[00:00:00] Speaker 02:
The last case on calendar is Kenoko Phillips versus Alaska Oil 23-35512 and each side will have 15 minutes.

[00:01:05] Speaker 01:
Morning, Your Honors.

[00:01:06] Speaker 01:
May it please the Court.

[00:01:07] Speaker 01:
I'm David Wilkinson, representing the Alaska Oil and Gas Conservation Commission, or AOGCC.

[00:01:14] Speaker 01:
In this case, ConocoPhillips drilled in the National Petroleum Reserve in Alaska, or NPRA, under an AOGCC permit.

[00:01:22] Speaker 01:
It provided its well data to the agency pursuant to Alaska law, and following that law, the agency kept the data confidential for 24 months.

[00:01:31] Speaker 01:
Conoco then sought an extension that's available under that state law for data that relates to the valuation of nearby unleashed land.

[00:01:40] Speaker 01:
The state found that extension period inapplicable.

[00:01:43] Speaker 01:
Conoco then sued in federal court and argued that the state statutes were preempted by federal law.

[00:01:47] Speaker 01:
The district court erroneously held that there was implied preemption here.

[00:01:51] Speaker 01:
And fundamental to the district court's error was the misunderstanding that Congress had prohibited the federal government from releasing the same data for the lifetime of a lease.

[00:02:01] Speaker 01:
But life of lease confidentiality appears nowhere in the applicable statutes.

[00:02:06] Speaker 01:
It's not in the Naval Petroleum Reserves Production Act, the NPRPA.

[00:02:10] Speaker 01:
It's not in the Outer Continental Shelf Lands Act, the OCSLA.

[00:02:14] Speaker 01:
It appears only in Conoco's lease.

[00:02:16] Speaker 01:
But leases don't preempt state law.

[00:02:19] Speaker 01:
The district court's ruling was error and it has real impacts.

[00:02:23] Speaker 01:
The AOGCC now can't follow Alaska law within a dual regulated area, one that includes significant private inholdings where the federal government waives administration of leases.

[00:02:33] Speaker 01:
This court should reverse the district court's ruling for two primary reasons.

[00:02:37] Speaker 01:
First, there's no support for preemption in the text of the federal laws.

[00:02:42] Speaker 01:
The NPRPA is silent on confidentiality, it adopted no preemption clause, and its regulations do nothing more than apply the Federal Freedom of Information Act to information that's held by the Department of Interior.

[00:02:55] Speaker 04:
That would be important to know going into this, wouldn't it?

[00:02:59] Speaker 04:
If you thought that FOIA was applicable and that you could rely on the well exception in 552B, that would be important to know.

[00:03:11] Speaker 04:
There's a pretty good reliance interest if you think that that is the applicable conditions for releasing this information.

[00:03:20] Speaker 01:
Well, to the extent that Conoco is aware that the federal government asserts that the Freedom of Information Act applies to its data, that doesn't give it a reliance interest that all that data would be held confidential across the board, particularly with respect to data that's independently collected by state regulators.

[00:03:39] Speaker 01:
It's clear that the Federal Freedom of Information Act does not apply to state agencies.

[00:03:42] Speaker 01:
By its terms, it applies only to federal agencies.

[00:03:46] Speaker 01:
And the applicable regulation, which is at 43 CFR 3152.6, says that the release of data will be subject to the regulations that govern the Department of Interior and implement the Freedom of Information Act there.

[00:04:00] Speaker 01:
Those regulations provide no periods of confidentiality.

[00:04:04] Speaker 01:
They guarantee no set duration of confidentiality.

[00:04:08] Speaker 01:
The commitment that the Freedom of Information Act exceptions, to the extent they're applicable, would apply for the duration of Conoco's lease appears only within the lease terms itself.

[00:04:20] Speaker 03:
But if this, I mean, if this information were held by the federal government and somebody were trying to get it under FOIA, it would be covered by exception 9, wouldn't it?

[00:04:29] Speaker 01:
Presumptively, Your Honor, that's correct.

[00:04:31] Speaker 01:
The well data, the geological data is exempt from public records requests under the Freedom of Information Act.

[00:04:38] Speaker 01:
But that doesn't mean that the federal government can't commit to release that data at earlier times.

[00:04:43] Speaker 01:
For example, in the Outer Continental Shelf, the federal government has done that.

