                             REVISED

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       _____________________

                            No. 95-31047
                       _____________________



     OXY USA INC;

               Plaintiff - Counter Defendant - Appellant


     MOBIL EXPLORATION AND PRODUCING U.S., INC.; CHEVRON USA INC

               Plaintiffs - Appellants

     v.


     BRUCE BABBITT, Secretary Department of the Interior;
     DEBORAH GIBBS TSCHUDY, Chief Royalty Valuation and
     Standards Division Minerals Management Service Department
     of Interior; CYNTHIA QUARTERMAN, Director, Minerals
     Management Service, Department of the Interior
               Defendants - Counter Claimants - Appellees


_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
_________________________________________________________________
                         September 8, 1997

Before KING, SMITH, and WIENER, Circuit Judges.


KING, Circuit Judge:

     This is an appeal of a grant of summary judgment in favor of
the government upon review of an alleged final determination of

the Department of the Interior.   For the reasons that follow, we

vacate the judgment of the district court as it relates to Count

III and remand for entry of judgment dismissing Count III with

prejudice.



                           I. BACKGROUND

     OXY USA, Inc., Mobil Exploration & Producing U.S., Inc., and

Chevron U.S.A., Inc. (collectively, the “Companies”) are lessees

under several oil and gas leases involving submerged lands in the

Outer Continental Shelf (“OCS”) lying seaward of the State of

Louisiana.1   The oil and gas leases implicated by this action

were granted by the State of Louisiana on the 1942 Louisiana

State Lease form (the “1942 lease form”) at a time when Louisiana

claimed jurisdiction over submerged lands in the Gulf of Mexico.

After a series of Supreme Court decisions established that the

United States had exclusive jurisdiction over submerged lands

seaward of the low-water line,2 Congress enacted the Outer

Continental Shelf Lands Act (“OCSLA” or the “Act”), 43 U.S.C.

§§ 1331-1356, which enabled the United States both to issue new

mineral leases on the lands under its jurisdiction and to

     1
        Congress has defined the term “Outer Continental Shelf”
to include all submerged lands lying seaward and three miles
outside state waters, “and of which the subsoil and seabed
appertain to the United States and are subject to its
jurisdiction and control.” 43 U.S.C. § 1331(a).
     2
        See United States v. Texas, 339 U.S. 707 (1950); United
States v. Louisiana, 339 U.S. 699 (1950); United States v.
California, 332 U.S. 19 (1947).

                                  2
validate and maintain as federal leases existing state-issued

mineral leases covering OCS lands.   The leases between the State

of Louisiana and the Companies were validated pursuant to section

6 of the OCSLA, id. § 1335.   The Companies accordingly pay

royalties to the United States on production from these leases.

     The OCSLA vests authority for administering federal OCS

mineral leases in the Secretary of the Interior.     Id. § 1334.

The Minerals Management Service (“MMS”) within the Department of

the Interior (“DOI”) is responsible for valuing production from

federal oil and gas leases and collecting royalties on that

production.   See 30 C.F.R. pts. 201-203, 206.3   The Royalty

Valuation and Standards Division (“RVSD”)4 of the MMS is

responsible for responding to requests by federal OCS lessees to

deduct transportation costs from royalty payments.

     Section 6(b) of the OCSLA provides that the original royalty

provisions of state-issued leases validated under section 6

     3
        The Minerals Management Service was established on
January 19, 1982, by Department of the Interior Secretarial Order
No. 3071. See 47 Fed. Reg. 6138 (1982). The Director of MMS
operates under the supervision of the Minerals Management Board,
also established by Order No. 3071, which is chaired by the Under
Secretary of DOI. DOI Secretarial Order No. 3071, Amend. No. 1
(May 10, 1982). The stated purpose of establishing a Minerals
Management Board and MMS was to “1) improve the management of and
provide greater management oversight and accountability for the
minerals-related activities previously carried out by the
Conservation Division of the U.S. Geological Survey; and 2) to
eliminate the fragmentation of Outer Continental Shelf (OCS)
activities by consolidating the responsibility for OCS programs.”
Id. Royalty management is one of the major functions of MMS.
See DOI Secretarial Order No. 3071, Amend. No. 2 (May 26, 1982).
     4
        This division is now known as the Valuation and Standards
Division. We use the former nomenclature in this opinion as it
was in effect when the actions challenged herein occurred.

