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(ii) regardless of whether the motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
FED. R. APP. P. 4(a)(5). Defendants oppose the motion. Doc. 117. Although it is a close question, ultimately I conclude that the motion should be granted.
In Pioneer Investment Servs. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380 (1993), the Supreme Court examined the meaning of "excusable neglect" in the context of a bankruptcy proceeding. The Pioneer Court established a four-prong test to evaluate whether circumstances are properly characterized as demonstrating excusable neglect: "(1) danger of prejudice to the [non-moving party], (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. Id. at 395. The Tenth Circuit has determined that this analysis also should control in the context of motions for extension filed pursuant to FED. R. APP. P. 4(a)(5). See United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004).
Three of the four prongs clearly support granting the extension. The delay in this case is minimal — just a matter of days, and there is no allegation of bad faith on the part of Plaintiffs or their counsel. Moreover, Defendants have proffered nothing more than a bare bones assertion that an extension "would be unfair and result in prejudice to Defendants." Doc. 117 at 3. The focus of inquiry is therefore directed to the third prong — the reason for the delay. Indeed, "fault in the delay remains an important factor — perhaps the most important single factor — in determining whether the delay is excusable." City of Chanute, Kansas v. Williams Nat'l Gas Co., 31 F.3d 1041 (10th Cir. 1994).
Counsel's need to review the record, consult with the client, and where counsel deems it desirable to obtain an additional legal perspective, are typical prefatory steps common to the appeal process. These actions, which are totally within control of counsel, are expected to be completed within the thirty day period prescribed by FED. R. APP. P. 4(a)(1). It is laudable for an attorney to seek the advice of outside counsel in evaluating the merits of an appeal, but it is in no way extraordinary. Furthermore, in the absence of a ruling by the court, nothing presented counsel from filing a timely notice of appeal and later dismissing the appeal if counsel concluded it should not be pursued.
Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004). Thus, under Tenth Circuit precedent, this first circumstance offers Plaintiffs no relief.
there is a system in place whereby items are placed on the calendar at the law firm in which the undersigned practices. The undersigned has a secretary who is very professional and good at her job. During this period of time she was having to cover for two attorneys, instead of just one, due to staff leaving and the lag time associated with hiring new staff in a rural community like Lovington. However, irrespective of how the internal process failed, it is recognized that the undersigned is responsible for the proper calendaring of the date upon which notice of appeal should be filed.
Doc. 118 at 3. In essence, Defendants maintain that because the failure to calendar the June 6, 2005 due date was admittedly within the control of Plaintiffs' attorney, "[t]his inadvertence cannot be characterized as excusable neglect that would allow an extension of time. . . ." Doc. 117 at 2.
Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" . . . is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant.
Pioneer, 507 U.S. at 392 (emphasis added). By its own terms, neglect "encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness." Id. at 388.
Accordingly, the focus should be placed on whether the neglect is "excusable." The Supreme Court "conclude[d] that the determination is at the bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. From my review of Tenth Circuit precedent, it appears that when an omission results from ignorance of the law or incorrectly construing an unambiguous rule, the equities lie against granting an extension. See United States v. Torres, 372 F.3d 1159, 1161 n. 1, 1163-64 (10th Cir. 2004) ("defense counsel's misinterpretation of a readily accessible, unambiguous rule cannot be grounds for relief unless the word `excusable' is to be read out of the rule.").
Here, however, the neglect apparently arose from simple "inadvertence" due to a temporary staffing shortage at a critical time as to the filing of an appeal in this case. It should be noted that the omission did not result from a sloppy calendaring system, untrained staff or lack of oversight by the attorney. In fact, throughout this litigation, the Court has been impressed by the competency, diligence and professionalism of all counsel and their office staff.
See e.g. George v. City of Wichita, Kansas, 353 F. Supp.2d 1131 (D. Kan. 2005) (inadvertent mailing of order to client at former address found "excusable neglect"); Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc) (affirming grant of extension when "failure of a `carefully designed' calendaring system operated by experienced paralegals that heretofore had worked flawlessly").
Having performed the Pioneer balancing test to arrive at what I believe to be an equitable decision, I will exercise my discretion and grant an extension based upon excusable neglect for the late filing. I must emphasize that I do so based upon the limited and specific circumstances presented here: a single incident of inadvertence in an otherwise exemplary law office practice, an immediate response by Plaintiffs' counsel to remedy the situation once the omission was discovered, the failure of Defendants to identify any specific undue prejudice caused by granting an extension, and the minimal amount of delay to these proceedings.
IT IS HEREBY ORDERED that Plaintiffs' Motion to Extend Time to File Notice of Appeal (Doc. 116) is GRANTED. Plaintiff shall have ten (10) days from the entry of this order to file a notice of appeal.


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v. CLARK COUNTY SCHOOL. DISTRICT, et al.,. Defendant(s). 2:13-CV-362 JCM (PAL). UNITED STATES DISTRICT ... Plaintiff Juliano Rosario is formerly a student at Desert Oasis High School. His father is .... P. 8(a)(2); Bell. Atlantic Corp . v.
Jul 29, 2002 ... Maria DEL ROSARIO ORTEGA, et al. Plaintiffs v. STAR KIST FOODS, INC.; et al. .... See, e.g., Department of Recreation and Sports of Puerto Rico v. ..... be compensated with an amount in the smaller side of this bell curve.
Jul 5, 2013 ... Rosario was a student at Desert Oasis High School. ... Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v.
Jones v. Strategic Financial Solutions L.L.C., and Pioneer Law Firm, P.C., d/b/a The ... Dey and Abesamis, et al. v. ...... $4,000,000.00 –Julian Rosario, et al. v.
L-7076 April 28, 1955 - ROSARIO and UNTALAN v. CARANDANG ... Natividad Almeda Lopez, Et Al., 83 Phil., 617). .... Stanislaus County, 155 Cal., 21; Bell. v.
Disparities between LGB and heterosexual peers were found in all indicators. ... higher prevalence of substance abuse (Bontempo & D'Augelli, 2002; Rosario et al. ... 2015; Stuart-Cassel, Bell, & Springer, 2011), and the percentage of schools ..... school experiences of male versus female sexual minority youth may differ.

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In international law, a territory is considered “occupied” when it is actually placed under the authority of the hostile army.
The definition of occupation and the obligations of the occupying power were initially codified at the end of the nineteenth century. The definition still in force and commonly used nowadays is the one contained in the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 August 1907 (H.IV). Section III of the regulations details the rights and obligations of the military authority over enemy territory (Arts. 42–56). These are very old regulations that, according to the International Court of Justice, have acquired the status of international customary law (infra Jurisprudence). This definition takes into account the effective control of the territory by a hostile authority and seeks to regulate the responsibility of such an authority. International humanitarian law stipulates that the definition of occupation only extends to territories where such authority has been established and can be exercised (H.IV Art. 42).
