Valladolid v. Pacific Operations Offshore, LLP

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUISA VALLADOLID, 
Petitioner,
v.
No. 08-73862
PACIFIC OPERATIONS OFFSHORE,
LLP; INSURANCE COMPANY OF THE  BRB No. 07-965
STATE OF PENNSYLVANIA; and OPINION
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board

Argued and Submitted
March 9, 2010—San Francisco, California

Filed May 13, 2010

Before: Stephen Reinhardt and Jay S. Bybee, Circuit Judges,
and James V. Selna,* District Judge.

*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.

6933
6936 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE

COUNSEL

Timothy K. Sprinkles, Law Office of Charles D. Naylor, San
Pedro, California, and Joshua T. Gillelan II, Longshore
Claimants’ National Law Center, Washington, DC, for the
petitioner.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6937
Michael W. Thomas, Laughlin, Falbo, Levy & Moresi LLP,
San Francisco, California, for the respondents.

OPINION

SELNA, District Judge:

In this case, we consider whether an employee must be
injured on the outer continental shelf to be eligible for work-
ers’ compensation benefits under the Outer Continental Shelf
Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The two
other circuits that have considered this question have reached
conflicting conclusions.

I.

Decedent Juan Valladolid worked for Pacific Operations
Offshore as a roustabout, stationed primarily on one of Pacific
Operations’s two offshore drilling platforms. He was killed,
however, on the grounds of Pacific Operations’s onshore oil-
processing facility when he was crushed by a forklift. His
widow seeks workers’ compensation benefits under OCSLA
and the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. § 901 et seq.

Pacific Operations runs two offshore oil drilling platforms,
the Hogan and the Houchin, both located more than three
miles off the coast of California. Valladolid spent roughly
98% of his working time aboard the Hogan. As a roustabout,
his work primarily consisted of cleaning and maintenance
duties: picking up litter, emptying trash cans, washing decks,
painting, fixing equipment, and helping load and unload the
platform crane.

Valladolid also spent time working at Pacific Operations’s
onshore oil flocculation facility, located on the California
6938 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
coast just 250-300 feet from the shore.1 This facility, referred
to as La Conchita, received crude oil slurry from the Hogan
and the Houchin via pipeline. The slurry would then be pro-
cessed, separating its oil, gas, water, and solid constituents,
with the oil and gas routed off site through pipelines to third
parties. Valladolid performed maintenance duties at La Con-
chita, including painting, sandblasting, weed-pulling, cleaning
drain-culverts, and operating a forklift.

Crew members traveled to and from the offshore platforms
on a crew boat departing from the Casitas Pass Pier, located
about three miles from La Conchita. The crew boat was also
used to ferry equipment and supplies and to remove scrap
metal—pieces of old pipe, storage tanks, catwalks, chain, and
cables—from the platforms. The scrap metal was ferried to
the Casitas Pass Pier, where it was loaded into trucks and
driven to La Conchita. There it was dumped at various spots
on the property. Neither the loading crew at the pier nor the
truck drivers were employed by Pacific Operations.

One of Valladolid’s duties at La Conchita was to “central-
ize” the scrap metal from the various locations so that third-
party scrap metal vendors could pick the metal up and haul it
away. Valladolid would use a forklift to retrieve the scattered
metal and transport it to a central location. The consolidation
process was performed roughly once every two years. Valla-
dolid was killed during this process when he was crushed by
a forklift.

Petitioner, Valladolid’s widow, received death benefits
under California’s workers’ compensation scheme. She also
filed a claim for benefits under the LHWCA, both directly
under the LHWCA and via the OCSLA extension to outer
1
Pacific contends that the facility is actually 250-300 yards from the
ocean. Because our decision does not turn on the difference between 250-
300 feet and 250-300 yards, we assume for the purposes of this appeal that
Petitioner’s measure is correct.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6939
continental shelf workers. After informal proceedings before
the local district director of the Department of Labor’s Office
of Workers’ Compensation Programs, the matter was referred
to an Administrative Law Judge (“ALJ”).

The ALJ denied Petitioner’s OCSLA claim on the grounds
that Valladolid’s injury had occurred outside the geographic
situs of the outer continental shelf. The ALJ denied the
LHWCA claim on two grounds: (1) Valladolid was not
engaged in maritime employment, and (2) he was not injured
on a maritime situs. The Benefits Review Board (“BRB”)
upheld the ALJ’s denial of the OCSLA benefits under the
“situs-of-injury” test, and affirmed the denial of LHWCA
benefits on the maritime situs ground. The BRB did not reach
the maritime employment issue.

II.

We have jurisdiction to review the final orders of the BRB
under 33 U.S.C. § 921(c). We review the BRB’s decisions for
errors of law and adherence to the substantial evidence stan-
dard. Pedroza v. BRB, 583 F.3d 1139, 1143 (9th Cir. 2009).
The BRB’s decisions on questions of law are reviewed de
novo. M. Cutter Co. v. Carroll, 458 F.3d 991, 993 (9th Cir.
2006). Because the BRB is not a policymaking body, its con-
structions of the LHWCA are not entitled to special defer-
ence. Dyer v. Cenex Harvest States Coop., 563 F.3d 1044,
1047 (9th Cir. 2009). However, the Court must “respect the
[BRB’s] interpretation of the statute where such interpretation
is reasonable and reflects the policy underlying the statute.”
Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049,
1052 (9th Cir. 2009) (quoting McDonald v. Dir., Office of
Workers’ Comp. Programs, 897 F.2d 1510, 1512 (9th Cir.
1990)).

III.

