OXY USA, Inc. v. Babbitt ( 1997 )

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-31047
_____________________
OXY USA INC;
Plaintiff - Counter Defendant - Appellant
MOBIL EXPLORATION AND PRODUCING U.S., INC.; CHEVRON USA INC
Plaintiffs - Appellants
v.
BRUCE BABBITT, Secretary Department of the Interior;
DEBORAH GIBBS TSCHUDY, Chief Royalty Valuation and
Standards Division Minerals Management Service Department
of Interior; CYNTHIA QUARTERMAN, Director, Minerals
Management Service, Department of the Interior
Defendants - Counter Claimants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
September 8, 1997
Before KING, SMITH, and WIENER, Circuit Judges.
KING, Circuit Judge:
This is an appeal of a grant of summary judgment in favor of
the government upon review of an alleged final determination of
the Department of the Interior. For the reasons that follow, we
vacate the judgment of the district court as it relates to Count
III and remand for entry of judgment dismissing Count III with
prejudice.
I. BACKGROUND
OXY USA, Inc., Mobil Exploration & Producing U.S., Inc., and
Chevron U.S.A., Inc. (collectively, the “Companies”) are lessees
under several oil and gas leases involving submerged lands in the
Outer Continental Shelf (“OCS”) lying seaward of the State of
Louisiana.1 The oil and gas leases implicated by this action
were granted by the State of Louisiana on the 1942 Louisiana
State Lease form (the “1942 lease form”) at a time when Louisiana
claimed jurisdiction over submerged lands in the Gulf of Mexico.
After a series of Supreme Court decisions established that the
United States had exclusive jurisdiction over submerged lands
seaward of the low-water line,2 Congress enacted the Outer
Continental Shelf Lands Act (“OCSLA” or the “Act”), 43 U.S.C.
§§ 1331-1356, which enabled the United States both to issue new
mineral leases on the lands under its jurisdiction and to
1
Congress has defined the term “Outer Continental Shelf”
to include all submerged lands lying seaward and three miles
outside state waters, “and of which the subsoil and seabed
appertain to the United States and are subject to its
jurisdiction and control.” 43 U.S.C. § 1331(a).
2
See United States v. Texas, 339 U.S. 707 (1950); United
States v. Louisiana, 339 U.S. 699 (1950); United States v.
California, 332 U.S. 19 (1947).
2
validate and maintain as federal leases existing state-issued
mineral leases covering OCS lands. The leases between the State
of Louisiana and the Companies were validated pursuant to section
6 of the OCSLA, id. § 1335. The Companies accordingly pay
royalties to the United States on production from these leases.
The OCSLA vests authority for administering federal OCS
mineral leases in the Secretary of the Interior. Id. § 1334.
The Minerals Management Service (“MMS”) within the Department of
the Interior (“DOI”) is responsible for valuing production from
federal oil and gas leases and collecting royalties on that
production. See 30 C.F.R. pts. 201-203, 206.3 The Royalty
Valuation and Standards Division (“RVSD”)4 of the MMS is
responsible for responding to requests by federal OCS lessees to
deduct transportation costs from royalty payments.
Section 6(b) of the OCSLA provides that the original royalty
provisions of state-issued leases validated under section 6
3
The Minerals Management Service was established on
January 19, 1982, by Department of the Interior Secretarial Order
No. 3071. See 47 Fed. Reg. 6138 (1982). The Director of MMS
operates under the supervision of the Minerals Management Board,
also established by Order No. 3071, which is chaired by the Under
Secretary of DOI. DOI Secretarial Order No. 3071, Amend. No. 1
(May 10, 1982). The stated purpose of establishing a Minerals
Management Board and MMS was to “1) improve the management of and
provide greater management oversight and accountability for the
minerals-related activities previously carried out by the
Conservation Division of the U.S. Geological Survey; and 2) to
eliminate the fragmentation of Outer Continental Shelf (OCS)
activities by consolidating the responsibility for OCS programs.”
