United States v. Nature's Way Marine, L.L.C.

• Decision Date: 21 September 2018
• Docket Number: No. 17-60698,17-60698
• Citation: United States v. Nature's Way Marine, L.L.C., 904 F.3d 416 (5th Cir. 2018)
• Parties: UNITED STATES of America, Plaintiff-Counter Defendant–Appellee, v. NATURE'S WAY MARINE, L.L.C., Defendant–Appellant, Environmental Pollution Group, L.L.C., Counter Claimant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

904 F.3d 416

UNITED STATES of America, Plaintiff-Counter Defendant–Appellee,

v.NATURE'S WAY MARINE, L.L.C., Defendant–Appellant,Environmental Pollution Group, L.L.C., Counter Claimant–Appellant.

No. 17-60698

United States Court of Appeals, Fifth Circuit.

FILED September 21, 2018

Jennifer Utrecht, Matthew Miles Collette, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Plaintiff-Counter Defendant-Appellee.

Jefferson Randolph Tillery, Esq., Madeleine M. Fischer, Heather Lindsey Kirk, Jones Walker, L.L.P., New Orleans, LA, Stephanie Bentley McLarty, Jones Walker, L.L.P., Jackson, MS, for Defendant-Appellant and Counter Claimant-Appellant.

Before KING, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This appeal presents us with a question of statutory interpretation.Specifically, we must determine whether the district court was correct in its summary judgment determination that Nature’s Way, as the owner of a tugboat, was also "operating" an oil barge that the tugboat was moving at the time of a collision, as the term is used in the Oil Pollution Act of 1990 (OPA).¹Because we agree that the ordinary and natural meaning of "operating" under the statute would apply to the exclusive navigational control that Nature’s Way exercised over the barge at the time of the collision, we AFFIRM the judgment of the district court.²

I.

The relevant facts of this appeal are not in dispute.In January 2013, a tugboat owned by Nature's Way was moving two oil-carrying barges owned by Third Coast Towing down the Mississippi River.The barges were "dumb" barges lacking the ability for self-propulsion or navigation, and as such were reliant on the propulsion and navigation provided by the tugboat.The barges collided with a bridge, resulting in one of the barges discharging over 7,000 gallons of oil into the Mississippi River.Nature's Way and its insurer (collectively "Nature's Way"), as well as Third Coast Towing and its insurer (collectively "Third Coast") were all designated by the Coast Guard as "responsible parties" under the Oil Pollution Act.Nature's Way subsequently spent over $2.99 million on the clean-up, and various governmental entities spent over an additional $792,000.

Third Coast and Nature's Way settled a lawsuit between them in late 2014.In May 2015, Nature's Way submitted a claim to the National Pollution Funds Center (NPFC) seeking reimbursement of over $2.13 million on the grounds that its liability should be limited by the tonnage of the tugboat and not the tonnage of the barges.³Nature's Way also requested that it be relieved of any obligation to reimburse the government for the additional $792,000-plus.Those claims were denied by the NPFC based upon its determination that Nature's Way was an "operator" of the oil-discharging barge at the time of the collision.In January 2016, the United States initiated this litigation, seeking recovery of the additional $792,000-plus from Nature's Way and Third Coast.Nature's Way answered that it was not liable for the additional $792,000-plus, and counterclaimed that the NPFC violated the Administrative Procedure Act (APA) by deeming it to be an "operator" of the barge and consequently ineligible for reimbursement of the $2.13 million-plus.

The government moved for partial summary judgment on the sole question of whether the NPFC violated the APA by declaring Nature's Way an "operator" of the barge and denying reimbursement of the $2.13 million-plus.⁴The district court granted the government's motion for partial summary judgment, concluding that a "common sense" understanding of the term "operator," as it is used in the statute, would include a tugboat that was movinga barge through the water.Nature's Way timely appeals.⁵

II.

A federal court will overturn an agency's ruling under the APA "only if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record[.]"Buffalo Marine Servs. Inc. v. United States , 663 F.3d 750, 753(5th Cir.2011)(citation omitted).Federal courts generally review an agency's legal conclusions de novo , unless precedent obligates that we follow one of several deference regimes.Id. at 753–54.Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a).Finally, this court reviews a district court's grant of summary judgment de novo.Buffalo Marine , 663 F.3d at 753.

