FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUISA VALLADOLID, 

Petitioner,

v.

No. 08-73862

PACIFIC OPERATIONS OFFSHORE,

 BRB No. 07-965 LLP; INSURANCE COMPANY OF THE

STATE OF PENNSYLVANIA; and OPINION

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

Respondents. 

On Petition for Review of an Order

of the Benefits Review Board

Argued and Submitted

March 9, 2010—San Francisco, California

Filed May 13, 2010

Before: Stephen Reinhardt and Jay S. Bybee, Circuit Judges,

and James V. Selna,* District Judge.

*The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation. 

6933
COUNSEL

Timothy K. Sprinkles, Law Office of Charles D. Naylor, San

Pedro, California, and Joshua T. Gillelan II, Longshore

Claimants’ National Law Center, Washington, DC, for the

petitioner.

6936 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
Michael W. Thomas, Laughlin, Falbo, Levy & Moresi LLP,

San Francisco, California, for the respondents.

OPINION

SELNA, District Judge:

In this case, we consider whether an employee must be

injured on the outer continental shelf to be eligible for workers’ compensation benefits under the Outer Continental Shelf

Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The two

other circuits that have considered this question have reached

conflicting conclusions.

I.

Decedent Juan Valladolid worked for Pacific Operations

Offshore as a roustabout, stationed primarily on one of Pacific

Operations’s two offshore drilling platforms. He was killed,

however, on the grounds of Pacific Operations’s onshore oilprocessing facility when he was crushed by a forklift. His

widow seeks workers’ compensation benefits under OCSLA

and the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. § 901 et seq.

Pacific Operations runs two offshore oil drilling platforms,

the Hogan and the Houchin, both located more than three

miles off the coast of California. Valladolid spent roughly

98% of his working time aboard the Hogan. As a roustabout,

his work primarily consisted of cleaning and maintenance

duties: picking up litter, emptying trash cans, washing decks,

painting, fixing equipment, and helping load and unload the

platform crane.

Valladolid also spent time working at Pacific Operations’s

onshore oil flocculation facility, located on the California

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6937
coast just 250-300 feet from the shore.1

 This facility, referred

to as La Conchita, received crude oil slurry from the Hogan

and the Houchin via pipeline. The slurry would then be processed, separating its oil, gas, water, and solid constituents,

with the oil and gas routed off site through pipelines to third

parties. Valladolid performed maintenance duties at La Conchita, including painting, sandblasting, weed-pulling, cleaning

drain-culverts, and operating a forklift.

Crew members traveled to and from the offshore platforms

on a crew boat departing from the Casitas Pass Pier, located

about three miles from La Conchita. The crew boat was also

used to ferry equipment and supplies and to remove scrap

metal—pieces of old pipe, storage tanks, catwalks, chain, and

cables—from the platforms. The scrap metal was ferried to

the Casitas Pass Pier, where it was loaded into trucks and

driven to La Conchita. There it was dumped at various spots

on the property. Neither the loading crew at the pier nor the

truck drivers were employed by Pacific Operations.

One of Valladolid’s duties at La Conchita was to “centralize” the scrap metal from the various locations so that thirdparty scrap metal vendors could pick the metal up and haul it

away. Valladolid would use a forklift to retrieve the scattered

metal and transport it to a central location. The consolidation

process was performed roughly once every two years. Valladolid was killed during this process when he was crushed by

a forklift.

Petitioner, Valladolid’s widow, received death benefits

under California’s workers’ compensation scheme. She also

filed a claim for benefits under the LHWCA, both directly

under the LHWCA and via the OCSLA extension to outer

1Pacific contends that the facility is actually 250-300 yards from the

ocean. Because our decision does not turn on the difference between 250-

300 feet and 250-300 yards, we assume for the purposes of this appeal that

Petitioner’s measure is correct. 

6938 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
continental shelf workers. After informal proceedings before

the local district director of the Department of Labor’s Office

of Workers’ Compensation Programs, the matter was referred

to an Administrative Law Judge (“ALJ”).

The ALJ denied Petitioner’s OCSLA claim on the grounds

that Valladolid’s injury had occurred outside the geographic

situs of the outer continental shelf. The ALJ denied the

LHWCA claim on two grounds: (1) Valladolid was not

engaged in maritime employment, and (2) he was not injured

on a maritime situs. The Benefits Review Board (“BRB”)

upheld the ALJ’s denial of the OCSLA benefits under the

“situs-of-injury” test, and affirmed the denial of LHWCA

benefits on the maritime situs ground. The BRB did not reach

the maritime employment issue.

II.

We have jurisdiction to review the final orders of the BRB

under 33 U.S.C. § 921(c). We review the BRB’s decisions for

errors of law and adherence to the substantial evidence standard. Pedroza v. BRB, 583 F.3d 1139, 1143 (9th Cir. 2009).

The BRB’s decisions on questions of law are reviewed de

novo. M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir.

2006). Because the BRB is not a policymaking body, its constructions of the LHWCA are not entitled to special deference. Dyer v. Cenex Harvest States Coop., 563 F.3d 1044,

1047 (9th Cir. 2009). However, the Court must “respect the

[BRB’s] interpretation of the statute where such interpretation

is reasonable and reflects the policy underlying the statute.”

Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049,

1052 (9th Cir. 2009) (quoting McDonald v. Dir., Office of

Workers’ Comp. Programs, 897 F.2d 1510, 1512 (9th Cir.

1990)).

III.

