don't have a whole lot to say i'm sure you're all quite familiar with the rules of or rules of the road on oral argument we ask you to send in one case we have three lawyers arguing on the side try to observe the time limits we have read the briefs and record excerpts we have not necessarily read the whole record before we get into court so we appreciate your record citations for his case of the morning is united states versus mos number sixteen three zero five six one and we'll hear from ms greenfield to begin are you from your identified isn't a usa are you from yes on new orleans st ok you're trying to failed to comply with the welding regulations governing the work they were performing for blackout energy the lessee of the offshore facility known as west delta thirty two each of them were charged along with blackout energy under the a term of you as in two fifty one zero five or whether they have have become the compliance under to fifty one forty six where they are their regulations require their compliance doesn't matter which category they are put in you has been in a way that interior has been able to without specifically listing each entity that needs to comply with each and all of its regulations that it captures all of those lessees and the operators are across the board for all the regulations as to fifty one forty sixty requires when they are doing the work that is regulated in perth that regulation they required to comply jointly and severally with the lessee and the operator where does it say that they have to comply i know the district court's opinion seems to say that at one point but the the defendants don't agree with that even though the opinion sort of says they have to comply but they don't they can be liable where does it say they have to comply that is into fifty one forty six c and in fact the defendants below are some of their briefing what does it specifically say that says that they have to comply and that provision yes under c when the regulations require the lessee to meet a requirement or perform an action the lessee operator for one has been designated and the person actually performing the activity to which the requirement applies are jointly and severally responsible for complying with the regulation so it's literally within two fifty one forty six  again for complying with the regulation with the regulation so whenever the regulations in the thirty c a fart in the different parts of two fifty through to eighty two it can sets out what the only require less season operators to comply with those operational regulations but also to means that any person performing that regulated activity like we just said on behalf of the last see must comply with the regulations governing the work and then oxalis criminal provision makes any person who knowingly and willfully violates any regulation designed to protect health safety the environment conserve natural resources subject to criminal prosecution now let's go to the  opinion judged opinion oh if i were an operating yeah yeah and consider the statute which starts off by defining a person and then in thirteen thirty four a says the secretary shalala minister the provisions of this subchapter relating to the leasing and then when you get a little more detail it does say the in the enforcement of safety laws the secretary shall cooperate with the relevant departments and then in thirteen forty eight it says the duty of any holder of a lease or perm t to maintain you know safety and environmental laws now basically you're going beyond you're saying that the secretary's ability to administer to and your ability to prosecute people goes beyond the scope of thirteen thirty four no one of the things that the alan operating opinion did it was  cite to the provision in the middle of the two sections that you just cited the secretary made anytime prescribe in him in such rules and regulations as he determines to be necessary improper to provide for the prevention of waste conservation of national resources i'm aware of that but the and then then the next sentence talks about in the enforcement of safety and conservation safety regulations is what you're referring to know the senate's goes on there again the secretary is allowed to and since nine hundred fifty three this has been the case that interior has been allowed to write in force regulations for the protection of the environment for the all the operations under the lease notwithstanding any other provision in ox law the welding regulations were promulgated under this section and it does not restrict a interiors authority to require compliance by any other person performing that actual how come the interior department just realized this after decades of saying that it didn't apply that they weren't going to prosecute contract subcontractors they have not said that they were never going to prosecute contractors they know every contractors has been on notice for thirty or forty or fifty years that that if the welding regulations were violated they could go to jail every person that performs operations in the outer continental shelf that has subject to regulation has been aware pursuant to the may normally normally joint and several liability which is the regulation you're referring to is a civil provision not a criminal provision because you do not have i'm not aware other than conspiracy of joint or or people who are personally involved you know that the idea of joint and several liability has to forty eight would require and getting back to what you were saying earlier about what is thirteen forty eight to you it's going to require that the operators and lessees the lessees and permit holders actually maintained all their operations so interior would not say to a less c or permit holder you would not also be required to people can be responsible for violating a criminal provision that happens all the time but you well i made my point joined in several liability is a term in the civil law not in the criminal law and your honor the criminal statute in this case says that any person may be right so let's take an but suppose one of their supervisors had had a phone call with them that day and collected to discuss well did you you know did you see alof did you see go off the m b and passes before us or did you put notice or inspect and so on would they be would that person be criminally jointly and severally liable to go in the facts of the case well