                                 3
continue to govern.   43 U.S.C. § 1335(b).   The regulations issued

pursuant to section 6 provide, in relevant part, that the royalty

provisions of leases maintained under section 6 (subject to

certain provisions of section 6(a) not relevant here) “shall

continue in effect, and, in the event of any conflict or

inconsistency, shall take precedence over these regulations.”    30

C.F.R. § 256.79.   Accordingly, the royalty provisions of the 1942

lease form govern the calculation of royalties due the federal

government under the section 6 leases at issue in this suit.    The

royalty provisions of the 1942 lease form are as follows:

          Should sulphur, potash, oil, gas and/or other
     liquid hydro-carbon mineral be produced in paying
     quantities on the premises hereunder, then the said
     lessee shall deliver to lessor as royalty, free of
     expense:

          One eighth (1/8) of all oil produced and saved,
     including distillate or other liquid hydro-carbons,
     delivery of said oil to be understood as made when same
     has been received by the first purchaser thereof. Or
     lessee may, in lieu of said oil delivery, and at its
     option, pay to lessor sums equal to the value thereof
     on the premises; provided no deductions or charges
     shall be made for gathering or transporting said oil to
     the purchaser thereof, or loading terminal, nor shall
     any deductions whatsoever be made chargeable to lessor;
     provided further, that the price paid lessor for said
     oil shall not be less than the average posted pipe-line
     or loading terminal price then current for oil of like
     grade or quality.

          One-eighth (1/8) of all gas produced and saved or
     utilized, delivery of said gas to be understood as made
     when same has been received by the first purchaser
     thereof. Or lessee may, in lieu of said gas delivery,
     and at its option, pay to lessor sums equal to the
     value thereof at the well, provided no gathering or
     other charges are made chargeable to lessor; provided
     further that the price paid lessor for said gas shall
     not be less than the average price then current for gas
     of like character or quality delivered to the pipe line
     purchaser in that field.

                                 4
     The procedural history of this case begins with a 1985

request by OXY’s corporate predecessor, Cities Service Oil and

Gas Corporation (“Cities”), for a transportation allowance for

production during 1984 under leases OCS-G 0146 and OCS-G 0163.

By letter dated May 30, 1985, the Chief of the RVSD approved this

request and stated that the 1984 transportation allowance was to

be used as a tentative allowance for production during calendar

year 1985.   Cities subsequently requested, in a series of letters

and a meeting with RVSD officials, that the transportation

allowance for 1985 be increased to reflect actual transportation

costs for gas production during that year.   By letters dated July

21, 1986, and September 19, 1986, the Chief of the RVSD denied

Cities’s requests and also rescinded the RVSD’s earlier approval

of the 1984 transportation allowance.   Both letters stated that

leases OCS-G 0146 and OCS-G 0163 were not eligible for

transportation allowances as a result of their section 6 status.5

     Cities appealed the RVSD’s decision to the Director of MMS

pursuant to 30 C.F.R. § 290.3.   The Director affirmed.   OXY then

appealed the decision of the Director to the Interior Board of

Land Appeals (“IBLA”) pursuant to 30 C.F.R. § 290.7 and 43 C.F.R.

pt. 4.   In an order issued on October 19, 1992 (the “OXY

     5
        The findings and conclusions attached to the July 21
letter based this determination on the following language in the
oil royalty clause of the 1942 lease form: “provided no
deductions or charges shall be made for gathering or transporting
said oil to the purchaser thereof.” The findings and conclusions
attached to the September 19 letter based the same determination
on a similar provision in the gas royalty clause of the 1942
lease form: “provided no gathering or other charges are made
chargeable to lessor.”

