League of Conservation Voters et al v. Trump et al

Filing 80

ORDER RE MOTIONS FOR SUMMARY JUDGMENT: IT IS ORDERED that: Plaintiffs motion for summary judgment at Docket 50 is GRANTED. Federal Defendants motion, APIs cross-motion, and Alaskas motion for summary judgment at Dockets 55 , 58 , and 60 , respectively, are DENIED. Section 5 of Executive Order 13795 is hereby VACATED. Plaintiffs additional request for injunctive relief is DENIED. (See Order for details). Signed by Judge Sharon L. Gleason on 03/29/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

LEAGUE OF CONSERVATION
VOTERS, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Case No. 3:17-cv-00101-SLG
Defendants,
and
AMERICAN PETROLEUM
INSTITUTE and STATE OF
ALASKA,
IntervenorDefendants.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 50 is Plaintiffs Alaska Wilderness League, Center
for Biological Diversity, Defenders of Wildlife, Greenpeace, Inc., League of
Conservation Voters, Natural Resources Defense Council, Northern Alaska
Environmental Center, Resisting Environmental Destruction on Indigenous Lands,
Sierra Club, and The Wilderness Society’s (“Plaintiffs”) motion for summary
judgment. Defendants Donald J. Trump, Ryan Zinke—later replaced by David
Bernhardt 1—and Wilbur Ross (“Federal Defendants”) opposed and moved for

1

“David Bernhardt serves as Acting Secretary of the U.S. Department of the Interior.”
U.S. Dep’t of the Interior, David Bernhardt - Acting Secretary of the Interior,

summary judgment at Docket 55.

Intervenor-defendant American Petroleum

Institute (“API”) opposed Plaintiffs’ motion and cross-moved for summary judgment
at Docket 58. Intervenor-defendant State of Alaska (“Alaska”) opposed Plaintiffs’
motion and moved for summary judgment at Docket 60.

Plaintiffs replied in

support of their motion at Docket 62. Federal Defendants replied in support of their
motion at Docket 63. API replied in support of its motion at Docket 65. Alaska
replied in support of its motion at Docket 67. 2

Oral argument was held on

November 9, 2018 in Anchorage, Alaska. 3
BACKGROUND
In 1953, the Outer Continental Shelf Lands Act (“OCSLA” or “the Act”) was
enacted into law. 4 When enacted, OCSLA had two stated purposes. 5 The first

[https://perma.cc/7WRR-5CKU]; see also Fed. R. Civ. P. 25(d) (“An action does not
abate when a public officer who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending. The officer’s successor is
automatically substituted as a party. Later proceedings should be in the substituted
party’s name, but any misnomer not affecting the parties’ substantial rights must be
disregarded. The court may order substitution at any time, but the absence of such an
order does not affect the substitution.”).
2

See Docket 35 (Order re Joint Schedule Proposal).

3

See Docket 75 (Minute Entry).

4

Pub. L. No. 83-212, 67 Stat. 462 (1953) (codified at 43 U.S.C. § 1331 et seq.).

5

OCSLA was amended in 1978. The 1978 amendments include the following
purposes: (1) “[t]o establish a policy for the management of oil and natural gas in the
Outer Continental Shelf”; (2) “to protect the marine and coastal environment;” (3) “to
amend the Outer Continental Shelf Lands Act”; and (4) “for other purposes.” Pub. L.
No. 95-372, 92 Stat. 629, 629 (1978). Section 102 of the 1978 amendments lists ten,
more detailed, purposes. Pub. L. No. 95-372, § 102, 92 Stat. 629, 631–32 (1978)
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purpose was “[t]o provide for the jurisdiction of the United States over” OCS lands. 6
The second purpose was “to authorize the Secretary of the Interior to lease such
lands for certain purposes.” 7 OCSLA authorized the Secretary of the Interior to
“provide for the assignment or relinquishment of leases, for the sale of royalty oil
and gas” on OCS lands. 8 This case concerns Section 12(a) of the Act, which
provides as follows: “The President of the United States may, from time to time,
withdraw from disposition any of the unleased lands of the outer Continental
Shelf.” 9 In 2015 and 2016, President Obama issued three memoranda and one
executive order withdrawing certain areas of the Outer Continental Shelf from

(codified at 43 U.S.C. § 1802).
6

Pub. L. No. 83-212, 67 Stat. 462, 462 (1953).

7

Pub. L. No. 83-212, 67 Stat. 462, 462 (1953).

8

Pub. L. No. 83-212, § 5(a), 67 Stat. 462, 464 (1953) (current version at 43 U.S.C.
§ 1334).

9

Pub. L. No. 83-212, § 12(a), 67 Stat. 462, 469 (1953) (codified at 43 U.S.C.
§ 1341(a)). The Court refers to Section 12(a), rather than to 43 U.S.C. § 1341(a),
throughout this Order.

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leasing. 10 On April 28, 2017, President Trump issued Executive Order 13795,
which purported to revoke the 2015 and 2016 withdrawals. 11
On May 3, 2017, Plaintiffs filed their Complaint in this case. Plaintiffs brought
two claims: an alleged violation of the Constitution’s Property Clause, 12 and an
alleged violation of the President’s statutory authority under Section 12(a). 13 On
July 21, 2017, the Court granted API’s motion to intervene. 14 On September 1,
2017, the Court granted Alaska’s motion to intervene. 15 On March 19, 2018, the
Court denied Federal Defendants’, API’s, and Alaska’s motions to dismiss. 16 On

10

See Memorandum on Withdrawal of Certain Areas of the United States Outer
Continental Shelf Offshore Alaska From Leasing Disposition, DCPD201500059 (Jan.
27, 2015); Exec. Order 13754, 81 Fed. Reg. 90669, § 3 (Dec. 9, 2016); Memorandum
on Withdrawal of Certain Portions of the United States Arctic Outer Continental Shelf
From Mineral Leasing, DCPD201600860 (Dec. 20, 2016); Memorandum on Withdrawal
of Certain Areas off the Atlantic Coast on the Outer Continental Shelf From Mineral
Leasing, DCPD201600861 (Dec. 20, 2016).
11

See Exec. Order 13795, 82 Fed. Reg. 20815, §§ 4(c), 5 (Apr. 28, 2017). For a
thorough history of withdrawals under Section 12(a) of OCSLA, see Kevin O. Leske,
“Un-Shelfing” Lands Under the Outer Continental Shelf Lands Act (OCSLA): Can a Prior
Executive Withdrawal under Section 12(a) Be Trumped by a Subsequent President?, 26
N.Y.U. ENVTL. L.J. 1, 12–22 (2017).
12

See Docket 1 (Complaint) at 22–23, ¶¶ 55–61.

13

See Docket 1 (Complaint) at 23, ¶¶ 62–66.