Id. Royalty management is one of the major functions of MMS.
See DOI Secretarial Order No. 3071, Amend. No. 2 (May 26, 1982).
4
This division is now known as the Valuation and Standards
Division. We use the former nomenclature in this opinion as it
was in effect when the actions challenged herein occurred.
3
continue to govern. 43 U.S.C. § 1335(b). The regulations issued
pursuant to section 6 provide, in relevant part, that the royalty
provisions of leases maintained under section 6 (subject to
certain provisions of section 6(a) not relevant here) “shall
continue in effect, and, in the event of any conflict or
inconsistency, shall take precedence over these regulations.” 30
C.F.R. § 256.79. Accordingly, the royalty provisions of the 1942
lease form govern the calculation of royalties due the federal
government under the section 6 leases at issue in this suit. The
royalty provisions of the 1942 lease form are as follows:
Should sulphur, potash, oil, gas and/or other
liquid hydro-carbon mineral be produced in paying
quantities on the premises hereunder, then the said
lessee shall deliver to lessor as royalty, free of
expense:
One eighth (1/8) of all oil produced and saved,
including distillate or other liquid hydro-carbons,
delivery of said oil to be understood as made when same
has been received by the first purchaser thereof. Or
lessee may, in lieu of said oil delivery, and at its
option, pay to lessor sums equal to the value thereof
on the premises; provided no deductions or charges
shall be made for gathering or transporting said oil to
the purchaser thereof, or loading terminal, nor shall
any deductions whatsoever be made chargeable to lessor;
provided further, that the price paid lessor for said
oil shall not be less than the average posted pipe-line
or loading terminal price then current for oil of like
grade or quality.
One-eighth (1/8) of all gas produced and saved or
utilized, delivery of said gas to be understood as made
when same has been received by the first purchaser
thereof. Or lessee may, in lieu of said gas delivery,
and at its option, pay to lessor sums equal to the
value thereof at the well, provided no gathering or
other charges are made chargeable to lessor; provided
further that the price paid lessor for said gas shall
not be less than the average price then current for gas
of like character or quality delivered to the pipe line
purchaser in that field.
4
The procedural history of this case begins with a 1985
request by OXY’s corporate predecessor, Cities Service Oil and
Gas Corporation (“Cities”), for a transportation allowance for
production during 1984 under leases OCS-G 0146 and OCS-G 0163.
By letter dated May 30, 1985, the Chief of the RVSD approved this
request and stated that the 1984 transportation allowance was to
be used as a tentative allowance for production during calendar
year 1985. Cities subsequently requested, in a series of letters
and a meeting with RVSD officials, that the transportation
allowance for 1985 be increased to reflect actual transportation
costs for gas production during that year. By letters dated July
21, 1986, and September 19, 1986, the Chief of the RVSD denied
Cities’s requests and also rescinded the RVSD’s earlier approval
of the 1984 transportation allowance. Both letters stated that
leases OCS-G 0146 and OCS-G 0163 were not eligible for
transportation allowances as a result of their section 6 status.5
Cities appealed the RVSD’s decision to the Director of MMS
pursuant to 30 C.F.R. § 290.3. The Director affirmed. OXY then
appealed the decision of the Director to the Interior Board of
Land Appeals (“IBLA”) pursuant to 30 C.F.R. § 290.7 and 43 C.F.R.
pt. 4. In an order issued on October 19, 1992 (the “OXY
5
The findings and conclusions attached to the July 21
letter based this determination on the following language in the
oil royalty clause of the 1942 lease form: “provided no
deductions or charges shall be made for gathering or transporting
said oil to the purchaser thereof.” The findings and conclusions
attached to the September 19 letter based the same determination
on a similar provision in the gas royalty clause of the 1942
lease form: “provided no gathering or other charges are made
chargeable to lessor.”