                                 5
decision”), the IBLA affirmed the decision of the Director.      The

IBLA based this decision in part upon its holding in Exxon

Company, U.S.A., 118 IBLA 30 (1991) (the “Exxon decision”), that

a federal lessee may not deduct transportation costs from royalty

payments under the 1942 lease form.

     In 1992, OXY, Mobil, and Chevron each requested

transportation allowances for a number of section 6 leases

originally issued on the 1942 lease form.    By letters dated

January 28, 1993, January 22, 1993, and January 14, 1993, the

Chief of the RVSD informed OXY, Mobil, and Chevron, respectively,

that these leases were not eligible for transportation allowances

and that their applications for transportation allowances

accordingly were denied.    Each letter stated that the lessee had

a “right to appeal this decision” and referred to the procedures

for appeal to the Director of MMS set forth in 30 C.F.R. pt. 290.

We are not able to determine from the record or the briefs on

appeal whether OXY pursued its administrative appeal.    Chevron

settled this matter with DOI.    Mobil pursued its appeal to the

Director of MMS, and filed with its appeal all of the evidence

which Mobil contends should have been reviewed by the district

court in this case.    The Director denied Mobil’s appeal on

February 28, 1995.    Mobil subsequently appealed to the IBLA,

which has suspended consideration pending resolution of this

suit.6

     6
        Although they allege present injury, the Companies do not
discuss the mechanics of making royalty payments and requesting
transportation allowances as regulated by DOI. The Companies

                                  6
     The Companies filed this suit against the Secretary of the

Interior, the Director of the Minerals Management Service, and

the Chief of the Valuation and Standards Division (collectively,

the “government”) in federal district court on July 15, 1993,

pursuant to OCSLA, the Federal Oil and Gas Royalty Management Act

of 1982, 30 U.S.C. §§ 1701 et seq., and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.   Counts I and II

of the complaint consist of challenges by OXY to the IBLA’s OXY

decision.   Count III -- the claim at issue in this appeal -- is a

more broad-based challenge by all the Companies to an alleged

blanket determination by DOI that gas transportation costs are

not deductible under the 1942 lease form.7   Count III states:

          The DOI’s determination that, as a matter of law,
     OCSLA Section 6 lessees operating under the 1942
     Louisiana State Lease form, such as OXY, Mobil and


assert, without reference to applicable regulations, that

     because of Interior’s interpretation of the law, all
     three of the appellants are unable to take
     transportation allowances to which they claim an
     entitlement under their lease terms and the OCSLA.
     Mobil has administrative appeals pending which
     challenge the agency’s interpretation of the law. It
     currently is taking the contested deductions, but it
     had to file substantial surety bonds in order to do so
     during the pendency of its appeals. Chevron has not
     taken the contested deductions, and, as a result, it
     has paid more royalties than are due. It will be
     entitled to a refund in the event that the lower
     court’s ruling in this case is reversed.

Pls.’s Supp. Ltr. Brief, at 17 (footnotes omitted).   DOI does not
dispute this scenario.
     7
        No party challenges the Secretary’s authority to
interpret the terms of a section 6 lease pursuant to his
authority, under 43 U.S.C. § 1334, to administer federal OCS
mineral leases.

                                 7
     Chevron, are not entitled to deduct gas transportation
     costs from their royalty payments is arbitrary,
     capricious, an abuse of discretion, and/or otherwise
     not in accordance with law.

The complaint requests “a declaratory judgment that it is

unlawful for the DOI to reject transportation allowances solely

on the basis that OCSLA Section 6 leases granted on the 1942

Louisiana State Lease form preclude the deduction of gas

transportation costs from lessee’s royalty payments.”