14

See Docket 22 (Order Granting API’s Motion to Intervene); Docket 14 (API’s Motion to
Intervene).
15

See Docket 32 (Order Granting Alaska’s Motion to Intervene); Docket 30 (Alaska’s
Motion to Intervene).
16

See generally Docket 45 (Order re Motions to Dismiss); Docket 12 (Federal
Defendants’ Motion to Dismiss); Docket 25 (API’s Motion to Dismiss); Docket 34
(Alaska’s Motion to Dismiss). The Court denied the motions to dismiss, holding that
sovereign immunity does not apply because the President is alleged to have acted
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June 8, 2018, Plaintiffs filed their summary judgment motion. 17 On July 18, 2018,
Federal Defendants filed their motion for summary judgment. 18 On August 2,
2018, API and Alaska filed their cross-motion and motion, respectively, for
summary judgment. 19
JURISDICTION
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
LEGAL STANDARD
This case requires the Court to interpret a statute. 20 When interpreting a
statute, a court looks first to the statute’s text, and then, if necessary, to the context

outside of his constitutional and statutory authority; Plaintiffs can maintain a private right
of action; declaratory relief against the President would be unnecessary because the
Court can enjoin the President’s subordinates from enforcing the Executive Order; and
Plaintiffs have Article III standing. Docket 45 at 8–29.
17

See Docket 50.

18

See Docket 55.

19

See Docket 58; Docket 60.

20

Federal Defendants and API maintain that the President has revocation authority
under Article II of the Constitution. See Docket 56 at 8–9, 30 (citing U.S. CONST. art. II,
§§ 2–3); Docket 59 at 29–31; see also Exec. Order 13795, 82 Fed. Reg. 20815 (Apr.
28, 2017) (relying on “the authority vested in” the “President by the Constitution and the
laws of the United States of America, including” OCSLA). The Property Clause of the
Constitution places with Congress the “Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the United
States[.]” U.S. CONST. art. IV, § 3, cl. 2. The Supreme Court has recognized that “[t]he
power of Congress to dispose of any kind of property belonging to the United States ‘is
vested in Congress without limitation.’” Alabama v. Texas, 347 U.S. 272, 273 (1954)
(per curiam) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915)).
OCSLA has, since its enactment, established that OCS lands are subject to federal
“jurisdiction, control, and power of disposition as provided in” OCSLA. Pub. L. No. 83212, § 3(a), 67 Stat. 462, 462 (1953) (current version at 43 U.S.C. § 1332). Although
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in which the statute was enacted.

It is a “fundamental canon of statutory

construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.” 21
I. Statutory Text
Courts “begin with the understanding that Congress says in a statute what
it means and means in a statute what it says there.” 22 Judicial “inquiry begins with
the statutory text, and ends there as well if the text is unambiguous.” 23
II. Context
If the text of the statute is ambiguous, a court may rely on contextual clues
to discern Congress’s intent. 24 A judge may look to a statute’s structure, as a

the President has the constitutional authority under Article II to provide for national
security and conduct foreign affairs, the President’s authority to dispose of OCS lands
can arise only by delegation from Congress.
21

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)).

22

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
(holding that bankruptcy statute authorizing “[t]he trustee” to recover expenses from
secured creditor did not apply to insurer’s recovery of unpaid premiums) (internal
citations and quotation marks omitted).
23

BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). For “when the statute’s
language is plain, the sole function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters,
530 U.S. at 6 (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241
(1989)) (quotation marks omitted); see also United States v. Am. Trucking Ass’ns, 310
U.S. 534, 542 (1940) (“In the interpretation of statutes, the function of the courts is
easily stated. It is to construe the language so as to give effect to the intent of
Congress.”).

24

See King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (quoting United Sav. Ass’n. of Tex.
v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)) (“A provision that
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“statute should be construed so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or insignificant.” 25 Courts may also
find congressional intent in legislative history, 26 in how Congress treated a term in
prior statutes, 27 and in Congress’s stated purpose in enacting the statute. 28 In
addition, although a court may consider actions subsequent to the statute’s

may seem ambiguous in isolation is often clarified by the remainder of the statutory
scheme . . . because only one of the permissible meanings produces a substantive
effect that is compatible with the rest of the law.”).
25

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824 (2018) (holding that plaintiffs
could not attach Iranian property under 28 U.S.C. § 1610(g), which subjected foreign
government property to attachment “as provided in this section,” because no other
provision within that section applied to the property in question and interpreting
§1610(g) as providing an independent basis for attachment would render the other
provisions within that section “superfluous”); see also Mellouli v. Lynch, 135 S. Ct. 1980,
1989 (2015) (“Statutes should be interpreted as a symmetrical and coherent regulatory
scheme.”) (citation and quotation marks omitted); Obduskey v. McCarthy & Holthus LLP,
586 U.S. ___, slip op. at 8–9 (2019) (a statute should be interpreted to “not contain
surplusage”) (quoting Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291,
299 n.1 (2006)).
26

See, e.g., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016) (“This
presumption [in favor of judicial review], however, may be overcome by clear and
convincing indications, drawn from specific language, specific legislative history, and
inferences of intent drawn from the statutory scheme as a whole, that Congress
intended to bar review.”) (citations and quotation marks omitted).
27

Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 541 (1954) (“The Government finds
authority for the creation of this administrative machinery in [§] 405(b) of the Defense
Production Act of 1950, when read in connection with the entire Act. That section is
derived from [§] 5(a) of the Stabilization Act of 1942. To read the Defense Production
Act of 1950 without reference to this model is to read it out of the context in which
Congress enacted it.”) (citation omitted).
28

See Burwell, 135 S. Ct. at 2492–93 (“Here, the statutory scheme compels us to reject
petitioners’ interpretation because it would destabilize the individual insurance market in
any State with a Federal Exchange, and likely create the very ‘death spirals’ that
Congress designed the Act to avoid.”).
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enactment, “subsequent legislative history will rarely override a reasonable
interpretation of a statute that can be gleaned from its language and legislative
history prior to its enactment.” 29
DISCUSSION
I. Federal Defendants’ Procedural Challenges
Federal Defendants maintain that Plaintiffs fail to overcome several
procedural hurdles: standing, ripeness, sovereign immunity, and the lack of a
private right of action. 30 The Court previously found for Plaintiffs as to each of
these issues at the motion to dismiss stage. 31
“In response to a summary judgment motion, . . . the plaintiff . . . must set
forth by affidavit or other evidence specific facts which for purposes of the
summary judgment motion will be taken to be true.” 32 Here, Plaintiffs have set

29

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159,
169 n.5 (2001) (citation omitted); cf. Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (“[T]he meaning of one statute may be
affected by other Acts, particularly where Congress has spoken subsequently and more
specifically to the topic at hand.”), superseded by statute on other grounds as
recognized by Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261, 1278–79 (11th
Cir. 2015), reh’g en banc granted, opinion vacated, 811 F.3d 434 (11th Cir. 2016), and
on reh’g en banc, 857 F.3d 1169 (11th Cir. 2017).

30

See Docket 56 at 19–28.

31

See Docket 45 at 8–11, 13–24.

