1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LPOD, Inc., a California Corporation, dba, No. 1:23-cv-01498-KES-CDB Las Palmas Oil & Dehydration; and 12 MICHAEL J. PORTER, an individual, BRYAN PORTER, an individual, and 13 M&W PROPERTIES, LLC, ORDER DENYING MOTION TO

REMAND

14 Plaintiffs,

15 v. (Doc. 26) 16 KINDER MORGAN LIQUIDS TERMINALS, LLC; and DOES 1 through 17 25, inclusive,

18 Defendants. 19 20 Following defendant Kinder Morgan Liquids Terminals, LLC’s (“Kinder Morgan’s”) 21 removal of this state tort action pursuant to section 1503 of the Energy Policy Act of 2005, Doc. 1 22 (“Not. Removal”), plaintiffs LPOD, Inc. (“LPOD”), Michael J. Porter, Bryan Porter, and M&W 23 Properties, LLC moved to remand to Kern County Superior Court on the grounds that Kinder 24 Morgan’s removal was untimely.1 Doc. 26 (“MTR”). For the reasons explained below, the 25 Court denies plaintiffs’ motion to remand. 26 1 Plaintiff Michael J. Porter is the president of LPOD. SAC ¶¶ 3–4. Plaintiff Bryan Porter is an 27 officer of LPOD. Id. ¶ 4. Plaintiff M&W Properties, LLC is the owner of the land that was leased to LPOD for its Kern County facility. Id. ¶ 5. 28 1 I. Background2 2 LPOD operated a facility in Kern County, California, where it dehydrated off- 3 specification streams of petroleum materials and recycled those materials into reusable products. 4 Doc. 1-1, Ex. C (“SAC”) ¶¶ 1–2. LPOD’s facility was never authorized to treat, store, or dispose 5 of “hazardous waste” as that term is defined in the California Hazardous Waste Control Act 6 (“CHWCA”). Id. ¶¶ 10, 19–23; see also Cal. Health & Safety Code § 25117 (defining “hazardous 7 waste”).3 8 Defendant Kinder Morgan is an energy infrastructure company that operates petroleum 9 pipelines and terminals throughout the United States. Id. ¶ 6. Kinder Morgan’s terminal in 10 Carson, California, (“Carson Terminal”) is a hazardous waste remediation site which has been 11 under a Cleanup and Abatement Order (“CAO”) from the Los Angeles Regional Water Quality 12 Control Board since 1990 due to leaks from petroleum storage tanks that contaminated the soil 13 and groundwater below. Id. ¶ 12; Doc. 32 (“Opp’n”) at 7 n.3. As part of the remediation process, 14 Kinder Morgan operates a system which extracts the leaked, free-floating petroleum (which the 15 parties refer to as Light Non-Aqueous Phase Liquid (“LNAPL”)) from the groundwater below 16 Carson Terminal. Id. ¶ 13. 17 The California Department of Toxic Substances Control (“DTSC”) categorizes each 18 regulated toxic substance as either “hazardous waste” or “retrograde material,” depending on, 19 among other things, its precise chemical makeup.4 See, e.g., Opp’n at 7 n.4. Significantly, 20 2 The facts recited here are not in dispute, and the Court may “consider[] evidence outside the 21 pleadings when ruling on a motion to remand—even in the context of federal question jurisdiction.” Vegas Fab & Finish v. AMG Freight LLC, 2024 WL 166759, at *3 n.2 (D. Nev. 22 Jan. 16, 2024); see Hansen v. Group Health Cooperative, 902 F.3d 1051, 1056–57 (9th Cir. 2018) 23 (defendants must establish basis for removal by a preponderance of the evidence).

24 3 Pursuant to CHWCA, a waste is a “hazardous waste” if: (1) it “meets any of the criteria for identification of a hazardous waste adopted by the [Department of Toxic Substances Control] for 25 the identification of hazardous waste”; (2) it is a hazardous waste listed by the U.S. Environmental Protection Agency (“EPA”) pursuant to the Resource Conservation and Recovery 26 Act, 42 U.S.C. ch. 89, § 6901 et seq.; or (3) it is an “extremely hazardous waste or acutely 27 hazardous waste.” Cal. Health & Safety Code § 25117.

