Jan 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-4094. Appeal from the United States District Court for the District of Utah. The Appeals Court explains that several environmental groups, including the national groups of Natural Resources Defense Council, The Wilderness Society, National Parks Conservation Association (collectively referred to as (SUWA) challenge decisions made by the Bureau of Land Management (BLM) and the Interior Board of Land Appeals (IBLA). At issue is the legality of thirty-nine oil and gas leases in Southern Utah, owned by Kirkwood Oil and Gas, LLC and William C. Kirkwood (collectively Kirkwood). In the 1980s, Kirkwood applied to have its oil and gas leases converted to combined hydrocarbon leases, which would allow Kirkwood to extract oil from tar sands. The Appeals Court indicates that, "Tar sands are loosely defined as any sedimentary rock impregnated with heavy, viscous crude oil that cannot be recovered by conventional techniques but rather requires an external energy source (e.g., heat) to mobilize the oil."
To date, BLM has never accepted or rejected Kirkwood's applications. Between 2006 and 2008, BLM and IBLA issued several decisions declaring that the underlying oil and gas leases were "suspended" pending review of the conversion applications. SUWA alleges BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming these thirty-nine leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.
The Appeals Court said in its initial summary, "We have jurisdiction under 28 U.S.C. § 1291. Although the district court misapplied the law in important respects with regard to standing, as we explain below, we ultimately hold that this action is not ripe for review. Accordingly, we affirm the district court's dismissal of the action for lack of subject matter jurisdiction."
The Appeals Court concludes, "Although the issues here are predominantly legal questions, the validity of SUWA's claims will be best adjudicated once the facts have been further developed and it becomes clear what type of oil and gas development Kirkwood will ultimately be allowed to engage in, if any. We should not resolve the issues raised by SUWA 'unless and until it is determined what rights' Kirkwood has to engage in mineral extraction on the leaseholds. Tarrant Reg'l Water Dist., 656 F.3d at 1250; see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1237 (10th Cir. 2004) ('Fitness for judicial resolution may depend upon . . . whether consideration of the issue would benefit from a more concrete setting . . . .' (internal quotation marks omitted)). There is simply too much uncertainty as to when and what type of drilling, if any, will occur on the thirty-nine contested leases. SUWA 'will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain,' Ohio Forestry Ass'n, 523 U.S. at 734, and it will suffer no hardship from this delayed review. Accordingly, we conclude this suit is premature."
Access the complete opinion (click here). [#Energy/TarSands, #CA10]
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