Geophysical Corp. of Alaska v. Andrus

Decision Date24 July 1978
Docket NumberNo. A78-27 Civil.,A78-27 Civil.
Citation453 F. Supp. 361
PartiesGEOPHYSICAL CORPORATION OF ALASKA, Plaintiff, v. Cecil D. ANDRUS, Secretary of the Interior and Rodney A. Smith, Department of the Interior, Geological Survey, Oil and Gas Supervisor, Alaska Area, Defendants.
CourtU.S. District Court — District of Alaska

Robert Mintz, of Burr, Pease & Kurtz, Anchorage, Alaska, for plaintiff.

Alexander O. Bryner, U. S. Atty. for Alaska, Anchorage, Alaska by Rene J. Gonzalez, Asst. U. S. Atty., Laredo, Tex., for defendants.

MEMORANDUM AND ORDER

von der HEYDT, Chief Judge.

THIS CAUSE comes before the court on cross motions for summary judgment. These motions present primarily an interpretation of certain provisions of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq.

The OCSLA is a broad enactment of significant impact. See generally Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan.L.Rev. 23 (1953). The provisions which concern the court in this action are section 5(a)(1), 43 U.S.C. § 1334(a)(1), and section 11, 43 U.S.C. § 1340.

Plaintiff is a corporation engaged in geophysical exploration of the Outer Continental Shelf (OCS). Geophysical exploration involves, generally, some form of magnetic or seismic measurement of the seabed. When coupled with geological exploration it is a necessary preliminary step leading toward the discovery of oil and gas deposits on the OCS. See generally 4 Summers, Oil & Gas, § 659.

Plaintiff conducts its business and generates earnings essentially under two types of arrangements. It may contract with an oil company to test certain areas. In such situations the plaintiff is paid for the information gathered at a prearranged amount. The data collected is, in essence, the product of the company and is not generally available to the public.

As an alternative business practice the corporation may conduct geophysical exploration at its own risk without a prior contract to sell the data. This information apparently is then sold on the open market. This data is likewise plaintiff's business product and confidentiality is essential to its value. Ballard v. Claude Drilling Co., 149 Kan. 506, 88 P.2d 1021, 1023 (1939).

In 1976 the Secretary of the Interior promulgated certain regulations dealing with geophysical exploration of the OCS. Three of those regulations, 30 C.F.R. § 251.12(b), 30 C.F.R. § 251.13, and 30 C.F.R. § 251.14(c) are challenged herein. 30 C.F.R. § 251.12(b)1 provides in essence that a representative of the Secretary shall have the right to inspect the geophysical data collected and obtain copies of the data.2 30 C.F.R. § 251.133 provides compensation for the above data. That compensation covers reproduction and processing costs only "as distinguished from the cost of data acquisition." 30 C.F.R. § 251.13(b). Finally, 30 C.F.R. § 251.14(c)4 establishes that at a future time this information will be disclosed to the public.

Thus, plaintiff's motivation in this action is readily apparent. Its business product is confidential information and these regulations provide the Secretary and, at some future time, the public with access to the information with no reimbursement for the expense entailed in gathering the data.5 Two basic challenges are leveled at the regulations. The first is that they are in contravention of the OCSLA. The second is that their operation constitutes an unauthorized taking of property without just compensation.6 Jurisdiction is predicated expressly upon 43 U.S.C. § 1333(b). Whether or not that section can confer jurisdiction in this case it is clear that 28 U.S.C. § 1331(a) is an appropriate jurisdictional base. Plaintiff seeks declaratory and injunctive relief.

Statutory Authorization

The first area of attack upon the regulations is that they are not authorized by the OCSLA and/or they are inconsistent with that Act. To understand fully the basis for the claim and defendants' response, two sections of the Act are important. Section 11 of the OCSLA specifically deals with geophysical exploration. It states that:

Any agency of the United States and any person authorized by the Secretary may conduct geological and geophysical explorations in the outer Continental Shelf, which do not interfere with or endanger actual operations under any lease maintained or granted pursuant to this subchapter, and which are not unduly harmful to aquatic life in such area.