[00:04:47] Speaker 01:
It has regulations that set specific time periods for the release of data, unlike in the NPRA, where it's a regulation that simply says Freedom of Information Act will govern the release.

[00:04:58] Speaker 03:
One thing that I think would be helpful, at least to me, if you would explain at some point is this is somewhat unusual situation in that we have this sort of dual regulatory authority between the federal government and the states.

[00:05:12] Speaker 03:
And in a non-Alaska context, you would not normally expect a state regulator to have much of a role in governing leasing on federal land.

[00:05:23] Speaker 03:
What exactly is your role, you the state, in regulating the drilling that's taking place within the NPRA?

[00:05:34] Speaker 01:
Thank you, Judge Miller.

[00:05:35] Speaker 01:
The Alaska Oil and Gas Conservation Commission

[00:05:38] Speaker 01:
permits and oversees the drilling of these wells.

[00:05:43] Speaker 01:
What goes into wells, what comes out of the wells, and collects the information appurtenant to that with the goal of regulating to protect correlative rights, the rights of others that might touch on the same pools with respect to protecting the environment for what might be injected into those wells and what might come out of them.

[00:06:01] Speaker 01:
So it's part of the state's general oversight of drilling.

[00:06:04] Speaker 01:
And Conoco concedes that it couldn't have drilled here.

[00:06:07] Speaker 01:
without an Alaska Oil and Gas Conservation Commission permit to do so.

[00:06:11] Speaker 01:
The AOGCC had been regulating in this area.

[00:06:14] Speaker 01:
In fact, the territorial precursor to the AOGCC had collected well data throughout the state since the 1950s.

[00:06:23] Speaker 01:
The statute applicable here that the AOGCC follows was in place since 1970.

[00:06:28] Speaker 01:
So a decade later, when Congress drafted the NPRPA to open the MPRA to private exploration in oil and gas development, it would have been aware that the AOGCC had regulatory authority, including within federal areas within the state.

[00:06:44] Speaker 03:
And so when they came to you seeking authorization to conduct the drilling, for which they all gave you the data, you could have said no.

[00:06:53] Speaker 03:
And then they would not have been able to drill?

[00:06:55] Speaker 03:
Is that right?

[00:06:56] Speaker 01:
That's correct.

[00:06:56] Speaker 01:
They would not have had a permit.

[00:06:58] Speaker 01:
They would not have been able to drill.

[00:07:00] Speaker 02:
And this is not true on the outer shelf.

[00:07:02] Speaker 01:
On the Outer Continental Shelf, this is not true.

[00:07:04] Speaker 01:
The Outer Continental Shelf is exclusively federally regulated.

[00:07:08] Speaker 01:
So the AUGCC has no authority within the Outer Continental Shelf.

[00:07:12] Speaker 01:
This is a key distinction here, which is one of the reasons that the Outer Continental Shelf Lands Act treats the flow of data between states and federal government differently than the NPRPA and explains why Congress drafted the NPRPA differently.

[00:07:24] Speaker 01:
So if we look at the NPRPA itself, that's 42 USC 6506A, we see that that statute is entirely silent on confidentiality.

[00:07:34] Speaker 01:
It opens the reserve for leasing.

[00:07:36] Speaker 01:
It recognizes that Alaska provides public services within the reserve, including setting aside half of all receipts for the state.

[00:07:43] Speaker 01:
And then it allows for geological and geophysical exploration within the reserve.

[00:07:47] Speaker 01:
And that's where Conoco focuses.

[00:07:49] Speaker 01:
That's in that subpart M. And it makes the information that's collected through those exploration activities subject to the conditions of a subparagraph of a section of the Outer Continental Shelf Lands Act.

[00:08:01] Speaker 01:
That's 43 USC 1352 A1A.

[00:08:05] Speaker 01:
That section 1352 of the Outer Continental Shelf Lands Act does two things, information collection and information dissemination.

[00:08:13] Speaker 01:
It requires Interior to collect information from explorers and lessees that are operating in the Outer Continental Shelf and then it requires Interior to disseminate that information to Outer Continental Shelf adjacent states.

[00:08:27] Speaker 01:
The NPRPA references only the information collection part of that statute, not the information dissemination.

[00:08:36] Speaker 01:
This is important because all of the discussion of confidentiality within the Outer Continental Shelf Lands Act statute arises in the context of those dissemination subparts, where Interior is giving information to states that states otherwise couldn't access themselves in the Outer Continental Shelf.