[1] The LHWCA provides compensation for the disability
or death of a maritime employee “if the disability or death
6940 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
results from an injury occurring upon the navigable waters of
the United States.” 33 U.S.C. § 903(a). Under the OCSLA
workers’ compensation provision, LHWCA benefits are
extended to:

[the] disability or death of an employee resulting
from any injury occurring as the result of operations
conducted on the outer Continental Shelf for the pur-
pose of exploring for, developing, removing, or
transporting by pipeline the natural resources, or
involving rights to the natural resources, of the sub-
soil and seabed of the outer Continental Shelf.

43 U.S.C. § 1333(b). The outer continental shelf is comprised
of “all submerged lands lying seaward and outside of the area
of lands beneath navigable waters”—that is, submerged lands
lying outside the territorial jurisdiction of the states. Id.
§ 1331(a); see id. § 1301(a)(2). State jurisdiction over off-
shore lands generally extends three miles from the coast line,
though in certain cases not relevant here, it may extend fur-
ther. See id. § 1301(a)(2).

[2] Petitioner contends that the BRB impermissibly applied
a “situs-of-injury” requirement for OCSLA workers’ compen-
sation, denying her claim because her husband was killed on
shore and not on the outer continental shelf. This is an issue
of first impression in the Ninth Circuit. Two other circuits
presented with this exact issue have reached conflicting con-
clusions.

In Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d
805 (3d Cir. 1988), the Third Circuit rejected the situs-of-
injury test and held that a claimant need only satisfy a “but
for” test in establishing that the injury occurred “as the result
of” operations on the outer continental shelf. Id. at 809-11.
Accordingly, an employee injured in a car accident on his
way to meet a helicopter that would take him to an offshore
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6941
platform was eligible for OCSLA disability benefits. Id. at
806, 811.

However, in Mills v. Director, Office of Workers’ Compen-
sation Programs, 877 F.2d 356 (5th Cir. 1989) (en banc), the
Fifth Circuit adopted a situs-of-injury requirement for
OCSLA claims. Under Mills, an OCSLA claimant must show
that the injury occurred on an outer continental shelf platform
or on the waters above the outer continental shelf, in addition
to satisfying the “but for” test. Id. at 362; see also Becker v.
Tidewater, Inc., 586 F.3d 358, 366-67 (5th Cir. 2009); Pickett
v. Petroleum Helicopters, Inc., 266 F.3d 366, 368 (5th Cir.
2001); Sisson v. Davis & Sons, Inc., 131 F.3d 555, 558 (5th
Cir. 1998). Thus, a welder injured during the onshore con-
struction of a platform destined for the outer continental shelf
was not eligible for OCSLA disability benefits. Mills, 877
F.3d at 357, 362.

A.

Aside from the two conflicting Court of Appeals decisions,
there is little precedent on the question before us. The
Supreme Court touched on the question in passing in Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986). The relevant
issue there was whether a choice-of-law provision in OCSLA,
43 U.S.C. § 1333(a)(2)(A), applied so as to allow the widows
of employees killed in a helicopter crash to pursue a wrongful
death action under state law. Id. at 209. Section 1333(a)(2)(A)
applies the law of the nearest state as surrogate federal law for
“the subsoil and seabed of the outer Continental Shelf, and
artificial islands and fixed structures erected thereon.” 43
U.S.C. § 1333(a)(2)(A). The Court declined to extend this
provision to an accident occurring on the waters above the
outer continental shelf, finding that “Congress determined that
the general scope of OCSLA’s coverage . . . would be deter-
mined principally by locale, not by the status of the individual
injured or killed.” Tallentire, 477 U.S. at 219. In an accompa-
nying footnote, the Court added:
6942 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
Only one provision of OCSLA superimposes a status
requirement on the otherwise determinative OCSLA
situs requirement; § 1333(b) makes compensation
for the death or injury of an “employee” resulting
from certain operations on the Outer Continental
Shelf payable under the Longshoremen’s and Harbor
Workers’ Compensation Act. We note that because
this case does not involve a suit by an injured
employee against his employer pursuant to
§ 1333(b), this provision has no bearing on this case.

Id. at 219 n.2.

Pacific Operations contends that this footnote is dispositive
of this case. We, on the other hand, agree with the Third Cir-
cuit that Tallentire is simply not on point. See Curtis, 849
F.2d at 810. Tallentire dealt with the applicability of the
§ 1333(a)(2)(A) choice-of-law provision, not the § 1333(b)
benefits provision, as explicitly noted by the Court. 477 U.S.
at 219 n.2 (“[Section 1333(b)] has no bearing on this case”).
The Court’s footnote about § 1333(b) is textbook dictum.

Of course, we treat the considered dicta of the Supreme
Court with greater weight and deference “as prophecy of what
that Court might hold.” United States v. Montero-Camargo,
208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (quoting
Zal v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992) (Noonan, J.,
concurring and dissenting)). They are not to be “blandly
shrug[ged] . . . off because they were not a holding.” Zal, 968
F.2d at 935 (Noonan, J., concurring and dissenting). We do
not blindly, however, follow an unconsidered statement sim-
ply because it was uttered by the Supreme Court. See
Montero-Camargo, 208 F.3d at 1132 n.17. As the Court itself
has noted, “general expressions, in every opinion, are to be
taken in connection with the case in which those expressions
are used. . . . [T]heir possible bearing on all other cases is sel-
dom completely investigated.” Humphrey’s Executor v.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6943
United States, 295 U.S. 602, 627 (1935) (quoting Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821)).

For the following reasons, we are convinced that the foot-
note in Tallentire is of the unconsidered variety not entitled
to special deference. The § 1333(b) benefits issue was not
before the Court, was not briefed by the parties, and had no
relevance to the case before it. See Tallentire, 477 U.S. at 219
& n.2. There is no analysis or reasoning behind the Court’s
statement that a situs requirement applies to § 1333(b). See id.
These circumstances strip the dictum of any predictive or per-
suasive value. See District of Columbia v. Heller, 128 S. Ct.
2783, 2816 n.25 (2008).

