Respondents Brief — Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 914 (2019) (No. 18-389)

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No. 18-389

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IN THE

Supreme Court of the United States

PARKER DRILLING MANAGEMENT SERVICES, LTD.,

Petitioner,

BRIAN NEWTON,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENT

MICHAEL A. STRAUSS

AkIS E. KARAKALOS

STRAUSS & STRAUSS, APC

121 N. Fir Street

Suite F

Ventura, CA 93001

(805) 641-6600

ERIN GLENN BUSBY

Lisa R. ESKOW

MICHAEL F. STURLEY

727 East Dean Keeton St.

Austin, TX 78705

(512) 232-1350

DAVID C. FREDERICK

Counsel of Record

ANA NIKOLIC

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

March 22, 2019

QUESTION PRESENTED

The Outer Continental Shelf Lands Act (““OCSLA”)

declares that, “[t]o the extent that they are applicable

and not inconsistent with” federal laws and regula-

tions, the civil and criminal laws of an adjacent State

are “the law of the United States” for the Outer

Continental Shelf. 43 U.S.C. § 1333(a)(2)(A). The Fair

Labor Standards Act of 1938 (“FLSA”) sets a national

floor for wage-and-hour standards and contains a sav-

ings clause preserving enforcement of more generous

federal, state, or local minimum-wage and maximum-

hour laws. California’s Labor Code is such a law, set-

ting certain wage-and-hour standards that are more

generous than the provisions in the FLSA. Onshore,

there is no question that, under the ordinary meaning

of the terms, California’s Labor Code is both “applica-

ble” and “not inconsistent” with federal law.

The question presented is:

Should “applicable” and “not inconsistent” in

OCSLA be interpreted according to their ordinary

meanings, such that California’s Labor Code, which is

both “relevant, suitable, and fit” and not “incompati-

ble” with the FLSA, applies to employee compensation

for drilling activities on the Outer Continental Shelf?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................c0cc0cceeeeeeeeeeneeees i

Fe Ce GNF EEE BD cnccceiscccncccncnccinnssassocesnesestee’ Vv

I iaiiicianiceenicsnainveniciisesinctiiinaunnneeicensaneninnnn 1

I aiiiieanits chctsienitiaihsieabinbatinaniitathiesiebemnmnnnnnaiien 3

A. Statutory Background.............................6.100008 3

1. Pre-OCSLA Drilling and Regulation

on the Outer Continental Shelf.................. 3

2. The Submerged Lands Act......................... 5

i Cia folic eiiiiaerccettisinsnneneaitngiabamniioann 5

4. 1975 OCSLA Amendments......................... 8

5. 1978 OCSLA Amendments......................... 9

6. The Fair Labor Standards Act................. 11

7. The California Labor Code ....................... 12

.. anor 13

SUMMARY OF ARGUMENT ..............................0004. 16

EES Ese 21

I. STATE LAW APPLIES ON THE OCS IF

IT IS “APPLICABLE” AND “NOT IN-

CONSISTENT” WITH FEDERAL LAW. ....... 21

A. Under The Ordinary Meaning Of

“Applicable,” State Legal Standards

Apply On The OCS If They Are

Relevant, Suitable, Or Fit ........................ 21

B. Under The Ordinary Meaning Of

“Not Inconsistent,” State Law That

Is Not Incompatible With Or

Il.

III.

CALIFORNIA'S WAGE-AND-HOUR

LAWS ARE RELEVANT AND NOT

INCOMPATIBLE WITH THE FLSA...........

A. California’s Wage-And-Hour Laws

Are “Applicable” Because They Are

Relevant To The Pertinent Subject

B. California’s Wage-And-Hour Laws

Are “Not Inconsistent” With Federal

Law Because Both The FLSA And

OCSLA Contemplate Application Of

More Protective State Labor Laws ........

PETITIONER’S ARGUMENTS LACK

A. Accepted Principles Of Statutory

Interpretation Preclude Petitioner's

Reading Of “Applicable” .........................

1. The statutory text lends no sup-

port to petitioner's contention that

“applicable” should be interpreted

to require a gap in federal law

before state law applies.....................

2. Petitioner misunderstands how

law applies on federal enclaves.........

3. Petitioner ignores important dis-

tinctions Congress’ established

between “jurisdiction,” “admin-

istration and enforcement,” and

4. Any purported ambiguities in the

legislative history cannot override

the text’s plain meaning...................

. o7

IV.

. Petitioner's Attempt To Manufacture

Inconsistency Between California’s

Wage-And-Hour Laws And The FLSA

Ignores Both Statutes’ Text And

2. Nothing in OCSLA requires ignor-

ing the FLSA’s savings clause ............

PETITIONER’S APPROACH CREATES

ADMINISTRABILITY PROBLEMS .............

A. Sound Policy Counsels For Making

The Same Legal Standards Apply

To Employees Working Onshore Or

RETEST eis See SPCR Sn

DB. Petitioner's Interpretation Disrupts

Established Methods Of Applying

State Laws On Federal Enclaves.............

C. Other Policy Considerations Argue

TABLE OF AUTHORITIES

Page

CASES

Adkins v. Arnold, 235 U.S. 417 (1914)..................... 28

Artis v. District of Columbia, 138 S. Ct. 594

SRE Aaa SN S.A PD RRS ola 21

Barrentine v. Arkansas-Best Freight Sys., Inc.,

a ts EE sctiiinsieaitcdinnineniieticdsedovectioonnts 29, 32

California Fed. Sav. & Loan Ass’n v. Guerra,

as ee IED seitcsinjdbisiindeniscnicnidimasminercneassnte 50

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)...... 7, 8,

19, 20, 25, 26,

32, 37, 43, 44, 52

Chicago, RI. & P. Ry. Co. v. McGlinn, 114 US.

EE) GERD cccnessaccesvessecensvartasecmmnennsemtsmmatueaeoneiseens 40

Continental Oil Co. v. London S.S. Owners’ Mut.

Ins. Ass'n, Lid., 417 F.2d 1030 (5th Cir.

ii cinspineeticssitipdciiidlotnaniniiieiisusbesidinanieataiinianndpeien 14, 41, 42

Cortez v. Purolator Air Filtration Prods. Co.,

990 P.2d 706 (Cal. DOOD) ........ccccccrccccccccrcccessesesees 13

Franklin v. Lynch, 233 U.S. 269 (1914).............. 27, 28

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

ITED icin scletdinslishatiadscnpannalihdibaititenienaitiiadaae 26, 27,

28, 32, 53

Harper v. Virginia Dep't of Taxation, 509 U.S.

EE INS SN PR SEN AA ES 8

Harris Tr. & Sav. Bank v. Salomon Smith

Barney Inc., 530 U.S. 238 (2000) ....................... 21

Henson v. Santander Consumer USA Inc., 137

a, RN ae, cea ae eta Sree 23

James Stewart & Co. v. Sadrakula, 309 U.S. 94

SITET pcuscnstetnceatedidipnesianneatentiontsmedivs 6-7, 38, 39, 40

Jimenez v. Quarterman, 555 U.S. 113 (2009).......... 21

Kasten v. Saint-Gobain Performance Plastics

I Ce I ie IED iincccsccticcbscdievenichecsaescecenses 29

Korndobler v. DNC Parks & Resorts at Sequoia,

No. 1:15-cv-00459-LJO-SKO, 2015 WL 3797625

8 €. F ) §& £=e a 41

Lamie v. United States Tr., 540 U.S. 526 (2004)....... 42

Lewis v. United States, 523 U.S. 155 (1998)....... 35, 51

Mendiola v. CPS Sec. Sols., Inc., 340 P.3d 355

tes ER: SIRE Te SE a as REE eevee 47

Mendoza v. Nordstrom, Inc., 393 P.3d 375

| RR SE eee rere 12

Offshore Logistics, Inc. v. Tallentire, 477 U.S.

a Ee a cteansedeiiatniinine 6

Pacific Merch. Shipping Ass’n v. Aubry, 918 F.2d

1408 (Oth Cir. 1900)..................c0cccsecceeeeees 11, 28, 29

Pacific Operators Offshore, LLP v. Valladolid,

4 ey 5, 32, 42

Paul v. United States, 371 U.S. 245 (1963).....7, 39, 40

People v. Weeren, 607 P.2d 1279 (Cal. 1980).............. 3

Powell v. United States Cartridge Co., 339 U.S.

Se ED sidiniinnsstcddinegrvcinshacienninesniiiannla 12, 17, 20,

31, 32, 46, 49

Ransom v. FIA Card Servs., N.A., 562 U.S. 61

Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352

GI ececessecéntounsensiccdnousbousevatonnssatnedbapente 7, 24, 25, 43

Shell Oil Co, v, lowa Dep't of Revenue, 488 U.S,

ay CETTE ccpascnitdniiabaiesenibinepinintnbstabanenioasintavennenees 4,5,6

Spoerle v, Kraft Foods Glob., Ine,, 614 F.3d 427

A I a | nieddiaiuaaliapendied 47

Sun Ship, Ine, v. Pennaylvania, 447 U.S, 715

REE REA SP PE SR tA SS 48, 49

Tennessee Coal, lron & RR. Co, v. Muascoda

Local No, 123, 321 U.S, 590 (1944).........cccccee 32

Tidewater Marine Western, Inc, v. Bradshaw,

Se BID ccs cocncnieennenasataseimiennaats 28

Union Texas Petroleum Corp, v. PLT Engg,

Inc,, 895 F.2d 1043 (Sth Cir, 1990) .........6000668 42

United States v, California, 382 U.S, 19 (1947) .... 3, 4

United States v, Louisiana, 339 U.S, 699 (1950)..... 3, 4

United States v, Maine, 420 U.S, 515 (1975) 0... 5

United States v, Sharpnack, 355 U.S, 286 (1958) ........ 9

United States v. State Tax Comm'n of Missis-

sippi, 412 U.S, 363 (1973) ........ccccceeseecees 38, 39, 40

United States v, Texas, 339 U.S, 707 (1950).......... 3,4

Williams v. Taylor, 529 U.S, 362 (2000) ........... 37

STATUTES AND REGULATIONS

Act of Feb, 19, 1903, ch, 707, 32 Stat, 841-42........ . 28

Assimilative Crimes Act of 1948, ch. 645,

AE EN PL tak am Ps 9, 35, 54

BB I B BB cevcccrcerssersccreecavcceinscsscvncesscoseen 9, 54

BD WG, F BBR eccvcicosevescsvssevecssvecszevecvsotevsccees 35

vill

Civil Rights Attorney's Fees Awards Act of

1976, Pub, L. No, 94-559, 90 Stat. 2641 ............. 35

Be a Be BE cecdursunesncoiedesatentancadcasiciceinainniiins a5

Clean Air Act, 42 U.S.C, § 7401 ef 8€q. ......66606 53

ne ME TE AIEy iT WE ciciaceineasedupedeondosseoeeneusesenen 54

Sty Ml ERENT: UR TIE. prcenceveshenccssstnsadscccbccosves 53, 54

§ 328(a)(1), 42 U.S.C. § T627(A)CD) .....cccccccccees 53

§ 328(a)(3), 42 U.S.C, § 7627(Aa)(3) ........cccccceccees ‘4

Clean Water Act, 33 U.S.C. § 1251 ef seq:

Se Ey UB I cddbncsinginesdtniamictsnaaiidanmaniindon 54

Coastal Zone Management Act of 1972,

Be Sets Ae EE IE, ceccscsnvissecsinssscsvsezcensin 10-11

i eT cosncatonsininnuensssaneenpesesseseussecansepuaninens 11

Death on the High Seas Act, 46 U.S.C, § 30301

GE DG, cacenecccccincescaszesetosiveccusscinecsccsscensscenezcessnnss 24, 25

Deepwater Port Act of 1974, Pub, L. No, 93-627,

I aecascsenceedeeesnevsessonsvorensemevsdeinuen 8

ON I, I acc atialictieidrtieniaslbaebinte 8, 9

Be Ele Ur EE. senahciccvinetnedatiseentussibesinegiicimemnvnns 8

Fair Labor Standards Act of 1938, 29 U.S.C.

TRUE TRUE ‘scchdouddcersucencesstousboqubbensehtousienneieens passim

FRI SEN SSIES te EEESIO SSD Ra as Sean 11, 29, 32

EN ERS Saree ae te ee: oe a Pe Rees Ea 11,17

RMI ios65) 4d asad cotetinenctiipieameeadeieanainednaaenh $1, 49

I ioe aniacetatasnsnt nied etiilcepmidaciaietl 29, 46, 49

| ENE Eee Soe ane Bin eo 11,17

a a 11, 48

i a dnckihiaslnindensdaniiandiniaasaievenntesbadbipeatetietibeibiens 48

i Ti nists cninsennerinsinchatslalinemnnatnistmmnipteads 11, 17, 29, 31

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § OO] of 06g, .....:::cscscesssereseseess 42, 48

Outer Continental Shelf Lands Act, 43 U.S.C,

I al laa iieal alicia passim

i I oda sions do enone endnngebonmnneniabineieniane 10, 28, 33

ssi csct:deecnbiashisiainnisbadepannennibieinacdial 9, 16, 23, 33

i sata catngch adeahieadiadeniadenssunabedentelmtenlammaiaaiseana 34

ie SIE nics ions cen nennsdnoennsbeeenenensiennns 5, 24, 34, 41

ITT oi oc cics rises dbicenhiaumcebageunahiasinensl 6, 8,9

Bh ITT svcenscnssegneninbersetentnnsesemiacintaanie i)

Be Ae sessecientniansenpibneenitindial 10, 16, 22, 23, 24,

25, 26, 28, 34, 40, 41, 42

SE I NS A i AON 41

RELATES Re ES Sees rn ROS Dn Sse e 42

i I iiciocioseihaanetintderisennanneineeemaeasiteeiinnliid 10, 41, 54

ESI ec Yanan PREP I Ae: Ant 11

Eh EES Rae ee aoe 10, 28, 55

a a lee radials 11

Be TTI <ciicsccnceetinidestsehaadebonmiennsuesedintnaniipthse 24

Outer Continental Shelf Lands Act Amend-

ments of 1978, Pub. L. No, 95-372, 92 Stat.