[00:08:54] Speaker 01:
Congress didn't adopt those in the MPRPA.

[00:08:57] Speaker 01:
So part of them of the MPRPA is a statute of specific reference.

[00:09:01] Speaker 01:
It references only A1A.

[00:09:03] Speaker 01:
And if Congress had wanted to incorporate more from the Outer Continental Soft Lands Act, it knows how.

[00:09:08] Speaker 01:
It could have done that by expressly identifying those additional statutes.

[00:09:14] Speaker 04:
Council, has the Department of Interior taken a position on the interpretation of this statute or on the actions in this particular lease?

[00:09:23] Speaker 01:
Not to my knowledge your honor, but I haven't spoken directly with them So and I have but they didn't they didn't they haven't entered an appearance.

[00:09:31] Speaker 04:
Nobody's followed amicus brief Nobody's issued a letter that said we object or we don't object.

[00:09:35] Speaker 03:
No, your honor You do you do you think it would make sense for us to ask them?

[00:09:40] Speaker ?:
I

[00:09:44] Speaker 01:
To the extent that Judge Miller, it might be helpful to have their perspective on how they interpret their own regulations, but I do think that their regulations and the statutes to speak for themselves here, that making the federal government's opinion on how to interpret those, not necessarily entirely helpful because this is a statutory and regulatory interpretation that the court is well suited to do.

[00:10:07] Speaker 04:
Would we have any obligation to defer to DOI's reading of the statute or the regs here?

[00:10:14] Speaker 01:
If DOI's interpretation, I don't think the court would need to necessarily defer to DOI's interpretation of the statutes and rights, but we haven't researched that, haven't briefed that, Your Honor, to the extent to which any sort of deference should apply.

[00:10:31] Speaker 04:
I'm just wondering what would happen if the Department of the Interior came in and said we have a great deal of concern.

[00:10:35] Speaker 04:
about this, because I think this is going to interfere with our ability to secure additional leases on federal property.

[00:10:44] Speaker 04:
I'm just making facts up.

[00:10:46] Speaker 04:
I'm just making things up.

[00:10:47] Speaker 04:
But if they came and said we have these concerns, and for that reason we've always understood this statute to mean this, even though there's no express preemption here, I agree with the district court on that.

[00:10:56] Speaker 04:
But we have always thought that we had an obligation to protect this information and that our lessees would have the ability to shield this information from public disclosure for a period longer than 24 months.

[00:11:09] Speaker 04:
Now, if DOI came back with something like that, what's the answer?

[00:11:13] Speaker 01:
Judge Baby, I think the answer is that if DOI said that, then it's contrary to what they said in their lease, which made it subject to all applicable laws, which includes state laws, and Conoco knew that it needed to go to the AOGCC.

[00:11:26] Speaker 01:
It would be contrary to what Congress did in the NPRPA, which has recognized the state's dual regulatory authority here.

[00:11:33] Speaker 01:
It would be contrary to Interior's own regulations, which are the only ones that apply to the NPRPA,

[00:11:38] Speaker 01:
which Conoco relies on is that 43 CFR 3152.6, which only applies to the general FOIA regulations here and doesn't actually set confidentiality periods or give operators any sort of specific terms to rely on with respect to that confidentiality.

[00:11:54] Speaker 01:
and it would also conflict with the Outer Continental Shelf Regulations, which by their terms apply to the Outer Continental Shelf, and under Conoco's reading of the regulations, Conoco actually just cherry picks one of the Outer Continental Shelf Regulations and says that one should apply, but not the others.

[00:12:10] Speaker 01:
Now the one that Conoco wants to apply is 30 CFR 552.6b, and all that says is that if Interior is going to commit to hold something confidential, it'll seek the Lessee's consent before it releases that information.

[00:12:24] Speaker 01:
Alaska's statute does the same thing.

[00:12:29] Speaker 01:
And in that subpart B of that section, it also has an accept clause at the start.

[00:12:33] Speaker 01:
Accept is provided under several other regulations.

[00:12:37] Speaker 01:
Those regulations set specific timeframes for the release of information in the Outer Continental Shelf.

[00:12:43] Speaker 01:
And in fact, with respect to leases in the Outer Continental Shelf, geological data

[00:12:48] Speaker 01:
and well data can be released as early as two years under 30 CFR 250.197 and 550.197.

