Posted on April 28, 2009 by Kelly Becker

D.C. Circuit Vacates Interior's Five-Year Leasing Program

By Jessica Gladney

In Center for Biological Diversity v. U.S. Department of the Interior, the United States Court of Appeals for the District of Columbia Circuit issued a ruling on April 17, 2009 vacating the Department of the Interior’s statutorily-mandated five-year offshore oil and gas leasing program for the period 2007-2012. The five-year leasing program included an expansion of lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. Suit was filed against the Department of the Interior by the Center for Biological Diversity and by Alaska native and environmental groups who challenged the leasing program on various environmental grounds. The D.C. Circuit (which has exclusive jurisdiction over a legal challenge to the five-year leasing program) rejected many of the petitioners' claims, but upheld the challenge based on a finding that "the [Leasing] Program's environmental sensitivity rankings are irrational." Accordingly, the court vacated the leasing program and remanded the program to Interior for reconsideration.

To view the entire opinion, please click here.

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Posted on April 20, 2009 by Kelly Becker

Texas Supreme Court Sends Parties to Arbitration in JOA Dispute

By Natalie Barletta

The Texas Supreme Court in, In re Gulf Exploration, LLC, No. 07-0055 (Tex. Apr. 17, 2009), addresses when mandamus relief is available in connection with an order compelling arbitration. In this case, several working interest owners sued Great Western Drilling, their operator, claiming an opportunity to participate in wells drilled by Great Western. The working interest owners moved to compel arbitration pursuant to the terms of the arbitration clause contained in their joint operating agreements. The trial court granted the motion to compel and Great Western sought mandamus relief in the court of appeals. The appellate court held that the trial court “clearly and indisputably” abused its discretion and conditionally granted mandamus relief.
The primary issues before the Supreme Court were: (1) whether the appellate court had jurisdiction to review the trial court’s order compelling arbitration; and, if so, (2) whether the appellate court erred in vacating the trial court’s order on the ground that the claims were outside the scope of the arbitration clause. The court stated the general rule that there can be no immediate appeal of an order compelling arbitration if the order merely stays the underlying litigation. However, an appeal may be taken if the underlying case is dismissed. Here, the trial court merely stayed the case pending arbitration; therefore, there was no final judgment from which to appeal.
The court continued, however, stating that even though an order is not reviewable by interlocutory appeal, mandamus review is not necessarily precluded. The party seeking mandamus relief must show that it has no other adequate remedy by appeal. The adequacy of an appeal is determined on a case-by-case basis by balancing the benefits and detriments of arbitration. Because both federal and state arbitration acts exclude immediate review of an order compelling arbitration, the balance tilts “strongly against mandamus review.” In this case, the court found that there were no counterbalancing legislative mandates indicating that the legislature weighed in on one side of the balance. The court did not reach the issue of whether the claims fell outside the arbitration clause, but even assuming that the claims were not within the arbitration clause, Great Western failed to show that its appellate remedy following arbitration is inadequate. The court directed the appellate court to vacate its judgment, reinstating the trial court’s order compelling arbitration.
 

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Posted on April 6, 2009 by Robert Theriot

A premises owner can still be a statutory employer in Texas, at least for now

 By Andrew Wooley:

The Supreme Court of Texas issued a decision on rehearing in Entergy Gulf States, Inc. v. Summers April 3, 2009. The court’s original unanimous decision in August 2007 that a Texas premises owner can be a statutory employer for workers’ compensation purposes produced a great deal of political heat and a flurry of amicus briefs; so much so that the court departed from its normal practice and entertained oral argument on the motion for rehearing.

On rehearing, three justices joined in the opinion of the court; three justices concurred in different parts of the court’s opinion (two of them writing separate concurring opinions), and three justices dissented from the court’s decision and opinion. The court’s holding, however, did not change. 

In this workers’ compensation case, we decide whether a premises owner that contracts for the performance of work on its premises, and provides workers’ compensation insurance to the contractor’s employees pursuant to that contract, is entitled to the benefit of the exclusive remedy defense generally afforded only to employers by the Texas Workers’ Compensation Act. . . . We hold that the exclusive remedy defense for qualifying general contractors is, likewise, available to premises owners who meet the Act’s definition of “general contractor,” and who also provide workers’ compensation insurance to lower-tier subcontractors’ employees. Because we conclude that Entergy Gulf States, Inc. meets the definition of “general contractor” under the Act, and . . . otherwise qualifies under the Act . . . it is entitled to the exclusive remedy defense against the negligence claims brought by . . . John Summers [a subcontractor’s employee]. We reverse the court of appeals’ judgment and render judgment for Entergy.

The opinion of the court and the concurring and dissenting opinions are available on the court’s web site at http://www.supreme.courts.state.tx.us/historical/040309.asp. They are also available on Westlaw at 2009 WL 884906.

A bill has been introduced in the Texas legislature to “fix” the court’s decision in Entergy, however, so premises owners are well advised to monitor the progress of Texas Senate Bill No. 2063 (http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/SB02063I.pdf) before deciding whether to revise their insurance programs and forms of agreement with maintenance, construction, and other contractors in light of the decision in Entergy.

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