Taylor Energy Company LLC v. United States ( 2020 )

Case: 19-1983 Document: 44 Page: 1 Filed: 09/03/2020
United States Court of Appeals
for the Federal Circuit
______________________
TAYLOR ENERGY COMPANY LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1983
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-00012-NBF, Senior Judge Nancy B. Fire-
stone.
______________________
Decided: September 3, 2020
______________________
SETH P. WAXMAN, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC, argued for plaintiff-appellant.
Also represented by CATHERINE CARROLL, SAMUEL M.
STRONGIN; ALIDA C. HAINKEL, LAUREN C. MASTIO, CARL D.
ROSENBLUM, Jones Walker LLP, New Orleans, LA; PAUL A.
DEBOLT, Venable LLP, Washington, DC.
JOHN HUGH ROBERSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by ETHAN P. DAVIS, STEVEN JOHN GILLINGHAM,
ROBERT EDWARD KIRSCHMAN, JR.
Case: 19-1983 Document: 44 Page: 2 Filed: 09/03/2020
2 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
______________________
Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
Under the Outer Continental Shelf Lands Act
(“OCSLA” or the “Act”), the Federal Government regulates
oil and gas operations on the Outer Continental Shelf
(“OCS”). 1 43 U.S.C. § 1301. “[A]ll law on the OCS is federal
law, administered by federal officials.” Parker Drilling
Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1886 (2019).
The Act grants the federal government complete “jurisdic-
tion, control, and power of disposition” over the OCS, while
states have no “interest in or jurisdiction” over it. And, alt-
hough the Act deems an adjacent state’s laws to be federal
law on the OCS to the extent they are “applicable and not
inconsistent” with other federal laws and regulations, state
law cannot be adopted as surrogate federal law if federal
law addresses the relevant issue. Parker Drilling, 139 S.
Ct. at 1889 (citing 43 U.S.C. § 1333(a)(2)(A)).
The Court of Federal Claims recognized this relation-
ship in the underlying proceedings. It dismissed Taylor’s
state law breach of contract claims because, inter alia, the
disputed “contractual” requirements addressed in the
agreement at issue were already governed by OCSLA reg-
ulations. Citing Rodrigue v. Aetna Casualty & Surety, 395
U.S. 352 (1969), the Claims Court explained that state law
cannot undercut a lessee’s regulatory obligations on the
OCS. Only two months later, the Supreme Court affirmed
the precedent upon which the Claims Court relied in
1 The Outer Continental Shelf comprises “all sub-
merged lands lying seaward and outside of the area of
lands beneath navigable waters” within the Gulf of Mexico
or “any of the Great Lakes as they existed at the time such
State became a member of the Union.” 43 U.S.C. § 1331(a).
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 3
Parker Drilling Management Services, Ltd. v. Newton,
holding that “OCSLA makes apparent that federal law is
exclusive in its regulation of the OCS.” 139 S. Ct. at 1889(quotations omitted). “[T]o the extent federal law applies
to a particular issue, state law is inapplicable.” Id.Despite the Court’s clear holding in Parker Drilling,
Taylor argues on appeal that the Claims Court’s Rule
12(b)(6) dismissal was erroneous. It contends that the
agreement somehow transformed Taylor’s regulatory obli-
gations into separate contractual obligations, and that a
breach of these independent contractual obligations, under
Louisiana contract law, may dissolve the security interest
and decommissioning requirements mandated by OCSLA
federal regulations. We disagree. The Court’s precedent,
particularly Parker Drilling, establishes that, for OCS-
based claims, state law cannot contravene federal law. De-
spite Taylor’s attempt to disguise its regulatory obligations
as contractual ones, the Court’s precedent applies in these
circumstances. Accordingly, we reject Taylor’s efforts to
circumvent its regulatory duty to address the 14-mile oil
slick flowing from its leaking wells by purporting to assert
claims under Louisiana state law.
Because OCSLA regulations address the arguments
underlying Taylor’s contract claims, we conclude that Lou-
isiana state law cannot be adopted as surrogate law and
that Taylor’s complaint fails to state a claim upon which
relief may be granted. We therefore affirm.
I. BACKGROUND
A. A Lessee’s Statutory and Regulatory Obligations on
the Outer Continental Shelf
The Department of the Interior (“DOI”) and its admin-
istering arms, the Bureau of Ocean Energy Management
(“BOEM”) and the Bureau of Safety and Environmental
Enforcement (“BSEE”), promulgate and enforce the regu-
lations necessary to administer oil and gas leases under the
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4 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
OCSLA. 43 U.S.C. §§ 1334, 1348. Oil and gas producers,
moreover, are subject to regulations promulgated under
the National Oil and Hazardous Substances Pollution Con-
tingency Plan (“NCP”), which provide the organization and
procedures for responding to oil pollution. See 40 C.F.R.
§ 300. Together, these regulations highlight two themes:
OCS lessees are (1) held to certain regulatory obligations
under federal law; and (2) strictly liable for any pollution
generated by their oil and gas operations.
A company holding a lease to oil and gas wells on the
OCS accrues certain “pollution prevention” obligations. 30
C.F.R. § 250.300(a). Among these is the obligation to “de-
commission”—winding down operations on the OCS after
the lease ends. 30 C.F.R. §§ 30 C.F.R. § 250.1700(a) (defin-
ing decommissioning as “[e]nding oil, gas, or sulphur oper-
ations” and “[r]eturning the lease or pipeline right-of-way
to a condition that meets the requirements of regulations
of BSEE and other agencies that have jurisdiction over de-
commissioning activities.”). To fulfill its decommissioning
obligations, an OCS lessee must, among other duties, per-
manently plug all wells; remove all platforms and other fa-
cilities; decommission all pipelines; and clear the seafloor
of all obstructions. 30 C.F.R. § 250.1703(b)–(e). A lessee
must complete its decommissioning obligations within one
year after the lease terminates, unless BSEE authorizes
alternate procedures or departures. 2 30 C.F.R.