Pregnancy Discrimination Act, Pub. L. No.

95-555, 92 Stat. 2076 (1978) ........cccccsccereeescseenes 50

Solid Waste Disposal Act, 42 U.S.C, § 6901

et 8eq.:

ELIT sciiccincticeniniersnemmntansonditenoniddandaseaiunonsidn ‘4

Submerged Lands Act, 43 U.S.C, § 1301 et seq. ....... 5

Walsh-Healey Act, ch, 881, 49 Stat, 2036................ 31

ee IE ciccisincancinecitesnisietrnininvnimneininin 50

California Fair Employment and Housing Act,

Cal. Gov't Code § 12900 @t 8€q. .......ccccccceeceeeeees 50

Cal. Fish & Game Code § 3961..............6:0008 22, 37

Cal, Lab, Code:

Si nssianctaciataanpiiantdeinciaandapnmnsinndineveaieiaiaiitenianatava 12

a cee 48

aT iscscsinesttibennistinptetiaeieandiacniaeensiaioeidiinshapeabahiattentpheadiala 12

SIA Anviecenthahssbenainensiatnasiienedgiteeabeeptppenienemmmnnasinnial 12

Eras sinsthalestrindieseiuccutesicasaseemenindbaentambignsianmeiiedes 48

Tid chi te atieanieenpannienesimeiaumeomnernseamscnramuaneias 13

I MII 2 snc seninssuebpiassbaneiinsiaahanianinenuambenniostantid 55

i I dished boaceessinnndiaeetsiecasidenstanssiumdidianetieiabin 13

RIES SEs Pe ee A ae oe 18

TInt sania tinct en celal silathinetiltcbipsiialalidessiasinianiitiinaniid 55

IIIS sil tndiencinsbisncuiieaniiniuananennineel 31

ir AIT ciiictusOiliinsitaehieiuniaptinmadisnideentbcmnianneiadiaapiieneuantinasaia 12

EE Se 1) a See ae a a ee A 12

i ts ae IEE 0 TID, cccnesctinsscieccnasinsteisabiccteanisiaaii 22

Private Attorneys General Act of 2004, Cal.

OS OS Ee a ae 13

es CU I Ur CoA ccsoucciscndsccsdcceccsusseonesssansns 22

29 C.F.R.:

SUA on aniintnptuilindsedtbabduepneashishtnidtiaieinssisdskaiainaloabestianesiie 30

SONI scsacchsstiintagadedsnmtanieenscndmaieatinensiiimaianminaad 30, 35

II ies ocd oiatae acne aided ee cial intdiateinehiniennaien 47

i TE III cvichidetinbiisspnisetidcasieneenenscanbuasanesainenaendvionte 47

SOIREE STE a Rr ncaa ee nian sR OS 48

Ea ITI ichaiius ecentbatsinegunienisngupnnias ehtiasanadaeinonanantiaes 47

86 CFR.

aI is rt snail ith icia hah on tbceaaiiepsabiidimeiniapsahenitneiinetsein 52

II ncidenichnectesmnlsie cael diintaasiceiaiseiiaisdghatotemabitidaah §2

SiIIIE IT cirncsidestapeaisinninsbininderteineuseabvendaninguninctnced 52

aca 54

8 Cal, Code Regs.:

I I iota eet sdnileaieietttiaanianiaianatabe 22

ainsi 12

i (EIT ns daira lonertcisdeenniabdnsadenisinathanesainanenagh 13

TTD scccint ss cencssaichnaiedatesaniontbiéiaticait 56

¢ |} RSS SEEN SIE XY Sateen rome ors er 55

ADMINISTRATIVE MATERIALS

Cal. Dep't of Indus, Relations, The Laws Relat-

ing to the Time, Manner and Payment of

Wages (Oct, 2013), https://www.dir.ca.gov/

dise/lawstimemannerpaymentwages.pdf ............ 12

Establishing a Minimum Wage for Contractors,

Notice of Rate Change in Effect as of

January 1, 2019, 83 Fed. Reg. 44,906 (Sept.

Notice, Oil and Gas Operations in the Sub-

merged Coastal Lands of the Gulf of Mexico,

15 Fed, Reg. 8835 (Dec, 13, 1950)..........6006

Notice, Oil and Gas Operations in Submerged

Coastal Lands of Gulf of Mexico, 17 Fed,

Reg. 56833 June 28, 1952) .........cccccccceeeeeeeeceees

Presidential Press Release (Sept, 28, 1945) ..........

Presidential Proclamation No, 2667, 10 Fed. Reg.

Re I: hy Seb ep nccvscevevesconscvvccepinccencenssnseceeee

Tr. of Pub, Hr'g of Cal, Indus, Welfare Comm'n

(Oct. 5, 2000), available at https://www.dir.

ca.gov/iwe/PU BHRGOS. htm 0...

U.S, Dep't of Labor:

Administrator's Interpretation No, 2016-2,

“Effect of state laws prohibiting the pay-

ment of subminimum wages to workers with

disabilities on the enforcement of section

14(c) of the Fair Labor Standards Act” (Nov.

17, 2016), https://www.dol.gov/whd/opinion/

AdminIntrprtn/FLSA/2016/F LSAAI2016_ 2.

TET »scsqudiutnsinseiandaneptonninduanidpeiemameiniiaaemteimeesacten

Employment Laws Assistance for Workers

and Small Businesses, “Meal Period and

Rest Breaks,” https://webapps.dol.gov/elawa/

whd/flsa/hoursworked/screenEE4.asp (last

a cectediesmudinenéens

. 80

xiii

LEGISLATIVE MATERIALS

99 Cong. Ree, (1953):

ia nian 49

Ih, TEIE Pa iveccconvcousueedevusioionsdodunnntendedansdunepeteiaens 8, 49

S| NN NTS ee aR EAE 44

H.R, Conf. Rep, No, 83-1031 (1953) ............660008 45

SS SL, REE RE aE a 11

BRI, Bes SPEED CHIP cscccensnicinccesncccsscestansinavesensenes 8

S. Rep. No, 93-1217 (1974), 1974 U.S.C.C.A.N,

Wee venconssévasnassentateiastunntaainiitadiemadaadiiibenieaaianil 8

OTHER MATERIALS

Answering Br., Curtis v, Irwin Indus., Ine.,

No, 16-56515 (9th Cir, Feb, 28, 2018)............... 55

Black's Law Dictionary (4th ed, 1951) .............. 21, 27

Warren M, Christopher, The Outer Continental

Shelf Lands Act; Key to a New Frontier, 6

I, Eas TA, Be ee iccetinavcenibstnitasiiaiiainintiaisins 7,8

Robert Easton, Blacktide (New York, N.Y.

ee 9

Employment Agreement, Jensen v, Safety Equip.

Corp., No, 2:18-cv-02890-RGK-GJS, ECF

#28-12 (C.D. Cal. July 5, 2018)..........:ccccecccceeees 55

William L, Leffler, Richard Pattarozzi & Gor-

don Sterling, Deepwater Petroleum Explora-

tion & Production; A Nontechnical Guide

(Tulsa, Okla.: PennWell Corp., 2003) ................. 3

Webster's Universal Dictionary (1953).......... 21, 27, 28

INTRODUCTION

In 1953, Congress enacted the Outer Continental

Shelf Lands Act (“OCSLA”) to clarify that federal law

would govern offshore activities that had begun on the

Outer Continental Shelf (“OCS”) under state law.

Recognizing the connection between operations on the

shelf and the adjacent State’s shore, Congress pro-

vided that state law would be incorporated into the

federal law of the OCS to the extent it was “applicable

and not inconsistent with” other federal law.

This case concerns the interpretation of the words

“applicable and not inconsistent with” in OCSLA as it

pertains to the interplay between California’s Labor

Code and the federal Fair Labor Standards Act of 1938

(“FLSA”). The court below applied the ordinary and

plain meaning of those words. It held that California’s

Labor Code was “applicable” because it was relevant,

suitable, and fit to be applied to employment matters

on the OCS. It further opined that, because the federal

FLSA minimum-wage and overtime laws explicitly

provide only a floor and invite States to legislate more

worker-friendly wage-and-hour measures, the incor-

poration of such state standards was “not inconsistent

with” any federal law that governed OCS activities.

That holding is faithful to OCSLA and true to

Congress's concern that the same law that applied

onshore to a business also would be incorporated as

federal law governing its offshore activities, when

applicable and not inconsistent with federal stan-

dards. A company like petitioner, in other words,

would not need to keep two sets of books for wages and

hours depending on the exact moment the worker

transitioned from shore to shelf. The power of plain

language is such that petitioner grudgingly concedes

(at 22-23, 35) the Ninth Circuit's interpretation of

“applicable and not inconsistent with” is “possible.”

To fight OCSLA’s plain language, petitioner's prin-

cipal submission is that Congress meant something

entirely different from the words it used: the word

“applicable” really means “only when there is a gap

in federal law.” As a matter of ordinary meaning,

petitioner's approach offers little to recommend it.

Ever. worse, petitioner repeatedly invokes a purported

background principle from the law of federal enclaves.

Not only is petitioner incorrect about that principle,

but applying petitioner's version actually would un-

settle longstanding federal-enclave law and bring un-

certainty to a rash of federal statutes and regulations

that use the words “applicable” and “not inconsistent

with.” In practice, federal officers enforce state stan-

dards every day on federal enclaves, and statutes and

regulations reflect all sorts of mechanisms for federal-

state agreements to do just that. Indeed, OCSLA

itself authorizes the Interior Secretary to override

any state legal standards applicable on the OCS,

but the Secretary simply has not chosen to exercise

that power in this situation. Instead of upsetting a

carefully balanced framework for the incorporation

of state law in a manner that introduces great

uncertainty in related areas, the Court should affirm

the judgment.

STATEMENT

A. Statutory Background

1. Pre-OCSLA Drilling and Regulation on the

Outer Continental Shelf

By 1896, onshore drilling operators realized Califor-

nia’s oil fields extended offshore and drilled the first

offshore oil well in the United States using wooden

piers with derricks on top. Freestanding offshore-

drilling platforms followed, and the offshore oil boom

fully took off in 1947, when Kerr-McGee Corporation

drilled a well 10 miles off the coast of Louisiana. !

At that time, coastal States had asserted ownership

of submerged lands within their self-defined boun-

daries. Since 1849, California defined its seaward

boundary as extending three English miles from its

outermost islands. See People v. Weeren, 607 P.2d

1279, 1282 (Cal. 1980). Louisiana in 1938 and Texas

in 1941 extended their boundaries 27 marine miles

from the shore. See United States v. Louisiana, 339

U.S. 699, 703 (1950); United States v. Texas, 339 U.S.

707, 720 (1950). The federal government had not yet

asserted any claims to the OCS, and the Department

of Interior represented it lacked authority to issue

mineral leases offshore. California, Texas, and Loui-

siana executed leases for drilling off their shores and

collected “large sums of money in rents and royalties.”

United States v. California, 332 U.S. 19, 23 (1947); see

id, at 38 (discussing 1921 California law permitting

for oil and gas prospecting).

' See generally William L. Leffler, Richard Pattarozzi & Gordon

Sterling, Deepwater Petroleum Exploration & Production: A

Nontechnical Guide 1-8 (Tulsa, Okla.: PennWell Corp., 2003).

In 1945, President Truman issued a proclamation

announcing that the “United States regards the natu-

ral resources of” the OCS “subject to its jurisdiction

and control.” Presidential Proclamation No. 2667, 10

Fed. Reg. 12,303 (Oct. 2, 1945). The proclamation was

directed at the international community and “d[id] not

touch upon the question of Federal versus State

control.” Presidential Press Release (Sept. 28, 1945).

Seeking the profits from offshore royalties, the

federal government brought original actions for a

declaration of federal ownership of offshore lands. See

California, 332 U.S. at 22; Louisiana, 339 U.S. at 701;

Texas, 339 U.S. at 709. In those cases, this Court held

that the federal government had “paramount rights in

and power over” the submerged lands and “full domin-

ion” over their natural resources. California, 332 U.S.

at 38-39; see also Louisiana, 339 U.S. at 704-06; Texas,

339 U.S. at 717-18. The Court also enjoined all off-

shore oil and gas operations. In response, the Interior

Secretary authorized offshore wells already operating

under state-issued leases to continue operations, but

with all rents and royalties going to the Secretary.

The authorization disclaimed that the federal govern-

ment was adopting or ratifying those leases. See

Notice, Oil and Gas Operations in the Submerged

Coastal Lands of the Gulf of Mexico, 15 Fed. Reg. 8835

(Dec. 13, 1950); Notice, Oil and Gas Operations in

Submerged Coastal Lands of Gulf of Mexico, 17 Fed.

Reg. 5833 (June 28, 1952).

The Court’s decisions surprised the coastal States,

which had “claimed jurisdiction over the submerged

lands and their rich oil, gas, and mineral deposits, and

some had even extended their territorial boundaries

as far as the outer edge of the OCS.” Shell Oil Co. v.

lowa Dep't of Revenue, 488 U.S. 19, 26 (1988) (citations

omitted). No federal law existed to issue new offshore

leases, and new exploration and development ceased.

Meanwhile, state-issued leases remained in limbo.

2. The Submerged Lands Act

In 1953, Congress responded to the outcry from

coastal States following the Court's decisions in

California, Louisiana, and Texas by promulgating

the Submerged Lands Act, 43 U.S.C. § 1301 et seq.

