Orion Reserves Ltd. Partnership v. Kempthorne, Civil Action No. 04-791 (RCL).

Citation516 F.Supp.2d 8
Decision Date28 June 2007
Docket NumberCivil Action No. 04-791 (RCL).
PartiesORION RESERVES LIMITED PARTNERSHIP, Plaintiff, v. Dirk KEMPTHORNE, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)
516 F.Supp.2d 8
Dirk KEMPTHORNE, et al., Defendants.
Civil Action No. 04-791 (RCL).
United States District Court, District of Columbia.
June 28, 2007.

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Donald Lee Morgan, Donald L. Morgan, Boulder, CO, for Plaintiff.

Lauren Beth Fischer, U.S. Department of Justice, Washington, DC, Robin M. Earnest, Riverdale, MD, for Defendants.


ROYCE C. LAMBERTH, District Judge.


This matter comes before the Court on plaintiff's Memorandum [43] Respecting Remedy filed on behalf of Orion Reserves Limited Partnership ("Orion"). Previously, this Court granted plaintiff's Motion [26] for Summary Judgment and denied defendants' Cross Motion [27-1] for Summary Judgment. In addition, this Court ordered the parties to file memoranda respecting what relief, if any, the Court should award. For the reasons set forth below, this Court GRANTS IN PART and DENIES IN PART plaintiffs Request [43] Respecting Remedy.

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In 1988, Orion's predecessor in interest, Frederick H. Larson, filed a patent application for 156 oil shale mining claims totaling 23,371 acres. (Defs.' Mem. in Opp'n at 7.) The following year, Larson amended the original patent application by dividing it into nine separate patent applications. (Pl.'s Mem. Respecting Remedy at 2.) Defendants, however, did not process the applications for two years because of an administrative moratorium on the processing of oil shale mining patents. (Id. at 4.)

On account of the moratorium, Larson filed suit against the Department of the Interior ("Department") in the U.S. District Court for the District of Utah to compel the Department to process his patent applications in 1991. (Id.) Subsequently, defendants rescinded the moratorium after the 10th Circuit declared that the moratorium violated the mining laws. (Id. at 5.) Following the revocation of the administrative moratorium, however, Congress placed a funding moratorium on the processing of all oil shale mining claims until after October 1, 1992. (Id.) Larson then amended his complaint to challenge this new moratorium. (Id.) Defendants moved to dismiss, but the court found that even with the funding prohibition in place, defendants had to process Orion's applications. (Id.) The Department then began to process the applications and issued First Half Final Certificates for all nine of Orion's applications in the fall of 1992. (Id. at 6.) Consequently, the court dismissed the case as moot in 1993. (Id. at 7.)

In 1994, Larson transferred his 156 claims to Crippled Horse Investments Limited Partnership ("Crippled Horse"). (Defs.' Mem. in Opp'n at 12.) On September 23, 1996, defendants had yet to complete processing the applications, and Crippled Horse commenced a second action against the Department and the Bureau of Land Management ("BLM") alleging unreasonable delay in the Department's processing of its patent applications. (Pl.'s Mem. Respecting Remedy at 14.) This suit was later stayed on the condition that BLM would file a status report every sixty days regarding its progress in processing the applications. (Id. at 17.)

In 1997, defendants filed a contest complaint against Application UTU-66593, which contained two of Orion's 156 claims. (Pl.'s Mem. Respecting Remedy at 14.) Defendants' contest complaint argued that the claims were invalid for lack of discovery and failure to meet the statutory work assessment requirements. (Id.) To litigate all challenges in a single contest hearing, plaintiff asked BLM to defer the contest complaint against the claims in Application UTU-66593 until BLM made contest complaints against Orion's remaining claims. (Id. at 15.) BLM then declared a number of the claims in Application UTU 6324 "null and void" for nonperformance of assessment work in 1931. (Id. at 16.) However, at the request of Orion, BLM rescinded its decision pertaining to Application UTU 6324 and agreed to stay the contest proceeding pertaining to UTU-65593 until BLM could issue contest complaints, if necessary, against all of claims. (Defs.' Mem. in Opp'n at 13.)

