author: BUCHMEYER, District Judge.

text:
    TIDELANDS ROYALTY “B” CORPORATION, Plaintiff, v. GULF OIL CORPORATION, Defendant.
    No. CA 3-79-0244-R.
    United States District Court, N.D. Texas, Dallas Division.
    June 18, 1985.

      Kenneth S. Beat and Leo J. Hoffman, Strausberger & Price, Dallas, Tex., for plaintiff.
    D.L. Case and A.W. Walker, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., for defendant.
   MEMORANDUM OPINION

BUCHMEYER, District Judge.

This oil and gas case involves a question of first impression.

It concerns production payments and overriding royalties in gas production from 4,062 acres of submerged land off the coast of Louisiana on the Outer Continental Shelf. These interests, which pertain to most of Block 332 of the West Cameron Area, were assigned to the plaintiff, Tidelands Royalty “B” Corporation (“Tidelands”), by the defendant, Gulf Oil Corporation (“Gulf”). Gulf’s operations on adjoining property (Block 333) are, admittedly, draining gas from several of the producing sands under Block 332.

However, this is not a typical drainage controversy: the basic agreement between the parties is not an oil and gas lease; and, Gulf’s promise to pay the overriding royalties and production payments wás made 24 years before it even acquired a federal lease on Block 332. Nevertheless, despite the fact that the issue is a novel one, this opinion holds (i) that there is an implied covenant obligating Gulf to protect Tidelands’ interests from drainage by Gulfs own operations on property adjacent to Block 332; but (ii) that, under the basic agreement, there is no implied covenant to protect Tidelands from drainage caused by offshore wells operated by third parties on adjoining lands.

1. FACTUAL BACKGROUND

In 1948 and 1949, Tidelands’ predecessor — Pan American Exploration Company — conducted 16 geophysical reconnaissance surveys covering 2,700,000 acres of submerged lands off the coasts of southwest Louisiana and southeast Texas in the Gulf of Mexico. Later, Pan American was dissolved, and its assets — including the primary one, this geophysical data — were distributed to its shareholders.

On April 30, 1951, the Pan American shareholders sold this geophysical data to Gulf. Under this agreement — which is the basic contract that controls in this case (“the 1951 Agreement”) — Gulf (i) paid $2,000,000 in cash, and (ii) agreed to the future assignment of production payments and overriding royalty interests for a period of 50 years from April 30, 1951. These assignments were to be made whenever Gulf, during this 50-year period, acquired federal offshore oil and gas leases on certain designated portions of the 2,700,000 acres covered by the geophysical data.

In 1954, Tidelands Royalty “B” Corporation (“Tidelands”) was formed to receive and disburse the production payments and overriding royalties to be paid to the Pan American shareholders under the 1951 Agreement. All of the shareholders transferred their interests to Tidelands in exchange for stock in the corporation.

Subsequently, Gulf acquired numerous offshore leases from the federal government covering areas subject to the 1951 Agreement. One occasion was September 1, 1955, when Gulf was the successful bidder at public auction for leases on Blocks 332 and 333 in the West Cameron Area off the coast of Louisiana. Both of these blocks contained 5000 acres; Block 333 was not one of the “designated tracts” in the 1951 Agreement, but 4,062 acres in Block 332 had been specified as a tract subject to the production payments and overriding royalties due to Tidelands.

Accordingly, on October 30, 1975, Gulf executed an “Assignment of Overriding Royalty” to Tidelands covering the 4,062 acres in Block 332. This assignment transferred to Tidelands, free and clear of all costs of development and operation, “a production payment and overriding royalty, to be calculated and determined in accordance with Paragraph 11(b)” of the 1951 Agreement. It also provided:

“This instrument has been executed and delivered pursuant to the terms of that certain Agreement dated April 30, 1951, made and entered into by and between W.L. Moody, III, et al and Gulf Oil Corporation and Gulf Refining Company, and this instrument is subject to all of the terms, conditions, provisions and limitations thereof ” (emphasis added.)

Later, Gulf began drilling, operations under the two federal offshore leases it had obtained on September 1, 1955. The first well was drilled on Block 332; it was a dry hole. The second well was drilled on Block 333; it was successful, producing gas in commercial quantities, and was the “discovery well” for the field. An offshore drilling platform was then constructed on Block 333, from which wells could be directionally drilled. The third well was drilled on Block 332 and the fourth well on Block 333. The fifth well was drilled on Block 332 and the sixth and seventh wells were drilled on Blocks 333.

However, there are at least five producing sands underlying the Block 332-333 gas field. And, it is undisputed that the wells on Block 333 are draining gas from Block 332 in several of these productive sands. For example, two of Gulfs wells on Block 333 are producing gas from the “C-13” sand, but neither of the wells on Block 332 produces from this sand. There is also drainage of gas from Block 332 in the “C-5” and “C-7” sands.

Accordingly, Tidelands claims that this drainage of gas from Block 332 — by Gulfs operations on the adjoining land — is damaging or destroying its production payments and overriding royalties under the 1951 Agreement. It argues that, under this agreement, there is an implied covenant obligating Gulf to prevent this drainage— either by drilling protection wells in these sands on Block 332, or by pooling the two blocks, or by the payment of “compensatory royalties.” In return, Gulf argues that the 1951 Agreement is “merely” a sales contract, not an oil and gas lease; that it specifically provides that Gulf “shall never be under any duty to drill for or produce” gas from Block 332; that, therefore, there is no implied covenant to protect Tidelands against drainage of Block 332; and that any contrary decision “would amount simply to a conveyance by Gulf to [Tidelands] of an overriding royalty interest and production payment in Block 333.”

Tidelands has moved for a partial summary judgment on the question of whether or not there is an implied covenant obligating Gulf to protect against the drainage of Block 332. As to this issue, there are no genuine issues of any material fact — and, as a matter of law, there is an implied covenant under the 1951 Agreement which requires Gulf to protect Tidelands’ interests from drainage by Gulfs own operations. This conclusion requires analysis of (i) the question of jurisdiction, (ii) the choice of law issue, and (iii) the law of both Louisiana and Texas concerning implied covenants to protect against drainage.

2. JURISDICTION

This Court has jurisdiction under the Outer Continental Shelf Lands Act (“the Lands Act”), 43 U.S.C. § 1331 et seq. Specifically, § 1349(b)(1) provides that:

“... the district courts of the United States shall have jurisdiction of cases and controversies arising out of or in connection with (A) any operation conducted on the outer Continental Shelf which involves exploration, development or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals ...”

Here, Tidelands claims that Gulfs operations on Block 333 are draining gas from Block 332. Both blocks are located on the outer Continental Shelf. Therefore, this controversy arises “out of or in connection with” Gulf’s “development or production” operations conducted on the outer Continental Shelf, and there is jurisdiction under § 1349(b)(1). Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223 (5th Cir.1985) (federal district court had jurisdiction under “the Lands Act” over dispute involving construction of offshore drilling platform on the Outer Continental Shelf); Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757 (D.C.La.1972) (federal district court had jurisdiction over controversies which are only indirectly connected with the “development or production” operations conducted on the outer Continental Shelf).

Accordingly, since jurisdiction exists under the Lands Act, this Court must proceed under the provisions of that Act; it does not sit as a diversity court, even though diversity jurisdiction also exists. Aymond v. Texaco, Inc., 554 F.2d 206 (5th Cir.1977); Chevron Oil Co. v. Huson, 404 U.S. 97, 103 n. 5, 92 S.Ct. 349, 353 n. 5, 30 L.Ed.2d 296 (1971); Ellis v. Chevron U.S.A., Inc., 650 F.2d 94, 96 (5th Cir.1981).

However, Tidelands contends that § 1333(a)(2)(A) has not been implemented because the President has never designated the projected boundary lines contemplated by this section — and that, since § 1333(a)(2)(A) does not apply, this Court must apply the conflicts rules of Texas, the forum state, in determining what law is applicable. In this manner, Tidelands reasons that Texas law controls.

This argument is rejected. Tidelands has not cited a single case in support of its theory that the Presidential designation of projected boundaries is an absolute, statutory prerequisite to the operation of § 1333(a)(2)(A). Although there appears to be no case which directly addressed this issue, the Tidelands argument is refuted by numerous cases in which the courts have applied this section and have followed the laws of the “adjacent state” in suits brought under the Lands Act. For example, in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), the Supreme Court stated:

“The [Lands Act] ... mandates that state laws apply as federal laws ‘[t]o the extent that they are applicable and not inconsistent with this subchapter or with other federal laws.’ 43 U.S.C. § 1333(A)(2). In any particular case, the adjacent State’s law applies to those areas ‘which would be within the area of the State if its boundaries were extended seaward to the outer margin of the Outer Continental Shelf ... ’ Ibid. The statute thus contains an explicit choice of law provision....” (453 U.S. at 485-86, 101 S.Ct. at 2878-2879.) (emphasis added). .

See also Chevron Oil Co. v. Huson, 404 U.S. at 102-103, 92 S.Ct. at 353; Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S.Ct. 1835 (1969).

3. CHOICE OF LAW

The matters involved in this case — Tidelands’ production payments and overriding royalties, Gulf’s operations on Blocks 332 and 333 of the West Cameron area — involve submerged lands lying off the coast of Louisiana. Therefore, it seems clear that § 1333(a)(2)(A) of the Lands Act requires the application of Louisiana law to this dispute. That provision states:

“... 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 ... 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 such area____”

Moreover, even if § 1333(a)(2)(A) were not operative, it is obvious that Louisiana law should be applied in this ease. Texas, the forum state, has adopted the approach of the Restatement (Second) of Conflict of Laws in deciding choice of law questions. Duncan v. Cessna Aircraft Company, 665 S.W.2d 414 (Tex.1984); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979). Louisiana, the state where the offshore lands and drilling operations are located, has also adopted this approach. Lee v. Hunt, 631 F.2d 1171, 1174 (5th Cir.1980); Wickham v. Prudential Insurance Co. of America, 366 So.2d 951 (La.App.1978). Therefore, under the conflict of law rules of either Texas or Louisiana, the state law having the most significant relationship to the single issue addressed in this opinion should control.

