we'll hear argument first this morning in case eight hundred three eighty nine parker drilling management services versus new mr clemente mr chief justice and made please the court california wage and our law is neither a political on the outer continental shelf nor consistent with the federal fair labor standards act the ninth circuit's contrary approach which treats california as supplying the rule of decision when ever california law pertains to the subject matter and  is not preempted by federal law is inconsistent with the text and context of the the outer continental shelf lands act more particularly by treating state law as the default rule only and only to be displaced by inconsistent federal law the ninth circuit effectively treats the outer continental shelf no differently from the mainland where california is sovereign and contradicts the most  secretary could override the state law which is not what generally happens in conflict preemption federal law federal agents have to enforce the law there are substantial differences built into the sack what i don't see is a clear statement that says something like you want the word applicable to me only if there's a gap or well just to sort of my where i think some of the unusual characteristics about state law when it's borrowed and then sort of transformed into federal law on the shelf actually i think help provide the context that informs the meaning of the word a political i don't think there's any real doubt here that a political means suitable or appropriate or fit for purpose so then the question really becomes when is it appropriate to have state law be transformed into federal law for use on the shelf when i tell me why when it's not inconsistent meaning and that's my problem suitable only because the language says when it's inconsistent but here federal law clearly sta that state law can supplement federal law so where's the inconsistency with i want to answer your question just to sort of a but i first i do want to point out i view the statute is really having two requirements that it has to be state law applies to the extent it is a political and not inconsistent now to talk to the non inconsistent piece here i think the inconsistency is pretty glaring in fact the whole reason we're here is because california has a very different rule for addressing sleeping time on the employer's premises than the federal level and the federal regulators looked at this and they decided generally we're not going to have sleeping time be treated as work hours and we're generally going to respect the agreements of the employer and the employee california looked at that specifically and said well we like that rule for healthcare workers and one or two others but not for most other workers we reject the federal analysis and that to me that makes them pretty glaringly inconsistent now my friends on the other to take the import of your question would say ah but there's the savings clause well there's at least three problems i see with the savings clause the first is the savings clause is not even implicated by its terms unless state law and federal law are inconsistent if state law and federal are consistent you don't need the savings clause you never get there they don't the when the savings clause applies moreover it doesn't make federal law and state law consistent it basically tells the employer which of two inconsistent laws they need to follow which i think is quite different the second problem with the savings clause is i think you can't divorce the savings clause from the reason that it's in the f l s a and most statutes which is to respect the fact that states are and have been since the framing the primary regulators of employment relationships and the like and so when a state is applying its law in its sovereign territory i would say it's understandable in lot of that the federal government wants to say well your state law can apply if it's more demanding but that principle is completely out of place on the outer continental shelf where all law is federal law they have a third reason which i'm happy to get out which is congress also knows and we have some statutes collected at footnote three of the blue  congress actually knows how to act a called a super savings clause or a savings clause that specific to federal enclaves and with respect to certain state laws state unemployment compensation laws state workers comp laws congress has said we want the state law to apply even on a federal enclave but that's not what it did with the fair labor standards or the fairly standard finishes and there's a fair labor standards act is an ordinary savings clause which i think accommodates federalism but when apply  the federal enclave that after all that i'm going to take you back to the work were to clickable and the language here is clearly not the clearest way of expressing what you want to express which is that state law applies when there is a gap and federal law so you rightly say that we look to context as well and as far as i can see in tell me if i'm wrong about this really your main argument from context is a statement about enclaves right that these that this should be treated the same way as federal enclaves are is that correct i would really say true principle arguments one of them is the enclave point but i think even before you get there i mean the fact that thirteen thirty three eight two converts the state law into federal law to be applied by federal administering strangers seems to tell me that something odd is going on here and then particularly if you read that in conjunction with their team thirty three a one which extend the whole body of federal law to the shelf the way i think about it just to put it simply is even apart from federal enclave principles but why would you create surrogate federal law which is what thirteen thirty three eighty two does in less you had a gap in the actual federal law that was extended to the shelves by thirteen thirty three a one well possibly because you know that you want this to be administered by federal agents and if it's going to be administered by federal agents it should be federal law so let's just go to the enclave's because i think that that's an important part of your argument and it's something on which