Impact Energy Resources, LLC v. Salazar

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
September 5, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

IMPACT ENERGY RESOURCES, LLC;
PEAK ROYALTY HOLDINGS, LLC;
QUESTAR EXPLORATION AND
PRODUCTION COMPANY,

Plaintiffs–Appellants,

UINTAH COUNTY; CARBON
COUNTY; DUCHESNE COUNTY,

Plaintiffs,

v.

KEN SALAZAR, in his official capacity
as Secretary of the Department of the
Interior; UNITED STATES Nos. 11-4043 & 11-4057
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.

Appeal from the United States District Court
for the District of Utah
(D.C. No. : 2:09-CV-00435-DB)

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

Robin Cooley, Earthjustice, Denver, Colorado (Steven Bloch and David Garbett,
Southern Utah Wilderness Alliance on the briefs), for the 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, Colorado, filed a
brief for Amicus Curiae Western Energy Alliance on behalf of Plaintiffs-Appellants.

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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
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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 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.

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 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 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 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 *7. The court further

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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 *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 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,
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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 withdraw oil and gas leases offered on

77 parcels . . . . A written decision withdrawing the leases will be needed to document

the process.” The State Director indicated that once her office received the “officially

documented decision from the Secretary,” it would begin the process of refunding the

payments received from winning bidders.

Secretary Salazar signed and issued a memo to the BLM’s Utah State Director the

following day, February 6, stating:

There has been considerable controversy surrounding this lease sale,
including questions about the degree of coordination between the BLM and
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 other Federal agencies, including the National Park Service, and the
adequacy of the environmental review and analysis performed in
connection with certain parcels as well as the underlying Resource
Management Plans. . . . Given the concerns about the adequacy of the
consideration[,] . . . I am directing you to withdraw the 77 parcels that were
covered by the January 17, 2009, Temporary Restraining Order from
further consideration in this lease sale.

In accordance with applicable laws, regulations, and agency
procedures, please take all necessary actions to effectuate this withdrawal,
including promptly notifying the high bidders and returning any monies
received by BLM in connection with these 77 parcels.

This transmittal was not made immediately public.

On February 12, 2009, the BLM’s Utah Deputy State Director sent letters via

certified mail to the high bidders on the 77 leases explaining that the parcels had been

withdrawn. The letters state that “Ken Salazar has directed the BLM to withdraw these

parcels from the December 19, 2008 Oil and Gas Lease Sale.” They also authorized a

refund of the bidders’ payments.

The Energy Companies attempted to appeal the lease withdrawals by filing an

administrative appeal with the Interior Board of Land Appeals (“IBLA”) on March 13,

2009. See Robert L. Bayless Producer, 177 IBLA 83 (2009). The BLM filed a motion to

dismiss that appeal on March 23, 2009, on the ground that the IBLA lacks jurisdiction

over any decision “approved by the Secretary.” 43 C.F.R. § 4.410(a)(3) (withdrawing

IBLA authority if “a decision has been approved by the Secretary”). In its motion, the

BLM took the position that the appeal sought review of the “February 6, 2009 Decision

of the Secretary.” It states that “appellants attempt to appeal BLM’s February 12, 2009

letters. However, the BLM letters merely implement the Secretary’s February 6, 2009
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decision to withdraw the subject parcels from further consideration in the December 19,

2008 oil and gas lease sale.” The February 6 transmittal was attached to the motion.

The IBLA granted the motion and dismissed the appeal on April 9, 2009. Robert

L. Bayless Producer, 177 IBLA at 85. Its order of dismissal states: “On February 12,

2009, BLM issued decisions related to 53 of those parcels from which this appeal is

taken.” Id. at 84. However, the order acknowledged the BLM’s position that the agency

letters “merely implement the Secretary’s directive.” Id. The IBLA order characterizes

the appellants as expressing some confusion as to the relevant date, noting that “they

received no decisions other than those that BLM issued on February 12, so it was not

clear to them whether BLM’s decision or the Secretary’s February 6 memorandum was

final agency action under the Administrative Procedure Act.” Id. Because the Secretary

“specifically directed BLM to take a particular action,” the IBLA concluded it lacked

jurisdiction over the appeal. Id. The IBLA rejected appellants’ request for an “opinion

as to whether the Secretary’s memorandum constitutes ‘final’ administrative action for

purposes of judicial review” because it “do[es] not issue advisory opinions regarding

matters in an appeal that we have no authority to consider.” Id. at 85.

On May 13, 2009, appellants filed suit against Salazar, the Department of the

Interior, the BLM, and the BLM’s Deputy Director for Minerals in the District of Utah,

challenging the decision to withdraw the leases as violations of the MLA, APA, and

FLPMA. Several environmental groups intervened on behalf of the government.

The district court dismissed the action as time-barred. It concluded that the “final

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decision of the Secretary” as that phrase is used in 30 U.S.C. § 226-2 was Salazar’s

February 6 transmittal. And because plaintiffs did not file suit within ninety days of that

decision, they did not fit within the MLA’s limited waiver of sovereign immunity. The

court further concluded that plaintiffs were not entitled to equitable tolling and

accordingly entered judgment in favor of the defendants. The Energy Companies now

appeal.

II

We review a district court’s dismissal based on sovereign immunity de novo. See

Governor of Kan. v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008). “Sovereign

immunity protects the United States and its agencies from being sued without their

consent.” Poche v. Joubran, 644 F.3d 1105, 1108 (10th Cir. 2011). “[T]he party

asserting jurisdiction bears the burden of proving that sovereign immunity has been

waived.” Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (citation

omitted).

Plaintiffs in this case invoke the limited waiver of sovereign immunity provided

for in the APA. Under that provision, aggrieved parties may challenge “[a]gency action

made reviewable by statute and final agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. However, the APA prohibits review of agency

decisions “to the extent that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a).

The MLA includes such a prohibition: “No action contesting a decision of the Secretary

involving any oil and gas lease shall be maintained unless such action is commenced or

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taken within ninety days after the final decision of the Secretary relating to such matter.”

30 U.S.C. § 226-2. This statutory deadline constitutes “a condition to the waiver of

sovereign immunity and thus must be strictly construed.” Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 94 (1990).1

The Energy Companies ask that we look to several provisions of the APA in

determining when the limitations period began to run. First, they argue that the APA’s

notice provision supersedes the MLA’s statute of limitations such that the limitations

period began to run when they received actual notice of the Secretary’s decision. They

point to the APA’s requirement that “[p]rompt notice shall be given of the denial in

whole or in part of a written application, petition, or other request of an interested person

made in connection with any agency proceeding.” 5 U.S.C. § 555(e). They further note

that the “APA governs agency procedures in all administrative proceedings,” Friends of

the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir. 1997), and that a statute cannot

supersede the APA “except to the extent that it does so expressly,” 5 U.S.C. § 559.

Neither the APA nor the MLA suggest that the latter’s statute of limitations is

bound by the former’s notice provision. Congress can, and often does, elect to begin a

limitations period when a party receives notice. See, e.g., 42 U.S.C. § 1395oo(f)(1)

1
In Geosearch, Inc. v. Hodel, 801 F.2d 1250, 1252 (10th Cir. 1986), we held that
the MLA’s statute of limitations is jurisdictional. We overruled Geosearch on other
grounds in Reppy v. Department of the Interior, 874 F.2d 728, 730 n.5 (10th Cir. 1989),
noting that a recent Supreme Court case might undermine Geosearch’s jurisdictional
holding. For purposes of this case, whether the statute of limitations is jurisdictional is
immaterial because the government moved to dismiss based on the statute of limitations.

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(permitting “civil action commenced within 60 days of the date on which notice of any

final decision by the Board . . . is received”). But the MLA’s limitations period is not

notice-based. The MLA very clearly starts the clock on the date of “the final decision of

the Secretary,” 30 U.S.C. § 226-2, not when notice of that decision is received.

There is no textual basis to conclude that a violation of the APA’s notice

requirement warrants an alteration of another statute’s unambiguous limitations

provision. APA claims are generally covered by the six-year limitations period contained

in 28 U.S.C. § 2401(a). See Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986).

Consistent with the plain text of that statute of limitations, we have held that APA claims

must be brought within six years of the claim’s accrual rather than within six years of

notice.2 See id.; see also 28 U.S.C. § 2401 (actions against the United States must be

filed “within six years after the right of action first accrues”). In other words, the

limitations provision in 28 U.S.C. § 2401, not the APA’s notice provision, determines the

limitations start date in the usual APA case. The Energy Companies give us no reason to

treat the interaction of § 555(e) and the MLA’s statute of limitations differently. Notice

may be relevant to the issue of equitable tolling, see Part III infra, but it does not alter the

2
Accrual and actual notice dates are often identical, but diverge with some
frequency. See, e.g., Sterlin v. Biomune Sys., 154 F.3d 1191, 1197 (10th Cir. 1998) (a
limitations period did not begin “when a plaintiff has full knowledge of the existence of a
claim” but “when a plaintiff is placed on ‘inquiry notice’” (quotations omitted)). In this
case, for example, the Energy Companies argue that their claims accrued on February 12,
when the BLM mailed its letters. But the Energy Companies presumably received those
letters a day or two later.

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date the limitations period begins to run.3

The Energy Companies further argue that the MLA’s statute of limitations could

not have begun to run until the BLM engaged in “final agency action” under the APA.

See 5 U.S.C. § 704. They note that their claims arose under 5 U.S.C. § 704, and

accordingly could not have been filed until the final agency action requirement was

satisfied. They contend there was no final agency action until the BLM sent the February

12 letters notifying them that the leases had been withdrawn.

