                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 NOBLE ENERGY, INC.,
     Plaintiff
     v.                                                   Civil Action No. 14-898 (CKK)
 SALLLY JEWELL, et al.,
      Defendants

                                 MEMORANDUM OPINION
                                     (June 8, 2015)

       Plaintiff Noble Energy, Inc., challenges an order from the United States Department of

the Interior Bureau of Safety and Environmental Enforcement (“BSEE” or the “agency”)

requiring it to permanently plug an offshore well, Well OCS-P 0320, No. 2, including related

decommissioning activity. BSEE asserts the authority to require Noble Energy to plug the well

under its decommissioning regulations, found at 30 C.F.R. §§ 250.1700-1754, issued pursuant to

the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. Noble Energy argues that when

its contractual obligations were discharged—under the common law doctrine of discharge—its

obligations under the regulations were discharged as well. As explained further below, in the

April 9, 2014, Order under review—on remand as a result of an action challenging a previous

order of the agency—BSEE concluded that the decommissioning regulations do not incorporate

the common law doctrine of discharge and, therefore, the regulations require Noble Energy to

fulfill the decommissioning obligations. Ultimately, the question for the Court is whether the

agency’s interpretation of the decommissioning regulations is reasonable. If it is, then Noble

Energy’s challenge fails. Presently before the Court are Plaintiff Noble Energy, Inc.’s [19]

Motion for Summary Judgment and Defendants’ [21] Cross-Motion for Summary Judgment.




                                                 1
Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole,

the Court GRANTS Defendants’ [21] Cross-Motion for Summary Judgment and DENIES

Plaintiff’s [19] Motion for Summary Judgment. The Court concludes that the agency’s

interpretation of its decommissioning regulations is reasonable and, therefore, the Court upholds

the challenged order. This case is dismissed in its entirety.

                                        I. BACKGROUND

       The factual and regulatory background to this case were previously recited at length in

Noble Energy, Inc. v. Salazar (“Noble I”), 770 F. Supp. 2d 322 (D.D.C. 2011), and Noble Energy,

Inc. v. Salazar (“Noble II”), 671 F.3d 1241 (D.C. Cir. 2012). The Court recites here only the

background essential to the Court’s resolution of the currently pending motions. The Court

reserves further presentation of the facts for the issues discussed below.

       Pursuant to a lease acquired in 1979, Noble Energy 2 drilled an exploratory oil well, Well

OCS-P 320, No. 2, off the coast of California. Noble II, 671 F.3d at 1242. Following a common

practice, Noble Energy temporarily plugged and abandoned the well in 1985 after discovering oil

and gas through its exploratory activities. Id. The well remains temporarily plugged and

abandoned today, and the question in this case is whether BSEE can require Noble Energy to


1
  The Court’s consideration has focused on the following documents:
    • Pl. Noble Energy, Inc.’s Motion for Summary Judgment (“Pl.’s Mot.”), ECF No. 19;
    • Defs.’ Resp. in Opp’n to Pl.’s Mot. for Summary Judgment and Cross-Mot. for Summary
        Judgment (“Defs.’ Opp’n & Cross-Mot.”), ECF No. 20;
    • Pl.’s Combined Reply in Supp. of its Mot. for Summary Judgment and Opp’n to Defs.’
        Cross-Mot. for Summary Judgment (“Pl.’s Reply & Cross-Opp’n”), ECF No. 22; and
    • Defs.’ Reply in Support of their Cross-Mot. for Summary Judgment (“Defs.’ Cross-
        Reply”), ECF No. 24.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
  For the sake of simplicity and clarity, the Court refers to Noble Energy and all of its
predecessors in interest as “Noble Energy.”

                                                  2
permanently plug that well. See id. Beginning at that time, Noble Energy received multiple

suspensions of the lease. In 1999, Noble Energy received a four-year suspension, which

ultimately became the final suspension of the lease. This lease suspension was revoked as a

result of the determination by a court in the Northern District of California that the suspension

“had not been assessed for consistency with California’s coastal management plan” as required

by the 1990 amendments to the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. Id. at

1243; see also California ex rel. Cal. Coastal Comm’n v. Norton, 150 F. Supp. 2d 1046, 1053,

1057 (N.D. Cal. 2001), affirmed 311 F.3d 1162, 1173 (9th Cir. 2002). Subsequently, the Court of

Appeals for the Federal Circuit affirmed a determination by the Court of Federal Claims that “the

government had effectively ‘repudiated the lease agreements by putting into practice the new

[court-mandated] rules applicable to the availability of requested suspensions.’” Noble II, 671

F.3d at 1243 (quoting Amber Res. Co. v. United States, 538 F.3d 1358, 1370 (Fed. Cir. 2008))

(alteration in original). Noble Energy and other lessees, together, received $1.1 billion in

restitution. Id. In addition, pursuant to the common law of discharge, 3 Noble Energy (along with

the other lessees) was discharged from all of the obligations arising from its lease, including the

obligation to “remove all devices, works, and structures from the premises no longer subject to

the lease.” Id.

