Before DAVIS, CYNTHIA HOLCOMB HALL,(1)
and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Snyder Oil Corporation ("Snyder") appeals
an order granting transfer to the Southern District of Alabama pursuant
to 28 U.S.C. § 1404(a). We affirm.
Samedan Oil Corporation ("Samedan") entered into a joint operating agreement
("JOA") for the development of a federal oil and gas lease granted by the
United States Department of Interior Minerals Management Service ("MMS").
The lease covered "Block 261, Main Pass Area, South and East Addition,"
which is located on the Outer Continental Shelf ("OCS"). The property is
commonly referred to as "Main Pass 261" or "Block 261."
Snyder sued in the Western District of Louisiana,
seeking a declaratory judgment regarding the rights of the parties under
the JOA. Samedan subsequently sued, asserting claims in the Southern District
of Alabama, then moved to dismiss or transfer the Louisiana suit. The court
denied the motion to dismiss but transferred pursuant to 28 U.S.C. §
1404(a), based on a finding that Alabama law will govern and that Alabama
therefore has the most interest in the outcome of the litigation. The court
then certified an interlocutory appeal under 28 U.S.C. § 1292(b),
and we granted leave to appeal.
The order of transfer was based on a choice
of law determination, and because Block 261 is located in federal waters
on the OCS, the controlling law is found in the Outer Continental Shelf
Lands Act ("OCSLA"), 43 U.S.C. §§ 1331-1356, which vests the
United States with jurisdiction over the soil and seabed of the oceans
and artificial islands and fixed structures located thereon, and grants
to the United States the mineral resources that are part of the OCS. Section
1333(a)(2)(A) of that Act provides:
To the extent that they are applicable . .
. the civil and criminal laws of each adjacent State . . . are hereby declared
to be the law of the United States for that portion of the subsoil and
seabed of the outer Continental Shelf, and artificial islands and fixed
structures erected thereon, which would be within the area of the State
if its boundaries were extended seaward to the outer margin of the outer
Continental Shelf, and the President shall determine and publish in the
Federal Register such projected lines extending seaward and defining each
This Congressionally mandated choice of law
provision trumps any contrary contractual provisions. See Union Tex.
Petroleum Corp. v. PLT Eng'g, Inc., 895 F.2d 1043, 1050 (5th Cir. 1990).
The parties agree that § 1333(a)(2)(A)
is controlling, but Snyder contests the court's application of that section.
Because the President has not published the "projected lines" required
by § 1333(a)(2)(A), the courts must adjudicate adjacency in private
disputes governed by OCSLA. We conducted the required "adjacency determination"
in Reeves v. B & S Welding, Inc., 897 F.2d 178 (5th Cir. 1990),
and the district court and both parties recognize Reeves as the
The issue is whether the district court's
application of Reeves is correct as a matter of law. The court found
Block 261 to be "adjacent" to Alabama for purposes of § 1333(a)(2)(A)
and therefore held that Alabama law governs the dispute.
In Reeves, we held that a platform
located in the High Island Field in the Gulf of Mexico was "adjacent" to
Texas within the meaning of § 1333(a)(2)(A). We considered, inter
alia, the following evidence:
Testimony and exhibits before the district
court showed that [the subject platform] is closer to the Texas coast than
to the Louisiana coast. Charts submitted by Exxon also indicated that the
High Island Field is considered to be "adjacent" to Texas, rather than
Louisiana, by the United States Department of Interior Bureau of Land Management,
the United States Department of Interior Mineral Management Service, the
National Oceanic & Atmospheric Administration, and the Coast Guard.
Reeves, 897 F.2d at 179.
We also considered that other courts had construed
platforms located in the High Island Field to be adjacent to Texas under
OCSLA, specifically citing two Louisiana district court opinions. See
id. at 179-80. Lastly, we discussed four proposed "boundary projections,"
two of which would locate the platform in Texas waters and two of which
would locate it in Louisiana waters. See id. at 180. In other words,
if these lines were promulgated by the President pursuant to OCSLA, two
of them would result in the platform's being "adjacent" to Texas, and two
would result in its being "adjacent" to Louisiana.
We rejected the appellant's projected lines
as unsupported but considered both of the appellee's projected lines to
be plausible, the latter two being "fully consistent with the existing
Texas/Louisiana boundary established by the Supreme Court." Id.
We therefore determined that "[f]or purposes of this case, we need not
decide which of appellees [sic] proposed boundaries is the proper
one," because under either boundary projection the platform was "adjacent"
to Texas. Id.