we both seem to disagree and it seems as though it should have a clear answer but honestly not finding it so as i understand mr fredericks position he says that apart from the a c a the crimes act that in fact in federal enclaves state civil law is applied do you think that that's wrong we do think that's wrong and you know i think fortunately for me the federal government agrees with me and is agreed with me in an unbroken chain at least since about one nine hundred fifty eight when they put together that exhaustive survey which the solicitor general cites which is roughly contemporaneously and the justice department was up there testifying in front of congress so i tend to think that i'm in pretty good company on my understanding of federal enclave law but i do understand federal enclave a lot very very succinctly is this which is we have a new federal enclave you don't borrow state law as a general matter and you specifically don't borrow state law when there's federal law on the same matters which i think is the language right for mcglynn even as create existing state law even as to preexisting state law and the reason i think that means how do we know that where it is where is that coming from and do we have cases that say that do we is there some like federal manual that says that what's so i feel as though people this should be something with an answer and all we have a sort of assertions on both sides so i there's there's three places i would look i would look to mcglynn i would look to this comprehensive federal service i mean my goodness it's like two hundred pages long and it comes to the same conclusion and then the third place i would look to is these simulated crimes that because i don't think the way to understand these simulated crimes act which is to criminal law makes this point more specific is being something unique to criminal law it's really that the congress in one thousand nine hundred five addressed criminal law because they had a particular problem they didn't have with civil law right which is the united states the hudson case which says you can't have common law crimes so congress was forced to act with respect to criminal law and when it acted what i'd say we did with the assimilated crimes act is it reflected the broader principle which is it didn't say we're going to apply federal criminal law and state but rather part of state criminal law even where we have an on point federal criminal statute it's a no we're going to borrow it to fill the gaps and if you take a step back i think that is the basic problem that you have in a newly created federal enclave which is you know it's the same problem congress had in acting oxley which is you you've made it a federal enclave so you're not anxious to have a lot of state law applying there but you know the law like nature abhors a vacuum so you just don't want to have all sorts of whether it's a cow wandering on to the railroad or whether it's people having a bet you know no contract law you just don't want there to be a vacuum so applies a different rule but we found something like four or five or six opinions that go the other way so there is i think the majority view is that even on land the fair labor standards act doesn't apply on a federal enclave you have one federal minimum wage and again i think that that that conclusion is probably buttressed by the example of state worker's comp law and state unemployment law where you have specific federal statutes collected in footnote three in our brief which make those laws a political even on a federal enclave so the law in california is that when congress specific that federal employment statute applies to the enclave it applies to the enclave but otherwise law does not apply on the federal enclaves i mean so i think we have the much better view of the federal enclave law if you're a little nervous though about making a definitive holding about federal enclave law i suppose you really can't get to the same conclusion just based on the structure of thirteen thirty three and the fact that a one extends the whole body of actual federal law to the shelf and congress even was clear that that meant the fairly ever standards act and then when clear as we read the provision that i think my friend on the other side is relying on is thirteen thirty four a and that provision as i read it gives the secretary of interior the authority to promulgated regulations addressing leasing or leases on the outer continental shelf now i suppose if i lost this case i might want to make an ambitious argument that working conditions has something to do with leases on the outer continental shelf but i don't think that's the better argument and i don't think it's a simple as the secretary of the interior can trump anything he or she wants i think that regulatory authorities a little more modest and is there any vision that leasing on the continental shelf i'm sorry is there anything but leasing on the continental shelf nobody owns those operations i thought they were fairly heavily regulated by the secretary generally sure but but this specific term says the leases not leasing and again you know i don't want to say that i couldn't make an argument but i would say based on the plain language of the regulatory authority i don't think the secretary of interior has that authority and i think i'd be a little weird frankly for the secretary of interior to effectively have to take action to vindicate the judgment of the wage and hour division regulators who looked at the specific issue of how to treat sleep time and came to a considered conclusion that sleep time we don't want to make automatically part of unknowns were one of the difficulties i have here is how do you define void or can so let's talk about that because you could always to find it brought the ordinarily if there's this state law that says you can't fire probably say in that situation that there is not a gap in federal law because federal law addresses the general subject of sort of employment discrimination and the like i actually think that i mean obviously the jury service examples probably uniquely because i've got to go serve and well and so that isn't can you see the other side of that argument i can see the other side of that argument and i can always