(“SLA”). That Act “extended the boundaries of Coastal

States three geographic miles into the Atlantic and

Pacific Oceans and three marine leagues into the Gulf

of Mexico,” and also confirmed the jurisdiction and

control of the United States over natural resources

seaward of state boundaries. Pacific Operators Off-

shore, LLP v. Valladolid, 565 U.S. 207, 211-12 (2012).

3. OCSLA

In 1953, Congress also enacted OCSLA to supple-

ment the SLA and to provide for federal administra-

tion over OCS mineral-resources development. 43

U.S.C. § 1331 et seq.2 “In passing OCSLA, Congress

intended to provide ‘for the orderly development of off-

shore resources.” Shell Oil, 488 U.S. at 27 (quoting

United States v. Maine, 420 U.S. 515, 527 (1975)).

OCSLA extends federal law to the OCS, providing

that “[t}he Constitution and laws and civil and politi-

cal jurisdiction of the United States are extended to

loffshore-drilling rigs] .. . to the same extent as if the

[OCS] were an area of exclusive Federal jurisdiction

located within a State.” 43 U.S.C. § 1333(a)(1). As

originally enacted, the choice-of-law provision adopted

2 OCSLA defines the OCS as “the submerged lands subject to

the jurisdiction and control of the Unitee States lying seaward

and outside of the submerged lands within the extended State

boundaries.” Valladolid, 565 U.S. at 212.

as federal law the then-existing civil and criminal

laws of adjacent States that are “applicable and not

inconsistent with” federal law:

To the extent that they are applicable and not

inconsistent with this [Act] or with other Federal

laws and regulations of the Secretary now in effect

or hereafter adopted, the civil and criminal laws

of each adjacent State as of the effective date of this

Act are declared to be the law of the United States

for that portion of the subsoil and seabed of the

[OCS], and artificial islands and fixed structures

erected thereon, which would be within the area of

the State if its boundaries were extended seaward

to the outer margin of the [OCS], and the Presi-

dent shall determine and publish in the Federal

and defining each such area.

Id. § 1333(a)(2) (1970) (emphases added). However,

OCSLA expressly excluded the application of state-

taxation laws to the OCS. Jd. As the Court explained,

“[t]he problem before Congress was to incorporate

the civil and criminal laws of the adjacent States, and

yet, at the same time, reflect the strong congressional

decision against allowing the adjacent States a direct

share in the revenues of the OCS, by making it clear

that state taxation codes were not to be incorporated.”

Shell Oil, 488 U.S. at 27-28.

As the Court summarized, “|t]he intent behind

OCSLA was to treat the artificial structures covered

by the Act as upland islands or as federal enclaves

within a landlocked State . . . for purposes of defining

the applicable law.” Offshore Logistics, Inc. v. Tallen-

tire, 477 U.S. 207, 217 (1986). Typically, state laws in

existence at the time an enclave is created continue in

force as federalized state law, see James Stewart & Co.

v. Sadrakula, 309 U.S. 94, 99 (1940), and are “apnli-

cable” so long as they do not “conflict|] [with] federal

policy,” Paul v. United States, 371 U.S. 245, 268-69

(1963). However, state laws enacted after the creation

of a federal enclave are not applicable without approval

by Congress. /d.

Arriving at OCSLA’s governing-law provision pre-

sented a “challenging question” for its proponents.

Warren M. Christopher, The Outer Continental Shelf

Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23,

37 (1953). That was because the individuals employed

offshore “will die, leave wills, and pay taxes... . [T]he

whole circle of legal problems familiar to the upland

could occur on these structures.” Jd. In addition to

deciding what law should apply, Congress had to

decide who would administer and enforce the laws

offshore.

Before settling on duel application of federal and

state legal standards, Congress debated various other

proposals. Members thought it was important that

offshore workers benefit from the “social laws” of

upland States, Rodrigue v. Aetna Cas. & Sur. Co.,

395 U.S. 352, 361-62 (1969), because of “the close

relationship between the workers on the [artificial]

island|s] and the adjoining States,” id. at 365.

After considering and rejecting proposals to extend

state jurisdiction and state police powers to the OCS,

Congress turned to the adjacent State’s law to provide

the content of federal law, “because men working on

[the OCS] are closely tied to the adjacent State, to

which they often commute and on which their families

live.” Id. at 355. Congress also recognized the “special

relationship” between offshore workers and the laws

of the adjacent State, “with which these men and their

attorneys would be familiar.” Chevron Oil Co. v.

Huson, 404 U.S, 97, 108 (1971), disapproved of on

other grounds by Harper v, Virginia Dep't of Taxation,

509 U.S, 86 (1993),

Congress also considered existing state conservation

laws and “the desirability of extending” them to the

OCS. 8S, Rep, No, 83-411, at 3 (1953). The Senate

Report discussed “the history of Federal conservation

on areas of Federal jurisdiction within the borders of

a State” as demonstrating “that the Federal Govern. |

ment has cooperated fully with State conservation

authorities, and that the two systems can operate

together,” Jd,

4, 1976 OCSLA Amendments

In 1975, Congress passed the Deepwater Port Act of

1974, Pub, L. No, 93-627, § 19(f), 88 Stat, 2126, 2146

(1975), which amended then § 1333(a)(2) of OCSLA."

When Congress originally enacted OCSLA, it was con-

cerned that prospective incorporation of state law

“now in effect or hereafter” could be an unconstitu-

tional delegation of authority, See Christopher, 6

Stan, L. Rev, at 38-39, To avoid delegation problems,

in 1953 Congress had adopted only the applicable and

not inconsistent “laws of each adjacent State as of the

effective date of thle] Act.” 48 U.S.C, § 1883(a)(2)

(1970) (emphasis added); see 99 Cong. Rec, 6963-64

(1953) (statement of Sen, Cordon) (“The enactment as

Federal law by reference of the laws of the several

* The Deepwater Port Act creates a regulatory regime for

deepwater ports, 38 U.S.C. § 1501, The Senate Report noted

that “deepwater port development will be regulated in the same

manner as resource exploitation on the [OCS]... . State lawa, to

the extent they are not inconsistent with Federal law, are made

applicable to deepwater porta,” S. Rep. No, 98-1217, at 4 (1974),

1974 U.S.C.C._ALN, 7529, 7531-82.

abutting States meets the major constitutional objec-

tion, in that the laws so adopted are the laws as they

exist at the time of the enactment of [OCSLA]. Only

already existing State laws will become the law of the

United States,”). In other words, “applicable” state

law was limited to state criminal and civil laws -

except tax laws — in existence on OCSLA's effective

date,

By 1975, the delegation concerns had been resolved

by United States v. Sharpnack, 355 U.S, 286 (1958).!

Congress therefore amended § 1333(a)(2) to provide

that “the civil and criminal laws of each adjacent

State, now in effect or hereafter adopted, amended, or

repealed are declared to be the law of the United

States.” Pub, L. No, 98-627, § 19(f), 88 Stat, 2146,

codified at 48 U.S.C, § 1383(a)(@2) (1976) (emphasis

added),

5. 1978 OCSLA Amendments

In 1969, a blowout at a Santa Barbara Channel

offshore well caused 80,000 barrels of oil to spill

into the ocean and onto California's beaches, Three

more blowouts closely followed and prompted a

reassessment of environmental and regulatory policy

governing offshore drilling.°

Accordingly, in 1978, Congress amended OCSLA to

include environmental-protection obligations and pro-

visions for increased cooperation between the federal

‘In Sharpnack, the Court upheld the Assimilative Crimes Act

of 1948, which makes subsequently enacted state criminal laws

“not made punishable by any enactment of Congress’ enforceable

on federal enclaves, ch. 645, § 18, 62 Stat, 683, 686, codified as

amended at 18 U.S.C, §. 13. See 355 U.S, at 292-94,

* For a history of the fallout from these blowouts, see generally

Robert Easton, Blacktide (New York, N.Y. Delacorte Press, 1972),

government and coastal States, See Outer Continen-

tal Shelf Lands Act Amendments of 1978, Pub. L.

No, 95-372, 92 Stat, 629, The new “National Policy for

the Outer Continental Shelf” declares the rights and

responsibilities of States and local governments to

protect “marine, human, and coastal environments,”

explaining that States’ “regulation of land, air, and

water uses, of safety, and of related development

and activity should be considered and recognized.”

43 U.S.C, § 1832(5). “[H)uman environment” is defined

as “the physical, social, and economic components,

conditions, and factors which interactively determine

the state, condition, and quality of living conditions,

employment, and health of those affected, directly or

indirectly, by activities occurring on the [OCS].” Jd.

§ 13310).

As originally enacted, OCSLA authorizes the Inte-

rior Secretary to issue rules and regulations governing

the OCS, /d. § 1384(a). In accordance with OCSLA’s

governing-law provision, these regulations nullify

inconsistent state law, Jd. § 1333(a)(2)(A). The

1978 amendments retain the Secretary's paramount

regulatory authority, but also require the Secretary

to cooperate with “affected States” to enforce “safety,

environmental, and conservation laws and regula.

tions.” Jd. § 1334(a), The Secretary gained authority

to enter into cooperative agreements with affected

States “to carry out applicable Federal and State laws,

regulations, and stipulations relevant to [OCS] opera-

tions both onshore and offshore.” /d. § 1345(e).

The amendments also direct the Secretary to develop

leasing programs in consultation with the affected

coastal States. Jd. And the 1978 amendments

augmented authority Congress promulgated in the

Coastal Zone Management Act of 1972, 16 U.S.C.

§ 1451 et seq. (CCZMA"), which requires certification

that OCS activities will be conducted in a manner con-

sistent with the adjacent State's coastal-management

program, /d. § 1456(c)(3)(B). The 1978 OCSLA

amendments direct the Secretary not to approve

an exploration or development-and-production plan

unless the adjacent State concurs with the consistency

certification or the Secretary of Commerce overrides

the state CZMA criteria. See 48 U.S.C, §§ 1840(c),

135 1(d).

6. The Fair Labor Standards Act

The FLSA prohibits labor conditions “detrimental! to

the maintenance of the minimum standard of living

necessary for health, efficiency, and general well-

being of workers.” 29 U.S.C, § 202(a), The FLSA

establishes “a few rudimentary standards,” S. Rep.

No, 75-884, at 3 (1937) (quoting Franklin D. Roose-

velt’s May 24, 1937 message to Congress), that serve

as “a national floor under which wage protections

cannot drop,” Pacific Merch, Shipping Ass'n v, Aubry,

918 F.2d 1409, 1425 (9th Cir, 1990). For example, the

LSA requires that employers pay a minimum hourly

wage not less than the federal rate and overtime pay

not less than the federal standard, 29 U.S.C, §§ 206.

207, and requires employers to keep employee records,

id, § 211(c),

The FLSA savings clause allows States and the

federal government to set more favorable minimum.

wage and maximum-hour requirements, The savings

clause stipulates that the FLSA does not “excuse non-

compliance with any Federal or State law or munici-

pal ordinance establishing a minimum wage higher

.., Or a maximum work week lower” than the FLSA.

Id, § 218(a). Accordingly, when faced with differing

state or federal laws, the savings clause establishes

that the greater minimum-wage or overtime protec-

tions apply. See Powell v, United States Cartridge Co.,

339 U.S, 497, 5619-20 (1950).

On certain topics, the FLSA is silent as to appropri-

ate worker protections, For example, the FLSA does

not set standards for meal periods, The Department

of Labor (“DOL”) has instructed that, when States

require meal periods, “|s}uch state requirements will

prevail over the silence of the FLSA on this subject”

because employees are entitled to the most beneficial

provisions of each law. DOL, Employment Laws

Assistance for Workers and Small Businesses, “Meal

Period and Rest Breaks,” https://webapps.dol.gov/

claws/whd/flsa/hoursworked/screenEE4.asp (last vis-

ited Mar, 18, 2019),

7. The California Labor Code

California's Labor Code is designed to “promote| |

and develop|] the welfare of the wage earners of Cali-

fornia.” Cal, Dep't of Indus, Relations, The Laws

Relating to the Time, Manner and Payment of Wages

2 (Oct, 2013), https://www.dir.ca.gov/dlse/lawstime

mannerpaymentwages.pdf, Enacted in 1937, the Labor

Code regulates California wage-and-hour standards

in tandem with the Industrial Welfare Commission's

(“IWC”) 17 wage orders, See Mendoza v, Nordstrom,

Ine,, 393 P.3d 375, 379 (Cal. 2017) (explaining the

complementary nature of California's Labor Code and

wage orders).°

Five of respondent's claims arise under California's

Labor Code: minimum-wage violations, Cal, Lab.

Code §§ 1194, 1197; paystub violations, id, § 226; fail-

ure to timely pay wages at termination, id, §§ 201-202;

® Wage Order 16 applies to workers employed on-site in the

drilling industry, See 8 Cal, Code Regs, § 11160.

failure to provide lawful meal periods, id, § 512; and

failure to pay overtime and doubletime premium

wages, id, § 510, All five claims are informed, in part,

by the definition of “hours worked” in California Wage

Order 16; “the time during which an employee is

subject to the control of an employer, [including] all

the time the employee is suffered or permitted to

work, whether or not required to do so.” 8 Cal, Code

Regs. § 11160,2¢)).”

B. Procedural History

1. Respondent Brian Newton was employed by pe-

titioner on two OCS drilling platforms off California's

coast from approximately January 2013 to January

2015. JA17.® Respondent was a resident of Ventura

County, California, and traveled with other employees

by boat to the platforms after attending mandatory

safety meetings onshore, D.Ct, ECF #18-2, 44 11-12.

Respondent worked in 14-day shifts, which consisted

of 12 hours on duty and 12 hours of “controlled

standby” each day. App. 3.” During the “controlled

standby” periods, petitioner frequently required

respondent to address problems as they arose, includ-

ing combustible gas alarms or SO2 alarms, platform

’ Respondent also alleges claims under California's Unfair

Competition Law, which aims to curb unlawful business prac:

tices, including “failure to pay wages,” Cortez v, Purolator Air

Filtration Prods, Co,, 999 P.2d 706, 716 (Cal, 2000), and seeks

relief under the Private Attorneya General Act of 2004, which

allows recovery of civil penalties for violations of California's

Labor Code, see Cal, Lab, Code § 2699(a).