In considering these projected lines, we noted
[i]t would not be proper in this case to adjudicate
the boundary itself. That would call for more thorough production of evidence
and consideration by the court. It is also a matter of significant concern
to the two states themselves, and they should be heard if that issue were
to be litigated.
Id. Therefore, while Reeves
instructs that proposed boundary projections are relevant to a private
dispute, it would be improper for a court to hold that a given boundary
projection was conclusively established for purposes of § 1333(a)(2)(A).
Reeves concludes as follows:
It is enough that the record evidence before
the district court confirms that [the subject platform] is closer to the
Texas coast than the Louisiana coast, that the relevant federal agencies
consider [the subject platform] to be off the Texas coast, that other courts
have considered other High Island platforms to be adjacent to Texas, and
that the boundary between Texas and Louisiana projected out into the Gulf
in its original direction from the shore, places [the subject platform]
within Texas waters. So also does a line projected directly southward from
the Texas three league territorial boundary. We conclude, therefore, that
the district court did not err in holding that [the subject platform] is
"adjacent" to Texas for purposes of the OCSLA.
Id. While we did not articulate a specific
test, we therefore considered four types of evidence in the "adjacency"
analysis: (1) geographic proximity; (2) which coast federal agencies consider
the subject platform to be "off of"; (3) prior court determinations; and
(4) projected boundaries.
The President has failed to publish the boundary
projections required by OCSLA, and the responsible federal agency, the
MMS, refused the parties' request to make an adjacency determination. Therefore,
the district court applied the multi-factored
While both parties recognize Reeves
as controlling, Snyder requests that we "clarify"
Reeves to hold
that in the absence of an express determination of "adjacency" pursuant
to § 1333(a)(2)(A) by an authorized federal agency, geographic proximity
is determinative.(3) To label this request
a "clarification," Snyder cites a related section of OCSLA and a district
court case stressing proximity, rejects as irrelevant all federal agency
determinations not specific to this statutory section, claims Reeves's
consideration of other court opinions was merely a recitation of comity
and stare decisis, and urges that all discussion of projected boundaries
in Reeves was needless
dictum. An analysis of these assertions
demonstrates the errors in Snyder's contentions.
Snyder cites Pittencrieff Resources, Inc.
v. Firstland Offshore Exploration Co., 942 F. Supp. 271 (E.D. La. 1996),
for the proposition that geographic proximity is determinative. Pittencrieff
held that the subject property was "adjacent" to Alabama for purposes of
OCSLA because it was nearer to the Alabama coast than to the Louisiana
As an initial matter, a district court's interpretation
of Reeves would not alter that holding. Further, Pittencrieff
determined "adjacency" on the sole ground of geographic proximity,
because "[n]o party to this action has disputed that Alabama is the closest
state geographically, and no party has provided any reason why Louisiana
or Florida should be considered the adjacent state." Id. at 277.
This is entirely consistent with the Reeves multi-factored analysis;
if the parties present evidence on only one factor, that factor is controlling.
Snyder also cites 43 U.S.C. § 1333(c),
which states that
[f]or the purposes of the National Labor Relations
Act . . . any unfair labor practice . . . occurring upon any artificial
island . . . referred to in [§ 1333(a)] shall be deemed to have occurred
within the judicial district of the State, the laws of which apply to such
artificial island . . . pursuant to [§ 1333(a)], except that until
the President determines the areas within which such State laws are applicable,
the judicial district shall be that of the State nearest the place of location
of such artificial island.
If proximity were controlling for purposes
of § 1333(a)(2)(A) as a statutory matter because of inclusion of §
1333(c), we would not have considered other evidence in Reeves:
That other evidence would have been irrelevant, regardless of whether it
was consistent or inconsistent with this "controlling" factor. Reeves
rejects Snyder's proposed interpretation. The presence of § 1333(c)
demonstrates that Congress was aware of the desirability of "default" provisions
pending Presidential action, but it chose not to provide such provisions
for § 1333(a)(2)(A).
Snyder eschews as irrelevant all state and
federal agency actions other than a federal agency's "actual, express determination
of adjacency for purposes of the OCSLA." The
Reeves court considered
charts indicating that the following federal agencies considered the subject
platform to be off the Texas coast: the Department of Interior Bureau of
Land Management, MMS, the National Oceanic and Atmospheric Administration
("NOAA"), and the Coast Guard.