Moreover, the import of the Court’s statement to the case
at hand is debatable. The Court spoke generally of an OCSLA
“situs” requirement, but it is not clear that the Court’s state-
ment requires a “situs-of-injury,” as opposed to a “situs-of-
operations,” test. Section 1333(b) applies only to injuries
occurring “as the result of operations conducted on the outer
Continental Shelf.” 43 U.S.C. § 1333(b). Clearly, the opera-
tions must be on the outer continental shelf. See Herb’s Weld-
ing v. Gray (Herb’s Welding II), 766 F.2d 898, 900 (5th Cir.
1985) (holding that an injury occurring on an oil platform in
state waters is not eligible for OCSLA benefits). It is less
clear—and the Tallentire footnote does not illuminate the
issue—that the injury must also be on the outer continental
shelf.2
2
The Mills court also found support for its situs-of-injury test in Herb’s
Welding, Inc. v. Gray (Herb’s Welding I), 470 U.S. 414 (1985). Mills, 877
F.2d at 361. The issue in Herb’s Welding I was whether a worker on a
platform in state waters was engaged in “maritime employment” so as to
entitle him to benefits under the LHWCA. 470 U.S. at 415-16. The Fifth
Circuit found significance in the Court’s passing comment that “the incon-
sistent coverage here results primarily from the explicit geographic limita-
tion to [OCSLA’s] incorporation of the LHWCA. . . . [T]hat statute draws
a clear geographic boundary that will predictably result in workers moving
in and out of coverage.” Id. at 427. As with Tallentire, however, the scope
6944 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
The Ninth Circuit cases cited by the parties are similarly
unhelpful. In Kaiser Steel Corp. v. Director, Office of Work-
ers’ Compensation Programs, 812 F.2d 518 (9th Cir. 1986),
a pipefitter/welder was injured while working on an outer
continental shelf platform and sought benefits under OCSLA.
Id. at 520. The issue was whether he was an eligible “employ-
ee” even though his work was “primarily land based.” Id. at
521-22. This Court, finding him eligible for § 1333(b) bene-
fits, stated that:

[i]n the absence of any other limitation on the face
of the statute or in the legislative history of
[OCSLA], section 1333(b) should be construed as
extending [LHWCA] coverage to all victims of dis-
abling or fatal injuries sustained while working to
develop the mineral wealth of the OCS [outer conti-
nental shelf].

Id. at 522. This passage does not directly apply to the situs
issue, as it came within the context of whether the claimant
met the § 1333(b) “employee” requirement. Id. at 522-23.

In A-Z International v. Phillips, 179 F.3d 1187 (9th Cir.
1999), this Court reviewed a BRB decision vacating an ALJ’s
order recommending sanctions for a fraudulent OCSLA
claim. Id. at 1189. In the underlying case, the ALJ had found
the claimant ineligible for OCSLA benefits because, contrary
to his allegation, his injury did not occur on an offshore plat-
form and he therefore failed to satisfy the situs-of-injury test.
Id. That decision was never appealed. Id. However, on review
of the subsequent sanctions order, this Court stated in a foot-
note accompanying the recitation of the facts:

of § 1333(b) was never considered, rendering this passage unhelpful on
the issue before us. In fact, the Court explicitly declined to consider
whether the worker was entitled to OCSLA benefits even though he had
argued the issue throughout the proceedings. Id. at 426 n.12.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6945
The situs requirement is a predicate for coverage
under OCSLA. See 43 U.S.C. § 1333 (1994); see
also Offshore Logistics, Inc. v. Tallentire, 477 U.S.
207, 219 (1986) (noting that “Congress determined
that the general scope of OCSLA’s coverage . . .
would be determined principally by locale”).

Id. at 1189 n.1. We do not find this statement binding or espe-
cially persuasive, given that the situs issue was neither argued
by the parties nor considered by the Court because the claim-
ant never appealed the decision on the situs question. Id. at
1189. The issue in A-Z International was a procedural ques-
tion about an ALJ’s contempt power. Id. The comment on the
situs issue was gratuitous language appended to the statement
of facts and not a considered statement of the law.

B.

Absent clear precedent to guide us on the situs-of-injury
issue, we are presented with a straightforward question of
statutory construction. “The purpose of statutory construction
is to discern the intent of Congress in enacting a particular
statute.” Robinson v. United States, 586 F.3d 683, 686 (9th
Cir. 2009) (quoting United States v. Daas, 198 F.3d 1167,
1174 (9th Cir. 1999)). We first look to the plain language of
the statute, which controls “unless its application leads to
unreasonable or impracticable results.” Id. at 687 (quoting
Daas, 198 F.3d at 1174). The plain meaning is determined
with an eye towards the context of the language and design
of the statute as a whole. Id. “It is a cardinal canon of statu-
tory construction that statutes should be interpreted harmoni-
ously with their dominant legislative purpose.” United States
v. Gallenardo, 579 F.3d 1076, 1085 (9th Cir. 2009) (quoting
United States v. Nader, 542 F.3d 713, 720 (9th Cir. 2008)).

There are two distinct arguments that OCSLA’s language
supports a situs-of-injury requirement. The first argument—
the route taken by the Fifth Circuit in Mills—is that § 1333(b)
6946 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
itself contains the situs-of-injury requirement. See 877 F.2d at
858-59. The second argument—advanced by Pacific
Operations—is that the situs requirement of § 1333(a) applies
to OCSLA as a whole. For the reasons discussed below, we
find neither argument persuasive and find the statute unam-
biguous in not requiring a situs-of-injury test.