32

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citation and internal quotation
marks omitted) (citing Fed. R. Civ. P. 56(c)). See also Pepper v. United States, 562 U.S.
476, 506 (2011) (“Although we have described the law of the case as an amorphous
concept, as most commonly defined, the doctrine posits that when a court decides upon
a rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case.”) (citation, quotation marks, and alterations omitted); Nat. Res.
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forth sufficient specific facts to support their standing and right to pursue a private
cause of action. 33 Accordingly, the Court declines to reconsider these issues at
the summary judgment stage. 34
II. The Text of Section 12(a)
At issue in this case is the meaning of Section 12(a) of OCSLA: “The
President of the United States may, from time to time, withdraw from disposition

Def. Council v. Patterson, 333 F. Supp. 2d 906, 915 (E.D. Cal. 2004) (holding that
defendants’ challenge to plaintiffs’ standing at summary judgment stage was “effectively
foreclosed by the law of the case doctrine” because court had rejected those arguments
at motion to dismiss stage).
33

“Plaintiffs’ members visit or otherwise use and enjoy” the lands at issue in this
litigation. Docket 51 at 22 (citing Exhibit 21 (Decl. of Regina A. Asmutis-Silvia) (Docket
51-21), Exhibit 22 (Decl. of Rosemary Ahtuangaruak) (Docket 51-22); Exhibit 24 (Decl.
of John Hocevar) (Docket 51-24), Exhibit 26 (Decl. of Dr. Leslie S. Kaufman) (Docket
51-25), Exhibit 28 (Decl. of Pamela A. Miller) (Docket 51-28), Exhibit 29 (Decl. of Rob
Moir) (Docket 51-29), Exhibit 30 (Decl. of Dan Ritzman) (Docket 51-30), Exhibit 32
(Decl. of Robert Thompson) (Docket 51-32), Exhibit 34 (Decl. of Michael Wald) (Docket
51-34), Exhibit 36 (Decl. of Kiliii Yuyan) (Docket 51-36)).
34

One of Federal Defendants’ arguments merits brief discussion. The Court’s Order re
Motions to Dismiss concluded that “there would be no apparent incentive for the
industry to conduct seismic surveying in areas closed off from drilling,” so the Executive
Order would sufficiently promote seismic surveying such that Plaintiffs had Article III
standing at that stage of this litigation. Docket 45 at 19 n.90. In their summary
judgment briefing, Federal Defendants cite instances in which operators had applied for
“geophysical and geological exploration permits even in areas that have been
withdrawn from development.” Docket 63 at 8. But they cite to oil and gas leasing
programs from 2012, long before the presidential withdrawals at issue in this case. The
Bureau of Ocean Energy Management responded to the Executive Order by beginning
its evaluation of certain seismic surveying permit applications in areas where the
permits had been denied prior to the Executive Order. See Press Release, U.S. Dep’t
of the Interior, Interior Department Advances America-First Offshore Energy Strategy
(May 10, 2017), [https://perma.cc/9ZCW-YQRU]. Therefore, the Court remains of the
view that Plaintiffs have demonstrated standing. The Court’s reasoning is not affected
by the Notice of Errata recently filed by Federal Defendants at Docket 78.
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any of the unleased lands of the outer Continental Shelf.” 35 Plaintiffs maintain that
this text only authorizes a President to withdraw lands from disposition; it does not
authorize a President to revoke a prior withdrawal. Plaintiffs assert that under the
Property Clause of the U.S. Constitution, the authority to revoke a prior withdrawal
was not delegated by this statute to the President and thus remains vested solely
with Congress. 36
Federal Defendants respond that “Section 12(a) does not cabin the
President’s authority in any way, other than to clarify that lands must be unleased
in order to be withdrawn.” 37 Federal Defendants maintain that “Plaintiffs’ reading
of Section 12(a) renders the phrase ‘from time to time’ unnecessary” because the
phrase “may . . . withdraw” implies the ability to do so “from time to time.” 38 API
asserts that Section 12(a)’s “discretionary formulation—authorizing action that
‘may’ be taken ‘from time to time’—carries with it a power to revise action
previously taken under the delegated authority.” 39

35

Pub. L. No. 83-212, § 12(a), 67 Stat. 462, 469 (1953) (codified at 43 U.S.C. §
1341(a)).
36

Docket 51 at 33; U.S. CONST. art. IV, § 3, cl. 2.

37

Docket 56 at 29.

38

Docket 63 at 12 (citation omitted).

39

Docket 59 at 20 (citing 28 U.S.C. § 2071(a); U.S. CONST., art. III, § 1; Bay Area Peace
Navy v. United States, 914 F.2d 1224, 1234 n.6 (9th Cir. 1990) (O’Scannlain, J.,
concurring in part and dissenting in part); 35 Stat. 69, ch. 151 (1908), previously
codified at 33 U.S.C. § 1233, repealed by 132 Stat. 4266 (2018)). Alaska makes a
similar claim. Docket 61 at 5–6.

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The text of Section 12(a) refers only to the withdrawal of lands; it does not
expressly authorize the President to revoke a prior withdrawal. Congress appears
to have expressed one concept—withdrawal—and excluded the converse—
revocation. Furthermore, the phrase “from time to time” appears to clarify the
President’s withdrawal authority by giving him the discretion to withdraw lands at
any time and for discrete periods; the phrase does not specifically give the
President the authority to revoke a prior withdrawal. 40

In any event, some

The authorities to which API cites are distinguishable from Section 12(a). Under 28
U.S.C. § 2071(a), “[t]he Supreme Court and all courts established by Act of Congress
may from time to time prescribe rules for the conduct of their business.” Inherent in the
power to “prescribe rules” is the power to prescribe new rules that revise prior rules.
The power to revoke is not inherent in the power to withdraw. The same principle
applies to 33 U.S.C. § 1233, which has been repealed since the instant motions
ripened. That provision stated, “The Commandant of the Coast Guard is authorized and
empowered in his discretion to issue from time to time regulations, not contrary to law,
to promote the safety of life on navigable waters during regattas or marine parades.”
Bay Area Peace Navy, 914 F.2d at 1234 n.6 (O’Scannlain, J., concurring in part and
dissenting in part) (quoting 35 Stat. 69, ch. 151 (1908), previously codified at 33 U.S.C.
§ 1233, repealed by 132 Stat. 4266 (2018)). The authority to issue regulations includes
the ability to revise prior regulations.
API also points to the constitutional provision authorizing Congress to “from time to time
ordain and establish” lower courts. U.S. CONST., art. III, § 1. “The Congressional power
to ordain and establish inferior courts includes the power of investing them with
jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from
them in the exact degrees and character which to Congress may seem proper for the
public good.” Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (citations and quotation
marks omitted). No such ordination language exists in Section 12(a).
40

Plaintiffs maintain that, in other OCSLA provisions, “Congress used [the phrase ‘from
time to time’] in the ordinary sense of when the authority might be exercised, not to
expand a delegation to encompass the polar opposite power.” Docket 62 at 12 (citing
43 U.S.C. §§ 1335(a)(1), 1347(c), 1351(h)(3)) (emphasis in original).
43 U.S.C. § 1335(a)(1) provides that a copy of a mineral lease covering OCS lands
must be filed with the Secretary within ninety days of the implementation of OCSLA “or
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withdrawals appear to have been intended to be permanent; others, for a limited
time. 41 President Obama’s 2015 and 2016 Executive Orders each stated it was

within such further period or periods . . . as may be fixed from time to time by the
Secretary[.]” Plaintiffs maintain that “[t]he phrase can mean only that one or more such
periods could be established at will, not that any could be unestablished.” Docket 62 at
12. API seeks to distinguish this section because “the sole purpose of that statutory
provision is to establish the timing by which holders of a state oil and gas lease issued
on the OCS prior to the enactment of OCSLA could bring their lease within the
protections of OCSLA.” Docket 65 at 12. Alaska asserts that Section 1335(a)(1) allows
the Secretary to reverse a prior filing period decision, just as Section 12(a) allows the
President to revoke a prior withdrawal. Docket 67 at 5. The Court finds Plaintiffs’
interpretation compelling; Congress did not explicitly authorize the Secretary to revoke a
fixed filing date.
43 U.S.C. § 1347(c) states: “The Secretary of the Department in which the Coast Guard
is operating shall promulgate regulations or standards applying to unregulated
hazardous working conditions related to activities on the outer Continental Shelf when
he determines such regulations or standards are necessary. The Secretary of the
Department in which the Coast Guard is operating may from time to time modify any
regulations, interim or final, dealing with hazardous working conditions on the outer
Continental Shelf.” In the Court’s view, Section 1347(c) is not analogous to Section
12(a) because the term “modify” in Section 1347(c) inherently includes the power to
revise, whereas the term “withdraw” in Section 12(a) does not inherently include the
power to revoke that withdrawal.
43 U.S.C. § 1351(h)(3) provides that “[t]he Secretary shall, from time to time, review
each plan approved under this section. Such review shall be based upon changes in
available information and other onshore or offshore conditions affecting or impacted by
development and production pursuant to such plan. If the review indicates that the plan
should be revised to meet the requirements of this subsection, the Secretary shall
require such revision.” The last sentence of Section 1351(h)(3) explicitly authorizes
revision. Such explicit authorization is absent from Section 12(a).
41