     According to the factual allegations of the complaint, the

“determination” challenged in Count III is “revealed by” a series

of past DOI decisions.   Paragraphs 22-24 of the complaint recount

the IBLA’s Exxon decision, the IBLA’s OXY decision, and the

RVSD’s January 1993 denials of the Companies’ 1992 requests for

transportation allowances.   Paragraph 25 alleges that “[t]hese

DOI actions reveal that a final determination has been made by

the DOI that, as a matter of law, OCSLA Section 6 leases granted

on the 1942 Louisiana State Lease form prohibit the deduction of

any gas transportation costs from a lessee’s gas royalty

payments.”

     In its answer to paragraph 25, the government “admit[s] that

DOI has made a final determination but aver[s] that the IBLA

decision speaks for itself and is the best evidence of its

contents.”   The government subsequently filed with the district

court the administrative record of the IBLA’s OXY decision.    No

other administrative record was filed.   The government has

maintained throughout this litigation that any judicial review

conducted with respect to Count III should be limited to the

                                 8
administrative record of the OXY decision.

     The Companies moved for partial summary judgment on Count

III on October 13, 1993.   The Companies argued that DOI’s “final,

judicially reviewable decision that, as a matter of law, the

language of this particular lease form precludes the allowance of

a transportation deduction” is unlawful.   In support of their

motion, the Companies offered at least two documents not

contained in the administrative record of the OXY decision -- a

1966 resolution of the Louisiana State Mineral Board (“LSMB”) and

a response by the State of Louisiana to an interrogatory

propounded in other litigation -- which indicated that the State

permits lessees under the 1942 lease form to deduct gas

transportation costs in certain circumstances.   The government

filed a cross-motion for summary judgment on all counts in which

it argued that DOI properly construed the gas royalty clause of

the 1942 lease form.   Citing the APA, the government urged the

district court to limit its review to the administrative record

in the OXY decision and to decline to consider the 1966 LSMB

resolution and the answers to interrogatories proffered by the

Companies.   The Companies replied that Count III was not a suit

for judicial review of agency action pursuant to the APA, but was

a citizen suit under section 23(a) of OCSLA, 43 U.S.C. § 1349(a),

and as such was not subject to the record-review requirements of

the APA.

     The district court issued an interlocutory ruling on

December 1, 1994, granting summary judgment in favor of the


                                 9
government on Count III.   The court limited its review to the

administrative record of the OXY decision.     The court stayed its

consideration of Counts I and II, at the request of the parties,

pending settlement negotiations between OXY and DOI.

     OXY and DOI reached a settlement with respect to the OXY

decision several months later.   The Companies thereupon attempted

to extricate themselves from the unfavorable result of their

efforts and promptly moved to dismiss all three counts of the

complaint and to vacate the December 1, 1994, interlocutory

ruling.   The Companies contended that, in light of the district

court’s decision to limit its consideration of Count III to the

administrative record in the OXY decision, the settlement of that

decision rendered Count III moot.     The government opposed the

motion to dismiss Count III and vacate the summary judgment

ruling.   The district court granted the Companies’ motion and

entered an order on July 25, 1995, dismissing all counts and

vacating the December 1 interlocutory ruling.     The government

moved for reconsideration, arguing that settlement of the OXY

decision did not render Count III moot because “a substantial

controversy remains over the broad issue of Interior’s

interpretation that the costs of gas transportation are not

deductible under the terms of the 1942 lease” and that DOI

“should not be made to defend its position regarding

transportation costs repeatedly and piecemeal.”     Upon

consideration of this motion, the district court vacated its July

25 dismissal of Count III and reinstated the December 1 ruling.


                                 10
The district court entered judgment in favor of the government as

to Count III on September 22, 1995.



            II. THE CITIZEN SUIT AS AN AVENUE OF APPEAL

     The Companies raise three issues on appeal:   (1) whether the

district court erred by limiting its review of Count III to the

OXY decision and the administrative record compiled therein, (2)

whether, having limited its review to the OXY decision, the

district court erred by issuing a final judgment on Count III

following settlement of the OXY decision between OXY and DOI, and

(3) whether the district court erred in upholding DOI’s

determination that transportation costs are not deductible under

the 1942 lease form.8

     The principal basis for the Companies’ position that the

district court should have considered evidence outside of the OXY

administrative record is that Count III alleges a cause of action

under the citizen suit provision of OCSLA, 43 U.S.C. § 1349(a),

and therefore is not confined to any particular administrative

record.   Because the original briefs did not address adequately

the Companies’ contention that Count III is “independently

sustainable” under the citizen suit provision, this court

requested supplemental briefing on the issue.   The supplemental

briefs have appreciably clarified the arguments on appeal.

