Am. Petroleum Inst. v. U.S. Dept of Interior
| Decision Date | 05 October 2022 |
| Docket Number | 2:21-CV-02506 |
| Parties | AMERICAN PETROLEUM INSTITUTE ET AL. v. U.S. DEPT. OF INTERIOR ET AL. |
| Court | U.S. District Court — Western District of Louisiana |
REPORT AND RECOMMENDATION
Before the court is defendants' partial Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, which requests that this court dismiss certain claims from plaintiffs' First Supplemental and Amended Complaint. Doc. 75. The Motion is opposed by plaintiffs, and movants have filed a reply, making the motion ready for resolution. Docs. 79, 81. The motion has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.
After careful consideration of this motion, the responses and replies thereto, and the applicable law, for the reasons that follow, IT IS RECOMMENDED that the motion be GRANTED in part and DENIED in part, that plaintiffs' sixth cause of action be dismissed without prejudice, and that plaintiffs' seventh cause of action be dismissed with prejudice.
This lawsuit concerns a decision by certain federal agencies to indefinitely halt certain oil and gas sales lease sales in accordance with an executive order issued by President Biden (the “Pause”).[1] The plaintiffs are associations with ties to the oil and gas industry: American Petroleum Institute American Exploration and Production Council, Independent Petroleum Association of America, International Association of Drilling Contractors, National Ocean Industries Association, Montana Petroleum Association, North Dakota Petroleum Council, Petroleum Alliance of Oklahoma, Southeast Oil & Gas Association, Utah Petroleum Association, Western States Petroleum Association, Aries Marine Corporation (“Aries”), EnerGeo Alliance, and Valveworks U S A Inc. (“Valveworks”). The plaintiffs brought suit against the U.S. Department of Interior (“DOI”), the Bureau of Land Management (“BLM”), and the Bureau of Ocean Energy Management (“BOEM”), along with individual officers of the DOI, BLM, and BOEM,[2] alleging that DOI, acting through the other defendants, instituted a de facto “indefinite moratorium on all federal oil and gas lease sales onshore and on the Outer Continental Shelf (‘OCS')” in response to Section 208 of President Biden's Executive Order 14008. Doc. 68, ¶ 1-2. Section 208 instructs the Secretary of the Interior (the “Secretary”) to “pause new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices.” Id., p. 1 (quoting 86 Fed.Reg. at 7,624-25). Plaintiffs allege that, in complying with Section 208, the defendants acted in contravention of the Administrative Procedure Act (“APA”), the Mineral Leasing Act (“MLA”), the Mineral Leasing Act for Acquired Lands (“MLAAL”), the Outer Continental Shelf Lands Act's (OCSLA's) Five-Year Leasing Program requirement, the Federal Land Policy and Management Act (“FLPMA”), applicable Resource Management Plans (“RMPs”) and the National Environmental Policy Act (“NEPA”). Id., p. 2-3. The plaintiffs bring eight causes of action based on these allegations.
In their Motion to Dismiss, defendants argue that plaintiffs third[3], sixth, and seventh causes of action, and the onshore portions of the first, second, and eighth causes of action, should be dismissed under provisions of Fed.R.Civ.P. 12(b). Doc. 75.
Defendants assert that the sixth cause of action, concerning the issuance of a new Five-Year Leasing Program under OCSLA, must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The jurisdictional question presented here is whether 43 U.S.C. § 1349(c)(1) grants the United States Court of Appeals for the District of Columbia exclusive jurisdiction to review the Secretary's decision to pause leasing on the OCS, which plaintiffs allege violates OCSLA insofar as it would prevent the Secretary from promulgating a new Five-Year plan, as required under OCSLA.[4] Doc. 68, p. 26-27.