Compare, e.g., Proclamation 3339, Establishing the Key Largo Coral Reef Preserve,
25 Fed. Reg. 2,352 (Mar. 15, 1960), by which President Eisenhower withdrew lands to
“preserve[] the scenic and scientific values of this area unimpaired for the benefit of
future generations,” with, e.g., Statement on Outer Continental Shelf Oil and Gas
Development, 26 Weekly Comp. Pres. Docs. 1006, 1006 (June 26, 1990), by which
President Bush supported a “moratorium” on leasing on certain OCS lands and the
“delay” of leasing and development on other OCS lands “until after the year 2000.”
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intended to apply “for a time period without specific expiration,” and contained
language indicating that all future leasing was intended to be prohibited in the
areas encompassed by the withdrawals. 42 The wording of President Obama’s
2015 and 2016 withdrawals indicates that he intended them to extend indefinitely,
and therefore be revocable only by an act of Congress.
Federal Defendants, API, and Alaska cite to various nonbinding authority to
suggest that the phrase “from time to time” in Section 12(a) gives the President the
power to revoke a prior withdrawal. Illinois Central Railroad Co. v. United States
is one example. 43 Congress had enacted laws that granted the State of Illinois
certain rights of way on certain federal public lands to construct a railroad. But
previous laws had reserved certain federal public lands for military purposes. At
issue was whether the subsequent land grant to Illinois included the land

42

Memorandum on Withdrawal of Certain Areas of the United States Outer Continental
Shelf Offshore Alaska From Leasing Disposition, DCPD201500059 (Jan. 27, 2015)
(“This withdrawal prevents consideration of these areas for any future oil or gas leasing
for purposes of exploration, development, or production.”); Exec. Order 13754, 81 Fed.
Reg. 90669, § 3 (Dec. 9, 2016) (“This withdrawal prevents consideration of these areas
for future oil or gas leasing for purposes of exploration, development, or production.”);
Memorandum on Withdrawal of Certain Portions of the United States Arctic Outer
Continental Shelf From Mineral Leasing, DCPD201600860 (Dec. 20, 2016) (“The
withdrawal directed by this memorandum prevents consideration of withdrawn areas for
any mineral leasing for purposes of exploration, development, or production.”);
Memorandum on Withdrawal of Certain Areas off the Atlantic Coast on the Outer
Continental Shelf From Mineral Leasing, DCPD201600861 (Dec. 20, 2016) (“This
withdrawal prevents consideration of this area for any future mineral leasing for
purposes of exploration, development, or production.”).
43

1858 WL 4672 (Ct. Cl. 1858).

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previously reserved in military fortifications. In particular, the Court of Claims
referenced a 1798 law that “enable[d] the President to erect fortifications in such
places as the public safety should, in his opinion, require; and he was authorized
to cause them to be erected under his direction, from time to time, as he should
judge necessary.” 44 The Court of Claims noted that in light of the statute’s grant
of authority for the President to erect fortifications, “it may be the proper
construction of the acts of Congress that they, by implication, confer on him the
power also, when the place designated and reserved becomes no longer
necessary for the purposes of the reservation, to direct its abandonment by the
War Department[.]” 45 But the Court of Claims did not directly resolve this issue, as
it determined that the President had not directed the abandonment of the reserved
military lands at issue in that case. 46

Illinois Central’s dicta regarding the

maintenance of military fortifications during the 1850’s is of little assistance in
interpreting the scope of the President’s authority in 2017 to revoke withdrawals of
unleased lands in the OCS.
API also cites to State v. McBride. 47 That case involved the following
Washington state constitutional provision: “The supreme court shall consist of five

44

Id. at *1.

45

Id. The opinion did not discuss the specific phrase, “from time to time.” See id.

46

Id.

47

70 P. 25 (Wash. 1902); Docket 59 at 20–21; Docket 65 at 9, 11–12. See also Docket

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judges . . . . The legislature may increase the number of judges of the supreme
court from time to time . . . .” 48 In 1901, the Washington legislature passed an act
temporarily increasing the number of supreme court judges from five to seven; the
act also provided that beginning in October 1902, the court would again seat only
five judges. A litigant asserted the portion of the act that purported to decrease
the number of judges back to five was void because the state constitution
contained no express provision authorizing a decrease. The Washington Supreme
Court disagreed, and held: “If, therefore, the legislature has power to increase the
number of judges as occasion or convenience requires, and there is no restriction
upon a decrease, except below five, it follows that a decrease may be had to this
minimum when necessity or occasion requires, of which necessity or occasion the
legislature is the exclusive judge.” 49 In its opinion, the Washington Supreme Court
discussed the phrase, “from time to time,” as follows:
These words are defined by lexicographers to mean “occasionally.”
The word “occasionally” is defined to mean: “As occasion demands or
requires; as convenience requires; accidentally, or on some special
occasion.” But whatever may be the technical meaning of the words,
they certainly cannot be held to mean that the legislature may not
decrease the number of judges after the increase thereof. If,
therefore, the legislature has power to increase the number of judges
as occasion or convenience requires, and there is no restriction upon
a decrease, except below five, it follows that a decrease may be had
to this minimum when necessity or occasion requires, of which
62 at 14.
48

McBride, 70 P. at 26–27.

49

Id. at 27.

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necessity or occasion the legislature is the exclusive judge. Again,
the fact that the constitution has placed a minimum limit and permitted
an increase in the number of judges is a strong inference that the
increased number may be reduced to the minimum. Furthermore, the
legislative and the executive branches of the state government have
placed this construction upon their powers, and, where these coordinate branches have construed a constitutional provision and
acted upon it, great weight will be given thereto. 50
In the instant case, the President is not “the exclusive judge” of determining
the OCS lands subject to leasing; that power ultimately is vested in Congress
under the Property Clause. Moreover, Congress has not acted to approve or reject
Executive Order 13795. And as the McBride court acknowledged, “the fact that
the [Washington state] constitution has placed a minimum limit and permitted an
increase in the number of judges is a strong inference that the increased number
may be reduced to the minimum.” 51 But no such minimum limit exists in Section
12(a) with respect to the lands available for leasing in the OCS.
API and Alaska rely on other cases that are inapposite for a variety of
reasons. 52 Some cases involved statutes that called for agencies to balance
multiple factors in their decisionmaking process, thus reflecting a strong inference
that Congress intended to authorize the reconsideration of a prior agency
decision. 53 In other cases, the relevant subject matter in the statute or other

50

Id.