[00:12:57] Speaker 01:
Conoco doesn't argue that those specific OCS timeframes apply to its operations in the MPRA.

[00:13:04] Speaker 01:
The only time frame it identifies is within its lease.

[00:13:10] Speaker 01:
And again, leases can't preempt state law.

[00:13:12] Speaker 01:
We don't have any statute or any regulation here that indicates that Congress or even Interior intended their lease terms to override independent state laws.

[00:13:23] Speaker 01:
Moreover, there's no grounds to look to legislative history here to try to find preemptive purpose.

[00:13:28] Speaker 01:
This case falls squarely within the Supreme Court's warning in Virginia uranium that looking to legislative history for preemptive purposes can end up displacing state laws with purposes that lack the democratic provenance that the Constitution demands for the semisupremacy clause to take place.

[00:13:45] Speaker 01:
Again, we need congressional indication that confidentiality, specifically confidentiality for the lifetime of Elise, mattered when Congress was drafting the NPRPA, and there is nothing there.

[00:13:57] Speaker 01:
And even when we look at the legislative history, Conoco focuses on the 105B report.

[00:14:02] Speaker 01:
This is a report that was prepared by the Department of Interior.

[00:14:06] Speaker 01:
It reflects Interior's position.

[00:14:08] Speaker 01:
It doesn't reflect Congress's position.

[00:14:11] Speaker 01:
With respect to information externalities,

[00:14:14] Speaker 01:
Interior identified several different ways to address the potential disincentives of information being released.

[00:14:20] Speaker 01:
These included joint exploration, and Congress did that in the NPRPA.

[00:14:25] Speaker 01:
It allowed for unitization.

[00:14:27] Speaker 01:
That's in subpart J. It identified larger tracts.

[00:14:30] Speaker 01:
Congress did that.

[00:14:32] Speaker 01:
It adopted 60,000 acre tracts in the NPRRA instead of the about 6,000 acre tracts you see in the outer continental shelf.

[00:14:39] Speaker 01:
Congress also expressly said in the MPRPA that it could incentivize exploration by reducing royalty rates in consultation with Alaska.

[00:14:47] Speaker 01:
That's at subpart K. But what Congress didn't do is adopt Interior's proposal of confidentiality for 10 years.

[00:14:55] Speaker 01:
That doesn't appear in the MPRA.

[00:14:56] Speaker 01:
So again, it's the absence of what Congress did here that really shows that Congress had no preemptive purposes.

[00:15:03] Speaker 01:
This court should reverse, and I'll reserve the remainder of my time.

[00:15:06] Speaker 02:
Thank you.

[00:15:23] Speaker 00:
Good morning, Your Honors.

[00:15:24] Speaker 00:
Kevin Cuddy for the Appellee ConocoPhillips Alaska, Inc.

[00:15:28] Speaker 00:
May it please the Court.

[00:15:29] Speaker 00:
The state laws at issue here undercut the federal leasing program's confidentiality requirements under the NPRPA, and thus those state laws are preempted as applied.

[00:15:39] Speaker 00:
The NPRPA protects the confidentiality of explorers' data, and the state laws requiring early public disclosure would render that federal confidentiality meaningless.

[00:15:49] Speaker 00:
Therefore, the district court's decision should be affirmed.

[00:15:53] Speaker 00:
The state laws are preempted under both the obstacle and the express preemption doctrines, but I only plan to address the obstacle preemption this morning.

[00:15:59] Speaker 00:
I'll rely on the briefing for the express issue.

[00:16:03] Speaker 00:
As to Congress's, I'll address three issues quickly, Congress's full purposes and objectives as reflected in the NPRPA's text and structure, why the state disclosure laws are an obstacle to the accomplishment of those.

[00:16:16] Speaker 04:
Council, you keep referring to state disclosure laws, but the NPRPA applies to one state.

[00:16:21] Speaker 04:
Unlike other laws, the Clean Water Act or the Clean Air Act or something where Congress might have to take into account lots of different regulatory schemes by different states, this is a one-off.

[00:16:32] Speaker 04:
And it's a little bit of a double-edged sword, but it suggests that when Congress was dealing here, that it knew precisely who it was dealing with and what their laws were.

[00:16:44] Speaker 04:
And that seems to put it in a little different posture.

[00:16:48] Speaker 00:
So I take your point, Your Honor.