As noted supra, the panel majority disagrees that the statute of limitations did not

begin to run until the February 12 letters were sent. Rather, they agree that the

limitations period began to run by February 6. Judge Lucero would hold that the “final

decision of the Secretary” occurred on February 6 regardless of whether “final agency

action” also occurred on that date. Judge Seymour would construe the two phrases

synonymously, and would hold that both the Secretary’s decision and the agency action

3
The Energy Companies argue that the six-day delay between the Secretary’s
decision and the mailing of the BLM’s notice letters violated their right to procedural due
process. They raised this issue for the first time in a Rule 59 motion, and the district
court declined to consider it, citing the rule that post-judgment motions are not
appropriate vehicles to “advance arguments that could have been raised in prior briefing.”
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). We agree with
the district court that the Energy Companies failed to raise this issue at the appropriate
time and have thus waived appellate review. See Proctor & Gamble Co. v. Haugen, 222
F.3d 1262, 1270-71 (10th Cir. 2000) (appellate review waived “[w]hen an issue has not
been properly raised below”).

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were final by February 6.4 Accordingly, we affirm the district court’s conclusion that the

Energy Companies’ suit is time-barred.

III

In addition to concluding that the Energy Companies’ suit was filed out of time, a

majority of the panel agrees that equitable tolling is not appropriate under the facts of this

case. The district court also concluded that the Energy Companies were not entitled to

equitable tolling. We review that determination for abuse of discretion. See Robinson v.

Golder, 443 F.3d 718, 720 (10th Cir. 2006). Equitable tolling is granted sparingly. We

have held that tolling is appropriate “when the defendant’s conduct rises to the level of

active deception; where a plaintiff has been lulled into inaction by a defendant, and

likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented

from asserting his or her rights.” United States v. Clymore, 245 F.3d 1195, 1199 (10th

Cir. 2001) (quotation and alteration omitted).

In arguing that tolling is appropriate, the Energy Companies rely heavily on

Turner v. Watt, 566 F. Supp. 87 (D. Utah 1983). Their reliance, however, is misplaced.

The plaintiff in Turner sought to appeal the denial of his application for an oil and gas

lease under the MLA. Id. at 88. He filed an appeal with the IBLA but temporarily left

the country while the appeal was pending. Id. When the IBLA rejected his appeal, it

4
In his separate opinion, Judge Tymkovich agrees with Judge Seymour that the
“final decision of the Secretary” was “final agency action” in this case, but does not agree
that the decision became final before February 12.

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erroneously sent a notice to plaintiff’s previous address even though plaintiff had filed a

notice of change of address. Id. Plaintiff learned of the decision when he returned to the

country after the limitations period had expired. Id. The district court held: “Because of

the agency’s error, plaintiff did not receive notice of the board's final decision. He was

entitled to rely on the statute’s requirement that it be given, and the running of the period

for appeal should not begin until notice is sent in accordance with the statute.” Id. at 89.

To the extent the Turner court interpreted the MLA’s limitations period as

beginning when a party is notified of the Secretary’s decision, we reject such an

interpretation for the reasons stated in Part II: The plain text of the MLA does not permit

a notice-based construction. The Turner decision can be read, however, as tolling the

limitations period because plaintiff did not receive notice of the IBLA decision until after

the limitations period had run. In the event that an agency fails to notify a claimant of its

decision until after a limitations period has expired, equitable tolling would clearly be

appropriate. See Bowen v. New York, 476 U.S. 467, 481 (1986) (“Where the

Government’s secretive conduct prevents plaintiffs from knowing of a violation of rights,

statutes of limitations have been tolled until such time as plaintiffs had a reasonable

opportunity to learn the facts concerning the cause of action.” (quotation omitted)).

This case also differs from Turner in an important manner. In Turner, the plaintiff

did not learn of the decision until after his limitations period had expired due to agency

error. In this case, the agency promptly notified the Energy Companies of the Secretary’s

decision but a few days into the limitations period. We rejected a request for equitable

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tolling under similar circumstances in Pfannenstiel v. Merrill Lynch, Pierce, Fenner &

Smith, 477 F.3d 1155 (10th Cir. 2007). There, plaintiff was subject to a three-month

limitations period beginning on the date he received an arbitrator’s decision. Id. at 1158.

Two months into that term, he received notice that the arbitrator had lost all of the

evidence submitted in the proceeding. Id. at 1157. Plaintiff filed a claim beyond the

limitations period based on the lost evidence and we rejected his request for equitable

tolling because the plaintiff

could have served the defendants before the expiration of the three-month
time limit. He had approximately one month left after he learned that the
evidence was no longer available in order to timely file his motion to
vacate, but he did not file it within that time period. The one-month time
period provided [plaintiff] ample opportunity to serve the defendants in a
timely fashion. Thus, equitable tolling does not apply.

Id. at 1158. Similarly, the D.C. Circuit routinely denies equitable tolling unless a delay in

notification “makes it impossible reasonably for the party to comply with the filing

statute.” Gardner v. FCC, 530 F.2d 1086, 1091 n.24 (D.C. Cir. 1976).

When the Energy Companies received notice that their leases would not be issued,

more than 80 days remained in their limitations periods. As in Pfannenstiel, they had

“ample opportunity” to file their claims in a timely manner. 477 F.3d at 1158. They do

not claim that the six-day delay between the Secretary’s decision and the BLM’s mailings

meaningfully limited their ability to comply with the MLA’s statute of limitations.

Despite their receipt of notice a few days into the limitations period, the Energy

Companies protest that they were unaware of the February 6 memo until it was served in

the IBLA appeal with 45 days remaining in the limitations period. We note that 45 days
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is still longer than the thirty days approved in Pfannenstiel, but can certainly imagine a

case in which a plaintiff is made aware of a decision but kept in the dark as to the precise

date the decision was made. And we agree that equitable tolling might be appropriate if

such a plaintiff missed the filing deadline based on ignorance of the date of decision.

This hypothetical plaintiff would qualify for equitable tolling because he would have

“been lulled into inaction by a defendant.” Clymore, 245 F.3d at 1199.

In the case at bar, however, the government fully apprised the Energy Companies

of its position on the limitations period. In the IBLA proceedings, the government

explicitly stated that February 6 was the operative date. Consistent with this position, it

challenged the Energy Companies’ reliance on the February 12 letters, arguing that “the

BLM letters merely implement the Secretary’s February 6, 2009 decision to withdraw the

subject parcels.” The Energy Companies confessed confusion as to “whether BLM’s

decision or the Secretary’s February 6 memorandum was final,” Robert L. Bayless

Producer, 177 IBLA at 84, but the IBLA could not comment on that issue citing the bar

on “advisory opinions regarding matters in an appeal that we have no authority to

consider,” id. at 85.

Thus, it is undisputed that the government communicated to the Energy

Companies its position that February 6 was the date of the Secretary’s decision, and the

companies acknowledged the possibility that the government’s position would hold sway.

See id. at 84-85. Despite this knowledge, the Energy Companies gambled. They filed

suit exactly 90 days after February 12, risking their claims on the court’s acceptance of

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their limitations theory. This gamble did not pay off, and equitable tolling does not

forgive “a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96. We

conclude the district court appropriately exercised its discretion by denying equitable

tolling.

IV

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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Nos. 11-4043 & 11-4057, Impact Energy Resources, LLC v. Salazar

LUCERO, J., concurring.

The MLA provides, plainly and unambiguously, 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. This restriction constitutes a condition on

the United States’ waiver of sovereign immunity and must be strictly construed.

Although my colleagues are led by the Energy Companies to import principles of final

agency action from the APA, I view the final agency action issue as a needless diversion

leading my colleagues on a wild goose chase for ambiguity that does not exist in the

phrase “final decision of the Secretary.” Id.

From a policy perspective, my colleagues make a sound point. The notion that a

statute of limitations may start running before a cause of action accrues appears improper

on its face. If writing on a blank slate, I may well have adopted the rule the Energy

Companies’ implicitly propose. But the Supreme Court has closed that door. In Dodd v.

United States, 545 U.S. 353 (2005), the Court was confronted with a statute’s

unambiguous pronouncement as to the beginning of a limitations period and held that the

plain text must be honored even if it “would make it possible for the limitations period to

expire before the cause of action accrues.” Id. at 360. Although the Court acknowledged

“the potential for harsh results in some cases,” it held that courts “are not free to rewrite

the statute that Congress has enacted” when a statute “clearly specifies the date on which

the limitation period begins to run.” Id. (quotation omitted).
 Following that directive, I conclude that the “final decision of the Secretary” in

this case occurred on February 6, 2009—the date of the Secretary’s last involvement in

this matter. Whether “final agency action” also occurred on that date is irrelevant.

I

As with any statute, the starting point of our sovereign immunity analysis “must be

the language employed by Congress, and we assume that the legislative purpose is

expressed by the ordinary meaning of the words used.” FTC v. Kuykendall, 466 F.3d

1149, 1154 (10th Cir. 2006) (quotation omitted). However, a waiver of sovereign

immunity “must be unequivocally expressed in statutory text, and will not be implied.

Moreover, a waiver of the [g]overnment’s sovereign immunity will be strictly construed,

in terms of its scope, in favor of the sovereign.” Iowa Tribe of Kan. & Neb. v. Salazar,

607 F.3d 1225, 1236 (10th Cir. 2010).

The district court’s decision that the MLA bars all of the Energy Companies’

claims is well-founded on the statute’s plain text. Although the Energy Companies argue

strenuously that the final decision of the agency did not occur until the February 12

letters were sent, the MLA speaks of the “final decision of the Secretary.” 30 U.S.C.

§ 226-2 (emphasis added). Whether the February 6 memo would qualify as final agency

action is a difficult question. My colleagues expertly lay out the arguments on both sides

of this issue. Despite the Energy Companies’ emphasis on the final agency action issue,

however, I see no reason to decide whether the February 6 memo qualifies.

Implicit in appellants’ argument is the premise that the MLA’s statute of

limitations could not begin to run until their cause of action under the APA accrued. But

-2-
this is not necessarily so. It is true that a “limitations period ordinarily does not begin to

run until the plaintiff has a complete and present cause of action.” Bay Area Laundry &

Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195 (1997)

(quotation omitted). In accordance with this norm, many federal statutes explicitly run

from the date a claim accrues. See, e.g., 26 U.S.C. § 7433(d)(3) (“[A]n action to enforce

liability created under this section may be brought without regard to the amount in

controversy and may be brought only within 2 years after the date the right of action

accrues.”); 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever

barred unless it is presented in writing to the appropriate Federal agency within two years

after such claim accrues . . . .”). And the Supreme Court has acknowledged the “default

rule that Congress generally drafts statutes of limitations to begin when the cause of

action accrues.” Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel

Wilson, 545 U.S. 409, 418 (2005); see also Reiter v. Cooper, 507 U.S. 258, 267 (1993).