51

Id.

52

Docket 59 at 20–21; Docket 61 at 5–6; Docket 65 at 11.

53

See In re A Community Voice, 878 F.3d 779, 784 (9th Cir. 2017) (quoting 42 U.S.C. §

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authority was, by nature, subject to change. 54 Some cases only stood for the
general principle that statutes which grant authority can be overridden by later
statutes withdrawing that authority. 55
The text of Section 12(a) indicates that Congress expressly granted to the
President the authority to withdraw unleased lands from the OCS; but the statute
does not expressly grant to the President the authority to revoke prior withdrawals.
However, the statute’s inclusion of the phrase “from time to time” renders the text

4852a(a), (c)(5); citing 42 U.S.C. § 4851a(1), (3)) (holding that in EPA’s carrying out of
Congress’s mandate to reduce lead-based paint hazards, “Congress did not want EPA
to set initial standards and then walk away, but to engage in an ongoing process,
accounting for new information, and to modify initial standards when necessary to
further Congress’s intent” and statute included “the creation of a task force that would
be instructed to advise EPA and HUD as to ‘revising . . . regulations . . . issued by [HUD]
and other Federal agencies”) (alteration in original); Lacquer & Chem. Corp. v. Mills, 22
F.2d 697, 698–99 (E.D.N.Y. 1927), aff’d, 22 F.2d 700 (2d Cir. 1927) (upholding
revocation of denatured alcohol production permit pursuant to prohibition statute that
ordered Treasury Secretary to issue regulations relating to percentage industrial alcohol
use that would both “prevent diversion of the alcohol to illegal uses” and support the
scientific and commercial uses of industrial alcohol).
54

See Skinner & Eddy Corp. v. United States, 249 U.S. 557, 564 (1919) (noting that
statute gave Interstate Commerce Commission the power “to fix rates or to increase or
to reduce them” when regulating railroad freight); V. Mueller & Co. v. United States, 115
F.2d 354, 361 (C.C.P.A. 1940) (analyzing statute that authorized the Secretary of the
Treasury to adjust tariff rates); United States v. Little Lake Misere Land Co., 412 U.S.
580, 597–98 (1973) (describing statute that authorized Secretary of Agriculture to
promulgate “rules and regulations” relating to federal land acquisitions); Myers v. United
States, 272 U.S. 52, 119 (1926) (describing the President’s constitutional authority to
appoint and remove subordinates).
55

See Quinn v. Cal. Shipbldg. Corp., 76 F. Supp. 742, 743 (S.D. Cal. 1947) (explaining
that Congress’s “power to grant jurisdiction to the District Courts includes the power to
withdraw jurisdiction”); N. Border Pipeline Co. v. Jackson County, 512 F. Supp. 1261,
1263 (D. Minn. 1981) (noting that state legislatures may withdraw local governments’
zoning authority).
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of Section 12(a) ambiguous. 56 On the one hand, the phrase could be interpreted
simply to make clear the President’s authority to make withdrawals at any time and
for discrete periods of time, as well as make withdrawals that extend indefinitely
into the future unless and until revoked by Congress. On the other hand, the
phrase could be interpreted more broadly to accord to each President the authority
to revoke or modify any prior withdrawal. In light of the ambiguity created by this
aspect of Section 12(a)’s text, the Court will look to the context of the statute in an
effort to discern the intent of Congress.
III. The Context of Section 12(a)
A. The Structure of OCSLA
Section 8 of OCSLA, titled “Leasing of Outer Continental Shelf,” authorizes
the Secretary of the Interior to lease OCS lands “[i]n order to meet the urgent need
for further exploration and development of the oil and gas deposits” beneath the
OCS. 57 Section 12 of the Act, as enacted in 1953, was titled “Reservations.” Most

56

Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“The definition of words in
isolation, however, is not necessarily controlling in statutory construction. A word in a
statute may or may not extend to the outer limits of its definitional possibilities.
Interpretation of a word or phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and consulting any precedents or
authorities that inform the analysis.”); see also King v. Burwell, 135 S. Ct. 2480, 2492
(2015).

57

Pub. L. No. 83-212, § 8(a), 67 Stat. 462, 468 (1953) (current version at 43 U.S.C. §
1337); see also Docket 65 at 14 (quoting State of Cal. By & Through Brown v. Watt, 668
F.2d 1290, 1316 (D.C. Cir. 1981)). The Watt court noted that “[t]he congressional
purposes [stated in OCSLA’s 1978 amendments] . . . reflect [Congress’s] primary
emphasis on expeditious development of the OCS, qualified by the recognition of a
need for measures to alleviate or minimize its adverse impacts.” Watt, 668 F.2d at
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of the provisions of that section address restrictions on the private use of OCS
lands, and no subsection expands private sector use of these lands. 58
Plaintiffs maintain that Sections 8 and 12(a) have different roles, with
Section 8 promoting leasing and Section 12(a) being “entirely protective.” 59
Federal Defendants do not directly address this argument. API responds by citing
uplands legislation that, unlike Section 12, expressly granted revocation authority
to the President. 60

Alaska maintains that “it cannot be said that Congress

1315.
Section 3(a) of OCSLA has, since its enactment, established that OCS lands are subject
to federal “jurisdiction, control, and power of disposition as provided in” OCSLA. Pub.
L. No. 83-212, § 3(a), 67 Stat. 462, 462 (1953) (current version at 43 U.S.C. § 1332).
58

Pub. L. No. 83-212, § 12(a)–(f), 67 Stat. 462, 469–70 (1953) (current version at 43
U.S.C. § 1341). For example, Section 12(b) grants, during wartime or at the order of
the President, the United States “the right of first refusal to purchase at the market price
all or any portion of any mineral produced from” the OCS. Pub. L. No. 83-212, § 12(b),
67 Stat. 462, 469 (1953) (codified at 43 U.S.C. § 1341(b)). Section 12(d), in part,
“reserves and retains the right to designate . . . as areas restricted from exploration and
operation that part of the [OCS] needed for national defense[.]” Pub. L. No. 83-212,
§ 12(d), 67 Stat. 462, 470 (1953) (codified at 43 U.S.C. § 1341(d)). Section 12, as
currently codified, is titled “Reservation of Lands and Rights.” 43 U.S.C. § 1341.
59

Docket 51 at 40. Plaintiffs also assert that because Section 8 authorizes the
Secretary to decide which parcels to lease, interpreting Section 12(a) to accord to the
President the authority to revoke withdrawals would be “largely redundant.” Docket 51
at 40; Pub. L. No. 83-212, § 8(b), 67 Stat. 462, 468 (1953) (current version at 43 U.S.C.
§ 1337). But as Federal Defendants note in their briefing, the Secretary “[n]ot issuing a
lease (a discretionary decision for a particular sale) is not the same as, or a duplication
of, the decision of the President to close a particular area to leasing . . . .” Docket 63 at
24. API and Alaska make arguments akin to Federal Defendants’ argument. Docket 59
at 24–25; Docket 61 at 7–8.
60

Docket 59 at 24. The Court addresses uplands legislation below. See infra at 20–25.

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evidenced an intent in the statute for the Secretary to withhold anything from oil
and gas leasing.” 61
The Court agrees with Plaintiffs on this point.