add then that that pigs the question which is i know conflict preemption and i know that some of my colleagues don't like it but at least there is a well defined body of law under your views we're back to now into finding a different kind of conflict perfect preemption one that has to do with voids and gaps well so just a sort of i don't know why isn't a statute of limitations or a failure to have one not avoid here is a federal common law we don't like to use it but we have a case that said we're to use louisiana statute of limitations that wasn't a void or gap even though we had federal law well specifically in that case you were looking at the question of whether you should borrow a statue imitations from federal common law and it seemed clear to this court from the legislative history that federal common law was not what congress wanted you to use for gap how about the high seas of death on the high seas act that was federal law that's right and that is we still borrowed state law exactly because this court found a gap and i actually think that rod reed which is the case where you look to state law borrowed through the lands act as opposed to realize it inaccurate but we had federal law that answered the question exactly but it didn't answer the question on the platforms it only answered the question on the seas and this court said and this was you know as i understand it basically it's holding that you know since there was sort of no federal law that directly applied there was a gap and you borrowed state law and i would only add before i sit down that the fifth circuit and really every court that's wrestled with this question until the ninth circuit in the decision below has been applying this court's cases which they understood as applying this gap filling analysis and none of them have had a real problem with that and certainly i don't think any of them would identify a gap here where the fair labor standards act comprehensively addresses issues of over time in the light just on that mr and i apologize but i think people are a little bit over reading the fifth circuit decision or let me just put out the possibility that that's true the fifth circuit decision when it talks about these gaps is really saying that there's a federal remedial scheme that covers a problem and so that there is no need to look for remedies any place else and that's a very different kind of situation than the one we have here isn't it you know i think this is exactly the same situation which is you do have a federal remedial regime that provides a remedy for overwork and you don't need to look to state law to borrow a different regime that you would then make a second and duplicative and i think inconsistent federal minimum wage statute thank you counsel  mr chief justice and may it please the court more than seventy years ago in united states versus california this court clarified the federal government's paramount sovereignty over the continental shelf congress reinforced that interest including its choice of law provision now unlike attrit a typical choice of law provision section thirteen thirty three of oxalis does not directed choice between two bodies of law instead it creates one body of law a body of federal law and it adopts state law as quote the law of the united states to the extent it is a political and not inconsistent with other federal law as this court and virtually every or other court has recognized for fifty years those words refer to gap filling and federal law respond its position by contrast would essentially replicate the position on mainland california on the outer continental shelf with the small exception that federal officials would enforce the law which we think is inconsistent with the tax the purpose and the history of how would  federal officials and force the state law to the administrative responsibilities with respect to the state employment law that the federal officials would have to undertake were that is that it's a officials sort of trying to interpret the work of state administrators but i mean if a current are the filling out forms are they in forcing i mean i don't quite know what you're talking about when you say federal officials will have to it minister i mean are they just simply checking to make sure that they're being paid whatever it is twelve dollars or i say yes i mean it varies obviously depending on the regulation with something like this but you know presumably it's it would be the wage in our division of the labor department  t ensures compliance with minimum wage laws in the same way that it does on the mainland although of course it would have to adopt all of this state law where we already have a federal law that was we reproduce the appendix to our brief  federal law including labor department regulations address a lot of these issues already and i do think you know if you sort of picture page at page eight of our our brief for example we have the statute on the minimum  wage which at the bottom says it's seven twenty five an hour given this unique choice of law provision what we're what the respondent is centrally saying is that you should adopt another sub provision that has a different federal minimum wage and i  do think it's just a very odd concept and one that has no support in the statutes history to say we're going to have two federal minimum wages where federal law has already answered just one or two questions but one is minor and if you don't know just say what percentage rough guess of outer continental shelf activity takes place in the fifth circuit is it more like that's one question and  to if you have a quick answer i have another question i very quickly answer i think it's about ninety seven percent ninety seven percent ok now my second question is this that has federal on claves in mind there are dozens and federal regulatory programs they have to do with you know safety osha drugs you name it and in those thousands and thousands of federal regulations there's quite a lot of room for state activity even in tort law we've had cases like that the f d a what's been the practice that is to say there is room in the sense that federal law does not preempt the state law but it does lay down rules that generally apply right in federal enclaves in general can use