Here, the issue involved is the existence of an implied covenant to protect against drainage. Texas has some interest in this issue since all of the parties executed the 1951 Agreement in Texas and since payments were to be made to Tidelands in this state. However, Louisiana also has obvious and more compelling interests in this issue: the assignment of the production payment and overriding royalties was executed in that state; the submerged lands in question are off the coast of Louisiana; and the drilling operations by Gulf — which are alleged to have breached the implied covenant — are being conducted on these lands.

In addition, this issue involves leases on federal lands located on the outer Continental Shelf. The Lands Act creates a comprehensive scheme for regulation of the relationship between the federal government, as lessor, and its lessees. 43 U.S.C. § 1334-56. Yet, it recognizes the substantial interests of the local states in their offshore lands, by providing that the laws of the state adjacent to the submerged lands should control. 43 U.S.C. § 1332(a)(2). This certainly supports the conclusion that the state of Louisiana has a more significant relationship to the matters in this case — involving interests in production from submerged lands off its coast, and the claimed violation of an implied covenant to prevent the drainage of those lands — than does Texas, whose interests merely involve the execution of a contract.

Accordingly, Louisiana law controls the issue of the implied covenant to protect against drainage (although, as discussed below, the same result would be reached under the law of Texas).

4. IMPLIED COVENANTS — GENERALLY

Courts have long recognized that oil and gas leases give rise to implied covenants which govern the conduct of the lessee. These implied covenants — which are for the benefit of the lessor and for the protection and preservation of the value of his reserved royalties — include the duty to reasonably develop, the duty to use reasonable diligence in producing and marketing the oil and gas, and the duty to protect against drainage from operations on adjoining property.

However, the courts differ with respect to the standard to be applied to determine whether or not the lessee has breached an implied covenant. Some courts have held that the lessee’s actions should conform to what a reasonably prudent oil and gas operator would do under the same circumstances; other courts hold that the lessee’s own good faith judgment is controlling. 2 Summers, OIL AND GAS § 416 at 641 (Perm.Ed.1959). The first standard — that of the reasonably prudent operator — is now applied in most states. Id., at 647; Williams and Meyers, OIL AND GAS LAW § 806.3

An implied covenant to protect against drainage may be implied even though the lease in question contains a provision which expressly relieves the lessee “of the obligation to drill any well or develop any lease.” Courts have reasoned that the covenant to drill offset wells to protect the property from drainage caused by operations on adjacent land is “separate and distinct” from the covenant to reasonably develop the property, whether these covenants “are express or implied.” Foster v. Atlantic Refining Co., 329 F.2d 485 (5th Cir.1964); Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43 (1943). They have also recognized that the implied covenant to protect against drainage is essential if the provision for royalties is to be given effect: the agreed royalty can be realized only if there is production from the leased premises, and oil and gas that are drained away as the result of operations on adjacent lands can never be recovered. See Williams and Meyers, OIL AND GAS LAW § 815.

Indeed, this is particularly so where the drainage is being caused by the lessee’s own operations on adjacent land. That is, if the drainage results from operations by a third party, then the interests of the lessor and the lessee coincide — and the lessor can reasonably expect the lessee to drill offsetting wells to protect his own economic interest in the property. However, when it is the lessee himself who is causing the drainage by operations on adjacent land, the economic interests of the lessor and the lessee no longer coincide — since the lessor recovers the oil and gas drained from the leased premises without the expenses of drilling and operating a protection well, and without paying royalties to the lessor. For these reasons, courts have recognized the strong need for protection in cases arising out of lessee-caused drainage. Thus, in Shell Oil Co. v. Stansbury, 410 S.W.2d 187 (Tex.1966) (per curiam), the Texas Supreme Court stated:

"... the Court of Civil Appeals correctly held that the express provision in the Stansbury lease which obligated Shell to drill an offset well if a draining well was within a specified distance from the Stansbury property line did not limit Shell’s obligation to drill when Shell was the one causing the drainage to the Stansbury land____ [A] lessee is under a duty to protect his lessor against depletion of the lessor’s minerals by the affirmative act of the lessee upon adjacent land.” (410 S.W.2d at 188.)

See also Humphreys Oil Co. v. Tatum, 26 F.2d 882 (5th Cir.1928); Phillips Petroleum Co. v. Millette, 72 So.2d 176 (Miss.1954); Trimble v. Hope Natural Gas Co., 117 W.Va. 650, 169 S.W. 529 (W.Va.1933); Hughes v. Busseyville Oil & Gas Co., 180 Ky. 545, 203 S.W. 515 (Ky.1918).

Although implied covenants normally arise in the context of an oil and gas lease — and although they usually protect the lessor’s reserved royalty interests— they are certainly not peculiar to the lessor-lessee relationship. Implied covenants have been found to exist in other types of contracts, such as mineral deeds or assignments of leases. Phillips Petroleum Co. v. Taylor, 116 F.2d 994, 995 (5th Cir.1941) (“the same rules govern [with respect to lease assignments] as are applied to covenants in the contract between the lessor and lessee”); Freeport Sulphur Co. v. American Sulphur Royalty Co., 6 S.W.2d 1039 (Tex.1928) (mineral deed).

And, the holder of an overriding royalty interest is generally entitled to the same implied covenants that apply to protect royalty interests under leases. Jackson v. Texas Co., 75 F.2d 549 (10th Cir.1935); Bolton v. Coats, 533 S.W.2d 914 (Tex.1975). Obviously, an assigned overriding royalty interest — just like a royalty reserved under a lease — can be realized only if an implied covenant against drainage prevents the permanent loss of oil and gas from the property. Once again, the need for an implied covenant to protect an overriding royalty interest is particularly strong where it is the lessee himself who is causing the drainage by operations on adjacent property. Cook v. El Paso Natural Gas Co., 560 F.2d 978 (10th Cir.1977).

5. THE IMPLIED COVENANT AGAINST DRAINAGE

a. Louisiana Law

Louisiana recognizes the existence of an implied covenant obligating a lessee to protect leased premises from drainage; and, like most states, it has adopted the prudent operator test as the standard to determine whether this covenant has been breached. Coyle v. North American Oil Consol., 9 So.2d 473 (La.1942); Breaux v. Pan American Petroleum Corp., 163 So.2d 406 (La.App.1964), cert. denied, 246 La. 581, 165 So.2d 481 (La.1964). Indeed, article 122 of the Louisiana Mineral Code provides that the lessee is bound to “operate the leased premises as a reasonably prudent operator for the mutual benefit of himself and his lessor”; and the official comment to article 122 states that the lessee has “the obligation to protect the leased property against drainage by wells located on neighboring property.”

Moreover, under Louisiana law, the presence of a lease provision negating any obligation by the lessee to develop the premises does not preclude the implication of a covenant to protect against drainage. In Williams v. Humble Oil & Refining Co., 432 F.2d 165 (5th Cir.1970), cert. denied, 402 U.S. 934, 91 S.Ct. 1526, 28 L.Ed.2d 868 (1971), the Fifth Circuit, applying Louisiana law, held that an express lease provision concerning the lessee’s obligation to drill offset wells did not displace the implied covenant to protect against drainage. The court stated:

“The duty of a Louisiana lessee to use the leased premises as a good administrator must of course encompass an obligation to protect the premises against any impairment of value threatened by the affirmative act of the lessee himself. Any obligation as basic as this one to the protection of the lessor can not be displaced by the insertion in the lease of an express provision relating solely to the establishment of offset wells.” (432 F.2d at 177.)

And, Louisiana also recognizes that the need for an implied covenant against drainage is particularly strong where the drainage is being caused by the lessee’s own operations on adjacent property. In Williams v. Humble Oil & Refining Co., 432 F.2d 165, the Fifth Circuit so held, after noting that:

“At the outset it must be recognized that there are no decisions of the Louisiana courts squarely in point. A review of the decisions of other jurisdictions reveals an increasing reluctance to allow displacement of the implied protection covenant by express offset provisions, especially when the lessee is also the operator whose drilling on adjacent land is causing the drainage.” (432 F.2d at 175.)

Williams also stated that the “experience of the Texas courts is illustrative,” and relied upon Shell Oil Co. v. Stansbury, 410 S.W.2d 187 (quoted above) and other Texas cases in its determination of the Louisiana law.

However, there appears to be no Louisiana case in which a covenant to protect against drainage was implied to protect an overriding royalty interest. By its terms, Article 122 of the Louisiana Mineral Code applies only to oil and gas leases; and — although the owners of overriding royalties are afforded protection in other contexts, see articles 108 and 109 — the Code contains no provisions regarding the duties owed by a lessee to the owner of an overriding royalty interest. However, it does provide that “the Civil Code or other laws are applicable” in matters not expressly or impliedly provided for in the Mineral Code. La.Min.Code art. 2. And, under LSA-C.C. art. 2026, conditions may be implied in a contract as the result of the operation of law, the nature of the contract, or the presumed intent of the parties. See also LSA-C.C. arts. 1903, 1964.

Obviously, these general principles apply to oil and gas contracts other than leases— and would permit the implication of covenants for the protection of overriding royalty interests under Louisiana law. Indeed, in Wier v. Grubb, 215 La. 967, 41 So.2d 846 (La.1949), 228 La. 254, 82 So.2d 1 (La.1955), the Louisiana Supreme Court recognized, albeit in dicta, that an overriding royalty reserved by the assignor of a lease (a “sublease,” under Louisiana law) is entitled to the protection of the same implied covenants involved in the lessor-lessee relationship. The court stated:

“Obviously, the determination of the question whether defendants have sufficiently developed the leased property, in compliance with the development clause contained in the sublease and its implied obligations, can be resolved only after a consideration of all the facts. We recognize the difficulty of laying down any comprehensive rule which so largely involves one of fact, and, therefore, the merits of each case must be determined according to its particular circumstances.” (82 So.2d at 7) (emphasis added).