28 4 Methyl tertiary butyl ether (“MTBE”) is not expressly listed as a “hazardous waste” by EPA or 1 LNAPL may—but does not always—contain a chemical known as methyl tertiary butyl ether 2 (“MTBE”), a chemical that California banned for sale and use in gasoline in December 1999,5 id. 3 at 6 n.1. See Opp’n at 7 n.4. DTSC categorized Kinder Morgan’s LNAPL as hazardous waste, 4 id., for reasons not fully explained in the parties’ briefs and exhibits.6 5 Plaintiffs allege that, prior to 2016, Kinder Morgan properly handled and treated the 6 recovered LNAPL as hazardous waste, as DTSC required. SAC ¶ 18; Doc. 26-1 (“Moss Decl.”) 7 ¶ 5. The fact that DTSC classified Kinder Morgan’s LNAPL as “hazardous waste” rather than 8 “retrograde material” meant that Kinder Morgan was required to comply with more stringent and 9 costly regulations, such as shipping the LNAPL only to facilities permitted by DTSC to treat, 10 store, or dispose of hazardous waste, among other things. See SAC ¶¶ 18–19. During the period 11 prior to 2016 in which Kinder Morgan treated the LNAPL as hazardous waste, plaintiffs contend 12 that Kinder Morgan attempted on numerous occasions to persuade regulators to recategorize the 13 LNAPL as retrograde material rather than hazardous waste. Moss Decl. ¶¶ 6–10. Each time, 14 regulators declined to recategorize Kinder Morgan’s LNAPL. Id. 15 DTSC. See 40 C.F.R. § 261; 22 C.C.R. §§ 66261.30–66261.50. However, the parties’ briefings 16 suggest that under some circumstances, MTBE could meet the criteria for identification of hazardous waste set by DTSC. See MTR at 7–11. Prior to 2008, at least, Kinder Morgan treated 17 the LNAPL recovered from Carson Terminal, which contained MTBE, as a hazardous waste because it exhibited the characteristic of “ignitability” under 22 C.C.R. § 66261.21(a)(1). Moss 18 Decl., Ex. 1, (“Charles Corcoran Email”), at 380, 383. 19 5 The California Air Resources Board promulgated regulations requiring the elimination of 20 MTBE’s use in fuel and gasoline in 2002. Staff Report: Proposed Amendments to the California Phase 3 Reformulated Gasoline Regulations, California Air Resources Board (Oct. 25, 2002), 21 https://ww2.arb.ca.gov/sites/default/files/barcu/regact/mtberesid/isor.pdf. The California State Water Resources Board thereafter began to regulate MTBE levels in drinking water. See MTBE: 22 Regulations and Drinking Water Monitoring Results, California State Water Resources Board 23 (July 22, 2024), https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/MTBE.html. 24 6 Plaintiffs cite to evidence that, prior to 2008, LNAPL which contained MTBE was classified as 25 a hazardous waste because it exhibited the characteristic of “ignitability” under 22 C.C.R. § 66261.21(a)(1). Moss Decl., Ex. 1, (“Charles Corcoran Email”), at 380, 383. It is not clear that 26 Kinder Morgan continued to treat the LNAPL as a hazardous waste for this reason after 2008, nor 27 is it clear that MTBE had anything to do with the LNAPL’s classification as hazardous waste. As Kinder Morgan points out, “LPOD’s allegations and . . . discovery inquiries [prior to September 28 22, 2023,] centered on LNAPL and not MTBE.” Opp’n at 7 n.4. 1 Plaintiffs allege that after Kinder Morgan failed to have LNAPL recategorized, in 2016 2 Kinder Morgan sought to avoid the costly DTSC regulations by secretly labelling the recovered 3 LNAPL hazardous waste as “retrograde material” and shipping it to plaintiffs’ facility. Doc. 1-1, 4 Ex. A (“Compl.”) ¶ 10. Plaintiffs’ facility was not authorized to accept hazardous waste. SAC 5 ¶¶ 10, 19–23. Plaintiffs allege that they unwittingly received a total of 181,349 gallons of such 6 hazardous waste through 66 separate shipments. Id. ¶¶ 20–21. 7 DTSC issued a Statement of Violations (“SOV”) against LPOD and its owner, Michael J. 8 Porter, when it discovered the hazardous waste present on plaintiffs’ property. Id. ¶ 21. The 9 SOV requires plaintiffs to remediate the hazardous waste contamination at their facility—an 10 operation which plaintiffs estimate will cost $29,750,000—in addition to paying fines of $70,000 11 per day which are assessed retroactively to the day when plaintiffs began to receive LNAPL from 12 Kinder Morgan. Id. As a result of DTSC’s enforcement action, LPOD ceased operations and 13 may not re-open until it fulfills the requirements of DTSC’s cleanup order. Id. ¶ 32. 