Three matters concerning this section are apparent and undisputed. The Secretary must authorize any geophysical exploration on the OCS and such exploration may not interfere with preexisting leases nor endanger aquatic life. The focus of this portion of the controversy is over what other matters may be considered in authorizing geophysical exploration. Plaintiff takes the position that interference with preexisting leases and danger to aquatic life are the Secretary's only legitimate concerns in granting geophysical exploration authorizations. The Secretary takes the position that these factors are the only ones which must be considered but that others consistent with his duties under the Act may also be considered in granting authorizations. In relation to these regulations the Secretary relies on section 5(a) of the Act which provides, inter alia, that

The Secretary may at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf . . ..

Plaintiff does not contend that these regulations are not helpful to the Secretary in discharging his responsibilities pursuant to section 5(a)(1). See generally State of Fla. v. Mathews, 526 F.2d 319, 323 (5th Cir. 1976). Nor does it appear that the Secretary contends that these regulations in any manner relate to his duty to avoid interference with preexisting leases and protect aquatic life. The issue which is presented, therefore, is whether section 5(a)(1) based regulations generally can qualify a section 11 authorization.

The competing contentions in this regard are quite straightforward. Plaintiff's argument is based in substantial part upon the legislative history of section 11. The genesis of that section is found in section 17 of H.R. 5134. Section 17 of H.R. 5134 recognized the right of any person, subject to applicable provisions of law, to conduct geophysical exploration which did not interfere with leases issued under the Act. See House Report No. 413, 2 U.S.Code Cong. and Admin.News, 83rd Cong. First Sess., pp. 2177, 2183 (1953). The Senate Bill, S. 1901, contained no comparable provision. In commenting on the two proposals an Assistant Attorney General stated:

The House Bill . . . recognizes the right of any person . . . to conduct . . . geophysical explorations that do not interfere with or endanger actual operations under any lease issued pursuant to the act. Such provision may be desirable, but might well be conditioned on securing a permit from the Secretary . . . rather than leaving it to the individual . . . to decide what will interfere with or endanger operations.

S.Report No. 411 to accompany S. 1901, p. 39 (1953). Apparently in response to this suggestion the change was made in section 17 of H.R. 5134 and that section became section 11 of the OCSLA. No mention was made of this change in the Conference Report. See U.S.Code Cong. and Admin. News, supra, at 2184-85.

Relying upon this legislative history plaintiff asserts that the only purpose for the Secretary's authorization under section 11 is to consider the impact on leases and aquatic life. It then contends that as these regulations are not relevant to those purposes that they are invalid. The court agrees that regulations which are inconsistent with their purported statutory authority cannot be upheld. Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); Morton v. Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); Sealaska v. Roberts, 428 F.Supp. 1254, 1260 (D.Alaska 1977). However, the court concludes that these regulations do not fall within that general prohibition.

It is true, as plaintiff contends, that the history of section 11 indicates a less sweeping regulatory power under its terms than that asserted in these regulations. If this court were conducting a de novo review of the regulations and statutes it might well conclude that the most reasonable construction would require section 11 to stand alone.7 That, however, is not the court's function in reviewing administrative action such as this.

The construction of the statute adopted by the Secretary is entitled to great deference. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1964); Doyon v. Bristol Bay, 569 F.2d 491, 496 (9th Cir. 1978); Cf. Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Plaintiff contends that this standard of review is not appropriate citing, Robinson v. Vollert, 411 F.Supp. 461, 475 (D.Tex.1976). Robinson held that the "canon of construction does not apply to an administrator's construction of a statute delegating his own powers." This court must disagree. The Ninth Circuit has utilized the canon in such situations. See e. g., U. S. v. Boyd, 491 F.2d 1163 (9th Cir. 1973).

The construction of the statute adopted by the Secretary is not facially inconsistent with the OCSLA nor does it contravene any general policy of the Act. The Ninth Circuit has noted the broad power of the Secretary to conserve resources under section 5(a)(1) of the Act. Union Oil Co. of Calif. v. Morton, 512 F.2d 743, 749 (9th Cir. 1975), see also Alaska v. Andrus, 188 U.S.App.D.C. ___, 580 F.2d 465, n. 55 (1978). As previously noted it is not contended that these regulations are inappropriate for the purpose, nor is it asserted that they exceed the Secretary's "general managerial powers...

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  • U.S. v. Geophysical Corp. of Alaska
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 7, 1984
    ...of the fifth amendment. The district court granted judgment to the Secretary on each of these claims. Geophysical Corporation of Alaska v. Andrus, 453 F.Supp. 361 (D.Alaska 1978). GCA did not appeal that Despite the result of its declaratory judgment action, GCA did not release the data req......

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