The sixth cause of action alleges that the Pause indefinitely precludes further OCS lease sales and therefore “ensures Defendants will not timely adopt a new Five-Year Leasing Program.” Id. Plaintiffs allege that the Pause thereby violates OCSLA, “through inaction ensur[ing]” no further lease sales can take place after the expiration of the most recent Five-Year Plan on July 1, 2022. Id. (citing 43 U.S.C. § 1344(d)(3)). Plaintiffs also allege that OCSLA does not provide the Secretary the statutory authority to indefinitely cease oil and gas leasing on the OCS, and that the decision to pause leasing violates the APA as arbitrary and capricious. Id. (citing 5 U.S.C. § 706). Plaintiffs therefore pray for relief that would “[d]eclare that Defendants' actions are beyond their statutory authority under the [ . . . ] OCSLA” and “[c]ompel Defendants to promptly adopt a new Five-Year Leasing Program for OCS leasing.” Id., p. 29 (omission added).
OCSLA provides in relevant part that, “[a]ny action of the Secretary to approve a leasing program pursuant to section 1344 of this title shall be subject to judicial review only in the United States Court of Appeal for the District of Columbia.” 43 U.S.C. § 1349(c)(1)(internal footnote omitted). Defendants argue that any court granted exclusive jurisdiction to review agency action on a subject must also have exclusive jurisdiction to review agency inaction regarding the same subject, and they move to dismiss or transfer the sixth cause of action on the basis that the Secretary's decision to pause offshore leasing in accordance with Section 208 of Executive Order 14008 falls within the exclusive jurisdiction of the D.C. Circuit. Doc. 75, att. 1, p. 7, 11-16.
Plaintiffs respond that the jurisdictional provision at 43 U.S.C. § 1349(c)(1) does not apply here because the Secretary has not taken an “action [ . . . ] to approve a leasing program[,]” and that this court therefore has jurisdiction to decide this issue. Doc. 79, p. 12 (emphasis added). Suggesting that various factors militate against interpreting the statute to encompass agency inaction,[5] plaintiffs also emphasize that this is the first time in four decades that the Secretary will have failed to prepare a leasing program in accordance with 43 U.S.C. § 1344(a). Id., p. 12-17.
Before addressing this question, the court takes judicial notice of relevant intervening events. In related litigation pending before this court, the district judge recently found that “[t]here is no statutory authority that authorizes the Executive Branch to Pause the OCSLA Five Year Plan[,]” holding that “Section 208 of Executive Order 14008 is ultra vires, beyond the authority of the President of the United States, and in violation of the OCSLA and the MLA.” Louisiana v. Biden, No. 2:21-CV-00778, 2022 WL 3570933, at *12 (W.D. La. Aug. 18, 2022)(memorandum ruling on cross-motions for summary judgment). This court granted summary judgment finding that the Pause violated various provisions of the APA and issued a permanent injunction enjoining the defendants from “implementing a Stop, referred to in Executive Order 14008 as a Pause, on new oil and gas leases on public lands and in offshore waters, as set forth in Section 208 of Executive Order 14008, as to all ‘eligible' lands both onshore and offshore.”[6] Id. at *20.
Several weeks earlier, the Bureau of Ocean Energy Management published in the Federal Register a “Notice of Availability of the 2023-2028 National Outer Continental Shelf Oil and Gas Leasing Proposed Program and Draft Programmatic Environmental Impact Statement.” 87 Fed.Reg. 40859 (July 8, 2022). This publication indicates that the five-step process by which the Secretary approves a new Five-Year Plan is underway, with three of the five steps accomplished. The 90-day public comment period on the proposed program will end on October 6, 2022. Id.
“When courts lack subject matter jurisdiction over a case, they lack the power to adjudicate the case.” Nat'l Football League Players Ass'n v. Nat'l Football League, 874 F.3d 222, 225 (5th Cir. 2017). “Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt.” Ascroft v. Iqbal, 129 S.Ct. 1937, 1945 (2009). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Id. Subject matter jurisdiction “must be proved by a preponderance of the evidence.” In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020). “A district court may dismiss a case under Rule 12(b)(1) based on ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'” Id. (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
To the extent that the intervening events leave a meaningful controversy for this court to resolve as to the sixth cause of action, we find that the plaintiff's sixth cause of action falls within the exclusive jurisdiction of the D.C Circuit and should therefore be dismissed. The United States Supreme...
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