Moreover, just as the Fifth Circuit did in Williams (432 F.2d at 175), this Court finds that the “experience of the Texas courts is illustrative.” Texas does recognize that overriding royalty interests are entitled to the protection of the implied covenant against drainage — particularly where the lessee’s own operations on adjoining property are causing the drainage. Phillips Petroleum Co. v. Taylor, 116 F.2d 994 (5th Cir.1941); see Shell Oil Co. v. Stansbury, 410 S.W.2d 187. This supports the conclusion that Louisiana law would afford protection to an overriding royalty interest by an implied covenant to protect against drainage. See Williams ¶. Humble Oil & Refining Co., 432 F.2d 165, 175.

b. Texas Law

The Texas law regarding implied covenants to protect against drainage is more developed than that of Louisiana. The Texas cases make it clear:

(i) That there is an implied covenant obligating the lessor to protect the leased property from drainage, and that the “prudent operator” standard applies to determine if this covenant has been breached. Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex.1981); Texas Pacific Coal & Oil Co. v. Barker, 6 S.W.2d 1031 (Tex.1928); J.M. Guffey Petroleum Co. v. Jeff Chaison Townsite Co., 48 Tex.Civ.App. 555, 107 S.W. 609 (Tex.Civ.App.1907).
(ii) That this implied covenant to protect against drainage may exist even if the lease provides that the lessee is not obligated to develop the property. Foster v. Atlantic Refining Co., 329 F.2d 485 (5th Cir.1964); Stanolind Oil & Gas Co. v. Christian, 83 S.W.2d 408 (Tex.Civ.App.—Texark.1935, writ ref’d).
(iii) That the need of this implied covenant is particularly strong where the drainage is being caused by the lessee’s own operations on adjoining land. Shell Oil Co. v. Stansbury, 410 S.W.2d 187; Houston National Bank v. Farris, 549 S.W.2d 420 (Tex.Civ.App.—Waco 1977, writ dism’d); Humphreys Oil Co. v. Tatum, 26 F.2d 882 (5th Cir.1928).
(iv) That overriding royalty interests are entitled to the same protections by implied covenants, including the protection against drainage, that apply to the protection of royalty interests under leases. Bolton v. Coats, 533 S.W.2d 914 (Tex.1975); Phillips Petroleum Co. v. Taylor, 116 F.2d 994 (5th Cir.1941).

c. The Applicable Standard

Under both Louisiana and Texas law, the Tidelands interests in this case — overriding royalty interests and production payments created by an agreement other than an oil and gas lease — may be subject to the protection of an implied covenant for protection against drainage. However, this Court cannot rewrite contracts, or create a new one, for the benefit of a party. Instead, as stated in Danciger Oil & Refining Co. v. Powell, 154 S.W.2d 632 (Tex.1941):

“An implied covenant must rest entirely on the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself, and it must appear that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it, and therefore omitted to do so, or it must appear that it is necessary to infer such a covenant in order to effectuate the full purpose of the contract as a whole as gathered from the written instrument.” (154 S.W.2d at 635.)

See also Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 1041 (Tex.1928).

This is the proper standard under Louisiana law: Coyle v. North American Oil Consol., 9 So.2d 473, 478-79 (La.1942) (“legal effect must be given to the contract according to the intent of the parties, and the intent is to be determined by the words of the contract, when these are clear and lead to no absurd consequenced”); Breaux v. Pan American Petroleum Corp., 163 So.2d 406; United Lands Co. v. Pan-American Production Co., 13 So.2d 519, 521 (La.App.1943) (contracts involving leases must be construed “most strongly against the lessee and in favor of the lessor”).

The principle of strict construction also applies in Texas. Indeed, in Bolton v. Coats, 533 S.W.2d 914, the Texas Supreme Court held that “unless the assignment provides to the contrary, the assignee of an oil and gas lease impliedly covenants to protect the premises against drainage when the assignor reserves an overriding royalty.” Id. at 916. That holding was followed in Wes-Tex Land Co. v. Simmons, 566 S.W.2d 719 (Tex.Civ.App.—Eastland 1979), and in U.S. Steel Corp. v. Whitley, 636 S.W.2d 465, 473 (Tex.Civ.App.—Corpus Christi 1982, writ ref’d n.r.e.).

6. THE IMPLIED COVENANT IN THIS CASE

This case is unlike the typical drainage controversy. Gulf’s promise to pay overriding royalties and production payments was made prior to the acquisition of oil and gas leases and without reference to any particular lease. However, the 1951 Agreement clearly contemplates the use of the geophysical data in a search for oil and gas in submerged lands off the coasts of Texas and Louisiana. Furthermore, the leases were in existence when the successive assignments of the overriding royalties and production payments were granted by Gulf to Tidelands in accordance with the terms of the Agreement. Therefore, in a very real and practical sense, the 1951 Agreement has much in common with an oil and gas lease — especially since both parties relied upon the finding and production of oil and gas in order to gain their ultimate profits from the transaction.

Therefore, the same factors which underlie the implied covenant against drainage in an oil and gas lease support the implication of this same protection under the 1951 Agreement between Tidelands and Gulf. In particular:

(i) the overriding royalties and production payments were a material part of the consideration for the 1951 Agreement, just as royalties are a material part of the consideration under a lease;
(ii) the condition upon which the payment of these royalties and production payments depended — production of oil and gas from the subject property — was within the exclusive control of Gulf, just as in the case of a lease;
(iii) the implication of a covenant to protect against drainage being caused by the operations of Gulf on adjacent property is necessary to prevent the frustration of the 1951 Agreement, and the proper payment of the overriding royalties and production payments.

a. The Consideration

It is evident, from the face of the 1951 Agreement, that a material portion of the consideration to be received by Tidelands, for the sale of the geophysical data, was the overriding royalties and production payments which were to be paid out of production from leases acquired by Gulf during a period of 50 years. In fact, more than half of the Agreement is devoted to the overriding royalty and production payment interests — and the potential income to Tidelands from these interests was far greater than the $2,000,000 paid in cash by Gulf.

Obviously, Gulfs obligation to pay these overriding royalties and production payments to Tidelands is totally dependent upon the production of oil and gas by Gulf from the areas designated in the Agreement. And, if Gulf is (as alleged) engaging in operations on adjacent property which result in the drainage of oil and gas from Block 332, then Gulf is reducing or destroying the value of Tidelands’ overriding royalties and production payments. Contrary to Gulf’s argument that the 1951 Agreement is merely “a simple sales contract”— and its erroneous contention that Tidelands “has already received the only consideration that Gulf [was] obligated to pay”— there is nothing in the 1951 Agreement that would even suggest that such conduct by Gulf should be subject to different rules from those which are applied to parties to oil and gas leases and other contracts. See Breaux v. Pan American Petroleum Corp., 163 So.2d 406; Phillips Petroleum Co. v. Taylor, 116 F.2d 994; Jackson v. Texas Co., 75 F.2d 549.

b. The Non-Development Clauses

Paragraph 11(b)(2) of the 1951 Agreement, which provides for the calculation of the oil payments and royalties based upon “productive acres,” also contains this language:

“... The procedure herein set forth for determining the number of ‘productive acres’ is not intended to impose any duty on [Gulf] to drill for oil or gas, or other minerals, according to any particular spacing pattern or density, it being the intention of the parties hereto that [Gulf] shall never at any time be under any duty to drill for or produce oil, gas or other minerals from any area subject to this agreement, notwithstanding the existence of producing wells thereon.” (emphasis added.)

Similarly, Paragraph IV of the 1951 Agreement provides:

“Nothing in this agreement shall ever obligate [Gulf] to acquire any lease or leases or to drill any well or to develop any lease or leases if acquired. The oil payment and overriding royalty provisions set out herein shall apply to oil, gas and other minerals only when, as and if produced, saved and sold by Purchaser or its assigns.”

The effect of these provisions was to condition Tidelands’ right to receive payments upon Gulf’s decision to produce on Block 332, and to relieve Gulf from any implied obligation to develop this block for the benefit of Tidelands. However, as discussed above, these provisions do not necessarily mean that there can be no implied covenant to protect against drainage under the 1951 Agreement — because this covenant is “separate and distinct” from the obligation to drill wells or develop the lease. Foster v. Atlantic Refining Co., 329 F.2d 485. This is the law in Louisiana, as well as in Texas. Williams v. Humble Oil & Refining Co., 432 F.2d 165 (applying Louisiana law); Stanolind Oil & Gas Co. v. Christian, 83 S.W.2d 408 (Texas law).

c. Drainage Caused by Gulf

Indeed, both Louisiana and Texas recognize that the need for an implied covenant against drainage may be particularly great where the drainage is being caused by the lessee’s own operations on adjacent land. Shell Oil Co. v. Stansbury, 410 S.W.2d at 188; Williams v. Humble Oil & Refining Co., 432 F.2d at 175. This is, in fact, demonstrated by the present case.

If the drainage of Block 332 ,was the result of operations conducted by a third party on adjacent land, then the interests of Gulf and Tidelands in preventing this drainage would coincide. Gulf, as well as Tidelands, would be damaged by the drainage — so Gulf could be expected to drill offset wells on this block in order to protect its own economic interests.

However, if the drainage of Block 332 were caused by the operations of Gulf itself on adjacent property, then the interests of Gulf and Tidelands no longer coincide. Gulf would have no incentive to protect against this drainage because the drainage would actually benefit Gulf; through it, Gulf would be able to recover gas from Block 332 without the expense of drilling and operating a protection well— and without paying overriding royalties and production payments to Tidelands.

Moreover, this situation is compounded by the fact that all of the submerged land is owned by the federal government, which is the lessor of Blocks 332 and 333. If this were not so — i.e., if there were different owners of both blocks — then the lessor, as well as Tidelands, would be damaged by the drainage — and the lessor could be expected to enforce the implied covenant against drainage. However, since the government is the lessor on both adjoining blocks, it has no incentive to protect against the drainage of Block 332, because it recovers any such drainage through production under the lease on Block 333.