shed any light on whether with those thousands of other statutes and regulations there has been a practice of just limiting it to preemption otherwise state or a practice of looking for a gap so i think up to the start there is a default federal enclave rule and i and i by my friend is correct that you can customize on enclaves in different ways but the basic rule is pretty straightforward federal law is exclusive in the enclave with the exception of preexisting state law that is not in conflict with not inconsistent with federal law so i understand you and mr clement to have a little bit of a gap there because  preexisting civil state law does apply is that correct but i think that's that's the real big linen and on sure enclave of course you know the court as mr clement suggested doesn't need to confront that here because the one thing we know about the outer continental shelf is that there was no preexisting state law of a breed you have to confront it i think because after all there is a lot of preexisting state law in respect to many federal enclaves and so if the rule was no gap is necessary all we look to see is preemption then there was a vast amount of non preempted state law that federal enclaves had to accept as theirs namely all preexisting and so why would there be a different rule where the statute is different and the words don't require a gap they might why would you want to have though a different rule for subsequent state will i mean of course of it's law and to be very simple about it my question is if all non preempted state law that was preexisting applied to federal on claves what practical reason would there for having a different rule where the state law was passed subsequent to the territory becoming a federal employee i think it goes to the core nature of a federal enclave just prior and when the united states  takes exclusive jurisdiction that's the word that the that the constitution uses it displaces federal it displaces state authority but the preexisting rule is really sort of an emergency measure to as the court said in one of its cases make sure that there's not an area that has an absolute mess he says the secretary of the interior is the extent of the power as you see it do you agree with mr waxman that it's limited to just leasing or leases or do you think it's a broader power i think it's a little broader but i've rely on the same provision that my friend did which is thirteen thirty four and it's the next provision in the statute and it provides regulatory authority over leasing and it goes on to say also for to provide for the prevention of wast conservation of natural resources in the protective i'm protection of correlatives rights so that we do think is broad authority but i do think it would be hard to get to wage an hour law from there it is it is not although there were some versions of the statute that initially gave the interior secretary sort of general preemptive authority over the entire o c s that's not the statute that congress ultimately adopted and so we don't think although of course you don't think you need to get to the interior secretary's authority here but we don't think the interior secretary could preamp to wage an words how can the state be inconsistent with federal law if there's a total fellate in federal law so i agree with you that you know the the two words shed a lot white on each other and there may not be a huge gap so to speak between them but i do think there are some examples which set sights on that are briefs another example that i think has come up in this court's enclave cases is the general principle that when the federal government takes an enclave state law whatever else it does cannot interfere with the federal government's use for the purpose of the young clave so even if there was some gap in federal law and the state came along with a law that would say make it impossible or not even that bad interfere with the government's use of military base or a national park or something like that even in the absence of federal of a point federal law that it would still be in cases i guess i'm having a little bit of a hard time sorry just understanding that example and the ones in your brief are you saying that even if it's inconsistent with the federal law it can be inconsistent with sort of broad scale federal policy and that that's what the statute is looking towards i think it's both federal law is the most obvious example but the cases have also referred to federal policies so in consistency with either we think would be a reason not to assimilate thank you coun california labor code provisions at issue here are both applicable and not inconsistent with federal law ox live therefore incorporates them as federal law i'd like addition come to the one thing we know congress rejected that is direct application of state law instead is incorporated as federal law it's administered by federal officials yes we do know that it will however was a compromise and the compromise was between having state control over the law of the outer continental shelf and federal law but federal law did not in compas all of the legal relationships and matters that concern human endeavors and that's why what congress did was to incorporate state law as federal law with federal law having supremacy and the secretary having the authority to issue the appropriate regulations and if i could just start there the first sentence of section thirteen thirty four a and answer your question just the sort of my or reads as follows the secretary shall dot dot dot prescribe such rules and regulations as may be necessary to carry out such provisions i'm astonished that the other side thinks that that language isn't broad enough to displace any state rule that gets in the way of what the federal government deems to be necessary we know through practice that the e p a is regulating outer continental shelf era missions that are described by california and it is doing so pursuant to a memorandum of understanding there a memorandum of understanding between the secretary of interior and the coast guard  being enforced that happens every day in the national park service where national park rangers are enforcing hunting and fishing rules that are prescribed which is which federal agency