S. Utah Wilderness Alliance v. Palma

• Decision Date: 08 January 2013
• Docket Number: No. 11–4094.,11–4094.
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE; Natural Resources Defense Council; The Wilderness Society; National Parks Conservation Association; Grand Canyon Trust, Plaintiffs–Appellants, v. Juan PALMA, in his official capacity as Director of the Bureau of Land Management Utah Sate Office; Bureau of Land Management; United States Department of the Interior, Defendants–Appellees, and Kirkwood Oil and Gas, LLC; William C. Kirkwood, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

707 F.3d 1143

SOUTHERN UTAH WILDERNESS ALLIANCE; Natural Resources Defense Council; The Wilderness Society; National Parks Conservation Association; Grand Canyon Trust, Plaintiffs–Appellants,

v.Juan PALMA, in his official capacity as Director of the Bureau of Land Management Utah Sate Office; Bureau of Land Management; United States Department of the Interior, Defendants–Appellees,andKirkwood Oil and Gas, LLC; William C. Kirkwood, Intervenor–Defendants–Appellees.

No. 11–4094.

United States Court of Appeals,Tenth Circuit.

Jan. 8, 2013.

Stephen H.M. Bloch of Southern Utah Wilderness Alliance, Salt Lake City, UT (David Garbett of Southern Utah Wilderness Alliance, Salt Lake City, UT; and Sharon Buccino of Natural Resources Defense Council, Washington D.C., with him on the briefs), for Plaintiffs–Appellants.

Jeffrey E. Nelson, Assistant United States Attorney (Carlie Christensen, United States Attorney, with him on the brief), Salt Lake City, UT, for Defendants–Appellees.

William E. Sparks (Bret A. Sumner with him on the brief) of Beatty & Wozniak, P.C., Denver, CO, for Intervenor–Defendants–Appellees.

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.

SEYMOUR, Circuit Judge.

Several environmental groups ¹ (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 KirkwoodOil 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. 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.

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.

I.

A. Statutory And Regulatory Background

“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.” Supp.App. at 33. Areas with substantial tar sands are also likely to have oil and gas.

The Combined Hydrocarbon Leasing Act of 1981, Pub.L. No. 97–78, 95 Stat. 1070, was enacted to encourage the production of oil from tar sand deposits in the United States. The Act amended the Mineral Leasing Act and authorized the Secretary of the Interior to issue combined hydrocarbon leases (“CHLs”) in areas that contain substantial deposits of tar sands and have been designated as “Special Tar Sand Areas” (“STSAs”). See30 U.S.C. §§ 181, 226; 43 C.F.R. § 3140.0–5(c).² A CHL allows the lease owner to extract oil from tar sands, as well as oil and gas from traditional deposits. See43 C.F.R. § 3140.0–5(a).

Under the Combined Hydrocarbon Leasing Act, owners of traditional oil and gas leases in STSAs could convert their leases into CHLs. 30 U.S.C. § 226(n). An oil and gas lease was eligible for conversion into a CHL if it was issued prior to November 16, 1981 and was located in an STSA. Id. § 226(n)(1)(A). Only the owner of the lease could submit the application for conversion. 43 C.F.R. § 3140.2–2. The owner of an eligible lease had a two year window—until November 15, 1983—to submit an application to the Utah State Office of BLM. 30 U.S.C. § 226(n)(1)(A); 43 C.F.R. § 3140.3–1. The application required, inter alia, a “plan of operations” for development. 30 U.S.C. § 226(n)(1)(A); 43 C.F.R. § 3140.2–3(a).

As provided by BLM regulations in effect at the time:

Upon determination that the plan of operations is complete, the supervisor shall notify the authorized officer who shall then suspend the term of the Federal oil and gas lease(s) as of the date that the complete plan was filed until the plan is finally approved or rejected. Only the term of the oil and gas lease shall be suspended, not any operation and production requirements thereunder.

43 C.F.R. § 3140.2–3(g)(1)(1982), 47 Fed.Reg. 22,474, 22,480 (May 24, 1982).³ Federal oil and gas leases are generally issued for a primary term of ten years, 30 U.S.C. § 226(e), and the suspension prevents the lease term from expiring while the conversion application is pending. See43 C.F.R. § 3103.4–4(b) (“[N]o lease shall be deemed to expire during any suspension.”).⁴ The Combined Hydrocarbon Leasing Act mandates that “The Secretary shall act upon a proposed plan of operations within fifteen months of its submittal.” 30 U.S.C. § 226(n)(1)(B).