§ Drilling operations have ceased on the two platforme that

employed respondent, Petitioner now uses only a three-person

skeleton crew on these riga, D.Ct, ECF #24, at 2-3,

” Work schedules like respondent's are used to keep onshore

and offshore operations online at all times.

shutdowns, and mechanical failures, D.Ct, ECF #18-2,

15, Petitioner separately paid respondent for time

spent transiting to and from the rig and for time spent

actually responding to incidents that arose during

controlled standby periods, App. 3.

Respondent alleges he was paid for only 12 hours of

work a day and was not compensated for all the hours

he was required to remain on the platform each

day on “controlled standby.” JA17, Respondent also

alleges he was not provided off-duty meal periods,

JA26-27.

2. In February 2015, respondent filed a putative

class action against petitioner in California state court

alleging violations of California's wage-and-hour laws,

Petitioner removed the case and moved for judgment

on the pleadings, contending that California law was

not “applicable” under OCSLA, The district court

adopted the Fifth Circuit's reasoning from Continen-

tal Oil Co, v, London Steam-Ship Owners’ Mutual

Insurance Ass'n, Lid., 417 F.2d 1030, 1036 (6th Cir,

1969), and held that OCSLA incorporates state law on

the OCS only to the extent necessary “to fill a signifi-

cant void or gap” in federal law. App. 51. The court

determined that the FLSA’s existence meant that

California's wage-and-hour laws did not apply to the

OCS and granted petitioner's motion, App, 50, 51-52.

8. The Ninth Circuit vacated the district

court’s order, The court interpreted “applicable” as

“pertain[ing] to the subject matter at hand.” App. 21.

The court rejected the Fifth Circuit's approach,

because the ordinary meaning of “applicable” “does

not lend itself to the notion that state laws have to fill

a gap in federal law to qualify as surrogate federal

law.” Jd, The court concluded that nothing in the

legislative history or this Court's precedent mandated

“judicial substitution of ‘necessary’ for the actual

statutory term, ‘applicable.’” App. 22-23. California’s

laws thus were applicable in the ordinary sense.

The court then concluded that California’s laws

were “not inconsistent with” existing federal law,

holding that laws are “inconsistent if they are

mutually incompatible, incongruous, or inharmonious.”

App. 28 (brackets omitted). In reviewing federal-

enclave law and other federal statutes, the court

found that “inconsistency between state and federal

law is assessed by looking at Congress’s objective in

enacting the federal statutes at issue.” App. 35. Not-

ing as “critical” that the FLSA “establishes a national

floor under which wage protections cannot drop,” and

that the savings clause “expressly provides that states

are free to adopt more protective standards,” the court

held that the FLSA explicitly permits the application

of California’s more protective wage-and-hours laws.

App. 36 (brackets omitted). The court found this

interpretation consistent with OCSLA’s purpose,

which “rejected national uniformity” in favor of “appli-

cation of state law with which [OCS workers commut-

ing from the adjacent shore] and their attorneys would

be familiar.” App. 37-38.'°

'0 The Ninth Circuit amended its opinion to reserve for the

district court's consideration whether the holding should be ap-

plied retrospectively. App. 43.

SUMMARY OF ARGUMENT

I. OCSLA provides that “applicable and not incon-

sistent” state law is adopted on the OCS as federalized

state law. 43 U.S.C. § 1333(a)(2)(A).

A. Under the ordinary meaning of “applicable,”

state legal standards are incorporated into federal law

on the OCS when they are relevant, suitable, or fit.

State standards capable of being applied on the OCS

— such as wage-and-hour laws — are applicable; but

state rules having no relevance on the OCS — such as

motor-vehicle lemon laws — are not. The rest of the

statutory scheme reinforces that interpretation. It

excludes the application of state-taxation laws — an

unnecessary provision if Congress had intended

“applicable” to be more limited than its ordinary

meaning. OCSLA also affirms the coastal States’

rights and responsibilities over the onshore and

offshore environment, a condition satisfied only by

a cohesive shore-to-shelf legal regime. 43 U.S.C.

§ 1332(5). The word “applicable” appears throughout

OCSLA, and, by using its ordinary meaning, “applica-

ble” carries the same meaning throughout the statute.

Finally, in numerous cases discussing OCSLA, this

Court has used “applicable” in its ordinary meaning,

and the Court should continue to do so here.

B. Under the plain meaning of “not inconsistent,”

state legal standards that are not “incompatible” with

or “contradictory” to federal law are adopted as feder-

alized state law on the OCS. Whether a state legal

standard is not inconsistent with federal laws requires

considering the content of potentially applicable

regimes and determining whether the two are

incompatible.

I1.A. California’s wage-and-hour laws are applica-

ble to respondent’s claims regarding his OCS employ-

ment, because respondent was employed on drilling

rigs off California’s coast and these laws are relevant

and capable of being applied on the OCS.

B. California's wage-and-hour laws also are not

inconsistent with federal law. The FLSA sets a

federal floor, beneath which wage-and-hour protec-

tions cannot drop. 29 U.S.C. §§ 206-207. The FLSA’s

savings clause provides that, when federal, state, or

local laws set higher minimum-wage or maximum-

workweek requirements, those higher standards shall

be enforced. Jd. § 218(a). California's more protective

standards — which exceed the FLSA’s floor and are

consistent with its remedial purpose of ensuring

worker well-being — logically cannot be inconsistent

with the FLSA. When faced with two different wage-

and-hour standards, the Court has interpreted the

FLSA to require application of the higher standard.

See Powell, 339 U.S. at 519-20. This case is no

different.

Ill. Contrary to petitioner's argument, OCSLA’s

plain language contains no requirement that there

first be a gap or void in federal law before state legal

standards become “applicable.” Petitioner instead

asks the Court to believe that Congress did not intend

the ordinary meaning of “applicable” but instead

wanted courts to look outside the statute’s plain text

to derive its meaning.

A. Regardless of how many times petitioner

repeats its mantra, the fact that “all law on the OCS

is federal law” does not require altering the text to

limit the role of state law to a gap-filling role. Rather

than gathering clues from petitioner’s articulation

of Congress’s preferences, purported background

principles of law, and other subsections of OCSLA

to divine congressional intent, the Court can apply

established rules of statutory interpretation and give

the text its ordinary meaning. Congress knows how

to limit the application of state legal standards to only

fill gaps in federal law and has legislated accordingly

when that was its intent. Beyond OCSLA, Congress

and federal agencies frequently use “applicable” to

outline what laws are to be used. Interpreting “appli-

cable” as “necessary” would unnecessarily complicate

provisions throughout the U.S. Code and the Code of

Federal Regulations (“C.F.R.”). For example, DOL’s

regulations provide that “applicable” federal, state, or

local wage-and-hour laws are not displaced by the

FLSA. Petitioner's interpretation of “applicable” as

necessary to fill a gap would mean that no federal,

state, and local wage-and-hour laws would ever apply,

because the FLSA is a comprehensive scheme.

Petitioner and the government rely on federal-

enclave law to provide context to OCSLA’s text.

However, what law applies on a federal enclave varies

enclave by enclave. Each enclave raises its own

question of congressional intent from the statute that

creates it. Accordingly, OCSLA’s text should control

over generic federal-enclave principles. Contrary

to petitioner's argument, state law does far more

than just “fill gaps” on federal enclaves. This Court

has recognized that state laws existing at the time

of cession that are not inconsistent with federal

law generally became federalized state law; however,

state laws enacted after the cession do not. OCSLA

tracks federal-enclave principles by making the

not-inconsistent laws of adjacent States applicable to

the OCS as federalized state law. And, consistent

with the rule that Congress can alter background

presumptions on federal enclaves, in OCSLA amend-

ments Congress provided that state laws enacted after

its passage also would apply on the OCS.

Petitioner unnecessarily blurs the distinctions

between “jurisdiction,” “administration and enforce-

ment,” and “applicable” law. There is no irregularity

with a system that incorporates not-inconsistent state

legal standards as federal law, to be administered and

enforced by the federal government in an area of fed-

eral jurisdiction. Significantly, the Interior Secretary

can issue rules and regulations governing the OCS

that displace inconsistent state legal standards, but

has not done so here.

Petitioner's reliance on snippets of legislative

history to create ambiguity in the plain statutory text

should be disregarded. The Court has recognized that

Congress’s desire to protect the “special relationship”

between workers on the shelf and their life on the

shore led to the application of “law with which these

men and their attorneys would be familiar.” Huson,

404 U.S. at 103. Accordingly, “Congress specifically

rejected national uniformity and specifically provided

for the application of state remedies.” Jd. at 104.

B. The fact that the FLSA sets only minimum

standards and has a savings clause preserving differ-

ing legal standards should leave no doubt that state

laws setting more generous standards are consistent

with federal law.

Petitioner places much weight on California’s laws

being “different” from federal laws. But the plain

meaning of “not inconsistent” does not mean “not

different.” The FLSA does not set a ceiling, so Califor-

nia’s higher minimum wage cannot be inconsistent

with federal standards. As this Court explained in

Powell, two different minimum-wage regimes are not

“mutually exclusive,” 339 U.S. at 519-20, as Congress

provided through the FLSA’s savings clause that the

more generous law should apply.

The fact that OCSLA applies state legal standards

as federal law on the OCS is no reason to depart

from the ordinary meaning of “not inconsistent.” The

government encounters different federal minimum

wages onshore and has no issues applying both.

IV.A. Applying the same legal standards onshore

and offshore ensures the closely interconnected

offshore-drilling and onshore-processing facilities can

synchronize operations. Consistent wage-and-hour

laws allow workers on both ends of the pipeline to

maintain the same schedules, which enhances opera-

tional safety. The system also makes bookkeeping

easier, as employers do not need to separately track

the hours of employees who move between different

legal regimes. Employees also benefit from consistent

laws, regardless of how their working hours are split

between the shore and the shelf.

B. Local uniformity also has been established in

national parks and forests, where “applicable” state

and federal laws are enforced by federal officials.

Recreational hunters and fishers benefit from the

same legal standards on state and federal land.

Reinterpreting “applicable” to mean “necessary”

would create confusion over what laws actually

“apply” to any given activity in a national park. The

simplicity petitioner claims to seek for oil and gas

operators would complicate the legal regime on federal

enclaves.

C. Petitioner’s fear of applying different laws off

California’s coastline versus Louisiana’s coastline

does not mandate departing from OCSLA’s plain text.

The Court already has noted that Congress rejected

national uniformity as a goal of OCSLA. See Huson,

404 U.S. at 104.

Contrary to petitioner’s contention of abnormality,

federal officials often enforce state laws and regula-

tions. In national parks, federal officials enforce state

criminal, civil, and regulatory laws. On the OCS, the

Interior Secretary has statutory authority to relieve

burdens on federal enforcement and can issue regula-

tions to displace state legal standards or delegate

enforcement authority to the States.

Many operators off California’s shores already ap-

ply California wage-and-hour laws in their collective-

bargaining agreements and employment agreements.

Petitioner's desire to avoid state standards does not

justify an unsound statutory interpretation.

ARGUMENT

I. STATE LAW APPLIES ON THE OCS IF IT IS

“APPLICABLE” AND “NOT INCONSISTENT”

WITH FEDERAL LAW

A. Under The Ordinary Meaning Of “Applica-

ble,” State Legal Standards Apply On The

OCS If They Are Relevant, Suitable, Or Fit

1. Statutory interpretation “begins with the plain

language of the statute.” Jimenez v. Quarterman, 555

U.S. 113, 118 (2009). If that “language provides a

clear answer, [interpretation] ends there as well.”

Harris Tr. & Sav. Bank v. Salomon Smith Barney Inc.,

530 U.S. 238, 254 (2000).

“Applicable” is not defined in OCSLA, so it should

be given its ordinary meaning. See Artis v. District of

Columbia, 138 S. Ct. 594, 603 (2018). The ordinary

definition of “applicable” is “[c]apable of being applied;

fit to be applied; having relevance.” Webster's

Universal Dictionary 131 (1953) (“Webster's”); see also

Black’s Law Dictionary 127 (4th ed. 1951) (“Black’s”)

(“[f]it, suitable, pertinent, or appropriate”). Given the

ordinary, natural meaning of “applicable,” state civil

and criminal laws are adopted as federal law on the

OCS when they are relevant, suitable, or fit — in other

words, when they pertain to the subject matter at

hand. “Applicable” necessarily includes on-point state

law that supplements and overlaps with federal

law. In ordinary parlance, two different laws are both

“applicable” if they address the same topic.

2. Applicable state law includes non-tax state

laws “now in effect or hereafter adopted, amended, or

repealed” that are capable of being applied, relevant,

suitable, or fit to the subject matter at hand, 43 U.S.C,

§ 1333(a)(2)(A). Not all adjacent-state laws, however,

are “|cjapable of being applied” or “havie] relevance”

on the OCS, E.g., 8 Cal, Code Regs. § 11140 (setting

wage-and-hour laws for agricultural occupations);

Cal. Fish & Game Code § 3961 (hunting dogs may be

“lawfully seized” for “inflicting injury or immediately

threatening to inflict injury to any deer, elk, or prong-

horned antelope”); La, Stat, §51:1941 et seq. (lemon

laws for motor vehicles); Tex, Gov't Code § $101,010

(“caus|ing}] pecans to fall from a pecan tree by any

means, including by thrashing,” on government land,

criminalized without written consent).

38. Reading “applicable” as pertaining to the sub-

ject at issue is consistent with OCSLA’s statutory

scheme and purpose.

Section 1333(a)(2)(A), for example, provides that

“State taxation laws shall not apply to the [OCS]}.”