        One year after the Court of Appeals for the Federal Circuit resolved the litigation

pertaining to the government’s breach of Noble Energy’s lease, the Minerals Management

Service, 4 a now-disbanded agency of the Department of the Interior, ordered Noble Energy to


3
  “Under the common law rule of discharge, one party’s material breach of a contract will excuse
the other party’s performance.” Noble II, 671 F.3d at 1243 n.3 (citing cases and the Restatement
of Contracts).
4
  The Minerals Management Service was replaced, in all ways relevant to this action, by the
Bureau of Safety and Environmental Enforcement.

                                                 3
“promptly and permanently plug the well,” “clear the well site,” and “perform any additional

activity necessary to fully satisfy your decommissioning obligations” pursuant to 30 C.F.R.

250.1723 and related decommissioning regulations. Id. at 1244. Noble Energy challenged that

order in an action in this judicial district, arguing that the government’s material breach of its

lease discharged its obligations under the regulations on which the agency relied. Id. Another

judge in this district determined that “the common law doctrine of discharge did not relieve

Noble of the regulatory obligation to plug its well permanently, an obligation that the lease did

not itself create.” Id. Noble Energy appealed, and the Court of Appeals for the D.C. Circuit

concluded that the outcome of the case depended on the meaning of the decommissioning

regulations: “If the regulations impose an obligation to plug Well 320-2 regardless of the

government’s breach of the lease contract, Noble’s argument fails. If the regulations release the

duty to plug once the government materially breaches the lease agreement, then Noble prevails.”

Id. at 1245. The Court of Appeals also concluded that the agency was “‘entitled to interpret its

own regulations in the first instance.’” Id. (quoting Am. Petroleum Inst. v. EPA, 906 F.2d 729,

742 (D.C. Cir. 1990)). However, the Court of Appeals was unable to discern whether the agency

had, in the original order that was then before that court, interpreted the regulations in question.

Id. at 1244. Therefore, the Court of Appeals instructed the District Court to vacate the order of

the Minerals Management Service and to remand to BSEE—which had assumed the

responsibilities of the Minerals Management Service relevant to this action—for further

proceedings. Id. at 1246.

       On remand, the BSEE issued the April 9, 2014, Order that is the subject of this challenge.

In the order, the BSEE interpreted the regulations in question and determined that they were

independent of the obligations of the lease and were, therefore, not discharged by the



                                                  4
government’s material breach of the lease. NOB0957-63. Accordingly, the agency ordered Noble

Energy to “promptly and permanently plug” the well, including “all related activity necessary to

fully satisfy its decommissioning obligations, including wellhead and casing removal and site

clearance.” NOB0957. This challenge followed, and Noble Energy once again argues that the

agency action is arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance

with law.

                                     II. LEGAL STANDARD

       Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” However, “when a party seeks review

of agency action under the APA [before a district court], the district judge sits as an appellate

tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269

F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56[ ] does not

apply because of the limited role of a court in reviewing the administrative record.... Summary

judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is

supported by the administrative record and is otherwise consistent with the APA standard of

review.” Southeast Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010).

        The APA “sets forth the full extent of judicial authority to review executive agency

action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513

(2009). It requires courts to “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘narrow’ standard of review as courts

defer to the agency’s expertise.” Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138


                                                  5
(D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). An agency is required to “examine the relevant data and articulate a

satisfactory explanation for its action including a rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation omitted). The

reviewing court “is not to substitute its judgment for that of the agency.” Id. Nevertheless, a

decision that is not fully explained may be upheld “if the agency’s path may reasonably be

discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

                                        III. DISCUSSION

       Relying largely on statements in United States v. Texas, 507 U.S. 529 (1993), regarding

the relationship of statutory or regulatory schemes and prior common law doctrines, Noble

Energy argues that the decommissioning regulations incorporate the common law of discharge.