[1] The LHWCA provides compensation for the disability

or death of a maritime employee “if the disability or death

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6939
results from an injury occurring upon the navigable waters of

the United States.” 33 U.S.C. § 903(a). Under the OCSLA

workers’ compensation provision, LHWCA benefits are

extended to:

[the] disability or death of an employee resulting

from any injury occurring as the result of operations

conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or

transporting by pipeline the natural resources, or

involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf.

43 U.S.C. § 1333(b). The outer continental shelf is comprised

of “all submerged lands lying seaward and outside of the area

of lands beneath navigable waters”—that is, submerged lands

lying outside the territorial jurisdiction of the states. Id.

§ 1331(a); see id. § 1301(a)(2). State jurisdiction over offshore lands generally extends three miles from the coast line,

though in certain cases not relevant here, it may extend further. See id. § 1301(a)(2).

[2] Petitioner contends that the BRB impermissibly applied

a “situs-of-injury” requirement for OCSLA workers’ compensation, denying her claim because her husband was killed on

shore and not on the outer continental shelf. This is an issue

of first impression in the Ninth Circuit. Two other circuits

presented with this exact issue have reached conflicting conclusions.

In Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d

805 (3d Cir. 1988), the Third Circuit rejected the situs-ofinjury test and held that a claimant need only satisfy a “but

for” test in establishing that the injury occurred “as the result

of” operations on the outer continental shelf. Id. at 809-11.

Accordingly, an employee injured in a car accident on his

way to meet a helicopter that would take him to an offshore

6940 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
platform was eligible for OCSLA disability benefits. Id. at

806, 811.

However, in Mills v. Director, Office of Workers’ Compensation Programs, 877 F.2d 356 (5th Cir. 1989) (en banc), the

Fifth Circuit adopted a situs-of-injury requirement for

OCSLA claims. Under Mills, an OCSLA claimant must show

that the injury occurred on an outer continental shelf platform

or on the waters above the outer continental shelf, in addition

to satisfying the “but for” test. Id. at 362; see also Becker v.

Tidewater, Inc., 586 F.3d 358, 366-67 (5th Cir. 2009); Pickett

v. Petroleum Helicopters, Inc., 266 F.3d 366, 368 (5th Cir.

2001); Sisson v. Davis & Sons, Inc., 131 F.3d 555, 558 (5th

Cir. 1998). Thus, a welder injured during the onshore construction of a platform destined for the outer continental shelf

was not eligible for OCSLA disability benefits. Mills, 877

F.3d at 357, 362.

A.

Aside from the two conflicting Court of Appeals decisions,

there is little precedent on the question before us. The

Supreme Court touched on the question in passing in Offshore

Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986). The relevant

issue there was whether a choice-of-law provision in OCSLA,

43 U.S.C. § 1333(a)(2)(A), applied so as to allow the widows

of employees killed in a helicopter crash to pursue a wrongful

death action under state law. Id. at 209. Section 1333(a)(2)(A)

applies the law of the nearest state as surrogate federal law for

“the subsoil and seabed of the outer Continental Shelf, and

artificial islands and fixed structures erected thereon.” 43

U.S.C. § 1333(a)(2)(A). The Court declined to extend this

provision to an accident occurring on the waters above the

outer continental shelf, finding that “Congress determined that

the general scope of OCSLA’s coverage . . . would be determined principally by locale, not by the status of the individual

injured or killed.” Tallentire, 477 U.S. at 219. In an accompanying footnote, the Court added:

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6941
Only one provision of OCSLA superimposes a status

requirement on the otherwise determinative OCSLA

situs requirement; § 1333(b) makes compensation

for the death or injury of an “employee” resulting

from certain operations on the Outer Continental

Shelf payable under the Longshoremen’s and Harbor

Workers’ Compensation Act. We note that because

this case does not involve a suit by an injured

employee against his employer pursuant to

§ 1333(b), this provision has no bearing on this case.

Id. at 219 n.2.

Pacific Operations contends that this footnote is dispositive

of this case. We, on the other hand, agree with the Third Circuit that Tallentire is simply not on point. See Curtis, 849

F.2d at 810. Tallentire dealt with the applicability of the

§ 1333(a)(2)(A) choice-of-law provision, not the § 1333(b)

benefits provision, as explicitly noted by the Court. 477 U.S.

at 219 n.2 (“[Section 1333(b)] has no bearing on this case”).

The Court’s footnote about § 1333(b) is textbook dictum.

Of course, we treat the considered dicta of the Supreme

Court with greater weight and deference “as prophecy of what

that Court might hold.” United States v. Montero-Camargo,

208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (quoting

Zal v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992) (Noonan, J.,

concurring and dissenting)). They are not to be “blandly

shrug[ged] . . . off because they were not a holding.” Zal, 968

F.2d at 935 (Noonan, J., concurring and dissenting). We do

not blindly, however, follow an unconsidered statement simply because it was uttered by the Supreme Court. See

Montero-Camargo, 208 F.3d at 1132 n.17. As the Court itself

has noted, “general expressions, in every opinion, are to be

taken in connection with the case in which those expressions

are used. . . . [T]heir possible bearing on all other cases is seldom completely investigated.” Humphrey’s Executor v.

6942 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
United States, 295 U.S. 602, 627 (1935) (quoting Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821)).

For the following reasons, we are convinced that the footnote in Tallentire is of the unconsidered variety not entitled

to special deference. The § 1333(b) benefits issue was not

before the Court, was not briefed by the parties, and had no

relevance to the case before it. See Tallentire, 477 U.S. at 219

& n.2. There is no analysis or reasoning behind the Court’s

statement that a situs requirement applies to § 1333(b). See id.