Several recent decisions by international courts have also confirmed that the occupying power is obliged to comply with its human rights obligations in occupied territories and in respect of people placed under its effective control as a result of occupation or detention. These decisions thus confirm that the application of international humanitarian law is complementary to the conventions on human rights in these situations. The European Court of Human Rights (ECHR) has notably passed judgments on violations of the European Convention committed by European countries in relation to their intervention in Iraq and military occupation of the country (infra Jurisprudence).
According to humanitarian law, occupation falls in the definition of international armed conflict and is regulated as such by the four Geneva Conventions and Additional Protocol I. The occupying power faces specific obligations where it has an effective control over the territories occupied. These include obligations related to respect for human rights, law, and order, in addition to respect for relevant provisions of humanitarian law related to occupation. The basic obligations of the occupying power under IHL are to maintain law and order and public life in the occupied territory. For the most part, the occupying power must follow the laws that were already in force in that territory (H.IV Art. 43).
In situations where armed resistance is strong enough to prevent the occupying power from efficiently controlling the territory, general provisions of international humanitarian law applicable to international armed conflict continue to apply.
Sometimes, occupying forces do not succeed in establishing or exercising authority over a certain territory—for instance, because of hostile acts committed against them by combatants of the occupied territory. In such cases, humanitarian law does not consider these areas as occupied territories but instead as invaded territories. In other words, they are battlefields, and the rules that apply to them are the general rules of armed conflict.
The occupying power has the duty to ensure that the adequate provision of food and medical supplies is provided, as well as clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory, and objects necessary for religious worship (GCIV Arts. 55, 58; API Art. 69).
The occupying power must allow the protecting power, or the ICRC and other impartial humanitarian organizations, to verify the state of these supplies in occupied territories, and to visit protected persons so as to monitor their condition (GCIV Arts. 30, 55, and 143). It is also under the obligation to allow the ICRC or any other impartial humanitarian organization to undertake their own strictly humanitarian relief actions aimed at this population. All States must allow and facilitate rapid and unimpeded passage of all relief supplies and must not divert them, in any way whatsoever, from their destination. The only restrictions that parties to the conflict may impose are technical ones, or they may ask for guarantees that the relief is destined to the population in need and will not be used by the adverse power.
The fact that humanitarian organizations are delivering relief in no way relieves the occupying power of any of its own responsibilities to ensure that the population is properly supplied (GCIV Arts. 59–62 and 108–111; API Arts. 69–71).
The occupying power may only requisition food, medical supplies, clothing, bedding, means of shelter, and other supplies essential to the survival of the civilian population of the occupied territory, for use by its forces and administration, if the needs of the civilian population in the occupied territory are covered (GCIV Art. 55). These requisitions must not be of a kind to involve the inhabitants of occupied territories in an obligation to take part in the military operations of the occupying power (H.IV Art. 52).
The occupying power is entitled to requisition of civilian hospitals on strictly limited conditions. This can only be temporary, in case of urgent necessity for the care of wounded and sick, and only if suitable arrangements are made in due time to maintain the care and treatment of the other hospitals’ patients. It must also ensure that the needs of the civilian population are met and continue to be so (GCIV Arts. 56, 57; API Art. 14).
The occupying power must not transfer or deport the population of occupied territories or transfer parts of its own civilian population into the territory it occupies (GCIV Art. 49 and Rule 130 of the 2005 ICRC customary IHL study).
The occupying power must respect the personal status of children and must not hinder the proper working of all institutions devoted to their care and education. It may not enlist them in formations or organizations that are subordinate to it. It must also maintain any preferential measures that may have been adopted in favor of children and mothers (GCIV Art. 50).
The occupying power may not compel persons protected by the Geneva Conventions to serve in its armed forces. It may not compel them to undertake any work that would involve them in military operations, and any work they do must be carried out only in the occupied territory where they are. In no case shall requisition of labor lead to a mobilization of workers in an organization of a military or semi-military character (GCIV Art. 51).
Any destruction by the occupying power of real estate or personal property is prohibited, unless such destruction is rendered absolutely necessary by military operations (GCIV Art. 53). Seizure, destruction or willful damage to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments or works of art and science, is forbidden and should be the subject of legal proceedings (H.IV Art. 56).
Rules of customary international humanitarian law applicable to international armed conflicts provide that in an occupied territory, (a) movable public property that can be used for military operations may be confiscated, (b) immovable public property must be administered according to the rule of usufruct, and (c) private property must be respected and may not be confiscated except where destruction or seizure of such property is required by imperative military necessity (Rule 51 of customary IHL study; H.IV Arts. 53, 55, and 56).
Pillage is formally forbidden, and the occupying power is responsible for avoiding and punishing such acts committed by its own combatants and agents (H.IV Art. 47). The obligation on the occupying power to be vigilant and take action also extends to acts committed by third parties and autonomous armed groups operating in the occupied territory (infra Jurisprudence).
The justice system for civilians in occupied territories must respect certain judicial guarantees established by the Geneva Conventions (GCIV Arts. 47, 54, and 64–75). Additional details are given in the entry on ▸ Judicial guarantees (Section II) .
The courts of occupied territories continue to operate, and their impartiality must be respected.
The occupying power may not alter the status of public officials or judges, or in any way apply sanctions to or take measures of coercion or discrimination against them (GCIV Art. 54).
The criminal law of the occupied territory remains in force. The occupying power may, however, adopt penal provisions aimed at ensuring the administration of the territory and the security of the occupying power, its members, property, and administration (GCIV Art. 64). These penal provisions shall not come into force before they have been published, and their effect shall not be retroactive (GCIV Art. 65).
In case of a breach of the penal provisions enacted by virtue of Article 64, the occupying power may hand over an accused to its military courts, as long as its courts are “properly constituted,” “non-political,” and sit in the occupied territory (GCIV Art. 66).
Individuals must not be “arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war” (GCIV Art. 70).
The trial procedure must respect fundamental international judicial principles and guarantees, including those concerning the notification of the accused, the right to legal representation, and the right to appeal (GCIV Arts. 71–75).
The death penalty may not be pronounced against a protected person unless the person is guilty of espionage, serious acts of sabotage against the military installations of the occupying power, or intentional offenses that caused the death of one or more persons. Furthermore, the death penalty can only be applied if such offenses were punishable by death under the law of the occupied territory in force before the occupation began. In any case, the death penalty may not be pronounced against an individual who was under eighteen years of age at the time of the offense (GCIV Art. 68). A person sentenced to death shall always have the right to appeal such a ruling (GCIV Art. 75).
Humanitarian law acknowledges the specificity of occupation and grants, upon conditions, the prisoner-of-war guarantees of treatment to civilians and members of militia taking part in hostilities on these territories.