excuse me the point is that under the under the negligence law that is certainly possible right but it would not necessarily be a knowing and willful criminal violation regulation or any person that knowingly and willfully violates a regulation designed to protect health safety and the environment has been subject to notice that they can be prosecuted now let anyone actually been prosecuted  some new york times article it or you are in you have some criticisms of the law review piece at the district court sides that says no one's prosecuted or you're not an actor you're criticizing that the court use rely on as if now at the thirteenth hour if you didn't have it in the record before we've always cited it i was reading from it in the district court below and that's in the record of the hearing but no there is one incident in was prosecuted and that was before the two fifty one forty six c regulations which made the joins the responsibility at texaco how my campaign international yes the texaco that's where they are and that's the one that's the one with the contractor for the department of justice to all the whole history when we've had welders on platforms and unfortunate incidents for years and years and years correctly but there was a plate right that was a plea after an indictment yes and of course since that time since this case in two thousand and twelve we have brought cases against contractors here obviously doesn't three date two thousand and twelve but the cases have been brought in the cab prosecuted them but until two thousand and ten or two thousand and eleven new the the public information doled out by the agency was that process notice again the criminal statute has been on the books since one nine hundred fifty three the interiors regulation has been in existence since one thousand nine hundred let me ask you know the question you're talking about thirteen thirty four  which talks about rules and regulations and the secretary shalala ministry of the provisions and then has the other language that you're aware of that we've discussed but then it says the regulations under this subsection will include but not be limited to provisions for the suspension or temporary and i'm looking at subsection one for the suspension or temporary prohibition of any operation or activity if there is a threat of serious irreparable harm or damage and then with respect to cancel subsection two is cancellation of subsection six drilling or easements necessary for exploration subsection seven prompt and efficient exploration and development subsection eight compliance with the clean air act are you regulation or whatever that and the terms include but not be limited to can be possibly and i didn't look this up completely before i came here today but it occurred to me that under the principle if that principle applies here you are not talking a bad regulations that go to liability of people other than the lease holder it doesn't get much plainer than a criminal statute that says any person who knowingly and willfully violates a regulation that protects health safety in the environment may be prosecuted and you can't get much plainer than a regulation that spells out before welding you have to conduct a pre work inspection you have to renew your piping or you have to make sure it's safe and it's logical and just in plain that those who perform that activity are actually held responsible when they fail to conform with the regulation two judges in two separate districts rejected the government's contorted arguments that the government now has this court to embrace in order to pursue an unlawful enforcement action and while i'm at it let me just say it's an enforcement action and yet the government doesn't even mention section thirteen forty eight of the act which is titled enforcement it just bypasses that it makes it a statutory or from in terms of what it discusses that's not pure textual application we were specked fully submit to this court you've got to apply the language of the text the government once again is offers to the court it did the district court sort of a hopscotch argument of regulations actually whatever snippets it can provide but frankly you're on it's simple criminal liability against contractors is not supported by the act by the regs by the legislative history or even by the department of interior own repeatedly made to the public the argument they're making here seems to be hung up on any person reference it in your honor of judge clement any person is under thirteen hundred fifty and once again in the government's effort to just sort of grab portions of statutes out of context thirteen fifty is this court knows relates to fines and penalties the thirteen forty eight is the in foresman or vision and thirteen forty eight is the predicate to get to thirteen fifty it is much broader any person certainly could be prosecuted if they fall with on with their thirteen forty eight and is chief justice noted a moment ago that that applies to holders of permits holders of leases not contractors and the the government frankly this approach is inconsistent with both the meaning in the structure of the statu and it it offers what it does is it offers this court an opportunity to basically replaced the legislature replace congress with the executive branches decisions at a whim without any notice given to the contractor whatsoever do you address the argument the reply brief made seventeen it says because  and then that's i didn't interrupt your audit and that's that's correct so in one thirty forty eight all was enacted at the same time thirteen fifty was enacted that had befallen to penalties that was a congressional decision bay on the holders or permits and holders of leases that's best sees only words and to make it clear they not only put it in bold they basically screamed it out to the public saying you don't have to worry about th contractors because we're not focused on you we're focused on those permit tees and the let's see and they could have been clear and that was in twenty ten and twenty eleven years after any subject to the definition of you as judge clement noted at the early part of the argument and that is what bessie decided it would be the definitional section for you it's not just for that one thirteen judge jones it's for hundreds of regulations that all use you but let me just say everybody understands that if you take a side human about thirteen thirty