     8
        Because we conclude that the district court should have
dismissed Count III, we do not reach the substantive issue of
whether the district court erred in upholding DOI’s determination
that gas transportation costs are not deductible under the 1942
lease form.

                                11
     Notwithstanding its posture in the district court, the

government now contends that the citizen suit provision may not

be used to challenge the Secretary’s interpretation of the 1942

lease form because the act of interpreting the 1942 lease form is

a necessary duty undertaken in the Secretary’s administration of

the OCSLA and cannot constitute a “violation” as contemplated by

the citizen suit provision.   The government argues in the

alternative that even if the citizen suit provision is a proper

vehicle for challenging a decision of the Secretary rendered in

fulfillment of his duties under the Act, judicial review of any

such decision must proceed in accordance with the standards and

procedures set forth in the APA.

     The Companies maintain that the citizen suit provision is a

proper vehicle by which OCS lessees may challenge the Secretary’s

interpretation of royalty obligations as violating OCSLA, its

implementing regulations, or an OCS lease.    The Companies further

contend that the OCSLA citizen suit provision displaces APA

concepts of final agency action, exhaustion of administrative

remedies, and judicial review limited to the administrative

record.

     We first consider whether Count III states a claim under the

citizen suit provision of OCSLA.9    As it turns out, as regards


     9
        “In appraising the sufficiency of the complaint we follow
. . . the accepted rule that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957).

                                12
the Companies, that is all we need decide.

     Enacted as section 23(a) of the 1978 amendments to OCSLA,

the citizen suit provision establishes a mechanism by which

citizens, including lessees, employees, and local and state

governmental officials, can participate in the Act’s enforcement.

See H.R. REP. NO. 95-590, at 161 (1977), reprinted in 1978

U.S.C.C.A.N. 1450, 1566-67.   Section 23 (a) provides, in relevant

part:

     [A]ny person10 having a valid legal interest which is
     or may be adversely affected may commence a civil
     action on his own behalf to compel compliance with this
     subchapter against any person, including the United
     States, and any other government instrumentality or
     agency (to the extent permitted by the eleventh
     amendment to the Constitution) for any alleged
     violation of any provision of this subchapter or any
     regulation promulgated under this subchapter, or of the
     terms of any permit or lease issued by the Secretary
     under this subchapter.

43 U.S.C. § 1349(a)(1).   The legislative history makes clear that

citizen suits can be brought against any governmental agency,

“including the Department of Interior or other agencies or

departments with regulatory or enforcement authority as to OCS

activities” alleged to be in violation of the Act, its

implementing regulations, or the terms of any lease or permit

issued under the Act.   H.R. REP. NO. 95-590, at 161, reprinted in

1978 U.S.C.C.A.N. at 1567.

     For purposes of this case, we will assume without deciding

     10
        The Act defines “person” to include “a natural person,
an association, a State, a political subdivision of a State, or a
private, public, or municipal corporation.” 43 U.S.C. 1331(d).
The government concedes that federal lessees are “persons” as
defined by the Act.

                                13
that section 23(a) creates a right of action under some

circumstances to challenge the Secretary’s interpretation of the

terms of a section 6 lease as a violation of OCSLA or the lease

terms.   The question is whether this is one of those

circumstances.

     As we have indicated, Count III purports to challenge an

alleged “final determination” of DOI that gas transportation

costs are not deductible from royalty calculations under the 1942

lease form.   This “final determination” is allegedly “revealed”

by a series of past DOI decisions in individual cases, although

Count III does not challenge these individual decisions per se.

