Thursday, September 6, 2012

Impact Energy Resources, LLC v. Salazar

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 11-4043 & 11-4057. Appealed from the United States District Court for the District of Utah. Appellants in this case are companies that submitted high bids on certain oil and gas leases at a Bureau of Land Management (BLM) auction (collectively, the Energy Companies). After the auction but before the leases were issued, newly appointed Secretary of the Interior Ken Salazar decided not to lease the parcels at issue. Salazar announced his decision at a February 4, 2009, press conference and memorialized his determination in a February 6 memorandum to the BLM's Utah State Director. On February 12, 2009, a subordinate BLM official mailed letters to the high bidders indicating that the leases would not be issued.
    Exactly ninety days later (following February 12), the Energy Companies filed suit challenging the Secretary's authority to withdraw the leases. The district court dismissed their suit as time-barred under the Mineral Leasing Act (MLA), which provides that "[n]o action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced or taken within ninety days after the final decision of the Secretary relating to such matter." 30 U.S.C. § 226-2.
    The Appeals Court explains that, "A majority of the panel agrees with the district court that the Secretary's final decision in this matter occurred no later than February 6, and thus, the suit is time-barred. As explained in their separate concurrences, however, the panel majority would employ somewhat differing analyses in reaching this result. Judge Lucero would hold that under the plain text of the MLA, the Secretary's decision was final on February 6 regardless of whether plaintiffs' claims under the Administrative Procedure Act (APA) had accrued at that time. Judge Seymour would hold that the word "final" bears the same meaning in the phrase 'final decision of the Secretary,' 30 U.S.C. § 226-2, as it does in the phrase 'final agency action' under the APA, 5 U.S.C. § 704, and that final agency action occurred no later than February 6. Judge Tymkovich agrees with Judge Seymour's conclusion that final agency action is necessary, but disagrees with the majority's conclusion that the suit is time-barred as explained in his dissent.
    "The panel majority also agrees with the district court that the Energy Companies are not entitled to equitable tolling in this matter. The BLM notified the high bidders just six days after the Secretary made his decision. And the government notified the Energy Companies of its position that February 6 was the operative date during agency proceedings. Although the Energy Companies had time to prepare their claims before the limitations period expired, they gambled that a court would accept their proffered limitations theory. Equitable tolling is not required under these circumstances. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm."
    In a strong dissent, Justice Tymkovich said, "The majority's decision today is a recipe for uncertainty, unfairness, and inefficiency in the administrative process. As one of our circuits facing a similar issue recently said: 'If we considered agency statements lacking clear indicia of finality to nonetheless be final agency action, subjects of agency regulation would be forced to file repeated precautionary petitions for review. Such petitions would waste the time and resources of the Court and of the parties, and would promote unfairness by allowing an agency to retroactively determine whether a particular statement was final or not. Considerations such as these have long been an integral part of finality determinations.' Am. Airlines, Inc. v. Transp. Sec. Admin., 665 F.3d 170, 174 (D.C. Cir. 2011).
    "Such problems are amplified, of course, when the document at issue is an undisclosed memorandum. To the list above we may add intrusive disclosure requests of internal agency documents. Surely Congress did not intend the result the per curiam opinion reaches today, and the text of the MLA does not command such an outcome -- a result at odds with well established principles of statutory construction, applicable case law, and an orderly process of judicial review of administrative action."
    Access the complete opinion and dissent (click here). [#Energy/OilGas, #CA10]
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