§§ 250.1725, 250.141.
To ensure that lessees have the financial means to sat-
isfy their regulatory obligations under the OCSLA, lessees
must maintain a bond or other security instrument. 30
C.F.R. § 556.900. For example, BOEM will not issue a new
lease or approve the assignment of an existing lease until
2 The alternate procedures must provide a level of
safety and environmental protection that equals or sur-
passes the regulatory requirement. 30 C.F.R. § 250.141(a).
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 5
the lessee maintains a “lease or area-wide” bond with the
Regional Director. 30 C.F.R. § 556.900(a). See also 30
C.F.R. § 556.105 (“Regional Director means the BOEM of-
ficer with responsibility and authority for a Region within
BOEM.”). This is not the only type of security interest a
lessee might expect to maintain, however. BOEM may de-
termine, for example, that “additional security” is neces-
sary “to ensure [a lessee’s] compliance with the obligations
under [its] lease,” and has broad discretion to determine
the supplemental amount. 30 C.F.R. §§ 556.901(d)–(e). In
adjusting the amount of additional bond required, the
agency may consider “cumulative decommissioning obliga-
tions.” 30 C.F.R. § 556.901(c) (“[T]he authorized officer
may accept a lease surety bond in an amount less than the
prescribed amount, but not less than the amount of the cost
for decommissioning.”); 30 C.F.R. § 556.901(e) (“The Re-
gional Director will consider potential underpayment of
royalty and cumulative decommissioning obligations.”).
BOEM may alternatively authorize lessees to establish
“lease-specific abandonment accounts” to satisfy their de-
commissioning obligations. 30 C.F.R. § 556.904. Funds de-
posited into a lease-specific abandonment account must be
“pledged to meet [the lessee’s] decommissioning obliga-
tions” and cover “all decommissioning costs as estimated
by BOEM within the timeframe the Regional Director pre-
scribes.” 30 C.F.R. § 556.904(a)(1)–(2). Funds may not be
withdrawn without the written approval of the Regional
Director. 30 C.F.R. § 556.904(a).
An OCS lessee’s duties are not limited to preventative
and decommissioning measures, moreover. Under the
Clean Water Act, facility owners are strictly liable for any
discharge of oil in navigable waters unless an exception
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6 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
applies. 3 33 U.S.C. § 1321 (1982). The Oil Pollution Act
further establishes that a lessee whose facilities discharge
oil is considered a “responsible party,” and is liable for all
removal costs. See 33 U.S.C. § 2702. A responsible party
for an offshore facility is responsible for up to all removal
costs plus $75,000,000. 33 U.S.C. § 2704(a)(3).
B. Taylor’s OCS Leases and the MC-20 Trust Agreement
In 1994, Taylor became the lessee and operator of three
leases covering areas on the OCS. Taylor Energy Co. v.
United States, 142 Fed. Cl. 601, 605 (Fed. Cl. 2019) (“Taylor
Energy”); J.A. 37. The leases, which were set to expire on
June 28, 2007, incorporated then-present and any later-en-
acted OCSLA-related regulations. J.A. 193, 199, 205. They
also required Taylor to leave the leased area “in a manner
satisfactory to the [Regional] Director.” J.A. 196, 201, 209.
During the lifetime of these leases, Taylor and its prede-
cessor drilled twenty-eight wells, each connected to a single
oil platform called MC-20. Taylor Energy, 142 Fed. Cl. at
605. In 2004, prior to the leases’ expiration, Hurricane
Ivan toppled Taylor’s platform onto the ocean floor, result-
ing in significant damage to the wells and rendering them
inoperable. Id. Taylor surveyed the wreckage and discov-
ered oil leaking from the area, but took no actions to stop
the leaks at the time. J.A. 290–91.
Approximately three years later, Taylor’s MC-20 leases
expired. J.A. 39 § 16. Accordingly, DOI’s Mineral Manage-
ment Service (“MMS”)—the precursor agency to BSEE and
BOEM—ordered Taylor to decommission all the wells at
MC-20 within one year. J.A. 39. At that point, twenty-five
of the twenty-eight wells at MC-20 needed to be decommis-
sioned. J.A. 38. Due to complications from the hurricane
3 33 U.S.C. § 1321(c)(4)(A) lists the exemptions from
liability, which do not apply to the facts underlying this ap-
peal.
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 7
damage, Taylor wrote to MMS requesting a departure from
the default one-year decommission period. J.A. 825–29.
See also 30 C.F.R. § 250.1710. It asked for an “indefinite
time extension” for the completion of its well-abandonment
and structure-removal obligations, insisting that it would
keep MMS informed as to its progress. J.A. 826. MMS re-
jected Taylor’s request for an “indefinite term,” but it did
not require Taylor to complete its MC-20 decommissioning
obligations within one year.