Noble Energy argues that it is not subject to the decommissioning obligations enumerated in

those regulations given the government’s material breach of the lease that encompassed Noble

Energy’s rights in Well OCS-P 320, No. 2. Pursuant to the interpretation stated in its 2014 Order,

BSEE argues that the decommissioning regulations are independent of the contractual

obligations in the lease agreement. Therefore, the agency argues, the obligations established by

the regulations have not been discharged—notwithstanding the undisputed material breach by the

government of the lease and the discharge of Noble Energy’s contractual obligations. The Court

concludes, first, that it must defer to the agency’s interpretation of its own regulations and,

second, that the interpretation of those regulations is reasonable. Given these conclusions, the

Court also concludes that the principle of United States v. Texas, does not yield the result—

advocated by Plaintiff—that the regulatory decommissioning obligations were discharged by the




                                                  6
government’s breach of the lease. Accordingly, Plaintiff’s challenge fails, and Noble Energy is

required to comply with the decommissioning requirements of the regulations.


A. Deference is Due to the BSEE’s Interpretation of Its Regulations
       As the Court of Appeals stated in Noble II, “[r]esolution of this dispute depends on what

the plugging regulations mean.” 671 F.3d at 1244. Therefore, the Court first addresses whether

deference is due to the agency’s interpretation of the regulations at stake, and concludes that

deference is due. It is well-settled precedent that the Court reviews the agency’s “interpretation

of its own regulations with ‘substantial deference,’ allowing that interpretation to control unless

‘plainly erroneous or inconsistent with the regulation.’” 5 U.S. Postal Serv. v. Postal Regulatory

Comm’n, No. 13-1308, 2015 WL 2191023, at *9, --- F.3d --- (D.C. Cir. May 12, 2015) (quoting

Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 514 (1994)). Plaintiff argues that,

because this case involves the application of the interpretive principle stated in United States v.

Texas—regarding the common law background of statutes—that the usual principles of

deference to administrative agencies do not apply. See Pl.’s Reply & Cross-Opp’n at 9. Plaintiff

offers no authority in support of that principle—nor do the cases cited elsewhere in Plaintiff’s

brief support that proposition. To the contrary, the opinion of the Court of Appeals in Noble II

strongly suggests that deference is due. The Court of Appeals concluded that remand to the

agency was necessary because “‘an agency is entitled to construe its own regulations in the first

instance.’” Noble II, 671 F.3d at 1246 (quoting Am. Petroleum Inst., 906 F.2d at 742). Moreover,

the Court of Appeals considered whether to defer to any interpretation in the government’s

litigation brief pursuant to the rule of Auer v. Robbins, 519 U.S. 452, 262 (1997). The Court of



5
  The Court notes that deference is not a fall-back position, as Plaintiff suggests, but rather a
fundamental principle of administrative law.

                                                  7
Appeals, however, concluded that Auer deference was not due in those circumstances only

because the panel could not “find any definitive interpretation of the plug and abandon

regulations in the government’s brief.” Noble II, 671 F.3d at 1246. If Auer deference would have

been due to an interpretation in the government’s brief, then certainly deference is due to the

interpretation issued by the agency on remand—particularly because that interpretation was the

express purpose of the remand. 6 Accordingly, the Court evaluates the interpretation set out by

BSEE in the 2014 Order “with ‘substantial deference,’ allowing that interpretation to control

unless ‘plainly erroneous or inconsistent with the regulation.’” U.S. Postal Serv. v. Postal

Regulatory Comm’n, 2015 WL 2191023, at *9 (quoting Thomas Jefferson University, 512 U.S. at

512, 514).


B. The BSEE’s Interpretation of its Regulations is Not Plainly Erroneous or Inconsistent
   with the Regulations
       On remand, BSEE concluded that the regulations “impose decommissioning obligations

independent of the contractual obligations in the lease.” NOB0961. As applied to the

circumstances in this case, the agency concluded that, “although Noble Energy’s contractual

obligations were discharged due to the government’s breach, the duty to plug the well remains as

an independent regulatory duty that exists post breach.” Id. As explained further below, BSEE

based this conclusion on its analysis of the language of the decommissioning regulations and on

the purpose of those regulations. See id. Because of the deference due to the agency in its

interpretation of its regulation, this Court’s task is to determine whether the agency’s



6
  In his concurrence, Senior Circuit Judge Stephen William “express[ed] doubt whether the
Interior Department, on remand, will be able to offer an interpretation that is both reasonable and
supportive of its action here.” Noble II, 671 F.3d at 1246 (Williams, J., concurring) (emphasis
added). Even this concurrence adopts the lens of deference by focusing on the “reasonableness”
of the agency’s interpretation—rather than its correctness. See id.