As the Companies emphasize in their opening brief on appeal,

their motion for partial summary judgment on Count III “was not

for judicial review of the OXY Decision, but rather, in keeping

with Appellants’ broader action stated in Count III, Appellants

sought a broader review of Interior’s ‘final determination.’”

The Companies further state in their reply brief that

     Interior erroneously characterizes Appellants’ Count
     III claim as seeking judicial review of the agency’s
     Exxon decision. Appellants recognize that they were
     not parties in the Exxon appeal. However, Appellants
     have had their transportation allowance requests denied
     based on the agency’s final determination through the
     Exxon and OXY Decisions; and this final agency
     determination entitles them to the declaratory relief
     sought in Count III.

While the “final determination” challenged in Count III is

“revealed by,” “reflected in,” and otherwise manifested “through”

the OXY decision, the Exxon decision, and the RVSD’s 1993 denials

of transportation allowances requested by OXY, Mobil, and Chevron


                                14
in 1992, it does not consist of any agency action apart from

these decisions.   No party claims that DOI has issued a rule,

regulation, or general statement of policy definitively

interpreting the gas royalty clause of the 1942 lease form.     To

the contrary, the record reflects that DOI has heretofore

determined the appropriateness of gas transportation allowances

under leases issued on the 1942 lease form on a case-by-case

basis with due regard to the particular administrative record

before it in any given instance.

     The Companies essentially have extracted, for lack of a

better term, a “rule of decision” from a series of DOI decisions

-- both final and nonfinal, and not all involving parties to this

suit -- and injected this “rule of decision” into the judicial

review process as a “violation” of OCSLA and the lease terms

within the meaning of the citizen suit provision.   In effect, the

Companies are attempting to use the citizen suit provision as an

avenue of obtaining judicial review of OCSLA-related agency

decisions that is wholly independent of the judicial review

procedures set forth in the APA.11   The review sought by the

     11
        The Companies have not put all their eggs in the citizen
suit basket. They apparently predicate their claim for relief
from DOI’s alleged “final determination” also on § 704 of the
APA, 5 U.S.C. § 704, although this is not clear either from the
complaint or from their briefs (which occasionally use the term
“supported by” as regards § 704). The Companies disclaim any
intent to limit their § 704 claim to the OXY decision or the
administrative record that supports it. Rather, they assert that
“[b]ecause the OXY Decision is not the only component of the
final agency determination that Appellants challenge, the OXY
Decision cannot limit the scope of judicial review.” They cite
no authority for this novel claim under § 704, and it is
meritless.

                                15
Companies, moreover, is de novo -- not limited to the

administrative record and not subject to the “arbitrary and

capricious” standard of review as required by the APA.   In fact,

the Companies emphasize in their opening brief that “[t]he very

reason for Appellants’ joint action was to demonstrate, based on

evidence not included in Interior’s decisions, the unlawfulness

of Interior’s final determination that gas transportation costs

are not deductible.”

     Significantly, although the Companies go to some lengths to

make clear that they are not appealing the OXY decision or the

RVSD’s 1993 denials of their 1992 requests for transportation

allowances, the inescapable fact is that they seek to overturn

the results of the OXY decision and the RVSD’s 1993 denials.

These decisions either have been settled or, by their own terms

and under applicable regulations, are subject to further review

within the agency.12   See 30 C.F.R. §§ 290.1 - 290.7; 43 C.F.R.

§ 4.21(c).

     We do not think that Congress intended for the citizen suit

provision to operate either as a means of obtaining “umbrella”


     12
        The OXY decision and the dispute arising from the RVSD’s
January 1993 denial of Chevron’s 1992 request for a
transportation allowance have been settled and therefore are moot
as to those parties. See ITT Rayonier, Inc. v. United States,
651 F.2d 343, 345 (5th Cir. 1981) (“Generally settlement of a
dispute between two parties renders moot any case between them
growing out of that dispute. A court finds mootness even if the
parties remain at odds over the particular issue they are
litigating.”). The RVSD’s January 1993 denials of OXY and
Mobil’s 1992 requests for transportation allowances are, by their
own terms, appealable within DOI. As noted earlier, Mobil has an
administrative appeal of this decision pending before the IBLA.