These circumstances strip the dictum of any predictive or persuasive value. See District of Columbia v. Heller, 128 S. Ct.

2783, 2816 n.25 (2008).

Moreover, the import of the Court’s statement to the case

at hand is debatable. The Court spoke generally of an OCSLA

“situs” requirement, but it is not clear that the Court’s statement requires a “situs-of-injury,” as opposed to a “situs-ofoperations,” test. Section 1333(b) applies only to injuries

occurring “as the result of operations conducted on the outer

Continental Shelf.” 43 U.S.C. § 1333(b). Clearly, the operations must be on the outer continental shelf. See Herb’s Welding v. Gray (Herb’s Welding II), 766 F.2d 898, 900 (5th Cir.

1985) (holding that an injury occurring on an oil platform in

state waters is not eligible for OCSLA benefits). It is less

clear—and the Tallentire footnote does not illuminate the

issue—that the injury must also be on the outer continental

shelf.2

2The Mills court also found support for its situs-of-injury test in Herb’s

Welding, Inc. v. Gray (Herb’s Welding I), 470 U.S. 414 (1985). Mills, 877

F.2d at 361. The issue in Herb’s Welding I was whether a worker on a

platform in state waters was engaged in “maritime employment” so as to

entitle him to benefits under the LHWCA. 470 U.S. at 415-16. The Fifth

Circuit found significance in the Court’s passing comment that “the inconsistent coverage here results primarily from the explicit geographic limitation to [OCSLA’s] incorporation of the LHWCA. . . . [T]hat statute draws

a clear geographic boundary that will predictably result in workers moving

in and out of coverage.” Id. at 427. As with Tallentire, however, the scope

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6943
The Ninth Circuit cases cited by the parties are similarly

unhelpful. In Kaiser Steel Corp. v. Director, Office of Workers’ Compensation Programs, 812 F.2d 518 (9th Cir. 1986),

a pipefitter/welder was injured while working on an outer

continental shelf platform and sought benefits under OCSLA.

Id. at 520. The issue was whether he was an eligible “employee” even though his work was “primarily land based.” Id. at

521-22. This Court, finding him eligible for § 1333(b) benefits, stated that:

[i]n the absence of any other limitation on the face

of the statute or in the legislative history of

[OCSLA], section 1333(b) should be construed as

extending [LHWCA] coverage to all victims of disabling or fatal injuries sustained while working to

develop the mineral wealth of the OCS [outer continental shelf].

Id. at 522. This passage does not directly apply to the situs

issue, as it came within the context of whether the claimant

met the § 1333(b) “employee” requirement. Id. at 522-23.

In A-Z International v. Phillips, 179 F.3d 1187 (9th Cir.

1999), this Court reviewed a BRB decision vacating an ALJ’s

order recommending sanctions for a fraudulent OCSLA

claim. Id. at 1189. In the underlying case, the ALJ had found

the claimant ineligible for OCSLA benefits because, contrary

to his allegation, his injury did not occur on an offshore platform and he therefore failed to satisfy the situs-of-injury test.

Id. That decision was never appealed. Id. However, on review

of the subsequent sanctions order, this Court stated in a footnote accompanying the recitation of the facts:

of § 1333(b) was never considered, rendering this passage unhelpful on

the issue before us. In fact, the Court explicitly declined to consider

whether the worker was entitled to OCSLA benefits even though he had

argued the issue throughout the proceedings. Id. at 426 n.12. 

6944 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
The situs requirement is a predicate for coverage

under OCSLA. See 43 U.S.C. § 1333 (1994); see

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

207, 219 (1986) (noting that “Congress determined

that the general scope of OCSLA’s coverage . . .

would be determined principally by locale”).

Id. at 1189 n.1. We do not find this statement binding or especially persuasive, given that the situs issue was neither argued

by the parties nor considered by the Court because the claimant never appealed the decision on the situs question. Id. at

1189. The issue in A-Z International was a procedural question about an ALJ’s contempt power. Id. The comment on the

situs issue was gratuitous language appended to the statement

of facts and not a considered statement of the law.

B.

Absent clear precedent to guide us on the situs-of-injury

issue, we are presented with a straightforward question of

statutory construction. “The purpose of statutory construction

is to discern the intent of Congress in enacting a particular

statute.” Robinson v. United States, 586 F.3d 683, 686 (9th

Cir. 2009) (quoting United States v. Daas, 198 F.3d 1167,

1174 (9th Cir. 1999)). We first look to the plain language of

the statute, which controls “unless its application leads to

unreasonable or impracticable results.” Id. at 687 (quoting

Daas, 198 F.3d at 1174). The plain meaning is determined

with an eye towards the context of the language and design

of the statute as a whole. Id. “It is a cardinal canon of statutory construction that statutes should be interpreted harmoniously with their dominant legislative purpose.” United States

v. Gallenardo, 579 F.3d 1076, 1085 (9th Cir. 2009) (quoting

United States v. Nader, 542 F.3d 713, 720 (9th Cir. 2008)).

There are two distinct arguments that OCSLA’s language

supports a situs-of-injury requirement. The first argument—

the route taken by the Fifth Circuit in Mills—is that § 1333(b)

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6945
itself contains the situs-of-injury requirement. See 877 F.2d at

858-59. The second argument—advanced by Pacific

Operations—is that the situs requirement of § 1333(a) applies

to OCSLA as a whole. For the reasons discussed below, we

find neither argument persuasive and find the statute unambiguous in not requiring a situs-of-injury test.