[3] OCSLA was enacted in 1953 to establish federal juris-
diction over the submerged lands beyond the jurisdiction of
the states in order to promote the orderly exploitation of min-
erals lying below the seabed. See Rodrigue v. Aetna Cas. &
Sur. Co., 395 U.S. 352, 355-56 (1969); Outer Continental
Shelf Lands Act, Pub. L. No. 83-212, 67 Stat. 462, 462
(1953); S. Rep. No. 83-411, at 2 (1953). As part of this
endeavor, Congress needed to establish a body of substantive
law to cover the outer continental shelf. See Rodrigue, 395
U.S. at 355-56; S. Rep. No. 83-411, at 2. Section 4 of
OCSLA, codified at 43 U.S.C. § 1333, set forth the laws to be
applied. § 4, 67 Stat. at 462-63. For example, subsection (a)
establishes the substantive civil and criminal law applying to
the outer continental shelf, artificial islands, and platforms
fixed to the seabed. 43 U.S.C. § 1333(a). Subsection (c)
applies the National Labor Relations Act (“NLRA”) to “any
unfair labor practice . . . occurring upon any artificial island,
installation, or other device referred to in subsection (a).” Id.
§ 1333(c). Subsection (d) provides the Coast Guard with the
authority to promulgate regulations governing the safety
equipment, warning devices, and other safety matters on arti-
ficial islands and fixed platforms. Id. § 1333(d). Subsection
(e) extends the Army’s authority to prevent obstruction of the
navigable waters to fixed platforms on the outer continental
shelf. Id. § 1333(e).

[4] Section 1333(b) provides workers’ compensation bene-
fits for “any injury occurring as the result of operations con-
ducted on the outer Continental Shelf.” Id. § 1333(b)
(emphasis added). The situs-of-operations requirement is
clear; the operations must be conducted on the outer conti-
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6947
nental shelf. However, the only limitation on the injury is that
it be “the result of” operations on the outer continental shelf.
As many courts have recognized, the phrase “as the result of”
simply denotes causation. See, e.g., Brown v. Gardner, 513
U.S. 115, 119 (1994) (“as a result of” in veterans’ benefits
statute indicates causation with no fault requirement);
Murakami v. United States, 398 F.3d 1342, 1351-52 (Fed. Cir.
2005) (“as a result of” in federal claims statute indicates cau-
sation with no temporal limitation); Black Hills Aviation, Inc.
v. United States, 34 F.3d 968, 975 (10th Cir. 1994) (“as a
result of” in Department of Defense regulation means “caused
by” rather than “connected with”). Thus, the most natural
reading of § 1333(b) provides coverage for any injury caused
by outer continental shelf operations regardless of where the
injury occurred.

The Mills court found ambiguity in § 1333(b) by focusing
on the word “operations.” According to Mills, because the
operations must occur on the outer continental shelf, the
injury must also occur on the outer continental shelf: “activity
conducted off the OCS, even though related to OCS mineral
extraction, does not satisfy § 1333(b).” 877 F.2d at 359. How-
ever, this interpretation fails to acknowledge the connecting
phrase “as the result of.” The results of an operation may reg-
ularly extend beyond its immediate physical location. When
a pitcher hits a batter with a pitch, the batter’s injury is the
result of “operations” on the mound. The Fifth Circuit’s
attempt to unearth ambiguity in § 1333(b) by ignoring a key
phrase does not persuade us.3
3
Our position finds support in Murakami, a Federal Circuit decision
interpreting similar language in a reparations statute. Murakami involved
a claim under the Civil Liberties Act of 1988, which provided a redress
payment for individuals who were “deprived of liberty or property as a
result of” the internment of Japanese-Americans during World War II. 398
F.3d at 1344 (emphasis added); 50 U.S.C. app. § 1989b-7(2). The claimant
challenged a regulation categorically denying payments to individuals
born after the restraints on travel were lifted. Murakami, 398 F.3d at 1347-
6948 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
Neither are we persuaded that the situs limitations in the
other provisions of § 1333 indicate a situs-of-injury require-
ment for subsection (b). The Mills majority felt that these lim-
itations reflected a Congressional intent to limit the reach of
the statute to occurrences on the outer continental shelf as part
of a “gap-filling” purpose. 877 F.3d at 359-60. We, however,
find the Mills dissent to be more persuasive: the absence of
a situs-of-injury requirement in subsection (b), in light of the
explicit limitations in the other subsections, reflects an intent
not to limit that subsection in the same manner. Id. at 362
(Duhe, J., dissenting). The different treatment of subsection
(b) is quite clear, given that it is the only subsection not to
incorporate the situs definition of subsection (a). See 43
U.S.C. § 1333. This distinction ought to be given effect.

Moreover, a comparison of the language of the different
provisions strongly implies that subsection (b)’s coverage
extends beyond the outer continental shelf. Subsection (c)
applies the NLRA to unfair labor practices “occurring upon
any artificial island, installation, or other [fixed platform],” id.
§ 1333(c), while subsection (b) provides coverage for injuries
“occurring as the result of operations conducted on the outer
Continental Shelf,” id. § 1333(b) (emphasis added). Congress
had the ability to craft a situs-of-injury requirement—and did
so within the very same section of the statute—yet left it out
of subsection (b). See also Longshore & Harbor Workers’
Compensation Act, 33 U.S.C. § 903(a) (limiting coverage to
injuries “occurring upon the navigable waters of the United
States” (emphasis added)). We should not read one in.