Inhabitants of a non-occupied territories who, on the approach of the enemy, spontaneously take up arm to resist the invading forces, without having had time to form themselves into regular armed units, are considered prisoners of war, provided that they carry arms openly and respect the law and customs of war (GCIII Art. 4.6).
conduct their operations in accordance with the laws and customs of war (GCIII Art. 4.2, API Art. 44).
A combatant who falls into the hands of an adverse party while failing to meet the requirements forfeits his right to be a prisoner of war, but is, nevertheless, entitled to protection equivalent in all respects to those accorded to prisoners of war by the Third Convention and by Additional Protocol I (API Art. 44.4).
A person who takes part in hostilities and falls into the power of an adverse party is presumed to be a prisoner of war and is therefore protected by the Third Geneva Convention. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he will continue to have such status until such time as his status has been determined by a competent tribunal (API Art. 45). Individuals who, having taken part in hostilities, are not accorded prisoner-of-war status and who are not covered by more favorable treatment according to Geneva Convention IV enjoy at all times the fundamental guarantees as set forth in Article 75 of Additional Protocol I. On occupied territory, and except where held for spying, detainees are further accorded the right to communicate with the International Committee of the Red Cross, as provided for under the Geneva Conventions.
The International Court of Justice (ICJ) has addressed the question of the definition of occupation and the obligations of the occupying power in two emblematic cases concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, ICJ Reports 2004, p. 136; hereafter referred to as “ The Wall ”) and the Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda , Judgment, ICJ Reports 2005, p. 168; hereinafter referred to as “ Democratic Republic of Congo v. Uganda ”).
The ICJ confirmed the customary nature of part of this law, which is therefore not subject to a formal ratification procedure by the occupying State: “As regards international humanitarian law, the Court would first note that Israel is not a party to the Fourth Hague Convention of 1907, to which the Hague regulations are annexed. . . . The Court considers that the provisions of the Hague Regulations have become part of customary law” ( The Wall , para. 89).
The ICJ confirmed the legal definition of occupation: “under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907, a territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised” ( Democratic Republic of Congo v. Uganda , para. 172; and The Wall , paras. 78, 89).
It stipulates that for the presence of foreign armed troops in a territory to be classed as an occupation, they would need to have established a form of authority over the territory concerned.
was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. ( Democratic Republic of Congo v. Uganda , para. 178).
The ICJ has also confirmed that extraterritorial application of human rights conventions is an obligation incumbent on the occupying power. “The protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights” ( The Wall , para. 106). “Both branches of international law, namely international human rights law and international humanitarian law would have to be taken into consideration. . . . International human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories” ( Democratic Republic of Congo v. Uganda , paras. 216–17).
The ICTY clarified the rules applicable to occupied territories in the Naletilic and Martinovic Case (Trial Chamber, Judgment, 31 March 2003, paras. 214–16). The ICTY Trial Chamber reiterated the wording of Article 42 of the 1907 Hague Regulations: “a territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The judgment stressed that military occupation imposes more onerous duties on an occupying power than on a party to an international armed conflict and that a further degree of control is required to establish occupation (paras. 214–16). The ICTY Trial Chamber also stressed that the occupying power must respect its obligations during such time as the occupation continues and on the overall territory that is occupied—whether occupied in totality or in part. Therefore, the Chamber found that it must determine on a case-by-case basis whether this degree of control was established at the relevant times and in the relevant places (para. 218).
In the Al-Skeini and Al Jedda cases, the ECHR detailed the extraterritorial obligations regarding compliance with the European Convention on Human Rights by the British armed forces involved in the international military intervention in Iraq, resulting from their status as an occupying force. These obligations concerned in particular detention and respect for the right to life: Al-Skeini et al. v. the United Kingdom , Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011; Al-Jedda v. the United Kingdom , Application no. 27021/08, Judgment (Grand Chamber), 7 July 2011.
In the Al-Skeini Case , the Court recognized two exceptions to the principle of territoriality in respect of the application of the European Convention on Human Rights. Following the overthrow of the Baas regime in Iraq, the Court held that the United Kingdom (with the United States) took over the exercise of all or part of the public powers normally exercised by a sovereign government in Iraq, up until the appointment of an interim government, and that as a result, the British government was under an obligation to comply with the European Convention on Human Rights in all its actions in Iraqi territory and with respect to the people placed under its control. The Court confirmed that a State that has signed up to the ECHR is obliged to apply the Convention outside its national territory, to the benefit of foreign nationals, whenever it is exercising control and authority over a foreign individual through its agents, and whenever it is exercising effective control over a territory other than its national territory as the result of a military action, regardless of the legitimacy of the action. The Court noted that the controlling State is responsible for guaranteeing all the rights contained in the ECHR and the Additional Protocols it has ratified, within the territory it is controlling. Ascertaining the degree to which control is effective is a matter of fact, which is determined by the Court, taking into account the power of the military presence of the State in the territory concerned and its ability to influence or subordinate the administrations or authorities present in the territory (paras. 131–40).
In the Al-Jedda Case , the ECHR confirmed the obligation incumbent on the British government regarding the extraterritorial application of the European Convention, in the context of its military activities in Iraq as an occupying power holding prisoners in the territory. It put forward an original interpretation of the complementary application of international humanitarian law and human rights. It held that the rules of the ECHR continue to apply in a conflict situation, as long as they do not directly contradict those of international humanitarian law. The Court thus believes that the more protective rules of the ECHR should prevail over other provisions relating to the law of armed conflict and the mandate of international forces derived from United Nations resolutions allowing occupying forces to detain individuals (paras. 105, 107, and 109).
For Additional Information: Benvenisti, Eyal. The International Law of Occupation . Princeton, NJ: Princeton University Press, 1993.
Campanelli, Danio. “The Law of Military Occupation Put to the Test of Human Rights Law.” International Review of the Red Cross 871 (September 2008): 653–68.
Cavanaugh, Kathleen. “Rewriting Law: The Case of Israel and the Occupied Territories.” In New Wars, New Laws? , edited by David Wippman and Matthew Evangelistaz, 227–58. Ardsley, NY: Transnational, 2004.
———. “Selective Justice: The Case of Israel and the Occupied Territories.” Fordham International Law Journal 26, no. 4 (2003): 934–60.
Ferraro, Tristan. “Determining the Beginning and End of an Occupation under International Humanitarian Law.” International Review of the Red Cross 885 (March 2012): 133–63.
ICRC. Basic Rules of the Geneva Conventions and Their Additional Protocols . Geneva: ICRC, 1988, 82–84.
International Court of Justice. Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory . 9 July 2004, esp. paras. 89ff. and 123ff. Available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm .
Kolb, Robert. “Occupation in Iraq since 2003 and the Powers of the UN Security Council.” International Review of the Red Cross 869 (March 2008): 29–50.
