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Oxy USA, Inc. v. Babbitt

ELR Citation: 28 ELR 20025
Nos. 95-31047, 122 F.3d 251/(5th Cir., 09/08/1997)

The court holds that oil and gas lessees failed to state a claim under the Outer Continental Shelf Lands Act's (OCSLA's) citizen suit provision when they challenged the U.S. Department of the Interior's (DOI's) determination that transportation costs are not deductible under the royalty provisions of leases issued by Louisiana in 1942. The court first holds that the legislative history of the OCSLA makes clear that citizen suits can be brought against any governmental agency, including DOI or other agencies or departments with regulatory enforcement authority as to outer continental shelf (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. The court next notes that the lessees purport to challenge an alleged final determination of DOI that gas transportation costs are not deductible from royalty calculations under the 1942 lease form. But the court then holds that the lessees failed to state a claim under the citizen suit provision of the OCSLA. However, the court notes that the lessees essentially have extracted a rule of decision from a series of DOI decisions and injected this rule of decision into the judicial review process as a violation of the OCSLA and the lease terms within the meaning of the citizen suit provision. In effect, the court finds that the lessees are attempting to use the citizen suit provision as an avenue for obtaining judicial review of OCSLA-related agency decisions that is wholly independent of the judicial review procedures set forth in the Administrative Procedure Act (APA). Next, the court holds that Congress did not intend for the citizen suit provision to operate either as a means of obtaining umbrella 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 otherwisewould be to interpret the citizen suit provision as implicitly repealing the APA with respect to such agency action. Neither the text nor legislative history of the OCSLA's citizen suit provision manifests congressional intent to repeal the APA in the circumstances present here. Finally, the court holds that it is unable to discern from the OCSLA a clear and manifest intent to provide via the citizen suit provision, a mechanism by which OCS lessees, situated as are the lessees in this case, could bypass well-established procedures for administrative and judicial review. Thus, the court remands lessees' claim for an entry of dismissal with prejudice.

Counsel for Appellant
George J. Domas
Liskow & Lewis
One Shell Sq., 50th Fl., New Orleans LA 70139
(504) 581-7979

Counsel for Appellees
Tamara Roundtree
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Smith and Wiener, JJ.