48. The Federal Circuit rejected this categorical exclusion, noting that the
result of the travel restrictions could, in certain cases, extend beyond the
date of their repeal. Id. at 1352-53. Murakami teaches that “as a result of”
contains no temporal limitation; likewise, in this case, we see no reason
to import a spatial one. If travel restrictions can cause an injury after their
repeal, similar logic supports the view that operations on the outer conti-
nental shelf can cause injury outside the outer continental shelf.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6949
[5] Accordingly, we find that the language of § 1333(b) is
unambiguous in not including a situs-of-injury requirement.
Indeed, our interpretation of § 1333(b) is confirmed by a Fifth
Circuit decision, Demette v. Falcon Drilling Co., Inc., 280
F.3d 492, 500 (5th Cir. 2002), overruled on other grounds,
Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d
778 (5th Cir. 2009) (en banc), subsequent to Mills. Demette
held that “section 1333(b) contains only a status require-
ment.” Id. at 500 n.29. According to Demette, the situs-of-
injury requirement derives from § 1333(a)(1), which “creates
a ‘situs’ requirement for the application of other sections of
the OCSLA, including sections 1333(a)(2) and 1333(b).” Id.
at 496. As Demette explains, “[i]n order for the LHWCA to
apply by virtue of section 1333(b), . . . the injured worker
must satisfy the ‘status’ requirement of section 1333(b) as
well as the situs requirement of section 1333(a)(1).” Id. at
498. This is, however, a misstatement of Mills’s holding,
which clearly finds a situs-of-injury requirement in the lan-
guage of § 1333(b).4 Mills, 877 F.2d at 362. This disagree-
ment among Fifth Circuit panels underscores the extent to
which Mills departed from the plain language of § 1333(b)
and confirms what we find fairly obvious—a situs-of-injury
test is unambiguously absent from § 1333(b).

The legislative history does not indicate otherwise. The
Mills court interpreted § 1333 as a “gap-filler,” solely
intended to fill a void in substantive law due to the fact that
the outer continental shelf lies beyond state jurisdiction. See
Mills, 877 F.2d at 358. Therefore, Mills reasoned, no provi-
sion of OCSLA was intended to apply outside that situs. The
4
In fact, Demette’s interpretation of Mills would put that decision in
direct conflict with the Supreme Court’s decision in Tallentire. In an effort
to avoid overruling its own precedent applying OCSLA to helicopter
crashes on the waters above the outer continental shelf, Mills defined
§ 1333(b) as applying to “injury or death on an OCS platform or the
waters above the OCS.” 877 F.2d at 362. Tallentire, however, expressly
held that § 1333(a) does not apply to the waters above the outer continen-
tal shelf. 477 U.S. at 219. Had Mills pulled its situs-of-injury test from
§ 1333(a), its holding would be inconsistent with Tallentire.
6950 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
opinion cited a statement during debate on the floor of the
Senate that “[OCSLA] is legislatively joined with the Sub-
merged Lands Act . . . . [T]he Submerged Lands Act deals
with lands within State boundaries, while this bill [OCSLA]
concerns itself with the areas seaward of such boundaries.” Id.
at 359 n.6 (quoting 99 Cong. Rec. 6962 (daily ed. June 22,
1953) (statement of Sen. Cordon)). The House Conference
Report also notes that under OCSLA “certain Federal laws are
made applicable to the [outer continental shelf] area such as
the [LHWCA].” H.R. Rep. No. 83-1031, at 12 (1953) (Conf.
Rep.) (emphasis added).

[6] However, certain legislative history cuts against the
gap-filing interpretation of § 1333(b). In particular, a provi-
sion allowing benefits only “if recovery for such disability or
death through workmen’s compensation proceedings is not
provided by State law,” was deleted from the original version
of Section 4(c), which became § 1333(b). S. Rep. No. 83-411,
at 16 (1953). The Senate committee explained that “[i]t was
deemed inadvisable to have the [LHWCA] apply only if there
is no applicable State law. By this amendment, all workers on
the outer shelf not already protected under laws respecting
seamen are protected by the [LHWCA].” Id. at 23. The dele-
tion of this anti-overlap provision gives a clear indication that
Congress intended to provide LHWCA coverage regardless of
the applicability of state law, seriously undercutting the con-
ception of § 1333(b) as a gap-filler.5
5
Mills attempts to explain away the deletion, arguing that it “indicates
that, at most, Congress was prepared to tolerate overlapping federal and
state workers’ compensation coverage on the OCS itself. But the proviso’s
deletion does not justify overlapping coverage for employees whose feet
are planted firmly on state soil.” Mills, 877 F.2d at 360. The Fifth Circuit
essentially concedes that § 1333(b) was not intended to be a gap-filler. Its
summary assertion that Congress was only willing to “tolerate” overlap-
ping coverage on the outer continental shelf and nowhere else is supported
by no more than general statements by individual legislators that OCSLA
“concerns itself” with the outer continental shelf.
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6951
This makes sense, given that at the time of OCSLA’s enact-
ment the workers’ compensation laws of most relevant states
provided coverage for injuries occurring outside state jurisdic-
tion if the employment contract was made within the state.
See, e.g., Ohlhausen v. Sternberg Dredging Co., 218 La. 677,
680-81 (1951) (applying Louisiana workers’ compensation
statute to injury occurring in Arkansas); Maryland Cas. Co.
v. Brown, 131 Tex. 404, 406, 408 (1938) (holding that “an
injury ‘outside the state’ [of Texas] is compensable, regard-
less of where it may occur” and noting that “practically every
state in the Union has made provision for extension of the
benefits of compensation laws to employees injured ‘outside
the state’ ”); Alaska Packers’ Ass’n v. Indus. Accident
Comm’n of Cal., 1 Cal. 2d 250, 257-58 (1934) (holding that
California workers’ compensation law may apply to injury
sustained in Alaska). Because most state workers’ compensa-
tion laws applied extraterritorially at the time, there was gen-
erally no gap to fill.