Koutroulis, Vaios. “The Application of International Humanitarian Law and International Human Rights Law in Situations of Prolonged Occupation: Only a Matter of Time?” International Review of the Red Cross 885 (March 2012): 165–205.
Kretzmer, David. “The Law of Belligerent Occupation in the Supreme Court of Israel.” International Review of the Red Cross 885 (March 2012): 207–36.
Lubell, Noam. “Human Rights Obligations in Military Occupation.” International Review of the Red Cross 885 (March 2012): 317–37.
Mulinen, Frederic de. Handbook on the Law of War for Armed Forces . Geneva: ICRC, 1989, 175–88.
Scheffer, David. “Beyond Occupation Law.” In Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide , edited by Morten Bergsmo, 842–60. Leiden: Martinus Nijhoff, 2003.
Vité, Sylvain. “The Interrelation of the Law of Occupation and Economic, Social and Cultural Rights: The Examples of Food, Health and Property.” International Review of the Red Cross 871 (September 2008): 629–51.
Walker, Phillip James. “Iraq and Occupation.” In New Wars, New Laws? , edited by David Wippman and Matthew Evangelista, 259–88. Ardsley, NY: Transnational, 2004.
Weill, Sharon. “The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories.” International Review of the Red Cross 866 (June 2007): 395–419.

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Application no. 55721
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Application no. 27021


*1 On January 13, 2007, Jamie Huff was injured when a dog owned by Theresa and Michael Dyer bit her. Huff sued the Dyers, claiming that they failed to warn her of their dog's dangerous propensities and that they committed negligence per se by violating OCGA § 51-2-7 and the Hall County Animal Control Ordinance. Following a jury trial, the jury found in favor of the Dyers. Huff appeals, claiming that the trial court erred in (i) granting the Dyers' motion for a directed verdict as to their dog's dangerous propensities and (ii) denying her motion for a directed verdict as to the Dyers' negligence per se. Finding no error, we affirm.
So viewed, the evidence as to Huff's negligence per se claim showed that the Dyers were eating breakfast at a restaurant in Hall County while their Labrador retriever was chained to the bed of their pickup truck, which was parked outside. The chains prevented the dog from placing his paws on top of either the bed rail or tailgate of the truck, but the edge of his snout could extend approximately three inches beyond the edge of the bed rail.
Huff was also preparing to eat breakfast at the same restaurant, and after speaking with her grandfather in the parking lot, Huff saw the Dyers' dog. Both the Dyers and Huff regularly ate at the restaurant, and Huff had seen the dog several times before. Although conflicting evidence was presented as to whether Huff had previously petted the dog, she admitted that, on this occasion, she took a few steps toward the dog, and spoke to it. Huff thought that the dog was going to lick her in the face, but instead it bit her, injuring her nose and forehead.
The Dyers asserted that Huff was walking with her grandfather's small dog, and that the small dog barked or snapped at their dog prior to the attack on Huff. Huff claimed, however, that she left her grandfather's dog in his car and approached the Dyers' dog alone. The Dyers also presented evidence that Huff attempted to pet their dog, and while Huff denied that she did so, she only stated that she was not “aware of” leaning down to allow the dog to lick her.
[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.
Huff asserts that she has satisfied the second sentence of OCGA § 51-2-7 by producing evidence that the Dyers' dog was in violation of a Hall County Animal Control Ordinance. We disagree. OCGA § 51-2-7 relieves a plaintiff from producing evidence of a dog's vicious propensity based on evidence of a violation of an ordinance that restricts dogs from running at large. FN4 Here, however, there is no evidence that the Dyers' dog was “running at large.” The Hall County Animal Control Ordinance permits dogs to be controlled by chains, and it is undisputed that the Dyers' dog was chained to the bed of their truck at the time of the attack. FN5 As a result, there is no evidence that the Dyers were in violation of any ordinance restricting dogs from running at large.
2. Huff also claims that the trial court erred in denying her motion for a directed verdict as to her allegation that the Dyers committed negligence per se by violating OCGA § 51-2-7 and the Hall County Animal Control Ordinance. Under Georgia law, the violation of a statute, ordinance, or mandatory regulation that imposes a legal duty may constitute negligence per se. FN8 As discussed in Division 1, supra, Huff presented no evidence to create a jury issue as to her claim that the Dyers were liable as owners of a vicious animal pursuant to OCGA § 51-2-7.
4. It is within the occupant enclosure of a vehicle or restrained if [sic] within the cargo area of a truck being driven or parked on the streets.
In construing statutes, including local ordinances, courts should follow the plain meaning of the statutory language. FN9 Here, the ordinance considers an unsupervised dog to be sufficiently restrained when it is prevented from running at large by a leash or the occupant enclosure of a vehicle, by a physical barrier when it is on the owner's real property, and by any type of restraint when the dog is within the cargo area of a truck. The ordinance does not protect people who approach restrained animals, regardless of whether the animal is at heel, on a leash, or restrained in the bed of a truck. Huff admitted that she approached the Dyers' dog, and it was undisputed that the chains prevented the dog from escaping from the truck's cargo area. As a result, we find that the Dyers' dog was “under restraint” pursuant to the Hall County Animal Control Ordinance as a matter of law. FN10 The evidence was therefore more than sufficient to support the jury's conclusion that the Dyers' dog was “under restraint” as required by the ordinance, and the trial court did not err in denying Huff's motion for a directed verdict.
PHIPPS and BERNES, JJ., concur.
FN2. Hilb, Rogal & Hamilton Co. of Atlanta v. Holley, 295 Ga.App. 54, 57(2), 670 S.E.2d 874 (2008).
FN3. Id. at 56(1), 670 S.E.2d 874.
FN4. Johnston v. Warendh, 252 Ga.App. 674, 676(1), 556 S.E.2d 867 (2001).
FN6. Durham v. Mooney, 234 Ga.App. 772, 773(1), 507 S.E.2d 877 (1998).
FN7. See generally Thompson v. City of Atlanta, 274 Ga.App. 1, 4(1), 616 S.E.2d 219 (2005) (knowledge may not be inferred based on evidence that is uncertain, speculative, or merely raises a conjecture or possibility); compare Raith v. Blanchard, 271 Ga.App. 723, 725(1), 611 S.E.2d 75 (2005) (genuine issue of material fact existed as to dog owner's knowledge of vicious propensity where owner's statement that dog “could bite somebody” was made after dog previously “nicked” someone's hand with its teeth after trying to bite them in the face); Supan v. Griffin, 238 Ga.App. 404, 406, 519 S.E.2d 22 (1999) (genuine issue of material fact existed as to dog owner's knowledge of vicious propensity where owner's statement that neighbor should “do whatever was necessary ... to keep ... dogs from attacking” came after dogs had been involved in an attack).
FN8. Hubbard v. Dept. of Transp., 256 Ga.App. 342, 350(3), 568 S.E.2d 559 (2002).