[3] OCSLA was enacted in 1953 to establish federal jurisdiction over the submerged lands beyond the jurisdiction of

the states in order to promote the orderly exploitation of minerals lying below the seabed. See Rodrigue v. Aetna Cas. &

Sur. Co., 395 U.S. 352, 355-56 (1969); Outer Continental

Shelf Lands Act, Pub. L. No. 83-212, 67 Stat. 462, 462

(1953); S. Rep. No. 83-411, at 2 (1953). As part of this

endeavor, Congress needed to establish a body of substantive

law to cover the outer continental shelf. See Rodrigue, 395

U.S. at 355-56; S. Rep. No. 83-411, at 2. Section 4 of

OCSLA, codified at 43 U.S.C. § 1333, set forth the laws to be

applied. § 4, 67 Stat. at 462-63. For example, subsection (a)

establishes the substantive civil and criminal law applying to

the outer continental shelf, artificial islands, and platforms

fixed to the seabed. 43 U.S.C. § 1333(a). Subsection (c)

applies the National Labor Relations Act (“NLRA”) to “any

unfair labor practice . . . occurring upon any artificial island,

installation, or other device referred to in subsection (a).” Id.

§ 1333(c). Subsection (d) provides the Coast Guard with the

authority to promulgate regulations governing the safety

equipment, warning devices, and other safety matters on artificial islands and fixed platforms. Id. § 1333(d). Subsection

(e) extends the Army’s authority to prevent obstruction of the

navigable waters to fixed platforms on the outer continental

shelf. Id. § 1333(e).

[4] Section 1333(b) provides workers’ compensation benefits for “any injury occurring as the result of operations conducted on the outer Continental Shelf.” Id. § 1333(b)

(emphasis added). The situs-of-operations requirement is

clear; the operations must be conducted on the outer conti6946 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
nental shelf. However, the only limitation on the injury is that

it be “the result of” operations on the outer continental shelf.

As many courts have recognized, the phrase “as the result of”

simply denotes causation. See, e.g., Brown v. Gardner, 513

U.S. 115, 119 (1994) (“as a result of” in veterans’ benefits

statute indicates causation with no fault requirement);

Murakami v. United States, 398 F.3d 1342, 1351-52 (Fed. Cir.

2005) (“as a result of” in federal claims statute indicates causation with no temporal limitation); Black Hills Aviation, Inc.

v. United States, 34 F.3d 968, 975 (10th Cir. 1994) (“as a

result of” in Department of Defense regulation means “caused

by” rather than “connected with”). Thus, the most natural

reading of § 1333(b) provides coverage for any injury caused

by outer continental shelf operations regardless of where the

injury occurred.

The Mills court found ambiguity in § 1333(b) by focusing

on the word “operations.” According to Mills, because the

operations must occur on the outer continental shelf, the

injury must also occur on the outer continental shelf: “activity

conducted off the OCS, even though related to OCS mineral

extraction, does not satisfy § 1333(b).” 877 F.2d at 359. However, this interpretation fails to acknowledge the connecting

phrase “as the result of.” The results of an operation may regularly extend beyond its immediate physical location. When

a pitcher hits a batter with a pitch, the batter’s injury is the

result of “operations” on the mound. The Fifth Circuit’s

attempt to unearth ambiguity in § 1333(b) by ignoring a key

phrase does not persuade us.3

3Our position finds support in Murakami, a Federal Circuit decision

interpreting similar language in a reparations statute. Murakami involved

a claim under the Civil Liberties Act of 1988, which provided a redress

payment for individuals who were “deprived of liberty or property as a

result of” the internment of Japanese-Americans during World War II. 398

F.3d at 1344 (emphasis added); 50 U.S.C. app. § 1989b-7(2). The claimant

challenged a regulation categorically denying payments to individuals

born after the restraints on travel were lifted. Murakami, 398 F.3d at 1347-

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6947
Neither are we persuaded that the situs limitations in the

other provisions of § 1333 indicate a situs-of-injury requirement for subsection (b). The Mills majority felt that these limitations reflected a Congressional intent to limit the reach of

the statute to occurrences on the outer continental shelf as part

of a “gap-filling” purpose. 877 F.3d at 359-60. We, however,

find the Mills dissent to be more persuasive: the absence of

a situs-of-injury requirement in subsection (b), in light of the

explicit limitations in the other subsections, reflects an intent

not to limit that subsection in the same manner. Id. at 362

(Duhe, J., dissenting). The different treatment of subsection

(b) is quite clear, given that it is the only subsection not to

incorporate the situs definition of subsection (a). See 43

U.S.C. § 1333. This distinction ought to be given effect.

Moreover, a comparison of the language of the different

provisions strongly implies that subsection (b)’s coverage

extends beyond the outer continental shelf. Subsection (c)

applies the NLRA to unfair labor practices “occurring upon

any artificial island, installation, or other [fixed platform],” id.

§ 1333(c), while subsection (b) provides coverage for injuries

“occurring as the result of operations conducted on the outer

Continental Shelf,” id. § 1333(b) (emphasis added). Congress

had the ability to craft a situs-of-injury requirement—and did

so within the very same section of the statute—yet left it out

of subsection (b). See also Longshore & Harbor Workers’

Compensation Act, 33 U.S.C. § 903(a) (limiting coverage to

injuries “occurring upon the navigable waters of the United

States” (emphasis added)). We should not read one in.

48. The Federal Circuit rejected this categorical exclusion, noting that the

result of the travel restrictions could, in certain cases, extend beyond the

date of their repeal. Id. at 1352-53. Murakami teaches that “as a result of”

contains no temporal limitation; likewise, in this case, we see no reason

to import a spatial one. If travel restrictions can cause an injury after their

repeal, similar logic supports the view that operations on the outer continental shelf can cause injury outside the outer continental shelf. 