[00:16:50] Speaker 00:
I think that that's frankly where the 105B report plays such an important role here, that you have the Department of Interior

[00:16:58] Speaker 00:
uh... statutorily required to conduct this study and to conduct it in consultation with the state of alaska which they did the state of alaska is weighing in on the proposed terms that would apply to this uh... this new exploration period and and that includes uh... these concepts that my friend just mentioned that uh... that permitting uh... this sort of information spillover would be a significant disincentive and therefore recommending that the the the department of interior be given the discretion

[00:17:28] Speaker 00:
to preserve the confidentiality of that data up until after the acreage is released back to the government.

[00:17:38] Speaker 00:
And the state of Alaska is saying, we agree that we don't object at all to these contract terms.

[00:17:43] Speaker 00:
We think that they make sense, and we're looking forward to having information that we'll be able to use.

[00:17:50] Speaker 00:
And so in terms of that, I just think that the Congress would be surprised by the state's subsequent action today to try to disclose this data, which was recognized as a significant disincentive to what is, I think all parties agree, the primary purpose.

[00:18:09] Speaker 04:
Council, same question I put to the state.

[00:18:11] Speaker 04:
Are you aware of DOI's views on this?

[00:18:15] Speaker 00:
DOI has not entered an appearance, and no, they've not expressed it particularly.

[00:18:21] Speaker 04:
Have they expressed surprise?

[00:18:23] Speaker 04:
Is this contrary to prior practice?

[00:18:25] Speaker 04:
Is there something here that DOI might have an interest, should we ask for DOI's views here, and would it make a difference?

[00:18:34] Speaker 00:
The court is welcome, of course, to ask DOI's advice on this issue.

[00:18:40] Speaker 00:
Yes, I believe their interpretation of the regulations would be entitled to significant deference.

[00:18:46] Speaker 00:
I don't think that the court needs to take that step in order to affirm here, and I would suspect that that may be why the Department of Interior has chosen not to get involved to this point, because preemption was found.

[00:19:00] Speaker 00:
this state disclosure law.

[00:19:02] Speaker 02:
But they didn't know that would happen before the ruling, right?

[00:19:05] Speaker 02:
I mean, they could have filed something in the district court with their view.

[00:19:08] Speaker 02:
Were they aware of this case?

[00:19:10] Speaker 00:
I can't answer that, Your Honor.

[00:19:13] Speaker 00:
But no, they did not take the opportunity to participate.

[00:19:20] Speaker 00:
So as to the purpose that we have for the MPRPA, that appears to be uncontradicted, that it was to incentivize exactly this type of exploration.

[00:19:27] Speaker 02:
So that's looking at the legislative history, but can I just ask about the text itself?

[00:19:31] Speaker 02:
So I know you have an express preemption argument, but I'm having trouble with it.

[00:19:35] Speaker 02:
So I mean, I think that's probably why you're not focused on it here today either.

[00:19:38] Speaker 02:
It's a little bit hard to put all the pieces together.

[00:19:41] Speaker 02:
And when I look at 1352G,

[00:19:44] Speaker 02:
It says it preempts state law with regard to information received or obtained by any person pursuant to this sub-chapter.

[00:19:52] Speaker 02:
Why shouldn't we read that as talking about information received by the state through Interior?

[00:19:58] Speaker 00:
Because when it's using that language, let me see if I can find it quickly, in terms of information that is obtained pursuant to this sub-chapter, that's exactly the same language that Congress used in

[00:20:11] Speaker 00:
or sorry, that is used in the regulation in 1352A, talking about the access to data and information obtained by the lessee from oil and gas exploration.

[00:20:23] Speaker 00:
In both instances, we're talking about data that is obtained through the NPRPA, which this undeniably was.

[00:20:32] Speaker 00:
That's the only way that ConocoPhillips is able to get into the NPRA is through the Department of Interior's lease through BLM.

[00:20:41] Speaker 00:
And insofar as my friend is suggesting that the ConocoPhillips would be prohibited from performing any of this exploration, even if the Department of Interior selected ConocoPhillips as an appropriate lessee, I think that gets you straight into the question of

[00:21:01] Speaker 00:
of the GEO Group versus Newsom case and whether or not the state is permitted through intergovernmental immunity to impose some sort of a license or restriction on the federal government's ability to control its program.

[00:21:15] Speaker 03:
But here, I mean, it sounds like, I mean, they could have just said, no, you can't drill at all, right?