By 2008, Taylor had sold and assigned all of its remain-
ing OCS leases. J.A. 40. MMS, which held approval au-
thority over the assignment of OCS leases, allowed the
assignment but placed a condition on the sale: Taylor
needed to set aside part of the sale proceeds to fund all de-
commissioning obligations at MC-20. J.A. 40. Accordingly,
on March 19, 2008, Taylor as the “Settlor,” MMS as the
“Beneficiary,” and JPMorgan Chase Bank as the “Trustee”
executed a trust agreement (“the Trust Agreement”). J.A.
72. The Trust Agreement also incorporates an Agreement
to Provide Additional Bond (“the Bond Agreement”), which
provides details about the “additional bond” required by
MMS. J.A. 93.
As described by the document, the purpose of the agree-
ment is to provide financial security for “certain obligations
to plug and abandon wells, remove a portion of the platform
and facilities, clear the seafloor of obstructions, and take
corrective action associated with wells and facilities on
[MC-20].” J.A. 72, 74. Schedule A provides the cost esti-
mates for Taylor’s regulatory obligations, including:
(1) plugging and abandoning twenty-five wells; (2) remov-
ing the platform deck; (3) clearing the seafloor of obstruc-
tions; (4) removing pipelines; and (5) removing
contaminated soil. J.A. 41 ¶ 25; J.A. 97–98. Notably, the
Trust Agreement incorporates OCSLA decommissioning
regulations in two areas. First, Schedule A states that Tay-
lor’s work “will conform to MMS regulations contained in
30 CFR 250 Subpart Q . . . and Subpart C.” J.A. 97.
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8 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
Second, the Trust incorporates the terms of the MC-20
leases, which each expressly incorporate OCSLA regula-
tions. J.A. 193, 199, 205. For Taylor to receive reimburse-
ment for completing its decommissioning obligations, the
government must confirm the work was conducted “in ma-
terial compliance with all applicable federal laws and . . .
regulations . . . [and with] the terms and conditions of the
Lease(s).” J.A. 86. The Trust Agreement, however, also
includes a choice of law provision that it “shall be governed
by and construed in accordance with the laws of the State
of Louisiana without giving effect to that state’s conflict of
laws rules.” J.A. 94 ¶ 6.9.
Under the Bond Agreement, Taylor deposited
$466,280,000 into a trust account based on MMS’s “Area-
wide Bond Order,” and an additional $200,000,000 in com-
pliance with MMS’s “Supplemental Bond Order.” J.A.
2389. The Bond Agreement states that the account was
established “in accordance with the requirements of 30
C.F.R. § 256.56 [now 30 § 556.904]”—the regulation gov-
erning lease-specific abandonment accounts. J.A. 2392.
Notably, it stipulates that “[n]either acceptance of this
Agreement by MMS nor fulfillment of this Agreement by
Taylor shall limit Taylor’s abandonment obligations on the
Leases nor MMS’s right to require additional bonding to
guarantee performance of Taylor’s [decommissioning obli-
gations.” J.A. 2391.
C. Taylor’s Decommissioning Efforts
Following the termination of Taylor’s MC-20 leases,
Taylor attempted to fulfill its decommissioning obligations.
This, however, proved to be difficult. The unique wreckage
that resulted from the hurricane hampered “conventional
plugging and abandonment techniques.” J.A. 39. Thus,
the Coast Guard, Taylor, and MMS established a “Unified
Command” to direct all response efforts to contain and
clean up the spill at MC-20. J.A. 39. Through the Unified
Command, the participants performed studies and created
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 9
plans to best perform clean-up at MC-20. The government
ultimately approved a departure from certain standard de-
commissioning procedures, allowing Taylor to plug and
abandon wells by drilling intervention wells. J.A. 45–46.
From April 2008 until March 2011, Taylor drilled interven-
tion wells on nine of the twenty-five wells. J.A. 47–48.
D. The CERA and FRACE Workshops
In 2012, the Unified Command established two work-
ing groups to study the risks associated with drilling inter-
vention wells and the conditions of the contaminated soil.
J.A. 49, 51. After the working groups completed their as-
sessment, the Unified Command created a workshop to
conduct a Consensus Ecological Risk Assessment (“CERA”)
and evaluate the potential ecological impacts of responses.
J.A. 275–76. The CERA workshop released a report in July
2013 (the “CERA Report”), concluding that the risks asso-
ciated with the planned procedures outweighed any ecolog-
ical benefits of performing those tasks. J.A. 52, 263–324.
After the CERA workshop, the Unified Command con-
ducted a Final Risk Assessment and Cost Estimate
(“FRACE”) workshop. J.A. 54. The purpose of the FRACE
workshop was to reach a conclusion on the “remaining risk
posed by the MC-20 site and the estimated cost to mitigate
that risk.” Id. The FRACE workshop considered expert
studies from both Taylor and the government, id, and re-
lied on an assumption that only a few gallons a day were
leaking from the MC-20 site. At the end of the workshop,
the government requested additional time to reach a con-
clusion but did not take further action. J.A. 55.
E. The “United States Views” Document
In March 2014, Taylor began taking steps to relieve it-
self of its decommissioning obligations and recover the re-
maining funds in the trust account. Relying on the FRACE
workshop and its supporting documents, Taylor filed two
departure requests with BSEE: (1) to grant departures
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10 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
from further intervention well decommissioning for the re-
maining sixteen wells; and (2) to grant a departure or al-
ternative procedure authorizing Taylor to leave any
contaminated soil at MC-20 in place. 4 J.A. 56–57; J.A. 575.
On May 11, 2015, BSEE denied Taylor’s requests. J.A.
