Insight

USA v. Moss Limits Regulatory Jurisdiction on the OCS

The U.S. Department of the Interior (DOI) has primary regulatory jurisdiction over OCS oil and gas operations. Following the Deepwater Horizon incident in 2011, the Bureau of Ocean Energy Management (BOEM) was created to issue leases and the Bureau of Safety and Environmental Enforcement (BSEE) established to promote safety, protect the environment, and conserve national resources.

USA v. Moss
Grady S. Hurley

Grady S. Hurley

November 16, 2017 11:11 AM

Activities on the Outer Continental Shelf (OCS) involve a confluence of state, federal, and maritime laws and jurisdiction. In a recent decision (USA v. Don Moss, et al., 872 F.3d 304 [5th Cir. 2017]), however, the U.S. Court of Appeals for the Fifth Circuit determined that certain provisions of one key law—the Outer Continental Shelf Lands Act (OCSLA)—do not apply to offshore contractors working for lessees and operators involved in the exploration and production of hydrocarbons. While not limiting contractors’ exposure and obligations regarding environmental and safety regulations in their entirety, the court’s ruling certainly reduces one area of risk.

Exploration and production of minerals and petroleum on the OCS often involves the use of special purpose vessels—including fixed platforms—as well as the services of a variety of vendors and systems to support these activities. Applicable laws and regulations are complex, often overlap, and include the following, among others:

Fixed platforms constructed on the OCS for drilling and production are considered artificial islands subject to federal jurisdiction with state law applying as surrogate federal law (Rodrigue v. Aetna, 395 U.S. 352 [1969]).

Maritime law applies to offshore activities requiring the use of service vessels and mobile drilling units to explore, produce, and transport (Union TX Petroleum v. PLT Eng., 895 F.2d 1043 [5th Cir. 1990]; Hufnagel v. Omega Svcs. Ind., Inc., 182 F.3d 340 [5th Cir. 1999]).

In 1953, Congress enacted the OCSLA (43 U.S.C. § 1331) to establish federal jurisdiction and to enforce federal safety and environmental regulations against the holder of a lease or permit to drill and produce hydrocarbons (33 U.S.C. § 1348[b]).

The U.S. Department of the Interior (DOI) has primary regulatory jurisdiction over OCS oil and gas operations. Following the Deepwater Horizon incident in 2011, the Bureau of Ocean Energy Management (BOEM) was created to issue leases and the Bureau of Safety and Environmental Enforcement (BSEE) established to promote safety, protect the environment, and conserve national resources.

Enforcement of regulations over specific activities has been coordinated through Memoranda of Understanding (MOUs) between federal agencies, such as the U.S. Coast Guard, Occupational Safety and Health Administration, and BSEE, where there is dual jurisdiction.

In its September 2017 Moss decision, the Fifth Circuit examined, in the criminal context, whether charges and violations under OCSLA extended to offshore contractors working for lessees and operators. The case arose out of a welding accident and explosion on a fixed OCS platform, which resulted in property damage, personal injury, and death. The federal government indicted not only the platform owner and operator, but also its contractors for violations under the OCSLA and Clean Water Act (33 U.S.C. § 1251) as well as for manslaughter.

The contractors challenged the application of certain regulations and jurisdiction, including that of BSEE, to their work performed on behalf of the operators and lessees involved. The OCSLA regulatory claims against the contractors were dismissed by the district court. In affirming the lower-court decision, the Fifth Circuit analyzed the wording and intent of the OCSLA legislation and the historical treatment of OCS regulations by the DOI over the past 60 years. The Fifth Circuit then held that OCSLA regulations specifically directed at the lessee and permittees did not extend to their contractors and other individuals.

A broad reading of this decision should extend its reasoning to other civil violations and citations filed against contractors for alleged violations of safety regulations by BSEE. For example, the Fifth Circuit decision in Moss is in accordance with and should serve to affirm the district court decision in Island Operating Co., Inc. v. Jewell (2016 WL 7436665 [W.D. La. 2016]), currently pending appeal and which questions the authority of BSEE to issue an Incidence of Non-Compliance (ION) to a contractor working on the OCS for an operator.

Even though offshore contractors may not be subject to specific OCSLA regulations, the operators and lessees will be. Contractors’ civil liabilities to third parties in tort, however, will be measured by contractual obligations they may assume for safety and environmental management in bridging and interface agreements entered into with their customers who are the operators of lessees. For now, jurisdiction on the OCS and the applicable laws are strictly construed in the context of regulatory violations.

----------------------------

Grady Hurley is a partner in the admiralty and maritime practice group at Jones Walker in New Orleans. His practice has focused in the areas of maritime, oilfield, and energy litigation and transactions since 1979. In his maritime practice, he has engaged in both brown water, offshore energy, and blue water litigation, including writs to the U.S. Supreme Court and the Louisiana Supreme Court. He is also a certified mediator focused on maritime, offshore industry, and energy disputes. He can be contacted at ghurley@joneswalker.com.

Related Articles

Steve Yerrid Proves He’s a Top Gun among America’s Trial Lawyers…Again


by Nicole Ortiz

Trial lawyer Steve Yerrid’s career spans four decades, with continuous inclusion in Best Lawyers® since the 80s and over 250 verdicts and settlements of seven figures or more.

Steve Yerrid

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Discover The Best Lawyers in Spain 2025 Edition


by Jennifer Verta

Highlighting Spain’s leading legal professionals and rising talents.

Flags of Spain, representing Best Lawyers country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs


by Gregory Sirico

Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.

Animated man in suit being erased with Paramount logo in background

Introduction to Demand Generation for Law Firms


by Jennifer Verta

Learn the essentials of demand gen for law firms and how these strategies can drive client acquisition, retention, and long-term success.

Illustration of a hand holding a magnet, attracting icons representing individuals towards a central

Social Media for Law Firms: The Essential Beginner’s Guide to Digital Success


by Jennifer Verta

Maximize your law firm’s online impact with social media.

3D pixelated thumbs-up icon in red and orange on a blue and purple background.