However, the link between an accrual date and the beginning of a limitations

period is not absolute. In Graham County, the majority rejected the position that courts

should construe statutes to align the accrual and limitations period dates “regardless of

whether the text is ambiguous.” 545 U.S. at 419 n.2. Instead, the Court held that this

interpretive rule should be applied “to resolve that ambiguity, not to create it in the first

instance.” Id. Additional guidance on applying this principle was offered in Dodd v.

United States, 545 U.S. 353 (2005). There, the Court held that an unambiguous

limitations period start date must be followed even if it was “possible for the limitations

period to expire before the cause of action accrues.” Id. at 360. The Court distinguished

-3-
Graham County, noting the statute in that case was “ambiguous, justifying the Court’s

partial reliance on the standard rule that the limitations period commences when the

plaintiff has a complete and present cause of action.” Id. Despite “the potential for harsh

results,” the Court held, a statute that “clearly specifies the date on which the limitation

period begins to run” must be given controlling effect. Id. (quotation omitted); see also

Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1333 (Fed. Cir. 2011)

(“Congress is free to provide the ‘odd result’ of a cause of action that arises at a time

different from the beginning of a statute of limitations.”) cert. denied, 132 S. Ct. 1908

(2012).

This court has also held that a limitations period may begin to run before a

plaintiff has a complete cause of action. In Salisbury v. Hartford Life & Accident Ins.

Co., 583 F.3d 1245 (10th Cir. 2009), we enforced a contractual ERISA limitations period

that began running prior to exhaustion of administrative remedies. See id. at 1248-49.

We recognized that “a benefits claimant must pursue the administrative process to its

conclusion before filing an ERISA suit,” and thus a claimant could not prevail in a suit

prior to exhaustion. Id. at 1249. But we rejected plaintiffs’ argument that such a

limitations period is unenforceable merely because it “allowed the claimant’s cause of

action to accrue before the end of the administrative process.” Id. Noting that equitable

tolling and other “[l]ess drastic remedies” could correct potential inequities caused by

such a system, we joined the Seventh Circuit in ruling that such limitations period are

permissible. Id. at 1248, 1249 (citing Abena v. Metro. Life Ins. Co., 544 F.3d 880, 884

(7th Cir. 2008)).

-4-
 In accord with Dodd, I would abide the rule that if “the statute’s language is plain,

the sole function of the courts—at least where the disposition required by the text is not

absurd—is to enforce it according to its terms.” 545 U.S. at 359 (quotation omitted).

The MLA unambiguously starts the limitations clock when the Secretary makes a final

decision, not when the BLM engages in final agency action. “It is for Congress, not this

[c]ourt, to amend the statute if it believes that the interplay of [these two statutes] unduly

restricts” litigants’ ability to obtain relief. Id. at 359-60.

II

Looking to the specific actions of the Secretary in this matter, it is clear that his

decision was final when he sent the February 6 memorandum. Following that

memorandum, the Secretary was wholly uninvolved in this matter. One would be hard-

pressed to interpret the phrase “final decision of the Secretary,” id., as referring to a

subordinate’s transmittal of the Secretary’s directive. The dissent suggests this

conclusion is not entirely clear. (Dissenting Op. 8-9.) Respectfully, I disagree. We must

employ the “ordinary, everyday meaning” of the MLA. See Jonson v. Comm’r, 353 F.3d

1181, 1184 (10th Cir. 2003) (quotation omitted). In everyday usage, a decision’s finality

does not depend on subsequent re-transmittal.

My colleagues take the position that the relevant passages of the MLA and APA

must have the same meaning because both statutes require finality. (See Concurring Op.

2-6; Dissenting Op. 5-7.) Borrowing from the APA jurisprudence regarding finality, they

suggest that the Secretary’s decision could not have been final unless he took some action

that “mark[ed] the consummation of the agency’s decision[-]making process” and was

-5-
“one by which rights or obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (quotations

omitted).

Although I agree that the term “final” has the same meaning in both statutes—its

plain and ordinary meaning—I do not agree that “agency action” and “decision of the

Secretary” have identical import. The characteristics that render one event “final” are not

generally applicable to all events. The school day is final, for example, when the closing

bell rings. But the ringing of a bell does not signal the end of a race; races become final

when the last runner crosses the finish line.

By the same token, there can be no doubt that agency action becomes final when

an event marks the consummation of the agency’s decision-making process. See id. But

the Secretary’s decision does not become final when the agency has finalized its process;

the Secretary’s decision is final when the Secretary has completed his decision-making

process. And the Secretary completed his deliberative process on February 6. He had

literally no further involvement in this matter after that date.

Similarly, the requirement that final agency action “be one by which rights or

obligations have been determined, or from which legal consequences will flow,” id.

(quotations omitted), stems directly from the APA. That statute provides a right of action

for individuals “suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action.” 5 U.S.C. § 702. Until legal consequences are fixed, agency

action will not qualify as final. But it does not follow that every statute using the word

“final” contemplates impact on the legal rights of a litigant. One can easily envision an

-6-
agency process in which Secretarial approval precedes some formal, rights-fixing step,

such as recording a deed. It may be that a trip to the recorder’s office is necessary before

the agency action can be considered final. But the Secretary’s involvement ends before

that formal step is taken, and thus his decision would be “final” under the common usage

of that word.

Consistent with Dodd, I would apply the unambiguous meaning of the MLA and

conclude that the final decision of the Secretary in this case occurred on February 6. His

decision was final at that point regardless of any subsequent action by agency

subordinates.

III

I must acknowledge that a plain-text construction of the MLA allows for severity

in certain instances. But three factors mitigate the potential for unjust results. First, this

case is complicated by the unusual procedural posture. In a typical case, a decision

moves up the administrative chain of command; a BLM office or bureau renders a

decision, and a party adversely affected by that decision may appeal to the IBLA. See 43

C.F.R. § 4.410. The IBLA’s decision usually ends the agency’s proceedings. See 43

C.F.R. § 4.403. In this case, however, the Secretary exercised his prerogative to step into

an ongoing agency proceeding. See 43 C.F.R. § 4.5 (Secretary possesses the “authority

to take jurisdiction at any stage of any case before any employee or employees of the

Department” and the “authority to review any decision of any employee or employees of

-7-
the Department”).1 Although the relevant rules expressly allow for such a procedure, it is

unusual for the Secretary to personally decide a leasing dispute. In the vast majority of

cases, the date an MLA limitations period begins will also clearly be the date of final

agency action.

Second, I note that the primary problem caused by starting a limitations period

prior to a public decision is also present under the Energy Companies’ proffered

interpretation. Divergent limitation and accrual dates necessarily result in the loss of

some portion of a limitations period. That is, the lag between an event triggering a statute

of limitations and accrual of a claim leaves a plaintiff with something less than the full

limitations period to prepare her suit. In extreme cases, the limitations period could be

consumed entirely before a cause of action accrues. See Dodd, 545 U.S. at 360 (noting

potential for “the limitations period to expire before the cause of action accrues”).

But this issue also exists if we accept the Energy Companies’ contention that the

February 12 letters started the MLA clock. These letters were mailed on February 12, but

1
The Energy Companies argue that the Secretary has delegated the authority to
manage oil and gas lease to the BLM and thus cannot issue a final decision on such
matters. See Onshore Oil and Gas, General, 48 Fed. Reg. 36,582 (Aug. 23, 1983) (“All
of the Department of the Interior’s non-royalty responsibilities related to the approval and
supervision of operations on onshore Federal and Indian (except Osage) and oil and gas
leases have been consolidated within the Bureau of Land Management.”). But this
argument misunderstands agency delegation. The Secretary’s decision to empower the
BLM merely allows the agency to act in the Secretary’s stead; it does not render the
servant the master. See Schraier v. Hickel, 419 F.2d 663, 667 (D.C. Cir. 1969) (“[T]he
Secretary does not lose his ultimate [MLA] authority because the Department officials
assumed that appellant would be awarded a lease if he were found to qualify in all
respects under pending regulation.”). As 43 C.F.R. § 4.5 makes clear, the Secretary has
independent authority to overrule subordinate officials, and actions ordered by the
Secretary himself are not administratively appealable. See 43 C.F.R. 4.410(a).
-8-
were presumably not received until a few days later. Thus, under either party’s

interpretation, the Energy Companies would not have had the full 90-day limitations

period to prepare their claims. This is true of every statute of limitations other than those

that begin with notice. Compare 42 U.S.C. § 1395oo(f) (limitation period begins with

notice) with 8 U.S.C. § 2401(b) (tort claims against the United States must be brought

within “six months after the date of mailing . . . of notice of final denial of the claim by

the agency”). Regardless of whether the limitations period began on February 6 or

February 12, the Energy Companies logically could not have filed a claim until at least

some portion of the limitations period had passed.

The dissent suggests that this analogy is inapt because mailing a letter to an

affected party “serves the important goal of making statute-of-limitations disputes easy to

resolve—a court need only look to a letter’s postmark or an email’s timestamp.”

(Dissenting Op. 19.) But the same is true of the Secretary’s February 6 memorandum.

That transmittal similarly contains an easy-to-prove date that made “it simple for the

recipient to calculate the amount of time he has to challenge the decision.” (Id.) I further

note that the Energy Companies were made well aware of the importance of the February

6 date during agency proceedings, and had adequate opportunity to file a timely suit. The

plain-text approach differs in degree from the Energy Companies’ proposal, but not in

kind.

