As previously reported here, the Fifth Circuit in September ruled that the Bureau of Safety and Environmental Enforcement (BSEE) has no criminal jurisdiction under its current regulations over offshore contractors (USA v. Moss, 872 F.3d 304 (5th Cir. 2017)). A companion case regarding BSEE’s civil jurisdiction over offshore contractors (Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016)) technically remained pending on appeal before the Fifth Circuit after the court’s rejection of BSEE’s criminal jurisdiction. As this blog noted, however, the Moss court’s opinion was very broad and “expressly acknowledged that while it was only squarely faced with the question of whether BSEE’s criminal indictments in the case were valid, this question necessarily implicated whether BSEE’s regulations even applied at all (criminally or civilly) to offshore contractors.” Thus, while the civil jurisdiction case in Island Operating technically remained pending, the writing was essentially on the wall.

On December 18, 2017, however, the Fifth Circuit – on voluntarily motion by BSEE – dismissed BSEE’s appeal in Island Operating, thus definitively (and formally) ending the litigation, and effectively confirming (pursuant to the Moss ruling) that BSEE’s current regulations do not afford it jurisdiction over offshore contractors. See Island Operating, Inc. v. Zinke, Case no. 17-30440, Doc. # 00514276646 (5th Cir. Dec. 18, 2017).

Nonetheless, as noted in our prior post, the Moss court expressly refused to address whether BSEE may have jurisdiction over contractors under the OCSLA enabling statute; and “[t]his, ostensibly, could leave open the door to BSEE to attempt to rewrite its regulations to specifically include contractors, which would in turn potentially force the courts to address the question expressly left open in [Moss] of whether the OCSLA enabling statute itself reaches contractors.”