Interpreting OCSLA to

promote expeditious leasing in Section 8, but according to the President authority
to prohibit leasing in specified areas in Section 12(a), gives effect “to all [of
OCSLA’s] provisions, so that no part will be inoperative or superfluous, void or
insignificant.” 62 Therefore, OCSLA’s structure promotes the view that Section
12(a) did not grant revocation authority to the President.
B. OCSLA’s Legislative History and Prior Statutes
The parties all address the import of the legislative history of Section 12(a).
Federal Defendants cite to the Senate report in which the Committee on Interior
and Consular Affairs stated that “it was vesting withdrawal authority ‘comparable
to that which is vested in [the President] with respect to federally owned lands on
the uplands.’” 63 Federal Defendants maintain that the President was accorded the
authority to revoke withdrawals on the uplands; thus, it maintains Section 12(a)
should be interpreted to do the same. 64

61

Docket 61 at 8 (emphasis in original).

62

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824 (2018).

63

Docket 56 at 38 (quoting S. Rep. No. 83-411, at 26 (1953)); see also Docket 56 at 34.

64

Docket 56 at 38 (citing Exec. Order No. 10355, 17 Fed. Reg. 4831 (May 26, 1952));
Docket 56 at 32 (quoting S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d
735, 784 (10th Cir. 2005), as amended on denial of reh’g (Jan. 6, 2006)) (“[A]t the time
that OCSLA’s Section 12(a) was enacted, federal statutes granting the authority to
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Plaintiffs contend that “when Congress intended to pair the power to protect
public land from disposition with the power to reverse such protections, [including
in legislation related to the uplands,] it did so expressly.” Plaintiffs cite as examples
the Forest Service Organic Administration Act of 1897, the Pickett Act of 1910, and
a 1935 act “concerning use of the Rio Grande[.]” 65 The Forest Service Organic
Administration Act of 1897 authorized the President to “vacate altogether” public
forest reservations. 66 The Pickett Act authorized the President “at any time in his
discretion” to “temporarily withdraw” public lands, and provided that such
“withdrawals or reservations” would be “in force until revoked by [the President] or
by an Act of Congress.” 67 The 1935 statute regarding use of the Rio Grande river

withdraw uplands were historically understood to temporarily suspend the operation of a
public land disposal law, thus [‘]preserving the status quo until Congress or the
Executive decides on the ultimate disposition of the subject lands.[’]”) (emphasis
omitted). API makes a similar argument. Docket 59 at 24.
65

Docket 51 at 35–36 (citing ch. 2, 30 Stat. 11, 36 (1897) (codified at 16 U.S.C. § 473);
36 Stat. 847 (1910), repealed by 90 Stat. 2792 (1976); 49 Stat. 660, 661 (1935),
repealed by 90 Stat. 2792 (1976)).

66

Ch. 2, 30 Stat. 11, 36 (1897) (codified at 16 U.S.C. § 473).

67

36 Stat. 847 (1910), repealed by 90 Stat. 2792 (1976). Federal Defendants maintain
that “Congress intended to confer the same authority on the President with respect to
the OCS that it had conferred upon the President in the Pickett Act. Because the
Pickett Act authorized the President to modify and ‘revoke’ prior withdrawals,
Congress’s meaning can hardly be clearer, giving the President broad authority
including the authority to revoke or modify prior withdrawals under OCSLA.” Docket 63
at 23–24. However, as discussed below, the relevant Senate committee report on
OCSLA indicates that Congress intended to give the President the same withdrawal
authority as that provided in uplands legislation generally, not the Pickett Act specifically.
The Pickett Act explicitly authorizes the President to revoke withdrawals; other uplands
legislation, like OCSLA, did not explicitly provide revocation authority. See infra at 23.
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was similarly explicit in giving the President not only the power to “withdraw,” but
also the power to “revoke[].” 68 “Actions pursuant to statutes that grant two-way
authority,” Plaintiffs assert, “are irrelevant to interpreting a statute, like section
12(a), that specifies only the authority to withdraw.” 69
Plaintiffs cite to other uplands legislation that Congress had enacted prior to
OCSLA’s passage that expressly granted to the President only the authority to set
aside lands. For example, in the Forest Reserve Act of 1891, Congress provided
that the President “may, from time to time, set apart and reserve” forested public
lands. 70 Similarly, the Antiquities Act of 1906 authorized the President to reserve
public lands “of historic or scientific interest.” 71 Neither of these laws explicitly
granted revocation authority to the President. When enacting OCSLA, the Senate

68

49 Stat. 660, 661 (1935), repealed by 90 Stat. 2792 (1976) (“In order to carry out the
provisions of this Act, the President, or any Federal agency he may designate is
authorized . . . to withdraw from sale, public entry or disposal of such public lands of the
United States as he may find to be necessary and thereupon the Secretary of the
Interior shall cause the lands so designated to be withdrawn from any public entry
whatsoever, and from the sale, disposal, location or settlement under the mining laws or
any other law relating to the public domain and shall cause such withdrawal to appear
upon the records in the appropriate land office having jurisdiction over such lands, and
such lands may be used for carrying out the purposes of this Act: Provided, That any
such withdrawal may subsequently be revoked by the President[.]”) (emphasis in
original).
69

Docket 62 at 21. Alaska maintains that “[m]ost of the statutes cited by Plaintiffs . . .
do not include the phrase ‘from time to time[]’” and in some instances created
reservations rather than withdrawals. Docket 61 at 6. The Court addresses
reservations versus withdrawals infra at 23–24.

70

Ch. 561, § 24, 26 Stat. 1095, 1103 (1891), repealed by 90 Stat. 2792 (1976).

71

Pub. L. No. 59-209, § 2, 34 Stat. 225, 225 (1906) (codified at 54 U.S.C. § 320301).

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Committee on Interior and Consular Affairs expressed its intent only with regard to
the President’s authority to withdraw; it said nothing about any authority to revoke
a prior withdrawal. 72 The Court finds Congress’s silence in Section 12(a) as to
according the President revocation authority was likely purposeful; had Congress
intended to grant the President revocation authority, it could have done so
explicitly, as it had previously done in several (but not all) of its previously enacted
uplands laws.
Plaintiffs also maintain that “[w]hen it chooses the wording of a statute,
Congress is presumptively aware of Executive Branch interpretations of similar
language in parallel statutes.” 73 Plaintiffs assert that prior Attorneys General had
issued opinions “dating back nearly a century, that if Congress wanted the
Executive to have such [revocation] authority, Congress would need to make that
explicit.” 74 For example, an 1878 Attorney General opinion stated that “if lands

72

S. Rep. No. 83-411, at 26 (1953).

73

Docket 51 at 37 (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998); Merrill Lynch,
Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 382 n.66 (1982); Kent v. Dulles, 357
U.S. 116, 127–28 (1958); Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S.
71, 85 (2006)).
74

Docket 51 at 38 (citing Rock Island Military Reservation, 10 Op. Att’y Gen. 359, 364
(Nov. 8, 1862); Proposed Abolishment of Castle Pinckney National Monument, 39 Op.
Att’y Gen. 185, 186–87 (Sept. 26, 1938); Camp Wright, California, 16 Op. Att’y Gen.
121, 123 (Aug. 10, 1878); Military Reservation at Fort Fetterman, 17 Op. Att’y Gen. 168,
168–69 (July 20, 1881); Naval Reservation—Restoration to Public Domain, 21 Op. Att’y
Gen. 120, 120–21 (Jan. 19, 1895); Camp Hancock—Transfer from War Department to
Department of Agriculture, 28 Op. Att’y Gen. 143, 144 (Jan. 24, 1910); Transfer of
National Monuments to National Park Service in the Department of the Interior, 36 Op.
Att’y Gen. 75, 79 (July 8, 1929)).