Third, the parade of horribles regarding secret agency decision-making is largely

mitigated by the availability of equitable tolling. As the Supreme Court explained in

Irwin, we employ a “rebuttable presumption” that equitable tolling is available even

-9-
when a statute of limitations is a condition on the waiver of sovereign immunity. 498

U.S. at 95-96. Courts are thus empowered to avoid truly inequitable outcomes through

tolling—a distinct issue from the proper interpretation of a statute of limitations. I am

fully confident that courts will utilize this doctrine in appropriate cases to preclude

agencies from playing fast and loose with limitations periods.

Although these factors help to alleviate the potential for unjust results, my views

on this case rest ultimately on the clear language of the MLA. The Supreme Court has

emphasized that we may not disregard the plain text of a statute that “clearly specifies the

date on which the limitation period begins to run.” Dodd, 545 U.S. at 360. That

admonition is especially appropriate in this case because the MLA’s limitation period

constitutes a condition on the United States’ waiver of sovereign immunity, and thus

must “be strictly construed, in terms of its scope, in favor of the sovereign.” Iowa Tribe

of Kan. & Neb., 607 F.3d at 1236. Regardless of the various APA provisions upon which

the Energy Companies rest their case, we must apply the MLA as written. Accordingly, I

conclude that the limitations period began to run on February 6, when the Secretary made

his final decision.

-10-
11-4043, Impact Energy Resources v. Salazar

SEYMOUR, J., concurring.

I fully join the per curiam opinion. Judge Lucero and I agree that the

statute of limitations begins to run under the Mineral Leasing Act (“MLA”) with

the “final decision of the Secretary,” 30 U.S.C. § 226-2, not when the plaintiffs

receive notice required by the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 555(e). See Per Curiam Op. at 11-12. We also agree that the Energy

Companies’ suit was untimely because the Secretary’s “final decision” occurred

before February 12. Finally, we agree that the district court did not abuse its

discretion by denying equitable tolling to the Energy Companies. See id. at 14-

17.

I also agree that the phrase “final decision of the Secretary” in § 226-2 of

the MLA is unambiguous. But contrary to Judge Lucero’s view, it seems clear to

me that when the Secretary makes a final decision for MLA purposes he is also

taking “final agency action” pursuant to the APA. 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.

Accordingly, I agree with Judge Tymkovich that the decision to withdraw the

leases at issue in this case could not have been sufficiently “final” to trigger the

statute of limitations without also being “final” for the purposes of the APA.
 A.

Judge Lucero concludes that the “final decision of the Secretary” could

occur for statute of limitations purposes even if it did not constitute “final agency

action.” Lucero Op. at 6. In so doing, he unnecessarily complicates the MLA’s

statute of limitations and ignores decades of administrative law construing the

word “final” in various statutes consistently with the APA.

The word “final” has a settled meaning in administrative law. 1 Agency

action is “final” for purposes of the APA, 5 U.S.C. § 704, when two conditions

are satisfied: “First, the action must mark the ‘consummation’ of the agency’s

decisionmaking process – it must not be of a merely tentative or interlocutory

nature. And second, the action must be one by which ‘rights or obligations have

been determined,’ or from which ‘legal consequences will flow.’” Bennett v.

Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).

The requirement of finality before judicial review is more than a mere

formality. It acts as a restraint on unnecessary and premature judicial

1
To the extent one might find the phrase “final decision of the Secretary”
to be ambiguous, I would still apply the APA’s definition of “final.” Statutes that
are in pari materia – dealing with the same subject matter – should be construed
consistently with each other. See Planned Parenthood of Rocky Mountains
Servs., Corp. v. Owens, 287 F.3d 910, 923 n.13 (10th Cir. 2002); Erlenbaugh v.
United States, 409 U.S. 239, 243 (1972) (“The rule of in pari materia . . . is a
reflection of practical experience in the interpretation of statutes: a legislative
body generally uses a particular word with a consistent meaning in a given
context.”). Because the APA and § 226-2 of the MLA both concern judicial
review of administrative actions, the two should be construed consistently.

-2-
intervention in administrative decisionmaking. As such, it is intertwined with the

ripeness doctrine, see Coal. for Sustainable Res., Inc. v. U.S. Forest Serv., 259

F.3d 1244, 1250 (10th Cir. 2001), which “prevent[s] the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also . . . protect[s] the agencies

from judicial interference until an administrative decision has been formalized

and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967). Even when a substantive statute – instead

of the APA – authorizes judicial review of agency action, there is a “strong

presumption” that “judicial review will only be available when agency action

becomes final.” Bell v. New Jersey, 461 U.S. 773, 778 (1983).

When interpreting the meaning of the word “final” in statutes using that

term in relation to judicial review of agencies, courts commonly apply the APA’s

meaning of “final.” In Whitman v. American Trucking Associations, 531 U.S.

457, 478 (2001), the Court explained that the phrase “final action” in the Clean

Air Act “bears the same meaning” as it does under the APA. 2 As Judge

Tymkovich rightly points out, Whitman was no aberration. Federal courts

2
The Clean Air Act provides for judicial review of the promulgation of
various air quality regulations and other “final action[s] taken, by the
Administrator” of the Environmental Protection Agency. 42 U.S.C. § 7607(b)(1).
A petition for review must generally be filed “sixty days from the date notice of
such promulgation, approval, or action appears in the Federal Register.” Id.

-3-
regularly apply the APA’s meaning of “final” to other statutes using the term in

relation to judicial review of agency actions and decisions. See Tymkovich Op. at

6-7 (collecting cases); see also, e.g., Omnipoint Holdings, Inc. v. City of

Cranston, 586 F.3d 38, 46-47 (1st Cir. 2009) (applying Bennett framework to

define “final action” in Telecommunications Act of 1996); Manufactured Housing

Inst. v. U.S. Envtl. Protection Agency, 467 F.3d 391, 397 (4th Cir. 2006)

(applying Bennett to “final action of the Administrator” under Safe Drinking

Water Act).

I see no sound reason to depart from this practice and adopt a novel

definition of “final” for the MLA’s statute of limitations. There is no indication

in the MLA that Congress intended “final” to mean something different than it

does in administrative law generally. In the absence of such indication, and given

the presumption that a statute of limitations begins to run when the cause of

action accrues, see Lucero Op. at 3 (citing Bay Area Laundry & Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195 (1997)), we

should interpret the MLA consistently with the APA. 3

3
Of course, the default rule that a statute of limitations runs when the cause
of action accrues is not absolute. But I disagree with Judge Lucero that Graham
County and Dodd push us to start the clock in this case before the cause of action
accrued. See Graham Cnty. Soil & Water Conservation Dist. v. United States ex
rel. Wilson, 545 U.S. 409 (2005); Dodd v. United States, 545 U.S. 353 (2005).
Neither Dodd nor Graham County involved judicial review of agency action, and
neither case sheds any light on whether the text of the MLA’s statute of
limitations is ambiguous. To the extent these cases are relevant, however,

-4-
 Judge Lucero agrees that “final” has the same meaning in both the MLA

and APA, but disputes “that ‘agency action’ and ‘decision of the Secretary’ have

identical import.” Lucero Op. at 6. This misses the mark. Here, the “agency

action” under review is the “decision of the Secretary” to withdraw the leases.

The APA defines “agency” to mean “each authority of the Government of the

United States,” 5 U.S.C. § 551(1). This certainly includes the Secretary of the

Interior when he is acting for the agency, as he was in this case. Thus, a

“decision of the Secretary” to withdraw oil and gas leases under the MLA

constitutes “agency action” under the APA.

The text of the MLA’s statute of limitations also indicates that the

contested agency action is the same as the decision of the Secretary: the ninety-

day limitations period applies to actions “contesting a decision of the Secretary.”

30 U.S.C. § 226-2. Because “agency action” and “decision of the Secretary” refer

to the same event, the latter could not be final without the former also being so.

Even if “agency action” and “decision of the Secretary” could refer to

separate events, Whitman counsels us to place little emphasis on this distinction:

The bite in the phrase “final action” . . . is not in the word “action,”
which is meant to cover comprehensively every manner in which an
agency may exercise its power. It is rather in the word “final,”

Graham County counsels that Judge Lucero’s recommended interpretation of 30
U.S.C. § 226-2 is to be avoided. Where “there are two plausible constructions of
a statute of limitations, we should adopt the construction that starts the time limit
running when the cause of action . . . accrues.” Graham Cnty., 545 U.S. at 419.

-5-
 which requires that the action under review mark the consummation
of the agency’s decisionmaking process.

Whitman, 531 U.S. at 478 (citations and internal quotation marks omitted).

Similarly, the bite in the phrase “final decision of the Secretary” is in the word

“final.” The statute of limitations in this case only began to run when the

Secretary’s decision to withdraw the leases bore the hallmarks of finality: a

consummation of decisionmaking from which legal consequences flowed. See

Bennett, 520 U.S. at 177-78.

B.

Applying the Bennett framework to the events at issue here supports the

conclusion that the “final decision of the Secretary” occurred February 6 at the

latest. 4 Once Secretary Salazar issued the February 6 memorandum to BLM, his

decision to withdraw the leases bore sufficient hallmarks of finality to trigger the

MLA’s statute of limitations, 30 U.S.C. § 226-2.

First, the decision was “consummated” by February 6 at the latest. See

Bennett, 520 U.S. at 178. Several aspects of the February 4 announcement and

4
We need not decide whether the Secretary’s decision was final on
February 4, the date the Secretary publicly announced his decision, or February 6,
the date he documented the decision in accordance with the Department’s
regulations. The plaintiffs’ complaint was untimely regardless of whether
February 4 or February 6 started the ninety-day limitations period. See
Carter/Mondale Presidential Comm., Inc. v. Fed. Election Comm’n, 711 F.2d 279,
287 (D.C. Cir. 1983) (“We need not select between [the two possible dates],
however, because the date the Committee eventually filed its petition . . . was
long past the 30-day period triggered by either time.”).

-6-
February 6 memorandum demonstrate that this was so. In the February 4 press

release, Secretary Salazar announced that the decision had already been made.

See App. at 50 (“I have directed Bureau of Land Management not to accept the

bids on the 77 parcels . . . .” (emphasis added)). The announcement admitted of

no hesitation and offered no indication that the decision was either “tentative or

interlocutory in nature.” Bennett, 520 U.S. at 178. It simply indicated that his

decisionmaking was complete.