is congress given preemptive authority with respect to the outer continental shelf the interior department so even in a question of labor law the interior department could issue regulations that their own force would preempt the california as yes and that's what thirteen thirty four a stands for and it is why and the way this is implemented the interior department has these memorandum of understanding with states and with other federal agencies in order to determine which laws are going to be applicable now notably this gap filling notion on the other side is expressly written into two statutes that we cite in our brief the assimilative crimes act and the civil rights attorneys fees awards act but congress didn't choose to use those words in the oxe law instead what congress did was to say that applicable and not inconsistent state law all i know is a distance and on the consistency point i understand what i understand it to be our basic rule in preemption analysis that something like this would generally not be inconsistent of the federal minimum wage is seven in the california is twelve you can comply with both by paying twelve but here what's distinctive is that it's not a different issue between federal and state law this is both a federal law under operation of oxley so if you ask the question what is the federal minimum wage it is inconsistent because in one case you would say well it's seven dollars under the federal if it was a but it's also but it's twelve dollars under the federal law that's incorporated from california it would doesn't that make a difference in how you apply that inconsistency point  you i thought you might say that well and let me refer you to want to your cases your honor it's the powell case and in that case the court had before it an application of the fair labor standards act minimum wage and  minimum wage that was set higher by virtue of another federal statute that applied to certain federal operations and this court held in powell that the higher standard applied and it did so by looking at the plain language of the savings cost and if i can refer to it it was presented in a consistency analysis that of the sort that you would apply it could have been in the normal preemption cases because it's two different sources of federal law whether that rather than federal or state no but  refer you to the savings clause plain language because again i think that the statute operates in our favor at nih a have been great grief the government has set forth a language and let me read it quote no provision of this chapter or any chapter or maximum workweek and so the way the savings falls works in the federal comparing federal law if there is a higher federal law if the savings clause says apply the higher federal law if there is a higher municipal word in answer a higher state law you apply the higher one that's what the savings clause provides and what the other side wants to do is to take one part of the fair labor standards act the part that says seven dollars and twenty five cents an hour and ignore the words the com right before that which read quote not less than and so how does that apply to this particular case it applies to this particular case because california has issued a wager orders that provide for a more generous minimum wage per hour standards as well as definition of what a workweek is and the point about the dispute was about the definition of a work week it is in part a depth of dispute about the definition of a work week and in part a definition of whether or not certain things that are done within that work week time spent for instance meal ounces how'd sleep time is calculated etc are within the word  limit and so to that extent your honor what we have in the fair labor standards act or some provisions that do speak to the question with the savings clause and some that do not speak at all for instance the labor department doesn't speak to issues of meal time allowances and how pay stubs are to be done to inform workers and what the department of labor has said in its regulatory guidance and we set this out i think it's at page eight of our brief is  that where there is silence in the f l a say a higher or more generous standard by the state shall prevail and our position is that what congress intended it obviously to do was to incorporate those as applicable and not inconsistent you if they did not happen i would need to cut it well that's correct but what we in the same way you're on earth that in powell this court determined that one federal statute provided for a higher minimum wage and what the f l s a did were were arguing which sovereign gets to determine the rules what we're saying is the content of those rules varies to pending on the source and here of the sort be just because the source if that happens to be california law doesn't affect things you asked earlier about enclaves in california and let me give you a different answer than the one my colleagues on the other side gave there is a district court just decision called corn do which we cite in our brief and we discuss that's a case in which the district court was looking at whether the fair labor standards act provisions for minimum wage predated the creation of sequoia national park and the  did a very extensive analysis to determine that in fact california as of nine hundred thirteen had established a minimum wage rule and it applied to this court's decisions and i'll talk about those in just a second to say that in fact the preexisting state law of minimum wage was bought into the sequoia national park when congress created that as a federal enclave and so i do think that the other side is not consistent with each other as to what the standards are and let me talk about justice we're going to that's an awful lot of weight to place on one publish this court decision well it was answering and the reason why the three cases that he cites are not apis it is because they're the state law came into existence after the creation of the federal long clave so the only case that's on point agrees with us and let me talk about the two cases from this court that actually give the standards justice kagan you were talking asking about the standards and there are two of them one of them is called chains stuart