Finally, Mills points to an exchange among senators during
the committee hearings where the senators concluded that a
worker on a platform above state waters would be covered by
state workers’ compensation laws even if the drilling slanted
into the outer continental shelf. Outer Continental Shelf:
Hearings on S. 1901 Before the Comm. on Interior and Insu-
lar Affairs, 83d Cong. 15-16 (1953) (“OCS Comm. Hear-
ings”). The Mills majority relied on this exchange as evidence
of intent that the site of the injury would control coverage.
877 F.2d at 359. The reliance is unwarranted for two reasons.
First, the senators were debating the early version of the bill
that contained the anti-overlap provision that was later
deleted. See OCS Comm. Hearings, supra, at 29-30. At that
time, the issue of whether state law applied was quite signifi-
cant as it would preclude OCSLA coverage. But the exchange
loses its significance in light of the subsequent deletion of the
anti-overlap provision.6
6
In any case, the senators only concluded that state law applied on state
soil and never considered whether LHWCA benefits might also apply. See
id. at 15-16; Mills, 877 F.2d at 363 (Duhe, J., dissenting).
6952 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
Second, the exchange came during the discussion of Sec-
tion 4(a) of the bill, the federal jurisdiction and choice-of-law
provision later codified at § 1333(a). Id. at 8-16. The commit-
tee was not yet considering the text of Section 4(c), the work-
ers’ compensation provision. See id. at 29. The slant-drilling
hypothetical was part of a discussion about the applicability
of substantive law in general. See id. at 13-17. Workers’ com-
pensation was simply an example used, along with marriage
and domestic laws, to illustrate the bounds of the choice-of-
law provision. See id. The usefulness of this exchange in rela-
tion to the actual text of Section 4(c) is minimal.

Considered as a whole, the legislative history is inconclu-
sive on the situs issue, other than establishing that § 1333(b)
was not intended to simply fill a gap in workers’ compensa-
tion law. There is certainly nothing clear enough to persuade
us that our reading of the statute is incorrect.

[7] Nor are we persuaded that policy considerations com-
pel the addition of a situs-of-injury requirement. Pacific Oper-
ations points out the supposed absurdity of workers receiving
extra coverage on shore because they “fortuitously” work to
further outer continental shelf operations. Pacific Operations
also complains about the burden on employers having to pur-
chase coverage under both state and federal schemes.

First, Congress clearly contemplated overlapping coverage
with the deletion of the anti-overlap provision in § 1333(b)
and has enacted overlapping coverage in other related con-
texts. See 33 U.S.C. § 903(a) (applying LHWCA coverage to
shoreside activities); Sun Ship, Inc. v. Pennsylvania, 447 U.S.
715, 719-20 (1980). Second, the supposed absurdity in cover-
age is a natural consequence of line-drawing, which is Con-
gress’s decision, not ours. Coverage is just as absurd under
the line drawn by Mills: an employee is covered for a helicop-
ter crash 3.1 miles from shore, but not 2.9 miles, even though
the activity and risk is identical. Finally, Congress may have
had good reason to apply uniform coverage across the full
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6953
range of activities of an outer continental shelf worker—
including work on a platform, in transit to and from a plat-
form, on pipelines between platforms and shore, or at onshore
facilities crucial to the mineral extraction process—so that a
worker does not step in and out of coverage.

[8] In any case, it is not necessary to speculate about pol-
icy, as the language of § 1333(b) is clear in not containing a
situs-of-injury requirement. “[I]f Congress’ coverage deci-
sions are mistaken as a matter of policy, it is for Congress to
change them. We should not legislate for them.” Herb’s
Welding I, 470 U.S. at 427. Because the language is unambig-
uous and the legislative history and policy considerations do
not compel a contrary result, we find that § 1333(b) does not
contain a situs-of-injury requirement.

C.

Pacific Operations presents a different argument, contend-
ing that § 1333(a) sets forth a situs requirement that is
intended to apply to all of § 1333, including subsection (b).
This is a novel argument; it has no support in either Mills, the
Fifth Circuit decision, or Curtis, the Third Circuit decision.
The only case supporting the proposition is Demette, the Fifth
Circuit decision that misstates Mills’s holding.

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

The Constitution and laws and civil and political
jurisdiction of the United States are extended to the
subsoil and seabed of the outer Continental Shelf and
to all artificial islands, and all installations and other
devices permanently or temporarily attached to the
seabed, . . . to the same extent as if the outer Conti-
nental Shelf were an area of exclusive Federal juris-
diction located within a State.

[10] 43 U.S.C. § 1333(a)(1). This subsection simply provides
for federal law and jurisdiction over the situs. Nothing in the
6954 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
language purports to limit the applicability of the Constitu-
tion, federal laws, or jurisdiction to the outer continental shelf,
nor is there anything applying the subsection (a)(1) situs to
any other parts of § 1333.

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

the civil and criminal laws of each adjacent State . . .
are declared to be the law of the United States for
that portion of the subsoil and seabed of the outer
Continental Shelf, and artificial islands and fixed
structures erected thereon, which would be within
the area of the State if its boundaries were extended
seaward to the outer margin of the outer Continental
Shelf.

Id. § 1333(a)(2)(A). Again, nothing purports to limit state law
to the subsection (a) situs, nor to apply that situs to the other
§ 1333 subsections.