574–78. The agency first explained that the FRACE work-
shop’s assumptions regarding the daily oil leakage ap-
peared to be incorrect. It observed that “there continues to
be an oil sheen on the sea surface” and that “the average
reported daily oil volume on the sea surface over the past
seven months has been over two barrels [or 84 gallons].”
J.A. 575. BSEE also noted that Taylor had not provided
clear evidence that “hydrocarbons are coming from decon-
taminated sediment and not from leaking or unplugged
wells.” J.A. 576. The agency further explained that Tay-
lor’s requests for departure were denied because of the
“continuing discharge of oil from the MC-20 site,” “Taylor’s
inability to contain the discharge,” and “the possibility that
future plugging and abandonment work and/or the removal
of contaminated sediments may be required.” J.A. 57, 578.
Three days after BSEE denied Taylor’s departure re-
quest, BSEE, BOEM, the Coast Guard, and the Depart-
ment of Justice jointly issued a two-page document
describing the United States’ views on the status of the on-
going oil leaks and Taylor’s obligations at MC-20 (“the U.S.
Views document”). J.A. 56, 565–66. The U.S. Views docu-
ment notes that the ongoing oil discharge far exceeds the
CERA and FRACE workshops’ assumption of an oil dis-
charge comprising a few gallons a day. J.A. 565. The doc-
ument makes clear that the United States does not agree
with the CERA report’s conclusions, J.A. 566, and that Tay-
lor’s decommissioning efforts up until then had been defi-
cient. J.A. 566 (explaining that even if “proper well
4 At this point, BSEE and BOEM had replaced MMS
via new legislation.
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 11
plugging and abandonment is not currently technologically
feasible, there is still more that can be done to control and
contain the oil that is discharging from the well site”). It
acknowledges Taylor’s request to recover the remaining
$432 million in the trust account but concludes that reduc-
tion in funding is unwarranted because the cost of decom-
missioning the remaining wells likely exceeds the amount
held in the Trust. Id. Because “[i]t would be contrary to
the public interest and inappropriate under applicable law
to provide Taylor Energy a release of liability,” the docu-
ment determines that “Taylor Energy must continue to
work to permanently stop the ongoing spill.” Id. at 565–
66. 5
F. Taylor’s IBLA Appeal
On July 9, 2015, Taylor filed a notice of appeal of the
BSEE denial with the Interior Board of Land Appeals
(“IBLA”). J.A. 440–44. This too, was denied. J.A. 3334–
53.
With respect to BSEE’s refusal to relieve Taylor of its
duty to plug and abandon the MC-20 wells, the IBLA ex-
plained that the agency was entitled to defer any action on
decommissioning while it “consider[ed] additional research
studies” for further improvements in decommissioning the
remaining wells. J.A. 3348. “To preclude BSEE from
awaiting changes in technology and a better understanding
5 The existence of the U.S. Views document and the
opinions and conclusions on which it was based directly re-
futes Taylor’s claim at oral argument that “it is undisputed
that Taylor Energy can take no further measures to decom-
mission the MC-20 site without doing more environmental
harm than good.” Taylor Energy Co., LLC v. United States,
No. 19-1983, Oral Arg. at 0:33–0:55, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=19-
1983.mp3.
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12 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
of the undersea environment improperly constrains its
statutory and regulatory authority over offshore well de-
commissioning and unnecessarily limits its overriding re-
sponsibility to protect the environment from the adverse
consequences of offshore drilling and production.” J.A.
3349. The IBLA concluded that BSEE had a rational basis,
supported by the administrative record, to decline relieving
Taylor of its regulatory obligation to permanently plug and
abandon the wells at that time.
The IBLA also found that BSEE had a rational basis
for denying Taylor’s request to leave contaminated sedi-
ment in place. J.A. 3351. It explained that BSEE properly
denied Taylor’s request because, based on the evidence con-
tained in the record, the agency remained convinced that
the contaminated sediment posed a continuing threat to
the undersea environment. J.A. 3349. “Given uncertainty
regarding the source of the sheen, its continuing presence
on the surface, and a potential need for Taylor to remove
contaminated sediment in the future,” the IBLA concluded
that BSEE’s denial was supported by the administrative
record. J.A. 3351. Notably, the IBLA characterized the
trust account as a “lease-specific abandonment account,”
created “to provide a secure source of funding for decom-
missioning undertaken by Taylor or by BSEE (in the event
of default by Taylor).” J.A. 3337. Taylor did not appeal the
IBLA decision. 6
6 An IBLA decision must be appealed to a United
States district court. 5 U.S.C. §§ 701–06 (1976). Neither
the Claims Court nor this court is empowered to review
IBLA decisions. See also Underwood Livestock, Inc. v.
United States, 89 Fed. Cl. 287, 290 (2009), aff’d, 417 Fed.
Appx. 934, 939 (Fed. Cir. 2011) (holding that the Claims
Court and the Federal Circuit do not have jurisdiction to
review IBLA decisions). In addition, both this court and
the Supreme Court have recognized the binding effect of
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 13
II. PROCEDURAL HISTORY
Rather than appeal the IBLA decision to federal dis-
trict court, Taylor filed suit against the government in the
Court of Federal Claims. Taylor’s complaint asserts four
claims involving Louisiana state law: (1) breach of the
Trust Agreement for inserting an indefinite term (Count I);
(2) request for dissolution of the trust account based on
impossibility of performance (Count II); (3) request for
reformation or recission based on mutual error (Count III);
and (4) breach of the duty of good faith and fair dealing
(Count IV). J.A. 60–70. In response, the United States
filed a 12(b)(1) motion to dismiss for lack of jurisdiction
based on the six-year statute of limitations. The govern-
ment also moved to dismiss under Rule 12(b)(6) for failure
to state a claim.