14 On October 26, 2020, plaintiffs filed this action in Kern County Superior Court, asserting 15 state common law claims of intentional misrepresentation, negligent misrepresentation, fraudulent 16 concealment, negligence, and trespass. Id. ¶¶ 27–72. In plaintiffs’ complaint, first amended 17 complaint, and second amended complaint, all of which were filed prior to removal, plaintiffs 18 alleged only that Kinder Morgan shipped LNAPL that DTSC categorized as “hazardous waste” to 19 their facility. Not. Removal ¶ 3. Plaintiffs did not specify the chemical components of the 20 LNAPL “hazardous waste” they received. Id. Plaintiffs never asserted that the LNAPL 21 contained MTBE or that MTBE contaminated their property. Id. 22 On October 20, 2023, Kinder Morgan removed the action to this Court pursuant to 23 section 1503 of the Energy Policy Act of 2005, a statute which permits removal of any action 24 “related to allegations involving actual or threatened contamination of methyl tertiary butyl ether 25 (MTBE).” Id. ¶ 1; Energy Policy Act of 2005, 119 Stat. 594, 1076 (2005) (reprinted in 42 U.S.C. 26 7545, 2005 Amendments) (“Section 1503”). Kinder Morgan contends that a notice of deposition 27 of DTSC, served on Kinder Morgan by plaintiffs on September 22, 2023, alerted Kinder Morgan 28 1 that plaintiffs now alleged that MTBE was present in the shipments they received and 2 contaminated their property. Id. 3 Plaintiffs do not contest that section 1503 establishes a basis for removal in this case, but 4 they move to remand on the grounds that Kinder Morgan’s removal was untimely. MTR. Kinder 5 Morgan filed an opposition, Opp’n, and plaintiffs filed a reply, Reply. On September 5, 2024, 6 Kinder Morgan filed a motion for leave to file a supplemental opposition to plaintiffs’ motion to 7 remand, arguing that plaintiffs’ conduct during discovery constituted a waiver of their previous 8 objections to the timeliness of Kinder Morgan’s removal. Doc. 47 (“Mot. for Leave”). Plaintiffs 9 filed an opposition. Doc. 50. 10 II. Legal Standard 11 28 U.S.C. § 1446(b) establishes a thirty-day deadline to remove a case from state court to 12 federal court. There are two “pathway[s] to removal.” Dietrich v. Boeing Co., 14 F.4th 1089, 13 1090 (9th Cir. 2021). First, the thirty-day deadline will start if “a copy of the initial pleading 14 setting forth the claim for relief” demonstrates the grounds for removal. 28 U.S.C. § 1446(b)(1). 15 Alternatively, if the initial pleading does not indicate the case is removable, the thirty-day 16 deadline for removal begins to run when the defendant receives “a copy of an amended pleading, 17 motion, order or other paper from which it may first be ascertained that the case is one which is or 18 has become removable.” 28 U.S.C. § 1446(b)(3). The term “other paper,” as used in section 19 1446(b)(3), includes discovery documents like responses to interrogatories and deposition 20 testimony. See Carvalho v. Equifax Info. Serv., LLC, 629 F.3d 876, 886–87 (9th Cir. 2010). 21 A court must determine whether a case is removable “through examination of the four 22 corners of the . . . pleadings, [motions, orders, or other papers], not through [the defendant’s] 23 subjective knowledge . . . .” Harris v. Bankers Life Ins. and Cas. Co., 425 F.3d 689, 694 (9th Cir. 24 2005). Courts do not examine the subjective knowledge of the defendant because that inquiry 25 could “degenerate into a mini-trial regarding who knew what and when.” Id. (quotations 26 omitted). The examination of the pleadings, motions, orders, or other papers must make it 27 “unequivocally clear and certain” that the grounds for removal exist before the thirty-day deadline 28 for removal will begin. Dietrich v. Boeing Co., 14 F.4th 1089, 1091 (9th Cir. 2021). This bright- 1 line approach helps “avoid gamesmanship in pleading, preventing plaintiffs from strategically 2 starting the removal clock without the defendant’s realization, [but still allows] plaintiffs to start 3 the clock . . . simply by making the basis for removal unequivocally clear and certain.” Id. at 4 1094 (quoting Harris, 425 F.3d at 697). 