5
decision”), the IBLA affirmed the decision of the Director. The
IBLA based this decision in part upon its holding in Exxon
Company, U.S.A., 118 IBLA 30 (1991) (the “Exxon decision”), that
a federal lessee may not deduct transportation costs from royalty
payments under the 1942 lease form.
In 1992, OXY, Mobil, and Chevron each requested
transportation allowances for a number of section 6 leases
originally issued on the 1942 lease form. By letters dated
January 28, 1993, January 22, 1993, and January 14, 1993, the
Chief of the RVSD informed OXY, Mobil, and Chevron, respectively,
that these leases were not eligible for transportation allowances
and that their applications for transportation allowances
accordingly were denied. Each letter stated that the lessee had
a “right to appeal this decision” and referred to the procedures
for appeal to the Director of MMS set forth in 30 C.F.R. pt. 290.
We are not able to determine from the record or the briefs on
appeal whether OXY pursued its administrative appeal. Chevron
settled this matter with DOI. Mobil pursued its appeal to the
Director of MMS, and filed with its appeal all of the evidence
which Mobil contends should have been reviewed by the district
court in this case. The Director denied Mobil’s appeal on
February 28, 1995. Mobil subsequently appealed to the IBLA,
which has suspended consideration pending resolution of this
suit.6
6
Although they allege present injury, the Companies do not
discuss the mechanics of making royalty payments and requesting
transportation allowances as regulated by DOI. The Companies
6
The Companies filed this suit against the Secretary of the
Interior, the Director of the Minerals Management Service, and
the Chief of the Valuation and Standards Division (collectively,
the “government”) in federal district court on July 15, 1993,
pursuant to OCSLA, the Federal Oil and Gas Royalty Management Act
of 1982, 30 U.S.C. §§ 1701 et seq., and the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. Counts I and II
of the complaint consist of challenges by OXY to the IBLA’s OXY
decision. Count III -- the claim at issue in this appeal -- is a
more broad-based challenge by all the Companies to an alleged
blanket determination by DOI that gas transportation costs are
not deductible under the 1942 lease form.7 Count III states:
The DOI’s determination that, as a matter of law,
OCSLA Section 6 lessees operating under the 1942
Louisiana State Lease form, such as OXY, Mobil and
assert, without reference to applicable regulations, that
because of Interior’s interpretation of the law, all
three of the appellants are unable to take
transportation allowances to which they claim an
entitlement under their lease terms and the OCSLA.
Mobil has administrative appeals pending which
challenge the agency’s interpretation of the law. It
currently is taking the contested deductions, but it
had to file substantial surety bonds in order to do so
during the pendency of its appeals. Chevron has not
taken the contested deductions, and, as a result, it
has paid more royalties than are due. It will be
entitled to a refund in the event that the lower
court’s ruling in this case is reversed.
Pls.’s Supp. Ltr. Brief, at 17 (footnotes omitted). DOI does not
dispute this scenario.
7
No party challenges the Secretary’s authority to
interpret the terms of a section 6 lease pursuant to his
authority, under 43 U.S.C. § 1334, to administer federal OCS
mineral leases.
7
Chevron, are not entitled to deduct gas transportation
costs from their royalty payments is arbitrary,
capricious, an abuse of discretion, and/or otherwise
not in accordance with law.
The complaint requests “a declaratory judgment that it is
unlawful for the DOI to reject transportation allowances solely
on the basis that OCSLA Section 6 leases granted on the 1942
Louisiana State Lease form preclude the deduction of gas
transportation costs from lessee’s royalty payments.”
According to the factual allegations of the complaint, the
“determination” challenged in Count III is “revealed by” a series
of past DOI decisions. Paragraphs 22-24 of the complaint recount
the IBLA’s Exxon decision, the IBLA’s OXY decision, and the
RVSD’s January 1993 denials of the Companies’ 1992 requests for
transportation allowances. Paragraph 25 alleges that “[t]hese
DOI actions reveal that a final determination has been made by
the DOI that, as a matter of law, OCSLA Section 6 leases granted
on the 1942 Louisiana State Lease form prohibit the deduction of
any gas transportation costs from a lessee’s gas royalty
payments.”