6948 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
[5] Accordingly, we find that the language of § 1333(b) is

unambiguous in not including a situs-of-injury requirement.

Indeed, our interpretation of § 1333(b) is confirmed by a Fifth

Circuit decision, Demette v. Falcon Drilling Co., Inc., 280

F.3d 492, 500 (5th Cir. 2002), overruled on other grounds,

Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d

778 (5th Cir. 2009) (en banc), subsequent to Mills. Demette

held that “section 1333(b) contains only a status requirement.” Id. at 500 n.29. According to Demette, the situs-ofinjury requirement derives from § 1333(a)(1), which “creates

a ‘situs’ requirement for the application of other sections of

the OCSLA, including sections 1333(a)(2) and 1333(b).” Id.

at 496. As Demette explains, “[i]n order for the LHWCA to

apply by virtue of section 1333(b), . . . the injured worker

must satisfy the ‘status’ requirement of section 1333(b) as

well as the situs requirement of section 1333(a)(1).” Id. at

498. This is, however, a misstatement of Mills’s holding,

which clearly finds a situs-of-injury requirement in the language of § 1333(b).4 Mills, 877 F.2d at 362. This disagreement among Fifth Circuit panels underscores the extent to

which Mills departed from the plain language of § 1333(b)

and confirms what we find fairly obvious—a situs-of-injury

test is unambiguously absent from § 1333(b).

The legislative history does not indicate otherwise. The

Mills court interpreted § 1333 as a “gap-filler,” solely

intended to fill a void in substantive law due to the fact that

the outer continental shelf lies beyond state jurisdiction. See

Mills, 877 F.2d at 358. Therefore, Mills reasoned, no provision of OCSLA was intended to apply outside that situs. The

4

In fact, Demette’s interpretation of Mills would put that decision in

direct conflict with the Supreme Court’s decision in Tallentire. In an effort

to avoid overruling its own precedent applying OCSLA to helicopter

crashes on the waters above the outer continental shelf, Mills defined

§ 1333(b) as applying to “injury or death on an OCS platform or the

waters above the OCS.” 877 F.2d at 362. Tallentire, however, expressly

held that § 1333(a) does not apply to the waters above the outer continental shelf. 477 U.S. at 219. Had Mills pulled its situs-of-injury test from

§ 1333(a), its holding would be inconsistent with Tallentire. 

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6949
opinion cited a statement during debate on the floor of the

Senate that “[OCSLA] is legislatively joined with the Submerged Lands Act . . . . [T]he Submerged Lands Act deals

with lands within State boundaries, while this bill [OCSLA]

concerns itself with the areas seaward of such boundaries.” Id.

at 359 n.6 (quoting 99 Cong. Rec. 6962 (daily ed. June 22,

1953) (statement of Sen. Cordon)). The House Conference

Report also notes that under OCSLA “certain Federal laws are

made applicable to the [outer continental shelf] area such as

the [LHWCA].” H.R. Rep. No. 83-1031, at 12 (1953) (Conf.

Rep.) (emphasis added).

[6] However, certain legislative history cuts against the

gap-filing interpretation of § 1333(b). In particular, a provision allowing benefits only “if recovery for such disability or

death through workmen’s compensation proceedings is not

provided by State law,” was deleted from the original version

of Section 4(c), which became § 1333(b). S. Rep. No. 83-411,

at 16 (1953). The Senate committee explained that “[i]t was

deemed inadvisable to have the [LHWCA] apply only if there

is no applicable State law. By this amendment, all workers on

the outer shelf not already protected under laws respecting

seamen are protected by the [LHWCA].” Id. at 23. The deletion of this anti-overlap provision gives a clear indication that

Congress intended to provide LHWCA coverage regardless of

the applicability of state law, seriously undercutting the conception of § 1333(b) as a gap-filler.5

5Mills attempts to explain away the deletion, arguing that it “indicates

that, at most, Congress was prepared to tolerate overlapping federal and

state workers’ compensation coverage on the OCS itself. But the proviso’s

deletion does not justify overlapping coverage for employees whose feet

are planted firmly on state soil.” Mills, 877 F.2d at 360. The Fifth Circuit

essentially concedes that § 1333(b) was not intended to be a gap-filler. Its

summary assertion that Congress was only willing to “tolerate” overlapping coverage on the outer continental shelf and nowhere else is supported

by no more than general statements by individual legislators that OCSLA

“concerns itself” with the outer continental shelf. 

6950 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
This makes sense, given that at the time of OCSLA’s enactment the workers’ compensation laws of most relevant states

provided coverage for injuries occurring outside state jurisdiction if the employment contract was made within the state.

See, e.g., Ohlhausen v. Sternberg Dredging Co., 218 La. 677,

680-81 (1951) (applying Louisiana workers’ compensation

statute to injury occurring in Arkansas); Maryland Cas. Co.

v. Brown, 131 Tex. 404, 406, 408 (1938) (holding that “an

injury ‘outside the state’ [of Texas] is compensable, regardless of where it may occur” and noting that “practically every

state in the Union has made provision for extension of the

benefits of compensation laws to employees injured ‘outside

the state’ ”); Alaska Packers’ Ass’n v. Indus. Accident

Comm’n of Cal., 1 Cal. 2d 250, 257-58 (1934) (holding that

California workers’ compensation law may apply to injury

sustained in Alaska). Because most state workers’ compensation laws applied extraterritorially at the time, there was generally no gap to fill.