FN9. See Columbus v. Schmidt, 269 Ga. 723-724, 507 S.E.2d 435 (1998).


text:
Under the Outer Continental Shelf Lands Act of 1953 (Act), the Secretary of the Interior (Secretary) is authorized to lease tracts of the Outer Continental Shelf (OCS) for the exploration for, and development of, mineral resources, including oil and gas. As originally passed, the Act authorized the Secretary, in his discretion, to solicit bids either by fixing a royalty rate of not less than 12 1/2%, and requiring bids on an initial "cash bonus" to be paid when the lease was awarded, or by fixing the amount of the cash bonus, and requiring bids on the royalty rate. In practice, virtually all tracts were leased on the basis of a fixed royalty, with bidding on the amount of the cash bonus. However, the Outer Continental Shelf Lands Act Amendments of 1978 (1978 Amendments) increased the number of authorized bidding systems to 10, retaining the original system and authorizing new systems, some of which also involve cash bonus bidding, while others use a factor other than the cash bonus as the bidding variable. The 1978 Amendments direct the Secretary to develop a 5-year plan of experimentation with the new systems, requiring him to experiment with the bidding systems other than the traditional cash bonus, fixed royalty system in not less than 20% but not more than 60% of the total area offered for leasing each year, unless he determines that those percentage requirements are inconsistent with the 1978 Amendments' purposes. The 1978 Amendments assure ongoing congressional oversight of the Secretary's leasing activities by requiring frequent reports to Congress. To date, the Secretary has used two of the nontraditional bidding systems in leases covering 49% of the total area offered. However, he has not experimented with any of the systems using a factor other than the size of a cash bonus as the bidding variable. Respondents, including the State of California, brought suit for declaratory and injunctive relief, alleging, inter alia, that the Secretary has abused his discretion by failing to experiment with systems that do not use the size of a cash bonus as the bidding variable. The District Court denied both parties' motions for summary judgment, but the Court of Appeals held, inter alia, that the 1978 Amendments require the Secretary to experiment [454 U.S. 151, 152] with at least some of the bidding systems that do not use the size of a cash bonus as the bidding variable.
1. California has standing to challenge the Secretary's choice of bidding systems. Because the 1978 Amendments require the Federal Government to turn over a fair share of the revenues of an OCS lease to the neighboring coastal State whenever the Federal Government and the State own adjoining portions of an OCS oil and gas pool, California has a direct financial stake in federal OCS leasing off the California coast. In alleging that the bidding systems currently used by the Secretary are incapable of producing a fair market return, California asserts the kind of "distinct and palpable injury" that is required for standing. And California also satisfies the requirement that there be a "fairly traceable" causal connection between the injury it claims and the conduct it challenges, so that if the relief sought is granted, the injury will be redressed. Pp. 160-162.
2. The Court of Appeals erred in compelling the Secretary to experiment with non-cash-bonus bidding systems. Pp. 162-169.
(a) Nothing in the 1978 Amendments suggests that Congress, in committing the Government to the goal of obtaining fair market value for OCS oil and gas resources, intended to channel the Secretary's discretion in choosing among the alternative bidding systems, and nothing in the statute singles out the non-cash-bonus systems for special consideration. The language of the 1978 Amendments requires experimentation with at least some of the new bidding systems, but leaves the details to the Secretary's discretion. Pp. 162-165.
(b) Nor does the legislative history of the 1978 Amendments compel the conclusion that the Congress as a whole intended to limit the Secretary's discretion to choose among the various experimental bidding systems. When viewed in context, unfavorable references to "cash bonus" bidding show congressional dissatisfaction with large front-end payments associated with the traditional cash bonus bid, fixed royalty system then in effect, not with all forms of cash bonus bidding. Pp. 165-168.
210 U.S. App. D.C. 20, 654 F.2d 735, reversed.
Deputy Solicitor General Claiborne argued the cause for petitioners. With him on the briefs were Solicitor General Lee, former Solicitor General McCree, Assistant Attorney [454 U.S. 151, 153] General Dinkins, Harriet S. Shaprio, Anne S. Almy, Edward J. Schawaker, and Bruce C. Rashkow.
[ Footnote * ] E. Edward Bruce filed a brief for Atlantic Richfield Co. et al. as amici curiae urging reversal.
We are asked to review a decision of the United States Court of Appeals for the District of Columbia Circuit compelling the Secretary of the Interior to experiment with the use of certain statutorily defined bidding systems in awarding leases for oil and gas exploration and development on the Outer Continental Shelf. Because the decision below incorrectly construes the Outer Continental Shelf Lands Act Amendments of 1978, 92 Stat. 629, 43 U.S.C. 1331 et seq. (1976 ed. and Supp. III), we reverse.
The Outer Continental Shelf Lands Act of 1953 (OCS Lands Act), 67 Stat. 462, as amended, 92 Stat. 629, 43 U.S.C. 1331 et seq. (1976 ed. and Supp. III), authorizes the Secretary of the Interior to lease tracts of the Outer Continental Shelf (OCS) 1 for the exploration and development of mineral resources, including oil and gas. As originally passed, the OCS Lands Act authorized the Secretary to solicit sealed bids either by fixing a royalty rate of not less than 12 1/2%, and requiring bids on the amount of an initial "cash bonus" to be paid at the time the lease was awarded, or by [454 U.S. 151, 154] fixing the amount of the cash bonus, and requiring bids on the royalty rate. 43 U.S.C. 1337(a). The OCS Lands Act vested complete discretion in the Secretary to choose between these two bidding systems. In practice, prior to 1978 virtually all tracts were leased on the basis of a fixed royalty of 16 2/3% of the gross value of production, with bidding on the amount of the cash bonus. See H. R. Rep. No. 95-590, p. 138 (1977); S. Rep. No. 95-284, p. 72 (1977).
During the mid-1970's, the Nation's increasing dependence on imported oil focused public attention on the OCS as a potential source of domestic petroleum and natural gas. See H. R. Rep. No. 95-590, supra, at 53-54. At the same time, the traditional OCS bidding procedures came under close scrutiny because dramatic increases in petroleum prices made existing cash bonuses seem miserly relative to the revenues generated from wells on OCS leaseholds. Members of Congress began to express reservations about the ability of the traditional cash bonus, fixed royalty system to assure a fair return to the Government, principally because it appeared that only the major oil companies could risk paying a large cash bonus to lease a tract of unknown value. Because the number of bidders was often limited to a handful of giant concerns, competition for the leases seemed tepid, and there was no assurance that the ultimate return to the Government was adequate. See, e. g., id., at 47, 54.
