Impact Energy Res., LLC v. Salazar

• Decision Date: 05 September 2012
• Docket Number: Nos. 11–4043,11–4057.,s. 11–4043
• Citation: 693 F.3d 1239
• Parties: IMPACT ENERGY RESOURCES, LLC; Peak Royalty Holdings, LLC; Questar Exploration and Production Company, Plaintiffs–Appellants, Uintah County; Carbon County; Duchesne County, Plaintiffs-Appellants. v. Ken SALAZAR, in his official capacity as Secretary of the Department of the Interior; United States Department of the Interior; Kent Hoffman, in his official capacity as Deputy State Director for Minerals, Utah Bureau of Land Management of the Department of the Interior; United States Bureau of Land Management, Utah State Office, Defendants–Appellees. National Parks Conservation Association; National Trust for Historic Preservation; Southern Utah Wilderness Alliance; Natural Resources Defense Council; Wilderness Society; Sierra Club; Utah Rivers Council; Great Old Broads for Wilderness; Grand Canyon Trust, Defendants–Intervenors–Appellees. Red Rock Forests, Defendant–Intervenor. Western Energy Alliance, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

693 F.3d 1239

IMPACT ENERGY RESOURCES, LLC; Peak Royalty Holdings, LLC; Questar Exploration and Production Company, Plaintiffs–Appellants,
Uintah County; Carbon County; Duchesne County, Plaintiffs-Appellants.
v.
Ken SALAZAR, in his official capacity as Secretary of the Department of the Interior; United States Department of the Interior; Kent Hoffman, in his official capacity as Deputy State Director for Minerals, Utah Bureau of Land Management of the Department of the Interior; United States Bureau of Land Management, Utah State Office, Defendants–Appellees.
National Parks Conservation Association; National Trust for Historic Preservation; Southern Utah Wilderness Alliance; Natural Resources Defense Council; Wilderness Society; Sierra Club; Utah Rivers Council; Great Old Broads for Wilderness; Grand Canyon Trust, Defendants–Intervenors–Appellees.
Red Rock Forests, Defendant–Intervenor.
Western Energy Alliance, Amicus Curiae.

Nos. 11–4043, 11–4057.

United States Court of Appeals,
Tenth Circuit.

Sept. 5, 2012.

[693 F.3d 1241]

Michael L. Beatty, Beatty & Wozniak, P.C. Denver, CO, and Mark Ward, Utah Association of Counties, Murray, UT, (Robert S. Thompson, III, Beatty & Wozniak, P.C., Denver, CO, on the briefs) for the Plaintiffs–Appellants.

Robin Cooley, Earthjustice, Denver, CO (Steven Bloch and David Garbett, Southern Utah Wilderness Alliance on the briefs), for Defendants–Intervenors–Appellees.

Vivian H.W. Wang, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., (Ignacio S. Moreno, Assistant Attorney General, David C. Shilton, Tyler Welti, and Charles R. Scott, United States Department of Justice, on the brief) for Defendants–Appellees.

Kent Holsinger and Laura L. Chartrand, Holsinger Law, LLC, Denver, CO, filed a brief for Amicus Curiae Western Energy Alliance on behalf of Plaintiffs–Appellants.

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.

PER CURIAM.

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, 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.

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

[693 F.3d 1242]

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.

I

On November 4, 2008, the BLM announced that it would hold a competitive auction of oil and gas leases on certain federal lands in Utah. The auction was scheduled for December 19, 2008. The National Park Service objected to the decision to lease many of the parcels, and after consulting with that agency, the BLM revised its auction to include 132 rather than 241 parcels as originally planned.

