CHAPTER 1 THE OUTER CONTINENTAL SHELF LANDS ACT TURNS FIFTY -- A Premature Look at the First Half-Century of the OCSLA
| Jurisdiction | United States |
(April 2002)
THE OUTER CONTINENTAL SHELF LANDS ACT TURNS FIFTY -- A Premature Look at the First Half-Century of the OCSLA
Dimitri L. Seletzky, Counsel
Fulbright & Jaworski, L.L.P.
Washington, D.C.
April 18,2002
CHAPTER ONE: THE FRAMEWORK OF LAW FOR THE OUTER CONTINENTAL SHELF
INTRODUCTION
In 1947, the United States Supreme Court ruled that the Federal Government, not the States, had "paramount powers" over the seabed and resources of the territorial sea. Three years later, the Court affirmed that those powers were not limited to the territorial sea, but extended to the seabed of the continental shelf.
In 1953, Congress struck a compromise of State and Federal interests in the Submerged Lands Act. Generally speaking, that Act granted the States interests in the resources of the territorial sea and the seabed beneath it. Later that year, Congress enacted the Outer Continental Shelf Lands Act (OCS Lands Act or OCSLA) to govern the exploitation of minerals in the seabed beyond the State's submerged lands.
In 1976, the U.S. State Department asserted U.S. continental shelf jurisdiction to a minimum of 200 nautical miles in four areas adjacent to Canada. In 1983, President Reagan proclaimed an Exclusive Economic Zone out to 200 nautical miles from the coasts of the United States and its territories and possessions. Today, U.S. continental shelf jurisdiction extends to a minimum of 200 nautical miles off its coasts.
The OCS Lands Act, however, applies only to the continental shelf adjacent to the 50 states. Within that area, Congress has applied Federal domestic law to the seabed and OCS installations, while preserving the legal status of the surrounding waters as high seas. Additionally, Congress has adopted the laws of adjacent States as a part of the Federal law, to the extent those State laws are "not inconsistent" with other Federal law. Although, as a matter of policy, this scheme is understandable, it has created difficult questions concerning whether a given controversy is governed by Federal domestic law, adopted State law, or admiralty law. This scheme, the framework of law for the OCS, will now be explored more closely.
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WHAT MIGHT HAVE BEEN
Before selecting the framework of laws for the OCS, Congress studied several models. Like good card players, good historians always study carefully whatever is discarded. The historian Robert Cowley has said it well. "There is no better way of understanding what did happen in history than to contemplate what very well might have happened."1
The early ideas for the framework were expressed in the bills leading to the Submerged Lands Act. Early drafts of the legislation dealt not only with the rights to be granted to the States, but also with the administration of the area to remain under Federal jurisdiction, the OCS. These early bills would have granted the Secretary broad rulemaking authority "to adopt such regulations as are not inconsistent with Federal law." Additionally, though, they would have allowed each coastal state to choose whether to apply its police power to the OCS. If it had chosen to apply its laws to the OCS and enforce them, the State would have been allowed to impose severance taxes on minerals produced there. On top of that, the bills proposed to give the State 37½ of the revenues received from the leases. The bills would have directed the Secretary to determine what part of the OCS would be subject to each state's jurisdiction by drawing the States' boundaries as if they extended to the outer edge of the OCS. State laws, however, could not be "inconsistent with any applicable Federal laws."2
Fulfilling an election campaign promise, President Eisenhower supported prompt enactment of the Submerged Lands Act. His position on the administration of the OCS, however, disappointed advocates of state authority. To prevent delay, Congress sent the Act to the President after deleting the provisions governing the OCS. Upon signing the Act into law, he stated:
This measure [the Act] also recognizes the interests of the Federal Government in the submerged lands outside the historic boundaries of the States. Such lands should be administered by the Federal Government and income therefrom should go into the Federal Treasury.3
New bills concerning the OCS were introduced in the House and Senate, each tempered by the position of the new administration. On May 12,1953, Representative Graham introduced H.R. 5134, a proposal to add 13 sections to the Submerged Lands Act. S. 9 was, in several respects, similar to the earlier versions. It would have given the Secretary of the Interior broad authority to adopt rules "not inconsistent" with Federal laws. It would have applied the "laws of each coastal state which so provide" to that part of the OCS which would be within the State if