four and thirteen forty eight  everybody understands at least the last see in the operator of a lease are and even the operator i might add are not normally the ones who are the roughnecks on the platform doing these but to answer your question directly it is the relevant because black help was the permit to was the operator of that platform that's where the buck stops it does not go down to the contractors who are outside the scope of the statute and the and the regulations judge jones who had no notice until this indictment was brought well is it hot to what extent does it comport with our criminal law the the leaseholder criminally liable for what may be negligence or gross negligence on the part of one of its subcontractors in other words it if the statute only applies to the operator and lease holder and thirteen forty eight only applies to the operator and lease holder judge jones all i could say is that was a decision made by congress congress decided to make the holder of the lease or holder of the permit accountable for the operations of the contractor indeed bessie even said that in the prefatory statement to section one forty six they said we're going to hold the contract the excuse me the holder of the permit or the holder of the lease accountable for the contractors of failings if that occur that's a decision made by congress and what the executive branch now wants to do would d o j it wants to do is supplant that decision by congress but there's a structure there for i don't mean to interrupt you judge jones i was just trying to spit out there's a structure there in the regulations particularly in the context of definition of you and those welding it those welding provisions throw welding regulations fall within that structure under one o five which defines you it does not include contractors contra congress could have made that decision or the regulators could have made that decision both of them chose not to and what do you do when they join in some several liability fiction well there's a joint serve a lot of build a section but there are a couple of responses to that if you permit me one that section as you noted of does not impose criminal liability it's normally for civil liability now number one number two it's never seen a joint and several provision for criminal liability but number three even if you interpret it as allowing the criminal prosecution it is ultra vires because it goes beyond the statute that the regulation under one forty six goes far beyond the statute number four if you interpreter one forty six now to say that it could be used to prosecute contractors then it was never subject to the administrative procedure act and as you know under pereira's of the supreme court has said you cannot have a situation that adversely affects someone unless there is compliance public notice a hearing room making under the a t f and and so are a host of reasons why one forty six is just not applicable putting aside the absence of notice that you mentioned a moment ago judge jones that one forty six could not be used as the government now wants to twist and turn it into a basis for a criminal prosecution of it if i could just tell the panel a few points of and ask them to consider these because i know as judge easterbrook said in another opinion it has an ability to divine what congress meant years ago it has an ability to understand what the a department of interior meant two cautious there misunderstandings within the department of the interior of there's conflicts between the two agencies within the department of interior as to whether contractors can be held accountable and yet it wants to say despite all that confusion despite all that misunderstanding despite the bad legal advice the department of interior is putting out there that the contractor should have fair warning and clear noticed as to what's expected of them and respectfully we would submit to your honor's that just simply cannot occur that is the antithesis of fair notice to contractors it's the opposite of the fair warning as the d process required is due process requires consistent with the fourteenth amendment can you help me with the practical problem it's related to the question did stearns was asking earlier are you saying th owner has to make sure that the well being protocols are followed correctly and eat i mean we have lots of cases where people say the owner is not sponsible because they didn't fall they were micromanaging the protocols of the subcontract in fact we have other cases this week to deal with some of those issues so in the civil context so why would be in the criminal context it be responsible for the and that's the only person responsible i understand the statutory text arguments but as a practical matter can you help me get comfortable with your because judge rod is a ultimate control over the operations of apply for congress recognize that congress made that decision and it's considered frankly that's important for this quarter of understand congress understood that it could and considered a broader definition of ochs law and then it restricted as the panel knows best and considered a broader or application of what is the term you and it restricted to the operators to the owners the lessees and the designated of agents and in fact i think it's telling that department of justice in the indictment of actually call of all of the defendants designated agents when they knew better and then they had to withdraw it and concede they were wrong because they recognize themselves that to be under the act or to be under the regs you've had to be designated and not of these defendants were designated for the same reason going back to a comment that judge jones made on section thirteen thirty four if their key thirty four was the panacea for the government's indictment of these defendants then one must ask why wasn't it mentioned once indictment it was never mentioned instead what the government has done is it focused on you is judge clement mention of the beginning it it's spent two pages on the definition of you which does not include these defendants and it talks about thirteen forty eight only one time and that's in the context of the lessee so the government knows better the government is just trying to stretch this for the very first time without any notice to any of these defendants are in violation of and i would say in violation of the fourteenth amendment