This is consistent with the structure of § 1333. Each sub-
section has its own situs definition, some broader and some
narrower than subsection (a)’s. For example, the subsection
(c) situs is narrower, applying the NLRA to unfair labor prac-
tices “occurring upon any artificial island, installation, or
other device referred to in subsection (a),” but not to occur-
rences on the subsoil or seabed. Id. § 1333(c). The subsection
(d) situs is broader, allowing Coast Guard safety regulations
for “the artificial islands, installations, and other devices
referred to in subsection (a) of this section or on the waters
adjacent thereto.” Id. § 1333(d) (emphasis added). As the
Supreme Court held in Tallentire, § 1333(a) does not apply to
the waters above the outer continental shelf. 477 U.S. at 219.
If subsection (a) was intended to be a strict situs requirement
for the entire statute, there would be no need for individual-
ized situs tests for each subsection, much less ones that are
inconsistent with subsection (a).
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6955
Moreover, each subsection expressly incorporates a portion
of the subsection (a) situs in their own situs definitions—with
the significant exception of subsection (b), the workers’ com-
pensation provision. If subsection (a) applied to all other pro-
visions by its own terms, there would be no need for those
provisions to independently incorporate parts of it. And
because subsection (a) is referenced in each subsection except
subsection (b), the obvious conclusion is that subsection (b)
was not intended to be limited by subsection (a).

The legislative history of § 1333 also conclusively demon-
strates that subsection (a) was not intended to limit the other
provisions. Subsection (b) was originally a jurisdictional pro-
vision, providing federal courts with “original jurisdiction of
cases and controversies arising out of or in connection with
any operations conducted on the outer Continental Shelf.”
Pub. L. No. 83-212, § 4(b), 67 Stat. 462, 463 (1953) (empha-
sis added). This was clearly meant to encompass more than
just occurrences on the subsection (a) situs.7

The theory that subsection (a) provides a situs requirement
applicable to all of § 1333 is simply inconsistent with its plain
language, statutory structure, and legislative history. Subsec-
tion (a) merely extends federal jurisdiction and federal and
state law to the outer continental shelf. It has no applicability
beyond that purpose, other than to provide a situs definition
that several other provisions expressly incorporate. Because
subsection (b) does not incorporate (a), that provision has no
bearing on our analysis.

[11] We hold that § 1333(b) may apply to injuries occur-
7
When the statute was amended in 1978 to merge subsection (b) with
the workers’ compensation provision in subsection (c), the House Confer-
ence Report stated that “this amendment involves no change in existing
law. It was not the intent . . . to alter in any way the existing coverage of
the [LHWCA].” H.R. Rep. 95-1474, at 81 (1978) (Conf. Rep.), reprinted
in 1978 U.S.C.C.A.N. 1674, 1680.
6956 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
ring outside the situs of the outer continental shelf, so long as
they occur “as the result of operations conducted on the outer
continental shelf.”

D.

We do not, however, find that Congress intended to enact
a simple “but for” test in covering injuries that occur “as the
result of” outer continental shelf operations. Injuries with a
tenuous connection to the outer continental shelf are not cov-
ered. Cf. Black Hills Aviation, 34 F.3d at 975 (“as a result of”
requires more than just a “connection with”). Thus, we do not
agree with, and decline to adopt, the Third Circuit’s decision
in Curtis to the extent that it requires only a “but for” test of
causation. See 849 F.2d at 811.

[12] Instead, we adopt the following test: the claimant
must establish a substantial nexus between the injury and
extractive operations on the shelf. To meet the standard, the
claimant must show that the work performed directly furthers
outer continental shelf operations and is in the regular course
of such operations. An injury sustained during employment
on the outer continental shelf itself would, by definition, meet
this standard. However, an accountant’s workplace injury
would not be covered even if related to outer continental shelf
operations, while a roustabout’s injury in a helicopter en route
to the outer continental shelf likely would be. We leave more
precise line-drawing to the specific factual circumstances of
later cases.

This is consistent with the pre-Mills Fifth Circuit interpreta-
tion of § 1333(b), which we endorse. Prior to Mills, the Fifth
Circuit had long held that § 1333(b) applied to injuries occur-
ring outside the outer continental shelf. See Nations v. Morris,
483 F.2d 577 (5th Cir. 1973) (“OCSLA, in its incorporation
of [the LHWCA], did not speak in terms of injuries occurring
on such platforms so as to distinguish them from those off the
platforms . . . Obviously Congress purposefully established a
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6957
system that would apply without regard to physical loca-
tion.”). However, it required a more direct connection than
simple “but for” causation. In Herb’s Welding II, the Fifth
Circuit denied OCSLA benefits to a welder working on a plat-
form in state waters, even though it was connected by pipeline
to platforms on the outer continental shelf, upon which the
welder spent approximately 25% of his time. 766 F.2d at 899-
900. The court reasoned that the accident would have
occurred regardless of whether the employer had the outer
continental shelf rigs. Id. at 900. It contrasted helicopter crash
cases where the employee’s “work had furthered the opera-
tions of a fixed rig on the shelf and was in the regular course
of extractive operations on the shelf.” Id.

In Mills v. Director, Office of Workers’ Compensation Pro-
grams, 846 F.2d 1013 (5th Cir. 1988), rev’d en banc, 877
F.2d 356 (5th Cir. 1989), the three-judge panel decision later
reversed by the Mills en banc panel, the court clarified the
scope of the then-prevailing “but for” test in the Fifth Circuit:

Our decision does not extend LHWCA coverage to
those whose connection with operations on the Shelf
is tenuous. Workers like [the welder in Herb’s Weld-
ing II] whose work is only indirectly connected with
the Shelf will still not be covered. The ‘but for’ test
this Circuit has adopted is not the simple ‘causa sine
qua non’ test of tort law, but includes the require-
ment that the claimant show a nexus between the
work being done and operations on the shelf similar
to the proximate cause test in tort law; it requires that
the work “further[s] the operation of a fixed rig on
the shelf and [is] in the regular course of extractive
operations on the shelf.”

Id. at 1015 (quoting Herb’s Welding II, 766 F.2d at 900)
(footnote omitted). Applying this test, the court held that a
welder injured during the onshore construction of a platform
destined for the outer continental shelf was covered by
6958 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
OCSLA. Id. This holding was, of course, reversed by the Fifth
Circuit en banc panel in a 9-5 vote. Mills, 877 F.2d at 357.