If the plan of operations is found acceptable and is approved, the oil and gas lease is converted into a CHL with a new effective start date and a new ten-year term. 43 C.F.R. §§ 3140.4–1, 3140.4–2, 3140.5. If the application is rejected, then the lease suspension is lifted. Id.§ 3140.2–3(g)(1) (the lease term shall be suspended “until the plan is finally approved or rejected”). Thereafter, the original oil and gas lease remains valid until the expiration of its term, which is extended by the duration of the suspension. See id. § 3103.4–4(b) (“The term of any lease shall be extended by adding thereto the period of the suspension....”); cf.30 U.S.C. § 226(n)(2) (“Except as provided in this section, nothing in the Combined Hydrocarbon Leasing Act of 1981 shall be construed to diminish or increase the rights of any lessee under any oil and gas lease issued prior to November 16, 1981.”).⁵

The STSAs at issue here are the Circle Cliffs STSA and the Tar Sand Triangle STSA. See 45 Fed.Reg. 76,801 (Nov. 20, 1980). Both of these STSAs are located in Southern Utah. The Tar Sand Triangle STSA is an area comprising approximately 230 square miles. The Circle Cliffs STSA covers approximately 215 square miles.

Some of the leases at issue in this case are located on lands that are now subject to certain restrictions on mineral leasing. As an illustrative example, Kirkwood's Circle Cliffs STSA leases are within the Grand Staircase–Escalante National Monument. This monument was established in 1996 by Presidential Proclamation. 61 Fed.Reg. 50,223 (Sept. 18, 1996). The proclamation withdrew all federal lands and interests within the monument from new leasing, but specified that “[t]he establishment of this monument is subject to valid existing rights.” Id. at 50,225; see also30 U.S.C. § 181 (excluding lands containing deposits of oil and gas in national parks and monuments from disposition). As a result, new mineral leasing within the monument is prohibited, although mineral development is permitted under existing leases.

B. Factual Background

In 1982 and 1983, Kirkwood or its predecessors applied to convert oil and gas leases in the Circle Cliffs and Tar Sand Triangle STSAs into CHLs. These leases, including the thirty-nine leases at issue in this case, were grouped into three applications: UTU–72405, UTU–73098, and UTU–72120. ⁶ The parties agree that between 1983 and 1984, BLM determined that all three applications contained complete plans of operations.

The parties also agree that once BLM determined Kirkwood had submitted complete plans of operations for these three applications, the leases included in the applications should have been suspended. See30 U.S.C. § 226(n)(1)(B); 43 C.F.R. § 3140.2–3(g)(1) (1982). They disagree, however, about whether the leases actually were suspended at that time. According to Kirkwood and the government, the leases were automatically suspended as of the dates of the filings of complete plans of operations, and they have continued to be suspended since then. According to SUWA, however, the suspension of the leases was not automatic and BLM failed to suspend them in the 1980s. See43 C.F.R. § 3140.2–3(g)(1) (1982) (“Upon determination that the plan of operations is complete, the supervisor shall notify the authorized officer who shall then suspend the term of the Federal oil and gas lease(s) as of the date that the complete plan was filed until the plan is finally approved or rejected.”). SUWA notes that the administrative record for these applications does not contain any notices suspending the terms of the leases. See, e.g., William C. Kirkwood, 175 IBLA 292, 297 (2008) (“[T]he record [regarding UTU–72120] does not contain a notice suspending the terms of the leases subject to the application....”). In its view, because the lease terms were not suspended, the oil and gas leases expired sometime between 1984 and 1992.

The parties also disagree about the effect of the suspension, if the leases were suspended. Kirkwood contends that its leases are subject to a suspension of operations, not only a suspension of term, and this suspension prevents it from engaging in operations on the leasehold. According to Kirkwood, “[B]ecause the [Combined Hydrocarbon Leasing Act] mandates that BLM suspend the 39 oil and gas leases which are the foundation of Kirkwood's CHL Applications, Kirkwood presently has no right to enter upon, explore or otherwise impact the subject lands while the oil and gas leases are suspended and the CHL Applications are pending.” Aplt.App. at 110. Several documents in the administrative record corroborate its position. At certain points in the CHL application...