and the other is called paul all in the james stewart case what this court did was it took the personal injury that occurred in a federal enclave in new york where because there were no there because they were the adopted the general enclave principles it incorporated state standards with respect to what steel beams needed to be used in construction there the worker was injured because of a violation of the state's standard and what this court held was that that state standard had been incorporated into the federal enclave law and therefore the law of the united states i think was the phrase this court used so it was incorporated federal law even though the source of the standard in the substance of the standard derive from state law and that all happened prior to as the federal enclave was being created similarly in this court's decision in paul versus united states which was in the early sixty's decision there the court applied exactly the same notion which is that preexisting state law came into the law of the of your case is the definition of the work week and whether stand by ours should be incorporated california's treatment of them is subject to the minimum wage requirement savings the savings cause at least as i understand it and you can credit me if i'm wrong well it preserves the ability of states to raise the minimum wage it doesn't allow them to define the work week differently than federal law does so how do we deal with that why isn't your client's claim at least inconsistent with federal law well what the as the seventh circuit has held that in terms of determining what is a minimum wage you have to look at both the pay rate and what you are multiplying that pay rate by which is what constitutes a working you any working hour is what we are dealing with when we deal with situations like what is the worker under the control of the employer subject to the employer's callback or emergency etc and so the issue about the work week constitutes how you define what is a working hours do you agree that federal law and state law different how they define that i think they do defer except in so far department of labor's regulations still say is that there is a multi factor test for determining when a worker is under the control of the employer i understand that yes i guess my question is still federal law and its definition is different than isolated law is that right is that not right ike well i would say two things about it just of course which one is that the labor department's regulations give room for states to define what  law standard and we have a state law stated and there are different arguable yes and the savings clause doesn't speak to this particular issue right it speaks to what you multiply that by twelve dollars or so right but it doesn't deal with this issue so the savings cost can't help you with respect to this issue it seems to me you know what do we do about that well what the labor department has done is issued regulations in guidance where there is silence in the f l essay and what it says is where there are silence you incorporate or you deal with the state law and how the state law applies and it's different or not i have regulations in our brief i have a poor memory on this issue but didn't the court the little green men and to see whether there were actual inconsistency as with certain if your claims yes number one which were there and secondly how do you deal with mr cole then it's point that your view basically makes this identical the normal state conflict preemption what differences do you see in the two ok let me take the first why would your reading still result in a difference between normal the normal conflict preemption situation well let me start with the second one first then in this court's decision in kerala the court construed the words not inconsistent with and it said that they had the same content as normal conflict preemption is there a difference that would make it akin to conflict preemption and that was the statutory interpretation case our position is that the most coherent way to understand the words not inconsistent with is to apply the same standards that you have in the preemption kamin where you look at is it impossible to compliance and stand as an obstacle in the like but that means i would california then extends two hundred miles out to sea so and congress could have just said that and said california extends two hundred miles out to sea however within this part of california federal officials won't force the law so remember justice alito that  briefed for safety when he gets the bus down to the port to take the the vessel out to the but i think i don't think it's totally that's responsive to the question which is if if your position were correct  then ordinary preemption principles would apply and this a lot of this language would seem pointless well let me try to wrap it together in this way just as cavanagh which is that if you're looking at the substance of the law looking at whether bidders conflict and inconsistency the preemption cases give you an intellectual way to understand the substance of the act i'm not here to argue that california controls the outcome the federal government does and the secretary has the authority to issue regulations if the secretary perceives there to be a difference that would matter in the context of the outer continental shelf is that would you think the principal difference is because i have the same concern here this is an awful lot of stuff to go through if all that congress wanted to do was to essentially set up the regime that applies everywhere else and especially in light of the fact that congress seemed to have rejected  statute that said exactly that so so so what is the difference as you see it between this statute and and one that would just say you know here on the outer continental just as in california preemption principles apply well number one who decides that's a big difference in terms of what regulatory power is given to displace a state standard number two you have a decision and you talk about a compromise but let me give you the other part of the compromise which was that it was advocated to have federal admiralty law apply to the outer continental shelf in the court congress said no and