The Claims Court denied the United States’ 12(b)(1)
motion but granted the Rule 12(b)(6) motion and dismissed
the case. With respect to the government’s 12(b)(6) motion,
the court determined that Taylor’s indefinite period claim
(Count I) failed to state a claim upon which relief could be
granted. Applying Louisiana law, the court explained that
“no particular language is required to create a trust” and
the Trust Agreement “without question established a
trust.” Id. at 610 (citing La. Stat. Ann § 9:1753). The court
further noted that, under Louisiana law, a trust without an
explicit term has a default expiration of “fifty years from
the creation of the trust.” Id. at 610 (quoting La. Stat. Ann.
§ 9:1831(4)). Thus, the court reasoned that the Govern-
ment could not be held liable for inserting an indefinite
IBLA decisions on related lawsuits before the Claims
Court. United States v. Utah Constructions and Mining
Co., 384 U.S. 394, 422–23 (1966); Aulston v. United States,
823 F.2d 510, 514–15 (Fed. Cir. 1987).
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14 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
term until 2058—fifty years after the creation of the trust. 7
Id. The Claims Court then concluded that, for the same
reason, the government could not be held liable for breach-
ing its implied duty of good faith and fair dealing (Count
IV) until fifty years had passed. Id. at 610–11.
The court then determined that Taylor’s remaining
claims of impossibility and mutual mistake (Counts II and
III) failed to state a claim because “Taylor’s federal obliga-
tions under the Trust Agreement are not governed by state
law.” Id. at 611. The court noted that the Trust Agreement
“was established to fulfill Taylor’s federal regulatory obli-
gations,” and that these obligations do not terminate until
the Department of Interior says they may. Id. The Claims
Court explained that a finding of impossibility or mutual
mistake would “second guess the IBLA” and independently
relieve Taylor of its regulatory obligations. Id. at 611(“[U]ntil Taylor is relieved of its federal decommissioning
obligations by Interior, this court cannot find on its own
that it is ‘impossible’ for Taylor to comply with its Trust
Agreement obligations or that the Trust Agreement was
entered based on a mutual mistake.”). It then rejected Tay-
lor’s argument that the court must “separate Taylor’s reg-
ulatory obligations under the Trust Agreement from its
regulatory obligations under the OCSLA,” explaining that
7 The parties disputed whether the Claims Court
should apply Louisiana law or federal law in interpreting
the disputed provisions of the Trust Agreement. Taylor
Energy, 142 Fed. Cl. at 609. The Claims Court, however,
declined to address this issue, explaining that it was “a
matter that d[id] not have to be presently resolved.” Ra-
ther, it concluded that, “to the extent the Trust Agreement
regarding the length of performance or term must be con-
strued using Louisiana law . . . Taylor’s claim that the
Trust Agreement is a contract under Louisiana law is not
supported.” Id. at 610.
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 15
such an argument “ignores the fact that the Trust Agree-
ment was entered into to ensure compliance with Taylor’s
federal regulatory obligations.” Id. at 612. The Claims
Court dismissed Taylor’s complaint in its entirety under
Rule 12(b)(6) and denied Taylor’s motion for summary
judgment as moot.
Taylor appealed the Claims Court’s determination. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
III. DISCUSSION
“This court reviews de novo whether the Court of Fed-
eral Claims possessed jurisdiction and whether the Court
of Federal Claims properly dismissed for failure to state a
claim upon which relief can be granted, as both are ques-
tions of law.” Turping v. United States, 913 F.3d 1060,
1064 (Fed. Cir. 2019) (quoting Wheeler v. United States, 11
F.3d 156, 158 (Fed. Cir. 1993)).
Taylor argues that the Claims Court erred in dismiss-
ing Counts II and III of its complaint because, under Loui-
siana state law, it plausibly stated a claim for dissolution
based on impossibility and reformation based on mutual
error. Appellant Br. 37–40. It contends that Counts I and
IV properly alleged that the Trust Agreement includes an
implicit term requiring performance within a “reasonable
time,” pursuant to La Civ. Code Art. 1778. And it main-
tains that the Claims Court’s reliance on Louisiana trust
law was erroneous because Louisiana contract law applies.
Id. at 55.
We need not reach any of those arguments. In the con-
text of OCS-based claims, state law does not apply if fed-
eral law addresses the relevant issue. As evident from the
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16 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
text of the Trust Agreement, the issues underlying Taylor’s
claims are governed by federal law. 8
A.
“The purpose of the Lands Act was to define a body of
law applicable to the seabed, the subsoil, and the fixed
structures . . . on the outer Continental Shelf.” Rodrigue v.
Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969). That this
law was to be federal law “is made clear by the language of
the Act.” Id. at 355–56. The OCSLA denies states any in-
terest in or jurisdiction over the OCS, and it deems the ad-
jacent state’s laws to be federal law only in limited
circumstances. Parker Drilling, 139 S. Ct. at 1886. Section
1333(a)(2)(A) provides:
To the extent that they are applicable and not incon-
sistent with this subchapter or with other Federal
laws and regulations of the Secretary now in effect
or hereafter adopted, the civil and criminal laws of
8 The government also argues in its responsive brief
that the Trust Agreement is a regulatory instrument in its
entirety, such that “no contractual remedy can be available
for any breach by the government.” Appellee Br. 44–45; id.at 41–53. See also J.A. 3337 (finding that the trust account
is a lease-specific abandonment account as defined in the
governing OCSLA regulations). Although this argument is
compelling, see, e.g., Anderson v. United States, 344 F.3d
1343 (Fed. Cir. 2003) (holding that regulatory boilerplate
provisions, added by the government as a regulator, are not
contracts), the government appeared to concede during oral
argument that the Trust Agreement is a contract. See Tay-
lor Energy Co., LLC v. United States, No. 19-1983, Oral
Arg. at 18:55–19:25, available at http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=19-1983.mp3.