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have been once set apart by the President in an order for military purposes, they
cannot again be restored to the condition of public lands, or sold as such, except
by an authority of Congress.” 75 Federal Defendants respond that “those opinions
pertain to reservations, not withdrawals, and statutes enacted and opinions issued
well before the enactment of OCSLA, and have no relevance here.” 76 But the
Court finds those opinions persuasive, because Congress has used the terms
“withdrawal” and “reservation” interchangeably for many decades. 77 Indeed, in
1953, Congress titled Section 12, which contains the withdrawal provision at issue
here, as “Reservations.” 78 Therefore, the Attorney General opinions support the
view that Congress intended to authorize the President only to withdraw OCS
lands from leasing in Section 12(a) of OCSLA, and did not authorize the President
to revoke a prior withdrawal. 79

75

Camp Wright, California, 16 Op. Att’y Gen. at 123.

76

Docket 56 at 36.

77

See 41 Stat. 1063, 1063–64 (1920) (codified at 16 U.S.C. § 796(2)) (identifying one
definition of “reservations” as including “lands . . . withdrawn, reserved, or withheld from
private appropriation and disposal under the public land laws”); see also S. Rep. No. 85857, at 7 (1957) (“The term ‘withdraw’ is used interchangeably with the term ‘reserve’ to
describe the statutory or administrative action which restricts or segregates a
designated area of Federal real property from the full operation of the public-land laws
relating to settlement, entry, location, and sales, which action holds them for a specific—
and usually limited—public purpose.”).
78

Pub. L. No. 83-212, § 12, 67 Stat. 462, 469 (1953) (current version at 43 U.S.C. §
1341).
79

Federal Defendants make two other arguments regarding the Attorney General
opinion addressing the Antiquities Act. First, they maintain that the Antiquities Act is
unlike OCSLA in that its purpose is to “protect objects of historic or scientific interest,”

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Federal Defendants also cite the deletion from a prior version of this section
of the bill of a “limitation of [withdrawal] authority to withdrawals in the interest of
national security” as evidence that “Congress intended to provide increased
discretion to the President.” 80 Although this deletion gives the President greater
discretion in making withdrawals, it does not authorize the President to revoke any
of those withdrawals.
C. The Purposes of OCSLA
Federal Defendants and API also cite OCSLA’s purposes—to further oil and
gas development on OCS lands and “to achieve national economic and energy
policy goals, assure national security, reduce dependence on foreign sources, and
maintain a favorable balance of payments in world trade”—to support their claim

rather than to promote leasing. Therefore, Federal Defendants contend, revocation is
aligned with OCSLA’s purposes, but not with the purposes of the Antiquities Act.
Docket 56 at 37 (citing Proposed Abolishment of Castle Pinckney National Monument,
39 Op. Att’y Gen. 185 (1938)). But the different purposes of the Antiquities Act and
OCSLA do not, in this Court’s view, warrant an expansive interpretation of the
President’s authority under Section 12(a).
Second, Federal Defendants assert that reliance on the Castle Pinckney Attorney
General opinion is “misplaced” because that opinion stated that the President may
modify national monuments. Docket 56 at 37 (citing Proposed Abolishment of Castle
Pinckney National Monument, 39 Op. Att’y Gen. at 188). However, in that same
opinion, the Attorney General rejected the President’s “power to abolish a monument
entirely.” Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att’y
Gen. at 188.
80

Docket 56 at 32 (citing S. Rep. No. 83-411, at 26 (1953); S. Rep. No. 83-411, at 39
(1953) (Comment from Assistant Attorney General J. Lee Rankin)). API also makes this
argument. Docket 59 at 23–24.

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“that Congress did not intend to foreclose presidential modification of withdrawals
under OCSLA § 12(a).” 81
The first purpose of OCSLA, as enacted in 1953, was “[t]o provide for the
jurisdiction of the United States over” OCS lands. 82 Whether the President has
revocation authority does not implicate this purpose; this case is about the scope
of Executive authority, not federalism. The second purpose was “to authorize the
Secretary of the Interior to lease such lands for certain purposes.” 83 Although
Congress clearly sought more leasing, it did not seek unbridled leasing. For the
Act also provided that it was to “be construed in such manner that the character as
high seas of the waters above the outer Continental Shelf and the right to
navigation and fishing therein shall not be affected.” 84 And Congress included
Section 12—”Reservations”—to limit leasing activity.

The fact that Congress

expressly granted the President the authority to withdraw OCS lands from leasing,

81

Docket 56 at 33 (quoting H.R. Rep. No. 83-1031, at 7 (1953) (Conf. Rep.)); Docket 59
at 22–23 (quoting 43 U.S.C. § 1802(1)). Alaska makes a similar argument. Docket 61
at 8.

82

Pub. L. No. 83-212, 67 Stat. 462, 462 (1953).

83

Pub. L. No. 83-212, 67 Stat. 462, 462 (1953).

84

Pub. L. No. 83-212, § 3(b), 67 Stat. 462, 462 (1953) (current version at 43 U.S.C. §
1332). Section 5(a) has also, since OCSLA’s enactment, authorized the Secretary to
“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, and the protection of correlative
rights therein[.]” Pub. L. No. 83-212, § 5(a), 67 Stat. 462, 464 (1953) (current version
at 43 U.S.C. § 1334).
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but did not expressly grant the President the authority to revoke such withdrawals,
is not inconsistent with the second purpose of OCSLA as enacted in 1953,
particularly as Congress itself retained the authority to revoke prior presidential
withdrawals pursuant to the Property Clause of the U.S. Constitution.
Federal Defendants further contend that “Plaintiffs’ interpretation of the
statute leads to the illogical result that a President may perform a de facto repeal
of OCSLA by withdrawing the entire OCS from exploration and development and
that any such withdrawal is permanent and immutable unless revoked by an act of
Congress.” 85

But as the Attorney General opinions reveal, Congress has

previously authorized the President to tie future Presidents’ hands. As one of the
Attorney General opinions cited by Plaintiffs states, “My predecessors have held
that if public lands are reserved by the President for a particular purpose under
express authority of an act of Congress, the President is thereafter without
authority to abolish such reservation.” 86 President Eisenhower seems to have
agreed on this point. His establishment of the Key Largo Coral Reef Preserve, the
first withdrawal under Section 12(a), sought to “preserve[] the scenic and scientific

85

Docket 63 at 21.