More importantly, the Secretary himself – not a subordinate official – made

the decision to withdraw the leases. “An agency action is not final if it is only

‘the ruling of a subordinate official,’ or ‘tentative.’” Franklin v. Massachusetts,

505 U.S. 788, 797 (1992) (quoting Abbott Labs. v. Gardner, 387 U.S 136, 151

(1967)). When BLM makes a leasing decision, an adversely affected party may

ordinarily appeal the decision to the Interior Board of Land Appeals (“IBLA”).

43 C.F.R. § 4.410(a). The IBLA will then usually render the final decision on the

matter. 5 Id. § 4.403(a) (“The Board’s decision is final agency action and is

effective on the date it is issued, unless the decision itself provides otherwise.”).

Where “a decision has been approved by the Secretary,” however, the IBLA lacks

authority to hear such an appeal. Id. § 4.410(a)(3).

5
The Secretary has discretion to review decisions issued by the IBLA. See
43 C.F.R. § 4.5(a)(2); cf. United States v. Navajo Nation, 537 U.S. 488, 496 n.3
(2003) (interpreting § 4.5(a) as allowing the Secretary to review decisions by the
Board of Indian Appeals).

-7-
 In this case, the Secretary himself intervened to make the final decision.

See id. § 4.5(a). As a result, once Secretary Salazar issued his written directive to

BLM to withdraw the leases, no additional agency review was permissible under

the law. 6 The Secretary’s memo indicates no departure from this practice. It did

not grant any discretion to BLM officials regarding the withdrawal. Instead it

directed BLM to comply with the decision to withdraw the leases. See App. at 52

(“I am directing you to withdraw the 77 parcels . . . . [P]lease take all necessary

actions to effectuate this withdrawal . . . .”). Because the Secretary’s directive to

BLM was unreviewable, the agency had “completed its decision-making process,”

Franklin, 505 U.S. at 797.

Second, legal consequences flowed from the Secretary’s decision. When

the Energy Companies were recognized as high bidders on the leases, they were

informed that the issuance of the leases was contingent on resolution of any

protests. As a result, the Energy Companies were on notice that their right to the

leases was not absolute. When the Secretary effectively decided the protest issues

and directed BLM to withdraw the leases, whatever authority BLM had to proceed

6
Under the Department of the Interior’s regulations, when the Secretary
personally assumes jurisdiction of a case or reviews a decision made in the
agency, a written decision must be issued. 43 C.F.R. § 4.5(c). On February 6,
Secretary Salazar provided that written documentation of his decision by signing
and issuing a memorandum to BLM’s Utah State Director.

-8-
with issuing the leases evaporated. 7 As already explained, the Secretary’s

decision was unreviewable, and BLM officials had no choice but to comply. The

Secretary’s directive to BLM therefore conclusively determined that the leases

would not be issued to the Energy Companies.

It is clear that BLM officials believed the Secretary’s decision had

conclusively determined the legal rights of the Energy Companies even before he

committed the decision to writing on February 6. On February 5, both the

government’s motion filed in the D.C. District Court and the Utah State

Director’s memo reflected that the Secretary had completed his decisionmaking

and the leases would no longer be issued. The February 5 memorandum

requested a written decision only “to document the process.” Fed. Aple. Supp.

App. at 7. It offered no indication that the decision had not yet been made, or

that BLM believed itself to be free to proceed with issuing the leases until it

received the written documentation of the Secretary’s decision. By the same

token, the government informed the D.C. District Court that the Secretary’s

decision had been made: “Accordingly, those leases will not be issued.” Fed.

Defs. Unopposed Motion to Stay Briefing Schedule, S. Utah Wilderness Alliance

v. Allred, No. 08-2187 (D.D.C. Feb. 5, 2009), ECF No. 66. Thus, legal

consequences flowed from the Secretary’s directive to BLM.

7
Of course, the leases were already subject to a temporary restraining order
from the D.C. District Court.

-9-
 Judge Tymkovich argues that the February 6 memo could not be the final

agency action here because the memo did not withdraw the leases but instead

anticipated that further steps would be needed to effectuate the withdrawals. See

Tymkovich Op. at 12-13. Respectfully, I disagree. The steps that followed,

including the February 12 letters to the Energy Companies, were nothing more

than ministerial tasks carrying out the Secretary’s directive. In these short letters,

subordinate officials merely notified the high bidders that Secretary Salazar had

“directed the BLM to withdraw these parcels.” Aplt. Add. at 24. The letters did

not provide any rationale for the withdrawal. They did not determine the legal

rights of the recipients; Secretary Salazar had already definitively determined the

leases would not be issued. As such, the letters do not undermine the finality of

the Secretary’s order to withdraw the leases. When the head of an agency

conclusively renders a decision determining the rights of the parties, that decision

is final notwithstanding that subordinate officials are needed to implement the

decision. Ctr. For Native Ecosystems v. Cables, 509 F.3d 1310, 1329 (10th Cir.

2007) (“If an agency has issued a definitive statement of its position, determining

the rights and obligations of the parties, the agency’s action is final

notwithstanding the possibility of further proceedings in the agency on related

issues, so long as judicial review at the time would not disrupt the administrative

process.” (internal quotation marks and alterations omitted)).

Judge Tymkovich’s dissent also denies that the agency action could have

-10-
been final by February 6th because agency regulations require the Secretary’s

“written decision” to be “issued,” 43 C.F.R. § 4.5(c), and, in its view, no issuance

occurred until the letters were transmitted to the affected parties. See Tymkovich

Op. at 13. Notably, however, the provision does not expressly require the

“written decision” to be “issued” to the affected parties. Instead, it provides:

If the Secretary or Director assumes jurisdiction of a case or reviews
a decision, the parties and the appropriate Departmental personnel
will be advised in writing of such action, the administrative record
will be requested, and, after the review process is completed, a
written decision will be issued.

Id. Although notice is required, it is at least arguable whether the “written

decision” itself must be transmitted to the affected parties.

The dissent relies on Southern Pacific Pipe Lines, Inc. v. U.S. Dep’t of

Transportation, 796 F.2d 539, 540 n.1 (D.C. Cir. 1986), to bolster its claim that

the Secretary’s decision was not “issued” until the February 12 letters were sent.

In Southern Pacific, the court held that regulations were “issued” and triggered a

statute of limitations when published in the Federal Register. But in reaching that

conclusion, the court emphasized the “parties agree[d] that there was no public

notice of the final regulations prior to their publication in the Federal Register,

and that [the plaintiff] had no actual notice of the regulations prior to that date.”

Id. Here, in contrast, there was public notice of the withdrawal of leases prior to

February 12, because the decision was announced publicly via press release, press

conference, and on the internet. Nor was actual notice lacking; the Energy

-11-
Companies have never claimed they were unaware of the withdrawal of the leases

until they received the letters. Thus, Southern Pacific is inapposite.

Certainly the Department of the Interior could have handled this process

differently. The February 6 memorandum could have been labeled a “decision,”

the press release could have been issued after the memorandum had been sent to

BLM, and the affected parties could have been told the specific date that this

decision had occurred. But the agency’s sloppiness does not render the

Secretary’s decision to withdraw the leases any less final or legally binding. Cf.

Whitman, 531 U.S. at 479 (“Though the agency has not dressed its decision with

the conventional procedural accoutrements of finality, its own behavior thus

belies the claim that its interpretation is not final.”). And, as the Per Curiam

Opinion explains, the issues of notice go to tolling, not to finality. See Per

Curiam Op. at 12, 14-17.

C.

Judge Tymkovich offers a parade of horribles that might follow from our

decision that the Energy Companies’ suit was untimely. See Tymkovich Op. at

17-19. Respectfully, I believe these concerns are unwarranted. The Secretary’s

decision to withdraw the leases does not remotely resemble the secret decisions

and internal deliberations that the dissent fears will now trigger judicial review.

The withdrawals were not made in secret. Instead, they were trumpeted through a

press release, on the internet, and in news reports. The government announced

-12-
the withdrawal again on February 5 through a document filed in federal court,

providing actual notice to at least one of the plaintiffs and several plaintiff

attorneys. A “secret decision” by an agency could certainly raise concerns about

finality and notice, but that is not the case before us. Cf. Mesa Airlines v. United

States, 951 F.2d 1186, 1188 (10th Cir. 1991) (ALJ decision was “entered” and

final when ALJ signed and dated order and made it public); ITT World Commc’ns,

Inc. v. FCC, 621 F.2d 1201, 1209 (2d Cir. 1980) (Mansfield, J., concurring)

(agency action was “final” and statute of limitations began to run when agency

held public meeting and issued news release of meeting minutes notwithstanding

that full opinion was not released until several weeks later). 8

The dissent also suggests that because the Secretary might have “changed

his mind,” his decision was not final until effectuated by BLM. Tymkovich Op.

at 15. I disagree. “[T]he mere possibility of future agency reconsideration” does

not defeat finality. 16 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice & Procedure § 3942 (3d ed. 2008); see, e.g., Finer

Foods, Inc. v. U.S. Dep’t of Agric., 274 F.3d 1137, 1139 (7th Cir. 2001) (“The

prospect that some future administrative case may (or may not) begin does not

make the ongoing suspension any the less final.”). The Secretary’s decision to

withdraw the leases and his reasons for doing so were clearly expressed in the

8
Judge Mansfield’s concurrence received a second vote and was
controlling as to this issue.

-13-
press conference, the press release, and the memorandum. No entity within the

Department of the Interior had the authority to review his decision. Agency

lawyers even asked a federal court to rely on the withdrawal decision. Some

speculation that Secretary Salazar would suddenly reverse course cannot defeat

the finality of his decision.

In sum, by February 6 Secretary Salazar had declared in a written statement

that the leases would not be issued, had publicly announced that decision, and had

ordered subordinate officials to complete the ministerial steps required to

effectuate withdrawing the leases from the sale. All of the hallmarks of finality

were present. Because the “final decision of the Secretary,” 30 U.S.C. § 226-2,

occurred no later than February 6, the Energy Companies’ complaint was

untimely.