The 1978 Amendments assure ongoing congressional oversight of the Secretary of the Interior's leasing activities by requiring frequent reports to Congress on the operation of the bidding systems. For example, the Secretary of Energy, who has responsibility for issuing regulations governing OCS bidding, 8 must report within six months of the end of each fiscal year "with respect to the use of [the] various bidding options," including, "if applicable, the reasons why a particular bidding system has not been or will not be utilized." 1337(a)(9). In addition, the Secretary of the Interior must submit each fiscal year a report that includes "an evaluation of the competitive bidding systems permitted under [the 1978 Amendments], and, if applicable, the reasons why a particular bidding system has not been utilized," as well as "an evaluation of alternative bidding systems not permitted [454 U.S. 151, 157] under [the 1978 Amendments], and why such system or systems should or should not be utilized." 1343(2)(A) and (B).
Three days after they filed suit and four days before a planned lease sale, the respondents filed a motion for a preliminary injunction barring all further lease sales until regulations had been promulgated for each of the bidding options contained in the 1978 Amendments. The District Court denied the motion because the respondents had not shown a likelihood of prevailing on the merits, and because the pace at which the Secretary of Energy was issuing regulations was not unlawfully slow in light of the complexity involved in preparing such regulations. 10 The Court of Appeals affirmed the District Court's ruling and remanded the case for further proceedings. Energy Action Educational Foundation v. Andrus, 203 U.S. App. D.C. 169, 631 F.2d 751 (1979).
On remand, both parties moved for summary judgment, and the respondents renewed their motion for a preliminary injunction barring future lease sales until additional bidding system regulations had been issued. The District Court denied all motions for summary judgment as well as the respondents' motions for a preliminary injunction, 516 F. Supp. 90 (DC 1980), and the respondents once more appealed.
This time, the Court of Appeals affirmed the District Court only to the extent that it refused to enjoin lease sales scheduled for September, October, and November 1980. Turning to the underlying dispute, the court concluded both that the 1978 Amendments require the Secretary of the Interior to experiment with at least some of the bidding systems that do not use the size of a cash bonus as the bidding variable, and that the Secretary of Energy must issue appropriate regulations for the alternative bidding systems. 11 Energy Action [454 U.S. 151, 160] Educational Foundation v. Andrus, 210 U.S. App. D.C. 20, 654 F.2d 735 (1980).
We granted the Government's petition for certiorari to review this construction of the 1978 Amendments. 450 U.S. 1040 .
Before examining the merits, we must consider the petitioners' contention that the respondents do not have standing to challenge the Secretary of the Interior's choice of bidding systems.
There are three groups of plaintiffs in this litigation: (1) the State of California, which claims standing as an involuntary "partner" with the Federal Government in the leasing of OCS tracts in which the underlying pool of gas and oil lies under both the OCS and the 3-mile coastal belt controlled by California; (2) California and the city of Long Beach, which compete with the Federal Government in the leasing of off-shore oil and gas properties; and (3) consumers of oil and gas and of oil- and gas-derived products. 12 Because we find California has standing, we do not consider the standing of the other plaintiffs. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 , and n. 9 (1977); Buckley v. Valeo, 424 U.S. 1, 12 (1976) (per curiam).
The 1978 Amendments require the Federal Government to turn over a fair share of the revenues of an OCS lease to the neighboring coastal State whenever the Federal Government and the State own adjoining portions of an OCS oil and gas [454 U.S. 151, 161] pool. See 43 U.S.C. 1337(g)(4) (1976 ed., Supp. III). California thus has a direct financial stake in federal OCS leasing off the California coast. In alleging that the bidding systems currently used by the Secretary of the Interior are incapable of producing a fair market return, California clearly asserts the kind of "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501 (1975), that is required for standing.
To demonstrate that it has standing, however, California must also show that there is a "fairly traceable" causal connection between the injury it claims and the conduct it challenges, Arlington Heights v. Metropolitan Housing Development Corp., supra, at 261, so that if the relief sought is granted, the injury will be redressed, Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41 -46 (1976). The petitioners argue that the relief California seeks - experimental use on some OCS lease tracts of non-cash-bonus bidding systems - will not ensure that the Secretary will try these systems on parcels leased off the California coast. According to the petitioners, even if California were to win its suit, cash bonus systems might nevertheless still be used to lease tracts overlying California's pools. The petitioners assert that California therefore lacks standing because it has failed to show that the relief requested would cause the Secretary of the Interior to use non-cash-bonus bidding systems on California's parcels.
The essence of California's complaint, however, is that the Secretary of the Interior, by failing to test non-cash-bonus systems, has breached a statutory obligation to determine through experiment which bidding system works best. According to California, only by testing non-cash-bonus systems can the Secretary of the Interior carry out his duty to use the best bidding systems and thereby assure California a fair return for its resources. The petitioners' argument, California contends, improperly assumes that the Secretary of the Interior would perversely refuse to adopt a non-cash-bonus bidding [454 U.S. 151, 162] system proved by experiment to be superior to the cash bonus alternatives.
We share California's confidence that, after experimentation, the Secretary would use the most successful bidding system on all suitable OCS lease tracts, including those off the California coast. For this reason, we agree with California that it has standing to challenge the Secretary of the Interior's refusal to experiment with non-cash-bonus bidding systems. Therefore, we proceed to the merits.
In passing the 1978 Amendments, Congress committed the Government to the goal of obtaining fair market value for OCS oil and gas resources. The 1978 Amendments themselves proclaim this intention, 13 and the legislative history is replete with references to this purpose. 14 The respondents urge that non-cash-bonus bidding systems are more likely to achieve the statutory objectives than the cash bonus systems used to date, so that the Secretary of the Interior's continued reliance on cash bonus bidding violates the statutory scheme.
We begin, as always in a case in which the meaning of a statute is at issue, by examining Congress' language. If Congress meant to restrain the Secretary of the Interior's discretion in experimenting with the various alternative bidding systems, we can expect the statute to reflect that intent. But it does not.
Despite the various reservations concerning the traditional cash bonus bidding system recorded in the legislative history [454 U.S. 151, 163] of the 1978 Amendments, Congress not only failed to repudiate the traditional cash bonus, fixed royalty system specified in 1337(a)(1)(A), but affirmatively directed that the Secretary of the Interior use that system in the bidding for tracts covering at least 40% of the total area leased in each year of the 5-year plan. 1337(a)(5)(B). The only express limitation Congress put on the use of the traditional system was that it not be used on more than 80% of the total area offered each year. Ibid. In short, Congress can hardly be said to have rejected even the traditional cash bonus system. Moreover, among the experimental bidding alternatives listed in the 1978 Amendments, Congress expressly specified cash bonus as the bid variable in three systems. 15 Most significantly, Congress left to "the discretion of the Secretary," 1337(a)(1), the choice among the various nontraditional alternatives, evidently leaving to his expert administrative determination the complex, technical problem of deciding which alternative bidding systems are more likely to further the statute's objectives. In addition, Congress granted the Secretary further discretion to abandon the statutory requirements for the percentage use of the nontraditional alternatives, should he determine that those requirements are inconsistent with the statutory purposes and policies. 1337(a)(5)(B).