An almost identical situation was presented in Cook v. El Paso Natural Gas Co., 560 F.2d 978 (10th Cir.1977). There, the court held than an overriding royalty owner had standing to enforce an implied covenant against drainage — where the drainage was being caused by the lessee’s operations on adjacent property and where the federal government was the lessor on both the drained and the draining tracts. The opinion states:

“Also to be noted is that in the case at bar the plaintiff is in a very difficult position due to the fact that the lessor has no incentive to bring an enforcement action because the United States, the lessor, is collecting its royalty both from the E V2 of Section 29 and from the W V2 as well. Since the United States is not being deprived of anything, the only thing remaining is for the plaintiff to bring the action herself. It is impossible to say that she lacks standing or interest to bring the action since she is the only one who has a pecuniary interest which is affected.” (560 F.2d at 987.)

This is equally true in the present case. Gulfs drainage of gas from Block 332, through its operations on the adjoining block, benefits Gulf. This drainage does not damage the federal government because, as lessor, it recovers any lost gas through Gulfs production on Block 333. The only party injured by the drainage is Tidelands; and, its only remedy is by enforcing an implied covenant against drainage caused by Gulf.

It is clear that the parties to the 1951 Agreement did not intend to permit Gulf to engage in acts which would destroy or damage a material portion of the consideration for the sale of the geophysical data, the production payments and overriding royalties due Tidelands. Moreover, the provisions excusing Gulf from drilling on Block 322 were certainly not intended to immunize Gulf from its own drainage of gas from this property. Coyle v. North American Oil Consol., 9 So.2d at 478 — 79; Danciger Oil & Refining Co. v. Powell, 154 S.W.2d at 635. Certainly, there is such “contrary provision” in the basic agreement which relieves Gulf of the duty to protect against its own drainage. Bolton v. Coats, 533 S.W.2d at 916.

Therefore, “in order to give effect to and effectuate the purpose of the [1951 Agreement] as a whole,” this Court holds that— under the law of both Louisiana and Texas — there is an implied covenant obligating Gulf to protect Tidelands’ interests from drainage caused by Gulf’s own operations on adjacent property. See Williams v. Humble Oil & Refining Co., 432 F.2d 165; Shell Oil Co. v. Stansbury, 410 S.W.2d 187.

d. Drainage Caused by Others

This implied covenant, however, does not extend to any drainage of gas from Block 332 by the operations of third parties on adjoining lands. It is not necessary to imply the existence of such a covenant in order to effectuate the 1951 Agreement.

The parties expressly provided that Gulf shall have no obligation to “drill any well or to develop any lease,” and that Gulf “shall never at any time be under any duty to drill for or produce oil, gas or other minerals from any area subject to this agreement, notwithstanding the existence of producing wells thereon.” There is nothing in the Agreement that would indicate the parties intended to limit or restrict Gulf’s discretion under these provisions in the event that third parties were draining gas from Block 332.

Indeed, unlike the situation involving Gulf’s own drainage, it is reasonable to assume that the parties to the 1951 Agreement were aware that the interests of Tidelands and Gulf in preventing third party-drainage were identical. That is, since any drainage of gas from Block 332 by the operations of third parties on adjacent land would damage Gulf as well as Tidelands, Gulf could be expected to protect its own economic interests — and, consequently, the overriding royalties and production payments of Tidelands — by drilling offset wells or taking other steps to prevent this drainage. See Cook v. El Paso Natural Gas Co., 560 F.2d 978; Williams v. Humbel Oil & Refining Co., 432 F.2d 165; Shell Oil Co. v. Stansbury, 410 F.2d 187.

Moreover, there is no evidence in the summary judgment record which establishes that operations by third parties on adjacent land are causing drainage of gas from Block 332. The only specific allegation in the complaint concerns drainage by Gulfs own operations on Block 333. And there is not even an indication of the names of the companies which hold leases on the other blocks surrounding Block 332.

7. CONCLUSIONS

This case differs from the typical drainage case arising out of an oil and gas lease because the leases from which Tidelands is entitled to receive overriding royalties and production payments were not yet in existence at the time the parties executed the 1951 Agreement. However, these leases were in existence when successive assignments of overriding royalties and production payments were granted by Gulf to Tidelands in accordance with terms of the Agreement.

The question of the existence of an implied covenant to protect against drainage under an agreement of this type does not appear to have been directly addressed by the courts. However, for the reasons discussed in this opinion, the same factors that have caused courts to recognize implied covenants under oil and gas leases to protect the royalties reserved — and under assignments of oil and gas leases to protect the overriding royalties reserved — compels the implication of a covenant under this 1951 Agreement obligating Gulf to protect Tidelands’ interests from drainage caused by Gulf’s own operations on adjacent property. Tidelands’ motion for partial summary judgment is granted to this extent.

Of course, the question of whether or not Gulf has breached this implied covenant — by failing to take such steps as a reasonably prudent operator would have taken to protect the producing gas sands under Block 332 from drainage by wells on Block 333 — involves disputed issues of fact. Similarly, the question of the relief, if any, to which Tidelands is entitled if Gulf breached the implied covenant also involves contested fact issues. Accordingly, these matters remain for disposition by trial.

      . The sellers under the 1951 Agreement — which is exhibit 1 to the original complaint — were W.L. Moody, III, Marine Instrument Company, and Mexican Gulf Sulphur Company, three of the Pan American shareholders; Wright Morrow and Ethan Stroud, the trustees for the remaining Pan American shareholders; and R.A. Irwin, a broker who received an interest in the geophysical data in return for his efforts in finding a buyer. The purchasers were Gulf Oil Company and Gulf Refining Company.

      . In the 1951 Agreement, 60 tracts (or “units”) of varying sizes were designated as the areas that would be subject to these production payments and overriding royalties:
      (i) a production payment equal to the market value at the well of !/sth of the oil, gas and minerals produced, saved and sold from the first 5,000 "productive acres” until the sum of $1,500,000 had been paid from the proceeds of production from each designatéd unit; thereafter, a '/24th overriding royalty from each unit.
      (ii) an additional Vsth production payment from certain "excess productive acreage” as defined in the agreement, up to an amount determined by a formula set forth in the agreement; thereafter, a ‘/24th overriding royalty on this "excess productive acreage;’’
      (iii) an overriding royalty of '/24th of the value of all minerals other than oil and gas found on the designated units.
      One of the designated areas covered 4,062.50 acres of the total 5,000 acres in Block 332 of the West Cameron Area.

      . With the exception of three minor Pan American shareholders: Mrs. Dora Lee Koenig Cobb, George M. Russell, and Mrs. Catherine S. Russell. Accordingly, Tidelands became the owner of a %pl,386,375/1,386,525%pth interest in the production payments and overriding royalties which Gulf was obligated to pay under the 1951 Agreement.

      . This assignment — which is exhibit 2 to the original complaint — became effective September 1, 1955. It recited that Tidelands was the "successor in interest” to the Pan American shareholders under the 1951 Agreement.

      . Gulfs original answer admits that its gas wells on Block 333 are draining gas from Block 332 in several of the gas reservoirs that underlie both blocks. The fact of this drainage is also established by the Affidavit of Phil Porter, filed in support of Tidelands' motion for partial summary judgment. However, Gulf correctly argues that the “extent of any net uncompensated drainage across the common boundary line between the two leases, and what if anything that Gulf could or should have done to prevent drainage of gas from the lower parts of a structure to the higher portions" will present complex and controverted issues of fact that can only be resolved by a trial.

      . The 1951 Agreement expressly provides that Gulf "is hereby authorized and empowered by [Tidelands' predecessors] to at any time or from time to time ‘pool’ the area subject to this Agreement or any part or parts thereof with any adjoining and adjacent area."

      . The summary judgment record consists of the pleadings and the several affidavits filed by Tidelands and by Gulf in connection with the partial motion for summary judgment.

      . The original complaint refers to § 1333(b) of the Lands Act, the jurisdictional provisions enacted in 1953. However, those provisions were deleted in the 1978 amendments to the Act, and re-enacted in amended form as § 1349(b)(1).

      . Tidelands is a Delaware corporation; Gulf is a Pennsylvania corporation. The complaint alleges, and the answer admits, the fact of diversity jurisdiction — as well as jurisdiction under the Lands Act.

      . Tidelands makes this argument even though it is undisputed that the areas in question in this case, Blocks 332 and 333 of the West Cameron Area, are off the coast of Louisiana — and, therefore, would lie within any boundary lines projected outward from Louisiana, as contemplated by § 1333(a)(2)(A).

      . See, e.g., Walker v. Tenneco Oil Co., 615 F.2d 1121 (5th Cir.1980); Mott v. ODECO, 577 F.2d 273 (5th Cir.1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461; Moczygemba v. Danos & Curole Marine Contractors, Inc., 561 F.2d 1149 (5th Cir.1977); Aymond v. Texaco, Inc., 554 F.2d 206 (5th Cir.1977); Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir.1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90; Bertrand v. Shell Oil Co., 489 F.2d 293 (5th Cir.1973); Dickerson v. Continental Oil Co., 449 F.2d 1209 (5th Cir.1971), cert. denied, 405 U.S. 734, 92 S.Ct. 942, 30 L.Ed.2d 809 (1971).