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its boundaries were extended to the seaward margin of the continental shelf. It would once again have left it to the Secretary to say where each state's boundaries would be if so extended. And, as before, a State law would have given way to any applicable Federal law or rule of the Secretary. But in four respects, S. 9 differed from its predecessors. First, it would have made all Federal laws "now in effect or hereafter adopted" applicable to the Shelf. Second, it would have barred the states from applying their tax laws to the OCS. Third, it would have shared no Federal lease revenue with the states. Fourth, in lieu of sharing lease revenue, it would have authorized the Secretary to reimburse a State for the "reasonable costs" of administering its laws in the OCS.4
This proposal by the House only partially represented the President's position, for it retained a major role for State law and State enforcement. Nevertheless, it made ardent enemies immediately. Its most thorough critics were representatives of Louisiana. Of course, they were dismayed mat coastal States would receive no revenue other than reimbursement of their administrative costs. But their lengthiest attacks were on the provisions applying Federal laws:
Heretofore the bills provided that to begin with, the laws and police power of the States would apply, until such time at least as Congress… studied the question of the adequacy and applicability of Federal laws of the Continental Shelf. We proceeded along that line because we realized that Federal laws as presently written are utterly inadequate to cover this field.5
But the inadequacy of Federal laws was to be debated more thoroughly in the Senate. There the Eisenhower policy of Federal administration of the Shelf was expressed in an extreme form in S. 1901. That bill, as introduced by Senator Cordon of Oregon on May 14,1953, looked
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exclusively to Federal maritime law to govern the OCS. (State law would have applied only under the admiralty law rule that, when no other admiralty rule applied, a court would look to the law of the state where the vessel owner resides or is chartered.) Apparently inspired by Congress' reliance on maritime law to govern the Guano Islands, Senator Cordon proposed that the laws applicable to "acts or offenses" on American vessels on the high seas would apply to acts or offenses on any "structure" on the OCS.6
Senator Cordon realized, however, that treating OCS facilities simply as vessels on the high seas was insufficient. So his bill proposed to apply certain other Federal laws to the "structures." For example, it proposed to apply the Longshoremen's and Harbor Workers' Compensation Act to those employees on OCS facilities who were neither a master nor a crew member "of any vessels." And, to allow the recordation of mortgages involving the structures, his bill proposed to treat structures as "vessels of the United States" under the Ship Mortgage Act. The bill also proposed to apply the National Labor Relations Act, the Fair Labor Standards Act, immigration laws, custom laws, and export laws to the structures.7
As it debated the bill, the Senate Committee on Interior and Insular Affairs perceived its task as one of selecting between two distinct choices. It could, on the one hand, treat the exploitation of the shelf as if it were a "land operation." If so, maritime law would be largely irrelevant, and State law would play the same role it plays in our federal system onshore. It could, on the other hand, treat the exploitation of the shelf as a "maritime operation," which in essence was Senator Cordon's proposal. But if the choice were "clean-cut," as one Senator put it, the debate was not; for the debate proceeded at three levels.
At one level was the Committee's concern that the bill be consistent with the limited claim to the Shelf asserted by President Truman in 1945. That claim was not to the seabed itself, but just to the natural resources of the seabed and subsoil. Consequently, Senator Cordon's proposal applied law just to the structures, not to the seabed or the waters above. As Senator Cordon explained:
The philosophy of the bill is this, that the proclamation of the President excepts from its effect the high seas and the freedom of the high seas with the result that it is believed that it is necessary at all points in any legislation to make a clear line of demarcation between maritime law which exists with respect to the high seas, and such law as may be made applicable to this peculiar type of semi-sovereignty that exists only with respect to the land under the high seas. This language, it
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would appear, at least to the chairman, does, as it was intended to do, clearly differentiate between that particular portion of the surface of the earth that is subject to maritime law and that portion which appertains to the United States, but which is not subject to maritime law because maritime law applies to the high seas and the high seas are excepted from this...
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