-14-
11-4043 Impact Energy Resources, Inc. v. Salazar

TYMKOVICH, J., dissenting.

The per curiam opinion allows the Secretary of the Interior to make a non-public

final decision and start the clock on judicial review of that decision, even if the

Department tells no one about it. This result cannot be what Congress intended when it

subjected decisions of the Secretary under the Mineral Leasing Act (MLA) to a ninety-

day judicial review period.

I agree with Judge Seymour that final agency action commences the applicable

limitations period. But I disagree with both of my colleagues that the Secretary’s

undisclosed internal memorandum meets the test of finality. Therefore I respectfully

dissent.

I.

First, a little background. In the early days of federal oil and gas prospecting, the

Secretary of the Interior had wide discretion to grant or deny prospecting permits free

from any judicial oversight. See United States ex rel. McLennan v. Wilbur, 283 U.S. 414,

419 (1931). Congress reaffirmed the Secretary’s discretion in 1935, when it switched the

prospecting system to a leasing system. See Haley v. Seaton, 281 F.2d 620, 624 (D.C.

Cir. 1960).

In 1946, however, Congress, with the passage of the Administrative Procedure Act

(APA), authorized judicial oversight of the Secretary’s decisions. The default six-year

statute of limitations for claims against the United States applied to leasing disputes with
the Department of the Interior. See 28 U.S.C. § 41(20) (1940). In 1960, responding to

complaints about excessive delay in leasing decisions and to “remove a potential cloud on

acreage subject to leasing,” S. Rep. 86-1549 at 3317 (June 10, 1960), Congress

determined that the period for challenging a leasing decision should be limited to ninety

days: “No 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 (emphasis

added).

II.

Our task here is twofold: first to interpret the meaning of the statutory phrase,

“final decision of the Secretary,” and then to determine when, in this case, a final decision

actually occurred. In my view, Judge Lucero’s concurrence gives undue emphasis to the

word “decision” while ignoring its equally-significant modifier, “final.” I agree with

Judge Seymour’s concurrence that, for a decision to be “final,” it must satisfy certain

hallmarks of finality that are well-established in our precedents. But those hallmarks

were not present until the Secretary’s decision was issued to the affected parties on

February 12, 2009.

A. Principles of Construction

In interpreting a statute of limitations, we apply a strong presumption that the

statutory period begins to run at the same time the affected party’s cause of action

accrues. “Congress legislates against the ‘standard rule that the limitations period

-2-
commences when the plaintiff has a complete and present cause of action.’” Graham

Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418

(2005) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp.

of Cal., Inc., 522 U.S. 192, 201 (1997)). Thus, “where . . . there are two plausible

constructions of a statute of limitations, we should adopt the construction that starts the

time limit running when the cause of action . . . accrues.” Id. When Congress intends to

depart from this presumption, it does so “clearly.” Dodd v. United States, 545 U.S. 353,

360 (2005) (interpreting AEDPA’s statute of limitations).

Here, the cause of action is created not by the MLA itself, but by the APA. A

cause of action accrues under the APA upon the occurrence of a “final agency action.” 5

U.S.C. § 704. Therefore, we start with the presumption that the MLA’s statute of

limitations begins to run at the time of the “final agency action” in question. But, as

Judge Lucero’s concurrence points out, the MLA uses the phrase “final decision of the

Secretary” instead of “final agency action” to describe the point at which the limitations

period begins to run. The question, then, is whether this difference in wording should be

interpreted to alter the presumption.

As Judge Lucero’s concurrence rightly notes, this principle of construction is

intended only to “resolve . . . ambiguity, not to create it in the first instance.” Graham

Cnty., 545 U.S. at 418. But as I explain further below, I conclude that the word “final”

carries an unambiguous and determinative meaning found in several of our precedents,

and thus the presumption is not strictly necessary to my analysis. I nonetheless raise it to

-3-
emphasize that insofar as one believes there is any ambiguity in the meaning of “final

decision of the Secretary,” that ambiguity should be resolved in favor of the affected

parties.

While Judge Lucero’s concurrence likewise finds “final decision of the Secretary”

to be unambiguous, it, too, invokes a principle of construction—the general proposition

that “a waiver of the [g]overnment’s sovereign immunity will be strictly construed, in

terms of its scope, in favor of the sovereign.” Iowa Tribe of Kan. & Neb. v. Salazar, 607

F.3d 1225, 1236 (10th Cir. 2010). But the Supreme Court has applied the presumption

that a statute of limitations runs from the time the cause of action accrues in the context of

a section 1983 suit, see Wallace v. Kato, 549 U.S. 384, 388 (2007), despite the fact that a

Congressional abrogation of state sovereign immunity, like a waiver of federal immunity,

is strictly construed, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989). The

Court has also relied on this presumption in the federal habeas context. See Johnson v.

United States, 544 U.S. 295, 305 (2005) (citing Bay Area Laundry, 522 U.S. at 195). Our

own court, too, has applied this presumption against the federal government. See United

States v. Rodriguez-Aguirre, 264 F.3d 1195, 1210 (10th Cir. 2001).

In light of these precedents, I see no reason not to adhere to the standard

presumption that statutes of limitations should be interpreted to run from the time the

cause of action accrues.1

1
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990), does not command
otherwise. There, it was undisputed that the plaintiff missed a statutory filing deadline;

-4-
 B. Finality

Judge Lucero’s concurrence goes on to posit that a “final decision of the

Secretary” occurs whenever the Secretary has made up his mind. Thus, the February 6

memorandum must be the Secretary’s final decision because, “the Secretary completed

his deliberative process on February 6. He had literally no further involvement in this

matter after that date.” Lucero Concurrence at 6. The problem with this interpretation is

that it gives short shrift to the word “final,” and is sharply at odds with the way we have

interpreted that word in the past.

In the context of judicial review of administrative action, “final” carries a specific

meaning demarcating the point at which the agency (or secretarial) decision-making

process ends and the potential for judicial oversight begins. Although courts have not had

occasion to examine the meaning of “final” in the MLA context specifically, they have

done so extensively with regard to the APA.

Under the APA, two conditions must be met for an agency action to be final: the

action (1) must be a “consummation” of the decision-making process, and (2) “must be

one by which ‘rights or obligations have been determined,’ or from which ‘legal

consequences will flow.’” Bennett v. Spear, 520 U.S. 154 at 177–78 (1997) (citations

omitted). We have said, “[i]f an agency has issued a ‘definitive statement of its position,

the only question was whether equitable tolling was potentially available. See id. at 95. I
agree that equitable tolling is inappropriate in this case—though it may be worth noting
that the Court in Irwin actually ruled in favor the plaintiff, finding that application of
equitable tolling was presumptively permissible. See id. at 96.

-5-
determining the rights and obligations of the parties,’ the agency’s action is final . . . so

long as ‘judicial review at the time [would not] disrupt the administrative process.’” Ctr.

for Native Ecosystems v. Cables, 509 F.3d 1310, 1329 (10th Cir. 2007) (quoting Bell v.

New Jersey, 461 U.S. 773, 779–80 (1983)). A decision is consummated when it is

“definitive, immediately effective, and directly and immediately affect[s] petitioners’

daily business activities.” Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 151–53

(1967)).

There is no reason to believe that Congress intended “final” as used in the MLA to

have an altogether different meaning than in the APA. That the word modifies “decision

of the Secretary” instead of “agency action” does not suggest otherwise. As the Supreme

Court observed in finding that “final” meant the same thing in the APA as it did in the

Clean Air Act:

The bite in the phrase “final action” . . . is not in the word “action,” which is
meant to cover comprehensively every manner in which an agency may
exercise its power. It is rather in the word “final,” which requires that the
action under review mark the consummation of the agency’s
decisionmaking process. Only if the [agency] has rendered its last word on
the matter in question is its action “final” and thus reviewable.

Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001) (citations and quotation marks

omitted).

Other courts have applied the APA definition of “final” to other statutes using that

word in the context of judicial review. See, e.g., In re Aiken County, 645 F.3d 428, 437

(D.C. Cir. 2011) (applying the Bennett framework to “final decision or action of the

-6-
Secretary” under the Nuclear Waste Policy Act); Pub. Util. Dist. No. 1 of Snohomish

Cnty. v. Bonneville Power Admin., 506 F.3d 1145, 1151–52 (9th Cir. 2007) (“The

[Northwest Power] Act does not specify what constitutes a ‘final’ agency action, so we

have looked to the ‘more general doctrine of finality in administrative agency law.’”

(quoting Puget Sound Energy, Inc. v. United States, 310 F.3d 613, 624 (9th Cir. 2002))).

The Court of Appeals for the D.C. Circuit was confronted with an issue strikingly

similar to the one we face here in John Doe, Inc. v. DEA, 484 F.3d 561, 566 (D.C. Cir.

2007). The court analyzed whether a decision of the Attorney General was “final” for the

purposes of the Controlled Substances Act, which stated “any person aggrieved by a final

decision of the Attorney General may obtain review of the decision in the [D.C. Circuit].”

21 U.S.C. § 877. The court, deciding the Bennett finality framework applied, explicitly

acknowledged the difference in wording between the Controlled Substances Act and the

APA, but “s[aw] no reason . . . that the word ‘final’ in § 877 should be interpreted

differently than the word ‘final’ in the APA.” John Doe, Inc., 484 F.3d at 566.

Likewise, I see no reason to interpret the word “final” in the MLA differently from

the word “final” in the APA. Although I agree with Judge Lucero’s concurrence that a

“decision of the Secretary” may be metaphysically distinct from an “agency action,” I do

not think the distinction makes any practical difference here—for the same standards of

finality apply to both.