                                                 8
interpretation is “plainly erroneous or inconsistent with the regulation.” In conducting this

analysis, this Court addresses Plaintiff’s arguments that the agency’s regulations have not

explicitly abrogated the common law principle of discharge and that, without doing so, its

regulatory obligations were discharged upon the government’s material breach of the lease.

       BSEE first looks to the language of the regulations, noting that “the regulations explicitly

apply to more than just a current lessee, and the obligations extend beyond the life of the lease.”

Id. Specifically, the agency notes that the obligations may arise before or after a party becomes a

lessee, see id. (citing 30 C.F.R. § 250.1702); that the obligations are binding on current lessees,

former lessees and operating rights owners, see id. (citing 30 C.F.R. § 250.1701); and that they

remain binding after a lease has been assigned or relinquished, see id. (citing 30 C.F.R.

§§ 556.62(d), 556.76). In short, the BSEE concluded that the regulatory obligations are

independent of the contractual obligations because they apply to parties that are not bound by

those contractual obligations. The BSEE also looked to the purpose of the regulations and noted

that the regulations “serve to protect the environment and ensure wise stewardship of resources

held in trust for the public as mandated under [the Outer Continental Shelf Lands Act].”

NOB0962. The agency concluded that the regulations serve to realize the stated purpose of the

Act, that operations “should be conducted in a manner that prevents or minimizes damage to life,

property or the environment.” Id. In the agency’s view, permanently plugging an abandoned well

would protect the environment. Also in the agency’s view, establishing the decommissioning

obligations by regulation, in addition to doing so by contract, would facilitate the protection of

the environment.

       The BSEE’s textual argument why the regulatory decommissioning obligations are

independent of the contractual decommissioning obligations is essentially that those obligations



                                                  9
do not apply to the same sets of entities or individuals. Specifically, the agency highlights several

distinctions between the regulatory obligations and the contractual obligations: that the

regulatory obligations may accrue before or after the beginning of the lease, that they remain

binding after a lease is assigned or relinquished, and that they are binding on non-lessee

operating rights owners. See NOB0961-62. Plaintiff argues that the scope of the

decommissioning obligations set out in the regulations actually affirms the incorporation of

common law principles in the regulatory obligations. In support of this contention, Plaintiff notes

that a person who assigns a lease to another does not, merely through that action, divest

themselves of all obligations of the lease. See Pl.’s Mot. at 31-32 (quoting Restatement (Second)

of Contracts § 318(3) (1981)). In other words, Plaintiff argues, just as one who assigns a contract

remains bound by the original contract obligations, the regulations state that former leaseholders

continue to be bound by the regulatory obligations. Plaintiff also looks to other features of the

common law pertaining to contractual obligations that suggest that the regulations mimic rather

than deviate from the common law in terms of which entities are governed by those

requirements. See id. at 30-34. Plaintiff claims that there are only minimal differences between

the scope of the contractual decommissioning obligations and the scope of the regulatory

decommissioning obligations and that, therefore, these differences are not properly the basis for

the conclusion that regulatory obligations are independent of the contractual obligations in the

relevant leases.

       The Court need not delve into the substantive question of precisely whose behavior is

governed by the lease provisions and whose behavior is governed by the decommissioning

regulations because the only question presented is whether the agency’s interpretation of its

regulations is plainly erroneous or inconsistent with the underlying regulations. The regulations



                                                 10
clearly apply to persons that are not current leaseholders. See Noble II, 671 F.3d at 1244 (citing

30 C.F.R. §§ 556.62(d), 556.64(a)(5), 556.76, 250.1710). Regardless of the precise scope of

obligations under a purely contractual regime, it is reasonable for the agency to conclude that the

expansive scope of the regulatory decommissioning requirements shows that those requirements

are independent from the contractual requirements—even if, in many instances, they would both

apply to leaseholders or to other related parties.

       With respect to the purpose of the decommissioning regulations, the agency’s conclusion

that the purpose of the regulatory requirements supports the agency’s interpretation that the

regulations are independent of contractual obligations stated in individual leases is also

reasonable. In BSEE’s view, the decommissioning regulations serve the statutory purpose of

protecting the environment. Plaintiff responds that, while the purpose of the statute might

demonstrate the importance of the decommissioning activities, it does not show that it is

important for a particular party such as Plaintiff Noble Energy to carry out those activities. Once

again, the Court’s deferential standard of review is important. In a world of limited resources and

competing bureaucratic priorities, it is reasonable for the agency to conclude that requiring a

former lessee—even one whose contractual obligations have been discharged—to complete

decommissioning activities, rather than relying on the agency to undertake those obligations,

would serve the ultimate purpose of protecting the marine and coastal environments.

