS 66 COMPANY; AND DOES 1 through 100, inclusive, Defendants. TO THE CLERK OF THE ABOVE-TITLED COURT AND TO PLAINTIFF THE COUNTY OF MAUI AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT Defendants Chevron Corp. and Chevron U.S.A. Inc. (collectively, “the Chevron Parties”) remove this action—with reservation of all defenses and rights—from the Circuit Court of the Second Circuit, State of Hawai‘i, Case No. 2CCV-20-0000283, to the United States District Court for the District of Hawaii, pursuant to 28 U.S.C. §§ 1331, 1367(a), 1441(a), 1442, and 1446, and 43 U.S.C § 1349(b). All other defendants that have been joined and served (collectively, “Defendants”) have consented to this Notice of Removal. This Court has original federal question jurisdiction pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(b), and the Federal Officer Removal Statute, 28 U.S.C. § 1442. Removal is also proper under 28 U.S.C. § 1331, because the Complaint necessarily arises under federal laws and treaties and out of federal enclaves and presents substantial federal questions, as well as 28 U.S.C. §§ 1441(a) and 1446. This Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over any claims for which it does not have original federal question jurisdiction because they form part of the same case or controversy as those claims over which the Court has original jurisdiction. 2 Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 3 of 141 PageID #: 3 TABLE OF CONTENTS Page I. INTRODUCTION .......................................................................................... 1 1. This case is removable under the Outer Continental Shelf Lands Act. ....................................................................................................... 6 2. This case is removable under the Federal Officer Removal Statute. .................................................................................................. 9 3. This case is removable because there is federal enclave jurisdiction. ......................................................................................... 15 4. The Complaint’s allegations of “concealment” do not defeat removal. .............................................................................................. 15 II. TIMELINESS OF REMOVAL .................................................................... 24 III. SUMMARY OF ALLEGATIONS AND GROUNDS FOR REMOVAL ................................................................................................... 25 IV. THE ACTION IS REMOVABLE UNDER THE OUTER CONTINENTAL SHELF LANDS ACT ..................................................... 32 V. THE ACTION IS REMOVABLE UNDER THE FEDERAL OFFICER REMOVAL STATUTE .............................................................. 40 A. The Courts Construe the Federal Officer Removal Statute Broadly in Favor of Removal ............................................................. 41 B. Defendants Satisfy All Elements of the Federal Officer Removal Statute ................................................................................................. 42 1. Defendants Are “Persons” ....................................................... 43 2. Defendants “Acted Under” Federal Officers ........................... 43 a. Defendants acted under federal officers to supply the federal government and the Nation with oil and i Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 4 of 141 PageID #: 4 gas to meet federal national security and economic objectives. ...................................................................... 44 b. Defendants acted under federal officers by exploring for and producing oil and gas on federal lands at the government’s direction to implement federal policy mandates and objectives. ........................ 55 c. Defendants acted under federal officers by supplying highly specialized fuels for military use. ...... 84 3. Defendants’ Activities Are “Relat[ed] to” Plaintiff’s Claims .................................................................................... 100 4. Defendants Have Colorable Federal Defenses ...................... 103 VI. THIS ACTION IS REMOVABLE BECAUSE IT ARISES FROM ACTS ON MULTIPLE FEDERAL ENCLAVES ..................................... 106 VII. THIS ACTION IS REMOVABLE BECAUSE PLAINTIFF’S CLAIMS NECESSARILY ARISE UNDER FEDERAL LAW, RAISE DISPUTED AND SUBSTANTIAL FEDERAL ISSUES, AND ARE COMPLETELY PREEMPTED BY FEDERAL LAW ........... 111 VIII. PLAINTIFF’S CONCEALMENT ALLEGATIONS ARE IRRELEVANT AND BASED ON DEMONSTRABLY FALSE PREMISES ................................................................................................. 120 IX. THIS COURT HAS JURISDICTION AND REMOVAL IS PROPER ..................................................................................................... 135 ii Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 5 of 141 PageID #: 5 I. INTRODUCTION For many decades, United States policy has expressly recognized the fundamental strategic importance of oil and gas to the Nation’s economic well-being and national security. The United States Government knows these products are vital to the military’s mission and success, which is why the United States Department of Defense is the single largest consumer of energy in the United States and one of the world’s largest users of petroleum fuels. Thus, when certain OPEC countries embargoed oil sales to the United States in 1973–74, the U.S. Congress responded by, among other things, creating the Strategic Petroleum Reserve to protect the Nation’s economic and security interests. See Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, 89 Stat. 871 (1975). For similar reasons, Congress enacted the Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258, 90 Stat. 303, 307-308 (1976), which “authorized and directed” that petroleum from the federal petroleum reserve at Elk Hills, California—which Defendant Chevron Corporation had operated for thirty-one years—“be produced at the maximum efficient rate for up to 6 years.”1 In fact, for crucial security and economic reasons, every Administration since 1 See also Declaration of Melvyn Miyagi (“Miyagi Decl.”), Ex. 2 (Steven Rattner, Long-Inactive Oilfield is Open—for Now, N.Y. Times (Oct. 31, 1977)); id. Ex. 3 (Robert Lindsey, Elk Hills Reserve Oil Will Flow Again, N.Y. Times (July 3, 1976)). 1 Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 6 of 141 PageID #: 6 that of Franklin D. Roosevelt has taken active steps to increase U.S. oil production, thereby securing our national defense and spurring the economic development that has powered the United States’ growth and prosperity over the past century. Notwithstanding the increased focus on alternative sources of energy, petroleum remains the ineluctable backbone of United States energy policy and it is undisputed that complete reliance on renewable energy sources at this time is neither possible nor advantageous. For this reason, in 2010, President Obama “announc[ed] the expansion of offshore oil and gas exploration—but in ways that balance the need to harness domestic energy resources and the need to protect America’s natural resources.”2 President Obama explained that it was “not a decision that I’ve made lightly. But the bottom line is this: given our energy needs, in order to sustain economic growth, produce jobs, and keep our businesses competitive, we’re going to need to harness traditional sources of fuel even as we ramp up production of new sources of renewable, homegrown energy.”3 Now, however, Plaintiff asks the court to find that this same petroleum production constitutes an unlawful “public nuisance” and “trespass,” among other violations of Hawai‘i state law. Under various theories, the Complaint seeks to hold 2 President Barack Obama, Remarks on Energy at Andrews Air Force Base, Maryland, (Mar. 31, 2010), https://obamawhitehouse.archives.gov/the-press- office/remarks-president-energy-security-andrews-air-force-base-3312010. 3 Id. 2 Case 1:20-cv-00470-DKW-KJM Document 1 Filed 10/30/20 Page 7 of 141 PageID #: 7 Defendants liable
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