Judge Lucero’s concurrence points to Dodd v. United States, 545 U.S. 353 (2005),

but it is not to the contrary. Dodd examined the statute of limitations in the Anti-

-7-
Terrorism and Effective Death Penalty Act (AEDPA), which runs from “the latest” of a

number of enumerated events—none of which involve agency action or secretarial

decisionmaking. See 28 U.S.C. § 2255(f). The particular provision at issue in Dodd

applied a one-year statute of limitation from “the date on which the right asserted was

initially recognized by the Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.” §

2255(f)(3). The question was when the limitations period began to run where the

Supreme Court recognized a right in one case, and made that same right retroactively

applicable in a different case more than one year later. See Dodd, 545 U.S. at 355. The

Court ruled that the limitations period began to run on the earlier date, when the right was

“initially recognized,” even though it had not yet been made retroactive. Id. at 357. The

Court “recognize[d] the potential for harsh results,” but found that its disposition was

“required by the text.” Id. at 359.

Dodd is certainly relevant for the proposition that where the meaning of a statute

of limitations is unambiguous, we must obey the text even when doing so results in the

limitations period starting—or expiring—before the cause of action accrues. But Dodd

has nothing at all to say about the meaning of “final decision of the Secretary.” Judge

Lucero’s concurrence jumps to the conclusion that “final decision of the Secretary”

occurs at the point when “the Secretary has completed his decision-making process”—as

though this interpretation were obvious. Lucero Concurrence at 6. But the fact that one

may, at first glance, find the phrase unambiguous does not mean one should ignore other

-8-
courts’ interpretations of very similar statutory phrases. Cf. I.C.C. v. Bhd. of Locomotive

Eng’rs, 482 U.S. 270, 284–85 (1987) (interpreting a statutory provision with reference to

past interpretations of a similar provision in another statute); Hobbs ex rel. Hobbs v.

Zenderman, 579 F.3d 1171, 1181–82 (10th Cir. 2009) (same). At a minimum, those

courts’ interpretations should cause one to question whether the meaning is really so

clear. See United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472

F.3d 702, 710 (10th Cir. 2006) (“A statute is ambiguous when it is capable of being

understood by reasonably well-informed persons in two or more different senses.”

(citation omitted)); see also Hackwell v. United States, 491 F.3d 1229, 1235 (10th Cir.

2007) (“[A] dictionary definition, standing alone, is not necessarily dispositive.”). And,

as previously noted, to the extent one finds the wording ambiguous (though I do not), one

should follow the presumption that the limitations period runs from the time the cause of

action accrues.

Thus, to start the running of the limitations period, a “final decision of the

Secretary” must bear the hallmarks of finality described in Bennett: consummation and

legally-binding effect on the affected party.

C. Accrual

The parties have proposed three different dates on which the “final decision of the

Secretary” could have occurred. First, February 4, the date of Secretary Salazar’s press

conference. Second, February 6, the date of Secretary Salazar’s intra-agency

memorandum to the BLM’s Utah State Director. Third, February 12, the date of BLM’s

-9-
letters to the plaintiffs notifying them of the Secretary’s decision and authorizing a

refund.

Only the February 12 date comports with the finality principles discussed above.

1. February 4 Press Conference

The government’s central contention to the district court was that a final decision

was effected February 4, when Secretary Salazar held a press conference and issued a

press release announcing his intent to retroactively withdraw plaintiffs’ leases. Although

the majority does not go so far as to wholly embrace the press release as the date of the

Secretary’s final decision, Judge Seymour’s concurrence relies in part on the press release

in concluding that the final agency action occurred, at the latest, by February 6.

The notion that a press conference could constitute a formal agency decision—let

alone a “final” one—is truly extraordinary. “No court has ever found a press release to be

a final agency action under the APA.” Trudeau v. Fed. Trade Comm’n, 384 F. Supp. 2d

281, 289 (D.D.C. 2005). The only possible exception courts have ever considered

(though never definitively ruled on) is that an agency press conference might constitute a

final “sanction” under the APA insofar as it penalizes a party through adverse publicity.

See id. (citing examples). While a press conference or press release may often

accompany an important agency action, it is unheard of for an agency to claim that the

press conference itself constitutes the legally operative, formal decision for purposes of

judicial review.

The Department of the Interior’s own regulations give no support to the notion

-10-
that, prior to this case, the Department ever claimed the power to rule by press

conference. To the contrary, the regulations codifying the Secretary’s power to review

his subordinates’ decisions explicitly require a “written decision.” 43 C.F.R. § 4.5(c) (“If

the Secretary . . . reviews a decision, the parties and the appropriate Departmental

personnel will be advised in writing of such action, the administrative record will be

requested, and, after the review process is completed, a written decision will be issued.”).

A press conference is fundamentally a political act, not a legal act; it serves to

“express federal policy but lack[s] the force of law.” Barclays Bank PLC v. Franchise

Tax Bd. of Cal., 512 U.S. 298, 329–30 (1994); see also id. (“The Executive Branch

actions—press releases, letters, and amicus briefs— . . . are merely precatory.”).

Whatever APA significance a press conference might have would be limited to the

provision of notice to the public after an agency decision is consummated. A press

conference is not a mechanism by which rights and obligations are determined, or from

which immediate legal consequences flow. Thus, a press conference cannot be a final

agency action.

2. February 6 Intra-Agency Memorandum

The two concurrences find that a final agency action occurred no later than

February 6, when the Secretary sent the intra-agency memorandum to the BLM.

According to the majority, the Secretary’s memorandum did not give the BLM any

discretion in carrying out the Secretary’s will; thus, notifying the parties and refunding

their money was simply a ministerial act.

-11-
 The Secretary’s February 6 memorandum to the BLM stated, in relevant part:

There has been considerable controversy surrounding this lease sale . . . On
January 17, 2009, a Federal district court issued a Temporary Restraining
Order enjoining issuance of oil and gas leases for 77 of the parcels offered.
Given the concerns raised . . . and my belief that the issues raised merit
further review, I am directing you to withdraw the 77 parcels that were
covered by the January 17, 2009, Temporary Restraining Order from further
consideration in this lease sale.

In accordance with applicable laws, regulations, and agency procedures,
please take all necessary actions to effectuate this withdrawal, including
promptly notifying the high bidders and returning any monies received by
the BLM in connection with these 77 parcels.

Aplt. Br. Add. at 23.

Some observations. First, the February 6 memorandum, though it does not vest the

BLM with discretion regarding whether to withdraw the parcels, does not purport to

“effectuate” the withdrawal of its own force; rather, it orders the BLM to “take all

necessary actions to effectuate this withdrawal.” This wording suggests that on February

6 the parcels were not yet withdrawn. Second, the letter implies that to “effectuate” the

withdrawal it is necessary for the BLM to take steps to notify the parties and refund their

bids. Third, the letter contemplates compliance with “applicable laws, regulations, and

agency procedures.”

As noted above, one of the applicable regulations here is 43 C.F.R. § 4.5(c), which

states: “If the Secretary . . . reviews a decision, the parties and the appropriate

Departmental personnel will be advised in writing of such action, the administrative

record will be requested, and, after the review process is completed, a written decision

-12-
will be issued.” Although Judge Seymour’s concurrence finds the Secretary satisfied the

“issued” requirement by issuing a memorandum to a subordinate, the fact that the

regulation requires notice to be given to both “Department personnel” and “the parties”

suggests that the “written decision” must be “issued” to the affected parties as well.2 The

D.C. Circuit, addressing a similar problem, found that, for statute-of-limitations purposes,

the word “issued” referred to the date when an order was published, rather than the date

the agency claimed it was issued. See S. Pac. Pipe Lines Inc. v. U.S. Dep’t of Transp.,

796 F.2d 539, 540 (D.C. Cir. 1986). And our own court has approved the D.C. Circuit’s

understanding. See Mesa Airlines v. United States, 951 F.2d 1186, 1188 (10th Cir. 1991).

Judge Seymour’s concurrence characterizes the agency’s action as mere

“sloppiness.” Seymour Concurrence at 11. Be that as it may, sloppiness can and does

have legal consequences. The fact that the BLM did not issue an order to the parties until

February 12—and even then, did not notify them of the February 6 memo—is “behavior”

inconsistent with a February 6 date of finality. Whitman, 531 U.S. at 479.

The Secretary’s course of action—internally directing the BLM to effectuate the

withdrawal, as opposed to declaring the parcels withdrawn—is consistent with the way

the Department’s regulations internally allocate authority. Under Department regulations,

“[a]ll of the Department of the Interior’s non-royalty responsibilities related to the

approval and supervision of operations on onshore Federal . . . oil and gas leases have

2
Similarly, decisions of this court are “issued” when they are made public—not
when the panel sends its final draft to the clerk of court.

-13-
been consolidated within the Bureau of Land Management.” 48 Fed. Reg. 36582-02,

36582. Thus, in practice, most “decision[s] of the Secretary” under the MLA are in fact

decisions by BLM administrators exercising authority delegated to them pursuant to these

regulations.

While the intra-agency memorandum may have been binding in the sense that it

obligated the BLM to act, it was not legally binding with regard to external parties. One

reality of the modern federal administrative state is that cabinet department heads act

through a web of subordinates, and their actions are not effectuated legally until they are

carried out by those subordinates. Another reality is that the President and Congress have

much to say about agency action and may intervene before a decision is finalized.

Thus, for example, in Justheim Petroleum Co. v. Department of Interior, 769 F.2d

668 (10th Cir. 1985), we found that even though the Secretary had directed the BLM to

issue certain oil and gas leases to an applicant, that issuance was not legally effective

where Congress withdrew the Secretary’s authority to issue the lease “[b]efore the BLM

acted on [plaintiff’s] applications.” Id. at 671. In other words, the Secretary’s command,

though final in the sense that the Secretary had made up his mind, was not legally final

until executed by the agency.

The structure of the administrative state necessitates that internal agency

communications have no external legal effect until they are externally manifested—that

is, until they are “issued.” Ctr. for Native Ecosystems, 509 F.3d at 1329. This is why, in

Mesa Airlines, we recognized that “[a] decision becomes a final decision when it is both

-14-
complete and passes out of the control of the authority by being released to the interested

parties or to the public in decisional form.” Mesa Airlines, 951 F.2d at 1188 (emphasis

added). Here, although the Secretary sent a memorandum to a subordinate, that decision

did not “pass[] out of [his] control . . . by being released to the interested parties” until the

BLM mailed the February 12 letters. Id. Unlike Judge Lucero, I am not hard-pressed to

interpret the phrase “final decision of the Secretary” to require a “transmittal of the

Secretary’s directive,” for it is the act of external transmission, whether performed by a

subordinate or by the Secretary himself, that consummates the decision and gives it a

binding legal effect on the affected parties. Lucero Concurrence at 5.