5 III. Discussion and Analysis 6 a. Timeliness of Kinder Morgan’s Section 1503 Removal 7 Section 1503 of the Energy Policy Act of 2005 provides that “[c]laims and legal actions 8 filed after the date of enactment of this Act related to allegations involving actual or threatened 9 contamination of methyl tertiary butyl ether (MTBE) may be removed to the appropriate United 10 States district court.” Energy Policy Act of 2005, 119 Stat. 594, 1076 (2005) (reprinted in 42 11 U.S.C. 7545, 2005 Amendments) (“Section 1503”). The parties do not dispute that section 1503 12 provides an independent basis for removal. See Opp’n at 6; Reply at 5. Rather, the parties 13 dispute the timeliness of Kinder Morgan’s removal. See id. 14 Plaintiffs’ three complaints alleged that Kinder Morgan extracted LNAPL from Carson 15 Terminal and labeled it “retrograde material,” when it should have been labelled as “hazardous 16 waste.” See, e.g., SAC ¶¶ 15–22. Plaintiffs did not define “hazardous waste” and did not specify 17 its chemical components. See id. None of the three complaints made any reference to MTBE, 18 see id., and plaintiffs did not concede that the case “related to allegations involving . . . 19 contamination of MTBE” until Kinder Morgan removed the action to this court, see MTR at 13. 20 Kinder Morgan filed its notice of removal on October 20, 2023, following plaintiffs’ 21 service of a notice of deposition of DTSC on September 22, 2023. Not. Removal ¶ 1. The notice 22 of deposition identifies four topics of examination, the first two of which are: 23 1. The classification of fuel containing METHYL TERT-BUTYL ETHER (“MTBE”) in California from January 1, 2000 through the 24 date of the deposition. Specifically, when fuel and/or gasoline containing any MTBE became Retrograde Material, and when 25 fuel and/or gasoline containing any MTBE ceased being Retrograde Material and become Hazardous Waste pursuant 26 California law.

27 2. The classification of Retrograde Material by The California Department of Toxic Substances Control from January 1, 2000 28 through the date of the deposition. Specifically, how the DTSC 1 determines and assesses whether something is Retrograde Material or Hazardous Waste. 2 3 Doc. 1-1, Ex. D (“Not. Dep.”) at 57–58. 4 The notice of deposition also includes the following request for production of documents: 5 All written policies, procedures, guidelines, and/or information sheets whether published on paper, or digitally regarding the 6 classification of fuel and/or gasoline containing METHYL TERTBUTYL ETHER (“MTBE”) created by the California 7 Department of Toxic Substances Control or used by the California Department of Toxic Substances Control in effect from January 1, 8 2000 through the date of the deposition. Specifically, all documents on how gasoline and/or fuel containing MTBE should be 9 classified and/or treated after January 1, 2003, and when did gasoline and/or fuel cease being considered a “Retrograde 10 Material” as defined in Health & Safety Code § 25151.5. 11 Id. 12 The September 22, 2023, notice of deposition was the earliest time the grounds for 13 removal could have become unequivocally clear and certain, because this was the first time that 14 any discovery document arguably made clear that plaintiffs considered both the “retrograde 15 material” and “hazardous waste,” which were terms plaintiffs used in their various complaints, to 16 contain MTBE. Given that plaintiffs alleged in each of their complaints that “hazardous waste” 17 contaminated their property, and now appeared to indicate that the “hazardous waste” contained 18 MTBE, it became clear that the case involved “allegations involving actual or threatened 19 contamination of” MTBE. Section 1503. This discovery document was sufficient to put Kinder 20 Morgan on notice that the case was removable under section 1503. As Kinder Morgan filed its 21 notice of removal within thirty days of its receipt of this discovery document, its removal was 22 timely. See Not. Removal. 23 In an attempt to establish that the removal clock began sooner, plaintiffs point to 24 numerous other discovery documents which mentioned MTBE and were served on Kinder 25 Morgan prior to the notice of deposition. See MTR at 6–13. However, no prior mention of 26 MTBE in the other discovery documents established that MTBE was in the LNAPL delivered to 27 plaintiffs’ facility or that plaintiffs considered MTBE to be a component of the “hazardous waste” 28 1 that contaminated their property. See Dietrich, 14 F.4th at 1091 (“[The] removal clock does not 2 start until a paper makes a ground for removal unequivocally clear and certain.”). 