Osage Producers Ass'n v. Jewell

• Decision Date: 01 June 2016
• Docket Number: Case No. 15-CV-469-GKF-FHM
• Citation: 191 F.Supp.3d 1243
• Parties: OSAGE PRODUCERS ASSOCIATION, Petitioner, v. Sally JEWELL, et al., Respondents.
• Court: U.S. District Court — Northern District of Oklahoma

191 F.Supp.3d 1243

OSAGE PRODUCERS ASSOCIATION, Petitioner,

v.Sally JEWELL, et al., Respondents.

Case No. 15-CV-469-GKF-FHM

United States District Court, N.D. Oklahoma.

Signed June 1, 2016

Evan McGuire McLemore, Lee Ira Levinson, Terence Patrick Brennan, Trevor Ray Henson, Levinson, Smith & Huffman, P.C., James David Sicking, Jr., Tulsa, OK, for Petitioner.

Stephen Philip Finn, Ty Bair, US Department of Justice, Washington, DC, for Respondents.

OPINION AND ORDER

GREGORY K. FRIZZELL, CHIEF JUDGE, UNITED STATES DISTRICT COURT

Before the court is the Motion to Dismiss for Lack of Subject Matter Jurisdiction [Dkt. # 45] of respondents the Department of Interior; the Bureau of Indian Affairs ("BIA"); Sally Jewell, in her official capacity as Secretary of the Interior; Michael Black, in his official capacity as Director of the BIA; Eddie Streater, in his official capacity as Regional Director of the Eastern Oklahoma Region of the BIA; and Robin Phillips, in her official capacity as Superintendent of the Osage Agency of the BIA (collectively, "the government").

This case arises from a dispute over the government's handling of the permitting process for oil and gas operations in Osage County, Oklahoma. The Osage Producers Association ("OPA") brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , seeking review of a large group of drilling and workover permits and permit applications issued to or submitted by its members. For the reasons set forth in this Opinion and Order, the government's motion is granted.

I. BACKGROUND

The following facts are drawn from the OPA's Amended Petition for Review of Agency Action (the "Amended Complaint"). In Osage County, an oil and gas operator wishing to drill a new well or rework an existing well must first obtain a permit from the Superintendent of the Osage Agency ("the Superintendent"). Since July 2014, the number of drilling permits issued by the Superintendent has dropped substantially. Many permit applications have been pending before the Superintendent for well over a year without any action. Moreover, of the permits that have been issued, some contain new requirements and limitations that were not part of the original application process. In December 2015, the Superintendent discarded 121 permit applications for failing to provide information for use by the agency in complying with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

The OPA is an Oklahoma nonprofit association comprised of oil and gas producers that have oil and gas leases in Osage County, Oklahoma. It brought this action challenging the Superintendent's management of the permitting process in Osage County on several grounds. In particular, the OPA alleges that the government (1) has unreasonably delayed issuing drilling and workover permits, (2) has issued permits that, because of their additional requirements, are useless and illusory, and (3) has unlawfully discarded permit applications for failing to provide environmental information that the Superintendent has no authority to require. The OPA's allegations are of a general nature. It seeks review of all agency actions falling within one of the above listed categories without specifically identifying those actions.

II. DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a case for lack of subject matter jurisdiction. " Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell , 299 F.3d 1173, 1180 (10th Cir.2002). Here, the government's motion asserts a facial attack. Accordingly, the court accepts all factual allegations in the OPA's Amended Complaint as true and asks whether those allegations, standing alone, are sufficient to establish subject matter jurisdiction. See Wyoming v. United States , 279 F.3d 1214, 1222 (10th Cir.2002).

The government asserts three grounds for dismissal: (1) that the Amended Complaint presents an impermissible programmatic challenge, (2) that the OPA has not alleged facts establishing its standing to bring this case, and (3) that the OPA and its members have failed to exhaust required administrative remedies. The court considers these issues in turn.