Finally, Mills points to an exchange among senators during

the committee hearings where the senators concluded that a

worker on a platform above state waters would be covered by

state workers’ compensation laws even if the drilling slanted

into the outer continental shelf. Outer Continental Shelf:

Hearings on S. 1901 Before the Comm. on Interior and Insular Affairs, 83d Cong. 15-16 (1953) (“OCS Comm. Hearings”). The Mills majority relied on this exchange as evidence

of intent that the site of the injury would control coverage.

877 F.2d at 359. The reliance is unwarranted for two reasons.

First, the senators were debating the early version of the bill

that contained the anti-overlap provision that was later

deleted. See OCS Comm. Hearings, supra, at 29-30. At that

time, the issue of whether state law applied was quite significant as it would preclude OCSLA coverage. But the exchange

loses its significance in light of the subsequent deletion of the

anti-overlap provision.6

6

In any case, the senators only concluded that state law applied on state

soil and never considered whether LHWCA benefits might also apply. See

id. at 15-16; Mills, 877 F.2d at 363 (Duhe, J., dissenting). 

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6951
Second, the exchange came during the discussion of Section 4(a) of the bill, the federal jurisdiction and choice-of-law

provision later codified at § 1333(a). Id. at 8-16. The committee was not yet considering the text of Section 4(c), the workers’ compensation provision. See id. at 29. The slant-drilling

hypothetical was part of a discussion about the applicability

of substantive law in general. See id. at 13-17. Workers’ compensation was simply an example used, along with marriage

and domestic laws, to illustrate the bounds of the choice-oflaw provision. See id. The usefulness of this exchange in relation to the actual text of Section 4(c) is minimal.

Considered as a whole, the legislative history is inconclusive on the situs issue, other than establishing that § 1333(b)

was not intended to simply fill a gap in workers’ compensation law. There is certainly nothing clear enough to persuade

us that our reading of the statute is incorrect.

[7] Nor are we persuaded that policy considerations compel the addition of a situs-of-injury requirement. Pacific Operations points out the supposed absurdity of workers receiving

extra coverage on shore because they “fortuitously” work to

further outer continental shelf operations. Pacific Operations

also complains about the burden on employers having to purchase coverage under both state and federal schemes.

First, Congress clearly contemplated overlapping coverage

with the deletion of the anti-overlap provision in § 1333(b)

and has enacted overlapping coverage in other related contexts. See 33 U.S.C. § 903(a) (applying LHWCA coverage to

shoreside activities); Sun Ship, Inc. v. Pennsylvania, 447 U.S.

715, 719-20 (1980). Second, the supposed absurdity in coverage is a natural consequence of line-drawing, which is Congress’s decision, not ours. Coverage is just as absurd under

the line drawn by Mills: an employee is covered for a helicopter crash 3.1 miles from shore, but not 2.9 miles, even though

the activity and risk is identical. Finally, Congress may have

had good reason to apply uniform coverage across the full

6952 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
range of activities of an outer continental shelf worker—

including work on a platform, in transit to and from a platform, on pipelines between platforms and shore, or at onshore

facilities crucial to the mineral extraction process—so that a

worker does not step in and out of coverage.

[8] In any case, it is not necessary to speculate about policy, as the language of § 1333(b) is clear in not containing a

situs-of-injury requirement. “[I]f Congress’ coverage decisions are mistaken as a matter of policy, it is for Congress to

change them. We should not legislate for them.” Herb’s

Welding I, 470 U.S. at 427. Because the language is unambiguous and the legislative history and policy considerations do

not compel a contrary result, we find that § 1333(b) does not

contain a situs-of-injury requirement.

C.

Pacific Operations presents a different argument, contending that § 1333(a) sets forth a situs requirement that is

intended to apply to all of § 1333, including subsection (b).

This is a novel argument; it has no support in either Mills, the

Fifth Circuit decision, or Curtis, the Third Circuit decision.

The only case supporting the proposition is Demette, the Fifth

Circuit decision that misstates Mills’s holding.

[9] Section 1333(a)(1) provides that:

The Constitution and laws and civil and political

jurisdiction of the United States are extended to the

subsoil and seabed of the outer Continental Shelf and

to all artificial islands, and all installations and other

devices permanently or temporarily attached to the

seabed, . . . to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State.

[10] 43 U.S.C. § 1333(a)(1). This subsection simply provides

for federal law and jurisdiction over the situs. Nothing in the

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6953
language purports to limit the applicability of the Constitution, federal laws, or jurisdiction to the outer continental shelf,

nor is there anything applying the subsection (a)(1) situs to

any other parts of § 1333.

Section 1333(a)(2) does not provide a basis for an overarching situs requirement either. It states that:

the civil and criminal laws of each adjacent State . . .

are declared to be the law of the United States for

that portion of the subsoil and seabed of the outer

Continental Shelf, 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 outer Continental

Shelf.

Id. § 1333(a)(2)(A). Again, nothing purports to limit state law

to the subsection (a) situs, nor to apply that situs to the other

§ 1333 subsections.

This is consistent with the structure of § 1333. Each subsection has its own situs definition, some broader and some

narrower than subsection (a)’s. For example, the subsection

(c) situs is narrower, applying the NLRA to unfair labor practices “occurring upon any artificial island, installation, or

other device referred to in subsection (a),” but not to occurrences on the subsoil or seabed. Id. § 1333(c). The subsection

(d) situs is broader, allowing Coast Guard safety regulations

for “the artificial islands, installations, and other devices

referred to in subsection (a) of this section or on the waters

adjacent thereto.” Id. § 1333(d) (emphasis added). As the

Supreme Court held in Tallentire, § 1333(a) does not apply to

the waters above the outer continental shelf. 477 U.S. at 219.