Both parties dedicate considerable portions of their briefs disputing whether the NPFC's determination that Nature's Way was an "operator" should be entitled to Chevron deference.⁶Because we conclude that even under a de novo review Nature's Way was "operating" the barge in the ordinary and natural sense of the word as it is used in the statute, we do not make any determination as to whether Chevron deference would be proper in this case.However, in the appropriate case, a thorough examination of the procedural defects alleged against the NPFC in adjudicating claims such as the one here might be warranted.⁷

III.

Because this is a question of statutory interpretation, we begin with the text of the statute.SeeMatter of Glenn , 900 F.3d 187, 190(5th Cir.2018)("We begin with the text of [the relevant statute].").33 U.S.C. § 2702(a) establishes that each "responsible party" shall be liable for the removal costs and damages when oil is discharged into navigable waters or onto adjoining shorelines.Section 2701(32)(A) defines a "responsible party" as "[i]n the case of a vessel, any person owning, operating, or demise chartering the vessel."The statute does not define "operating," offering instead only the circular definition that an "owner or operator" is "in the case of a vessel, any person owning, operating, or chartering by demise, the vessel."Id.§ 2701(26)(A)(i).It therefore falls to the court to give the term its "ordinary or natural meaning."United States v. Bestfoods , 524 U.S. 51, 66, 118 S.Ct. 1876, 141 L.Ed.2d 43(1998)(citation omitted).

Defining the term "operating" in the context of an oil discharge is not terra nova for the courts.Indeed, the Supreme Court has already grappled with the term as it is used in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),⁸ which defines the term "operator" with the exact same language as is used in the OPA.See42 U.S.C. § 9601(20)(A)(i).Given that the OPAandCERCLA have common purposes and a shared history, parallel language between the two statutes is significant.SeeBuffalo Marine , 663 F.3d at 756;see alsoGen. Elec. Co. v. United States Dep't of Commerce , 128 F.3d 767, 769–70(D.C. Cir.1997)(noting that prior to passage of the OPA, damages resulting from oil spills were assessed pursuant to CERCLA).A unanimous Supreme Court has analyzed CERCLA's definition of "operator" as such:

In a mechanical sense, to "operate" ordinarily means "[t]o control the functioning of; run: operate a sewing machine."American Heritage Dictionary 1268 (3d ed. 1992); see also Webster's New International Dictionary 1707(2d ed. 1958)("to work; as, to operate a machine").And in the organizational sense more obviously intended by CERCLA, the word ordinarily means "[t]o conduct the affairs of; manage: operate a business."American Heritage Dictionary, supra , at 1268;see alsoWebster's New International Dictionary, supra , at 1707("to manage").So, under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility.⁹

Bestfoods , 524 U.S. at 66, 118 S.Ct. 1876.

It follows from that analysis that the ordinary and natural meaning of an "operator" of a vessel under the OPA would include someone who directs, manages, or conducts the affairs of the vessel.Furthermore, it follows that the ordinary and natural meaning of "operating" a vessel under the OPA would thereby include the act of piloting or moving the vessel.It is undisputed that Nature's Way had exclusive navigational control over the barge at the time of the collision, and, as such, that it was a party whose direction (or lack thereof) caused the barge to collide with the bridge.Consequently, we—like the NPFC and district court—hold that Nature's Way was "operating" the barge at the time of the collision based on the ordinary and natural meaning of the term.

Nonetheless, Nature's Way argues that the Bestfoods definition of "operator" should be understood differently.Nature's Way emphasizes language in another section of the Bestfoods opinion which states: "when [Congress] used the verb ‘to operate,’we recognize that the statute obviously meant something more than mere mechanical activation of pumps and valves, and must be read to contemplate ‘operation’ as including the exercise of direction over the facility’s activities."Id. at 71, 118 S.Ct. 1876.According to Nature's Way, its conduct in moving the barge was more akin to the "mere mechanical activation of pumps," and it cannot be deemed to have been "operating" the barge because it was merely moving the barge as per Third Coast's directions, and it did not exercise control over its environmental affairs or inspections.In support of its argument, Nature's Way points to an order from the District of Kansas, where that court held that a vice-president with only general management responsibilities over a facility was not an "operator" of the facility under CERCLA because there was no showing that he actively managed or directed any of the facility's environmental operations.SeeHarris v. Oil Reclaiming Co ., 94 F.Supp.2d 1210, 1213(D. Kan.2000).

However, navigating a barge through a river entails a degree of discretion and judgment significantly different than that required for the "mere mechanical activation of pumps."Moreover, even if the District of Kansas case were applicable...