[13] In this case, the BRB affirmed the dismissal of Peti-
tioner’s OCSLA claim because Valladolid’s injury did not
satisfy the Mills situs-of-injury test. Because we decline to
adopt that test, we remand the OCSLA question to the BRB
for further consideration consistent with this opinion.

IV.

[14] We next consider whether the BRB erred in denying
benefits under the LHWCA. Under 33 U.S.C. § 903(a):

compensation shall be payable under this chapter in
respect of disability or death of an employee, but
only if the disability or death results from an injury
occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry
dock, terminal, building way, marine railway, or
other adjoining area customarily used by an
employer in loading, unloading, repairing, disman-
tling, or building a vessel).

A LHWCA “employee” is “any person engaged in maritime
employment.” Id. § 902(3). Thus, a claimant seeking workers’
compensation under the LHWCA must establish both a mari-
time situs and a maritime status. Herb’s Welding I, 470 U.S.
at 415-16; Peru v. Sharpshooter Spectrum Venture LLC, 493
F.3d 1058, 1061 (9th Cir. 2007).

Petitioner contends that the BRB erred in affirming the
ALJ’s determination that the onshore La Conchita facility,
where Valladolid was killed, was not a maritime situs. Peti-
tioner does not contest the ALJ’s factual findings regarding
the facility, but argues that the BRB should have reversed the
ALJ on the legal question of whether La Conchita qualifies as
an “adjoining area customarily used by an employer in load-
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6959
ing [or] unloading . . . a vessel.” Id. § 903(a). We reject Peti-
tioner’s position and affirm the BRB.

We use a “functional relationship” test in determining
whether a particular facility is a § 903(a) “adjoining area.”
Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141
(9th Cir. 1978). We consider, among other factors:

the particular suitability of the site for the maritime
uses referred to in the statute; whether adjoining
properties are devoted primarily to uses in maritime
commerce; the proximity of the site to the waterway;
and whether the site is as close to the waterway as
is feasible given all of the circumstances in the case.

Id. Although physical congruity with navigable water is not
required, the facility must be “used as an integral part of long-
shoring operations.” Id.

[15] Applying the Herron factors, we agree with the BRB
that La Conchita is not a maritime situs. Although the facility
is only 250-300 feet from the ocean, it is separated from the
water by a highway and railroad tracks and has no direct
access to any pier, dock, or other loading facility. See
Motoviloff v. Dir., Office of Workers’ Comp. Programs, 692
F.2d 87, 89 (9th Cir. 1982). The closest pier used by Pacific
Operations is the Casitas Pass Pier, roughly three miles away.
There are no adjoining properties engaged in maritime com-
merce.

Petitioner argues that La Conchita should be considered a
“transshipment” facility because scrap metal from the off-
shore platforms was dumped there before being sold to third
parties. Petitioner analogizes to P.C. Pfeiffer Co. v. Ford, 444
U.S. 69 (1979), where the Supreme Court held that two ware-
housemen, who handled cargo within a port but were not per-
mitted to move cargo directly from or onto a vessel, were
LHWCA “employees.” Id. at 71, 83. The Court held that the
6960 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE
warehousemen “were engaged in maritime employment
because they were engaged in intermediate steps of moving
cargo between ship and land transportation.” Id. at 82-83.

We find the analogy unpersuasive. First of all, Pfeiffer
never addressed the situs requirement because the injuries
occurred on a dock and a pier, which are indisputably mari-
time situs. Second, the handling of scrap metal at La Conchita
did not involve “moving cargo directly from ship to land
transportation.” Id. The scrap metal was unloaded at the pier
by third-party longshoremen, loaded into trucks driven by
third-party drivers, and driven three miles to La Conchita,
where it was dumped and would wait for up to two years
before being hauled away by third-party dealers. The mari-
time activities—the movement of cargo “directly from ship to
land transportation”—began and ended at the Casitas Pass
Pier. Finally, La Conchita is simply not an “adjoining area”
within the meaning of § 903(a). It is three miles from the pier
and not adjacent to any maritime facilities.

The record demonstrates that the primary purpose of the
facility—and the only reason for its proximity to the coastline
—is to receive and process crude oil slurry extracted by the
offshore platforms, a non-maritime activity. Herb’s Welding
I, 470 U.S. at 422-24. Its use as a convenient dumping ground
for scrap metal from the platforms does not convert it into a
maritime situs.

[16] Accordingly, we affirm the BRB’s denial of benefits
under the LHWCA. Because Valladolid’s injury does not sat-
isfy the situs requirement, and because the BRB did not reach
the status issue, we do not address whether Valladolid was a
maritime employee. Williams v. Dir., Office of Workers’
Comp. Programs, 825 F.2d 246, 247 (9th Cir. 1987); Hurston
v. Dir., Office of Workers’ Comp. Programs, 989 F.2d 1547,
1548 n.3 (9th Cir. 1993).
 VALLADOLID v. PACIFIC OPERATIONS OFFSHORE 6961
V.

We hold that the OCSLA workers’ compensation provi-
sion, 43 U.S.C. § 1333(b), applies to any injury resulting from
operations on the outer continental shelf, regardless of the
location of the injury. An injury is “the result of” outer conti-
nental shelf operations if there is a substantial nexus between
the injury and the operations. We therefore reject the situs-of-
injury test adopted by the BRB, and remand for further con-
siderations consistent with this opinion.

We also hold that the BRB did not err in finding that La
Conchita was not a maritime situs. Accordingly, we affirm the
denial of workers’ compensation benefits under the LHWCA.

Each side shall bear its owns costs.

GRANTED in part, DENIED in part, and REMANDED.