The saga of the U.S. Customs and Border Protection’s (CBP) ten-year effort to amend its interpretation of key components of the Jones Act continues. After failed attempts to expand the scope of the Jones Act’s prohibition on activities by non-coastwise endorsed vessels in 2009 and 2017, CBP recently published a notice of proposed modification and revocation of certain ruling letters interpreting the Jones Act (see https://liskow.sharefile.com/d-s45a327d7ae7441e9). Unlike its recent, unsuccessful efforts to amend its interpretations, the current proposal attempts to expand one prohibition while narrowing another.Continue Reading Possible Change to Jones Act Interpretations Regarding Coastwise Activities
SCOTUS Decides Dutra Group v. Batterton
Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages. The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue. The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel. Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.Continue Reading SCOTUS Decides Dutra Group v. Batterton
Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms
In a decision that could have far-reaching implications, the United States Supreme Court issued a June 10 opinion holding that California’s wage-and-hour laws do not apply to workers on oil and gas platforms located in open water on the Outer Continental Shelf. The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform.
Continue Reading Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms
Alaska District Court Vacates Trump Executive Order On Offshore Leasing
On March 29, 2019, Alaska Federal District Court Judge Sharon Gleason granted summary judgment in favor of plaintiff environmental groups in League of Conservation Voters v. Trump, 3:17-00101. The case stems from Executive Orders issued under the Obama Administration in 2015 and 2016 which withdrew certain areas in the Arctic and Atlantic regions from exploration and development under the offshore oil and gas leasing program. President Trump issued an Executive Order in 2017 which revoked the Obama withdrawals. The Court’s summary judgment ruling vacated certain portions of the 2017 Trump Executive Order and concluded that the prior Obama Orders would remain in place. In effect, the ruling removes the areas in the Arctic and the Atlantic covered in the Obama Orders from the five-year leasing program proposed by the Trump Administration.
Continue Reading Alaska District Court Vacates Trump Executive Order On Offshore Leasing
FIFTH CIRCUIT BEGINS TO CLEAN UP ITS JURISPRUDENCE ON HOW TO DETERMINE WHETHER A CONTRACT IS (OR IS NOT) MARITIME
After some thirty years of wrestling with the cumbersome six-part test set forth in Davis & Sons, Inc. v. Gulf Oil Corp.,[1] for determining whether a contract to perform services related to oil & gas exploration on navigable waters is maritime, the Fifth Circuit took up In re Larry Doiron, Incorporated[2] earlier this year in an effort to streamline the test and bring clarity to an area of the law mired in uncertainty.
Continue Reading FIFTH CIRCUIT BEGINS TO CLEAN UP ITS JURISPRUDENCE ON HOW TO DETERMINE WHETHER A CONTRACT IS (OR IS NOT) MARITIME
Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law
The stage appears to be set for intervention by the United States Supreme Court following the Ninth Circuit’s recent panel decision in Batterton v. Dutra Group, No. 15-56775 (9th Cir. Jan. 23, 2018). In Batterton, the Ninth Circuit expressly disagreed with the Fifth Circuit in holding that an injured seaman may recover punitive damages in a claim for unseaworthiness against a vessel owner under the general maritime law. Compare McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014) (en banc). The circuit split, which follows disagreement among the lower courts, hinges on differing views of the impact of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) on this area of law.
Continue Reading Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law
Highly Anticipated En Banc Fifth Circuit Opinion Reframes Maritime Contract Analysis
In a highly anticipated ruling, the United States Fifth Circuit Court of Appeals issued its en banc decision in In re: Larry Doiron, Inc., No. 16-30217 (5th Cir. Jan. 8, 2018). The case called upon the court to determine whether a contract for performance of specialty services to facilitate the drilling or production of oil and gas on navigable waters is maritime in nature. In ruling that the particular contract at issue in the case was non-maritime, the Fifth Circuit took the significant step of streamlining and re-framing the analysis for maritime contracts generally.
Continue Reading Highly Anticipated En Banc Fifth Circuit Opinion Reframes Maritime Contract Analysis
The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies
In the aftermath of a 2012 platform explosion in the Gulf of Mexico in which three workers were killed, the Department of Justice ultimately indicted the contractors who supervised the work (along with the lease holder, Black Elk Energy Offshore Operations, LLC) with violating the Outer Continental Shelf Land Act (“OCSLA”), a felony carrying a maximum penalty of up to ten years imprisonment. The contractors were also charged with certain misdemeanor Clean Water Act violations. The contractors moved to dismiss the OCSLA charges on the basis that their conduct – as contractors – was not covered by OCSLA because they were not the lease holder or operator. The district court agreed and dismissed those charges, after which the government appealed. Earlier this week, the Fifth Circuit ruled against the government finding that contractors cannot criminally violate these OCSLA regulations. United States v. Moss, et al, No. 16-30561 (5th Cir. Sept. 27, 2017).Continue Reading The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies
Fifth Circuit Dismisses False Claims Act Suit Alleging Violation Of Offshore Regulations
In Abbott v. BP, the plaintiffs alleged that BP had falsely certified to compliance with regulatory requirements pertaining to the engineering of the Atlantis Platform, a semi-submersible floating production facility capable of producing more than 100,000 barrels/day. Based on these allegations, Plaintiff Kenneth Abbott filed a qui tam suit under the False Claims Act (FCA), asserting that BP had obtained approval to produce oil from the Department of the Interior by falsely certifying to compliance with regulatory engineering standards. Abbott’s FCA damages claim exceeded $70 billion (reduced from an original claim of $266 billion). In the same lawsuit and based on the same allegations of regulatory noncompliance, Abbott and plaintiff Food & Water Watch, Inc. filed a citizen suit under the Outer Continental Shelf Lands Act (OCSLA), seeking an injunction of production from the Atlantis platform. In 2014, the district court granted summary judgment in favor of BP on all claims, finding no material fact in dispute about BP’s regulatory compliance. On March 14, 2017, the Fifth Circuit affirmed the district court’s ruling.
Continue Reading Fifth Circuit Dismisses False Claims Act Suit Alleging Violation Of Offshore Regulations
Oregon Federal Court Issues Remarkable Decision Finding Constitutional Right to Stable Climate
On November 10, 2016, Judge Ann Aiken, a federal district judge in Oregon, issued a remarkable environmental law decision in which she found that a climate system “capable of sustaining human life” is a fundamental constitutional right.[1] Juliana v. United States challenges the constitutionality of the United States’ decades-long policy on climate change.[2] The plaintiffs, a group of 21 children and young adults, sued the United States and various government officials[3] alleging that they have known for more than five decades “that the carbon dioxide produced by burning fossil fuels was destabilizing the climate system in a way that would ‘significantly endanger plaintiffs, with the damage persisting for millennia.’”[4] According to the plaintiffs, the defendants have failed to take necessary action to curtail fossil fuel emissions, and the government and its agencies “have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation.”[5]