A. Programmatic Challenge

The government first argues that the OPA's Amended Complaint fails to adequately identify the agency actions for which it seeks review. As just mentioned, the OPA's claims arise under the APA. Section 702 of the APA "provides both a cause of action and a waiver of sovereign immunity for claims in which a plaintiff has suffered ‘a legal wrong because of agency action,’ " Iowa Tribe of Kansas & Nebraska v. Salazar , 607 F.3d 1225, 1230 (10th Cir.2010) (quoting 5 U.S.C. § 702 ), or been "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702. To obtain review under this provision, a plaintiff must (1) identify some final "agency action" to be reviewed, and (2) show that it has suffered a "legal wrong" or been "adversely affected or aggrieved" by the action at issue. See Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882–83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ; Preferred Risk Mut. Ins. Co. v. United States , 86 F.3d 789, 792 (8th Cir.1996). The term "agency action" is defined as "includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13).

Section 702's "agency action" requirement precludes " ‘broad programmatic attacks' on an agency's administration of a program." San Luis Unit Food Producers v. United States , 709 F.3d 798, 803 (9th Cir.2013) (alterations omitted) (quoting Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ); Lujan , 497 U.S. at 890–91, 110 S.Ct. 3177. The Supreme Court first elaborated on this limitation in Lujan . Lujan involved a challenge to the Bureau of Land Management's "land withdrawal review program," a term referring to an unspecified group of several hundred administrative decisions reclassifying federal lands. See 497 U.S. at 890, 110 S.Ct. 3177. Rejecting the challenge, the Court determined that the "program" was "not an ‘agency action’ within the meaning of § 702, much less a ‘final agency action’ under § 704." Id. In reaching this conclusion, the Court emphasized that § 702 only allows for review of "identifiable ‘agency action,’ " such as a specific order or regulation or a "completed universe of particular ... orders [or] regulations." Id. Put differently, the Court explained, the statute requires plaintiffs to challenge agency action on a "case-by-case" basis, id. at 894, 110 S.Ct. 3177, rather than pursuing "wholesale improvement of [an agency] program by court decree," id. at 891, 110 S.Ct. 3177 (emphasis omitted).

Here, the government submits that Lujan requires dismissal of the OPA's Amended Complaint. In particular, it contends that the Amended Complaint asserts an impermissible programmatic challenge and thus falls outside of § 702's limited waiver of sovereign immunity. In response, the OPA maintains that its challenge is directed at agency actions, not an agency program, and that the APA does not require it to individually identify each and every permitting decision it seeks to challenge.

The court agrees with the government. The APA only allows for review of "identifiable ‘agency action.’ " Id. at 890, 110 S.Ct. 3177 (emphasis added). The OPA does not identify the specific actions it seeks to challenge. Rather, it generically describes certain arbitrary or unlawful agency practices—such as unreasonably delaying the issuance of drilling permits—and requests review of all agency actions falling within those descriptions. This is no different than the challenge at issue in Lujan . Here, as in that case, the court is faced with a generic challenge to an amorphous group of several hundred administrative decisions. Although the OPA does not style its attack as one against an agency "program," its identification of the agency actions at issue is no less vague.¹ See Alabama – Coushatta Tribe of Texas v. United States , 757 F.3d 484, 490–91 (5th Cir.2014) ; Sierra Club v. Peterson , 228 F.3d 559, 566–67 (5th Cir.2000) (en banc). Reading the Amended Complaint, the court is unable to identify which, or even how many, agency actions are subject to this suit.² Because the OPA does not direct its challenge against an identifiable agency action or group of actions, its suit falls outside of § 702's limited waiver of sovereign immunity. See Alabama – Coushatta Tribe , 757 F.3d at 489–91 ; Sierra Club , 228 F.3d at 566–67.³ Accordingly, the government's motion to dismiss is granted.

B. Associational Standing

The government next contends the OPA has not alleged facts establishing its standing to bring this case on behalf of its members. An association has standing to sue on its member's behalf if: (1) "its members would otherwise have standing to sue in their own right;" (2) "the interests it seeks to protect are germane to the organization's purpose;" and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The first prong of this test "embodies the Article III requirements of injury in fact, causal connection to the defendant's conduct, and redressability." Am. Forest & Paper Ass'n v. U.S. E.P.A. , 154 F.3d 1155, 1159 (10th Cir.1998). It requires an associational plaintiff to specifically identify at least one member harmed by the defendant's conduct, see Summers v. Earth Island Inst. , 555 U.S. 488, 498–99, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ; Chamber of Commerce of U.S. v....