In 1999, BLM stopped work on the mineral reports for Orion's claims and began a search of the local Uintah County records for work assessment affidavits concerning Orion's claims. (Id. at 14.) At the time work ceased on the reports, one report had been completed and submitted for technical review, one report had been completed and contested by ELM, two reports had been drafted, but had not yet undergone technical review, and the five remaining

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reports had been started. (See Id. at 15-16.) During the county records search, BLM discovered that all 156 claims lacked work assessment affidavits for periods of fifteen to thirty-five years between 1932 and 1970. (Id. at 16.) As a result, BLM declared on September 2, 1999 that all 156 of Orion's claims were void for failing to comply with the work assessment requirements of the Mining Law of 1872.1 (Pl.'s Mem. Respecting Remedy at 24.)

Orion appealed this decision to the IBLA on October 4, 1999. (Defs.' Mem. in Opp'n at 16.) On May 10, 2004, four and a half years later, the IBLA affirmed BLM's decision. (Id.) Orion then filed a complaint in this Court challenging the IBLA's decision. (Id.) This Court granted Orion's motion for summary judgment on March 31, 2006 and ordered the parties to supplement the record as to what relief, if any, the Court should award. (Pl.'s Mem. Respecting Remedy at, 28.)

In their memorandum [43], Orion requests the Court to compel defendants to expedite the processing of Orion's mining applications to remedy an unreasonable delay in the processing of the applications at issue. (Id.) Specifically, Orion seeks the Court to compel the defendants to either issue the patents for Orion's mining claims or explain why defendants will not issue the patents within sixty days of this order. (Pl.'s Proposed Order at 1.) Additionally, Orion requests this Court to retain jurisdiction over the matter if defendants fail to act within sixty days.2 (Pl's Mem. Respecting Remedy. at 2.) In their opposition [46], defendants argue that the matter should be remanded to BLM for agency processing without judicial intervention. (Def.'s Mem. in Opp'n at 18.)


The Administrative Procedure Act ("APA") provides that courts, upon reviewing agency action, "shall compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Courts possess the power to review claims of unreasonable delay because "the benefits of agency expertise ... will never be realized if the agency never takes action." Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C.Cir.1984) (hereinafter TRAC). To constitute an unreasonable delay, the agency must have a "duty to act" which has been unreasonably delayed in the agency's execution of that duty. In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C.Cir.2004). Moreover, for an unreasonable delay to warrant a court to order agency action with a specific time frame, the unreasonable delay must be "egregious." TRAC, 750 F.2d at 79. As a result, courts rarely compel an agency to render an immediate decision on an issue. See In re Barr Labs. Inc., 930 F.2d 72, 76 (D.C.Cir.1991) (finding that courts only compel agency action in "exceptionally rare cases"). Rather, courts allow agencies to set their own priorities on account of their "unique — and authoritative — position" to "allocate [their] resources in the optimal way." Id.

Accordingly, to determine whether an agency action has been unreasonably delayed,

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the Court must examine the following factors:

First, "the court should ascertain the length of time that has elapsed since the agency came under a duty to act," ... Second, "the reasonableness of the delay must be judged `in the context of the statute' which authorizes the agency's action...." Third, the court must examine the consequences of the agency's delay.... Finally, the court should give due consideration in the balance to "any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources."

In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C.Cir.1992) (internal citations omitted).

Upon a finding of unreasonable delay, a court will grant appropriate equitable relief to remedy the delay. See Cobell v. Norton, 240 F.3d 1081, 1108 (2001) (upholding a district court's specific relief after finding unreasonable agency delay). However, a court has the power to grant equitable relief even absent a finding of unreasonable delay. See Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C.Cir.2003) (stating that even if a district court does not find unreasonable delay, it may retain jurisdiction to ensure that the agency proceeds with diligence).

A. Duty to Act

Administrative agencies cannot decide which duties to perform and which duties to ignore, rather they must perform the duties which Congress intends them to perform. Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir.1991). Here, the Department and BLM have a Congressional duty to process oil shale mine patent applications. See id. (stating that Congress intends the Department of the Interior and BLM to process oil shale mining patent applications). Upon invalidating a claim, defendants' Congressional duty to process the applications ceases. Cf. Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 64 L.Ed. 659 (1920) (explaining that the Secretary of the Interior has a duty to recognize valid claims and eliminate invalid claims).

Due to administrative and Congressional moratoria, defendants' duty to process Orion's applications did not arise until after a court ruling in 1992 which ordered defendants to perform their duty, and process Orion's applications. (Pl.'s Mem. Respecting Remedy at 2, 5.) Defendants then...

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