Solenex LLC v. Jewell
Solenex LLC v. Jewell
Opinion of the Court
MEMORANDUM ORDER
Plaintiff Solenex LLC (“plaintiff’ or “Solenex”) brought this action against defendants Sally Jewell, in her official capacity as Secretary of the U.S. Department of the Interior; Mike Pool, in his official capacity as Acting Director of the Bureau of
The factual history of this case is long, detailed, and torturous, but the essential facts, none of which are in dispute, are these: the Bureau of Land Management (“BLM”) issued a lease covering 6,247 acres in Montana to plaintiffs predecessor-in-interest in 1982. PL’s Statement of Material Facts (“PSOMF”) at ¶¶ 11-13 [Dkt. #24-2], On January 31, 1985, the BLM approved an application for permit to drill (“APD”), for a single exploratory well to test and evaluate natural gas potential. PSOMF at ¶¶ 31. Since then, the APD has been suspended six times: the first suspension was effective October 1, 1985, and the most recent suspension was an indefinite suspension that has been in place since July 15, 1998. PSOMF at ¶ 71. These delays in making a final determination about the suspension of plaintiffs lease are the result of various agencies, including the Forest Service and the BLM, performing various reviews under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq., the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470-470X-6, and other applicable statutes. See PSOMF at ¶¶ 28-82. Thus, since the APD was first approved in 1985, the lease has been suspended for more than 29 years! No combination of excuses could possibly justify such ineptitude or recalcitrance for such an epic period of time.
Under the APA, administrative agencies have a duty to decide issues presented to them within a reasonable time, 5 U.S.C. § 555(b), and reviewing courts have a duty to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) Our Circuit Court has remarked that
nine years should be enough time for any agency to decide almost any issue. There comes a point when relegating issues to proceedings that go on without conclusion in any kind of reasonable time frame is tantamount to refusing to address the issues at all and the result is a denial of justice.
Nader v. F.C.C., 520 F.2d 182, 206 (D.C.Cir. 1975). By any measure,
In Nader, the Federal Communications Commission had failed to resolve ratemak-ing issues for more than ten years. Id. at 206. As a remedy, our Circuit Court required the Commission to submit a schedule for the “orderly, expeditious” resolution of the ratemaking, subject to the Court’s approval; our Circuit Court additionally required approval for any alterations to the schedule and explanations for all material failures to comply. Id. at 207. Indeed, our Circuit Court frequently orders recalcitrant agencies to establish schedules, subject to court approval, to finish their reviews and reach final agency decisions. See, e.g., Pub. Citizen Health Research Grp. v. Brock, 823 F.2d 626, 629 (D.C.Cir. 1987) (finding unreasonable delay and forcing agency to adhere to its proposed schedule); Air Line Pilots Ass’n, Int’l v. C.A.B., 750 F.2d 81, 89 (D.C.Cir. 1984) (finding unreasonable delay and ordering the agency to give the court status reports every 30 days); MCI Telecommunications Corp. v. F.C.C., 627 F.2d 322, 345 (D.C.Cir. 1980) (“Nevertheless, we believe the time has come to bring these proceedings to a close, and a judicially supervised schedule for doing that hopefully will obviate the need for more drastic judicial relief.”); see also Muwekma Tribe v. Babbitt, 133 F.Supp.2d 30, 41 (D.D.C. 2000) (directing the agency to submit to the court a proposed schedule for resolving plaintiffs petition for acknowledgement as an Indian tribe).
Under the current circumstances,
ORDERED that defendants’ cross motion for summary judgment [Dkt. # 33] is DENIED; it is further
ORDERED that, to the extent plaintiff requests that this Court directly order the defendants to lift the suspension on plaintiffs lease, plaintiffs motion for summary judgment [Dkt. # 24] is DENIED in part; it is further
ORDERED that, to the extent plaintiff requests that this Court demand that defendants establish a schedule within which it will determine whether to lift the suspension of plaintiffs lease, plaintiffs motion for summary judgment [Dkt. # 24] is GRANTED in part; it is further
ORDERED that within 21 days from the issuance of this Order, the defendants must submit a schedule for the orderly, expeditious resolution of the decision whether to lift the suspension of plaintiffs lease. This schedule shall include (1) the defendants’ proposed tasks remaining to be completed and rationales for why those tasks are legally necessary, and (2) an accelerated timetable for completing those tasks still necessary to expeditiously resolve the issues regarding plaintiffs suspended lease. Thereafter, the Court shall either approve or reject the defendants’ schedule or order such further adjustments as appropriate. After the schedule of proceedings has been approved, the defendants will be required to adhere to it. Any alterations will require the approval of this court and the defendants will be required to explain any and all material failures to comply, which may possibly be remedied by a judicial order lifting: the current suspension entirely.
SO ORDERED.
. Indeed, I could not find, nor could the parties identify, a single example where agency action was as egregiously delayed as the 29 years at issue here. See In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C.Cir. 2004) (six year delay in responding
. At the Court’s most recent hearing counsel for the Government represented that the relevant agencies were actually close to completing their necessary reyiew. See Transcript of Proceedings on June 10, 2015, at 47:21-48:18 [Dkt. # 49] ("They're close to the very end of the national historic preservation process, and they’re committed to completing it.... When they get to the end of that, then they will have to make a recommendation to the Secretary of Interior on suspension.”). I have taken that representation seriously.
Reference
- Full Case Name
- SOLENEX LLC v. Sally JEWELL
- Cited By
- 6 cases
- Status
- Published