Several environmental organizations, including intervenor Southern Utah Wilderness Alliance (“SUWA”), filed administrative protests of the proposed lease sales. The notice of auction informed potential bidders that the BLM could not actually issue any leases until such protests were resolved. It stated that protested leases would nonetheless be auctioned and that the high bidder would be refunded any monies paid in the event that a parcel was withdrawn as a result of an administrative protest. Shortly before the scheduled auction, SUWA and other conservation groups filed suit in the D.C. District Court seeking to halt the planned sale. See S. Utah Wilderness Alliance v. Allred, 2009 WL 765882, at *1, 2009 U.S. Dist. LEXIS 30664, at *4 (D.D.C. Jan. 17, 2009) (unpublished).

On December 19, 2008, the auction went forward as planned and the BLM accepted bids on 116 lease parcels. The Energy Companies were recognized as high bidders for several of these parcels—thirty-six of which are located in counties that were also parties to this action below. Subsequently, the BLM recognized the appropriate high bidders and accepted payment for the parcels, with the express caveat that the leases could not actually be issued until all protests were resolved.

On January 17, 2009, the D.C. District Court granted a temporary restraining order prohibiting the BLM from issuing leases on 77 parcels, including those for which the appellants were the highest bidders. See S. Utah Wilderness Alliance, 2009 WL 765882, at *2, 2009 U.S. Dist. LEXIS 30664, at *9. It found that the environmental groups were likely to succeed on their claims under the National Environmental Policy Act (“NEPA”) because the government did not conduct a proper air quality analysis. Id. at *1–2, 2009 U.S. Dist. LEXIS 30664 at *7. The court further concluded that the environmental groups were likely to prevail on their National Historic Preservation Act and Federal Land Policy and Management Act (“FLPMA”) claims because the BLM failed to consider impacts on historic resources. Id. The court made the restraining order effective “until further order of the court” and ordered the parties to submit briefing on a preliminary injunction. Id. at *2, 2009 U.S. Dist. LEXIS 30664 at *9.

Newly-appointed Secretary of the Interior Ken Salazar essentially mooted the D.C. District Court dispute shortly thereafter. On February 4, 2009, he held a press conference to announce that the 77 parcels subject to the temporary restraining order would not be leased. He stated: “I have directed [the BLM] not to accept bids on the 77 parcels” and that the “effect will be immediate.... This is a directive to the BLM therefore the lease process will

[693 F.3d 1243]

not go forward.” He further explained, “[W]hat essentially I have done is to have removed the 77 parcels from the consummation of a lease.” On the same day, the Department of the Interior issued a press release announcing Salazar's decision on its website, stating:

In its last weeks in office, the Bush Administration rushed ahead to sell oil and gas leases at the doorstep of some of our nation's most treasured landscapes in Utah. We need to responsibly develop our oil and gas supplies to help us reduce our dependence on foreign oil, but we must do so in a thoughtful and balanced way that allows us to protect our signature landscapes and cultural resources.... We will take a fresh look at these 77 parcels and at the adequacy of the environmental review and analysis that led to their being offered for oil and gas development. I am also concerned that there was inadequate consultation with other agencies, including the National Park Service.

The announcement was covered extensively in both the regional and national press. See, e.g., Amy Joi O'Donoghue, Salazar Halts Sale of Utah Oil, Gas Leases, Deseret News, Feb. 5, 2009; Mark Jaffe, Utah Energy Leases Halted, Denver Post, Feb. 5, 2009; Leslie Kaufman, Interior Secretary Cancels Drilling Leases on Public Lands in Utah, N.Y. Times, Feb. 5, 2009.

The following day, February 5, the federal defendants in the D.C. District Court case filed an unopposed motion to stay briefing on the preliminary injunction question. They stated: “On February 4, 2009, Ken Salazar ... directed the BLM not to accept the bids on the 77 parcels that are the subject of this Court's temporary restraining order. Accordingly, those leases will not be issued.” When this motion was filed, Carbon County—a plaintiff in the action at bar—was a party in that case. Several attorneys that now represent the Energy Companies had entered an appearance and also received this filing.

Also on February 5, the BLM's Utah State Director issued an “Information Memorandum for the Secretary.” The memo stated, “On February 4, 2009, Secretary of the Interior Ken Salazar announced the decision to...