      . Tidelands contends that — even if § 1333(a)(2)(A) is operative, so as to require the application of Louisiana law — then the Louisiana law to be applied must include the state’s choice of law rules. This is a doubtful proposition. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. at 482, n. 8, 101 S.Ct. at 2877, n. 8 (the Lands Act “does supercede the normal choice-of-law rules that the forum would apply"); Chevron Oil Co. v. Huson, 404 U.S. at 102-03, 92 S.Ct. at 353 ("ordinary conflict of law principles have no relevance" when state law is applied as federal law under the Lands Act.)
      Section 1333(a)(2)(A) specifically adopts the substantive law of the state adjacent to the submerged land as surrogate law to be enforced as federal law. Therefore, application of the adjacent state’s choice of law rules would be "inapplicable” or "inconsistent” with this explicit adoption, and of § 1333(a)(2)(A), if they directed that the substantive law of a different state should be applied. However, this issue has not been addressed in a case brought under the Lands Act. Cf. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1961). And, since the conflict rules of Texas and Louisiana are the same, it is of academic interest only in this case.

      . Hemingway, THE LAW OF OIL AND GAS § 8.1 (1971) summarizes the major implied covenants in this manner:
      "(A) Implied covenants to develop the leases.
      (1) To drill an initial well.
      (2) To reasonably develop the lease after production has been acquired.
      (B) Implied covenants of protection.
      (1) To protect against drainage.
      (2) Not to depreciate the lessor’s interest.
      (C) Implied covenants relating to management and administration of the lease.
      (1) To produce and market.
      (2) To operate with reasonable care.
      (3) To use successful modern methods of production and development.
      (4) To seek favorable administration action.”
      See also the lists in Brown, THE LAW OF OIL AND GAS LEASES § 16.02 at 16-6 (2nd Ed. 1973); Merrill, COVENANTS IMPLIED IN OIL AND GAS LEASES, at 23 (2nd Ed.) 2 Summers, OIL AND GAS § 395 at 535 (Perm Ed.1959); and Williams and Meyers, OIL AND GAS LAW § 802.

      . There does appear to be considerable disagreement as to the theoretical basis for implied covenants. One view holds that such covenants are implied in fact, and must therefore be derived from the written agreement and the circumstances surrounding its execution; the other maintains that they are implied in law, and are added to the contract by the court to promote fairness, justice, and equity. Williams and Meyers, OIL AND GAS LAW § 803. In the present case, since there is no genuine issue of any material fact concerning the existence of an implied covenant to protect against drainage— and since the 1951 Agreement is clear and unambiguous — this dispute is merely of academic interest. See Walker, "The Nature of the Property Interests Created by an Oil and Gas Lease in Texas,” 11 Texas L.Rev. 402, 404-05 (1933).

      . For convenience, references in this discussion to “overriding royalty interests" also include "production payments,” like those created in the 1951 Agreement involved in this case. A production payment, or oil payment, is also a nonparticipating interest in oil and gas produced at the surface, free of expense of production. It differs from an overriding royalty only in that it is fixed in amount and expires when the' specified amount has been paid. 2 William & Meyers, OIL AND GAS LAW § 422-422.3a; Walker, "Oil Payments,” 20 Tex.L.Rev. 259, at 269 (1942).

      . See the cases cited in 3 Summers, OIL AND GAS § 554; 2 Williams and Meyers, OIL AND GAS LAW § 421. Almost all of these cases involved overriding royalties reserved by a party assigning an oil and gas lease — rather than an overriding royalty obtained by grant from the lessee, as in this case — but there is no basis for a legal distinction between overriding royalties created by grant, and those created by reservation. Id., at § 418; Merrill, COVENANTS IMPLIED IN OIL AND GAS LEASES § 191.

      . But see McNeill v. Peaker, 488 S.W.2d 706 (Ark.1973); Kile v. Amerada Petroleum Corp., 247 P. 681 (Okla.1925).

      . The Louisiana Mineral Code is found at LSA-R.S. 31:1 et seq.

      . The comment to Article 122 of the Louisiana Mineral Code — which addresses unitization as an alternative remedy to the drilling of protection wells if the implied covenant against drainage is breached by lessee-caused drainage — also supports this holding in Williams. (432 F.2d at 174.) See also Pan American Petroleum Corp. v. Udall, 192 F.Supp. 626 (D.D.C.1961); R.R. Bush Oil Co. v. Beverly-Lincoln Land Co., 158 P.2d 754 (Cal.App.1945).

      . In Iberian Oil Corp. v. Phillips Petroleum Co., 226 F.Supp. 190 (W.D.La.1964), the federal district court held that a sublessee was not obligated to protect the overriding royalty interest (retained by the sublessor upon assignment of the lease) from drainage while an action brought by the sublessor/overriding royalty owner was pending; however, the issue of whether a protection covenant would be implied in the absence of the pending suit was not. considered. Also inapplicable is Uzee v. Bollinger, 178 So.2d 508 (La.App.1965), which involved a royalty interest retained by the landowner upon the conveyance of mineral rights to the land; there, the court held that there was neither a principal-agent nor a fiduciary relationship between the vendor and purchaser which would require the purchaser to account to the vendor for production payments and overriding royalties granted to him in a collateral agreement and compromise with the mineral lessee.

      . If, as in this case, the overriding royalty interest is created by one other than a landowner who owns mineral rights or by the owner of a mineral servitude, it is not included in the term "royalty interest” as defined by the Louisiana Mineral Code. La.Min.Code arts. 80-82. Cf. Whitehall Oil Co. v. Eckart, 197 So.2d 664, 668-89 (La.Civ.App. 3rd Cir.1967) (a pre-Code case).

      . Presumably, this is the reason for the dispute in this case concerning the choice of law. Tidelands contends that Texas law controls; Gulf argues that Louisiana law should be applied. However, as discussed above, the result in this case would be the same under either state's law.

      . Under this agreement, Gulf received not only "absolute title” to the geophysical data, but also the right to its continuing, exclusive use — plus covenants precluding Tidelands from acquiring leases or conducting any geophysical work in this area (with any violations resulting in cancellation of the overriding royalties and production payments).

      . Each of these assignments — including the October 30, 1975 Assignment of Overriding Royalty involved in this case — was expressly subject to "all of the terms, conditions, provisions and limitations” of the 1951 Agreement.

      . Section 11(b) of the Agreement, which sets forth Gulfs obligation to pay production payments and overriding royalties to Tidelands, and which explains the method to be used to calculate the amount of these payments, covers nearly seven full pages.

      . In addition to the cash payment of $2 million, Gulf agreed to the future assignment of production payments of $1,500,000 from each of 60 designated "units,” plus additional production payments from “excess productive acreage" within each “unit,” plus overriding royalties from each “unit” when the production payments were satisfied (See footnote 2.) The potential income from the production payments alone was $90,000,000.

      . Since the lessor was not able to drill a protection well on the property in questioin — the United States Geological Survey had entered an order prohibiting the drilling of an oil or gas well on it — the court also held that the plaintiff could recover “compensatory royalties" for breach of the implied covenant to protect against drainage. Cook, 560 F.2d at 982.


source: Caselaw Access Project

license: Public Domain

text:
    Robert J. POPKINS, Plaintiff, v. James B. ZAGEL, Director of Department of Law Enforcement of the State of Illinois; Joseph E. Ginter, Deputy Director of Department of Law Enforcement of the State of Illinois; and the Department of Law Enforcement of the State of Illinois, Defendants.
    Civ. A. No. 83-3190.
    United States District Court, C.D. Illinois, Springfield Division.
    June 19, 1985.

      Karl Yost, Morrison, Ill., for plaintiff.
    Neil F. Hartigan, Atty. Gen. of the State of Ill. by Thomas M. Schmidt, Asst. Atty. Gen., and Robert Ogren, Dept. of Law Enforcement, Springfield, Ill., for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

REYNOLDS, Chief Judge, Sitting by Designation.

In this action under the United States Constitution - and various federal statutes, the plaintiff charges that his statutory termination at age 60 from his position as an Illinois State Trooper constitutes illegal age discrimination and violates his right to equal protection. A bench trial before the Honorable J. Waldo Ackermann was held on September 26, 1984. Judge Ackerman passed away prior to filing findings of fact and conclusions of law, and consequently, the parties are entitled to a new trial pursuant to Fed.R.Civ.P. 63. Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir.1977). The parties have agreed, however, to submit the entire transcript of proceedings held on September 26, 1984, to this Court for the issuance of findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. By the same written stipulation, the parties have waived oral argument.

FINDINGS OF FACT

1. Robert J. Popkins was born June 24, 1923. He was hired by the Illinois Department of Law Enforcement, Division of State Police, on December 15, 1957, and served as a trooper until he was forced to retire on June 24, 1983, his sixtieth birthday.

2. The Illinois Department of Law Enforcement, Division of State Police, forced Popkins to retire pursuant to Ill.Rev.Stat. 1983, ch. 121, § 307.12-1, which provides: “No person may be retained in service as a state policeman after he has reached 60 year of age.”

3. Illinois State Troopers are responsible for the patrol of highways, regulation, and enforcement of vehicle and criminal laws, accident and criminal investigations, arrests, searches, and the provision of first aid to ill/injured persons. A trooper must perform these duties in all types of weather conditions, and the working conditions include responding to hazardous situations, accident scenes, and service calls, some of which require physical effort in lifting and handling heavy materials, and in subduing or pursuing individuals who resist arrest.

4. At the time of his retirement, Pop-kins held the position of Public Information Officer for District Number 1. A Public Information Officer is required to be a state trooper and wear the uniform, including a weapon, but does not work as a highway patrol officer. A Public Information Officer releases news items and makes public appearances before school and civic groups.

5. Public Information Officers are required to carry out the responsibilities of the Department of Law Enforcement, including enforcement of traffic laws and responding to accidents as they travel throughout their district, and they must make themselves immediately available to the District Commander in emergency or disaster situations. The Department retains discretion to transfer Public Information Officers into any other position.

6. Popkins served as Public Information Officer for over six years, and was never called upon to respond to an emergency or disaster situation.

7. Prior to his forced retirement, Pop-kins was required to take, and passed, a physical examination on June 22, 1983. The test was administered by the Department of Law Enforcement and included various physical tests such as touching one’s toes, picking up a person off the floor, and walking or running a mile and a half. A medical examination is not required.