Under the ordinary meaning of “applicable,” state tax

laws would apply to the OCS because they are perti-

nent to the subject matter. However, if Congress had

intended a silent requirement of a gap in federal law

before state law is “applicable,” it would have been

superfluous for Congress also to specify that state-

taxation laws do not apply on the OCS. There would

have been no void or gap for state law to fill because

federal-taxation laws existed for decades prior to

OCSLA’s enactment,

Other OCSLA provisions confirm the plain meaning

of “applicable.” The “National Policy for the Outer

Continental Shelf,” incorporated into OCSLA in 1978,

recognizes the connection between adjacent States

and offshore activities, The policy affirmed “the rights

and responsibilities of all States ... to preserve and

protect their... human... environments through . . .

regulation.” 43 U.S.C, § 1332(5). Congress defined

“human environment” to include “the physical, social,

and economic components, conditions, and factors

which interactively determine the ... employment. ..

of those affected, directly or indirectly, by activities

occurring on the [OCS}.” Jd. § 13310) (emphasis

added), That purpose is best achieved by interpreting

“applicable” in accordance with its plain meaning, so

that state laws protecting the “marine, human, and

coastal environments” apply to the OCS just as they

do in the uplands.

Congress used “applicable” in numerous other

OCSLA provisions, The only way to give “applicable”

a consistent and coherent meaning throughout the

text is to use its ordinary meaning. See Henson v.

Santander Consumer USA Inc,, 187 §, Ct. 1718, 1723

(2017) (‘[I}dentical words used in different parts of the

same statute carry the same meaning.”). For example,

OCSLA provides that all “applicable laws” on the OCS

are “administered and enforced by the appropriate

officers and courts of the United States.” 43 U.S.C.

§ 1333(a)(2)(A) (emphasis added). The Interior Secre-

tary is authorized to enter into cooperative agree-

ments with States to form “joint surveillance and

monitoring arrangements to carry out applicable Fed-

eral and State laws.” /d. § 1345(e) (emphasis added).

States must use royalties received under the Act

“in accordance with all applicable Federal and State

laws.” Jd. § 1356a(d)(1) (emphasis added). In each

instance, “applicable” refers to laws that are relevant,

suitable, or fit to the OCS, Interpreting “applicable”

as requiring only gap filling in § 1333(a)(2)(A) would

violate every normal canon of statutory construction,

4. The Court has not yet interpreted the meaning

of “applicable” state law in OCSLA’s governing-law

provision, However, the Court repeatedly has decided

cases where the ordinary meaning of “applicable”

provides the necessary context.

a. In Rodrigue, the survivors of two platform

workers brought wrongful-death claims under

both the Death on the High Seas Act ((DOHSA”) and

Louisiana law, 395 U.S. at 353-54. The Court consid-

ered whether DOHSA, a maritime law, applied of

its own force or whether state law, made applicable

through OCSLA, supplied the appropriate remedy.'!

The Court held OCSLA’s text and legislative history

made clear that admiralty law does not apply on the

OCS, and the federal action under DOHSA was “no

more applilcable] to these accidents actually occurring

on [fixed drilling platforms] than it would [be] to

accidents occurring in an upland federal enclave.” /d.

at 366. Thus, Louisiana law applied as federal law,

federally enforced.

In reaching that conclusion, the Court did not need

to address the meaning of “applicable” when both

state and federal law provided a remedy, because

federal law was deemed unsuited to the issue.

'! The question before the Court was not whether federal law

as defined in § 1333(a)(1) applied on the OCS and whether state

law also was applicable pursuant to § 1333(a)(2)(A). Rather, the

question was whether DOHSA, a federal statute that left no room

for application of any other federal or state law, was the only law

that applied. See 395 U.S. at 359.

The only law left to apply after excluding DOHSA

was Louisiana law. However, the Court considered

OCSLA’s governing-law provision more generally and

declared that OCSLA “makes it clear that federal law,

supplemented by state law of the adjacent State, is to

be applied to these artificial islands as though they

were federal enclaves in an upland State.” /d. at 355.

In other words, the law on the OCS “was to be federal

law of the United States, applying state law only as

federal law and then only when not inconsistent with

applicable federal law.” Jd. at 355-56. A “theme”

running through the OCSLA hearings “was the close

relationship between the workers on the island and

the adjoining States.” /d. at 363.'° This theme under-

scores Congress's intent for “applicable” to carry its

ordinary meaning, so that the familiar legal standards

of the adjacent State are adopted on the OCS.

b. Two years later, the Court again considered

OCSLA’s governing-law provision in a manner that

reinforced the plain meaning of “applicable.” In

Huson, the Court addressed whether a personal-injury

claim was time-barred under Louisiana law, as

incorporated into federal law through OCSLA, or

whether the federal admiralty doctrine of laches

applied. 404 U.S. at 98-99. The Court held that the

'2 Petitioner argues (at 26) that the Court “repeatedly empha-

sized that state law applied only to fill federal voids.” What the

Court actually stated was that “state law could be used to fill

federal voids,” not that state law applies only when there is such

a void, Rodrigue, 395 U.S. at 358 (emphasis added). Regardless,

such asides were dicta, because the Court did not consider

how state law would apply if there were also applicable federal

law. As the government recognizes (at 18 n.5), Rodrigue can be

read to support respondent's position. Any ambiguous dicta in

Rodrigue should not distract from OCSLA’s text, which confirms

that relevant state legal standards apply on the OCS when not

inconsistent with federal law. See 43 U.S.C. § 1333(a)(2)(A).

laches doctrine did not apply because Congress did not

intend admiralty law to apply as federal common law

on the OCS, /d. at 103-04, Rather, the state statute

was “‘applicable’ in federal court under [OCSLA] just

as it would be applicable in a Louisiana court.” /d.,

at 103. The Court did not define “applicable” but

gave the word its ordinary meaning, concluding that

state law “applicable” in Louisiana courts also is

“applicable” on the OCS.

The Court was not confronted with potentially

applicable federal and state laws. Nonetheless, the

Court explained, “[t]o the extent that a comprehensive

body of federal law is applicable under § 1333(a)(1),

state law ‘inconsistent’ with that law would be

inapplicable under § 1333(a)(2).” /d. at 100-01. The

Court also observed that “[a] primary purpose under-

lying the absorption of state law as federal law in

[OCSLA] was to aid injured employees by affording

them comprehensive and familiar remedies.” /d.

at 107-08. Giving “applicable” its plain meaning

reinforces that goal.

ec. In Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

473 (1981), the Court considered seemingly conflicting

state and federal common-law jury instructions

regarding personal-injury damages: “Our first task is

to determine the source of law that will govern... . In

any particular case, the adjacent State’s law applies

to those areas ‘which would be within the area of

the State if its boundaries were extended seaward

to the outer margin of the [OCS].’” /d. at 485-86

(quoting 43 U.S.C. § 1333(a)(2)(A)). Again, the Court

used “applicable” to refer to relevant state law, noting

that Congress “incorporated ... the applicable law of

Louisiana, but only to the extent it is not inconsistent

with federal law.... Congress borrowed a remedy

provided by state law and thereby specifically rejected

national uniformity as a paramount goal.” /d, at 487

(brackets omitted); see also id, at 489 (Blackmun, J.,

concurring in part and concurring in the result)

(“(T]he purpose of incorporating state law was to

permit actions arising on these federal lands to be

determined by rules essentially the same as those

applicable to actions arising on the bordering state

lands. Congress apparently intended to provide a

kind of local uniformity of result ....”). Notably, the

Court did not consider Louisiana’s jury instruction not

“applicable” merely because a federal jury instruction

addressed personal-injury damages.

B. Under The Ordinary Meaning Of “Not

Inconsistent,” State Law That Is Not

Incompatible With Or Not Contradictory

To Federal Law Applies On The OCS

The plain meaning of “inconsistent” is “incompati-

ble” or “contradictory.” Webster's at 1259; see also

Black's at 907 (“[mJutually repugnant or contradic-

tory”). Pursuant to the ordinary, natural meaning of

the phrase “not inconsistent,” state laws that are not

incompatible with or contradictory to federal laws are

adopted as federal law on the OCS. Thus, even when

the laws embrace overlapping subjects, OCSLA

adopts state rules as federal law, so long as those rules

are not incompatible with federal law.

In Gulf Offshore, the Court laid out a framework for

determining if a state law is inconsistent with federal

law. The Court explained that “[t]o apply the statu-

tory directive a court must consider the content of both

potentially applicable federal and state law.” 453 U.S.

at 486. The Court then remanded to the state court to

determine if the state and federal jury instructions

were inconsistent. /d. at 488.

That conceptual approach was not new. In Franklin

v. Lynch, 233 U.S. 269 (1914), the Court considered

the application of state and federal laws regarding

land conveyances in Indian Territory, Congress

declared the laws of Arkansas, to the extent they

were “‘applicable and not inconsistent with any law of

Congress,’” were adopted as the laws of that territory.

Id. at 273 (quoting Act of Feb. 19, 1903, ch, 707, 32

Stat, 841, 841-42). At issue was a federal law prohib-

iting the sale by Native Americans of any lands issued

to them by a land patent and an Arkansas law that

would have allowed the conveyance in question, /d. at

270-71. The Court noted that the Arkansas law was

extended to the territory, but “[i]t has no effect here

because it is inconsistent with the act of [Congress].”

Id, at 273; see also Adkins v. Arnold, 235 U.S, 417, 421

(1914) (“Congress intended {Arkansas law] should

have the same force and meaning [in the territory]

that [it] had in Arkansas.”), As with the framework

in Gulf Oil, the Court considered the content of both

potentially applicable federal and state laws to deter-

mine if there was a conflict or incompatibility between

the two,

Il, CALIFORNIA’S WAGE-AND-HOUR LAWS

ARE RELEVANT AND NOT INCOMPATIBLE

WITH THE FLSA

A. California’s Wage-And-Hour Laws Are

“Applicable” Because They Are Relevant

To The Pertinent Subject Matter

California law applies to the drilling rigs on the

Santa Barbara Channel where respondent worked

because the drilling rigs “would be within the area

of [California] if its boundaries were extended

seaward.” 43 U.S.C. § 1333(a)(2)(A). California has

applied its state wage-and-hour laws offshore, and

thus California’s wage-and-hour laws are “[clapable

of being applied” on the OCS. Webster's at 131; see

Aubry, 918 F.2d at 1420 (holding California wage-and-

hour laws apply in the Santa Barbara Channel); Tide-

water Marine Western, Inc. v. Bradshaw, 927 P.2d 296,

297-302 (Cal. 1996) (holding California Labor Code

applies to federal waters).

B. California’s Wage-And-Hour Laws Are “Not

Inconsistent” With Federal Law Because

Both The FLSA And OCSLA Contemplate

Application Of More Protective State Labor

Laws

1. The FLSA imposes federal minimum-wage

and hour protections on employers. The minimum

wage must be “not less than” the federal minimum,

29 U.S.C. § 206(a)(1) (emphasis added), and the rate

of overtime pay must be “not less than one and one-

half times the regular rate” an employee receives,

id. § 207(a) (emphasis added). These standards are a

floor below which worker protections may not drop.

See Kasten v. Saint-Gobain Performance Plastics

Corp., 563 U.S. 1, 11 (2011) (FLSA “seeks to prohibit

‘labor conditions detrimental to the maintenance of

ja] minimum standard of living’”) (quoting 29 U.S.C.

§ 202(a)); Barrentine v. Arkansas-Best Freight Sys.,

Inc., 450 U.S. 728, 739 (1981) (FLSA “was designed

to give specific minimum protections to individual

workers”) (emphasis omitted). The purpose of setting

that floor was “not to establish absolute uniformity

in minimum wage and ©vertime standards nationwide

at levels established in the FLSA.” Aubry, 918 F.2d

at 1425. Instead, the FLSA contemplates employees

benefiting from more protective state wage-and-hour

laws, when they exist.

To avoid any doubt over which wage-and-hour laws

should apply in the face of parallel regimes, the

FLSA’s savings clause directs that the higher stan-

dard will apply. See 29 U.S.C. § 218(a) (“No provision

of this chapter ... shall excuse noncompliance with

any Federal or State law or municipal ordinance

establishing a minimum wage higher than the mini-

mum wage established under this chapter or a maxi-

mum workweek lower than the maximum workweek

established under this chapter . . . .”).

DOL regulations support the States’ ability to adopt

more protective standards, which the FLSA does not

“override or nullify.” For example, the regulations

governing minimum-wage and overtime compensa-

tion create room for state standards to apply. See 29

C.F.R. § 778.5 (“Various Federal, State, and local laws

require the payment of minimum ... wages different

from the minimum set forth in the [FLSA], and the

payment of overtime compensation computed on bases

different from those set forth in the [FLSA]. Where

such legislation is applicable and does not contravene

the requirements of the [FLSA], nothing in the act, the

regulations or the interpretations announced by the

Administrator should be taken to override or nullify

the provisions of these laws.”); see also id. § 531.26

(adopting same provision for how wages must be

calculated and paid).

In a recent opinion, DOL interpreted opposing state

and federal laws regarding payment of subminimum

wages to workers with disabilities. DOL instructed

that the more generous state-law provisions should

apply — even when employers receive federal waivers

excusing compliance with the federal standards —

because “[bloth the FLSA and the corresponding

regulations allow states to establish a higher mini-

mum wage rate than the rate set by the FLSA.”"™

'3 Administrator's Interpretation No. 2016-2, “Effect of state

laws prohibiting the payment of subminimum wages to workers

with disabilities on the enforcement of section 14(c) of the Fair

Labor Standards Act” (Nov. 17, 2016), https://www.dol.gov/whd/

opinion/AdminI ntrprtn/FLSA/2016/FL SAAI2016_2.pdf.

Accordingly, the FLSA contemplates, and allows for,

the coexistence of more protective minimum-wage and

maximum-work-week provisions.