Accordingly, although this issue may have been disposi-
tive, we decline to address it.
Case: 19-1983 Document: 44 Page: 17 Filed: 09/03/2020
TAYLOR ENERGY COMPANY LLC v. UNITED STATES 17
each adjacent State, now in effect or hereafter
adopted, amended, or repealed are declared to be
the law of the United States for that portion of the
subsoil and seabed of the outer Continental Shelf,
and artificial islands and fixed structures erected
thereon, which would be within the area of the
State if its boundaries were extended seaward to
the outer margin of the Continental Shelf . . . .
43 U.S.C. § 1333(a)(2)(A) (emphasis added). Section
1333(a)(3) emphasizes that “[t]he provisions of this section
for adoption of State law as the law of the United States
shall never be interpreted as a basis for claiming any inter-
est in or jurisdiction on behalf of any State for any purpose
over the” OCS.
In Parker Drilling Management Services, Ltd. v. New-
ton, the Supreme Court clarified the meaning of the
phrase, “to the extent that they are applicable and not in-
consistent with other federal law,” under § 1333(a)(2)(A).
139 S. Ct. at 1888. The Court concluded that “state laws
can be ‘applicable and not inconsistent’ with federal law
under § 1333(a)(2)(A) only if federal law does not address
the relevant issue.” Parker Drilling, 139 S. Ct. at 1887–89.
It rejected the respondent’s argument that state law is in-
consistent “only if it would be pre-empted under [the
Court’s] ordinary pre-emption principles.” Such an inter-
pretation, explained the Court, is unsupported by the stat-
utory text. Id. at 1888. It noted that OCSLA “extends all
federal law to the OCS, and instead of also extending state
law writ large, it borrows only certain state laws.” Id. at
1889. And, it explained, “[g]iven the primacy of federal law
on the OCS and the limited role of state law, it would make
little sense to treat the OCS as a mere extension of the ad-
jacent State.” Id.Taylor asserts that Parker Drilling “does not alter the
analysis of Taylor Energy’s claims.” Appellant Br. 35 n.10.
It alleges that Parker Drilling “adopted the rule of the Fifth
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18 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
Circuit, which has repeatedly held that state law, as surro-
gate federal law, governs breach-of-contract claims on the
OCS.” Id. And it argues that, at most, we should remand
the case to the Claims Court to consider “the impact of Par-
ker Drilling” in the first instance. Id.We disagree. Parker Drilling makes clear that its
holding accords with the standard “long applied by the
Fifth Circuit” that “state law only applies to the extent it is
necessary to fill a significant void or gap in federal law.”
139 S. Ct. at 1886 (internal quotations omitted); id. at 1889
(citing Continental Oil Co. v. London Steam-Ship Owners’
Mut. Ins. Assn., 417 F.2d 1030, 1036 (1969)). In so stating,
the Court did not broadly exempt its holding from “breach-
of-contract claims on the OCS.” This makes sense. “All law
on the OCS is federal, and state law serves a supporting
role, to be adopted only where there is a gap in federal law’s
coverage.” Parker Drilling, 136 S. Ct. at 1892. Thus, when
interpreting an OCS contract, state contract law applies
only to the extent it is “applicable and not inconsistent”
with federal law. 9
B.
Against this legal backdrop, it is clear that Louisiana
state law applies only where there is a “gap” in federal law.
This application of the law, however, dooms Taylor’s ap-
peal. All of the issues underlying Taylor’s claims—e.g., the
duration of Taylor’s decommissioning obligations, the
9 Indeed, we note that the Fifth Circuit case upon
which Taylor relies acknowledges that “Louisiana contract
law governs the interpretation of the [OCS] contracts at is-
sue, to the extent that law is applicable and not incon-
sistent with OCSLA or with other Federal laws and
regulations.” Total E&P USA, Inc. v. Kerr-McGee Oil &
Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (internal quo-
tations omitted).
Case: 19-1983 Document: 44 Page: 19 Filed: 09/03/2020
TAYLOR ENERGY COMPANY LLC v. UNITED STATES 19
possibility of completing such tasks, and the reimburse-
ment process—are addressed by OCSLA regulations.
For instance, Counts I and IV of Taylor’s complaint are
premised on the application of La Civ. Code Art. 1778,
which requires completion of a party’s contracted perfor-
mance within a “reasonable time” when the agreement is
silent as to the term. J.A. 60–63. But federal law already
addresses the amount of time available to an OCS lessee
for completion of its decommissioning obligations. A lessee
generally must complete its decommissioning obligations
within a year, but BSEE has the authority to modify the
required term at any time. 30 C.F.R. §§ 250.1725, 250.141.
A lessee, moreover, remains liable for decommissioning un-
til all of its wells have been successfully decommissioned to
regulatory standards, or the lessee has obtained express
departures from those requirements. 30 C.F.R.
§ 250.1701(a). Accordingly, La. Civ. Code Art. 1778, which
would effectively limit the duration of a lessee’s liability in
conflict with the OCSLA, does not provide the rule of deci-
sion on the OCS. To the extent Taylor’s OCS-based claims
rely on that law, they necessarily fail.