In its answer to paragraph 25, the government “admit[s] that
DOI has made a final determination but aver[s] that the IBLA
decision speaks for itself and is the best evidence of its
contents.” The government subsequently filed with the district
court the administrative record of the IBLA’s OXY decision. No
other administrative record was filed. The government has
maintained throughout this litigation that any judicial review
conducted with respect to Count III should be limited to the
8
administrative record of the OXY decision.
The Companies moved for partial summary judgment on Count
III on October 13, 1993. The Companies argued that DOI’s “final,
judicially reviewable decision that, as a matter of law, the
language of this particular lease form precludes the allowance of
a transportation deduction” is unlawful. In support of their
motion, the Companies offered at least two documents not
contained in the administrative record of the OXY decision -- a
1966 resolution of the Louisiana State Mineral Board (“LSMB”) and
a response by the State of Louisiana to an interrogatory
propounded in other litigation -- which indicated that the State
permits lessees under the 1942 lease form to deduct gas
transportation costs in certain circumstances. The government
filed a cross-motion for summary judgment on all counts in which
it argued that DOI properly construed the gas royalty clause of
the 1942 lease form. Citing the APA, the government urged the
district court to limit its review to the administrative record
in the OXY decision and to decline to consider the 1966 LSMB
resolution and the answers to interrogatories proffered by the
Companies. The Companies replied that Count III was not a suit
for judicial review of agency action pursuant to the APA, but was
a citizen suit under section 23(a) of OCSLA, 43 U.S.C. § 1349(a),
and as such was not subject to the record-review requirements of
the APA.
The district court issued an interlocutory ruling on
December 1, 1994, granting summary judgment in favor of the
9
government on Count III. The court limited its review to the
administrative record of the OXY decision. The court stayed its
consideration of Counts I and II, at the request of the parties,
pending settlement negotiations between OXY and DOI.
OXY and DOI reached a settlement with respect to the OXY
decision several months later. The Companies thereupon attempted
to extricate themselves from the unfavorable result of their
efforts and promptly moved to dismiss all three counts of the
complaint and to vacate the December 1, 1994, interlocutory
ruling. The Companies contended that, in light of the district
court’s decision to limit its consideration of Count III to the
administrative record in the OXY decision, the settlement of that
decision rendered Count III moot. The government opposed the
motion to dismiss Count III and vacate the summary judgment
ruling. The district court granted the Companies’ motion and
entered an order on July 25, 1995, dismissing all counts and
vacating the December 1 interlocutory ruling. The government
moved for reconsideration, arguing that settlement of the OXY
decision did not render Count III moot because “a substantial
controversy remains over the broad issue of Interior’s
interpretation that the costs of gas transportation are not
deductible under the terms of the 1942 lease” and that DOI
“should not be made to defend its position regarding
transportation costs repeatedly and piecemeal.” Upon
consideration of this motion, the district court vacated its July
25 dismissal of Count III and reinstated the December 1 ruling.
10
The district court entered judgment in favor of the government as
to Count III on September 22, 1995.
II. THE CITIZEN SUIT AS AN AVENUE OF APPEAL
The Companies raise three issues on appeal: (1) whether the
district court erred by limiting its review of Count III to the
OXY decision and the administrative record compiled therein, (2)
whether, having limited its review to the OXY decision, the
district court erred by issuing a final judgment on Count III
following settlement of the OXY decision between OXY and DOI, and
(3) whether the district court erred in upholding DOI’s
determination that transportation costs are not deductible under
the 1942 lease form.8
The principal basis for the Companies’ position that the
district court should have considered evidence outside of the OXY
administrative record is that Count III alleges a cause of action
under the citizen suit provision of OCSLA, 43 U.S.C. § 1349(a),
and therefore is not confined to any particular administrative
record. Because the original briefs did not address adequately
the Companies’ contention that Count III is “independently
sustainable” under the citizen suit provision, this court
requested supplemental briefing on the issue. The supplemental
briefs have appreciably clarified the arguments on appeal.