The parties agree that MMS would have authority
to issue official projections under § 1333(a)(2)(A). If it did so,
the determination of adjacency would be a relatively simple matter of application
not requiring the Reeves approach. Until such official projections
are published, however, some agency's determination "pursuant" to that
section is no more relevant than an agency's adjacency determination for
some other purpose. The former may be more probative if it is believed
that the agency more closely followed the dictates of § 1333(a)(2)(A),
but it is not "more relevant."
Rule 401, Fed. R. Evid., defines "relevant
evidence" as "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence." Agency determinations
of projected boundaries, or other determinations of a similar nature, make
it more probable that if the President does ever "project boundaries" those
boundaries will be consistent with these other agency determinations. For
example, if all federal agencies have, for various reasons, determined
that a platform is off the coast of Texas, it is more probable that the
President will project a boundary such that the platform is "adjacent"
As long as the President fails to perform
and publish the § 1333(a)(2)(A) calculations, we must follow Reeves
in considering all relevant evidence. Reeves did not establish a
strict four-factor test, but instead considered all four categories of
relevant evidence before the court. Pittencrieff correctly followed
by considering the one piece of relevant evidence before it, and the district
court correctly considered all relevant evidence in making its determination.
We cannot apply the formalistic test desired by Snyder, for neither logic
nor authority allows this court arbitrarily to disregard all relevant evidence
except that of geographic proximity.(4)
Having rejected Snyder's interpretation of
we must consider whether the district court considered categories of evidence
that are legally irrelevant to a § 1333(a)(2)(A) "adjacency" determination.
In its "Reasons for Judgment," the district court found that references
to Alabama in certain Snyder contracts "sp[oke] volumes as to the intent
of [Snyder] and their [sic] original acknowledgment of the location of
Block 261." Because § 1333(a)(2)(A) is a mandatory choice of law provision,
intent is irrelevant. See Union Texas, 895 F.2d at1043. Although
consideration of such intent would therefore constitute error, the court's
statement, read in context, makes plain either that the court either knew
not to consider such intent in making its legal determination or that at
least such consideration did not affect that determination:
After considering [federal agency determinations]
along with the other
Reeves factors this court is persuaded that
Main Pass 261 is located offshore Alabama, and, therefore, this matter
should be transferred. It should also be noted that in other contracts
between [Snyder] and other parties, [Snyder] refers to Main Pass 261 and
Block 261 as being located "offshore Alabama."
(Emphasis added.) Therefore, contrary to Snyder's
assertion, the court did not improperly consider "intent" evidence.
Samedan submitted charts, maps, notices, and
reports published by the MMS, the Bureau of Land Management, NOAA, and
the Coast Guard, supporting the conclusion that Block 261 is considered
to be off the coast of Alabama.(5) Samedan
also presented evidence that the Louisiana State Lands Office does not
consider Block 261 to be off the coast of Louisiana, but that Alabama state
agencies do consider it to be off Alabama. Lastly, Samedan presented evidence
that if the Mississippi-Alabama border is extended seaward from the three
mile line through the OCS, either due south or in the natural southeasterly
direction of the common boundary (the two projections favorably considered
in Reeves), Block 261 lies eastward of the extension and hence is
in Alabama waters.(6)
The documentary evidence introduced by Samedan
demonstrates that several federal government agencies, for purposes other
than OCSLA, have considered Block 261 to be off the coast of Alabama. For
example, an MMS chart and diagram illustrates the Mississippi-Alabama boundary
and the MMS extension of that boundary seaward into federal waters. Snyder
does not dispute that a continuation of that line places Block 261 in Alabama
waters. Likewise, an MMS notice to lessees articulates that activities
in the Block 261 area affect only Alabama.
Also introduced was an NOAA report containing
the NOAA's extension of boundaries for a now-defunct federal program; it
is undisputed that the Louisiana-Mississippi boundary so extended is significantly
west of Block 261.(7) A chart demonstrated
that Block 261 falls within the jurisdiction of the Alabama district of
the Coast Guard Captain of the Port Zone,(8)
and a U.S. Geological Survey report refers to the area of Block 261 as
the "Mississippi-Alabama" OCS.
Citing Rhoads v. Virginia-Florida Corp.,
476 F.2d 82 (5th Cir. 1973), Snyder argues that this documentary evidence
is irrelevant without testimony as to what the documents were intended
to convey. Rhoads held that private surveyor drawings that had not
been verified by testimony were not admissible for testimonial use. We
[b]efore the documents could be admitted for
"testimonial use," that is, where the documents themselves would "testify"
as direct evidence on a material disputed issue of fact, they were required
to be verified. "[W]henever such a document is offered as proving a thing
to be as therein represented, then it is offered testimonially, and it
must be associated with a testifier." 3 Wigmore, On Evidence, § 790,
at 218 (Chadbourn ed. 1970). Verification required at the minimum a showing
by the testimony of some competent witness that the lines of the drawings
were correct representations of the actual physical characteristics of
the land and objects which they purported to show.
