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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

ANNE WHITE HAT ET AL

CASE NO. 6:20-CV-00983

filed by defendant M. Bofill Duhé, District Attorney for the 16

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are opposed.

I.

This case originated with the arrest of plaintiffs Anne White Hat, Ramon Mejía, and Karen

Savage (“White Hat Plaintiffs”) during a 2018 protest in St. Martin Parish involving the Bayou

Bridge Pipeline. According to the White Hat Plaintiffs, the pipeline runs 162.5 miles from Lake

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ECF No. 1 at ¶8.

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voicing opposition.

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Various state and federal lawsuits were filed opposing the construction of the

pipeline.

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In the present case, the White Hat Plaintiffs were protesting on land in St. Martin Parish

with the permission of Katherine and Peter Aalestad, Theda Larson Wright, Alberta Larson

2018, plaintiffs Mejia and Savage were protesting underneath a “sky pod” suspended in a tree by

a rope attached to the pipeline.

pipeline to prevent inuries to the protestors and damage to the pipeline.

protests that led to the arrest warrants for Plaintiffs White Hat and Savage, involved approximately

a guard shack, and then locking the guard shack and removing the key.

boundary of which was marked by survey stakes. They did so only on the condition that the

construction workers also leave. When the construction workers began operating their equipment

again, the protesters re-entered the area and demanded that the workers leave. The deputies contend

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ECF No. 1 at ¶9.

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6

Id.

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Id.

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that they were outnumbered and instructed the workers to leave “to keep the peace,” causing the

work to be halted once again.

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critical infrastructure” under La. R.S. 14:61 because they were allegedly protesting in close

proximity to a pipeline (the Bayou Bridge Pipeline) allegedly protected by that statute. The White

pipelines. In 2018, the Louisiana Mid-Continent Oil and Gas Association drafted and proposed an

amendment to La. R.S. 14:61, which was enacted into law on August 1, 2018.

The statute prohibits

following:

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9

Id.

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ECF No. 1 at ¶54.

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Prior to the amendment, the statute defined “critical infrastructure” to include “facilities like

refineries, chemical manufacturing facilities, and water treatment plants which occupy visible and

discrete land areas often completely enclosed by physical barriers and/or clearly demarcated by

The 2018 amendments to the statute expanded this definition to include pipelines.

applied because: “1) it is vague as it does not provide adequate notice to plaintiffs and others, as

well as state actors who must enforce the law, what conduct is prohibited and where, and allows

for arbitrary and discriminatory enforcement; 2) it is overbroad and has the effect of chilling

constitutionally protected speech or expression; and 3) targets speech and expressive conduct with

ECF No. 1 at ¶3.

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La. R.S. 14:61 (defining “critical infrastructure” to include “any and all structures, equipment, or other immovable

or movable property located within or upon chemical manufacturing facilities, refineries, electrical power generating

facilities, electrical transmission substations and distribution substations, water intake structures and water treatment

facilities, natural gas transmission compressor stations, liquified natural gas (LNG) terminals and storage facilities,

liquid, or gaseous state.”

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ECF No. 1 at ¶2.

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“gave notice to those who would enter such facilities without authorization, or remain after being

However, they argue

that “critical infrastructure” now includes 125,000 miles of pipelines running through private and

public spaces, and that the path of these protected pipelines are not visible or clearly marked.

to the statute.

law enforcement officers on how or where to enforce the restrictions imposed by the statute and

point out that the Amended Statute does not require that a trespasser have intent to do damage,

cause harm, or otherwise commit an act of violence or criminal offense.

Louisiana by various plaintiffs against Louisiana Attorney General Jeff Landry, Sheriff Ronald

Theriot and District Attorney M. Bofill Duhé. The action was brought pursuant to 42 U.S.C. §§

1983 and 1988 alleging that the Amended Statute is facially unconstitutional and unconstitutional

as applied.

Each of the three defendants filed motions to dismiss. On July 30, 2020, District Judge

John deGravelles issued his Ruling and Order in which he dismissed claims against Attorney

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ECF No. 1 at ¶¶56-57.