8
Because we conclude that the district court should have
dismissed Count III, we do not reach the substantive issue of
whether the district court erred in upholding DOI’s determination
that gas transportation costs are not deductible under the 1942
lease form.
11
Notwithstanding its posture in the district court, the
government now contends that the citizen suit provision may not
be used to challenge the Secretary’s interpretation of the 1942
lease form because the act of interpreting the 1942 lease form is
a necessary duty undertaken in the Secretary’s administration of
the OCSLA and cannot constitute a “violation” as contemplated by
the citizen suit provision. The government argues in the
alternative that even if the citizen suit provision is a proper
vehicle for challenging a decision of the Secretary rendered in
fulfillment of his duties under the Act, judicial review of any
such decision must proceed in accordance with the standards and
procedures set forth in the APA.
The Companies maintain that the citizen suit provision is a
proper vehicle by which OCS lessees may challenge the Secretary’s
interpretation of royalty obligations as violating OCSLA, its
implementing regulations, or an OCS lease. The Companies further
contend that the OCSLA citizen suit provision displaces APA
concepts of final agency action, exhaustion of administrative
remedies, and judicial review limited to the administrative
record.
We first consider whether Count III states a claim under the
citizen suit provision of OCSLA.9 As it turns out, as regards
9
“In appraising the sufficiency of the complaint we follow
. . . the accepted rule that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957).
12
the Companies, that is all we need decide.
Enacted as section 23(a) of the 1978 amendments to OCSLA,
the citizen suit provision establishes a mechanism by which
citizens, including lessees, employees, and local and state
governmental officials, can participate in the Act’s enforcement.
See H.R. REP. NO. 95-590, at 161 (1977), reprinted in 1978
U.S.C.C.A.N. 1450, 1566-67. Section 23 (a) provides, in relevant
part:
[A]ny person10 having a valid legal interest which is
or may be adversely affected may commence a civil
action on his own behalf to compel compliance with this
subchapter against any person, including the United
States, and any other government instrumentality or
agency (to the extent permitted by the eleventh
amendment to the Constitution) for any alleged
violation of any provision of this subchapter or any
regulation promulgated under this subchapter, or of the
terms of any permit or lease issued by the Secretary
under this subchapter.
43 U.S.C. § 1349(a)(1). The legislative history makes clear that
citizen suits can be brought against any governmental agency,
“including the Department of Interior or other agencies or
departments with regulatory or enforcement authority as to OCS
activities” alleged to be in violation of the Act, its
implementing regulations, or the terms of any lease or permit
issued under the Act. H.R. REP. NO. 95-590, at 161, reprinted in
1978 U.S.C.C.A.N. at 1567.
For purposes of this case, we will assume without deciding
10
The Act defines “person” to include “a natural person,
an association, a State, a political subdivision of a State, or a
private, public, or municipal corporation.” 43 U.S.C. 1331(d).
The government concedes that federal lessees are “persons” as
defined by the Act.
13
that section 23(a) creates a right of action under some
circumstances to challenge the Secretary’s interpretation of the
terms of a section 6 lease as a violation of OCSLA or the lease
terms. The question is whether this is one of those
circumstances.
As we have indicated, Count III purports to challenge an
alleged “final determination” of DOI that gas transportation
costs are not deductible from royalty calculations under the 1942
lease form. This “final determination” is allegedly “revealed”
by a series of past DOI decisions in individual cases, although
Count III does not challenge these individual decisions per se.