3 Plaintiffs principally argue that a set of requests for admission and the deposition of 4 Kinder Morgan’s former attorney, Katherine Wagner, put Kinder Morgan on notice that the case 5 was removable. See MTR at 16–17. Request for Admission No. 39 reads: “Admit that at all 6 times that YOU SOLD PRODUCT to plaintiff, YOU knew California prohibited the sale of 7 gasoline containing methyl tert-butyl ether (MTBE) without exception.” Id. at 17 (quoting 8 Requests for Admission). Request for Admission No. 40 reads: “Admit that nothing in Exhibit 1 9 authorizes YOU to sell gasoline containing methyl tert-butyl ether (MTBE) to businesses not 10 authorized to receive HAZARDOUS WASTE.” Id. 11 There are several problems with plaintiffs’ argument that the Requests for Admission 12 should have put Kinder Morgan on notice that the case contained “allegations involving actual or 13 threatened contamination of” MTBE. Section 1503. First, although plaintiffs included 14 definitions of the capitalized terms in the requests for admission, they did not define 15 “HAZARDOUS WASTE” to include MTBE. See MTR at 16–17. Plaintiffs defined 16 “PRODUCT” as a range of different materials: “light non-aqueous phase liquid (LNAPL), water, 17 gasoline-free product, spill residue, fuel, diesel fuel, gasoline-free product containing methyl 18 tertiary butyl ether (MTBE), petroleum, water containing gasoline residue, or wastewater.” Id. 19 (emphasis added). Although there is one reference to MTBE within the definition, plaintiffs use 20 the term “or” in separating the range of substances that could fall within the definition of 21 “PRODUCT.” See id. As Kinder Morgan noted in its objection to these requests for admission, 22 the definition “identifies numerous materials that are distinct from one another (e.g., water and 23 wastewater) and are unrelated to Kinder Morgan’s recovered gasoline product. Accordingly, the 24 definition of ‘PRODUCT’ renders this request both compound and vague and ambiguous.” Moss 25 Decl., Ex. 8 (“Response to Requests for Admission”). Given the ambiguity about what plaintiff 26 believed the “PRODUCT” to be, it could not have been unequivocally clear and certain from the 27 single reference to MTBE that plaintiffs were alleging that the LNAPL included MTBE. 28 Second, none of the requests for admission assert that MTBE contaminated plaintiffs’ 1 property, as required by the statute to make the case removable. See Requests for Admission at 2 111–14. The complaint states only that “hazardous waste” contaminated plaintiffs’ property, and 3 the requests for admission do not make the necessary connection between MTBE and the 4 “hazardous waste” plaintiffs received. 5 Third, the fact that Request for Admission No. 39 conveys that California banned MTBE 6 does not necessarily indicate that plaintiffs understood the term “hazardous waste” to include 7 MTBE. Under California law, a material may qualify as “retrograde material” if it is “banned by 8 law, regulation, ordinance, or decree.” Cal. Health & Safety Code § 25121.5. Request for 9 Admission No. 39 would thus be compatible with an understanding that a substance which 10 contains MTBE is retrograde material because it is banned. Plaintiffs’ facility accepted 11 retrograde material, see Doc. 1-1, Ex. A ¶ 10, and plaintiffs complained only of contamination by 12 hazardous waste, not retrograde material. Request for Admission No. 39 therefore does not make 13 clear that plaintiffs were alleging that MTBE was a component of the hazardous waste that they 14 received. 15 Plaintiffs also point to the deposition of Katherine Wagner on April 19, 2023, as putting 16 Kinder Morgan on notice of their allegations regarding MTBE. In that deposition, plaintiffs 17 asked questions about conversations Wagner had with Charles Corcoran, an official at DTSC, in 18 2008 regarding whether LNAPL containing MTBE could be classified as retrograde material. 