       In sum, the Court concludes that the agency’s reasoning passes muster: the agency has

adequately explained, based on the purpose and the text of the regulations, its conclusion that the

regulatory decommissioning obligations are wholly independent from the contractual

decommissioning obligations and, therefore, they continue to apply to a party freed from the

contractual obligations stated in an individual lease.



                                                     11
C. The Regulatory Decommissioning Obligations Have Not Been Discharged By Operation
   of Common Law Principles
       The Court now addresses Plaintiff’s argument that the agency’s interpretation violates the

principle set out by the Supreme Court in United States v. Texas that “[s]tatutes which invade the

common law … are to be read with a presumption favoring the retention of long-established and

familiar principles, except when a statutory purpose to the contrary is evident.” Texas, 507 U.S.

at 534. Plaintiff also relies on the Supreme Court’s further statement that “[i]n order to abrogate a

common-law principle, the statute must ‘speak directly’ to the question addressed by the

common law.’’ Id. at 534. The common-law principle at issue in this case is that of discharge,

under which “one party’s material breach of a contract will excuse the other party’s

performance.” Noble II, 671 F.3d at 1243 n.3. Plaintiff argues that the regulations do not

explicitly abrogate the common law principle of discharge and, therefore, the principle of

discharge must be read into the regulation. See Pl.’s Reply & Cross-Opp’n at 6. Specifically

Plaintiff argues that, because it was discharged from its contractual decommissioning

obligations, it is no longer bound by the regulatory decommissioning obligations. Defendant

responds that, because of its conclusion that the regulatory decommissioning obligations are

independent from the contractual decommissioning obligations, there is no authority to support

reading the principle into the regulations. The Court agrees with the BSEE that there is no

authority to support importing the principle of discharge into a non-contractual obligation.

       Plaintiff principally relies on two trial court cases for the proposition that the principle of

discharge is applicable to the regulatory decommissioning obligations: ABN Amro Bank v. United

States, 34 Fed. Cl. 126 (1995), and Amoco Production v. Fry, 904 F. Supp. 3d 3 (D.D.C.1995).

However, notwithstanding the concurrence of Senior Circuit Judge Stephen Williams in Noble II,

neither case can withstand the weight that Plaintiff places on it. In ABN Amro, a judge of the


                                                 12
Court of Federal Claims considered the “double forgery” of a check purportedly issued by the

government and made payable to a supermarket chain, where the government had not actually

issued the check and the person depositing the check was not actually a representative of the

payee supermarket chain. 34 Fed. Cl. at 127-28. Treasury regulations governing the payment of

forged Treasury checks did not explicitly address the “double forgery” scenario. Id. at 134.

However, prior Federal common law allocated the loss for a Treasury check containing a double

forgery. Id. at 135. The Court of Federal Claims judge concluded that, absent a more explicit

provision in the regulations, the regulatory scheme did not override the preexisting Federal

common law rule. In ABN Amro, in other words, a common law rule explicitly covered a

situation not explicitly encompassed by a regulatory scheme. The judge concluded that the

regulatory scheme, even though it appeared “fairly comprehensive,” id. at 131, did not address

the situation that faced the court and therefore the common law rule continued to govern that

situation. That is not the case regarding the facts before this Court today. The common law rule

of discharge applies to contractual obligations—releasing one party from the contractual

obligations upon a material breach of the contract by another party. This common law rule says

nothing about regulatory obligations. Therefore, this is not a case where the common law

addresses a specific situation that is not addressed by a regulatory scheme. Accordingly, the logic

of ABN Amro does not suggest that the principle of discharge applies to the regulatory

decommissioning requirements that are the subject of this case.

       Similarly, in Amoco Production v. Fry, another district judge in this judicial district

addressed the common law right of offset under the Outer Continental Shelf Lands Act. 904 F.