As the Companies emphasize in their opening brief on appeal,
their motion for partial summary judgment on Count III “was not
for judicial review of the OXY Decision, but rather, in keeping
with Appellants’ broader action stated in Count III, Appellants
sought a broader review of Interior’s ‘final determination.’”
The Companies further state in their reply brief that
Interior erroneously characterizes Appellants’ Count
III claim as seeking judicial review of the agency’s
Exxon decision. Appellants recognize that they were
not parties in the Exxon appeal. However, Appellants
have had their transportation allowance requests denied
based on the agency’s final determination through the
Exxon and OXY Decisions; and this final agency
determination entitles them to the declaratory relief
sought in Count III.
While the “final determination” challenged in Count III is
“revealed by,” “reflected in,” and otherwise manifested “through”
the OXY decision, the Exxon decision, and the RVSD’s 1993 denials
of transportation allowances requested by OXY, Mobil, and Chevron
14
in 1992, it does not consist of any agency action apart from
these decisions. No party claims that DOI has issued a rule,
regulation, or general statement of policy definitively
interpreting the gas royalty clause of the 1942 lease form. To
the contrary, the record reflects that DOI has heretofore
determined the appropriateness of gas transportation allowances
under leases issued on the 1942 lease form on a case-by-case
basis with due regard to the particular administrative record
before it in any given instance.
The Companies essentially have extracted, for lack of a
better term, a “rule of decision” from a series of DOI decisions
-- both final and nonfinal, and not all involving parties to this
suit -- and injected this “rule of decision” into the judicial
review process as a “violation” of OCSLA and the lease terms
within the meaning of the citizen suit provision. In effect, the
Companies are attempting to use the citizen suit provision as an
avenue of obtaining judicial review of OCSLA-related agency
decisions that is wholly independent of the judicial review
procedures set forth in the APA.11 The review sought by the
11
The Companies have not put all their eggs in the citizen
suit basket. They apparently predicate their claim for relief
from DOI’s alleged “final determination” also on § 704 of the
APA, 5 U.S.C. § 704, although this is not clear either from the
complaint or from their briefs (which occasionally use the term
“supported by” as regards § 704). The Companies disclaim any
intent to limit their § 704 claim to the OXY decision or the
administrative record that supports it. Rather, they assert that
“[b]ecause the OXY Decision is not the only component of the
final agency determination that Appellants challenge, the OXY
Decision cannot limit the scope of judicial review.” They cite
no authority for this novel claim under § 704, and it is
meritless.
15
Companies, moreover, is de novo -- not limited to the
administrative record and not subject to the “arbitrary and
capricious” standard of review as required by the APA. In fact,
the Companies emphasize in their opening brief that “[t]he very
reason for Appellants’ joint action was to demonstrate, based on
evidence not included in Interior’s decisions, the unlawfulness
of Interior’s final determination that gas transportation costs
are not deductible.”
Significantly, although the Companies go to some lengths to
make clear that they are not appealing the OXY decision or the
RVSD’s 1993 denials of their 1992 requests for transportation
allowances, the inescapable fact is that they seek to overturn
the results of the OXY decision and the RVSD’s 1993 denials.
These decisions either have been settled or, by their own terms
and under applicable regulations, are subject to further review
within the agency.12 See 30 C.F.R. §§ 290.1 - 290.7; 43 C.F.R.
§ 4.21(c).
We do not think that Congress intended for the citizen suit
provision to operate either as a means of obtaining “umbrella”
12
The OXY decision and the dispute arising from the RVSD’s
January 1993 denial of Chevron’s 1992 request for a
transportation allowance have been settled and therefore are moot
as to those parties. See ITT Rayonier, Inc. v. United States,
651 F.2d 343, 345 (5th Cir. 1981) (“Generally settlement of a
dispute between two parties renders moot any case between them
growing out of that dispute. A court finds mootness even if the
parties remain at odds over the particular issue they are
litigating.”). The RVSD’s January 1993 denials of OXY and
Mobil’s 1992 requests for transportation allowances are, by their
own terms, appealable within DOI. As noted earlier, Mobil has an
administrative appeal of this decision pending before the IBLA.
