43 U.S.C. § 1653 — Liability for damages

Page 523 TITLE 43—PUBLIC LANDS § 1653 (d) National Environmental Policy Act of 1969 bypassed; issuance of authorizations for con- struction and operation not to be subject to judicial review; time limits on charges of in- validity or unconstitutionality; jurisdiction; hearings; review The actions taken pursuant to this chapter which relate to the construction and completion of the pipeline system, and to the applications filed in connection therewith necessary to the pipeline’s operation at full capacity, as de- scribed in the Final Environmental Impact Statement of the Department of the Interior, shall be taken without further action under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]; and the actions of the Fed- eral officers concerning the issuance of the nec- essary rights-of-way, permits, leases, and other authorizations for construction and initial oper- ation at full capacity of said pipeline system shall not be subject to judicial review under any law except that claims alleging the invalidity of this section may be brought within sixty days following November 16, 1973, and claims alleging that an action will deny rights under the Con- stitution of the United States, or that the ac- tion is beyond the scope of authority conferred by this chapter, may be brought within sixty days following the date of such action. A claim shall be barred unless a complaint is filed within the time specified. Any such complaint shall be filed in a United States district court, and such court shall have exclusive jurisdiction to deter- mine such proceeding in accordance with the procedures hereinafter provided, and no other court of the United States, of any State, terri- tory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any such claim whether in a proceeding insti- tuted prior to or on or after November 16, 1973. Such court shall not have jurisdiction to grant any injunctive relief against the issuance of any right-of-way, permit, lease, or other authoriza- tion pursuant to this section except in conjunc- tion with a final judgment entered in a case in- volving a claim filed pursuant to this section. An interlocutory or final judgment, decree, or order of such district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States. (e) Amendment or modification of rights-of-way, permits, leases, or other authorizations The Secretary of the Interior and the other Federal officers and agencies are authorized at any time when necessary to protect the public interest, pursuant to the authority of this sec- tion and in accordance with its provisions, to amend or modify any right-of-way, permit, lease, or other authorization issued under this chapter. (Pub. L. 93–153, title II, § 203, Nov. 16, 1973, 87 Stat. 584; Pub. L. 98–620, title IV, § 402(46), Nov. 8, 1984, 98 Stat. 3360; Pub. L. 100–352, § 6(c), June 27, 1988, 102 Stat. 663.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (d), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (section 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 4321 of Title 42 and Tables. AMENDMENTS 1988—Subsec. (d). Pub. L. 100–352 amended last sen- tence generally. Prior to amendment, last sentence read as follows: ‘‘Any review of an interlocutory or final judgment, decree, or order of such district court may be had only upon direct appeal to the Supreme Court of the United States.’’ 1984—Subsec. (d). Pub. L. 98–620 struck out provision that any such proceeding had to be assigned for hearing at the earliest possible date, had to take precedence over all other matters pending on the docket of the dis- trict court at that time, and had to be expedited in every way by such court. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–352 effective ninety days after June 27, 1988, except that such amendment not to apply to cases pending in Supreme Court on such effec- tive date or affect right to review or manner of review- ing judgment or decree of court which was entered be- fore such effective date, see section 7 of Pub. L. 100–352, set out as a note under section 1254 of Title 28, Judici- ary and Judicial Procedure. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as a note under section 1657 of Title 28, Judici- ary and Judicial Procedure. § 1653. Liability for damages (a) Activities along or in vicinity of pipeline right-of-way; strict liability; limitation on li- ability; subrogation; emergency subsistence and other aid; exemption for State of Alaska (1) Except when the holder of the pipeline right-of-way granted pursuant to this chapter can prove that damages in connection with or resulting from activities along or in the vicinity of the proposed trans-Alaskan pipeline right-of- way were caused solely by an act of war or neg- ligence of the United States, other government entity, or the damaged party, such holder shall be strictly liable to all damaged parties, public or private, without regard to fault for such dam- ages, and without regard to ownership of any af- fected lands, structures, fish, wildlife, or biotic or other natural resources relied upon by Alaska Natives, Native organizations, or others for sub- sistence or economic purposes. Claims for such injury or damages may be determined by arbi- tration or judicial proceedings. (2) Liability under paragraph (1) of this sub- section shall be limited to $350,000,000 for any one incident, and the holders of the right-of-way or permit shall be liable for any claim allowed in proportion to their ownership interest in the right-of-way or permit. Liability of such holders for damages in excess of $350,000,000 shall be in accord with ordinary rules of negligence. (3) In any case where liability without fault is imposed pursuant to this subsection and the damages involved were caused by the negligence of a third party, the rules of subrogation shall apply in accordance with the law of the jurisdic- tion where the damage occurred. Page 524 TITLE 43—PUBLIC LANDS § 1653 (4) Upon order of the Secretary, the holder of a right-of-way or permit shall provide emer- gency subsistence and other aid to an affected Alaska Native, Native organization, or other person pending expeditious filing of, and deter- mination of, a claim under this subsection. (5) Where the State of Alaska is the holder of a right-of-way or permit under this chapter, the State shall not be subject to the provisions of this subsection, but the holder of the permit or right-of-way for the trans-Alaska pipeline shall be subject to this subsection with respect to fa- cilities constructed or activities conducted under rights-of-way or permits issued to the State to the extent that such holder engages in the construction, operation, maintenance, and termination of facilities, or in other activities under rights-of-way or permits issued to the State. (b) Control and removal of pollutants at expense of right-of-way holder If any area in the State of Alaska within or without the right-of-way or permit area granted under this chapter is polluted by any activities related to the Trans-Alaska Pipeline System, in- cluding operation of the terminal, conducted by or on behalf of the holder to whom such right- of-way or permit was granted, and such pollu- tion damages or threatens to damage aquatic life, wildlife, or public or private property, the control and total removal of the pollutant shall be at the expense of such holder, including any administrative and other costs incurred by the Secretary or any other Federal or State officer or agency. Upon failure of such holder to ade- quately control and remove such pollutant, the Secretary, in cooperation with other Federal, State, or local agencies, or in cooperation with such holder, or both, shall have the right to ac- complish the control and removal at the expense of such holder. (Pub. L. 93–153, title II, § 204, Nov. 16, 1973, 87 Stat. 586; Pub. L. 101–380, title VIII, §§ 8101, 8102(a)(1), (4), (b)–(e), Aug. 18, 1990, 104 Stat. 565–567.) Editorial Notes AMENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–380, § 8101(a), sub- stituted ‘‘caused solely by’’ for ‘‘caused by’’. Subsec. (a)(2). Pub. L. 101–380, § 8101(b), substituted ‘‘$350,000,000’’ for ‘‘$50,000,000’’ in two places. Subsec. (b). Pub. L. 101–380, § 8101(c), inserted ‘‘in the State of Alaska’’ after ‘‘any area’’, ‘‘related to the Trans-Alaska Pipeline System, including operation of the terminal,’’ after ‘‘any activities’’, and ‘‘or State’’ after ‘‘any other Federal’’. Subsec. (c). Pub. L. 101–380, § 8102(a)(1), struck out subsec. (c) which related to liability for discharges of oil loaded at terminal facilities and to establishment of Trans-Alaska Pipeline Liability Fund. Subsec. (c)(2). Pub. L. 101–380, § 8102(b), substituted ‘‘caused solely by’’ for ‘‘caused by’’. Subsec. (c)(3). Pub. L. 101–380, § 8102(d), inserted at end ‘‘The Fund shall expeditiously pay claims under this subsection, including such $14,000,000, if the owner or operator of a vessel has not paid any such claim within 90 days after such claim has been submitted to such owner or operator. Upon payment of any such claim, the Fund shall be subrogated under applicable State and Federal laws to all rights of any person entitled to recover under this subsection. In any action brought by the Fund against an owner or operator or an affiliate thereof to recover amounts under this paragraph, the Fund shall be entitled to recover prejudgment interest, costs, reasonable attorney’s fees, and, in the discretion of the court, penalties.’’ Subsec. (c)(4). Pub. L. 101–380, § 8102(e), designated ex- isting provisions as par. (A) and added pars. (B) and (C). Subsec. (c)(5). Pub. L. 101–380, § 8102(a)(4), inserted be- fore period at end of second sentence ‘‘, except that after August 18, 1990, the amount to be accumulated shall be $100,000,000 or the amount determined by the trustees and certified to the Congress by the Comp- troller General as necessary to pay claims arising from incidents occurring prior to August 18, 1990, and admin- istrative costs, whichever is less’’. Subsec. (c)(13), (14). Pub. L. 101–380, § 8102(c), added pars. (13) and (14). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–380 applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an Effective Date note under section 2701 of Title 33, Navigation and Navigable Waters. Pub. L. 101–380, title VIII, § 8102(a)(5)(A), Aug. 18, 1990, 104 Stat. 566, provided that: ‘‘The repeal by paragraph (1) [repealing subsec. (c) of this section] shall be effec- tive 60 days after the date on which the Comptroller General of the United States certifies to the Congress [certified July 5, 2000] that— ‘‘(i) all claims arising under section 204(c) of the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1653(c)) have been resolved, ‘‘(ii) all actions for the recovery of amounts subject to section 204(c) of the Trans-Alaska Pipeline Author- ization Act have been resolved, and ‘‘(iii) all administrative expenses reasonably nec- essary for and incidental to the implementation of section 204(c) of the Trans-Alaska Pipeline Authoriza- tion Act have been paid.’’ SAVINGS PROVISION Pub. L. 101–380, title VIII, § 8102(a)(3), Aug. 18, 1990, 104 Stat. 566, provided that: ‘‘The repeal made by para- graph (1) [repealing subsec. (c) of this section] shall have no effect on any right to recover or responsibility that arises from incidents subject to section 204(c) of the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1653(c)) occurring prior to the date of enactment of this Act [Aug. 18, 1990].’’ BULK FUEL STORAGE TANKS Pub. L. 105–277, div. A, § 101(g) [title III, § 329(a), (b)], Oct. 21, 1998, 112 Stat. 2681–439, 2681–470, as amended by Pub. L. 114–113, div. D, title IV, § 403, Dec. 18, 2015, 129 Stat. 2422, provided that: ‘‘(a) TRANSFER OF FUNDS.—Notwithstanding any other provision of law, the remainder of the balance in the Trans-Alaska Pipeline Liability Fund that is trans- ferred and deposited into the Oil Spill Liability Trust Fund under section 8102(a)(2)(B)(ii) of the Oil Pollution Act of 1990 (43 U.S.C. 1653 note) after June 16, 1998 shall be used in accordance with this section. ‘‘(b) USE OF INTEREST ONLY.—The interest produced from the investment of the Trans-Alaska Pipeline Li- ability Fund balance that is transferred and deposited into the Oil Spill Liability Trust Fund under section 8102(a)(2)(B)(ii) of the Oil Pollution Act of 1990 [Pub. L. 101–380] (43 U.S.C. 1653 note) after June 16, 1998 shall be transferred annually by the National Pollution Funds Center to the Denali Commission for a program, to be developed in consultation with the Coast Guard, to re- pair or replace bulk fuel storage tanks in Alaska which are not in compliance with federal law, including the Oil Pollution Act of 1990 [33 U.S.C. 2701 et seq.], or State law or for the construction and repair of barge mooring points and barge landing sites to facilitate Page 525 TITLE 43—PUBLIC LANDS § 1656 pumping fuel from fuel transport barges into bulk fuel storage tanks.. [sic]’’ [For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.] DISPOSITION OF FUND BALANCE Pub. L. 101–380, title VIII, § 8102(a)(2), Aug. 18, 1990, 104 Stat. 565, as amended by Pub. L. 105–277, div. A, § 101(g) [title III, § 329(c)], Oct. 21, 1998, 112 Stat. 2681–439, 2681–471, provided that: ‘‘(A) RESERVATION OF AMOUNTS.—The trustees of the Trans-Alaska Pipeline Liability Fund (hereafter in this subsection referred to as the ‘TAPS Fund’) shall re- serve the following amounts in the TAPS Fund— ‘‘(i) necessary to pay claims arising under section 204(c) of the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1653(c)); and ‘‘(ii) administrative expenses reasonably necessary for and incidental to the implementation of section 204(c) of that Act. ‘‘(B) DISPOSITION OF THE BALANCE.