United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 14, 2023 No. 22-30416 Lyle W. Cayce Clerk

David Anthony Newbold; Briana Caroline Stockett; Deanna Nicole Smith,

Plaintiffs—Appellants,

versus

Kinder Morgan SNG Operator, L.L.C.; Southern Natural Gas Company, L.L.C.,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:21-cv-929

Before Wiener, Stewart, and Engelhardt, Circuit Judges. Kurt D. Engelhardt, Circuit Judge: Two years after an unfortunate single-boat accident, one of the boat’s two occupants died as a result of his injuries. The boat in which he was a passenger had struck a warning sign that was totally submerged at the time of the allision between the boat and sign. His estate and survivors sued the companies responsible for the sign in question. The district court granted summary judgment to the Defendants on the ground that the incident occurred on water governed by Louisiana law rather than federal. The parties Case: 22-30416 Document: 00516676319 Page: 2 Date Filed: 03/14/2023

No. 22-30416

agree that if Louisiana law governs, the claims are barred. At issue in this appeal is whether or not the allision occurred in “navigable” waters such that federal law governs. For the reasons that follow, we hold that the allision occurred on non-navigable waters and thus AFFIRM the decision of the district court. Factual Background On April 16, 2020, John Andrew Newbold and his nephew Jason Rodgers went fishing in the D’Arbonne Wildlife Refuge. As they were making their way back to the boat launch after a largely unsuccessful day, Newbold and Rodgers noticed a clear channel of water off to one side and decided to make one last go at fishing for the day. They turned into the swath and Rodgers, who was operating the boat, accelerated down the center. The boat then struck a submerged object and Newbold, who was sitting on a bench in the front of the boat, was ejected. Newbold hit his head on the boat’s propeller, which left two large gashes on the left side of his head. Roughly two years later, Newbold died of those injuries. It was later determined that the clear swath of water was atop a right- of-way granted to the Southern Natural Gas Company for two natural gas pipelines. Those pipelines, which are operated by Kinder Morgan, 1 cross Bayou D’Arbonne. The rights-of-way are mowed regularly and the land above which the allision occurred had been dry roughly 67 percent of the time in the past 30 years, according to an expert report prepared on behalf of the Defendants. The submerged item which the boat struck is believed to have been a sign warning boaters not to anchor or dredge above the pipeline. The sign was subsequently replaced after it was damaged by a hurricane, but at

1 Collectively, Kinder Morgan and Southern Natural Gas will be referred to as “Defendants.”

2 Case: 22-30416 Document: 00516676319 Page: 3 Date Filed: 03/14/2023