“Premises, Pipelines & Protest”
The Fifth Circuit’s Limiting-Construction Doctrine for Louisiana’s Infrastructure Trespass Statute

Introduction

White Hat v. Murrill, No. 24-30272 (5th Cir. 2025), pits environmental activists and sympathetic landowners against three Louisiana officials over the 2018 expansion of Louisiana Revised Statute §14:61—the “Infrastructure Trespass Statute.” The amendments converted every oil & gas pipeline in the state (≈125,000 miles) into “critical infrastructure” and exposed first-time violators to felony punishment. Plaintiffs—some arrested while protesting the Bayou Bridge Pipeline—claimed the law is facially void for vagueness under the Due Process Clause and substantially overbroad under the First Amendment.

After the Western District of Louisiana granted summary judgment for the State, the Fifth Circuit affirmed. The majority, authored by Judge James E. Graves, Jr., fashions a narrowing construction that confines subsection (A)(3) (“remaining on the premises… after being forbidden”) to non-public forums or private property where a person with lawful authority has the right to exclude the entrant. It then holds that, so construed, the statute survives both vagueness and overbreadth challenges. Judge Higginson dissents, warning that the majority’s construction has no footing in the text and cannot save the statute from “inviting arbitrary enforcement.”

Summary of the Judgment

1. Sovereign Immunity – The Attorney General was properly dismissed; plaintiffs failed to show the “particular duty” and “demonstrated willingness” required by Ex Parte Young.
2. Standing / Mootness
   • Advocacy & landowner plaintiffs lacked standing (injury not traceable or redressable).
   • Arrested protesters had standing for facial claims but their as-applied claims were moot once limitations expired.
3. Vagueness – Subsection (A)(3) gives adequate notice and does not encourage arbitrary enforcement when read with the court’s limiting construction; warning by an authorized person further clarifies the prohibited conduct.
4. First Amendment Overbreadth – The statute is content-neutral, serves a substantial state interest in protecting critical infrastructure, and is narrowly tailored under O’Brien intermediate scrutiny; lawful protest in public forums remains untouched by virtue of §§14:61(E)(1)–(3).
5. Disposition – District court’s summary judgment for defendants affirmed.

Analysis

1. Precedents Cited & Their Influence

• Ex Parte Young, 209 U.S. 123 (1908) – Framework for suing state officials; majority tightens the “connection” requirement, following recent Fifth-Circuit cases (City of Austin v. Paxton; Texas Democratic Party v. Abbott).
• City of Chicago v. Morales, 527 U.S. 41 (1999) – Standard for vagueness (notice + policing guidelines). Majority distinguishes Morales; dissent finds it controlling.
• United States v. Williams, 553 U.S. 285 (2008) – Clarifies that “close cases” do not doom a statute for vagueness. Majority leans heavily on this to rebut plaintiffs’ hypotheticals.
• Virginia v. Hicks, 539 U.S. 113 (2003); Ward v. Rock Against Racism, 491 U.S. 781 (1989); United States v. O’Brien, 391 U.S. 367 (1968) – Provide the intermediate-scrutiny template used to uphold content-neutral regulations with incidental speech effects.
• Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Adderley v. Florida, 385 U.S. 39 (1966) – Cited to reinforce the State’s authority to exclude protestors from private or non-public property.

2. The Court’s Legal Reasoning

1. Limiting Construction Doctrine
   • Interprets “premises” to mean property where a private owner (or public entity acting as owner in a non-public forum) has legal authority to exclude.
   • Because traditional public forums lack such an owner/lessee with exclusionary rights, the statute cannot be enforced there.
2. Notice to Ordinary Persons
   • Two triggers: (i) designation as private/closed property, and (ii) a direct warning to depart.
   • The majority deems this “objective, fact-based, and readily ascertainable,” defeating vagueness.
3. Guidance to Police
   • Three-part checklist: location, refusal to leave, authority of issuer.
   • Earlier “conflicting” interpretations are eclipsed by the court’s construction, now adopted by the Attorney General.
4. Content Neutrality & Tailoring
   • §14:61 targets conduct (intrusion), not speech; carve-outs in §14:61(E) preserve protest rights.
   • State’s interests: preventing service disruptions, ensuring worker and protestor safety, protecting property.
   • No less-restrictive means required under Ward; “broad prophylactic rule” argument rejected.

3. Impact on Future Litigation & Energy-Infrastructure Protests

• Blueprint for States – Offers a judicially endorsed template: pair felony infrastructure-trespass statutes with explicit carve-outs and rely on a limiting construction to survive constitutional attack.
• Ex Parte Young Tightening – Re-emphasises that attorneys general cannot be sued absent concrete enforcement involvement, complicating strategic plaintiff decisions.
• Standing Doctrine – Reaffirms that chilled-speech claims require traceability to the named defendant; landowners cannot piggy-back on protestor injuries.
• Dissent’s Foothold for Supreme Court Review – Higginson’s textualist critique may encourage certiorari, especially amid nationwide challenges to “critical infrastructure” statutes.
• On-the-Ground Effect – Police now possess appellate guidance; activists must heed “leave” commands on private/right-of-way areas or risk felony charges, but public‐forum protests remain protected.

Complex Concepts Simplified

Conclusion

White Hat v. Murrill crystallises a significant appellate principle: a carefully tailored limiting construction can rescue broadly-worded infrastructure-protection statutes from vagueness and overbreadth challenges. While the majority’s approach fortifies state efforts to shield pipelines and similar facilities, the dissent spotlights lingering uncertainties—especially where property rights are fragmented or where enforcement occurs on waterways and other quasi-public spaces. Going forward, litigants contesting anti-protest statutes will have to grapple with the Fifth Circuit’s three-factor “location–warning–authority” test, and cannot rely on suing top-level officials without concrete enforcement links. Whether the Supreme Court will endorse or recalibrate this balance between infrastructure security and protest rights remains the next chapter.