Rhoads, 476 F.2d at 85.
Although Samedan does not distinguish its
proffers from those in Rhoads, they are distinguishable.(9)
When considering admissibility, the initial step is always to determine
the purpose for which the documents are being offered. See 22 Charles
A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure
§ 5164, at 38 (1978). Rhoads notes that in Florida a private
survey could be used as direct evidence, but only if it was shown to be
"a resurvey tieing into or based on lines, calls and measurements previously
established by the official U.S. government survey, if there is one, and
if not, the oldest private survey under which property rights in the area
were originally acquired." Rhoads, 476 F.2d at 85 n.5. We observed
that without testimony, "[t]here [was] no evidence that lines, calls and
monuments portrayed on the drawings were based on or tied in to [sic],
or derived from, an official survey or the oldest private survey." Id.
Taken in context, the quotation by Wigmore
relied on in Rhoads is as follows:
It may, sometimes, to be sure, not be offered
as a source of evidence, but only as a document whose existence and tenor
are material in the substantive law applicable to the case, as where .
. . in ejectment for land conveyed by deed containing a map, the map is
to be used irrespective of the correctness of the drawing; here we do not
believe anything because the map represents it. But whenever such a document
is offered as proving a thing to be as therein represented, then
it is offered testimonially, and it must be associated with a testifier.
Wigmore On Evidence § 790, at 218 (Chadbourn
ed. 1970). The documentary evidence presented by Samedan is admissible
for reasons akin to the ejectment example given by Wigmore. The district
court did not use the evidence of agency determinations because it believed
that information to be "correct," whatever that would mean where an infinite
number of boundary projections are possible. Instead, the court considered
the evidence because irrespective of whether it is "correct" in some abstract
sense, the fact that the agencies consider the location to be off the coast
of Alabama makes it more probable that the President will "project" a boundary
that agrees with this result.
The admissibility of the documentary evidence
is further supported by Wigmore's treatment of official reports. Wigmore
favorably recommends the Uniform Official Reports as Evidence Act (1936),
which provides as follows:
Written reports or findings of fact made by
officers of this State on a matter within the scope of their duty as defined
by statute shall, in so far as relevant, be admitted as evidence of the
matters stated therein. . . . Any adverse party may cross-examine any person
making such reports or findings or any person furnishing information used
therein; but the fact that such testimony may not be obtainable shall not
affect the admissibility of the report or finding, unless, in the opinion
of the Court, the adverse party is unfairly prejudiced thereby.
Wigmore, supra, § 1673 at 822.
Therefore, because official reports are inherently
more reliable than are private reports, and, more importantly, because
the reports are relevant irrespective of whether they are "correct," the
court properly considered the documentary evidence.
Snyder contends that Samedan's affidavit and
deposition testimony are irrelevant.(10)
Mr. Mayeux, a registered land surveyor in five states, examined the agency
maps and charts submitted by Samedan. He confirmed the location of Block
261 thereon and concluded that an extension of the Mississippi-Alabama
boundary, whether due south or in its natural southeasterly direction,
results in Block 261's falling on the Alabama side of the extension. Mr.
St. Romain, Administrator of the Louisiana State Lands Office, stated that
Block 261 is not "considered by the Louisiana State Land Office to be located
in waters adjacent to the State of Louisiana." Mr. Gane, Chief of Coastal
Programs for the Alabama Department of Environmental Management, stated
that that agency considers Block 261 to be subject to its management. Mr.
Griggs, director of the Alabama Department of Conservation and Natural
Resources, Land Division, stated that the Land Division considers Block
261 to be located adjacent to Alabama. Mr. Easterly, who represented Louisiana
in the development of the NOAA report proffered by Samedan, stated that
the program defined adjacency by using an extended lateral seaward boundary
of the state.
These categories of evidence are admissible.
Experts may examine and discuss federal agency reports. While not considered
by the court in Reeves, there is likewise no reason to deem irrelevant
the opinions of affected state agencies--they may be less probative than
are opinions of federal agencies, but they are not irrelevant. In the absence
of Presidential action pursuant to § 1333(a)(2)(A), it is relevant
what affected federal and state agencies have determined, regardless of
whether their determinations are "correct" in some abstract sense.