2. California’s minimum-wage laws are not

“incompatible” with the FLSA. Because Congress

enacted the FLSA as a floor, and California’s wage-

and-hour laws are “not less than” that floor, California

laws are not inconsistent with the FLSA. Compare

29 U.S.C. § 206(a) (setting hourly federal minimum

wage of $7.25) with Cal. Lab. Code § 1182.12(b)(1)(C)

(setting hourly California minimum wage of $12). The

savings clause allows California to provide greater

minimum-wage protections and resolves any doubt

regarding how to reconcile the two different minimum

wages: the employer must pay the higher amount.

See 29 U.S.C. § 218(a). The same analysis applies to

respondent’s overtime claim, which relies on California

laws that permissibly set standards above the federal

floor. The FLSA savings clause directs petitioner to

pay wages according to the more generous provision.

3. The Court’s interpretation of the FLSA savings

clause in Powell establishes that California’s wage-

and-hour laws are not inconsistent with the FLSA.

There, the Court addressed the application of two

federal wage-and-hour laws. The Walsh-Healey Act

establishes a higher minimum wage for federal con-

tractors than the FLSA; however, the FLSA contains

more generous remedial provisions than the Walsh-

Healey Act. The Court held these two statutes are not

“mutually exclusive,” as compliance with one does not

make it impossible to comply with the other. 339 U.S.

at 519-20. In fact, the Court determined that the

FLSA savings clause indicates “congressional aware-

ness” of potentially overlapping labor standards. /d.

at 518. The Court deemed the two statutes “mutually

supplementary” and reconcilable by determining “the

respective wage requirements under each Act and

then applying the higher requirement as satisfying

both.” Jd. at 519-20.

4. Applying California's more protective state

legal standards also is thoroughly consistent with

the FLSA’s policy goals. The FLSA was enacted “to

protect all covered workers from substandard wages

and oppressive working hours.” Barrentine, 450 U.S.

at 739 (citing 29 U.S.C. § 202(a)). The FLSA was “‘not

designed to codify or perpetuate industry customs and

contracts,” but instead to achieve a minimum level of

compensation for all employee work. Jd. at 741 (quot-

ing Tennessee Coal, Iron & R.R. Co. v. Muscoda Local

No. 123, 321 U.S. 590, 602 (1944)) (brackets omitted).

California’s laws accord with the FLSA’s remedial

purpose of protecting workers with a federal floor from

which States can enact more favorable protections.

Applying California’s more protective state legal

standards also is consistent with OCSLA’s purposes.

In Valladolid, the Court recognized not only that off-

shore platforms are physically connected to onshore-

processing facilities via oil and gas pipelines, but

also that employees move between the platforms and

the shore during their employment. 565 U.S. at 215.

Congress, and this Court, emphasized that the special

relationship between offshore workers and the adja-

cent State where they live “favored application of state

law with which these men and their attorneys would

be familiar.” Huson, 404 U.S. at 103. In incorporating

state legal standards into federal law on the OCS,

Congress “specifically rejected national uniformity

as a paramount goal.” Gulf Offshore, 453 U.S. at 487.

Congress also emphasized the rights and responsibil-

ities of all States “to preserve and protect their ...

human... environments,” 43 U.S.C. § 1332(5), which

it defined to include “the state, condition, and quality

of ... employment” on the OCS, id. § 1331(i). Those

rights and responsibilities include wage-and-hour

laws, and California’s laws fulfill that objective with-

out creating inconsistencies with federal law.

Ill. PETITIONER’S ARGUMENTS LACK MERIT

A. Accepted Principles Of Statutory Interpre-

tation Preclude Petitioner’s Reading Of

“Applicable”

Lacking a definition to support its interpretation

of “applicable,” petitioner instead suggests that

Congress hid the true meaning of “applicable” in the

legislative history and surrounding portions of the

statute, rather than just relying on the word’s plain

meaning. Petitioner concedes (at 16, 35) the Ninth

Circuit's definition of “applicable” “is certainly one of

the possible meanings of that word,” but nonetheless

urges this Court to abandon established principles of

statutory interpretation in favor of first considering

“Congress’ primary judgment” in enacting OCSLA

and then reading OCSLA’s text “in light of” that

judgment. Petitioner's arguments lack merit.

1. The statutory text lends no support to

petitioner’s contention that “applicable”

should be interpreted to require a gap in

federal law before state law applies

Dodging the plain meaning of “applicable,” petitioner

creates a two-part mantra for how it wishes OCSLA’s

governing provision to work. Petitioner hopes that the

Court will be persuaded to combine an undisputed

proposition with one that is textually insupportable:

“First, all law on the OCS is federal law. ... Second,

the role of state law is limited to a gap-filling role.”

Pet. Br. 22. The first point is undisputed — and beside

the point. Section 1333(a)(1) extends “|t]he Constitu-

tion and laws ... of the United States” to the OCS,

and § 1333(a)(2)(A) declares “applicable and not

inconsistent” state law “to be the law of the United

States” on the OCS. The fact that the law is “federal,”

however, says nothing about whether the content of

that law derives from state standards.

Petitioner's trick move lies in the second step, be-

cause it is not supported by the statute’s text. Rather,

petitioner bases the assertion on a combination of

three factors that do not address when state legal

standards are “applicable” to the OCS: (1) Congress’s

preference for federal law, which petitioner decrees

is “[t}he most basic judgment” Congress made in

enacting OCSLA; (2) background principles relating

to federal-enclave law; and (3) the “reinforcing provi-

sions” of other subsections of § 1333, which provide

for federal administration of laws on the OCS and

disclaim “any interest in or jurisdiction on behalf

of any State” over the OCS. Pet. Br. 19-23. These

considerations, however, do not actually support

petitioner’s preferred outcome that “state law is only

‘applicable’ to the OCS when there is a gap that needs

to be filled.” Jd. at 23. As the Ninth Circuit correctly

held in rejecting petitioner's arguments, nothing in

“the ordinary, contemporary, common meaning of

‘applicable’ ... lend[s] itself to the notion that state

laws have to fill a gap in federal law to qualify as

surrogate federal law.” App. 21 (citation omitted).

a. Petitioner's interpretation would require a

judicial rewriting of the statute to say that state laws

apply “to the extent that they are applicable because

there is a significant void or gap in federal law and

not inconsistent ....” Had Congress intended to use

“applicable” to imply gap filling, it would have said so

using plain language.

Indeed, when Congress intends for state laws

to serve merely a gap-filling role, it says so. For

example, the Assimilated Crimes Act (“ACA”) applies

state criminal law to federal enclaves only when an

act or omission is not already made punishable “by

any enactment of Congress.” 18 U.S.C. § 13(a); see

also Lewis v. United States, 523 U.S. 155, 160 (1998)

(“The ACA’s basic purpose is one of borrowing state

law to fill gaps in the federal criminal law.”). And the

Civil Rights Attorney's Fees Awards Act of 1976

authorizes courts to borrow state common law where

“the laws of the United States ... are not adapted

to the object [of the applicable federal statutes], or

are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law.”

42 U.S.C. § 1988(a).'4

b. Petitioner’s outcome-determinative approach to

the phrase “applicable and not inconsistent” creates a

potentially destabilizing effect on other statutes and

regulations that use the same language. For example,

under DOL regulations governing the FLSA, see supra

p. 36, when a federal, state, or local law providing

different minimum wages or methods for computing

overtime compensation is “applicable and does not

contravene the requirements of the [FLSA],” the FLSA

does not “override or nullify the provisions of th[o]se

laws.” 29 C.F.R. § 778.5 (emphasis added). Under the

ordinary meaning of “applicable” (relevant, suitable,

fit), this regulation “saves” more protective state

14 The government argues (at 13) that Congress's “practice of

making state criminal law ‘applicable on federal enclaves’ only to

‘fill gaps’ in federal law{] strongly indicates” that OCSLA also

makes state law applicable on the OCS only to fill gaps. What

the ACA actually evinces is that, when Congress wants state law

only to fill gaps, it legislates accordingly.

wage-and-hour laws that pertain to the subject matter

at hand. Under petitioner's interpretation of “applica-

ble” (“necessary to fill a significant void or gap,” Pet.

Br. 26), however, none of the more protective federal,

state, and local laws would ever apply, because, as

petitioner asserts, the FLSA leaves no such gap.

c. The Court's holding in Ransom v. FIA Card

Services, N.A., 562 U.S. 61 (2011), does not support

petitioner's interpretation. In Ransom, the Court

interpreted “applicable monthly expense amounts” —

undefined in the Bankruptcy Code — by looking “to the

ordinary meaning” of “applicable.” /d. at 69. Relying

on the dictionary definition, the Court concluded a

monthly expense amount is “applicable” when it is

“appropriate, relevant, suitable, or fit.” Jd. The Court

determined that “applicable” established a “filter” so

that a debtor could take deductions only appropriate

to her individual financial circumstances. /d. at

69-70. Contrary to petitioner's contention, the Court

did not use “context” or “purpose” to depart from the

ordinary meaning of the statute, Pet. Br. 36, but

merely to “support” and “strengthen|[]” the conclusion

reached from the plain meaning, 562 U.S. at 70-71.

The Court's interpretation of “applicable” in

Ransom and the Ninth Circuit’s interpretation of

“applicable” here are on all fours. The ordinary mean-

ing of “applicable,” as used in OCSLA, conveys that

a state law is applicable when “appropriate, relevant,

suitable, or fit.” See id. at 69. In other words, a state

law is applicable on the OCS if the drilling rig is

within the area of the State if its boundaries were

extended seaward and the law at issue is relevant or

suitable to the legal issue at hand. “Applicable,”

therefore, also serves as a “filter” in OCSLA, weeding

out both the laws of non-adjacent States and the legal

standards of the adjacent State that are unsuitable to

circumstances on the OCS. See, e.g., Cal. Fish &

Game Code § 3961 (hunting dogs may be “lawfully

seized” for “inflicting injury or immediately threaten-

ing to inflict injury to any deer, elk, or prong-horned

antelope”).

d. Finally, petitioner's interpretation of “applicable”

as “necessary” (at 26) renders superfluous the term

“not inconsistent.” Under petitioner’s interpretation,

state law “applies” on the OCS only when “necessary

to fill a significant void or gap in federal law.”

Id. (brackets omitted). But, on that reading, if state

law is applicable, there is no federal law addressing

a particular topic and therefore no federal law for

state law to be “inconsistent with.” See, e.g., Huson,

404 U.S. at 101 (“[T]here exists a substantial ‘gap’

in federal law. Thus, state law remedies are not

‘inconsistent’ with applicable federal law.”). Petitioner

(at 41 n.8) and the government (at 25) recognize this

flaw in their argument, but neither can articulate

a scenario where a state law can be “applicable,”

because there is a gap in federal law, and yet

“inconsistent with” federal law. To accept petitioner's

interpretation of “applicable” as “necessary” would

make “not inconsistent” superfluous and, therefore,

violate the “cardinal principle of statutory construc-

tion that [courts] must give effect, if possible, to every

clause and word of a statute.” Williams v. Taylor, 529

U.S. 362, 404 (2000).

2. Petitioner misunderstands how law

applies on federal enclaves

a. Petitioner and the government argue relevant

context can be gleaned from OCSLA’s provision

extending federal law to the OCS “to the same extent

as if the [OCS] were an area of exclusive Federal

jurisdiction located within a State.” Pet. Br. 20, 35;

U.S. Br. 12-14. Federal-enclave law parallels some

of OCSLA’s provisions. But both briefs incorrectly

claim that state law applies on federal enclaves “only

if there is a gap in federal law,” and therefore conclude

that state law also must apply on the OCS only to fill

gaps in federal law. Pet. Br. 20; U.S. Br. 13-14. That

argument raises four problems.

First, it is impossible to generalize one rule for how

laws apply on federal enclaves. What law applies to

a federal enclave stems from the agreement reached

between a State and the federal government when a

particular enclave is ceded. See Sadrakula, 309 U.S.

at 99-100 (“It is now settled that the jurisdiction

acquired from a state by the United States ... may

be qualified in accordance with agreements reached

by the respective governments.”). Generalizations

about enclaves are even less useful on the OCS, as

Congress's text is what controls. There is no govern-

ing agreement between the adjacent States and the

federal government. Instead, OCSLA dictates what

state legal standards apply on the OCS. Even assum-

ing Congress drew on federal-enclave principles in

enacting OCSLA, the absence of a uniform enclave

doctrine for determining when state law applies

means that OCSLA’s clear statutory text remains

the starting point for interpreting its governing-law

provision.

Second, the principles of law the Court has

recognized as consistent across enclaves refute the

argument that state law only “fills gaps” on federal

enclaves. Rather, when a new federal enclave is

established, state laws “existing at the time of the

surrender of sovereignty,” id., and “not inconsistent

with federal policy,” United States v. State Tax

Comm'n of Mississippi, 412 U.S. 363, 369 (1973),

continue in force until altered by Congress, id.; see

also Sadrakula, 309 U.S. at 97-98 (holding existing

New York labor law to be “applicable” after federal

government acquired exclusive federal jurisdiction).

When the federal government has exclusive jurisdic-

tion over a federal enclave, state law existing at the

time of cessation becomes federalized state law. See

Sadrakula, 309 U.S. at 97-98 (explaining that New

York labor law “remains effective as a statute of the

United States”). Notably, on actual federal enclaves,

“only state law existing at the time of the acquisition

remains enforceable, not subsequent laws.” Paul, 371

U.S. at 268. In other words, “future statutes of the

state are not a part of the body of laws in the ceded

area. Congressional action is necessary to keep it

current.” Sadrakula, 309 U.S. at 100.