                                 16
review for a series of agency decisions that were or will be

otherwise subject to judicial review under the APA, or as an

express avenue for appealing to the district court an initial

agency decision that is subject to further review within the

agency.    To hold otherwise would be to interpret the citizen suit

provision as implicitly repealing the APA with respect to such

agency action.    It is well-settled that repeals by implication

are not favored.    Watt v. Alaska, 451 U.S. 259, 267 (1981);

United States v. Cavada, 821 F.2d 1046, 1047-48 (5th Cir. 1987).

In construing statutes not entirely harmonious with one other,

courts presume that the legislature intended to maintain

consistency in the law.    1A NORMAN J. SINGER, SUTHERLAND   ON   STATUTES   AND

STATUTORY CONSTRUCTION § 23.09, at 338 (5th ed. 1993).       As this court

has stated,

       [e]ven if two statutes conflict to some degree, they
       must be read to give effect to each, if that can be
       done without damage to their sense and purpose, unless
       there is evidence either in the text of the statute or
       its legislative history that the legislature intended
       to repeal the earlier statute and simply failed to do
       so expressly.

Cavada, 821 F.2d at 1048 (footnote omitted).       The legislature’s

intent to repeal must be “clear and manifest.”       Watt, 451 U.S. at

267.    The Supreme Court recognized this principle in a recent

decision construing the citizen suit provision of the Endangered

Species Act(“ESA”), 16 U.S.C. § 1540(g)(l)(B),(C):

       [I]nterpreting the term “violation” to include any
       errors on the part of the Secretary in administering
       the ESA would effect a wholesale abrogation of the
       APA’s “final agency action” requirement. Any
       procedural default, even one that had not yet resulted
       in a final disposition of the matter at issue, would

                                  17
      form the basis for a lawsuit. We are loathe to produce
      such an extraordinary regime without the clearest of
      statutory direction, which is hardly present here.

Bennett v. Spear, 117 S. Ct. 1154, 1166-67 (1997).

      We agree with the government that neither the text nor

legislative history of section 23(a) manifests congressional

intent to repeal the APA in the circumstances present here.13

The legislative history indicates that the 1978 amendments to

OCSLA were intended to expedite development of the OCS as well as

to protect the marine and coastal environment.   See H.R. REP. NO.

95-590, at 53, reprinted in 1978 U.S.C.C.A.N. at 1460.   The

legislative history provides in relevant part:

           The OCS Lands Act of 1953 has never really been
      amended and is outmoded. No legislation exists for
      coordination and compensation for injury to other users
      of the OCS besides the oil and gas industry. No
      comprehensive national legislation presently exists for
      responsibility and liability for the effects of oil
      pollution resulting from activities on the Shelf. In
      addition, specific mechanisms are needed to involve
      states, and local governments within states, in all OCS
      decisions.

Id.   We recognize that Congress also intended to “[r]educe

frivolous lawsuits and delays by providing consolidated and

expeditious procedures for citizen suits and judicial review.”

Id. at 54.   We find no indication in the legislative history,

however, that the “delays” referred to are associated with the

administrative process, guided by the regulations and the APA,


      13
        We emphasize that our decision today is limited to the
unique facts of this case. We do not decide the broader question
raised by the parties of whether all judicial review of agency
action challenged pursuant to section 23(a) must comport with the
requirements of the APA.

                                18
that has been in effect throughout the life of the OCSLA.

Reading the statute and its history as a whole, we are unable to

discern a “clear and manifest” intent to provide, via section

23(a), a mechanism by which OCS lessees, situated as are the

Companies in this case, could bypass well-established procedures

for administrative and judicial review.



                         IV. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is VACATED as to Count III, and this case is REMANDED for

entry of judgment dismissing Count III with prejudice.   Each

party shall bear its own costs.




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