The respondents argue that the Secretary's discretion is limited by 1344(a)(4), which directs that "[l]easing activities shall be conducted to assure receipt of fair market value for the lands leased and the rights conveyed by the Federal Government." According to the respondents, the Secretary is violating 1344(a)(4) by refusing to try non-cash-bonus bidding, [454 U.S. 151, 164] because cash bonus bidding allegedly does not assure that fair market value is received for the Government's resources.
Section 1344(a)(4) cannot support the weight the respondents attach to it. Section 1344 directs the Secretary of the Interior to "prepare and periodically revise, and maintain an oil and gas leasing program" consistent with the "principles" enumerated in 1344(a)(1)-(4). The receipt of fair market value, the fourth listed principle, is only one of many general considerations commended to the Secretary's attention. 16 The section directs that the Secretary's entire leasing program be consistent with the principles enumerated. Yet elsewhere the statute requires the Secretary's program to use the traditional cash bonus, fixed royalty system on as [454 U.S. 151, 165] much as 80%, and on no less than 40%, of the acreage leased. 1337(a)(5)(B). So Congress cannot have considered the traditional cash bonus system incapable of providing a fair market return, for that is the one system Congress required the Secretary to use. We therefore conclude that 1344 (a)(4) cannot fairly be read to constrain indirectly the Secretary's discretion in choosing to use the alternative cash bonus bidding systems.
The only express statutory check on the Secretary of the Interior's discretion is the requirement that he periodically report to the Congress his reasons for failing to use any of the alternative bidding systems. 17 The statute thus recognizes that, in appropriate circumstances, some of the alternative bidding systems may not be used. Plainly, Congress considered close congressional scrutiny to be sufficient restraint on the Secretary's discretion to choose among the statutory options.
In short, nothing in the statute suggests that Congress intended to channel the Secretary of the Interior's discretion in choosing among the alternative bidding systems, and nothing in the statute singles out the non-cash-bonus systems for special consideration. Therefore, we conclude that the language of the 1978 Amendments requires experimentation with at least some of the new bidding systems, but leaves the details to the Secretary's discretion.
According to the respondents, however, the legislative history of the 1978 Amendments mandates constraints on the Secretary of the Interior's discretion not expressly stated in [454 U.S. 151, 166] the statute. In particular, the respondents cite the repeated, unfavorable references to "cash bonus" bidding found throughout the legislative history to support their contention that Congress intended to direct the Secretary of the Interior to experiment with bidding systems in which the bidding variable is not the size of a cash bonus.
What clearly emerges from the legislative history, however, is not congressional dissatisfaction with all forms of cash bonus bidding, but rather with large front-end payments. Plainly, Congress intended to encourage more competitive bidding by requiring experimentation with bidding alternatives, regardless of the bid variable involved, that would reduce the size of the front-end payments associated with the traditional cash bonus bid, fixed royalty system. 18 [454 U.S. 151, 167] Such a reduction of the front-end payments can be achieved, however, with any bidding system that increases the amount of the payments made throughout the life of a lease, since a bidder will be willing to pay less "up front" if he expects to pay more "downstream." This inverse relationship between the size of up-front and downstream payments holds true, of course, regardless of which factor is used as a bidding variable. Congress plainly understood this relationship, because it expressly included three new cash bonus bid systems among the experimental alternatives intended to reduce large front-end payments.
In sum, we are unable to find anything, either in the legislative history or in the 1978 Amendments themselves, that compels the conclusion that the Congress as a whole intended to limit the Secretary of the Interior's discretion to choose among the various experimental bidding systems. It is not for us, or for the Court of Appeals, to decide whether the [454 U.S. 151, 169] Secretary of the Interior is well advised to forgo experimentation with the non-cash-bonus alternatives. That question is for Congress alone to answer in the exercise of its oversight powers.
For these reasons, the judgment of the Court of Appeals compelling the use of non-cash-bonus bidding systems is hereby reversed.
[ Footnote 1 ] The Outer Continental Shelf is defined by statute to mean "all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control." 43 U.S.C. 1331(a). The term "lands beneath navigable waters" is itself given an extensive definition in 43 U.S.C. 1301, but generally means the undersea lands within three miles of the coastline.
[ Footnote 2 ] The "basic purpose" of the 1978 Amendments was to "promote the swift, orderly and efficient exploitation of our almost untapped domestic oil and gas resources in the Outer Continental Shelf," H. R. Rep. No. 95-590, p. 53 (1977), and the Amendments were broadly designed to achieve that aim. We are concerned here, however, only with those provisions of the 1978 Amendments having to do with bidding systems for OCS leases.
[ Footnote 3 ] Title 43 U.S.C. 1337(a)(1) (1976 ed., Supp. III) authorizes: (1) a "cash bonus bid with a royalty at not less than 12 1/2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold," 1337(a)(1)(A); (2) a "cash bonus bid . . . and a diminishing or sliding royalty based on such formulae as the Secretary shall determine as equitable to encourage continued production from the lease area as resources diminish, but not less than 12 1/2 per centum at the beginning of the lease period in amount or value of the production saved, removed, or sold," 1337(a) (1)(C); (3) a "cash bonus bid with a fixed share of the net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area," 1337(a)(1)(D); and (4) a "cash bonus bid with a royalty at no less than 12 1/2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold and a fixed per centum share of net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area," 1337(a)(1)(F).
[ Footnote 4 ] Section 1337(a)(1)(B) authorizes: a "variable royalty bid based on a per centum in amount or value of the production saved, removed, or sold, with either 1. a fixed work commitment based on dollar amount for exploration or 2. a fixed cash bonus as determined by the Secretary, or 3. both."
[ Footnote 5 ] Section 1337(a)(1)(E) authorizes a "fixed cash bonus with the net profit share reserved as the bid variable."
[ Footnote 6 ] Section 1337(a)(1) authorizes: (1) a "work commitment bid based on a dollar amount for exploration with a fixed cash bonus, and a diminishing or sliding scale royalty based on such formulae as the Secretary shall determine as equitable to encourage continued production from the lease area as resources diminish, but not less than 12 1/2 per centum at the beginning of the lease period in amount or value of the production saved, removed, or sold," 1337(a)(1)(C); and (2) a "work commitment bid based on a dollar amount for exploration with a fixed cash bonus and a fixed royalty in amount or value of the production saved, removed, or sold," 1337(a) (1)(G).
[ Footnote 7 ] Section 1337(a)(9)(E) requires that his determination be explained to Congress.