If subsection (a) was intended to be a strict situs requirement

for the entire statute, there would be no need for individualized situs tests for each subsection, much less ones that are

inconsistent with subsection (a).

6954 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
Moreover, each subsection expressly incorporates a portion

of the subsection (a) situs in their own situs definitions—with

the significant exception of subsection (b), the workers’ compensation provision. If subsection (a) applied to all other provisions by its own terms, there would be no need for those

provisions to independently incorporate parts of it. And

because subsection (a) is referenced in each subsection except

subsection (b), the obvious conclusion is that subsection (b)

was not intended to be limited by subsection (a).

The legislative history of § 1333 also conclusively demonstrates that subsection (a) was not intended to limit the other

provisions. Subsection (b) was originally a jurisdictional provision, providing federal courts with “original jurisdiction of

cases and controversies arising out of or in connection with

any operations conducted on the outer Continental Shelf.”

Pub. L. No. 83-212, § 4(b), 67 Stat. 462, 463 (1953) (emphasis added). This was clearly meant to encompass more than

just occurrences on the subsection (a) situs.7

The theory that subsection (a) provides a situs requirement

applicable to all of § 1333 is simply inconsistent with its plain

language, statutory structure, and legislative history. Subsection (a) merely extends federal jurisdiction and federal and

state law to the outer continental shelf. It has no applicability

beyond that purpose, other than to provide a situs definition

that several other provisions expressly incorporate. Because

subsection (b) does not incorporate (a), that provision has no

bearing on our analysis.

[11] We hold that § 1333(b) may apply to injuries occur7When the statute was amended in 1978 to merge subsection (b) with

the workers’ compensation provision in subsection (c), the House Conference Report stated that “this amendment involves no change in existing

law. It was not the intent . . . to alter in any way the existing coverage of

the [LHWCA].” H.R. Rep. 95-1474, at 81 (1978) (Conf. Rep.), reprinted

in 1978 U.S.C.C.A.N. 1674, 1680. 

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6955
ring outside the situs of the outer continental shelf, so long as

they occur “as the result of operations conducted on the outer

continental shelf.”

D.

We do not, however, find that Congress intended to enact

a simple “but for” test in covering injuries that occur “as the

result of” outer continental shelf operations. Injuries with a

tenuous connection to the outer continental shelf are not covered. Cf. Black Hills Aviation, 34 F.3d at 975 (“as a result of”

requires more than just a “connection with”). Thus, we do not

agree with, and decline to adopt, the Third Circuit’s decision

in Curtis to the extent that it requires only a “but for” test of

causation. See 849 F.2d at 811.

[12] Instead, we adopt the following test: the claimant

must establish a substantial nexus between the injury and

extractive operations on the shelf. To meet the standard, the

claimant must show that the work performed directly furthers

outer continental shelf operations and is in the regular course

of such operations. An injury sustained during employment

on the outer continental shelf itself would, by definition, meet

this standard. However, an accountant’s workplace injury

would not be covered even if related to outer continental shelf

operations, while a roustabout’s injury in a helicopter en route

to the outer continental shelf likely would be. We leave more

precise line-drawing to the specific factual circumstances of

later cases.

This is consistent with the pre-Mills Fifth Circuit interpretation of § 1333(b), which we endorse. Prior to Mills, the Fifth

Circuit had long held that § 1333(b) applied to injuries occurring outside the outer continental shelf. See Nations v. Morris,

483 F.2d 577 (5th Cir. 1973) (“OCSLA, in its incorporation

of [the LHWCA], did not speak in terms of injuries occurring

on such platforms so as to distinguish them from those off the

platforms . . . Obviously Congress purposefully established a

6956 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
system that would apply without regard to physical location.”). However, it required a more direct connection than

simple “but for” causation. In Herb’s Welding II, the Fifth

Circuit denied OCSLA benefits to a welder working on a platform in state waters, even though it was connected by pipeline

to platforms on the outer continental shelf, upon which the

welder spent approximately 25% of his time. 766 F.2d at 899-

900. The court reasoned that the accident would have

occurred regardless of whether the employer had the outer

continental shelf rigs. Id. at 900. It contrasted helicopter crash

cases where the employee’s “work had furthered the operations of a fixed rig on the shelf and was in the regular course

of extractive operations on the shelf.” Id.

In Mills v. Director, Office of Workers’ Compensation Programs, 846 F.2d 1013 (5th Cir. 1988), rev’d en banc, 877

F.2d 356 (5th Cir. 1989), the three-judge panel decision later

reversed by the Mills en banc panel, the court clarified the

scope of the then-prevailing “but for” test in the Fifth Circuit:

Our decision does not extend LHWCA coverage to

those whose connection with operations on the Shelf

is tenuous. Workers like [the welder in Herb’s Welding II] whose work is only indirectly connected with

the Shelf will still not be covered. The ‘but for’ test

this Circuit has adopted is not the simple ‘causa sine

qua non’ test of tort law, but includes the requirement that the claimant show a nexus between the

work being done and operations on the shelf similar

to the proximate cause test in tort law; it requires that

the work “further[s] the operation of a fixed rig on

the shelf and [is] in the regular course of extractive

operations on the shelf.” 

Id. at 1015 (quoting Herb’s Welding II, 766 F.2d at 900)

(footnote omitted). Applying this test, the court held that a

welder injured during the onshore construction of a platform

destined for the outer continental shelf was covered by

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6957
OCSLA. Id. This holding was, of course, reversed by the Fifth

Circuit en banc panel in a 9-5 vote. Mills, 877 F.2d at 357.