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ECF No. 1 at 1.

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General Jeff Landry, granted the alternative relief sought by the other defendants to transfer venue

to this court and denied the motions in all other respects.

The White Hat Plaintiffs requested reconsideration of the ruling dismissing the claims

against Jeff Landry,

which the Court denied in a separate order. Defendants Duhé and Theriot

of Mount Triumph Baptist Church and a member of RISE St. James).

Finally, the case originally

included the Landowner Plaintiffs. These plaintiffs are St. Martin Parish landowners who own

undivided interests in property over which the Bayou Bridge Pipeline crosses.

This property was

the site of the protests by the White Hat Plaintiffs and their arrest. On May 5, 2021, the Court

After the White Hat Plaintiffs filed their Motion for Summary Judgment, District Attorney

Duhé indicated that he would not take a position on the constitutionality of La. R.S. 14:61.

Accordingly, Louisiana Attorney Jeff Landry filed a motion seeking leave to intervene in the case

for the limited purpose of addressing the constitutionality of the statute.

The Court granted the

motion.

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ECF No. 102.

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ECF No. 118.

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II.

summary judgment if the movant shows that there is no genuine dispute as to any material fact and

when the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

As summarized by the Fifth Circuit:

disregard all evidence favorable to the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving party as well as that evidence

determinations are not part of the summary judgment analysis.”

Fed. R. Civ. P. 56(a).

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Id.

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to the non-moving party).

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Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002).

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existence of an element essential to that party’s case, and on which that party will bear the burden

The White Hat Plaintiffs seek summary judgment on their claims that (1) the Amended

Statute violates the First Amendment; and (2) the Amended Statute violates the Due Process

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a "case or controversy" among the parties to a federal lawsuit.

Standing is one aspect of this case-

or-controversy requirement.

Standing identifies "those disputes which are appropriately resolved

through the judicial process,"

the powers of the political branches."

doctrines but Article III standing requires at a minimum, that the plaintiff show (1) an "injury in

Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986)).

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35

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Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013).

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Lujan, 504 U.S. at 560–561.

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requirement ensures that the plaintiff has a "personal stake in the outcome of the controversy."

The plaintiff's injury must be "concrete, particularized, and actual or imminent ….”

causation element of standing requires that the plaintiff's injury be "fairly traceable to the

defendant's allegedly unlawful conduct,"

standing to pursue their claims because their arrest under La. R.S. 14:61 created a “credible threat

According to the Seals court, the plaintiff in that case was “not required to live

under the specter of prosecution for violating a potentially unconstitutional law with nothing more

than a non-committal promise as protection.”

The Court also pointed to the White Hat Plaintiffs’

Accordingly, courts have held that “government actions that chill protected

speech without prohibiting it” can satisfy the injury-in-fact requirement for Article III standing.

Warth v. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks omitted).

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Clapper, 568 U.S. at 409 (quoting Monsanto v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).

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Allen v. Wright, 468 U.S. 737, 751 (1984).

Id.

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ECF No. 83.

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46

47

Laird v. Tatum, 408 U.S. 1 (1972).

48

Glass v. Paxton, 900 F.3d 233, 238-40 (5th Cir. 2018).

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protected speech in at least two ways. First, La. R.S. 14:61(D)(1) creates a “carve-out” for

While the Fifth Circuit has observed that

a similar First Amendment carve-out could not save an otherwise invalid statute, such a carve-out

forums for free speech. As discussed further below, a party’s First Amendment right to conduct

pickets or protests is at its nadir on private property or within a non-forum. The third entry

restriction does not require a physical barrier to trigger the restriction but applies only after a

written or verbal warning to vacate a protected structure.

In sum, the text of La. R.S. 14:61 cuts

claim must be analyzed in the context of the forum where the statute’s restrictions apply. “The

scope of [a plaintiff’s] First Amendment rights depends on the nature of the forum in which he

La. R.S. 14:61(D)(1).