Supp. at 7-9. The Act required that excess royalties paid by a lessee to the government “ ‘shall be

repaid without interest.’ ” Id. at 7 (quoting 43 U.S.C. § 1339(a)). But, at common law, a creditor



                                                13
has a right to “use money it owes to a debtor to satisfy the debt owed to it.” Id. at 9. A situation

arose where lessees had underpaid in the past and had paid excess royalties. Id. at 7. The district

court judge concluded that the government’s common law right of offset was not abrogated by

the statute’s provision for the repayment of excess royalties and, thus, the government was able

to apply the prior excess payments to the lessees’ underpayments. See id. at 9. In other words, the

statute was silent about the right of offset, and the court concluded that, absent explicit

abrogation of that right by Congress, the government retained that right within the statutory

scheme that Congress established. Once again, this precedent does not have the implications for

the case before the Court today suggested by Plaintiff. In fact, the principle of discharge persists

here: Plaintiff’s contractual obligations have been discharged by the material breach. No one

disputes that the regulatory scheme has not eliminated that result. In that sense, the principle of

discharge has become a limited part of the overall regulatory scheme governing the plugging and

abandonment of wells. That result is consistent with Amoco Production, but Amoco Production

cannot carry Plaintiff any farther. Indeed, nothing in that case suggests that this specific contract

principle is inserted by implication into the decommissioning regulations issued by the agency,

which the agency has stated are independent of the contractual obligations in the off-shore leases

issued pursuant to the statutory scheme.

       Analyzing the other cases cited by the parties regarding the scope of the Texas principle

yields similar results. Relying on United States v. Texas, several federal Courts of Appeals have

concluded that tools available to the government at common law were not eliminated sub silentio

by statutory provisions through which Congress legislated in related areas of the law. See, e.g.,

Exact Software N. Am., Inc. v. DeMoisey, 718 F.3d 535, 543 (6th Cir. 2013) (judicial power to

resolve fees disputes not abrogated); United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 15-16



                                                  14
(1st Cir. 2005) (right to recoup payments not repealed); Cecile Indus., Inc. v. Cheney, 995 F.2d

1052, 1054-55 (Fed. Cir. 1993) (administrative offset provisions of the Debt Collection Act did

not eliminate common law offset rights). Others courts have applied principle of United States v.

Texas in concluding that common law defenses were not eliminated by legislation. See, e.g.,

Manoharan v. Rajapaksa, 711 F.3d 178, 179-80 (D.C. Cir. 2013) (head of state immunity applies

in Torture Victim Protection Act suits); Matar v. Dichter, 563 F.3d 9, 13-14 (2d Cir. 2009)

(Foreign Sovereign Immunities Act did not abrogate immunity of former foreign officials). The

case currently before the Court does not fit into any of these specific categories: this case is not

about eliminating common law powers of the government or about eliminating litigation

defenses available at common law.

       In still other cases, courts have concluded that common law principles helped to interpret

the meaning of a specific statutory or regulatory scheme as a result of the particular interplay

between the common law rule and the statutory or regulatory scheme in question. See, e.g., Ins.

Co. of the West v. United States, 243 F.3d 1367, 1374 (Fed. Cir. 2001) (common law rights of

assignees unchanged by waiver of sovereign immunity in Tucker Act); In re Niles, 106 F.3d

1456, 1461 (9th Cir. 1997) (common law allocation of burdens of proof bolsters conclusions

regarding burden of proof under Bankruptcy Act provision). Taken together, these cases confirm

that there is no general principle—as Plaintiff maintains—that a common law principle like the

discharge rule should be automatically read into a regulatory scheme such as the one at issue

here. These case do establish that explicit language—at least more explicit than presented in this

case—would be necessary to abrogate the discharge rule itself. Importantly, however, BSEE has

not abrogated that rule, which by its own terms applies to contractual obligations. BSEE

concluded that the regulatory requirements regarding decommissioning are independent of the



                                                 15
contractual decommissioning obligations, and, for the reasons stated above, this conclusion is not

“plainly erroneous” or “inconsistent with the regulation.” There is no principle in the case law

that would require this Court to read into the independent regulatory decommissioning

requirements a version of the discharge rule. In sum, none of Plaintiff’s arguments lead the Court

to conclude that the agency’s order is arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law. Accordingly, BSEE’s order requiring Noble Energy to carry out its

regulatory decommissioning obligations regarding Well OCS-P 0320, No. 2, survives this

Court’s deferential standard of review.

                                        IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendants’ [21] Cross-Motion for

Summary Judgment and DENIES Plaintiff’s [19] Motion for Summary Judgment. The Court

concludes that the agency’s interpretation of its decommissioning regulation, which is at issue in

this case, is not “plainly erroneous” or “inconsistent with the regulation,” and the principle of

discharge does not apply to the regulatory decommissioning obligations in question. Therefore,

the Court upholds the challenged order in this case. This case is dismissed in its entirety.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: June 8, 2015
                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




                                                 16