—After the Comp- troller General of the United States certifies that the requirements of subparagraph (A) have been met, the trustees of the TAPS Fund shall dispose of the balance in the TAPS Fund after the reservation of amounts are made under subparagraph (A) by— ‘‘(i) rebating the pro rata share of the balance to the State of Alaska for its contributions as an owner of oil, which, except as otherwise provided under arti- cle IX, section 15, of the Alaska Constitution, shall be used for the remediation of above-ground storage tanks; and then ‘‘(ii) transferring and depositing the remainder of the balance into the Oil Spill Liability Trust Fund established under section 9509 of the Internal Rev- enue Code of 1986 (26 U.S.C. 9509). ‘‘(C) DISPOSITION OF THE RESERVED AMOUNTS.—After payment of all claims arising from an incident for which funds are reserved under subparagraph (A) and certification by the Comptroller General of the United States that the claims arising from that incident have been paid, the excess amounts, if any, for that incident shall be disposed of as set forth under subparagraphs (A) and (B). ‘‘(D) AUTHORIZATION.—The amounts transferred and deposited in the Fund shall be available for the pur- poses of section 1012 of the Oil Pollution Act of 1990 [33 U.S.C. 2712] after funding sections 5001 [33 U.S.C. 2731] and 8103 [43 U.S.C. 1651 note] to the extent that funds have not otherwise been provided for the purposes of such sections.’’ LIABILITIES OF TRUSTEES OF TAPS FUND Pub. L. 101–380, title VIII, § 8102(a)(5)(B), Aug. 18, 1990, 104 Stat. 566, provided that: ‘‘Upon the effective date of the repeal pursuant to subparagraph (A) [see Effective Date of 1990 Amendment note above], the trustees of the TAPS Fund shall be relieved of all responsibilities under section 204(c) of the Trans-Alaska Pipeline Au- thorization Act [43 U.S.C. 1653(c)], but not any existing legal liability.’’ PRESERVATION OF RIGHTS AND REMEDIES OF CONTRIBUTORS TO TAPS FUND Pub. L. 101–380, title VIII, § 8102(a)(6), Aug. 18, 1990, 104 Stat. 566, provided that: ‘‘This subsection [amending this section and enacting provisions set out as notes above] is intended expressly to preserve any and all rights and remedies of contributors to the TAPS Fund under section 1491 of title 28, United States Code (com- monly referred to as the ‘Tucker Act’).’’ § 1654. Antitrust laws The grant of a right-of-way, permit, lease, or other authorization pursuant to this chapter shall grant no immunity from the operation of the Federal anti-trust laws. (Pub. L. 93–153, title II, § 205, Nov. 16, 1973, 87 Stat. 588.) § 1655. Roads and airports A right-of-way, permit, lease, or other author- ization granted under section 1652(b) of this title for a road or airstrip as a related facility of the trans-Alaska pipeline may provide for the con- struction of a public road or airstrip. (Pub. L. 93–153, title II, § 206, Nov. 16, 1973, 87 Stat. 588.) § 1656. Civil penalties (a) Penalty Except as provided in subsection (c)(4), the Secretary of the Interior may assess and collect a civil penalty under this section with respect to any discharge of oil— (1) in transit from fields or reservoirs sup- plying oil to the trans-Alaska pipeline; or (2) during transportation through the trans- Alaska pipeline or handling at the terminal fa- cilities, that causes damage to, or threatens to damage, natural resources or public or private property. (b) Persons liable In addition to the person causing or permit- ting the discharge, the owner or owners of the oil at the time the discharge occurs shall be jointly, severally, and strictly liable for the full amount of penalties assessed pursuant to this section, except that the United States and the several States, and political subdivisions there- of, shall not be liable under this section. (c) Amount (1) The amount of the civil penalty shall not exceed $1,000 per barrel of oil discharged. (2) In determining the amount of civil penalty under this section, the Secretary shall consider the seriousness of the damages from the dis- charge, the cause of the discharge, any history of prior violations of applicable rules and laws, and the degree of success of any efforts by the violator to minimize or mitigate the effects of such discharge. (3) The Secretary may reduce or waive the penalty imposed under this section if the dis- charge was solely caused by an act of war, act of God, or third party action beyond the control of the persons liable under this section. (4) No civil penalty assessed by the Secretary pursuant to this section shall be in addition to a penalty assessed pursuant to section 1321(b) of title 33. (d) Procedures A civil penalty may be assessed and collected under this section only after notice and oppor- tunity for a hearing on the record in accordance with section 554 of title 5. In any proceeding for the assessment of a civil penalty under this sec- tion, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the