8. The purpose of the Illinois statute requiring state police to retire at age 60 is to protect the public by assuring the physical preparedness of its uniformed police.

9. An individual’s physical ability declines with age. One measure of an individual’s physical ability is their aerobic capacity, which measures the amount of oxygen a body can absorb. Based upon the most strenuous aspects of a state trooper’s job, a trooper should have an aerobic capacity of 3.0 liters of oxygen per minute. Aerobic capacity decreases with age, and the average 60 year old has an aerobic capacity of 2.1 or 2.2 liters per minute. Regular, vigorous exercise can only inprove aerobic capacity by 10 to 15%.

10. Coronary artery occlusion, which restricts the flow of blood to the heart, could cause an individual exposed to high levels of physical exertion to suffer a heart attack. By age 60, approximately 70% of men have significant coronary artery disease in the form of obstruction of at least one coronary artery to a degree of at least 50%. There is no practicable means to detect the presence of coronary artery occlusion in asymptomatic individuals. At age 55 and over, age is the most significant factor in predicting the presence or absence of coronary artery occlusion.

11. Robert J. Popkins filed this lawsuit on June 16, 1983. He notified the Secretary of Labor of his intent to file suit by filing a complaint with the Equal Employment Opportunity Commission on May 20, 1983.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over this action under 28 U.S.C. § 1331. The plaintiff has requested relief under the Discrimination in Employment Act, 29 U.S.C. § 626; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202; the Age Discrimination in Federally Assisted Programs Act, 42 U.S.C. § 6104; the civil rights statutes, 42 U.S.C. § 1981 and § 1983; and unspecified provisions of state law.

2. The plaintiff has not stated a claim under 42 U.S.C. § 1981 because he has not alleged any discriminatory treatment on account of his race.

3. The plaintiff’s claim under the Age Discrimination in Federally Assisted Programs Act is not properly before the Court. Under 42 U.S.C. § 6104(e), a party is required to notify the Secretary of Health and Human Services, the Attorney General of the United States, and the defendants thirty days prior to commencement of the action. A litigant is required to exhaust administrative remedies under 42 U.S.C. § 6104(f). Because the plaintiff has not demonstrated compliance with these provisions, the Court lacks jurisdiction over this claim.

4. The plaintiff’s unspecified state law claims are barred by the Eleventh Amendment, because a claim that state officials violated state law in carrying out their official responsibilities is a claim against the state, and the relief sought would have a direct impact on the state itself. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

5. The plaintiff’s requests for a declaratory judgment and § 1983 relief are premised, in part, on an alleged violation of the equal protection clause of the Fourteenth Amendment. Under the equal protection clause, a mandatory retirement law for state police must be sustained if the state has a rational basis for the law, even though other state employees are not required to retire until age 70. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The Illinois statute requiring state police to retire at age 60 (Ill.Rev.Stat.1983, ch. 121, § 307.12-1) meets the requirements of the equal protection clause, as it rationally furthers the purpose of protecting the public by assuring the physical preparedness of the state’s uniformed police. Murgia, supra.

6. A claimant under the Age Discrimination in Employment Act (“ADEA”) may not commence a lawsuit until 60 days after a charge has been filed with the Secretary of Labor through the Equal Employment Opportunity Commission. 29 U.S.C. § 626(d). Every appellate court that has considered this question has concluded that the 60-day notice provision is a jurisdictional prerequisite. Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir.1976), rev’d in part and remanded on other grounds, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Vance v. Whirlpool Corp., 707 F.2d 483, 489 (4th Cir.1983). The purpose of the 60-day waiting period is to permit the appropriate federal officials an opportunity to bring about compliance with the act by informal methods. Because the defendants in this action acted pursuant to state statute, efforts at conciliation would be meaningless. The law does not require the performance of meaningless acts, and consequently, the Court has jurisdiction over the ADEA claim even though the plaintiff provided only 27 days’ notice before commencing this lawsuit.

7. Even though the plaintiff was discharged solely because of his age, the discharge did not violate the ADEA because under the facts presented, age is a bona fide occupational qualification (“BFOQ”) reasonably necessary to the operation of the state patrol. To prevail on a BFOQ defense, “an employer must show that the challenged age qualification is reasonably related to the essential operation of its business, and must demonstrate either that there is a factual basis for believing that all or substantially all persons above the age limit would be unable to effectively perform the duties of the job, or that it is impossible or impracticable to determine job fitness on an individualized basis.” Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983). The first step in this inquiry is satisfied for the same reasons that the Court sustained the statute under the equal protection clause. Supra. The defendants have sustained their burden under the second step in the inquiry by presenting undisputed medical testimony that substantially all persons over age 60 lack the physical capacity to effectively work as Illinois State Troopers, and the impracticability of determining which persons over age 60 are capable of performing this work. The plaintiff’s particular assignment at the time of his termination is not relevant to this inquiry, because the BFOQ focus is on the “business” and not on the assignment. Equal Employment Opportunity Commission v. City of Janesville, 630 F.2d 1254, 1258 (7th Cir.1980). This point is especially important in this case, because a trooper is not permanently assigned as Public Information Officer, and may be reassigned to patrol duties at any time. So long as the Department of Law Enforcement requires its information officers to be state troopers, individuals holding that position must meet all the standards required of troopers. The plaintiff has presented no evidence that suggests that retirement at age 60 is not a BFOQ for the generic class of state troopers, and the plaintiff’s nonmedical physical examination does not establish his fitness to perform as a state trooper.

ORDER

IT IS THEREFORE ORDERED that this action is DISMISSED.


author: LYNCH, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Tom WILSON and Sonny Erickson, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Gig and Jeanette EBERHARDT, Defendants-Appellees.
    Nos. CR-84-0396 EFL, CR-84-0395 EFL.
    United States District Court, N.D. California.
    June 19, 1985.

      William Farmer, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.
    Geoffrey A. Hansen, Asst. Fed. Public Defender, Lawrence Lichter, Serra, Perelson & Metcalf, San Francisco, Cal., for defendants-appellees.
   MEMORANDUM OPINION

LYNCH, District Judge.

Tom Wilson and Jeanette Eberhardt were charged by information with the unlawful sale of anadromous fish caught within the Hoopa Valley Indian Reservation. Both defendants were charged under 16 U.S.C. § 3372(a)(1), the Lacey Act, which makes it unlawful for any person to sell any fish taken in violation of any regulation of the United States. Specifically, the defendants were accused of violating 25 C.F.R. §§ 258.8(d), (e) prohibiting commercial fishing by Indians on that part of the Klamath River that flows through the Hoopa Valley Reservation.

Both defendants agreed to have their cases heard by a magistrate. Magistrate Steele F. Langford, recognizing that these cases involved common questions of law and fact, agreed to consolidate the proceedings. On September 14, 1984, defendants Wilson and Eberhardt moved to have the informations filed against them dismissed. The defendants argued that the regulations prohibiting commercial fishing on the Hoopa Valley Reservation, which underlie their prosecutions under the Lacey Act, were invalid. Defendants’ motions were heard on November 9, 1984. On March 5, 1985, Magistrate Langford granted Wilson’s and Eberhardt’s motions to dismiss. The next day, the Government filed a notice of appeal to this Court.

1. Background Facts

Both Wilson and Eberhardt are members of the Yurok Indian Tribe. Along with the Hoopa Indians, the Yuroks occupy the Hoopa Valley Reservation in California’s Del Norte and Humboldt counties. Geographically, the reservation consists of three parcels: (1) the Old Klamath River Reservation, one mile in width on each side of the Klamath River, extending from the river’s mouth on the Pacific Ocean up the river for 20 miles; (2) the original Hoopa Valley Reservation, a 12-mile square, centered at the confluence of the Klamath and Trinity rivers; and (3) a 30-mile strip along the Klamath River connecting the Hoopa and Klamath parcels. See Mattz v. Arnett, 412 U.S. 481, 493, 93 S.Ct. 2245, 2252, 37 L.Ed.2d 92 (1973); Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 458, 121 Cal.Rptr. 906 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976).

The Department of Interior (“Interior”) has promulgated regulations regarding the commercial taking of anadromous fish by Indians on the Hoopa Valley Reservation. People v. McCovey, 36 Cal.3d 517, 529-31, 205 Cal.Rptr. 643, 685 P.2d 687 (1984). In 1977, Interior expressly limited commercial fishing by Indians to five fish per day. 42 Fed.Reg. 40,904-40,905 (August 12, 1977). In 1978, Interior imposed interim regulations that allowed eligible fishermen to fish commercially on the Klamath River only during limited seasons. 43 Fed.Reg. 30,048 (July 13, 1978). Interior then superceded these rules by another set of regulations in 1979. 44 Fed.Reg. 17,144-17,151 (March 20, 1979) (codified in 25 C.F.R. 258).

It was in 1979 that Interior prohibited all commercial fishing and sale of anadromous fish caught on the Hoopa Valley Reservation. 25 C.F.R. § 258.8(c), (d). These regulations define commercial fishing as the taking of fish or fish parts with the intent to sell or trade them or profit economically from them. 25 C.F.R. § 258.4(b). The 1979 prohibition has remained in effect for over six years, having been renewed in successive versions of the regulations. McCovey, 36 Cal.3d at 529, 205 Cal.Rptr. 643, 685 P.2d 687.

The defendants argued before the Magistrate that Interior’s prohibition on commercial fishing constituted a “modification or abrogation” of their treaty right to take Klamath River fish. The defendants contended that absent express Congressional authority this right could not be abridged by an executive agency. United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). Since the fishing regulations at issue in the Wilson and Eberhardt prosecutions were not expressly authorized by Congress, the defendants concluded, they were invalid. Alternatively, the defendants argued that, even if authorized, Interior’s moratorium on Klamath River fishing was impermissible because it discriminated against Indians by placing the greatest burden of resource conservation upon tribal fishermen.