and just lastly it would ask the court because we know that you've considered it get the benefit of the rule of law to take we're not saying that the court needs to get to the constitutional issues or needs to get to the rule of lenity even though the district court said it would apply she would apply the rule of lenity if if  the statutory language of did not convince it or rule in favor of the defendants but if you read except all of the government's sort of twisted arguments that been provided so far in briefs and in oral consistent with the statutory language it's consistent with the legislative history although we don't believe you have to get into the legislative history but it's certainly consistent with their own regulations and it's even consistent with their own p court properly acted dismiss the defendants the contractors in this case i would really like to point out that to the court don lost his status because he cheek out of falls into the hypothetical i think judge jones spoke about a little bit earlier donna moss was an him he does not fall within the you under one o five he's clearly not there and he wasn't as mentioned earlier designated by anyone to be an agent he also is not under one thirteen as a welder welding supervisor or person in charge so he's under neither one of these statutes so you know in this particular regard mouses job on the statute on the platform where he was a consultant who coordinated and reported to black elk a construction  rules in the rule of limited t to find that these regulations don't apply to the contractors otherwise i would submit hundreds of contractors that are out there like don moss are going to find themsel judge jones the welding regulation is not incompatible with the statute again as we've been through thirteen thirty four a with interiors authority is broad to fifty one forty six c does not go beyond the statute to require compliance from an additional person who is doing the work does not offend the statute into fifty one forty sixty again this joint responsibility regulation was promulgated through notice and comment rule making it was not a surprise the funny thing about that say a word about criminal liability no because the criminal liability derives from the as judge clement says any person who knowingly and violates any regulation and that derives from the statu it is alleged going hand in hand but there's at least five reasons one of which we'll get to judge your point about the implicit repeal and page seventeen of our reply five reasons why section thirteen forty eight b does not constrain interior from taking enforcement action against others when they violate the regulations the plain text of section thirteen forty eight b does not say that lessees are the only ones who interior could require complot to comply with the regulation thirteen thirty four b says lessees have to maintain all their operations in compliance with the regulations not that no one else has a duty to comply the text of the criminal statute in thirteen fifty c does not say duty holders under thirteen forty eight or any person who fails to perform their duties under thirty forty eight may be prosecuted that texas any person who violates any regulation designed to protect health safety environment and conserve natural resources may be prosecuted of it you know thirteen thirty four thirteen forty four is the authority that is that is the authority to write thirteen forty eight that enforcement provision that the defendants have wanted to pick out and shield them from any liability for operations are compliance but if interior is requiring cop compliance from others in addition to the less these permit holders in thirty to fifty is going to establish liability for all of those just is your enemy an example of anybody so you're saying let's say that a cop a contractor leaves trash on the platform in the trash falls into the gulf of mexico and that's not in compliance with the clean water act or something then you're saying that you're the scope of thirteen thirty four is broad enough to put the the all the people in that contractor in jail right now of course it is not well yeah because you saying that the secretary has limitless regulatory authority to under one of these other provisions here to keep you know keep the provide for the environmental and conservation laws and regulations under thirteen thirty four and any person under thirteen fifty who violates it can go to jail so if they throw cook cans off the platform they can all go to jail if they are violating a regulation for the work that they do in le regarding thirty and forty eight b to restrict anyone else from having to comply with regulations governing the work that we do would be tantamount to that implicit appeal we were discussing but opposing counsel said it's not an implicit repeal that it's true that they just didn't have lifting fifty three interior has had the ability to write regulations and thirteen fifty c that criminal any person provision has also been in there since one nine hundred fifty three the fact that congress will write a provision doesn't impose a duty on the person that you're trying to impose criminal liability on that on that and then it's only in the penalties in the thirteen fifty so you where does it come from the duty the regulation in the joint and so responsibility that interior has political and those that are actually doing the work again the criminal law holds those that commit the offense responsible and i just sit in by this court that prevents holding these defendants responsible when the plain language of the statute in the regulations dictates otherwise we actually do it and it is service a do injustice to congress last year and what really happened if there was a view that they were designated agents and then somebody went and looked and checked and realized they really weren't isn't that what really happened no two fifty one forty six see the joint civil responsibility provision for the regulations you has been in every count of or you can go back to your office and find me a single crumb criminal case but talks about joining several liability and you may feel free to to put it in a twenty a j letter otherwise you've done a great argument but you've got to make concessions where they're accurate and again i know you the government wants the indictments to be upheld and reverse a district court yes thank you thank you you thank