16
review for a series of agency decisions that were or will be
otherwise subject to judicial review under the APA, or as an
express avenue for appealing to the district court an initial
agency decision that is subject to further review within the
agency. To hold otherwise would be to interpret the citizen suit
provision as implicitly repealing the APA with respect to such
agency action. It is well-settled that repeals by implication
are not favored. Watt v. Alaska, 451 U.S. 259, 267 (1981);
United States v. Cavada, 821 F.2d 1046, 1047-48 (5th Cir. 1987).
In construing statutes not entirely harmonious with one other,
courts presume that the legislature intended to maintain
consistency in the law. 1A NORMAN J. SINGER, SUTHERLAND ON STATUTES AND
STATUTORY CONSTRUCTION § 23.09, at 338 (5th ed. 1993). As this court
has stated,
[e]ven if two statutes conflict to some degree, they
must be read to give effect to each, if that can be
done without damage to their sense and purpose, unless
there is evidence either in the text of the statute or
its legislative history that the legislature intended
to repeal the earlier statute and simply failed to do
so expressly.
Cavada, 821 F.2d at 1048 (footnote omitted). The legislature’s
intent to repeal must be “clear and manifest.” Watt, 451 U.S. at
267. The Supreme Court recognized this principle in a recent
decision construing the citizen suit provision of the Endangered
Species Act(“ESA”), 16 U.S.C. § 1540(g)(l)(B),(C):
[I]nterpreting the term “violation” to include any
errors on the part of the Secretary in administering
the ESA would effect a wholesale abrogation of the
APA’s “final agency action” requirement. Any
procedural default, even one that had not yet resulted
in a final disposition of the matter at issue, would
17
form the basis for a lawsuit. We are loathe to produce
such an extraordinary regime without the clearest of
statutory direction, which is hardly present here.
Bennett v. Spear, 117 S. Ct. 1154, 1166-67 (1997).
We agree with the government that neither the text nor
legislative history of section 23(a) manifests congressional
intent to repeal the APA in the circumstances present here.13
The legislative history indicates that the 1978 amendments to
OCSLA were intended to expedite development of the OCS as well as
to protect the marine and coastal environment. See H.R. REP. NO.
95-590, at 53, reprinted in 1978 U.S.C.C.A.N. at 1460. The
legislative history provides in relevant part:
The OCS Lands Act of 1953 has never really been
amended and is outmoded. No legislation exists for
coordination and compensation for injury to other users
of the OCS besides the oil and gas industry. No
comprehensive national legislation presently exists for
responsibility and liability for the effects of oil
pollution resulting from activities on the Shelf. In
addition, specific mechanisms are needed to involve
states, and local governments within states, in all OCS
decisions.
Id. We recognize that Congress also intended to “[r]educe
frivolous lawsuits and delays by providing consolidated and
expeditious procedures for citizen suits and judicial review.”
Id. at 54. We find no indication in the legislative history,
however, that the “delays” referred to are associated with the
administrative process, guided by the regulations and the APA,
13
We emphasize that our decision today is limited to the
unique facts of this case. We do not decide the broader question
raised by the parties of whether all judicial review of agency
action challenged pursuant to section 23(a) must comport with the
requirements of the APA.
18
that has been in effect throughout the life of the OCSLA.
Reading the statute and its history as a whole, we are unable to
discern a “clear and manifest” intent to provide, via section
23(a), a mechanism by which OCS lessees, situated as are the
Companies in this case, could bypass well-established procedures
for administrative and judicial review.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is VACATED as to Count III, and this case is REMANDED for
entry of judgment dismissing Count III with prejudice. Each
party shall bear its own costs.
19