19 See Wagner Depo. During that deposition, plaintiffs asked questions suggesting they knew that 20 MTBE had been in the LNAPL at some point. See id. 21 There are two primary reasons that the deposition of Ms. Wagner did not reveal that the 22 case involved allegations of contamination with MTBE, as required to establish a basis for 23 removal under section 1503. First, plaintiffs did not ask Ms. Wagner questions about whether the 24 LNAPL they received eight years after her conversation with Charles Corcoran contained MTBE. 25 See id. Similarly, they did not ask whether the level of MTBE in the groundwater at Carson 26 Terminal may have changed over time. See id. If they had asked whether the level of MTBE was 27 the same in 2008 and 2016, when they began receiving shipments of LNAPL, there may have 28 been some suggestion that they were alleging contamination of MTBE on their property. Instead, 1 the questions plaintiffs asked could be construed to be simply gathering background information. 2 Plaintiffs’ deposition questions did not reveal any allegation that MTBE had contaminated their 3 property. 4 Second, plaintiffs did not ask whether material with MTBE could be classified as 5 hazardous waste, and their questions of Ms. Wagner did not demonstrate that they were making 6 that allegation. Plaintiffs made the connection between MTBE and hazardous waste only when 7 they served the notice of deposition which asked “when fuel and/or gasoline containing any 8 MTBE ceased being Retrograde Material and [became] Hazardous Waste pursuant [to] California 9 law.” Not. Dep. at 57. 10 The other documents that plaintiffs argue put Kinder Morgan on notice that the case was 11 removable are similarly unavailing. For example, they point to a declaration from Kinder 12 Morgan’s attorney stating that “gasoline from Kinder Morgan is known to contain” MTBE. Doc. 13 3-3, Ex. 47. This declaration did not render the case removable, because it came from Kinder 14 Morgan, not plaintiffs. A case becomes removable only when “plaintiff[s] do[] something 15 voluntarily to change the nature of the case and render it removable.” Bath v. Millenium Eng’g & 16 Integration Co., No. 1:22-cv-01298-ADA-CDB, 2023 WL 1315419, at *6 (E.D. Cal. Jan. 31, 17 2023) (citing Self v. Gen. Motors Corp., 588 F.2d 655, 657–68 (9th Cir. 1978)). “Only changes 18 over which plaintiff[s] [have] control can affect removability as plaintiff[s] [are] the ‘master of 19 the claim’ for removal purposes.” Id. 20 Ultimately, the discovery documents that plaintiffs proffer did not clearly and certainly 21 indicate that plaintiffs were alleging that MTBE had contaminated their property. The Ninth 22 Circuit adopted the “unequivocally clear and certain” standard for removal to “bring certainty and 23 predictability to the process of removals; avoid[] gamesmanship in pleading; and avoid[] the 24 spect[er] of inevitable collateral litigation over whether the pleadings contained a sufficient clue, 25 whether defendant had subjective knowledge, or whether defendant conducted sufficient inquiry.” 26 Dietrich, 14 F.4th at 1091 (quoting Harris, 425 F.3d at 695). Plaintiffs alleged in each of their 27 complaints only that hazardous waste and LNAPL contaminated their property, without any 28 indication that the LNAPL allegedly contained MTBE. See Doc. 1-1, Exs. A–C. Only the notice 1 | of deposition indicated that plaintiffs were alleging MTBE was a component of the hazardous 2 | waste they received. The prior discovery documents plaintiffs now point to did not clearly and 3 || unequivocally make any such allegation. Kinder Morgan was therefore not on notice of the basis 4 | for removal until, at the earliest, it received the September 22, 2023, notice of deposition. 5 | Accordingly, Kinder Morgan’s removal on October 20, 2023, was timely. 6 b. Kinder Morgan’s Motion for Leave to File a Supplemental Opposition 7 Kinder Morgan also moved for leave to file a supplemental opposition to plaintiffs’ 8 | motion to remand, arguing that, by engaging in discovery in this Court, plaintiffs waived their 9 | timeliness objections to Kinder Morgan’s removal. Mot. for Leave at 5-6. Given the Court’s 10 | conclusion above that the motion to remand should be denied on other grounds, Kinder Morgan’s 11 | motion for leave to file a supplemental opposition is denied as moot. 12 | V. Conclusion and Order 13 Based upon the foregoing: 14 1. Plaintiffs’ motion to remand, Doc. 26, is DENIED; and 15 2. Kinder Morgan’s motion for leave to file a supplemental opposition, Doc. 47, is DENIED 16 as moot. 17 18 19 | IT IS SO ORDERED. _ 20 Dated: _ March 28, 2025 4A .

UNITED STATES DISTRICT JUDGE

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