In his March 5, 1985 order, Magistrate Langford granted the defendants’ motions to dismiss. First, contrary to the position advocated in the amicus brief submitted by the Court of Indian Offenses, the Magistrate ruled that the district court had concurrent jurisdiction to hear and determine the defendants’ motions. Second, the Magistrate held that Interior was without authority to promulgate regulations that abrogated the tribe’s federally reserved right to take fish from the Klamath River. Third, the Magistrate held that even if Interior were authorized to promulgate these fishing regulations, as written they were arbitrary, not necessary to achieve a conservation purpose and impermissibly discriminatory. Concluding that the regulations underlying the Lacey Act prosecution were invalid, the Magistrate dismissed the informations against the defendants.

The Government appeals this decision. As the Magistrate’s conclusions constitute findings of law, they are subject to this Court’s de novo review on appeal. U.S. v. Nance, 666 F.2d 353, 356 (9th Cir.1982). There are, therefore, three distinct issues before this Court: proper jurisdiction, abrogation, and discrimination.

II. Jurisdiction

Appellee Eberhardt argues on appeal that Congress did not intend the Lacey Act to be used to prosecute Indians in federal court. Instead, she contends, the Court of Indian Offenses of the Hoopa Valley Reservation has the exclusive jurisdiction to try eligible Indians accused of violating Interior’s regulations. The Magistrate rejected this jurisdictional argument. He ruled instead that the Lacey Act conferred concurrent jurisdiction on federal and tribal courts to prosecute Indian fishing offenses. The Court agrees.

The Lacey Act provides no independent basis for criminal prosecution but rather makes a violation of an underlying law or regulation a trigger to federal liability. Section 3372(a) makes it unlawful for any person:

(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law;
(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce—
(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law, ...

16 U.S.C. § 3372(a).

As expressly stated in the Lacey Act, federal courts have jurisdiction over any actions arising under it. 16 U.S.C. § 3375(c). Section 258.14 of the underlying Interior regulations also expressly grants the Court of Indian Offenses jurisdiction to try Indians accused of violating the rules. Thus federal jurisdiction is concurrent, but it is not extinguished by the separate jurisdictional grant afforded by the underlying regulations.

III. Abrogation of Tribal Rights

The central issue presented on appeal is whether the Government, acting in its role as trustee, improperly deprived Hoopa Valley Reservation Indians of their federally protected tribal right to take fish from the Klamath River. As held by the Ninth Circuit in United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir.), cert. denied, 449 U.S. 1004,101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the Government may not abrogate or modify Indian tribal rights without clear Congressional authorization. The question. before this Court, therefore, is two fold: (1) whether the Interior regulations under which the appellees were prosecuted “modify or abrogate” Hoopa Valley Reservation tribal rights, and (2) whether such an “abrogation,” if found, was clearly authorized by Congress.

A. Scope of Reserved Rights

In order to assess whether the Klamath River regulations modified or abrogated Hoopa Valley Reservation tribal rights, it is first necessary to determine the scope of these rights and whether the appellees’ actions were within those rights. See United States v. Dion, 752 F.2d 1261, 1263 (8th Cir.1985). It is only when the scope of the rights is known that it can be determined whether or not governmental actions have modified or abrogated them.

The rights of the Yurok Indians to exploit resources on the Hoopa Valley Reservation were reserved by statute, not treaty. Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981). The Hoopa Valley Reservation, as outlined by the Supreme Court in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), has had a complex history. By its Act of March 3, 1853, Congress authorized the President to make five military reservations from the public domain in California for Indian purposes. President Pierce, consistent with this authority, specified the Old Klamath River Reservation in his order of November 16, 1855. Mattz, 412 U.S. at 487, 93 S.Ct. at 2249. In 1876 a 12-mile square, known as the original Hoopa Valley Reservation, was formally set aside by another executive order. In 1891 President Harrison extended the reservation to encompass the Old Klamath River Reservation and added to the reservation a 30-mile strip connecting these two areas. Mattz, 412 U.S. at 502, 93 S.Ct. at 2256.

In establishing the Hoopa Valley Reservation, Congress reserved those rights necessary for the Indians to maintain on the land ceded to them their way of life, which included hunting and fishing. Menominee Tribe of Indians v. United States, 391 U.S. 404, 406, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968). It makes little practical difference that Congress granted these rights by statute rather than by treaty. Blake, 663 F.2d at 909; Arnett v. 5 Gill Nets, 48 Cal.App.3d 464, 459, 121 Cal.Rptr. 906 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976). In determining the scope of those rights, therefore, the rules of Indian treaty construction should apply.

In construing Indian treaties, the courts have required treaties to be liberally construed to favor Indians, “ambiguous expressions in treaties must be resolved in favor of the Indians, and [the] treaties should be construed as the Indians would have understood them.” Dion, 752 F.2d at 1263 (quoting United States v. Top Sky, 547 F.2d 486, 488 (9th Cir.1976)).

Neither the executive order of 1855 nor that of 1891 contain an express reservation of hunting and fishing rights. Blake, 663 F.2d at 909. Nonetheless, the fact that the reservation, when created, was riparian to the Klamath River leads inescapably to the conclusion that the right to take fish from the river was reserved to thé tribe and that the Indians understood the reservation to include the right to fish. Blake, 663 F.2d at 911.

This right to take fish includes not only the right to catch fish for individual consumption, but also the right to engage in commercial taking. See Dion, 752 F.2d at 1265 n. 11. Interior, in both the regulations and at argument on this motion, has explicitly acknowledged the Hoopa Valley Reservation’s tribal right to take fish for commercial purposes. 43 Fed.Reg. 30,048 (July 13, 1978); 44 Fed.Reg. 17,146, (March 20, 1979). “Based upon the history of Indian fishing on the Klamath, as well as on the substantial case law interpreting Federal fishing rights, the Department has concluded that the Indians’ reserved fishing right includes the right to use fish for commercial purposes.” 43 Fed.Reg. 30,048 (July 13, 1978).

Nonetheless, the Government contends that it may foreclose this right to fish commercially when it is done for “conservation” purposes. Interior relies on the Puyallup case authority holding that Indian rights to exploit reservation resources are, at their outer limit, subject to the environmental demands of species conservation. As noted by Justice Douglas in Department of Game of Washington v. Puyallup Tribe, 414 U.S. 44, 49, 94 S.Ct. 330, 334, 38 L.Ed.2d 254 (1973) (Puyallup II), Indian treaty rights do not give Indians a federal right “to pursue the last living steelhead until it enters their nets.” Thus, the Yurok’s federally reserved rights do not extend to include the right to fish anadromous species on the Klamath River to extinction. Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 175-76, 97 S.Ct. 2616, 2622-23, 53 L.Ed.2d 667 (1977) (Puyallup III). See also Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 684, 99 S.Ct. 3055, 3073, 61 L.Ed.2d 823 (1979).

The present situation is clearly distinguishable from this line of Puyallup authority. While Puyallup II holds that Indian rights can be controlled by the need to preserve a species, such an environmental crisis did not exist on the Hoopa Valley Reservation in 1979. Interior has not established or even claimed that anadromous fish in the Klamath River were on the verge of extinction when it promulgated its ban on Indian commercial fishing. As stated in the prologue to Interior’s regulations, ocean fishing, which harvested the vast majority of Klamath and Trinity salmon, remained substantially unregulated. Sports fishing by non-Indians on the Klamath was also allowed during this period. There is, in short, absolutely no evidence before this Court that at the time of the regulations Interior believed that the Hoopa Valley Reservation’s fish resources were facing imminent extinction. In 1979, Congress could still have acted expressly to prohibit commercial fishing had it wished to do so. See Dion, 752 F.2d at 1268 n. 14.

B. Modification or Abrogation

Given that the Indians of the Hoopa Valley Reservation had a reserved right to take Klamath River anadrogous fish for commercial purposes, it must next be determined whether Interior’s regulations suspending all commercial fishing have, in fact, modified or abrogated that right. See Dion, 752 F.2d at 1265.

The Magistrate found that a six-year prohibition on the Yurok’s tribal right to fish for commercial purposes constituted an “abrogation” of the treaty right. The Government disputes this on appeal, arguing instead that the regulations merely suspend the tribe’s right without affecting it.

The issue of what action rises to the level of “abrogation” is a difficult one which has never been directly addressed by this circuit. In United States v. Fryberg, 622 F.2d 1010, 1014 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the Ninth Circuit held that the Eagle Protection Act’s prohibition on taking of eagles by Indians constituted a “modification or abrogation” of treaty hunting rights. Acknowledging that the regulation in question involved only a “relatively insignificant modification of the Indian’s hunting rights,” the court still required a clear intention on the part of Congress to so affect those rights. Id.

The regulations at issue here constitute more than an “insignificant modification” of the Hoopa Valley Reservation Indians’ reserved right to fish commercially. Instead, they rise to the level of “substantial infringement” of the type outlined in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. at 690, 99 S.Ct. at 3077 (Fraser River Treaty between the United States and Canada could not infringe upon Indian rights absent express statutory language). As such, Interior’s regulations “modify or abrogate” the Indians’ treaty right so as to require express Congressional authorization.

C. Congressional Authorization

It is undisputed that Congress can modify or abrogate reserved tribal rights. See Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). The intention to do so, however, is not to be lightly imputed to Congress. Menominee, 391 U.S. at 413, 88 S.Ct. at 1711. As directed by United States v. Fryberg, 622 F.2d 1010, 1013 (9th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the Court should look to surrounding circumstances and legislative history for evidence of Congress’ intent to abrogate.

The Government maintains that it was specifically authorized to promulgate the Klamath River regulations based on three statutes: 43 U.S.C. § 1457; 25 U.S.C. §§ 2, 9, 13; and the Reorganization Plan No. 3 of 1950. See 44 Fed.Reg. 17,148 (March 20, 1979) (authority). Under these statutes, Interior is authorized to supervise and manage Indian affairs. McCovey, 36 Cal.3d at 534 n. 21, 205 Cal.Rptr. 643, 685 P.2d 687. See also Udall v. Littell, 366 F.2d 668 (D.C.Cir.1966).