86

Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att’y. Gen.
185, 186–87 (1938) (citing Rock Island Military Reservation, 10 Op. Att’y Gen. 359 (Nov.
8, 1862); Military Reservation at Fort Fetterman, 17 Op. Att’y Gen. 168 (July 20, 1881);
Transfer of National Monuments to National Park Service in the Department of the
Interior, 36 Op. Att’y Gen. 75 (July 8, 1929)).
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values of this area unimpaired for the benefit of future generations.” 87 And while
Federal Defendants are technically correct that Section 12(a) would permit a
President to permanently withdraw all of the unleased lands on the OCS, Congress
could readily reverse such an action by either revoking the withdrawal itself 88 or
amending Section 12(a) to expressly provide that a future President could also
revoke a prior presidential withdrawal.
D. OCSLA’s Subsequent History
Plaintiffs assert that subsequent legislative history, in which Congress
“added procedural checks on the Executive’s discretion to dispose of outer
continental shelf lands” but did not amend Section 12(a), “confirms that . . .
[Congress] continued to view section 12(a) as providing only withdrawal
authority.” 89

Alaska characterizes Congress’s inaction as “unremarkable.” 90

Federal Defendants maintain that, “[o]f the only twelve actions taken pursuant to
OCSLA Section 12(a), at least five represent modifications of prior withdrawals and
two of them – or seventeen percent – represent reductions of prior withdrawals,”

87

Proclamation 3339, Establishing the Key Largo Coral Reef Preserve, 25 Fed. Reg.
2,352 (Mar. 15, 1960).
88

U.S. CONST. art. IV, § 3, cl. 2.

89

Docket 51 at 41–42 (citing S. Rep. No. 95-284, at 43, 48, 50–51, 61 (1977); H.R.
Rep. No. 95-590, at 100 (1977); Pub. L. No. 95-372, § 208, 92 Stat. 629, 649–52 (1978)
(current version at 43 U.S.C. §§ 1344–45)).
90

Docket 61 at 8 (citing Pub. L. No. 95-372, § 208, 92 Stat. 629, 649–52 (1978) (current
version at 43 U.S.C. §§ 1344–45)).

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to which Congress did not object.

Therefore, Federal Defendants assert,

Congress has acquiesced to the President’s authority to revoke under the
statute. 91
The Court finds Defendants’ arguments unavailing. Congress’s decisions
not to challenge the small number of prior revocations falls far short of the high bar
required to constitute acquiescence. 92

Furthermore, Congress’s subsequent

inaction with respect to Section 12(a) lacks sufficient support for this Court to draw
any appropriate inference. 93

Too little information about Congress’s limited

91

Docket 56 at 35–36 (citing Memorandum on Modification of the June 12, 1998,
Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing
Disposition, 43 Weekly Comp. Pres. Docs. 19, 19 (Jan. 9, 2007); Memorandum on
Modification of the Withdrawal of Areas of the United States Outer Continental Shelf
from Leasing Disposition, 44 Weekly Comp. Pres. Docs. 986, 986 (July 14, 2008)). API
also argues that “the practice under [Section 12(a)] over at least the past three decades
illustrates that withdrawals have rarely, if ever, been treated as permanent or inviolate.”
Docket 59 at 27.

92

Cf. United States v. Midwest Oil Co., 236 U.S. 459, 469–71 (1915) (holding that
presidential withdrawal of public lands was lawful because Congress had “uniformly and
repeatedly acquiesced” to the President’s creation of roughly 250 reservations).

93

The Supreme Court recently made a similar finding in National Labor Relations Board
v. SW General, Inc. At issue in that case was whether subsection (b)(1) of the Federal
Vacancies Reform Act of 1998 (“FVRA”), which established prerequisites for presidential
appointment to certain vacant positions, applied to appointments made under
subsections (a)(2) and (a)(3) of that Act. Subsequent to the FVRA’s passage, “three
Presidents ha[d], without congressional objection, submitted the nominations of 112
individuals who were serving as acting officers under subsections (a)(2) and (a)(3).”
The Supreme Court found that “[i]n this context, Congress's failure to speak up does not
fairly imply that it has acquiesced in the Board’s interpretation.” The Court reasoned
that these 112 nominees “ma[d]e up less than two percent of the thousands of
nominations to positions in executive agencies that the Senate ha[d] considered in the
years since [the FVRA’s 1998] passage.” The Court found the facts of SW General to
be in “sharp contrast” to those of National Labor Relations Board v. Noel Canning, in
which the Supreme Court had found congressional acquiescence to presidential
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inaction exists to “override” the Court’s interpretation of Section 12(a) based on
that section’s “language and legislative history prior to its enactment.” 94
Based on the foregoing, the Court finds that Section 5 of Executive Order
13795, which purported to revoke prior presidential withdrawals of OCS lands for
leasing, is unlawful, as it exceeded the President’s authority under Section 12(a)
of OCSLA.
IV. Remedy
“Plaintiffs request a declaration that Section 5 of the Order is unlawful and
invalid[.]” 95 The Court will vacate Section 5 of Executive Order 13795. 96 As a
result, the previous three withdrawals issued on January 27, 2015 and December
20, 2016 will remain in full force and effect unless and until revoked by Congress. 97

appointments under the Recess Appointments Clause of the Constitution. The
President’s authority under that Clause had “attracted intense attention and written
analysis from Presidents, Attorneys General, and the Senate. The voluminous historical
record dated back to ‘the beginning of the Republic,’ and included ‘thousands of intrasession recess appointments.’” The Court found that Noel Canning’s reliance on “the
chronicle of the Recess Appointments Clause . . . offer[ed] no support to the Board” in
SW General. N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 943 (2017) (quoting N.L.R.B. v.
Noel Canning, 573 U.S. 513, 526, 529 (2014)).
94

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159,
169 n.5 (2001) (citation omitted).
95

Docket 51 at 42.

96

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952) (holding that
President’s wartime order to Secretary of Commerce to seize steel mills not within the
constitutional power of the President and “cannot stand”).

97

Memorandum on Withdrawal of Certain Areas of the United States Outer Continental
Shelf Offshore Alaska From Leasing Disposition, DCPD201500059 (Jan. 27, 2015);
Memorandum on Withdrawal of Certain Portions of the United States Arctic Outer
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Plaintiffs also seek “an injunction against the Secretaries of the Interior and
Commerce preventing them from implementing Section 5 of the Order and thereby
requiring them to act in conformity with President Obama’s withdrawals.” 98 The
Supreme Court has held that “recourse to the additional and extraordinary relief of
an injunction” is not warranted where “a less drastic remedy []such as partial or
complete vacatur . . . [is] sufficient to redress [the aggrieved party’s] injury.” 99
Plaintiffs do not show that vacatur alone would fail to redress their injuries.
Therefore, injunctive relief is not warranted at this time.
//
//
//
//
//
//
//

Continental Shelf From Mineral Leasing, DCPD201600860 (Dec. 20, 2016);
Memorandum on Withdrawal of Certain Areas off the Atlantic Coast on the Outer
Continental Shelf From Mineral Leasing, DCPD201600861 (Dec. 20, 2016).
98

Docket 51 at 42–43.

99

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (holding that
district court had abused its discretion in issuing nationwide injunction against planting
of genetically modified alfalfa in part because vacatur of regulation may have achieved
same ends as nationwide injunction).

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CONCLUSION
In light of the text and context of Section 12(a) of OCSLA, the Court holds
that Section 5 of Executive Order 13795 is unlawful and invalid. Based on the
foregoing, IT IS ORDERED that:
Plaintiffs’ motion for summary judgment at Docket 50 is GRANTED.
Federal Defendants’ motion, API’s cross-motion, and Alaska’s motion for
summary judgment at Dockets 55, 58, and 60, respectively, are DENIED.
Section 5 of Executive Order 13795 is hereby VACATED.

Plaintiffs’

additional request for injunctive relief is DENIED.

DATED this 29th day of March, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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