Similarly, Counts II and III of Taylor’s complaint rely
on La. Civ. Code Art. 1876 and 1877, which provide that a
contract is dissolved “[w]hen the entire performance owed
by one party has become impossible,” J.A. 64–68, but the
satisfaction and feasibility of a lessee’s decommissioning
obligations is already addressed by federal law, 30 C.F.R.
§§ 250.1703, 250.1753–250.1754. In addition, as discussed
above, a lessee’s liability does not end until “each obligation
is met” or BSEE authorizes an express departure. 30
C.F.R. §§ 250.1701, 250.1725, 585.103. Therefore, Louisi-
ana state law addressing the “impossibility” of a lessee’s
decommissioning obligations is not adopted as federal law
and does not apply.
Finally, to the extent Taylor’s OCS-based claims rely
on La. Civ. Code Art. 1759 to allege that Taylor is entitled
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20 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
to recover the remaining trust funds, J.A. 68, federal law
already provides guidance on the financial security related
to a lessee’s decommissioning obligations. 30 C.F.R.
§ 556.900 et seq. As provided by 30 C.F.R. § 556.900, les-
sees must maintain a bond or security instrument to fi-
nance their regulatory obligations under the OCSLA.
BOEM is authorized to order “additional security” to en-
sure a lessee’s compliance with its decommissioning obli-
gations. 30 C.F.R. 556.901(d)–(e). And with respect to a
“lease-specific abandonment account,” such as the one
formed by the Trust Agreement, funds may not be with-
drawn without the written approval of the BOEM regional
director. 30 C.F.R. § 556.904. Accordingly, Louisiana state
law does not apply to the maintenance of a lessee’s OCSLA
financial security.
Indeed, the Trust Agreement itself acknowledges the
applicability of OCSLA regulations to the terms of the
agreement. It incorporates the terms of the MC-20 leases,
as well as the “applicable federal regulations related to
such Leases.” J.A. 74. Schedule A also reaffirms the rele-
vance of federal law, explaining that Taylor’s “work plan
and obligations under this Trust [A]greement will conform
to MMS regulations contained in 30 C.F.R 250 Subpart Q .
. . and Subpart C.” J.A. 97. The incorporated Bond Agree-
ment, moreover, provides that the trust account was estab-
lished in accordance with the lease-specific abandonment
account requirements of 30 C.F.R. § 256.56 [now 30 C.F.R.
§ 556.904]. J.A. 2392. The Trust Agreement’s repeated ref-
erences to the OCSLA regulations erase any doubt that fed-
eral law governs the issues underlying the agreement.
Taylor presents two arguments to the contrary—both
of which are premised on a misreading of precedent and
inconsistent with the Court’s holding in Parker Drilling.
First, Taylor alleges that state law applies because the
Trust Agreement formed separate contractual obligations
answerable only to state contract law. Appellant Br. 43.
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TAYLOR ENERGY COMPANY LLC v. UNITED STATES 21
Notably, Taylor does not dispute that federal law addresses
the issues underlying these “contractual” duties. Rather,
citing to the D.C. Circuit’s decisions in Noble Energy, Tay-
lor maintains that when the government and a lessee enter
into a contract, the government’s breach can release the
lessee from its contractual obligations, regardless of
whether they are otherwise mandated by regulation. Ap-
pellant Br. 43; see Noble Energy, Inc. v. Salazar (“Noble I”),
671 F.3d 1241 (D.C. Cir. 2012); Noble Energy, Inc. v. Jewell
(“Noble II”), 650 F. App’x 9 (D.C. Cir. 2016). In other words,
Taylor argues that the creation of the trust agreement
somehow transformed its regulatory obligations into inde-
pendent contractual obligations, which are no longer sub-
ject to federal law. Appellant Br. 43. And, because the
Trust Agreement’s choice of law provision refers to “the
laws of the State of Louisiana,” Taylor reasons that all of
its claims are subject to Louisiana state contract law. Ap-
pellant Br. 43.
Taylor’s reliance on Noble Energy is unfounded. There,
the lessee, Noble, acquired a lease to drill for oil on roughly
six thousand acres of submerged lands off the coast of Cal-
ifornia. Noble I, 671 F.3d at 1242. It drilled one explora-
tory well, but temporarily plugged and abandoned the well
for twenty-seven years. Id. During those years, Noble ap-
plied for and received several suspensions on its lease. 10
Id. In 1999, two years into its last suspension’s four-year
term, a district court set the suspension aside based on new
amendments to the Coastal Zone Management Act. Id.
The new amendments required suspensions to be con-
sistent with state management plans and Noble’s suspen-
sion had not been assessed for consistency with California’s
10 A suspension extends the life of a lease, which is
generally five years, and defers the lessee’s obligation to
produce oil. Noble I, 671 F.3d at 1242 (citing 43 U.S.C.
§§ 1334(a)(1), 1337(b)(2) & 5).
Case: 19-1983 Document: 44 Page: 22 Filed: 09/03/2020
22 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
coastal management plan. Id. Accordingly, it was revoked.
Reviewing the Court of Claims’ judgment in a suit brought
by Noble against the government based on these facts, we
held the government effectively had repudiated the lease
agreements by applying a newly enacted law not foreseen
by the original lease. Id.; Amber Res. Co. v. United States,
538 F.3d 1358 (Fed Cir. 2008) Noble received restitution
for the breach of contract and was discharged from all obli-
gations arising from its lease agreements. Noble I, 671
F.3d at 1243. Among its discharged contractual duties was
the obligation to “remove all devices, works, and structures
from the premises no longer subject to the lease.” Id.