[ Footnote 8 ] Under the 1978 Amendments, the Secretaries of the Interior and of Energy work together on the OCS leasing program. Competitive bidding for OCS leases is to be carried out pursuant to "regulations promulgated in advance," 1337(a)(1), and the Department of Energy Organization Act, 42 U.S.C. 7152(b), 7153 (1976 ed., Supp. III), gives the Secretary of Energy the responsibility for issuing such regulations in consultation with the Secretary of the Interior. The Secretary of Energy also has authority to develop bidding systems other than the 10 specifically enumerated in 1337(a)(1), provided any new system has no more than one bidding variable and is not disapproved by Congress. 1337(a)(1)(H), (a)(4)(A).
As reported to Congress, the bidding systems used during fiscal years 1978 through 1980 were as follows. In fiscal year 1978, three lease sales were held, with 218 tracts leased. Of those, 30 tracts were leased under the fixed cash bonus, royalty bid system, 41 under the cash bonus bid, sliding-scale royalty system, and the remainder under the traditional cash bonus bid, fixed 16 2/3% royalty system. Department of the Interior, OCS Oil and Gas Leasing: An Annual Report on the Leasing and Production Program, Fiscal Year 1978. In fiscal year 1979, five lease sales were held, with 290 tracts leased. Of those, 161 were leased under the traditional cash bonus bid, 16 2/3% royalty system, and 129 under the cash bonus bid, sliding-scale royalty system. Department of the Interior, OCS Oil and Gas Leasing: An Annual Report on the Leasing and Production Program, Fiscal Year 1979. In fiscal year 1980, four lease sales were held, with 293 tracts leased. Of those, 136 tracts were leased under the traditional cash bonus bid, 16 2/3% royalty system, 120 under the cash bonus bid, sliding-scale royalty system, 23 under the cash bonus bid, fixed net profit-share system, and 14 under a cash bonus bid, fixed 33 1/3% royalty system. Department of the Interior, Outer Continental Shelf Oil and Gas Leasing and Production Program, Annual Report, Fiscal Year 1980.
[ Footnote 10 ] 479 F. Supp. 62 (DC 1979).
[ Footnote 11 ] On remand to the District Court, the parties stipulated to the entry of an order requiring the Department of Energy to issue final regulations for the net profit-share bid, fixed cash bonus system and the work-commitment bid, fixed cash bonus and fixed royalty system. Brief for Petitioners 9; Brief for Respondents 5, n. 1; see also 46 Fed. Reg. 35614, 35615 (1981) (to be codified in 10 CFR 376, 390). Thus, no question is now presented [454 U.S. 151, 160] concerning the Secretary of Energy's duty to issue these regulations. The Court of Appeals and the respondents based their conclusion that the Secretary of Energy must issue regulations for the alternative systems on the theory that the Secretary of the Interior must use them, the issue under consideration here.
[ Footnote 12 ] In their initial complaint, the individual respondents also claimed standing as taxpayers, but have not pressed that claim here. The 1978 Amendments contain a provision which permits suit by those having "a valid legal interest." 1349(a)(1).
[ Footnote 13 ] Section 1344(a)(4) states that "[l]easing activities shall be conducted to assure receipt of fair market value for the lands leased and the rights conveyed by the Federal Government."
[ Footnote 14 ] See, e. g., H. R. Rep. No. 95-590, pp. 47, 54 (1977); S. Rep. No. 95-284, pp. 46, 73 (1977).
[ Footnote 15 ] Those three are the cash bonus bid, diminishing or sliding-scale royalty system, 1337(a)(1)(C), the cash bonus bid, fixed net profit-share system, 1337(a)(1)(D), and the cash bonus bid, fixed royalty and fixed net profit-share system, 1337(a)(1)(F).
"The conferees intend that in utilizing the new bidding alternatives, a variety of considerations should be taken into account, including but not limited to: (i) Providing a fair return to the Federal Government; (ii) increasing competition; (iii) assuring competent and safe operations; (iv) avoiding undue speculation; (v) avoiding unnecessary delays in exploration, development, and production; (vi) discovering and recovering oil and gas; (vii) developing new oil and gas resources in an efficient and timely manner; and (viii) limiting administrative burdens on government and industry." H. R. Conf. Rep. No. 95-1474, p. 92 (1978).
"One purpose of [the 1978 Amendments] is to authorize alternative leasing arrangements and require experimentation with them. It will enable the Secretary of the Interior, who administers the federal leasing program, to strike a proper balance between securing a fair return to the Federal Government for the lease of its lands, increasing competition in exploitation of resources, and providing the incentive of a fair profit to the oil companies, which must risk their investment capital." H. R. Rep. No. 95-590, p. 54 (1977).
[ Footnote 17 ] Section 1337(a)(9)(D) requires the Secretary of Energy, in consultation with the Secretary of the Interior, to report to Congress "why a particular bidding system has not been or will not be utilized." Section 1343(2)(A) requires the Secretary of the Interior to report to Congress "the reasons why a particular bidding system has not been utilized."
"S. 9 authorizes a wide variety of new bidding systems. These are designed to reduce the front end cash bonus, increase the government's return on actual production of oil or gas, make it easier for smaller companies to enter the OCS development business, and increase the availability of funds for exploration.
"In order to assure that these alternatives will be used, the bill limits the Secretary's authority to use the cash bonus-fixed royalty system which has been the historical method of OCS bidding . . . .
"The basic thrust of all these new options is to reduce the reliance on large front-end cash bonuses as the means of obtaining a fair price for the public's property. The committee wants to authorize lease allocation systems that would encourage the widest possible participation in competitive lease sales consistent with receipt by the public of fair market value for its resources. The committee believes that net profits share and other arrangements can be effective in shifting Government revenue away from initial bonuses and into deferred payments made out of a leaseholder's profits based on actual production of oil or gas."
"At present, the cash bonus system is used almost exclusively. Under [454 U.S. 151, 167] that system, in order to win a lease, a company must have vast amounts of capital, and the price to the company is set without full knowledge of the value of the oil and gas in the area. This may reduce competition for off-shore leases to the major oil companies and reduce the public return for resources. To increase competition for off-shore leases and secure higher returns to the public Treasury, section 8 of the Outer Continental Shelf Lands Act has been amended to allow the Secretary to use other bidding methods based on net profits; royalty; or work commitments stated in dollar amounts.
"Witnesses before the committee indicated that the high front-end bonus bids may have created a barrier to the entry of small and medium-sized oil firms as well as other potential exploiters, to the OCS activity, and that these types of bids do not, after the completion of exploitation of a lease area, provide a fair return to the Government.
"[T]he 1977 amendments authorizes [sic] new bidding options. The basic thrust of all these new options is to reduce the reliance on large front-end cash bonuses as the means of obtaining a fair price for the public's property. . . .
"In order to assure that these new bidding alternatives are used, the 1977 amendments limit the Secretary's authority to use the cash bonus - fixed royalty system, which has been the historical method of OCS bidding."

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