where they came in the middle was to create oxley where they incorporated the state standards as federal law to be implemented in that manner but please keep in mind that the development of the our continental shelf is relationships with the state and that's why this court in houston said that the special relationship between the adjacent state to the oil rig is important why because that's where the worker is coming from that's where his lawyer can be expected to understand what the applicable standards are that's why if something happens to him he's going to know where to look for a legal redress and there are many oil rigs within the three mile limit and as this court held in via the lead there is overlapping coverage between state workers compensation and the  longshore harbor workers compensation act and it discussed a case called herb's welding which says that within the three mile limit state log completely and so what we're talking about oil is a very  fluid situation if you will between workers who might go to a request in the three mile limit and be governed exclusively by state law one shift come back onshore then go back out to a shift that would be on the outer continental shelf and the question is what legal regime is going to cover those people and that's why it's quite sensible why congress would have said substantively we think that the state law ought to apply but to the extent that the secretary  there to be in consistencies with the federal standard we're going to give the secretary the authority regulatory authority to displace that standard bigs sounds difficult argument both sides what's knowing it is the word applicable and the fist circuit has for fifty years in her previous two required gab and you heard the answer they gave to the question i asked which was  ninety seven percent of those involved in this are in the fifth circuit so slight they were yes i don't know if it's determined but i'm slightly worried about overturning a set of court of appeals decisions under which industry and labor and everyone have worked ninety seven percent of them for fifty years let me right now what i want you here what you have i do and i have a number of things to say just as brian i appreciate you raising this so that i can address them orally first the fifth circuit decided that gap standard in a case called continental oil which was a classic maritime law case there the vessel when and it collided into the offshore rig and the court was faced with the question what law applies and what the court said was maritime law applies because there is no gap there you know what happens with a marine casualty situ ation the admiralty law will govern that situation the same judge judge john r brown who's one of most distinguished admiralty law judges ever to serve in this court decided a case about twenty years or not in this court in the courts twenty years later decided a case called p l t now if you want to look at what reliance interests are you should look at that case not the continental oriel case because in pealed he judge brown suspicion for the fifth circuit did not use gap  rather he used a standard that is very much like what the ninth circuit did in this case moreover the standards that you would be worried about applying here are not likely to arise in the fifth circuit cases because state law has already made an affirmative determination not to apply their state laws to the outer continental shelf both louisiana and texas have by statute determined that their workers compensation is not going to apply to the outer continental shelf and their state labor laws will not apply to the outer continental shelf so to the extent that you perceive there to be a problem it would be unique in correcting the law in the fifth circuit i don't think you have to have a similar type of warre as the kind of case that we have here because neither texas nor louisiana have comparable state laws that seek to go above the federal floor in the f l s a now the word applicable i do think is it has meaning and the other side fluctuates between it being surplusage or a relevant or whatever but  i do want to point out that it's not just applicable state law that the federal that the secretary is administering it's also applicable federal law so if the word applicable really does mean a gap filling you strang to wonder how is it that the secretary is supposed to determine what applicable law is if you give an authoritative construction that the word applicable means scout filling because then you have a complete contradiction and you have read the statute in a very bizarre way because ordinarily what the secretary is doing is reading that word applicable federal law to decide is the clean air act apply it why doesn't not inconsistent with suggest gap filling in this context in my statute well for the reason that this court in powell explained why and also why this courting kara explained why not inconsistent with in its ordinary parlance would mean not incompatible with and incompatible is a word that is stronger than simply the creation of a void or a gap you would look at whether there is a conflict or inconsistency so if you're looking at the words i would say  ordinary parlance two different requirements are not consistent with one another well you look at whether or not the two requirements that may be different can be accommodated to each other and that's why in that sounds like a possibility no in the end carriage the court looked at the application of california's standards regarding pregnancy relief and discrimination and the federal standard for pregnancy and it to her meant that they were different but the fact that the california standard was more protective meant that it was not inconsistent with what the federal law was and so for that reason i think that case is the most closely on point to the actual words that we have to work with here and so rather than sort of conjure up some concepts that are not appropriate as the other side is trying to weave i think if you just read the statutes here the statutes by their plain language give you the answer well i think that not inconsistent is consist is can be interpreted either the way you interpret it or the way mr coleman interprets it where do i go from there well mr