[13] In this case, the BRB affirmed the dismissal of Petitioner’s OCSLA claim because Valladolid’s injury did not

satisfy the Mills situs-of-injury test. Because we decline to

adopt that test, we remand the OCSLA question to the BRB

for further consideration consistent with this opinion.

IV.

[14] We next consider whether the BRB erred in denying

benefits under the LHWCA. Under 33 U.S.C. § 903(a):

compensation shall be payable under this chapter in

respect of disability or death of an employee, but

only if the disability or death results from an injury

occurring upon the navigable waters of the United

States (including any adjoining pier, wharf, dry

dock, terminal, building way, marine railway, or

other adjoining area customarily used by an

employer in loading, unloading, repairing, dismantling, or building a vessel).

A LHWCA “employee” is “any person engaged in maritime

employment.” Id. § 902(3). Thus, a claimant seeking workers’

compensation under the LHWCA must establish both a maritime situs and a maritime status. Herb’s Welding I, 470 U.S.

at 415-16; Peru v. Sharpshooter Spectrum Venture LLC, 493

F.3d 1058, 1061 (9th Cir. 2007).

Petitioner contends that the BRB erred in affirming the

ALJ’s determination that the onshore La Conchita facility,

where Valladolid was killed, was not a maritime situs. Petitioner does not contest the ALJ’s factual findings regarding

the facility, but argues that the BRB should have reversed the

ALJ on the legal question of whether La Conchita qualifies as

an “adjoining area customarily used by an employer in load6958 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
ing [or] unloading . . . a vessel.” Id. § 903(a). We reject Petitioner’s position and affirm the BRB.

We use a “functional relationship” test in determining

whether a particular facility is a § 903(a) “adjoining area.”

Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141

(9th Cir. 1978). We consider, among other factors:

the particular suitability of the site for the maritime

uses referred to in the statute; whether adjoining

properties are devoted primarily to uses in maritime

commerce; the proximity of the site to the waterway;

and whether the site is as close to the waterway as

is feasible given all of the circumstances in the case.

Id. Although physical congruity with navigable water is not

required, the facility must be “used as an integral part of longshoring operations.” Id.

[15] Applying the Herron factors, we agree with the BRB

that La Conchita is not a maritime situs. Although the facility

is only 250-300 feet from the ocean, it is separated from the

water by a highway and railroad tracks and has no direct

access to any pier, dock, or other loading facility. See

Motoviloff v. Dir., Office of Workers’ Comp. Programs, 692

F.2d 87, 89 (9th Cir. 1982). The closest pier used by Pacific

Operations is the Casitas Pass Pier, roughly three miles away.

There are no adjoining properties engaged in maritime commerce.

Petitioner argues that La Conchita should be considered a

“transshipment” facility because scrap metal from the offshore platforms was dumped there before being sold to third

parties. Petitioner analogizes to P.C. Pfeiffer Co. v. Ford, 444

U.S. 69 (1979), where the Supreme Court held that two warehousemen, who handled cargo within a port but were not permitted to move cargo directly from or onto a vessel, were

LHWCA “employees.” Id. at 71, 83. The Court held that the

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6959
warehousemen “were engaged in maritime employment

because they were engaged in intermediate steps of moving

cargo between ship and land transportation.” Id. at 82-83.

We find the analogy unpersuasive. First of all, Pfeiffer

never addressed the situs requirement because the injuries

occurred on a dock and a pier, which are indisputably maritime situs. Second, the handling of scrap metal at La Conchita

did not involve “moving cargo directly from ship to land

transportation.” Id. The scrap metal was unloaded at the pier

by third-party longshoremen, loaded into trucks driven by

third-party drivers, and driven three miles to La Conchita,

where it was dumped and would wait for up to two years

before being hauled away by third-party dealers. The maritime activities—the movement of cargo “directly from ship to

land transportation”—began and ended at the Casitas Pass

Pier. Finally, La Conchita is simply not an “adjoining area”

within the meaning of § 903(a). It is three miles from the pier

and not adjacent to any maritime facilities.

The record demonstrates that the primary purpose of the

facility—and the only reason for its proximity to the coastline

—is to receive and process crude oil slurry extracted by the

offshore platforms, a non-maritime activity. Herb’s Welding

I, 470 U.S. at 422-24. Its use as a convenient dumping ground

for scrap metal from the platforms does not convert it into a

maritime situs.

[16] Accordingly, we affirm the BRB’s denial of benefits

under the LHWCA. Because Valladolid’s injury does not satisfy the situs requirement, and because the BRB did not reach

the status issue, we do not address whether Valladolid was a

maritime employee. Williams v. Dir., Office of Workers’

Comp. Programs, 825 F.2d 246, 247 (9th Cir. 1987); Hurston

v. Dir., Office of Workers’ Comp. Programs, 989 F.2d 1547,

1548 n.3 (9th Cir. 1993).

6960 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
V.

We hold that the OCSLA workers’ compensation provision, 43 U.S.C. § 1333(b), applies to any injury resulting from

operations on the outer continental shelf, regardless of the

location of the injury. An injury is “the result of” outer continental shelf operations if there is a substantial nexus between

the injury and the operations. We therefore reject the situs-ofinjury test adopted by the BRB, and remand for further considerations consistent with this opinion.

We also hold that the BRB did not err in finding that La

Conchita was not a maritime situs. Accordingly, we affirm the

denial of workers’ compensation benefits under the LHWCA.

Each side shall bear its owns costs.

GRANTED in part, DENIED in part, and REMANDED.

VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6961