Wednesday, March 13, 2013

Western Energy Alliance v. Salazar (DOI)

Mar 12: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-8071. In this case which pits energy companies and associations against the Department of Interior (DOI) and environmental organizations; the Appeals Court fails to uphold the energy companies claim that the Mineral Leasing Act requires DOI to issues leases within sixty days of lease payment.
    This litigation concerns whether the Mineral Leasing Act (the Act or MLA), as amended by the Reform Act of 1987, requires the Secretary of the Department of Interior (Ken Salazar, the Secretary) to issue leases for parcels of land to the highest bidding
energy company within sixty days of payment to the Bureau of Land Management (BLM). Appellants (collectively Energy Companies) brought suit seeking to compel the Secretary to issue 118 pending leases on which they were the high bidders and more than sixty days had passed since they had paid BLM in full.

    The district court construed 30 U.S.C. § 266(b)(1)(A) as imposing a mandate on the Secretary to decide whether to issue such pending oil and gas leases within sixty days of payment, and ordered BLM to make such decisions regarding the still pending leases of Energy Companies within thirty days. Energy Companies appeal the district court's order and continue to assert that § 266(b)(1)(A) requires the Secretary to issue such pending leases within sixty days rather than merely make a decision on whether the leases will be issued. The Appeals Court held that the district court's order was not a "final decision" for purposes of 28 U.S.C. § 1291. The Appeals Court ruled, "Accordingly, under the administrative-remand rule we lack jurisdiction and dismiss the appeal.
    The Appeals Court points out that, "According to the Sale Notice, BLM 'will make every effort to decide the protest within 60 days after the sale.' Fed App. 61 (Notice of Competitive Oil and Gas Lease Sale, August 3, 2010). Due to the complexity, numerosity and timing of the protests, however, many leases that are subject to pending protests are not issued within sixty days of payment. . . We consistently affirmed the broad discretion afforded to the Secretary under the MLA. In Justheim Petroleum Co. v. Dep't of the Interior, 769 F.2d 668 (10th Cir. 1985), a case arising in the non-competitive bidding context, we held that 'the Secretary is under no requirement to issue or reject lease applications within a certain time limit.'"
    In this case, before the parcels were put up for auction, the Environmental Intervenors (Conservation Groups) had filed protests regarding all 118 parcels. The pending protests were announced before each parcel was auctioned and in accordance with the BLM manual and the Sale Notices, BLM deferred issuing the leases pending resolution of the protests. The Energy Companies challenged BLM's practice of offering oil and gas leases for sale, accepting payment from the top qualified bidders, and then deferring issuance of those leases pending resolution of pre-bid lease protests, a delay that in some instances can last for years and may ultimately result in stipulations being placed on the leases or the land being closed to leasing entirely. The Energy Companies contend that the Secretary must issue all leases within sixty days of payment, regardless of any pending protests.
    Despite the energy Companies' arguments, the Appeals Court rules, "We hold, as we have held in other cases in which appellants will have later opportunities to raise their arguments on appeal, that 'delaying review of the district court's judgment here will not result in substantial injustice to Movants.' SUWA, 525 F.3d at 970. Because this appeal is not urgent within the meaning of
the practical finality exception to the administrative remand rule, the rule applies and we lack jurisdiction over this appeal."
    In a footnote, the Appeals Court explained further, "Because we hold that we lack jurisdiction to review the challenged district
court order at this stage of the proceedings, we do not reach the merits of Energy Companies argument that 30 U.S.C. § 226(b)(1)(A) compels the Secretary of Interior to issue oil and gas leases to high bidders within sixty days of payment."
    Access the complete opinion (click here). [#Energy/OilGas, #CA10]
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