The Government contends that this general statutory authorization constitutes sufficient evidence of Congress’ intent to abrogate the Hoopa Valley Reservation’s right to fish commercially. In support of its position, the Government cites several cases where Interior has acted under its general statutory authorization. In Udall v. Littell, 366 F.2d 668 (D.C.Cir.1966), the court held that Interior’s cancellation of an attorney’s contract with the tribe was a proper exercise of oversight authority. 366 F.2d at 674. In United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 443 (9th Cir.1971), the court approved Interior’s decision to halt the alienation of Colville tribal lands. In Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072 (9th Cir.1983), the court approved of Interior’s decision to block the tribe’s unilateral cancellation of a lease.

The Court rejects the Government’s argument. The very broad grant of management authority given to Interior under these statutes is wholly inadequate to impute Congressional intent to modify the federally protected right to fish commercially held by the Hoopa Valley Reservation Indians. None of the cases cited by the appellant authorizes Interior’s interference with reserved tribal rights absent Congressional authorization. The Udall and Consolidated cases each dealt specifically with a tribe’s right to contract with private parties. In Udall, the tribe specifically asked the Secretary to investigate and terminate the contract if he discovered any improprieties. 366 F.2d at 671. In Consolidated, Interior had historically exercised its right to withhold public lands from private development. 455 F.2d at 442-44. More importantly, both of these cases involved only the management of tribal affairs by Interior, not the abrogation of federally protected tribal rights. Nor does Yavapai-Prescott support the Government’s position. In that case, Congress had passed a specific statute authorizing the Secretary of Interior to approve leases of Indian land. 707 F.2d at 1074. Thus, Congress had explicitly authorized Interi- or’s intervention.

It is clear from Fryberg that Congressional intent to abrogate or modify tribal rights must be clear from the face of the statute and the circumstances surrounding its passage. Looking at the express language of the statutes relied upon by Interior to authorize its ban on Klamath River fishing, there is absolutely nothing to indicate that Congress authorized the abrogation of the Hoopa Valley Reservation’s tribal right to fish commercially. Nor is there any basis for finding such Congressional intention in the legislative history of these acts. The authority now relied in part upon by the Secretary is derived from Statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. At the time Congress granted this authority, a “policy of almost total tribal self-government” prevailed. Organized Village of Kake v. Egan, 369 U.S. 60, 63, 82 S.Ct. 562, 564, 7 L.Ed.2d 573 (1962). It is impossible, therefore, to impute to Congress an intention to authorize Interior to abrogate Indian fishing rights on the Hoopa Valley Reservation almost 150 years later.

The Court agrees with the Magistrate that the general trust statutes relied upon by the Department of Interior do not constitute explicit Congressional intent necessary to abrogate or modify reserved tribal rights. Thus under Fry berg, the Interior regulations prohibiting the commercial fishing of anadromous fish on the Hoopa Valley Reservation are impermissible and invalid.

IV. Conclusion

The Court, therefore, affirms the Magistrate on the following issues. Jurisdiction is properly within the federal court. The Indians of the Hoopa Valley Reservation have a reserved tribal right to fish for commercial purposes on the Klamath River. The regulations under which the appellees were prosecuted were invalid as an unauthorized modification of these treaty rights and, therefore, cannot support a prosecution under the Lacey Act. As the Court finds the regulations unauthorized, it is not necessary to reach the issues of whether the regulations were arbitrary and capricious or discriminatory.

The Court affirms the Magistrate’s dismissal of the informations against the appellees.

IT IS SO ORDERED.

      . Anadromous fish are hatched in freshwater, grow to maturity in the ocean, and usually return to their freshwater parent streams to spawn. The important anadromous fish found in the Klamath and Trinity river drainage basin are chinook and coho salmon, steelhead, coastal cutthroat and brown trout, green and white sturgeon, American shad, Pacific lamprey and candlefish. Bureau of Indian Affairs, Environmental Impact Statement, Indian Fishing Regulations 9 (1985).

      . During July 1982, undercover agents of the United States Fish and Wildlife Service met the defendants. The agents allege that on several occasions Wilson and Eberhardt sold them anadromous fish within the boundaries of the Hoopa Valley Indian Reservation.

      . These regulations were operative at the time appellees committed the offenses. The regulations currently in effect are substantially similar to those promulgated in 1979. McCovey, 36 Cal.3d at 529 n. 12, 205 Cal.Rptr. 643, 685 P.2d 687.

      . The legislative history of the Act indicates that Congress intended the Lacey Act to enhance enforcement of wildlife laws and regulations by "federalizing" the violation of other independent provisions. See H.R. No. 276, 97th Cong., 1st Sess. 13 (1981); S.Rep. No. 123, 97th Cong., 1st Sess. 4 (1981), U.S.Code Cong. & Admin.News 1981, p. 1748.

      . Historical accounts of Indian ways and customs clearly establish the dependence of the tribes upon the Klamath River’s resources. As described by an agent of the Indian Bureau, writing of the suitability of the Klamath River Indian country to the needs of the Indians:
      [n]o place can be found so well adapted to these Indians, and to which they themselves are so well adapted, as this very spot. No possessions of the Government can be better' spared to them. No territory offers more to these Indians and very little territory offers less to the white man. The issue of their removal seems to disappear.

        Report of the Commission of Indian Affairs 266 (1885) (as quoted in Mattz v. Arnett, 412 U.S. at 487 n. 6, 93 S.Ct. at 2249 n. 6).
      To modern Indians of the Hoopa Valley Reservation, fishing remains a way of life, not only consistent with traditional Indian customs, but also as an eminently practical means of survival in an area which lacks the broad industrial or commercial base which is required to provide its population, Indian or otherwise, with predictable full-time employment and income adequate to provide sufficient quantities and qualities of the necessaries of life. National Park Service, Environmental Assessment: Management Options for the Redwood Creek Corridor, Redwood National Park (1975).

      . Between 1976-1984, ocean fishers took 67 percent of the available adult Klamath River chi-nook salmon, Indian fishers took 8 percent and sports fishers caught 2 percent. Bureau of Indian Affairs, Environmental Impact Statement, Indian Fishing Regulations 29 (1985).

      . [T]he very general language of these statutes makes it quite plain that the authority conferred on the Commissioner of Indian Affairs was intended to be sufficiently comprehensive to enable him ... to manage all Indian affairs, and all matters arising out of Indian relations. Udall, 366 F.2d at 673.

      . Where, as here, the inteference with tribal rights is substantial, the Court should rely more on express language of the statute and less on the surrounding circumstances to establish Congressional determination to modify or abrogate a right. Fryberg, 622 F.2d at 1014.


author: GONZALEZ, District Judge.

text:
    Frank MORGAN, Plaintiff, v. Dennis WHITT and James Tice in their individual and official capacities, and the City of Lake Park, Defendants.
    No. 85-8241-CIV.
    United States District Court, S.D. Florida, N.D.
    June 19, 1985.
    James Green, West Palm Beach, Fla., for plaintiff.
    Richard Gaunt, Jr. and John Romano, West Palm Beach, Fla., for defendants.
   GONZALEZ, District Judge.

Plaintiff Frank Morgan, a writer for a local newspaper in Palm Beach County, has sued Dennis Whitt and James Tice, employees of the City of Lake Park, along with the City itself, for violating his First Amendment right to freedom of the press in contravention of 42 U.S.C. § 1983. Mr. Morgan’s complaint alleges in pertinent part that defendants Whitt and Tice, acting under “color of state law,” conducted a frivolous investigation of plaintiff during which they made slanderous statements and invaded his privacy. This conduct, avers plaintiff, directly caused him to “quit writing his newspaper column.” Complaint ¶ 10 (filed Apr. 18, 1985).

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1343 and the federal question present (i.e., 28 U.S.C. § 1331).

Defendants move for a more definite statement, to dismiss, or for a summary judgment.

Freedom of the press generally embraces a right to be free from censorship. Section 1983 prohibits affirmative acts of government or its agents which effectively prevent someone from exercising his First Amendment right. See Borreca v. Fast, 369 F.Supp. 906 (D.Haw.1974); Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970).

While plaintiff’s newspaper column is thus a protected activity for purposes of section 1983, plaintiff fails to connect defendants’ allegedly slanderous comments and intrusive behavior with his decision to leave the newspaper. One can, of course, speculate that defendants somehow brought to bear political pressure on the newspaper to discharge plaintiff, but that is not what appears in the complaint and in fact does not appear to be what this case is all about. Rather, this case appears to be “nothing more than a political feud masquerading as a legal claim.” Colon v. Lomelo, 575 F.Supp. 664, 667 (S.D.Fla.1983) (Gonzalez, J.).

Colon v. Lomelo is instructive in this case. In Colon, plaintiff charged the City along with members of its City Council with violating, inter alia, section 1983 by informing plaintiff’s private employer that plaintiff was under investigation by the police for illegal activities at work when he was not, thereby prompting the employer to terminate plaintiff’s employment. Reluctantly, the court denied defendants’ motion to dismiss that claim because plaintiff had linked defendants’ actions taken under “color of law” with a specific consequence.

Frank Morgan, unlike the plaintiff in Colon, has failed to connect the defendants’ activities with his decision to abandon his newspaper column. Without that connexity, plaintiff’s complaint is nothing more than a common-law action for slander and invasion of privacy, which the court has no authority to entertain absent an independent basis for federal jurisdiction.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the defendants’ motions to dismiss the complaint be and the same is hereby GRANTED, and this case shall stand DISMISSED WITHOUT PREJUDICE as to defendants Dennis Whitt, James Tice, and the City of Lake Park.

      . The court originally dismissed plaintiffs section 1983 claim against the City. 575 F.Supp. 667-68. However, that decision was vacated in light of the Supreme Court’s ruling in Brandon v. Holt, — U.S.-, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). Colon v. Lomelo, Order dated June 5, 1985.