[00:21:21] Speaker 03:
I mean, that was the position of your friend on the other side.

[00:21:23] Speaker 03:
Did you agree with that, that the state could have denied you a permit?

[00:21:29] Speaker 03:
I mean, I assume there are some state law requirements, but that for all that the federal law has to say about it, the state could have said no.

[00:21:40] Speaker 00:
Is that right?

[00:21:42] Speaker 00:
We don't believe that is right because of the Newsom case, that this idea of states trying to impose some sort of separate licensing system under the Sperry case.

[00:21:52] Speaker 00:
an entirely separate scheme that applies to federal operations for a federal function, and that is exactly what 6506A talks about, is the Department of Interior is required to conduct this expeditious leasing system.

[00:22:06] Speaker 02:
But on the, okay, this is where my outer continental shelf question comes in.

[00:22:11] Speaker 02:
The outer continental shelf I understand to be purely federal, but this NPRPA is this dual state and federal area.

[00:22:20] Speaker 02:
So I'm not sure it's the same as these private prisons.

[00:22:23] Speaker 02:
I mean, here we have a statute that's setting up this dual sovereignty situation, right?

[00:22:28] Speaker 02:
And I don't think we had that in the private prison case, did we?

[00:22:31] Speaker 00:
No, you have a generally applicable state statute that is applying both to all of the other private detention centers and also to this federal function.

[00:22:42] Speaker 00:
And so here where they're applying it to the federal function, this is an as applied challenge to the preemption statute where they're applying it to a federal leasing program conducted by a federal agency on federal lands.

[00:22:53] Speaker 00:
the fact that that state laws exist and that the state may be able to exercise police power on issues of criminal law or the environment health safety those are the sort of traditional police powers that one might talk about when you're talking about uh... prohibiting a a federal lessee from performing federal work uh... under a federal lease on federal lands no i don't i don't believe that this is state and federal land that's where i'm getting confused i mean

[00:23:20] Speaker 02:
Some of the language you want to rely on comes from the Outer Continental Shelf, where it is purely federal.

[00:23:25] Speaker 02:
But this area, as I understand it, tell me if I'm wrong, this lease is on this land that's not purely federal, right?

[00:23:32] Speaker 00:
It is federal land.

[00:23:33] Speaker 00:
There is concurrent jurisdiction.

[00:23:34] Speaker 00:
OK.

[00:23:35] Speaker 02:
And so, yes, so that seems very significant, doesn't it?

[00:23:38] Speaker 02:
I mean, Congress set this up that state law would also govern this land.

[00:23:44] Speaker 00:
Congress didn't set up the fact that that state law was going to govern on this land.

[00:23:48] Speaker 00:
That's just the

[00:23:50] Speaker 00:
the fact of the background law that applies.

[00:23:53] Speaker 00:
What the federal government did do was to say they were going to adopt in two different places in the NPRPA the provisions of the OCSLA, both for the bidding systems in subsection

[00:24:08] Speaker 00:
E or F, I forget which, and then of course in the information gathering system under subsection M. And so it's trying to adopt and incorporate these provisions, these pre-existing provisions, which is again part of what it talks about in the 105B report, that part of facilitating this, moving it forward quickly for this expeditious program is we can take a pre-baked cake.

[00:24:28] Speaker 00:
We have this system that's ready.

[00:24:31] Speaker 02:
Why didn't they incorporate more of the cake then?

[00:24:33] Speaker 02:
I don't understand.

[00:24:34] Speaker 02:
I mean they only incorporated a little bit and not everything that you're wanting.

[00:24:37] Speaker 02:
I mean, you think they did, but they didn't say it very clearly if that's what they were trying to do.

[00:24:43] Speaker 00:
We don't disagree that it's not a model of clarity, and particularly when you're trying to apply it in this dual concurrent jurisdiction system.

[00:24:53] Speaker 00:
There are questions, there is some confusion, and that is exactly the type of ambiguity that you run into when you're talking about not just the incorporation of subsection A1A of 1352, but the conditions of.

[00:25:05] Speaker 00:
Well, what does that mean?

[00:25:06] Speaker 00:
And what we've seen from the briefing just in this case, there are a number of different potentially reasonable definitions that one might incorporate.

[00:25:15] Speaker 00:
I think I counted four from the state alone in its briefing, whether it's talking about

[00:25:21] Speaker 00:
the specific particularized requirements of the program.