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CISPES, 770 F.2d at 474.

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Id. at 473 (“[I]n order to invalidate a statute on overbreadth grounds, the overbreadth ‘must not only be real, but

substantial as well, judged in relation to the statute’s plainly legitimate sweep.’”).

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The nature of forum impacts the level of scrutiny applied to restrictions on

protected speech occurring within that forum. Courts have identified three types of forums: “the

traditional public forum, the designated public forum, and the non-public forum.”

A “non-public

forum” is publicly-owned property that is not by tradition or government designation a forum for

occurring in a traditional public forum.

restrictions of La. R.S. 14:61 apply to a broad range of protected speech in public forums because

of the ubiquity of pipeline networks throughout the state. The Court disagrees. The First

expressive conduct occurring on private property or in non-public forums.

framed to largely impact structures on private property. Two of the three relevant entry restrictions

82

Imani v. City of Baton Rouge, No. 17-439, 2022 WL 2760799 at *17 (M.D. La. July 14, 2022) (quoting Estiverne v.

Louisiana State Bar Ass’n, 863 F.2d 371, 376 (5th Cir. 1989)).

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United Food & Commercial Workers Local 1099 (“United Food”) v. City of Sidney, 364 F.3d 738, 746 (6th Cir.

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Imani, 2022 WL 2760799 at *17-18.

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Caputo, 201 F.Supp.3d 65, 70 (D.C. 2016).

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infrastructure by any “owner, lessee, or custodian of the property or by any other authorized

person.” Moreover, many of the types of structures protected—pipelines, chemical manufacturing

reflects court decisions recognizing that the “right to exclude others is a fundamental element of

private property ownership, and the First Amendment does not create an absolute right to

the type of property affected by La. R.S. 14:61—critical

to enter the property where the Bayou Bridge Pipeline protest occurred. However, if true, it is

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observed:

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Cornelius, 473 U.S. at 801 (1985) (“[A] speaker must seek access to public property or to private property dedicated

to public use to evoke First Amendment concerns.”).

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unclear that permission to enter the property changes the result as far as the First Amendment. The

nature of the forum remains the same: it is private property and the Bayou Bridge Pipeline is owned

by a private entity.

Private property does not “lose its private character merely because the public

Moreover, the Landowner Plaintiffs are

and enjoy the thing as if he were the sole owner,” including the right to exclude third-party

trespassers.

owner of private land, to exclude the White Hat Plaintiffs and other protestors from his property.

facilities,” “electrical transmission substations,” “water intake structures and water treatment

facilities,” and “ports.” However, even if La. R.S. 14:61 impacts speech or expressive conduct on

public property, “the First Amendment does not guarantee access to property simply because it is

93

ECF No. 93-4 at 345 (identifying Bayou Bridge Pipeline, LLC as the owner).

Tanner, 407 U.S. at 570.

95

The Landowner Plaintiffs held fractional interests in the property where the protest occurred of 0.0005803,

against trespassers or usurpers.” ECF No. 119 at 19 (emphasis added).

98

Armes, 706 F. Supp. at 1164-66.

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owned or controlled by the government.”

“The State, no less than a private owner of property,

long as the distinctions drawn are reasonable in light of the purpose served by the forum and are

The Supreme Court observed that use of

the military reservation as a traditional public forum for speech and expressive conduct would run

counter to the use to which Fort Dix was dedicated: “the notion that federal military reservations,

like municipal streets and parks, have traditionally served as a place for free public assembly and

viewpoint neutral and reasonable in light of the purpose for the military reservation.

issue in Greer, serve very specific and important purposes unrelated to public speech—the

provision of water, electricity, transportation, and energy production. The statute is also limited to

facilities enclosed by a physical barrier,

or premises where the public has been expressly

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United States Postal Service v. Council of Greenburgh Civic Ass’n, 453 U.S. 114, 129 (1981).

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103

104

Id.

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La. R.S. 14:61(A)(1) and (4).