In OCSLA, Congress provided that the laws of

the adjacent States in existence at the time and not

inconsistent with federal law would apply on the OCS

as federal law — just as state law would apply in a

newly created federal enclave.'® Petitioner’s conten-

tion (at 35) that “applicable,” as understood in federal-

enclave law, referred to only “those laws necessary

to supplement federal law’ disregards 130 years of

federal-enclave law, in which the Court repeatedly

explained that state laws in effect at the time of trans-

fer are “applicable” as federal law so long as they do

not conflict with federal policy. See Paul, 371 U.S. at

268; see also State Tax Comm'n of Mississippi, 412

U.S. at 369 (explaining “local law not inconsistent

with federal policy remained in force until altered by

'5 Consistent with the prevailing understanding of delegation

principles in 1953, Congress applied only state law “as of the

effective date of th{e] Act” as federalized state law.

national legislation”); Sadrakula, 309 U.S. at 100

(same).

Third, Congress can alter any of these background

presumptions — including the principle that subse-

quently enacted state laws are inapplicable on federal

enclaves — through “specific congressional action.”

Paul, 371 U.S. at 263. In 1975, Congress did precisely

that as to the OCS, extending to it state law “now

in effect or hereafter adopted, amended, or repealed.”

43 U.S.C. § 1333(a)(2)(A); see Sadrakula, 309 U.S. at

100 (noting congressional action is needed to keep law

on an enclave “current”).

Finally, petitioner cites only one case for the propo-

sition that pre-existing state law touching “upon

the same matters” as federal law is “superseded” by

federal law on the creation of an enclave, and that case

was describing which foreign laws remained in force

after the United States acquired territory from a

foreign nation. Pet. Br. 34 (citing Chicago, RJ. & P.

Ry. Co. v. McGlinn, 114 U.S. 542, 546-47 (1885)). The

Court recognized that “there is a wide difference

between a cession of political jurisdiction from one

nation to another, and a cession to the United States

by a state of legislative power over a particular tract.”

McGlinn, 114 U.S. at 547. It then explained how

Kansas law “remained in force after the cession, it

being in no respect inconsistent with any law of

the United States, and never having been changed or

abrogated.” Jd. The Court concluded by articulating

the same mechanics for the application of state law in

a federal enclave as expressed in State Tax Commis-

sion of Mississ‘ppi, Sadrakula, and Paul, with no

mention of gap filling. Jd.

b. Applying relevant state laws that are not

incompatible with federal law on the OCS is consis-

tent with how state laws apply on federal enclaves. In

Korndobler v. DNC Parks & Resorts at Sequoia, No.

1:15-cv-00459-LJO-SKO, 2015 WL 3797625, at *5-6

(E.D. Cal. June 18, 2015), a court applied California’s

minimum-wage laws to a national park after finding

that the laws pre-dated the enclave’s creation.

However, unlike OCSLA, which provides for ongoing

adoption of “applicable and not inconsistent” state

laws, Congress has not provided for the ongoing

adoption of state labor laws enacted after the transfer

of sovereignty on federal enclaves. Therefore, States’

later-enacted worker-protection statutes generally

do not apply on federal enclaves unless Congress

specifically provided otherwise.

3. Petitioner ignores important distinc-

tions Congress established between

“jurisdiction,” “administration and

enforcement,” and “applicable” law

OCSLA undisputedly extends federal jurisdiction to

the OCS and creates a system of federal enforcement.

See 43 U.S.C. §§ 1333(a)(1), (a)(2)(A), (a)(3).'6 How-

ever, those provisions are consistent with Congress's

choice to apply both federal and state law on the OCS.

The historical context leading to OCSLA’s passage

and the subsequent amendments demonstrate that

Congress recognized and maintained an important

role for adjacent States in offshore-drilling operations

off their coasts. Incorporating state legal standards

as surrogate federal law on the OCS does not result

in “supremacy of state law administered by state

agencies.” Pet. Br. 5-6, 28, 46 (citing Continental Oil,

16 The Secretary is directed to cooperate with other federal

agencies and “the affected States” “[i]n the enforcement of safety,

environmental, and conservation laws and regulations.” 43 U.S.C.

§ 1334(a).

417 F 2d at 1036). State laws are not “supreme,” as

federai iaw displaces inconsistent state law.

Importantly, the Interior Secretary is authorized

to issue rules and regulations governing the OCS,

43 U.S.C. § 1334, and these rules and regulations

displace inconsistent state law, id. § 1333(a)(2)(A).

That regulatory power of displacement is crucial to

Congress’s design because, if the application of any

particular state law is undesirable, the Secretary

can displace that state standard by issuing regula-

tions to override it. Accordingly, the incorporation of

state law as federal law does not cede the United

States’ jurisdiction over the OCS to state agencies.

OCSLA mandates that all laws on the OCS “shall be

administered and enforced by the . .. United States,”

id., and forecloses state-agency administration.'7

4. Any purported ambiguities in the legis-

lative history cannot override the text’s

plain meaning

Petitioner’s reliance on legislative history to attempt

to create ambiguity in the statutory language is

backwards. The Court should not consider legislative

history when, as here, the text is clear. See Lamie v.

United States Tr., 540 U.S. 526, 534 (2004) (“[W]hen

the statute’s language is plain, the sole function of the

courts — at least where the disposition required by the

'7 The Fifth Circuit's longstanding reference to Continental

Oil's reasoning has no bearing on its correctness. See U.S. Br.

19. The Court had no issue rejecting a longstanding Fifth Circuit

test in Valladolid. See Valladolid, 565 U.S. at 215 (rejecting

Fifth Circuit test for applicability of Longshore and Harbor

Workers’ Compensation Act (‘LHWCA") under OCSLA). And it

is not clear the Fifth Circuit still relies on Continental Oil. See

Union Texas Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043

(5th Cir, 1990).

text is not absurd — is to enforce it according to its

terms.”). In any event, petitioner's invocation of

OCSLA’s legislative history does not provide clear

evidence of Congress’s intent to use “applicable” as

meaning “necessary” to fill a “significant void or gap.”

Rather, it confirms that Congress intended to apply

not-inconsistent state legal standards as surrogate

federal law.

The Court has recognized that the desire for conti-

nuity between laws operating on the OCS and laws

operating within adjacent States was an important

consideration in enacting OCSLA. A “theme” running

through the OCSLA hearings “was the close relation-

ship between the workers on the island and the

adjoining State.” Rodrigue, 395 U.S. at 363. Indeed,

“Congress also recognized that the special relation-

ship between [OCS employees] and the adjacent shore

... favored application of state law with which these

men and their attorneys would be familiar.” Huson,

404 U.S. at 103. These concerns were valid: The

employees on offshore rigs start and end their shifts

onshore, and at times split their time between onshore

and offshore activities and between drilling rigs in

state and federal waters.

Indeed, Congress rejected the application of

admiralty law as unsatisfactory because, as Senator

Cordon explained, “social laws necessary for protec-

tion of the workers and their families would not

apply.” 99 Cong. Rec. 6963 (1953). The Senate Com-

mittee instead adopted a combination of federal and

state laws, which was ultimately enacted. In present-

ing OCSLA on the Senate floor, Senator Cordon stated

that “the laws of abutting States should become a part

of the Federal law .... The [OCS] will have the

protection of the Constitution itself, and will have the

protection and provision for conduct of affairs as given

by the laws of each of the abutting States.” /d. at

6963-64. Accordingly, “Congress specifically rejected

national uniformity and specifically provided for the

application of state remedies.” Huson, 404 U.S at 104.

In the following colloquy, Senator Cordon addressed

the exact question now before the Court: whether

state laws apply on the OCS when federal law regu-

lates the same subject matter.

Mr. DANIEL. ... Since we have applied State

laws in the fields which are not covered by Federal

laws or by regulations ... , | should like to ask...

whether ... State laws relating to conservation

will apply in this area until and unless the Secre-

tary of the Interior writes some rule or regulation

to the contrary.

Mr. CORDON. ... The language clearly adopts

State law as Federal law where it is not incon-

sistent with existing Federal law or with the rules

and regulations of the Secretary of the Interior

. When [the Secretary] has adopted them,

those rules and regulations must be inconsistent

with or in conflict with the conservation laws of

the States, which are then the conservation laws

of the United States with respect to that particu-

lar area, or else the laws of the States, having been

adopted by the United States, apply to that area.

... [T]he language of [§ 1333(a)(2) will be] read as

pari materia, give effect to both.

99 Cong. Rec. at 7264 (emphases added). In short,

Senator Cordon explained that, unless a state law is

inconsistent with federal law, state legal standards

would be adopted as surrogate federal law. The fact

that state and federal law may overlap on some

subject matters has no bearing on its application. '*

B. Petitioner's Attempt To Manufacture

Inconsistency Between California’s Wage-

And-Hour Laws And The FLSA Ignores

Both Statutes’ Text And Purpose

Neither law nor common sense supports petitioner's

argument that when Congress has passed a statute

setting minimum federal standards — and included a

clause saving from preemption the application of more

generous state laws — a state law providing something

above that floor is inconsistent with federal law.

1. “Not inconsistent” does not mean “not

different”

Petitioner asserts (at 39) that, because California’s

laws are “different” from federal laws, they are “incon-

sistent” with federal laws and therefore inapplicable

on the OCS. However, the ordinary meaning of “not

inconsistent” does not mean merely “not different.”

This argument also conflates petitioner's interpreta-

tion of “applicable” (requiring there to be no federal

law) and “not inconsistent” (requiring there to be no

different federal law).

a. Petitioner is correct that California’s wage-and-

hour laws are in some instances different from the

FLSA. For example, the FLSA mandates a $7.25

18 While the Senate Report suggests state law applied only in

the absence of federal law, Pet. Br. 24; U.S. Br. 14-15, the later-

adopted House Conference Report, reconciling the Senate and

House bills, stated that, when “not inconsistent with this act and

other Federal laws and regulations, the laws of adjacent States

are adopted as the laws of the United States.” H.R. Conf. Rep.

No. 83-1031, at 12 (1953). The quoted Daniel-Cordon exchange

stating overlapping state and federal law would coexist occurred

after the Senate Report was published.

hourly minimum wage and California prescribes a

$12 hourly minimum wage. However, the existence of

two different minimum wages does not make the pro-

visions “incompatible” or “contradictory.” Petitioner's

argument is contrary to the FLSA’s text, which

provides that the minimum wage must be “not less

than” $7.25. 29 U.S.C. § 206(a)(1) (emphasis added).

California’s minimum wage is “not less than” $7.25,

and therefore not inconsistent with the FLSA despite

being different from the federal minimum wage.

Petitioner's argument would make sense only if

the FLSA set a ceiling, dictating that the federal

minimum wage must not be more than $7.25. In that

circumstance, any state law that exceeded the federal

ceiling would be inconsistent with the FLSA. It defies

logic to say that a more generous state minimum wage

is inconsistent with a federal statute explicitly allow-

ing States to set more generous minimum wages.

Consistent with Powell, the California and federal

minimum wages are not “mutually exclusive.” See

339 U.S. at 519 (rejecting argument that different

federal minimum wages were “mutually exclusive”).

Petitioner has not demonstrated that “compliance

with one ... makes it impossible to comply with

the other.” Jd. Nor is it impossible to determine

“respective wage requirements under each [statute]

and then apply[] the higher requirement.” Jd. Indeed,

Congress contemplated that employers may face over-

lapping wage requirements and resolved any concerns

through the savings clause’s directive to apply the

higher requirement. /d. at 518.

b. Petitioner’s argument (at 40) that the existence

of two different methods of calculating hours worked

makes California law “inconsistent with” federal

law is similarly flawed. First, under the savings

clause, States are free to impose more demanding

wage-and-hour standards, and nothing in the federal

compensable-time rules limits the savings clause’s

operation. By their terms, the hours-worked “princi-

ples” promulgated by DOL guide employers in comply-

ing with the FLSA’s minimum-wage and overtime

requirements. See 29 C.F.R. § 785.1. Thus, “[t]hese

are rules of federal law. States are free to set higher

hourly wages or shorter periods before overtime comes

due. That's what § 218(a) says.” Spoerle v. Kraft

Foods Glob., Inc., 614 F.3d 427, 429 (7th Cir. 2010)

(holding FLSA provision excluding time spent

changing clothes as hours worked did not preempt

Wisconsin law including that same time as hours

worked for purposes of state wage-and-hour law). As

the Seventh Circuit reasoned, because higher state

minimum-wage laws trump the FLSA, “it must be

equally so for the number of hours, because how much

pay a worker receives depends on the number of hours

multiplied by the hourly rate. It would be senseless to

say that a state may control the multiplicand but not

the multiplier.” Jd.

Second, although petitioner casts the two tests as

incompatible, both federal and California law use a

multifactor test for determining compensability of

off-duty time. Compare 29 C.F.R. § 785.22(b) (“If the

[sleeping] period is interrupted to such an extent that

the employee cannot get a reasonable night’s sleep,

the entire period must be [compensable].”) and id.

§ 785.16(a) (whether off-duty time is compensable

“depends upon all of the facts and circumstances of the

case”) with Mendiola v. CPS Sec. Sols., Inc., 340 P.3d

355, 359-60 (Cal. 2015) (noting “whether on-call time

constitutes hours worked ... focuse[s] on the extent

of the employer's control” and citing multiple factors,

many from federal law, for determining control).

Whether respondent's total hours worked differ under

federal and state law is a fact-intensive inquiry, which

would be premature to engage in at this stage of the

litigation.!9

c. The Court’s decision in Sun Ship, Inc. v. Penn-

sylvania, 447 U.S. 715 (1980), further highlights the

absurdity of petitioner’s inconsistency argument.