Subsequently, MMS contacted Noble and ordered it to
complete its decommissioning obligations. Id. at 1243–44.
Noble refused. Id. at 1344. It argued that the govern-
ment’s breach discharged the lessees from any obligations
recited in the contract, including its obligation to “conduct,
arrange or pay for the plugging and abandonment of the
320 # 2 exploratory well.” Id. Noble then sued the Secre-
tary of the Interior and MMS in federal district court, seek-
ing injunctive and declaratory relief. Id. The district court
determined, however, that the common law doctrine of dis-
charge did not relieve Noble of its regulatory obligation to
plug its well permanently because that obligation was not
created by the lease, but by federal regulation.
After initially remanding the case to the agency for
clarity on the scope of § 250.1700 et seq., the D.C. Circuit
affirmed. Id. at 1245–46; Noble II, 650 F. App’x at 11. It
relied on BSEE’s explanation that the regulations govern-
ing a lessee’s decommissioning obligations, 30 C.F.R.
§ 250.1700 et seq., operate independently from any lease
agreement and impose an independent obligation on Noble
to permanently plug the well. “Because the regulations
impose an obligation to plug Well 320-2 regardless of the
government’s breach of the lease contract, Noble’s argu-
ment fail[ed].” Noble II, 650 F. App’x at 11.
Case: 19-1983 Document: 44 Page: 23 Filed: 09/03/2020
TAYLOR ENERGY COMPANY LLC v. UNITED STATES 23
Stripped of Taylor’s mischaracterized depiction, the
Noble Energy cases do little for the appellant. The under-
lying facts are different here (in Noble Energy, the govern-
ment breached a lease agreement by subjecting the lessee
to new “court-mandated” rules); a significant portion of the
D.C. Circuit’s analysis addresses the meaning and scope of
§ 250.1700 et seq., (which is not at issue here); and most
importantly, Noble was still required to complete its regu-
latory decommissioning obligations. Noble Energy does not
suggest that a lessee may be relieved of its regulatory obli-
gations in the event of a breach, just because those obliga-
tions were incorporated into the trust agreement. Rather,
Noble Energy holds that a party must comply with its con-
tractual duties if they are mandated by federal law, even if
the contract is ultimately dissolved.
Taylor’s second argument—that state contract law
principles apply to contracts between the government and
a private party, even where the contract incorporates reg-
ulatory duties—also mischaracterizes the case upon which
it relies. Appellant Br. 41 (citing Mobil Oil Exploration &
Producing Southeast v. United States, 530 U.S. 604, 607
(2000)).
In Mobil Oil, two oil companies sought restitution of a
$156 million up-front payment they made to the Govern-
ment in exchange for ten-year renewable lease contracts.
Mobil Oil, 530 U.S. at 607. Under the governing agree-
ments, the leases would provide the lessees with rights to
explore and develop oil off the North Carolina coast, so long
as the companies received certain permissions governed by
certain federal statutes. 530 U.S. at 610–612. While the
companies attempted to obtain the necessary permissions,
the Outer Banks Protection Act (“OBPA”) came into effect,
prohibiting approval of any exploration plan or drilling
permit unless several new requirements were met. Id. at
612. Because the Secretary could not approve the plans
until these new regulations were met, the petitioners’
plans were delayed and later denied. Petitioners brought
Case: 19-1983 Document: 44 Page: 24 Filed: 09/03/2020
24 TAYLOR ENERGY COMPANY LLC v. UNITED STATES
a breach of contract lawsuit in the Claims Court. The court
ruled in favor of the petitioners, we reversed, and the Su-
preme Court reversed our judgment.
Because the Secretary denied the lessee’s plans for fail-
ure to comply with the new OBPA regulations, the Court
concluded that the government violated the contracts. Id.
at 618. It explained that the OBPA changed the pre-exist-
ing contract-incorporated requirements in several ways,
that the changes were of a kind that the contracts did not
foresee, and that the government communicated its intent
to violate the contracts when it expressed its intent to fol-
low OBPA. Id. at 619–621. After concluding that the com-
panies did not receive significant post-repudiation
performance, the Court ordered the government to refund
certain sums to the companies. Id. at 624.
Mobil Oil has little relevance in the present appeal. In
Mobil Oil, the government repudiated the lease agreement
because its denials relied on newly created statutory au-
thority, outside of those statutes and provisions incorpo-
rated in the original lease agreement, id. at 615. In
contrast, BSEE’s refusal to grant Taylor’s departure re-
quest is in compliance with the OCSLA, and the Trust
Agreement specifically references the OCSLA regulations
that govern the parties’ contractual duties. Mobil Oil says
nothing about the application of state law to provisions
governed by federal regulation at the time the parties en-
tered into the original lease agreement. To the extent Tay-
lor asserts that Mobil Oil stands for the proposition that
state law is applicable in such circumstances, any such
holding was certainly abrogated by Parker Drilling.
Because Taylor fails to state a claim to relief that is
plausible on its face, its complaint must be dismissed. Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009).
Case: 19-1983 Document: 44 Page: 25 Filed: 09/03/2020
TAYLOR ENERGY COMPANY LLC v. UNITED STATES 25
III. CONCLUSION
For these reasons, the Claims Court’s order dismissing
Taylor’s complaint is affirmed.
AFFIRMED
COSTS
Costs to Appellee.