clement doesn't give a definition in his opening all right and also in his opposing only men the question so if i think that not inconsistent can mean in conflict with irreconcilable but also simply different in an important way where do i go from there well i think then you look at the source of the law that says supposedly different and here is where i think that the statute is best understood is if the word applicable focuses on the state law and the phrase no could give california in its public resources code has quite extensive rules concerning drilling and mining on land and one could well conclude that the word applicable could be used to say those standards don't apply to the marine environment of drilling offshore and so that would be an area of law that if you looked at it you might say those mining and drilling requirements would seem to be applicable and then if you thought a little harder about it and said you know actually it's quite a different environment it's hard a different situation you might say that in fact they are not applicable and i think that the the way you would judge the interplay of those standards through the non  consistent with is that if you then go to the text of the fair labor standards act and when it invites higher standards to be created by not just other state statutes or federal statutes but municipal is question if there are two different ways one could imagine interpret ing not inconsistent with why isn't the better answer to look at the overall context here which is justice kagan said the overall context is a clear preference a clear congressional choice to make federal law the primary and so that you would choose the interpretation of not inconsistent with that says different from so what what's your response to that well i think that this court prescribe regulations the fact that the secretary here has chosen not to issue rules that would displace california's more generous to worker provisions i think is indicative and you think that secretary clearly has that authority under that language that's under a plain reading of the statute just as cavanagh the secretary does have that and that's why i was quite surprised to hear the other side to school ain a regulatory authority that is written in such plain english i would like to point out one other thing which is that because in the states territorial limits we know that state law is going to apply what the other side's provision does is to create a condition for the kind of labor to saami that congress surely was trying to legislate against that labor disharmony would arise when every crew is assigned to an onshore or within state territorial waters rig as opposed to one that goes out on the outer continental shelf because the worker who's the side in state knows he is going to get the benefit of the california state rules and he's going to get the benefit of sta workers compensation whereas the worker who's assigned to a crew to go the outer continental shelf under their first in is going to be given lower protections and lower wages and so because congress is not know what happens now with both state workers compensation law and long shore harbor work apply and the worker can get the benefit of whichever one is more generous and that's why there is an offset provision in ninety three of the long shore harbor worker compensation act thank you thank you counsel mr clemente you have three minutes remaining thank you mr chief justice just a few points in rebuttal first of all my friend wants to draw something from the fact that there are no on point regulations addressing this by the secretary of the interior well the obvious two reasons why there are no regulations is that the united states government agrees with us on the interpretation of the statute and agrees with us and is doubtful on its authority to promulgated those regulations as to the specific issue of workman's comp the reason that that it can be state law can apply is because that's one of the places where congress has said specifically that state law can apply even on a federal enclave and that's forty u thirty one seventy two that's the kind of super rigs to question why is that if you know that i can get that aid for working you don't get paid for not working so if the federal law doesn't pay you well we're not working except on  little longshoreman's act why would state law apply because there's a specific federal statute that operates as a super savings clause specific to federal enclaves and that's what's missing in the f l let's say a few other points just to make my friend wants to say that you should interpret differently from the assimilated crimes act it seems to me the much better course is to say that oxley is trying to get at the same thing and trying to do gap filling if you don't adopt that rule then you're going to be saying that there's a greater role for state law criminal law on the outer continental shelf than on any other federal enclave and keep in mind that oxford joined civil and criminal law at the hip so the same regime on the outer continental shelf applies to criminal law and civil law and i to harmonize all of those federal statutes is to require gap filling in every instance also in thinking about this cape to keep in mind that the outer continental shelf is a super federal enclave in the sense that no other state was previously sovereign so you don't have the issues where you have to go back to one thousand thirteen and look at what the conditions the state might have put on the grant of land to the federal government none of that applies in the outer continental shelf my friend relies on powell and as of the two most  you don't have that situation here the second body of inconsistent law was the product of a sacramento labor commission it doesn't you don't apply that the same way is equally an apis it because here is just a plain old preemption case and the problem my friend on the other side has as has the courts pointed out is you just can't read the outer continental shelf lands act and conclude that the court that congress wanted these preemption principles to work the same way on shore as in the outer continental shelf it's a federal enclave all the law is federal law thank you thank you council the case is submitted