There, the Court addressed whether state workers’

compensation laws and the federai LHWCA were in-

consistent, such that only the LHWCA applied to land-

based injuries. The Court noted that Congress’s goal

of raising worker compensation “awards to a federal

minimum” was “in no way inconsistent” with applying

both state and federal law, because there was no

indication “that Congress was concerned about a dis-

parity between adequate federal benefits and superior

state benefits.” Jd. at 723-24. Thus, the Court was

“not persuaded that the bare fact that the federal

and state compensation systems are different gives

19 Respondent's claims for paystub violations, failure to pay

timely wages, and failure to provide meal periods each address

gaps in the FLSA, and thus are not inconsistent under even

petitioner's interpretation of OCSLA. Although petitioner

contends (at 31-32) the FLSA addresses each of these claims, the

provisions cited by petitioner are inapposite to respondent's

claims. Section 211(c) requires employers to keep wage-and-hour

records, but does not require the employer to provide such infor-

mation to employees. Compare 29 U.S.C. § 211(c) with Cal. Lab.

Code § 226(a). Section 216(b) imposes penalties on employers

that fail to comply with FLSA’s minimum-wage and overtime

requirements, but makes no mention of timely paying terminated

employees. Compare 29 U.S.C. § 216(b) with Cal. Lab. Code

§ 201(a). And 29 C.F.R. § 785.19 addresses whether bona fide

meal periods count as hours worked for the purposes of overtime

calculations, but is silent as to whether mealtimes must be pro-

vided at all. Compare 29 C.F.R. § 785.19 with Cal. Lab. Code

§ 512(a). Even if petitioner's “gap-filling” interpretation prevails,

therefore, those claims still would advance on remand.

rise to a conflict that ... necessitates exclusivity for

each compensation system within a separate sphere.”

Id. at 725. Here, too, the FLSA establishes federal

minimum worker protections. Congress was not

concerned with any conflict between an “adequate

federal” minimum wage and a “superior state” mini-

mum wage.

2. Nothing in OCSLA requires ignoring the

FLSA’s savings clause

a. Petitioner’s argument (at 29-30) that applying

state legal standards would require the same

sovereign to impose two competing sets of federal laws

is far overblown. As Powell demonstrates, differing

federal minimum wages are not unique to the OCS.

See 339 U.S. at 519-20; compare Establishing a Mini-

mum Wage for Contractors, Notice of Rate Change in

Effect as of January 1, 2019, 83 Fed. Reg. 44,906

(Sept. 4, 2018) (setting $10.60 minimum wage for

federal contractors), with 29 U.S.C. § 206(a) (setting

$7.25 minimum wage). Whether onshore or offshore,

the FLSA’s savings clause directs the application of

the higher requirement. See Powell, 339 U.S. at 519.

b. Petitioner's attempt (at 42) to manufacture

inconsistency by declaring the savings clause is

“triggered only by an inconsistency between state and

federal law” has no support in the FLSA’s text. The

provisions setting federal minimum-wage and hour

laws explicitly allow for more generous state laws. 29

U.S.C. §§ 206(a)(1), 207(a). Additionally, the savings

clause dictates that, when a wage standard differs

from the FLSA, the more generous standard should

prevail. The savings clause actually ensures con-

sistency between different state and federal laws.

c. Petitioner contends (at 43) that preemption

principles should not apply to OCSLA’s governing-law

provision because “state sovereignty’ is “inapposite

on the OCS.” See also U.S. Br. 8. The plain meaning

of “not inconsistent” and the FLSA’s clear provisions

allowing application of more protective state wage-

and-hour laws require incorporation of California's

state legal standards into the federal OCS law, without

any need for the Court to address state sovereignty.

That said, preemption principles do inform what the

phrase “not inconsistent with” means. For example,

in California Federal Savings & Loan Ass'n v. Guerra,

479 U.S. 272 (1987), the Court considered whether the

more generous pregnancy-discrimination protections

in the California Fair Employment and Housing Act

were “inconsistent” with, and therefore preempted by,

the protections in the federal Pregnancy Discrimina-

tion Act (“PDA”). See id. at 276-79. Congress provided

that the PDA should not “‘be construed as invalidat-

ing any provision of State law unless such provision is

inconsistent with any of the purposes of thle] Act, or

any provision thereof.” Jd. at 282 (quoting 42 U.S.C.

§ 2000h-4). In determining whether California's law

was “inconsistent” with the PDA, the Court considered

whether the PDA prohibited States from providing

more generous pregnancy-discrimination protections.

The Court concluded the two statutes were not incon-

sistent, because Congress intended the PDA to be

“a floor beneath which pregnancy disability benefits

may not drop — not a ceiling above which they may not

rise” — and California’s law at issue furthered the

PDA's goal of equal employment opportunity. /d. at

285-89. The same analysis can be used to interpret

“not inconsistent” in OCSLA — the FLSA provides a

floor beneath which worker protections cannot drop,

and California's wage-and-hour laws further the

FLSA’s goal of protecting workers. Therefore, there is

no inconsistency.”

IV. PETITIONER'S APPROACH CREATES

ADMINISTRABILITY PROBLEMS

A. Sound Policy Counsels For Making The

Same Legal Standards Apply To Employees

Working Onshore Or Offshore

Companies operating drilling rigs on the OCS also

employ individuals to service the land-based opera-

tions supporting the drilling process. These onshore-

processing facilities are physically connected to off-

shore platforms via pipelines and also are “closely

linked” operationally. Tr. of Pub. Hr’g of IWC (Oct. 5,

2000) (testimony of Kent Rogers).*! Some employees

even split their time between upland and OCS

activities, and even between rigs in state waters and

the OCS. In applying state legal standards to opera-

tions on the OCS, Congress enabled these interrelated

facilities to operate as a cohesive unit.

Shore-to-shelf continuity benefits both operators

and their employees. Employee shift changes are tied

20 Oddly, the government argues (at 25) that ordinary preemp-

tion principles should not apply, but then also argues (at 24) that

Lewis, which relies on ordinary preemption principles, should

apply. See 523 U.S. at 164-65. Lewis addressed how to determine

if there is a “gap” in federal law — a necessarily narrower question.

Id, at 164.

The government also argues (at 29) that applying preemption

principles undermines Congress's decision not to adopt an

amendment that would have made state law directly applicable

to the OCS. However, that amendment proposed to establish

state police power over the OCS and was broader than OCSLA's

requirement that only “not inconsistent” state legal standards

apply as federal law.

“1 Available at https://www.dir.ca.gov/iwe/PU BHRGoS. htm.

to operational safety and are meticulously synchro-

nized between the onshore and offshore facilities to

mitigate accidents during the turnover. Keeping

wage-and-hour standards consistent onshore and

offshore enables coordinated work schedules that

optimize operations and safety. See id. Employers

also benefit from not having to keep two different sets

of books tracking onshore versus offshore employee

hours. Employees, their families, and their lawyers

should benefit from the familiar laws of California, see

Huson, 404 U.S. at 103, regardless of how time is split

between land and the OCS.

B. Petitioner's Interpretation Disrupts Estab-

lished Methods Of Applying State Laws On

Federal Enclaves

The benefits of local uniformity between state and

federal standards on federal enclaves is not unique

to the OCS. In national parks and forests, federal

officials administer applicable federal and state laws

on numerous topics, including alcohol sales and hunt-

ing. See, e.g., 36 C.F.R. § 2.15(b) (allowing hunting

dogs “in accordance with applicable Federal and State

laws”); id. § 5.2(a) (adopting “all applicable Federal,

State, and local laws and regulations” for “[t]he sale of

alcoholic, spirituous, vinous, or fermented liquor”); id.

§ 241.23(a) (adopting “applicable State and Federal

law” for hunting, trapping, or fishing). A hunter

can spend one weekend on federal land and another

on state land while complying with the same legal

regime. Under petitioner's interpretation of “applica-

ble,” however, this legal regime becomes complicated

for everyday park-goers. What state laws are “»ppli-

cable” would no longer be a simple question of what

state laws are relevant, but a question that requires

first dissecting the U.S. Code and the C.F.R. to

determine if there is a void or gap in federal law.

Petitioner's desire for a specialized outcome for its

oil and gas operations would disrupt the accepted

understanding of how state and federal laws coexist

on federal enclaves.

C. Other Policy Considerations Argue For

Rejecting Petitioner's Interpretation

1. Petitioner's concerns (at 45-46) that applying

state laws to the offshore platforms place operators

in California and Louisiana under different legal

regimes is overstated and not a reason to depart from

OCSLA’s plain text. There is nothing remarkable

about sophisticated companies complying with multi-

ple regulatory schemes when their operations span

multiple jurisdictions. Indeed, petitioner maintains

both onshore and o/ffshore-drilling operations in the

United States. It already must conform to state laws

for its land-based operations.22 In choosing to adopt

a regime reliant on state and federal law, Congress

knowingly rejected interstate uniformity as a goal of

OCSLA. See Gulf Offshore, 453 U.S. at 487.

In fact, California’s laws are applied offshore in

other instances where Louisiana’s and T¢xas’s are not.

For example, under § 328 of the Clean Air Act, for OCS

facilities located within 25 miles of a State, Environ-

mental Protection Agency (“EPA”) regulations are to

be “the same as would be applicable if the source were

located in the corresponding onshore area.” 42 U.S.C.

§ 7627(a)(1). This includes “[s]tate and local require-

ments for emission controls, emission limitations, off-

sets, permitting, monitoring, testing, and reporting.”

Id. States can seek delegation from EPA to enforce

22 Petitioner's drilling operations in Guatemala, Iraq, and

Russia raise substantial doubt that petitioner otherwise benefits

from regulatory simplicity.

these requirements, see id. § 7627(a)(3), and Califor-

nia has done so, see 40 C.F.R. § 55.15. However,

§ 328 does not apply to the central and western Gulf

of Mexico, and emissions there are regulated by the

Interior Secretary.

2. Petitioner's contention (at 46-47) that federal

agencies enforcing state laws is “anomalous” ignores

multiple instances where the federal government is

tasked with enforcing state law. On federal enclaves,

federal law-enforcement officers are charged with

enforcing state criminal law, adopted as federal law

under the Assimilative Crimes Act, 18 U.S.C. § 13.

In national parks, federal law-enforcement officers

enforce overlapping state and federal laws and

regulations. And, in federal facilities, federal agencies

and departments are required to comply with federal,

state, and local clean-air, clean-water, and hazardous-

waste standards. E.g., 33 U.S.C. § 1323 (water-

pollution standards); 42 U.S.C. § 7418 (air-pollution

standards); 42 U.S.C. §6961 (solid- or hazardous-

waste standards). EPA is tasked with enforcing viola-

tions of these various laws on federal facilities. /d.

Petitioner's argument (at 46-47) also fails to address

specific OCSLA provisions capable of relieving the

“burdens” on federal officials administering OCSLA.

See also U.S. Br. 8, 30-31. For example, if federal

officials do not like the application of any particular

state standard, the Interior Secretary can issue

regulations inconsistent with the state requirements

and thereby displace them. Second, the Secretary

is required to “cooperate with the relevant depart-

ments and agencies of the Federal Government and of

the affected States” to enforce “safety, environmental,

and conservation laws and regulations.” 43 U.S.C.

§ 1334(a). Accordingly, the burden of enforcing state

safety, environment, and conservation laws does not

fall exclusively on federal officers. Third, the Secre-

tary is permitted to enter cooperative agreements

with States “to carry out applicable Federal and State

laws, regulations, and stipulations.” Jd. § 1345¢(e).

Therefore, if the federal government does not want to

enforce particular state laws, the Secretary can enlist

States to do so.

3. Petitioner's assertion (at 48) that existing

compensation agreements will have to be rewritten

has no factual support. To the contrary, an audit of

payroll practices on the OCS indicates that contracts

between operators and their employees or their unions

already apply California wage-and-hour laws on the

platforms or contain provisions that mirror California

laws.*° Indeed, petitioner also already has adopted

certain California wage-and-hour practices that do

not exist in the FLSA, such as paying employees

like respondent double overtime. Wage Order 16,

covering offshore-drilling activities, provides a safe

harbor to employers that have entered into collective-

bargaining agreements. See 8 Cal. Code Regs.

§ 11160.3(H)(2) (providing that certain provisions do not

apply if a “collective bargaining agreement expressly

provides otherwise”); Cal. Lab. Code §§ 510(a)(2), 514

23 See, e.g., Answering Br. 6, 10, Curtis v. Irwin Indus., Inc.,

No. 16-56515 (9th Cir. Feb. 28, 2018) (Collective Bargaining

Agreement, stating: “The parties to this Agreement recognize

and agree that Industrial Wage Order 16-2001 covers [Irwin's]

operation and recognize the applicability of and incorporate the

provisions of Industrial Wage Order 16-2001"); Jensen v. Safety

Equip. Corp., No. 2:18-cv-02890-RGK-GJS, ECF #28-12, at 1

(C.D. Cal. July 5, 2018) (‘This [employment] Agreement includes

.. the duties imposed on employees by law pursuant [to] the

California Labor Code, all of which are incorporated herein by

reference.”).

(same). Wage Order 16 also contains an alternative

workweek schedule drilling operators can adopt to

largely avoid paying overtime to offshore workers. See

8 Cal. Code Regs. § 11160.3(B)(1)(h). Operators and

employees therefore can continue to rely on mutually

beneficial agreements and comply with the law.

4. Petitioner's concern (at 48-49) that States could

destroy offshore drilling by enacting increasingly

stringent requirements to be imputed offshore

through OCSLA is mistargeted. The articles peti-

tioner cites (at 49) contend California already is trying

to regulate offshore drilling but is doing so through

regulation of onshore facilities and pipelines, upon

which offshore facilities rely. For its argument to

carry any weight in this case, however, petitioner

must demonstrate how OCSLA precludes such exer-

cises of state sovereignty to state onshore activity,

which Congress clearly did not intend to displace.

5. Petitioner's concern (at 49-50) about “opportu-

nistic plaintiffs” applies equally to companies operat-

ing on land. Changes in state wage-and-hour laws

in California have not destroyed onshore business

through “windfall[s]” and “massive retroactive liabil-

ity”; there is no reason to fear the offshore-drilling in-

dustry would fare differently.

CONCLUSION

The judgment of the court of appeals should be

affirmed.