[00:25:25] Speaker 00:
Or maybe it's a condition in the sense that you have a legal effective document that applies once there's some uncertain contingency that's been attached.

[00:25:35] Speaker 00:
Or maybe it's the operative conditions.

[00:25:37] Speaker 00:
We have suggested instead that it should be viewed as the attendant circumstances using dictionary definitions.

[00:25:44] Speaker 03:
But I don't see how any of those gets you

[00:25:47] Speaker 03:
How any understanding of conditions of A1A gets you G.

[00:25:56] Speaker 00:
There are two different points.

[00:25:57] Speaker 00:
The first is on what the conditions of it will be.

[00:26:01] Speaker 00:
The conditions of A1A, talking about how this data is coming in and what conditions attach to that information.

[00:26:08] Speaker 00:
The conditions that attach include confidentiality under 1352C, it includes what purposes it's supposed to be used for under 1352B, and it also includes the preemption provision we submit under 1352G.

[00:26:21] Speaker 00:
You don't need to get to the express preemption provision.

[00:26:24] Speaker 00:
We believe that it is encapsulated within those conditions that apply to, that attach to all of the data that is obtained under the NPRPA through 1352A1A.

[00:26:36] Speaker 00:
You don't have to get there in order to affirm here because 1352A1A also requires the promulgation of these regulations, which the department did, including through 30 CFR 552.6B, which provides this confidentiality protection.

[00:26:56] Speaker 03:
And we also have- And just to be clear, the OXLA regulations don't, in terms like

[00:27:04] Speaker 03:
By their literal terms, they don't apply to this information.

[00:27:07] Speaker 03:
You're just saying that we should draw an inference from them about how Congress and DOI would want this information to be treated.

[00:27:17] Speaker 03:
Is that right?

[00:27:19] Speaker 00:
No, I mean, we believe that in incorporating in subsection M of the NPRPA, it is saying that all the information that is obtained from the NPRA will be subject to the conditions of 1352A1A, and then within A1A, it says

[00:27:38] Speaker 00:
that the secretary shall provide these regulations to deal with how the state is to be provided.

[00:27:45] Speaker 00:
Those regulations in turn, 552.6B, include that confidentiality.

[00:27:51] Speaker 03:
So I don't know that it's an inference so much as just following the... But the 552.6B is about disclosure by the United States of information given to it.

[00:28:03] Speaker 03:
And now maybe you can draw an inference.

[00:28:04] Speaker 03:
Well, if they weren't going to disclose it themselves, they wouldn't want the state disclosing it.

[00:28:08] Speaker 03:
But it doesn't, the literal text does not apply to the state disclosing information that someone has given to it, does it?

[00:28:17] Speaker 00:
So there are three quick responses to that if I can.

[00:28:19] Speaker 00:
The first is that 552.6 is in the arena of, it's with the backdrop of this express preemption world that is OXLA.

[00:28:31] Speaker 00:
And so I think it's fair to infer that that was understood that if the federal government can't share this information, it can't be shared because only the federal government would have it.

[00:28:40] Speaker 00:
The second is that subsection B is not specific to the federal government providing or not providing it.

[00:28:47] Speaker 00:
It says that simply no data or information that's determined by the director to be exempt shall be provided to the public unless the lessee agrees to that action.

[00:28:58] Speaker 00:
So the subsection B is not specific just to what the federal government may do.

[00:29:04] Speaker 00:
And then the third

[00:29:05] Speaker 00:
kind of broader point is that uh... certainly if the whole point which it is the whole point of the NPRPA is to protect the confidentiality to promote uh... the uh... the exploration and we recognize that sharing this information with our competitors at a very early stage within two years after a well is drilled even though we know from the record that it can take ten years between

[00:29:33] Speaker 00:
finding this resource and actually being able to produce it, two years isn't going to cut it.

[00:29:38] Speaker 00:
And so what the Department of Interior here is saying, we're going to ensure that this information is protected until there is consent.

[00:29:45] Speaker 00:
And that consent is then provided through the lease, which is a regulatorially defined document.

[00:29:51] Speaker 00:
All of those, the lease must be established through the form agreement that the department puts forward.

[00:30:00] Speaker 00:
I believe it's 31,

[00:30:03] Speaker 00:
It's 43 CFR 3132.5-1.