Several counterfactuals clarify this point. Suppose that on February 11, before the

letters were mailed, the Secretary had changed his mind and reversed the withdrawals

before they had ever been effectuated by the BLM. Surely stakeholders could not then

challenge this change on the grounds that the February 6 memorandum was a legally-

enforceable agency action. So holding would prevent a cabinet official from ever altering

a directive without exposing himself to an APA suit by an aggrieved party or interest

group.

Alternatively, suppose that on February 7 the memorandum was leaked to the

successful bidders. Under Judge Lucero’s approach, they could not immediately bring

suit against the Department of the Interior to demand a refund, because the Department

had not, at that point in time, “issued a ‘definitive statement of its position, determining

the rights and obligations of the parties.’” Ctr. for Native Ecosystems, 509 F.3d at 1329.

-15-
 Or suppose the Secretary told his chief of staff on February 1 that he had decided

to withdraw the leases. Isn’t that decision as “final” as the February 6 memorandum?

After all, both merely communicate the Secretary’s decision to a subordinate and might

be the Secretary’s last personal involvement in the decision. Under Judge Lucero’s

logic, this conversation would trigger the limitations period.

Our precedents also suggest that in considering whether an agency action is final,

we should consider the effect our decision would have on the orderly conduct of the

administrative process. See Ctr. for Native Ecosystems, 509 F.3d at 1329 (“[T]he

agency’s action is final . . . so long as ‘judicial review at the time [would not] disrupt the

administrative process.’”); see also Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d

45, 49 (D.C. Cir. 2000) (issuance of an enforcement letter “crystallize[s] an agency

position into final agency action within APA § 704’s meaning”). Judge Lucero’s

interpretation of “final decision”—whenever the Secretary “ha[s] literally no further

involvement in [the] matter,” Lucero Concurrence at 6—would necessitate judicial

intrusion into the decision-making processes of the executive branch, as parties fight over

which memorandum (or press conference) constituted the “final” agency decision. Cf.

Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (“[O]fficials will not

communicate candidly among themselves if each remark is a potential item of discovery.”

(quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8

(2001))).

Judge Seymour’s approach will lead to similar problems. Judge Seymour refuses

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to decide whether the press release or the memorandum constituted the final agency

action, instead concluding that the decision was final “by February 6.” Seymour

Concurrence at 6. Her analysis, in essence, combines various aspects of these documents

that, in her view, collectively satisfy the Bennett factors. But if the press conference

alone was insufficient, and the memorandum was not disclosed, the result is the same as

under Judge Lucero’s analysis: the affected parties will have no idea when their cause of

action accrues.

The per curiam opinion’s holding carries at least two significant future

implications.

First, giving legal effect to internal agency documents will likely expose agencies

to judicial challenges that would today be considered unripe. “[T]he purpose of the

ripeness doctrine is: ‘to prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements over administrative policies, and

also to protect the agencies from judicial interference until an administrative decision has

been formalized and its effects felt in a concrete way by the challenging parties.’” Sierra

Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990) (emphasis added) (quoting Abbott

Labs., 387 U.S. at 148–49). One of the key factors of a ripeness inquiry is “whether

judicial intervention would inappropriately interfere with further administrative action.”

Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d 1258, 1265 (10th Cir.

2002) (quoting Roe No. 2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001)). Thus, when

there is a possibility (even a remote possibility) of an agency modifying a decision before

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it is formalized and issued, we have found the agency’s decisionmaking processes

protected by the ripeness doctrine. See Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of

Agric., 197 F.3d 448, 452 (10th Cir. 1999). But after today’s ruling, the government will

be hard-pressed to argue, as it typically does, that its internal decisions are not final in the

judicially enforceable sense; stakeholders, quite rightly, will point to today’s decision as

proof that press releases and internal directives are final decisions ripe for review, lest

they inadvertently lose their window of opportunity to challenge the decision.

Second, the potential for agencies intentionally abusing the per curiam opinion’s

holding—by keeping “final decisions” secret for some time, or by failing to disclose the

precise dates such decisions were made internally—cannot be ignored. The notion that

undisclosed— even secret—documents trigger a statute of limitations is contrary to the

notion of open and accountable administrative decisionmaking.

Judge Seymour’s concurrence characterizes these consequences as a “parade of

horribles.” Seymour Concurrence at 11. But they are fully consistent with the approach

taken by the majority; neither Judge Seymour’s concurrence nor Judge Lucero’s

concurrence offer a limiting principle that would prevent these consequences, whether

caused by sloppiness or intentional abuse.

Judge Lucero’s concurrence claims that the equitable tolling doctrine would be

sufficient to curtail such abuses. But Judge Lucero also finds—quite rightly—that

equitable tolling is meant to be an extraordinary remedy, and therefore is inapplicable

here. The logical implication of the majority’s position is that the Secretary would have

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unlimited discretion to truncate the 90-day period specified by Congress to a length of his

choosing, so long as he leaves some minimal window of time—a week? three days?—for

an affected party to file a slapdash legal challenge. This discretion would not be limited

to the MLA; rather, it would apply to every limitations period that Congress has seen fit

to run from the time of a final decision rather than from the time notice is transmitted or

received. Allowing agencies to alter limitations periods at their discretion would largely

defeat the point of these statutes—to enable meaningful judicial review of agency

decisions within a well-defined time period established by Congress.

Judge Lucero’s concurrence makes much of the fact that many statutes make the

transmission of notice, rather than the receipt of notice, the point at which the limitations

period begins to run, meaning that the time the notification spends in transit eats into the

time the plaintiff has to challenge the decision. Judge Lucero reasons that because such

schemes are unobjectionable, a scheme in which the limitations period is triggered by an

undisclosed internal agency memorandum is likewise unobjectionable. Respectfully, I

find the comparison unconvincing.

A transmission trigger serves the important goal of making statute-of-limitations

disputes easy to resolve—a court need only look to a letter’s postmark or an email’s

timestamp, rather than resolve a factual dispute regarding when the recipient actually

received notice. A transmission trigger also makes it simple for the recipient to calculate

the amount of time he has to challenge the decision. But a trigger based on an internal

agency document muddles, rather than clarifies, the limitations period, particularly when

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it is not initially disclosed to the affected party. In addition, the necessary delay created

by the postal service (or other delivery provider) is not subject to the same fairness

concerns as a delay created by the agency itself, whether through deliberate withholding

of notice or mere negligence.

In light of these considerations, I must conclude that the February 6 memorandum

did not constitute a “final agency action” under the APA or a “final decision of the

Secretary” under the MLA. Even if the Secretary’s decision was embodied in that

memorandum, the decision was not final until it “passe[d] out of [his] control” by being

externally manifested in some way. Mesa Airlines, 951 F.2d at 1188.

3. February 12 letter to the plaintiffs

Having excluded the February 4 press conference and the February 6

memorandum, we are left with the February 12 letter. This letter, unlike the press

conference or the memorandum, satisfies the finality standards described in our

precedents. The letter, which was sent to the plaintiffs by certified mail, stated:

Dear [Plaintiff],

[Plaintiff] was the high bidder for oil and gas leases [lease numbers] at the
competitive oil and gas sale held in this office on December 19, 2008.

The Secretary of the Interior, Ken Salazar has directed the BLM to
withdraw these parcels from the December 19, 2008 Oil and Gas Lease
Sale. Therefore, we are authorizing a refund in the amount of [amount
paid] for the Bonus Bids, 1st Year’s Rentals and Administrative Fees.

Sincerely,
[signature]
Kent Hoffman

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 Deputy State Director
Division of Lands and Minerals

Aplt. Br. Add. at 24. The letter was dated February 12, 2009, and made no mention of the

February 4 press conference or the February 6 memorandum.

The February 12 letter is a much better candidate for “final action” than either the

February 4 press conference or the February 6 memorandum. The letter

“consummat[ed]” the agency action through an exercise of the Secretary’s delegated

authority. Bennett, 520 U.S. at 177. It constituted a formal issuance of a “definitive

statement of” the agency’s position. Ctr. for Native Ecosystems, 509 F.3d at 1329; see

Mesa Airlines, 951 F.2d at 1188. And it “determined the rights and obligations of the

parties,” id.—the plaintiffs lost all rights attached to their winning bids and became

entitled to a refund in the amounts specified. Critically, judicial review after the February

12 letter was issued would not “disrupt the administrative process.” Id.

This contrasts with the February 6 memorandum, which, if it were the final

decision, would have necessitated the plaintiffs undertaking intrusive inquiries into

internal Interior Department communications in order to effectively vindicate their rights.

It also satisfies the man-in-the-street common sense test we should always keep our eye

on.

* * *

The majority’s decision today is a recipe for uncertainty, unfairness, and

inefficiency in the administrative process. As one of our circuits facing a similar issue

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recently said:

If we considered agency statements lacking clear indicia of finality to
nonetheless be final agency action, subjects of agency regulation would be
forced to file repeated precautionary petitions for review. Such petitions
would waste the time and resources of the Court and of the parties, and
would promote unfairness by allowing an agency to retroactively determine
whether a particular statement was final or not. Considerations such as
these have long been an integral part of finality determinations.

Am. Airlines, Inc. v. Transp. Sec. Admin., 665 F.3d 170, 174 (D.C. Cir. 2011). Such

problems are amplified, of course, when the document at issue is an undisclosed

memorandum. To the list above we may add intrusive disclosure requests of internal

agency documents.

Surely Congress did not intend the result the per curiam opinion reaches today, and

the text of the MLA does not command such an outcome—a result at odds with well-

established principles of statutory construction, applicable case law, and an orderly

process of judicial review of administrative action.

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