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forbidden to enter or remain on the property.

record that the statute applies to facilities that have been designated as public forums or that they

have been opened to the public as limited public forums. Accordingly, applying Greer, the statute

does not violate the First Amendment if its restrictions are reasonable and viewpoint neutral. The

The statute’s entry restrictions also do not discriminate on the basis of the viewpoint of any

expressive conduct they may impact—they apply across the board. While the White Hat Plaintiffs

argue that the First Amendment carve-out introduces a content-based restriction, as discussed

further below, that carve-out is not content based when viewed in its entirety.

in a public forum, that does not, standing alone, render the statute facially unconstitutional. The

level of scrutiny applied to a restriction on speech in a public forum “turns on whether the

restriction is content-based or content-neutral.”

Content-based regulations are presumptively

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La. R.S. 14:61(A)(3).

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Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228-30 (1987).

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regulations.

In contrast, content-neutral regulations of symbolic speech receive a lesser degree

of scrutiny under the test set forth in United States v. O’Brien.

A speech restriction “is content-

based if a law applies to particular speech because of the topic discussed or the idea or message

This inquiry “requires a court to consider whether a regulation of speech ‘on its

Court in Reed, a separate category of laws may be facially neutral, but still content based, if they

Applying this analysis in Reed, the Court found that a town's sign ordinance was content based on

the contents of the messages they expressed.

symbolic speech based on the idea or message expressed based on that speech. Instead, it

proscribes entry onto premises containing critical infrastructure without reference to the purpose

Perry, 460 U.S. at 45.

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391 U.S. 367 (1968).

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113

114

Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).

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Id. at 164–65, 135 S.Ct. 2218.

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of that entry or the ideas or message advanced by those who enter the premises.

that the statute is content based in two respects. First, they point to the “carve-out” provision in

section 14:61(D)(1) and argue that the provision’s reference to “ideas or views regarding legitimate

matters of public interest” is a content-based restriction in that it discriminates based on whether

clause excluding any “position protected by the United States Constitution or the Constitution of

Louisiana” from the sweep of La. R.S. 14:61. A fair reading of section 14:61(D)(1) in its entirety

is that the carve-out extends to any protest, demonstration, picket, or other expressive conduct

protected by the First Amendment without regard to the content of the message conveyed.

legislative history of the statute shows that it was promoted by the Louisiana Mid-Continental Oil

and Gas Association to squelch protests against pipeline projects.

They allege that the 2018

amendment to the statute adding pipelines to the definition of “critical infrastructure” occurred “at

514 U.S. 334-357 (1995).

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ECF No. 96-1 at 9.

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initiated by leaders of the oil and gas industry who have obviously vested and financial interest in

skewing the debate about the dangers of continued pipeline expansion.”

In this regard, they

point to evidence that the 2018 amendment to La. R.S. 14:61 was drafted by the general counsel

legislative history cited by the White Hat Plaintiffs actually refutes their argument that the 2018

pipeline amendment to La. R.S. 14:61 was intended to squelch pipeline protests and environmental

activists’ opposition to pipeline projects like the Bayou Bridge Pipeline. Specifically, the White

Hat Plaintiffs quote the lead sponsor of the 2018 amendment explaining that the statute “does

Damage caused to critical infrastructure does not fall within the protections of the First

Amendment given that courts have repeatedly held that the First Amendment protects only

Moreover, the statute’s carve-out for protected First

Amendment speech “is a valuable indication of [legislative] concern with the preservation with

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121

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United States v. Grace, 461 U.S. 171, 176 (1983) (“there is no doubt that as a general matter peaceful picketing

and leafletting are expressive activities involving speech protected by the First Amendment.”).

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that it restricts protected speech, La. R.S. 14:61 is content-neutral.

constitutional power to enact a statute protecting critical infrastructure located within its borders.

Nor do they challenge the constitutionality of state enactments proscribing trespass on private

property in general. La. R.S. 14:61 appears to fall squarely within the police powers of the state—

that protection of critical infrastructure in the state furthers an important or substantial government

interest, and that the protection of this property from damage caused by unauthorized entry is