[00:30:06] Speaker 00:
So you have the lease that we are working from that provides when that consent will be permitted, which is to say after the termination of lease, that comes directly from the regulations.

[00:30:17] Speaker 00:
So I think my friend is simply mistaken on that point.

[00:30:22] Speaker 00:
So having talked about what the purpose here is to try to incentivize that exploration, and I do see that I'm out of time.

[00:30:28] Speaker 00:
If I can try to finish this thought quickly.

[00:30:31] Speaker 02:
Just go ahead and finish the thought and then.

[00:30:33] Speaker 00:
uh... there can be no doubt that uh... that the state laws as applied undermine that purpose confidentiality only matters if the data is actually confidential so the fact that everyone seems very comfortable with the idea that the federal government would be required to protect that confidentiality does not matter if you have the state over here or local government or any third party who's able to go out and and share that information

[00:30:59] Speaker 00:
with anyone that they see fit for their own purposes.

[00:31:03] Speaker 00:
It's the federal government's choice for a federal program on federal lands with federal leases, and we submit that the law should be preempted.

[00:31:09] Speaker 00:
Happy to answer any other questions, but I appreciate the panel's time.

[00:31:13] Speaker 02:
Thank you very much.

[00:31:15] Speaker 02:
I don't remember how much time we have left.

[00:31:20] Speaker 02:
We could make it two minutes.

[00:31:21] Speaker 02:
That'll be fine.

[00:31:24] Speaker 01:
Thank you, Your Honor.

[00:31:24] Speaker 01:
I appreciate that.

[00:31:27] Speaker 01:
Quick point on the last point that Council just made with respect to the regulations calling for the lease itself.

[00:31:35] Speaker 01:
That regulation 43 CFR 3132-5.1 simply says that Interior shall create a form for the leases.

[00:31:45] Speaker 01:
It doesn't set the lease terms.

[00:31:46] Speaker 01:
Again, this life of lease confidentiality can't be found

[00:31:50] Speaker 01:
and interiors regulations that apply to the NPRA and it can't be found in the statutes.

[00:31:57] Speaker 01:
A regulation that simply says BLM make a form is not enough.

[00:32:01] Speaker 01:
I'd submit to preempt state statutes.

[00:32:09] Speaker 01:
I'd like to also address

[00:32:14] Speaker 01:
The issue of a subpart G and pursuant to the subchapter and its very terms.

[00:32:20] Speaker 01:
Now, again, looking at the Outer Conditional Lands Act, the Section 1352, it does the two things, information collection and information dissemination, and the NPRPA only talks about and only references the information collection.

[00:32:31] Speaker 01:
That's actually important because when firms would go out and were looking at exploring in the outer continental shelf, they thought that the data would be kept, that it would be their own proprietary information.

[00:32:40] Speaker 01:
The federal government's saying, no, you're going on federal property.

[00:32:43] Speaker 01:
You're going to give us the information.

[00:32:44] Speaker 01:
And the federal government said, we're going to do the same thing in the MPRA.

[00:32:47] Speaker 01:
You're going to go on federal property.

[00:32:48] Speaker 01:
We're going to collect the information, but they didn't incorporate all those dissemination to state parts.

[00:32:54] Speaker 01:
Those included sending summaries to states, sending data to states under agreements with governors where states waive sovereign immunity and agree to be bound by whatever federal confidentiality provisions might apply.

[00:33:07] Speaker 01:
The record here shows, and this is an excerpt of record page 75, that the AOGCC doesn't get data from BLM.

[00:33:14] Speaker 01:
It has to go out and collect it independently.

[00:33:16] Speaker 01:
So even when we look at G, where it talks about preemption to the extent that this section applies to the information, the section doesn't apply to that information in any sort of preemptive way.

[00:33:27] Speaker 01:
Because even if it calls generally for confidentiality, it doesn't do so for information that's independently collected.

[00:33:33] Speaker 01:
It only applies to that dissemination in the Outer Continental Shelf.

[00:33:37] Speaker 01:
Submit that the MPRA is an entirely different framework, different agencies, different regulatory rules.

[00:33:43] Speaker 01:
And when we look at the text and the regulations, we'll find no evidence of preemptive purposes or lengthy confidentiality that runs afoul of state law.

[00:33:53] Speaker 02:
Thank you both sides for the helpful arguments.

[00:33:55] Speaker 02:
This case is submitted and we're adjourned for the day.